Saturday, May 9, 2009

Landlord / Tenant Law


This document contains an overview of Indiana landlord-tenant law as of January 2005, with particular reference to Bloomington and its municipal housing code. It was prepared for Indiana University students by Student Legal Services (SLS) and is intended only as general information, not as a substitute for legal advice from a licensed attorney.


So, here you are, ready to rent your first apartment. Or you're in your apartment and can't pay next month's rent. Or your windows are cracked, the furnace is broken, and it's 20 degrees outside. What do you do? Read this document. It answers most commonly occurring questions about landlords' and tenants' rights and responsibilities.

 

 

Landlord / Tenant Law: 
Table of Contents



Finding a Place to Rent

Beginning Your Search

Know your rental market, and time your search accordingly. Bloomington's apartment stock has increased over the last few years. More new apartments are being constructed daily. For the first time in years "for lease" signs dot the landscape close to campus after school has started. If you have a particular lifestyle that you know fits into a specific apartment complex, don't wait until the last minute to begin looking. Not only will all the good places already be rented, you won't have the time to do the kind of thorough, informed search that is necessary to get the place that is right for you. If, on the other hand, you like to take risks in the hope of getting a real bargain, wait until school has started and then try to negotiate for a "price reduction" and a lease that reflects much of what you want rather than the landlord's usual take-it or leave-it lease. See more on negotiating specific lease terms under the "Negotiating the Lease" section of this article. No matter which option you choose, talk to anybody and everybody you know who rents off-campus. Get their opinions on the pros and cons of their particular complexes or landlords. Gather information on the landlord's practices. Call the City of Bloomington Housing Code Enforcement office (349-3420) and ask about the landlord's record on responding to complaints and making repairs. Go to SLS and ask to have a lease analysis. During the analysis, we will inform you of problems, if any, we are aware of that past students have had with that particular landlord. The discussion of what problems students have had must take place in the context of a lease analysis so that the advice can be candid and based on your individual expectations. General information on a landlord's reputation cannot be given by phone; it must be done in an individual counseling session.

Call the City of Bloomington Housing Code Enforcement office (349-3420) and ask about the landlord's record on responding to complaints and making repairs.

Think about the following factors for each apartment you're considering:

  1. Its location and any transportation problems you may have while living there: Pay attention to the availability of parking at the apartment. Many complexes don't have sufficient parking space for all the tenants and guests, so guests' cars are frequently towed. If guests are important to you, make sure the landlord agrees in writing to allow your guests to park on the grounds.
  2. The reputation of the complex for partying versus your need for a quiet study atmosphere: If a quiet atmosphere is important to you, make sure the landlord agrees in writing that your neighbors will be evicted if they are not quiet and that, if eviction is not undertaken within thirty days and the noise continues, you may vacate the premises and all rental obligations cease upon termination of occupancy. If the lease simply requires you to be quiet, remember that does not necessarily compel the landlord to keep your neighbors quiet!
  3. Utility costs: Will you be responsible for paying them?
  4. The condition of the apartment: Does it need any work? Even if the landlord promises to fix things, you may be inconvenienced in the interim, or the work may never get done. Get a written list of repairs, a completion date, and the damages to which you are entitled for each day the repair is not completed, similar to the "damages" a landlord imposes when your rent is late; e.g., $3.00 per day or higher. Ask yourself what the repair is going to cost you in terms of comfort and go for that amount for each item. Some items may be more important to you than others so the price need not be the same for all items.
  5. The ease of finding a summer subtenant if you'll need one: Find out if the landlord charges a subleasing fee or requires payment of a second security deposit.
  6. Your budget: Can you afford the apartment of your dreams? Don't forget, you may have to come up with extra money to cover your roommate's share of the expenses. (More on this later.)
  7. Length of lease: Will the landlord negotiate a rental period of less than the standard one-year lease? You may have to pay more per month but in exchange, you would be relieved of the hassle, and expense, of finding a subtenant for the summer.

Roommates

Many good friends become ex-friends after trying to live together. Choose your roommates carefully. Think about your potential roommate's study habits, personality, neatness, eating and sleeping habits, and attitudes towards smoking, drinking, and drugs. Also give some consideration to the person's girlfriend or boyfriend; is he or she someone you want to have around a lot? Like maybe all day and all night? How often will your roommate's parents come for visits? Talk frankly with your prospective roommate about these issues.

Discuss the utility expenses with your roommate. In whose name will the phone, gas, electricity, and water be listed? Having a good payment record with utility companies will help establish a good credit rating for you, but a bad record will hurt.

Decide how you will handle such things as cooking, paying for groceries, and cleaning. Establishing a cleaning schedule works well for some roommates. Talk about these and other issues that will affect you and your roommates.

