AN ACT to amend the Indiana Code concerning property.
SECTION 1. IC 32-16 IS ADDED TO THE INDIANA CODE AS
A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2002]:
ARTICLE 16. EFFECT OF RECODIFICATION OF TITLE 32
Chapter 1. Effect of Recodification by the Act of the 2002
Regular Session of the General Assembly
Sec.1. As used in this chapter, "prior property law" refers to the
statutes that are repealed or amended in the recodification act of
the 2002 regular session of the general assembly as the statutes
existed before the effective date of the applicable or corresponding
provision of the recodification act of the 2002 regular session of the
general assembly.
Sec. 2. The purpose of the recodification act of the 2002 regular
session of the general assembly is to recodify prior property law in
a style that is clear, concise, and easy to interpret and apply.
Except to the extent that:
(1) the recodification act of the 2002 regular session of the
general assembly is amended to reflect the changes made in a
provision of another bill that adds to, amends, or repeals a
provision in the recodification act of the 2002 regular session
of the general assembly; or
(2) the minutes of meetings of the code revision commission
during 2001 expressly indicate a different purpose;
the substantive operation and effect of the prior property law
continue uninterrupted as if the recodification act of the 2002
regular session of the general assembly had not been enacted.
Sec. 3. Subject to section 2 of this chapter, sections 4 through 9
of this chapter shall be applied to the statutory construction of the
recodification act of the 2002 regular session of the general
assembly.
Sec. 4. (a) The recodification act of the 2002 regular session of
the general assembly does not affect:
(1) any rights or liabilities accrued;
(2) any penalties incurred;
(3) any violations committed;
(4) any proceedings begun;
(5) any bonds, notes, loans, or other forms of indebtedness
issued, incurred, or made;
(6) any tax levies made or authorized;
(7) any funds established;
(8) any patents issued;
(9) the validity, continuation, or termination of any contracts,
easements, or leases executed;
(10) the validity, continuation, scope, termination, suspension,
or revocation of:
(A) permits;
(B) licenses;
(C) certificates of registration;
(D) grants of authority; or
(E) limitations of authority; or
(11) the validity of court decisions entered regarding the
constitutionality of any provision of the prior property law;
before the effective date of the recodification act of the 2002
regular session of the general assembly (July 1, 2002). Those rights,
liabilities, penalties, offenses, proceedings, bonds, notes, loans,
other forms of indebtedness, tax levies, funds, patents, contracts,
leases, permits, licenses, certificates of registration, grants of
authority, or limitations of authority continue and shall be imposed
and enforced under prior property law as if the recodification act
of the 2002 regular session of the general assembly had not been
enacted.
(b) The recodification act of the 2002 regular session of the
general assembly does not:
(1) extend, or cause to expire, a permit, license, certificate of
registration, or other grant or limitation of authority; or
(2) in any way affect the validity, scope, or status of a license,
permit, certificate of registration, or other grant or limitation
of authority;
issued under the prior property law.
(c) The recodification act of the 2002 regular session of the
general assembly does not affect the revocation, limitation, or
suspension of a permit, license, certificate of registration, or other
grant or limitation of authority based in whole or in part on
violations of the prior property law or the rules adopted under the
prior property law.
Sec. 5. The recodification act of the 2002 regular session of the
general assembly shall be construed as a recodification of prior
property law. Except as provided in section 2(1) and 2(2) of this
chapter, if the literal meaning of the recodification act of the 2002
regular session of the general assembly (including a literal
application of an erroneous change to an internal reference) would
result in a substantive change in the prior property law, the
difference shall be construed as a typographical, spelling, or other
clerical error that must be corrected by:
(1) inserting, deleting, or substituting words, punctuation, or
other matters of style in the recodification act of the 2002
regular session of the general assembly; or
(2) using any other rule of statutory construction;
as necessary or appropriate to apply the recodification act of the
2002 regular session of the general assembly in a manner that does
not result in a substantive change in the law. The principle of
statutory construction that a court must apply the literal meaning
of an act if the literal meaning of the act is unambiguous does not
apply to the recodification act of the 2002 regular session of the
general assembly to the extent that the recodification act of the
2002 regular session of the general assembly is not substantively
identical to the prior property law.
Sec. 6. Subject to section 9 of this chapter, a reference in a
statute or rule to a statute that is repealed and replaced in the same
or a different form in the recodification act of the 2002 regular
session of the general assembly shall be treated after the effective
date of the new provision as a reference to the new provision.
Sec. 7. A citation reference in the recodification act of the 2002
regular session of the general assembly to another provision of the
recodification act of the 2002 regular session of the general
assembly shall be treated as including a reference to the provision
of prior property law that is substantively equivalent to the
provision of the recodification act of the 2002 regular session of the
general assembly that is referred to by the citation reference.
Sec. 8. (a) As used in the recodification act of the 2002 regular
session of the general assembly, a reference to rules adopted under
any provision of this title or under any other provision of the
recodification act of the 2002 regular session of the general
assembly refers to either:
(1) rules adopted under the recodification act of the 2002
regular session of the general assembly; or
(2) rules adopted under the prior property law until those
rules have been amended, repealed, or superseded.
(b) Rules adopted under the prior property law continue in
effect after June 30, 2002, until the rules are amended, repealed, or
suspended.
Sec. 9. (a) A reference in the recodification act of the 2002
regular session of the general assembly to a citation in the prior
property law before its repeal is added in certain sections of the
recodification act of the 2002 regular session of the general
assembly only as an aid to the reader.
(b) The inclusion or omission in the recodification act of the
2002 regular session of the general assembly of a reference to a
citation in the prior property law before its repeal does not affect:
(1) any rights or liabilities accrued;
(2) any penalties incurred;
(3) any violations committed;
(4) any proceedings begun;
(5) any bonds, notes, loans, or other forms of indebtedness
issued, incurred, or made;
(6) any tax levies made;
(7) any funds established;
(8) any patents issued;
(9) the validity, continuation, or termination of contracts,
easements, or leases executed;
(10) the validity, continuation, scope, termination, suspension,
or revocation of:
(A) permits;
(B) licenses;
(C) certificates of registration;
(D) grants of authority; or
(E) limitations of authority; or
(11) the validity of court decisions entered regarding the
constitutionality of any provision of the prior property law;
before the effective date of the recodification act of the 2002
regular session of the general assembly (July 1, 2002). Those rights,
liabilities, penalties, offenses, proceedings, bonds, notes, loans,
other forms of indebtedness, tax levies, funds, patents, contracts,
leases, licenses, permits, certificates of registration, and other
grants of authority continue and shall be imposed and enforced
under prior property law as if the recodification act of the 2002
regular session of the general assembly had not been enacted.
(c) The inclusion or omission in the recodification act of the
2002 regular session of the general assembly of a citation to a
provision in the prior property law does not affect the use of a
prior conviction, violation, or noncompliance under the prior
property law as the basis for revocation of a license, permit,
certificate of registration, or other grant of authority under the
recodification act of the 2002 regular session of the general
assembly, as necessary or appropriate to apply the recodification
act of the 2002 regular session of the general assembly in a manner
that does not result in a substantive change in the law.
SECTION 2. IC 32-17 IS ADDED TO THE INDIANA CODE AS
A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2002]:
ARTICLE 17. INTERESTS IN PROPERTY
Chapter 1. Fee Simple Interest
Sec. 1. As used in this chapter, "grantor" means every person
by whom an estate or interest in land is:
(1) created;
(2) granted;
(3) bargained;
(4) sold;
(5) conveyed;
(6) transferred; or
(7) assigned.
Sec. 2. (a) A conveyance of land that is:
(1) worded in substance as "A.B. conveys and warrants to
C.D." (insert a description of the premises) "for the sum of"
(insert the consideration); and
(2) dated and signed, sealed, and acknowledged by the
grantor;
is a conveyance in fee simple to the grantee and the grantee's heirs
and assigns with a covenant as described in subsection (b).
(b) A conveyance in fee simple under subsection (a) includes a
covenant from the grantor for the grantor and the grantor's heirs
and personal representatives that the grantor:
(1) is lawfully seized of the premises;
(2) has good right to convey the premises;
(3) guarantees the quiet possession of the premises;
(4) guarantees that the premises are free from all
encumbrances; and
(5) will warrant and defend the title to the premises against all
lawful claims.
Sec. 3. (a) Estates tail are abolished.
(b) An estate that under common law is a fee tail:
(1) is considered a fee simple; and
(2) if the estate is not limited by a valid remainder, is
considered a fee simple absolute.
Sec. 4. Lineal and collateral warranties with all their incidents
are abolished. However, the heirs and devisees of a person who has
made a covenant or agreement is answerable upon that covenant
or agreement:
(1) to the extent of property descended or devised to the heirs
and devisees; and
(2) in the manner prescribed by law.
Chapter 2. Estate
Sec. 1. (a) This section does not apply to:
(1) mortgages;
(2) conveyances in trust; or
(3) conveyances made to husband and wife.
(b) Every estate vested in executors or trustees as executors
shall be held by them in joint tenancy.
(c) Except as provided in subsection (b), a conveyance or devise
of land or of any interest in land made to two (2) or more persons
creates an estate in common and not in joint tenancy unless:
(1) it is expressed in the conveyance or devise that the
grantees or devisees hold the land or interest in land in joint
tenancy and to the survivor of them; or
(2) the intent to create an estate in joint tenancy manifestly
appears from the tenor of the instrument.
Sec. 2. A deed of release or quitclaim passes all the estate that
the grantor (as defined in IC 32-17-1-1) may convey by a deed of
bargain and sale.
Sec. 3. (a) A freehold estate and a chattel real may be created to
begin at a future day.
(b) An estate for life:
following:
(1) A description of the premises.
(2) The rights and titles in the land of the parties interested.
Sec. 3. The proceedings, practice, and pleadings for an action
under this chapter are the same as in civil suits, except as otherwise
provided in this chapter.
Sec. 4. (a) If:
(1) upon trial of any issue;
(2) upon default; or
(3) by consent of parties;
the court determines that partition should be made, the court shall
award an interlocutory judgment that partition be made to parties
who desire partition.
(b) In issuing a judgment under subsection (a), the court shall:
(1) specify the share assigned to each party; and
(2) take into consideration advancements to heirs of a person
dying intestate.
(c) If the court issues a judgment under subsection (a), any part
of the premises remaining after the partition belongs to the persons
entitled to the premises, subject to a future partition.
(d) If:
(1) upon trial of any issue;
(2) upon default; or
(3) by confession or consent of parties;
the court determines that the land for which partition is demanded
cannot be divided without damage to the owners, the court may
order the whole or any part of the premises to be sold as provided
under section 12 of this chapter.
Sec. 5. Notwithstanding section 4 of this chapter, a court may
not order or affirm partition of any real estate contrary to the
intention of a testator expressed in the testator's will.
Sec. 6. Upon judgment of partition, the court shall appoint three
(3) individuals as commissioners who:
(1) are disinterested resident freeholders;
(2) reside and own land in the county in which court is held;
and
(3) are not related to any of the parties;
who shall make partition of the land in accordance with the
judgment of the court.
Sec. 7. (a) Before discharging their duties, the commissioners
appointed under section 6 of this chapter shall take an oath to
faithfully perform the duties of their trust.
terms and conditions prescribed by the court.
(b) If the court orders a sale under this section, the order shall
provide for reasonable public notice of the sale.
(c) If the court orders a sale under this section but does not
order the sale to be made for cash, the court shall require that the
purchaser make a cash payment of at least one-third (1/3) of the
purchase price to the commissioner appointed under section 14 of
this chapter at the time of the sale.
(d) Land sold under this section may not be sold for less than:
(1) if sold at public sale, two-thirds (2/3) of its appraised
value; and
(2) if sold at private sale, its appraised value.
The court shall determine the appraised value of the land in the
same manner as in cases of sales of land on execution.
(e) If only a part of land is sold under this section, the remainder
may be partitioned as provided under this chapter.
(f) If the value of land ordered by the court to be sold at private
sale does not exceed one thousand dollars ($1,000), the land may,
in the discretion of the court, be sold without any notice of sale
being had or given.
(g) In all cases, the purchaser of land sold under this section has
rights in all crops planted on the land after the sale.
(h) The court may:
(1) approve reports of sale by commissioners in partition
proceedings; and
(2) order the deed delivered to the purchaser.
Sec. 13. If the court confirms partial partition:
(1) the shares assigned are full shares; and
(2) the residue reserved for sale is discharged from all title or
claim of the parties receiving assignment of their shares under
the partition.
Sec. 14. (a) If the court orders a sale under section 12 of this
chapter, the court shall appoint a commissioner, other than a
commissioner appointed to make partition, to conduct the sale.
(b) A commissioner appointed under this section shall file a
bond payable to the state of Indiana in an amount determined by
the court, conditioned for the faithful discharge of the duties of the
commissioner's trust.
Sec. 15. (a) If the court determines that:
(1) land is sold under section 12 of this chapter for cash; or
(2) land is sold under section 12 of this chapter for partial
credit and that the first or cash payment of the purchase price
is paid;
the court shall order the commissioner appointed under section 14
of this chapter, or some other person, to execute a conveyance to
the purchaser.
(b) A conveyance made under this section bars all claims of the
prior owners of the land as if the prior owners had executed the
conveyance.
(c) If partial credit is given for land sold under section 12 of this
chapter, the court shall, at the time the court orders the
conveyance to be made under this section, also order and direct
that, concurrently with the execution of the conveyance, the
purchaser shall execute to the commissioner a mortgage upon the
land to secure the deferred payments of the purchase price of the
land.
(d) The commissioner shall place a mortgage executed under
this section upon record as required by law.
Sec. 16. Commissioners appointed to make partition, or to sell,
may not purchase the land partitioned or sold by the
commissioners.
Sec. 17. The commissioner shall pay the proceeds of a sale under
this chapter after payment of just costs and expenses to the persons
entitled to the proceeds according to their respective shares, under
the direction of the court.
Sec. 18. (a) Any two (2) of the persons named as commissioners
to make partition may perform the duties required by this chapter.
(b) The court may fill a vacancy of a commissioner.
Sec. 19. (a) The occurrence of a vacancy does not invalidate the
previous acts of the commissioners.
(b) A successor commissioner shall take up and continue the
proceedings, which are as valid as if the proceedings had been done
by the commissioners first appointed.
Sec. 20. The court shall provide an allowance, in an amount that
the court determines to be reasonable:
(1) to the commissioners for their services; and
(2) for surveying, marking, chaining, platting, and executing
the necessary conveyances.
Sec. 21. (a) All costs and necessary expenses, including
reasonable attorney's fees for plaintiff's attorney, in an amount
determined by the court, shall be awarded and enforced in favor
of the parties entitled to the costs and expenses against the
partitioners.
(b) The court shall assign costs and expenses awarded under
subsection (a) against each partitioner as the court may determine
in equity, taking into consideration each partitioner's relative
interest in the land or proceeds apportioned.
Sec. 22. Upon showing sufficient cause, a party to proceedings
under this chapter who was not served with summons may, not
more than one (1) year after a partition is confirmed, appear and
open the proceedings, and obtain a review of the partition.
Sec. 23. A:
(1) person that owns:
(A) an undivided interest in fee simple in any lands; and
(B) a life estate in:
(i) the remaining part of the land; or
(ii) any part of the remaining portion of the land; or
(2) person that owns a fee in the land described in subdivision
(1) that is subject to the undivided interest in fee and the life
estate in the land;
may compel partition of the land and have the fee simple interest
in the land set off and determined in the same manner as land is
partitioned under Indiana law.
Sec. 24. (a) In a proceeding for the partition of real estate:
(1) in a state court; and
(2) in which a person less than eighteen (18) years of age is a
party in interest;
the commissioners appointed to make the partition may lay off into
lots or out-lots, streets, and alleys, any land included in the
partition and may make a plat of the lots or out-lots, streets, and
alleys and submit the plat to the court for approval or rejection.
(b) If a plat submitted under subsection (a) is approved by the
court:
(1) the commissioners appointed to make the partition shall
acknowledge the plat in open court;
(2) the plat must be recorded as other similar plats of like
nature are recorded; and
(3) the plat is legally valid as if the plat were made by a legal
proprietor of the lands who is at least eighteen (18) years of
age.
(c) The court shall determine, upon the return by the
commissioners of a plat described in subsection (b), whether it is in
the interest of the parties for the land that is the subject of the
partition proceeding to be laid off into lots or out-lots, streets, and
alleys. If the court determines that it is in the interest of the parties,
the appointed commissioners may partition the land as in other
cases without detriment to the interested parties. If partition of the
land is not practicable without detriment to the interested parties,
the lots or out-lots may be sold by order of the court.
Chapter 5. Partition Investment Limitations
Sec. 1. This chapter applies to a person that is entitled to:
(1) an estate in real estate for life or years;
(2) an estate tail;
(3) a fee simple;
(4) a conditional, base, or qualified fee;
(5) a particular, limited, or conditional estate in real estate; or
(6) an interest in personal property;
and any other person is entitled to a vested or contingent
remainder, an executory devise, or any other vested or contingent
interest in the same real estate or personal property.
Sec. 2. On application of a party in interest described in section
1 of this chapter, the circuit court may, if all the parties are:
(1) parties to the proceedings and before the court; or
(2) properly served with notice as in other civil actions;
decree a sale, exchange, or lease of the real estate, or sale or
exchange of the personal property, if the court considers a sale,
exchange, or lease to be advantageous to the parties concerned.
Sec. 3. If the court decrees a sale, exchange, or lease under
section 2 of this chapter, the court shall direct the investment of the
proceeds of the:
(1) sale;
(2) terms of the instrument of exchange or lease; or
(3) limitations of the reversion and rents and income;
so as to inure as by the original grant, devise, or condition to the
use of the same parties who would be entitled to the property sold
or leased or the income of the personal property.
Sec. 4. If all persons in being are parties who would be entitled
to the property sold or leased or the income of the personal
property if the contingency had happened at the date of the
commencement of the proceedings, a decree under section 2 of this
chapter is binding on any person that claims an interest in the real
estate or personal property:
(1) under any party to the decree;
(2) under any person from whom a party to the decree claims;
or
(3) from, under, or by the original:
(A) deed;
(B) will; or
entitled to possess, enjoy, or exercise power over an interest.
(b) The term includes a trustee and a person succeeding to a
disclaimed interest.
Sec. 6. (a) As used in this chapter, "property" means tangible or
intangible property, regardless of its location, that is either real or
personal.
(b) The term includes:
(1) the right to receive proceeds under a life insurance policy
or annuity; and
(2) an interest in an employee benefit plan.
Sec. 7. (a) A person to whom an interest devolves by whatever
means may disclaim the interest in whole or in part as provided in
this chapter.
(b) The personal representative, guardian, or conservator of a
person to whom an interest devolves may disclaim the interest on
behalf of the person.
(c) A disclaimer must:
(1) be in writing;
(2) describe the property and the interest in the property to be
disclaimed; and
(3) be signed by the person to whom the interest devolves or
the person's personal representative, guardian, or
conservator.
Sec. 8. (a) This section applies to a disclaimer of an interest that:
(1) has devolved from a decedent either:
(A) by the laws of intestacy; or
(B) under a testamentary instrument, including a power of
appointment exercised by a testamentary instrument; and
(2) is not an interest with the right of survivorship.
(b) Subject to subsections (c) and (d), a disclaimer described in
subsection (a) is effective only if it is:
(1) filed in a court in which proceedings concerning the
decedent's estate:
(A) are pending; or
(B) if no proceedings are pending, could be pending if
commenced; and
(2) delivered in person or mailed by first class United States
mail to:
(A) the personal representative of the decedent; or
(B) the holder of the legal title to the property to which the
interest relates.
(c) A disclaimer of an interest in real property is effective under
subsection (b) only if it is recorded in each county where the real
property is located.
(d) A disclaimer is effective under this section only if the
requirements of subsection (b) and, if applicable, subsection (c) are
accomplished not later than nine (9) months after:
(1) if a present interest is disclaimed, the death of the person;
or
(2) if a future interest is disclaimed, the later of:
(A) the event by which the final taker of the interest is
ascertained; or
(B) the day on which the disclaimant becomes twenty-one
(21) years of age.
(e) If a provision has not been made for another devolution, an
interest disclaimed under this section devolves as follows:
(1) If the disclaimant is a fiduciary, as if the disclaimed
interest had never been created in the disclaimant.
(2) In all other cases, as if the disclaimant had predeceased the
person.
(f) A disclaimer under this section relates back for all purposes
that relate to the interest disclaimed to the time immediately before
the death of the person.
Sec. 9. (a) This section applies to a disclaimer of an interest that
has devolved under a life insurance policy or annuity.
(b) A disclaimer described in subsection (a) is effective only if it
is:
(1) delivered in person; or
(2) mailed by first class United States mail;
to the issuer of the policy or annuity not later than nine (9) months
after the death of the insured or annuitant.
(c) If a provision has not been made for another devolution, an
interest disclaimed under this section devolves as follows:
(1) If the disclaimant is a fiduciary, as if the disclaimed
interest had never been created in the disclaimant.
(2) In all other cases, as if the disclaimant had predeceased the
insured or annuitant.
(d) A disclaimer under this section relates back for all purposes
that relate to the interest disclaimed to the time immediately before
the death of the insured or annuitant.
Sec. 10. (a) This section applies to a disclaimer of an interest in
a joint tenancy created by any means, including:
(1) an intestacy;
(2) a testamentary instrument; or
this chapter is effective only if it is delivered in person or mailed by
first class United States mail either to:
(1) the transferor of the interest or the transferor's personal
representative; or
(2) the holder of the legal title to the property to which the
interest relates.
(b) A disclaimer of an interest in real property under section 10
or 11 of this chapter is effective only if it is recorded in each county
where the real property is located.
Sec. 13. (a) This section applies to a future interest that would
have taken effect in possession or enjoyment if it had not been
disclaimed.
(b) If a provision has not been made for another devolution, a
future interest described in subsection (a) takes effect for all
purposes as if the disclaimant had died before the event by which
the final taker of the interest is ascertained.
Sec. 14. (a) When a disclaimer becomes effective, it:
(1) constitutes an unqualified and irrevocable refusal to
accept the disclaimed interest; and
(2) is binding upon the disclaimant and all persons claiming
through or under the disclaimant.
(b) A written waiver of the right to disclaim in whole or in part:
(1) is irrevocable upon signing by the disclaimant, or the
disclaimant's personal representative, guardian, or
conservator;
(2) bars the right, to the extent set forth in the waiver, to
disclaim after the waiver becomes irrevocable; and
(3) is binding upon the person waiving and all persons
claiming through or under the person waiving.
Sec. 15. The right to disclaim an interest is barred after any of
the following events:
(1) An assignment, conveyance, encumbrance, pledge, or
transfer of the interest.
(2) A contract for any of the events listed in subdivision (1).
(3) A sale or other disposition of the interest under judicial
process.
Sec. 16. The right to disclaim an interest or a benefit under an
interest is barred by an acceptance of the interest or benefit, to the
extent that the interest or benefit is accepted.
Sec. 17. The right to disclaim exists regardless of a spendthrift
provision or similar restriction on the interest of the person
disclaiming.
property interest or a power of appointment arising out of
any of the following:
(A) A premarital or postmarital agreement.
(B) A separation or divorce settlement.
(C) A spouse's election.
(D) A similar arrangement arising out of a prospective, an
existing, or a previous marital relationship between the
parties.
(E) A contract to make or not to revoke a will or trust.
(F) A contract to exercise or not to exercise a power of
appointment.
(G) A transfer in satisfaction of a duty of support.
(H) A reciprocal transfer.
(2) A fiduciary's power relating to the administration or
management of assets, including the power of a fiduciary to
sell, lease, or mortgage property, and the power of a fiduciary
to determine principal and income.
(3) A power to appoint a fiduciary.
(4) A discretionary power of a trustee to distribute principal
before termination of a trust to a beneficiary having an
indefeasibly vested interest in the income and principal.
(5) A nonvested property interest held by a charity,
government, or governmental agency or subdivision, if the
nonvested property interest is preceded by an interest held by
another charity, government, or governmental agency or
subdivision.
(6) A nonvested property interest in or a power of
appointment with respect to a trust or other property
arrangement forming part of a pension, a profit sharing, a
stock bonus, a health, a disability, a death benefit, an income
deferral, or other current or deferred benefit plan for one (1)
or more employees, independent contractors, or their
beneficiaries or spouses, to which contributions are made for
the purpose of distributing to or for the benefit of the
participants or their beneficiaries or spouses the property,
income, or principal in the trust or other property
arrangement, except a nonvested property interest or a power
of appointment that is created by an election of a participant
or a beneficiary or spouse.
(7) A property interest, power of appointment, or
arrangement that was not subject to the common law rule
against perpetuities or is excluded by another Indiana statute.
upon:
(1) the death of; or
(2) the expiration of the period not exceeding twenty-one (21)
years after the death of;
the survivor of the specified lives in being at the creation of the
trust or other property arrangement.
Sec. 6. Upon the petition of an interested person, a court shall
reform a disposition in the manner that most closely preserves the
transferor's plan of distribution and is within the ninety (90) years
allowed by section 3(a)(2), 3(b)(2), or 3(c)(2) of this chapter if:
(1) a nonvested property interest or a power of appointment
becomes invalid under section 3 of this chapter;
(2) a class gift is not but might become invalid under section
3 of this chapter and the time has arrived when the share of
any class member is to take effect in possession or enjoyment;
or
(3) a nonvested property interest that is not validated by
section 3(a)(1) of this chapter can vest but not within ninety
(90) years after the interest's creation.
Chapter 9. Uniform Act on Transfer on Death Securities
Sec. 1. This chapter applies to registrations of securities:
(1) in beneficiary form regardless of the date of registration;
and
(2) by persons who die after June 30, 1997.
Sec. 2. As used in this chapter, "beneficiary form" means a
registration form for a security that indicates:
(1) the present owner of the security; and
(2) the intention of the owner regarding the person who will
become the owner of the security upon the death of the owner.
Sec. 3. As used in this chapter, "register" means:
(1) to issue a certificate showing the ownership of a
certificated security; or
(2) in the case of an uncertificated security, to initiate or
transfer an account showing ownership of securities.
Sec. 4. (a) As used in this chapter, "registering entity" means a
person who originates or transfers a security title by registration.
(b) The term includes:
(1) a broker maintaining security accounts for customers; and
(2) a transfer agent or other person acting for or as an issuer
of securities.
Sec. 5. (a) As used in this chapter, "security" means a share,
participation, or other interest in property, in a business, or in an
obligation of an enterprise or other issuer.
(b) The term includes a certificated security, an uncertificated
security, and a security account.
Sec. 6. As used in this chapter, "security account" means:
(1) a reinvestment account associated with a security, a
securities account with a broker, a cash balance in a
brokerage account, cash, interest, earnings, or dividends
earned or declared on a security in an account, a reinvestment
account, or a brokerage account, whether or not credited to
the account before the owner's death; or
(2) a cash balance or other property held for or due to the
owner of a security as a replacement for or product of an
account security, regardless of whether the cash was credited
to the account before the owner's death.
Sec. 7. (a) Only individuals whose registration of a security
shows:
(1) sole ownership by one (1) individual; or
(2) multiple ownership by two (2) or more individuals with
right of survivorship, rather than as tenants in common;
may obtain registration in beneficiary form.
(b) Multiple owners of a security registered in beneficiary form
hold as:
(1) joint tenants with right of survivorship; or
(2) tenants by the entireties;
and not as tenants in common.
Sec. 8. (a) A security may be registered in beneficiary form if the
form is authorized by this or a similar statute of:
(1) the state of:
(A) organization of the issuer or registering entity;
(B) the location of the registering entity's principal office;
or
(C) the office of its transfer agent or its office making the
registration; or
(2) the state listed as the owner's address at the time of
registration.
(b) Notwithstanding subsection (a), a registration governed by
the law of a jurisdiction in which this or similar legislation:
(1) is not in force; or
(2) was not in force when a registration in beneficiary form
was made;
is presumed to be valid and authorized as a matter of contract law.
Sec. 9. A security, whether evidenced by certificate or account,
is registered in beneficiary form when the registration includes a
designation of a beneficiary to take the ownership at the death of
the owner or the deaths of all multiple owners.
Sec. 10. To be effective, registration in beneficiary form must be
shown by:
(1) the words "transfer on death" or the abbreviation
"T.O.D."; or
(2) the words "pay on death" or the abbreviation "P.O.D.";
after the name of the registered owner and before the name of a
beneficiary.
Sec. 11. (a) The designation of a T.O.D. beneficiary on a
registration in beneficiary form has no effect on ownership until
the owner's death.
(b) A registration of a security in beneficiary form may be
canceled or changed at any time by the sole owner or all of the then
surviving owners without the consent of the beneficiary.
Sec. 12. (a) On the death of a sole owner or the last to die of all
multiple owners, ownership of securities registered in beneficiary
form passes to the beneficiary or beneficiaries who survive all
owners.
(b) On proof of death of all owners and compliance with the
applicable requirements of the registering entity, a security
registered in beneficiary form may be reregistered in the name of
the beneficiary or beneficiaries who survived the death of all
owners.
(c) Until division of the security after the death of all owners,
multiple beneficiaries surviving the death of all owners hold their
interests as tenants in common.
(d) If a beneficiary does not survive the death of all owners, the
security belongs to the estate of the deceased sole owner or the
estate of the last to die of all multiple owners.
Sec. 13. (a) A registering entity is not required to offer or to
accept a request for security registration in beneficiary form. If a
registering entity offers registration in beneficiary form, the owner
requesting registration in beneficiary form assents to the
protections given to the registering entity by this chapter.
(b) By accepting a request for registration of a security in
beneficiary form, the registering entity agrees that the registration
will be implemented on the death of the deceased owner as
provided in this chapter.
(c) A registering entity is discharged from all claims to a
security by the estate, creditors, heirs, or devisees of a deceased
owner if the registering entity registers a transfer of the security in
accordance with section 11 of this chapter and does so in good faith
reliance on:
(1) the registration;
(2) this chapter; and
(3) information provided to it by:
(A) affidavit of the personal representative of the deceased
owner;
(B) the surviving beneficiary;
(C) the surviving beneficiary's representatives; or
(D) other information available to the registering entity.
(d) The protections of this chapter do not extend to a
reregistration or payment made after a registering entity has
received written notice from any claimant to any interest in the
security objecting to implementation of a registration in
beneficiary form. No other notice or other information available to
the registering entity affects the registering entity's right to
protection under this chapter.
(e) The protection provided by this chapter to the registering
entity of a security does not affect the rights of beneficiaries in
disputes between themselves and other claimants to ownership of
the security transferred or its value or proceeds.
Sec. 14. (a) A transfer on death resulting from a registration in
beneficiary form is effective by reason of the contract regarding
the registration between the owner and the registering entity and
this chapter and is not testamentary.
(b) This chapter does not limit the rights of creditors of security
owners against beneficiaries and other transferees under other
laws of Indiana.
Sec. 15. (a) A registering entity offering to accept registrations
in beneficiary form may establish the terms and conditions under
which it will receive requests:
(1) for registrations in beneficiary form; and
(2) for implementation of registrations in beneficiary form,
including requests for cancellation of previously registered
TOD beneficiary designations and requests for reregistration
to effect a change of beneficiary.
(b) The terms and conditions established under subsection (a)
may provide for the following:
(1) Proving death.
(2) Avoiding or resolving any problems concerning fractional
shares.
ownerships during lifetime are:
(1) in proportion to their previous ownership interests under
section 17 of this chapter; and
(2) augmented by an equal share for each survivor of any
interest the decedent may have owned in the account
immediately before the person's death.
The right of survivorship continues between the surviving parties.
(b) If the account is a P.O.D. account, on death of the original
payee or of the survivor of at least two (2) original payees, any
sums remaining on deposit belong to the P.O.D. payee or payees
who survive the original payee. If at least two (2) P.O.D. payees
survive, there is no right of survivorship between the P.O.D. payees
unless the terms of the account or deposit agreement expressly
provide for survivorship.
(c) If the account is a trust account, on death of the trustee or
the survivor of at least two (2) trustees, any sums remaining on
deposit belong to the person or persons named as beneficiaries who
survive the trustee, unless there is clear and convincing evidence of
a contrary intent. If at least two (2) beneficiaries survive, there is
no right of survivorship between the beneficiaries unless the terms
of the account or deposit agreement expressly provide for
survivorship.
(d) Except as provided in subsections (a) through (c), the death
of any party to a multiple party account has no effect on beneficial
ownership of the account other than to transfer the rights of the
decedent as part of the decedent's estate.
(e) A right of survivorship arising:
(1) from the express terms of the account; or
(2) under:
(A) this section;
(B) a beneficiary designation in a trust account; or
(C) a P.O.D. payee designation;
cannot be changed by will.
Sec. 19. (a) The provisions of section 18 of this chapter as to
rights of survivorship are determined by the form of the account
at the death of a party.
(b) The form of an account may be altered by written order
given by a party to the financial institution to:
(1) change the form of the account; or
(2) stop or vary payment under the terms of the account.
(c) An order or request described in subsection (b) must be:
(1) signed by a party;
immediately before the debtor's death, beneficially entitled.
(c) In the absence of proof of net contributions, the amount of
the account subject to set off as described in subsection (a) is an
equal share with all parties having present rights of withdrawal.
Sec. 28. (a) Any of the following provisions in an insurance
policy, contract of employment, bond, mortgage, promissory note,
deposit agreement, pension plan, trust agreement, conveyance, or
any other written instrument effective as a contract, gift,
conveyance, or trust is considered to be nontestamentary, and this
title and IC 29 do not invalidate the instrument or any provision:
(1) That money or other benefits due to, controlled, or owned
by a decedent before the person's death shall be paid after the
person's death to a person designated by the decedent in
either the instrument or a separate writing, including a will,
executed at the same time as the instrument or subsequently.
(2) That any money due or to become due under the
instrument shall cease to be payable in event of the death of
the promisee or the promisor before payment or demand.
(3) That any property that is the subject of the instrument
shall pass to a person designated by the decedent in either the
instrument or a separate writing, including a will, executed at
the same time as the instrument or subsequently.
(b) This section does not limit the rights of creditors under other
Indiana laws.
Sec. 29. (a) This section does not apply to an account.
(b) Except as provided in subsection (c), personal property that
is owned by two (2) or more persons is owned by them as tenants
in common unless expressed otherwise in a written instrument.
(c) Upon the death of either husband or wife:
(1) household goods:
(A) acquired during marriage; and
(B) in possession of both husband and wife; and
(2) any:
(A) promissory note;
(B) bond;
(C) certificate of title to a motor vehicle; or
(D) other written or printed instrument;
evidencing an interest in tangible or intangible personal
property in the name of both husband and wife;
becomes the sole property of the surviving spouse unless a clear
contrary intention is expressed in a written instrument.
Chapter 12. Contracts Concerning United States Lands
creditors; or
(3) is made by other means;
if the action is taken in good faith and not as a part of, or in
connection with, a general assignment made under this chapter.
However, a corporation may not prefer any creditor if a director
of the corporation is a surety on the indebtedness preferred or has
been a surety on the indebtedness within four (4) months before the
preference.
Sec. 2. (a) An assignment under this chapter must be:
(1) by indenture; and
(2) signed and acknowledged before a person who is
authorized to take the acknowledgment of deeds.
(b) The indenture must, within ten (10) days after the execution,
be filed with the recorder of the county in which the assignor
resides. The recorder shall record the indenture of assignment the
same as deeds are recorded.
(c) The indenture of assignment must:
(1) contain a full description of all real estate assigned; and
(2) be accompanied by a schedule containing a particular
enumeration and description of all the personal property
assigned.
(d) The assignor shall make oath before a person authorized to
administer oaths. The oath must:
(1) verify the indenture and schedule and contain a statement
of all the property, rights, and credits belonging to the
assignor, or of which the assignor has knowledge, and that the
assignor has not, directly or indirectly, transferred or
reserved a sum of money or article of property for the
assignor's own use or the benefit of another person; and
(2) indicate the assignor has not acknowledged a debt or
confessed a judgment to a person for a sum greater than was
justly owing to the person, or with the intention of delaying or
defrauding the assignor's creditors.
(e) An assignment under this chapter may not convey to the
assignee an interest in property assigned until the assignment is
recorded as provided in this section.
Sec. 3. (a) Not later than fifteen (15) days after the execution of
the assignment, the trustee shall file a copy of the assignment and
schedule in the office of the clerk of the circuit court of the county
in which the debtor resides. The trustee shall state under oath,
before execution of the trust:
(1) that the trustee will faithfully execute the trust, and the
property assigned has been actually delivered into the
trustee's possession for the uses declared in the assignment;
and
(2) what the probable value of the assigned property is.
(b) The trustee shall, at the time the assignment and schedule is
filed under subsection (a), file with the clerk a written undertaking
to the state with at least one (1) sufficient surety. The bond to be
approved by the clerk:
(1) must be in a sum double the amount of the value of the
property assigned; and
(2) conditioned for the faithful discharge of the duties of the
trustee's trust.
The bond must be for the use of a person injured by the action of
the trustee.
Sec. 4. The clerk of the circuit court shall minute the filing of the
copy of indenture, schedule, and undertaking in the proper book
under section 3 of this chapter.
Sec. 5. (a) If the trustee fails to comply with the provisions of
sections 1 through 4 of this chapter, the judge of the circuit court
or the clerk of the circuit court may, at the instance of the assignor
or a creditor, by petition:
(1) remove the trustee; and
(2) appoint another suitable person as trustee.
(b) A replacement trustee shall:
(1) comply with the requirements specified in this chapter;
(2) immediately take possession and control of the property
assigned; and
(3) enter upon the execution of the trust, as provided in this
chapter.
Sec. 6. (a) Immediately after complying with the requirements
set forth in this chapter, the trustee shall give notice of the trustee's
appointment by publication, three (3) weeks successively, in a
newspaper printed and published in the county. If a newspaper is
not printed and published in the county, the trustee shall:
(1) place written notice in at least five (5) of the most public
places in the county; and
(2) publish notice in a newspaper printed and published in the
nearest county, for the time and in the manner mentioned in
reference to publication in the county where the assignor
resides.
(b) The trustee shall, within thirty (30) days after beginning the
duties of the trust, make and file, under oath, a full and complete
inventory of all the property, real and personal, the rights, credits,
interests, profits, and collaterals that the trustee obtains, or of
which the trustee may have obtained knowledge as belonging to the
assignor. If:
(1) any property not mentioned in an inventory comes into the
trustee's hands; or
(2) the trustee obtains satisfactory information of the
existence of property not mentioned in an inventory;
the trustee shall file an additional inventory of the property as
described in this section.
Sec. 7. The trustee, not more than twenty (20) days after filing
the inventory mentioned in section 6 of this chapter, shall cause the
property mentioned in the inventory to be appraised by two (2)
reputable householders of the neighborhood. The appraisers,
before proceeding to discharge their duty, must take and subscribe
an oath that they will honestly appraise the property mentioned in
the inventory filed by the trustee. The oath must be filed, together
with the appraisement, with the clerk of the circuit court.
Sec. 8. The appraisers shall, in the presence of the trustee:
(1) appraise each article mentioned in the inventory at its true
value; and
(2) set down opposite each article respectively the value fixed
by them in dollars and cents.
Sec. 9. (a) If the assignor is a resident householder of Indiana,
the appraisers shall set off to the assignor articles of property or so
much of the real estate mentioned in the inventory as the assignor
may select, not to exceed three hundred dollars ($300).
(b) The appraisers shall, in an appraisement, specify what
articles of property and the value of the property, or what part of
the real estate and its value, they have set apart to the assignor.
Sec. 10. (a) The trustee, as soon as possible after an
appraisement is filed, shall collect the rights and credits of the
assignor. Except for property set off by the assignor as exempt, the
trustee shall sell at public auction the appraised property after
giving thirty (30) days notice of the time and place of sale:
(1) by publication in a newspaper printed and published in the
county; or
(2) if a newspaper is not printed and published in the county,
by posting written or printed notices in at least five (5) of the
most public places in the county.
(b) The trustee shall sell the appraised property to the highest
bidder for cash, or upon credit, the trustee taking notes with
security to be approved by the trustee, waiving relief from
valuation or appraisement laws, payable not more than twelve (12)
months after the date, with interest.
(c) The trustee must make a full return, under oath, of the sale
to the clerk of the circuit court. The clerk shall file the return with
the other papers in the case. However, a court may, upon the sworn
petition of the trustee, a creditor, or the assignor, for good cause
shown, extend the time for selling the property, or any part of the
property, for as much time as the court determines will serve the
best interests of the creditors. The court may extend the credit on
sales for not more than two (2) years.
(d) The court may, upon the sworn petition of the trustee or of
a majority of the creditors showing that the property may
deteriorate in value by delay or that it will be beneficial to the
creditors to have an early sale order the property sold upon notice
of the time, place, and terms of sale, and in a manner the court
determines is best.
(e) The court may authorize the property sold at private sale at
not less than its appraised value if it is shown that a private sale
would be beneficial to the creditors of the assignor. The court shall
supervise the estate of the assignor and may make all necessary
orders in the interest of the creditors for its control and
management by the trustee before the sale. In the interest of all
parties, the court may upon petition of the assignee, if the wife of
the assignor is a party to the petition, order partition of the land of
the assignor, before sale, between the assignee and wife of the
assignor. The court shall set off to the wife her inchoate one-third
(1/3) in the land before sale. If the court finds that the land cannot
be partitioned without detriment to the interest of the creditors of
the assignor, the court may make an order directing the sale of all
the land conveyed to the assignee by the assignor, including the
wife's one-third (1/3) inchoate interest. The one-third (1/3) of the
money for which the land is sold shall be paid to the wife of the
assignor when collected. The assignee shall, after sale, compel the
trustee to report the money in the trustee's hands for distribution,
and shall compel the money to be paid into court for distribution
if the assets are shown to be sufficient to pay a ten percent (10%)
dividend upon the indebtedness. The distribution may be ordered
from time to time when, on application of any person interested, it
is shown to the court that there is sufficient funds in the hands of
the trustee to pay the dividend of ten percent (10%).
Sec. 11. The trustee shall, within six (6) months after beginning
the duties of the trust, report to the judge of the circuit court,
under oath:
(1) the amount of money in the trustee's hands from:
(A) the sale of property; and
(B) collections; and
(2) the amount still uncollected.
The trustee shall also, in the report, list all claims of creditors that
have been presented to the trustee against the assignor. The trustee
shall denote the claims that the trustee concludes should be allowed
and those that the trustee determines not to allow.
Sec. 12. The clerk of the court shall spread the report and list
upon the appearance docket of the court. The clerk shall
distinguish between the claims the trustee has determined to allow
and the claims the trustee has refused to allow. In all cases in which
the trustee has refused to allow a claim, and in which a creditor
objects to the allowance of the claim of another creditor, the judge
may order the case to stand for trial at the next term of the court.
The trial shall be governed by the rules regulating the trials of
similar actions in the circuit court. If, after trial of the claim, the
court is satisfied that the claim is valid and just, the court shall
order the claim to be allowed and paid as other similar claims are
paid. The court shall also make an order with respect to costs as
the court considers just.
Sec. 13. (a) A part of the property assigned on which there are
liens or encumbrances may be sold by the trustee subject to the
liens or encumbrances.
(b) However, if the trustee is satisfied that the general fund
would be materially increased by the payment of the liens or
encumbrances, the trustee shall make application, by petition, to
the judge of the circuit court for an order to pay the liens and
encumbrances before selling the property. Before the holder of any
lien or encumbrance is entitled to receive any part of the holder's
debt from the general fund, the holder shall proceed to enforce the
payment of the debt by sale, or otherwise, of the property on which
the lien or encumbrance exists. For the residue of the claim, the
holder of the lien or encumbrance shall share pro rata with the
other creditors, if entitled to do so under Indiana law.
Sec. 14. If the court confirms the report made as provided under
section 11 of this chapter and if no contested claims are standing on
the docket as provided under section 12 of this chapter, the court
shall order the trustee to pay all money in the trustee's hands to the
clerk of the court. The clerk, after deducting the costs incident to
the execution of the trust, including an allowance to the trustee as
the court considers just, shall:
(1) distribute the money among the creditors according to this
chapter; and
(2) take receipts from each creditor.
Sec. 15. (a) If a creditor or the trustee, by verified petition, asks
the court for the examination of the assignor or any person to
whom any part of the person's property has been transferred
within six (6) months before the assignment, the circuit or superior
court may issue an order for the examination of:
(1) the assignor;
(2) a person or officer of a corporation to whom a transfer is
believed to have been fraudulently made;
(3) a a person or officer of an association to whom a transfer
is believed to have been fraudulently made; and
(4) a person alleged to have been concerned in the transfer.
(b) A person described in subsection (a) may be brought before
the court and, on oath, be compelled to answer all questions put to
the person pertinent to the alleged transaction. The court may stay
further transfers and subject property that has been fraudulently
withheld or transferred to the operation of the general trust. The
assignor or person shall be interrogated or be compelled to answer
all questions concerning the disposition of the property of the
assignor. The assignor may be interrogated and compelled to
answer all questions concerning the management of the assignor's
business and affairs for the six (6) months before the assignment.
The assignor shall be compelled to produce all books, papers, and
accounts in reference to the assignor's business affairs during the
six (6) months preceding the assignment.
Sec. 16. A person who files a claim with the trustee must make
oath that the claim is just and lawful and no part of the claim is for
usurious interest. If a claim or part of a claim is for usurious
interest, it must be deducted from the claims before they are
allowed. The trustee may administer an oath to a creditor in
reference to the validity and justice of a claim.
Sec. 17. A trustee may compound or compromise a debt or claim
belonging to the assignor that cannot be otherwise recovered
without endangering the recovery of the claim or debt.
Sec. 18. (a) The trustee shall, at the expiration of one (1) year
after entering upon the duties of the trust or at the next term of the
court after the expiration of one (1) year after entering upon the
duties of the trust, make a final report to the court.
subdivision (1) and the transfer is not so perfected before the
commencement of an action for relief under this chapter, the
transfer is considered made immediately before the
commencement of the action.
(3) If applicable law does not permit a transfer to be perfected
under subdivision (1), the transfer is made when it becomes
effective between the debtor and the transferee.
(4) A transfer is not made until the debtor has acquired rights
in the asset transferred.
(5) An obligation is incurred:
(A) if oral, when it becomes effective between the parties;
or
(B) if evidenced by a writing, when the writing executed by
the obligor is delivered to or for the benefit of the obligee.
Sec. 17. (a) In an action for relief against a transfer or an
obligation under this chapter, a creditor, subject to the limitations
in section 18 of this chapter, may obtain any of the following:
(1) Avoidance of the transfer or obligation to the extent
necessary to satisfy the creditor's claim.
(2) An attachment or other provisional remedy against the
asset transferred or other property of the transferee in
accordance with the procedure prescribed by IC 34-25-2-1 or
any other applicable statute providing for attachment or
other provisional remedy against debtors generally.
(3) Subject to applicable principles of equity and in
accordance with applicable rules of civil procedure, any of the
following:
(A) An injunction against further disposition by the debtor
or a transferee, or both, of the asset transferred, its
proceeds, or of other property.
(B) Appointment of a receiver to take charge of the asset
transferred or of the property of the transferee.
(C) Any other relief the circumstances require.
(b) If a creditor has obtained a judgment on a claim against the
debtor, the creditor, if the court orders, may levy execution on the
asset transferred or its proceeds.
Sec. 18. (a) A transfer or an obligation is not voidable under
section 14(1) of this chapter against a person who took in good
faith and for a reasonably equivalent value or against any
subsequent transferee or obligee.
(b) Except as otherwise provided in this chapter, to the extent a
transfer is voidable in an action by a creditor under section
17(a)(1) of this chapter, the creditor may recover judgment for the
value of the asset transferred, as adjusted under subsection (c), or
the amount necessary to satisfy the creditor's claim, whichever is
less. The judgment may be entered against:
(1) the first transferee of the asset or the person for whose
benefit the transfer was made; or
(2) any subsequent transferee other than a good faith
transferee who took for value or from any subsequent
transferee.
(c) If the judgment under subsection (b) is based upon the value
of the asset transferred, the judgment must be for an amount equal
to the value of the asset at the time of the transfer, subject to
adjustment as the equities may require.
(d) Notwithstanding voidability of a transfer or an obligation
under this chapter, a good faith transferee or obligee is entitled, to
the extent of the value given the debtor for the transfer or
obligation, to:
(1) a lien on or a right to retain any interest in the asset
transferred;
(2) enforcement of any obligation incurred; or
(3) a reduction in the amount of the liability on the judgment.
(e) A transfer is not voidable under section 14(2) or section 15
of this chapter if the transfer results from:
(1) termination of a lease upon default by the debtor when the
termination is permitted by the lease and applicable law; or
(2) enforcement of a security interest in compliance with
Article 9 of the Uniform Commercial Code.
Sec. 19. A cause of action with respect to a fraudulent transfer
or obligation under this chapter is extinguished unless brought as
follows:
(1) If brought under section 14(1) of this chapter, an action is
extinguished unless brought not later than the later of the
following:
(A) Four (4) years after the transfer was made or the
obligation was incurred.
(B) One (1) year after the transfer or obligation was or
could reasonably have been discovered by the claimant.
(2) If brought under section 14(2) or 15(1) of this chapter, an
action is extinguished unless it is brought not later than four
(4) years after the transfer was made or the obligation was
incurred.
Sec. 20. Unless superseded by this chapter, the principles of law
and equity, including the law merchant and the law relating to
principal and agent, equitable subordination, estoppel, laches,
fraud, misrepresentation, duress, coercion, mistake, insolvency, or
other validating or invalidating cause, supplement this chapter.
Sec. 21. This chapter shall be applied and construed to
effectuate its general purpose to make uniform the law with respect
to the subject of this chapter among states enacting it.
Chapter 3. Resale of Insolvent Debtors' Real Estate
Sec. 1. In a sale of real estate by:
(1) a receiver; or
(2) an assignee or trustee under IC 32-18-1;
a person may, before the confirmation of the sale by the proper
court, file with the clerk of the court, or in open court, a bond in
the sum sufficient to secure the sale. The surety for the bond must
be approved by the clerk or the court.
Sec. 2. If on resale of the real estate, or any part of the real
estate, the real estate sells for ten percent (10%) more than the
amount bid at the previous sale, the court may not confirm the sale
but order the real estate resold. If on resale the additional sum is
not realized, the person posting the bond is liable for the difference.
It is the duty of the receiver, assignee, or trustee to institute and
prosecute the suit, which is for the use and benefit of the trust.
SECTION 4. IC 32-19 IS ADDED TO THE INDIANA CODE AS
A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2002]:
ARTICLE 19. DESCRIBING REAL PROPERTY; INDIANA
COORDINATE SYSTEM
Chapter 1. Designation of Indiana Coordinate System; Zones
Sec. 1. The systems of plane coordinates that have been
established by the National Ocean Survey/National Geodetic
Survey (formerly the United States Coast and Geodetic Survey) or
its successors for defining and stating the positions or locations of
points on the surface of the earth within Indiana are known and
designated as the "Indiana coordinate system of 1927" and the
"Indiana coordinate system of 1983".
Sec. 2. (a) For the purpose of the use of the systems described in
section 1 of this chapter, Indiana is divided into an east zone and a
west zone.
(b) The area included in the following counties constitutes the
east zone:
Adams
Allen
Bartholomew
Blackford
Brown
Cass
Clark
Dearborn
Decatur
DeKalb
Delaware
Elkhart
Fayette
Floyd
Franklin
Fulton
Grant
Hamilton
Hancock
Harrison
Henry
Howard
Huntington
Jackson
Jay
Jefferson
Jennings
Johnson
Kosciusko
LaGrange
Madison
Marion
Marshall
Miami
Noble
Ohio
Randolph
Ripley
Rush
St. Joseph
Scott
Shelby
Steuben
Switzerland
Tipton
Union
Wabash
Washington
Wayne
Wells
Whitley.
(c) The area included in the following counties constitutes the
west zone:
Benton
Boone
Carroll
Clay
Clinton
Crawford
Daviess
Dubois
Fountain
Gibson
Greene
Hendricks
Jasper
Knox
Lake
LaPorte
Lawrence
Martin
Monroe
Montgomery
Morgan
Newton
Orange
Owen
Parke
Perry
Pike
Porter
Posey
Pulaski
Putnam
Spencer
Starke
Sullivan
Tippecanoe
Vanderburgh
Vermillion
Vigo
Warren
Warrick
White.
Sec. 3. (a) To more precisely describe the Indiana coordinate
system of 1927, the following descriptions by the National Ocean
Survey/National Geodetic Survey are adopted:
(1) The "Indiana coordinate system of 1927, east zone" is a
transverse Mercator projection of the Clarke spheroid of
1866, having a central meridian 85 degrees 40 minutes west of
Greenwich, on which meridian the scale is set at one part in
30,000 too small. The origin of coordinates is at the
intersection of the meridian 85 degrees 40 minutes west of
Greenwich and the parallel 37 degrees 30 minutes north
latitude. This origin is given the coordinates: x = 500,000 feet
and y = 0 feet.
(2) The "Indiana coordinate system of 1927, west zone" is a
transverse Mercator projection of the Clarke spheroid of
1866, having a central meridian 87 degrees 05 minutes west of
Greenwich, on which meridian the scale is set at one part in
30,000 too small. The origin of coordinates is at the
intersection of the meridian 87 degrees 05 minutes west of
Greenwich and the parallel 37 degrees 30 minutes north
latitude. This origin is given the coordinates: x = 500,000 feet
and y = 0 feet.
(b) To more precisely describe the Indiana coordinate system of
1983, the following description by the National Ocean
Survey/National Geodetic Survey is adopted:
(1) The "Indiana coordinate system of 1983, east zone" is a
transverse Mercator projection of the North American Datum
of 1983, having a central meridian 85 degrees 40 minutes west
of Greenwich, on which meridian the scale is set at one part
in 30,000 too small. The origin of coordinates is at the
intersection of the meridian 85 degrees 40 minutes west of
Greenwich and the parallel 37 degrees 30 minutes north
latitude. This origin is given the coordinates: x = 100,000
meters and y = 250,000 meters.
(2) The "Indiana coordinate system of 1983, west zone" is a
transverse Mercator projection of the North American Datum
of 1983, having a central meridian 87 degrees 05 minutes west
of Greenwich, on which meridian the scale is set at one part
in 30,000 too small. The origin of coordinates is at the
intersection of the meridian 87 degrees 05 minutes west of
Greenwich and the parallel 37 degrees 30 minutes north
latitude. This origin is given the coordinates: x = 900,000
meters and y = 250,000 meters.
(c) To locate the position of the coordinate systems on the
surface of the earth in Indiana, the following shall be used:
(1) The position of the Indiana coordinate system of 1927 shall
be determined from horizontal geodetic control points
established throughout Indiana in conformity with the
standards of accuracy and specifications for first-order and
second-order geodetic surveying as prepared and published
by the Federal Geodetic Control Committee (FGCC) of the
United States Department of Commerce, whose geodetic
positions have been rigidly adjusted on the North American
Datum of 1927, and whose coordinates have been computed
on the Indiana coordinate system of 1927. Standards and
specifications of the FGCC (or its successors) in force on the
date of the survey apply.
(2) The position of the Indiana coordinate system 1983 shall
be determined from horizontal geodetic control points
established throughout Indiana in conformity with the
standards of accuracy and specifications for first-order and
second-order geodetic surveying as prepared and published
by the Federal Geodetic Control Committee (FGCC) of the
United States Department of Commerce, whose geodetic
positions have been rigidly adjusted on the North American
Datum of 1983, and whose coordinates have been computed
on the Indiana coordinate system of 1983. Standards and
specifications of the FGCC (or its successors) in force on the
date of the survey apply.
Sec. 4. (a) As established for use in the east zone, the Indiana
coordinate system of 1927 or the Indiana coordinate system of
1983:
(1) shall be named; and
(2) in any land description in which it is used, shall be
designated the:
(A) "Indiana coordinate system of 1927, east zone"; or
(B) "Indiana coordinate system of 1983, east zone".
computed on the Indiana coordinate system of 1927 or the Indiana
coordinate system of 1983. Any station may be used for
establishing a survey connection to the Indiana coordinate system
of 1927 or the Indiana coordinate system of 1983.
Sec. 2. (a) Coordinates based on the Indiana coordinate system
of 1927 or the Indiana coordinate system of 1983 purporting to
define the position of a point on a land boundary may not be
presented to be recorded in any public land records or deed
records unless the recording document also contains:
(1) a description of the nearest first-order or second-order
horizontal geodetic control monument from which the
coordinates being recorded were determined; and
(2) the method of survey for the determination.
(b) If the position of the described first-order or second-order
geodetic control monument is not published by the National
Geodetic Survey (or its successors), the recording document must
contain a certification signed by a land surveyor registered under
IC 25-21.5 stating that the subject control monument and its
coordinates were established and determined in conformance with
the specifications given in IC 32-19-1-3.
(c) The publishing of the existing control stations or the
acceptance with intent to publish the newly established control
stations by the National Geodetic Survey constitutes evidence of
adherence to the FGCC specifications. Horizontal geodetic control
monuments shall be permanently monumented and control data
sheets prepared and filed so that a densification of the control
network is accomplished.
(d) The surveying techniques and positioning systems used to
produce first-order or second-order geodetic precision shall be
identified. Annotation must accompany state plane coordinate
values when they are used to less than second-order precision.
Chapter 3. Descriptions of Land Using the Indiana Coordinate
System
Sec. 1. If coordinates based on the Indiana coordinate system
are used to describe any tract of land, which in the same document
is also described by reference to any subdivision, line, or corner of
the United States public land surveys:
(1) the description by coordinates shall be construed as
supplemental to the basic description of the subdivision, line,
or corner contained in the official plats and field notes filed of
record; and
(2) in the event of any conflict, the description by reference to
the subdivision, line, or corner of the United States public
land surveys prevails over the description by coordinates.
Sec. 2. This article does not require a purchaser or mortgagee
to rely on a description, any part of which depends exclusively
upon the Indiana coordinate system.
Chapter 4. Geodetic Adviser
Sec. 1. (a) Purdue University shall establish the office of geodetic
adviser for the state.
(b) The geodetic adviser is appointed by and serves at the
discretion of Purdue University. Purdue University shall determine
the amount of compensation for the geodetic adviser.
Sec. 2. (a) The geodetic adviser is responsible for the
implementation of a new system of geodetic control monuments in
the form of a high accuracy geodetic reference network that is part
of the National Spatial Reference System and that meets the needs
of geodetic and geographic information users.
(b) The geodetic adviser shall coordinate and assist in the
following:
(1) The design of the geodetic reference network.
(2) The establishment of any geodetic reference monument.
(3) The maintenance of data base control stations, to the
extent that funding is available.
(4) The establishment and implementation of quality control
and quality assurance programs for the geodetic reference
network.
(5) The assistance and training of users of the geodetic
reference network.
Sec. 3. (a) The state, a state agency (as defined in IC 4-13-1-1),
or a unit (as defined in IC 36-1-2-23) may provide funding from
available funds for the activities described in this chapter.
(b) A unit (as defined in IC 36-1-2-23) may pay the cost of any
geodetic reference monument that is established within the
boundaries of that unit.
(c) Money in the county surveyor's corner perpetuation fund
collected under IC 36-2-7-10 or IC 36-2-19 may be used for
purposes of this chapter.
Sec. 4. A county legislative body may adopt an ordinance:
(1) prohibiting a person from moving, changing, or otherwise
altering a monument that is part of the National Spatial
Reference System; and
(2) prescribing a monetary penalty for violation of the
ordinance.
(1) of them, to:
(A) easements;
(B) use restrictions; or
(C) other interests created before the root of title;
is not sufficient to preserve them, unless specific identification
is made in the muniments of a recorded title transaction that
creates the easement, use restriction, or other interest.
(2) All interests preserved by:
(A) the filing of proper notice; or
(B) possession by the same owner continuously for at least
fifty (50) years, in accordance with IC 32-20-4-1.
(3) The rights of any person arising from adverse possession
or adverse user, if the period of adverse possession or adverse
user was wholly or partly subsequent to the effective date of
the root of title.
(4) Any interest arising out of a title transaction recorded
after the effective date of the root of title from which the
unbroken chain of title of record is started. However, the
recording shall not revive or give validity to any interest that
has been extinguished before the time of the recording by the
operation of section 3 of this chapter.
(5) The exceptions stated in IC 32-20-4-3 concerning:
(A) rights of reversioners in leases;
(B) rights of any lessee in and to any lease; and
(C) easements and interests in the nature of easements.
(6) All interests of the department of environmental
management in land used for the disposal of hazardous wastes
arising from the recording of a restrictive covenant under
IC 13-22-3-3.
Sec. 3. Subject to section 2 of this chapter, marketable record
title is held by its owner and is taken by a person dealing with the
land free and clear of all interests, claims, or charges whose
existence depends upon any act, transaction, event, or omission
that occurred before the effective date of the root of title. All the
interests, claims, or charges, however denominated, whether:
(1) legal or equitable;
(2) present or future; or
(3) asserted by a person who is:
(A) sui juris or under a disability;
(B) within or outside Indiana;
(C) natural or corporate; or
(D) private or governmental;
facility is observable. However, equitable restrictions or servitudes
on the use of land are not considered easements or interests in the
nature of easements as that phrase is used in this section.
Chapter 5. Slander of Title
Sec. 1. A person may not use the privilege of filing notices under
this article to slander the title to land.
Sec. 2. In any action to quiet title to land, if the court finds that
a person has filed a claim only to slander title to land, the court
shall:
(1) award the plaintiff all the costs of the action, including
attorney's fees that the court allows to the plaintiff; and
(2) decree that the defendant asserting the claim shall pay to
the plaintiff all damages that the plaintiff may have sustained
as the result of the notice of claims having been filed for
record.
SECTION 6. IC 32-21 IS ADDED TO THE INDIANA CODE AS
A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2002]:
ARTICLE 21. CONVEYANCE PROCEDURES FOR REAL
PROPERTY
Chapter 1. Statute of Frauds; Writing Requirements
Sec. 1. (a) This section does not apply to a lease for a term of not
more than three (3) years.
(b) A person may not bring any of the following actions unless
the promise, contract, or agreement on which the action is based,
or a memorandum or note describing the promise, contract, or
agreement on which the action is based, is in writing and signed by
the party against whom the action is brought or by the party's
authorized agent:
(1) An action charging an executor or administrator, upon
any special promise, to answer damages out of the executor's
or administrator's own estate.
