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Effective Practices for Evictions Tasha S. Reed, ESQ. Indianapolis Housing Agency

Effective Practices for Evictions Tasha S. Reed, ESQ. Indianapolis Housing Agency. Overview of the Eviction Process—Know the Who, What, When, Where, Why and How Who: Know the Parties (Landlord and Tenant) What: Know the Law (Landlord/Tenant Laws) and Your Lease When: Know when to file

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Effective Practices for Evictions Tasha S. Reed, ESQ. Indianapolis Housing Agency

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  1. Effective Practices for EvictionsTasha S. Reed, ESQ.Indianapolis Housing Agency Overview of the Eviction Process—Know the Who, What, When, Where, Why and How Who: Know the Parties (Landlord and Tenant) What: Know the Law (Landlord/Tenant Laws) and Your Lease When: Know when to file Where: Know where to file Why: Know why to file (Reasons and Grounds for Eviction) How: Know procedural steps for filing

  2. WHO ARE THE PARTIES • Natural Person • Pro Se Representation • May hire counsel • No POA accepted • Sole Proprietorship or Partnership • If natural person, then may proceed pro se • May hire counsel • Designated Employee • Full-time Employee • Certificate of Compliance must be filed by entity before DE appears stating that entity has adopted a corporate resolution designating the employee’s acts are binding on the entity • Affidavit must be filed by DE saying s/he is not a disbarred or suspended attorney

  3. WHO ARE THE PARTIES (con’t) • Corporation • MUST be represented by counsel • EXCEPTIONS: • < $1500 for unassigned claims, may appear by Designated Employee (COC and Affidavit must be filed). Unassigned claim = the claim is owed directly to the Corporation and is not a claim that has been assigned to the Corporation for collection or other reasons. • Said Corporation will be bound by all the DE’s agreements and actions and will be liable for all costs assessed against the Corporation and employee • **Collection Agencies or other owners of assigned claims must ALWAYS be represented by an attorney regardless of the amount of the claim. **SOURCE: Marion County Small Claims Court Litigant’s Manual**

  4. WHAT’S THE LAW • Look to State’s Statute • IC 32-31 Governs Landlord/Tenant Relations • Look to Small Claims Court Rules • Small Claims Court Rules in the Indiana Rules of Court (www.in.gov/judiciary) • Look to Small Claim Court Litigant’s Manual (www.indygov.org)

  5. General Provisions • IC 32-31-3-3 defines “landlord” • IC 32-31-3-10 defines “tenant” • IC 32-31-3-9 defines “security deposit” • IC 32-31-3-11 Jurisdiction of Courts • IC 32-31-3-12 Return of deposits; deductions; liability • IC 32-31-3-13 Use of deposits • IC 32-31-3-14 Notice of damages; refund of remaining deposit • IC 32-31-3-15 Remittance of full deposit • IC 32-31-3-16 Liability for withheld deposit • IC 32-31-3-17 Waiver of chapter

  6. Security Deposits • IC 32-31-3-9 defines “security deposit” as a deposit paid by a tenant to the landlord to be held for all or a part of the term of the rental agreement to secure performance of any obligation of the tenant under the rental agreement

  7. Security Deposits (con’t) • IC 32-31-3-12 Return of deposits; deductions; liability • Subpart (a): Upon termination of the rental agreement, a landlord shall (MUST) return to the tenant the security deposit minus any amount applied to: • Payment of accrued rent; • 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; 45-Day Rule for Return of Security Deposits: Landlord must itemized amounts deducted from the security deposit 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. The landlord is NOT liable under this chapter until the tenant supplies the landlord in writing with a mailing address to which to deliver the notice and amount prescribed by this subsection. Unless otherwise agreed, a tenant is not entitled to apply a security deposit to rent (current). • Subpart (b): Landlord’s failure to comply with subpart (a) may result in tenant recovering ALL of the security deposit due to tenant and reasonable attorney’s fees.

  8. Security Deposits (con’t) • IC 32-31-3-13 Use of Security Deposits • Security deposit may only be used for the following purpose: • Reimburse the landlord for actual damages to the rental unit or any ancillary facility that are not the result of ordinary wear and tear. • To pay the landlord for (1) all rent in arrearage; and (2) rent due for premature termination (breach) of the rental agreement by the tenant • To pay for the last pay period of a residential rental agreement if a written agreement between the landlord and tenant so stipulates • Reimburse the landlord for utility or sewer charges paid by the landlord that are: (1) the obligation of the tenant under the rental agreement; and (2) unpaid by the tenant.