Here's another vital consideration: You will be legally liable for your roommate's share of the rent under most leases. Almost all Bloomington leases make roommates "jointly and severally liable." This means that if your roommate doesn't pay his or her share of the rent for any reason, you will either have to pay it or face eviction. If your lease has a savings clause making you liable for rent after you've been evicted, you may continue to owe rent until the lease ends, even though you can't live in the apartment. If this happens, you can sue your roommate for money you had to pay on his or her behalf, but you may be evicted in the meantime. Make sure the person you choose to live with is responsible and has an adequate income. A few complexes do not require you to be jointly and severally liable. They will rent rooms within a unit. The down side of this arrangement is that the landlord reserves the right to replace any person who has moved out with a new roommate, regardless of your personal preference concerning a prospective roommate.

You will be legally liable for your roommate's share of the rent under most leases.

Negotiating and signing the lease

What is a Lease?

The lease is your agreement with the landlord to rent the apartment. It can be written or oral. Sometimes tenants say, "I don't have a lease," but this is incorrect; they simply have an oral rather than a written lease. An oral lease is just as binding as a written one but its terms are more difficult to prove. If possible, get your lease in writing. Oral leases, while sometimes providing more flexibility than written ones, often lead to problems.

Length of the Lease Term

Most Bloomington leases begin on a certain date and run until another specific date, usually one year later. When you sign a one-year lease, you are making yourself liable for payment of rent through the end of the lease term, regardless of whether you live in the apartment for the full year. If you plan to leave Bloomington for the summer, you must sublease the apartment (see section on subleasing) or convince the landlord to agree to a shorter lease term. Sometimes a lease does not specify an expiration date. The legal term for open-ended leases is "periodic tenancy." If the tenant under this type of agreement pays rent each month, it is called a month-to-month tenancy. This kind of lease can be terminated by either the landlord or tenant by giving the other party notice equal to the amount of time between rental payments. If rent is paid monthly, one month's notice must be given. If rent is paid weekly, only one week's notice is required. No reason for termination need be given. While this kind of arrangement provides flexibility, obviously it does not offer much stability. In the student housing market in Bloomington, periodic tenancies are rare.

Landlords generally protect themselves by requiring a tenant to sign a one-year lease, thus ensuring the right to collect rent for the year. A few complexes include an automatic renewal clause in their leases requiring tenants to give written notice thirty or sixty days in advance of the end of the lease or the lease is automatically renewed! How many tenants are going to remember to do that with graduation or final exams looming? Take care to meet the notice requirements if your lease contains such a clause. If for some reason you forget to give notice, come to SLS at once so we can assist.

There is a myth that you can get out of a lease within three days of signing if you or some of your roommates have a change of mind. That is just a myth, so don't sign "just to save the apartment" when your prospective roommates say they will sign tomorrow.

Negotiating the Lease

Under Indiana law, leases are treated, for the most part, like any other contract. A contract is simply an agreement between two or more people to do something and a statement of their respective responsibilities and rights in doing it. Usually when two people want to enter into a contract, they each decide what they want the contract to say and they negotiate until they reach agreement. Negotiating lease terms with Bloomington landlords may be difficult, but it's not impossible. Most apartment owners in Bloomington use lengthy written leases containing clauses designed to protect and benefit the landlord in every conceivable way, but if you're careful, polite, assertive and prepared, you can sometimes get a better deal for yourself. Here's how: Take the time to read the lease carefully before you sign it. Never sign your name alone expecting your roommates to sign later. All of the tenants need to sign at once and all should read the lease very carefully. Always, take it home with you overnight and study it before agreeing to it. If a landlord will not allow you to take a sample lease, ask yourself why. Ask about any clauses you don't understand. Be sure you understand the explanation completely. If you can, bring a copy of the lease to SLS for analysis before you agree to rent. There is a myth that you can get out of a lease within three days of signing if you or some of your roommates have a change of mind. That is just a myth, so don't sign "just to save the apartment" when your prospective roommates say they will sign tomorrow.

If you and the landlord agree to change or add to the lease, make sure that both of you initial each change you write on the lease, or that your new agreement is written down and signed by both of you. This is very important for two reasons. First, the validity of any changes to the lease will be in question if they are not put into writing and signed by both parties. Second, if they are not put in writing, it may be very difficult to prove that those changes were ever made. If the landlord agrees to make repairs or improvements, list on the lease itself, or on an attachment to the lease, the things to be done and the dates by which they will be completed. Try to get the landlord to agree to include a statement that, if the work is not done by the agreed-upon dates, you have the right to terminate the lease and receive a full refund of your deposit, prorated and prepaid rent. Some apartments in Bloomington are owned by out-of-town landlords and are managed by local rental agents who may or may not have the authority to consent to changes in the lease. If the agent tells you she can't alter the lease, ask (in the nicest possible way) if you could call the owner. Remember that the key to successful negotiation is to make each person satisfied with the deal. Point out any advantages to the landlord in what you want. Be creative. Look for ways to arrive at mutually beneficial solutions while establishing a friendly, cooperative relationship. Once you've signed the lease, be sure to get a fully signed copy for yourself.

