Indiana eviction and quiet enjoyment

12 Replies

Hi there.  I have started the eviction process on my non-paying tenants.  They have received their 10 day notice, which ends June 2.  I feel sure that they will not vacate the property, but I plan to have repairs and updates done to sell it, while waiting for the court systems eviction process.  

My question is, do the non-paying/evicted tenants have the right of "quiet enjoyment"?-----The updates I am planning are power washing/new windows/landscaping.

Thanks for anyone who can answer this for me.  This home is in Indiana.

Thanks!

Cheryl

If the changes involve the apartment the soon to be evicted tenant is in, I'd wait till I have them out. Though the landscaping and power washing, unless you plan on doing it in the middle of the night or being unreasonably loud, I don't see how those might interfere with what is considered quit enjoyment. 

Keep in mind that if you are evicting them, you are probably not on good terms with them. So you go over on a Saturday and power wash the house disturbing Nascar viewing, are you doing anything wrong- no. However, if they're already grumpy, is it worth taking a chance and having them damage your property more in retaliation? 

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@Cheryl Naegel In Indiana there is no 10 day notice period.. You can file eviction the day they are late.

Also, I wouldn't do any work on it until they vacate. If they see you power washing the property they are going to dirty it up out of spite... Ask me how I know....

@Cheryl Naegel I totally agree with Lee. When I was managing my properties once it hit the 5th day of the month (or was late), I'd send the tenant a notice and file for eviction with the county later that day or within the next few days of it. If for some reason they pay and you decide to let them stay, you can always cancel the eviction, but doing that will just speed up the time till you get the place back. 

I also agree, you're better off waiting till their out to do the work. someone who is being evicted may see it more as your fault their being evicted, rather than the outcome of their own bad decisions or hard luck, and try to do something to get back at you. 

Our rents are due on 1st. On the 2nd we send a note that tells them we know things are tight, but they need to beg, borrow or steal, to get rent.. We tell them they have 3 days to tell us if they intend to pay or leave or we will file eviction.  Generally they call us and say "I can pay on the 8th" and then if we say that's okay we leave late fees applying($5 a day), and we tell them if they don't pay on the 8th, then we will file eviction and no going back from there.

Well,---Thanks SO much for the advice!!--Though, I was told by the Shelby Co. courthouse that there was a 10 day.---So much for them!   Anyway, I have since found out that the tenants have been evicted before, so I'm sure they know the routine.  

So, after the eviction, I plan on taking them to court for all the back rent, and anything they have destroyed.  Their wages have been garnisheed before also.  If they do anything to the house that I update, they will have to pay for that also.  This will be my 3rd small claims charge ----I keep pictures and receipts/paperwork---so I have always been awarded what's due me. 

But, what I really needed to know was ---do they indeed have a right to "quiet enjoyment" as they are being evicted? --You see, I live 120 miles away from the rental.  I work in the school system and will soon  be free for the summer.  This is the only time I have to take care of things that need to be done.  So, can they call the police on me if I am there working and they just don't want me there making noise?   You see, he works nights----so, can I just be like "sorry about your luck pal"? 

I have been so good to these people and they have taken such advantage of me.  I have not had one renter in the past 11 years pay rent as agreed.  I have bent over backwards for these people-----A young family that I felt sorry for.  ----I only clear $100.00 a month on this place and it is nothing but a headache.  I am not a landlord by choice---but only necessity.  I lived there at one time and my ex-husband talked me in to a interest only loan.  We then divorced, and he took everything I had--and then some.  Was only able to pay the interest for a couple of years and the amount kept rising every month---but I had to survive and was determined not to file bankruptcy-----I REFUSED to do that! ----So now, I think that with a few updates, I will be able to sell it at a good price and recoup a little extra.    

Anyway, if anyone has an answer for the "quiet enjoyment" question, I would be so appreciative!----And thank you for letting me vent---although, I didn't really mean to.

THANKS!!!!

Cheryl

Originally posted by @Cheryl Naegel :

Well,---Thanks SO much for the advice!!--Though, I was told by the Shelby Co. courthouse that there was a 10 day.---So much for them!   Anyway, I have since found out that the tenants have been evicted before, so I'm sure they know the routine.  