  9. Security Deposits (con’t) • IC 32-31-3-14 Notice of damages; refund for remaining deposits • Explains 45-Day more in detail • Landlord shall (MUST) mail to tenant an itemized list of damages claimed for which the security deposit may be used as set for in Chapter 13; • The 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 shall (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.

  10. Security Deposit Example • Landlord collect $750 in security deposit from Tenant. At the end of the leasehold, Landlord notices that there are damages beyond normal wear & tear to the unit. There are holes in the walls ($200 in repairs); the ceiling fan has been torn down ($70); and the blinds have been removed from the home ($90). • Assuming that the tenant provided a forwarding address, what should landlord do next?

  11. Security Deposit Example • Tenant has a history of paying rent late. This particular month, tenant has again spent all his money for rent. He remembers that he paid a security deposit equal to the month’s rent. He asks the landlord to just use his security deposit for the month’s rent. There is still six months left on the leasehold. Is this acceptable? Why or why not?

  12. Security Deposits (con’t) • IC 32-31-3-15 Remittance of full deposit • Failure by landlord to provide notice of damages under Chapter 14 constitutes agreement by the landlord that NO DAMAGES are due, and the landlord must remit to the tenant immediately the full security deposit.

  13. Security Deposits (con’t) • IC 32-31-3-16 Liability for withheld deposits • Landlord’s failure to comply with sections 14 and 15 is liable to tenant in the amount equal to the part of the deposit withheld plus reasonable attorney’s fees and court courts. • IC 32-31-3-17 Waiver of chapter • Neither Landlord nor tenant can waive the security deposit requirements, not even by written agreement

  14. Moving and Storage of Tenant’s Property • IC 32-31-4 • 32-31-4-1.5 “Storage facility” defined as any location approved by a court for storage of a tenant’s personal property • 32-31-4-2 deals with Abandonment • Landlord has no liability for loss or damage to a tenant’s personal property if it has been abandoned by the tenant • Abandonment = if a reasonable person would conclude that the tenant has vacated the premised and has surrendered possession of the personal property

  15. Emergency Possessory • What can landlords (or tenants) do in cases where they need to get (or relinquish) possession immediately? • IC 32-31-6 allows emergency possessory orders • Must have unique set of facts to file under IC 32-31-6

  16. Emergency Possessory (con’t) • IC 32-31-6-2 allows the small claims court to have the jurisdiction to grant emergency possessory orders; • IC 32-31-6-3 deals with eligibility to file a petition • A tenant, if the landlord has violated IC 32-31-5-6 (Landlord prohibited from interfering with access, possession, or essential services; unit entry by landlord) • A landlord, if the tenant has committed or threatens to commit waste to the rental unit.

  17. Emergency Possessory (con’t) • IC 32-31-6-4 Petition Requirements • E.P. Petitions Must: • Include an allegation specifying: • (1) the violation, act, or omission caused or threatened by a landlord or tenant; and • (2) the nature of the specific immediate and serious injury, loss, or damage that the landlord/tenant has suffered or will suffer if the violation, act, or omission is not enjoined (stopped); • Be sworn to by the Petitioner

  18. Emergency Possessory (con’t) • IC 32-31-6-5 Court Review; Emergency Hearing • Once petition is filed, the Court shall (MUST) immediately review the petition and schedule an emergency hearing for not later than three (3) business days after the petition is filed.

  19. Rights of Tenants Who are Victims of Certain Crimes • IC 32-31-9-7 “Protected Individual” • Tenant/Applicant who is: • A victim or alleged victim of an applicable offense; and • Who has received a protected order (either civil or criminal) against the perpetrator

  20. WHEN TO FILE • Does lease explains violations and grounds for eviction? • Documented Lease violations (e.g., noise, criminal activity, destruction to property, abandonment, complaints, disallowed pets, failure to maintain utilities, etc.) • Notice should: • Explain incident in sufficient detail; • Cite section of lease conduct violates; • Provide any supporting documentation, if applicable (police reports, disconnect notice from utility company, etc) • Provide a time to cure, if applicable • Provide dates of previous similar violations • Be sent certified mail, if possible

  21. WHEN TO FILE (con’t) • Time to Cure: if lease provides a time to cure (fix), then landlord must allow tenant an opportunity to cure within time set or reasonable time. • Reasonableness depends on the situation • Maintain accurate records and bookkeeping (rent receipts, notices, complaints, police reports, etc.)