Lease Clauses to Watch Out For

In reviewing a lease, be especially alert for clauses such as these:

Savings Clause: Makes the tenant liable for rent for the full lease term even if he or she is evicted from the apartment. A typical savings clause will read something like this: "Eviction of the tenant for a breach of the lease shall not release the tenant from liability for rent payment for the balance of the lease term." To "breach" a lease means to fail to do something the lease requires you to do, such as pay rent, or to do something the lease prohibits you from doing, such as having a pet when your lease says no pets are allowed. The courts have held that savings clauses are valid and include late fees as well as future rent. Savings clauses are horrendous for tenants. If you have a savings clause in your lease and are evicted, you could end up owing rent on two apartments: The one from which you were evicted, maybe because you couldn't afford the rent in the first place, and the one to which you had to move.

Acceleration Clause: Says that once a tenant breaches the lease, all the rent owed for the remainder of the lease term becomes due immediately. The enforceability of this clause may be questionable because, when a tenant breaches the lease, the landlord has a legal duty to try to re-rent the place and minimize the amount of money he or she will lose. Still, try to avoid this clause if you can.

Attorney's Fees Clause: Most leases in Bloomington contain one and it can cause real problems for tenants. It means that if a landlord hires an attorney, even if it's just to write a letter to the tenant, or to enforce the lease through a lawsuit, and wins, the tenant will be ordered by the court to pay the landlord's attorney's fees. Attorneys are expensive. If you are taken to court by your landlord and lose, you can expect to be ordered to pay several hundred dollars in attorney's fees. And the more vigorously you defend yourself against the landlord's suit, the more attorney's fees you may be ordered to pay if you lose. An attorney's fees clause can really inhibit tenants' ability to stand up for their rights. Try to get it eliminated from the lease if you can.

Late Fee Clause: Most leases in Bloomington state that if your rent is more than a certain number of days late, additional fees will be charged. This is permissible if the amount of the late fee is not excessive. Local courts approve late fees of typically $5.00 per day.

Rules and Regulations Clause: Many leases contain a clause allowing the landlord to issue new rules and regulations at a later date. If the landlord issues such rules and regulations after you have signed the lease or during your lease term, they can become part of your lease agreement, which means you are bound by them as much as any other term in the lease. Sometimes this clause allows the landlord to try to evict you for violating a rule that didn't exist when you signed the lease, as long as the landlord made a reasonable effort to notify the tenants of the new rule.

Joint and Several Liability Clause: Such clauses are common in Bloomington leases. Joint and several liability means that if you rent an apartment with several other tenants, all of you are responsible for each other's share of the rent. This means that even if you have paid your portion of the rent, if only one of your roommates fails to pay his/her portion, and the landlord receives partial rent as a result, you can be evicted. Unfair as this practice seems, the Indiana Court of Appeals has ruled that it is enforceable. It may be a good idea to have one tenant responsible for paying the rent and have all roommates pay that tenant.

Lien Clauses: These are rare in Bloomington, but they will turn up occasionally. The worst of them allows the landlord to take your belongings and sell them to satisfy a claim for money, without obtaining a court order first. Although such clauses are not usually enforceable, avoid them if you can.

Self Help Eviction or "Lock-Out" Clause: Allows the landlord to gain possession of your home without first obtaining an eviction order from a judge: Fortunately, this type of clause is also rare in Bloomington. Most landlords here follow the proper legal procedures for eviction. Under Indiana law, lock-outs are forbidden.

Carpet Cleaning and Repainting Clause: Requires tenants to have the carpet professionally cleaned before moving out, or pay for the entire apartment to be repainted. If you sign a lease agreeing to this and don't do it, the cost of professional cleaning and/or re-painting may be withheld from your security deposit. Almost all Bloomington leases have a carpet cleaning clause. Many leases have an automatic repainting requirement after one year of leasing.

Clauses Which State that the Landlord Does Not Guarantee that the Apartment will be Available and Cleaned for You at the Beginning of Your Lease: Puts the burden on you to get the unauthorized occupants out. Do not agree to this kind of clause if there is any way to avoid it.

Lease Applications and Credit Checks: Although these are not part of the lease itself, some landlords use them to bind you to the terms of your lease while your references are being checked.

Cosignor Clauses: Some leases require you to obtain a cosignor. Typically your cosignor will be one of your parents. Remember, if your lease also has a joint and several liability clause, your parents might have to pay your roommate's rent. Some landlords require a cosignor if you are an international student. This clause may violate Indiana law.