(2) An action charging any person, upon any special promise,
to answer for the debt, default, or miscarriage of another.
(3) An action charging any person upon any agreement or
promise made in consideration of marriage.
(4) An action involving any contract for the sale of land.
(5) An action involving any agreement that is not to be
performed within one (1) year from the making of the
agreement.
(6) An action involving an agreement, promise, contract, or
warranty of cure concerning medical care or treatment.
However, this subdivision does not affect the right to sue for
malpractice or negligence.
Sec. 2. The consideration that is the basis of a promise, contract,
or agreement described in section 1 of this chapter does not need
to be in writing but may be proved.
Sec. 3. A conveyance of an existing trust in land, goods, or things
in action is void unless the conveyance is in writing and signed by
the party making the conveyance or by the party's lawful agent.
Sec. 4. Nothing contained in any Indiana law may be construed
to prevent any trust from arising or being extinguished by
implication of law.
Sec. 5. Nothing contained in any Indiana statute may be
construed to abridge the powers of courts to compel the specific
performance of agreements in cases of part performance of the
agreements.
Sec. 6. An action may not be brought against a person for a
representation made by the person concerning the character,
conduct, credit, ability, trade, or dealings of any other person,
unless the representation is in writing and signed by the person or
by the person's lawful agent.
Sec. 7. If a conveyance of or charge upon an estate contains a
provision for revocation at the will of the grantor, the provision is
void as to subsequent purchasers from the grantor, for a valuable
consideration, of the estate or interest subject to the provision, even
though the provision is not expressly revoked.
Sec. 8. If the power to revoke a conveyance of any interest in
land, and to reconvey the interest, is given to any person other than
the grantor in the conveyance, and the person given the power
conveys the interest to a purchaser for a valuable consideration,
the subsequent conveyance is valid.
Sec. 9. If a conveyance to a purchaser under either section 7 or
8 of this chapter is made before the person making the conveyance
is entitled to execute the person's power of revocation, the
conveyance is valid from the time the power of revocation vests in
the person.
Sec. 10. A contract for the payment of any sum of money or
thing of value, as a commission or reward for the finding or
procuring by one (1) person of a purchaser for the real estate of
another, is not valid unless the contract is in writing and signed by
the owner of the real estate or the owner's legally appointed and
duly qualified representative. For purposes of this section, any
general reference to the real estate that is sufficient to identify the
real estate is a sufficient description of the real estate.
Sec. 11. If executed in a foreign country, conveyances,
mortgages, and other instruments in writing that would be
admitted to record under the recording laws of this state must be
acknowledged by the grantor or person executing the instrument
and proved before any diplomatic or consular officer of the United
States, duly accredited, or before any officer of the foreign country
who, by the laws of that country, is authorized to take
acknowledgments or proof of conveyances. If the acknowledgment
or proof is in the English language and attested by the official seal
of the officer acknowledging it, the instrument may be admitted to
record. However, if the acknowledgment or proof is in a language
other than English or is not attested by an official seal, then the
instrument must be accompanied by a certificate of a diplomatic or
consular officer of the United States attesting:
(1) that the instrument is duly executed according to the laws
of the foreign country;
(2) that the officer certifying the acknowledgment or proof
had legal authority to do so; and
(3) to the meaning of the instrument, if the instrument is made
in a foreign language.
Sec. 12. It is not necessary to affix a private seal or ink scroll
necessary to validate a conveyance of land or an interest in land
executed by a natural person, business trust, or corporation. It is
not necessary for the officer taking the acknowledgment of the
conveyance to use an ink scroll or seal unless the officer is required
by law to keep an official seal.
Sec. 13. Except for a bona fide lease for a term not exceeding
three (3) years, a conveyance of land or of any interest in land shall
be made by a deed that is:
(1) written; and
(2) subscribed, sealed, and acknowledged by the grantor (as
defined in IC 32-17-1-1) or by the grantor's attorney.
Sec. 14. A conveyance of land by attorney is not good unless the
attorney is empowered by a written instrument that is subscribed,
sealed, and acknowledged by the attorney's principal in the same
manner that is required for a conveyance by the attorney's
principal.
Sec. 15. A conveyance of land that is:
(1) worded in substance as "A.B. quitclaims to C.D." (here
describe the premises) "for the sum of" (here insert the
consideration); and
which the officer resides; and
(2) attested by the seal of that court.
However, an acknowledgment before an officer having an official
seal, if the acknowledgment is attested by that official seal, is
sufficient without a certificate.
Sec. 5. To record in Indiana a conveyance that is acknowledged
outside Indiana but within the United States, the conveyance must
be:
(1) certified by the clerk of any court of record of the county
in which the officer receiving the acknowledgment resides;
and
(2) attested by the seal of that court.
However, an acknowledgment before an officer having an official
seal that is attested by the officer's official seal is sufficient without
a certificate.
Sec. 6. A deed may be proved according to the rules of common
law before any officer who is authorized to take acknowledgments.
A deed that is proved in the manner provided in this section is
entitled to be recorded.
Sec. 7. The following or any other form substantially the same
is a good or sufficient form of acknowledgment of a deed or
mortgage:
"Before me, E.F. (judge or justice, as the case may be) this
_____ day of _______, A.B. acknowledged the execution of the
annexed deed, (or mortgage, as the case may be.)"
Sec. 8. (a) If before a public officer authorized to receive
acknowledgment of deeds:
(1) the grantor of a deed intends to sign the deed with the
grantor's mark; and
(2) in all other cases when the public officer has good cause to
believe that the contents and purport of the deed are not fully
known to the grantor;
it is the duty of the public officer before signature to fully explain
to the grantor the contents and purport of the deed.
(b) The failure of the public officer to comply with subsection
(a) does not affect the validity of a deed.
Sec. 9. A certificate of the acknowledgment of a conveyance or
other instrument in writing that is required to be recorded, signed,
and sealed by the officer taking the acknowledgment shall be
written on or attached to the deed. When by law the certificate of
the clerk of the proper county is required to accompany the
acknowledgment, the certificate shall state that:
parcel being created.
(b) Any instrument that is accepted for recording and placed of
record that bears the endorsement required by IC 36-2-11-14 is
presumed to comply with this section.
Chapter 3. Effect of Recording
Sec. 1. As used in this chapter, "conveyance" means:
(1) an instrument of writing concerning land or an interest in
land, except a last will and testament;
(2) a lease for a term not exceeding three (3) years; or
(3) an executory contract for the sale and purchase of land;
for purposes of the acknowledgment or proof of the instrument,
lease, or contract, the recording of the instrument, lease, or
contract, and the force and effect of that recording.
Sec. 2. As used in this chapter, "grantor" has the meaning set
forth in IC 32-17-1-1.
Sec. 3. A conveyance of any real estate in fee simple or for life,
a conveyance of any future estate, or a lease for more than three
(3) years after the making of the lease is not valid and effectual
against any person other than:
(1) the grantor;
(2) the grantor's heirs and devisees; and
(3) persons having notice of the conveyance or lease;
unless the conveyance or lease is made by a deed recorded within
the time and in the manner provided in this chapter.
Sec. 4. The following may be recorded in the county where the
land to which the letter or contract relates is situated:
(1) Letters of attorney containing a power to a person to:
(A) sell or convey land; or
(B) sell and convey land as the agent of the owner of the
land.
(2) An executory contract for the sale or purchase of land
when proved or acknowledged in the manner prescribed in
this chapter for the proof or acknowledgment of conveyances.
The record when recorded and the certified transcript of the
record may be read in evidence in the same manner and with the
same effect as a conveyance.
Chapter 4. Priority of Recorded Transactions
Sec. 1. (a) A:
(1) conveyance or mortgage of land or of any interest in land;
and
(2) a lease for more than three (3) years;
must be recorded in the recorder's office of the county where the
land is situated.
(b) A conveyance, mortgage, or lease takes priority according
to the time of its filing. The conveyance, mortgage, or lease is
fraudulent and void as against any subsequent purchaser, lessee,
or mortgagee in good faith and for a valuable consideration if the
purchaser's, lessee's, or mortgagee's deed, mortgage, or lease is
first recorded.
Sec. 2. (a) This section applies to an instrument regardless of
when the instrument was recorded, except that this section does not
divest rights that vested before May 1, 1993.
(b) An assignment, a mortgage, or a pledge of rents and profits
arising from real estate that is intended as security, whether
contained in a separate instrument or otherwise, must be recorded
under section 1 of this chapter.
(c) When an assignment, a mortgage, or a pledge of rents and
profits is recorded under subsection (b), the security interest of the
assignee, mortgagee, or pledgee is immediately perfected as to the
assignor, mortgagor, pledgor, and any third parties:
(1) regardless of whether the assignment, mortgage, or pledge
is operative:
(A) immediately;
(B) upon the occurrence of a default; or
(C) under any other circumstances; and
(2) without the holder of the security interest taking any
further action.
(d) This section does not apply to security interests in:
(1) farm products;
(2) accounts or general intangibles arising from or relating to
the sale of farm products by a farmer;
(3) timber to be cut; or
(4) minerals or the like (including oil and gas);
that may be perfected under IC 26-1-9.1.
Sec. 3. (a) This section applies when:
(1) a deed purports to contain an absolute conveyance of any
estate in land; and
(2) is made or intended to be made defeasible by a:
(A) deed of defeasance;
(B) bond; or
(C) other instrument.
(b) The original conveyance is not defeated or affected against
any person other than:
(1) the maker of the defeasance;
significant adverse effect on the value of the property, that would
significantly impair the health or safety of future occupants of the
property, or that if not repaired, removed, or replaced would
significantly shorten or adversely affect the expected normal life of
the premises.
Sec. 5. As used in this chapter, "disclosure form" refers to a
disclosure form prepared under section 8 of this chapter or a
disclosure form that meets the requirements of section 8 of this
chapter.
Sec. 6. As used in this chapter, "owner" means the owner of
residential real estate that is for sale, exchange, lease with an
option to buy, or sale under an installment contract.
Sec. 7. The Indiana real estate commission established by
IC 25-34.1-2-1 shall adopt a specific disclosure form that contains
the following:
(1) Disclosure by the owner of the known condition of the
following areas:
(A) The foundation.
(B) The mechanical systems.
(C) The roof.
(D) The structure.
(E) The water and sewer systems.
(F) Other areas that the Indiana real estate commission
determines are appropriate.
(2) A notice to the prospective buyer that contains
substantially the following language:
"The prospective buyer and the owner may wish to obtain
professional advice or inspections of the property and provide
for appropriate provisions in a contract between them
concerning any advice, inspections, defects, or warranties
obtained on the property.".
(3) A notice to the prospective buyer that contains
substantially the following language:
"The representations in this form are the representations of
the owner and are not the representations of the agent, if any.
This information is for disclosure only and is not intended to
be a part of any contract between the buyer and owner.".
(4) A disclosure by the owner that an airport is located within
a geographical distance from the property as determined by
the Indiana real estate commission. The commission may
consider the differences between an airport serving
commercial airlines and an airport that does not serve
commercial airlines in determining the distance to be
disclosed.
Sec. 8. An owner may prepare or use a disclosure form that
contains the information required in the disclosure form under
section 7 of this chapter and any other information the owner
determines is appropriate.
Sec. 9. A disclosure form is not a warranty by the owner or the
owner's agent, if any, and the disclosure form may not be used as
a substitute for any inspections or warranties that the prospective
buyer or owner may later obtain.
Sec. 10. (a) An owner must complete and sign a disclosure form
and submit the form to a prospective buyer before an offer for the
sale of the residential real estate is accepted.
(b) An appraiser retained to appraise the residential real estate
for which the disclosure form has been prepared shall be given a
copy of the form upon request. This subsection applies only to
appraisals made for the buyer or an entity from which the buyer
is seeking financing.
(c) Before closing, an accepted offer is not enforceable against
the buyer until the owner and the prospective buyer have signed
the disclosure form. After closing, the failure of the owner to
deliver a disclosure statement form to the buyer does not by itself
invalidate a real estate transaction.
Sec. 11. The owner is not liable for any error, inaccuracy, or
omission of any information required to be delivered to the
prospective buyer under this chapter if:
(1) the error, inaccuracy, or omission was not within the
actual knowledge of the owner or was based on information
provided by a public agency or by another person with a
professional license or special knowledge who provided a
written or oral report or opinion that the owner reasonably
believed to be correct; and
(2) the owner was not negligent in obtaining information from
a third party and transmitting the information.
Sec. 12. (a) An owner does not violate this chapter if the owner
subsequently discovers that the disclosure form is inaccurate as a
result of any act, circumstance, information received, or agreement
subsequent to the delivery of the disclosure form. However, at or
before settlement, the owner is required to disclose any material
change in the physical condition of the property or certify to the
purchaser at settlement that the condition of the property is
substantially the same as it was when the disclosure form was
provided.
(b) If at the time disclosures are required to be made under
subsection (a) an item of information required to be disclosed is
unknown or not available to the owner, the owner may state that
the information is unknown or may use an approximation of the
information if the approximation is clearly identified, is
reasonable, is based on the actual knowledge of the owner, and is
not used to circumvent the disclosure requirements of this chapter.
Sec. 13. (a) Notwithstanding section 12 of this chapter, if a
prospective buyer receives a disclosure form or an amended
disclosure form after an offer has been accepted that discloses a
defect, the prospective buyer may after receipt of the disclosure
form and within two (2) business days nullify the contract by
delivering a written rescission to the owner or the owner's agent,
if any.
(b) A prospective buyer is not liable for nullifying a contract
under this section and is entitled to a return of any deposits made
in the transaction.
Chapter 6. Psychologically Affected Properties
Sec. 1. As used in this chapter, "agent" means a real estate agent
or other person acting on behalf of the owner or transferee of real
estate or acting as a limited agent.
Sec. 2. As used in this chapter, "limited agent" means an agent
who, with the written and informed consent of all parties to a real
estate transaction, is engaged by both the seller and buyer or both
the landlord and tenant.
Sec. 3. As used in this chapter, "psychologically affected
property" includes real estate or a dwelling that is for sale, rent, or
lease and to which one (1) or more of the following facts or a
reasonable suspicion of facts apply:
(1) That an occupant of the property was afflicted with or
died from a disease related to the human immunodeficiency
virus (HIV).
(2) That an individual died on the property.
(3) That the property was the site of:
(A) a felony under IC 35;
(B) criminal gang (as defined in IC 35-45-9-1) activity;
(C) the discharge of a firearm involving a law enforcement
officer while engaged in the officer's official duties; or
(D) the illegal manufacture or distribution of a controlled
substance.
Sec. 4. As used in this chapter, "transferee" means a purchaser,
tenant, lessee, prospective purchaser, prospective tenant, or
prospective lessee of the real estate or dwelling.
Sec. 5. An owner or agent is not required to disclose to a
transferee any knowledge of a psychologically affected property in
a real estate transaction.
Sec. 6. An owner or agent is not liable for the refusal to disclose
to a transferee:
(1) that a dwelling or real estate is a psychologically affected
property; or
(2) details concerning the psychologically affected nature of
the dwelling or real estate.
However, an owner or agent may not intentionally misrepresent a
fact concerning a psychologically affected property in response to
a direct inquiry from a transferee.
Chapter 7. Adverse Possession
Sec. 1. In any suit to establish title to land or real estate,
possession of the land or real estate is not adverse to the owner in
a manner as to establish title or rights in and to the land or real
estate unless the adverse possessor or claimant pays and discharges
all taxes and special assessments due on the land or real estate
during the period the adverse possessor or claimant claims to have
possessed the land or real estate adversely. However, this section
does not relieve any adverse possessor or claimant from proving all
the elements of title by adverse possession required by law.
Sec. 2. Title to real property owned by the state or a political
subdivision (as defined in IC 36-1-2-13) may not be alienated by
adverse possession.
Chapter 8. Tax Sale Surplus Disclosure
Sec. 1. This chapter applies to a transfer of property made after
June 30, 2001, that transfers ownership of the property from a
delinquent taxpayer to another person after the property is sold at
a tax sale under IC 6-1.1-24 and before the tax sale purchaser is
issued a tax sale deed under IC 6-1.1-25-4.
Sec. 2. A taxpayer must file a tax sale surplus fund disclosure
form in duplicate with the county auditor before the taxpayer may
transfer title to property if:
(1) the taxpayer owes delinquent taxes on the property;
(2) the property was sold at a tax sale under IC 6-1.1-24; and
(3) a part of the tax sale purchaser's bid on the property was
deposited into the tax sale surplus fund under IC 6-1.1-24-7.
Sec. 3. A tax sale surplus fund disclosure form must contain the
following information:
Coast Guard, or with equivalent rank in any other component part
of the armed forces of the United States.
(b) The commissioned officer before whom a notarial act is
performed under this section shall certify the instrument with the
officer's official signature and title in substantially the following
form:
With the Armed Forces (or other component part of )
)ss
the armed forces) of the United States at 1______________)
The foregoing instrument was acknowledged this ___________
day of ______ 20___ by 2_____ serving (in) the armed forces of the
(with)
United States) ___________ (as a merchant seaman outside the
limits of the United States) (as a person not in the armed forces, but
outside the limits of the United States by permission, assignment,
or direction of a department of the United States Government in
connection with an activity pertaining to the prosecution of the
war), before me, a commissioned officer in the active service of the
(Army of the United States) (United States Marine Corps) (United
States Navy) (United States Coast Guard) (or equivalent rank in
any other component part of the armed forces).
(Signature of officer)
whose name was subscribed to the instrument; and
(C) acknowledged that the person signed the instrument as
a free and voluntary act for the uses and purposes set forth
in the instrument;
(2) if the acknowledgment or execution is by a person in a
representative or official capacity, that the person
acknowledging or executing the instrument acknowledged it
to be the person's free and voluntary act in such capacity or
the free and voluntary act of the principal, person, or entity
represented; and
(3) if the acknowledgment or other notarial act is by a person
as an officer of a corporation, that the person was known to
the officer taking the acknowledgment or performing any
other notarial act to be a corporate officer and that the
instrument was executed and acknowledged for and on behalf
of the corporation by the corporate officer with proper
authority from the corporation, as the free and voluntary act
of the corporation.
Sec. 3. An instrument acknowledged or executed as provided in
this chapter is not invalid because of a failure to state in the
instrument the place of execution or acknowledgment.
Sec. 4. An acknowledgment or other notarial act made
substantially as provided in this chapter constitutes prima facie
proof of the facts recited in the instrument and, without further or
other authentication, entitles any document so acknowledged or
executed to be filed and recorded in the proper offices of record
and received in evidence before the courts of this state, to the same
extent and with the same effect as documents acknowledged or
executed in accordance with any other provision of law now in
force or that may be enacted.
Chapter 10. Conveyances in Which the Grantor and Another
Are Named as Grantees
Sec. 1. As used in this chapter:
(1) "person" includes a person who may be married; and
(2) "persons" includes persons who may be married to each
other.
Sec. 2. (a) A person who owns real property or an interest in
real property that the person has the power to convey may
effectively convey the property or interest by a conveyance naming
as grantees that person and one (1) or more other persons.
(b) Two (2) or more persons who own real property or an
interest in real property that the persons have the power to convey
may effectively convey the property or interest by a conveyance
naming as grantees one (1) or more of those persons and one (1) or
more other persons.
(c) A conveyance under subsection (a) or (b) has the same effect
as to whether it creates an estate in:
(1) severalty;
(2) joint tenancy with right of survivorship;
(3) tenancy by the entirety; or
(4) tenancy in common;
as if the conveyance were a conveyance from a stranger who owned
the property or interest to the persons named as grantees in the
conveyance.
Sec. 3. (a) Two (2) or more persons who own real property or an
interest in real property that they have power to convey may
effectively convey the property or interest by a conveyance naming
as grantee or grantees one (1) or more of those persons.
(b) A conveyance under subsection (a) has the same effect, as to
whether it creates an estate in:
(1) severalty;
(2) joint tenancy with right of survivorship;
(3) tenancy by the entirety; or
(4) tenancy in common;
as if the conveyance were a conveyance from a stranger who owned
the property or interest to the person or persons named as grantee
or grantees in the conveyance.
Chapter 11. Responsible Property Transfer Law
Sec. 1. In addition to any other requirements concerning the
conveyance of real property, a transferor of property (as defined
in IC 13-11-2-174) may be required to deliver a disclosure
document under IC 13-25-3 to each of the other parties to a
transfer of the property at least thirty (30) days before the
transfer.
SECTION 7. IC 32-22 IS ADDED TO THE INDIANA CODE AS
A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2002]:
ARTICLE 22. CONVEYANCE LIMITATIONS OF REAL
PROPERTY
Chapter 1. Limitations on Persons Who May Convey Real
Property
Sec. 1. Except as provided in section 3 of this chapter, a:
(1) mentally incompetent person; or
(2) person less than eighteen (18) years of age;
may not alienate land or any interest in land.
Sec. 2. (a) This section does not apply to any sale or contract
made and entered into before September 19, 1881.
(b) In all sales of real estate by a person less than eighteen (18)
years of age, the person may not disaffirm the sale without first
restoring to the purchaser the consideration received in the sale, if
the person falsely represented himself or herself to the purchaser
to be at least eighteen (18) years of age and the purchaser acted in
good faith, relied upon the person's representations in the sale, and
had good cause to believe the person to be at least eighteen (18)
years of age.
Sec. 3. Any person who is:
(1) less than eighteen (18) years of age; and
(2) married to a person who is at least eighteen (18) years of
age;
may convey, mortgage, or agree to convey any interest in real
estate or may make any contract concerning the interest, with the
consent of the circuit, superior, or probate court of the county
where the person resides, upon payment of the fee required under
IC 33-19-5-4.
Sec. 4. A judge may give consent under section 3 of this chapter
to a conveyance or mortgage and to any note secured by the
mortgage, agreement, or contract if the judge determines that it
would benefit the person described in section 3 of this chapter and
that it would be prejudicial to the spouse of the person if the
execution of the instrument were prevented. The judge shall
endorse the judge's consent on the instrument and sign it, and the
instrument so certified is valid for all purposes as if the married
person were at least eighteen (18) years of age. However, the judge
has the power, in the judge's discretion, to examine witnesses
concerning the propriety or necessity of executing the instrument.
Sec. 5. (a) If a person owning real estate desires to sell the real
estate or a part of the real estate and the person's spouse is, at the
time, mentally incompetent, the person, upon complying with this
section, may sell and convey the real estate by deed without the
joinder of the mentally incompetent spouse. The conveyance has
the same effect as would the joint deed of both spouses.
(b) Before a deed is made under this section, the owner
intending to sell the real estate shall, by petition, apply to the court
having probate jurisdiction in the county where the real estate or
a part of the real estate to be sold is situated, alleging that the
owner's spouse is mentally incompetent and that the incompetency
is probably permanent. Upon the filing of the petition, notice shall
be given to the person alleged to be mentally incompetent, either by
service of process, as provided by law for service of process against
incompetent persons in other civil actions, or, if the person alleged
to be incompetent is by affidavit shown to be a nonresident of
Indiana, by publication.
(c) After notice and upon or after the return day of the notice,
the legally appointed guardian, if any, of the person alleged to be
mentally incompetent or, if there is no guardian, a guardian ad
litem for the person appointed by the court, shall make any proper
defense to the application. The matter of the petition shall be
submitted to the court, and if the allegations are proved to the
satisfaction of the court, the court shall make and enter a finding
that the person alleged to be incompetent is incompetent, and that
the incompetency is probably permanent.
(d) Upon the filing by the petitioner with the clerk of the court
of a bond, in an amount and with surety approved by the court,
that is payable to the state and conditioned to:
(1) keep the mentally incompetent spouse from becoming a
county charge; and
(2) account to the spouse, upon restoration to competency, if
the spouse demands it, fifty percent (50%) of the purchase
money received for the real estate upon sale;
the court shall enter an order authorizing the whole title to be
conveyed by the petitioner without the joinder of the mentally
incompetent spouse.
(e) A deed made under an order of court under this section has
the same effect as the deed of an unmarried person competent to
convey real estate.
(f) If it is shown to the satisfaction of the court having probate
jurisdiction in the county in which lands authorized to be sold
under this section are located that:
(1) the lands were sold under an order authorizing the sale;
(2) the entire proceeds of the sale were invested in other real
estate located in Indiana;
(3) the land purchased with the proceeds of the sale was of no
less value than the land sold under the order;
(4) the title to the land purchased with the proceeds of the sale
was taken in the name of the person having a mentally
incompetent spouse; and
(5) the mentally incompetent spouse will not suffer any loss as
a result of the investment described in subdivision (2);
or persons from or through whom claim is made, would have
acquired, by deed, mortgage, contract, legal proceeding, or
otherwise, any right, title, interest, or lien to, in, or upon the land,
or any part of the land, is not prejudiced or affected by the
alienage of the person or persons, and the right, title, interest, or
lien is in all respects as valid as if the alienage of the person or
persons did not exist, and may be set by the owner or owners of the
land and is fully protected in any proceeding for the recovery or to
enforce the escheat of the land to the state.
Sec. 7. This chapter does not affect:
(1) the title to any real estate recovered or conveyed before
March 6, 1905, by or under the authority of the state as
escheated land;
(2) litigation pending on March 6, 1905, involving the escheat
of land to the state; or
(3) the title of the state to any land to which the state has
claimed, asserted, or attempted to assert title before March 6,
1905, by an action in any court of Indiana.
SECTION 8. IC 32-23 IS ADDED TO THE INDIANA CODE AS
A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2002]:
ARTICLE 23. CONVEYANCE OF PROPERTY INTERESTS
LESS THAN FEE SIMPLE
Chapter 1. Easements: By Prescription
Sec. 1. The right-of-way, air, light, or other easement from, in,
upon, or over land owned by a person may not be acquired by
another person by adverse use unless the use is uninterrupted for
at least twenty (20) years.
Sec. 2. The owner of land described in section 1 of this chapter,
or the agent or guardian of the owner, may give notice to a
claimant of a right or easement described in section 1 of this
chapter that the owner, or the agent or guardian of the owner, will
dispute the claimant's claim to a right or easement by adverse use.
Sec. 3. Notice provided to a claimant under section 2 of this
chapter must be:
(1) in writing; and
(2) served by an officer on the:
(A) claimant, if the claimant can be found; or
(B) if the claimant cannot be found, on the claimant's agent
or the claimant's guardian;
or if the claimant, the claimant's agent, and the claimant's
guardian cannot be found, a copy of the written notice shall be
posted, for not less than ten (10) days, in a conspicuous place on or
adjoining the premises where the right is disputed.
Sec. 4. The service or notice required under section 3 of this
chapter must be endorsed by the officer serving the notice, on the
original paper, and returned to the party giving the notice. The
party that gives the notice shall record the original paper and
endorsement of service or notice in the recorder's office of the
county where the land is located. The served or posted and
recorded notice is, at the time of record, an interruption of the
adverse use.
Chapter 2. Easements in Gross: Alienation, Inheritance,
Assignment
Sec. 1. As used in this chapter, "easement in gross of a
commercial character" means an easement:
(1) for the transmission or distribution of natural gas,
petroleum products, or cable television signals;
(2) for the provision of telephone or water service; or
(3) for the transmission, distribution, or transformation of
electricity.
Sec. 2. An easement in gross of a commercial character,
including an easement acquired by eminent domain, that is created
after June 30, 1989, may be alienated, inherited, or assigned in
whole or in part unless the instrument creating the easement
provides otherwise.
Sec. 3. (a) This section does not apply to an easement in gross of
a commercial character that is created after June 30, 1989.
(b) An easement in gross that was created after July 6, 1961,
may be alienated, inherited, or assigned in whole or in part if the
instrument that created the easement in real property states that
the easement may be alienated, inherited, or assigned.
Sec. 4. This chapter does not revive or reinstate an expired, a
terminated, or an abandoned easement in gross of a commercial
character.
Sec. 5. (a) An easement that is created after June 30, 1989, must
cross-reference the original recorded plat. However, if the real
property from which the easement is being created is not platted,
the easement must cross-reference the most recent deed of record
in the recorder's office. The recorder shall charge a fee for
recording the easement in accordance with IC 36-2-7-10.
(b) When a release of easement is recorded in the office of the
county recorder in the county where the property is situated, the
release document must cross-reference the original easement
document and reflect the name of the current owner of the
property to whom the easement is being released as shown on the
property tax records of the county.
Chapter 3. Easements: Way of Necessity
Sec. 1. If:
(1) land that belongs to a landowner in Indiana is shut off
from a public highway because of the:
(A) straightening of a stream under Indiana law;
(B) construction of a ditch under Indiana law; or
(C) erection of a dam that is constructed by the state or by
the United States or an agency or a political subdivision of
the state or of the United States under Indiana law; and
(2) the owner of the lands described in subdivision (1) is
unable to secure an easement or right-of-way on and over the
land that is adjacent to the affected land, and intervening
between the land and the public highways that are most
convenient to the land because:
(A) an adjacent and intervening landowner refuses to
grant an easement; or
(B) the interested parties cannot agree upon the
consideration to be paid by the landowner that is deprived
of access to the highway;
the landowner of the affected land shall be granted the right of
easement established as a way of necessity as provided under
IC 32-24-1.
Chapter 4. Solar Easement
Sec. 1. As used in this chapter, "passive solar energy system"
means a structure specifically designed to retain heat that is
derived from solar energy.
Sec. 2. As used in this chapter, "solar easement" means an
easement obtained for the purpose of exposure of a solar energy
device or a passive solar energy system to the direct rays of the
sun.
Sec. 3. As used in this chapter, "solar energy device" means an
artifice, an instrument, or the equipment designed to receive the
direct rays of the sun and convert the rays into heat, electricity, or
another form of energy to provide heating, cooling, or electrical
power.
Sec. 4. A solar easement:
(1) must be created in writing; and
(2) is subject to the conveyancing and recording requirements
of this title.
values of real property;
(2) assuring availability of the real property for agricultural,
forest, recreational, or open space use;
(3) protecting natural resources;
(4) maintaining or enhancing air or water quality; or
(5) preserving the historical, architectural, archeological, or
cultural aspects of real property.
Sec. 3. As used in this chapter, "holder" means:
(1) a governmental body that is empowered to hold an interest
in real property under the laws of Indiana or the United
States; or
(2) a charitable corporation, charitable association, or
charitable trust, the purposes or powers of which include:
(A) retaining or protecting the natural, scenic, or open
space values of real property;
(B) assuring the availability of real property for
agricultural, forest, recreational, or open space use;
(C) protecting natural resources;
(D) maintaining or enhancing air or water quality; or
(E) preserving the historical, architectural, archeological,
or cultural aspects of real property.
Sec. 4. As used in this chapter, "third party right of
enforcement" means a right that is:
(1) provided in a conservation easement to enforce any of the
conservation easement's terms; and
(2) granted to a governmental body, charitable corporation,
charitable association, or charitable trust that is eligible to be
a holder but is not a holder.
Sec. 5. (a) Except as otherwise provided in this chapter, a
conservation easement may be:
(1) created;
(2) conveyed;
(3) recorded;
(4) assigned;
(5) released
(6) modified;
(7) terminated; or
(8) otherwise altered or affected;
in the same manner as other easements.
(b) A right or duty in favor of or against a holder and a right in
favor of a person having a third party right of enforcement does
not arise under a conservation easement before the conservation
easement is accepted by the holder and the acceptance is recorded.
(c) Except as provided in section 6(b) of this chapter, a
conservation easement is unlimited in duration unless the
instrument creating the conservation easement provides otherwise.
(d) An interest in real property is not impaired by a
conservation easement if the interest exists at the time the
conservation easement is created, unless the owner of the interest
is a party to the conservation easement or consents to the
conservation easement.
Sec. 6. (a) An action that affects a conservation easement may
be brought by:
(1) an owner of an interest in the real property burdened by
the easement;
(2) a holder of the easement;
(3) a person having a third party right of enforcement; or
(4) a person authorized by other law.
(b) This chapter does not affect the power of a court to modify
or terminate a conservation easement in accordance with the
principles of law and equity, or the termination of a conservation
easement by agreement of the grantor and grantee.
Sec. 7. A conservation easement is valid even though:
(1) the conservation easement is not appurtenant to an
interest in real property;
(2) the conservation easement can be or has been assigned to
another holder;
(3) the conservation easement is not of a character that has
been recognized traditionally at common law;
(4) the conservation easement imposes a negative burden;
(5) the conservation easement imposes affirmative obligations
upon the owner of an interest in the burdened property or
upon the holder;
(6) the benefit does not touch or concern real property; or
(7) there is no privity of estate or of contract.
Sec. 8. For the purposes of IC 6-1.1, real property that is subject
to a conservation easement shall be assessed and taxed on a basis
that reflects the easement.
Chapter 6. Easements: WPA Projects
Sec. 1. (a) If:
(1) a landowner in Indiana has had a pond or lake built on the
landowner's real estate by the federal Works Progress
Administration; and
(2) as a requisite to the building of the pond or lake, the
landowner has given a lease in writing to the state relative to
the building, upkeep, and use of the pond or lake;
the department of natural resources may, upon application in
writing to the department of natural resources, release any
easement the state may have to the real estate.
Sec. 2. A release under section 1 of this chapter may be filed
with the recorder of the county in which the real estate is situated
and recorded in the miscellaneous record in the recorder's office.
Chapter 7. Oil and Gas: Estates in Land
Sec. 1. As used in this chapter, "oil and gas" means petroleum
and mineral oils and gaseous substances of whatever character
naturally lying or found beneath the surface of land.
Sec. 2. As used in this chapter, "oil and gas estate in land"
means the aggregate of all rights in land that affect the oil and gas
in, on, under, or that may be taken from beneath the surface of the
land.
Sec. 3. As used in this chapter, "operations for oil and gas",
unless otherwise indicated by the context of this chapter, means:
(1) the:
(A) exploration;
(B) testing;
(C) surveying; or
(D) other investigation;
of the potential of the land for oil and gas;
(2) the actual drilling or preparations for drilling of wells for
oil and gas on the land; or
(3) any other actions directed toward the eventual production
or attempted production of oil and gas from the land.
Sec. 4. (a) As used in this chapter, "person in interest" means
the owner of a beneficial interest in the oil and gas estate in land,
whether the interest is held for life, for a term of years, or in fee.
(b) The term includes a lessee, licensee, or duly qualified agent
of the owner.
(c) The term does not include a mortgagee or security assignee
of the owner if the mortgagee or security assignee does not have a
right to the control or operation of the premises for oil and gas.
Sec. 5. As used in this chapter, "surface rights" means all rights
relating to the occupancy, user, or ownership of the surface of land
affected by this chapter.
Sec. 6. A grant or reservation contained in an instrument that
affects land in Indiana and that purports to convey or transfer an
interest in the oil and gas in, on, under, or that may be produced
from beneath the surface of the land transfers the following
expressed rights and privileges in addition to any other rights
naturally flowing from the character of the instrument in law to
the named recipient:
(1) A person in interest in the oil and gas estate in land may
enter the land for the purpose of:
(A) exploring, prospecting, testing, surveying, or otherwise
investigating the land to determine the potential of the land
for oil or gas production; or
(B) otherwise conducting operations for oil and gas on the
land;
whether or not the person is also the owner, lessee, or licensee
of an owner of an interest in the surface rights in the land.
(2) A person in interest in the oil and gas estate in land in
Indiana may enter the land to drill a well or test well on the
land for the production or attempted production of oil and gas
regardless of whether the:
(A) person is also the owner, lessee, or licensee of an owner
of an interest in the surface rights in the land; and
(B) owner of the remaining rights in the land consents to
the entrance and drilling.
A person that drills a well under this subdivision shall provide
an accounting to the remaining or nonparticipating persons
in interest in the oil and gas estate in the land, for their
respective proportionate shares of the net profits arising from
the operations conducted upon the land for oil or gas. In
calculating the profits, a reduction may not be made from the
gross proceeds of the production of oil and gas, except for
expenses that are reasonably or necessarily incurred in
connection with the drilling, completion, equipping, and
operation of the wells drilled upon the premises during the
period in which the relationship of cotenancy existed between
the person drilling the well and the person whose interest is
sought to be charged with the respective proportionate part
of the cost of the drilling.
(3) A person who may enter and enters land in Indiana for the
purpose of exploring, prospecting, testing, surveying, or
otherwise investigating the potential of the land for oil and
gas, or for the purpose of conducting operations on the land
for the production of oil and gas, is accountable to the owner
of the surface of the land for the actual damage resulting from
the person's activities on the land to:
Indiana:
(1) to the extent permitted by; and
(2) in a manner consistent with;
the nature of the estate in law as specified under this chapter.
(b) This chapter is intended to declare the law of this state with
regard to the subject matter treated in this chapter as the law
existed before March 5, 1951.
(c) This chapter does not affect the rights or powers of any
commission, board, or authority duly constituted for the regulation
of the oil and gas industry in Indiana.
Chapter 8. Oil and Gas: Cancellation of Contracts and Leases
for Oil and Gas
Sec. 1. (a) Leases for oil and gas that are recorded in Indiana
are void:
(1) after a period of one (1) year has elapsed since:
(A) the last payment of rentals on the oil and gas lease as
stipulated in the lease or contract; or
(B) operation for oil or gas has ceased, both by the
nonproduction of oil or gas and the nondevelopment of the
lease; and
(2) upon the written request of the owner of the land,
accompanied by the affidavit of the owner stating that:
(A) no rentals have been paid to or received by the owner
or any person, bank, or corporation in the owner's behalf
for a period of one (1) year after they have become due;
and
(B) the leases and contracts have not been operated for the
production of oil or gas for one (1) year.
Sec. 2. (a) The recorder of the county in which real estate
described in section 1 of this chapter is situated shall certify upon
the face of the record of the oil and gas lease that:
(1) the leases and contracts are invalid and void by reason of
nonpayment of rentals; and
(2) the oil and gas lease is canceled of record.
(b) The request and affidavit shall be recorded in the
miscellaneous records of the recorder's office.
Sec. 3. If, at any time after the cancellation of a lease and
contract and within the term provided in the lease or contract, the
lessee submits to the recorder:
(1) a receipt or a canceled check, or an affidavit, showing that
the rental has been paid; or
(2) an affidavit that:
provided in this section, the mineral interest is considered to be in
use on the date the statement of claim is filed.
Sec. 5. Failure to file a statement of claim within the time
provided in section 4 of this chapter does not cause a mineral
interest to be extinguished if the owner of the mineral interest:
(1) was, at the time of the expiration of the period specified in
section 4 of this chapter, the owner of ten (10) or more
mineral interests in the county in which the mineral interest
is located;
(2) made a diligent effort to preserve all the mineral interests
that were not being used and, not more than ten (10) years
before the expiration of the period specified in section 4 of this
chapter, preserved other mineral interests in the county by
filing statements of claim as required under this chapter;
(3) failed to preserve the mineral interest through
inadvertence; and
(4) filed the statement of claim required under this chapter:
(A) not more than sixty (60) days after publication of
notice as specified in section 6 of this chapter; and
(B) if a notice referred to in clause (A) is not published, not
more than sixty (60) days after receiving actual knowledge
that the mineral interest had lapsed.
Sec. 6. (a) A person who succeeds to the ownership of a mineral
interest may, upon the lapse of the mineral interest, give notice of
the lapse of the mineral interest by:
(1) publishing notice in a newspaper of general circulation in
the county in which the mineral interest is located; and
(2) if the address of the mineral interest owner is shown of
record or can be determined upon reasonable inquiry, by
mailing, not more than ten (10) days after publication, a copy
of the notice to the owner of the mineral interest.
(b) The notice required under subsection (a) must state:
(1) the name of the owner of the mineral interest, as shown of
record;
(2) a description of the land; and
(3) the name of the person giving the notice.
(c) If a copy of the notice required under subsection (a) and an
affidavit of service of the notice are promptly filed in the office of
the recorder in the county where the land is located, the record is
prima facie evidence in a legal proceeding that notice was given.
Sec. 7. Upon the filing of the statement of claim specified in
section 4 of this chapter or the proof of service of notice specified
in section 6 of this chapter in the recorder's office for the county
where a mineral interest is located, the recorder shall:
(1) record the filing in a book to be kept for that purpose, to
be known as the "dormant mineral interest record"; and
(2) indicate by marginal notation on the instrument creating
the original mineral interest the filing of the statement of
claim or affidavit of publication and service of notice.
Sec. 8. The provisions of this chapter may not be waived at any
time before the expiration of the twenty (20) year period provided
in section 2 of this chapter.
Chapter 11. Abandoned Railroad Rights-of-Way
Sec. 1. This chapter does not apply to a railroad right-of-way
that is abandoned as part of a demonstration project for the
relocation of railroad lines from the central area of a city as
provided under Section 163 of the Federal-Aid Highway Act of
1973 (P.L.93-87, Title I, Section 163).
Sec. 2. As used in this chapter, "public utility" has the meaning
set forth in IC 8-1-8.5-1.
Sec. 3. (a) As used in this chapter, "railroad" refers to a
railroad company.
(b) The term includes a person to whom any part of a
right-of-way was transferred under the Regional Rail
Reorganization Act of 1973 (45 U.S.C. 701 et seq.).
Sec. 4. (a) As used in this chapter, "right-of-way" means a strip
or parcel of real property in which a railroad has acquired an
interest for use as a part of the railroad's transportation corridor.
(b) The term does not refer to any real property interest in the
strip or parcel.
Sec. 5. "Right-of-way fee" refers to the fee simple interest in the
real property through which a right-of-way runs.
Sec. 6. (a) Except as provided in subsection (b) and in sections
7 and 8 of this chapter, a right-of-way is considered abandoned if
any of subdivisions (1) through (3) apply:
(1) Before February 28, 1920, both of the following occurred:
(A) The railroad discontinued use of the right-of-way for
railroad purposes.
(B) The rails, switches, ties, and other facilities were
removed from the right-of-way.
(2) After February 27, 1920, both of the following occur:
(A) The Interstate Commerce Commission or the United
States Surface Transportation Board issues a certificate of
public convenience and necessity relieving the railroad of
the railroad's common carrier obligation on the
right-of-way.
(B) The earlier of the following occurs:
(i) Rails, switches, ties, and other facilities are removed
from the right-of-way, making the right-of-way unusable
for continued rail traffic.
(ii) At least ten (10) years have passed from the date on
which the Interstate Commerce Commission or the
United States Surface Transportation Board issued a
certificate of public convenience and necessity relieving
the railroad of its common carrier obligation on the
right-of-way.
(3) The right-of-way was abandoned under the Regional Rail
Reorganization Act of 1973 (45 U.S.C. 701 et seq.).
(b) A right-of-way is not considered abandoned if:
(1) rail service continues on the right-of-way; or
(2) the railroad has entered into an agreement preserving rail
service on the right-of-way.
Sec. 7. A right-of-way is not considered abandoned if the
Interstate Commerce Commission or the United States Surface
Transportation Board imposes on the right-of-way a trail use
condition under 16 U.S.C. 1247(d).
Sec. 8. (a) A right-of-way is not considered abandoned if the
following conditions are met:
(1) The railroad sells the railroad's rights in the right-of-way
before abandoning the right-of-way.
(2) The purchaser of the railroad's rights in the right-of-way
is not a railroad.
(3) The purchaser purchases the right-of-way for use by the
purchaser to transport goods or materials by rail.
(b) A railroad may discontinue rail service on the right-of-way
without abandoning the right-of-way.
Sec. 9. If a railroad conveys its interest in a right-of-way, the
railroad conveys not more than the interest it holds at the time of
the conveyance.
Sec. 10. (a) This section applies if a railroad does not own the
right-of-way fee.
(b) If a railroad abandons its right to a railroad right-of-way,
the railroad's interest vests in the owner of the right-of-way fee
with a deed that contains a description of the real property that
includes the right-of-way.
(c) If a deed described in subsection (b) does not exist, then the
railroad's interest vests in the owner of the adjoining fee. The
interest of the railroad that vests in the owner of the adjoining fee
is for the part of the right-of-way from the center line of the
right-of-way to the adjoining property line.
Sec. 11. (a) The vesting of a railroad's interest under section 10
of this chapter does not divest a valid public utility,
communication, cable television, fiber optic, or pipeline easement,
license, or legal occupancy if the railroad granted the easement
before the date on which the railroad abandoned the right-of-way.
(b) This chapter does not deprive a public utility,
communication company, cable television company, fiber optic
company, or pipeline company of the use of all or part of a
right-of-way if, at the time of abandonment, the company:
(1) is occupying and using all or part of the right-of-way for
the location and operation of the company's facilities; or
(2) has acquired an interest for use of all or part of the
right-of-way.
(c) This chapter does not do the following:
(1) Limit the right of the owner of a right-of-way fee to
demand compensation from a railroad or a utility for the
value of an interest taken and used or occupied after
abandonment.
(2) Grant to the owner of a right-of-way fee the right to obtain
duplicative compensation from a utility or pipeline company
for the value of the use of any portion of the right-of-way that
is subject to the terms of an agreement previously entered into
between the utility or pipeline company and the owner of the
right-of-way fee. For purposes of this subdivision, "pipeline"
does not include a coal slurry pipeline.
Sec. 12. (a) A person may bring an action to establish full rights
of possession of the person's right-of-way fee in any part of a
right-of-way that is burdened by an easement for railroad purposes
not more than thirty (30) years after the right-of-way is abandoned
under this chapter.
(b) A person may commence an action to establish the person's
ownership of a right-of-way fee in any part of a right-of-way by
enforcing a possibility of reverter or a right of entry under
IC 32-17-10.
Sec. 13. Except as provided in section 14 of this chapter, the
ownership of a right-of-way fee is determined under the same
principles that fee simple ownership in property is otherwise
determined under Indiana law.
owned by a person who is an incapacitated person (as defined in
IC 29-3-1-7.5) or less than eighteen (18) years of age, the person
seeking to acquire the property may purchase the property from
the guardian of the incapacitated person or person less than
eighteen (18) years of age. If the purchase is approved by the court
appointing the guardian and the approval is written upon the face
of the deed, the conveyance of the property purchased and the deed
made and approved by the court are valid and binding upon the
incapacitated person or persons less than eighteen (18) years of
age.
(d) The deed given, when executed instead of condemnation,
conveys only the interest stated in the deed.
(e) If property is taken by proceedings under this article, the
entire fee simple title may be taken and acquired if the property is
taken for any purpose other than a right-of-way.
Sec. 4. (a) If the person seeking to acquire the property does not
agree with the owner of an interest in the property or with the
guardian of an owner concerning the damages sustained by the
owner, the person seeking to acquire the property may file a
complaint for that purpose with the clerk of the circuit court of the
county where the property is located.
(b) The complaint must state the following:
(1) The name of the person seeking to acquire the property.
This person shall be named as the plaintiff.
(2) The names of all owners, claimants to, and holders of liens
on the property, if known, or a statement that they are
unknown. These owners, claimants, and holders of liens shall
be named as defendants.
(3) The use the plaintiff intends to make of the property or
right sought to be acquired.
(4) If a right-of-way is sought, the location, general route,
width, and the beginning and end points of the right-of-way.
(5) A specific description of each piece of property sought to
be acquired and whether the property includes the whole or
only part of the entire parcel or tract. If property is sought to
be acquired by the state or by a county for a public highway
or by a municipal corporation for a public use and the
acquisition confers benefits on any other property of the
owner, a specific description of each piece of property to
which the plaintiff alleges the benefits will accrue. Plats of
property alleged to be affected may accompany the
descriptions.
transportation services interrupted by the disaster or
unforeseeable events. However, the condemnor shall be responsible
to the property owner for all damages occasioned by the entry, and
the condemnor shall immediately vacate the property entered upon
as soon as utility or transportation services interrupted by the
disaster or unforeseeable event have been restored.
Sec. 6. (a) Upon the filing of a complaint under this chapter, the
circuit court clerk shall issue a notice requiring the defendants to
appear before the court on the day to be fixed by the plaintiff by
indorsement on the complaint at the time of filing the complaint,
and to show cause, if any, why the property sought to be
condemned should not be acquired. The notice shall be
substantially in the following form:
the treasurer of the county.
(c) The court, being satisfied of the regularity of the proceedings
and the right of the plaintiff to exercise the power of eminent
domain for the use sought, shall appoint three (3) disinterested
freeholders of the county to assess the damages, or the benefits and
damages, as the case may be, that the owner or owners severally
may sustain, or be entitled to, by reason of the acquisition.
Sec. 8. (a) A defendant may object to the proceedings:
(1) because the court does not have jurisdiction either of the
subject matter or of the person;
(2) because the plaintiff does not have the right to exercise the
power of eminent domain for the use sought; or
(3) for any other reason disclosed in the complaint or set up
in the objections.
(b) Objections under subsection (a) must be:
(1) in writing;
(2) separately stated and numbered; and
(3) filed not later than the first appearance of the defendant.
(c) The court may not allow pleadings in the cause other than
the complaint, any objections, and the written exceptions provided
for in section 11 of this chapter. However, the court may permit
amendments to the pleadings.
(d) If an objection is sustained, the plaintiff may amend the
complaint or may appeal from the decision in the manner that
appeals are taken from final judgments in civil actions. All the
parties shall take notice and are bound by the judgment in an
appeal.
(e) If the objections are overruled, the court shall appoint
appraisers as provided for in this chapter. Any defendant may
appeal the interlocutory order overruling the objections and
appointing appraisers in the manner that appeals are taken from
final judgments in civil actions upon filing with the circuit court
clerk a bond:
(1) with the penalty that the court fixes;
(2) with sufficient surety;
(3) payable to the plaintiff; and
(4) conditioned for the diligent prosecution of the appeal and
for the payment of the judgment and costs that may be
affirmed and adjudged against the appellants.
The appeal bond must be filed not later than ten (10) days after the
appointment of the appraisers.
(f) All the parties shall take notice of and be bound by the
judgment in the appeal.
(g) The transcript must be filed in the office of the clerk of the
supreme court not later than thirty (30) days after the filing of the
appeal bond. The appeal does not stay proceedings in the cause.
Sec. 9. (a) Each appraiser shall take an oath that:
(1) the appraiser has no interest in the matter; and
(2) the appraiser will honestly and impartially make the
assessment.
(b) After the appraisers are sworn as provided in subsection (a),
the judge shall instruct the appraisers as to:
(1) their duties as appraisers; and
(2) the measure of the damages and benefits, if any, they
allow.
(c) The appraisers shall determine and report all of the
following:
(1) The fair market value of each parcel of property sought to
be acquired and the value of each separate estate or interest
in the property.
(2) The fair market value of all improvements pertaining to
the property, if any, on the portion of the property to be
acquired.
(3) The damages, if any, to the residue of the property of the
owner or owners caused by taking out the part sought to be
acquired.
(4) The other damages, if any, that will result to any persons
from the construction of the improvements in the manner
proposed by the plaintiff.
(d) If the property is sought to be acquired by the state or by a
county for a public highway or a municipal corporation for a
public use that confers benefits on any property of the owner, the
report must also state the benefits that will accrue to each parcel
of property, set opposite the description of each parcel of property
whether described in the complaint or not.
(e) Except as provided in subsection (f), in estimating the
damages specified in subsection (c), the appraisers may not deduct
for any benefits that may result from the improvement.
(f) In the case of a condemnation by the state or by a county for
a public highway or a municipal corporation for public use, the
appraisers shall deduct any benefits assessed from the amount of
damage allowed, if any, under subsection (c)(3) and (c)(4) and the
difference, if any, plus the damages allowed under subsection (c)(1)
and (c)(2) shall be the amount of the award. However, the damages
awarded may not be less than the damages allowed under
subsection (c)(1) and (c)(2). Upon the trial of exceptions to the
award by either party, a like measure of damages must be
followed.
(g) For the purpose of assessing compensation and damages, the
right to compensation and damages is considered to have accrued
as of the date of the service of the notice provided in section 6 of
this chapter, and actual value of compensation and damages at that
date shall be:
(1) the measure of compensation for all property to be
actually acquired; and
(2) the basis of damages to property not actually acquired but
injuriously affected;
except as to the damages stated in subsection (c)(4).
Sec. 10. (a) If the plaintiff pays to the circuit court clerk the
amount of damages assessed under section 9 of this chapter, the
plaintiff may take possession of and hold the interest in the
property so acquired for the uses stated in the complaint, subject
to the appeal provided for in section 8 of this chapter. But the
amount of the benefits or damages is subject to review as provided
in section 11 of this chapter.
(b) Upon payment by the plaintiff of the amount of the award of
the court appointed appraisers, the plaintiff shall file or cause to be
filed with the auditor of the county in which the property is located
a certificate, certifying the amount paid to the circuit court clerk
and including the description of the property being acquired. The
auditor of the county shall then transfer the property being
acquired to the plaintiff on the tax records of the county.
Sec. 11. (a) Any party to an action under this chapter aggrieved
by the assessment of benefits or damages may file written
exceptions to the assessment in the office of the circuit court clerk.
Exceptions to the assessment must be filed not later than twenty
(20) days after the filing of the report.
(b) The cause shall further proceed to issue, trial, and judgment
as in civil actions. The court may make orders and render findings
and judgments that the court considers just.
(c) Notice of filing of the appraisers' report shall be given by the
circuit court clerk to all known parties to the action and their
attorneys of record by certified mail. The period of exceptions shall
run from and after the date of mailing. Either party may appeal a
judgment as to benefits or damages as in civil actions.
(d) Twenty (20) days after the filing of the report of the
appraisers, and if the plaintiff has paid the amount of damages
assessed to the circuit court clerk, any one (1) or more of the
defendants may file a written request for payment of each
defendant's proportionate share of the damages held by the circuit
court clerk. The defendants making a request for payment must
also file sufficient copies of the request for service upon the
plaintiff and all other defendants not joining in the request. The
defendants making the request may withdraw and receive each
defendant's proportionate share of the damages upon the following
terms and conditions:
(1) Each written request must:
(A) be verified under oath; and
(B) state:
(i) the amount of the proportionate share of the damages
to which each of the defendants joining in the request is
entitled;
(ii) the interest of each defendant joining in the request;
and
(iii) the highest offer made by the plaintiff to each of the
defendants for each defendant's respective interests in or
damages sustained in respect to the property that has
been acquired by the plaintiff.
(2) Upon the filing of a written request for withdrawal and
payment of damages to any of the defendants, the circuit
court clerk shall immediately issue a notice to the plaintiff and
all defendants of record in the cause who have not joined in
the request for payment. The notice must contain the
following:
(A) The names of the parties.
(B) The number of the cause.
(C) A statement that a request for payment has been filed.
(D) A notice to appear on a day, to be fixed by the court,
and show cause, if any, why the amounts requested should
not be withdrawn and paid over by the circuit court clerk
to those defendants requesting the amounts to be paid.
(E) A copy of the request for payment.
If a defendant not requesting payment is a nonresident of
Indiana, or if that defendant's name or residence is unknown,
publication and proof of the notice and request for payment
shall be made as provided in section 4 of this chapter.
(3) After a hearing held after notice of a written request made
under this section, the court shall determine and order the
payment by the circuit court clerk of the proportionate shares
of the damages due to the defendants requesting payment.
Any of the defendants may appeal an order under this
subdivision within the same time and in the same manner as
provided for allowable appeals from interlocutory orders in
civil actions.
(4) If exceptions to the appraisers' report have been duly filed
by the plaintiff or any defendant, the circuit court clerk may
not make payment to any defendant of any part of the
damages deposited with the clerk by the plaintiff until the
defendants requesting payment have filed with the circuit
court clerk a written undertaking, with surety approved by
the court, for the repayment to the plaintiff of all sums
received by those defendants in excess of the amount or
amounts awarded as damages to those defendants by the
judgment of the court upon trial held on the exceptions to the
assessment of damages by the appraisers. However, the court
may waive the requirement of separate surety as to any
defendant who is a resident freeholder of the county in which
the cause is pending and who is owner of real property in
Indiana that is liable to execution, not included in the real
property appropriated by the plaintiff, and equal in value to
the amount by which the damages to be withdrawn exceed the
amount offered to the defendants as stated in their request or
the amount determined by the court if the plaintiff has
disputed the statement of the offer. A surety or written
undertaking may not be required for a defendant to withdraw
those amounts previously offered by the plaintiff to the
defendant if the plaintiff has previously notified the court in
writing of the amounts so offered. The liability of any surety
does not exceed the amount by which the damages to be
withdrawn exceed the amount offered to the defendants with
whom the surety joins in the written undertaking. Each
written undertaking filed with the circuit court clerk shall be
immediately recorded by the clerk in the order book and
entered in the judgment docket, and from the date of the
recording and entry the written undertaking is a lien upon all
the real property in the county owned by the several obligors,
and the undertaking is also a lien upon all the real property
owned by the several obligors in each county of Indiana in
which the plaintiff causes a certified copy of the judgment
docket entry to be recorded, from the date of the recording.
state board, agency, or commission that succeeds the department
in respect to the duties to locate, relocate, construct, reconstruct,
repair, or maintain the public highways of Indiana, having the
right to exercise the power of eminent domain for the public use,
in its action for condemnation is not required to prove that an offer
of purchase was made to the property owner in an action under
this article.
(b) The court shall on the return day fixed at the time of the
filing of the complaint appoint appraisers as provided by law and
fix a day not later than ten (10) days after the date of the court's
order for the appraisers to appear, qualify, and file their report of
appraisal.
(c) If the appraisers appointed by the court fail to appear,
qualify, and file their report of appraisal as ordered by the court,
the court shall discharge the appraisers and appoint new
appraisers in the same manner as provided in subsection (b).
Sec. 14. (a) Except as provided in subsection (b), the plaintiff
shall pay the costs of the proceedings.
(b) If there is a trial, the additional costs caused by the trial shall
be paid as ordered by the court. However, if there is a trial and the
amount of damages awarded to the defendant by the judgment,
exclusive of interest and costs, is greater than the amount specified
in the last offer of settlement made by the plaintiff under section 12
of this chapter, the court shall allow the defendant the defendant's
litigation expenses in an amount not to exceed two thousand five
hundred dollars ($2,500).
Sec. 15. (a) If the person seeking to take property under this
article fails:
(1) to pay the assessed damages not later than one (1) year
after the appraisers' report is filed, if exceptions are not filed
to the report;
(2) to pay:
(A) the damages assessed if exceptions are filed to the
appraisers' report and the exceptions are not sustained; or
(B) the damages assessed and costs if exceptions are filed
to the appraisers' report and the exceptions are sustained;
not later than one (1) year after the entry of the judgment, if
an appeal is not taken from the judgment;
(3) to pay the damages assessed or the judgment rendered in
the trial court not later than one (1) year after final judgment
is entered in the appeal if an appeal is taken from the
judgment of the trial court; or
this chapter; or
(2) another statute provides for proceedings by a municipality
for acquiring property under this chapter;
the board exercising those powers may proceed under IC 32-24-1
instead of this chapter.
Sec. 6. (a) This chapter applies if the works board of a
municipality wants to acquire property for the use of the
municipality or to open, change, lay out, or vacate a street, an
alley, or a public place in the municipality, including a proposed
street or alley crossings of railways or other rights-of-way.
(b) The works board must adopt a resolution that the
municipality wants to acquire the property. The resolution must
describe the property that may be injuriously or beneficially
affected. The board shall have notice of the resolution published in
a newspaper of general circulation published in the municipality
once each week for two (2) consecutive weeks. The notice must
name a date, at least ten (10) days after the last publication, at
which time the board will receive or hear remonstrances from
persons interested in or affected by the proceeding.
(c) The works board shall consider the remonstrances, if any,
and then take final action, confirming, modifying, or rescinding its
original resolution. This action is conclusive as to all persons.
Sec. 7. (a) When the final action under section 6 of this chapter
is taken, the works board shall have prepared the following:
(1) A list of all the owners or holders of the property, and of
interests in it, sought to be acquired or to be injuriously
affected.
(2) If a street, alley, or public place is to be opened, laid out,
changed, or vacated in the municipality, or within four (4)
miles of it, a list of the owners or holders of property, and of
interests in it, to be beneficially affected by the work.
(b) The list required by subsection (a) may not be confined to
the owners of property along the line of the proposed work but
must include all property taken, benefitted, or injuriously affected.
In addition to the names, the list must show, with reasonable
certainty, a description of each piece of property belonging to those
persons that will be acquired or affected, either beneficially or
injuriously. A greater certainty in names or descriptions is not
necessary for the validity of the list than is required in the
assessment of taxes.
Sec. 8. (a) Upon the completion of the list, the works board shall
award the damages sustained and assess the benefits accruing to
each piece of property on the list.
(b) When the assessments or awards are completed, the works
board shall have a written notice served upon the owner of each
piece of property, showing the amount of the assessment or award,
by leaving a copy of the notice at the owner's last usual place of
residence in the municipality or by delivering a copy to the owner
personally.
(c) If the owner is a nonresident, or if the owner's residence is
unknown, the municipality shall notify the owner by publication in
a daily newspaper of general circulation in the municipality once
each week for three (3) successive weeks.
(d) The notices must also name a day, at least ten (10) days after
service of notice or after the last publication, on which the works
board will receive or hear remonstrances from persons with regard
to the amount of their respective awards or assessments.
(e) Persons not included in the list of the assessments or awards
and claiming to be entitled to them are considered to have been
notified of the pendency of the proceedings by the original notice
of the resolution of the works board.
Sec. 9. (a) If a person having an interest in property affected by
the proceedings is mentally incompetent or less than eighteen (18)
years of age, the works board shall certify that fact to the
municipality's attorney.
(b) The municipality's attorney shall apply to the proper court
and secure the appointment of a guardian for the person less than
eighteen (18) years of age or the mentally incompetent person. The
works board shall give notice to the guardian, who shall appear
and defend the interest of the protected person. However, if the
protected person already has a guardian, the notice shall be served
on that guardian. The requirements of notice to the guardian are
the same as for other notices.
(c) If there is a defect in the proceedings with respect to at least
one (1) interested person, the defect does not affect the proceedings
except as it may concern the interest or property of those persons,
and the defect does not affect any other person concerned.
(d) In case of a defect, supplementary proceedings of the same
general character as those prescribed by this chapter may be
initiated in order to correct the defect.
Sec. 10. (a) A person notified or considered to be notified under
this chapter may appear before the works board on the day fixed
for hearing remonstrances to awards and assessments and
remonstrate in writing against them.
constitutes a lien superior to all other liens except taxes against the
respective lot or parcel.
(b) The fiscal officer of the municipality shall immediately
prepare a list of the excess of benefits, to be known as the local
assessment list. If the municipality is a second class city and the
county treasurer collects money due the city, the local assessment
list shall be delivered to the county treasurer.
