Basics of Indiana Eviction
Evicting tenants in Indiana without a lease agreement requires a basic understanding of evictions in Indiana. Indiana eviction law provides a means for landlords to remove tenants from a rental property without their consent, but it must be done by strictly following the specific procedures as required by law. A landlord cannot get rid of a tenant simply by telling them to leave. This section will discuss the eviction process in Indiana, which can be confusing at times, and will help you better understand how the law impacts your actions.
Indiana landlord-tenant law requires the eviction process to begin with a residential landlord serving a notice on the tenant. In Indiana, a landlord must serve the tenant either a "Notice to Vacate" notice or a "Demand for Rent" notice, depending on the situation. If there is a written lease, and the landlord desires to remove the tenant for non-payment of rent, then it is likely that a "Demand for Rent" notice must be given to the tenant before the court will accept the eviction filing . If the tenant has no written lease, and the landlord desires to remove the tenant pursuant to the renting statute, then it is likely a "Notice to Vacate" must be served on the tenant as a basis for the eviction. Giving the appropriate notice to the tenant is the first step in the eviction process; however, it is very important that the notice is properly served to the tenant.
Indiana eviction statutes require a residential landlord to serve a tenant with the appropriate notice pursuant to Indiana law. There are three primary methods for serving the notice to the tenant. First, the landlord could serve the notice to the tenant personally. Personal service is typically serving the notice to the tenant directly by hand delivering the note. Second, the landlord could place the notice on the residence of the tenant. The law allows the landlord to tape or nail the notice to the door of the residence. Third, if the notice is a "Notice to Pay Rent or Quit," the law allows for mailing the notice to the tenant at the address of the property. After the notice has been properly served on the tenant, then and only then can the lawsuit for eviction be filed with the local court.
Rights of Tenant with No Lease
If you are a tenant in property without a formal lease agreement, you may believe you have very few rights. However, Indiana law provides you several important legal rights in this situation.
• Implied Agreement
Even if you don’t have a written lease, a court may find you still entered into an implied agreement with the landlord. If it can be shown that you pay rent in exchange for the right to occupy the property, the law may consider you covered under covenant of quiet enjoyment. (In some cases, you may also be considered a tenant at will.) The covenant of quiet enjoyment essentially stipulates that a landlord cannot interfere with or disturb your possession of the property. In a breach of covenant of quiet enjoyment lawsuit, you may be entitled to recover damages for losses caused by the disturbance.
• HHARRA
By Indiana Statute, when a landlord rents or leases a part of real property to a tenant, for any period of time, even without a written lease, the provisions of the Indiana Rental Property Act apply. These laws govern evictions, security deposits and other tenant rights. They can be enforced even if you don’t have a written lease, but you must show evidence you paid rent and/or that you believed you would stay at the property long-term.
• Eviction Notice
Without a lease, your landlord may terminate the rental relationship at any time for any reason. However, your property must be your home before the eviction notice takes effect. Your landlord must honor a 30-day notification period, unless there are express reasons that do not require a 30-day notice under the Indiana Rental Property Act. For example:
In addition to the 30-day notice, the landlord must complete the necessary eviction paperwork and file it with the county court. Without notice, the landlord may not seek to remove you from the property.
Landlord Duties with No Lease
Landlords have the same responsibilities and obligations whether the tenant lives in the premises under a lease or without a lease. This is true whether the tenancy is oral (think month-to-month) or written.
Indiana law requires landlords to provide certain amounts of notice prior to a tenant terminating the tenancy or being evicted. Under Indiana law, if the tenant is leasing the property on a month to month or week to week basis and wants to terminate the tenancy, the tenant must give the landlord at least one month’s notice if they pay rent on a monthly basis (or at least 10 days notice if they pay rent on a weekly basis). Although a tenant may give notice to terminate the tenancy, the tenant is still required to pay rent through the end of the notice period or the tenant may face eviction by the landlord for non-payment of rent. Tip: Pay particular attention to rent payments since the notice requirements are based on the frequency with which rent is paid. If the tenant pays rent on a monthly basis, a landlord needs to give one full month’s notice. Tenants who pay rent on a weekly basis, however, only need to provide 10 days notice to the landlord.
