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This article addresses various issues that may arise in your rental property that would constitute you to sue your landlord. The below questions give an overview of Indiana landlord-tenant law, and what a tenant’s and landlord’s responsibilities are in a rental property.  

This article addresses various issues that may arise in your rental property that would constitute you to sue your landlord. The below questions give an overview of Indiana landlord-tenant law, and what a tenant’s and landlord’s responsibilities are in a rental property.  

  1. Can I sue my landlord for trying to evict me?
  1. Can I sue my landlord for wrongful eviction?
  1. Can I sue my landlord for retaliatory eviction?
  1. Can I sue my landlord for roach infestation?
  1. Can I sue my landlord for termites?
  1. Can I sue my landlord for not fixing my AC?
  1. Can I sue my landlord for negligence?
  1. Can I sue my landlord for entering without notice?
  1. Can I sue my landlord for harassment?  
  1. Can I sue my landlord for emotional distress?
  1. Can I sue my landlord for mold?
  1. Can I sue my landlord for asbestos exposure?

Some Indiana law basics to be aware of are that:

  • In the absence of a written agreement expressly stating that the tenancy is one for a different term, a residential rental tenancy will be considered a tenancy from month to month.  IC 32-31-1-2
  • A lease for a period of time lasting longer than 3 years must be recorded in the county recorder of deeds office in order to protect the lessor’s rights as against a third-party good faith bona fide purchaser of the premises.  IC 32-31-2-1
  • A valid sub-lessor has all of the rights against the landlord that the original lessor has.  IC 32-31-1-12
  • Indiana circuit, superior, municipal and small claims courts all have original concurrent jurisdiction over landlord-tenant disputes.  IC 32-31-3-11
  • In place of the common law concept of an implied warranty of habitability in each residential rental agreement, Indiana courts look to compliance with local housing codes to ensure that landlords maintain habitable rental units.  City of Vincennes v. Emmons, 841 N.E.2d 155, 164 (Chief Justice Shepard concurring) (Ind. 2006)

Can I Sue My Landlord For Trying To Evict Me?

A landlord needs grounds to evict you.  A landlord can lawfully evict a tenant for failure to pay rent or for damaging the premises (i.e. “committing waste”).  If the landlord has grounds to evict, he or she must do so in a lawful manner.  

If a tenant refuses or neglects to pay rent when due, a landlord may terminate the lease with not less than ten (10) days' notice to the tenant unless: (1) the parties otherwise agreed; or (2) the tenant pays the rent in full before the notice period expires. (IC 32-31-1-6)

The landlord’s Notice given must be substantially as follows:

To (insert name of tenant here):

     You are notified to vacate the following property not more than ten (10) days after you receive this notice unless you pay the rent due on the property within ten (10) days: (insert description of property here) (IC 32-31-1-7 )

The above Notice is NOT required if: (1) The landlord agrees to rent the premises to the tenant for a specified period of time, (2) The time for the determination of the tenancy is specified in the contract, (3) A tenant at will commits waste, (4) The tenant is a tenant at sufferance, (5) The express terms of the contract require the tenant to pay the rent in advance, and the tenant refuses or neglects to pay the rent in advance, or  (6) The landlord-tenant relationship does not exist (IC 32-31-1-8).

Notice of the eviction must be served on the tenant, but if the tenant cannot be found, notice may be served on a person residing at the premises. The person serving the notice must explain the contents of the notice to the person being served or service may be made by affixing a copy of the notice to a conspicuous part of the premises if no one is present (IC 32-31-1-9).

In sum, if the landlord does not have grounds to evict you, you may sue him or her if the wrongful actions caused you damage.  If the landlord fails to follow any of the above lawful procedures for a residential eviction, you may assert his or her failure to follow the law as a defense to the eviction.

Can I Sue My Landlord For Wrongful Eviction?

As stated, if the landlord does not have grounds to evict you or fails to follow the proper procedures, you might be able to sue, assert defenses or countersue the landlord for any damages his or her actions have caused you.  You can also sue a landlord for failure to properly account for and/or return your security deposit.  A landlord’s mishandling or failure to return personal property is addressed in the section “Can I sue my landlord for negligence?” below.

Upon termination of a rental agreement, a landlord shall return to the tenant the security deposit minus any amount applied to:  

  • the payment of accrued rent;  
  • the amount of damages that the landlord has suffered or will reasonably suffer by reason of the tenant's noncompliance with law or the rental agreement; and  
  • unpaid utility or sewer charges that the tenant is obligated to pay under the rental agreement (IC 32-31-3-12).