So, after the eviction, I plan on taking them to court for all the back rent, and anything they have destroyed.  Their wages have been garnisheed before also.  If they do anything to the house that I update, they will have to pay for that also.  This will be my 3rd small claims charge ----I keep pictures and receipts/paperwork---so I have always been awarded what's due me. 

But, what I really needed to know was ---do they indeed have a right to "quiet enjoyment" as they are being evicted? --You see, I live 120 miles away from the rental.  I work in the school system and will soon  be free for the summer.  This is the only time I have to take care of things that need to be done.  So, can they call the police on me if I am there working and they just don't want me there making noise?   You see, he works nights----so, can I just be like "sorry about your luck pal"? 

I have been so good to these people and they have taken such advantage of me.  I have not had one renter in the past 11 years pay rent as agreed.  I have bent over backwards for these people-----A young family that I felt sorry for.  ----I only clear $100.00 a month on this place and it is nothing but a headache.  I am not a landlord by choice---but only necessity.  I lived there at one time and my ex-husband talked me in to a interest only loan.  We then divorced, and he took everything I had--and then some.  Was only able to pay the interest for a couple of years and the amount kept rising every month---but I had to survive and was determined not to file bankruptcy-----I REFUSED to do that! ----So now, I think that with a few updates, I will be able to sell it at a good price and recoup a little extra.    

Anyway, if anyone has an answer for the "quiet enjoyment" question, I would be so appreciative!----And thank you for letting me vent---although, I didn't really mean to.

THANKS!!!!

Cheryl

 Hi Cheryl,

First of all, disturbing someone's quiet enjoyment is not a criminal offense.  So, the cops aren't going to do anything.  They'll say it's a civil matter, which it is.  And if they don't know that, then you can educate them - in a nice way.

If you need to do this while they're still in the unit, give them proper notice that you will be coming onto the property to do power washing.  Then go do it.

Quiet enjoyment, however, is not about noise.  It's about a landlord unreasonably interfering with a tenant's ability to enjoy the unit in comfort.  But, doing power washing that might irritate them for a few days doesn't qualify.  An example of a breach of the covenant of quiet enjoyment, would be a landlord who shows up every day to prune the rose bushes in the back yard.  It's more of a constant interference - not a one time project that takes a few days.

The only other argument I can think of that they might try to use, is saying that you were retaliating against them.  But, that has to be about them exercising a legal right.  Not paying rent and getting evicted for nonpayment of rent, doesn't qualify.  And again, that would be a civil matter, not criminal.

So, I'd give them proper notice of entry onto the property to power wash the unit.  Then, I'd ignore any response saying it's not going to be convenient, yadda yadda, because you don't need permission to come onto the property to do maintenance if you've given proper notice (unless there's some weird law there that says you can't).  And if they come out screaming, I'd just tell them to sue you and keep spraying.

In fact, even if there is some law that says you can't power wash a unit in Shelby County while a tenant is inside, I'd spray anyway and tell them to sue you.  

As far as not renting the unit anymore, keep in mind that your problem with this tenant is that they were not properly screened.  You can learn to do good tenant screening.  

Originally posted by @Cheryl Naegel :

Well,---Thanks SO much for the advice!!--Though, I was told by the Shelby Co. courthouse that there was a 10 day.---So much for them!   Anyway, I have since found out that the tenants have been evicted before, so I'm sure they know the routine.  

So, after the eviction, I plan on taking them to court for all the back rent, and anything they have destroyed.  Their wages have been garnisheed before also.  If they do anything to the house that I update, they will have to pay for that also.  This will be my 3rd small claims charge ----I keep pictures and receipts/paperwork---so I have always been awarded what's due me. 

But, what I really needed to know was ---do they indeed have a right to "quiet enjoyment" as they are being evicted? --You see, I live 120 miles away from the rental.  I work in the school system and will soon  be free for the summer.  This is the only time I have to take care of things that need to be done.  So, can they call the police on me if I am there working and they just don't want me there making noise?   You see, he works nights----so, can I just be like "sorry about your luck pal"? 