Lawn Mowing and Snow Removal Clauses: Makes the tenant responsible for routine maintenance and/or lawn care and snow removal. Find out what routine maintenance means (e.g., changing light bulbs and cleaning the furnace filters or do you have to also change the washers in the leaking faucets? Do you have a lawn mower and the time to mow?) If you do not have the time, equipment or knowledge to undertake these tasks, either get the clause deleted or rent elsewhere.

Living in your apartment

Moving In

Now you have your new apartment and are moving in. It's not too early to begin thinking about how to protect that hefty security deposit you just paid. That money will come in handy a year from now, if you can just get it back. You are required by Indiana law to return the apartment to the landlord in as good a condition as it was in when you took possession, except for changes caused by normal wear and tear, but a tenant must show careful usage before the "normal wear and tear" language is applied. Remember, "normal wear and tear," under Indiana law, is a subjective standard. This means that "normal wear and tear" can mean many different things. One standard that courts in Indiana have applied to determine whether wear and tear was "normal" is the careful usage standard. A tenant may have to prove "careful usage" of the leased premises before a court will accept normal wear and tear as a defense to a claim by the landlord for damages.

Hundreds of Bloomington tenants each year feel they've been cheated out of their deposits by unfair charges for damage or cleaning in their apartments. 

You must take action at the beginning of your lease term to make sure you get your deposit back at the end. What can you do at the beginning of your lease term to help safeguard your deposit? First, make sure that when you take possession, you document the condition of the apartment in more detail than you could ever imagine would be necessary. A Bloomington city ordinance helps by requiring that landlords initiate a "joint inspection" of rental units with new tenants at the beginning of each lease. The inspection must be held within ten days of the date the tenants move in. Another inspection must be done at the end of each tenancy. In a joint inspection, you and the landlord should walk through the apartment together, noting on an inspection form every single problem that exists. Don't worry about being too picky. Every nail hole in the wall and every stain on the carpet could be counted against your deposit if you don't record it. Theoretically, the inspection should protect you from being charged for problems that existed when you moved in. However, most tenants do not realize how very detailed they need to be during the move-in inspection, and it is certainly not in the landlord's interest to record minor defects. In order for the joint inspection to work, you must be diligent. We recommend taking pictures and/or video to record the condition of the unit upon move-in. Remember, a picture is worth a thousand words!

Following are some examples of items to note on the move-in inspection form:

  • The number and location of nail holes in each wall;
  • The number and description of any stains, rips, worn places, etc. in carpets, curtains, furniture, etc.;
  • Any scratches, dents, stains, or similar marks anywhere, on floors, walls, appliances, etc. Describe each mark. For example, note "6 inch scratch on lower left side of refrigerator";
  • Cracks in plaster, chips in sink;
  • Dirt behind appliances, toilet, etc.;
  • Grease build-up on stove vent hood and inside the broiler;
  • The presence or absence of a fully charged fire extinguisher and operable smoke detector (test it);
  • Missing light bulbs, ice cube trays, curtains and curtain rods, screens, broiler pans, etc.; anything that should be there and isn't.

Some landlords give tenants a form to fill out by themselves at the beginning of the tenancy instead of conducting an actual joint inspection. This practice does not comply with the housing code, but it persists. If you are given a blank check-in form, turn it to your advantage by filling out the form in excruciating detail. If no form is provided to you at all, stop by SLS. We will provide one. If the landlord does not offer to do a joint inspection, do it yourself. Indiana courts have ruled that the failure to conduct an inspection does not prevent the landlord from later claiming damages done to the premises.

Also, beware of inventory and damage forms that tell you not to list dirt! Cleaning charges frequently make up a major portion of security deposit deductions (see the above warning about "Carpet Cleaning and Repainting Clauses"), so it is vital to record everything that is not clean when you move in.

Moving Out

When it's time to move out, clean the apartment! Even if you think it wasn't all that clean when you moved in, you're better off cleaning as best you can. Take pictures of how nice you've made it look. Make sure the pictures are dated. If the processing company doesn't put a date on the pictures, write it on the back in ink. Then have the joint move-out inspection.

Unless you have documented the condition of your apartment at move-in and move-out in unambiguous detail, you may never see your deposit again. If the landlord does not offer to do a joint inspection, do it yourself.

Although it is the landlord's duty to schedule the inspection, you should set it up if the landlord fails to do so. Request the exit inspection in writing. Be sure to have your copy of the move-in inspection with you. Try to schedule the exit inspection with a little time to spare before you have to vacate, to allow time to re-clean anything the landlord says is not clean enough.

The landlord is not required to tell you at the time of inspection what items you'll be charged for. Under state law, landlords have forty-five (45) days from the date you move out and the landlord takes possession, to send you an itemized list of deductions and the balance of your deposit. Warning: You must provide the landlord with your forwarding address, in writing, to ensure that the landlord is bound by the forty-five (45) day rule requirement. See the next section of this article for more details.

