William F. Harvey Professor of Law and Chancellor’s Professor, Indiana University Robert H. McKinney School of Law. Professor Roisman was part of the “revolution” described in this article, as one of several counsel in Javins v. First National Realty Corp., Edwards v. Habib, Brown v. Southall Realty, and some other pertinent cases.

For assistance in preparation of this article, she is grateful to Jon Laramore, Professors Judith Fox, Fran Quigley, Joel Schumm, Frank Sullivan, Margaret Tarkington, and George Wright; Richard Humphrey of the Ruth M. Lilly Law Library, Ms. Barbara Beeker, and Karen DuVall (J.D. expected May 2022 and William Dominic Alter (J.D. expected May 2022. For some portions of the article, she has relied on the amicus curiae brief in Reynolds v. Capps, 968 N.E.2d 789 (Ind. Ct. App. 2012), that was submitted by Alison M. Becker, esq., then a Certified Legal Intern, and Professor Fran Quigley, on behalf of the Health and Human Rights Clinic at the Indiana University Robert H. McKinney School of Law. Professor Roisman stated she benefitted from the good ideas of these and other people and an important correction by William Alter. For any errors or mistakes in judgment, she states she alone is responsible.

This article was written before the COVID-19 pandemic and does not purport to address issues caused by the pandemic.

In the 1970s, the United States experienced what has been described as a “revolution” in landlord-tenant law. At first, the revolution seemed to apply in Indiana as well as the vast majority of other states, but this development seemed stymied from 1999 until the 2019 decision of the Indiana Supreme Court in Rainbow Realty Group v. Carter. That holding, enforcing the Indiana General Assembly’s 2002 Landlord-Tenant statute, appears to bring Indiana into conformity with doctrine in almost all states. Peculiar procedures, however, inhibit the effective implementation of the legislation and the Rainbow Realtydecision. Part I of this article discusses the doctrinal developments; Part II, the procedural changes that must be made to effectuate the decisions of the Indiana General Assembly and the Indiana Supreme Court.


Inspired in large part by the 1970 opinion of Judge J. Skelly Wright in Javins v. First National Realty Corp., many courts and legislatures adopted an implied- by-law warranty of habitability for residential leases, thus ending the doctrinal reign of caveat lessor in favor of a legally imposed duty on the part of a landlord to convey and maintain residential premises in habitable condition. These judicial decisions and legislative changes also abandoned the common law rule that covenants in a lease were independent and instead provided that tenants could enforce the habitability requirement in defending suits for possession. By 1980, these reversals had become the majority rule in U.S. jurisdictions, the rules of the Restatement of Property, and the doctrine espoused by the leading treatises in the U.S., the Uniform Residential Landlord and Tenant Act (URLTA), and the Model Residential Landlord-Tenant Code.

Initially, the revolution appeared to take hold in Indiana as well as other states. In 1972, in Theis v. Heuer, the Indiana Supreme Court “first imported a warranty of habitability into conveyances of real property” when it held “that a warranty of fitness for habitation may be implied in a builder-vendor’s sale of a new house to the first purchaser.” In 1976, in Barnes v. MacBrown, the Indiana Supreme Court “extended the protection of the implied warranty to subsequent purchasers of the house . . .” In 1980, the Indiana Court of Appeals held in Breezewood Management v. Maltbie that a landlord could be found liable to his tenant for a breach of implied warranty of habitability [Read entire Article here].


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