The Indiana eviction process provides for a relatively quick procedure to expel a tenant. There is an action called Immediate Possession rather than eviction, which has an expedited procedure.
Before undertaking an eviction, the landlord must allow the tenant to have at least some due process rights before initiating an Indiana eviction process and obtaining a court order directing the tenant to vacate rental property for nonpayment of rent, for violating some rule or provision in the lease, for damaging the property, or committing a criminal offense on the premises that endangers the safety or health of others.
If a landlord attempts to evict a tenant without using the court process, he or she can be liable to the tenant for damages. Self-eviction measures include turning off essential services or utilities, denying the tenant access to the property, threatening the tenant or purposely not repairing a dangerous condition or creating one.
10-Day Notice to Quit
A landlord’s first step per the Indiana eviction laws is to serve a written 10-Day Notice to Quit. This is a simple form, which merely states that the tenant has no more than 10 days to leave the property unless rent due is paid within 10 days or a violation of the lease has been corrected. A description of the property is needed along with the date of the notice and signature of the landlord.
The landlord also must wait 10 days after the rent is due before serving an Indiana eviction notice if the reason for the eviction is nonpayment of rent.
There are circumstances where compliance is not an option if the tenant substantially damaged the property, was habitually late with rent payments, or committed a criminal offense on the premises.
For month-to-month tenancies, the landlord need not give a reason for the eviction but must give the tenant a written 30-day Indiana eviction notice.
There are situations where no notice is required. This includes a tenant who has held over after expiration of the lease period or where the tenant commits waste.
Service of Notice
The written notice to quit must be properly served. A landlord can serve it personally on the tenant or on an adult subtenant provided the server explains the notice’s contents to the subtenant. If no tenant is present, the server may post the notice to the unit door or leave it in a conspicuous location.
Action for Immediate Possession
Once the tenant fails to comply with the notice, the landlord can file an action for Immediate Possession rather than an eviction action. This proceeding is only to determine who has rightful possession of the premises. A landlord can certainly negotiate with the tenant and extend the time for payment of past due rent or for other remedies, but accepting partial payment of rent could waive the landlord’s right to continue with the present court action.
- Affidavit for Immediate Possession
For an Immediate Possession action, the landlord completes an Affidavit for Immediate Possession, which can be obtained on the court website or from any legal documents store.
The court will issue an order to the tenant called an Order to Show Cause and directing the tenant to appear at a certain time and place, usually no earlier than 5 days after service of the order. The order asks the tenant to appear and respond to the affidavit by filing his or her own affidavits contesting the action or by providing testimony at the hearing.
- Petition for Emergency Possessory Order
In emergency situations where the landlord demonstrates probable cause that the tenant is damaging the property or the property is in immediate danger of destruction or may be sold to an innocent buyer, the landlord can petition the court for an emergency prejudgment possessory order before the hearing and ask to shorten the time for the order to show cause hearing to 48-hours notice.
The court can also issue temporary restraining orders against the tenant to preserve the rights of the parties and the status of the property.
The Indiana eviction process also requires that the landlord obtain a surety bond before the court issues the possession order and before the final judgment or before the order to show cause hearing.
To prevail at the order to show cause hearing, one party must prove their right to possession and use of the property by a reasonable probability. If the landlord prevails at the hearing or the tenant fails to appear, the court will issue a final judgment and order of possession, which may be delivered to the tenant at the hearing if present.
Once the issue of possession is decided, there may be a subsequent hearing to determine how much the tenant owes in rent, or to detemine how much the landlord owes in damages to the tenant if the tenant prevailed.
The tenant may be able to challenge an eviction by presenting any of the following defenses:
- Waiver of right to evict. Unless the landlord has the tenant sign a document stating that partial payment of rent is not a waiver of the landlord’s right to evict the tenant for nonpayment of rent, acceptance of partial payment may be a waiver.
- Landlord’ failure to maintain the property. A tenant can deduct the cost of repairs if the tenant has provided written notice to the landlord and he or she has not remedied the defective condition within a reasonable time.
- Constructive eviction. The tenant was forced to vacate the premises because the unit was unfit or uninhabitable due to the landlord’s negligence or failure to repair a dangerous or unsafe condition.
- Retaliation. The eviction was in response to the tenant having complained about the property’s condition, joined or participated in a tenant’s rights organization or exercised any other legal right.
- Discrimination. The tenant brought the eviction based primarily on the tenant’s family status, religion, national origin, creed, sexual orientation or disability.
Removal of Tenant
Once the sheriff or executing officer serves the tenant with the order of possession, the tenant only has 48-hours to vacate the premises.
The Landlord Guidance
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