Your Security Deposit and the Forty-Five Day Rule

The Details

Indiana Code 32-31-3-12 requires that, upon termination of a rental agreement, a landlord shall return to the tenant all of the security deposit except for amounts applied to the payment of outstanding rent; damages the landlord has or will reasonably suffer because of the tenant's noncompliance with the rental agreement or applicable law; and unpaid utility/sewer charges. Any amount kept by the landlord must be itemized and a written notice sent to the tenant along with the remainder of the deposit within forty-five (45) days after the termination of the rental agreement. However, a tenant must supply the landlord with a forwarding address (in writing) before this section of the law applies. In other words, the forty-five (45) days does not begin to count down until you give the landlord a piece of paper with your forwarding address. If the landlord fails to comply with the requirements established in Indiana Code 32-31-3-12, the tenant may recover all of the security deposit and reasonable attorney's fees. Although tenants are not supposed to be charged for damages attributable to "normal wear and tear," determining whether particular types of damage are due to normal use of the apartment is very difficult. You may think that a few scuff marks on the wall are insignificant, while the landlord views them as requiring major repainting. Unless you have documented the condition of your apartment at move-in and move-out in unambiguous detail, you may never see your deposit again.

Bloomington Housing Code

We've talked about several helpful provisions of the housing code. What about the rest of it? Well, if you're renting inside the Bloomington city limits, you're lucky to have a housing code. Most cities don't. Indiana does not have the kind of comprehensive landlord-tenant law that many other states have. The Bloomington housing code serves two major functions: 1) It requires each rental unit within the city limits to be registered with the city so that it can be inspected and repairs ordered if necessary, and 2) It sets standards for the condition of rental units. Each unit is routinely inspected every few years to make certain its condition meets code standards. If the city receives a complaint about a unit's condition between routine inspections, it will first inquire as to whether the landlord has been notified of, and given an opportunity to fix the problem. If so, and the landlord has failed or refused to fix the problem, it will conduct a complaint investigation. Anyone can make a complaint and tenants are protected against eviction or other forms of retaliation because they complained. When a rental unit does not meet code standards, the owner will be ordered to make repairs and will be given some time in which to complete the work. The city will re-inspect and keep pressure on the landlord until the repairs are made. Landlords are fined up to $100.00 per day if they do not meet repair deadlines. If you want the system to work, you must be persistent and ask for written reports from the inspectors.

Here are some of the key provisions of the housing code:

The structure must be kept in good repair and weather tight. Plumbing, heating, and electrical systems must work properly. Hot water and adequate light and ventilation must be provided. For details of these and other requirements, contact the housing code enforcement office (349-3420) or SLS (855-7867).

Fire extinguishers and smoke detectors must be provided and installed by the landlord. Tenants are responsible for maintaining and replacing batteries for detectors within the unit.

Working door locks must be provided by the landlord on all outside doors or doors to a common area. They do not have to be deadbolt locks.

Insects and vermin: In a building with two or more units, landlords have the duty to exterminate unless the infestation seems to result from the tenant's poor housekeeping. In that case, the tenant must exterminate within his or her own unit. In single-family dwellings, the landlord must exterminate if the problem becomes apparent during the first thirty days of the tenancy and the tenant notifies the owner of it within thirty days. When it is the landlord's duty to exterminate, he or she is given forty-five days to do so. If the landlord eliminates the infestation within this time period and the problem recurs, the tenant must exterminate. If the landlord has not eliminated the infestation within forty-five days, he or she must keep trying unless it appears that the task is hopeless because of the tenant's poor housekeeping.

Trash: The landlord must provide trash cans or dumpsters for storage of garbage. It is the tenant's obligation to put the trash in the container. If trash is allowed to remain on the ground, both the landlord and the tenant may be ordered by the city to clean it up and, if the landlord ends up doing the work, it is quite likely that he or she will look to you for reimbursement for the cost of cleaning up. If this happens to you, kiss part of your deposit good-bye.

The city has enacted amendments to the city code over the years designed to make tenants "better neighbors." Under these provisions, the City's Housing And Neighborhood Development (HAND) will issue tickets for trash left in a yard, so be sure to clean up immediately following a party. In addition, HAND will issue tickets for parking in the front or side yard in a non-approved space. The city police department is cracking down, as well, on loud noise and music, and will issue tickets or make arrests without warning. If the city orders the tenant to clean up via a ticket, each tenant is responsible for the clean up and paying the ticket even if that individual tenant did not contribute to the trash! The same is true for cars parked on the front lawn, sidewalk or other unreasonable places.

Getting Repairs Made and the "Implied Warranty of Habitability"

Now you know some of what the housing code covers. Beside giving tenants some clout in getting repairs made, what else is it good for? Money in the tenant's pocket, in some cases. Indiana courts have ruled that the housing code may be incorporated into the leases of rental units covered by it, thereby creating an "implied warranty of habitability." An "implied warranty of habitability" is a promise by the landlord (created by law) that the unit will be kept up to the standards of the housing code. Because the city creates this promise, through the licensing and written check-in/check-out requirements, the housing code in effect becomes part of the contract. It is unclear how much of the code, if any, can be waived by the parties.

