Failure to timely comply with notice of damages requirement subjects landlord to forfeiture, refund, and payment

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Dickson, Justice.

This landlord-tenant dispute centers on Indiana’s rental agreement deposit statute. The landlord brought this appeal, asserting (a) that he established all the requisite elements of his claim for back rent, late fees, damages to the premises, and attorney fees; and (b) that he was not required to return the tenant’s damage deposit or provide a notice of damages until the tenants provided him with notice of their new mailing address, and that within forty-five days of the tenants’ surrender of possession on February 20, 2007, he provided an itemized summary of dam-ages to the tenants at the trial of the case on March 16, 2007. The tenants admit to breaching the agreement by failing to pay rent after August 2006. On appeal, only one of the tenants, Sarah Holt, has responded, alternatively arguing that the landlord terminated the lease on November 8, 2006, and that the landlord failed to provide a notice of damages within forty-five days as required by statute, or that if the lease terminated on February 20, 2007, the landlord’s trial exhibit itemizing damages should not be deemed sufficient to satisfy the security deposit statute.

Conclusion (slip op. at 7-8): We hold that a failure to timely comply with the notice of damages requirement subjects a landlord to forfeiture of all claims for physical damage to the premises, to refund of a tenant’s damage deposit, and to payment of the tenant’s statutory attorney’s fees incurred by the tenant in seeking return of the deposit and in resisting the landlord’s claim for premises damages, but such failure does not preclude a landlord from recovery of unpaid rent or other damages to which the landlord may otherwise be entitled. Here, the landlord’s total claims so exceed the $6,000.00 small claims jurisdictional limit that the inadequacy of the landlord’s purported notice of damages is immaterial, even though it would preclude his recovery of the portion of his claim that consists of physical damages to the premises and attorney fees, and would require him to refund the tenants damage deposit and resulting attorney fees. This cause is remanded to the trial court for entry of a judgment for the landlord in the sum of $6,000.00.

Boehm, and Rucker, JJ., concur. Shepard, C.J., concurs in result with separate opinion.

Sullivan, J., dissents with separate opinion: “I respectfully dissent . . . simply put, if occupancy ends with a tenant owing a landlord more than the amount of the security deposit in damages (as defined in section 13), subsection (c) expressly authorized the landlord to recover the additional amount – but only so long as the landlord has complied with sec-tion 14 and subsection (a) of section 12 . . .”

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