If a landlord has discovered that the tenant has not paid the rent due for the property, there are several requirements that must be met by the landlord. A landlord first must send the tenant a written notice stating the amount of rent that is delinquent, and that if the tenant does not pay the past due rent within 10 days, the landlord will terminate the rental agreement and may evict the tenant from the property. The landlord is not required to send the tenant this written notice if the tenant has not paid more than one period of rent. After the expiration of the 10 day notice period, the landlord may file an action in local court for the forcible entry and detention of the leased property – or eviction. The tenant must be served notice of the eviction hearing. If the tenant fails to appear at or adequately defend the hearing, the landlord will receive a judgment against the tenant. In some instances, a tenant’s rental agreement will expire (either by the lease agreement’s terms or by the actions of the parties) and the tenant will remain in possession of the property without paying rent. In those situations, the landlord may follow the same process provided above for a tenant who is behind on rent.
Notice to Evict
Unlike formal leases, Indiana law does not require a landlord without one to give any to terminate a tenancy. As such, the notice requirement for evictions may be different for those without leases than those who have them. Indiana law provides that a landlord can give a 10-day, 30-day or 31-day, written notice to terminate tenancy and such notice does not have to be served to tenant’s relative or to a tenant who is not maintaining the property. If a tenant fails to vacate after notice is given, the landlord can then file an eviction lawsuit.
10 Day Notice Requirement
The 10-day notice requirement is for a tenancy terminable with 10-day’s notice. A tenancy of this nature can be established by the tenant’s failure to obey a local ordinance pertaining to habitability or maintenance of rented premises.
30-Day Notice Requirement
The 30-day notice requirement is for a tenancy terminable with 30-day’s notice. A tenancy of this nature can be established by a tenant’s "breach of any duty of the tenant."
31-day Notice Requirement
The 31-day notice requirement is for a tenancy terminable with 31-day’s notice. A tenancy of this nature can be established by a tenant’s "nonpayment of rent."
Notice Procedure
As evictions are court proceedings, the notice must be in writing on printed forms issued by the State and must be served to the tenant. This generally means hand delivery or delivery via certified mail. Though there are some exceptions, if the judge deems the notice invalid, the proceeding may be dismissed or delayed.
Exceptions
Given that many landlords either do not know about the exceptions or would rather just give a longer notice instead, we will not list out all the exceptions here. We will simply say that if there is an exception to the written notice requirement, you should be sure to follow it. A good rule of thumb when living in Indiana is if you seem to be required to give notice in writing, you should always do so to be safe.
Defenses to Eviction
Not all tenants are evicted even when they stop paying rent. There are some common defenses that tenants use in Indiana to fight an eviction without a lease:
Improper Notice – Sometimes landlords fail to provide any notice of the intention to evict a tenant. Sometimes notice is provided, but it is the wrong type of notice or is not provided in the proper amount of time. In Indiana, landlords can choose from a couple different methods of providing notice to a tenant. After a tenant has committed a "failure to pay" eviction, in almost all situations, a landlord must provide a tenant 10 days’ notice to vacate the home.
Notice of the failure to pay rent can be given in person or by mail. Some landlords prefer to provide notice in person as many tenants would not provide a correct address for service. Proper notice to the tenant is important as a tenant can use the improper notice to file an answer. If an improper notice is provided to the tenant, it usually provides the tenant with additional time to fight against an eviction .
Lack of Evidence – Sometimes landlords believe that proceeding with an eviction is easy because there is no lease and the tenant has not paid rent. However, a landlord must provide evidence of the lack of payment and the defense that there is no lease. Tenants sometimes provide defenses such as the lack of rent paid because of necessary repairs or the landlord has verbally agreed that the tenant does not have to pay rent for a period of time.
These defenses do not work in most situations. A tenant may believe that stopping rent because something broke or the faucet leaked is sufficient enough to avoid an eviction. However, a tenant usually loses in these situation in Indiana. Despite evidence to the contrary, many tenants believe in their own minds that they were lead to believe they do not have to pay rent.
A landlord can provide evidence of repairs not being needed through the use of before and after pictures of the apartment or home. A tenant may have previously requested a repair in the home, and photos from the landlord of the repair can be used to show the tenant that there was no need to stop paying rent.
