Andrew Janutolo, one of our legal partners, has joined us today to speak about the Indiana eviction process. He’s with the Indianapolis law firm of Goodin & Abernathy, and he’s going to explain how to evict a tenant, whether the tenant is willing to cooperate or refusing to leave.
Eviction Process Overview
In Indiana, the only way to have someone leave your property is to file for an eviction. Otherwise, the tenant has the right to be on the premises, and your remedies are limited. First, you need a material breach of the lease agreement. Typically, that’s nonpayment of rent, but it could be other things as well. After a material breach of the lease, you have options.
First, you can go to the tenant and try to work out an agreement to fix that breach. That might be letting them catch up on their rent, or coming up with some other agreement that continues the relationship. But sometimes, that relationship cannot be saved.
10 Day Notice
By law, the first thing that needs to happen is that you provide a 10 Day Notice Letter to the tenant. This 10 Day Notice Letter tells them what the breach is and explains that they have 10 days to vacate or (in the case of nonpayment) pay rent in full. If they don’t pay in full, you can then file for eviction after the 10 days. Anyone over 18 years of age can serve the 10 Day Notice. Usually, the landlord or the Indianapolis property management company will serve that notice.
After the 10 days, you need to go to the township court, and in Indianapolis that’s Marion County. These are small claims, so everything is done through township courts, and you’ll file the eviction there. You’ll be required to pay a filing fee, and typically it’s around $100. Once you file that, a date is set for an eviction hearing. That will be the date the tenant and landlord or the landlord’s representative appear in front of the judge for the eviction. When you file for eviction in court, the Sheriff serves your tenants with a Summons and a Notice of Claim. This explains when the court date will be, so the tenant knows there’s an eviction underway. They can choose to vacate or they will fight the eviction.
This process goes a lot smoother when you’re communicating with your tenant and allowing them to discuss options with you. Be flexible about their move out date, because in the long run you’ll probably save money. The tenant can ask to move out by a certain date. It’s fine to negotiate, just keep the court date on the books, because tenants could lead you on but not actually move out when they say they will. If a tenant voluntarily vacates and removes all his or her possessions, then in legal terms the premises has been abandoned, and the landlord or property manager can go into the property. You can change the locks, document any damage that was left behind, make repairs, and relist the property for rent. Keep in mind that you’ll have to then convert the eviction hearing to a damage hearing or get it canceled in the courts.
Evictions Involving the Courts
Usually, the full process is needed when the tenant refuses to acknowledge the eviction proceeding. When this happens, which is fairly common, the tenants typically don’t have the money to pay the rent, but they aren’t going to leave until they’re legally required to. So you’ll appear at the eviction hearing yourself or with counsel and you’ll tell the judge some basic information. Explain that you have a lease, provide a copy of it, explain that the rent has not been paid or that there has been some other material breach in the lease agreement, and you request possession of the property. Often, the tenant doesn’t even show up at the court date. You’ll get a date for the tenant to vacate, and then you have to wait until that date arrives.
If the tenant is present, there will be a negotiation between the tenant, landlord, and the judge to decide the date that the tenant must leave. The judge will set a date and time, and typically that’s within a few days unless there’s a health issue or some strange circumstance. It’s never longer than a week or two. The tenant still has rights to the property until that eviction date. Once they leave, you can go and change the locks and prepare the property for the next tenant. Occasionally, you will have tenants who refuse to leave. At that point, you need to go back to court and ask for a Writ for the constable. The judge will issue a Writ which is good for 30 days. So at any time in those 30 days you can have the constable go to the property and forcibly remove the tenant and the tenant’s possessions, then turn the premises over to the landlord or property manager.
There are several costs associated with an eviction, starting with the $100 filing fee. Then, if you need an attorney to facilitate the process, which is legally required if your rental property is listed under a corporation or an LLC, and the value is more than $1,500, you’ll have to pay attorney fees. If you are a homeowner with the property in your own name, you can do this yourself. The attorney fees in this area generally go between $175 to $225 an hour, depending on the attorney and experience. You can also arrange for a flat rate in many cases. When your attorney completes paperwork and filings, you can usually pay between $100 and $200 for those services. That cost can be recovered in the damages hearing only if the lease agreement provides that attorney fees are included as damages.
After the eviction is complete, you will have a damages hearing set 30 to 45 days after the property has been vacated. This allows the landlord or the property manager time to assess the damages and evaluate what goes beyond wear and tear. Whatever the security deposit doesn’t cover is added up, and you’ll present evidence to a judge and attempt to get a judgement.
This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. There is no attorney client relationship between you and the blog publisher or participants. The blog should not be used Indiana Eviction Process and Laws from an Indianapolis Attorneyas a substitute for competent legal advice from a licensed professional attorney in your state.
If you have any questions about the Indiana eviction process or anything pertaining to property management in Indianapolis, please contact us at ES Property Management.