  22. WHEN TO FILE (con’t) • IC 32-31-1-6 Rent, refusal or neglect to pay • Indiana, landlord has absolute right to possession when tenant fails to pay rent • 10-Day Rule: Landlord must provide ten (10) days notice to the tenant that s/he intends to file for possession for nonpayment of rent, unless: • the parties otherwise agreed; or • The tenant pays the rent in full before the notice period expires.

  23. WHEN TO FILE (con’t) • IC 32-31-1-7 Forms; notice to quit; failure or refusal to pay rent • Sample 10-Day letter: • Addressed to tenant; list date; list description of property; list name of landlord • “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”

  24. WHEN TO FILE (con’t) • IC 32-31-1-9 Service of notices • Notice may be serviced on tenant ; • If tenant cannot be found, notice may be served on a person residing at the premises. The person serving notice must explain the contents of the notice to the person served; • If no person found on the premises, notice may be served by affixing a copy of the notice to a conspicuous (obvious) part of the premises (i.e., attach copy to door; may want to take pictures)

  25. WHEN TO FILE (con’t) • Example: • Tenant’s rent is due on the first of every month. Today’s date is May 2nd, and tenant has not paid her rent. • Can landlord file for eviction on May 5th? • Can landlord send a notice on May 5th? If yes, what’s required in the notice? • What is the earliest date that landlord can file for eviction? • Does 10-Day notice requirement apply to all lease violations? • Landlord puts copy of the notice on tenant’s car. Is this sufficient service?

  26. WHEN TO FILE (con’t) • Statute of Limitations • Before you file, must make sure that SOL has not passed. • SOL passing will bar filing and result in dismissal of claim • In Indiana, six (6) year SOL for rents and use of real estate (landlord-tenant disputes)

  27. WHERE TO FILE • Venue: County where real estate is located (usually county’s small claims court docket) • IC 32-31-3-11(b) Jurisdiction • Rule 12 of Small Claims Court, Ind. Rules of Court • <$6,000 v. >$6,000

  28. WHERE TO FILE • EXAMPLE: • Landlord lives in Marion County, and rents a unit located in Hendricks County. Tenant has repeatedly violated the rental agreement, and Landlord wants to evict. Upon inspecting the premises, the landlord determines that tenant has caused $10,000 in damages. • What county will the landlord file for eviction? • Can landlord request $10,000 in damages in the small claims court? Can he recover that amount?

  29. WHERE TO FILE (con’t) • What if you filed in the wrong place? • Landlord (plaintff) has option to request transfer or dismiss; • Tenant (defendant) may appear and decide to waive venue and case will remain • What if township/county does not have a small claims court? • Can file in any other court the has jurisdiction

  30. WHY FILE • Nonpayment of Rent (Easy) • Repeated Lease Violations (Moderate) • One-time serious violations; Emergency Possessory Orders (Hard) DOCUMENTATION, DOCUMENTATION, DOCUMENTATION

  31. HOW TO FILE • How to start your claim? • Notice of Claim • Notice tells the court and defendant what claim is about • Must give the correct name, address and telephone number of the Defendant • Must file certain number of copies with the Clerk • Must pay filing fee ($81 in Indiana) • Service of the Notice • Constable • Regular Mail • Must pay service fee ($13)

  32. HOW TO FILE (con’t) • Setting of trial • At time of filing, court will set case for trial. • Sup Ct. rules provide that the trial must be set not less than ten (10) and not more than forty (40) days after the Defendant is served. • When plaintiff files small claims court, waives right to jury trial • If Defendant request jury trial, must do so within ten (10) days after service, and must pay fee to transfer case to court that can hear jury trials • Obtaining information from another party • Limited Discovery Process

  33. HOW TO FILE (con’t) • The Trial (First Official Appearance) • Be sure to bring all necessary documents with you (notices, pictures, witnesses) • Subpoenas: if a necessary witness does not want to appear and testify, may request the court to issue subpoenas; request for subpoenas should be made as early as possible • Burden of Proof: Preponderance of the Evidence

  34. HOW TO FILE (con’t) • Judgment • Default • Motion to Vacate and Set Aside Possession • Writ of Possession • 30-Day Limit • Forced Eviction • Forwarding Address from Tenant (tenant should supply) • Damages Hearing (Second Official Appearance) • Prove Damages (itemization, pictures, etc) • Proceeding Supplemental (Can’t collect on Judgment) • Mechanism for obtaining a garnishment order • Appeals • 60 days to appeal judgment • Appellant must pay fee to transfer case to Superior Court • Case starts over

  35. Q&A Session • Questions, Anyone?

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