Tenant's Rights and the Move Towards Privatizing Evictions

Many apartment dwellers in Chicago are not aware of recent changes in how the Cook County Sheriff is handling evictions, in particular, the process for removing a tenant's property when the tenant has not moved out after the court enters an “Order of Possession.” As a result of the large increase in evictions and foreclosures from our economic downturn, the Sheriff's office no longer removes a tenant's property.

The new procedure is for the Sheriff to remove any tenants present in the apartment and return “possession” of the apartment to the landlord. The Sheriff returns possession by placing an eviction sticker on the door and informing the landlord that he or she can change the locks. At that point, the landlord now has responsibility for removal of any property still in the apartment.

What this means in practice is that the landlord now has access and control over the tenant's property with no neutral party present to protect the tenant's rights. This is especially problematic, as the tenant in most situations will owe the landlord unpaid rent and the court granting the landlord possession may have included a money judgment in the landlord's favor. Landlords know that these judgments are essentially uncollectible (especially with lower-income tenants) and there is a strong temptation for a landlord to try and recoup some of the lost rent from the tenant's property. Likewise, the likelihood for conflict surrounding real or imagined abuse of the tenant's belongings is high.

Chicago's ordinance regulating landlord-tenant relations (the “Residential Landlord Tenant Ordinance” or “RLTO”) indicates that property left in a unit “after termination of a rental agreement” is treated as “abandoned” under the ordinance. RLTO §5-12-130. Section 130 further provides that such property must be stored be left in the unit or the landlord can remove the property, store it and dispose of it after 7 days. §130(f). The landlord may not withhold the property or sell it to pay the tenant's debt: this is an attempt at extra-judicial enforcement of a judgment and is, in fact, what the civil law calls “conversion” or what most people just refer to as “theft.” While there is a provision for landlords to seize and rent the property of a tenant that owes rent (a “distress warrant”), it is in practice only applicable to commercial tenants. 735 ILCS 5/9-301 et seq.

Requiring landlords to remove property after a tenant is forcibly evicted encourages exactly this sort of extra-judicial self-help. In some sense, having landlords take charge of removing property can be understood in the context of a world-view that favors private action and a reduction in the role of government. From this perspective, the Sheriff's decision to cease removing belongings promotes efficiency as taxpayers no longer need to pay for this task and the Sheriff can serve the incredible backlog of evictions in Cook County more quickly. Indeed, the Condo Law Subcommittee of the Chicago Bar Association's Real Property Committee's (an august group if ever there was one) recently endorsed a proposed amendment in the State legislature that would allow landlords to procure a “licensed private detective” to conduct the eviction instead of the Sheriff.

These trends present a number of grave concerns. Renters facing evictions are already in a very vulnerable position. They face a court system they often do not understand and the prospect of losing their shelter. Now, should they be unable to move out prior to the Sheriff's arrival, their worldly possessions will be in the hands of a hostile party. Even worse, should the law be amended to allow private detectives (read−'hired thugs') to carry out evictions, tenants could face intimidation and abuse at the hands of a landlord's private muscle. The effect of such changes is only to make a bad situation even worse.

A forcible eviction can never be a pleasant experience. However, the presence of a law enforcement officer gives at least the appearance of neutrality. When the Sheriff removes a person's belongings it is an impartial act of the state carrying out the law; when the landlord takes control of a tenant's property it invariably reeks of a private party invading the tenant's space. Most tenants understand that the Sheriff has no incentive to damage or steal their property and fewer tenants are likely to make claims in court to that effect. Additionally, the Sheriff is a symbol of the law's power and his presence is likely to calm any raw tempers; this is an important consideration in an emotionally-charged situation such as a forcible eviction. A person experiencing eviction should understand that it is society's decision, effected through our legal process, that returns a landlord's apartment for non-payment of rent. Not the raw imposition of power on the powerless.

By following the Wild West approach of landlord “self-help,” we encourage further conflict in the already contentious process of eviction, and perhaps even violent confrontations between angry parties. The answer to a slow process for the Sheriff to carry out necessary evictions is to properly fund the courts and Sheriff's Department so that the resources are present for these institutions to effectively carry out their tasks. Leaving the matter to private individuals places vulnerable people at risk and reduces the respect for our legal processes.