Make sure your lease has a clause stating that both the tenant and landlord accept their responsibilities under the code and neither tenant nor landlord can waive it. Once you have that kind of provision, if your apartment has serious problems which violate the housing code and make living there dangerous or very inconvenient, you may be able to recover some of the rent you paid while those problems existed. Consult SLS for help. Take the proper steps to get repairs made. If you think the problem is one for which the landlord is responsible, report it to SLS and HAND. Also, put the landlord on written notice requesting that repairs be made.

Be sure to document in writing each and every repair request and complaint made to the landlord. Keep a notebook next to the phone for recording conversations with your landlord. For each conversation, write the date, time, name of the person with whom you spoke, and what each party to the conversation said. If the landlord fails to make repairs within a reasonable time, report the problems to HAND, and ask for an inspection. If severe or numerous violations of the housing code are found, ask your landlord for a partial refund of rent for the period of time the violations existed. The amount you could seek depends upon the severity of the problems. Minor violations are not likely to result in any refund at all, but problems which force you to stay elsewhere, such as furnace failure in the winter, severely leaking roof, or lack of basic facilities such as toilet, refrigerator, stove, or hot water could lead to a prorated refund of rent for the days you were unable to occupy your home. In Indiana, however, you may not withhold rent pending repairs. Rent must be timely paid. Consult SLS if you want to pursue a claim.

Use Common Sense in Caring for Your Apartment

Making a little extra effort to keep its condition from deteriorating could really pay off in terms of gaining your landlord's good will, not to mention safeguarding your deposit. When the temperature is likely to drop below freezing, be sure to keep a little stream of water running in each faucet. It is especially important to do this if you're leaving the apartment over the holiday break. If you're going to be away for an extended period, do not turn the heat down below sixty degrees. When pipes freeze and break because these precautions weren't taken, not only could tenants' belongings be damaged, but the landlord also may be able to collect from you the cost of repairing the pipes and any other damage to the apartment. If the water damages an adjoining apartment, you may be responsible for those damages as well.

Injuries Occurring on Rental Property

You slip on the icy steps to your apartment and break your leg. Your friend falls through the rotted porch floor. A broken pipe floods your apartment and damages your clothes. Who is responsible for the costs of these injuries? It depends upon the circumstances of each incident and upon your lease.

If an injury occurs in a common area because the landlord did not use reasonable care in maintaining the area, the landlord could be found liable. Common areas are places tenants are allowed to use but do not occupy, such as parking lots, common entry halls or stairways. Landlords have a duty to maintain common areas in a safe condition.

When an injury or property damage occurs because of a problem inside an apartment, the key question is, "Who had the duty to correct that problem?" The housing code or your lease determines who is responsible for fixing particular items. Read your lease carefully. When something goes wrong in the apartment, tell the landlord immediately and keep a record of your phone calls and visits to complain about the problem (Remember, it is essential that you document in writing each and every repair request and complaint made to the landlord). Once the landlord undertakes to make a repair, if it is made in a negligent manner, the landlord may be liable for injuries resulting from the negligence.

When a visitor, not a tenant under the lease, is injured, liability questions become even more complex. The answer depends upon the facts of each situation. Check with SLS for more information.

Privacy

Your landlord keeps showing up at odd hours, using a passkey to enter the apartment unannounced. "Just checking on things," he says. Is this legitimate? See what your lease says about the landlord's right to enter the leased premises. Many leases say that the landlord has the right to enter to show the leased premises to prospective tenants, or make repairs, during certain hours and after having given you reasonable notice. Landlords can also enter in an emergency to prevent damage to the apartment, such as when a water pipe has broken. Unless there is an agreement in the lease or an emergency, you have a right to privacy in your apartment. This means you should be given advance notice of entry by your landlord, and the opportunity to refuse if the proposed day and time for entry is inconvenient. If you don't like what your landlord is doing, your first course of action should be to discuss it with him or her. See if you can solve the problem through rational discussion. If the landlord's conduct seems way out of line, however, or you can't obtain results through informal discussion, seek legal advice from SLS.

Subleasing

Summer is rolling around and you've just got to get out of Bloomington. But you're stuck with this lease. What can you do? Well, first, here's what not to do. Don't just leave town and abandon the apartment. If you do, you could find yourself in a heap of trouble with your landlord, not to mention with any enraged roommates you may have left behind. Both your landlord and your roommates may have grounds for a lawsuit against you.