(c) The duties of the fiscal officer of the municipality and county
treasurer are the same as prescribed with regard to assessments
for street improvement. The provisions of the statute relating to:
(1) the payment of street improvement assessments by
installments on the signing of waivers and issuance of bonds
and coupons in anticipation;
(2) the duties of the fiscal officer and the county treasurer in
relation to them; and
(3) the enforcement of payment of assessments in proceedings
for the improvement of streets by the works board;
applies to these assessments.
Sec. 13. (a) The benefit assessments are due and payable to the
fiscal officer or county treasurer from the time of the preparation
or delivery of the assessment duplicate.
(b) If an assessment is not paid within sixty (60) days, the
municipality, by its attorney, shall proceed to foreclose the liens as
mortgages are foreclosed, with similar rights of redemption, and
have the property sold to pay the assessments. The municipality
may recover costs, with reasonable attorney's fees, and interest
from the expiration of the sixty (60) days allowed for payment, at
the rate of six percent (6%) per year.
(c) If the person against whom the assessment is made is a
resident of the municipality, demand for payment must be made by
delivering to the person personally, or leaving at the person's last
or usual place of residence, a notice of the assessment and demand
for payment.
Sec. 14. The works board may determine if any part of the
damages awarded shall be paid out of funds appropriated for the
use of the board. However, not more than two thousand dollars
($2,000) in damages may be paid out of the municipality's funds for
any improvement or condemnation except under an ordinance
appropriating money for the specific improvement or
condemnation. All benefits assessed and collected by the fiscal
officer or county treasurer are subject to draft, in the usual
manner, upon certificate by the works board in favor of persons to
whom damages have been awarded. Any surplus remaining above
actual awards belongs to the municipality. The works board may
delay proceedings until the benefits have been collected.
Sec. 15. (a) Upon completion of the award of damages or
whenever any time for delay as provided has expired, the works
board shall make out certificates for the proper amounts and in
favor of the proper persons. Presentation of the certificates to the
fiscal officer of the municipality entitles the person to a warrant on
the fiscal officer or the county treasurer. The certificates or
vouchers shall, whenever practicable, be actually tendered to the
persons entitled to them, but when this is impracticable, they shall
be kept for the persons in the office of the works board. The
making and fixing of the certificate is a valid and effectual tender
to the person entitled to it, and the certificate must be delivered to
that person on request.
(b) If a dispute or doubt arises as to which person the money
shall be paid, the works board shall make out the certificate in
favor of the municipality's attorney for the use of the persons
entitled to it. The attorney shall draw the money and pay it into
court in a proper proceeding, requiring the various claimants to
interplead and have their respective rights determined.
(c) If an injunction is obtained because damages have not been
paid or tendered, the works board may tender the certificate for
the amount with interest from the time of entry upon the property,
if any has been made, including all accrued costs. The injunction
shall then be dissolved. The pendency of an appeal does not affect
the validity of a tender made under this section, but the
municipality may proceed with its acquisition of the property in
question. However, when a lot or parcel has sustained both benefits
and damages because of improvements as stated in the assessment
list, only an excess of damages awarded over benefits assessed is
payable under this section.
Sec. 16. (a) This section applies whenever the works board of a
municipality located upon or adjoining a harbor connected with a
navigable stream or lake, or upon any navigable channel, slip,
waterway, or watercourse, wants to acquire for the use of the
municipality any property for a right-of-way for seawalls, docks,
or other improvement of the harbor, channel, slip, waterway or
watercourse.
(b) The works board shall adopt a resolution that the
municipality wants to acquire the property, describing the
property that may be injuriously or beneficially affected. All
proceedings necessary for the completion of and payment for any
such undertaking, including notice, remonstrance, appeal, letting
of and performance of contracts, assessment and collection of
payment for benefits, and the determination and payment of
damages to property, are the same, to the extent applicable, as
those proceedings for street improvements of the municipality by
its works board or other entity charged by statute with the
performance of those duties on behalf of the municipality.
Chapter 3. Procedures for State Government
Sec. 1. If the governor considers it necessary:
(1) to acquire property on which to construct public buildings
for the state; or
(2) to acquire property adjoining state property on which
buildings have been erected;
the governor may order the attorney general to file an action in the
name of the state. The attorney general shall file the action in a
court that has jurisdiction in the county in which the property is
located. The state's petition must ask that appraisers be appointed
to appraise the value of the property considered necessary to be
acquired for the public uses of the state.
Sec. 2. Upon filing the petition, the attorney general shall
provide the owners of the property the notice required by law in
the commencement of a civil action. It is sufficient to make
defendants to the petition all persons who are in possession of the
property and those who appear to be the owners or to have any
interest in the property by the tax duplicates and the records in the
offices of the auditor and recorder of the county. After notice has
been given, the court shall appoint three (3) resident freeholders of
the county where the property is located to appraise the value of
the property.
Sec. 3. (a) Before entering upon their duties, the appraisers shall
take and subscribe an oath that they will honestly appraise the
property at its fair cash value.
(b) The appraisers shall make a report of their appraisement
within a time fixed by the court.
(c) If the appraisers fail for any cause to make a report within
the time fixed by the court, the court may extend the time or may
appoint other appraisers.
Sec. 4. (a) After the appraisers file their report, any of the
defendants may, within a reasonable time fixed by the court, file
exceptions to the report, alleging that the appraisement of the
property, as made by the appraisers, is not the true cash value of
the property. If exceptions are filed, a trial on the exceptions shall
be held by the court or before a jury, if asked by either party.
(b) The circuit court clerk shall give notice of filing of the
appraisers' report to all known parties to the action and their
attorneys of record by certified mail.
(c) Upon the trial of the exceptions, the court may revise,
correct, amend, or confirm the appraisement in accordance with
the finding of the court or verdict of the jury.
(d) The court shall apportion the costs accruing in the
proceedings as justice may require.
(e) Changes of venue may be had as in other cases.
Sec. 5. When the value of the property has been finally
determined by the court, the governor may provide for the amount
so found and may direct the auditor of state to draw a warrant on
the treasurer of state to be paid out of any fund available in favor
of the clerk of the circuit court. The clerk shall receive the money
and hold it in court for the use of the owners and other persons
adjudged to be entitled to the money.
Sec. 6. Upon payment to the clerk of the circuit court and the
filing of a receipt for the payment of the money in open court as a
part of the proceedings of the cause, the court shall direct the clerk
of the circuit court to:
(1) execute a deed conveying the title of the property to the
state of Indiana; and
(2) deliver the deed to the governor.
Chapter 4. Procedures for Utilities and Other Corporations
Sec. 1. (a) A person, firm, partnership, limited liability
company, or corporation authorized to do business in Indiana and
authorized to:
(1) furnish, supply, transmit, transport or distribute electrical
energy, gas, oil, petroleum, water, heat, steam, hydraulic
power, or communications by telegraph or telephone to the
public or to any town or city; or
(2) construct, maintain or operate turnpikes, toll bridges,
canals, public landings, wharves, ferries, dams, aqueducts,
street railways, or interurban railways for the use of the
public or for the use of any town or city;
may take, acquire, condemn, and appropriate land, real estate, or
any interest in the land or real estate.
(b) A person described in subsection (a) has all
accommodations, rights, and privileges necessary to accomplish the
use for which the property is taken. A person acting under
subsection (a) may use acquired, condemned, or appropriated land
to construct railroad siding, switch, or industrial tracks connecting
its plant or facilities with the tracks of any common carrier.
Sec. 2. The condemnor may take, acquire, condemn, and
appropriate a fee simple estate, title, and interest in an amount of
land as the condemnor considers necessary for the condemnor's
proper uses and purposes. However, for rights-of-way, the
condemnor shall take, acquire, condemn, and appropriate an
easement.
Sec. 3. The appropriation and condemnation of land and
easements in land authorized under this chapter shall be made
under IC 32-24-1, except as otherwise provided in this chapter.
Sec. 4. (a) This section applies to a public utility that
appropriates by condemnation procedures an easement for
right-of-way purposes on land zoned or used for agricultural
purposes.
(b) If a public utility makes a uniform easement acquisition
offer under IC 32-24-1-5 or a settlement offer under IC 32-24-1-12
in excess of five thousand dollars ($5,000), the owner of the land
may elect to accept as compensation either a lump sum payment or
annual payments for a period not to exceed twenty (20) years.
(c) The landowner must elect either the lump sum payment or
the annual payment method at the time the landowner:
(1) accepts the public utility's offer under IC 32-24-1-5 or
IC 32-24-1-12 to purchase an easement;
(2) accepts the appraisers' award; or
(3) is awarded damages by a judgment in a proceeding under
this article.
The grant of easement or judgment, whichever is applicable, must
state the method of payment the landowner has elected to receive.
(d) If the land is owned by more than one (1) person, the election
to receive annual payments must be unanimous among all record
owners to be binding upon the public utility.
(e) Selection of the lump sum method of payment irrevocably
binds the landowner and the landowner's successors in interest.
(f) The annual amount payable must be equal to the lump sum
payment that would have otherwise been made by the utility
divided by the number of years the landowner elects to receive the
annual payments plus interest at a rate agreed upon by the public
utility and the landowner on the balance remaining at the end of
each year. The public utility shall make the annual payment as
close as practicable to the date of the landowner's acceptance of the
public utility's offer or the date of the judgment granting the utility
the easement. If the public utility and the landowner are unable to
agree upon the interest rate, the interest rate shall be the average
annual effective interest rate for all new Federal Land Bank Loans,
computed on the basis of the twelve (12) month period immediately
preceding the date of settlement.
(g) A landowner who withdraws the appraisers' award under
IC 32-24-1-11 may receive only a lump sum payment from the
clerk at that time. If the landowner is later awarded a judgment for
damages that exceeds the amount of the appraisers' award, the
landowner may elect either method of compensation only to the
extent that the damages exceed the appraisers' award remaining
to be paid by the public utility as a result of the judgment.
(h) A landowner who elects the annual payment method may
terminate the election by giving notarized written notice to the
public utility at least ninety (90) days before the annual date of
payment. The public utility may prescribe reasonable forms for the
notice and may require that these forms be used for the notice to
be effective. In the event the landowner terminates this election, the
public utility shall pay the landowner in a single payment the
difference between the lump sum and the total of all annual
payments previously paid by the public utility. Upon the
landowner's receipt of this payment, the public utility's payment
obligations cease.
(i) If a landowner sells the landowner's entire interest in the
servient estate, the landowner shall give the public utility prompt
notarized written notice of the sale, together with a copy of the
deed specifying the name and address of the landowner's successor
in interest. If the public utility receives the notice less than ninety
(90) days before the date of an annual payment, the public utility
may make this annual payment to the landowner but must make all
successive payments to the landowner's successors and assigns.
(j) If a landowner sells less than the landowner's entire interest
in the servient estate, the public utility may continue to make the
annual payments to the landowner.
(k) A public utility shall make annual payments to the
landowner only for the time the servient estate continues to be
zoned or used for agricultural purposes. If the servient estate is no
longer zoned or used for agricultural purposes, the public utility
shall pay to the landowner the difference between the lump sum
and the total of all annual payments previously paid by the public
utility. Upon the landowner's receipt of this payment, the public
utility's payment obligations cease.
(l) This section is binding upon the heirs, successors, and assigns
of the landowner and the public utility.
(m) Every offer of a public utility under IC 32-24-1-5 and
IC 32-24-1-12 must include the following statement in at least ten
(10) point boldface type capital letters:
"IF THIS OFFER IS OVER FIVE THOUSAND DOLLARS
($5,000), YOU MAY ELECT UNDER IC 32-24-4-4 TO
ACCEPT PAYMENT IN A LUMP SUM PAYMENT OR IN
ANNUAL PAYMENTS FOR A PERIOD NOT TO EXCEED
TWENTY (20) YEARS WITH INTEREST. IF YOU ELECT
ANNUAL PAYMENTS, THEN POSSESSION WILL BE
REQUIRED THIRTY (30) DAYS AFTER YOU HAVE
RECEIVED YOUR FIRST ANNUAL PAYMENT.".
(n) Every offer of a public utility under IC 32-24-1-5 and
IC 32-24-1-12 must also include a form to be used by the
landowner to accept the offer that substantially contains the
following:
purposes set forth in this section may be condemned.
(d) Except with respect to a proceeding under this chapter to:
(1) acquire the right to explore and examine a subsurface
stratum or formation in land; and
(2) create the right of ingress and egress for operations
connected to the acquisition;
and subject to subsection (e), as a condition precedent to the
exercise of the right to condemn any underground stratum,
formation, or interest reasonably expected to be used or useful for
underground gas storage, a condemnor first must have acquired by
purchase, option, lease, or other method not involving
condemnation, the right, or right upon the exercise of an option, if
any, to store gas in at least sixty per cent (60%) of the stratum or
formation. This must be computed in relation to the total surface
acreage overlying the entire stratum or formation considered
useful for the purpose.
(e) A tract under which the stratum or formation sought to be
condemned is owned by two (2) or more persons, firms, limited
liability companies, or corporations must be credited to the
condemnor as acquired by it for the purpose of computing the
percentage of acreage acquired by the condemnor in complying
with the requirement of subsection (d) if the condemnor acquires
from the owner or owners of an undivided three-fourths (3/4) part
or interest or more of the underground stratum or formation, by
purchase, option, lease, or other method not involving
condemnation, the right, or right upon the exercise of an option, if
any, to store gas in the stratum or formation. It is not necessary for
the condemnor to have acquired any interest in the property in
which the condemnee has an interest before instituting a
proceeding under this chapter.
Sec. 3. (a) The rights acquired by condemnation must be without
prejudice to the rights and interests of the owners or their lessees
to:
(1) execute oil and gas leases;
(2) drill or bore to any other strata or formation not
condemned; and
(3) produce oil and gas discovered.
However, any drilling and all operations in connection with the
drilling must be performed in a manner that protects the strata or
formations condemned against the loss of gas and against
contamination of the reservoir by water, oil, or other substance
that will affect the use of the condemned strata or formations for
gas storage purposes.
(b) If the owners of mineral rights or the owners' lessees drill
into land in which gas storage rights have been condemned under
this chapter, the owners of mineral rights or their lessees shall give
notice to the owner of the gas storage stratum, formation, or
horizon at least thirty (30) days before commencing the drilling.
The notice must specify the location and nature of the operations,
including the depth to be drilled. The notice must be given by
United States registered or certified mail, return receipt requested,
and addressed to the usual business address of the owner or owners
of the gas storage stratum or formation condemned under this
chapter.
(c) It is the duty of the owner of a gas storage stratum or
formation to designate all necessary procedures for protecting the
gas storage area. The actual costs incurred over and above
customary and usual drilling and other costs that would have been
incurred without compliance with the requirements shall be borne
by the owner of the gas storage stratum or formation. An owner or
lessee of mineral interests other than gas storage rights is not
responsible for an act done under such a requirement or the
consequences of this act.
Sec. 4. Only the rights in land necessary for use in connection
with underground storage of gas and those subsurface strata
adaptable for underground storage of gas may be appropriated
and condemned under this chapter. Rights in the subsurface of
land constituting a part of a geological structure are deemed
necessary to the operation of an underground storage reservoir in
the structure. In determining the compensation to be paid to the
owner of an oil producing stratum, or interest in the stratum,
condemned under this chapter, proof may be offered and
consideration must be given to potential recovery, if any, of oil
from a stratum by secondary or other subsequent recovery
processes in addition to potential recovery by a primary process.
Sec. 5. The appropriation and condemnation of subsurface
strata or formations in land rights in and easements in land and
subsurface strata or formations authorized by this chapter must be
made under IC 32-24-1.
Chapter 6. Exceptions to Eminent Domain Assessments
Sec. 1. (a) A party may file a written objection in a proceeding
for the condemnation or appropriation of property for public use
brought by:
(1) the state of Indiana;
association of co-owners;
(2) expenses of:
(A) administration;
(B) maintenance;
(C) repair; or
(D) replacement;
of the common areas and facilities;
(3) expenses agreed upon as common expenses by the
association of co-owners; and
(4) expenses declared common expenses by:
(A) this chapter;
(B) the declaration; or
(C) the bylaws.
Sec. 6. "Common profits" means the balance remaining, after
the deduction of the common expenses, of all:
(1) income;
(2) rents;
(3) profits; and
(4) revenues;
from the common areas and facilities.
Sec. 7. "Condominium" means real estate:
(1) lawfully subjected to this chapter by the recordation of
condominium instruments; and
(2) with respect to which the undivided interests in the
common areas and facilities are vested in the condominium
unit owners.
Sec. 8. "Condominium instruments" means:
(1) the:
(A) declaration;
(B) bylaws;
(C) plats; and
(D) floor plans;
of the condominium; and
(2) any exhibits or schedules to the items listed in subdivision
(1).
Sec. 9. "Condominium unit" means:
(1) an enclosed space:
(A) that consists of one (1) or more rooms occupying all or
part of a floor or floors in a structure of one (1) or more
floors or stories, regardless of whether the enclosed space
is designed:
(i) as a residence;
condominium unit forms a part.
(c) Individual titles and interests with respect to condominium
units are recordable.
Sec. 2. A condominium unit may be held and owned by two (2)
or more persons:
(1) as joint tenants;
(2) as tenants in common;
(3) as tenants by the entirety; or
(4) in any other real property tenancy relationship recognized
under the law of the state.
Sec. 3. (a) Each condominium unit owner is entitled to an
undivided interest in the common areas and facilities as designated
in the declaration. Except as provided in subsection (b), the
undivided interest must be expressed as a percentage interest based
on:
(1) the size of the unit in relation to the size of all units in the
condominium;
(2) the value of each condominium unit in relation to the value
of all condominium units in the condominium; or
(3) the assignment of an equal percentage undivided interest
to each condominium unit.
An undivided interest allocated to each condominium unit in
accordance with this subsection must be indicated in a schedule of
undivided interests in the declaration. However, if the declaration
does not specify the method of allocating the percentage undivided
interests, an equal percentage undivided interest applies to each
condominium unit. The total undivided interests allocated in
accordance with subdivision (1) or (2) must equal one hundred
percent (100%).
(b) With respect to an expandable condominium, the declaration
may allocate undivided interests in the common area on the basis
of value if:
(1) the declaration prohibits the creation of any condominium
units not substantially identical to the condominium units
depicted on the recorded plans of the declaration; or
(2) the declaration:
(A) prohibits the creation of any condominium units not
described in the initial declaration; and
(B) contains a statement on the value to be assigned to each
condominium unit created after the date of the declaration.
(c) Interests in the common areas may not be allocated to any
condominium units to be created within any additional land until
the plats and plans and supplemental declaration depicting the
condominium units to be created are recorded. Simultaneously
with the recording of the plats and plans for the condominium
units to be created, the declarant must execute and record an
amendment to the initial declaration reallocating undivided
interests in the common areas so that the future condominium
units depicted on the plats and plans will be allocated undivided
interests in the common areas on the same basis as the
condominium units depicted in the prior recorded plats and plans.
(d) Except as provided in IC 32-25-8-3, the undivided interest of
the owner of the condominium unit in the common areas and
facilities, as expressed in the declaration, is permanent and may
not be altered without the consent of the co-owners. A consent to
alteration must be stated in an amended declaration, and the
amended declaration must be recorded. The undivided interest
may not be transferred, encumbered, disposed of, or separated
from the condominium unit to which it appertains, and any
purported transfer, encumbrance, or other disposition is void. The
undivided interest is considered to be conveyed or encumbered
with the condominium unit to which it appertains even though the
undivided interest is not expressly mentioned or described in the
conveyance or other instrument.
(e) The common areas and facilities shall remain undivided. A
condominium unit owner or any other person may bring an action
for partition or division of any part of the common areas and
facilities if the property has been removed from this chapter as
provided in IC 32-25-8-12 and IC 32-25-8-16. Any covenant to the
contrary is void.
(f) Each condominium unit owner:
(1) may use the common areas and facilities in accordance
with the purpose for which the common areas and facilities
were intended; and
(2) may not, in the owner's use of the common areas and
facilities, hinder or encroach upon the lawful rights of the
other co-owners.
(g) The:
(1) necessary work of:
(A) maintenance;
(B) repair; and
(C) replacement;
of the common areas and facilities; and
(2) the making of any additions or improvements to the
common areas and facilities:
may be carried out only as provided in this chapter and in the
bylaws.
(h) The association of condominium unit owners has the
irrevocable right, to be exercised by the manager or board of
directors, to have access to each condominium unit from time to
time during reasonable hours as is necessary for:
(1) the maintenance, repair, or replacement of any of the
common areas and facilities:
(A) in the condominium unit; or
(B) accessible from the condominium unit; or
(2) making emergency repairs in the condominium unit
necessary to prevent damage to:
(A) the common areas and facilities; or
(B) another condominium unit.
Sec. 4. (a) Except as provided in subsection (d) or (e), the
co-owners are bound to contribute pro rata, in the percentages
computed under section 3 of this chapter, toward:
(1) the expenses of administration and of maintenance and
repair of the general common areas and facilities and, in the
proper case, of the limited common areas and facilities of the
building; and
(2) any other expense lawfully agreed upon.
(b) A co-owner may not exempt the co-owner from contributing
toward the expenses referred to in subsection (a) by:
(1) waiver of the use or enjoyment of the common areas and
facilities; or
(2) abandonment of the condominium unit belonging to the
co-owner.
(c) All sums assessed by the association of co-owners shall be
established by using generally accepted accounting principles
applied on a consistent basis and shall include the establishment
and maintenance of a replacement reserve fund. The replacement
reserve fund may be used for capital expenditures and replacement
and repair of the common areas and facilities and may not be used
for usual and ordinary repair expenses of the common areas and
facilities. The fund shall be:
(1) maintained in a separate interest bearing account with a
bank or savings association authorized to conduct business in
the county in which the condominium is established; or
(2) invested in the same manner and in the same types of
investments in which the funds of a political subdivision may
be invested:
(A) under IC 5-13-9; or
(B) as otherwise provided by law.
Assessments collected for contributions to the fund are not subject
to gross income tax or adjusted gross income tax.
(d) If permitted by the declaration, the declarant or a developer
(or a successor in interest of either) that is a co-owner of
unoccupied condominium units offered for the first time for sale is
excused from contributing toward the expenses referred to in
subsection (a) for those units for a period that:
(1) is stated in the declaration;
(2) begins on the day that the declaration is recorded; and
(3) terminates no later than the first day of the twenty-fourth
calendar month following the month in which the closing of
the sale of the first condominium unit occurs.
However, if the expenses referred to in subsection (a) incurred by
the declarant, developer, or successor during the period referred
to in this subsection exceed the amount assessed against the other
co-owners, the declarant, developer, or successor shall pay the
amount by which the expenses incurred by the declarant,
developer, or successor exceed the expenses assessed against the
other co-owners.
(e) If the declaration does not contain the provisions referred to
in subsection (d), the declarant or a developer (or a successor in
interest of either) that is a co-owner of unoccupied condominium
units offered for the first time for sale is excused from contributing
toward the expenses referred to in subsection (a) for those units for
a stated period if the declarant, developer, or successor:
(1) has guaranteed to each purchaser in the purchase
contract, the declaration, or the prospectus, or by an
agreement with a majority of the other co-owners that the
assessment for those expenses will not increase over a stated
amount during the stated period; and
(2) has obligated itself to pay the amount by which those
expenses incurred during the stated period exceed the
assessments at the guaranteed level under subdivision (1)
receivable during the stated period from the other co-owners.
Chapter 5. Conveyance Procedures
Sec. 1. (a) At the time of the first conveyance of each
condominium unit:
(1) every mortgage and other lien affecting the condominium
unit, including the unit's percentage of undivided interest in
the common areas and facilities, must be paid and satisfied of
record; or
(2) the condominium unit being conveyed and the unit's
percentage of undivided interest in the common areas and
facilities must be released from the mortgage or other lien by
partial release.
(b) A partial release under subsection (a)(2) must be recorded.
Sec. 2. (a) Except as provided in subsection (b), in a voluntary
conveyance, the grantee of a condominium unit is jointly and
severally liable with the grantor for all unpaid assessments against
the grantor for the grantor's share of the common expenses
incurred before the grant or conveyance, without prejudice to the
grantee's right to recover from the grantor the amounts of
common expenses paid by the grantee.
(b) The grantee:
(1) is entitled to a statement from the manager or board of
directors setting forth the amount of the unpaid assessments
against the grantor; and
(2) is not liable for, nor shall the condominium unit conveyed
be subject to a lien for, any unpaid assessments against the
grantor in excess of the amount set forth in the statement.
Chapter 6. Liens and Encumbrances
Sec. 1. (a) After a declaration is recorded under this article and
while the property remains subject to this article, a lien may not
arise or be effective against the property as a whole. Except as
provided in subsection (b), liens or encumbrances may arise or be
created only against:
(1) each condominium unit; and
(2) the undivided interest in the common areas and facilities
appurtenant to each unit;
in the same manner and under the same conditions as liens or
encumbrances may arise or be created against any other parcel of
real property.
(b) Labor performed or materials furnished with the consent or
at the request of a condominium unit owner, the owner's agent, or
the owner's contractor or subcontractor may not be the basis for
filing a lien under any lien law against the condominium unit or
any other property of any other co-owner not expressly consenting
to or requesting the performance of the labor or the furnishing of
the materials. However, express consent is considered to be given
by the owner of any condominium unit in the case of emergency
repairs to the condominium unit. Labor performed or materials
furnished for the common areas and facilities, if authorized by the
association of co-owners, the manager, or board of directors in
accordance with this article, the declaration, or the bylaws:
(1) are considered to be performed or furnished with the
express consent of each co-owner;
(2) constitute the basis for the filing of a lien under any lien
law against each of the condominium units; and
(3) are subject to subsection (c).
(c) If a lien against two (2) or more condominium units becomes
effective, the owner of a condominium unit against which the lien
is effective may remove the owner's:
(1) unit; and
(2) undivided interest in the common areas and facilities
appurtenant to the unit;
from the lien by payment of the fractional or proportional amounts
attributable to the unit. After the payment, discharge of the lien, or
other satisfaction of the lien, the condominium unit and the
undivided interest in the common areas and facilities appurtenant
to the condominium unit are free and clear of the lien. A partial
payment, partial satisfaction of the lien, or discharge of the lien
may not prevent the lienholder from proceeding against any
condominium unit and the undivided interest in the common areas
and facilities appurtenant to the condominium unit that remain
subject to the lien.
Sec. 2. Subject to any restrictions and limitations in the
condominium instruments, the declarant has a transferable
easement over and upon the common areas and facilities for the
purpose of:
(1) making improvements within:
(A) the condominium; or
(B) additional real estate;
under those instruments and this article; and
(2) doing all things reasonably necessary and proper in
connection with the improvements referred to in subdivision
(1).
Sec. 3. (a) All sums assessed by the association of co-owners but
unpaid for the share of the common expenses chargeable to any
condominium unit constitute a lien on the unit effective at the time
of assessment. The lien has priority over all other liens except:
(1) tax liens on the condominium unit in favor of any:
(A) assessing unit; or
(B) special district; and
if any, stating to which condominium units their use is
reserved.
(5) The percentage of undivided interest in the common areas
and facilities appertaining to each condominium unit and its
owner for all purposes, including voting.
(6) A statement of the percentage of votes by the
condominium unit owners required to determine whether to:
(A) rebuild;
(B) repair;
(C) restore; or
(D) sell;
the property if all or part of the property is damaged or
destroyed.
(7) Any covenants and restrictions in regard to the use of:
(A) the condominium units; and
(B) common areas and facilities.
(8) Any further details in connection with the property that:
(A) the person executing the declaration considers
desirable; and
(B) are consistent with this article.
(9) The method by which the declaration may be amended in
a manner consistent with this chapter.
(b) A true copy of the bylaws shall be annexed to and made a
part of the declaration.
(c) The record of the declaration shall contain a reference to
the:
(1) book;
(2) page; and
(3) date of record;
of the floor plans of the building affected by the declaration.
Sec. 2. (a) If a condominium is an expandable condominium, the
declaration shall contain, in addition to the matters specified in
section 1 of this chapter:
(1) a general plan of development showing:
(A) the property subject to the condominium;
(B) areas into which expansion may be made; and
(C) the maximum number of condominium units in
additional phases that may be added;
(2) a schedule or formula for determining the percentage of
undivided interests in the common areas and facilities that
will appertain to each condominium unit as each additional
phase is added; and
no name.
(4) The verified statement of a registered architect or licensed
professional engineer certifying that the set of floor plans is an
accurate copy of portions of the plans of the building as filed
with and approved by the municipal or other governmental
subdivision having jurisdiction over the issuance of permits
for the construction of buildings.
(b) If the set of floor plans referred to in subsection (a) does not
include a verified statement by an architect or engineer that the
plans fully and accurately depict the layout, location, unit numbers,
and dimensions of the condominium units as built, an amendment
to the declaration must be recorded before the first conveyance of
any condominium unit. The amendment to the declaration must
have attached to it a verified statement of a registered architect or
licensed professional engineer certifying that the filed set of floor
plans or the set of floor plans being filed simultaneously with the
amendment fully and accurately depicts the layout, location, unit
numbers, and dimensions of the condominium units as built. The
set of floor plans shall:
(1) be kept by the recording officer in a separate file for each
building;
(2) be indexed in the same manner as a conveyance entitled to
be recorded;
(3) be numbered serially in the order of receipt;
(4) be designated "condominium unit ownership", with the
name of the building, if any; and
(5) contain a reference to the:
(A) book
(B) page; and
(C) date of recording;
of the amendment to the declaration.
(c) The record of the amendment to the declaration referred to
in subsection (b) shall contain a reference to the file number of the
set of floor plans of the building affected by the amendment to the
declaration.
Sec. 5. (a) Each condominium unit in a building shall be
designated, on the set of floor plans referred to in section 4 of this
chapter, by letter, number, or other appropriate designation.
(b) Any instrument recognized by the state for the conveyance
or transfer of interests in title, which describes the apartment by
using the designation referred to in subsection (a) followed by the
words "in (name) Condominium as recorded in Book _______, p.
__, under the date of ________, _____, of the records of
__________ County, Indiana", is considered to contain a good and
sufficient description for all purposes.
(c) Any conveyance or transfer of interest in title of a
condominium unit is considered also to convey the undivided
interests of the owner in the common areas and facilities, both
general and limited, appertaining to the condominium unit without
specifically or particularly referring to the undivided interests.
The:
(1) contents;
(2) form;
(3) method of preparation;
(4) recording of an instrument of conveyance; and
(5) interpretation of an instrument of conveyance;
are governed by the law of Indiana relating to real property.
(d) Each instrument or deed of conveyance also shall include the
following:
(1) A statement of the use for which the condominium unit is
intended.
(2) A statement of the restrictions on the use of the
condominium unit.
(3) The percentage of undivided interest appertaining to the
condominium unit in the common areas and facilities.
(4) The amount of any unpaid current or delinquent
assessments of common expenses.
(5) Any other details and restrictions that:
(A) the grantor and grantee consider desirable; and
(B) are consistent with the declaration.
(e) Failure to make a statement in the deed as required by
subsection (d)(4) does not:
(1) invalidate the title conveyed by the deed; or
(2) absolve a grantee under the deed from liability for any
unpaid current or delinquent assessments of common
expenses against a condominium unit on the date of its
conveyance.
(f) Upon the request of a:
(1) condominium unit owner;
(2) prospective grantee;
(3) title insurance company; or
(4) mortgagee;
the secretary or other authorized officer of the association of
co-owners shall provide, within five (5) days of the request, a
statement of the amount of current and delinquent assessments of
common expenses against a particular condominium unit.
Sec. 6. (a) Except as provided in subsection (b), if the
declaration for a condominium is in conformity with section 2 of
this chapter, it is presumed that any owner of a condominium unit
in that condominium has consented to the changes in the
percentage of undivided interest in the common areas and facilities
appertaining to the owner's unit.
(b) An owner of a condominium unit who entered an agreement
to purchase that unit before the recordation of the declaration may
not be presumed to have consented to the changes referred to in
subsection (a) unless the owner:
(1) was provided a copy of:
(A) the expansion provisions; or
(B) the declaration; and
(2) made a written acknowledgment of the receipt of the
provisions before entering the purchase agreement.
(c) The reallocation of percentage of undivided interests in the
common areas and facilities vests when the amendment to the
declaration incorporating the reallocated percentages is recorded.
(d) When the amendment to the declaration incorporating:
(1) the addition of condominium units;
(2) the expansion of common areas and facilities; or
(3) both addition and expansion as described in subdivisions
(1) and (2);
is recorded, all liens, including mortgage liens, are released as to
the percentage of undivided interests in the common areas and
facilities described in the declaration (before amendment of the
declaration) and shall attach to the reallocated percentage of
undivided interests in the common areas and facilities described in
the amendment to the declaration as though the liens had attached
to those percentage interests on the date of the recordation of the
mortgage or other document that evidences the creation of the lien.
The percentage interest in the common areas and facilities
appertaining to additional condominium units being added by the
amendment to the declaration are subject to mortgage liens and
other liens upon the recordation of the amendment to the
declaration.
Chapter 8. Administration of Condominiums
Sec. 1. The administration of every property is governed by
bylaws. A true copy of the bylaws shall be annexed to and made a
part of the declaration. A modification of or amendment to the
bylaws is valid only if:
(1) the modification or amendment is set forth in an
amendment to the declaration; and
(2) the amendment is recorded.
Sec. 2. The bylaws must provide for the following:
(1) With respect to the board of directors:
(A) the election of the board from among the co-owners;
(B) the number of persons constituting the board;
(C) the expiration of the terms of at least one-third (1/3) of
the directors annually;
(D) the powers and duties of the board, including whether
the board may engage the services of a manager or
managing agent;
(E) the compensation, if any, of the directors; and
(F) the method of removal from office of directors.
(2) The method of calling meetings of the co-owners and the
percentage, if other than a majority of co-owners, that
constitutes a quorum.
(3) The election from among the board of directors of a
president, who shall preside over the meetings of:
(A) the board of directors; and
(B) the association of co-owners.
(4) The election of a secretary, who shall keep the minute book
in which resolutions shall be recorded.
(5) The election of a treasurer, who shall keep the financial
records and books of account.
(6) The maintenance, repair, and replacement of the common
areas and facilities and payments for that maintenance,
repair, and replacement, including the method of approving
payment vouchers.
(7) The manner of collecting from each condominium owner
the owner's share of the common expenses.
(8) The designation and removal of personnel necessary for
the maintenance, repair, and replacement of the common
areas and facilities.
(9) The method of adopting and of amending administrative
rules governing the details of the operation and use of the
common areas and facilities.
(10) The restrictions on and requirements respecting the use
and maintenance of the condominium units and the use of the
common areas and facilities that are:
(A) not set forth in the declaration; and
instruments becomes part of the common areas and facilities;
and
(2) the declarant ceases to have any rights to the item referred
to in subdivision (1) unless the item is removed promptly from
the condominium real estate under a right reserved in the
condominium instruments to make the removal.
Sec. 5. A condominium unit owner may not make an alteration
or structural change that would:
(1) jeopardize the soundness or safety of the property;
(2) reduce the value of the property; or
(3) impair any easement or hereditament;
unless the condominium unit owner has obtained the unanimous
consent of all the other co-owners.
Sec. 6. The:
(1) common profits of the property shall be credited to; and
(2) common expenses of the property shall be charged to;
the condominium unit owners according to the percentage of the
owners' undivided interests in the common areas and facilities.
Sec. 7. (a) Taxes, assessments, and other charges of:
(1) the state;
(2) any political subdivision;
(3) any special improvement district; or
(4) any other taxing or assessing authority;
shall be assessed against and collected on each condominium unit.
Taxes, assessments, and other charges referred to in this subsection
may not be assessed and collected on the building or property as a
whole.
(b) Each condominium unit shall be carried on the tax books as
a separate and distinct entity for the purpose of taxes, assessments,
and other charges.
(c) A forfeiture or sale of the building or property as a whole for
delinquent taxes, assessments, or charges may not divest or affect
the title to a condominium unit if taxes, assessments, and charges
on the condominium unit are currently paid.
Sec. 8. (a) The manager or board of directors shall keep
detailed, accurate records in chronological order of the receipts
and expenditures affecting the common areas and facilities,
specifying and itemizing:
(1) the maintenance and repair expenses of the common areas
and facilities; and
(2) any other expenses incurred.
(b) The records and the vouchers authorizing the payments shall
be available for examination by the co-owners at convenient hours
of weekdays.
Sec. 9. (a) The co-owners, through the association of co-owners,
shall purchase:
(1) a master casualty policy, payable as part of the common
expenses, affording fire and extended coverage in an amount
consonant with the full replacement value of the improvement
that in whole or in part comprises the common areas and
facilities; and
(2) a master liability policy in an amount:
(A) required by the bylaws;
(B) required by the declaration; or
(C) revised from time to time by a decision of the board of
directors of the association.
(b) The policy referred to in subsection (a)(2) shall cover:
(1) the association of co-owners;
(2) the executive organ, if any;
(3) the managing agent, if any;
(4) all persons acting, or who may come to act, as agents or
employees of any of the entities referred to in subdivisions (1)
through (3) with respect to:
(A) the condominium;
(B) all condominium unit owners; and
(C) all other persons entitled to occupy any unit or other
portions of the condominium.
(c) Other policies required by the condominium instruments
may be obtained by the co-owners through the association,
including:
(1) worker's compensation insurance;
(2) liability insurance on motor vehicles owned by the
association;
(3) specialized policies covering land or improvements on
which the association has or shares ownership or other rights;
and
(4) officers' and directors' liability policies.
(d) When any policy of insurance has been obtained by or on
behalf of the association of co-owners, the officer required to send
notices of meetings of the association of co-owners shall promptly
furnish to each co-owner or mortgagee whose interest may be
affected written notice of:
(1) the obtainment of the policy; and
(2) any subsequent changes to or termination of the policy.
and facilities under IC 32-25-4-3.
Sec. 14. (a) Subject to:
(1) the declaration;
(2) condominium instruments; and
(3) this chapter;
a declarant may withdraw withdrawable land from a contractable
condominium unless the withdrawal is prohibited by subsection (c).
The contraction is effective when the instruments required by
subsection (b) are recorded.
(b) In contracting the condominium, the declarant shall
prepare, execute, and record an amendment to the declaration and
condominium instruments:
(1) containing a legally sufficient description of the land being
withdrawn; and
(2) stating the fact of withdrawal.
(c) If a portion of the withdrawable land was described under
IC 32-25-7-3(6) and IC 32-25-7-3(7), that portion may not be
withdrawn if any person other than the declarant owns a
condominium unit situated on that portion of the withdrawable
land. If that portion of the withdrawable land was not described
under IC 32-25-7-3(6) and IC 32-25-7-3(7), none of the
withdrawable land may be withdrawn if any person other than the
declarant owns a condominium unit situated on that portion of the
withdrawable land.
Sec. 15. If a declarant reserves an option in the declaration to
not expand the condominium, the declarant shall:
(1) make a full disclosure of that option to every prospective
buyer in writing before the buyer enters an agreement to
purchase a condominium unit; and
(2) obtain and retain an instrument acknowledging receipt of
that disclosure by the prospective buyer.
Sec. 16. (a) All of the co-owners may remove a property from
this article by a recorded removal instrument if the holders of all
liens affecting any of the condominium units:
(1) consent in a recorded instrument to the removal; or
(2) agree in a recorded instrument that their liens be
transferred to the percentage of the undivided interest of the
condominium unit owner in the property as provided in this
section.
(b) If it is determined under section 10 of this chapter that all of
the buildings containing condominium units have been totally
destroyed:
pond, or marsh.
(c) The association shall adopt and subscribe articles, which
must specify the name and objects of the association.
Sec. 2. (a) Three (3) or more members of the association may
give notice of an election to choose directors for the association.
(b) The notices must:
(1) be written or printed;
(2) specify the time and location of the election; and
(3) be posted for at least ten (10) days before the election in at
least five (5) public places in each township where the
contemplated work will occur.
(c) The location of the election must be near the contemplated
work.
Sec. 3. At the election, at least five (5) of the association
members shall elect by ballot at least three (3) but not more than
seven (7) association members as directors of the association.
Sec. 4. (a) After the election of directors, the association shall
record articles of association in the office of the recorder of the
county where the proposed fence will be located.
(b) The articles must specify the following:
(1) The name and objects of the association.
(2) The names of the association's officers for the first year.
(3) The character of the work proposed.
(4) The location where the fence is to be located.
(c) After recording the articles of association, the association is
a body corporate and politic by the name and style adopted, with
all the rights, incidents, and liabilities of bodies corporate.
(d) Any person owning land in the area may at any time become
a member of the association by signing the articles of association.
Sec. 5. (a) The board of directors shall petition the board of
commissioners of the county where the fence is to be located.
(b) The petition must do the following:
(1) Be signed by the owners of the major part of the improved
land.
(2) Give a full description of the contemplated work,
specifying particularly:
(A) the points of beginning and ending of the work;
(B) the course and distances of the work;
(C) the manner and character of the gates to be placed on
all public highways crossed;
(D) the nature and character of the improvement;
(E) a detailed statement of the projected cost, as accurately
as the projected cost can conveniently be stated; and
(F) the description of the area to be enclosed.
(3) Request the appointment of viewers to view and apportion
among the owners of real estate in the area the cost of the
improvement, and all expenses that:
(A) are incurred procuring the improvement; and
(B) are considered to be necessary in maintaining the
improvement for one (1) year after the completion of the
fence.
(c) The apportionment of the cost and expenses incurred under
this chapter must be made according to the number of acres of
land owned by each landowner that is improved and used for the
purposes of cultivation, as described in section 6 of this chapter.
(d) The board of commissioners, on proof that the signers of the
petition own the major part of the improved land in the area, shall
hear and consider the petition. If the board of commissioners
decides the improvement is a public utility and is in the best
interests of the owners of the lands in the area, the board of
commissioners shall appoint three (3) viewers.
(e) The viewers, who may not be members of the association or
interested in the proposed work, shall make the apportionments
described in subsection (b)(3) among the landowners.
(f) The viewers shall be furnished:
(1) a copy of the plan and profile of the proposed work; and
(2) a certified copy of the order of the board of commissioners
for their appointment.
(g) The viewers shall meet at a time and place in the area to
make the apportionment as fixed by the board of commissioners.
(h) Before the apportionment begins, the owners of improved
land in the area are entitled to notice of the time when and place
where the viewers will begin the examination of lands and the
apportionment of assessments by written or printed notices posted
at the door of the courthouse of the county and five (5) public
places in the area.
Sec. 6. (a) At the time and place named by the board of
commissioners and fixed by the notices, the appointed viewers shall
do the following:
(1) Meet and inspect the lands improved and used for
cultivation in the area.
(2) Assess against the owners of the improved land the costs
and expenses of the improvement. The costs and expenses
shall be apportioned among them severally, according to the
number of acres of improved land owned by each owner.
(3) Hear and determine any complaints at that time regarding
the assessment.
(b) The appointed viewers have the authority to:
(1) hear evidence;
(2) swear and examine witnesses;
(3) reexamine any lands;
(4) cause surveys and measurements to be made; and
(5) adjourn periodically until the viewers complete the
apportionment of assessments.
Sec. 7. (a) The appointed viewers, after having completed their
apportionment, shall submit a written report of their work to the
board of commissioners, together with a tabular statement of the
assessments made.
(b) The directors of the association shall record the written
report by the appointed viewers in the office of the recorder of the
county.
(c) From the recording date of the written report, the
assessments in the written report shall be respectively a lien on
each tract of land described in the written report for the amount
assessed to the tract.
Sec. 8. (a) The board of directors may make annual assessments
after the first assessment for the purpose of repairing and
maintaining the improvement and for other necessary expenses.
(b) The board of directors shall apportion the annual
assessments among the owners and file a tabular statement of the
apportionment and assessment in the recorder's office.
(c) The tabular statement of the apportionment and assessment
is a lien on the tracts of land respectively assessed and may be
collected in the same manner as the original assessment.
Sec. 9. (a) If the owners of land have, under or by virtue of any
law of Indiana or by mutual consent, erected a fence before March
14, 1877, as described in this chapter, the landowners may:
(1) organize an association according to the provisions of this
chapter;
(2) file their articles of association in the office of the
recorder; and
(3) petition the board of commissioners as provided in
subsection (b).
(b) The petition must show that:
(1) the fence was built before March 14, 1877; and
(2) the goal of the organization is to maintain the fence in
good order and repair, as though built under this chapter.
(c) The board of commissioners shall consider the petition. If the
board of commissioners is satisfied that:
(1) the owners of the major part of the land improved and
used for the purposes of cultivation enclosed by the fence
signed the petition; and
(2) the maintenance of the improvement is of public utility
and for the best interests of the owners of the land in the area;
the board of commissioners shall make an order allowing the
board of directors of the association to make assessments for that
purpose, as provided in section 8 of this chapter.
(d) After the directors of the association follow the steps
provided in section 8 of this chapter, the association is a body
corporate and politic, as though originally organized under this
chapter, and has all the rights and powers granted in this chapter.
(e) All liens that then exist in favor of any creditor that financed
the improvement, or against any lands on account of the
improvement, shall be preserved and may be enforced, either
according to the law under which the liens were created or
according to this chapter.
Sec. 10. (a) The board of directors shall appoint a president,
secretary, and treasurer.
(b) The treasurer shall give a bond:
(1) sufficient in penalties and securities;
(2) payable to the association by its corporate name; and
(3) conditioned for:
(A) the faithful discharge of the treasurer's duties; and
(B) the safekeeping and prompt payment, according to the
order of the board of directors, of all money accessible to
the treasurer.
(c) A majority of the board of directors is a quorum for the
transaction of business.
(d) Previous notice of any regular or adjourned meeting of the
directors is not necessary.
Sec. 11. If a vacancy occurs in the office of director, the other
members of the board shall fill the vacancy by a pro tempore
appointment from the members of the association. The
appointment continues until the next annual election and until a
successor is elected and qualified.
Sec. 12. The president, secretary, and treasurer continue in
office for one (1) year and until their successors in office are
elected and qualified.
contrary to the laws or regulations of the association shall be taken
up and impounded at the expense of the owner. The poundkeeper
shall:
(1) if the owner is known, notify the owner, in writing, of the
impounding of the stock; or
(2) if the owner is unknown, post for ten (10) days a written or
printed description of the stock at the public gates of the
association and three (3) other public places in the township
where the fence is located.
(b) If, after the expiration of ten (10) days, the owner fails to
reclaim and pay the expenses of keeping and posting the stock and
the damages caused by the stock to any owner or occupant of land
in the area, the stock shall, upon ten (10) days further notice, be
sold to pay the expenses and damages.
(c) If, after payment for the stock, there is a remaining balance,
the balance shall be deposited in the treasury of the association for
the benefit of the owner. If no claim is made for the remaining
balance for six (6) months, it shall vest in the association.
Chapter 2. Enclosures, Trespassing Animals, and Partition
Fences
Sec. 1. (a) As used in this chapter, "lawful fence" means any
structure typically used by husbandmen for the enclosure of
property.
(b) The term includes:
(1) a cattle guard;
(2) a hedge;
(3) a ditch; and
(4) any other structure that witnesses knowledgeable about
fences testify is sufficient to enclose property.
Sec. 2. (a) This subsection applies in a township for which the
board of county commissioners has adopted an ordinance that
allows domestic animals to run at large in unenclosed public areas.
If a domestic animal breaks into an enclosure or enters upon the
property of another person that is enclosed by a lawful fence, the
person injured by the actions of the domestic animal may recover
the amount of damage done.
(b) This subsection applies in a township for which the board of
county commissioners has not adopted an ordinance that allows
domestic animals to run at large in unenclosed public areas. If a
domestic animal breaks into an enclosure or enters upon the
property of another person, it is not necessary for the person
injured by the actions of the domestic animal to allege or prove the
existence of a lawful fence to recover for the damage done.
Sec. 3. (a) The owner of a domestic animal described in section
2 of this chapter may:
(1) tender to the person injured by the domestic animal:
(A) any costs that have accrued; and
(B) an amount, in lieu of damage, which equals or exceeds
the amount of damages awarded by the court or by a jury
in an action filed to recover damages caused by the actions
of the domestic animal; or
(2) offer in writing to confess judgment for the amounts set
forth in subdivision (1);
before an action filed to recover damages caused by a domestic
animal described in section 2 of this chapter proceeds to trial.
(b) If the person injured by the domestic animal described in
section 2 of this chapter rejects the tender or offer under
subsection (a) and causes a trial for damages to proceed, the person
injured:
(1) shall pay the costs of the trial; and
(2) may recover only the damages awarded.
Sec. 4. Except as provided in this chapter, if a domestic animal
breaks into the enclosure of a person who is not the owner of the
domestic animal, the person, without regard to the season of the
year:
(1) may confine the animal in the same manner as a stray
animal may be confined; and
(2) shall proceed under IC 32-34-8 for stray animals.
Sec. 5. A person described in section 4 of this chapter shall,
within twenty-four (24) hours after confining a stray animal, give
notice to the owner of the animal, if the owner is known and can be
immediately found.
Sec. 6. Before posting or advertising a stray animal, a person
described in section 4 of this chapter shall procure from two (2)
disinterested property owners an examination and assessment of
the damages caused by the stray animal with a certificate of the
damages. Damages under this section may include reasonable pay
for the persons making the assessment.
Sec. 7. A notice or advertisement described in section 6 of this
chapter must specify the following:
(1) The fact of trespass in the enclosure of the person
confining the stray animal.
(2) The damages assessed, including pay for the person
making the assessment.
value of the existing fence, as estimated by the owner of the existing
fence.
Sec. 16. (a) If a person who encloses previously unenclosed
property refuses to pay the owner of an existing fence under
section 15 of this chapter, the owner may file a civil action for
recovery of the amount due under section 15 of this chapter.
(b) This subsection applies if, before a trial under subsection (a):
(1) the person who encloses the previously unenclosed
property offers to the owner of an existing fence; and
(2) the owner of the existing fence refuses to accept;
an amount equal to or larger than the damages awarded at the
trial and the costs accrued up to the date of the offer. The owner of
the existing fence shall pay the costs of the action and receive only
the damages assessed.
Sec. 17. A person who encloses property that has previously
been unenclosed may not join the new fence to another person's
existing fence without the consent of the owner of the existing
fence. If consent to join the new fence with the existing fence is not
given, each property owner shall give property that is equivalent
to fifty percent (50%) of the width of a lane, or a reasonable
distance, for the erection of the second fence.
Sec. 18. This section applies to a person who ceases to use the
person's property or opens the person's enclosures. A person to
whom this section applies may not remove any part of the person's
fence that forms a partition fence between the person's property
and the enclosure of any other person until the person to whom this
section applies has first given six (6) months notice of the person's
intention to remove the fence to any person who may be interested
in the removal of the fence.
Sec. 19. (a) This section applies to a person who, by mistake,
erects a fence on the property of another person.
(b) Within six (6) months after the determination of the legal
property line, a person to whom this section applies may enter
upon the other person's property and remove the fence that the
person to whom this section applies erected. Before entering upon
the other person's property, the person to whom this section
applies must pay or offer to pay to the other person reasonable
damages for injury caused in passing over the property to remove
the fence.
Sec. 20. If the fence to be removed under section 19 of this
chapter forms any part of a fence enclosing a field of another party
on which there is a crop, the person to whom section 19 of this
chapter applies may not remove the fence in a manner that exposes
the field until the crop:
(1) has been gathered and removed, or secured from injury;
or
(2) might, with reasonable diligence, have been gathered and
secured. After the conditions set forth in this section have
been met, the person to whom section 19 of this chapter
applies may immediately remove the fence and materials,
whether or not more than six (6) months have elapsed since
the legal property line was determined.
Chapter 3. Recording Agreements to Erect and Repair Fences
Sec. 1. Adjoining property owners who elect to erect, repair,
maintain, or pay for fences separating their lands in a manner
other than that set forth under this article shall do so by written
agreement. When the agreement is signed by the adjoining
property owners, the agreement must be recorded in the office of
the recorder in the county or counties in which the adjoining
properties are situated.
Sec. 2. This chapter may not be held or construed as annulling
or abrogating any subsisting legal right created under or any cause
of action that arose and was fully accrued under any law or
agreement if the legal right became effective before January 1,
1950.
Chapter 4. Cutting of Live Fences Along Public Highways
Sec. 1. (a) This chapter:
(1) does not apply to:
(A) a highway intersection located within a city or town; or
(B) a building of a substantial character that is located at
the intersection of highways; and
(2) except for the provisions of this chapter concerning hedge
fences, applies only to the intersection of a state highway with
another state highway, a county highway, or a township
highway.
(b) Except as provided in subsection (c), the owner of a hedge or
live fence along the line of a highway shall cut and trim down the
hedge or live fence to a height of not more than five (5) feet once in
each calendar year.
(c) This subsection applies if a hedge, live fence, or natural
growth other than a tree connects with or is found at a highway
intersection, adjacent to a curve where the view of the highway
may be obstructed, or at a railway right-of-way. The owner of a
hedge, live fence, or other growth to which this subsection applies
shall trim and maintain the hedge, live fence, or other growth at a
height of not more than five (5) feet above the level of the center of
the traveled road bed in the highway that adjoins the hedge, live
fence, or other growth:
(1) throughout the year;
(2) for a distance of:
(A) one hundred (100) feet, if the obstruction is a hedge or
live fence; or
(B) fifty (50) feet, if the obstruction consists of any other
natural growths; and
(3) beginning at the intersection of the highway and
continuing along the lines dividing the highways and the
adjoining property.
(d) This subsection applies to a tree growing within fifty (50)
feet of the intersection of a highway with:
(1) another highway; or
(2) a steam or interurban railroad.
The owner of a tree to which this subsection applies shall trim the
tree so that the view at the intersection is not obstructed.
(e) Except for a natural elevation of land, an obstruction to the
view at the intersection of a highway with another highway or a
steam or interurban railroad that exceeds a height of five (5) feet
above the center of the highway may not be maintained at the
intersection.
(f) After May 22, 1933, a building may not be erected within
fifty (50) feet of an intersection to which this chapter applies.
Sec. 2. (a) The trustee of each township, the county highway
superintendent, the Indiana department of transportation, or other
officer in control of the maintenance of a highway shall between
January 1 and April 1 of each year, examine all hedges, live fences,
natural growths along highways, and other obstructions described
in section 1 of this chapter in their respective jurisdictions. If there
are hedges, live fences, other growths, or obstructions along the
highways that have not been cut, trimmed down, and maintained
in accordance with this chapter, the owner shall be given written
notice to cut or trim the hedge or live fence and to burn the brush
trimmed from the hedge or live fence and remove any other
obstructions or growths.
(b) The notice required under subsection (a) must be served by
reading the notice to the owner or by leaving a copy of the notice
at the owner's usual place of residence.
(c) If the owner is not a resident of the township, county, or state
where the hedge, live fence, or other obstructions or growth is
located, the notice shall be served upon the owner's agent or tenant
residing in the township. If an agent or a tenant of the owner does
not reside in the township, the notice shall be served by mailing a
copy of the notice to the owner, directed to the owner's last known
post office address.
(d) If the owner, agents, or tenants do not proceed to cut and
trim the fences and burn the brush trimmed from the fences or
remove any obstructions or growths within ten (10) days after
notice is served, the township trustee, county highway
superintendent, or Indiana department of transportation shall
immediately:
(1) cause the fences to be cut and trimmed or obstructions or
growths removed in accordance with this chapter; and
(2) burn the brush trimmed from the fences.
All expenses incurred under this subsection shall be assessed
against and become a lien upon the land in the same manner as
road taxes.
(e) The township trustee, county highway superintendent, or
Indiana department of transportation having charge of the work
performed under subsection (d) shall prepare an itemized
statement of the total cost of the work of removing the obstructions
or growths and shall sign and certify the statement to the county
auditor of the county in which the land is located. The county
auditor shall place the statement on the tax duplicates. The county
treasurer shall collect the costs entered on the duplicates at the
same time and in the same manner as road taxes are collected. The
treasurer may not issue a receipt for road taxes unless the costs
entered on the duplicates are paid in full at the same time the road
taxes are paid. If the costs are not paid when due, the costs shall
become delinquent, bear the same interest, be subject to the same
penalties, and be collected at the same time and in the same
manner as other unpaid and delinquent taxes.
Sec. 3. The prosecuting attorney shall prosecute a suit under
section 2(e) of this chapter in the name of the state on relation of
the supervisor or county highway superintendent. The prosecuting
attorney shall receive a fee of ten dollars ($10), collected as a part
of the costs of the suit, for bringing a suit under this section.
Chapter 5. Cutting Live Fences Between Adjoining Lands
Sec. 1. A hedge or other live fence grown along the lines dividing
properties owned by different persons in Indiana shall be cut and
trimmed down to the height of not more than five (5) feet and to a
width of not more than three (3) feet once in each calendar year.
Sec. 2. (a) Upon receiving a complaint in writing signed by an
owner of land adjoining a hedge or fence to which this chapter
applies alleging that the owner of the fence has neglected to cut and
trim the hedge or fence, the township trustee shall examine, within
five (5) days after receiving the complaint, the hedge or other live
fence.
(b) If the hedge or other live fence that is the subject of the
complaint under subsection (a) has not been cut and trimmed, the
township trustee shall give the owner of the hedge or other live
fence written notice to cut and trim the hedge or other live fence
and to remove the brush to the owner's property within thirty (30)
days after receiving the notice.
(c) The notice required under subsection (b) must be served by
reading the notice to the owner or by leaving a copy of the notice
at the owner's usual place of residence. If the owner of properties
divided by the hedge or other live fence is not a resident of the
township where the hedge or other live fence is located, the notice
shall be served by mailing a copy of the notice to the owner
directed to the owner's last known post office address.
(d) If the owner or the owner's agents or tenants do not cut and
trim the fences and remove the brush, the trustee shall,
immediately after the expiration of thirty (30) days, cause the
hedge or other live fence to be cut and trimmed and the brush
removed to the owner's property.
(e) The trustee shall recover all expenses incurred under
subsection (d) by bringing a suit against the owner of the property
on which the hedge or live fence is situated before the county court,
the circuit court, or the superior court of the county in which the
hedge or other live fence is situated. Collection of the expenses and
any judgment recovered shall be without relief from valuation or
appraisement laws.
Sec. 3. The prosecuting attorney shall prosecute a suit under this
chapter in the name of the state on relation of a township trustee.
The prosecuting attorney shall receive ten dollars ($10) collected
as part of the cost of the suit, for bringing a suit under this section.
Chapter 6. Enclosure of Land Subject to Flooding
Sec. 1. (a) The owners of real property in a county who own the
major portion of the property in the county that is:
(1) improved and used for purposes of agriculture;
(2) in an area that is:
(A) definitely described by sections or subdivisions of
sections; or
(B) sufficiently described by metes and bounds; and
(3) situated upon or near, and subject to overflow from:
(A) a stream;
(B) a watercourse;
(C) a lake;
(D) a pond; or
(E) a marsh;
may petition the board of commissioners of the county, asking
permission to enclose the properties within one (1) general fence
that has swinging gates on all public highways crossed by the fence.
A petition under this subsection must set forth the kind of fence
and gates desired.
(b) Upon the receipt of a petition under subsection (a), the board
of county commissioners shall appoint as viewers three (3)
reputable householders of the county who are not related by blood
or marriage to any of the parties interested in the subject of the
petition. After being sworn to faithfully and fairly perform the
services required of them, the viewers shall proceed:
(1) within a reasonable time after the viewers' appointment;
and
(2) after giving publication of the viewers' intention by
posting written or printed notices describing the properties in
the townships where the properties are located;
to inspect the properties and make an assessment against the
owners of the properties for the cost of the fence.
(c) The cost of the fence shall be apportioned between the
owners of the properties severally according to the number of
acres of improved land owned by each owner and the benefits
accruing to the owners severally because of the fence.
Sec. 2. (a) After having performed the duties required under
section 1 of this chapter, the viewers shall, as soon as practicable,
submit a report in writing to the board of county commissioners of
the viewers' actions and a tabular statement of the viewers'
assessment. The report submitted under this section is sufficient
authority for the board of county commissioners to issue an order
for the erection or construction of the fence and gates if there is no
remonstrance against the erection of the fence and gates.
(b) If a remonstrance is made under subsection (a), the board of
county commissioners may order or refuse to order the erection of
the fence or gate, in the board's discretion.
(c) If the order under subsection (a) is not made because of a
mistake or error committed by the viewers, other viewers may be
appointed to perform the same service and submit a report.
Sec. 3. (a) A certified copy of the report of the viewers, as
approved by the board of commissioners, shall be filed in the office
of the county auditor.
(b) Thirty (30) days after the fence and gates described in
section 1 of this chapter have been constructed, any person
interested in the fence and gates may make an affidavit before the
county auditor showing which property owners have not paid their
several assessments. The county auditor shall enter the sums
assessed against the delinquent persons upon the tax duplicate to
be collected by the treasurer as other taxes are collected. When the
assessments have been collected, the money shall be paid out to the
property owners who have voluntarily paid the cost of the fence, in
proportion to the amount of the property owners' several
assessments.
Sec. 4. The viewers appointed under this chapter may, if
necessary, employ a surveyor, who shall be paid for the surveyor's
services as may be agreed upon. The board of county
commissioners shall fix the compensation of the viewers for their
services. The entire cost and expenses of the proceedings are a part
of the cost of the erection of the fence and gates and shall be
collected in the same manner.
Sec. 5. A person who owns property enclosed under this chapter
may not allow stock to run at large upon the enclosed property
during the period beginning March 16 and ending December 25 of
any year.
Chapter 7. Recording Fencemarks; Removal of Marked Fencing
From Overflowed Lands
Sec. 1. If petitioned by at least twenty (20) property owners in
the county, the board of county commissioners shall furnish a
blank book to the recorder of the county, paid for out of the county
fund, in which the county recorder shall keep a record of marks of
rails and plank fencing that are adopted by the property owners of
the county.
Sec. 2. The county recorder shall charge a fee in accordance
with IC 36-2-7-10 for the recording of each mark from the person
adopting and having the mark recorded. The recorder may not
record two (2) marks that exactly correspond.
