Ruling against Indianapolis’ condo nuisance claim upheld

Summary judgment entered in favor of an east side Indianapolis condominium complex was affirmed when the Indiana Court of Appeals ruled that damages sought against the complex by the city for being a “nuisance” were inappropriate.

Towne & Terrace is a residential complex near the intersection of East 42nd Street and Post Road in Indianapolis. It’s a private, nonprofit Indiana corporation with the purpose of owning and maintaining the common areas of the condominium development.

Unlike more recent condominium developments, Towne & Terrace homeowners are members of Towne & Terrace and do not own any interest in its common areas. The individual lots are transferred by deed.

As of 2017, the City of Indianapolis owned at least 49 units in Towne & Terrace. Thirteen of the units were acquired as part of a settlement in an unrelated nuisance action. The remainder of the units became the City’s possession after they were not purchased at tax sales. Since being acquired, each of the City’s homes in Towne & Terrace has been left vacant and boarded up.

In 2014, the City filed an amended complaint against the corporation and four of its board members in response to increased crime on the east side of the city. The suit alleged that Townes & Terrace “failed to provide, maintain, and ensure that all common areas of the residential complex are safe from hazardous conditions, including but not limited to general lawlessness and the threat of reasonably foreseeable criminal intrusions.”

The City contended that the Marion Superior Court erred in determining that it could not maintain its nuisance claim in City of Indianapolis v. Towne & Terrace Corporation, et al., 49A02-1711-OV-2686, based on the allegation that “Towne & Terrace took no reasonable action to prevent the property from descending into criminal chaos, nor did it take any reasonable steps to ameliorate the situation.”

The city maintains it was not trying to enforce an ordinance, rule, or regulation; rather, it brought a nuisance action under I.C. § 32-30-6-7 and sought “compensatory damages for a public nuisance for which it alleges Towne & Terrace is responsible.”

However, the court found that the sought damages for resources expended by the City in response to the “unreasonable volume of investigations, reports, and citations caused by Towne & Terrace’s neglect of the residential complex and individual units,” is prohibited under that code. 

“Indiana Code section 32-31-1-22(i) unequivocally allows the pursuit of nuisance actions brought by a city, county or town. Even though this section (i) is silent as to the type of damages a city, county, or town may demand under a nuisance action, section (d) of the statute clarifies that the enforcement of the nuisance rules cannot be used to penalize an individual in requesting law enforcement’s assistance,” Judge Patricia Riley wrote Tuesday. 

On a second motion for summary judgment, Towne & Terrace contended it was not capable of controlling crime, nor enforcing criminal laws and that it merely had an obligation to maintain the common areas, not the individual units in the complex.

“Based on the foregoing, we hold that the trial court properly issued summary judgment on Towne & Terrace’s motions for summary judgment,” Riley concluded.

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