If you are lucky enough to have a landlord who does not care about holding you to the lease, you may be able to negotiate the termination of the lease. This sometimes works when the landlord wants to sell or remodel the place and it is convenient to have it vacant. It doesn't hurt to ask your landlord to release you from the lease. If the landlord agrees to release you, get the agreement in writing and don't lose it!

If that doesn't work, however, you're left with one option: Subleasing. This means that you still rent the apartment from the landlord but you, in turn, rent your interest in the place to someone else. You become a landlord, so to speak, for your subtenant. When you sublease, you are still a party to the original lease and are responsible for paying the rent if the subtenant doesn't pay. Try to make sure your subtenant is a reliable person who won't skip out on you. If this happens, you will have the right to sue him or her, but this hassle is better avoided. If possible, obtain a security deposit from your subtenant, and have the landlord retain that deposit as well as yours.

Try to get the landlord to perform a joint inspection before the subtenant moves in and get the landlord to agree to use the subtenant's deposit for damages that are inflicted on the apartment after you give up possession. If the landlord refuses to conduct a joint inspection before the subtenant moves in, you and the subtenant should conduct one and keep a detailed list of damages so you can determine who pays for damages cited by the landlord at the end of the lease term.

If you obtain a deposit from the subtenant and don't give it to the landlord, you will be considered a landlord for purposes of the Security Deposit Statute discussed earlier. That means you would have to give an accounting to the subtenant within 45 days of termination of the lease. Since the landlord will not give you an accounting before the 45 days expires,it is obviously impossible for you to make an accounting to the subtenant. That means, even if the subtenant trashed the apartment, you have to give the subtenant's deposit back for your failure to comply with the 45-day rule. And, if you don't, you will have to pay the subtenant's attorney's fees! This is clearly a "catch 22" situation so avoid it by NOT accepting a deposit from the subtenant.

Most leases require that you get the landlord's permission to sublease. Even if your lease doesn't require permission, it's a good idea to tell your landlord what you wish to do and introduce the subtenant to him or her. Many landlords provide their own sublease forms. If yours doesn't, SLS will draft a sublease agreement for you.

Be sure to go over the lease and sublease with the subtenant. Don't forget to decide whether the utilities will remain in your name or be transferred to the subtenant. Transferring them protects your credit record if the subtenant doesn't pay the bills and may allow you to get your utility deposit back, as well. If your subtenant stops paying rent, the landlord is supposed to notify you, but this doesn't always happen. It's wise to check in with your landlord once or twice over the summer to make sure there are no problems with the subtenant. If you would like SLS to draft a sublease requiring the landlord to notify you of problems with a subtenant, we will be happy to.

Problems

Eviction

Every tenant's nightmare and an all too common problem in Bloomington. Sometimes it can't be avoided, but often a little knowledge beforehand keeps people from getting into situations that could lead to eviction. Here's the legal background on eviction.

Your lease is a contract between you and your landlord. When the tenant breaches that contract in a significant way, eviction is the usual remedy. The most common breach of a lease, and reason for eviction, is failure to pay rent. Noise is a close second. No matter how good your reason for not paying the rent is, if you don't pay it, the odds are you'll be evicted. This is true even if you have paid your share and it's your roommate who hasn't paid. As far as the landlord is concerned, you are both responsible for each other's share of the rent and are jointly responsible for paying the full amount.

If you run into this problem, but don't want to move, your best bet (painful as it may be) is to pay your roommate's share of the rent that month, and to try to collect it from him or her later. When it looks like your roommate is going to have continuing problems paying the rent, maybe he or she should move out voluntarily, after finding a paying tenant to move in. You must also help search for a replacement. If your roommate doesn't pay his or her share of the rent and refuses to move out, and you have found someone else to move in, you may be able to evict your roommate and replace him or her with a paying tenant.

Although failure to pay rent is the major reason for eviction, people are evicted for many other lease violations.

Although failure to pay rent is the major reason for eviction, people are evicted for many other lease violations. Keeping a pet in violation of the lease also commonly leads to eviction. If your lease says "no pets," this truly means you should not have a single pet on the premises! Even for a visit! Even if you don't get evicted for it, you'll get charged for any carpet replacement, flea extermination, and any other "pet damage." Making excessive noise that disturbs the neighbors may also be grounds for eviction. Unless your lease says otherwise, before evicting you for breaching the lease in ways other than failing to pay rent, the landlord should notify you that you are in violation of the lease and give you a reasonable time to correct the problem. When you fail to pay rent, however, and your lease makes the rent due in advance (on the 1st of the month), then the landlord can file an eviction suit against you without advance notice.

