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Illinois: New Law Affecting Possession

by Jill Rein
Pierce & Associates, P.C. - USFN Member (IL)

A bill was signed August 26, 2008, affecting tenant rights to possession of foreclosed property in Illinois. The new law is effective immediately. It substantially increases the time frame in which to obtain possession from tenants occupying the property after a foreclosure is complete. A copy of the new statute in its entirety can be viewed here. Below is a summary.

There are two ways to obtain possession from tenants after the foreclosure is complete in Illinois: either a separate forcible detainer action or a supplemental petition for possession in the foreclosure proceeding can be filed.

Under the new law, before a forcible detainer action can be filed against the tenants, they must first be served with a copy of a “Notice of Intent to File Forcible Entry and Detainer Action.” Then, 90 days must pass after service of this notice before a forcible detainer complaint can be filed. This new provision adds at least 90 days to the time frame to obtain possession from tenants after the foreclosure is complete.

On the other hand, if a supplemental petition for possession is filed in the foreclosure proceeding (which can be done any time up to 90 days after the order confirming possession has been entered) to obtain possession against tenants, a notice of hearing of the petition must be served on the tenants (the hearing must be within 21 days of the date of service). Further, under the new law, if the tenants:

▪     are current on their rent, or

▪     are not provided timely notice of to whom and where the rent is to be paid, or

▪     where the tenants have made good-faith efforts to make rental payments in order to keep current,

any order of possession granted must give the tenants 120 days possession following the notice of the hearing on the petition or possession through the term of their lease, whichever is shorter. The new provisions of this section virtually ensure tenants will be given 120 days or the duration of their lease.

Supplemental petitions are not usually practical or time efficient as unknown occupants cannot be named in them (which can be done in forcible detainer actions), and the time frames are often impossible to comply with due to court scheduling issues. Accordingly, the process this author’s firm uses to evict tenants after the foreclosure is complete is the forcible detainer action, which now will take an additional 90 days to conclude. The forcible detainer action, however, will still be more effective and time efficient than a supplemental petition in most cases.

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