Eviction Court Process with No Lease
Evictions are not just for tenants that signed an official lease. Tenants that did not sign a lease can still be evicted as long as certain conditions are met. If you can show a court that your tenant agreed to pay rent, you can take legal action against them. The eviction process is not just a simple matter of asking the tenant to leave. Indiana law states that a suit must be filed with the county court in which the property is located.
A tenant will then be given notice of the lawsuit and a transfer hearing will be scheduled. If the tenant fails to attend the hearing, the case will automatically be awarded in favor of the landlord. If the tenant does attend, a decision is made as to whether they should be evicted or allowed to stay. If the court finds in favor of the landlord, the tenant will be provided with a written judgment and order to vacate. The order gives tenants a certain amount of time to leave the property. If the tenant ignores the order, the local sheriff can remove them and their belongings from the property.
Preparing for the court process in the event the case ends up going to court is important. If you fail to show appropriate evidence that supports your case, you will not win. You should keep all receipts, check stubs, and money orders for your records. All proof that you accepted rent from your tenant will be presented to the courts in your favor. Keep organized documentation of any rent-related issues you have with a tenant. An attorney experienced in representing landlords in eviction suits will provide you with the protection and support needed to get a favorable outcome.
Avoiding Eviction Controversies
To avoid potential disputes over an eviction, advance planning is the best tool. To this end, all landlords and tenants should work to communicate with each other openly and regularly. Honest communication is always best, even when difficult, since hiding a problem can only cause it to worsen. If there is a failure on either side to communicate, it is best for a new agreement to be put in writing as soon as possible. Verbal agreements do not have a great track record in Indiana. Even if a lease is unsigned, if the tenant promises to pay rent and the landlord accepts it, that has to be accepted as a tenancy relationship, so tenants should be careful about what they say to landlords, and vice versa.
More and more frequently, instead of simply terminating a tenancy type-by-type, landlords and tenants are opting for mediation services to help salvage their tenancy. These services offer a forum for open discussion between parties, and trained mediators to help craft and keep a civil environment. More importantly, in many cases, the mediators have great insight to offer, particularly when both parties are open-minded. The legal remedy of eviction is generally both expensive and time-consuming, as well as having negative publicity, requiring a lot of work to find a new tenant and possibly even including loss of income. Mediation is certainly cheaper, faster, and has benefits to both sides, so if you are ever in dispute and want to save money, time, and your sanity, suggestions from a trained mediator should be taken seriously. Courts usually favor whatever remedy the parties agree to, when the decision of the court is allowed to be made under those circumstances.
Legal Help
Many state and local governments in Indiana provide legal resources for landlords and tenants regarding evictions without a lease. Indiana legal assistance groups include Legal Aid of South Indiana, which provides personal services for eviction issues and access to local housing authorities. The organization also has a directory of legal assistance programs throughout the United States, organized by each state. Indiana Legal Services offers legal resources and assistance for eviction issues in all major cities and towns. The Indiana Housing and Community Development Authority (IHCDA) website has a section devoted to housing case management services to help people "gain the skills and knowledge necessary to avoid homelessness." Resources are geared toward clients and service providers alike. IHCDA also provides Project-Based vouchers to subsidize housing units for low-income families. At the local level, the organization funds 92 county tobacco bases foundations across Indiana that work to improve the health of Indiana residents through tobacco cessation. Tenants and landlords can also find local resources on the Indiana Housing and Community Development Authority website , which provides a list of resources for renters and evictions. The Indiana State Bar also offers a "Find an Indiana Lawyer" tool, which allows Indiana residents to enter their geographic location and get a list of lawyers in their jurisdiction. LawHelp.org is a nationwide group that provides free and low-cost legal aid resources for potential tenants and landlords. The site is affiliated with the National Legal Aid & Defender Association and gets donations from members to stay active. On its own website, the National Legal Aid & Defender Association (NLADA) provides information on how evictions are carried out in different jurisdictions, what to expect if an eviction occurs, and advice on how to deal with it. For example, it provides tenants with advice on preventing illegal evictions and appeals and where to go for housing-related problems after expiration of a lease. The National Housing Law Project (NHLP) website has links to the federal, state, and local housing authorities, as well as a section devoted to public records and the relocation of tenants. State Housing Agencies, State Housing Finance Agencies and Public Housing Authorities all make up the Local Public Housing Agencies.