a.) Housing Codes and Ordinances

Housing codes or ordinances effective in a city or town generally are deemed to be a part of each lease entered for property in the city or town. Unlike building codes, housing codes typically apply to all residential rental properties, regardless of when the buildings were constructed. Before developing or acquiring rental property, owners and operators should become aware of all applicable housing codes.

In Indiana, housing codes are municipally adopted standards applicable to rental housing. These codes set out health, safety, and sanitary standards and are incorporated into leases signed after their adoption. A dwelling is unfit for human habitation when it is dangerous or detrimental to life or health because of: (1) want of repair; (2) defects in the drainage, plumbing, lighting, ventilation, or construction; (3) infection with contagious disease; (4) the existence on the premises of an unsanitary condition that is likely to cause sickness among occupants of the dwelling. (Ind. Code § 16-41-20-1.)

To execute the purpose of the housing codes, the state department of health, local board of health, or county health officer may order remediation of the apartment’s unfit condition. This could involve modifications to the plumbing, sewage, drainage, light, or ventilation of the dwelling. (Ind. Code § 16-41-20-6.) (See Management Issues, Nuisances, and Leasing the Premises, Condition of the Leased Premises.) For example, officials may order that a dwelling, excavation, building structure, sewer, plumbing, pipe, passage, premises, ground, or anything in or about a dwelling that is found unfit for human habitation be purified, cleansed, disinfected, renewed, altered, repaired or improved. (Ind. Code § 16-41-20-7.) Authorities may also issue an order requiring all persons living in the dwelling to vacate the dwelling within 5-15 days. (Ind. Code § 16-41-20-4.)

b.) Building Codes and Ordinances

Building codes are statutes, ordinances, regulations, or privately designed codes adopted by regulations that set out minimum standards for constructing public buildings. Industry councils generate such codes as the Uniform Plumbing Code, the National Electrical Code, and the Uniform Building Code at the national and international levels. States or municipalities frequently adopt these codes as standards for construction. Beginning in 2023, building codes can only be amended and adopted at the state level by the Indiana Fire Prevention and Building Safety Commission. Except in unusual cases, such codes are made applicable only to buildings constructed or substantially remodeled after the code’s adoption.

c.) The Unsafe Building Law

The Unsafe Building Law provides local governments authority to regulate unsafe buildings. An unsafe building is defined as a building that is: (1) in an impaired structural condition making it unsafe to a person or property; (2) a fire hazard; (3) a hazard to the public health; (4) a public nuisance; (5) dangerous to a person or property because of a violation of a statute or ordinance concerning building condition or maintenance; or (6) vacant and not maintained in a manner that would allow human habitation, occupancy or use under the requirements of a statute or an ordinance. (Ind. Code § 36-7-9-4.)

Local enforcement authorities, such as health or code enforcement, have a wide array of actions they may take to remedy an unsafe building. They may issue orders concerning unsafe buildings, including an order requiring:

1. 1. vacating the building;
   2. sealing an unsafe building against intrusion by unauthorized persons or effects of weather;
   3. extermination of vermin in and about the unsafe premises;
   4. removal of trash, debris, or fire hazardous material in and about the unsafe premises;
   5. repair or rehabilitation of an unsafe building to bring it into compliance with standards for building condition or maintenance required for human habitation, occupancy, or use by a statute, or an ordinance;
   6. demolition and removal of an unsafe building;
   7. exterior improvements to make the building compatible in appearance with other buildings in the area; and
   8. continuing maintenance and upkeep of the building and premise in accordance with standards established by ordinance. (Ind. Code § 36-7-9-5.)  

Indiana requires that the ordered action be reasonably related to the condition of the unsafe premises and the nature and use of nearby properties. (Ind. Code § 36-7-9-5.)  Any such order supersedes any permit relating to building or land use, whether that permit is obtained before or after the order is issued. The enforcement authority also may bring civil actions and seek injunctions and civil forfeitures. (Ind. Code § 36-7-9-17; Ind. Code § 36-7-9-18; Ind. Code § 36-7-9-19.)

