The Indiana Legislature has created a statutory obligation for owners and operators to deliver possession of leased premises in a “safe, clean and habitable” condition. (Ind. Code § 32-31-8-5.) Neither owners/operators nor residents may waive this requirement in the lease. (Ind. Code § 32-31-8-4.) In addition, the statute imposes an obligation of maintenance for electrical, plumbing and HVAC systems, as well as owner or operator-supplied appliances throughout the lease term. However, it does not prohibit charging the resident for such maintenance, especially for damages the resident causes. The statute allows a resident to sue the property owner (or operator) for actual losses sustained as a result of the failure of the owner or operator to deliver possession of the premises in a safe, clean and habitable condition. To enforce the owner or operator’s obligation, the resident (1) must give the owner or operator notice of noncompliance with the statute; (2) must allow the owner or operator a reasonable amount of time to make repairs or otherwise remedy the condition described in the resident’s notice; and (3) must not prevent the owner or operator from having access to the rental premises to make repairs or otherwise remedy the condition. (Ind. Code § 32-31-8-6.)
If the resident prevails in such an action, s/he may recover damages and attorney fees and may obtain injunctive relief, which is a court order directing the defendant (in this case, the owner or operator) to do or not do some specified act. However, the owner or operator’s liability, if any, runs only from the time that the owner or operator has actual knowledge of the subject condition and has been allowed a reasonable amount of time to make the repair. In other words, if a pipe leaks and damages a sofa, the damage to the sofa occurring before the owner or operator has notice of the leak and occurring during a reasonable period to complete the repair is not the owner or operator’s responsibility.
It is not just courts that provide remedies to residents for uninhabitable conditions; government agencies may also provide remedies on their own initiative. If a health department determines that an apartment is not fit for habitation, the agency can declare the apartment to be a public nuisance. (Ind. Code § 16-41-20-6) (See also Management Issues, Nuisances and Building Codes and Ordinances.) The law considers a dwelling to be unfit for habitation when the dwelling is dangerous or detrimental to the life or health of a resident because of:
- want of repair;
- defects in the drainage, plumbing, lighting, ventilation, or construction;
- infection with contagious disease; or
- existence on the premises of an unsanitary condition likely to cause sickness among occupants of the dwelling.
Either the state department, the local board of health, or the county health officer may order any number of measures necessary to remedy the apartment’s unacceptable condition.
Keywords: habitability standards, emergency repair