Both Landlords and Tenants alike seem to have different ideas of how long a landlord has to save a former tenant's personal belongings after an eviction, or abandoning the real property while leaving personal belongings behind. The most common misconception is that the landlord has to keep the tenant's property for thirty (30) days. Others believe that once the landlord takes possession of the real property, the landlord can dispose of the belongings immediately.
When and for How Long Must Personal Property Be Held
These beliefs are both wrong. In Indiana, the state statute requires that the Landlord must keep the tenant's personal belongings for ninety (90) days after taking possession of the real property. Now there is one exception to this rule and that is if the tenant abandoned the personal property. This does not mean that the tenant left the real property so that landlord interprets that as abandonment. The Indiana Statute states, " a tenant's personal property is considered abandoned if a reasonable person would conclude that the tenant has vacated the premises and has surrendered possession of the personal property." Ind. Code 32-31-4-2. The reasonable person standard may seem vague but it is the best option in cases like these. And my recommendation is that it is better to err on the side of caution (do not dispose of the personal property).
So if a reasonable person would determine that the former tenant did not abandoned his or her personal property, what can the landlord do? One option is to leave the personal property alone in the real property until ninety (90) days have passed. The the landlord is free to dispose of it as he or she sees fit. However, in circ*mstances such as this, the landlord has likely already lost money from overdue rent. There may be physical damages to the real property that need to be repaired, at times significant time-sensitive damages.
If the landlord wants to move the personal property from the real property, the landlord needs to get a court order to do so. "If a landlord is awarded possession of a dwelling unit by a court under IC 32-30-2, the landlord may seek an order from the court allowing removal of a tenant's personal property." Ind. Code 32-31-4-2. This means that before the landlord may remove the tenant's personal belongings that were left behind, the landlord MUST get a court order allowing the removal of the property according to Indiana law. Does this generally occur? Based on my experience, I do not believe so. However, I advise my landlord clients of this requirement and do file a motion to move the personal belongings and this protects my landlords from a future lawsuit for violation of this statute.
What Can a Landlord Do With Tenant's Belongings
If the tenant does not retrieve his or her belongings by the date the order states, the landlord may then move the belongings to the location approved by the court in the order. The landlord may move the property to a warehouseman or a storage facility approved by the court. I recommend that landlords take care with the moving of the tenant's personal belongings, again in order to protect themselves from any sue happy tenants who may claim that there are certain things missing (that were not there to begin with) or breaking things. I recommend photographing everything throughout the real property before moving anything, with a date and time stamp. When items are packed up, make sure that breakables are properly protected. Load the moving truck responsibly for the move to the storage facility. While this may sound like a lot of work, it is a good practice. And, I recommend completing this as soon as possible after receiving the approval from the court.
Once the landlord moves the tenant's personal belongings to storage, the tenant needs to be notified (at least reasonable attempt - there's that "reasonable" standard again) of the name and location of the warehouseman or storage facility. The storage facility may maintain possession of the tenant's nonexempt items until the tenant pays the costs of moving the property and storage of the property. However, the landlord and storage facility to release exempt property to the former tenant. What is "exempt" property you ask? Well the property that is considered to be exempt property in these types of situations include:
1) Medically necessary for an individual.
(2) Used by a tenant for the tenant's trade or business.
(3) Any of the following, as necessary for the tenant or a member of the tenant's household:
(A) A week's supply of seasonably necessary clothing.
(B) Blankets.
(C) Items necessary for the care and schooling of a minor child.
Ind. Code 32-31-4-1.
These exempt items must be released to the former tenant upon request. The remaining non-exempt property may have a lien place on it by the warehouseman or storage facility for expenses listed below:
(1) Storage.
(2) Transportation.
(3) Insurance.
(4) Labor.
(5) Present or future charges related to the property.
(6) Expenses necessary for preservation of the property.
(7) Expenses reasonably incurred in the lawful sale of the property.
I.C. 32-31-4-4(a).
These expenses that may be included in the lien include the costs associate with the exempt items as well. Even thought they need to be released to the tenant, the storage facility is still entitled to be reimbursed for the the costs associated with those items I.C. 32-31-4-4(b).
Conclusion
Hopefully this information is helpful for landlords and tenants alike. Landlords, this information will help in several ways. By following the statute, you can save yourselves liable to tenants for not keeping their personal property available for the length of time it must be available. It will also improve landlord tenant relationships and help your business grow as it will decrease the bad reviews and "slum lord" claims.
For tenants, I hope this helps you understand your rights. Tenants are not subject to the landlords whims and can file law suits or counterclaims against the Landlord for failing to follow Indiana law.
If you are a tenant or landlord and need representation or assistance, please contact our office to set up a time to talk about your rights and responsibilities to one another.
You can reach our office at 574-323-5126 or at assistant.hildebrandlaw@gmail.com.