Sec. 3. Any person who has the person's rails or plank fencing
marked and recorded as provided under this chapter may, if the
rails or plank fencing are removed by high water and overflow off
the person's property on to the property of another person, remove
the rails and plank fencing on to the person's own property at any
time of the year. The owner of the rails or plank fencing is
responsible for and shall pay all damages that may be done to
growing grain on the property from which the rails or plank
fencing are removed or over which the rails or plank fencing are
hauled.
Chapter 8. Recovery of Property Moved by High Water
Sec. 1. (a) When the fence rails or other property of a person in
Indiana are removed by high water and lodged upon the real
property of another person, the owner of the fence rails or other
property may proceed, within sixty (60) days after the fence rails
or other property are lodged, upon the real property on which the
fence rails or other property are lodged.
(b) If the owner of the real property refuses to deliver up the
fence rails or other property, the parties shall each select an
arbitrator, who shall examine or hear evidence upon all the
circumstances and facts and determine the case.
(c) If the arbitrators selected under subsection (b) cannot agree,
the arbitrators shall select an umpire. The decision of a majority
of the arbitrators and the umpire is final.
Sec. 2. Before the arbitrators proceed under section 1 of this
chapter, the arbitrators must swear, before a person who may
administer oaths, to discharge the arbitrators' duties faithfully,
impartially, and according to law.
Sec. 3. If at least ten (10) persons claim the same property under
section 1 of this chapter, the persons shall give notice to all
interested persons of the time and place of the arbitration. Upon
hearing all the facts and circumstances in the case, the arbitrators
shall award to each person making a claim a proportion of the
property as the arbitrators consider reasonable and just.
Sec. 4. It is not a trespass for a person to go upon the real
property of another person for the purposes set forth in this
chapter. A person who goes upon the real property of another
person under this chapter shall go upon the route that will do the
least possible injury to the real property, if it is practicable and
convenient.
Chapter 9. Partition Fences
Sec. 1. A fence that is used by adjoining property owners as a
partition fence, unless otherwise agreed upon by the property
owners, is considered a partition fence and shall be repaired,
maintained, and paid for as provided under this chapter.
building, rebuilding, or repairing the property owner's portion of
a partition fence, another property owner who is interested in the
fence, after having built, rebuilt, or repaired the property owner's
portion of the fence, shall give to the defaulting property owner or
the defaulting property owner's agent or tenant twenty (20) days
notice to build, rebuild, or repair the defaulting property owner's
portion of the fence. If the defaulting property owner or the
defaulting property owner's agent or tenant fails to build, rebuild,
or repair the fence within twenty (20) days, the complaining
property owner shall notify the township trustee of the township in
which the properties are located of the default.
(c) This subsection applies if the fence sought to be established,
rebuilt, or repaired is on a township line. Unless disqualified under
subsection (h), the complaining property owner shall notify the
trustee of the township in which the property of the complaining
property owner is located of the default under subsection (b), and
the trustee has jurisdiction in the matter.
(d) The township trustee who receives a complaint under this
section shall:
(1) estimate the costs for building, rebuilding, or repairing the
partition fence; and
(2) within a reasonable time after receiving the complaint,
make out a statement and notify the defaulting property
owner of the probable cost of building, rebuilding, or
repairing the fence.
If twenty (20) days after receiving a notice under this subsection
the defaulting property owner has not built, rebuilt, or repaired the
fence, the trustee shall build or repair the fence. The trustee may
use only the materials for the fences that are most commonly used
by the farmers of the community.
(e) If the trustee of a township is disqualified to act under
subsection (h), the trustee of an adjoining township who resides
nearest to where the fence is located shall act on the complaint
upon receiving a notice by a property owner who is interested in
the fence.
(f) A lawful partition fence is any one (1) of the following that is
sufficiently tight and strong to hold cattle, hogs, horses, mules, and
sheep:
(1) A straight board and wire fence, a straight wire fence, a
straight board fence, or a picket fence four (4) feet high.
(2) A straight rail fence four and one-half (4 1/2) feet high.
(3) A worm rail fence five (5) feet high.
owners, taking into consideration the parts of the fence being
maintained by each property owner.
(l) The determination of a majority of the arbitrators of any
matter or matters submitted to them under this section is final and
binding on each property owner. The compensation of the
arbitrators is two dollars ($2) each, which shall be paid by the
property owners in the proportion each property owner is ordered
to bear the expense of a gate or structure.
(m) This subsection applies if either or both of the property
owners fail to construct or compensate for constructing the
structure determined upon by the arbitrators in the proportion
determined within thirty (30) days after the determination. The
township trustee shall proceed at once to construct the gate or
structure and collect the cost of the gate or structure, including the
compensation of the arbitrators, from the defaulting property
owner in the same manner as is provided for ordinary partition
fences. The floodgate or other structure shall be repaired, rebuilt,
or replaced according to the determination of the arbitrators.
Sec. 4. (a) As soon as the township trustee has had a fence built,
rebuilt, or repaired under this chapter, the trustee shall make out
a certified statement in triplicate of the actual cost incurred by the
trustee in the building, rebuilding, or repairing the fence. One (1)
copy must be handed to or mailed to the property owner affected
by the work, one (1) copy must be retained by the trustee as a
record for the township, and one (1) copy must be filed in the
auditor's office of the county in which the fence is located and in
which the property of the property owner affected by the work is
located. At the same time the trustee shall also file with the county
auditor a claim against the county for the amount shown in the
statement filed with the county auditor.
(b) The county auditor shall:
(1) examine the claims and statement as other claims are
examined; and
(2) present the claims and statements to the board of county
commissioners at the next regular meeting.
Unless there is an apparent error in the statement or claim, the
board of county commissioners shall make allowance, and the
county auditor shall issue a warrant for the amount claimed to the
township trustee submitting the claim out of the county general
fund without an appropriation being made by the county council.
(c) The amount paid out of the county general fund under
subsection (b) shall be:
only if all of the following conditions are met:
(1) The warranties defined in this chapter are expressly
provided for in the home improvement contract between a
remodeler and an owner.
(2) The performance of the warranty obligations is
guaranteed by an insurance policy in an amount equal to the
contract price made under the home improvement contract.
(3) The remodeler carries completed operations products
liability insurance covering the remodeler's liability for
reasonably foreseeable consequential damages arising from a
defect covered by the warranties provided by the remodeler.
(b) The disclaimer must be printed in a minimum size of 10
point boldface type setting forth that the warranties defined by this
chapter replace the implied warranties that have been disclaimed
by the remodeler. The owner must affirmatively acknowledge by
complete signature that the owner has read, understands, and
voluntarily agrees to the disclaimer.
(c) The owner must acknowledge the disclaimer of implied
warranties by signing, at the time of execution of the home
improvement contract, a separate one (1) page notice attached to
the home improvement contract that includes the following
language:
"NOTICE OF WAIVER OF IMPLIED WARRANTIES
I recognize that by accepting the express warranties and the
insurance covering those warranties for the periods provided
in this home improvement contract, I am giving up the right
to any claims for implied warranties, which may be greater
than the express warranties. Implied warranties are
unwritten warranties relating to the reasonable expectations
of a homeowner with regard to the remodeling and home
improvement of the homeowner's home, as those reasonable
expectations are defined by the courts on a case by case
basis.".
(d) If there is a default of the:
(1) insurance for the performance of the warranty
obligations; or
(2) completed operations products liability insurance;
the disclaimer by the remodeler is void.
Sec. 14. (a) If a remodeler breaches a warranty set forth in
section 12 of this chapter, the owner may bring an action against
the remodeler for:
(1) damages arising from the breach; or
date, the new home will be free from major structural defects.
(b) The warranties provided in this section (or IC 34-4-20.5-8 or
IC 32-15-7 before their repeal) survive the passing of legal or
equitable title in the new home to a home buyer.
Sec. 9. (a) A builder may disclaim all implied warranties only if
all of the following conditions are met:
(1) The warranties defined in this chapter are expressly
provided for in the written contract between a builder and an
initial home buyer of a new home.
(2) The performance of the warranty obligations is backed by
an insurance policy in an amount at least equal to the
purchase price of the new home.
(3) The builder carries completed operations products liability
insurance covering the builder's liability for reasonably
foreseeable consequential damages arising from a defect
covered by the warranties provided by the builder.
(b) The disclaimer must be printed in a minimum size of 10
point boldface type setting forth that the statutory warranties of
this chapter are in lieu of the implied warranties that have been
disclaimed by the builder, and the initial home buyer must
affirmatively acknowledge by complete signature that the home
buyer has read, understands, and voluntarily agrees to the
disclaimer. Additionally, the initial home buyer must acknowledge
the disclaimer of implied warranties by signing, at the time of
execution of the contract, a separate one (1) page notice, attached
to the contract, that includes and begins with the following
language:
"NOTICE OF WAIVER OF IMPLIED WARRANTIES
I recognize that by accepting the express warranties and the
insurance covering those warranties for the periods of time
provided in this contract, I am giving up the right to any
claims for implied warranties, which may be greater than the
express warranties. Implied warranties are unwritten
warranties relating to the reasonable expectations of a
homeowner with regard to the construction of the
homeowner's home, as those reasonable expectations are
defined by the courts on a case by case basis.".
(c) If there is a default of either:
(1) the insurance for the performance of the warranty
obligations; or
(2) the completed operations products liability insurance;
the disclaimer by the builder is void from and after the default.
the owner, holder, or custodian shall:
(1) release;
(2) discharge; and
(3) satisfy of record;
the mortgage, mechanic's lien, judgment, or other lien.
(c) If the release, discharge, or satisfaction is a release,
discharge, or satisfaction in part, the instrument must:
(1) state on its face that the instrument is a:
(A) partial release;
(B) partial discharge; or
(C) partial satisfaction; and
(2) describe what portion of the mortgage, mechanic's lien,
judgment, or other lien is released, discharged, or satisfied.
Sec. 2. (a) This section applies if:
(1) the mortgagor or another person having the right to
demand the release of a mortgage or lien makes a written
demand, sent by registered or certified mail with return
receipt requested, to the owner, holder, or custodian to
release, discharge, and satisfy of record the mortgage,
mechanic's lien, judgment, or other lien; and
(2) the owner, holder, or custodian fails, neglects, or refuses
to release, discharge, and satisfy of record the mortgage,
mechanic's lien, judgment, or other lien as required under
section 1 of this chapter not later than fifteen (15) days after
the date the owner, holder, or custodian receives the written
demand.
(b) An owner, holder, or custodian shall forfeit and pay to the
mortgagor or other person having the right to demand the release
of the mortgage or lien:
(1) a sum not to exceed five hundred dollars ($500) for the
failure, neglect, or refusal of the owner, holder, or custodian
to:
(A) release;
(B) discharge; and
(C) satisfy of record the mortgage or lien; and
(2) costs and reasonable attorney's fees incurred in enforcing
the release, discharge, or satisfaction of record of the
mortgage or lien.
(c) If the court finds in favor of a plaintiff who files an action to
recover damages under subsection (b), the court shall award the
plaintiff the costs of the action and reasonable attorney's fees as a
part of the judgment.
corporation that sells or furnishes on credit any material, labor, or
machinery for the alteration or repair of an owner occupied single
or double family dwelling or the appurtenances or additions to the
dwelling to:
(1) a contractor, subcontractor, mechanic; or
(2) anyone other than the occupying owner or the owner's
legal representative;
must furnish to the occupying owner of the parcel of land where
the material, labor, or machinery is delivered a written notice of
the delivery or work and of the existence of lien rights not later
than thirty (30) days after the date of first delivery or labor
performed. The furnishing of the notice is a condition precedent to
the right of acquiring a lien upon the lot or parcel of land or the
improvement on the lot or parcel of land.
(i) A person, firm, partnership, limited liability company, or
corporation that sells or furnishes on credit material, labor, or
machinery for the original construction of a single or double family
dwelling for the intended occupancy of the owner upon whose real
estate the construction takes place to a contractor, subcontractor,
mechanic, or anyone other than the owner or the owner's legal
representatives must:
(1) furnish the owner of the real estate:
(A) as named in the latest entry in the transfer books
described in IC 6-1.1-5-4 of the county auditor; or
(B) if IC 6-1.1-5-9 applies, as named in the transfer books
of the township assessor;
with a written notice of the delivery or labor and the existence
of lien rights not later than sixty (60) days after the date of the
first delivery or labor performed; and
(2) file a copy of the written notice in the recorder's office of
the county not later than sixty (60) days after the date of the
first delivery or labor performed.
The furnishing and filing of the notice is a condition precedent to
the right of acquiring a lien upon the real estate or upon the
improvement constructed on the real estate.
(j) A lien for material or labor in original construction does not
attach to real estate purchased by an innocent purchaser for value
without notice of a single or double family dwelling for occupancy
by the purchaser unless notice of intention to hold the lien is
recorded under section 3 of this chapter before recording the deed
by which the purchaser takes title.
Sec. 2. (a) The entire land upon which the building, erection, or
other improvement is situated, including the part of the land not
occupied by the building, erection, or improvement, is subject to a
lien to the extent of the right, title, and interest of the owner for
whose immediate use or benefit the labor was done or material
furnished.
(b) If:
(1) the owner has only a leasehold interest; or
(2) the land is encumbered by mortgage;
the lien, so far as concerns the buildings erected by the lienholder,
is not impaired by forfeiture of the lease for rent or foreclosure of
mortgage. The buildings may be sold to satisfy the lien and may be
removed not later than ninety (90) days after the sale by the
purchaser.
Sec. 3. (a) Except as provided in subsection (b), a person who
wishes to acquire a lien upon property, whether the claim is due or
not, must file in duplicate a sworn statement and notice of the
person's intention to hold a lien upon the property for the amount
of the claim:
(1) in the recorder's office of the county; and
(2) not later than ninety (90) days after performing labor or
furnishing materials or machinery described in section 1 of
this chapter.
The statement and notice of intention to hold a lien may be verified
and filed on behalf of a client by an attorney registered with the
clerk of the supreme court as an attorney in good standing under
the requirements of the supreme court.
(b) This subsection applies to a person that performs labor or
furnishes materials or machinery described in section 1 of this
chapter related to a Class 2 structure (as defined in IC 22-12-1-5)
or an improvement on the same real estate auxiliary to a Class 2
structure (as defined in IC 22-12-1-5). A person who wishes to
acquire a lien upon property, whether the claim is due or not, must
file in duplicate a sworn statement and notice of the person's
intention to hold a lien upon the property for the amount of the
claim:
(1) in the recorder's office of the county; and
(2) not later than sixty (60) days after performing labor or
furnishing materials or machinery described in section 1 of
this chapter.
The statement and notice of intention to hold a lien may be verified
and filed on behalf of a client by an attorney registered with the
clerk of the supreme court as an attorney in good standing under
the requirements of the supreme court.
(c) A statement and notice of intention to hold a lien filed under
this section must specifically set forth:
(1) the amount claimed;
(2) the name and address of the claimant;
(3) the owner's:
(A) name; and
(B) latest address as shown on the property tax records of
the county; and
(4) the:
(A) legal description; and
(B) street and number, if any;
of the lot or land on which the house, mill, manufactory or
other buildings, bridge, reservoir, system of waterworks, or
other structure may stand or be connected with or to which it
may be removed.
The name of the owner and legal description of the lot or land will
be sufficient if they are substantially as set forth in the latest entry
in the transfer books described in IC 6-1.1-5-4 of the county
auditor or, if IC 6-1.1-5-9 applies, the transfer books of the
township assessor at the time of filing of the notice of intention to
hold a lien.
(d) The recorder shall:
(1) mail, first class, one (1) of the duplicates of the statement
and notice of intention to hold a lien to the owner named in
the statement and notice not later than three (3) business days
after recordation;
(2) post records as to the date of the mailing; and
(3) collect a fee of two dollars ($2) from the lien claimant for
each statement and notice that is mailed.
The statement and notice shall be addressed to the latest address
of the owner as specifically set out in the sworn statement and
notice of the person intending to hold a lien upon the property.
Sec. 4. Any otherwise valid and enforceable statement and
notice of intention to hold a lien filed before March 10, 1967, is
valid and enforceable.
Sec. 5. (a) As used in this section, "lender" refers to:
(1) an individual;
(2) a supervised financial organization (as defined in
IC 24-4.5-1-301);
(3) an insurance company or a pension fund; or
(4) any other entity that has the authority to make loans.
any material or machinery for these activities.
(b) Except as provided in section 12 of this chapter, in order to
acquire and hold a lien, a person described in subsection (a) must
give to the property owner, or if the property owner is absent, to
the property owner's agent, written notice particularly setting
forth the amount of the person's claim and services rendered for
which:
(1) the person's employer or lessee is indebted to the person;
and
(2) the person holds the property owner responsible.
(c) Subject to subsections (d) and (e), the property owner is
liable for the person's claim.
(d) The property owner is liable to a person described in
subsection (a) for not more than the amount that is due and may
later become due from the owner to the employer or lessee.
(e) A person described in subsection (a) may recover the amount
of the person's claim if, after the amounts of other claims that have
priority are subtracted from the amount due from the property
owner to the employer or lessee, the remainder of the amount due
from the property owner to the employer or lessee is sufficient to
pay the amount of the person's claim.
(f) This section applies to a person described in subsection (a)
who gives written notice, to the property owner or, if the property
owner is absent, to the owner's agent, before labor is performed or
materials or machinery is furnished. The notice must particularly
set forth the amount of:
(1) labor the person has contracted to perform; or
(2) materials or machinery the person has contracted to
furnish;
for the employer or lessee in erecting, altering, repairing, or
removing any of the buildings or other structures described in
subsection (a). A person described in subsection (a) has the same
rights and remedies against the property owner for the amount of
the labor performed by the person or materials or machinery
furnished by the person after the notice is given, as are provided in
this chapter for persons who serve notice after performing the
labor or furnishing the materials or machinery.
(g) If an action is brought against a property owner under this
section, all subcontractors, equipment lessors leasing equipment,
journeymen, and laborers who have:
(1) performed labor or furnished materials or machinery; and
(2) given notice under this section;
extent of the work or labor performed, or material furnished, or
both, upon:
(1) the right-of-way and franchises of the railroad
corporation; and
(2) the works and structures as set forth in this section that
may be upon the right-of-way and franchise of the railroad
corporation;
within the limits of the county in which the work or labor may be
performed or the material may be furnished.
(d) A person performing work or labor or furnishing materials
under a contract described in subsection (b)(2) is not required to
give notice to the railroad corporation under section 9 of this
chapter in order to acquire and hold a lien for labor performed or
material furnished under the provisions of this section. The
performance of the labor or the furnishing of the materials is
sufficient notice to the railroad corporation. A lien that is acquired
as set forth in this subsection shall be enforced as other mechanic's
liens are enforced in Indiana.
(e) A person who, in doing business with a railroad company,
has constructed a building or other improvement on a portion of
the railroad right-of-way adjacent to the person's place of business
may have a lien to the extent of the fair market value of the
improvement on that portion of the right-of-way. The lien may be
acquired and enforced:
(1) upon abandonment of the right-of-way by the railroad
company; and
(2) against the successors in title of the railroad company.
This subsection does not apply to property that is subject to a
written agreement providing for the disposition of improvements
upon abandonment. Liens acquired under this subsection shall be
enforced as other mechanic's liens are enforced in Indiana.
Sec. 13. A person who desires to acquire the lien provided for in
section 12 of this chapter must give notice of the person's intention
to hold the lien by causing the notice to be recorded in the
recorder's office of the county in which the work was done or
material furnished in the same manner and within the same time
as provided in this chapter for giving notice of a mechanic's lien.
A person who gives notice within the proper time may enforce the
lien in the same manner as mechanic's liens are enforced. The suit
must be brought within one (1) year after the time the notice was
filed in the recorder's office.
Sec. 14. (a) Except as provided in subsection (b), in an action to
enforce a lien under this chapter, the plaintiff or lienholder may
recover reasonable attorney's fees as a part of the judgment.
(b) A plaintiff may not recover attorney's fees as part of the
judgment against a property owner in an action in which the
contract consideration for the labor, material, or machinery has
been paid by the property owner or party for whom the
improvement has been constructed.
Sec. 15. A person who knowingly or intentionally:
(1) performs labor, supplies services, or furnishes material or
machinery in the:
(A) construction;
(B) repair; or
(C) remodeling;
of a building, structure, or other work;
(2) accepts payment for the labor, services, material, or
machinery furnished and supplied;
(3) at the time of receiving the payment, knows that the
person is indebted to another for:
(A) labor, including the cost of renting or leasing
construction and other equipment and tools, whether or
not an operator is also provided by the lessor;
(B) services;
(C) material; or
(D) machinery;
used or employed in the construction, repair, or remodeling;
(4) fails:
(A) at the time of receiving the payment; and
(B) with intent to defraud;
to notify in writing the person from whom the payment was
received of the existence of the outstanding indebtedness; and
(5) causes the person from whom the payment was received to
suffer a loss by failing under subdivision (4) to notify the
person of the existence of the outstanding indebtedness;
commits a Class D felony.
Sec. 16. (a) This section applies to a construction contract for
the construction, alteration, or repair of a building or structure
other than:
(1) a Class 2 structure (as defined in IC 22-12-1-5) or an
improvement on the same real estate auxiliary to a Class 2
structure (as defined in IC 22-12-1-5); or
(2) property that is:
(A) owned, operated, managed, or controlled by a public
utility (as defined in IC 8-1-2-1), a municipally owned
utility (as defined in IC 8-1-2-1), a joint agency (as defined
in IC 8-1-2.2-2), a rural electric membership corporation
formed under IC 8-1-13-4, or a not-for-profit utility (as
defined in IC 8-1-2-125) regulated under IC 8; and
(B) intended to be used and useful for the production,
transmission, delivery, or furnishing of heat, light, water,
or power to the public.
(b) A provision in a contract for the improvement of real estate
in Indiana is void if the provision requires a person described in
section 1 of this chapter who furnishes labor, materials, or
machinery to waive a right to:
(1) a lien against real estate; or
(2) a claim against a payment bond;
before the person is paid for the labor or materials furnished.
(c) A provision in a contract for the improvement of real estate
in Indiana under which one (1) or more persons agree not to file a
notice of intention to hold a lien is void.
Sec. 17. A provision in a contract for the improvement of real
estate in Indiana is void if the provision:
(1) makes the contract subject to the laws of another state; or
(2) requires litigation, arbitration, or other dispute resolution
process on the contract occur in another state.
Sec. 18. (a) This section applies to a provider of labor, materials,
or equipment under a contract for the improvement of real estate
that conditions the right of the provider to receive payment on the
obligor's receipt of payment from a third person with whom the
provider does not have a contractual relationship.
(b) This section does not apply to a construction contract for the
construction, alteration, or repair of the following:
(1) A Class 2 structure (as defined in IC 22-12-1-5).
(2) An improvement on the same real estate auxiliary to a
Class 2 structure (as defined in IC 22-12-1-5).
(3) Property that is:
(A) owned, operated, managed, or controlled by a:
(i) public utility (as defined in IC 8-1-2-1);
(ii) municipally owned utility (as defined in IC 8-1-2-1);
(iii) joint agency (as defined in IC 8-1-2.2-2);
(iv) rural electric membership corporation formed under
IC 8-1-13-4; or
(v) not-for-profit utility (as defined in IC 8-1-2-125);
regulated under IC 8; and
this chapter applies does not show the time when the debt or the
last installment of the debt secured by the mortgage or vendor's
lien becomes due:
(1) the original mortgagee;
(2) the owner of the mortgage; or
(3) the owner of a vendor's lien;
may file an affidavit with the recorder of the county where the
mortgage or lien is recorded, stating when the debt becomes due.
An affidavit must be filed under this section not later than twenty
(20) years after the date of the mortgage or lien, or, if the mortgage
or lien contains no date of execution, not later than twenty (20)
years from the date the mortgage or vendor's lien was recorded.
Upon the filing of the affidavit, the recorder shall note in the
record of the mortgage or vendor's lien that an affidavit has been
filed, showing the location where the affidavit is recorded.
(b) The filing of an affidavit under subsection (a) has the same
effect with respect to the duration of the lien of the mortgage or
vendor's lien described in the affidavit and with respect to the time
within which an action may be brought or maintained to foreclose
the mortgage or vendor's lien as though the time of maturity of the
debt or the last installment of the debt secured by the mortgage or
vendor's lien had been stated in the mortgage or vendor's lien
when recorded. The affidavit is prima facie evidence of the truth
of the averments contained in the affidavit. The lien of a mortgage
or vendor's lien on the real estate described in the affidavit expires
twenty (20) years after the time when the debt or the last
installment of the debt secured by the mortgage or vendor's lien
becomes due, as shown by the affidavit. Upon the expiration of a
mortgage or lien as described in this section and at the request of
the real estate owner, the recorder of the county in which the
affidavit is recorded shall certify on the record of the mortgage or
vendor's lien that the mortgage or vendor's lien is fully paid and
satisfied by lapse of time and that the real estate is released from
the lien.
(c) The recorder shall charge a fee for filing the affidavit in
accordance with the fee schedule established in IC 36-2-7-10.
Chapter 5. Release of Liens on Conveyance of Real Estate
Sec. 1. (a) If a grantee has satisfied a lien on real property, the
grantor shall, upon the request of the grantee, record on the lien
record that the lien has been satisfied.
(b) Recording on the record of a lien under subsection (a) that
the lien has been satisfied operates as a complete discharge of the
lien.
Sec. 2. (a) If a grantee has satisfied a lien on real property but
the grantor has not recorded that the lien has been satisfied under
section 1 of this chapter, the grantor shall, at the request of the
grantee, certify that the lien has been satisfied. The grantor's
certification shall be acknowledged by the grantor in the same
manner as is required to entitle a conveyance of real property to be
recorded. The grantor's certification shall be recorded by the
recorder in whose office the deed is recorded, with reference to the
location of the recorded deed.
(b) A recorded certification that a lien has been satisfied
operates as a complete discharge of the lien.
Chapter 6. Release of Mechanic's Liens
Sec. 1. (a) If:
(1) a person owns or has an interest in real estate to which a
mechanic's lien has been attached;
(2) the debt secured by the lien has satisfied or paid; and
(3) the person who owns or has an interest in the encumbered
real estate demands that the lien be released;
the lienholder shall release the lien within fifteen (15) days after the
demand.
(b) If the lienholder does not release the lien within fifteen (15)
days after the demand, the lienholder is liable to the person who
owns or has an interest in the real estate to which the mechanic's
lien has been attached for the greater of:
(1) actual damages; or
(2) liquidated damages in the sum of ten dollars ($10) per day
from the fifteenth day until the release or expiration of the
lien.
(c) A person who owns or who has an interest in real estate to
which a mechanic's lien has been attached may, at any time
thirteen (13) months after the date of the filing of the notice of the
lien, file in the office of the recorder of the county in which the real
estate is situated an affidavit stating that no suit for the foreclosure
of the lien is pending and that no unsatisfied judgment has been
rendered on the lien.
Sec. 2. If a person who owns or has an interest in real estate
encumbered by a mechanic's lien files the affidavit described in
section 1(c) of this chapter, the recorder of the county in which the
encumbered real estate is situated shall immediately record the
affidavit and certify on the record of the lien that the mechanic's
lien is fully satisfied and that the real estate described in the
mechanic's lien is released from the lien. The fee of the recorder
for the filing and recording of the affidavit shall be an amount
prescribed by law and shall be paid by the person filing the
affidavit.
Chapter 7. Mechanic's Liens and Liens on Public
Improvements; Foreclosures and Expiration
Sec. 1. An action may not be brought or maintained in Indiana
to foreclose or enforce a mechanic's lien filed under Indiana law
when the debt secured by the lien, as shown by the record of the
lien, has been due more than one (1) year. If the record of the lien
does not show when the debt secured by the lien became due, an
action to foreclose or enforce the lien may not be brought or
maintained in Indiana more than one (1) year after the filing date
of the lien.
Sec. 2. A mechanic's lien filed under Indiana law expires one (1)
year after the debt secured by the lien becomes due, as shown by
the record of the lien. If the record of the mechanic's lien does not
show when the debt secured by the lien becomes due, the
mechanic's lien expires one (1) year after the filing date of the lien.
Sec. 3. (a) Except as provided in subsection (b), the lien of an
assessment for a:
(1) street;
(2) sewer;
(3) sidewalk;
(4) ditch; or
(5) other public improvement;
expires five (5) years after the assessment (including any
installment payments) is due and payable, as shown by the record
creating the lien.
(b) If an assessment is payable in installments, an action to
enforce the lien may be brought within fifteen (15) years after the
date of the approval of the record creating the lien. After the
expiration of this time period, upon the request of the owner of
record of the encumbered real estate, the custodian of the record
evidencing the lien, in the jurisdiction in which the real estate is
situated, shall certify on the record that the lien of the assessment
for street, sewer, sidewalk, ditch, or other public improvement is
satisfied and released by lapse of time and that the encumbered
real estate is released from the lien.
Sec. 4. If an action to enforce a lien to which this chapter applies
was commenced in Indiana before the lien expired, the lien as it
existed at the time the action commenced may be enforced.
prior lien upon:
(1) the corporate property of the corporation; and
(2) the earnings of the corporation;
for all work and labor done and performed by the employees for
the corporation from the date of the employees' employment by the
corporation. A lien under this section is prior to all liens created or
acquired after the date of the employment of the employees by the
corporation, except as otherwise provided in this chapter.
(b) An employee lien arising from the sale of real estate:
(1) is limited to a lien on the real estate; and
(2) is subject to section 3 of this chapter.
Sec. 2. (a) This section does not apply to a lien acquired by any
person for purchase money.
(b) Any employee wishing to acquire a lien under section 1 of
this chapter upon the corporate property of any corporation or the
corporation's earnings, whether the employee's claim is due or not,
must file, in the recorder's office of the county where the
corporation is located or doing business, notice of the employee's
intention to hold a lien upon the corporation's property and
earnings. The notice must state the following:
(1) The amount of the employee's claim.
(2) The date of the employee's employment.
(3) The name of the corporation.
When a notice required by this section is presented for record, the
county recorder shall record the notice in the record required by
law for notice of mechanic's liens. The recorder shall charge a fee
for recording the notice in an amount specified in
IC 36-2-7-10(b)(1) and IC 36-2-7-10(b)(2). The lien created shall
relate to the time when the employee was employed by the
corporation or to any subsequent date during the employee's
employment, at the election of the employee. The lien has priority
over all liens suffered or created after the time elected by the
employee, except other employees' liens, over which the lien has no
priority.
(c) If:
(1) a person other than an employee acquires a lien upon the
corporate property of any corporation located or doing
business in Indiana;
(2) the lien, for a period of sixty (60) days, either:
(A) remains a matter of record in the proper place
specified in IC 26-1-9.1-501; or
(B) remains otherwise perfected under applicable law; and
or appraisement laws.
(c) In an action brought under this section, the court shall make
orders as to the application of the earnings of the corporation that
are just and equitable, whether or not the the relief is asked for in
the complaint.
Sec. 5. (a) In an action brought under this chapter, all persons
whose liens are recorded under section 2 of this chapter may be
made parties to the action. Issues shall be made up and trials had
as in other cases.
(b) The court may, when several actions are pending by
different claimants to enforce liens under this chapter, order that
the cases be consolidated. If the proceeds of the sale of the
corporation's property or the corporation's earnings are
insufficient to pay and satisfy the claimants in full, the court shall
order the claimants to be paid in proportion to the amount due
each, and the sale shall be made without prejudice to the rights of
any prior encumbrances, owner, or other persons not parties to the
action.
Sec. 6. In a proceeding commenced under this chapter, a
defendant may file a written undertaking, with surety to be
approved by the court, in the exercise of sound discretion, to the
effect that the defendant will pay the judgments that may be
recovered, and costs. An undertaking under this section releases
the defendant's property from the liens created under this chapter.
Sec. 7. In all cases not specially provided for in this chapter, the
law, rules, practice, and pleadings in force in reference to the
enforcement of mechanic's liens apply to suits commenced under
this chapter.
Chapter 13. Common Law Liens
Sec. 1. As used in this chapter, "common law lien" means a lien
against real or personal property that is not:
(1) a statutory lien;
(2) a security interest created by agreement; or
(3) a judicial lien obtained by legal or equitable process or
proceedings.
Sec. 2. As used in this chapter, "property owner" means the
owner of record of real or personal property against which a
common law lien is held under this chapter.
Sec. 3. As used in this chapter, "public official" means an
individual who holds office in or is an employee of the executive,
judicial, or legislative branch of the state or federal government or
a political subdivision of the state or federal government.
required under subsection (b) may be verified and filed on behalf
of a client by an attorney registered with the clerk of the supreme
court as an attorney in good standing under the requirements of
the supreme court.
Sec. 6. (a) A property owner may send to the lienholder a notice
requiring the lienholder to commence suit on the common law lien.
The notice to commence suit must be made by registered or
certified mail to the lienholder at the address given in the
lienholder's statement filed under section 5 of this chapter.
(b) If the lienholder fails to commence suit within thirty (30)
days after receiving the notice to commence suit, the common law
lien is void. To release the common law lien from the property, the
property owner must comply with the requirements of section 7 of
this chapter.
Sec. 7. (a) If a lienholder fails to commence suit after notice to
commence suit is sent under section 6 of this chapter, a property
owner may file an affidavit of service of notice to commence suit
with the recorder of the county in which the statement of intention
to hold a common law lien was recorded. The affidavit must:
(1) include:
(A) the date the notice to commence suit was received by
the lienholder;
(B) a statement that at least thirty (30) days have elapsed
from the date the notice to commence suit was received by
the lienholder;
(C) a statement that a suit for foreclosure of the common
law lien has not been filed and is not pending;
(D) a statement that an unsatisfied judgment has not been
rendered on the common law lien; and
(E) a cross-reference specifying the record of the county
recorder containing the statement of intention to hold a
common law lien; and
(2) have attached to it a copy of:
(A) the notice to commence suit that was sent to the
lienholder under section 6 of this chapter; and
(B) the return receipt of the notice to commence suit.
(b) The property against which the lien has been filed is released
from the common law lien when the county recorder:
(1) records the affidavit of service of notice to commence suit
in the miscellaneous record book of the recorder's office; and
(2) certifies in the county recorder's records that the lien is
released.
mortgagee to sell the mortgaged property. The sale of mortgaged
property by the mortgagee may only be made under a judicial
proceeding.
Sec. 4. A mortgage granted by a purchaser to secure purchase
money has priority over a prior judgment against the purchaser.
Sec. 5. A mortgage of land that is:
(1) worded in substance as "A.B. mortgages and warrants to
C.D." (here describe the premises) "to secure the repayment
of" (here recite the sum for which the mortgage is granted, or
the notes or other evidences of debt, or a description of the
debt sought to be secured, and the date of the repayment);
and
(2) dated and signed, sealed, and acknowledged by the
grantor;
is a good and sufficient mortgage to the grantee and the grantee's
heirs, assigns, executors, and administrators, with warranty from
the grantor (as defined in IC 32-17-1-1) and the grantor's legal
representatives of perfect title in the grantor and against all
previous encumbrances. However, if in the mortgage form the
words "and warrant" are omitted, the mortgage is good but
without warranty.
Sec. 6. After a mortgagee of property whose mortgage has been
recorded has received full payment from the mortgagor of the sum
specified in the mortgage, the mortgagee shall, at the request of the
mortgagor, enter in the record of the mortgage that the mortgage
has been satisfied. An entry in the record showing that a mortgage
has been satisfied operates as a complete release and discharge of
the mortgage.
Sec. 7. If a mortgage has been paid and satisfied by the
mortgagor, the mortgagor may take a certificate of satisfaction,
duly acknowledged by the mortgagee or the mortgagee's lawful
agent, as required for the acknowledgment of conveyances to
entitle them to be recorded. The certificate and acknowledgment
shall be recorded by the recorder in whose office the mortgage is
recorded, with a reference to the location of the record of the
mortgage. The recorded certificate discharges and releases the
mortgagor from the mortgage (or portion of the mortgage as
indicated in a partial satisfaction), and bars all suits and actions on
the mortgage.
Sec. 8. (a) Any mortgage of record or any part of the mortgage
may be assigned by the mortgagee or any assignee of the mortgage,
either by an assignment entered on the margin of the record,
signed by the person making the assignment and attested by the
recorder, or by a separate instrument executed and acknowledged
before any person authorized to take acknowledgments, and
recorded in the mortgage records of the county. The county
recorder shall note the assignment in the margin by reference to
the location where the assignment is recorded.
(b) The signature of a person on an assignment under subsection
(a) may be a facsimile. The facsimile on the assignment is
equivalent to and constitutes the written signature of the person for
all requirements regarding mortgage assignments.
(c) Notwithstanding subsection (a), marginal assignments may
be accepted at the discretion of the recorder. Except in a county
that accepts marginal assignments of mortgage, an assignment of
mortgage must be recorded on a separate written instrument from
the mortgage. If a recorder accepts marginal assignments of
mortgage, an instrument presented for recording in that county
may not contain more than one (1) assignment. If a recorder allows
an instrument to contain more than one (1) assignment, the fee for
recording that instrument is provided in IC 36-2-7-10(b)(3).
(d) After entry is made of record, the mortgagor and all other
persons are bound by the record, and the entry is a public record.
Any assignee may enter satisfaction or release of the mortgage, or
the part of the mortgage held by the assignee of record.
Sec. 9. This chapter does not affect any provisions made by law
relating to the foreclosure of mortgages to the state, so far as the
provisions conflict with the provisions of this chapter.
Sec. 10. (a) In addition to any other obligation secured by a
mortgage, a mortgage may also secure:
(1) future obligations and advances up to the maximum
amount stated in the mortgage (whether made as an
obligation, made at the option of the lender, made after a
reduction to a zero (0) or other balance, or made otherwise)
to the same extent as if the future obligations and advances
were made on the date of execution of the mortgage; and
(2) future modifications, extensions, and renewals of any
indebtedness or obligations secured by the mortgage if and to
the extent that the mortgage states that the mortgage secures
those future advances, modifications, extensions, and
renewals.
(b) The lien of a mortgage with respect to future advances,
modifications, extensions, and renewals referred to in subsection
(a) has the priority to which the mortgage otherwise would be
entitled under IC 32-21-4-1 without regard to the fact that the
future advance, modification, extension, or renewal may occur
after the mortgage is executed.
Sec. 11. (a) This chapter does not limit:
(1) the right to assign, mortgage, or pledge the rents and
profits arising from real estate;
(2) the right of an assignee, a mortgagee, or a pledgee to
collect rents and profits for application in accordance with an
assignment, a mortgage, or a pledge; or
(3) the power of a court of equity to appoint a receiver to take
charge of real estate to collect rents and profits for
application in accordance with an assignment, a mortgage, or
a pledge.
(b) A person may enforce an assignment, a mortgage, or a
pledge of rents and profits arising from real property:
(1) whether the person has or does not have possession of the
real estate; and
(2) regardless of the:
(A) adequacy of the security; or
(B) solvency of the assignor, mortgagor, or pledgor.
(c) If a person:
(1) enforces an assignment, a mortgage, or a pledge of rents
and profits arising from real estate; and
(2) does not have possession of the real estate;
the obligations of a mortgagee in possession of real estate may not
be imposed on the holder of the assignment, mortgage, or pledge.
Chapter 2. Recording of Assignment
Sec. 1. A person who transfers or assigns a mortgage within
Indiana shall do so in writing by:
(1) noting the assignment or transfer on the record recording
the mortgage; or
(2) separate written instrument.
A person who transfers or assigns a mortgage as described in this
section shall cause the notation or written instrument to be
acknowledged before an officer authorized to take
acknowledgments of the execution of mortgages.
Sec. 2. In order to be recorded, a written instrument that
transfers or assigns a mortgage under this chapter must state the
location and business address of the person to whom the mortgage
is transferred or assigned.
Chapter 3. Attestation of Releases; Legalizing Prior Release
Sec. 1. The release of a mortgage, lease, or other instrument
required by law to be recorded written upon the margin, or upon
the record, of any mortgage in Indiana by the party authorized to
release the mortgage is not a valid release of the mortgage, lease,
or other instrument unless the release is attested on the record by
the recorder or deputy recorder of the county in which the
mortgage is recorded.
Chapter 4. Release by State
Sec. 1. If the mortgage records of a county in Indiana indicate
that a mortgage has been executed to the state and:
(1) there is no evidence of indebtedness secured by the
mortgage in the possession of the treasurer of state or auditor
of state; and
(2) there is no evidence in the office of the auditor of state or
treasurer of state that a loan secured by the mortgage was
made;
the auditor of state may release and discharge the mortgage of
record.
Chapter 5. Release by Financial Institutions or Corporations
Sec. 1. (a) It is lawful for:
(1) the president, vice president, cashier, secretary, treasurer,
attorney in fact, or other authorized representative of a
national bank, state bank, trust company, or savings bank; or
(2) the president, vice president, general manager, secretary,
treasurer, attorney in fact, or other authorized representative
of any other corporation doing business in Indiana;
to release upon the record mortgages, judgments, and other record
liens upon the payment of the debts secured by the liens.
(b) A release, when made upon the margin or face of the record
of the mortgage, judgment, or other lien and attested by the
recorder, clerk, or other officer having custody of the record of the
lien, is a full discharge and satisfaction of the lien.
(c) The recorder of each county may require that each release,
discharge, or satisfaction of a mortgage, judgment, or lien, or any
partial release of any of these, be recorded on a separate written
instrument. If a recorder requires the recording of each release,
discharge, or satisfaction on a separate written instrument, an
instrument presented for recordation in that county may not
contain more than one (1) release, discharge, or satisfaction. If a
recorder allows an instrument to contain more than one (1) release,
discharge, or satisfaction, the fee for recording that instrument is
provided in IC 36-2-7-10(b)(3).
(d) Except as provided in subsection (e), a national bank, state
bank, trust company, savings bank, or other corporation may
release and discharge mortgages, judgments, or other record liens
by a separate written instrument signed by its:
(1) corporate name;
(2) president;
(3) vice president;
(4) cashier;
(5) secretary;
(6) treasurer;
(7) attorney-in-fact; or
(8) authorized representative.
A release under this subsection shall be recorded by the recorder,
clerk, or other officer having custody of the record of the lien, with
a reference on the margin of the record of the lien to the location
where the release is recorded. Upon recordation, the release is a
full discharge and satisfaction of the lien, or portion of the lien, as
indicated in a partial release.
(e) A release by the attorney-in-fact may not be recorded until
a written instrument specifically granting the attorney in fact the
authority to release and discharge mortgages, judgments, or other
record liens has been filed and recorded in the recorder's office of
the county where the release is to be recorded. The written
instrument must be in writing and signed and acknowledged by
two (2) officers of the national bank, state bank, trust company,
savings bank, or other corporation.
(f) A party may revoke the written instrument filed under
subsection (e) by:
(1) noting on the written instrument granting the attorney in
fact the authority to release mortgages and liens that this
power has been revoked; or
(2) filing and recording in the recorder's office of the county
where the written instrument described in subsection (e) of
this section was filed, a separate written instrument signed
and acknowledged by two (2) officers of the entity revoking
the attorney-in-fact's authority.
The written notice of revocation described in this subsection must
be attested by the recorder of the county in which the revocation
is filed. The party conferring the power described in subsection (e)
is bound by an act performed before written notice revoking the
authority is properly attested to and filed in the county recorder's
office.
Chapter 6. Mortgage Release by Title Insurance Companies
the county recorder.
Sec. 16. (a) The execution and recording of a wrongful or
erroneous certificate of release by a title insurance company or a
duly appointed agent with authority from a title insurance
company does not relieve the mortgagor, or anyone succeeding to
or assuming the interest of the mortgagor, from any liability for
the debt or other obligations secured by the mortgage that is the
subject of the wrongful or erroneous certificate of release.
(b) Additionally, a title insurance company or an appointed
agent with authority from a title insurance company that
wrongfully or erroneously executes and records a certificate of
release is liable to the mortgagee, or the assignee of the mortgagee
if the mortgage has been assigned, for actual damages sustained
due to the recording of a wrongful or erroneous certificate of
release.
Sec. 17. (a) This chapter applies to the release of a mortgage
after June 30, 2001, and before July 1, 2002, regardless of when the
mortgage was created or assigned.
(b) This chapter expires July 1, 2003.
Chapter 7. Foreclosure.Redemption, Sale, Right to Retain
Possession
Sec. 1. As used in this chapter, "auctioneer" means an
auctioneer licensed under IC 25-6.1.
Sec. 2. For the purposes of section 4(b) of this chapter, the sale
of property by the sheriff through the services of an auctioneer is
"economically feasible" if the court determines that:
(1) a reasonable probability exists that, with the use of the
services of an auctioneer, a valid and enforceable bid will be
made at a foreclosure for a sale price equal to or greater than
the amount of the judgment and the costs and expenses
necessary to its satisfaction, including the costs of the
auctioneer; and
(2) the reasonable probability would not exist without the use
of an auctioneer.
Sec. 3. (a) In a proceeding for the foreclosure of a mortgage
executed on real estate, process may not issue for the execution of
a judgment or decree of sale for a period of three (3) months after
the filing of a complaint in the proceeding. However:
(1) the period shall be:
(A) twelve (12) months in a proceeding for the foreclosure
of a mortgage executed before January 1, 1958; and
(B) six (6) months in a proceeding for the foreclosure of a
mortgage executed after December 31, 1957, but before
July 1, 1975; and
(2) if the court finds that the mortgaged real estate is
residential real estate and has been abandoned, a judgment or
decree of sale may be executed on the date the judgment of
foreclosure or decree of sale is entered, regardless of the date
the mortgage is executed.
(b) A judgment and decree in a proceeding to foreclose a
mortgage that is entered by a court having jurisdiction may be
filed with the clerk in any county as provided in IC 33-17-2-3. After
the period set forth in subsection (a) expires, a person who may
enforce the judgment and decree may file a praecipe with the clerk
in any county where the judgment and decree is filed, and the clerk
shall promptly issue and certify to the sheriff of that county a copy
of the judgment and decree under the seal of the court.
(c) Upon receiving a certified judgment under subsection (b),
the sheriff shall, subject to section 4 of this chapter, sell the
mortgaged premises or as much of the mortgaged premises as
necessary to satisfy the judgment, interest, and costs at public
auction at the office of the sheriff or at another location that is
reasonably likely to attract higher competitive bids. The sheriff
shall schedule the date and time of the sheriff's sale for a time
certain between the hours of 10 a.m. and 4 p.m. on any day of the
week except Sunday.
(d) Before selling mortgaged property, the sheriff must
advertise the sale by publication once each week for three (3)
successive weeks in a daily or weekly newspaper of general
circulation. The sheriff shall publish the advertisement in at least
one (1) newspaper published and circulated in each county where
the real estate is situated. The first publication shall be made at
least thirty (30) days before the date of sale. At the time of placing
the first advertisement by publication, the sheriff shall also serve
a copy of the written or printed notice of sale upon each owner of
the real estate. Service of the written notice shall be made as
provided in the Indiana Rules of Trial Procedure governing service
of process upon a person. The sheriff shall charge a fee of ten
dollars ($10) to one (1) owner and three dollars ($3) to each
additional owner for service of written notice under this
subsection. The fee is:
(1) a cost of the proceeding;
(2) to be collected as other costs of the proceeding are
collected; and
plus one hundred dollars ($100). The amount due the auctioneer on
account of the auctioneer's expenses and fee, if any, shall be paid
as a cost of the sale from its proceeds before the payment of any
other payment from the sale.
Sec. 5. The owner of the real estate subject to the issuance of
process under a judgment or decree of foreclosure may, with the
consent of the judgment holder endorsed on the judgment or
decree of foreclosure, file with the clerk of the court a waiver of the
time limitations on issuance of process set out in section 3 of this
chapter. If the owner files a waiver under this section, process shall
issue immediately. The consideration for waiver, whether or not
expressed by its terms, shall be the waiver and release by the
judgment holder of any deficiency judgment against the owner.
Sec. 6. (a) If the mortgaged real estate is located in more than
one (1) county:
(1) the court of any county the mortgaged real estate is
located in has jurisdiction of an action for the foreclosure of
the mortgage; and
(2) all the real estate shall be sold in the county where the
action is brought, unless the court orders otherwise.
(b) A judgment and decree granted by a court or a judge in an
action for the foreclosure of the mortgaged real estate shall be
recorded in the lis pendens record kept in the office of the clerk of
each county where the real estate is located, unless the judgment
and decree is filed with the clerk in the county as provided in
IC 33-17-2-3.
Sec. 7. Before the sale under this chapter, any owner or part
owner of the real estate may redeem the real estate from the
judgment by payment to the:
(1) clerk before the issuance to the sheriff of the judgment and
decree; or
(2) sheriff after the issuance to the sheriff of the judgment and
decree;
of the amount of the judgment, interest, and costs for the payment
or satisfaction of which the sale was ordered. If the owner or part
owner redeems the real estate under this section, process for the
sale of the real estate under judgment may not be issued or
executed, and the officer receiving the redemption payment shall
satisfy the judgment and vacate order of sale. However, if the real
estate is redeemed by a part owner, the part owner shall have a lien
on the shares of the other owners for their respective shares of the
redemption money, with interest at the rate of eight percent (8%)
per annum, plus the costs of redemption. The lien shall be of the
same force and effect as the judgment lien redeemed by the part
owner and shall be enforceable by appropriate legal proceedings.
Sec. 8. In selling real estate under this chapter, the sheriff is not
required to first offer the rents and profits of the real estate or
separate portions or parcels of the real estate. The sheriff may
offer for sale the whole body of the mortgaged real estate together
with rents, issues, income, and profits of the real estate unless the
court in its judgment and order of sale has otherwise ordered. If
any part of the judgment, interest, or costs remains unsatisfied, the
sheriff shall immediately levy the residue on the other property of
the defendant.
Sec. 9. (a) A sheriff or an agent of the sheriff making a
foreclosure sale under this chapter may not directly or indirectly
purchase property sold by the sheriff or the sheriff's agent. If the
purchaser of property sold on foreclosure fails to immediately pay
the purchase money, the sheriff shall resell the property either on
the same day without advertisement or on a subsequent day after
again advertising in accordance with this chapter, as the judgment
creditor directs. If the amount bid at the second sale does not equal
the amount bid at the first sale, including the costs of the second
sale, the first purchaser shall be liable for:
(1) the deficiency;
(2) damages not exceeding ten percent (10%); and
(3) interest and costs;
all of which may be recovered in a court of proper jurisdiction by
the sheriff.
(b) If the property is sold, the sheriff shall pay the proceeds as
provided in IC 32-30-10-14. Every sale made under this chapter
must be without relief from valuation or appraisement laws and
without any right of redemption.
Sec. 10. Immediately after a foreclosure sale under this chapter,
the sheriff shall execute and deliver to the purchaser a deed of
conveyance for the premises, which must be valid to convey all the
right, title, and interest held or claimed by all of the parties to the
action and all persons claiming under them. The sheriff shall file
a return with the clerk of the court.
Sec. 11. (a) If the court appoints a receiver of mortgaged
property, the receiver shall take possession of the mortgaged
property, collect the rents, issues, income, and profits and apply the
rents, issues, income, and profits to the payment of taxes,
assessments, insurance premiums, and repairs required in the
judgment of the receiver to preserve the security of the mortgage
debt. The receiver shall promptly file a final report with the clerk
of the court and, subject to the approval of the court, account for
and pay over to the clerk, subject to the further order of the court,
the balance of income or other proceeds that remain in the
receiver's possession.
(b) If the mortgaged property is occupied as a dwelling by the
record owner of the fee simple title, the owner shall be permitted
to retain possession of the mortgaged property, rent free, until the
foreclosure sale if the owner continues to pay the taxes and special
assessments levied against the mortgaged property and if the
owner, in the judgment of the court, does not suffer waste or other
damage to the property. However, if the record owner of the fee
simple title does not pay the taxes and special assessments levied
against the mortgaged property, the owner may retain possession
of that part of the mortgaged property, not exceeding fifteen (15)
acres, that is actually occupied as a dwelling by the record owner
of the fee simple title, rent free, until the sale, if the owner does not,
in the judgment of the court, suffer waste or other damage to the
property. The owner of any crops growing on the mortgaged
property at the time of the commencement of an action for
foreclosure, other than the owner of fee simple title or the owner's
assigns, may enter the property to care for and harvest the crops
at any time within one (1) year after the filing of the foreclosure
action.
Sec. 12. If the record owner of the fee simple title has the right
under section 11 of this chapter to retain possession of the
mortgaged premises or any part of the mortgaged premises until
the foreclosure sale, the owner may, at any time within one (1) year
after the commencement of the foreclosure action, enter the
premises to care for and harvest any crops growing at the time of
the commencement of the foreclosure action on all or part of the
mortgaged premises.
Sec. 13. There may not be a redemption from the foreclosure of
a mortgage executed after June 30, 1931, on real estate except as
provided in this chapter.
Sec. 14. The laws of Indiana in force on June 29, 1931, shall
apply to the foreclosure of any mortgage executed before June 30,
1931.
Chapter 8. Parties to Foreclosure Suit; Redemption
Sec. 1. If a suit is brought to foreclose a mortgage, the
mortgagee or an assignee shown on the record to hold an interest
in the mortgage shall be named as a defendant.
Sec. 2. A person who fails to:
(1) have an assignment of the mortgage made to the person
properly placed on the mortgage record; or
(2) be made a party to the foreclosure action;
is bound by the court's judgment or decree as if the person were a
party to the suit.
Sec. 3. A person who purchases a mortgaged premises or any
part of a mortgaged premises under the court's judgment or decree
at a judicial sale or who claims title to the mortgaged premises
under the judgment or decree, buying without actual notice of an
assignment that is not of record or of the transfer of a note, the
holder of which is not a party to the action, holds the premises free
and discharged of the lien. However, any assignee or transferee
may redeem the premises, like any other creditor, during the
period of one (1) year after the sale.
Chapter 9. Name of and Service on Parties Defendant in
Foreclosure Suits
Sec. 1. (a) In a suit brought in a court of Indiana to:
(1) foreclose a mortgage or other lien on real estate located in
Indiana; or
(2) sell real estate located in Indiana;
if the plaintiff is required to make a person a party to the suit, the
plaintiff may list the person as a defendant by the name in which
the person's lien or claim appears on the public records of the
county in which the suit is brought.
(b) Service of summons or notice by publication to the person,
described in subsection (a) is sufficient to make the court's
judgment binding as to the person.
Chapter 10. Ten Year Expiration on Lien of a Series Mortgage
Sec. 1. As used in this chapter, "series mortgage" means any
mortgage, indenture of trust, or trust deed executed to create a lien
on any property, whether real or personal or both, in Indiana to
secure one (1) or more series of bonds, notes, or debentures. The
term applies without regard to whether the total obligation to be
secured is specifically defined, limited, or left open in the original
security instrument.
Sec. 2. As used in this chapter, "final maturity date of the series
mortgage" means the maturity date of the last to mature of the
bonds, notes, or debentures secured by a series mortgage, as the
maturity date is shown of record in the original security
instrument or in a supplemental indenture subsequently recorded.
the time in which the plaintiff could be put in possession of the
premises, the plaintiff may obtain only a judgment for damages.
Sec. 9. If there are two (2) or more plaintiffs or defendants, one
(1) or more of the plaintiffs may recover against one (1) or more of
the defendants:
(1) the premises or any part of the premises;
(2) an interest in the premises; or
(3) damages;
according to the right of the parties, but the recovery may not be
for an interest greater than the interest claimed by the party.
Sec. 10. A petition for a new trial under this chapter may be
made by the party against whom judgment is rendered, or the
party's heirs, assigns, or personal representatives, under the same
restrictions and on the same grounds as allowed in other civil
actions.
Sec. 11. The petition for a new trial must be filed at the time
provided for the filing of petitions for a new trial in other civil
actions.
Sec. 12. Third persons acquiring an interest in the subject
matter of the action during the pendency of the proceedings
initiated under this chapter shall take their interests subject to the
final result of the proceedings.
Sec. 13. A party who, after a new trial, proves that the party is
entitled to the premises that have been transferred in good faith to
a purchaser may recover the proper amount of damages against
the other party, either in the same action or in a subsequent action.
Sec. 14. In an action against a tenant under this chapter, the
judgment is conclusive evidence against the landlord who has
received notice under section 2 of this chapter.
Sec. 15. To recover through an action brought under this
chapter, the plaintiff must recover on the strength of the plaintiff's
own title.
Sec. 16. After:
(1) the plaintiff has filed a motion with the court;
(2) notice has been delivered to the defendant; and
(3) a hearing at which the plaintiff has shown cause;
the court may grant an order allowing the plaintiff to enter upon
the property in controversy and make a survey and
admeasurement of the property for purposes of an action under
this chapter.
Sec. 17. An order issued by a court under section 16 of this
chapter must describe the property. A copy of the court order must
be served upon the owner or person having occupancy and control
of the property.
Sec. 18. If a plaintiff in an action under this chapter is entitled
to damages for withholding, using, or injuring the plaintiff's
property, the defendant may set off the value of any permanent
improvements made to the property to the extent of the damages,
unless the defendant prefers to use the law for the benefit of
occupying defendants.
Sec. 19. If a defendant has demonstrated wanton aggression
concerning the property that is subject to an action under this
chapter, the jury may award the plaintiff exemplary damages.
Sec. 20. An action to determine and quiet a question of title to
property may be brought by a plaintiff who:
(1) is in possession of the property;
(2) is out of possession of the property; or
(3) has a remainder or reversion interest in the property;
against a defendant who claims title to or an interest in the real
property with a claim that is adverse to the plaintiff, even if the
defendant is not in possession of the property.
Sec. 21. This chapter applies, as far as applicable, to:
(1) cases and partition cases where the title to real estate is a
genuine question; and
(2) the pleadings and evidence between parties concerning
questions of title to real estate.
Sec. 22. If the defendant's answer to a complaint under this
chapter disclaims any interest or estate in the property, or if the
defendant does not answer the complaint and the court issues a
default judgment against the defendant, the defendant may not be
required to pay the plaintiff's court costs.
Sec. 23. In an action by a plaintiff who is a tenant in common or
joint tenant of real property against the plaintiff's cotenant, the
plaintiff must show, in addition to the plaintiff's evidence of right,
that defendant:
(1) denied plaintiff's right; or
(2) did some act amounting to a denial of a plaintiff's right.
Chapter 3. Ejectment and Quiet Title
Sec. 1. (a) This section applies to all actions:
(1) in ejectment; or
(2) for the recovery of possession of real estate.
(b) At the time of filing a complaint or at any time before
judgment, a plaintiff may file with the clerk of the court in which
the action is filed or pending an affidavit stating the following:
the property until further order of the court.
(b) If a court does not issue an order of possession under section
3 of this chapter, the court may, in addition to issuing an order to
show cause, issue temporary restraining orders against the
defendant as needed to preserve the rights of the parties with
respect to the property and the status of the property. The court
shall issue the temporary restraining orders in accordance with the
rules of the supreme court governing the issuance of injunctions.
Sec. 5. (a) After the hearing on the order to show cause, the
court shall:
(1) consider the pleadings, evidence, and testimony presented
at the hearing; and
(2) determine with reasonable probability which party is
entitled to possession, use, and enjoyment of the property.
The court's determination is preliminary pending final
adjudication of the claims of the parties. If the court determines
that the action is an action in which a prejudgment order of
possession in plaintiff favor should issue, the court shall issue the
order.
(b) The court may issue the prejudgment order of possession in
favor of the plaintiff if the defendant fails to appear at the hearing
on the order to show cause.
(c) If the plaintiff's property has a peculiar value that cannot be
compensated by damages, the court may appoint a receiver to take
possession of and hold the property until further order of the court.
Sec. 6. A court may not issue an order of possession in favor of
a plaintiff other than an order of final judgment until the plaintiff
has filed with the court a written undertaking in an amount fixed
by the court and executed by a surety to be approved by the court
binding the plaintiff to the defendant in an amount sufficient to
assure the payment of any damages the defendant may suffer if the
court wrongfully ordered possession of the property to the
plaintiff.
Sec. 7. The court shall direct the order of possession to the
sheriff or other officer charged with executing the order and within
whose jurisdiction the property is located. The order of possession
must:
(1) describe the property;
(2) direct the executing officer to:
(A) seize possession of the property unless the court issued
the order without notice to the parties; and
(B) if the defendant has not filed a written undertaking as
provided in section 8 of this chapter, put the plaintiff in
possession of the property by removing the defendant and
the defendant's personal property from the property;
(3) have attached a copy of any written undertaking filed by
the plaintiff under section 6 of this chapter; and
(4) inform the defendant of the right to except to the surety
upon the plaintiff's undertaking or to file a written
undertaking for the repossession of the property as provided
in section 8 of this chapter.
Sec. 8. (a) Before the hearing on the order to show cause or
before final judgment, and within the time fixed in the order of
possession, the defendant may require the return of possession of
the property by filing with the court a written undertaking
executed by a surety to be approved by the court stating that the
defendant is bound in an amount determined by the court sufficient
to assure the payment of costs assessed against the defendant for
the wrongful detention of the property.
(b) If a defendant files an undertaking under this section, the
defendant shall:
(1) serve a notice of filing the undertaking on the executing
officer and the plaintiff or the plaintiff's attorney; and
(2) file with the court proof of service of the notice of filing the
undertaking.
(c) If a defendant files an undertaking before the hearing on the
order to show cause, the court shall terminate the hearing unless
the plaintiff takes exception to the surety.
(d) If the property is in the possession of the executing officer
when the defendant files the undertaking, the court shall return
possession of the property to the defendant not more than five (5)
days after service of notice of the filing of the undertaking on the
plaintiff or the plaintiff's attorney.
Sec. 9. (a) If a defendant or the defendant's attorney is in open
court when the court issues the order of possession, a copy of the
order shall be delivered to the defendant and the delivery noted in
the order book.
(b) If the defendant and the defendant's attorney are not
present, sufficient copies of the order shall be delivered to the
sheriff or other executing officer. The executing officer shall,
without delay, serve upon the defendant a copy of the order of
possession by delivering the order to the defendant personally or
to the defendant's agent. If the executing officer cannot find the
defendant or the defendant's agent, the executing officer shall leave
the order at the defendant's usual place of abode or with some
person of suitable age and discretion. If the defendant and the
defendant's agent do not have any known usual place of abode, the
executing officer shall mail the order to the defendant's last known
address.
Sec. 10. If the property is in the possession or control of the
defendant or the defendant's agent, the executing officer shall take
the property into custody and remove the occupants from the
property not earlier than forty-eight (48) hours after the order of
possession is served on the defendant or the defendant's agent.