All charges against the security deposit must me itemized by the landlord with the amount due in a written notice that is delivered to the tenant not more than forty-five (45) days after termination of the rental agreement and delivery of possession of the premises back to the landlord. The landlord is not liable until the tenant supplies the landlord in writing with a mailing address to which to deliver the notice and amount due.  For this reason, one should always provide the landlord with an address for service of any notices upon the tenant in the written lease.  Unless otherwise agreed, a tenant is not entitled to apply a security deposit to rent (IC 32-31-3-12).

The landlord’s list must set forth: (1) the estimated cost of repair for each damaged item; and (2) the amounts and lease on which the landlord intends to assess the tenant.  The landlord must include with the list a check or money order for the difference between the damages claimed and the amount of the security deposit held by the landlord (IC 32-31-3-14).

A tenant’s security deposit may generally be used by the landlord only for the following purposes: (1) To reimburse the landlord for actual damages to the rental unit or any ancillary facility that are not the result of ordinary wear and tear or (2) To pay the landlord for: (A) all rent in arrearage under the rental agreement; and (B) rent due for premature termination of the rental agreement by the tenant (IC 32-31-3-13).

If a landlord fails to comply with the notice provision regarding withholding of deposit monies, it constitutes an agreement that no damages are due the landlord, IC 32-31-3-15, and a tenant may recover all of the security deposit due the tenant and reasonable attorney's fees should suit be brought (IC 32-31-3-12).

Can I Sue My Landlord For Retaliatory Eviction?

Yes.  You are entitled to engage in certain activity that a landlord may not sue you or attempt to retaliate against your for.  "Protected activity" means any of the following actions taken by a tenant:  

  • Complaining to a governmental entity responsible for enforcing an applicable building or housing code about a violation with respect to the rental premises that materially affects health or safety,  
  • Complaining to a landlord in writing concerning the landlord's violation of interference with access or utilities, or meeting his or her statutory obligations to tenants,  
  • Bringing an action against the landlord under IC 32-31-6 or IC 32-31-8,  
  • Organizing or becoming a member of a tenant's organization or  
  • Testifying in a court proceeding or an administrative hearing against the landlord (IC 32-31-8.5-2)

Any of the following actions taken by a landlord in response to a tenant's engaging in a protected activity would be a “retaliatory act:” (1) increasing the amount of the tenant's rent, (2) decreasing, terminating, or interfering with services provided to the rental premises, (3) bringing or threatening to bring an action for possession of the rental premises, (4) bringing or threatening to bring an action to: (A) evict the tenant from the rental premises; or (B) otherwise terminate the tenant's rental agreement before the expiration of the term of the rental agreement (IC 32-31-8.5-4).

Can I Sue My Landlord For Roach Infestation, Termites, Or AC?

These questions all relate to habitability and what it means to provide reasonable living quarters.  Although the Indiana courts have declined to impute the common law covenant of habitability into every rental agreement, the Indiana Code does require that a landlord provide a tenant with a “safe, clean and habitable” premises.  A landlord’s statutory obligations along those lines are as follows.  

Landlord Obligations

A landlord’s obligations consist of the following:  

  • Deliver the rental premises to a tenant in compliance with the rental agreement, and in a safe, clean, and habitable condition,
  • Comply with all health and housing codes applicable to the rental premises,
  • Make all reasonable efforts to keep common areas of a rental premises in a clean and proper condition,
  • Provide and maintain the following items in a rental premises in good and safe working condition, if provided on the premises at the time the rental agreement is entered into:
  • Electrical systems
  • Plumbing systems sufficient to accommodate a reasonable supply of hot and cold running water at all times
  • Sanitary systems
  • Heating, ventilating, and air conditioning systems. A heating system must be sufficient to adequately supply heat at all times
  • Elevators, if provided
  • Appliances supplied as an inducement to the rental agreement (IC 32-31-8-5)

Tenant’s Cause of Action 

A tenant may bring an action in a court with jurisdiction to enforce an obligation of a landlord under IC 32-31-8-5 only if:

(1) The tenant gives the landlord notice of the landlord's noncompliance with a provision of this chapter.

(2) The landlord has been given a reasonable amount of time to make repairs or provide a remedy of the condition described in the tenant's notice. The tenant may not prevent the landlord from having access to the rental premises to make repairs or provide a remedy to the condition described in the tenant's notice.

(3) The landlord fails or refuses to repair or remedy the condition described in the tenant's notice.

 

If the tenant is the prevailing party in an action under IC 32-31-8-5, the tenant may obtain any of the following, if appropriate under the circumstances: 1) Actual damages and consequential damages, 2) Attorney's fees and court costs, 3) Injunctive relief, and 4) Any other remedy appropriate under the circumstances (IC 32-31-8-6).

