It was President Barak Obama who said that elections have consequences. I don’t get political on this page, but I do talk about policy and you can’t talk about policy without recognizing how politics can sometimes play into the development of a policy. In a move that may have more to do with politicizing the tug of war between “red states” and “blue states” or those who wish to “resist” the immigration policies of President Donald Trump, Illinois became the second state in the nation (the other state is California) to pass legislation that seeks to protect tenants based upon their immigration or citizenship status. According to the Chicago Tribune, Governor Pritzker said “he wants Illinois to stand as a firewall against a xenophobic president who is creating a climate of fear”.
Governor Pritzker signed Senate Bill SB1290 into law creating the Illinois Immigrant Tenant Protection Act. The law provides that, with exceptions, a landlord shall not: (1) threaten to disclose or actually disclose any information regarding or relating to the immigration or citizenship status of a tenant to any person, entity, or any immigration or law enforcement agency with the intent of harassing or intimidating the tenant, retaliating against the tenant for exercising his or her rights, or influencing the tenant to surrender possession; or (2) bring an action to recover possession of a dwelling unit based solely or in part on the immigration or citizenship status of a tenant. The law became effective upon signing on August 22, 2019.
The new statute expressly provides that it doesn’t change a landlord’s right to terminate a tenancy pursuant to existing State or local law, nor does it change the ability of local government to regulate or enforce a prohibition against a landlord’s harassment of a tenant. A landlord can still serve a five day notice on a tenant if the tenant doesn’t pay. A landlord cannot threaten to call the U.S. Immigration and Customs Enforcement (ICE) if a tenant threatens to complain about conditions in their rental property. The law also provides that in any civil action involving a tenant/occupant’s housing rights, no inquiry is usually allowed into the tenant/occupant’s immigration or citizenship status.
What’s worse is that Section 15 of the new act provides remedies to a tenant when a landlord engages in conduct prohibited by the act. In such a case, a tenant can bring a civil action against a tenant to recover (1) actual damages, as reasonably determined by the court, for injury or loss suffered; (2) a civil penalty in an amount not to exceed $2,000 for each violation, payable to the tenant; (3) reasonable attorney’s fees and court costs; and (4) other equitable relief as the court may deem appropriate and just. An attorney fee shifting provision? Yep – just like the provisions of the Chicago and Evanston landlord tenant ordinances. This law will give tenant’s rights attorneys one more topic to probe about with their clients.
I’m glad to say that in 22 years of representing landlords, I don’t know that any of my clients have ever suggested an intention to call ICE on their tenants. I’m not sure whether this kind of thing is happening on a regular basis or not. In the long run, it doesn’t matter how we got here, what we need to be worried about for landlords is how it affects them.
So, if a landlord doesn’t threaten to report a tenant to ICE over immigration status, is this law a big deal? Yes it is. Because it goes further. The law amends the Eviction Act by adding an affirmative defense in an eviction case. It says that it is an affirmative defense to an eviction “that a landlord engaged in conduct on the basis of immigration status of the tenant” and it provides that an eviction order may not be entered against a tenant as a reprisal for or on the basis of the tenant’s immigration or citizenship status. Here is the text:
So, a tenant has an affirmative defense if the landlord’s demand for possession (ie. a 5, 10 or 30 day notice) is based SOLELY OR IN PART on the citizenship or immigration status of the tenant. Uh oh. I don’t think my landlord’s are going to serve a notice based on this, however, if the tenant asserts it as an affirmative defense, you know what we have? Litigation. Litigation to PROVE A NEGATIVE. How does a landlord prove that they did not, IN PART, determine to give a 30 day notice based on immigration status? This will do exactly what the tenant’s rights people want – give tenants an argument. Tenant’s don’t win by winning. They win by arguing.
Take a look at that section (a)(2), a landlord cannot give a demand for possession (like a notice of intent not to renew a lease or a 30 day notice to terminate a month to month tenant) based solely or in part upon the tenant’s failure to provide a social security number, information to get a credit report, or to provide acceptable ID after the lease has commenced and the tenant has possession. Thus it is going to be WAY HARDER to non-renew or give a 30 day notice to illegal immigrant tenants because of their ability to fight the eviction even if the reason the landlord wanted to terminate the tenancy had ABSOLUTELY NOTHING TO DO WITH the tenant’s immigration status.
Good luck (bonne chance, Hodně štěstí, Onnea, Καλὴ τύχη, Ngikufisela iwela) landlords!