Sec. 11. The executing officer shall return the order of
possession with the proceedings endorsed on the order to the court
in which the action is pending not more than five (5) days after
taking into custody the property described in the order.
Sec. 12. A final judgment supersedes any:
(1) prejudgment order for possession;
(2) temporary restraining order; or
(3) order temporarily changing possession of property;
issued under this chapter.
Sec. 13. Any person having a right to:
(1) recover the possession of; or
(2) quiet title to;
real estate in the name of any other person has a right to recover
possession or quiet title in the person's own name. An action may
not be defeated or reversed if the plaintiff could have successfully
maintained the action in the name of another person to inure to the
plaintiff's benefit.
Sec. 14. (a) This section applies to the following proceedings
brought in a state court concerning real estate or any interest in
real estate located in Indiana:
(1) An action to:
(A) quiet or determine title to;
(B) obtain title or possession of; or
(C) partition;
real estate.
(2) An action by an executor or administrator to:
earlier than thirty (30) days after the last publication of notice, the
court may hear and determine all matters in the proceeding as if
the plaintiff had known and sued all possible claimants by their
proper names. All decrees, orders, and judgments issued by the
court are binding and conclusive on all parties and claimants. The
proceeding shall be taken as a proceeding in rem against the real
estate.
(i) If the real estate that is the subject of the proceeding
described in subsection (a) is located in more than one (1) county,
the plaintiff may file a complaint in a court located in any county
in which the real estate is located. The plaintiff may not file a
complaint in more than one (1) court. The plaintiff shall publish
notice of the complaint in each county in which the real estate is
located. The published notice in each county shall contain the
following:
(1) The legal description of the real estate that is located in
that county.
(2) The other counties in which the real estate is located.
(3) Notice that a certified copy of the final judgment in the
proceeding will be filed, not more than three (3) months after
the judgment is entered, in the recorder's office in each
county in which the real estate is located.
Sec. 15. Section 14 of this chapter may not be construed to
contravene or repeal any other Indiana law concerning title to real
estate or suits or actions affecting title to real estate. Section 14 of
this chapter supplements laws existing on April 26, 1915.
Sec. 16. (a) In a suit to quiet title to real estate in a state court,
the plaintiff shall serve:
(1) all resident and nonresident defendants whose residence is
known; and
(2) all defendants whose residence is unknown.
(b) Service on a known defendant by:
(1) the defendant's individual name;
(2) the name by which the defendant appears of record;
(3) the name by which the defendant is commonly known; or
(4) the defendant's surname if the defendant's first name is
unknown;
is sufficient, legal, and binding on and against all persons claiming
from, through, or under the defendant.
(c) If a plaintiff serves a defendant by the defendant's surname
only, the plaintiff or the plaintiff's attorney shall file an affidavit
stating that the plaintiff does not know and has not, after diligent
inquiry, been able to ascertain the first name of the defendant.
Sec. 17. (a) The clerk of a court shall enter in the civil order
book all orders and decrees in any suit to quiet the title to real
estate. After a court enters final judgment in a proceeding, the
clerk shall certify a copy of the final judgment and deliver the
certified copy to the county recorder. The clerk shall include the
costs of a transcript of the proceedings and the recording fees in
the costs of the proceeding.
(b) A county recorder shall procure a substantially bound book
that is the size and quality of the county deed records. The book
shall be known as the "Quiet Title Record". The Quiet Title
Record must contain a transcript of each proceeding and an index
to each transcript. The index must contain the following:
(1) An alphabetical list of plaintiffs.
(2) The date of filing of the transcript.
(3) The date of the final judgment.
(4) The date on which the final judgment was recorded.
(5) A brief description of the real estate that was the subject
of the proceeding.
(6) The book and page on which the final judgment is
recorded.
Sec. 18. (a) A nonresident who, if alive, would be entitled to take
and to own real estate in Indiana by descent or devise is presumed
dead if the following conditions are met:
(1) The nonresident has been absent from the nonresident's
last place of residence in any other state or country for seven
(7) years.
(2) A spouse, parent, child, or sibling of the nonresident has
not heard from the nonresident for seven (7) years.
(b) The real estate that a nonresident described in subsection (a)
otherwise would have taken descends from the nonresident to the
nonresident's heirs under IC 29.
(c) Title that passes under subsection (b) vests in a nonresident's
heirs upon full compliance with the provisions of section 19 of this
chapter.
Sec. 19. (a) A person who claims real estate under section 18 of
this chapter may file a verified complaint in the circuit or superior
court of the county in which the real estate is located. The
complaint must:
(1) name as a defendant the nonresident who is presumed
dead under section 18 of this chapter;
(2) particularly describe the real estate; and
accrued, without the improvements, through the time the
court renders a judgment.
(4) The value of the real property that the successful claimant
has in the premises, without the improvements.
(5) The taxes, with interest, paid by the defendant and by
those under whose title to the property the defendant claims.
Sec. 4. The plaintiff in the main action for possession of the real
property may pay the appraised value of the improvements to the
real property, and the taxes paid, with interest, deducting the value
of the rents and profits, and the damages sustained, as assessed at
the trial, and take the property.
Sec. 5. If a plaintiff fails to pay the defendant the value of the
improvements to the real property established under section 4 of
this chapter after a reasonable time fixed by the court, the
defendant may take the property after paying the plaintiff the
appraised value of the property, minus the value of the
improvements.
Sec. 6. If the plaintiff does not pay the defendant the appraised
value of the improvements to the real property under section 4 of
this chapter and the defendant does not pay the plaintiff the
appraised value of the real property under section 5 of this chapter
within the time fixed by the court, the parties will be held to be
tenants in common of all the real property, including the
improvements, each holding an interest proportionate to the value
of the party's property as determined under section 5 of this
chapter.
Sec. 7. Except when the purchaser knows at the time of the sale
that the seller lacks authority to sell the property, a purchaser who
in good faith, at a judicial or tax sale, purchases property that is
sold by the proper person or officer has color of title within the
meaning of this chapter, whether or not the person or officer had
sufficient authority to sell the property. The rights of the purchaser
acquired under this section pass to the purchaser's assignees or
representatives.
Sec. 8. An occupant of real property has color of title within the
meaning of this chapter if the occupant:
(1) can show a connected title in law or equity, derived from
the records of any public office; or
(2) holds the property by purchase or descent from a person
claiming title derived from public records or by a properly
recorded deed.
Sec. 9. (a) A claimant occupying real property who has color of
title may recover the value of lasting improvements to the real
property made by the party under whom the claimant claims, as
well as those improvements made by the occupying claimant.
(b) A person holding the premises as a purchaser, by an
agreement in writing from the party having color of title, is entitled
to the remedy set forth in subsection (a).
Sec. 10. A plaintiff in an action for possession of real property
to which this chapter applies is entitled to an execution for the
possession of the real property in accordance with this chapter, but
not otherwise.
Sec. 11. If any land is sold by an executor, an administrator, a
guardian, a sheriff, or a commissioner of the court and afterwards
the land is recovered in the proper action by:
(1) a person who was originally liable;
(2) a person in whose hands the land would be liable to pay
the demand or judgment for which or for whose benefit the
land was sold; or
(3) anyone making a claim under a person identified under
subdivision (1) or (2);
the plaintiff is not entitled to a writ for the possession of the land
without having paid the amount due, as determined under section
12 of this chapter (or IC 34-1-49-12 or IC 32-15-3-12 before their
repeal) within the time determined by the court.
Sec. 12. Any defendant in the main court action for possession
of real property may file a complaint setting forth the sale and title
under it and any other matter allowed under this chapter. The
court proceedings must assess the values, damages, and other
amounts of which assessment is required under section 3 of this
chapter. If after the main court action the plaintiff has not paid the
amount assessed by the court, the court shall set a reasonable time
for the plaintiff to pay the defendant. If the plaintiff does not pay
the amount within the time set by the court, the court shall order
the land sold without relief from valuation or appraisement laws.
If the premises are sold, the defendant is entitled to receive from
the proceeds of the sale the amount the defendant is due, with
interest, and court costs. The plaintiff is entitled to the remainder
of the proceeds of the sale.
Chapter 4. Actions for Waste
Sec. 1. (a) Wrongs that were previously remediable by an action
of waste are remediable by a judgment for damages, forfeiture of
the estate of the offending party, and eviction from the premises.
(b) A judgment of forfeiture and eviction may be given to a
person who is entitled to the reversion against the tenant in
possession only when the injury to the estate in reversion is
adjudged:
(1) to be equal to the value of the tenant's estate or unexpired
term; or
(2) to have been done in malice.
Sec. 2. Notwithstanding an intervening estate for life or years,
a person who has a remainder or reversion in an estate may
maintain an action for waste, trespass, or injury to the inheritance.
Chapter 5. Receiverships
Sec. 1. A receiver may be appointed by the court in the following
cases:
(1) In an action by a vendor to vacate a fraudulent purchase
of property or by a creditor to subject any property or fund
to the creditor's claim.
(2) In actions between partners or persons jointly interested
in any property or fund.
(3) In all actions when it is shown that the property, fund or
rent, and profits in controversy are in danger of being lost,
removed, or materially injured.
(4) In actions in which a mortgagee seeks to foreclose a
mortgage. However, upon motion by the mortgagee, the court
shall appoint a receiver if, at the time the motion is filed, the
property is not occupied by the owner as the owner's
principal residence and:
(A) it appears that the property is in danger of being lost,
removed, or materially injured;
(B) it appears that the property may not be sufficient to
discharge the mortgaged debt;
(C) either the mortgagor or the owner of the property has
agreed in the mortgage or in some other writing to the
appointment of a receiver;
(D) a person not personally liable for the debt secured by
the mortgage has, or is entitled to, possession of all or a
portion of the property;
(E) the owner of the property is not personally liable for
the debt secured by the mortgage; or
(F) all or any portion of the property is being, or is
intended to be, leased for any purpose.
(5) When a corporation:
(A) has been dissolved;
(B) is insolvent;
an action may not be loaned out unless consent is obtained from all
parties having an interest in or making claim to the money.
Sec. 7. The receiver may, under control of the court or the
judge:
(1) bring and defend actions;
(2) take and keep possession of the property;
(3) receive rents; and
(4) collect debts;
in the receiver's own name, and generally do other acts respecting
the property as the court or judge may authorize.
Sec. 8. If the answer of the defendant admits part of the
plaintiff's claim to be just, the court, on motion, may order the
defendant to satisfy that part of the claim and may enforce the
order by execution.
Sec. 9. Receivers may not be appointed in any case until the
adverse party has appeared or has had reasonable notice of the
application for the appointment, except upon sufficient cause
shown by affidavit.
Sec. 10. (a) In all cases commenced or pending in any Indiana
court in which a receiver may be appointed or refused, the party
aggrieved may, within ten (10) days after the court's decision,
appeal the court's decision to the supreme court without awaiting
the final determination of the case.
(b) In cases where a receiver will be or has been appointed, upon
the appellant filing of an appeal bond:
(1) with sufficient surety;
(2) in the same amount as was required of the receiver; and
(3) conditioned for the due prosecution of the appeal and the
payment of all costs or damages that may accrue to any
officer or person because of the appeal;
the authority of the receiver shall be suspended until the final
determination of the appeal.
Sec. 11. In any suit or action by a receiver appointed by any
court of record in Indiana, it is only necessary for the receiver, in
the receiver's complaint or pleading, to state:
(1) the court;
(2) the cause of action in which the receiver was appointed;
and
(3) the date on which the receiver was appointed.
Proof of the appointment is not required on the trial of the cause
unless the appointment is specially denied, in addition to the
general denial filed in the cause.
account or report.
(b) Any objections or exceptions to the matters and things
contained in an account or report and to the receiver's acts
reported in the report or account that are not filed within the
thirty (30) day period referred to in section 17 of this chapter are
forever barred for all purposes.
Sec. 19. At the expiration of the thirty (30) day period referred
to in section 17 of this chapter, the court shall, without delay:
(1) proceed with the hearing and determination of the
objections or exceptions;
(2) pass upon the account or report;
(3) order the payment of a partial or final dividend; and
(4) make other appropriate orders.
Sec. 20. The court's approval of a receiver's partial account or
report, as provided in section 14 of this chapter, releases and
discharges the receiver and the surety on the receiver's bond for all
matters and things related to or contained in the partial account or
report.
Sec. 21. Upon the:
(1) court's approval of the receiver's final account or report,
as provided in section 14 of this chapter; and
(2) receiver's performance and compliance with the court's
order made on the final report;
the receiver and the surety on the receiver's bond shall be fully and
finally discharged and the court shall declare the receivership
estate finally settled and closed subject to the right of appeal of the
receiver or any creditor, shareholder, or other interested party
who has filed objections or exceptions as provided in section 18 of
this chapter.
Sec. 22. (a) This section applies to any action, proceeding, or
matter relating to or involving a receivership estate.
(b) Except as provided in subsections (c) and (d), a party to a
proceeding described in subsection (a) is entitled to a change of
judge or a change of venue from the county for the same reasons
and upon the same terms and conditions under which a change of
judge or a change of venue from the county is allowed in any civil
action.
(c) This section does not authorize a change of venue from the
county:
(1) concerning expenses allowed by the court incidental to the
operation, management, or administration of the receivership
estate;
place for such a purpose.
Sec. 2. As used in this chapter, "person" has the meaning set
forth in IC 35-41-1-22.
Sec. 3. As used in this chapter, "place" includes any part of a
building or structure or the ground.
Sec. 4. As used in this chapter, "prosecuting official" refers to
public officials who have concurrent jurisdiction to enforce this
chapter, including:
(1) the attorney general;
(2) the prosecuting attorney of the circuit in which an
indecent nuisance exists;
(3) the corporation counsel or city attorney of the city (if any)
in which an indecent nuisance exists; or
(4) an attorney representing the county in which an indecent
nuisance exists.
Sec. 5. As used in this chapter, "public place" means any place
to which the public is invited by special or an implied invitation.
Sec. 6. The following are guilty of maintaining an indecent
nuisance and may be enjoined from maintaining the indecent
nuisance under this chapter:
(1) A person who uses, occupies, establishes, maintains, or
conducts an indecent nuisance.
(2) The owner, agent, or lessee of any interest in an indecent
nuisance.
(3) A person employed in an indecent nuisance.
Sec. 7. (a) If an indecent nuisance exists, a prosecuting official
or any resident of the county in which the indecent nuisance exists
may bring an action to abate the indecent nuisance and to
perpetually enjoin the maintenance of the indecent nuisance.
(b) If a person other than a prosecuting official institutes an
action under this chapter, the complainant shall execute a bond to
the person against whom complaint is made, with good and
sufficient surety to be approved by the court or clerk in a sum of
at least one thousand dollars ($1,000) to secure to the party
enjoined the damages the party may sustain if:
(1) the action is wrongfully brought;
(2) the action is not prosecuted to final judgment;
(3) the action is dismissed;
(4) the action is not maintained; or
(5) it is finally decided that the injunction ought not to have
been granted.
The party aggrieved by the issuance of the injunction has recourse
against the bond for all damages suffered, including damages to the
aggrieved party's property, person, or character and including
reasonable attorney's fees incurred in defending the action.
(c) A person who institutes an action and executes a bond may
recover the bond and reasonable attorney's fees incurred in trying
the action if the existence of an indecent nuisance is admitted or
established in an action as provided in this chapter.
(d) If a prosecuting official institutes an action under this
chapter (or IC 34-1-52.5 or IC 34-19-2 before their repeal) and the
existence of an indecent nuisance is admitted or established in the
action, the governmental entity that employs the prosecuting
official is entitled to all reasonable attorney's fees incurred by the
entity in instituting the action. The fees shall be deposited in:
(1) the state general fund, if the action is instituted by the
attorney general;
(2) the operating budget of the office of the prosecuting
attorney, if the action is instituted by a prosecuting attorney;
(3) the operating budget of the office of the corporation
counsel or city attorney, if the action is instituted by a
corporation counsel or city attorney; or
(4) the county general fund, if the action is instituted by an
attorney representing the county.
Sec. 8. An indecent nuisance action must be brought in the
circuit or superior court of the county in which the alleged indecent
nuisance is located. The action is commenced by filing a verified
complaint alleging the facts constituting the indecent nuisance.
Sec. 9. (a) After filing the complaint, a complainant may apply
to the court for a preliminary injunction. The court shall grant a
hearing on the complainant's motion for preliminary injunction
not later than ten (10) days after it is filed.
(b) If an application for a preliminary injunction is made, the
court may, on application of the complainant showing good cause,
issue an ex parte restraining order restraining the defendant and
all other persons from removing or in any manner interfering with
the personal property and contents of the place where the indecent
nuisance is alleged to exist until the decision of the court granting
or refusing a preliminary injunction and until further order of the
court. However, pending the court's decision, the stock in trade
may not be restrained, but an inventory and full accounting of
business transactions after the restraining order may be required.
(c) A restraining order issued under subsection (b) may be
served by:
complaint and before the hearing on the application for a
permanent injunction and do the following:
(1) Pay all costs incurred.
(2) File a bond with sureties to be approved by the court:
(A) in the full value of the property to be ascertained by
the court; and
(B) conditioned upon the owner immediately abating the
indecent nuisance and preventing the indecent nuisance
from being established or kept until the decision of the
court is rendered on the application for a permanent
injunction.
(b) If the defendant complies with subsection (a) and the court
is satisfied:
(1) of the good faith of the owner of the real property; and
(2) that the owner did not know and, with reasonable care and
diligence, could not have known that the real property was
used as an indecent nuisance;
the court shall, at the time of the hearing on the application for the
preliminary injunction, refrain from issuing an order closing the
real property or restraining the removal or interference with the
personal property. If a preliminary injunction has already been
issued, the court shall discharge the order and deliver the property
to the owners.
Sec. 16. The owner of the personal property that has been
restrained or is to be restrained under this chapter may appear
after the filing of the complaint and before the hearing on the
application for a permanent injunction and petition the court to
release the personal property. If the court is satisfied that the
owner:
(1) has acted in good faith; and
(2) did not know and, with reasonable care and diligence,
could not have known that the personal property was used as
an indecent nuisance;
the court shall, at the time of the hearing on the application for the
preliminary injunction, refrain from issuing any order restraining
the removal or interference with the personal property. If the
preliminary injunction has been issued, the court shall discharge
the order and deliver the property to the owner.
Sec. 17. The release of any real or personal property under
section 15 or 16 of this chapter does not release the property from
any judgment, lien, penalty, or liability to which it is subject.
Sec. 18. An indecent nuisance action under this chapter shall be
set down for trial without delay and takes precedence over all
other cases except crimes, election contests, or injunctions.
Sec. 19. In an indecent nuisance action under this chapter,
evidence of the general reputation of the place is:
(1) admissible to prove the existence of the indecent nuisance;
and
(2) presumptive evidence that a person who:
(A) owned;
(B) was in control of; or
(C) was in charge of;
the indecent nuisance knew the indecent nuisance existed and
used the place for an act constituting an indecent nuisance.
Sec. 20. (a) This section applies to an indecent nuisance
complaint under this chapter filed by a private person.
(b) The court shall not voluntarily dismiss the complaint unless:
(1) the complainant and the complainant's attorney file a
sworn statement setting forth the reason why the action
should be dismissed; and
(2) the dismissal is approved in writing or in open court by the
prosecuting attorney of the circuit in which the alleged
indecent nuisance is located.
(c) If the judge believes that the action should not be dismissed,
the judge may direct the prosecuting attorney to prosecute the
action to judgment at the expense of the county.
(d) If:
(1) the action is brought by a private person;
(2) the court finds that there were no reasonable grounds or
probable cause for bringing said action; and
(3) the case is dismissed either:
(A) for the reason described in subdivision (2) before trial;
or
(B) for want of prosecution;
the costs may be taxed to the person who brought the case.
Sec. 21. If at the permanent injunction hearing the plaintiff
proves by a preponderance of the evidence that the indecent
nuisance exists as alleged in the complaint, the court shall enter a
judgment that perpetually enjoins:
(1) the defendant and any other person from further
maintaining the indecent nuisance at the place described in
the complaint; and
(2) the defendant from maintaining an indecent nuisance
elsewhere.
(d), the unsold personal property and contents shall be delivered to
the owner. Otherwise, the unsold personal property and contents
shall be sold as provided in this section.
(f) The officer who removes and sells the personal property and
contents under subsection (e) may charge and receive the same fees
as the officer would receive for levying upon and selling similar
property on execution.
(g) If an order of abatement requires the closing of a place
under subsection (a)(3)(C), the court shall allow a reasonable sum
to be paid for the cost of closing the place and keeping it closed.
Sec. 23. In case of:
(1) the violation of any injunction or closing order granted
under this chapter;
(2) the violation of a restraining order issued under this
chapter; or
(3) the commission of any contempt of court in proceedings
under this chapter;
the court may summarily try and punish the offender. The trial
may be upon affidavits or either party may demand the production
and oral examination of the witnesses.
Sec. 24. (a) All money collected under this chapter shall be paid
to the county treasurer.
(b) The proceeds of the sale of the personal property under
section 22 of this chapter, or as much of the proceeds as necessary,
shall be applied in payment of the costs of the action and
abatement, including the complainant's costs.
Sec. 25. (a) This section applies to a tenant or occupant of a
building or tenement, under a lawful title, who uses the place for
acts that create an indecent nuisance.
(b) The owner of a place described in subsection (a) may void
the lease or other title under which the tenant or occupant holds.
The use of the place to create an indecent nuisance, without any act
of the owner of the place, causes the right of possession to revert
and vest in the owner. Without process of law, the owner may
make immediate entry upon the premises.
Chapter 8. Actions for Drug Nuisances
Sec. 1. As used in this chapter, "nuisance" means:
(1) the use of a property to commit an act constituting an
offense under IC 35-48-4; or
(2) an attempt to commit or a conspiracy to commit an act
described in subdivision (1).
Sec. 2. (a) As used in this chapter, "property" means a house, a
building, a mobile home, or an apartment that is leased for
residential or commercial purposes.
(b) The term includes:
(1) an entire building or complex of buildings; or
(2) a mobile home park;
and all real property of any nature appurtenant to and used in
connection with the house, building, mobile home, or apartment,
including all individual rental units and common areas.
(c) The term does not include a hotel, motel, or other guest
house, part of which is rented to a transient guest.
Sec. 3. (a) As used in this chapter, "tenant" means a person who
leases or resides in a property.
(b) The term does not include a person who:
(1) owns a mobile home;
(2) leases or rents a site in a mobile home park for residential
use; and
(3) resides in a mobile home park.
Sec. 4. An action to abate a nuisance under this chapter may be
initiated by any of the following:
(1) The prosecuting attorney of the circuit where the nuisance
is located.
(2) The corporation counsel or city attorney of a city in which
a nuisance is located.
(3) An attorney representing a county in which a nuisance is
located.
(4) The property owner.
Sec. 5. (a) A person initiating an action under this chapter to
abate a nuisance existing on a property shall, at least forty-five (45)
days before filing the action, provide notice to:
(1) each tenant of the property; and
(2) the owner of record;
that a nuisance exists on the property.
(b) The notice required under this section must specify the
following:
(1) The date and time the nuisance was first discovered.
(2) The location on the property where the nuisance is
allegedly occurring.
(c) The notice must be:
(1) hand delivered; or
(2) sent by certified mail;
to each tenant and the owner of record.
(d) A person initiating an action to abate a nuisance under this
chapter shall:
(1) when notice is provided under this section, produce all
evidence in the person's possession or control of the existence
of the nuisance; and
(2) if requested by the owner, assist the owner in the
production of witness and physical evidence.
Sec. 6. If the owner of record of a property that is the subject of
an action under this chapter initiates or joins in the action under
this chapter, the requirement under section 5 of this chapter to
provide notice at least forty-five (45) days before filing does not
apply to the action.
Sec. 7. (a) Notice of a complaint initiating an action under this
chapter must be made as provided in the Indiana Rules of Trial
Procedure.
(b) Except in an action under this chapter in which the owner of
record of the property that is the subject of the action initiates or
joins the action as a party, the person who initiates an action under
this chapter, not later than forty-eight (48) hours after filing a
complaint under this chapter, shall post a copy of the complaint in
a conspicuous place on the property alleged by the complaint to be
a nuisance.
Sec. 8. (a) If the defendant has not been personally served with
process despite the exercise of due diligence, the person initiating
an action under this chapter, not more than twenty (20) days after
the filing of a complaint and the filing of an affidavit that personal
service on the defendant cannot be had after due diligence, may
cause a copy of the complaint to be mailed to the defendant by
certified mail, restricted delivery, return receipt to the clerk of
court requested. Service is considered completed when the
following are filed with the court:
(1) Proof of the mailing.
(2) An affidavit that a copy of the complaint has been posted
on the property alleged to be a nuisance.
(b) This subsection does not apply to transient guests of a hotel,
motel, or other guest house. All tenants or residents of a property
that is used in whole or in part as a business, home, residence, or
dwelling who may be affected by an order issued under this
chapter must be:
(1) provided reasonable notice as ordered by the court having
jurisdiction over the nuisance action; and
(2) afforded an opportunity to be heard at all proceedings in
the action.
mortgage, the remedy of the mortgagee is confined to the property
mortgaged.
Sec. 5. In rendering judgment of foreclosure, the courts shall:
(1) give personal judgment against any party to the suit liable
upon any agreement for the payment of any sum of money
secured by the mortgage; and
(2) order the mortgaged premises, or as much of the
mortgaged premises as may be necessary to satisfy the
mortgage and court costs, to be sold first before the sale of
other property of the defendant.
The judgment is satisfied by the payment of the mortgage debt,
with interest and costs, at any time before sale.
Sec. 6. Upon:
(1) the foreclosure of a recorded mortgage in a court of any
county having jurisdiction in Indiana; and
(2) the payment and satisfaction of the judgment as may be
rendered in the foreclosure proceeding;
the prevailing party shall immediately after satisfaction of the
judgment record the satisfaction of the mortgage on the records of
the recorder's office of the county where the property is located.
The record in foreclosure and satisfaction must show that the
whole debt, secured by the mortgage, has been paid. The recorder
must be paid a fee of not more than the amount specified in
IC 36-2-7-10(b)(1) and IC 36-2-7-10(b)(2) in each case of
foreclosure requiring satisfaction.
Sec. 7. If there is an express written agreement for the payment
of the sum of money that is secured by a mortgage or a separate
instrument, the court shall direct in the order of sale that the
balance due on the mortgage and costs that may remain unsatisfied
after the sale of the mortgaged premises be levied on any property
of the mortgage-debtor.
Sec. 8. (a) The copy of the court's order of sale and judgment
shall be issued and certified by the clerk under the seal of the court
to the sheriff.
(b) After receiving the order under subsection (a), the sheriff
shall proceed to sell the mortgaged premises, or as much of the
mortgaged premises as is necessary to satisfy the judgment,
interest, and costs. If any part of the judgment, interest, and costs
remain unsatisfied after the sale of the mortgaged premises, the
sheriff shall proceed to sell the remaining property of the
defendant. If the mortgaged property is located in more than one
(1) county, a common description of the property, the sale of the
property, and the location of the sale must be advertised in each
county where the property is located.
Sec. 9. (a) A sheriff shall sell property on foreclosure in a
manner that is reasonably likely to bring the highest net proceeds
from the sale after deducting the expenses of the offer and sale.
(b) Upon prior petition of the debtor or a creditor involved in
the foreclosure proceedings, the court in its order of foreclosure
shall order the property sold by the sheriff through the services of
an auctioneer if:
(1) the court determines that a sale is economically feasible;
or
(2) all the creditors in the proceedings agree to both that
method of sale and the compensation to be paid the
auctioneer.
(c) An auctioneer engaged by a sheriff under this section shall
conduct the auctioneer's activities as appropriate to bring the
highest bid for the property on foreclosure. The advertising
conducted by the auctioneer is in addition to any other notice
required by law.
(d) The auctioneer's fee must be a reasonable amount stated in
the court's order. However, if the sale by use of an auctioneer has
not been agreed to by the creditors in the proceedings and the sale
price is less than the amount of the judgment and the costs and
expenses necessary to the satisfaction of the judgment, the
auctioneer is entitled only to the auctioneer's advertising expenses
plus one hundred dollars ($100). The amount due to the auctioneer
on account of the auctioneer's expenses and fee, if any, must be
paid as a cost of the sale from the proceeds before the payment of
any other payment.
Sec. 10. A plaintiff may not:
(1) proceed to foreclose the mortgagee's mortgage while the
plaintiff is prosecuting any other action for the same debt or
matter that is secured by the mortgage or while the plaintiff
is seeking to obtain execution of any judgment in any other
action; or
(2) prosecute any other action for the same matter while the
plaintiff is foreclosing the mortgagee's mortgage or
prosecuting a judgment of foreclosure.
Sec. 11. (a) If:
(1) a complaint is filed for the foreclosure of a mortgage;
(2) any interest or installment of the principal is due, but no
other installments are due; and
enter in the lis pendens record a satisfaction of the lien, right, or
interest sought to be enforced against the real estate. When the
entry is made, the real estate is forever discharged from the lien,
right, or interest.
Sec. 8. (a) This section applies when:
(1) an attachment is dismissed or the judgment rendered on
it is satisfied; or
(2) the execution is satisfied without a sale of the lands seized
or levied upon, or upon a redemption of the real estate within
the time allowed by law after a sale of the real estate upon
execution.
(b) The clerk of the court that issued the attachment or
execution shall make a certificate of the dismissal or satisfaction
and:
(1) enter the certificate upon the lis pendens record, if the
appropriate record is kept in that clerk's office; or
(2) forward the certificate to the county in which the real
estate is located, to be recorded in the lis pendens record of
that county.
(c) When the certificate is entered or recorded, the real estate is
discharged from the lien of attachment or execution.
Sec. 9. (a) This section applies to the following:
(1) Suits described in section 2 or 3 of this chapter.
(2) The seizure of real estate under attachments and the levy
of real estate under execution in the cases mentioned in
section 5 of this chapter.
(b) Actions referred to in subsection (a) do not:
(1) operate as constructive notice of the pendency of the suit
or of the seizure of or levy upon the real estate; or
(2) have any force or effect as against bona fide purchasers or
encumbrancers of the real estate;
until the notices required by this section are filed with the proper
clerk.
Sec. 10. (a) This section applies to orders granted by any court
or judge in any cause or proceeding, whether upon a hearing or ex
parte, that affect the disposition of real estate.
(b) Orders described in subsection (a) may be recorded in the lis
pendens record kept in the office of the clerk of the county in which
the real estate affected is located.
(c) An order recorded under subsection (b) shall be notice of the
matters set forth in the order to all persons that are or may become
interested in the real estate, and the provisions of the order take
effect upon the real estate against any subsequent disposition of the
real estate.
Chapter 12. Judgments in Mortgage and Lien Actions
Sec. 1. It is not necessary in any action upon a mortgage or lien
to give time for:
(1) the payment of money; or
(2) performing any other act.
Final judgment may be given in the first instance.
Sec. 2. In the foreclosure of a mortgage, the sale of the
mortgaged property shall be ordered in all cases.
Chapter 13. Purchase of Property Subject to Judgment
Sec. 1. If, upon the sale of real or personal property of a debtor,
the title of the purchaser is invalid as to all or any part of the
property by reason of any defect in the proceedings or want of title,
the purchaser may be subrogated to the rights of the creditor
against the debtor, to the extent of the money paid and applied to
the debtor's benefit.
Sec. 2. If the judgment is entered satisfied, in whole or in part,
by reason of a sale referred to in section 1 of this chapter, the
purchaser, upon notice to the parties to the proceeding and upon
motion, may have the satisfaction of the judgment vacated in whole
or in part.
Sec. 3. A purchaser of property referred to in section 1 of this
chapter, if the proceedings are defective or the description of the
property sold is imperfect, also has a lien to the same extent on the
property sold as against all persons except bona fide purchasers
without notice.
Sec. 4. This chapter may not be construed to require the
creditor to refund the purchase money by reason of the invalidity
of any sale.
Chapter 14. Validation of Certain Judgments Relating to Land
Titles
Sec. 1. Unless requested, a clerk is not required to make a
complete record of the proceedings in actions to quiet title. A
record of the judgment in such cases, when properly recorded in
the office of the county recorder, is sufficient.
Chapter 15. Statute of Limitations
Sec. 1. Unless otherwise provided in this title or another law, a
cause of action concerning real property must be brought within
the time specified in IC 34-11.
SECTION 16. IC 32-31 IS ADDED TO THE INDIANA CODE AS
A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2002]:
ARTICLE 31. LANDLORD-TENANT RELATIONS
Chapter 1. General Provisions
Sec. 1. (a) A tenancy at will may be determined by a one (1)
month notice in writing, delivered to the tenant.
(b) A tenancy at will cannot arise or be created without an
express contract.
Sec. 2. A general tenancy in which the premises are occupied by
the express or constructive consent of the landlord is considered to
be a tenancy from month to month. However, this section does not
apply to land used for agricultural purposes.
Sec. 3. A tenancy from year to year may be determined by a
notice given to the tenant not less than three (3) months before the
expiration of the year.
Sec. 4. (a) This section applies to a tenancy of not more than
three (3) months which, by express or implied agreement of the
parties, extends from one (1) period to another.
(b) Notice to the tenant equal to the interval between the periods
is sufficient to determine a tenancy described in subsection (a).
Sec. 5. The following form of notice may be used to terminate a
tenancy from year to year:
To (insert name of tenant here):
You are notified to vacate at the expiration of the current year
of tenancy the following property: (insert description of property
here).
secure performance of any obligation of the tenant under the rental
agreement.
(b) The term includes:
(1) a required prepayment of rent other than the first full
rental payment period of the lease agreement;
(2) a sum required to be paid as rent in any rental period in
excess of the average rent for the term; and
(3) any other amount of money or property returnable to the
tenant on condition of return of the rental unit by the tenant
in a condition as required by the rental agreement.
(c) The term does not include the following:
(1) An amount paid for an option to purchase under a lease
with option to purchase, unless it is shown that the intent was
to evade this chapter.
(2) An amount paid as a subscription for or purchase of a
membership in a cooperative housing association
incorporated under Indiana law.
Sec. 10. As used in this chapter, "tenant" means an individual
who occupies a rental unit:
(1) for residential purposes;
(2) with the landlord's consent; and
(3) for consideration that is agreed upon by both parties.
Sec. 11. (a) The following courts have original and concurrent
jurisdiction in cases arising under this chapter:
(1) A circuit court.
(2) A superior court.
(3) A county court.
(4) A municipal court.
(5) A small claims court.
(b) A case arising under this chapter may be filed on the small
claims docket of a court that has jurisdiction.
Sec. 12. (a) Upon termination of a rental agreement, a landlord
shall return to the tenant the security deposit minus any amount
applied to:
(1) the payment of accrued rent;
(2) the amount of damages that the landlord has suffered or
will reasonably suffer by reason of the tenant's
noncompliance with law or the rental agreement; and
(3) unpaid utility or sewer charges that the tenant is obligated
to pay under the rental agreement;
all as itemized by the landlord with the amount due in a written
notice that is delivered to the tenant not more than forty-five (45)
days after termination of the rental agreement and delivery of
possession. The landlord is not liable under this chapter until the
tenant supplies the landlord in writing with a mailing address to
which to deliver the notice and amount prescribed by this
subsection. Unless otherwise agreed, a tenant is not entitled to
apply a security deposit to rent.
(b) If a landlord fails to comply with subsection (a), a tenant
may recover all of the security deposit due the tenant and
reasonable attorney's fees.
(c) This section does not preclude the landlord or tenant from
recovering other damages to which either is entitled.
(d) The owner of the dwelling unit at the time of the termination
of the rental agreement is bound by this section.
Sec. 13. A security deposit may be used only for the following
purposes:
(1) To reimburse the landlord for actual damages to the rental
unit or any ancillary facility that are not the result of
ordinary wear and tear.
(2) To pay the landlord for:
(A) all rent in arrearage under the rental agreement; and
(B) rent due for premature termination of the rental
agreement by the tenant.
(3) To pay for the last payment period of a residential rental
agreement if a written agreement between the landlord and
the tenant stipulates that the security deposit will serve as the
last payment of rent due.
(4) To reimburse the landlord for utility or sewer charges
paid by the landlord that are:
(A) the obligation of the tenant under the rental
agreement; and
(B) unpaid by the tenant.
Sec. 14. Not more than forty-five (45) days after the termination
of occupancy, a landlord shall mail to a tenant an itemized list of
damages claimed for which the security deposit may be used under
section 13 of this chapter. The list must set forth:
(1) the estimated cost of repair for each damaged item; and
(2) the amounts and lease on which the landlord intends to
assess the tenant.
The landlord shall include with the list a check or money order for
the difference between the damages claimed and the amount of the
security deposit held by the landlord.
Sec. 15. Failure by a landlord to provide notice of damages
under section 14 of this chapter constitutes agreement by the
landlord that no damages are due, and the landlord must remit to
the tenant immediately the full security deposit.
Sec. 16. A landlord who fails to comply with sections 14 and 15
of this chapter is liable to the tenant in an amount equal to the part
of the deposit withheld by the landlord plus reasonable attorney's
fees and court costs.
Sec. 17. A waiver of this chapter by a landlord or tenant is void.
Sec. 18. (a) A landlord or a person authorized to enter into a
rental agreement on behalf of the landlord shall disclose and
furnish to the tenant in writing at or before the commencement of
the rental agreement the names and addresses of the following:
(1) A person residing in Indiana who is authorized to manage
the dwelling unit.
(2) A person residing in Indiana who is reasonably accessible
to the tenant and who is authorized to act as agent for the
owner for purposes of:
(A) service of process; and
(B) receiving and receipting for notices and demands.
A person who is identified as being authorized to manage under
subdivision (1) may also be identified as the person authorized to
act as agent under subdivision (2).
(b) This section is enforceable against any successor landlord,
owner, or manager.
(c) A person who fails to comply with subsection (a) becomes an
agent of each person who is a landlord for purposes of:
(1) service of process and receiving and receipting for notices
and demands; and
(2) performing the obligations of the landlord under law or
the rental agreement.
(d) If the information required by subsection (a) is not disclosed
at the beginning of the rental agreement, the tenant shall be
allowed any expenses reasonably incurred to discover the names
and addresses required to be furnished.
Sec. 19. (a) Unless otherwise agreed, if a landlord conveys, in a
good faith sale to a bona fide purchaser, property that includes a
dwelling unit subject to a rental agreement, the landlord is relieved
of liability under law or the rental agreement as to events
occurring after written notice to the tenant of the conveyance.
However, for one (1) year after giving notice of the conveyance, the
landlord remains liable to the tenant for the security deposit to
which the tenant is entitled under section 14 of this chapter unless:
chapter holds a lien on all of that property that is not exempt
property to the extent of the expenses for any of the following
incurred by the warehouseman with respect to all of the property,
whether exempt or not exempt:
(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.
(b) A tenant may claim the tenant's property at any time until
the sale of the property under section 5 of this chapter by paying
the warehouseman the expenses described in this section.
Sec. 5. If a tenant does not claim the tenant's property within
ninety (90) days after receiving notice under section 3 of this
chapter, a warehouseman may sell the property received under this
chapter under IC 26-1-7-210(2).
Chapter 5. Rental Agreements; Right of Access
Sec. 1. (a) This chapter applies only to a rental agreement
entered into or renewed after June 30, 1999.
(b) This chapter applies to a landlord or tenant only if the rental
agreement was entered into or renewed after June 30, 1999.
(c) A waiver of this chapter by a landlord or tenant, including
a former tenant, by contract or otherwise, is void.
Sec. 2. Except as otherwise provided in this chapter, the
definitions in IC 32-31-3 apply throughout this chapter.
Sec. 3. (a) As used in this chapter, "dwelling unit" means a
structure or part of a structure that is used as a home, residence,
or sleeping unit.
(b) The term includes the following:
(1) An apartment unit.
(2) A boarding house unit.
(3) A rooming house unit.
(4) A manufactured home (as defined in IC 22-12-1-16) or
mobile structure (as defined in IC 22-12-1-17) and the space
occupied by the manufactured home or mobile structure.
(5) A single or two (2) family dwelling.
Sec. 4. Unless otherwise provided by a written rental agreement
between a landlord and tenant, a landlord shall give the tenant at
least thirty (30) days written notice before modifying the rental
agreement.
Sec. 5. (a) Except as provided in IC 16-41-27-29, IC 32-31-3, or
IC 32-31-4, a landlord may not:
(1) take possession of;
(2) remove from a tenant's dwelling unit;
(3) deny a tenant access to; or
(4) dispose of;
a tenant's personal property in order to enforce an obligation of
the tenant to the landlord under a rental agreement.
(b) The landlord and tenant may agree in a writing separate
from the rental agreement that the landlord may hold property
voluntarily tendered by the tenant as security in exchange for
forbearance from an action to evict.
Sec. 6. (a) This section does not apply if the dwelling unit has
been abandoned.
(b) For purposes of this section, a dwelling unit is considered
abandoned if:
(1) the tenants have failed to:
(A) pay; or
(B) offer to pay;
rent due under the rental agreement; and
(2) the circumstances are such that a reasonable person would
conclude that the tenants have surrendered possession of the
dwelling unit.
An oral or written rental agreement may not define abandonment
differently than is provided by this subsection.
(c) Except as authorized by judicial order, a landlord may not
deny or interfere with a tenant's access to or possession of the
tenant's dwelling unit by commission of any act, including the
following:
(1) Changing the locks or adding a device to exclude the
tenant from the dwelling unit.
(2) Removing the doors, windows, fixtures, or appliances from
the dwelling unit.
(3) Interrupting, reducing, shutting off, or causing
termination of any of the following to a tenant:
(A) Electricity.
(B) Gas.
(C) Water.
(D) Other essential services.
However, the landlord may interrupt, shut off, or terminate
service as the result of an emergency, good faith repairs, or
necessary construction. This subdivision does not require a
landlord to pay for services described in this subdivision if the
landlord has not agreed, by an oral or written rental
agreement, to do so.
(d) A tenant may not interrupt, reduce, shut off, or cause
termination of:
(1) electricity;
(2) gas;
(3) water; or
(4) other essential services;
to the dwelling unit if the interruption, reduction, shutting off, or
termination of the service will result in serious damage to the
rental unit.
Chapter 6. Emergency Possessory Orders
Sec. 1. The definitions in IC 32-31-3 and IC 32-31-5 apply
throughout this chapter.
Sec. 2. The small claims docket of a court has jurisdiction to
grant an emergency possessory order under this chapter.
Sec. 3. The following may file a petition for an emergency
possessory order under this chapter:
(1) A tenant, if the landlord has violated IC 32-31-5-6.
(2) A landlord, if the tenant has committed or threatens to
commit waste to the rental unit.
Sec. 4. A petition for an order under this chapter must:
(1) include an allegation specifying:
(A) the violation, act, or omission caused or threatened by
a landlord or tenant; and
(B) The nature of the specific immediate and serious:
(i) injury;
(ii) loss; or
(iii) damage;
that the landlord or tenant has suffered or will suffer if the
violation, act, or omission is not enjoined; and
(2) be sworn to by the petitioner.
Sec. 5. If a tenant or a landlord petitions the court to issue an
order under this chapter, the court shall immediately do the
following:
(1) Review the petition.
(2) Schedule an emergency hearing for not later than three (3)
business days after the petition is filed.
Sec. 6. (a) At the emergency hearing, if the court finds:
(1) probable cause to believe that the landlord has violated or
threatened to violate IC 32-31-5-6; and
(2) that the tenant will suffer immediate and serious injury,
loss, or damage;
the court shall issue an emergency order under subsection (b).
(b) If the court makes a finding under subsection (a), the court
shall order the landlord to do either or both of the following:
(1) Return possession of the dwelling unit to the tenant if the
tenant has been deprived of possession of the dwelling unit.
(2) Refrain from violating IC 32-31-5-6.
(c) The court may make other orders that the court considers
just under the circumstances, including setting a subsequent
hearing at the request of a party to adjudicate related claims
between the parties.
Sec. 7. (a) As used in this section, "waste" does not include
failure to pay rent.
(b) At the emergency hearing, if the court finds:
(1) probable cause to believe that the tenant has committed or
threatens to commit waste to the rental unit; and
(2) that the landlord has suffered or will suffer immediate and
serious:
(A) injury;
(B) loss; or
(C) damage;
the court shall issue an order under subsection (c).
(c) If the court makes a finding under subsection (b), the court
shall order the tenant to do either or both of the following:
(1) Return possession of the dwelling unit to the landlord.
(2) Refrain from committing waste to the dwelling unit.
(d) The court may make other orders that the court considers
just under the circumstances, including setting a subsequent
hearing at the request of a party to adjudicate related claims
between the parties.
Sec. 8. (a) If a petition is filed under this chapter, the clerk shall
issue to the respondent a summons to appear at a hearing. The
summons must:
(1) give notice of the date, time, and place of the hearing; and
(2) inform the respondent that the respondent must appear
before the court to answer the petition.
(b) The clerk shall serve the respondent with the summons to
appear in accordance with Rule 4.1 of the Rules of Trial
Procedure.
(c) The court shall not grant a continuance of the emergency
hearing except upon clear and convincing evidence that manifest
injustice would result if a continuance were not granted.
Sec. 9. If the court sets a subsequent hearing under section 6(c)
or 7(d) of this chapter, the court may do the following at the
subsequent hearing:
(1) Determine damages.
(2) Order return of a tenant's withheld property.
(3) Make other orders the court considers just under the
circumstances.
Sec. 10. The adjudication of an emergency possessory claim
under section 6(b) or 7(c) of this chapter does not bar a subsequent
claim a party may have against the other party arising out of the
landlord and tenant relationship unless that claim has been
adjudicated under section 9 of this chapter.
SECTION 17. IC 32-32 IS ADDED TO THE INDIANA CODE AS
A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2002]:
ARTICLE 32. TIME SHARES AND CAMPING CLUBS
Chapter 1. Application
Sec. 1. This article does not apply to the following:
(1) The sale of not more than twelve (12) time shares or
camping club memberships in a time share project or
camping site project, unless the developer offers to sell time
shares or camping club memberships in other projects in the
same subdivision and the total number of the shares offered
for sale exceeds twenty-six (26) in a period of twelve (12)
months.
(2) The sale or transfer of a time share or camping club
membership by an owner who is not the developer, unless the
time share or camping club membership is sold in the
ordinary course of business of that owner.
(3) Any transfer of a time share or camping club membership
by deed instead of foreclosure or as a result of foreclosure of
the time share or camping club membership.
(4) A gratuitous transfer of a time share or camping site.
(5) A transfer of a time share or camping club membership by
devise or descent or a transfer to an inter vivos trust, unless
the method of disposition is adopted for the purpose of
evading this chapter.
Chapter 2. Definitions
Sec. 1. The definitions in this chapter apply throughout this
article.
Sec. 2. "Camping club" means any enterprise, other than one
that is tax exempt under Section 501 of the Internal Revenue Code,
that has as its primary purpose camping or outdoor recreation that
involves or will involve camping sites.
Sec. 3. "Camping club member" means any person, other than
the developer or lender, who purchases a camping club
membership.
Sec. 4. (a) "Camping club membership" means an agreement
evidencing a purchaser's title to, interest in, or right or license to
use for more than thirty (30) days the camping or outdoor
recreation facilities of a camping club.
(b) The term does not include an agreement of a camping or
outdoor recreation facility that expires within three hundred
sixty-five (365) days after the execution date of the agreement.
Sec. 5. "Camping site" means a space that:
(1) is designed and promoted for the purpose of locating a
trailer, tent, tent trailer, pickup camper, or other similar
device used for land based portable housing; and
(2) is the subject of a camping club membership.
Sec. 6. "Developer" means any person who engages in the
business of creating or selling its own time shares or camping club
memberships.
Sec. 7. "Director" refers to the director of the division
appointed under IC 4-6-9-2.
Sec. 8. "Division" refers to the consumer protection division of
the office of the attorney general created by IC 4-6-9-1.
Sec. 9. "Exchange company" means any person owning or
operating an exchange program.
Sec. 10. (a) "Exchange program" means any arrangement
allowing owners to exchange occupancy rights with persons owning
other time shares or camping club memberships.
(b) The term does not include an arrangement in which all of the
occupancy rights that may be exchanged are in the same time share
property or camping site.
Sec. 11. "Offer" means any advertised inducement, solicitation,
or attempt to encourage any person to acquire a time share or
camping club membership other than as security for an obligation.
Sec. 12. "Participant" means any person who, by means of a
verbal or written purchase, exchange, or leasing agreement,
acquires a right to occupy a time share unit from a developer,
purchaser, exchange company, rental or management company, or
any other person or organization.
Sec. 13. "Person" means a natural person, a corporation, a
government, a governmental subdivision or agency, a business
trust, an estate, a trust, a partnership, an association, a joint
venture, or another legal or commercial entity.
Sec. 14. "Project" means the real property, which must contain
more than one (1) unit, in which time shares or camping sites are
created by a single instrument or set of instruments.
Sec. 15. "Project manager" means any person:
(1) who coordinates the sale of time shares or camping club
memberships; and
(2) to whom sales agents and representatives are responsible.
Sec. 16. "Purchaser" means any person, other than the
developer or lender, who purchases a time share or camping club
membership.
Sec. 17. (a) "Representative" means a person who is not a seller
and who, on behalf of a developer, induces other persons to attend
a sales presentation.
(b) The term does not include a person who only performs
clerical tasks, arranges appointments set up by others, or prepares
or distributes promotional materials.
Sec. 18. "Seller" means a developer or any other person or
agent or employee of a developer who offers time shares or
camping club memberships to the public.
Sec. 19. "Substantially completed" means that:
(1) all roadways, utilities, amenities, furnishings, appliances,
structural components, and mechanical systems of buildings
and premises are completed and provided as represented in
the time share instrument or agreement or camping club
membership agreement; and
(2) the premises are ready for occupancy and the proper
governmental authority has caused to be issued a certificate
of occupancy, if a certificate of occupancy is required.
Sec. 20. "Time share" means the right to use and occupy a unit
on a periodic basis according to an arrangement allocating this
right among various time share participants.
Sec. 21. "Time share instrument" means any document creating
or regulating time shares, excluding any law, ordinance, or
governmental regulation.
Sec. 22. "Time share participant" has the meaning set forth in
section 12 of this chapter.
Sec. 23. "Unit" means each portion of a time share project or
each camping site that is designated for separate use.
Chapter 3. Time Shares and Camping Clubs
Sec. 1. (a) Before a developer may offer to sell any time shares
or camping club memberships in this state, the developer must
register with the division under this section.
(b) A person who applies for registration under this section shall
submit an application in the manner provided by the division and
shall disclose the following information under oath:
(1) The names and addresses of all officers, project managers,
marketing agencies, advertising agencies, and exchange
companies who are actively involved in soliciting or selling
time share units or camping club memberships.
(2) The name and address of each person who owns an
interest of ten percent (10%) or more in the registrant, except
for reporting companies under the Securities Exchange Act of
1934.
(3) A copy of the document in which the time share project or
camping club project is created.
(4) A preliminary title report for the time share project or
camping club project and copies of the documents listed as
exceptions in the report showing any encumbrances.
(5) Copies of and instructions for escrow agreements, deeds,
and sales contracts.
(6) Documents that show the current assessments for property
taxes on the time share project or camping club project.
(7) A copy of bylaws or similar instrument that creates any
community ownership relationship.
(8) Copies of all documents that will be given to a participant
who is interested in participating in a program for the
exchange of occupancy rights among time share participants
or camping club members, and copies of the documents that
show acceptance of the time share or camping club
membership in the program.
(c) A developer who knowingly or intentionally offers to sell any
time shares or camping club memberships in this state before
registering with the division under this section commits a Class D
felony.
Sec. 2. Any amendment by the developer of the provisions of the
document that created the time share or camping club
membership, or of the articles of incorporation, trust, or bylaws,
must be filed with the division.
Sec. 3. (a) A time share or camping site developer who applies
for registration under section 1 of this chapter shall pay a one (1)
time registration fee of two hundred fifty dollars ($250).
(b) Each July 1 after a developer applies for registration under
section 1 of this chapter, the developer shall file an update to the
registration. The developer shall pay an additional fifty dollars
($50) for each yearly refiling under this subsection.
(c) The fees collected under this section shall be used, in addition
to funds appropriated by the general assembly, for the
administration and enforcement of this chapter.
Sec. 4. All registration statements and information required to
be filed under this chapter with the division are subject to
IC 5-14-3.
Sec. 5. A time share project and camping club project must be
created by a time share instrument or camping club membership
agreement. The membership agreement must include the following
provisions:
(1) A legal description of the time share project or camping
club project that transfers an interest in real property.
(2) The name and location of the time share project or
camping club project.
(3) A system of identification of the time periods assigned to
time shares by letter, name, number, or any combination of
letters, names, or numbers.
(4) Provisions for assessment of the expenses of the time share
project or camping club project and an allocation of those
expenses among the time share participants or camping club
members.
(5) A procedure to add units to the time share project or
camping club project.
(6) Provisions for maintenance of the time share units or
camp sites.
(7) Provisions for management of the time share project or
camping club project.
(8) A procedure to amend the time share instrument or the
camping club membership agreement.
(9) A description of the rights of the purchaser relating to the
occupancy of the time share unit or camping site.
Sec. 6. A transfer of an interest in a time share unit or camping
club membership shall be by written contract that includes or
incorporates by reference the following provisions:
(1) A legal description of the time share unit or camping site
that transfers an interest in real property.
(2) The name and location of the time share unit or camping
site.
(3) A system of identification of the time periods assigned to
time shares by letter, name, number, or any combination of
letters, names, or numbers.
(4) Provisions for assessment of the expenses of the time share
project or camping club project and an allocation of those
expenses among the time share participants or camping club
members.
(5) Provisions for maintenance of the time share units or
camping sites.
(6) Provisions for management of the time share project or
camping club project.
(7) A description of the rights of the time share participant or
camping club member relating to the occupancy of the time
share unit or camping site.
Sec. 7. (a) A purchaser has the right to cancel a camping club
membership or time share purchase within seventy-two (72) hours
after the execution of the sales contract, excluding Sundays and
legal holidays as set forth in IC 1-1-9-1. The right of cancellation
shall be set forth conspicuously in boldface type on the first page
of any time share instrument or camping club membership
agreement and immediately above the signature of the purchaser
on any sales contract. In each case, the cancellation clause must
include an explanation of the conditions and manner of exercise of
the cancellation right. The right of cancellation may not be
waivable by any purchaser. The developer shall furnish to each
purchaser a form, as prescribed by the agency, for the exercise of
the right.
(b) To cancel a camping club membership or time share
purchase, a consumer must give notice of cancellation by mail or
telegraphic communication or as otherwise allowed by this
subsection. The notice is effective on the date postmarked or when
transmitted from the place of origin. Any written notice of
cancellation delivered other than by mail or telegraph is effective
at the time of delivery at the place of business of the developer or
escrow agent designated in the form of notice of cancellation.
Sec. 8. The attorney general may require:
(1) that a developer file a performance bond with the division;
or
(2) that all or part of the money collected from the consumer
as part of a purchase of a time share instrument or camping
club membership, including closing costs and exchange
company membership fees, be placed and held in escrow until
the particular time share unit or camping site to which the
time share or camping club membership relates is
substantially completed and ready for occupancy.
Sec. 9. If a time share unit or camping site is not available for a
period to which the owner is entitled by schedule or by confirmed
reservation and the developer is responsible for the unavailability
of the unit or site, the participant is entitled at the participant's
election to be provided:
(1) a comparable unit or site for the period; or
(2) monetary compensation for the loss of use of the time
share unit or camping site.
Sec. 10. (a) If the interest of the developer in a project is a
leasehold interest, the lease, unless otherwise determined by the
division, must provide that:
(1) the lessee must give the association notice of termination
of the lease for any default by the lessor; and
(2) the lessor, upon the bankruptcy of the lessee, shall enter
into a new lease with the association upon the same terms and
conditions as were contained in the lease with the developer.
(b) The division may require the developer to execute a bond or
other type of security for the payment of the lease obligation.
Sec. 11. An action for partition of a time share unit or camping
site may not be maintained except as provided in the time share
instrument. If a time share or camping site is owned by two (2) or
more persons, an action may be brought for the judicial sale of the
time share or camping site. A provision in a time share instrument
for the waiver or subordination of the right of partition or any
other right characteristic of a tenancy in common is valid.
Sec. 12. (a) A developer, or exchange company if the exchange
company is dealing directly with the participants or camping club
members, that offers a program for the exchange of occupancy
rights among time share participants or camping club members or
with the purchasers or members in other time share or camping
club projects, or both, shall give in writing to the camping club
members or time share participants the following information:
(1) The name and address of the exchange company offering
the exchange program.
(2) A statement indicating whether the exchange company or
any of its officers or directors has any legal or beneficial
interest in any interest of the developer or managing agent in
any plan to sell time shares or camping club memberships
included in the program and, if so, the name, location, and
nature of the interest.
(3) A statement that the time share participant's or camping
club member's contract with the exchange company is a
contract separate and distinct from the contract to purchase
the time share or camping club membership, unless the
exchange company and the developer or an affiliate of the
developer are the same.
(4) A statement indicating whether the participant's or
member's participation in the exchange project is dependent
upon the continued inclusion of the plan to sell time shares or
camping club memberships in the program.
(5) A statement indicating whether the purchaser's or
member's membership or participation in the exchange
program is voluntary or mandatory.
(6) A complete and accurate description of the following:
(A) The terms and conditions of the purchaser's
contractual relationship with the company and the
procedure by which changes in the contractual
relationship and may be made.
(B) The procedure to qualify for and make exchanges.
(C) All limitations, restrictions, and priorities of the
program, including limitations on exchanges based on the
seasons of the year, the size of units, or levels of occupancy.
The written description of the limitations, restrictions, and
priorities given under this clause must be printed in
boldface type and, if the limitations, restrictions, and
priorities are not uniformly applied by the program, must
include a clear description of the manner in which they are
applied.
(7) A statement, which must be printed on all promotional
brochures, pamphlets, advertisements, and other materials
disseminated by the exchange company that indicate the
percentage of confirmed exchanges, to the effect that:
(A) the percentage of confirmed exchanges is a summary
of the requests for exchanges received by the exchange
company in the most recent annual reporting period; and
(B) the percentage does not indicate the probability of a
purchaser or members being confirmed to any specific
choice since availability at individual locations may vary.
(8) A statement indicating whether exchanges are arranged on
the basis of available space and whether there are any
guarantees of fulfilling specific requests for exchanges.
(9) A statement indicating whether and under what
circumstances a participant or member, in dealing with the
exchange company, may lose the right to use and occupy a
time share unit or camping site in any properly applied for
exchange without being provided with substitute
accommodations by the company.
(10) A statement of the fees to be paid by participants or
members in the program, including a statement indicating
whether any fees may be changed by the exchange company,
and if so, the circumstances under which those changes may
be made.
(11) The name and address of the site of each time share or
camping club project included in the program.
(b) The information required by subsection (a) must be
delivered to the camping club member or time share participant
before the execution of:
(1) any contract between the camping club member or time
share participant and the exchange company; or
(2) the contract to purchase the time share or camping club
membership.
(c) Upon receipt of the information required by subsection (a),
the camping club member or time share participant shall certify in
writing that the member or participant has received the
information from the developer.
(d) Except as otherwise provided in this section, the information
required by subsection (a) must be accurate as of thirty (30) days
before the date on which the information is delivered to the
participant or member.
Sec. 13. (a) The division may receive, investigate, and prosecute
complaints concerning persons subject to this chapter.
(b) The director may subpoena witnesses and send for and
compel the production of books, records, papers, and documents
of time share or camping club developers who are subject to
registration under this chapter for the furtherance of any
investigation under this chapter. The circuit or superior court
located in the county where the subpoena is to be issued shall
enforce any subpoena by the attorney general. In addition, the
attorney general may issue a civil investigative demand as provided
by IC 4-6-3.
Sec. 14. A person who violates this chapter commits a deceptive
act and is subject to the penalties and remedies provided in
IC 24-5-0.5. Any action by the attorney general for violations of
this chapter may be brought in the circuit or superior court of
Marion County.
Sec. 15. In the administration of this chapter, the attorney
general may execute an assurance of voluntary compliance with a
time share developer in existence on September 1, 1985, in the
same manner as provided in IC 24-5-0.5-7(a), except that no filing
with the court is required in order for the assurance to be effective
under this chapter.
SECTION 18. IC 32-33 IS ADDED TO THE INDIANA CODE AS
A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2002]:
ARTICLE 33. LIENS ON REAL PROPERTY
Chapter 1. Blacksmith's Liens
Sec. 1. (a) A person who, at the request of an owner or an
owner's authorized agent:
(1) shoes or causes to be shod by the person's employees a
horse, a mule, an ox, or other animal; or
(2) repairs or causes to be repaired by the person's employees,
a vehicle;
has a lien upon the animal shod or vehicle repaired for the person's
reasonable charge for shoeing the animal or repairing the vehicle.
(b) A lien conferred by this chapter takes the precedence of all
other liens or claims upon the animal shod or the vehicle repaired
that are not duly recorded before the recording of a claim for the
lien conferred by this chapter. However, a lien may not attach to
the animal shod or the vehicle repaired if the property has changed
ownership before the filing of the lien.
Sec. 2. A claim for a lien under this chapter must be filed within
sixty (60) days after the shoeing of a horse, a mule, an ox or other
animal, or the repairing of a vehicle. The claim must be filed with
the recorder of the county in which the owner of the animal or
vehicle resides. A claim for a lien under this chapter must be in
writing, setting forth the person's intention to claim a lien upon the
animal or vehicle for the charges for shoeing or repairing.
However, this lien must be recorded in the miscellaneous record
book in the recorder's office of the county. The recorder shall
charge a fee in accordance with IC 36-2-7-10 for recording the lien.
Sec. 3. A claim for lien under this chapter must:
(1) state the name and residence of the person claiming the
lien;
(2) the name of the owner of the animal or vehicle sought to be
charged with the lien;
(3) a description sufficient for identification of the animal or
vehicle upon which the lien is claimed; and
(4) the amount due the claimant, as near as may be, over and
above all legal set-offs.
A claim for lien filed with the recorder of the county under section
2 of this chapter expires and becomes void and of no effect if suit
is not brought to foreclose the lien within three (3) months after
filing the claim under section 2 of this chapter.
Sec. 4. A lien under this chapter may be foreclosed in any circuit
or superior court in the county in which the lien is recorded under
section 2 of this chapter.