Tenant Obligations

The tenant has obligations under Indiana law, as well.  

Tenant obligations consist of the following:

  • Comply with all obligations imposed primarily on a tenant by applicable provisions of health and housing codes,
  • Keep the areas of the rental premises occupied or used by the tenant reasonably clean,
  • Use the following in a reasonable manner:
  • Electrical systems,
  • Plumbing,
  • Sanitary systems,
  • Heating, ventilating, and air conditioning systems,
  • Elevators, if provided,
  • Facilities and appliances of the rental premises.
  • Refrain from defacing, damaging, destroying, impairing, or removing any part of the rental premises,
  • Comply with all reasonable rules and regulations in existence at the time a rental agreement is entered into. A tenant shall also comply with amended rules and regulations as provided in the rental agreement,
  • Ensure that each smoke detector installed in the tenant's rental unit remains functional and is not disabled (IC 32-31-7-5)

Additionally, at the termination of a tenant's occupancy, the tenant shall deliver the rental premises to the landlord in a clean and proper condition, excepting ordinary wear and tear expected in the normal course of habitation of a dwelling unit (IC 32-31-7-6).

Landlord’s Cause of Action

A landlord may bring an action in a court with jurisdiction to enforce an obligation of a tenant under IC 32-31-7 et seq. only if:

(1) The landlord gives the tenant notice of the tenant's noncompliance with a provision of this chapter,

(2) The tenant has been given a reasonable amount of time to remedy the noncompliance.

(3) If the noncompliance has caused physical damage that the landlord has repaired, the landlord shall give notice specifying the repairs that the landlord has made and documenting the landlord's cost to remedy the condition described in the notice.

(4) A landlord is not required to comply with the notice requirements of this section to bring an action under subsection if the tenant's occupancy of the rental premises has terminated ( IC 32-31-7-7).

If the landlord is the prevailing party in an action under this section, the landlord may obtain any of the following, if appropriate under the circumstances: 1) Actual damages, 2) Attorney's fees and court costs, 3) Injunctive relief, and 4) Any other remedy appropriate under the circumstances (IC 32-31-7-7).

Emergency Petition

In addition to the above causes of action, either party may file an emergency petition with the court for a possessory order.  If a tenant has been denied access to the premises or necessary utilities, in violation of IC 32-31-5-6, the tenant may file an emergency petition (IC 32-31-6-3).

If a tenant has committed or threatens to commit waste to the rental unit, the landlord may file an emergency petition for possession (IC 32-31-6-3). “Waste” does not include failure to pay rent and is defined as “probable cause to believe that the tenant has committed or threatens to commit waste to the rental unit that will cause the landlord immediate and serious injury, loss or damage” (IC 32-31-6-7).

A petition requesting an immediate order for possession must include an allegation specifying: 1) the violation, act, or omission caused or threatened by a landlord or tenant, 2) the nature of the specific immediate and serious: (a) injury; (b) loss; or (c) damage that the landlord or tenant has suffered or will suffer if the violation, act, or omission is not enjoined, and 3) be sworn to by the petitioner (IC 32-31-6-4).

Can I Sue My Landlord For Negligence?

To sue someone for negligence requires the existence of a duty owed to you by the offending party and breach of that duty that causes damages to you.  Negligence law is extremely broad and beyond the scope of this article.  Suffice it to say that if you can establish that the landlord owed you a duty under the law (a duty imposed by a local housing code, for example), that he or she negligently or intentionally breached that duty and the breach proximately caused you damages, then you might have a negligence suit against the landlord.  Following is an example of how a landlord owes a duty to handle the tenant’s personal property in keeping with the law.  Neglect in his doing so, might warrant a negligence claim.    

If a landlord mishandles your belongings or fails to follow the law regarding your personal property after an eviction, you may sue the landlord for damages to your property.

A landlord has no liability for loss or damage to a tenant's personal property if the tenant's personal property has been abandoned by the tenant.  A tenant's personal property is considered abandoned if a reasonable person would conclude that the tenant has vacated the premises and has surrendered possession of the personal property.  An oral or a written rental agreement may not define abandonment differently (IC 32-31-4-2).

If a landlord is awarded possession of a dwelling unit by a court, the landlord may seek an order from the court allowing removal of a tenant's personal property (IC 32-31-4-2). If a tenant has failed to remove personal property from the demised premises, after proper notice, a landlord may deliver the personal property to a warehouseman or to a storage facility if notice of both of the following has been personally served on the tenant at the last known address of the tenant: (1) An order for removal of personal property and (2) The identity and location of the warehouseman or the storage facility (IC 32-31-4-3).

