Nearly every time we speak to new Landlords, the subject of evictions comes up.
It’s a hot button topic.
A topic that creates anxiety.
And an issue that pushes many Landlords into hiring a Property Manager.
For this week’s blog, I thought I would lay out exactly what’s required to file eviction in Central Indiana, along with some helpful tips if you ever have to file.
WHEN CAN I FILE FOR EVICTION?
You can file for an eviction whenever the Tenant breaches the Lease Agreement. The most common reason Landlords file for eviction is for non-payment of rent.
When you can file eviction really depends on what your Lease says. Most Leases spell out when rent is due and when it’s considered late.
Technically, if the Tenant doesn’t pay by the due date, you can file. Unless your Lease specifically provides for certain notices in the event of default, you need not provide any “please pay” letters before filing.
This is just one of many reasons why a strong lease is vital to a successful rental property experience.
WHEN SHOULD I FILE FOR EVICTION?
You should file for an eviction when you feel like you’ve exhausted every other alternative.
For non-payment of rent, you should establish a good collection process that makes multiple attempts to contact and collect from the Tenant. Whatever process you establish, stick to it.
Remember, no good deed goes unpunished.
Once you’ve completed those steps, and you still haven’t received rent, then file. The longer you wait, the more money you will be owed.
DO I HAVE TO SERVE A 10-DAY NOTICE?
Generally, no. If you’ve done Google searches on this topic, you’ll see that many sites indicate a 10-day notice is required in Indiana. This 10-day notice is only required if you don’t have a Lease in place that specifies when rent is due.
Practically speaking, I think a formal Pay or Quit notice is an effective collection tool. However, in most cases, it’s not required.
HOW DO I FILE FOR EVICTION?
Our suggestion is to hire a Lawyer. Yes, you will pay more for a Lawyer to file, but it will be done correctly and save you a lot of time and trouble if you aren’t an expert.
If you choose to file, you must obtain the property paperwork (Proof of Claim) from the Township where you property is located and submit the claim.
How Much Does it Cost?
If you file yourself, expect to pay a little more than $100 in filing fees. Every Township is different, but $100 is a good rule of thumb.
HOW LONG DOES AN EVICTION TAKE?
Generally, when you file eviction, expect a court date within 3 weeks or so. Again, time may vary depending on the time of month you file and the specific Township in which you file. A few things can happen at this point:
- Tenant pays in full. Collection by eviction works. A good percentage of Tenants, once an eviction if filed on them, will pay in full. In that case, you can accept the payment and dismiss the case. Courts now interpret acceptance of any payment as a payment agreement and will summarily dismiss your case. Only accept payment in full.
- Tenant vacates. This is another common outcome. Instead of waiting around for the inevitable, the Tenant will go ahead and vacate the property. In this case, you can simply convert your case into a damages hearing.
- Tenant fails to appear. In this case, while the Tenant hasn’t yet vacated, they also failed to appear in court. Again, very common. If this happens, the judge will award a default judgment order of possession and set a date for the Tenant to vacate, or the date you are to receive possession. Most judges award possession within 5-7 days of the initial hearing.
- Tenant appears. In some cases, the Tenant will appear. In Indiana, at this stage of the eviction, it’s simply an admit or deny scenario. When the Tenant admits that rent is passed due, or you prove that rent is passed due, the judge will award you possession – again usually within 5-7 days. If the Tenant pleads a hardship – sickness, lack of transportation, etc. – the judge may award additional time.
WHAT IF THE TENANT FAILS TO VACATE, IN SPITE OF A COURT ORDER?
This happens occasionally, but it’s fairly rare. If the Tenant blows off the court order and refuses to leave, you will have to conduct a forced move. This requires calling the constable to schedule the forced move, along with coordinating a moving service and a locksmith.
At the scheduled time, the police will arrive and escort the Tenant out of the property. At that point, the movers move the possessions out and place in storage. The locksmith, obviously, will change locks.
It’s not a pretty scenario but, again, it’s pretty uncommon.
You do not get to keep the personal property as “security” for payment of the back rent. Instead, the moving company acquires a “warehouseman’s lien” on the personal property removed to help insure payment by the Tenant of the moving and storage costs.
HOW DO I COLLECT WHAT THE TENANT OWES ME?
Once possession is awarded, you will receive a date for a “damages hearing.” This hearing is usually scheduled for several weeks down the road, which should allow you time to re-rent the home and determine exactly what your damages are. At this hearing, you will present your evidence, the Tenant, if they show up, will present theirs and, ultimately, the judge will render a judgment.
Once a judgment is rendered and, assuming you cannot work out a payment arrangement with the Tenant, we suggest sending the judgment to a collection attorney to collect what is owed to you.
TIPS FOR FILING EVICTION
Below are a few tips to consider during the eviction process:
Do Not Accept Partial Payments
Consider this scenario: May rent, in the amount of $1,200, comes due. Tenant fails to pay by due date. When you contact the Tenant, he informs you that he will bring you $500 today and will pay the balance this coming Friday.
Do not accept the payment until payment in full is made. Doing so, even before the eviction is filed, could cause a judge to rule against you at the possession hearing. Even more important: accepting any payment, no matter the amount, after the claim is filed, will essentially negate your claim.
Consider Avoiding Small Claims Court
Frankly, Small Claims Courts in Central Indiana can be difficult. They are all a little different. Recently, we have started to file evictions in Superior Court. The filing fee is a little more, but the process has been much more streamlined and, better yet, there’s no cap on the amount of damages you can seek.
Filing Under An LLC Or Business Name
If you operate under an LLC or other business entity, you are limited to $1,500 in damages if you do not use an Attorney to file. In almost every case, your final damages will exceed $1,500, so plan accordingly.
Do Not Take Matters Into Your Own Hands
Don’t pull any stunts in order to get the Tenant to vacate early, such as changing the locks or turning off utilities. In Indiana, a Landlord or Property Manager cannot turn off utilities or lock a Tenant out unless the property has been abandoned. The Tenant can actually sue the Landlord for damages if this occurs.
If you are a Landlord and need eviction help, we recommend calling Steven Earhart, with the law firm of Thrasher Buschmann and Voelkel. Steven is an Attorney we use for a variety of real estate needs. You can reach Steven at 317-686-4773 or at [email protected].