Sec. 5. If the plaintiff recovers on a claim and a lien is foreclosed
under this chapter, the plaintiff shall recover and the court may
allow a reasonable fee for plaintiff's attorney for bringing and
prosecuting the cause of action, all of which shall be recovered
from the defendant, and the property in controversy may be sold
as in case of sales in foreclosure of chattel mortgages.
Chapter 2. Boats and Other Watercraft Liens
Sec. 1. All boats, vessels, and watercraft of every description
found in the waters of Indiana, including wharf boats and floating
warehouses that are used for storing, receiving, and forwarding
freights and that may be removed from place to place at the
pleasure of the owner or owners of the watercraft, are liable for the
following:
(1) A debt contracted within Indiana by the master, owner,
agent, clerk, or consignee of the watercraft:
(A) on account of supplies furnished for use of the master,
owner, agent, clerk, or consignee;
(B) on account of work done or service rendered for the
master, owner, agent, clerk, or consignee by boatmen,
mariners, laborers, or other persons; or
(C) on account of work done or materials furnished in
building, repairing, fitting out, furnishing, or equipping the
boat, vessel, wharf boat, floating warehouse, or watercraft.
(2) All demands or damages arising out of:
(A) a contract of affreightment made either within or
outside Indiana;
(B) a willful or negligent act of the master, owner, or agent
of the master or owner done in connection with the
business of the boat, vessel, wharf boat, floating
warehouse, or other watercraft either within or outside
Indiana; or
(C) a contract relative to the transportation of persons or
property entered into by the master, owner, agent, clerk,
or consignee either within or outside Indiana.
(3) An injury to a person or property by the boat, vessel,
wharf-boat, floating warehouse, or other watercraft, or by the
owners, officers, or crew, done in connection with the business
of the boat, vessel, wharf boat, floating warehouse, or other
watercraft either within or without outside Indiana.
Sec. 2. A claim growing out of a cause set forth in section 1 of
this chapter, whether arising out of contracts made or broken
within or outside Indiana, or wrongs or injuries done or committed
within or outside Indiana, is a lien upon the boat, vessel, or other
watercraft, and upon the apparel, tackle, or furniture and
appendages, including barges and lighters, that belong to the
owners of the boat, vessel, or other watercraft and are used with
the boat, vessel, or other watercraft at the time the action is
commenced.
Sec. 3. A lien provided for in section 2 of this chapter takes
preference of any claims against the boat itself or all or any of its
owners, masters, or consignees growing out of any other cause than
those set forth in section 1 of this chapter and, as between
themselves, mariners' and boatmens' wages shall be first preferred.
Sec. 4. (a) Any person aggrieved by a cause set forth in section
1 of this chapter may have an action against the boat, vessel, or
other watercraft in the county where the boat, vessel, or other
watercraft may be found, or against the owners of the boat, vessel,
or other watercraft, to enforce a lien provided for in section 2 of
this chapter.
(b) If the complaint in the action shows:
(1) the particulars of the demand;
(2) the amount due; and
(3) a demand made upon the owner, master, clerk, or
consignee and refusal of payment, and verified by the
affidavit of the plaintiff or other person in the plaintiff's
behalf;
an order of attachment shall be issued by the clerk against the
boat, vessel, or other watercraft and the tackle and furniture of the
boat, vessel, or other watercraft. The order of attachment must be
directed, executed, and returned as an order of attachment in other
cases.
Sec. 5. In all actions contemplated in section 4 of this chapter, all
or any of the persons having demands described in section 4 of this
chapter may join in a complaint against the boat, vessel, or other
watercraft either at the commencement of the action or at any time
afterwards, before judgment, upon filing the requisite complaint
and affidavit.
Sec. 6. In an action under this chapter, proceedings shall be had
and judgment rendered and enforced by execution or other proper
means.
Sec. 7. (a) If the defendant master, owner, or consignee, before
final judgment, gives a written undertaking payable to the plaintiff,
with surety to be approved by the clerk or sheriff, to the effect that
the defendant will perform the judgment of the court, the
attachment shall be discharged and restitution made of the boat,
vessel, or other watercraft.
(b) A person who executes a written undertaking under
subsection (a) shall, by order of the court, be made a defendant in
the action instead of the boat, vessel, or other watercraft, and the
action shall proceed to final judgment as in ordinary actions in
personam. If a recovery is had by any of the plaintiffs, judgment
shall be rendered against all defendants for the sum recovered.
Sec. 8. In cases arising under section 1 of this chapter, the
summons may be served upon:
(1) the officer or consignee making the contract;
(2) if the officer or consignee cannot be found, upon the clerk;
(3) if neither the officer, the consignee, nor the clerk can be
found, upon any other officer of the boat, vessel, or
watercraft, or any person having charge of the boat, vessel, or
watercraft; or
(4) if the summons cannot be served under subdivision 1, 2, or
3, by affixing a copy of the summons in some conspicuous
place in the boat, vessel, or watercraft.
Chapter 3. Cleaning Lien for Services on and Storage of
Clothing and Household Goods
Sec. 1. (a) A person doing any cleaning, glazing, washing,
alteration, repair, or furnishing any materials or supplies for or
upon any garment, clothing, wearing apparel, or household goods
has a lien on the item for the reasonable value of the unpaid work,
labor or material, and supplies used. The lien may be foreclosed in
the manner provided by this chapter if at the time of receiving the
clothing, garment, wearing apparel, or household goods a written
receipt is given to the person or customer leaving the item.
(b) Any garment, clothing, wearing apparel, or household goods
remaining in the possession of a person, firm, partnership, limited
liability company, or corporation;
(1) on which cleaning, pressing, glazing, or washing has been
done; or
(2) upon which alterations or repairs have been made, or on
which materials or supplies have been used or furnished;
for a period of at least ninety (90) days after the cleaning, pressing,
glazing, or washing has been done, the alterations or repairs have
been made, or the materials or supplies have been used or
furnished may be sold to pay the reasonable or agreed charges and
the costs of notifying the owner or owners. However, the person,
firm, partnership, limited liability company, or corporation to
whom the charges are payable and owing must first notify the
owner or owners of the time and place of the sale.
(c) Property that is to be placed in storage after any of the
services or labors referred to in subsection (a) or (b) is not affected
by this section.
Sec. 2. (a) This section does not apply to persons, firms,
partnerships, limited liability companies, or corporations operating
as warehouses or warehousemen.
(b) All garments, clothing, wearing apparel, or household goods:
(1) that are placed in storage; or
(2) on which any of the services or labors mentioned in section
1 of this chapter have been performed and that have then
been placed in storage by agreement;
and that remain in the possession of a person, firm, partnership,
limited liability company, or corporation without the reasonable or
agreed charges having been paid for a period of ninety (90) days
may be sold to pay the charges if the person, firm, partnership,
limited liability company, or corporation to whom the charges are
payable first notifies the owner or owners of the items placed in
storage of the time and place of sale.
Sec. 3. The mailing of a letter that has a return address, that is
addressed to the owner at the owner's address given at the time of
delivery of the article to a person, firm, partnership, limited
liability company, or corporation to render any of the services or
labors set forth in section 1 of this chapter, and that states the time
and place of sale constitutes notice for the purposes of section 2 of
this chapter. The notice must be given at least thirty (30) days
before the date of sale. The cost of posting or mailing letters under
this section shall be added to the charges.
Sec. 4. The person, firm, partnership, limited liability company,
or corporation to whom the charges are payable shall:
(1) from the proceeds of sale, deduct the charges due plus the
costs of notifying the owner;
(2) hold the over-plus, if any, subject to the order of the
owner;
(3) immediately after the sale mail to the owner at the owner's
address, if known, a notice of the sale and the amount of
over-plus, if any, due the owner; and
(4) at any time within twelve (12) months after the sale, upon
demand by the owner, pay to the owner the sums or over-plus.
Sec. 5. All persons, firms, partnerships, limited liability
companies, or corporations taking advantage of this chapter must
keep posted in a prominent place in their receiving office at all
times two (2) notices that must read as follows:
"All articles cleaned, pressed, glazed, laundered, washed,
altered, or repaired and not called for in ninety (90) days shall
be sold to pay charges," and "If any articles are stored by
agreement and the charges are not paid for ninety (90) days,
the articles shall be sold to pay charges."
Chapter 4. Hospital Liens
Sec. 1. A person, a firm, a partnership, an association, a limited
liability company, or a corporation maintaining a hospital in
Indiana or a hospital owned, maintained, or operated by the state
or a political subdivision of the state is entitled to hold a lien for the
reasonable value of its services or expenses on any judgment for
personal injuries rendered in favor of any person, except a person
covered by:
(1) the provisions of IC 22-3-2 through IC 22-3-6;
(2) the federal worker's compensation laws; or
(3) the federal liability act;
who is admitted to the hospital and receives treatment, care, and
maintenance on account of personal injuries received as a result of
the negligence of any person or corporation. In order to claim the
lien, the hospital must at the time or after the judgment is
rendered, enter, in writing, upon the judgment docket where the
judgment is recorded, the hospital's intention to hold a lien upon
the judgment, together with the amount claimed.
Sec. 2. The lien provided for in section 1 of this chapter is junior
and inferior to all claims for attorney's fees, court costs, and all
other expenses contracted for or incurred in the recovery of claims
or damages for personal injuries as described in this chapter.
Sec. 3. (a) A person, a firm, a partnership, an association, a
limited liability company, or a corporation maintaining a hospital
in Indiana or a hospital owned, maintained, or operated by the
state or a political subdivision has a lien for all reasonable and
necessary charges for hospital care, treatment, and maintenance
of a patient (including emergency ambulance services provided by
the hospital) upon any cause of action, suit, or claim accruing to
the patient, or in the case of the patient's death, the patient's legal
representative, because of the illness or injuries that:
(1) gave rise to the cause of action, suit, or claim; and
(2) necessitated the hospital care, treatment, and
maintenance.
(b) The lien provided for in subsection (a):
(1) except as provided in subsection (c), applies to any amount
obtained or recovered by the patient by settlement or
compromise rendered or entered into by the patient or by the
patient's legal representative;
(2) is subject and subordinate to any attorney's lien upon the
claim or cause of action;
(3) is not applicable to accidents or injuries within the
purview of:
(A) IC 22-3;
(B) 5 U.S.C. 8101 et seq.; or
(C) 45 U.S.C. 51 et seq.;
(4) is not assignable; and
(5) must first be reduced by the amount of any medical
insurance proceeds paid to the hospital on behalf of the
patient after the hospital has made all reasonable efforts to
pursue the insurance claims in cooperation with the patient.
(c) If a settlement or compromise that is subject to subsection
(b)(1) is for an amount that would permit the patient to receive less
than twenty percent (20%) of the full amount of the settlement or
compromise if all the liens created under this chapter were paid in
full, the liens must be reduced on a pro rata basis to the extent that
will permit the patient to receive twenty percent (20%) of the full
amount.
Sec. 4. (a) To perfect the lien provided for in section 3 of this
chapter, the hospital must file for record in the office of the
recorder of the county in which the hospital is located, within one
hundred eighty (180) days after the person is discharged, a verified
statement in writing stating:
(1) the name and address of the patient as it appears on the
records of the hospital;
department by hospitals under section 4(b)(3) of this chapter;
(2) provide insurance companies with reasonable and timely
access to the information contained in the lien notices filed
with the department under section 4(b)(3) of this chapter; and
(3) provide a system for filing and for cross-referencing lien
releases mailed under section 7 of this chapter with lien
notices filed under section 4(b)(3) of this chapter.
Sec. 6. (a) A lien perfected under section 4 of this chapter is
valid unless the lienholder executes a release of the lien under
section 7 of this chapter.
(b) The release or settlement of a claim with a patient by a
person claimed to be liable for the damages incurred by the
patient:
(1) after a lien has been perfected under section 4 of this
chapter; and
(2) without obtaining a release of the lien;
entitles the lienholder to damages for the reasonable cost of the
hospital care, treatment, and maintenance.
(c) Satisfaction of a judgment rendered in favor of the
lienholder under subsection (b) is satisfaction of the lien.
(d) An action by the lienholder must be brought in the court
having jurisdiction of the amount of the lienholder's claim and may
be brought and maintained in the county of residence of the
lienholder.
Sec. 7. (a) To release a lien perfected under section 4 of this
chapter, the operator of the hospital to whom the lien has been
paid must file with each recorder in whose office the notice of the
hospital lien was filed an executed certificate:
(1) stating that the claim filed by the hospital for treatment,
care, and maintenance has been paid or discharged; and
(2) authorizing the recorder to release the lien.
The hospital shall bear the expense of obtaining a release.
(b) Upon receipt of the certificate, the recorder shall enter in the
margin of the record of the lien and the entry book a memorandum
of the filing and the date the certificate was filed. This entry
constitutes a release of lien for which the recorder shall receive the
fee prescribed in IC 36-2-7-10.
(c) If the amount of a lien has been satisfied or paid and
subsequently a demand for a release of the lien is made, the
lienholder is liable to the person, firm, limited liability company, or
corporation against whose interest the lien has been filed for ten
dollars ($10) for each day that the lien remains in effect after the
fifteenth day after the demand for a release of the lien was made.
(d) The operator of the releasing hospital shall mail a copy of
the release of lien certificate required under subsection (a) to the
department of insurance within ten (10) days after the certificate
was filed with the recorder.
Sec. 8. This chapter does not give any hospital a right:
(1) of action to determine liability; or
(2) to approve a compromise or settlement;
for injuries sustained by any person covered by this chapter.
Chapter 5. Ambulance Liens
Sec. 1. As used in this chapter, "emergency ambulance services"
has the meaning set forth in IC 16-18-2-107.
Sec. 2. As used in this chapter, "provider" means a provider of
emergency ambulance services other than a hospital.
Sec. 3. (a) A provider has a lien for all reasonable and necessary
charges for the provision of emergency ambulance services to a
patient upon any cause of action, suit, or claim accruing to the
patient, or in the case of the patient's death, the patient's legal
representative, because of the illness or injuries that:
(1) gave rise to the cause of action, suit, or claim; and
(2) necessitated the provision of emergency ambulance
services.
(b) The lien:
(1) applies to any amount obtained or recovered by the
patient by settlement or compromise rendered or entered into
by the patient or by the patient's legal representative;
(2) is subject and subordinate to any attorney's lien upon the
claim or cause of action; and
(3) is not applicable to accidents or injuries within the
purview of:
(A) IC 22-3;
(B) 5 U.S.C. 8101 et seq.; or
(C) 45 U.S.C. 51 et seq.
Sec. 4. (a) To perfect a lien under this chapter, the provider
must file in the office of the recorder of the county, within sixty
(60) days after the provision of services, a verified statement in
writing that includes the following:
(1) The name and address of the patient.
(2) The name and address of the provider.
(3) The date services were provided.
(4) The amount claimed to be due.
(5) To the best of the provider's knowledge, the names and
addresses of anyone claimed by the patient or by the patient's
legal representative to be liable for damages arising from the
illness or injury.
(b) Within ten (10) days after filing the statement, the provider
shall send a copy by registered mail, postage prepaid:
(1) to each person claimed to be liable because of the illness or
injury at the address given in the statement; and
(2) to the attorney representing the patient if the name of the
attorney is known or with reasonable diligence could be
discovered by the provider.
(c) The filing of a claim under subsection (a) is notice to any
person, firm, limited liability company, or corporation that may be
liable because of the illness or injury, if the person, firm, limited
liability company, or corporation:
(1) receives notice under subsection (b); or
(2) resides or has offices in a county where the lien was
perfected or in a county where the lien was filed in the
recorder's office as notice under this subsection.
(d) A person desiring to contest a lien or the reasonableness of
the charges claimed by the provider may do so by filing a motion
to quash or reduce the claim in the circuit court in which the lien
was perfected, making all other parties of interest respondents.
Sec. 5. (a) The recorder shall endorse on the statement filed
under section 4 of this chapter the date and hour of filing.
(b) The recorder shall charge a fee for filing the statement in
accordance with the fee schedule established in IC 36-2-7-10.
Sec. 6. (a) A lien perfected under section 4 of this chapter is
valid unless the lienholder executes a release of the lien under
section 7 of this chapter.
(b) The release or settlement of a claim with a patient by a
person claimed to be liable for the damages incurred by the
patient:
(1) after a lien has been perfected under section 4 of this
chapter; and
(2) without obtaining a release of the lien;
entitles the lienholder to damages for the reasonable cost of the
services provided.
(c) Satisfaction of a judgment rendered in favor of the
lienholder under subsection (b) is satisfaction of the lien.
(d) An action by the lienholder shall be brought in the court
having jurisdiction of the amount of the lienholder's claim and may
be brought and maintained in the county of residence of the
lienholder.
Sec. 7. (a) To release a lien perfected under section 4 of this
chapter, the provider to whom the lien has been paid must file with
the recorder in whose office the notice of the lien was filed an
executed certificate:
(1) stating that the claim filed by the provider for the
provision of emergency ambulance services has been paid or
discharged; and
(2) authorizing the recorder to release the lien.
The provider shall bear the expense of obtaining a release.
(b) Upon receipt of the certificate, the recorder shall enter in the
margin of the record of the lien and the entry book a memorandum
of the filing and the date the certificate was filed. This entry
constitutes a release of lien for which the recorder shall receive the
fee prescribed in IC 36-2-7-10.
(c) If the amount of a lien has been satisfied or paid and
subsequently a demand for a release of the lien is made, the
lienholder is liable to the person, firm, limited liability company, or
corporation against whose interest the lien has been filed for ten
dollars ($10) for each day that the lien remains in effect after the
fifteenth day after the demand for a release of the lien was made.
Sec. 8. This chapter does not give any provider a right:
(1) of action to determine liability; or
(2) to approve a compromise or settlement;
for injuries sustained by any person covered by this chapter.
Chapter 6. Innkeeper's Liens
Sec. 1. (a) The owner or keeper of any hotel, inn, boardinghouse,
eating facility, lodging house, or restaurant has a lien upon any
trunk, valise or baggage, or other article of value brought into the
hotel, inn, boardinghouse, eating facility, lodging house, or
restaurant by a person for any and all proper charges due from the
person for food, lodging, entertainment, or other accommodation.
(b) The owner or keeper referred to in subsection (a) may detain
the trunk, valise or baggage, or other articles of value until the
amount of the charge is fully paid. If the charges are not paid
within sixty (60) days after the charges accrued, the owner or
keeper may sell the trunk, valise or baggage, or other article of
value at public auction after giving ten (10) days notice of the time
and place of the sale by publication of notice in a newspaper of
general circulation in the county in which the hotel, inn,
boardinghouse, eating facility, lodging house, or restaurant is
situated. In addition, the owner or keeper must at least ten (10)
days before the sale mail a copy of the notice addressed to the
person at:
(1) the person's post office address if known to the owner or
keeper; or
(2) the address registered by the person with the owner or
keeper if the owner or keeper is required to keep a register
under IC 16-41-29.
(c) After satisfying the lien out of the proceeds of a sale under
this section together with any costs that may have been incurred in
enforcing the lien, the residue of the proceeds of the sale, if any,
must be paid on demand by the owner or keeper to the person not
more than six (6) months after the sale. If the residue is not
demanded within six (6) months after the date of the sale, the
residue or remainder shall be deposited by the owner or keeper
with the county treasurer of the county in which the hotel, inn,
boardinghouse, eating facility, lodging house, or restaurant is
situated, together with a statement of:
(1) the owner's or keeper's claim;
(2) the amount of costs incurred in enforcing the lien;
(3) a copy of the published notice; and
(4) the amount received from the sale of the trunk, valise or
baggage, or other article of value sold at the sale.
(d) The residue deposited under subsection (c) shall be
accredited to the general revenue funds of the county by the county
treasurer subject to the right of the person or the person's
representatives to reclaim the residue at any time within three (3)
years after the date of the deposit with the county treasurer.
(e) A sale under this section is a bar to any action against the
owner or keeper for the recovery of the trunk, valise or baggage,
or other article of value or of the value of the trunk, valise or
baggage, or other article of value, or for any damage growing out
of the failure of the person to receive the trunk, valise or baggage,
or other article of value.
(f) However, if the proceeds of a sale after deducting any costs
that may have been incurred in enforcing the lien are not sufficient
to discharge the owner's or keeper's charges, the balance remains
due and owing, and the owner or keeper may commence an action
at law against the person for any balance due.
Chapter 7. Liability of Hotels for Loss of Property of Guests
Sec. 1. As used in this chapter, "guest" includes a transient
guest, permanent guest, tenant, lodger, or boarder.
Sec. 2. If:
the luggage or other personal property is brought in by and
belongs to a guest or belongs to a person who is not a guest.
Sec. 4. A hotel, an apartment hotel, or an inn and its proprietor
or manager are not liable for the loss of or damage to any
merchandise samples or merchandise for sale, whether the loss or
damage is occasioned by the negligence of the proprietor or
manager or the proprietor's or manager's agents or otherwise,
unless:
(1) the guest or other owner has given prior written notice of
having brought the merchandise into the hotel and of the
value of the merchandise; and
(2) the receipt of the notice has been acknowledged in writing
by the proprietor, manager, or other agent.
However, the liability of the hotel, apartment hotel, inn, or the
proprietor or manager may not exceed four hundred dollars ($400)
unless the manager or proprietor of the hotel, apartment hotel, or
inn has contracted in writing to assume a greater liability.
Sec. 5. In case of loss or damage to any property left by a guest
after the guest has departed from any hotel, apartment hotel, or
inn and ceased to be a guest, the liability of the proprietor is that
of "gratuitous bailee" and may not exceed one hundred dollars
($100).
Sec. 6. In case of loss of or damage to any property while in
transit to or from any hotel, apartment hotel, or inn on behalf of a
guest, the liability of the proprietor is limited to two hundred
dollars ($200), whether the loss or damage is occasioned by the
negligence of the proprietor or the proprietor's agents or
otherwise, unless:
(1) the guest has given prior written notice of the value of the
property; and
(2) the receipt of the notice has been acknowledged in writing
by the proprietor, manager, or other agent.
However, the liability of the hotel, apartment hotel, or inn may not
exceed four hundred dollars ($400), unless the proprietor has
contracted in writing to assume a greater liability.
Chapter 8. Livestock Care and Feeding Liens
Sec. 1. The keeper of a livery stable or a person engaged in
feeding horses, cattle, hogs, and other livestock:
(1) has a lien upon the livestock for the feed and care
bestowed by the keeper upon the livestock; and
(2) has the same rights and remedies as are provided for those
persons having, before July 24, 1853, by law, a lien under
IC 32-33-9.
Chapter 9. Mechanic's and Tradesman's Liens
Sec. 1. If a person entrusts to a mechanic or tradesman
materials to construct, alter, or repair an article of value, the
mechanic or tradesman, if the construction, alteration, or repair is
completed and not taken away and the mechanic's or tradesman's
fair and reasonable charges not paid, may, after sixty (60) days
after the charges became due:
(1) sell the article of value; or
(2) if the article of value is susceptible of division, without
injury, may sell as much of the article of value as is necessary
to pay the charges.
Sec. 2. Before a sale under section 1 of this chapter, the
mechanic or tradesman must give notice of the amount due and the
time and place of the sale by mailing a certified or registered letter,
return receipt requested, to the last known address of the
entrusting person or owner at least thirty (30) days before the date
of the sale.
Sec. 3. (a) The proceeds of a sale that takes place under section
1 of this chapter, after payment of charges for construction or
repair and for giving notice by registered or certified mail, shall
be:
(1) returned to the entrusting person or owner if the identity
and mailing address of the entrusting person or owner are
known; or
(2) deposited with the treasurer of the county in which the
construction or repair work was performed.
(b) If the entrusting person or owner does not:
(1) claim the article within the thirty (30) days before the date
of the sale;
(2) pay for the construction, alteration, or repair; and
(3) provide reimbursement for the expenses of notification;
the mechanic or tradesman may proceed with the sale according to
the terms of the notice.
Sec. 4. Except as provided in section 5 of this chapter, this
chapter applies to all cases of personal property on which the
bailee or keeper has, by law, a lien for any feed or care by the
bailee or keeper provided on the property. However, in cases
where the person liable dies before the expiration of sixty (60) days
after the charges accrued, the sale may not be made until at least
sixty (60) days after the date of the person's death.
Sec. 5. For personal property described in section 4 of this
chapter, if the property bailed or kept is:
(1) horses;
(2) cattle;
(3) hogs;
(4) other livestock; or
(5) other property covered in this chapter that is of a
perishable nature and will be greatly injured by delay;
the person to whom the charges may be due may, after the
expiration of thirty (30) days after the charges become due,
proceed to dispose of as much of the property as may be necessary,
as provided in this chapter.
Sec. 6. Additional compensation for keeping and taking care of
property referred to in section 5 of this chapter, if necessarily
incurred, may be taken from the proceeds of sale under section 5
of this chapter as part of the charges.
Sec. 7. A forwarding and commission merchant having a lien
upon goods that may have remained in store for at least one (1)
year may proceed to advertise and sell at public auction as much
of the goods as may be necessary to pay the amount of the lien and
expenses, according to the provisions of this chapter.
Sec. 8. All mechanics, tradesmen, or bailees taking advantage of
this chapter, at the time of the entrusting, must issue a receipt to
the person entrusting the article to them. The receipt must
conspicuously state, "All articles left on the premises after work is
completed may be sold for charges.".
Chapter 10. Motor Vehicles Lien for Repair, Storage, Service,
and Supplies for Certain Motor Vehicles and Equipment
Sec. 1. As used in this chapter, "construction machinery and
equipment" includes all classes and types of machinery and
equipment used in road construction, road maintenance, earth
moving, and building construction work.
Sec. 2. As used in this chapter, "farm machinery" means all
types of tractors, implements, and machinery used in the operation
and maintenance of farms.
Sec. 3. (a) As used in this chapter, "motor vehicle" means every
vehicle and device in, upon, or by which persons or property is, or
may be, moved, transported, or drawn upon public highways.
(b) The term includes:
(1) self-propelled vehicles; and
(2) vehicles and devices drawn or propelled by other vehicles,
devices, trucks, and tractors.
Sec. 4. As used in this chapter, "person" includes a natural
person, a firm, a copartnership, an association, a limited liability
company, and a corporation.
Sec. 5. A person engaged in:
(1) repairing, storing, servicing, or furnishing supplies or
accessories for motor vehicles, airplanes, construction
machinery and equipment, and farm machinery; or
(2) maintaining a motor vehicle garage, an airport or repair
shop for airplanes, or a repair shop or servicing facilities for
construction machinery and equipment and farm machinery;
has a lien on any motor vehicle or airplane or any unit of
construction machinery and equipment or farm machinery stored,
repaired, serviced, or maintained for the person's reasonable
charges for the repair work, storage, or service, including
reasonable charges for labor, for the use of tools, machinery, and
equipment, and for all accessories, materials, gasoline, oils,
lubricants, and other supplies furnished in connection with the
repair, storage, servicing, or maintenance of the motor vehicle,
airplane, unit of construction machinery and equipment, or farm
machinery.
Sec. 6. (a) A person seeking to acquire a lien upon a motor
vehicle, an airplane, a unit of construction machinery and
equipment, or farm machinery, whether the claim to be secured by
the lien is then due or not, must file in the recorder's office of the
county where:
(1) the repair, service, or maintenance work was performed;
or
(2) the storage, supplies, or accessories were furnished;
a notice in writing of the intention to hold the lien upon the motor
vehicle, airplane, unit of construction machinery and equipment,
or farm machinery for the amount of the person's claim.
(b) A notice filed under subsection (a) must specifically state the
amount claimed and give a substantial description of the motor
vehicle, airplane, unit of construction machinery and equipment,
or farm machinery upon which the lien is asserted.
(c) Any description in a notice of intention to hold a lien filed
under subsection (a) is sufficient if by the description the motor
vehicle, airplane, unit of construction machinery and equipment,
or farm machinery can be identified.
(d) A notice under subsection (a) must be filed in the recorder's
office not later than sixty (60) days after the performance of the
work or the furnishing of the storage, supplies, accessories, or
materials.
erecting machines, machinery, stacks, or other equipment, whether
the claim is due or not, may, at any time within sixty (60) days after
performing the labor or the payment of money described in section
1 of this chapter, file in the recorder's office of the county a notice
of intention to hold a lien upon the property for the amount of the
claim.
(b) The notice filed under subsection (a) must state the amount
claimed and provide a substantial description of the property. The
description of the property in a notice filed under subsection (a)
must be sufficient to identify the property.
(c) The party ordering the work done or charges paid or
advanced, shall, for the purpose of enforcing this lien, be
considered prima facie the agent of all persons having or claiming
any interest in the work done or charges paid or advanced but not
a matter of record, if the person has knowledge of the performance
of the services or the making of the expenditures.
(d) The lienor may keep possession of the goods during the
pendency of the lien or an action on the lien unless otherwise
ordered by the court.
Sec. 3. (a) The recorder shall record the notice of intention to
hold a lien filed under section 2(a) of this chapter, when presented,
in the miscellaneous record book. The recorder shall receive fees
in accordance with IC 36-2-7-10.
(b) All liens created in this manner:
(1) relate to the date the labor was begun or money advanced;
and
(2) have priority over all liens suffered or created after that
date.
Sec. 4. (a) A person that has a lien under this chapter may
enforce the lien by filing the person's complaint in the circuit or
superior court of the county in which the lien is filed, at any time
within one (1) year after the notice is received for record under
section 2(a) of this chapter by the recorder of the county.
(b) If the lien is not enforced within the time prescribed by this
section, the lien is void. If the lien is enforced as provided in this
chapter, the court rendering judgment shall order the sale to be
made, and the officers making the sale shall sell the property
without relief whatever from valuation or appraisement laws.
Sec. 5. (a) In all suits brought for the enforcement of a lien
under the provisions of this chapter, if the plaintiff or lienholder
recovers a judgment in any sum, the plaintiff or lienholder may
recover reasonable attorney's fees.
corporation violates this section; and
(B) for damages and expenses, including reasonable
attorney's fees, incurred by the secured party in enforcing
the secured party's rights; and
(2) is not liable to a consignee of property for damages that
the consignee incurs because the person, firm, limited liability
company, or corporation obtained a lien on the property
under this section.
(f) A perfected security interest in property has priority over a
lien obtained under this section.
(g) A lien may not be acquired under this section upon
perishable goods.
Sec. 7. This chapter may not be construed as repealing any other
law in force on May 31, 1921, concerning liens or the foreclosure
of liens. This chapter is intended to be supplemental to all laws in
force on May 31, 1921, concerning liens and the foreclosure of
liens.
Chapter 12. Mechanized Agricultural Services Lien
Sec. 1. (a) The owner or operator of a machine or tool used in
threshing or hulling grain or seeds or in the plowing, disking, or
cultivating of land for the production of crops or in the combining,
picking, or baling of crops has a lien upon the grain or seed
threshed or hulled with the machine or upon the crops produced or
prepared for market or storage by the plowing, disking,
cultivating, combining, baling, or picking to secure payment to the
owner or operator of the machine or tool by the owner of the crops
produced or partially produced by the service, as may be agreed
upon.
(b) If the charges for the services referred to in subsection (a)
are not agreed upon, the amount of the lien must equal charges
that are reasonable for the work.
(c) The owner or operator of the machine must file in the proper
place specified in IC 26-1-9.1-501 a financing statement giving
notice of the lien. The notice must designate the following:
(1) The name of the person for whom the work was done.
(2) The amount due for the service.
(3) The particular crops covered by the lien.
(4) The place where the crops are located.
(5) The date on which the work was done.
(d) The notice required in subsection (c) must be filed not later
than:
(1) thirty (30) days after the completion of the work, if the
work was plowing, disking, or cultivating; and
(2) ten (10) days after the completion of the work if the work
was combining, baling, or picking.
(e) If the party for whom the work was done desires to sell or
deliver the crops, the party must notify the consignee or purchaser
that the account for service of the machine has not been paid, and
the lien given on the crops shifts from the crops to the purchase
price of the crops in the hands of the purchaser or consignee
specified.
(f) If the crops are sold or consigned with the consent and
knowledge of the party entitled to a lien on the crops, the lien does
not attach to the crops or to the purchase price of the crops unless:
(1) the party entitled to the lien personally notifies the
purchaser of the lien; and
(2) the sale is made within the ten (10) day period immediately
following the date of the performance of the work.
This lien may be enforced as other liens are enforced.
Sec. 2. A lien provided for in this chapter does not attach to
crops in the hands of an innocent purchaser or dealer in the usual
course of trade unless all of the notices provided for in section 1 of
this chapter have been given.
Chapter 13. Watchmaker and Jeweler Liens
Sec. 1. A person, firm, limited liability company, or corporation
engaged in performing work upon any watch, clock, or jewelry for
a price has a lien upon the watch, clock, or jewelry upon which the
person, firm, limited liability company, or corporation performs
the work for the amount of any account that may be due for the
work.
Sec. 2. (a) A lien provided for in section 1 of this chapter
includes the value or agreed price, if any, of all materials furnished
by the bailees for hire in connection with the work, whether added
to the article or otherwise.
(b) If the account remains unpaid for one hundred twenty (120)
days after completing the work, the bailees for hire may give
written notice to the owner, specifying the amount due and
informing the owner that:
(1) the payment of the amount within thirty (30) days will
entitle the owner to redeem the property;
(2) if the property is not redeemed within the thirty (30) day
period, the bailee for hire may give a second and similar
notice; and
(3) if the owner does not redeem the property not later than
fifteen (15) days after the second notice is given, the bailee for
hire may sell the article at a bona fide public or private sale to
satisfy the account.
(c) The proceeds of a sale under subsection (b), after paying the
expenses of the sale, shall be applied in liquidation of the
indebtedness secured by the lien and the balance, if any, shall be
paid over to the owner.
(d) The notice under subsection (b) may:
(1) be served by mail directed to the owner's last known
address; or
(2) be posted in two (2) public places in the town or city where
the property is located, if the owner or the owner's address is
not known. The notice must be written or printed.
Sec. 3. This chapter does not preclude the remedy of enforcing
the lien by any other action provided by law.
Chapter 14. Warehouseman's Lien
Sec. 1. (a) All persons, firms, limited liability companies, and
corporations engaged in the business of storing, warehousing, and
forwarding goods, wares, and merchandise have a lien upon all
goods, wares, and merchandise left with them for storage,
warehousing, or forwarding, to the extent of the:
(1) value of the services of storage, warehousing, or
forwarding;
(2) fair and reasonable charges for transporting the goods,
wares, and merchandise to the place of storage, warehousing,
or forwarding; and
(3) fair and reasonable charges for packing, crating, and
otherwise placing the goods, wares, and merchandise in
condition to be stored, warehoused, or forwarded.
(b) However, the goods subject to a lien under this section must
remain in the possession of the person, firm, limited liability
company, or corporation engaged in the business.
Sec. 2. (a) If goods, wares, or merchandise have remained in the
possession of a person, firm, limited liability company, or
corporation described in section 1 of this chapter for a period of at
least six (6) months without the payment of the charges due, the
goods, wares, or merchandise, or as much of the goods, wares, or
merchandise as is necessary, may be sold at public auction to pay
the amount of the lien and the expenses of the sale.
(b) Before a sale under subsection (a), the person, firm, limited
liability company, or corporation described in section 1 of this
chapter must give public notice of the time and place of the sale by
advertisements set up for a period of ten (10) days in three (3)
public places in the city or township in which the goods, wares, or
merchandise are located. One (1) of the advertisements must be:
(1) displayed in a conspicuous part of the place of business of
the person, firm, limited liability company, or corporation; or
(2) if the value of the article or articles is at least ten dollars
($10), published for three (3) weeks successively in a
newspaper published in the county or city in which the goods
are located.
(c) The notice given under subsection (b) must:
(1) state the time, place, and date of sale;
(2) give a general description of the goods to be sold; and
(3) state the name of the person to whom a receipt for the
goods was issued.
Sec. 3. The proceeds of a sale under section 2 of this chapter,
after payment of all lien charges, together with the expenses of
notice and sale, shall, if the owner is absent from the sale, be
deposited with the county treasurer of the county in which the sale
occurred. A receipt shall be issued for the proceeds. The proceeds
are subject to the order of the person legally entitled to the
proceeds.
Chapter 15. Electronic Home Entertainment Equipment Lien
Sec. 1. A person who engages in the business of altering or
repairing electronic home entertainment equipment has a lien on
that equipment to the extent of the reasonable value of labor
performed and materials used for which the person has not been
paid.
Sec. 2. If the lienholder has not been paid within sixty (60) days
after payment becomes overdue, the lienholder may sell the
equipment at auction if:
(1) the equipment is still in the lienholder's possession; and
(2) the lienholder complies with section 3 of this chapter.
Sec. 3. (a) Before a lienholder may sell the equipment, the
lienholder must, by certified mail, return receipt requested, notify
the owner and any person whose security interest is perfected by
filing concerning the following:
(1) The lienholder's intention to sell the equipment thirty (30)
days after the owner's receipt of the notice.
(2) A description of the equipment to be sold.
(3) The time and place of the sale.
(4) An itemized statement describing the value of labor and
materials provided and for which the lienholder has not been
paid.
(b) If upon receipt of the notice the owner informs the lienholder
in writing of the owner's objections regarding the quality of the
workmanship or an alleged overcharge, the lienholder must
foreclose by judicial proceeding.
(c) If there is no return of the receipt or if the postal service
returns the notice as being nondeliverable, the lienholder shall
publish notice of the lienholder's intention to sell the equipment in
a newspaper of general circulation in the place where the
equipment is being held for sale by the lienholder. The notice must
include a description of the equipment and name of its owner.
Sec. 4. If the sale is for a sum greater than the amount of the
lien, any excess shall be paid to the owner and any prior lienholder.
Chapter 16. Liens on Dies, Molds, Forms, and Patterns
Sec. 1. As used in this chapter, "customer" means any individual
or entity who contracts with or causes a fabricator to use a die,
mold, form, jig, or pattern to manufacture, assemble, or otherwise
make a product.
Sec. 2. As used in this chapter, "fabricator" means any
individual or entity, including a tool or die maker, who:
(1) manufactures or causes to be manufactured, assembles, or
improves a die, mold, form, jig, or pattern for a customer; or
(2) uses or contracts to use a die, mold, form, jig, or pattern to
manufacture, assemble, or otherwise make a product for a
customer.
Sec. 3. (a) A fabricator has a lien, dependent on possession, on
any die, mold, form, jig, or pattern in the fabricator's possession
belonging to the customer for the amount due the fabricator from
the customer for fabrication work performed with the die, mold,
form, jig, or pattern.
(b) A fabricator may retain possession of the die, mold, form,
jig, or pattern until the amount due is paid.
Sec. 4. (a) Before enforcing a lien under this chapter, notice in
writing must be given to the customer, whether delivered
personally or sent by certified mail to the last known address of the
customer.
(b) The notice required under subsection (a) must:
(1) state that a lien is claimed for the damages set forth or
attached for the amount due for fabrication work or for
making or improving the die, mold, form, jig, or pattern; and
(2) include a demand for payment.
Sec. 5. If the lienholder has not been paid the amount due within
sixty (60) days after the notice provided for in section 4 of this
chapter, the lienholder may sell the die, mold, form, jig, or pattern
at auction if:
(1) the die, mold, form, jig, or pattern is still in the
lienholder's possession; and
(2) the lienholder complies with section 6 of this chapter.
Sec. 6. (a) Before a lienholder may sell the die, mold, form, jig,
or pattern, the lienholder must, in writing, by certified mail, return
receipt requested, notify the customer and any person whose
security interest is perfected by filing of the following:
(1) The lienholder's intention to sell the die, mold, form, jig,
or pattern thirty (30) days after the customer's receipt of the
notice.
(2) A description of the die, mold, form, jig, or pattern to be
sold.
(3) The time and place of the sale.
(4) An itemized statement for the amount due.
(b) If upon receipt of this notice the customer informs the
lienholder in writing of the customer's objections regarding the
amount due, the lienholder may file a complaint to foreclose the
lien.
(c) If there is no return of the receipt of mailing, or if the postal
service returns the notice as being nondeliverable, the lienholder
must publish notice of the lienholder's intention to sell the die,
mold, form, jig, or pattern in a newspaper of general circulation in
the county where the die, mold, form, jig, or pattern is being held
for sale by the lienholder. The notice must include a description of
the die, mold, form, jig, or pattern and the name of the customer.
Sec. 7. If the sale is for a sum greater than the amount of the lien
plus all reasonable expenses of the sale, any excess shall be paid to
the customer and any prior lienholder.
Sec. 8. A sale may not be made under this chapter if the sale
would be in violation of any right of a customer under federal
patent or copyright law.
Sec. 9. This chapter does not bar a customer from bringing
action for replevin under IC 32-35-2.
Chapter 17. Corporate Employee's Liens
Sec. 1. Unless otherwise provided in this article, corporate
employee liens on personal property of a corporation for all work
and labor done and performed by the employees of a corporation
are governed by IC 32-28-12.
Chapter 18. Common Law Liens
business credit memorandum.
Sec. 2. This chapter may be cited as the "unclaimed property
act".
Sec. 3. As used in this chapter, "administrator" means the
administrator of the unclaimed property law of another state.
Sec. 4. As used in this chapter, "apparent owner" means a
person whose name appears on the records of a holder as the
person entitled to property held, issued, or owing by the holder.
Sec. 5. As used in this chapter, "business association" means the
following:
(1) A corporation.
(2) A limited liability company.
(3) A joint stock company.
(4) An investment company.
(5) A partnership.
(6) A business trust.
(7) A trust company.
(8) A savings association.
(9) A savings bank.
(10) An industrial bank.
(11) A land bank.
(12) A safe deposit company.
(13) A safekeeping depository.
(14) A bank.
(15) A banking organization.
(16) A financial organization.
(17) An insurance company.
(18) A mutual fund.
(19) A credit union.
(20) A utility.
(21) A for profit or nonprofit business association consisting
of two (2) or more individuals.
Sec. 6. As used in this chapter, "domicile" means the following:
(1) The state of incorporation of a corporation.
(2) The state of the principal place of business of a holder
other than a corporation.
Sec. 7. As used in this chapter, "financial institution" means a
depository financial institution that is organized or reorganized
under Indiana law, the law of another state, or United States law.
The term includes any of the following:
(1) A commercial bank.
(2) A trust company.
name and address of the payee.
Sec. 14. (a) As used in this chapter, "owner" means:
(1) a person who has a legal or an equitable interest in
property subject to this chapter; or
(2) the person's legal representative.
(b) The term includes the following:
(1) A depositor in the case of property that is a deposit.
(2) A beneficiary in the case of property that is a trust other
than a deposit in trust.
(3) A creditor, claimant, or payee in the case of other
property.
Sec. 15. As used in this chapter, "person" means an individual,
a corporation, a business trust, an estate, a trust, a partnership, an
association, a joint venture, a government, a governmental
subdivision, agency, or instrumentality, a public corporation, a
joint or common owner, or any other legal or commercial entity.
Sec. 16. (a) As used in section 47 of this chapter, "political
subdivision" includes any Indiana municipality, county, civil
township, civil incorporated city or town, public school
corporation, university or college supported in part by state funds,
or any other territorial subdivision of the state recognized or
designated in any law, including the following:
(1) Judicial circuits.
(2) A public utility entity not privately owned.
(3) A special taxing district or entity.
(4) A public improvement district authority or entity
authorized to levy taxes or assessments.
(b) The term does not include any retirement system supported
entirely or in part by the state.
Sec. 17. (a) This section does not apply to section 24 of this
chapter.
(b) As used in this chapter, "property" means an interest in
intangible personal property, except an unliquidated claim, and all
income or increment derived from the interest, including an
interest that is referred to as or evidenced by:
(1) money, a check, a draft, a deposit, an interest, or a
dividend;
(2) a credit balance, a customer overpayment, a gift
certificate, a security deposit, a refund, a credit
memorandum, an unpaid wage, an unused airline ticket,
mineral proceeds, or an unidentified remittance;
(3) stock and other ownership interest in a business
association;
(4) a bond, debenture, note, or other evidence of indebtedness;
(5) money deposited to redeem stocks, bonds, coupons, and
other securities or to make distributions;
(6) an amount due and payable under the terms of an
insurance policy; and
(7) an amount distributable from a trust or custodial fund
established under a plan to provide:
(A) health;
(B) welfare;
(C) pension;
(D) vacation;
(E) severance;
(F) retirement;
(G) death;
(H) stock purchase;
(I) profit sharing;
(J) employee savings;
(K) supplemental unemployment insurance; or
(L) similar;
benefits.
(c) The term does not include transactions between business
entities and:
(1) a motor carrier (as defined in IC 8-2.1-17-10); or
(2) a carrier (as defined in 49 U.S.C. 13102(3)).
Sec. 18. As used in this chapter, "state" means a state of the
United States, the District of Columbia, the Commonwealth of
Puerto Rico, or any territory or insular possession subject to the
jurisdiction of the United States.
Sec. 19. As used in this chapter, "utility" means a person that
owns or operates for public use any plant, equipment, property,
franchise, or license for the transmission of communications or for
the production, storage, transmission, sale, delivery, or furnishing
of electricity, water, steam, or gas.
Sec. 20. (a) For purposes of this section, an indication of interest
in the property by the owner:
(1) does not include a communication with an owner by an
agent of the holder who has not identified in writing the
property to the owner; and
(2) includes the following:
(A) With respect to an account or underlying shares of
stock or other interest in a business association or financial
organization:
(i) the cashing of a dividend check or other instrument of
payment received; or
(ii) evidence that the distribution has been received if the
distribution was made by electronic or similar means.
(B) A deposit to or withdrawal from a bank account.
(C) The payment of a premium with respect to a property
interest in an insurance policy.
(D) The mailing of any correspondence in writing from a
financial institution to the owner, including:
(i) a statement;
(ii) a report of interest paid or credited; or
(iii) any other written advice;
relating to a demand, savings, or matured time deposit
account, including a deposit account that is automatically
renewable, or any other account or other property the
owner has with the financial institution if the
correspondence is not returned to the financial institution
for nondelivery.
(E) Any activity by the owner that concerns:
(i) another demand, savings, or matured time deposit
account or other account that the owner has with a
financial institution, including any activity by the owner
that results in an increase or decrease in the amount of
any other account; or
(ii) any other relationship with the financial institution,
including the payment of any amounts due on a loan;
if the mailing address for the owner contained in the
financial institution's books and records is the same for
both an inactive account and for a related account.
(b) The application of an automatic premium loan provision or
other nonforfeiture provision contained in an insurance policy does
not prevent the policy from maturing or terminating if the insured
has died or the insured or the beneficiary of the policy otherwise
has become entitled to the proceeds before the depletion of the cash
surrender value of the policy by the application of those provisions.
(c) Property that is held, issued, or owed in the ordinary course
of a holder's business is presumed abandoned if the owner or
apparent owner has not communicated in writing with the holder
concerning the property or has not otherwise given an indication
of interest in the property during the following times:
(1) For traveler's checks, fifteen (15) years after issuance.
apparent owner.
(12) For property in an individual retirement account or
another account or plan that is qualified for tax deferral
under the Internal Revenue Code, three (3) years after the
earliest of:
(A) the actual date of the distribution or attempted
distribution;
(B) the distribution date as stated in the plan or trust
agreement governing the plan; or
(C) the date specified in the Internal Revenue Code by
which distribution must begin in order to avoid a tax
penalty.
(13) For a demand, savings, or matured time deposit,
including a deposit that is automatically renewable, five (5)
years after maturity or five (5) years after the date of the last
indication by the owner of interest in the property, whichever
is earlier. Property that is automatically renewable is
considered matured for purposes of this section upon the
expiration of its initial period, unless the owner has consented
to a renewal at or about the time of the renewal and the
consent is in writing or is evidenced by a memorandum or
other record on file with the holder.
(14) For all other property, the earlier of five (5) years after:
(A) the owner's right to demand the property; or
(B) the obligation to pay or distribute the property;
arose.
(d) Property is payable or distributed for purposes of this
chapter notwithstanding the owner's failure to make demand or
present an instrument or a document otherwise required to receive
payment.
Sec. 21. Except as provided in another state statute, property
located in Indiana or another state is subject to the custody of this
state as unclaimed property if the property is presumed abandoned
and if:
(1) the last known address of the apparent owner, as shown on
the records of the holder, is in Indiana;
(2) the records of the holder do not reflect the identity of the
person entitled to the property and it is established that the
last known address of the person entitled to the property is in
Indiana;
(3) the records of the holder do not reflect the last known
address of the apparent owner and it is established that:
report required under subsection (a) must be verified and must
include the following:
(1) Except with respect to traveler's checks and money orders,
the apparent owner's:
(A) name, if known;
(B) last known address, if any; and
(C) Social Security number or taxpayer identification
number, if readily ascertainable.
(2) In the case of the contents of a safe deposit box or other
safekeeping depository of tangible property:
(A) a description of the property;
(B) the place where the property is held and may be
inspected by the attorney general; and
(C) any amount that is owed to the holder.
(3) The date:
(A) the property became payable, demandable, or
returnable; and
(B) of the last transaction with the apparent owner with
respect to the property.
(4) Other information that the attorney general requires by
rules adopted under IC 4-22-2 as necessary for the
administration of this chapter.
(c) If:
(1) a holder of property that is presumed abandoned and that
is subject to custody as unclaimed property is a successor to
another person who previously held the property for the
apparent owner; or
(2) the holder has changed its name while holding the
property;
the holder shall file with the report required by subsection (a) the
former names of the holder, if any, and the known name and
address of any previous holder of the property.
(d) The report required by subsection (a) must be filed as
follows:
(1) The report of a life insurance company must be filed
before May 1 of each year for the calendar year preceding the
year in which the report is filed.
(2) All other holders must file the report before November 1
of each year to cover the year preceding July 1 of the year in
which the report is filed.
(e) The holder of property that is presumed abandoned and that
is subject to custody as unclaimed property under this chapter
shall, not more than one hundred twenty (120) days or less than
sixty (60) days before filing the report required by subsection (a),
send written notice to the apparent owner of the property stating
that the holder is in possession of property subject to this chapter
if:
(1) the holder has a record of an address for the apparent
owner that the holder's records do not show as inaccurate;
(2) the claim of the apparent owner is not barred by the
statute of limitations; and
(3) the value of the property is at least fifty dollars ($50).
(f) Before the date of filing the report required by subsection (a),
the holder may request the attorney general to extend the time for
filing the report. The attorney general may grant the extension
upon a showing of good cause. The holder, upon receipt of the
extension, may make an interim payment on the amount the holder
estimates will ultimately be due. The making of an interim
payment under this subsection suspends the accrual of interest on
the amount.
(g) The holder shall file with the report an affidavit stating that
the holder has complied with this section.
Sec. 27. (a) Except as provided in subsections (b) and (c), on the
date a report is filed under section 26 of this chapter, the holder
shall pay or deliver to the attorney general the property that is
described in the report as unclaimed.
(b) In the case of an automatically renewable deposit, if at the
time of delivery under subsection (a) a penalty or forfeiture in the
payment of interest would result from the delivery of the property,
the time for delivery is extended until the earliest date upon which
a penalty or forfeiture would not result.
(c) Tangible property held in a safe deposit box or other
safekeeping depository may not be delivered to the attorney
general until one hundred twenty (120) days after the date the
report describing the property under section 26 of this chapter is
filed.
(d) If the property reported to the attorney general is a security
or security entitlement under IC 26-1-8.1, the attorney general may
make an endorsement, instruction, or entitlement order on behalf
of the apparent owner to invoke the duty of the issuer or its
transfer agent or the securities intermediary to transfer or dispose
of the security or the security entitlement in accordance with
IC 26-1-8.1.
(e) If the holder of property reported to the attorney general is
the issuer of a certificated security, the attorney general has the
right to obtain a replacement certificate under IC 26-1-8.1-405,
and an indemnity bond is not required.
(f) An issuer, the holder, and any transfer agent or other person
acting under the instructions of and on behalf of the issuer in
accordance with this section are not liable to the apparent owner
and must be indemnified against the claims of any person in
accordance with section 29 of this chapter.
Sec. 28. (a) Except as provided in subsection (e), the attorney
general shall publish a notice not later than November 30 of the
year immediately following the year in which unclaimed property
has been paid or delivered to the attorney general.
(b) Except as provided in subsection (c), the notice required by
subsection (a) must be published at least once each week for two (2)
successive weeks in a newspaper of general circulation published
in the county in Indiana of the last known address of any person
named in the notice.
(c) If the holder:
(1) does not report an address for the apparent owner; or
(2) reports an address outside Indiana;
the notice must be published in the county in which the holder has
its principal place of business within Indiana or any other county
that the attorney general may reasonably select.
(d) The advertised notice required by this section must be in a
form that, in the judgment of the attorney general, will attract the
attention of the apparent owner of the unclaimed property and
must contain the following information:
(1) The name of each person appearing to be an owner of
property that is presumed abandoned, as set forth in the
report filed by the holder.
(2) The last known address or location of each person
appearing to be an owner of property that is presumed
abandoned, if an address or a location is set forth in the
report filed by the holder.
(3) A statement explaining that the property of the owner is
presumed to be abandoned and has been taken into the
protective custody of the attorney general.
(4) A statement that information about the abandoned
property and its return to the owner is available, upon
request, from the attorney general, to a person having a legal
or beneficial interest in the property.
(e) The attorney general is not required to publish the following
in the notice:
(1) Any item with a value of less than fifty dollars ($50).
(2) Information concerning a traveler's check, money order,
or any similar instrument.
Sec. 29. (a) For purposes of this section, payment or delivery is
made in good faith if:
(1) payment or delivery was made in a reasonable attempt to
comply with this chapter;
(2) the holder was not a fiduciary in breach of trust with
respect to the property and had a reasonable basis for
believing, based on the facts known at the time, that the
property was abandoned; and
(3) there is not a showing that the records under which the
delivery was made did not meet reasonable commercial
standards of practice in the industry.
(b) Upon the payment or delivery of property to the attorney
general, the state assumes custody and responsibility for the
safekeeping of the property. A holder who pays or delivers
property to the attorney general in good faith is relieved of all
liability with respect to the property after the payment and
delivery.
(c) A holder who has paid money to the attorney general under
this chapter may later make payment to a person who, in the
opinion of the holder, appears to be entitled to the payment. The
attorney general shall promptly reimburse the holder for the
payment without imposing a fee or other charge if the holder files
proof of payment and proof that the payee was entitled to the
payment. If any reimbursement is sought for a payment made on
a negotiable instrument, including a traveler's check or money
order, the holder must be reimbursed upon filing proof that:
(1) the instrument was duly presented; and
(2) the payment was made to a person who appeared to be
entitled to the payment.
The holder must be reimbursed for the payment made even if the
payment was made to a person whose claim was barred under
section 41 of this chapter.
(d) A holder who has delivered property, including a certificate
of any interest in a business association, but not including money,
to the attorney general under this chapter may reclaim the
property without paying a fee or other charge if the property is still
in the possession of the attorney general, upon filing proof that the
apparent owner has claimed the property from the holder.
for sale. A sale held under this section must be preceded, at least
three (3) weeks before the sale, by one (1) publication of notice in
a newspaper of general circulation published in the county in
which the property is to be sold.
(b) If the property is of a type that is customarily sold on a
recognized market or that is subject to widely distributed standard
price quotations, and if, in the opinion of the attorney general, the
probable cost of a public sale to the highest bidder would:
(1) exceed the value of the property; or
(2) result in a net loss;
the attorney general may sell the property privately, without notice
by publication, at or above the prevailing price for the property at
the time of the sale.
(c) Securities shall be sold as soon as reasonably possible
following receipt. If a valid claim is made for any securities in the
possession of the attorney general, the attorney general may:
(1) transfer the securities to the claimant; or
(2) pay the claimant the value of the securities as of the date
the securities were delivered to the attorney general.
Notice of the sale of securities is not required. Securities listed on
an established stock exchange must be sold at prices prevailing at
the time of the sale on the stock exchange. Other securities may be
sold over the counter at prices prevailing at the time of sale or by
any other method the attorney general considers reasonable.
(d) A purchaser of property at a sale conducted by the attorney
general under this chapter takes the property free of all claims of
the owner or previous holder and of all persons claiming through
or under them. The attorney general shall execute all documents
necessary to complete the transfer of ownership.
(e) A person does not have a claim against the attorney general
for any appreciation of property after the property is delivered to
the attorney general, except in a case of intentional misconduct or
malfeasance by the attorney general.
Sec. 32. (a) The property custody fund is established. Any
money received by the attorney general under section 39(b) of this
chapter shall be delivered to the treasurer of state for deposit in the
property custody fund. Subject to any claim of the owner allowed
by the attorney general under this chapter, the money shall be held
in the property custody fund for safekeeping until the date the
money is presumed abandoned under sections 20 and 24 of this
chapter and transferred to the abandoned property fund
established by section 33 of this chapter in accordance with this
section.
(b) The attorney general shall specify in the notice required by
section 28 of this chapter the latest date the apparent owner may
claim the property from the property custody fund. Notice must
also be mailed to each person having a last known address listed in
the report to the attorney general filed under section 26 of this
chapter.
(c) Except as provided in subsection (d), not later than
twenty-five (25) days after the date specified in the notice published
under subsection (b), the treasurer of state, upon order of the
attorney general, shall transfer the principal of the property to
which the notice relates from property custody fund to the
abandoned property fund.
(d) The attorney general may allow a claim of the apparent
owner before the principal of the property in the property custody
fund is transferred to the abandoned property fund under
subsection (c). After the elapse of the twenty-five (25) days referred
to in subsection (c), the funds are considered abandoned property
instead of property received under section 39(b) of this chapter for
purposes of this chapter.
Sec. 33. (a) The abandoned property fund is established. Except
as provided in subsection (b) and section 32 of this chapter, money
received by the attorney general under this chapter, including the
proceeds from the sale of abandoned property under section 31 of
this chapter, shall be transferred by the attorney general to the
treasurer of state for deposit in the abandoned property fund.
(b) Money received under this chapter that was originally
drawn from a fund under the control of a local unit of government
shall be transferred to the fund from which the money was
originally drawn.
Sec. 34. (a) Except as provided in section 42(d) of this chapter,
the treasurer of state shall, on order of the attorney general, pay
the necessary costs of the following:
(1) Selling abandoned property.
(2) Mailing notices.
(3) Making publications required by this chapter.
(4) Paying other operating expenses and administrative
expenses, including:
(A) salaries and wages reasonably incurred by the attorney
general in the administration and enforcement of this
chapter; and
(B) costs incurred in examining records of the holders of
property and in collecting the property from the holders.
(b) If the balance of the principal of the abandoned property
fund established by section 33 of this chapter exceeds five hundred
thousand dollars ($500,000), the treasurer of state may, and at least
once each fiscal year shall, transfer to the common school fund of
the state the balance of the principal of the abandoned property
fund that exceeds five hundred thousand dollars ($500,000).
(c) If a claim is allowed or a refund is ordered under this
chapter that is more than five hundred thousand dollars
($500,000), the treasurer of state shall transfer from the state
general fund sufficient money to make prompt payment of the
claim. There is annually appropriated to the treasurer of state
from the state general fund the amount of money sufficient to
implement this subsection.
(d) Before making a deposit into the abandoned property fund,
the attorney general shall record the following:
(1) The name and last known address of each person
appearing from the holder's reports to be entitled to the
abandoned property.
(2) The name and last known address of each insured person
or annuitant.
(3) The number, the name of the corporation, and the amount
due concerning any policy or contract listed in the report of
a life insurance company.
(e) Except as provided in subsection (f), earnings on the
property custody fund and the abandoned property fund shall be
credited to each fund.
(f) On July 1 of each year, the interest balance in the property
custody fund established by section 32 of this chapter and the
interest balance in the abandoned property fund shall be
transferred to the state general fund.
Sec. 35. (a) The treasurer of state shall keep safely the money in
the property custody fund established by section 32 of this chapter
and the abandoned property fund established by section 33 of this
chapter. The money may not be transferred or assigned except as
specifically authorized and directed in this chapter. At any time,
upon certification of the attorney general and the treasurer of state
that there is cash on deposit in either fund in excess of the cash
requirements of the fund anticipated for the next succeeding
semiannual fiscal period, the state board of finance may authorize
the treasurer of state to invest and reinvest the money as
authorized for other funds of the state by IC 5-13, including the
purchase of certificates of deposit. However, an investment may
not be made in a certificate of deposit with a maturity or
redemption date that is more than six (6) months after the date of
purchase, subscription, or deposit. Any interest or other accretions
derived from investments made under this subsection become a
part of the fund from which the money was invested.
(b) A sufficient amount of money from the abandoned property
fund is appropriated to the treasurer of state to pay claims, costs,
and expenses ordered paid from the abandoned property fund
under this chapter.
(c) A sufficient amount of money from the property custody
fund is annually appropriated to the treasurer of state to pay
claims ordered paid from the property custody fund under this
chapter.
Sec. 36. (a) A person, except another state, claiming an interest
in property paid or delivered to the attorney general may file a
claim on a form prescribed by the attorney general and verified by
the claimant.
(b) Not later than ninety (90) days after a claim is filed under
subsection (a), the attorney general shall:
(1) consider the claim; and
(2) give written notice to the claimant that the claim is
granted or that the claim is denied in whole or in part.
(c) Not later than thirty (30) days after a claim is allowed, the
attorney general shall pay over or deliver to the claimant the
property, or the net proceeds of the sale of property if the property
has been sold by the attorney general, together with any additional
amount to which the claimant may be entitled under section 30 of
this chapter.
(d) A holder who pays the owner for property that has been
delivered to the state and that, if claimed from the attorney general
by the owner, would be subject to an increment under section 30 of
this chapter shall recover the amount of the increment from the
attorney general.
(e) A person may file a claim under subsection (a) at any time
within twenty-five (25) years after the date on which the property
was first presumed abandoned under this chapter, notwithstanding
the expiration of any other time specified by statute, contract, or
court order during which an action or a proceeding may be
commenced or enforced to obtain payment of a claim for money or
recovery of property.
Sec. 37. (a) At any time within twenty-five (25) years after the
date on which the property was presumed abandoned under this
chapter, notwithstanding the expiration of any other time specified
by statute, contract, or court order during which an action or
proceeding may be commenced or enforced to obtain payment of
a claim for money or recovery of property, another state may
recover the property if any of the following subdivisions apply:
(1) All of the following apply:
(A) The property was delivered to the custody of this state
because the records of the holder did not reflect the last
known address of the apparent owner when the property
was presumed abandoned under this chapter.
