ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JEFFREY G. RAFF KAREN T. MOSES
Fort Wayne, Indiana Baker & Daniels
Fort Wayne, Indiana
IN THE COURT OF APPEALS OF INDIANA
STEVEN LAE, ) ) Appellant-Plaintiff, ) ) vs. ) ) No. 02A05-0112-CV-549 SHANE HOUSEHOLDER and ) EMILY HOUSEHOLDER, ) ) Appellee- )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Brian D. Cook, Judge
Cause No. 02D01-0105-SC-10666
May 20, 2002
OPINION - FOR PUBLICATION
Appellants Appendix at 25. Lae filed a motion to correct errors, which
the trial court denied, relying on language from Raider v. Pea, 613 N.E.2d
870 (Ind. Ct. App. 1993). Lae now appeals.
Ind. Code § 32-7-5-12.
In case of damage to the rental unit or other obligation against the security deposit, the landlord shall mail to the tenant, within forty-five (45) days after the termination of occupancy, an itemized list of damages claimed for which the security deposit may be used as provided in section 13 of this chapter, including the estimated cost of repair for each damaged item and the amounts and lease on which the landlord intends to assess the tenant. The list must be accompanied by a check or money order for the difference between the damages claimed and the amount of the security deposit held by the landlord.
Ind. Code § 32-7-5-14.
The trial court relied on Raider v. Pea, 613 N.E.2d 870 (Ind. Ct. App. 1993), in its order denying Laes motion to correct errors, and both parties reference Raider in support of their respective positions. In that case, the tenants terminated a lease and vacated the premises on June 28, 1990. On August 9, 1991, the landlord filed a small claims action against the tenants alleging that they owed him unpaid rent and damages. On September 13, 1991, the tenants filed an answer denying the landlords claim and asserted a counterclaim of their own for return of their security deposit. At trial, the landlord testified that the tenants had not provided him with their new mailing address when they vacated the property and that he had tried several times unsuccessfully to obtain their address. Some time in 1991, he learned they had returned to the area, and he filed his claim approximately ten days later. The tenants testified that the landlord knew they were moving to St. Louis and that they had left a forwarding address with the post office. They maintained that because the landlord had not given them a written itemization of damages, his claim was barred. The trial court awarded the landlord the security deposit toward his damages, and the tenants appealed.
On appeal, this court examined the Security Deposits statute, and in particular sections 12 and 14, and found an ambiguity in the statute regarding the tenants obligation to supply a forwarding mailing address. Both sections 32-7-5-12(a)(3) and 32-7-5-14 require the landlord to give a written itemized statement to the tenant within forty-five days of termination of the lease; however, only section 12 imposes a reciprocal duty upon the tenant to first supply his forwarding address to the landlord. We therefore determined that, in order to uniformly apply the statute and give effect to the intention of the legislature in enacting the Security Deposits statute, the tenants obligation . . . to provide the landlord with a mailing address prior to the running of the forty-five day notice period against the landlord, applies to all provisions of the Security Deposits statute . . . . Id. at 873. We also noted that in imposing an affirmative obligation on the tenant to provide a forwarding address, section 12(a)(3) tolls the running of the forty-five day period against the landlord until the tenant meets his obligation. Id. at 872. Ultimately, we determined that the tenants had not provided the landlord with their forwarding address See footnote and that the forty-five day notice period had never begun to run. Therefore, we affirmed the trial courts award.
Lae points to our statement in Raider that the tenant has an obligation to provide the landlord with a forwarding address prior to the running of the forty-five day notice period in support of his position that because Tenants did not do so, he was not required to provide a written itemization of damages to be withheld from the security deposit. Tenants point to our statement in Raider that the forty-five day notice period is tolled until the tenant provides a forwarding address in support of their position. We believe the two statements are not inconsistent and can be reconciled.
The obligations imposed by the Security Deposits statute are limited by the phrase within forty-five days after the termination of the lease. See Ind. Code §§ 32-7-5-12, -14. As Judge Najam pointed out in Raider, the forty-five day notice requirement serves [t]he goals of timely and documented notice of a claim against a security deposit by protecting tenants from unreasonable delays by their landlords in resolving claims against their security deposits and requiring specific justification for any deduction from the deposit. Raider, 613 N.E.2d at 873. As Judge Najam also noted in Raider, those goals cannot be achieved . . . when the landlord does not possess the tenants mailing address in order to deliver the required notice. Id. Although the statute is primarily for the benefit of the tenant, the statute does place the initial burden on the tenant to supply a forwarding address to the landlord. We believe it is also appropriate to place the burden on the tenant to do so in a timely fashion. It would not serve the goals of the statute to allow the tenant to wait months before providing a forwarding address. Our legislature has determined that forty-five days is a reasonable time. If the tenant wishes to have any or all of his security deposit returned within a reasonable time, he must bear responsibility for making sure that the landlord has his forwarding address within that period. Therefore, consistent both with the statute and our opinion in Raider, we hold that the tenant must supply a forwarding address to the landlord within forty-five days of termination of the lease, and the landlords forty-five day period in which to provide the written itemization is tolled until the tenant meets that obligation. If the tenant does not supply a forwarding address within forty-five days after termination of the lease, the landlords forty-five day notice period never begins to run, and the landlord cannot violate the terms of the Security Deposits statute or waive his claim to deduct damages from the security deposit by failing to provide the written itemization.
In this case, the lease was terminated and Tenants vacated the premises on March 18, 2001. See footnote The trial court found that Tenants provided their forwarding address to Lae on May 4, 2001, in a letter from their attorney requesting return of their security deposit.See footnote That letter was mailed forty-seven days after termination of the lease. Because the forwarding address was not supplied to Lae within the forty-five day notice period, Lae is entitled to deduct his legitimate damages from the security deposit even without having provided the written itemization of damages. We therefore reverse the judgment of the trial court and remand for a determination of Laes damages and an appropriate judgment thereon.