Republican state lawmakers even passed a law prohibiting local governments from regulating certain aspects of landlord-tenant relationships after Indianapolis tried to institute a city ordinance to provide renters with more rights.
An IndyStar investigation into the eviction crisis after the COVID-19 eviction moratorium ended showed how many tenants were being evicted from sub-standard or downright dangerous properties with little recourse for fixing major housing violations that threatened their health and safety.
“We can see by Indiana’s really high eviction rates and even some of the the high numbers of eviction filings during COVID,” Andrew Bradley, the policy director of non-profit group Prosperity Indiana, said, “that many housing providers and landlords out there are good actors and tried to do the right thing.
“But unfortunately, our policy landscape is set up in a way that incentivizes some of the bad actors out there to continue to extract rent from low-income and vulnerable households, and not follow through on habitability.”
Here are four rights renters have in other states that they do not have in Indiana:
Right to withhold rent to force repairs
Only five states, including Indiana, have no statute allowing a tenant to withhold rent until necessary housing repairs are made. Nor can renters pay for the repairs themselves and deduct the cost of repairs from the next rent payment.
“We’re definitely out of step with the vast majority of states in providing some sort of teeth to a mechanism to make sure that tenants have a safe and habitable place to live,” Bradley said.
In Indiana, tenants have few, if any, legal defenses for not paying rent. In many other states, including Michigan, Kentucky, and Minnesota, tenants have a right to withhold rent if a landlord fails to address major housing violations. No such right exists in Indiana.
In some states, such as Michigan, where the right to withhold rent exists if a rental property has poor conditions that violate health and safety standards, tenants pay rent into an escrow account that the landlord cannot make withdrawals from until the problem is fixed.
Right to ‘repair and deduct’
Only in Indiana and 11 other states are tenants not allowed to pay for repairs themselves if a landlord refuses or fails to make them and deduct the cost of the repairs from their next rent payment.
That said, under Indiana law, once a tenant gives a landlord notice of the landlord’s need to repair a problem, the landlord has “a reasonable amount of time to remedy” the situation. If the landlord doesn’t act, the tenant can sue for enforcement and might obtain actual and consequential damages, as well as attorneys’ fees and court costs.
“Forcing it to go through a court system and forcing tenants to either hire an attorney or you know, try to go up against another party who is able to do that, is a high barrier,” Bradley said. “It’s a lot of hurdles in front of something as simple as just taking care of the habitability problem.”
Right to a defense attorney in eviction cases
In Indiana, the vast majority of tenants in eviction court have to represent themselves, while the vast majority of landlords are represented by seasoned attorneys.
The highest court of the state has denounced the situation. Indiana Supreme Court Chief Justice Loretta H. Rush said in her 2020 State of the Judiciary address that on one morning she spent in a small claims court, not one of the tenants in the 275 eviction cases had legal representation.
“They all faced the judge and opposing lawyer alone,” she said. “That is not the model of a legal system where the poor, disadvantaged, and vulnerable are protected.”
Indiana Legal Services Housing Law Center director Brandon Beeler said that he believes that many tenants get evicted because navigating the court system is too overwhelming. He added that he has seen many tenants unable to defend themselves adequately in court when pitted against experienced attorneys who only speak in complex legal terms and refuse to negotiate with them.
The problem is not unique to Indiana. Nationwide, 90% of landlords have lawyers while 90% of tenants do not, according to a 2015 University of Wisconsin – Madison Institute for Research on Poverty paper.
But some cities, such as New York City, San Francisco and Newark, New Jersey have enacted laws that guarantee legal representation for low-income tenants who are facing eviction.
And in Connecticut, Maryland, and Washington, tenants have a categorical right to counsel in eviction cases.
In the 2021 legislative session, Indiana Senate Democrats J.D Ford and Fady Qaddoura carried a bill that would establish a right to counsel for tenants in Marion County small claims court eviction cases. But the bill was never heard in committee.
Eviction expungement or sealing
Indiana court records are public, which means that prospective property managers can see whether a potential tenant has any prior evictions or eviction filings against them.
Most do not differentiate between whether a case ended in an actual eviction.
“The act of filing an eviction already harms the tenant,” Beeler said.
As such, many advocates have supported a push for legislation that allows tenants to expunge eviction records. Similar laws already exist in states such as Minnesota and Nevada.
A bill in last year’s legislative session, HB 1219, did just that. Furthermore, it received strong bipartisan support. However, it never got a hearing.
Bradley said he is hopeful that there will be legislation on eviction expungement proposed in the upcoming session.
Contact IndyStar reporter Ko Lyn Cheang at [email protected] or 317-903-7071. Follow her on Twitter: @kolyn_cheang.