Some property is exempt from taking and storage by a landlord and must be returned upon demand of the owner of the property without requiring payment to a warehouseman from the owner (IC 32-31-4-3).  Otherwise, the warehouseman or storage facility holds a lien upon the personal property delivered to it (IC 32-31-4-4).

Exempt property includes: personal property that is any of the following: (1) medically necessary for an individual, (2) used by a tenant for the tenant's trade or business, or (3) any of the following, as necessary for the tenant or a member of the tenant's household:  

  • A week's supply of seasonably necessary clothing,  
  • Blankets,  
  • Items necessary for the care and schooling of a minor child (IC 32-31-4-1)

If a tenant does not claim the tenant's property within ninety (90) days after receiving notice, a warehouseman or storage facility may sell the property (IC 32-31-4-1). However, a tenant has a right of action against a landlord that fails to comply with the law in handling and removing the property (IC 32-31-5-5).

Can I Sue My Landlord For Entering Without Notice, Harassment, Or Emotional Distress?

These questions all relate to the covenant of quiet enjoyment that most states recognize as an implied covenant in every residential leasehold agreement.  The covenant of quiet enjoyment is a common law concept, as opposed to a creature of statute, aimed at ensuring that one who holds a residential leasehold interest in property intended as a home can use and enjoy the property without unreasonable interference.  One example of a breach of the covenant of quiet enjoyment might be if a landlord were to insist on entering into a leased residence every single day in order to “check on things.”  That would clearly be an unreasonable invasion of privacy and the right to peaceful occupancy of one’s home.

Indiana has codified what it considers the normal expectations of quiet enjoyment of a leased residence in the state of Indiana (IC 32-31-5 et seq.).

Except as authorized by judicial order or if the tenant has abandoned the premises, a landlord may not deny or interfere with a tenant's access to or possession of the tenant's dwelling unit by commission of any act, including the following: (1) changing the locks or adding a device to exclude the tenant from the dwelling unit, (2) removing the doors, windows, fixtures, or appliances from the dwelling unit, (3) interrupting, reducing, shutting off, or causing termination of any of the following to a tenant: (a) electricity, (b) gas, (c) water, or (d) other essential services.

However, the landlord may interrupt, shut off, or terminate service as the result of an emergency, good faith repairs, or necessary construction. This does not require a landlord to pay for services described in this subdivision if the landlord has not agreed, by an oral or written rental agreement, to do so (IC 32-31-5-6).

By the same token, the tenant may not interrupt, reduce, shut off, or cause termination of: (1) electricity, (2) gas, (3) water, or (4) other essential services to the dwelling unit if the interruption, reduction, shutting off, or termination of the service will result in serious damage to the rental unit (IC 32-31-5-6).

When it comes to entry upon the leased premises, a landlord may enter the dwelling unit: (1) without notice to the tenant in the case of an emergency that threatens the safety of the occupants or the landlord's property; and (2) without the consent of the tenant only (a) under a court order, or (b) if the tenant has abandoned or surrendered the dwelling unit (IC 32-31-5-6).

If the tenant remains upon the premises, he or she may not unreasonably withhold consent to the landlord to enter the tenant's dwelling unit in order to: (1) inspect the dwelling unit, (2) make necessary or agreed to: repairs, decorations, alterations or improvements, (3) supply necessary or agreed to services, or (4) exhibit the dwelling unit to prospective or actual: purchasers, mortgagees, tenants, workers, or contractors (IC 32-31-5-6). A landlord:  

  • shall not abuse the right of entry or use a right of entry to harass a tenant;  
  • shall give a tenant reasonable written or oral notice of the landlord's intent to enter the dwelling unit; and
  • may enter a tenant's dwelling unit only at reasonable times (IC 32-31-5-6)

So, to answer the questions posed, it is against the law for a landlord to enter a rental unit without notice in most circumstances, to harass a tenant or to cause a tenant emotional distress by engaging in any of the above prohibited activities.  

Can I Sue My Landlord For Mold Or Asbestos exposure?

The answers to these questions involve a more complex look into your situation.  For example, did the landlord know or should she have known that toxic materials existed at the premises?  Is there a local building code section that deals directly with property owners that expose their tenants to these types of substances?  Do you have any damages related to the exposure?  And, what remedy are you seeking? At first blush, these problems do not appear to be landlord-tenant issues, in the sense that the landlord-tenant statutes were not designed to squarely address these situations.  Instead, you might have a toxic tort issue, an Indiana Department of Environmental Management/HazMat issue, or both.  

In any event, these questions require a direct discussion with an Indiana attorney to obtain a meaningful answer.  To schedule a consultation with an Indiana attorney today, fill out our confidential contact form or give us a call at (630) 324-6666 today.

Posted 
October 21, 2021
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