(B) The other state establishes that the last known address
of the apparent owner or other person entitled to the
property was in that state.
(C) Under the laws of that state the property escheated to
or was subject to a claim of abandonment by that state.
(2) The property was paid or delivered to the custody of this
state because the laws of the other state did not provide for
the escheat or custodial taking of the property, and under the
laws of that state subsequently enacted, the property has
escheated to or become subject to a claim of abandonment by
that state.
(3) All of the following apply:
(A) The records of the holder did not accurately identify
the owner of the property.
(B) The last known address of the owner is in the other
state.
(C) Under the laws of the other state, the property
escheated to or was subject to a claim of abandonment by
that state.
(4) The property was subject to custody by this state under
section 21(7) of this chapter and, under the laws of the state of
domicile of the holder, the property has escheated to or
become subject to a claim of abandonment by that state.
(5) All of the following apply:
(A) The property is a sum payable on a traveler's check,
money order, or similar instrument that was delivered into
the custody of this state under section 21(7) of this chapter.
(B) The instrument was purchased in the other state.
(C) Under the laws of the other state, the property
escheated to or is subject to a claim of abandonment by
that state.
least ninety (90) days before the examination.
(d) If an examination of the records of a person under
subsection (b) results in the disclosure of property reportable and
deliverable under this chapter, the attorney general may assess the
cost of the examination against the holder at the rate of two
hundred dollars ($200) a day for each examiner. The cost of an
examination of the records of an agent of a business association
under subsection (c) may be imposed only against the business
association.
(e) If a holder fails to maintain the records required under
section 43 of this chapter and the available records of the holder
are insufficient to permit the preparation of a report, the attorney
general may require the holder to report and pay an amount that
may reasonably be estimated from any available records of the
holder or on the basis of any other reasonable estimating technique
that the attorney general may select.
Sec. 43. (a) Except as provided in subsection (b) and subject to
any rules adopted by the attorney general under IC 4-22-2, a
holder required to file a report under section 26 of this chapter for
any property for which the holder has the last known address of
the owner shall maintain a record of the information required to
be in the report for at least ten (10) years after the property
becomes reportable.
(b) A business association that sells in Indiana traveler's checks,
money orders, or other similar written instruments, other than
third party bank checks on which the business association is
directly liable, or that provides those instruments to others for sale
in Indiana, shall maintain a record of outstanding instruments
indicating the state and date of issue for at least three (3) years
after the date the property is reportable.
Sec. 44. (a) The attorney general may enter into an agreement
with other states to exchange information relating to unclaimed
property or the possible existence of unclaimed property. The
agreements may permit other states, or a person acting on behalf
of a state, to examine records as authorized in section 42 of this
chapter. The attorney general may, by rule, require the reporting
of information needed to enable compliance with any agreements
made under this section and prescribe the form.
(b) The attorney general may join with other states to seek
enforcement of this chapter against a person who is or may be
holding property reportable under this chapter.
(c) At the request of another state, the attorney general may
commence an action on behalf of the administrator of the other
state to enforce in Indiana the unclaimed property laws of the
other state against a holder of property subject to escheat or a
claim of abandonment by the other state, if the other state has
agreed to pay expenses incurred by the attorney general in
maintaining the action.
(d) The attorney general may request that the attorney general
of another state or any other attorney commence an action in that
state on behalf of the attorney general. The attorney general may
retain another attorney to commence an action in Indiana on
behalf of the attorney general. This state shall pay all expenses,
including attorney's fees, in maintaining an action under this
subsection. With the attorney general's approval, the expenses and
attorney's fees may be paid from money received under this
chapter. The attorney general may agree to pay the person
bringing the action attorney's fees based in whole or in part on a
percentage of the value of any property recovered in the action.
Expenses or attorney's fees paid under this subsection may not be
deducted from the amount that is subject to the claim by the owner
under this chapter.
(e) Any documents and working papers obtained or compiled by
the attorney general or the attorney general's agents, employees,
or designated representatives in the course of conducting an audit
under section 42 of this chapter are confidential and are not public
records except:
(1) when used by the attorney general to maintain an action
to collect unclaimed property or otherwise enforce this
chapter;
(2) when used in joint audits conducted with or under
agreements with other states, the federal government, or
other governmental entities; or
(3) under subpoena or court order.
The documents and working papers may be disclosed to the
abandoned property office of another state for that state's use in
circumstances equivalent to those described in this subsection if the
other state is bound to keep the documents and papers confidential.
(f) The attorney general's final completed audit reports are
public records, available for inspection and copying under
IC 5-14-3. A final report may not contain confidential
documentation or working papers unless an exception under
subsection (e) applies.
Sec. 45. (a) A holder that fails to pay or deliver the property
within the time required by this chapter shall pay to the attorney
general interest for the time the holder is delinquent. Interest shall
accrue under this subsection at the following rates:
(1) The annual interest rate for a period of one (1) year or less
after the time required by this chapter for payment or
delivery of the property is:
(A) the one (1) year Treasury Bill rate published in the
Wall Street Journal or its successor on the third Tuesday of
the month in which the remittance was due; plus
(B) one (1) percentage point.
(2) The interest rate for each year after the initial year to
which subdivision (1) applies is:
(A) the one (1) year Treasury Bill rate published in the
Wall Street Journal or its successor on the third Tuesday of
the month immediately preceding the anniversary; plus
(B) one (1) percentage point.
As used in this subdivision, "anniversary" means the
anniversary of the date on which the property was originally
due to be paid or delivered under this chapter.
(b) A holder who fails to render any report or perform other
duties required under this chapter shall pay a civil penalty of one
hundred dollars ($100) for each day for the first fifteen (15) days
that the report is withheld or the duty not performed. After the
first fifteen (15) days, the holder shall pay a civil penalty of the
greater of:
(1) one hundred dollars ($100) a day for each additional day,
not to exceed five thousand dollars ($5,000); or
(2) ten percent (10%) of the value of the property at issue, not
to exceed five thousand dollars ($5,000).
Upon a showing by the holder of good cause sufficient in the
discretion of the attorney general to excuse the failure, the attorney
general may waive the penalty in whole or in part.
(c) A holder who knowingly or intentionally fails to pay or
deliver property to the attorney general as required under this
chapter shall pay an additional civil penalty equal to ten percent
(10%) of the value of the property that must be paid or delivered
under this chapter. If the attorney general believes it is in the best
interest for the administration of this chapter, the attorney general
may waive the penalty in whole or in part.
(d) A holder who willfully refuses, after written demand by the
attorney general, to pay or deliver property to the attorney general
as required under this chapter commits a Class B misdemeanor.
a clerk for at least five (5) years after being distributable without
being claimed by the person entitled to the money.
(b) The attorney general may collect all money related to child
support that remains in the office of a clerk for at least ten (10)
years after being distributable without being claimed by the person
entitled to the money.
(c) Clerks shall deliver the money described in subsections (a)
and (b) to the attorney general upon demand, and the attorney
general shall:
(1) make a record of the money collected; and
(2) turn it over to the treasurer of state.
(d) The treasurer of state shall deposit the money in the
abandoned property fund established by IC 32-34-1-31.
Sec. 3. (a) Within five (5) years after a sum of money is
deposited in the abandoned property fund in accordance with
section 2(d) of this chapter, a person may make a claim to the
money by filing an application in the court whose clerk originally
held the sum. The claimant shall give at least ten (10) days prior
notice of the proceedings on the claim to the attorney general, who
may appear in the proceedings to represent the interests of the
state.
(b) If the proof presented by the claimant satisfies the court that
the claim is valid, the court shall order payment of the money to
the claimant. If presented with a certified copy of the court's order,
the attorney general shall direct the treasurer to return the sum of
money to the clerk, who shall present the money to the claimant.
Sec. 4. (a) If a sum of money remains in the abandoned property
fund for at least five (5) years after the date the money is deposited
in the fund under section 2(d) of this chapter without any order
directing the return of the money:
(1) title to the sum vests in and escheats to the state; and
(2) the sum shall be distributed as part of the common school
fund.
(b) Any claimant who does not file an application with the court
within five (5) years after the sum is deposited in the unclaimed
funds account is barred from asserting a claim.
Sec. 5. The attorney general may bring an action against a clerk
who fails to deliver a sum of money to the attorney general upon
demand under section 2 of this chapter. In that action, the attorney
general may recover from the clerk, individually or upon the
clerk's bond, the sum demanded plus a ten percent (10%) penalty.
The sum demanded plus the penalty is collectible without relief
from valuation or appraisement laws.
Chapter 4. Unclaimed Property in Possession of Repossessors of
Motor Vehicles or Watercraft
Sec. 1. As used in this chapter, "creditor" means the person who
has lawfully repossessed a vehicle.
Sec. 2. As used in this chapter, "debtor" means the person from
whom a vehicle is repossessed.
Sec. 3. As used in this chapter, "value" means the amount of
money that a reasonable person would estimate a willing buyer
would pay for an item of personal property.
Sec. 4. As used in this chapter, "vehicle" means a motor vehicle
or a watercraft.
Sec. 5. (a) If items of personal property having an estimated
aggregate value of at least ten dollars ($10) are discovered within
a vehicle that has been lawfully repossessed, the creditor must
notify the debtor as follows:
(1) The notice must be written.
(2) The notice must list each item of personal property having
an estimated value greater than five dollars ($5).
(3) The notice must include the estimated aggregate value of
all of the items of personal property.
(4) The notice must include a statement that if the debtor does
not claim the property within thirty (30) days after the notice
was sent, the personal property will become the property of
the creditor with no right of redemption by the debtor.
(5) The notice must be sent by certified mail.
(b) If the debtor does not claim the items of personal property
included in a notice given under subsection (a) not more than thirty
(30) days after the notice was mailed, the items of personal
property become the property of the creditor with no right of
redemption by the debtor.
Sec. 6. If items of personal property having an aggregate value
of less than ten dollars ($10) are discovered within a vehicle that
has been lawfully repossessed, the items of personal property are
the property of the creditor with no right of redemption by the
debtor.
Chapter 5. Property Loaned to Museums
Sec. 1. As used in this chapter, "lender" means a person whose
name appears on the records of a museum as the person legally
entitled to, or claiming to be legally entitled to, property held by
the museum.
Sec. 2. As used in this chapter, "lender's address" means the
most recent address of a lender as shown on the museum's records
pertaining to property on loan from the lender.
Sec. 3. As used in this chapter, "loan" means a deposit of
property not accompanied by a transfer of title to the property.
Sec. 4. As used in this chapter, "museum" means an institution
located in Indiana that:
(1) is operated by a person primarily for education, scientific,
historic preservation, or aesthetic purposes; and
(2) owns, borrows, cares for, exhibits, studies, archives, or
catalogs property.
Sec. 5. As used in this chapter, "permanent loan" means a loan
of property to a museum for an indefinite period.
Sec. 6. As used in this chapter, "person" means an individual, a
nonprofit corporation, a trustee or legal representative, the state,
a political subdivision (as defined in IC 36-1-2-13), an agency of the
state or a political subdivision, or a group of those persons acting
in concert.
Sec. 7. As used in this chapter, "property" means a tangible
object under a museum's care that has intrinsic historic, artistic,
scientific, or cultural value.
Sec. 8. As used in this chapter, "undocumented property"
means property in the possession of a museum for which the
museum cannot determine the owner by reference to the museum's
records.
Sec. 9. A notice given by a museum under this chapter must be
mailed to the lender's last known address by certified mail. Proper
notice is given if the museum receives proof of receipt of the notice
not more than thirty (30) days after the notice was mailed.
Sec. 10. (a) A museum may give notice by publication under this
chapter if the museum does not:
(1) know the identity of the lender;
(2) have an address last known for the lender; or
(3) receive proof of receipt of the notice by the person to
whom the notice was sent within thirty (30) days after the
notice was mailed.
(b) Notice by publication under subsection (a) must be given at
least once a week for two (2) consecutive weeks in a newspaper of
general circulation in:
(1) the county in which the museum is located; and
(2) the county of the lender's last known address, if the
identity of the lender is known.
Sec. 11. In addition to any other information that may be
required or seem appropriate, a notice given by a museum under
this chapter must contain the following:
(1) The name of the lender, if known.
(2) The last known address of the lender.
(3) A brief description of the property on loan.
(4) The date of the loan, if known.
(5) The name of the museum.
(6) The name, address, and telephone number of the person or
office to be contacted regarding the property.
Sec. 12. A museum may acquire title in the following manner to
property that is on permanent loan to the museum or that was
loaned for a specified term that has expired:
(1) The museum must give notice that the museum is
terminating the loan of the property.
(2) The notice that the loan of the property is terminated must
include a statement containing substantially the following
information:
"The records at (name of museum) indicate that you have
property on loan to it. The museum hereby terminates the
loan. If you desire to claim the property, you must contact
the museum, establish your ownership of the property, and
make arrangements to collect the property. If you do not
contact the museum, you will be considered to have
donated the property to the museum.".
(3) If the lender does not respond to the notice of termination
within one (1) year after receipt of the notice by filing a notice
of intent to preserve an interest in the property on loan, clear
and unrestricted title is transferred to the museum three
hundred sixty-five (365) days after the notice was received.
Sec. 13. A museum may acquire title to undocumented property
held by the museum for at least seven (7) years as follows:
(1) The museum must give notice that the museum is asserting
title to the undocumented property.
(2) The notice that the museum is asserting title to the
property must include a statement containing substantially
the following information:
"The records of (name of museum) fail to indicate the
owner of record of certain property in its possession. The
museum hereby asserts title to the following property:
(general description of property). If you claim ownership
or other legal interest in this property, you must contact
the museum, establish ownership of the property, and
make arrangements to collect the property. If you fail to do
so within three (3) years, you will be considered to have
waived any claim you may have had to the property.".
(3) If a lender does not respond to the notice within three (3)
years by giving a written notice of intent to retain an interest
in the property on loan, the museum's title to the property
becomes absolute.
Sec. 14. Unless there is a written loan agreement to the contrary,
a museum may apply conservation measures to property on loan
to the museum without the lender's permission or formal notice:
(1) if:
(A) action is required to protect the property on loan or
other property in the custody of the museum; or
(B) the property on loan is a hazard to the health and
safety of the public or the museum staff; and
(2) if:
(A) the museum is unable to reach the lender at the
lender's last known address within three (3) days before
the time the museum determines action is necessary; or
(B) the lender does not respond or will not agree to the
protective measures the museum recommends and does not
terminate the loan and retrieve the property within three
(3) days.
Sec. 15. If a museum applies conservation measures to property
under section 14 of this chapter or with the agreement of the
lender, unless the agreement provides otherwise, the museum:
(1) acquires a lien on the property in the amount of the costs
incurred by the museum; and
(2) is not liable for injury to or loss of the property if the
museum:
(A) had a reasonable belief at the time the action was taken
that the action was necessary to protect the property on
loan or other property in the custody of the museum, or
that the property on loan was a hazard to the health and
safety of the public or the museum staff; and
(B) exercised reasonable care in the choice and application
of conservation measures.
Sec. 16. Property that:
(1) is found in or on property controlled by the museum;
(2) is from an unknown source; and
(3) might reasonably be assumed to have been intended as a
gift to the museum;
transferred to the fabricator under this chapter.
(b) If a customer:
(1) does not take possession of the particular die, mold, form,
jig, or pattern within ninety (90) days after the date on which
the notice was sent under subsection (a); or
(2) does not make other contractual arrangements with the
fabricator for taking possession or for storage of the die,
mold, form, jig, or pattern;
all rights, title, and interest of the customer to the mold transfer by
operation of this chapter to the fabricator for the purpose of
destruction. The fabricator may then destroy the die, mold, or
form.
Sec. 7. Nothing in this chapter affects:
(1) a written agreement between the fabricator and customer
concerning possession of the die, mold, form, jig, or pattern;
or
(2) any right of the customer under federal patent or
copyright law or any state or federal law pertaining to unfair
competition.
Chapter 7. Transfer of Property Interests in Silk Screens
Sec. 1. (a) This chapter does not apply where a silk screen maker
or silk screen user retains title to and possession of a silk screen.
(b) This chapter does not grant a customer any rights or title to
or interest in a silk screen.
Sec. 2. As used in this chapter, "customer" means an individual
or entity that causes another individual or entity to make a silk
screen or to use a silk screen to manufacture, assemble, or make a
product.
Sec. 3. As used in this chapter, "silk screen maker" means an
individual or entity that makes a silk screen.
Sec. 4. As used in this chapter, "silk screen user" means an
individual or entity that uses a silk screen to manufacture,
assemble, or make a product.
Sec. 5. If a customer does not take possession of the customer's
silk screen from a silk screen maker or silk screen user within three
(3) years after the silk screen's last use, the customer's rights, title,
and interest in the customer's silk screen are transferred to the silk
screen maker or silk screen user pursuant to the procedures of this
chapter for purposes of destruction of the silk screen.
Sec. 6. (a) After the three (3) year period specified in section 5
of this chapter has expired, a silk screen maker or silk screen user
may choose to have all rights, title, and interest in any silk screen
transferred to the silk screen maker or silk screen user for
purposes of destruction. A silk screen maker or silk screen user
seeking a transfer under this subsection must send written notice
by registered mail, return receipt requested, to:
(1) the customer's address as set out in any written agreement
between the silk screen maker or silk screen user and the
customer; and
(2) the customer's last known address;
indicating that the silk screen maker or silk screen user intends to
terminate the customer's rights, title, and interest by having all the
rights, title, and interest transferred to the silk screen maker or silk
screen user under this chapter.
(b) If a customer:
(1) does not take possession of the particular silk screen
within ninety (90) days after the date on which the notice was
sent under subsection (a); or
(2) does not make other contractual arrangements with the
silk screen maker or silk screen user for taking possession or
for storage of the silk screen;
all rights, title, and interest of the customer to the silk screen
transfer by operation of this chapter to the silk screen maker or
silk screen user for the purpose of destruction. The silk screen
maker or silk screen user may then destroy the silk screen.
Sec. 7. This chapter does not affect:
(1) a written agreement between the silk screen maker or silk
screen user and the customer concerning possession of the silk
screen; or
(2) any rights of the customer under federal patent or
copyright law or any state or federal law pertaining to unfair
competition.
Sec. 8. For silk screens in existence on June 1, 1983, the three (3)
year period specified in this chapter begins on the last date that the
silk screen was used, regardless of whether that date was before
June 1, 1983.
Chapter 8. Finding Strays or Property Adrift
Sec. 1. A person who finds a stray horse, mule, ass, sheep, hog,
cattle, or goat, or any other article of value, shall, within five (5)
days after finding the animal or article, advertise the animal or
article in writing in three (3) of the most public places in the
township where the animal or article was found, stating the time
the animal or article was found and giving a description of the
animal or article.
unclaimed or unproven by the owner within ninety (90) days
after the property is found; or
(2) a stray animal described in section 1 of this chapter that is
equal to or less than ten dollars ($10) in value and that
remains unclaimed or unproven by the owner within one (1)
year after the property is found;
vests in the finder.
Sec. 8. If:
(1) an article described in section 1 of this chapter has an
appraised value greater than twelve dollars ($12) and is not
claimed and proven within ninety (90) days after the day the
article is found; or
(2) a stray animal other than a horse, a mule, or an ass has an
appraised value greater than ten dollars ($10) and is not
claimed and proven within six (6) months after the animal is
found;
the finder shall report that information to a court with jurisdiction
where the property was initially found not later than five (5) days
after the expiration of the time specified in this section.
Sec. 9. (a) The court shall issue a warrant to the sheriff to sell
the property at auction, giving ten (10) days notice in writing of the
time and place of sale and describing the property to be sold.
(b) The sheriff shall, within five (5) days after the sale, return
the order and proceeds of sale to the court, retaining one dollar
($1) for the sheriff's services.
(c) The court shall immediately pay over to the county treasurer
the proceeds of sale, after deducting the proper amount to be paid
to the finder, fifty cents ($0.50) for the fee of the judge of the court
and, for every mile that the judge must travel in making the return,
a sum for mileage equal to that sum per mile paid to state officers
and employees.
(d) The court shall receive from the treasurer duplicate receipts
and file one (1) receipt in the office of the clerk of the circuit court
and one (1) receipt with the county auditor.
Sec. 10. (a) If a horse, a mule, or an ass that has an appraised
value greater than twenty dollars ($20) remains unclaimed or
unproven twelve (12) months after the date the horse, mule, or ass
was found, the finder shall deliver the horse, mule, or ass to the
sheriff of the proper county on the first day of the term of the
circuit court after the expiration of the twelve (12) month period.
(b) The sheriff shall sell the horse, mule, or ass delivered under
subsection (a) at a public sale.
property described in this section.
(b) If, upon any navigable waters within or bordering Indiana,
cargo that is shipped as freight, the baggage of passengers, or a
part of either of a vessel is cast adrift, afloat, or ashore by a wreck,
accident, or mischance of the vessel, the cargo or part of the cargo
found and secured by a person may be reclaimed by the captain,
clerk, or officer navigating the vessel, the super cargo, or the owner
or agent of the owner of the cargo or baggage.
(c) If the property described in this section is not claimed within
seven (7) days after the property is found, the finder of the
property shall advertise the property as required for articles
described in section 1 of this chapter.
Sec. 24. A person who finds property described in section 23 of
this chapter shall surrender the property to a claimant upon proof,
or circumstances satisfactory to the finder, of the right of the
claimant to the property, and after the payment by the claimant of
reasonable compensation for services or expenses in connection
with the finding and preserving of the property.
Sec. 25. If a person with possession of the property refuses to
return the property to the claimant or claims unreasonable
compensation for the services and expenses in the finding and
preservation of the property, the claimant may have a summary
proceeding before:
(1) the court where the property was reported under this
chapter if the property was reported; and
(2) any court with jurisdiction where the property is located
if the property was not reported to a court under this chapter;
for the recovery of the property.
Sec. 26. (a) The claimant must file before the court specified
under section 25 of this chapter an affidavit of the facts attending
the wreck or accident, enumerating as nearly as possible the
articles or packages in the possession of the finder and the
claimant's right to recover the property.
(b) The court shall summon the person who found or is in
possession of the property to appear before the court at a place and
at the earliest practicable time, as designated in the writ, but not
more than three (3) days after the date of the writ.
Sec. 27. (a) The court shall hear and determine the matters in
controversy in the most speedy manner practicable, as other
proceedings are determined before the court.
(b) The court may fix the amount of compensation the claimant
must pay and award a writ, or writs, for the delivery of the
property to the claimant upon payment of the compensation.
Sec. 28. (a) The trial described in section 27 of this chapter is
governed by the Indiana rules of trial procedure, except as to
continuances.
(b) Appeals may be taken by either party upon the same terms
and under the same rules as appeals in other civil cases are taken.
Sec. 29. An appraiser appraising property in accordance with
section 2 of this chapter shall receive compensation for the
appraisal services in the sum of fifty cents ($0.50) to be paid the
same manner as other expenses involved in the finding of strays.
Chapter 9. Drifting Boats and Timber
Sec. 1. As used in this chapter, "timber" means trees, whether
standing, down, or prepared for sale, sawlogs and all other logs,
cross and railroad ties, boards, planks, staves and heading, and
other trees cut or prepared for market.
Sec. 2. (a) A person who finds and secures any boats, fleets of
timber, rafts, platforms, sawlogs, or other logs or trees prepared
for the purpose of sale, or any cross or railroad ties, boards,
planks, staves, heading, or other timber prepared for market that
is the property of another and that is found adrift in the waters of
Indiana without a boom or other arrangement provided by the
owner to preserve the logs or timber below the point at which they
are found, whether the logs or timber have a brand or not, is
entitled to receive from the owner the following compensation:
(1) For each freight boat or other heavy boat, two dollars ($2)
per ton for all cargo.
(2) For each jack-boat, skiff, or canoe, one dollar ($1).
(3) For each fleet of timber, fifty dollars ($50).
(4) For each raft of not less than forty (40) logs, fifteen dollars
($15).
(5) For each platform of at least ten (10) logs, four dollars
($4).
(6) For each sawlog or other log or tree prepared for sale, fifty
cents ($0.50).
(7) For each cross or railroad tie, fifteen cents ($0.15).
(8) For boards or planks caught in rafts or a large body:
(A) one dollar ($1) per one thousand (1,000) board feet for
a quantity twenty thousand (20,000) board feet or less; or
(B) fifty cents ($0.50) per one thousand (1,000) board feet
for a quantity greater than twenty thousand (20,000) board
feet.
(9) For loose and scattered boards or planks, five dollars and
fifty cents ($5.50) per one thousand (1,000) board feet.
(10) For staves and heading, four dollars ($4) per one
thousand (1,000) pieces that are merchantable.
(b) The compensation due under subsection (a) is payable by the
owner, if required, upon the delivery to the owner of the logs or
timber.
(c) The finder has a lien upon the property found for the charges
provided in subsection (a).
(d) If the owner of the property fails to pay the compensation
due under subsection (a) within sixty (60) days after the day the
property is found, the property may be sold at the request of the
person to whom the compensation is due by a constable, sheriff, or
other officer of the county in which the property was found. The
sale must be at the courthouse door at public auction to the highest
bidder, upon thirty (30) days written or printed notice that gives
the time and place of sale and a written or printed description of
the property and any marks or brands on the property. The notice
of the sale must be posted at the front door of the courthouse of the
county in which the sale is to be made and at two (2) other public
places in the county where the property is located. It is the duty of
the constable or other officer making the sale to pay to the finder
the finder's legal fees and charges after deducting the constable's
or other officer's commission. The commission charged may be the
same as if the constable or other officer had sold the same property
under execution. If any sale money remains after payment of the
charges and fees described in this section, the constable or other
officer shall pay the remainder to the clerk of the circuit court in
the county in which the sale occurred and obtain a receipt for the
amount. If the constable or other officer fails to perform the
constable's or other officer's duties under this chapter, the
constable or other officer is liable on the constable's or other
officer's official bond to the party aggrieved.
(e) If the owner, within one (1) year after the date of the sale,
appears before the county judge of the county where the money is
deposited with the clerk and establishes the owner's right to the
satisfaction of the court to the money, the money must, upon the
order of the county judge, be paid over to the owner by the clerk;
otherwise, it shall be paid into the common school fund of Indiana.
(f) This chapter may not be construed to permit a person to
recover under subsection (a) for any fleet of timber, raft or
platform, sawlog, or other log or tree prepared for the purpose of
sale, or any cross or railroad tie, board, plank, stave, heading, or
other timber prepared for the market that is above any boom or
other arrangement made by the owner to preserve the logs or
timber.
Sec. 3. A person who finds a fleet, raft or platform, as described
in this chapter, is entitled to reasonable compensation for keeping
and caring for the property in addition to the fees set forth in
section 1 of this chapter. The compensation may not exceed the
following rates:
(1) For each fleet, four dollars ($4) per day.
(2) For each raft, one dollar ($1) per day.
(3) For each platform, fifty cents ($0.50) per day.
Sec. 4. If a person finds any sawlog or other log or trees
prepared for sale as described in this chapter and the property
remains in the person's possession more than thirty (30) days after
the time the person found the property to the time the owner offers
to pay the charges described in section 1 of this chapter, the finder
is entitled to charge, in addition to the fee set forth in section 1 of
this chapter, twenty-five cents ($0.25) for every sawlog or other log
or tree prepared for sale that remains in the person's possession as
described in this section.
Sec. 5. If the finder of any property described in this chapter:
(1) hides the property;
(2) allows the property to get aground so that the finder
cannot immediately, upon the demand of the property's
owner or the owner's agents, put the property afloat; or
(3) fails to put the property afloat upon demand;
the finder may not collect or receive any compensation for finding
or caring for the property and, in addition to any other duties
imposed by this chapter, is responsible to the owner for the value
of the property as if the property were afloat.
Sec. 6. A person, firm, or corporation that deals in timber in any
form is considered a timber dealer and may adopt a brand in the
manner and with the effect described in this chapter.
Sec. 7. (a) A timber dealer desiring to adopt a brand may do so
by the execution of a writing in the following form:
Brand - Notice is hereby given that I (or we, as the case may
be) have adopted the following brand in my (or our) business
as a timber dealer: (Here insert the words, letters, figures,
etc., constituting the brand, or if the brand is any device other
than words, letters, or figures, insert a facsimile of the brand.)
Dated this ____ day of _________ A.D. ______.
(b) The writing must be acknowledged or proved for the record
in the same manner as deeds are acknowledged or proven and must
be recorded in the office of the clerk of the county in which the
timber dealer maintains a principal office or place of business.
(c) A copy of the writing must be posted at the timber dealer's
principal place of business, at the courthouse door in the county
where the timber dealer carries on business, and at the public
places in the county.
Sec. 8. A brand adopted in accordance with this chapter is the
exclusive trademark of the person adopting the brand, and the
brand constitutes property under IC 35-41-1-23.
Sec. 9. A person who owns a brand shall cause the brand to be
plainly stamped, branded, or otherwise impressed upon each piece
of timber upon which the brand is placed.
Sec. 10. A contract for the sale of standing trees or standing
timber may not be enforced by a legal action unless the contract or
some memorandum of the contract is in writing and signed by the
person to be charged or the person's duly authorized agent.
Sec. 11. (a) If timber is branded by the seller or by another
person with the seller's consent with the brand of the purchaser or
another person or corporation, the title to the timber passes at once
to the person or corporation whose brand is placed on the timber.
(b) Placement of a brand on timber as described in subsection
(a) does not affect the rights of the contracting parties regarding
the payment of the purchase money for the timber.
Sec. 12. (a) This chapter does not affect the validity and effect
of a brand or trademark adopted and recorded under the law in
effect before March 11, 1901.
(b) A brand or trademark described in subsection (a) is valid for
all purposes, civil and criminal, as if the brand or trademark had
been adopted and recorded under this chapter.
Sec. 13. (a) If timber prepared for market is found on any of the
streams of Indiana, the timber shall be held and disposed of as
provided in this chapter. The finder of the timber shall receive as
compensation for the finder's services only the fees provided for in
section 2 of this chapter.
(b) A person who knowingly violates this section commits a
Class D felony.
Chapter 10. Sale of Abandoned Watercraft
Sec. 1. As used in this chapter, "marina operator" means a
person, a firm, a corporation, a limited liability company, a
municipality, or another unit of government that is engaged in the
business of operating a marina.
IC 26-1-2-328. The advertisement of sale must be published
once a week for two (2) consecutive weeks in a newspaper of
general circulation in the county where the watercraft has
been left without permission. The advertisement must include
a description of the watercraft, the name of the person on
whose account the watercraft is being held, and the time and
place of the sale. The sale must take place at least fifteen (15)
days after the first publication. If there is no newspaper of
general circulation where the sale is to be held, the
advertisement must be posted at least ten (10) days before the
sale in not less than six (6) conspicuous places in the
neighborhood of the proposed sale.
(4) Conduct an auction sale, not less than thirty (30) days
after the return receipt is received by the marina operator, on
the marina property where the watercraft was left without
permission.
(5) Provide a reasonable time before the sale for prospective
purchasers to examine the watercraft.
(6) Sell the watercraft to the highest bidder.
(7) Immediately after the auction sale, execute an affidavit of
sale in triplicate on a form prescribed by the bureau of motor
vehicles stating:
(A) that the requirements of this section have been met;
(B) the length of time that the watercraft was left on the
marina property without permission;
(C) the expenses incurred by the marina operator,
including the expenses of the sale;
(D) the name and address of the purchaser of the
watercraft at the auction sale; and
(E) the amount of the winning bid.
Sec. 5. Upon payment of the bid price by the purchaser, the
marina operator shall provide the purchaser with the affidavit of
sale described in this chapter.
Sec. 6. The affidavit of sale under this chapter constitutes proof
of ownership and right to possession under IC 9-31-2-16.
Sec. 7. After the purchaser:
(1) presents the bureau of motor vehicles with the affidavit of
sale;
(2) completes an application for title; and
(3) pays any applicable fee;
the bureau shall issue to the purchaser a certificate of title to the
watercraft.
attachment, the property was exempt by statute from
seizure;
(3) show that the property:
(A) has been wrongfully taken and is unlawfully detained
by the defendant; or
(B) is unlawfully detained;
(4) include a particular description of the property;
(5) state the estimated value of the property; and
(6) identify the county in which the property is believed to be
detained.
Sec. 5. If a plaintiff files an affidavit under section 3 of this
chapter, the clerk shall issue an order for a time fixed by the judge
directing the defendant to appear for the purpose of controverting
plaintiff's affidavit or to otherwise show cause why:
(1) a prejudgment order for possession should not issue; and
(2) the property should not be delivered to plaintiff.
Sec. 6. (a) An order issued under section 5 of this chapter must
set forth the date, time, and place for the hearing and direct the
time within which service shall be made upon the defendant.
(b) The hearing shall be scheduled not sooner than five (5) days,
Sundays and holidays excluded, after the date of service.
Sec. 7. An order to show cause issued under section 5 of this
chapter must inform the defendant that:
(1) the defendant may:
(A) file affidavits on the defendant's behalf with the court;
(B) appear and present testimony on the defendant's
behalf at the time of the hearing; and
(C) file with the court a written undertaking to stay the
delivery of the property in accordance with this article;
and
(2) if the defendant fails to appear, plaintiff may be granted a
judgment of possession.
Sec. 8. The court may issue an order for possession under this
chapter after examining the complaint, affidavits, and other
evidence or testimony that the court may require.
Sec. 9. The court may issue an order for possession under this
chapter before the hearing if probable cause appears that any of
the following subdivisions apply:
(1) The defendant gained possession of the property by theft
or criminal conversion.
(2) The property consists of one (1) or more negotiable
instruments or credit cards.
reasonable probability, is entitled to possession, use, and
disposition of the property, pending final adjudication of the
claims of the parties.
Sec. 15. If the court determines, in an action under this chapter,
that a prejudgment order of possession in the plaintiff's favor
should issue, the court shall issue the order.
Sec. 16. If the property claimed by the plaintiff in an action
under this chapter has a peculiar value that cannot be compensated
by damages, the court may, instead of issuing an order of
possession, appoint a receiver to take possession of and hold the
property until further order of the court.
Sec. 17. If the defendant in an action under this chapter fails to
appear, the court may enter its final judgment with respect to
possession as in other cases where there is a default for a failure to
appear.
Sec. 18. An order of possession issued under this chapter must:
(1) be directed to the sheriff or other officer charged with the
execution of the order within whose jurisdiction the property
is believed to be located;
(2) describe the property to be seized; and
(3) direct the executing officer to:
(A) seize the property if it is found;
(B) take the property into custody; and
(C) deliver the property to the plaintiff, unless:
(i) the order was issued without notice; or
(ii) the defendant files a written undertaking in
accordance with section 7(1)(C) of this chapter within a
time fixed by the court.
Sec. 19. If the order issued in an action under this chapter is a
final judgment:
(1) the court does not need to fix a time for the defendant to
file a written undertaking;
(2) the order must direct immediate delivery to the plaintiff;
(3) a copy of any written undertaking filed by the plaintiff
must be attached to the order; and
(4) the order must inform the defendant that the defendant
has the right to:
(A) except to the surety upon the undertaking; or
(B) file a written undertaking for the redelivery of the
property as provided in section 7(1)(C) of this chapter.
Sec. 20. Any:
(1) order for possession;
court at the time the order of possession is issued under this
chapter, a copy of the order shall be delivered promptly to the
defendant and the delivery shall be noted in the order book.
Sec. 28. If the defendant and the defendant's attorney are not
present in open court when the order of possession is issued under
this chapter, sufficient copies of the order shall be delivered to the
sheriff or other executing officer. The executing officer shall,
without delay, serve upon the defendant a copy of the order of
possession:
(1) by delivering the order of possession to:
(A) the defendant personally; or
(B) the defendant's agent from whose possession the
property is taken;
(2) if the defendant or the defendant's agent cannot be found,
by leaving it at the usual place of abode of either with some
person of suitable age and discretion; or
(3) if neither the defendant nor the defendant's agent has any
known usual place of abode, by mailing it to the defendant's
last known address.
Sec. 29. (a) Upon serving on the defendant a copy of the order
of possession under section 28 of this chapter, the executing officer,
except as provided in subsection (b), shall immediately take the
property into custody if the property is in the possession or control
of the defendant or the defendant's agent.
(b) If the property is a housetrailer, recreational vehicle, motor
or mobile home, or boat and is being used as the principal dwelling
of a defendant, at the expiration of forty-eight (48) hours after the
order of possession is served, the officer shall immediately remove
the property's occupants and take the property into custody.
Sec. 30. If the property or any part of the property that is
subject to an order of possession issued under this chapter is:
(1) in a building or enclosure; and
(2) not voluntarily delivered;
the executing officer shall cause the building or enclosure to be
broken open in a manner the officer reasonably believes will cause
the least damage to the building or enclosure and take possession
of the property.
Sec. 31. An executing officer who has taken property subject to
an order of possession issued under this chapter shall:
(1) keep it in a secure place; and
(2) deliver it to the party entitled to the property upon
receiving actual, reasonable, and necessary expenses for
keeping the property.
Sec. 32. After taking property subject to an order of possession
issued under this chapter, an executing officer shall:
(1) note the executing officer's proceedings in writing upon
the order of possession; and
(2) return the order of possession to the court in which the
action is pending;
within five (5) days after taking the property mentioned in the
order.
Sec. 33. In an action to recover the possession of personal
property, judgment for the plaintiff may be for:
(1) the delivery of the property, or the value of the property
in case delivery is not possible; and
(2) damages for the detention of the property.
Sec. 34. In an action to recover the possession of personal
property, if the property has been delivered to the plaintiff and the
defendant claims a return of the property, judgment for the
defendant may be for:
(1) the return of the property, or its value, in case return is
not possible; and
(2) damages for the taking and withholding of the property.
Sec. 35. In actions for the recovery of specific personal property,
the jury must assess:
(1) the value of the property; and
(2) the damages for the taking or detention of the property;
when the jury's verdict results in a judgment for the recovery or
return of the property.
SECTION 21. IC 32-36 IS ADDED TO THE INDIANA CODE AS
A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2002]:
ARTICLE 36. PUBLICITY
Chapter 1. Rights of Publicity
Sec. 1. (a) This chapter applies to an act or event that occurs
within Indiana, regardless of a personality's domicile, residence, or
citizenship.
(b) This chapter does not affect rights and privileges recognized
under any other law that apply to a news reporting or an
entertainment medium.
(c) This chapter does not apply to the following:
(1) The use of a personality's name, voice, signature,
photograph, image, likeness, distinctive appearance, gestures,
or mannerisms in any of the following:
(A) Literary works, theatrical works, musical
compositions, film, radio, or television programs.
(B) Material that has political or newsworthy value.
(C) Original works of fine art.
(D) Promotional material or an advertisement for a news
reporting or an entertainment medium that:
(i) uses all or part of a past edition of the medium's own
broadcast or publication; and
(ii) does not convey or reasonably suggest that a
personality endorses the news reporting or
entertainment medium.
(E) An advertisement or commercial announcement for a
use described in this subdivision.
(2) The use of a personality's name to truthfully identify the
personality as:
(A) the author of a written work; or
(B) a performer of a recorded performance;
under circumstances in which the written work or recorded
performance is otherwise rightfully reproduced, exhibited, or
broadcast.
(3) The use of a personality's:
(A) name;
(B) voice;
(C) signature;
(D) photograph;
(E) image;
(F) likeness;
(G) distinctive appearance;
(H) gestures; or
(I) mannerisms;
in connection with the broadcast or reporting of an event or
a topic of general or public interest.
Sec. 2. As used in this chapter, "commercial purpose" means the
use of an aspect of a personality's right of publicity as follows:
(1) On or in connection with a product, merchandise, goods,
services, or commercial activities.
(2) For advertising or soliciting purchases of products,
merchandise, goods, services, or for promoting commercial
activities.
(3) For the purpose of fundraising.
Sec. 3. As used in this chapter, "name" means the actual or
assumed name of a living or deceased natural person that is
intended to identify the person.
Sec. 4. As used in this chapter, "news reporting or an
entertainment medium" means a medium that publishes,
broadcasts, or disseminates advertising in the normal course of its
business, including the following:
(1) Newspapers.
(2) Magazines.
(3) Radio and television networks and stations.
(4) Cable television systems.
Sec. 5. As used in this chapter, "person" means a natural
person, a partnership, a firm, a corporation, or an unincorporated
association.
Sec. 6. As used in this chapter, "personality" means a living or
deceased natural person whose:
(1) name;
(2) voice;
(3) signature;
(4) photograph;
(5) image;
(6) likeness;
(7) distinctive appearance;
(8) gesture; or
(9) mannerisms;
has commercial value, whether or not the person uses or authorizes
the use of the person's rights of publicity for a commercial purpose
during the person's lifetime.
Sec. 7. As used in this chapter, "right of publicity" means a
personality's property interest in the personality's:
(1) name;
(2) voice;
(3) signature;
(4) photograph;
(5) image;
(6) likeness;
(7) distinctive appearance;
(8) gestures; or
(9) mannerisms.
Sec. 8. (a) A person may not use an aspect of a personality's
right of publicity for a commercial purpose during the
personality's lifetime or for one hundred (100) years after the date
of the personality's death without having obtained previous written
consent from a person specified in section 17 of this chapter.
of residents.
SECTION 24. IC 4-6-3-3 IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2002]: Sec. 3. If the attorney general has
reasonable cause to believe that a person may be in possession,
custody, or control of documentary material, or may have knowledge
of a fact that is relevant to an investigation conducted to determine if
a person is or has been engaged in a violation of IC 4-6-9, IC 4-6-10,
IC 13-14-10, IC 13-14-12, IC 13-24-2, IC 13-30-4, IC 13-30-5,
IC 13-30-6, IC 13-30-8, IC 23-7-8, IC 24-1-2, IC 24-5-0.5, IC 24-5-7,
IC 24-5-8, IC 25-1-7, IC 32-9-1.5, IC 32-34-1, or any other statute
enforced by the attorney general, only the attorney general may issue
in writing, and cause to be served upon the person or the person's
representative or agent, an investigative demand that requires that the
person served do any combination of the following:
(1) Produce the documentary material for inspection and copying
or reproduction.
(2) Answer under oath and in writing written interrogatories.
(3) Appear and testify under oath before the attorney general or
the attorney general's duly authorized representative.
SECTION 25. IC 4-10-10-11, AS ADDED BY P.L.127-2000,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 11. (a) This section applies to a warrant drawn by
the state auditor of state upon funds in custody of the state treasurer of
state or a check authorized by law to be issued from funds in custody
of any other state agency, if the check or warrant is outstanding and
unpaid, but is not determined to be unclaimed property under
IC 32-9-1.5. IC 32-34-1.
(b) An agreement for which the primary purpose is to pay
compensation to locate, deliver, recover, or assist in the recovery of a
check or warrant described in subsection (a) is valid only if:
(1) the fee or compensation agreed upon is not more than ten
percent (10%) of the amount collected unless the amount
collected is fifty dollars ($50) or less;
(2) the agreement is in writing;
(3) the agreement is signed by the apparent owner of the check or
warrant described in subsection (a); and
(4) the agreement clearly sets forth:
(A) the nature and value of the property; and
(B) the value of the apparent owner's share after the fee or
compensation has been deducted.
(c) This section does not prevent an owner from asserting at any
time that an agreement to locate property is otherwise invalid.
deemed considered necessary by the commission to pay
financing charges, interest on the obligations (for a period not
exceeding the period of construction and a reasonable time
thereafter after the period of construction or, if the facility is
completed, two (2) years from the date of issue of the
obligations), consultant, advisory, and legal fees, and such other
expenses as are necessary or incident to such the borrowing or
issue;
(10) employ fiscal consultants, engineers, bond counsel, other
special counsel (with the approval of the attorney general), real
estate counselors, appraisers, architectural historians, and such
other consultants, employees, and agents as may be required in
the judgment of the commission, and fix and pay their
compensation from funds available to the commission therefor;
for the payment of compensation;
(11) make, execute, and effectuate any and all contracts,
agreements, or other documents with any governmental agency or
any person, corporation, limited liability company, association,
partnership, or other organization or entity necessary or
convenient to accomplish the purposes of this article;
(12) acquire in the name of the commission by the exercise of the
right of condemnation, in the manner provided in this section,
such public or private lands, or rights therein, in lands,
rights-of-way, property, rights, easements, and interests, as it may
deem considers necessary for carrying out this article; and
(13) do any and all acts and things necessary, proper, or
convenient to carry out this article.
(b) The commission may provide for facilities for state agencies or
branches of state government but only when if the general assembly, by
statute:
(1) finds that the state needs renovation, refurbishing, or alteration
of existing facilities or construction of additional facilities; and
(2) authorizes the commission to provide for such the facilities.
In providing for such the facilities, the commission shall proceed under
this article.
(c) If the commission is unable to agree with the owners, lessees, or
occupants of any real property selected for the purposes of this article,
it may proceed to procure the condemnation of the property under
IC 32-11-1. IC 32-24-1. The commission may not institute such a
proceeding until it has adopted a resolution that:
(1) describes the real property sought to be acquired and the
purpose for which the real property is to be used;
IC 32-34-1.
SECTION 35. IC 8-1-2.2-27 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 27. Eminent Domain.
(a) Municipalities participating in a project and joint agencies shall
possess have the power of eminent domain to the extent and in the
same manner and under the same laws as municipalities or public
utilities pursuant to either IC 32-11-1 under IC 32-24-1 or IC 8-1-8.
However, a municipality or joint agency exercising the power of
eminent domain for a purpose authorized by this chapter shall have no
power to may not condemn an existing facility used for the generation,
transmission, or distribution of electric power and energy. In addition,
(b) The commission shall have the power and authority to may
order that:
(1) the lines and rights-of-way of any public utility or subscriber
owned utility, or municipality or municipalities participating in a
joint project or joint agency may be crossed by any municipality
participating in a joint project or joint agency; or that
(2) the lines of any municipalities participating in a joint project
or joint agency may be crossed by any public utility or subscriber
owned utility.
SECTION 36. IC 8-1-8-1 IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2002]: Sec. 1. Any (a) A public utility, except
in cities of the third class, engaged in the production, transmission,
delivery, or furnishing of heat, light, water, or power or for the
collection, treatment, purification, and disposal in a sanitary manner of
liquid and solid sewage or furnishing facilities for transmission of
intelligence by electricity to towns and cities and to the public in
general or for the furnishing of elevator or warehouse service, either
directly or indirectly, to or for the public, for the purpose of enabling
it to perform its functions, is hereby fully empowered and authorized
to may appropriate and condemn lands of individuals and private
corporations, or any easement in any such lands, necessary to the
carrying out of its objects, whether the same be for its building,
structures, dams, line of poles, wires, mains, conduits, and pipelines,
or right-of-way to accommodate railway siding or switch tracks
connecting its plant or plants with the tracks of any common carrier,
overflowage by back-water backwater from its dams, waste, or
sluice-ways. Provided, sluiceways.
(b) However, that, within the limits of any incorporated town or city,
such the authority to appropriate shall does not:
(1) extend to lands situated in any city block in which more than
fifty percent (50%) of the frontage is devoted to residence
purposes; and provided further, that the provisions of this chapter
shall not
(2) extend to common carriers engaged in the transportation of
freight or passengers; nor or
(3) give to any public utility any right or authority to:
(A) appropriate any land or easement therein within the
corporate limits of any city for overflowage by back-water
backwater from any dam; nor to
(B) appropriate or acquire any dam, race, or sluice-way
sluiceway existing on May 31, 1921, or any interest in either,
except to use water for condensation purposes; nor to
(C) appropriate or acquire any pipeline laid or contained
within the limits of private property; nor to or
(D) authorize any corporation developing hydroelectric power
to unreasonably interfere with or disturb the natural flow of the
stream from which such power shall or may be derived. Lands
or easements in lands acquired by such appropriation and
condemnation shall be held and enjoyed by such the company
for such those purposes as fully and completely as though the
same land or easement had been acquired by purchase.
(c) The appropriation and condemnation of lands and easements in
lands authorized by this section shall must be had and done in all
respects under and pursuant to the terms and conditions and in the
manner prescribed by IC 32-11-1. IC 32-24-1.
SECTION 37. IC 8-1-30-5, AS ADDED BY P.L.145-1999,
SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 5. (a) As used in this section, "subject utility
company" refers to a utility company that is the subject of a finding by
the commission under section 4 of this chapter.
(b) If the commission makes a finding under section 4 of this
chapter, the commission may, after notice and hearing, make
appropriate orders to do any of the following:
(1) Provide for the acquisition of the subject utility company by
another utility company, a municipally owned utility, or by
another person that has the ability to operate the subject utility
company:
(A) in compliance with law and the commission's orders; and
(B) to remedy any deficiencies found by the commission.
(2) Provide for the appointment of a receiver to operate the
subject public utility:
(A) in compliance with law and the commission's orders; and
(B) to remedy any deficiencies found by the commission.
IC 32-24-1.
SECTION 41. IC 8-4-7-8 IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2002]: Sec. 8. The condemnations authorized
in section 7 of this chapter may be made and had according to:
(1) the provisions of the charter of any or either of said the
proprietary companies; or under and according to
(2) the general railroad law of this state Indiana in force effect at
the time providing that provides for the condemnation of real
estate for railroad purposes; or according to IC 32-11-1.
(3) IC 32-24-1.
SECTION 42. IC 8-5-15-15 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 15. (a) The board may
exercise the power of eminent domain for the purpose of carrying out
this chapter and award damages to landowners for real estate and
property rights appropriated and taken. In case If the board cannot
agree with the owners, lessees, or occupants of any real estate selected
by them the board for the purpose set forth in this chapter, it the
board may proceed to procure the condemnation of the property under
IC 32-11. IC 32-24.
(b) Relocation assistance under IC 8-23-17 shall be provided to any
person displaced under this section.
(c) Where If the property over and across which the railroad must
be constructed and must operate is already in use or acquired for use
for a public purpose, the public use or acquisition of the property is not
a bar to the right of the board to condemn the property for the purpose
of this chapter.
SECTION 43. IC 8-9.5-7-9 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 9. (a) The commission
is authorized to may exercise the power of eminent domain for the
purpose of carrying out any of the provisions of this chapter and to
award damages to landowners for real estate and property rights
appropriated and taken. In case If the commission cannot agree with
the owners, lessees, or occupants of any real estate selected by them
the board for the purpose herein set forth it in this chapter, the board
may proceed to procure the condemnation of the property under the
provisions of IC 32-11. IC 32-24.
(b) Relocation assistance under IC 8-23-17 shall be provided to any
person displaced under this section. Where
(c) If the property over and across which the automated transit
system must be constructed and operate is already in use or acquired
for use for a public purpose, the public use or acquisition of the
property shall not be a bar to the right of the commission to condemn
the property for the purposes of this chapter.
SECTION 44. IC 8-21-9-15 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 15. (a) If the
department considers a purchase expedient, the department may
acquire by purchase whenever it shall deem such purchase expedient,
any land, property, rights, rights-of-way, franchises, easements, and
other interest in lands, including lands under water and riparian rights,
as it may deem considers necessary or convenient for the construction
and operation of any airport or airport facility.
(b) The appropriation and condemnation of lands and easements in
lands herein authorized shall by this chapter must be made under and
pursuant to the terms and conditions of and in the manner prescribed
in IC 32-11-1. IC 32-24-1.
(c) The department shall take title thereto in the name of the state of
Indiana.
(d) The department is hereby further authorized and empowered to
may:
(1) sell, transfer, and convey any such land or any interest therein
so in land acquired, or any portion thereof, when part of the land
or interest in land if the same shall land or interest in land is
no longer be needed for such purposes; and it is further authorized
and empowered to
(2) transfer and convey any such lands or interests therein in
lands as may be necessary or convenient for the construction and
operation of any airport or airport facility, or as otherwise
required under this chapter. However, no such a sale shall may
not be made without the approval of the governor first obtained
and at not less than the appraised value established by three (3)
independent appraisers appointed by the governor.
The department may restrict the use of any land so sold by it and
provide for a reversion to the department in the event if the land shall
is not be used for the purpose represented by the purchaser. and such
Provisions concerning restrictions and reversions shall must be set
out in appropriate covenants in the deeds of conveyance. which The
deeds shall be subject to the approval of must be approved by the
governor.
(e) The department may also lease to others for development or use
any portion part of the land owned by the department, together with
any airport facility or airport facilities thereon on the land or to be
constructed thereon, on the land, on such terms as the department shall
determine determines to be advantageous. All such Leases covering
a period of more than four (4) years shall be subject to the approval of
must be approved by the governor. Leases of lands under the
jurisdiction or control of the department shall may be made only for
such uses and purposes as are calculated to contribute to the growth
and development of the airport and airport facilities under the
jurisdiction or control of the department. In the event
(f) If the department shall lease leases to others for a period of more
than four (4) years an airport facility or airport facilities financed by the
issuance of revenue bonds, the rental shall must be in an amount at
least sufficient to pay the interest on and principal of the amount of
such the bonds representing the cost of such the airport facility or
airport facilities to the extent such the interest and principal is payable
during the term of the lease. Such The lease shall also must provide for
the payment by the lessee or lessees of all costs of maintenance, repair,
and insurance.
(g) The department may acquire or purchase an existing airport
facility only when such if:
(1) the facility is located on land acquired for the purpose of
constructing a continental or an intercontinental airport; or when
(2) operation of such an the airport would be detrimental to the
safe use of such an the airport facility.
(h) The department may also enter into contracts, leases and other
use agreements with air carriers, airport concessionaires, airport
tenants, and other airport users under agreed terms, conditions,
charges, and fees for a term not exceeding twenty (20) years. excepting
such However, lease agreements for land rental which may be entered
into for a term not exceeding ninety-nine (99) years when if the lessee
shall will use the leased land for the construction of buildings or other
facilities at the lessee's expense.
SECTION 45. IC 8-21-12-14 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 14. (a) The authority
may exercise the power of eminent domain to carry out this chapter and
may award damages to landowners for real estate and property rights
appropriated. and in case If the authority cannot agree with the owners,
lessees, or occupants of real estate selected by the authority for the
purposes in this chapter, the authority may procure the condemnation
of the property. The authority may proceed under IC 32-11-1, and that
chapter IC 32-24-1. IC 32-24-1 applies to airports, landing fields,
districts, and restricted zones adjoining them to the extent that
IC 32-11-1 IC 32-24-1 is not inconsistent with this chapter.
(b) If:
(1) it is necessary to establish and fix a restricted zone on and
across land that:
the board may require the removal or the burying beneath the surface
of the ground of wires, cables, power lines, or other structures within
a restricted zone established under this chapter. In a proceeding
prosecuted by the board to condemn or appropriate land, the use of
land, or rights in land for purposes permitted by this chapter;
(1) the board and all owners and holders of property or rights in
property sought to be taken are governed by and have the same
rights to procedure, notices, hearings, assessments, and payments
of benefits and awards as are prescribed by statute for the
appropriation and condemnation of real property; and
(2) the property owners have like powers and rights of
remonstrance and of appeals to the circuit or superior court in the
county in which the entity is located.
Appeals affect only the amount of the assessment of awards of the
person appealing and must conform to all laws relating to appeals. The
payment of all damages awarded for all lands, property, or rights in
them appropriated under this chapter shall be paid entirely out of the
funds under the control of the board.
(d) Notwithstanding this or any other statute or any charter, the
eligible entity may take possession of the property to be acquired at any
time after the filing of the petition describing the property in
condemnation proceedings. It is not precluded from abandoning the
condemnation of the property in any case where possession has not
been taken. The board:
(1) may acquire and use any land reasonably necessary for the
purposes of this chapter; but and
(2) may not acquire or use land that is still being used and is
necessary for the purposes for which it was previously
condemned.
SECTION 47. IC 8-22-3-15 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 15. (a) The board:
(1) may exercise the power of eminent domain to carry out this
chapter; and
(2) may award damages to landowners for real estate and property
rights appropriated; and in case
(3) if the board cannot agree with the owners, lessees, or
occupants of real estate selected by the board for the purposes in
this chapter, it may procure the condemnation of the property.
The board may proceed under IC 32-11-1, and that chapter IC 32-24-1.
IC 32-24-1 applies to airports, landing fields, and restricted zones
adjoining them to the extent that it is not inconsistent with this chapter.
(b) Where If the land on and across which it is necessary to
establish and fix a restricted zone or zones is already in use for another
public purpose or has been condemned or appropriated for a use
authorized by statute, and is being used for that purpose by the
corporation so appropriating it, the public use or prior condemnation
does not bar the right of the board to condemn the use of ground for
aviation purposes. Use by the board does not permanently prevent the
use of the land for the prior public use or by the corporation
condemning or appropriating it.
(c) In a proceeding prosecuted by the board to condemn the use of
land for purposes permitted by this chapter, the burden is upon the
board to show that its use will not permanently or seriously interfere
with the continued public use of the land or by the corporation
condemning it, or its successors. However, in such a the proceeding the
board may require the removal or the burying beneath the surface of the
ground of wires, cables, power lines, or other structures within a
restricted zone established under this chapter.
(d) The board may not take or disturb property or facilities
belonging to a public utility or common carrier engaged in interstate
commerce which if the property or facilities are required for the proper
and convenient operation of the utility or carrier, unless provision is
made for the restoration, relocation, or duplication of the property or
facilities elsewhere, at the sole cost of the board.
SECTION 48. IC 8-23-7-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 1. Except as otherwise
provided in this chapter, IC 32-11-1 IC 32-24-1 applies to real property
transactions conducted by the department.
SECTION 49. IC 8-23-17-27 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 27. (a) The court
having jurisdiction of a proceeding instituted by an agency to acquire
real property by eminent domain shall award the owner of a right, or
title to, or interest in, the real property the sum that will in the opinion
of the court reimburse the owner for reasonable costs, disbursements,
and expenses, including reasonable attorney, appraisal, and engineering
fees, actually incurred because of the condemnation proceedings, if:
(1) the final judgment is that the agency cannot acquire the real
property by eminent domain; or
(2) the proceeding is abandoned by the agency.
(b) An award made under subsection (a) shall be paid by the agency
for whose benefit the eminent domain proceedings were instituted.
(c) The court rendering a judgment for the plaintiff in a proceeding
brought under IC 32-11-1-12 IC 32-24-1-16 or any other Indiana law
providing for the institution of proceedings by the owner seeking just
compensation for property taken for public use in awarding
compensation for the taking of property by an agency, or the agency
effecting a settlement of a proceeding, shall determine and award or
allow to the plaintiff, as a part of the judgment or settlement a sum that
will in the opinion of the court or the agency reimburse the plaintiff for
reasonable costs, disbursements, and expenses, including reasonable
attorney, appraisal, and engineering fees, actually incurred because of
the proceeding.
SECTION 50. IC 8-23-20-10 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 10. The department
may acquire and shall pay just compensation for the removal of signs
that do not conform to this chapter. A removal by the department or
sign owner under this chapter constitutes a taking, and the owner shall
be compensated under IC 32-11-1. IC 32-24-1. Compensation shall be
paid for the following:
(1) The taking from the owner of a sign of all rights, titles, and
interests in the sign, and of the owner's leasehold or other interest
in the land.
(2) The taking from the owner of the real property on which the
sign is located and of the right to erect and maintain signs on the
real property.
SECTION 51. IC 10-1-5-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 1. (a) If any money,
goods, or other property which that has been stolen, lost, or abandoned
comes into possession of an employee of the state police department by
virtue of his the employee's office, he the employee shall deliver the
same money, goods, or other property to such another employee of
the department as may be designated by the superintendent and shall
thereupon be relieved from further responsibility therefor. for the
money, goods, or other property.
(b) If: any such
(1) the money, goods, or other property remains unclaimed in the
possession or control of any such the employee to whom
delivered for six (6) months; and
(2) the whereabouts location of the owner is unknown; such
the goods or other property shall be sold at public auction. Notice of
the time and place of such the sale with a description of the property
to be sold being first given by publishing the same once a week for two
(2) weeks consecutively in some newspaper of general circulation
printed in the community in which the sale is to be held. Any such
property which that is of a perishable nature or which will deteriorate
greatly in value by keeping, or any property of which the expense of
keeping will be likely to exceed the value thereof, of the property,
may be sold at public auction, in accordance with the rules or orders of
the superintendent. and should If the nature of such the property
necessitate requires an immediate sale, the six (6) month period of
custody and the notice of sale provided in this section may be waived
at the discretion of the superintendent.
(c) The proceeds of every such sale, after deducting all reasonable
charges and expenses incurred in relation to such the property, and all
such money shall be presumed abandoned and shall be delivered to the
attorney general for deposit into the abandoned property fund for
disposition as provided by IC 32-9-1.5-33 IC 32-34-1-33 and
IC 32-9-1.5-34. IC 32-34-1-34.
(d) The provisions of This chapter shall does not apply to property
seized upon a search warrant nor to any other property the custody and
disposition of which is otherwise provided by law.
SECTION 52. IC 10-4-1-25 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 25. (a) Each A person
within this state in Indiana shall conduct himself or herself and keep
and manage his or her affairs and property in ways that will reasonably
assist and will not unreasonably detract from the ability of the state and
the public successfully to meet disaster emergencies. This obligation
includes appropriate personal service and use or restriction on the use
of property in time of disaster emergency. Compensation for services
or for the taking or use of property shall may be made only to the
extent:
(1) that obligations recognized in this chapter are exceeded in a
particular case; and then only to the extent and
(2) that the claimant may not have volunteered his the claimant's
services or property without compensation.
(b) No Personal services may not be compensated by the state or
any subdivision or agency of it, the state except under statute, local
law, or ordinance.
(c) Compensation for property shall may be paid only if the property
was commandeered or otherwise used in coping with a disaster
emergency and its use or destruction was ordered by the governor or a
member of the disaster emergency forces of this state.
(d) Any person claiming compensation for the use, damage, loss, or
destruction of property under this chapter shall must make a claim for
it. which The claim shall must be filed and shall be adjudicated as
provided in IC 1971, 32-11. IC 32-24.
(e) Nothing in This section applies does not apply to or authorizes
authorize compensation for the destruction or damaging of standing
timber or other property in order to provide a fire break or to the release
of waters or the breach of impoundments in order to reduce pressure or
other danger from actual or threatened flood.
