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A. When should I file an eviction?
When a tenant stops paying rent or otherwise breaches a lease agreement and refuses to vacate, the only lawful mechanism a landlord or property manager has to get the tenant out of the property is to file for an eviction. Indiana prohibits “self-help,” or “taking the front door off until the tenant moves out.” In order to legally regain possession of the property, a landlord must use the judicial process.
The attorneys at Griffith Law Group almost always advise our landlord and property management clients to file for eviction on the first available date after the tenant breaches the lease agreement. For example, if rent is due on the 1st of the month, and the tenant does not pay on the 1st, file the eviction on the 2nd. This may sound harsh, but it is often the only way to “train” your tenant to pay on time. Typically, giving your tenant a “grace period” only trains the tenant that rent is not really due until the end of the grace period. You must be disciplined to treat your rental properties like a business, because after all, it is a business. You can always settle on the courthouse steps.
Under only very rare circumstances should you allow your tenant to fall more than one month behind in rent. When a tenant does not pay rent, it is unlikely that the tenant is saving the rent money to pay it later. More often than not, that money—your rental income—is gone. Consequently, it is much more likely that a tenant will be able to come current, when the tenant is just one month behind in rent, as opposed to two or three months behind.
B. Where do I file an eviction?
Evictions in most Indiana counties are handled by that particular county’s Circuit or Superior Court. Each county has a court with Small Claims Court jurisdiction. Marion County has its own unique system of handling evictions through the Township Small Claims Courts. An eviction must be filed in the County or Township where the property is located. Many courts have filing information and forms available online.
C. How long does the eviction process take?
In almost every county in Indiana, evictions are a two-step process. After the initial filing, the court will set a hearing usually 2-3 weeks out. At the initial hearing, the court will only determine who is entitled to possession of the property. Also at this hearing, the court will schedule another hearing at a later date to determine what damages are owed (usually about two months out). At the damages hearing, the Court determines whether the landlord is entitled to a monetary judgment for unpaid rent and damages. After a judgment is entered, the landlord may initiate what is called Proceedings Supplemental. This is the process by which we garnish the tenant’s wages, seize assets, etc., in order to pay for the judgment.
D. How much does an eviction cost?
The filing fee varies county by county, and typically ranges from $86.00 to $158.00. The 2013 filing fee in Marion County is currently $86.00, plus $13.00 for each additional defendant. A Writ of Assistance (purchased at the Possession Hearing) costs $13.00 in most counties (including Marion). Attorneys’ fees will vary depending on the attorney you hire. Some attorneys charge a flat fee for evictions, while others charge an hourly fee. Because of the high volume of eviction work we do, Griffith Law Group is able to provide a discounted flat fee structure that passes savings on to our clients in most cases.
E. Can I recover my attorneys’ fees and court costs?
Whether or not you can recover your attorneys’ fees and court costs all depends on the terms of your lease agreement. For a helpful article on important lease provisions, CLICK HERE.
F. Once I file an eviction, what happens if the tenant tries to pay?
Unfortunately, once an eviction is filed, if the landlord accepts any payment from the tenant—whether $1 or $1,000—the court deems this to be waiver and the landlord must dismiss the case. Although we respectfully disagree with this application of the law, it is the practical rule in Indiana. Therefore, the best practice for a landlord is this: once an eviction is filed, only accept payment-in-full (or very close to it).
G. What is the $6,000 Small Claims cap?
The Indiana Small Claims Court damages cap is $6,000. Marion County is the only county in Indiana where you can recover your attorneys’ fees and court costs in addition to the $6,000 cap.
H. What is the $1,500 Rule?
The $1,500 Rule is this: if you are a limited liability entity (LLC or corporation) and your claim is for more than $1,500, you must be represented by an attorney. So, a landlord or property manager using a limited liability entity has two options: (1) send a representative from the company and limit your claim to $1,500; or (2) hire an attorney and go for the full amount.
There are disadvantages to “going at it alone” and not using an attorney. For example, let’s say the tenant owes $1,000 in unpaid rent, so the landlord files for eviction and damages on their own (capped at $1,500). Then, after the landlord retakes possession of the property, the landlord realizes there is an additional $3,000 in physical damages to the property that the tenant caused. Guess what? The landlord is stuck at the $1,500 cap. Furthermore, even if you file for eviction on your own and then hire an attorney just for the Damages Hearing, you are still capped at $1,500, and you cannot recover your attorneys’ fees. The lesson is simple: hire a knowledgeable attorney and read Chapter 5 of this book to ensure your lease agreement provides for the recovery of attorneys’ fees and costs.