The Indiana Court of Appeals has determined that the Unsafe Building Law does not authorize a trial court to order preventative maintenance. That is, repairs that a property owner (or operator) would anticipate and make to preserve the physical integrity and value of the property. The court further determined that a trial court’s order to make repairs must be grounded upon a finding that repairs are necessary to correct an existing, unsafe condition or to forestall further deterioration of an existing, unsafe condition.

d.) Fire Safety Regulations

Owners and operators are responsible for complying with state regulations regarding portable fire extinguishers and smoke detectors in apartments, offices, mechanical rooms, maintenance space, and community buildings.

a. Portable Fire Extinguishers

Indiana law regulates portable fire extinguishers through the adoption of the International Fire Code (IFC), including its amendments and the adopted standards of the National Fire Protection Association (NFPA), particularly NFPA 10. NFPA 10 indicates that successful use of a portable fire extinguisher requires:

1. 1. 1. 1. that the extinguisher is properly located and in working order;
         2. that the extinguisher is the correct type for a fire that may occur in the area;
         3. that the fire be discoverable while still small enough for the extinguisher to be effective; and
         4. that the fire be discoverable by a person ready, willing, and able to use the extinguisher.

NFPA 10, Standard for Portable Fire Extinguishers

Owners and operators must guide their selection of the appropriate extinguishers for a given situation by the character of any anticipated fires, the construction and occupancy of the individual property, the hazard to be protected, ambient-temperature conditions, and other factors. There are three basic classifications of fires or hazards. Class A fires involve common combustibles (e.g., wood, paper, plastic), and an “A” extinguisher is designed to extinguish these fires. Class B fire hazards include flammable liquids, oils, and lacquers and require extinguishers capable of smothering fire from these materials. Class C extinguishers must be able to put out electrical fires.

To determine the required number of extinguishers per floor, fire safety regulations correlate the minimum sizes of fire extinguishers, types of hazards, maximum floor area, and travel distance to the device. At a minimum, one extinguisher of the minimum size is required per level or no more than 75 feet from a potential Class A fire. The typical specific hazard area is the kitchen.

Owners and operators of properties requiring extinguishers are responsible for inspecting, maintaining, and recharging extinguishers. At a minimum, extinguishers must be inspected at monthly intervals to ensure they are in the proper place, visible, provided with readable operation instructions and facing outward, complete with no seals broken or missing, sufficiently full, free from obvious physical damage, corrosion, leakage or clogged nozzle, and provided with a pressure gauge indicator in an operable position. The inspector, likely an apartment maintenance person, must correct or remedy any misplacement or deficiencies in extinguishers and record any corrective actions. The inspector must make and initial a record for each inspection done.

Extinguishers must be professionally maintained at least once each year. All fire prevention systems, including portable fire extinguishers, must be maintained in an operative condition at all times and must be replaced or repaired if defective. Stored pressure-type extinguishers containing a loaded stream agent must be discharged and disassembled annually and subjected to complete maintenance. An extinguisher undergoing maintenance must have a temporary replacement. Maintenance procedures must include a thorough examination of at least the three basic elements of an extinguisher: the mechanical parts, extinguishing agent, and expelling means. Every six years, a rechargeable, stored pressure extinguisher must be hypostatically tested after yearly maintenance. There must be a tag or label securely attached to the extinguisher indicating the month and year the maintenance was performed and by whom. It also must indicate whether the extinguisher was recharged at the time of maintenance.

b.) Smoke Detectors

Any residential unit is subject to Indiana’s smoke detector law, whether it is a single-family house or part of a multi-family development. (Ind. Code § 22-11-18-2.) A dwelling must have at least one functional smoke detector installed according to the manufacturer’s instructions. (Ind. Code § 22-11-18-3.5(c)(1).) Moreover, a smoke detector must be placed outside each sleeping area in the immediate vicinity of the bedrooms, no more than 12 inches but not less than four inches from the ceiling and not recessed into the ceiling. (Ind. Code § 22-11-18-3.5(c)(2), (3).) At least one functional smoke detector must be on each additional floor, including basements, cellars, and habitable attics. (Ind. Code § 22-11-18-3.5(c)(4).) All smoke detectors must be either battery operated or hard-wired into the dwelling’s electrical system, accessible for servicing and testing, maintained and tested by the occupant at least once every six months to ensure the smoke detector is operational. (Ind. Code § 22-11-18-3.5(d).)

