A.)  Owners and Operators’ Right to Exclude

As the result of a case ultimately decided by the Indiana Court of Appeals in 2005, owners and operators should feel confident that they have the right to exclude solicitors and trespassers from their premises by signage or, if solicitors or trespassers disobey signs, by ejectment. The Court determined that because the communities have the duty to care for the common areas and keep them safe for use by residents and their invited guests, the communities have sufficient “exclusive control” of them to exclude uninvited persons and set policies about entry upon them by non-residents.

If someone is on the property without permission, such as an uninvited solicitor or canvasser, the owner or operator should immediately instruct the person to leave. If the person does not leave promptly and courteously, law enforcement should be contacted and asked to assist. If the trespasser appears to be dangerous, threatening, intoxicated, or disoriented, do not approach him/her, but call law enforcement officials immediately and await their arrival. Always avoid situations that could escalate into verbal or physical altercations.

An exception to these rules exists in state statute for political candidates or poll takers for a political party to enter an apartment community or visit a neighborhood during reasonable hours to poll or campaign to residents. Ind. Code § 3-6-11-5. This right also includes campaigns for political questions, like school referendums. Canvassing only for the purpose of trying to register voters is not explicitly permitted in statute. However, if a poll taker or political candidate, while visiting a resident, also registered voters, that is permissible under the statute. Given the intricacies of the statutes on canvassing, property owners must be careful in dealing with political speech (campaigning) and should work closely with their property’s attorney to ensure policies and any posted signage are written in compliance with state laws and any applicable and enforceable local ordinances. 

If an owner or operator becomes aware that someone has trespassed on the apartment community, it is helpful to write a letter to the trespasser advising that s/he does not have consent to enter the property and that law enforcement will be called to assist if a trespass occurs again.

B.)  Owners and Operators’ Statutory Immunity

The Indiana Legislature has provided owners and operators (and residents) with immunity from liability to persons injured while upon the real property of apartment communities to access and/or use certain recreational facilities. The immunity applies when an individual goes upon the premises (including caves) of an owner or operator for purposes of swimming, camping, hiking, sightseeing, or accessing or departing a trail or a greenway (or another similar area), whether the individual does or does not have the owner or operator’s consent. (Ind. Code § 14-22-10-2.)

For an owner or operator to qualify for the immunity, one of the two following scenarios must apply: (1) the individual must have paid no fee or other charge for the owner or operator’s permission to go upon the land, or (2) the payment of any fee or other charge was made by an agency of the state or the federal government, either directly or indirectly, on the individual’s behalf. Under this statutory immunity, the owner or operator does not assume responsibility or incur liability for any injury to an individual or property caused by an act of other persons using the premises. (Ind. Code § 14-22-10-2.)

It should be noted that this immunity does not apply if an owner or operator’s (or resident’s) malicious or illegal act causes injury to a person or his/her property. Moreover, this statutory immunity does not affect existing case law on the liability of owners and operators concerning business invitees, invited guests, or the attractive nuisance doctrine. These issues are discussed in Management Issues, Premises Liability, and Attractive Nuisance. (Ind. Code § 14-22-10-2.)

Keywords: salesman, salesperson