SECTION 53. IC 10-7-1-16 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 16. (a) The board of
commissioners of any county, acting jointly with the board of public
works of any city located therein, in the county, to acquire grounds,
real property, and interests therein in real property, by purchase or
condemnation for any of the purposes authorized by this chapter, shall
have the right, and authority is hereby granted to any county and jointly
to any county and any city located therein, to may proceed under
IC 32-11, IC 32-24, together with all the powers of eminent domain
granted under this chapter to any county under any statute relating to
appropriation and condemnation for use of such the county, of any
property, real or personal. However, before such the board of
commissioners shall have the right to may purchase real property and
interests therein, in real property, either by such the county, or jointly
by such the county and any city located therein, such in the county,
the board of commissioners or board of trustees, as provided in section
11 of this chapter, or board of commissioners acting jointly with the
board of public works of any city located therein, shall cause such in
the county, must have the real property to be appraised at its true cash
value by at least three (3) disinterested freeholders of such the county
and shall may not have the right to pay more than the appraised value
for any real property and interests therein. in real property.
(b) In the event If any owner refuses to sell such real property at
such the appraised value, thereof, then the same shall the property
must be acquired by condemnation. If a county acts alone, an attorney
representing the county shall conduct all the legal proceedings
necessary in the purchase or condemnation of real property, and it shall
be the duty of the legal department of any city and an attorney
representing the county and the legal department of any city, when such
if county and city act jointly under this chapter, to conduct all the
necessary legal proceedings, without additional compensation, for the
purchase or condemnation of real property.
(c) In the event If any county acquires real property for any of the
purposes provided for by this chapter, or joins with any city located in
such the county in the acquisition of real property for any of the
purposes provided for in this chapter, such the county acting by and
through its board of commissioners, or such the county by and through
its board of commissioners acting jointly with any city located therein,
in the county, by and through its board of public works, with the
approval of the mayor, as the case may be, shall have the right to may:
(1) grant the use of any real property or buildings and
improvements thereon on real property so acquired, to any
organization of soldiers, sailors, and marines of the United States,
and others for rent or charge, or without any rent or charge; and
shall also have the right to
(2) sell the buildings and improvements on such the real property.
and
The net rent or proceeds of the sale of such the building and
improvements on such the real property, if such the real property was
acquired by the county, shall be added to and become a part of the
county world war memorial fund. and If such the real property was
acquired by such the county and any city located therein in the county
jointly, then such the rent and proceeds of sale shall be added to such
the county world war memorial fund and such the city world war
memorial fund in the same proportions that such the city and county
contributed to the acquisition thereof, of the real property, buildings,
and improvements, or such the county. or such The county and any
city located therein in the county acting jointly, as provided in this
chapter, shall have the right to may convey any real property so
acquired to the state and provide in the contract with the state as to the
rent of such buildings and improvements thereon, on real property,
until necessary to remove the same, buildings and improvements, and
for the sale of such the buildings and improvements whenever such if
the real property is needed by said the board of trustees for world war
memorial and other public purposes. and such The contract shall must
provide how such the net rent or proceeds shall will be applied.
(d) In the event If any county institutes proceedings to condemn any
real property or interests therein in real property or other property
under this chapter, such the suit shall must be brought:
(1) in the name of such the county;
(2) by an attorney representing the county; and
(3) at the direction of the board of commissioners of such the
county.
(e) In the event of If the joint condemnation of real property under
this chapter, by any county and by any city located therein, such in the
county, the suit shall must be brought in the name of such the county,
as provided in this section, and in the name of such the city by its legal
department, without additional compensation, therefor at the direction
of the board of public works. Such The county, or such the county and
such the city jointly, shall have a right to may:
(1) join in one (1) action as defendants the owners and all persons
interested in one (1) or more tracts of real property to be
condemned; or such county, or such county and city jointly, may
(2) institute proceedings to condemn separate tracts of real
property.
SECTION 54. IC 10-7-6-12 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 12. (a) The board of
public works of any city, acting for such the city or acting jointly with
the board of commissioners of the county in which it is located, to
acquire grounds, real property, and interests therein in real property
by purchase or condemnation for any of the purposes authorized by this
chapter, shall have the right, and authority is hereby granted to any city
and to any county in which it is located, to may proceed under
IC 32-11, IC 32-24, together with all powers of eminent domain
granted in this chapter or any other statute. However, before such the
board of public works shall have the right to may purchase any real
property or interests therein, in real property, either by such the city
or jointly by such the city and the county in which it is located, such
the board of public works or board of trustees, as provided in section
11 of this chapter, or board of public works acting jointly with the
board of commissioners of the county in which such the city is located,
shall cause such must have the real property to be appraised at its true
cash value by at least three (3) disinterested freeholders of such the city
and shall may not have the right to pay more than such the appraised
value for any real property or interests therein. In the event in real
property. If any owner refuses to sell such real property at such the
appraised value, thereof, then same shall the real property or
interests in real property must be acquired by condemnation. It shall
be the duty of The legal department of such the city to shall conduct all
necessary proceedings for the purchase or condemnation of real
property by such the city and county jointly, for any purpose under this
chapter, without additional compensation. therefor.
(b) In the event If any city institutes proceedings to condemn any
real property or interests therein in real property under this chapter,
such the suit shall must be brought in the name of such the city by the
legal department thereof, of the city, without additional compensation,
therefor, at the direction of the board of public works. And in the event
of the If there is a joint condemnation of any real property by any city
and the county in which it is located, such the suit shall must be
brought in the name of such the city as provided in this section and in
the name of such the county, by an attorney representing the county, at
the direction of the board of county commissioners of such the county.
Such The city, or such the city and county jointly, shall have the right
to may:
(1) join in one (1) action as defendants the owners and all persons
interested in one (1) or more tracts of real property to be
condemned; or such city and county jointly may
(2) institute proceedings to condemn separate tracts of real
property and interests therein. in real property.
SECTION 55. IC 12-17-2-33, AS AMENDED BY P.L.57-2000,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 33. (a) The bureau shall, each month, prepare a
list of each person against whom a child support obligation lien is held
under IC 31-16-16-3 (or IC 31-2-11-9 before its repeal). The list must
identify each person liable for a lien by name, address, amount of lien,
and either Social Security number or employer identification number.
The bureau shall certify a copy of the list to the bureau of motor
vehicles.
(b) The bureau of motor vehicles shall, before issuing the title to a
motor vehicle under IC 9-17, determine whether the purchaser's or
assignee's name is on the most recent monthly lien list. If the
purchaser's or assignee's name is on the list, the bureau shall enter as
a lien on the title the name of the state as the lienholder. The state's lien
on a title under this section is subordinate to a prior perfected security
interest if the interest is defined and perfected under either any of the
following:
(1) IC 26-1-9.1.
(2) IC 32-8 (before its repeal).
(3) IC 32-28.
(4) IC 32-29.
(5) IC 32-33.
(6) IC 32-34-10.
(c) A lien against the title under this section must be treated in the
same manner as any other subordinate title lien.
(d) The bureau shall prescribe and furnish release forms for use by
the bureau. When the amount of the lien is paid, the bureau shall issue
to the person against whom the lien was held a release stating that the
amount represented by the lien has been paid. The bureau may also
issue a release to a person against whom the lien is held if the person
has made arrangements, agreed to by the bureau, for the payment of the
amount represented by the lien.
(e) The director of the bureau or the director's designee is the
custodian of all titles having the state as the sole lienholder under this
section. Upon receiving a title from the bureau of motor vehicles under
this section, the director shall notify the owner of the motor vehicle.
between a farmer and the farmer's creditors under subsection (a)(10)
may include the following:
(1) Providing guidance on restructuring debt, including guidance
concerning:
(A) chapters 7, 11, 12, and 13 of the federal bankruptcy law
(11 U.S.C. 101 et seq.); or
(B) assignments for the benefit of creditors under IC 32-12-1.
IC 32-18-1.
(2) Arranging for a meeting between a farmer and the farmer's
creditors.
(3) At a farmer's request, sending a counselor to meetings
between lenders and borrowers to facilitate communications.
(4) Advising and assisting a farmer and the farmer's creditors in
reaching an agreement.
(5) Assisting a farmer in preparing a debt restructuring proposal.
SECTION 67. IC 16-22-8-42 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 42. If the board and the
owner of real property desired for hospital or other purposes in carrying
out this chapter cannot agree on the price, the corporation has the right
to condemn. Condemnation proceedings may be instituted in the name
of the corporation under IC 32-11. IC 32-24.
SECTION 68. IC 16-22-9-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 8. The acquisition and
condemnation authorized by this chapter shall be made in accordance
with IC 32-11-1 IC 32-24-1 and IC 32-11-6. IC 32-24-6.
SECTION 69. IC 16-22-9-9 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 9. The:
(1) costs and expenses incurred in the condemnation proceedings,
including reasonable attorney's fees for the condemning authority;
and
(2) award or damages due the owner of the real property taken in
the condemnation proceedings;
shall be paid by the nonprofit hospital corporation to the owner of the
real property or to the clerk of the court and possession taken by the
nonprofit hospital corporation in accordance with IC 32-11-1-7.
IC 32-24-1-10.
SECTION 70. IC 20-3-11-22 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 22. (a) The said board
of school commissioners shall may not have power to create any debt
in excess of the sum of twenty-five thousand dollars ($25,000) in the
aggregate, except as otherwise provided in this chapter, and except
further such debts as are on or after March 9, 1931, authorized by the
general school laws of this state, Indiana, including within such the
latter exception, but not by way of limitation, thereof, IC 21-4-20 and
IC 20-5-1 through IC 20-5-6.
(b) Notwithstanding the provisions of subsection (a), said the board
shall be is liable upon its lawful contracts with persons rendering
services and furnishing materials incident to the ordinary current
operations of its schools when such if the contracts have been entered
into as provided in this chapter provided and in accordance with law.
and The obligations of said the board to such persons rendering
services or furnishing materials shall may not be considered to be
limited or prohibited by any of the provisions of this chapter.
(c) In case If the compensation to be paid for the purchase of any
real estate or interest therein in real estate required by said the board
for its purposes cannot be agreed upon or determined by the said board
and the persons owning or having an interest in the land desired for its
purposes or sites, then the board of school commissioners shall have
has the power of eminent domain and it shall be its duty to proceed to
have such the compensation determined and to acquire the title to such
the real estate or interest therein in the real estate by action in court
in pursuance of IC 32-11. under IC 32-24. The right and power of said
the board to own and acquire real estate and interests therein in real
estate in any of the manners and for any of the purposes specified in
this chapter or by the general school laws of this state shall may not be
limited to real estate situated within the corporate boundaries of the
civil city in which any such school city is located. but such However,
the right and power to acquire and own real estate shall extend extends
to any parcel or trace of real estate the whole of which is situated:
(1) within one-half (1/2) mile of the nearest point on the corporate
boundary of such the civil city; or
(2) within, or within one-half (1/2) mile of the nearest point on the
boundary of, any platted territory lying outside of, but contiguous
to, or contiguous to another platted territory which that is
contiguous to, the corporate boundary of such the civil city.
(d) The term "Platted territory", as used in subsection (c), is hereby
defined to mean means any territory or land area of which a plat has
been recorded in the manner provided by the laws of the state of
Indiana pertaining to the recording of plats of land.
(e) Before acquiring any real estate or interest therein in real estate
outside the corporate limits of such the civil city, said the board shall,
must, by resolution made a matter of record in its corporate minutes,
find and determine that, in the judgment of said the board, the real
estate or interest therein so in real estate to be acquired will be needed
for the future purposes of said the board. Nothing contained in This
chapter shall be construed to does not limit in any way the right of any
such board to accept, own, and hold any real estate or interest therein,
in real estate, wherever situated, which may be that is acquired by
such the board by gift or devise.
SECTION 71. IC 21-1-5-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 2. (a) This section
applies only when a school corporation or school township sustains loss
by fire, wind, cyclone, or other disaster of all or a major portion of its
school building or school buildings.
(b) A school corporation or school township seeking to exercise its
right of eminent domain under IC 32-11 IC 32-24 for the purpose of
obtaining land for use in reconstructing or replacing the school
building or school buildings shall may not be authorized to condemn
more than twice the acreage established by the Indiana state board of
education as the minimum acreage requirement for the type of school
building damaged or destroyed and being reconstructed or replaced. In
determining the acreage, land already owned by the school corporation
or school township which that adjoins any part of the land out of which
additional land is sought to be condemned shall be used in computing
the total acreage for the reconstruction or replacement of the school
building or school buildings under this section. The need for the
additional land shall be is subject to judicial review in the court where
the condemnation action is filed and may, at the request of either party,
be tried either by the court or a jury before appraisers are appointed
with full rights of appeal, by either party, from the interlocutory
findings.
(c) This chapter shall be is supplemental to any other law and
repeals by implication any law in conflict with this chapter.
SECTION 72. IC 22-12-1-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 4. (a) "Class 1
structure" means any part of the following:
(1) A building or structure that is intended to be or is occupied or
otherwise used in any part by any of the following:
(A) The public.
(B) Three (3) or more tenants.
(C) One (1) or more persons who act as the employees of
another.
(2) A site improvement affecting access by persons with physical
disabilities to a building or structure described in subdivision (1).
(3) Any class of buildings or structures that the commission
determines by rules to affect a building or structure described in
subdivision (1), except buildings or structures described in
subsections (c) through (e).
(b) Subsection (a)(1) includes a structure that contains three (3) or
more condominium units (as defined in IC 32-1-6-2) IC 32-25-2-9) or
other units that:
(1) are intended to be or are used or leased by the owner of the
unit; and
(2) are not completely separated from each other by an
unimproved space.
(c) Subsection (a)(1) does not include a building or structure that:
(1) is intended to be or is used only for an agricultural purpose on
the land where it is located; and
(2) is not used for retail trade or is a stand used for retail sales of
farm produce for eight (8) or less consecutive months in a
calendar year.
(d) Subsection (a)(1) does not include a Class 2 structure.
(e) Subsection (a)(1) does not include a vehicular bridge.
SECTION 73. IC 23-1-45-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 2. (a) A corporation's
board of directors may propose dissolution for submission to the
shareholders.
(b) For a proposal to dissolve to be adopted:
(1) the board of directors must recommend dissolution to the
shareholders unless the board of directors determines that because
of conflict of interest or other special circumstances it should
make no recommendation and communicates the basis for its
determination to the shareholders; and
(2) the shareholders entitled to vote must approve the proposal to
dissolve as provided in subsection (e).
(c) The board of directors may condition its submission of the
proposal for dissolution on any basis.
(d) The corporation shall notify each shareholder, whether or not
entitled to vote, of the proposed shareholders' meeting in accordance
with IC 23-1-29-5. The notice must also state that the purpose, or one
(1) of the purposes, of the meeting is to consider dissolving the
corporation.
(e) Unless the articles of incorporation or the board of directors
(acting under subsection (c)) require a greater vote or a vote by voting
groups, the proposal to dissolve to be adopted must be approved by a
majority of all the votes entitled to be cast on that proposal.
(f) After a proposal for dissolution is adopted, the corporation shall
give the notices required by IC 6-8.1-10-9, IC 22-4-32-23, and
IC 32-9-1.5-25. IC 32-34-1-25.
SECTION 74. IC 23-14-60-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 1. (a) If:
(1) any number of persons have:
(A) acted together as an association or corporation;
(B) acquired, as an association or corporation, land for
cemetery purposes;
(C) sold and granted to persons the right to bury the dead in
lots located on the land; and
(D) actually managed and controlled the land as a cemetery for
at least thirty (30) years; but
(2) the organization that the persons attempted to establish as a
corporation or cemetery association is defective and incomplete
because of a failure to comply with the formalities required by
law in force at some time since the original parties first assumed
to act as an association or corporation;
the owners of the right to bury the dead on lots in the cemetery and
those who may acquire the right become and continue to be a cemetery
association or corporation from March 14, 1913.
(b) The owners of the right to bury the dead on lots in a cemetery
referred to in subsection (a) have all the rights and powers of a
cemetery association or corporation organized under this article,
IC 23-1, or IC 23-17, including the power of eminent domain under
IC 32-11-1. IC 32-24-1.
SECTION 75. IC 23-17-22-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 2. (a) A corporation's
board of directors may propose dissolution for submission to the
members.
(b) For a proposal to dissolve to be adopted, the following
conditions must be met:
(1) The board of directors must recommend dissolution to the
members unless the board of directors determines that because of
conflict of interest or other special circumstances the board
should not make a recommendation and communicates the basis
for the board's determination to the members.
(2) The members entitled to vote must approve the proposal to
dissolve as provided under subsection (f).
(3) A person whose approval is required by articles of
incorporation authorized under IC 23-17-17-1 for an amendment
to the articles of incorporation or bylaws must approve the
proposal to dissolve in writing.
(c) If a corporation does not have members, dissolution must be
approved by a majority of the directors in office at the time dissolution
is approved. The corporation shall provide notice to directors of a
director's meeting where an approval for dissolution will be sought
under IC 23-17-15-3. The notice must state that the purpose of the
meeting is to consider the proposed dissolution.
(d) The board of directors may condition the board's submission of
the proposal for dissolution on any basis.
(e) The corporation must notify each member, whether or not
entitled to vote, of the proposed members' meeting under
IC 23-17-10-5. The notice must state that the purpose of the meeting is
to consider dissolving the corporation.
(f) Unless articles of incorporation or a board of directors acting
under subsection (d) require a greater vote or a vote by voting groups,
the proposal to dissolve to be adopted must be approved by the
members by a majority of the votes cast on the proposal.
(g) After a proposal for dissolution is adopted, the corporation must
give the notices required under the following:
(1) IC 6-8.1-10-9.
(2) IC 22-4-32-23.
(3) IC 32-9-1.5-25. IC 32-34-1-25.
SECTION 76. IC 24-4-7-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 7. (a) If a principal
makes a revocable offer of a commission to a sales representative who
is not an employee of the principal, the sales representative is entitled
to the commission agreed upon if:
(1) the principal revokes the offer of commission and the sales
representative establishes that the revocation was for a purpose of
avoiding payment of the commission;
(2) the revocation occurs after the sales representative has
obtained a written order for the principal's product because of the
efforts of the sales representative; and
(3) the principal's product that is the subject of the order is
shipped to and paid for by a customer.
(b) This section may not be construed:
(1) to impair the application of IC 32-2-1 IC 32-21-1 (statute of
frauds);
(2) to abrogate any rule of agency law; or
(3) to unconstitutionally impair the obligations of contracts.
SECTION 77. IC 24-5-12-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 8. As used in this
chapter, "seller" means a person who, personally, through salespersons,
or through the use of an automated dialing and answering device,
makes a solicitation if in the solicitation any one (1) of the following
occurs:
(1) There is a false representation or implication that a prospect
will receive a gift, prize, or the value of a gift or prize.
(2) There is an offer of a vacation at a reduced price if the
vacation involves the prospect attending a presentation in which
the prospect is solicited to purchase a time share or camping club
membership and if the seller does not own the time share or
camping club, does not represent the owner of the time share or
camping club, or misrepresents the value of the vacation. Terms
in this subdivision have the meaning set forth in IC 24-5-9.
IC 32-32.
(3) There is a representation or implication that a prospect who
buys office equipment or supplies will, because of some unusual
event or imminent price increase, be able to buy these items at
prices that are below those that are usually charged or will be
charged for the items if the price advantage for the prospect does
not exist.
(4) There is a false representation or implication as to the identity
of the person making the solicitation.
(5) There is a representation or implication that the items for sale
are manufactured or supplied by a person other than the actual
manufacturer or supplier.
(6) There is an offer to sell the prospect precious metals, precious
stones, coal, or other minerals, or any interest in oil, gas, or
mineral fields, wells, or exploration sites, if the seller does not
own the items, does not represent the owner, or misrepresents the
value of the items.
SECTION 78. IC 26-1-10-102 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 102. (1) To the extent
that the following statutes are inconsistent with IC 26-1-7, such the
statutes are repealed:
IC 32-8-35, IC 32-33-14, dealing with liens for warehousing and
forwarding.
IC 26-3-4, prescribing requirements of warehouse receipts for
goods stored in another state.
(2) To the extent that the following statutes are inconsistent with
IC 26-1, such the statutes are repealed:
IC 26-2-3, governing the rights of parties on certain negotiable
and non-negotiable instruments.
IC 30-2-4-3, concerning fiduciaries.
(3) To the extent that IC 34-1-2-1 (before its repeal), IC 34-1-2-2
(before its repeal), and IC 34-11-2 prescribe statutes of limitations
inconsistent with IC 26-1-2-725, IC 26-1-2-725 prevails.
SECTION 79. IC 26-2-9 IS ADDED TO THE INDIANA CODE AS
A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2002]:
Chapter 9. Credit Agreements
Sec. 1. As used in this chapter, "credit agreement" means an
agreement to:
(1) lend or forbear repayment of money, goods, or things in
action;
(2) otherwise extend credit; or
(3) make any other financial accommodation.
Sec. 2. As used in this chapter, "creditor" means:
(1) a bank, a savings bank, a trust company, a savings
association, a credit union, an industrial loan and investment
company, or any other financial institution regulated by any
agency of the United States or any state, including a consumer
finance institution licensed to make supervised or regulated
loans under IC 24-4.5;
(2) a person authorized to sell and service loans for the
Federal National Mortgage Association or the Federal Home
Loan Mortgage Corporation, issue securities backed by the
Government National Mortgage Association, make loans
insured by the United States Department of Housing and
Urban Development, make loans guaranteed by the United
States Department of Veterans Affairs, or act as a
correspondent of loans insured by the United States
Department of Housing and Urban Development or
guaranteed by the United States Department of Veterans
Affairs; or
(3) an insurance company or its affiliates that extend credit
under a credit agreement with a debtor.
Sec. 3. As used in this chapter, "debtor" means a person who:
(1) obtains credit under a credit agreement with a creditor;
(2) seeks a credit agreement with a creditor; or
(3) owes money to a creditor.
Sec. 4. A debtor may bring an action upon a credit agreement
only if the agreement:
(1) is in writing;
(2) sets forth all material terms and conditions of the credit
agreement, including the loan amount, rate of interest,
duration, and security; and
(3) is signed by the creditor and the debtor.
Sec. 5. A debtor may bring an action upon an agreement with a
creditor to enter into a new credit agreement, amend or modify a
prior credit agreement, forbear from exercising rights under a
prior credit agreement, or grant an extension under a prior credit
agreement only if the agreement:
(1) is in writing;
(2) sets forth all the material terms and conditions of the
agreement; and
(3) is signed by the creditor and the debtor.
SECTION 80. IC 26-3-7-31, AS AMENDED BY P.L.173-1999,
SECTION 14, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 31. (a) Whenever it appears to the satisfaction of
the director that a licensee cannot meet the licensee's outstanding grain
obligations owed to depositors, or when a licensee refuses to submit the
licensee's records or property to lawful inspection, the director may
give notice to the licensee to do any of the following:
(1) Cover the shortage with grain that is fully paid for.
(2) Give additional bond, letter of credit, or cash deposit as
required by the director.
(3) Submit to inspection as the director may deem necessary.
(b) If the licensee fails to comply with the terms of the notice within
five (5) business days from the date of its issuance, or within an
extension of time that the director may allow, the director may petition
the circuit court of the Indiana county where the licensee's principal
place of business is located seeking the appointment of a receiver. If
the court determines in accordance with IC 34-48-1 IC 32-30-5 that a
receiver should be appointed, upon the request of the licensee the court
may appoint the agency or its representative to act as receiver. The
agency or its representative shall not be appointed as receiver except
upon the request of the licensee. If the agency or its representative is
appointed, any person interested in an action as described in
IC 34-48-1-2 IC 32-30-5-2 may after twenty (20) days request that the
agency or its representative be removed as receiver. If the agency or its
representative is not serving as receiver, the receiver appointed shall
meet and confer with representatives of the agency regarding the
licensee's grain related obligations and, before taking any actions
regarding those obligations, the receiver and the court shall consider
the agency's views and comments.
SECTION 81. IC 26-3-8-15 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 15. (a) Any sale of the
personal property under this chapter shall be held at the self-service
storage facility or, if that facility is not a suitable place for a sale, at the
suitable place nearest to where the property is held or stored.
(b) The owner may buy the personal property at any sale under this
chapter.
(c) An owner may satisfy the owner's lien from the proceeds of a
sale under this chapter. If the proceeds of a sale under this chapter
exceed the amount of the owner's lien, the owner shall hold the balance
for delivery, upon demand, to the renter. If the renter does not claim the
balance of the proceeds within one (1) year after the sale, the balance
shall be treated as unclaimed property under IC 32-9-1.5. IC 32-34-1.
SECTION 82. IC 27-3-1-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 3. (a) Subject to section
2 of this chapter, any domestic company may adopt a plan of exchange
with any acquiring corporation providing for the exchange of the
outstanding stock of the domestic company for shares of stock or other
securities issued by the acquiring corporation or cash or other
consideration, or any combination, thereof in the following manner.
The boards of directors of the domestic company and of the acquiring
corporation by resolutions approved by a majority of the whole of each
such board shall adopt a plan of exchange which shall set that sets
forth the terms and conditions of the exchange and the mode of
carrying the same terms and conditions into effect and such other
provisions with respect to the exchange as may be deemed necessary
or desirable.
(b) The domestic company and the acquiring corporation shall
submit to the insurance commissioner three (3) copies of the plan of
exchange certified by an officer of each as having been adopted in
accordance with subsection (a). Such The copies of the plan of
exchange shall be accompanied by financial statements of the domestic
company for its last preceding fiscal year prepared pursuant to
IC 27-1-20-21, pro forma financial statements of each corporation
based on the assumption that the plan of exchange was effective as
proposed at the end of the last preceding fiscal year of the domestic
company, an estimate of expenses already incurred and of expenses
expected to be incurred in connection with the proposed plan of
exchange, and a written statement which that sets forth for each
corporation the proposed changes, if any, in management policies and
in the identity of officers and directors of the domestic company and of
the acquiring corporation which that are initially contemplated should
if the plan of exchange be is effected as proposed. The insurance
commissioner shall hold a hearing upon the fairness of (i) the terms,
conditions, and provisions of the plan of exchange and (ii) the proposed
exchange of stock or other securities of the acquiring corporation or
cash or other consideration or any combination thereof for the stock of
the domestic company at which hearing the policyholders and the
shareholders of both the domestic company and the acquiring
corporation and any other interested party shall have the right to may
appear and to become party to the proceeding. The commissioner shall
require the domestic company and the acquiring corporation to produce
such evidence as he shall deem the commissioner considers necessary
to establish the foregoing, including in any event evidence concerning
the valuation of the respective companies and the method utilized by
the management of each corporation to accomplish such the valuation,
inclusive of the value established with respect to the stock of the
domestic company which that is proposed to be exchanged as well as
the value of the stock, securities, and consideration other than cash to
be offered by the acquiring corporation in such the exchange. Such
The hearing shall be commenced not less than twenty (20) days after
the date on which the plan of exchange is presented to the
commissioner. The hearing shall be held in the city of Indianapolis,
Indiana, at such a place, date, and time as specified by the insurance
commissioner. shall specify. Notice of the hearing shall be published
in a newspaper of general circulation in the city or cities wherein are
located where the principal office of the domestic company and of the
acquiring corporation are located and in the city of Indianapolis once
a week for two (2) successive weeks. Written notice of the hearing
shall be mailed at least ten (10) days prior to before the hearing by the
domestic company and by the acquiring corporation to all of their
respective shareholders. All expenses of publication shall be borne by
the domestic company or the acquiring corporation, or both, as shall be
specified in the plan of exchange. Except as otherwise provided in this
section, the hearing and the determination made therein shall be are
subject to IC 4-21.5-3. The commissioner shall issue an order
approving the plan of exchange as delivered to him the commissioner
by the domestic company and the acquiring corporation and such the
modifications therein as approved by a majority of the whole board of
directors of each such corporation shall approve if he the
commissioner finds:
(i) (1) that the plan, including all such modifications, if effected,
will not tend adversely to affect the financial stability or
management of the domestic company or the general capacity or
intention to continue the safe and prudent transaction of the
insurance business of the domestic company, or of the acquiring
corporation, if it is a domestic insurance company;
of the adoption of the plan of exchange shall be mailed or delivered
personally to each shareholder of record of such the company who was
entitled to vote thereon. on the plan. The domestic company shall
thereafter file with the department an affidavit of the secretary or an
assistant secretary of such the company or of an officer of the transfer
agent of such the company that such the notice was given.
(e) Any shareholder of the domestic company owning shares not
voted in favor of such the plan at the meeting at which the plan was
approved by the shareholders of the domestic company may object in
writing to the plan and demand payment, should the plan become
effective, of the fair value of any of such shares as of the day on which
the plan of exchange was approved by the shareholders of the domestic
company pursuant to subsection (c). Such The objection and demand
must be received, together with the certificate or certificates
representing the shares with respect to which objection and demand
have been made for notation thereon that such the objection and
demand have been made, by the domestic company or its transfer agent
within thirty (30) days after the date of said the meeting of
shareholders. No such The objection and demand shall may not
pertain to any shares which that were voted in favor of the plan.
Objection and demand can only be made jointly by the holders of any
share jointly held. No such The objection and demand may not be
withdrawn unless the domestic company, by a duly an authorized
officer, consents thereto in writing. Upon the plan of exchange
becoming effective, the holder of any shares, with respect to which
such the objection and demand have been made and certificates for
which have been delivered to the domestic company or its transfer
agent for notation, or any transferee, thereof, shall cease ceases to be
a shareholder of the domestic company with respect to such the shares
and shall have no does not have rights with respect to such the shares
except the right to receive payment therefor in accordance with the
provisions of for the shares under this subsection. Every shareholder
failing to make objection and demand accompanied by certificates
representing the shares with respect to which such the objection and
demand have been made or withdrawing such the objection and
demand as provided in this subsection shall be are conclusively
presumed to have assented to, and to have agreed to be bound by, the
plan of exchange in accordance with its terms. Within forty-five (45)
days after the date of the meeting of shareholders of the domestic
company at which the plan of exchange was approved by such the
shareholders, the domestic company, or, if the plan of exchange so
specifies, the acquiring corporation, shall mail a written offer to each
holder of record of shares with respect to which an objection and
demand have been made, as provided in this subsection, to pay for such
the shares a price per share deemed considered by such the
corporation to be the fair value thereof of the shares as of the date of
such the meeting. The form of written offer to be used, including the
price per share, shall first be submitted to and approved by the
insurance commissioner. If such the offer is accepted in writing by
such the holder, such the corporation shall pay such the holder, within
forty-five (45) days after the date of the plan of exchange becoming
effective, such the price upon the surrender of the certificate or
certificates representing such the shares. If, within thirty (30) days after
the date of the mailing of such the written offer, the domestic company
or the acquiring corporation, as the case may be, and a shareholder do
not so agree, such the corporation or the shareholder may, within
ninety (90) days after the date of the mailing of such the written offer,
petition the circuit or the superior court of the county in which the
principal office of the domestic company is located to appraise the fair
value of such the shares as of the date of the meeting of shareholders
of the domestic company at which the plan of exchange was approved
by such the shareholders and payment of the appraised value thereof
of the shares shall be made by the domestic company or, if the plan of
exchange so specifies, the acquiring corporation within sixty (60) days
after the entry of the judgment or order finding such the appraised
value upon the surrender of the certificate or certificates representing
such the shares. The practice, procedure, and judgment in the circuit
or superior court upon such the petition shall be is the same, so far as
practical, as that under IC 32-11. Such IC 32-24. The judgment of such
the circuit or superior court shall be is final. All shares acquired by the
domestic company upon payment of the value therefor of the shares
shall be canceled by the board of directors of the domestic company
upon the plan of exchange becoming effective or at any time thereafter,
after the plan becomes effective and the capital stock of the domestic
company shall be decreased in accordance with IC 27-1-8-12. If the
plan of exchange does not become effective, the right of shareholders
or transferees to be paid the fair value of their shares under this
subsection shall cease, and their status shall be the same as that of
shareholders who voted in favor of the plan. If a shareholder or his the
shareholder's transferee with respect to any share or shares for which
objection and demand has been made:
(i) (1) withdraws such the objection and demand in the manner
provided by this subsection;
(ii) (2) fails to submit a certificate or certificates at the time and
in the manner required by this subsection;
(iii) (3) does not file a petition for the determination of fair value
within the time and in the manner provided in this subsection and
neither the domestic company nor the acquiring corporation files
a petition for such determination; or
(iv) (4) is adjudged by a court of competent jurisdiction not to be
entitled to the relief provided by this subsection;
then in any such event the right of the shareholder or his the
shareholder's transferee to be paid the fair value of such the share or
shares under this subsection shall cease, and his the shareholder's
status with respect to such the share or shares shall be is the same as
that of a shareholder who voted in favor of the plan.
SECTION 83. IC 27-5-9-21 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 21. (a) A receiver may
be appointed for any such corporation under IC 34-48-1. In the event
of the appointment of IC 32-30-5.
(b) If a receiver is appointed for any such corporation, such the
receiver shall be is entitled to receive all securities of such the
company deposited with the insurance commissioner. And
(c) Receivers may be appointed by the courts of this state for foreign
corporations doing business in this state Indiana under this chapter.
and such The receivers shall have the right to the possession of any
securities of such the corporation in the hands of the commissioner.
And
(d) Receivers appointed under the provisions of this chapter shall
collect or dispose of securities and pay out the funds realized therefrom
from the securities as the courts appointing them the receivers may
direct.
SECTION 84. IC 33-4-3-7, AS AMENDED BY P.L.180-1999,
SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 7. The small claims docket has jurisdiction over
the following:
(1) Civil actions in which the amount sought or value of the
property sought to be recovered is not more than three thousand
dollars ($3,000). The plaintiff in a statement of claim or the
defendant in a counterclaim may waive the excess of any claim
that exceeds three thousand dollars ($3,000) in order to bring it
within the jurisdiction of the small claims docket.
(2) Possessory actions between landlord and tenant in which the
rent due at the time the action is filed does not exceed three
thousand dollars ($3,000).
(3) Emergency possessory actions between a landlord and tenant
under IC 32-7-9. IC 32-31-6.
SECTION 85. IC 33-5-2-4, AS AMENDED BY P.L.180-1999,
SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 4. (a) Except as provided in subsection (b), the
small claims docket has jurisdiction over the following:
(1) Civil actions in which the amount sought or value of the
property sought to be recovered is not more than three thousand
dollars ($3,000). The plaintiff in a statement of claim or the
defendant in a counterclaim may waive the excess of any claim
that exceeds three thousand dollars ($3,000) in order to bring it
within the jurisdiction of the small claims docket.
(2) Possessory actions between landlord and tenant in which the
rent due at the time the action is filed does not exceed three
thousand dollars ($3,000).
(3) Emergency possessory actions between a landlord and tenant
under IC 32-7-9. IC 32-31-6.
(b) This subsection applies to a county having a population of more
than three hundred thousand (300,000) but less than four hundred
thousand (400,000). The small claims docket has jurisdiction over the
following:
(1) Civil actions in which the amount sought or value of the
property sought to be recovered is not more than six thousand
dollars ($6,000). The plaintiff in a statement of claim or the
defendant in a counterclaim may waive the excess of any claim
that exceeds six thousand dollars ($6,000) in order to bring it
within the jurisdiction of the small claims docket.
(2) Possessory actions between landlord and tenant in which the
rent due at the time the action is filed does not exceed six
thousand dollars ($6,000).
(3) Emergency possessory actions between a landlord and tenant
under IC 32-7-9. IC 32-31-6.
SECTION 86. IC 33-5-19.3-11, AS AMENDED BY P.L.180-1999,
SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 11. (a) The court has a standard small claims and
misdemeanor division.
(b) Notwithstanding IC 33-5-2-4, the small claims docket has
jurisdiction over the following:
(1) Civil actions in which the amount sought or value of the
property sought to be recovered is not more than six thousand
dollars ($6,000). The plaintiff in a statement of claim or the
defendant in a counterclaim may waive the excess of any claim
that exceeds six thousand dollars ($6,000) in order to bring the
claim within the jurisdiction of the small claims docket.
(2) Possessory actions between landlord and tenant in which the
rent due at the time the action is filed does not exceed six
thousand dollars ($6,000).
(3) Emergency possessory actions between a landlord and tenant
under IC 32-7-9. IC 32-31-6.
SECTION 87. IC 33-10.5-7-1, AS AMENDED BY P.L.180-1999,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 1. Each judge of the county court shall maintain
the following dockets:
(1) An offenses and violations docket.
(2) A small claims docket for the following:
(A) All cases where the amount sought or value of the property
sought to be recovered is three thousand dollars ($3,000) or
less; the plaintiff in a statement of claim or the defendant in a
counterclaim may waive the excess of his claim over three
thousand dollars ($3,000) to bring it within the jurisdiction of
the small claims docket.
(B) All possessory actions between landlord and tenant in
which the rent due at the time the action is filed does not
exceed three thousand dollars ($3,000).
(C) Emergency possessory actions between a landlord and
tenant under IC 32-7-9. IC 32-31-4.
(3) A plenary docket for all other civil cases.
SECTION 88. IC 33-11.6-4-3.5, AS ADDED BY P.L.180-1999,
SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 3.5. The court has original and concurrent
jurisdiction with the circuit and superior court in emergency possessory
actions between a landlord and tenant under IC 32-7-9. IC 32-31-6.
SECTION 89. IC 34-6-2-103, AS AMENDED BY P.L.95-2001,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 103. (a) "Person", for purposes of IC 34-14, has
the meaning set forth in IC 34-14-1-13.
(b) "Person", for purposes of IC 34-19-2, has the meaning set forth
in IC 35-41-1.
(c) (b) "Person", for purposes of IC 34-24-4, means:
(1) an individual;
(2) a governmental entity;
(3) a corporation;
(4) a firm;
(5) a trust;
(6) a partnership; or
who acts within the scope of the employee's responsibilities.
(4) A volunteer firefighter (as defined in IC 36-8-12-2) who is
acting for a volunteer fire department.
SECTION 90. IC 34-7-4-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 2. Statutes outside
IC 34 providing causes of action or procedures include the following:
(1) IC 4-21.5-5 (Judicial review of administrative agency actions).
(2) IC 22-3-4 (Worker's compensation administration and
procedures).
(3) IC 22-4-17 (Unemployment compensation system, employee's
claims for benefits).
(4) IC 22-4-32 (Unemployment compensation system, employer's
appeal process).
(5) IC 22-9 (Civil rights actions).
(6) IC 31-14 (Paternity).
(7) IC 31-15 (Dissolution of marriage and legal separation).
(8) IC 31-16 (Support of children and other dependants).
(9) IC 31-17 (Custody and visitation).
(10) IC 31-19 (Adoption).
(11) IC 32-15 IC 32-27-2, IC 32-30-1, IC 32-30-2, IC 32-30-2.1,
IC 32-30-2, IC 32-30-4, IC 32-30-9, IC 32-30-10, IC 32-30-12,
IC 32-30-13, and IC 32-30-14 (Real Property).
(12) IC 33-1-3 (Attorney Liens).
SECTION 91. IC 34-26-1-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 1. In addition to the
injunctions and restraining orders discussed in this article, the
following statutes also contain provisions concerning injunctions or
restraining orders:
(1) IC 34-19-1 IC 32-30-6 (governing nuisance actions).
(2) IC 34-19-2 IC 32-30-7 (governing actions for indecent
nuisance).
(3) IC 34-24-2 (governing civil remedies for racketeering
activities).
SECTION 92. IC 34-30-2-135 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 135. IC 32-2-1-1
IC 32-21-1-1 (Concerning persons for breach of certain unwritten
contracts).
SECTION 93. IC 34-30-2-136 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 136. IC 32-2-1-6
IC 32-21-1-6 (Concerning persons making unwritten representations
about another person).
SECTION 94. IC 34-30-2-137 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 137. IC 32-8-11-6
IC 32-29-1-7 (Concerning mortgagors for actions on mortgages for
which a certificate of satisfaction has been acknowledged by the
mortgagee).
SECTION 95. IC 34-30-2-138 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 138. IC 32-8-28-1
IC 32-33-7-2 (Concerning proprietor or manager of a hotel, apartment
hotel, or inn in certain circumstances involving the safekeeping of
personal property of guests).
SECTION 96. IC 34-30-2-139 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 139. IC 32-9-1.5-29
IC 32-34-1-29 (Concerning holders of abandoned property who deliver
the property to the attorney general).
SECTION 97. IC 34-30-2-140 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 140. IC 32-10-9-5
IC 32-26-9-5 (Concerning township trustee for contracts to repair
fences).
SECTION 98. IC 34-31-2-9 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 9. IC 32-8-28-1
IC 32-33-7-2 (Concerning proprietor or manager of a hotel, apartment
hotel, or inn for guest's valuables kept in a safe).
SECTION 99. IC 34-36-5-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 2. In actions for the
recovery of property, the jury must make the assessments required
under IC 34-21-10. IC 32-35-2-35.
SECTION 100. IC 34-41-1-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 2. The circumstances
under which seals are required on deeds and other instruments
conveying land are governed by IC 32-2-5-1 IC 32-21-1-12 and
IC 34-37-1.
SECTION 101. IC 34-49-3-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 1. When If a suit is
brought:
(1) in replevin; and
(2) against an officer who issued a writ of attachment or execution
under IC 32-35-2-26 (or IC 34-21-6-1 or IC 34-2-4-1 before its
their repeal);
the officer may demand a bond from the attachment or execution
plaintiff to indemnify the officer in the replevin suit.
SECTION 102. IC 34-54-10-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 1. Judgments in actions
concerning the recovery of the possession of personal property are
governed by IC 34-21-9. IC 32-35-2-33 and IC 32-35-2-34.
SECTION 103. IC 34-54-10-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 2. Judgments in
mortgage actions are governed under IC 32-15-8. IC 32-30-12.
SECTION 104. IC 34-54-10-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 3. The purchase of
property subject to judgment is governed by IC 32-15-9. IC 32-30-13.
SECTION 105. IC 35-50-5-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 3. (a) Except as
provided in subsection (i), in addition to any sentence imposed under
this article for a felony or misdemeanor, the court may, as a condition
of probation or without placing the person on probation, order the
person to make restitution to the victim of the crime, the victim's estate,
or the family of a victim who is deceased. The court shall base its
restitution order upon a consideration of:
(1) property damages of the victim incurred as a result of the
crime, based on the actual cost of repair (or replacement if repair
is inappropriate);
(2) medical and hospital costs incurred by the victim (before the
date of sentencing) as a result of the crime;
(3) earnings lost by the victim (before the date of sentencing) as
a result of the crime including earnings lost while the victim was
hospitalized or participating in the investigation or trial of the
crime; and
(4) funeral, burial, or cremation costs incurred by the family or
estate of a homicide victim as a result of the crime.
(b) A restitution order under subsection (a) or (i) is a judgment lien
that:
(1) attaches to the property of the person subject to the order;
(2) may be perfected;
(3) may be enforced to satisfy any payment that is delinquent
under the restitution order by the person in whose favor the order
is issued or the person's assignee; and
(4) expires;
in the same manner as a judgment lien created in a civil proceeding.
(c) When a restitution order is issued under subsection (a), the
issuing court may order the person to pay the restitution, or part of the
restitution, directly to the victim services division of the Indiana
criminal justice institute in an amount not exceeding:
(1) the amount of the award, if any, paid to the victim under
IC 5-2-6.1; and
(2) the cost of the reimbursements, if any, for emergency services
provided to the victim under IC 16-10-1.5 (before its repeal) or
IC 16-21-8.
The victim services division of the Indiana criminal justice institute
shall deposit the restitution received under this subsection in the
violent crime victims compensation fund established by IC 5-2-6.1-40.
(d) When a restitution order is issued under subsection (a) or (i), the
issuing court shall send a certified copy of the order to the clerk of the
circuit court in the county where the felony or misdemeanor charge was
filed. The restitution order must include the following information:
(1) The name and address of the person that is to receive the
restitution.
(2) The amount of restitution the person is to receive.
Upon receiving the order, the clerk shall enter and index the order in
the circuit court judgment docket in the manner prescribed by
IC 33-17-2-3. The clerk shall also notify the department of insurance
of an order of restitution under subsection (i).
(e) An order of restitution under subsection (a) or (i) does not bar a
civil action for:
(1) damages that the court did not require the person to pay to the
victim under the restitution order but arise from an injury or
property damage that is the basis of restitution ordered by the
court; and
(2) other damages suffered by the victim.
(f) Regardless of whether restitution is required under subsection (a)
as a condition of probation or other sentence, the restitution order is not
discharged by the completion of any probationary period or other
sentence imposed for a felony or misdemeanor.
(g) A restitution order under subsection (a) or (i) is not discharged
by the liquidation of a person's estate by a receiver under IC 32-30-5
(or IC 34-48-1, IC 34-48-4, IC 34-48-5, and IC 34-48-6, or IC 34-1-12,
and or IC 34-2-7 before their repeal).
(h) The attorney general may pursue restitution ordered by the court
under subsections (a) and (c) on behalf of the victim services division
of the Indiana criminal justice institute established under IC 5-2-6-8.
(i) The court may order the person convicted of an offense under
IC 35-43-9 to make restitution to the victim of the crime. The court
shall base its restitution order upon a consideration of the amount of
money that the convicted person converted, misappropriated, or
received, or for which the convicted person conspired. The restitution
order issued for a violation of IC 35-43-9 must comply with
subsections (b), (d), (e), and (g), and is not discharged by the
completion of any probationary period or other sentence imposed for
a violation of IC 35-43-9.
SECTION 106. IC 35-50-5-4, AS AMENDED BY P.L.1-1999,
SECTION 79, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 4. (a) This section applies only:
(1) if the county in which a criminal proceeding was filed adopts
an ordinance under IC 36-2-13-15; and
(2) to a person who is sentenced under this article for a felony or
a misdemeanor.
(b) At the time the court imposes a sentence, the court may order the
person to execute a reimbursement plan as directed by the court and
make repayments under the plan to the county for the costs described
in IC 36-2-13-15.
(c) The court shall fix an amount under this section that:
(1) may not exceed an amount the person can or will be able to
pay;
(2) does not harm the person's ability to reasonably be
self-supporting or to reasonably support any dependent of the
person; and
(3) takes into consideration and gives priority to any other
restitution, reparation, repayment, costs, fine, or child support
obligations the person is required to pay.
(d) When an order is issued under this section, the issuing court
shall send a certified copy of the order to the clerk of the circuit court
in the county where the felony or misdemeanor charge was filed. Upon
receiving the order, the clerk shall enter and index the order in the
circuit court judgment docket in the manner prescribed by
IC 33-17-2-3.
(e) An order under this section is not discharged:
(1) by the completion of a sentence imposed for a felony or
misdemeanor; or
(2) by the liquidation of a person's estate by a receiver under
IC 32-30-5 (or IC 34-48-1, IC 34-48-4, IC 34-48-5, and
IC 34-48-6 before their repeal).
SECTION 107. IC 36-2-7-10, AS AMENDED BY P.L.241-1999,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 10. (a) The county recorder shall tax and collect
the fees prescribed by this section for recording, filing, copying, and
other services the recorder renders, and shall pay them into the county
treasury at the end of each calendar month. The fees prescribed and
collected under this section supersede all other recording fees required
by law to be charged for services rendered by the county recorder.
(b) The county recorder shall charge the following:
preservation of records and the improvement of record keeping systems
and equipment.
(d) As used in this section, "record" or "recording" includes the
functions of recording, filing, and filing for record.
(e) The county recorder shall post the fees set forth in subsection (b)
in a prominent place within the county recorder's office where the fee
schedule will be readily accessible to the public.
(f) The county recorder may not tax or collect any fee for:
(1) recording an official bond of a public officer, a deputy, an
appointee, or an employee; or
(2) performing any service under any of the following:
(A) IC 6-1.1-22-2(c).
(B) IC 8-23-7.
(C) IC 8-23-23.
(D) IC 10-5-4-3.
(E) IC 10-5-7-1(a).
(F) IC 12-14-13.
(G) IC 12-14-16.
(g) The state and its agencies and instrumentalities are required to
pay the recording fees and charges that this section prescribes.
SECTION 108. IC 36-6-4-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 3. The executive shall
do the following:
(1) Keep a written record of official proceedings.
(2) Manage all township property interests.
(3) Keep township records open for public inspection.
(4) Attend all meetings of the township legislative body.
(5) Receive and pay out township funds.
(6) Examine and settle all accounts and demands chargeable
against the township.
(7) Administer poor relief under IC 12-20 and IC 12-30-4.
(8) Perform the duties of fence viewer under IC 32-10. IC 32-26.
(9) Act as township assessor when required by IC 36-6-5.
(10) Provide and maintain cemeteries under IC 23-14.
(11) Provide fire protection under IC 36-8.
(12) File an annual personnel report under IC 5-11-13.
(13) Provide and maintain township parks and community centers
under IC 36-10.
(14) Destroy detrimental plants, noxious weeds, and rank
vegetation under IC 15-3-4.
(15) Provide insulin to the poor under IC 12-20-16.
(16) Perform other duties prescribed by statute.
a public use may be acquired under this section, but property belonging
to the state or any political subdivision may not be acquired without its
consent.
(c) The court having jurisdiction shall direct the clerk of the circuit
court to execute a deed conveying the title of real property acquired
under this section to the unit for the use and benefit of its department
of redevelopment.
SECTION 111. IC 36-7-14-32.5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 32.5. (a) The
commission may acquire a parcel of real property by the exercise of
eminent domain when the real property has all of the following
characteristics:
(1) The real property is an unsafe building (as defined in
IC 36-7-9-4) and is subject to an order issued under IC 36-7-9-5.
(2) The owner of the real property has not complied with the order
issued under IC 36-7-9-5.
(3) The real property is not being used as a residence or for a
business enterprise.
(4) The real property is capable of being developed or
rehabilitated to provide affordable housing for low or moderate
income families or to provide other development that will benefit
or serve low or moderate income families.
(5) The unsafe condition of the real property has a negative
impact on the use or value of the neighboring properties or other
properties in the community.
(b) The commission or the commission's designated hearing
examiner shall conduct a public meeting to determine whether a parcel
of real property has the characteristics set forth in subsection (a). Each
person holding a fee or life estate interest of record in the property must
be given notice by first class mail of the time and date of the hearing at
least ten (10) days before the hearing and is entitled to present evidence
and make arguments at the hearing.
(c) Whenever If the commission considers it necessary to acquire
real property under this section, the commission shall adopt a
resolution setting out the commission's determination to exercise that
power and directing the commission's attorney to file a petition in the
name of the city on behalf of the department in the circuit or superior
court with jurisdiction in the county.
(d) Eminent domain proceedings under this section are governed by
IC 32-11. IC 32-24.
(e) The commission shall use real property acquired under this
section for one (1) of the following purposes:
or serve low or moderate income families.
(4) The blighted condition of the real property has a negative
impact on the use or value of the neighboring properties or other
properties in the community.
(b) The commission or its designated hearing examiner shall
conduct a public meeting to determine whether the conditions set forth
in subsection (a) exist relative to a parcel of real property. Each person
holding a fee or life estate interest of record in the property must be
given notice by first class mail of the time and date of the hearing at
least ten (10) days before the hearing, and is entitled to present
evidence and make arguments at the hearing.
(c) Whenever If the commission considers it necessary to acquire
real property under this section, it shall adopt a resolution setting out
its determination to exercise that power and directing its attorney to file
a petition in the name of the city on behalf of the department in the
circuit or superior court in the county.
(d) Eminent domain proceedings under this section are governed by
IC 32-11. IC 32-24.
(e) The commission shall use real property acquired under this
section for one (1) of the following purposes:
(1) Sale in an urban homestead program under IC 36-7-17.
(2) Sale to a family whose income is at or below the county's
median income for families.
(3) Sale or grant to a neighborhood development corporation or
other nonprofit corporation, with a condition in the granting
clause of the deed requiring the nonprofit organization to lease or
sell the property to a family whose income is at or below the
county's median income for families or to cause development that
will serve or benefit families whose income is at or below the
county's median income for families. However, a nonprofit
organization is eligible for a sale or grant under this subdivision
only if the county fiscal body has determined that the nonprofit
organization meets the criteria established under subsection (f).
(4) Any other purpose appropriate under this chapter so long as
it will serve or benefit families whose income is at or below the
county's median income for families.
(f) The county fiscal body shall establish criteria for determining the
eligibility of neighborhood development corporations and other
nonprofit corporations for sales and grants of real property under
subsection (e)(3). A neighborhood development corporation or other
nonprofit corporation may apply to the county fiscal body for a
determination concerning the corporation's compliance with the criteria
established under this subsection.
(g) A neighborhood development corporation or nonprofit
corporation that receives property under this section must agree to
rehabilitate or otherwise develop the property in a manner that is
similar to and consistent with the use of the other properties in the area
served by the corporation.
SECTION 114. IC 36-7-15.1-39, AS ADDED BY P.L.102-1999,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 39. (a) A commission has the duties set forth in
section 6 of this chapter.
(b) A commission may exercise all the powers set forth in section
7 of this chapter, except that all powers regarding condemnation and
eminent domain under this section are vested solely in the legislative
body of an excluded city. Eminent domain proceedings under this
section are governed by IC 32-11. IC 32-24.
SECTION 115. IC 36-7-18-28 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 28. (a) A housing
authority may, by the exercise of the power of eminent domain, acquire
any real property that it considers necessary for its purposes under this
chapter, if it first adopts a resolution declaring that necessity. An
authority may exercise the power of eminent domain:
(1) under IC 32-11-1; IC 32-24;
(2) under IC 32-11-1.5, IC 32-24-2, as if it was were a works
board; or
(3) under any other applicable statutory provisions for the
exercise of the power of eminent domain.
(b) Property already devoted to a public use may be acquired under
this section, but real property belonging to the state or any political
subdivision may not be acquired without the consent of the state or
political subdivision that owns the property.
SECTION 116. IC 36-7-23-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 7. The authority may
exercise the power of eminent domain, with the approval of the
executive of the unit affected, for any public use in the manner
provided by IC 32-11-1. IC 32-24-1.
SECTION 117. IC 36-7-24-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 8. With the approval of
the executive of the county affected, an authority may exercise the
power of eminent domain under IC 32-11-1. IC 32-24-1.
SECTION 118. IC 36-7-30-16 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 16. (a) If the reuse
authority considers it necessary to acquire real property in or serving
a reuse area by the exercise of the power of eminent domain, it shall
adopt a resolution setting out its determination to exercise that power
and directing its attorney to file a petition in the name of the unit on
behalf of the reuse authority, in the circuit or superior court of the
county in which the property is situated. The resolution must contain
a finding by the reuse authority that the property to be acquired is in a
blighted area (as defined in IC 36-7-1-3). The resolution must be
approved by the legislative body of the unit before the petition is filed.
(b) Eminent domain proceedings under this section are governed by
IC 32-11 IC 32-24 and other applicable statutory provisions for the
exercise of the power of eminent domain. Property already devoted to
a public use may be acquired under this section, but property belonging
to the state or a political subdivision may not be acquired without the
consent of the state or the political subdivision.
(c) The court having jurisdiction shall direct the clerk of the circuit
court to execute a deed conveying the title of real property acquired
under this section to the unit for the use and benefit of the reuse
authority.
SECTION 119. IC 36-9-4-32 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 32. (a) The board of
directors of a public transportation corporation may exercise the power
of eminent domain for the condemnation of any interest in real or
personal property for use within the taxing district of the corporation.
(b) Proceedings for the condemnation of property by the board are
governed by IC 32-11-1 IC 32-24-1 to the extent it is not in conflict
with this chapter.
(c) The board may not institute such proceedings until it has adopted
an ordinance generally describing the property to be acquired,
declaring that the public interest and necessity require the acquisition
by the corporation of the property involved, and declaring that the
acquisition is necessary for the establishment, development, extension,
or improvement of the system. The ordinance is conclusive evidence
of the public necessity of the proposed acquisition and that the
proposed acquisition is planned in a manner most compatible with the
greatest public good and the least private injury.
SECTION 120. IC 36-9-6.1-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 3. Except as provided
in section 5 of this chapter, a works board carrying out a thoroughfare
plan under this chapter:
(1) has the same powers to:
(A) appropriate or condemn property;
(B) lay out, change, widen, straighten, or vacate public ways
or public places;
(C) award and pay damages; and
(D) assess and collect benefits;
(2) shall proceed in the same manner; and
(3) is subject to the same rights of property owners, including the
right to appeal;
as a works board that appropriates property under IC 32-11 IC 32-24
and lays out, changes, widens, straightens, or vacates public ways or
public places under IC 36-9-6.
SECTION 121. IC 36-9-11.1-10 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 10. (a) In exercising the
power of eminent domain, the board shall proceed under IC 32-11.
IC 32-24.
(b) The title to all real property acquired by the department shall be
conveyed to "City of ______________".
(c) The board may make and enter into contracts or agreements
necessary or incidental to the performance of its duties and the
execution of its powers under this chapter. All contracts shall be
entered into under the general provisions of this title.
(d) The board may lease or rent to others any parking facility or any
property acquired for off-street parking purposes, including air rights
above the facilities or property, in accordance with IC 36-1-11.
(e) The board may sell any property, including air rights, acquired
or developed for off-street parking purposes, if it first adopts a
resolution specifically describing the property to be sold and declaring
either:
(1) that the property is no longer needed for the use of the
department; or
(2) that a sale of the property subject to any restriction, limitation,
or condition set out in the resolution will effect the purposes of
this chapter.
The property shall then be sold in accordance with IC 36-1-11.
Property that has been pledged, or the revenues of which have been
pledged, to secure the payment of any outstanding obligations on it,
may not be sold unless all the obligations are redeemed and cancelled
coincidentally with the conveyance of the property.
(f) All conveyances of real property shall be executed in the name
of "City of _____________", and must be approved by the executive
of the consolidated city. Such an instrument is not required to have a
seal in order to be executed.
(g) In the letting of construction contracts the board shall proceed
under IC 36-1-12, subject to the approval of the executive.
to any property may be included in either the original resolution or any
subsequent resolutions.
SECTION 127. IC 36-9-31-3, AS AMENDED BY P.L.67-1999,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 3. In order to provide for the collection and
disposal of waste in the consolidated city and for the management,
operation, acquisition, and financing of facilities for waste disposal, the
board may exercise the following powers on behalf of the city, in
addition to the powers specifically set forth elsewhere in this chapter:
(1) To sue and be sued.
(2) To exercise the power of eminent domain as provided in
IC 32-11 IC 32-24 within the corporate boundaries of the city;
however, the power of eminent domain may not be exercised to
acquire the property of any public utility used for the production
or distribution of energy.
(3) To provide for the collection of waste accumulated within the
service district and to provide for disposal of waste accumulated
within the waste disposal district, including contracting with
persons for collection, disposal, or waste storage, and the recovery
of byproducts from waste, and granting these persons the right to
collect and dispose of any such wastes and store and recover
byproducts from them.
(4) To plan, design, construct, finance, manage, own, lease,
operate, and maintain facilities for waste disposal.
(5) To enter into all contracts or agreements necessary or
incidental to the collection, disposal, or recovery of byproducts
from waste, such as put or pay contracts, contracts and
agreements for the design, construction, operation, financing,
ownership, or maintenance of facilities or the processing or
disposal of waste or the sale or other disposition of any products
generated by a facility. Notwithstanding any other statute, any
such contract or agreement may be for a period not to exceed forty
(40) years.
(6) To enter into agreements for the leasing of facilities in
accordance with IC 36-1-10; however, any such agreement having
an original term of five (5) or more years is subject to approval by
the state board of tax commissioners department of local
government finance under IC 6-3.5. Such an agreement may be
executed before approval, but if the state board of tax
commissioners department of local government finance does
not approve the agreement, it is void.
(7) To purchase, lease, or otherwise acquire real or personal
property.
(8) To contract for architectural, engineering, legal, or other
professional services.
(9) To exclusively control, within the city, the collection,
transportation, storage, and disposal of waste and, subject to the
provisions of sections 6 and 8 of this chapter, to fix fees in
connection with these matters.
(10) To determine exclusively the location and character of any
facility, subject to local zoning ordinances and environmental
management laws (as defined in IC 13-11-2-71).
(11) To sell or lease to any person any facility or part of it.
(12) To make and contract for plans, surveys, studies, and
investigations.
(13) To enter upon property to make surveys, soundings, borings,
and examinations.
(14) To accept gifts, grants, or loans of money, other property, or
services from any source, public or private, and to comply with
their terms.
(15) To issue from time to time waste disposal district bonds to
finance the cost of facilities as provided in section 9 of this
chapter.
(16) To issue from time to time revenue bonds to finance the cost
of facilities as provided in section 10 of this chapter.
(17) To issue from time to time waste disposal development
bonds to finance the cost of facilities as provided in section 11 of
this chapter.
(18) To issue from time to time notes in anticipation of grants or
in anticipation of the issuance of bonds to finance the cost of
facilities as provided in section 13 of this chapter.
(19) To establish fees for the collection and disposal of waste,
subject to the provisions of sections 6 and 8 of this chapter.
(20) To levy a tax within the service district to pay costs of
operation in connection with waste collection, waste disposal,
mowing services, and animal control, subject to regular budget
and tax levy procedures. For purposes of this subdivision,
"mowing services" refers only to mowing services for
rights-of-way or on vacant property.
(21) To levy a tax within the waste disposal district to pay costs
of operation in connection with waste disposal, subject to regular
budget and tax levy procedures.
(22) To borrow in anticipation of taxes.
(23) To employ staff engineers, clerks, secretaries, and other
employees in accordance with an approved budget.
(24) To issue requests for proposals and requests for
qualifications as provided in section 4 of this chapter.
(25) To require all persons located within the service district or
waste disposal district to deposit waste at sites designated by the
board.
(26) To otherwise do all things necessary for the collection and
disposal of waste and the recovery of byproducts from it.
SECTION 128. THE FOLLOWING ARE REPEALED
[EFFECTIVE JULY 1, 2002]: IC 24-4.6-2; IC 24-4.6-2.1; IC 24-5-9;
IC 24-5-11.5; IC 32-1; IC 32-2; IC 32-3; IC 32-4; IC 32-5; IC 32-6;
IC 32-7; IC 32-8; IC 32-9; IC 32-10; IC 32-11; IC 32-12; IC 32-13;
IC 32-14; IC 32-15; IC 34-6-2-7; IC 34-6-2-66; IC 34-6-2-68;
IC 34-6-2-74; IC 34-6-2-107; IC 34-6-2-121; IC 34-6-2-125;
IC 34-6-2-126; IC 34-6-2-149; IC 34-19; IC 34-21; IC 34-34; IC 34-48.