In late 2022, Congress passed a law requiring all federally assisted housing units, which includes public housing, tenant-based housing, and project-based assistance, ensure that smoke alarms are either hardwired or tamper-resistant with sealed batteries (Consolidated Appropriations Act of 2023, Page 1084). For properties fitting this description, federal law controls over state law.

Owners and operators must install the required smoke detectors and must replace and repair them within seven business days after receiving written notice of the need. (Ind. Code § 22-11-18-3.5(e).) No person may tamper with or remove a smoke detector except when necessary for maintenance purposes. (Ind. Code § 22-11-18-3.5(f).)

The Indiana Fire Prevention and Building Safety Commission (Commission) has the authority to adopt rules to prohibit the occupancy or use of structures, including apartments, that do not comply with the Commission’s rules (which may be more restrictive than the statute) governing the number, type, location, identification, repair and maintenance of smoke detectors, as well as emergency exits and emergency communication devices. (Ind. Code § 22-13-3-3.)

Violating any statutory provisions does not constitute grounds for reducing or denying a claim under an insurance policy, even if the policy contains terms to the contrary. (Ind. Code § 22-11-18-3.6.) When an owner or operator delivers a rental unit to a resident, the owner or operator must require the resident to acknowledge in writing that the rental unit is equipped with a functional smoke detector. (Ind. Code § 32-31-5-7(a).) An owner or operator and a resident may not waive the statutory requirements concerning smoke detectors. (Ind. Code § 32-31-5-7(b).)

c.) Carbon Monoxide Detectors

Carbon monoxide is an odorless, colorless, and toxic gas that can be emitted from fuel in vehicles, malfunctioning in stoves, lanterns, grills, fireplaces, and natural gas appliances. Each year, more than 400 Americans die from accidents resulting in carbon monoxide poisoning. 

On January 31, 2022, the U.S. Department of Housing and Urban Development (HUD) issued Notice H 2022-01, which requires carbon monoxide detectors at HUD properties with a carbon monoxide source, like garages (cars) and certain appliances. The requirement went into effect and was enforceable by HUD as of December 27, 2022. The new requirement applies to all Housing Choice Voucher units and all Public Housing, Project Based Voucher, Project Based Rental Assistance, Section 202, and Section 811 properties with fire-fueled or fire-burning appliances or an attached garage.

For properties falling outside of HUD’s requirements, Indiana law and fire code are silent on whether a dwelling must possess carbon monoxide detectors. However, where fuel-burning appliances or an attached garage exists at a property, property owners may want to consider installing a carbon monoxide detector and check it regularly to ensure it is properly functioning. Properties where there is risk that carbon monoxide may be present should consult with an attorney to determine how to mitigate risk of injury and liability.

d.) Gas and Charcoal Grills

Liquid propane gas may not be stored on balconies above the first floor of a multi-family dwelling of three or more units if the gas tank has a water capacity of more than two and one-half pounds (nominally, one pound of liquid propane gas capacity). There is an exception for such balconies that are served by an outside stairway, and only the outside stairway is used to transport the tanks. Moreover, the Commission strictly prohibits using any gas or charcoal grill, or other open flame devices, on a balcony or within 10 feet of a building. Therefore, residents may not grill on balconies or patios.

e.) Zoning Regulations

Zoning ordinances regulate the uses to which real property may be put. Although zoning ordinances usually provide for the continuation of existing uses, owners and operators carefully should review each proposed change or enactment to determine whether it affects (1) current usage and (2) the reletting of the premises.

Keywords: Fire Alarm, Smoke Alarm, CO, Carbon Monoxide Alarm