A duty to repair the premises may be imposed on both the owner or operator and the resident. Instances where each is bound to repair the premises are discussed below.

a.) Owners and Operators’ Duty to Repair

The owner or operator must deliver the apartment to the resident on the date prescribed in the lease in a safe, clean, and habitable condition and comply with all applicable health and housing codes. Additionally, the owner or operator must make all reasonable efforts to keep common areas clean and in good condition. Following the delivery of the apartment to the resident, the owner or operator must maintain the electrical systems, plumbing systems, sanitary systems, heating, ventilating, and air conditioning systems and elevators, if provided. If the owner or operator supplies any appliances, those must also be maintained in a safe condition throughout the lease term. (Ind. Code § 32-31-8-5.)

I. Obligations to Repair Arising from Express, Implied or Subsequent Agreements

Most leases contain provisions in which the owner or operator promises to repair the leased premises as needed due to ordinary wear and tear, and such provisions bind the owner or operator to make such repairs. Similarly, an owner or operator may bind himself/herself in a lease provision to compensate a resident who makes repairs. However, a binding covenant to repair could be inferred from an owner or operator’s admonition to a resident at the inception of an oral lease to “do nothing” to the rental premises and the owner or operator’s later specific promise to make a particular repair. Finally, a binding promise to repair also can be made after the inception of a lease. The agreement to repair a particular item by itself, such as a window, however, does not mean the owner or operator has assumed a duty to repair the entire apartment.

Implied in an express provision is that the owner or operator should have a reasonable time to effectuate needed repairs after becoming aware they are needed. However, if the owner or operator fails to repair within a reasonable time, the resident may choose to make repairs and recover the costs from the owner or operator. In emergency situations that threaten imminent and further damage to the premises or the resident’s personal property, the resident may acquire an affirmative duty to make repairs even though the owner or operator has agreed to make them.

II. Applicable Standard for Repairs

When a lease does not contain repair provisions, but the owner or operator agrees to repair particular items or a defective condition, s/he has a duty to use reasonable care in making the repairs and see that such repairs are not negligently made.

III. Duty to Disclose or Warn of Latent Defects

An owner or operator may be liable for personal injuries caused by latent or non-obvious defects known to him/her but unknown to the resident if the owner or operator fails to disclose that they exist. Therefore, an owner or operator has the duty to warn of or disclose latent (non-obvious) defects. The owner or operator must have actual knowledge of the defect; the law will not impose liability simply because the owner or operator reasonably should have known of the defect.

Also, owners and operators may have a duty to warn residents about employees using dangerous appliances or machinery. For example, one Indiana court held an owner liable for failing to warn residents of his employee’s use of an open-flame gas heater.

IV. Duty to Repair Imposed by Law

A statute or ordinance may impose a duty to repair upon the owner or operator. The unexcused or unjustified violation of such a duty constitutes negligence per se if the law is intended to protect the class of persons in which the complainant is included and against the risk of the type of harm that occurred due to its violation. Negligence per se, meaning negligence in itself, merely requires proof that the owner or operator violated a statute or ordinance and that the violation caused the resident damages.

Example of negligence per se: Residents sue an owner after being injured while escaping a burning second-floor apartment through windows that had to be broken because they did not work properly. The court cites a local ordinance requiring two unobstructed means of egress leading to safe and open space at ground level. Because the only means of egress were on fire, the court reasons that the owner violated the ordinance, which clearly had been enacted as a safety measure. (See Management Issues, Housing, Building And Zoning Ordinances And Codes for more detail about specific ordinances.)

V. Duty to Maintain Common Areas

Owners and operators have a duty to maintain, in a reasonably fit and safe condition, the common areas residents use and over which owners and operators retain control. Common areas generally include all areas other than leased premises, such as walkways, porches, parking lots, hallways, recreation areas, etc. The duty includes taking reasonable care to remove hazards created by ice and snow. It also includes, as an example, the duty to repair a wooden porch outside of an apartment. The owner or operator must provide the resident with a reasonably safe path to travel between the common areas of the property and the leased premises. The duty to maintain common areas extends to a resident’s business visitors and social guests because owners and operators owe the same duties to resident’s business visitors and social guests as s/he owes the resident. (See Management Issues, Premises Liability for a description of “business visitors” and “social guests.”) That is, the duty extends to members of the resident’s family, their employees, their invitees, their guests, and any others on the land in the right of the resident for any legitimate purpose because their presence is a part of the normal use of the premises for which the lessor holds them open.

VI. Duty to Passing Motorists

Owners and operators have a duty to passing motorists with regard to trees and other “natural conditions.” In an urban area, owners and operators have a duty to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway. Courts will look to land use and traffic patterns as factors in determining whether a location is urban. Reasonable care usually means periodic inspections for natural dangers to ensure the premises do not endanger those lawfully on the highway.

Example of a violation of this duty: A motorist sues the owner for personal injuries from a fallen tree. The unreasonable risk was created by an oak tree, which was160 to 190 years old, four feet in diameter, and 20 feet from the road. The tree had been dead for three to five years, had shown signs of decay for eight to twelve years, and had large limbs, which previously had fallen onto the road.

b.) Lessee’s Duty or Right to Repair

Except as otherwise provided by agreement or statute, the resident, not the owner or operator, bears the responsibility of making repairs. Moreover, unless a lease provision or special agreement exists under which the owner or operator has agreed to pay for repairs, a resident cannot make repairs at the owner or operator’s expense. Additionally, the owner or operator is not liable to a resident for repairs made by the resident.

Ordinarily, the measure of damages where an owner or operator fails to make promised repairs is the difference between the rental value with the repairs and the rental value without them. However, where the repair cost is slight compared to the decrease in value of the premises, the amount recoverable by the resident is limited to the repair cost. A resident also may recover consequential damages for the breach of a covenant to repair, limited to those damages occurring within a reasonable amount of time after the breach occurred, notice of the breach was given and a reasonable opportunity to cure such a breach has passed.

The resident is not obligated to repair any damage caused by ordinary wear and tear, but only damage caused by the resident’s willful conduct or negligence. Further, a resident must bear the expense of alterations or improvements in rental property pursuant to a covenant to repair when they constitute mere repairs or replacements. The Indiana Court of Appeals has ruled that a clause in a lease obligating the owner to restore the structure if damaged or destroyed required the owner to replace the roof that had deteriorated to the point that patching was ineffective even though the resident had contracted to repair the roof.