I have been so good to these people and they have taken such advantage of me.  I have not had one renter in the past 11 years pay rent as agreed.  I have bent over backwards for these people-----A young family that I felt sorry for.  ----I only clear $100.00 a month on this place and it is nothing but a headache.  I am not a landlord by choice---but only necessity.  I lived there at one time and my ex-husband talked me in to a interest only loan.  We then divorced, and he took everything I had--and then some.  Was only able to pay the interest for a couple of years and the amount kept rising every month---but I had to survive and was determined not to file bankruptcy-----I REFUSED to do that! ----So now, I think that with a few updates, I will be able to sell it at a good price and recoup a little extra.    

Anyway, if anyone has an answer for the "quiet enjoyment" question, I would be so appreciative!----And thank you for letting me vent---although, I didn't really mean to.

THANKS!!!!

Cheryl

 Hi Cheryl: I don't think that the "quiet enjoyment" issue is relevant at this time. I do understand that you have only a certain period of time to work on the property but as you're evicting them, I would not go near the place until they are out. Any time and money you spend improving it while they are still there could very well be a lost cause if they decide to get back at you. Just try your best to get them out as soon as possible and then take it from there.

As for the Shelby Co. Courthouse giving you bad information, I'm sure the entire landlord and tenants' act is online; whenever I have a choice between some nitwit in a cubicle quoting me the law, or going to the internet, I'd choose the latter any day. If you do decide to continue being a landlord, it sounds as though you could use some advice about how to screen tenants, but your plan to sell the property is probably a better idea; it's hard enough to manage property that's close to home, never mind one that's so far away.

Best of luck with it and good for you, coming to BP for advice...most of us have been in your shoes and we're all rooting for you!

Since nobody seemed to directly answer your quiet enjoyment question, I thought I would.

They have a leasehold estate.  In Indiana at least, tenants have an implied covenant of quiet enjoyment – landlord will not interfere with tenant's quiet enjoyment

This can be breached in three ways.

  1. Total eviction of the tenant through direct physical invasion by landlord.  (This is what you were referring to above.  I believe you can simply get around this by posting a 24-hour notice that you're going to be doing some work, if you really, really need to get in there before they're evicted.  Check the landlord-tenant laws.  This is a pretty unique situation.  Check out http://www.nolo.com/legal-encyclopedia/overview-landlord-tenant-laws-indiana.html for more than you ever want to know.  Then, for specific reasons on entering a property, read http://www.nolo.com/legal-encyclopedia/free-books/renters-rights-book/chapter8-2.html.  Then, go to the Indiana statute and read Indiana 32-31-5-6(e), which you can find under http://codes.lp.findlaw.com/incode/32/31/5/32-31-5-6).
  2. Partial eviction – when the landlord keeps the tenant off part of the leased property (even locking a single room). Tenant can stay on the remaining property without paying any rent.
  3. Partial eviction by someone other than landlord – where this occurs, rent is apportioned. If landlord claims to lease tenant an area of 1000 square meters but 400 square meters of the area belongs to another person, tenant only has to pay 60% of the rent.

I hope this answers your question.

Cheryl,

Indiana law  specifically provides that tenants have any and all rights, quiet and enjoyment and otherwise, until the date so ordered by the court as part of eviction proceeding whereby the tenants are to vacate the premises and return possession of landlord. 

I strongly advise not making any repairs until the tenants have vacated, as damages may occur. You may try and offer "cash for keys" initiative to motivate them to vacate sooner. 

Regardless you must give them "reasonable" notice, which the standard is 24-hours, if you need to access the property for maintenance or what a "reasonable person" may deem to be an invasion of the quiet enjoyment right. 

I'd agree with the rest in that it's best to just wait until they are out.  Once you do get them out and are vetting new tenants to move in, be sure to check their history really good.  I always recommend checking credit, criminal, and eviction.  Plus ordering an address history report to match up to their stated past addresses and verify those references.  It's quite easy for landlords to order all these reports these days.

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