January 20, 2010

HB 1118 Would Allow Community Organizations to Sue Apartment Owners for Nuisance Violations

The Indiana House is considering HB 1118, which would allow organizations within whose specific geographic boundaries a nuisance exists, to bring an action under the laws governing: (1) general nuisance actions; (2) actions for indecent nuisances; and (3) actions for drug nuisances; as applicable. This bill, in essence, would give community organizations the same authority as elected officials to take action against nuisance properties. Rep. John Day, D-Indianapolis, has authored this bill.

IAA's view: IAA is opposed to this piece of troubling legislation. One of our biggest quesitons, which was also raised by lawmakers on the committee, is why such an ordinance is needed when people can already file suit against nuisance properties. If made into law, this could put a target on apartment communities across the state if members of a community organization or a homeowners' association decide that neighboring apartments are impeding on their ability to enjoy their property. Here are our biggest concerns with this bill:

1. Gives community organizations the right to bring actions to enjoin, abate and seek other remedies for private nuisances (nuisances that affect only specified property and not the public at large). Examples of private nuisance include odors, excessive noise, trash and dangerous conditions which only affect a specific piece of property.

2. Collectively, the statutes involved apply to all property types and to any party with a “substantial property interest” can be named as a defendant. Potential defendants include tenants, owners, management companies and mortgagees.

3. Private individuals who pursue such actions must post a bond, but receive protection against early dismissal of the claim. The government is not required to post a bond, but government cases are subject to early dismissal. Community organizations would not be required to post a bond but would receive protection against early dismissal of the claim. Unelected community organizations would have rights that are superior to the rights of both the government and the persons directly affected by the nuisance.

Call to action: We need you to call your legislators to tell them to oppose HB1118 because it is creating yet another layer of bureaucracy on an issue where there is already a law in place to ward off nuisance properties. You can go to www.iaaonline.net and click on Legislative Action Center and contact lawmakers or call them at (800) 382-9842. In your conversation or e-mail with legislators, please reference the points above. Please send us any feedback that you receive about this bill.