Eviction Suit

If your landlord decides to try to evict you, he or she must go to court and file a "complaint for eviction." This is usually filed in small claims court. You will be served with a copy of the complaint. It may be sent by certified mail or the sheriff may deliver it to you or leave it at your residence. The complaint will state the reasons eviction is being sought and the amount of money claimed, and will set a date for you to appear in court. You should get at least five days notice before the hearing. If you do not, you may ask the court for a continuance. Often, the suit will be dismissed if the rent owed, together with any late fees due and court costs, is paid before the court hearing. Be sure to go to court at the scheduled time! This is your opportunity to present any defenses to the landlord's claim. If at all possible, consult SLS as soon as you receive the court papers. Even better, consult SLS before receiving papers if you think they're going to be filed.

Eviction trials are often conducted in two parts. The first hearing, called the eviction hearing, is simply to determine whether you should be ordered to leave the apartment. A second hearing, to determine whether you owe the landlord money, and if so, the amount, is usually held at a later date. If you have already moved out of the apartment by the date of the eviction hearing, however, the judge may go ahead and hear evidence on the issue of money.

Even if you are evicted, you can still minimize the amount of money you are required to pay the landlord by cleaning the rental unit and following the joint exit inspection...

owed ("damages" in legal jargon) at that time. At the eviction hearing, the landlord will first present evidence about your alleged breach of the lease. You or your attorney will have a chance to question the landlord about his or her case. Next, you will be given the opportunity to present evidence as to why you should not be evicted. If you have documents, photos, or any other information that shows that you did not violate the lease or, if you did, that the violation was minor, be sure to bring it with you to the hearing. You can also bring witnesses. If a witness is reluctant to come to the hearing, but you think he or she has important information, the clerk's office can help you subpoena the witness. If the judge orders that you should be evicted, you will probably be given a few days in which to move. Because you won't have much time to find a new place, begin looking for one the moment you think eviction is a possibility. Even if you are evicted, you can still minimize the amount of money you are required to pay the landlord by cleaning the rental unit and following the joint exit inspection procedure described earlier in this pamphlet. Document the condition of the apartment with photographs or have a disinterested party look at it, to avoid being hit with excessive cleaning or repair charges at the damages hearing.

Discrimination

The Federal Fair Housing Act of 1968 prohibits discrimination in housing on the basis of race, religion, sex, national origin, handicap, or familial status. However, some landlords are not bound by this law. If a building contains four or fewer rental units and the landlord lives in one of them, the Fair Housing Act doesn't apply. Nor does it apply to the sale or rental of a single-family home if the landlord owns three or fewer houses and doesn't sell more than one house in a two-year period (excluding his or her personal residence). Families with children have traditionally had difficulty finding a place to rent. In 1988, Congress addressed this problem by amending the Fair Housing Act to forbid landlords from refusing to rent to households with children, except in certain types of senior citizen housing. Also in 1988, Congress gave new housing protection to people with disabilities. A landlord or seller to whom the Fair Housing Act applies cannot discriminate against anyone who has a physical or mental impairment, or a record of having had such an impairment, or who is merely thought to be disabled even if he or she isn't. If the building needs modifications to make it usable for the renter, the landlord must agree to let them be made, although he or she can require the modifications to be removed at the end of the tenancy and the premises restored to their original condition (except for damage caused by normal wear and tear.) Also, all new multifamily dwellings designed for occupancy after 1991 must be accessible to people with disabilities. Locally, the City of Bloomington has a Human Rights Commission, which reviews complaints about discrimination in housing, as well as other areas. The Human Rights Commission can be reached at 349-3429.

Sale of a Rental Unit

When a landlord informs tenants that the building is being sold and a new landlord is taking over, the tenants are usually concerned about the status of their leases. The rule is that property is sold subject to any existing leases. The new owner cannot kick you out or raise your rent during the time your old lease still runs, unless that lease allowed the old landlord to do it. Your new landlord has the same rights as your old landlord had. If you breach the lease, you may still be evicted.

As long as you comply with the lease terms, however, you can't be forced to leave prior to the end of your lease term just because the new owner doesn't want you there.

Getting Help From SLS

Student Legal Services is a non-profit law office that has been serving students on the Bloomington campus since 1971. We are a law office with two goals: providing legal help

for IU students and a clinical educational experience for second and third-year law student interns. All the interns are carefully supervised by experienced, licensed attorneys.

To make an appointment, you must visit SLS and fill out a fact sheet describing your problem. Bring with you all documents relating to the problem. In most instances, your appointment will be scheduled within a few days. No legal advice will be given over the phone. Alternatively, you can complete an intake form on the web at www.indiana.edu/~sls and submit it to be scheduled for an appointment. We will attempt to do lease analyses on a walk-in basis. And, SLS will share with you what is known about the landlord's past performance history. However, at certain times of the school year, our availability to do lease analyses may be limited and we always retain discretion to not take a case based on the SLS workload or lack of case merit.

This booklet contains an overview of Indiana landlord-tenant law as of January 2005, with particular reference to Bloomington and its municipal housing code. It was prepared for Indiana University students by Student Legal Services and is intended only as general information, not as a substitute for legal advice from a licensed attorney.

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