LANDLORD/TENANT BASICS

JAY CHAUDHARY, INDIANA LEGAL SERVICES

DISCLAIMERS/BACKGROUND

• Procedures vary wildly from county to county

• This presentation is from a tenant’s perspective

• Indiana-not a tenant friendly state

• At least we aren’t Arkansas!

• Things Indiana does not have:

• Rent escrow

• Statutory right to cure

• Source of Income protection

• Rent withholding for tenant repairs

EVICTION BASICS

• Seems obvious, but Landlords MUST obtain court order to evict

• “10 day notice,” “30 day notice,” etc. are merely precursors to court action

• Fundamentally contract issues: lease governs

• Most counties: bifurcated proceedings

• Possession and damages

• At possession hearing, only issue is whether landlord is entitled to possession

• If rent is not paid on time, landlord can evict

• No right to cure

THE RENT IS TOO HIGH! (BUT IS IT LATE?)

• Lease governs, generally (will specify 5th day, 7th day, etc)

• If lease is silent, 10 days is default (I.C. 32-31-1-6)

• However, pattern of deviation changes interpretation of lease

• Ex: Due to pay schedule, parties agree that rent will be due on 15th instead, lease still says 5th. Parties continue in this manner for a few months. Relationship sours, landlord refused to accept rent tendered between 5th and 15th. Due to deviation, rent was timely tendered.

• Acceptance of rent waives right to evict

• Can still charge late fees, etc.

• Money tendered MUST first be applied to rent, not fees, for eviction purposes

• Ex. Landlord accepts late rent in January, charges $35 late fee per lease. Tenant timely tenders February rent, but not late fee. Landlord cannot evict on that basis, CAN continue to charge reasonable late fees

OTHER POSSESSION HEARING BASICS

• Partial payment

• If accepted, Landlord waives right to evict for that month

• Agreed move out

• Important to keep eviction off record

• Small Claims Court

• Relaxed rules of evidence

• Informal procedure

GROUNDS FOR POSSESSION OTHER THAN NONPAYMENT

• Lease expiration/holdover

• Creates a month to month tenancy

• Lease violation

• Must be material/not de minimis

• Common example: unauthorized pet

• Toss-up

• Waste

HABITABILITY/RENTAL CONDITIONS

• Warranty of Habitability: Landlord is responsible for

• I.C. 32-31-8-5: Electrical systems, plumbing systems, sanitary system, HVAC, Appliances, local health and housing codes

• Landlord CANNOT contract out of these obligations

• Tenants can:

• I.C. 32-31-8-6: Sue to force repairs, if

• Notice to landlord

• Reasonable time

RENTAL CONDITIONS (CONT.)

• Tenant CANNOT withhold rent, nor can tenant deduct repairs from rent, without going to court first/simultaneously

• Constructive Eviction: tenant may break lease early and move out if

• Warranty of habitability is violated

• Landlord has notice, does not fix in a reasonable time

• Tenant ACTUALLY MOVES OUT!

• Tenant can get damages, moving expenses, attorneys fees, etc.

SELF HELP EVICTION

• I.C. 32-31-5-6: Landlord cannot interfere/deny possession without a court order

• Change locks, cut off utilities, etc

• No affirmative obligation for Landlord to pay for utilities to keep them on, if lease does not provide that obligation

• Remedy: Emergency Possessory Order (I.C. 32-31-6)

• Court must set emergency hearing (within 3 days)

• Can be filed on small claims docket

• One of the few circumstances where small claims court can order injunctive relief

SECURITY DEPOSITS

• I.C. 32-31-3-12: Tenant must supply forwarding address in writing, then

• Landlord has 45 days to mail itemized list of damages/remainder of security deposit

• Generally, landlord cannot deduct for “ordinary wear and tear,” but more practically, the lease governs

• Leases may specify, for example, tenant must paint or steam clean carpets

• If landlord doesn’t send deposit or itemized list, tenant can recover deposit, costs, and attorneys fees

FAIR HOUSING/CIVIL RIGHTS

• Discrimination:

• Member of a protected class +unfair treatment because of their membership in that class

• Protected classes: race/national origin, gender, religion, disability

• Reasonable accommodation

• Landlords must grant reasonable requests for accommodations based on disability

• Includes Mental illness, emotional support animals, etc.

• General remedy: complaint to Indiana Civil Rights Commission

MISCELLANEOUS

• Public Housing

• Generally higher standards for evictions

• Lease non-renewals require good cause

• Lease break fees

• Must be reasonable, not “cascading”

• VAWA/I.C. 32-31-9

• Tenants who are DV victims have enhanced protections

• Landlords cannot take any adverse actions related to DV

• Landlords must change locks if:

• There is an order of protection and tenant gives landlord a copy

• Tenant may also terminate lease early w/o late fees

MISC. (CONTINUED)

• Land sale contract

• If there is even 5% equity, cannot “evict,” have to go through foreclosure process

• “Rent to own”

• If payments are “rent,” have to comply with LL-T statutes

• If payments are “installment payments,” purchaser builds equity

• Can’t have it both ways

• Mobile homes

• Predatory lot owners

• Report them to AG

BOTTOM LINE

• MUST PAY RENT

• MAKE ALL REQUEST TO LANDLORD IN WRITING

• CONSTRUCTIVE EVICTION: MUST ACTUALLY MOVE OUT

• QUESTIONS?