Since 2021, under Indiana law, property owners owe duties to residents who are the sole occupant of the dwelling unit under a lease and who become incapacitated or deceased. The property owner’s responsibilities in these circumstances are identical and require notification of a representative, access to the resident’s property, and delivery of any money owed to the resident under the lease. Failure to comply with Indiana law in executing those duties and responsibilities subjects a property owner to actual damages. Ind. Code § 32-31-1-23
If a resident who is the sole occupant of a dwelling unit under a lease becomes incapacitated or deceased, the property owner must notify the resident’s “tenant representative” upon knowledge of this information. A tenant representative is the person designated by the resident and is delegated the responsibility to remove the resident’s property, collect unearned rent, and collect the security deposit. A tenant representative is not the same as a resident’s emergency contact (although the same person could be named). A resident’s tenant representative is not a resident’s personal representative or the executor of their estate. These are different terms, although the same person could be designated to both positions.
For example, a resident’s mother could be designated by the resident as their tenant representative and named, via the resident’s last will and testament, as the resident’s personal representative. However, a resident’s mother could be designated by the resident as their tenant representative, and the resident’s father could be named in the resident’s Will as the resident’s personal representative. In that scenario, only the resident’s tenant representative would have authority to access the premises to remove the tenant’s property and accept any money or deposits owed to the resident until the point the resident’s father received letters testamentary from a court, which grants the personal representative authority over the deceased’s estate.
A resident’s tenant representative should be named at the time of signing the lease to ensure a property owner has this important information. If possible, the tenant representative should sign a document accepting the appointment. IAA has created sample forms, which are included in this section’s resources tab, to aid in collecting this information. Additionally, a resident should be permitted to change their tenant representative at any time.
When a resident who is the sole occupant of the dwelling unit under a lease becomes incapacitated and absent from the dwelling unit or dead, the property owner, upon knowledge of this information, must notify a tenant representative, give access to the dwelling unit or any other area containing the resident’s property at a reasonable time to remove that property, and must return the security deposit and any unearned rent to the resident’s tenant representative. A property owner may require the tenant’s representative to prepare and sign an inventory of the property being removed.
Indiana law anticipates that situations might occur where a tenant representative named in a lease by a resident may be unwilling or unable to serve in that capacity. In that situation, the following categories of individuals in decreasing order of priority may accept appointment and serve as a tenant representative:
- A person designated by the tenant in a written document delivered to the landlord.
- A person designated, in writing, by the tenant in a written lease between the tenant and the landlord.
- An attorney in fact named by the tenant in a power of attorney during the tenant’s lifetime.
- A temporary guardian or guardian of the person of a tenant.
- A tenant’s heir.
- A person selected and appointed by a probate court upon a petition by any interested person under this section.
If a dispute exists between two or more people claiming to be a tenant’s representative, the probate court’s decision controls after a hearing held upon notice to the interested persons. A person can accept an appointment as a tenant representative by providing written notice to the resident’s property owner of the acceptance of the appointment. A tenant representative can also accept appointment via a probate court’s order.
The authority of a resident’s heir, attorney in fact, a temporary guardian, or a guardian of the resident terminates when the heir, guardian or the property owner knows one of the following:
(1) a personal representative has been appointed for the deceased tenant’s estate;
(2) a tenant’s attorney in fact is acting on the living tenant’s behalf; or
(3) a guardian has been appointed for the living incapacitated tenant’s property.
At that point, the property owner should work with one of the above individuals to collect the resident’s property, unearned rent, and security deposit.
If a property owner complies with the law there is no liability to the resident, the resident’s estate (if deceased), or any other person that has a claim or interest in the property removed from the property, unearned rent, or security deposit. However, as referenced prior, a property owner that willfully ignores the law is liable for actual damages to the resident or their estate (if deceased).
Keywords: dead, death, emergency