Generally, a nuisance is defined as a wrongful interference with the use and enjoyment of land owned by an individual or the public. Under Indiana statute, “[w]hatever is: (1) injurious to health, (2) indecent, (3) offensive to the senses, or (4) an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance” (Ind. Code § 32-30-6-6.) A nuisance may be classified as either private or public, although the statutory definition combines both types. A public nuisance adversely affects an entire neighborhood or community, whereas a private nuisance affects only one person or a limited number of people. Both public and private nuisances are further subdivided into nuisances per se (i.e., nuisances at law) and nuisances per accidens (i.e., nuisances in fact). A nuisance per se is a nuisance in itself. Therefore, it cannot lawfully be conducted, maintained, or permitted to exist. Examples of this include a slaughterhouse, nitroglycerine plant, house of prostitution, or public highway obstruction. A nuisance per accidens occurs when the circumstances, including time, place, and manner, cause the use to be a nuisance. For example, a noise made at night during normal sleeping hours may be a nuisance, but the same noise made during the day would not be a nuisance.
1. Private Nuisance
The essence of a private nuisance is one person’s use of their property to the detriment of another person’s use and enjoyment of his/her property. A private nuisance may be an otherwise lawful use of a person’s property, becoming a nuisance only by the circumstances surrounding the use. In this situation, a judge examines the circumstances and decides, in the judgment of a reasonable person, if the use is “naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes and habits.”
2. Public Nuisance
Public nuisance encompasses conduct that interferes with the use of a public place or is detrimental to the public’s health, safety, morals, or property. The Indiana General Assembly has identified some public nuisances that are of specific interest to apartment owners and operators. These involve alcoholic beverages, unfit housing, and indecent behavior. Some municipalities (for example, South Bend, Fort Wayne, and Evansville) have specific ordinances to address these issues. Owners and operators must be aware of applicable local ordinances.
Owners and operators should be aware that a person who successfully defends a nuisance action is entitled to reasonable costs and attorney fees incurred in defending against the action. (Ind. Code § 32-30-6-7.) Additionally, localities may impose and collect a penalty for a nuisance or a violation of the ordinances or codes. However, localities must first give reasonable notice of the nuisance and a reasonable amount of time to cure the nuisance, which must be stated in the notice. The failure to timely cure permits the imposition of the penalty. (Ind. Code § 36-1-20-6.)
3. Alcoholic Beverages
Indiana statute states that a public nuisance is “[a] room, a house, a building . . . or place of any kind where . . . an alcoholic beverage of any type is sold, possessed, manufactured, bartered, or given away in violation of law or a rule of the [Indiana Alcohol and Tobacco] commission, [or where a] person is permitted to resort for the purpose of drinking an alcoholic beverage of any type in violation of law. . . .” (Ind. Code § 7.1-2-6-1(a)(1).) For the sale or use of alcohol to constitute a public nuisance, there must be a violation of the law. When the violation of the law involves a minor, the violation must be reckless, knowing, or intentional. (Ind. Code § 7.1-5-7-8.) If an owner or operator sponsors an event at which s/he serves alcohol, the event must comply with the applicable laws.
- Unfit Housing
If a health department determines an apartment is not fit for human habitation, the agency can declare the apartment a public nuisance. A “state department, local board of health, or county health officer may declare a dwelling that is unfit for human habitation a public nuisance.” (Ind. Code § 16-41-20-6.) (See Management Issues, Housing, Building And Zoning Ordinances And Codes.) A dwelling is unfit for human habitation when the dwelling is dangerous or detrimental to life or health because of any of the following:
- Want of repair;
- Defects in the drainage, plumbing, lighting, ventilation, or construction;
- Infection with contagious disease;
- 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.) The state department, local board of health, or county health officer may order any measures necessary to remedy the apartment’s unfit condition, whether it involves the plumbing, sewage, drainage, light, or ventilation of the dwelling.
- Indecent Behavior in Leased Property
An owner or operator may void a resident’s lease if the resident uses the property for acts that create an “indecent nuisance.” (Ind. Code § 32-30-7-25.) Use of the leased space for acts creating an indecent nuisance, without any act of the owner or operator, causes the right of possession to revert and vest in the owner or operator. The owner or operator may, without obtaining a formal order (process of law), make immediate entry upon the premises.
An indecent nuisance is a place where prostitution is conducted, permitted, continuing or existing, or a public place where deviate sexual conduct, sexual intercourse, or the fondling of the genitals of a person is conducted, permitted, continued or existing, and the personal property and contents used in conducting and maintaining the place for such purposes. (Ind. Code § 32-30-7-1.)
By law, “public place” means “any place to which the public is invited by a special or an implied invitation.” (Ind. Code § 32-30-7-5.) Indiana statute offers owners and operators the option of lease avoidance for indecent nuisances committed on leased premises, but defines some acts as nuisances only if they occur in public places. Indiana court decisions seem to give apartment owners and operators some remedy for indecent, exhibitionistic residents, in addition to remedies for prostitution.
For example, an Indiana court has held in a criminal case arising under the indecent nuisance statute that: “[a] private locked room in which two consenting adults engage in promiscuous conduct is not a ‘public place’ within the meaning of the Public Indecency statute.” The court noted that the room was not open to view by persons in any public place. A 1929 Indiana court decision found no public indecency where the consenting parties were in a private dwelling, no one else was present in the room, the witness was not in a public place at the time he saw the parties, and the room in which the consenting adults were located was not open to view by persons in a public place. The witness was actually an estranged husband who moved from one window of the house, after the parties closed the blinds, to one where the blinds were open.
From these cases, one could infer that a court could reasonably interpret the “special” or “implied invitation” language of the “public place” definition to include indecent acts people commit in a private place. Still, others witness from a common area. This common area is a location where it is reasonably foreseeable that a non-consenting viewer could witness the prohibited acts. That is, even if residents or their guests are alone in a private locked room consenting to engage in sexual conduct to the exclusion of anyone else present, but someone actually views the activities from a public place or a common area, then the law would entitle the owner or operator to exercise his/her statutory rights.