Landlord/Tenant Basics Jay Chaudhary, Indiana Legal Services Disclaimers/Background

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?