Indiana law prohibits owners and operators from retaliating against a resident because of the resident’s participation in one or more protected activities. State law expressly considers the following to be protected activities.
- Complaining to a government entity about a violation of building or housing code that affects health and/or safety and is occurring on the rental property (i.e. complaining about the condition of the property);
- Organizing or joining a tenant’s organization;
- Testifying in a court or administrative hearing against the owner or operator;
- Bringing an action (lawsuit or complaint to a governmental entity) against the owner or operator for either failing to fulfill his/her obligation under the rental agreement (IC 32-31-8) or failing to comply with statutory requirements as a property owner.
- Complaining in writing to an owner or operator about:
a. The owner or operators’ interference with access, possession, or essential services of the rental unit (IC 32-31-5-6), or;
b. The owner or operator’s failure to maintain the unit in accordance with IC 32-31-8-5. This includes the owner or operators responsibility to:- Maintain appliances, heating systems, plumbing systems, and electrical systems;
- Make every reasonable effort to keep common grounds clean and proper;
- Comply with all necessary health and housing codes, and;
- Deliver the property to the tenant in a safe, clean, and habitable condition.
A retaliatory act is an action taken by the owner or operator in response to a resident’s participation in one or more of the above protected activities. Examples of retaliatory acts include:
- Increasing the tenant’s rent;
- Decreasing, terminating, or interfering with services provided to the tenant;
- Bringing (or threatening to bring) legal action to obtain possession of the rental property;
- Bringing (or threatening to bring) legal action to either evict or otherwise terminate the lease before its expiration.
Exceptions for Property Owners
State protections for residents do come with some exceptions that protect property owners and their rights. In total, at least ten exceptions exist under Indiana law, striking a balance between protecting residents and the rights of property owners to operate their business.
Under Indiana law, regardless of any protected activity engaged in by a resident, a property owner:
- Has the right not to renew a rental agreement at the conclusion of its term.
- Is not prohibited from increasing a resident’s rent, if that rent increase is at the conclusion of the rental term or if rent increases are included as part of the rental agreement.
- Has the right to decrease or terminate services provided to the rental premises if it affects all other tenants equally.
a. For example, if the swimming pool has a plumbing issue and is temporarily out of service, all tenants in an apartment community are affected. Thus, this is not retaliation. However, if a resident engaging in protected activity were specifically prohibited from using the swimming pool, this action would be unlawful and considered a retaliatory act.
Property owners are also permitted to file for possession in the following situations, even if the resident has engaged in protected acts:
- If the resident, an occupant, or their guest’s intentional acts, negligent acts, or a lack of reasonable care causes damage to the rental premises.
- If the resident owes rent and has failed to reconcile the default within the time provided in the rental agreement or state statute, which provides for ten days to cure the default unless otherwise agreed by the parties.
- If compliance with an applicable building code or housing code requires alteration, remodeling, or demolition of the rental premises, such that the tenant would be effectively deprived of the use of the rental premises.
- If the resident is not in compliance with a provision of the rental agreement and the noncompliance materially affects the health or safety of other tenants.
a. For example, the resident is hoarding garbage, causing an infestation to the dwelling and surrounding dwellings. - The tenant’s rental agreement is for a definite term, and the tenant holds over after the expiration of the term.
- The property owner’s action for possession is made in good faith and before the tenant engages in protected activity.
- The property owner seeks in good faith to take possession of the rental premises at the end of the term of the tenant’s rental agreement in one of three ways:
a. in order to use the dwelling as the property owner’s own home;
b. the alteration, remodeling, or demolition of the rental assistance would require complete displacement of the tenant’s household; or
c. terminate for at least six months the use of the property as a rental unit.
A property owner who engages in one of these exceptions, despite a resident exercising a protected activity, has a defense against any claim of retaliatory acts by a landlord. However, a property owner who engages in a retaliatory act is subject to punishment under the law. A resident’s claim for retaliatory acts by a landlord will most likely occur during an eviction proceeding, either as a defense or a counterclaim to a lawsuit seeking possession. Additionally, a resident could bring a private cause of action against the property owner under the statute.
If a property owner is found to have retaliated against the resident, a court could allow the resident to remain in the rental unit until the expiration of the terms of their lease, unless an exception applies or the resident violates their lease. Additionally, the court could impose damages on a property owner engaging in a retaliatory act. If a resident has engaged in known protected activity, property owners should closely coordinate any action of possession with their legal counsel to ensure compliance with this law. As of 2021, any previously passed local ordinances concerning retaliatory acts are void and no longer enforceable. Consequently, owners and operators need only concern themselves with the state law on retaliatory acts and not outdated local regulations on the matter.