Lebanon O.P.E.N. Rental Inspection Program

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O.P.E.N. Overview

O.P.E.N. is an acronym for Ordinance Preserving Existing Neighborhoods. The O.P.E.N. description information included on this web page was obtained from a brochure provided during a special meeting of the Lebanon City Council on February 27, 2013.

The City of Lebanon proposes that a property inspection program be established "in order to safeguard the interest of property owners and the character of neighborhoods and to protect the public health, safety and welfare of individuals living in the City." The Program would be administered by the Department of Planning and Zoning.

O.P.E.N. would include minimum maintenance regulations on the following: property grounds, exterior of the structure, interior of the structure, lighting, ventilation, dwelling limits, space requirements, plumbing systems and fixtures, water system, sewage system, heating apparatus, electrical system, exits, storage, fire resistance of structure, sanitary conditions, accessory structures.

NOTE: The applicable Indiana Code requirements, most of which were added or amended by the 2014 Public Law 193, are listed at the bottom of this web page. Not all of the applicable Indiana Code requirements are included in the 2013 version of the Lebanon O.P.E.N. rental inspection program. The O.P.E.N. program provision that conflicts with an Indiana Code requirement is highlighted in red.

O.P.E.N. Registration & Inspection

All rental properties in the City of Lebanon would go through the City's inspection process of registration by filing the required paperwork with the Planning and Zoning Department, scheduling an inspection appointment through the Planning and Zoning Department and paying a certification fee. At the time of registration, an inspection checklist would be provided to each homeowner. 

After the initial inspection, a property would be placed in either (1) a 3-year cycle for those owners who have received four or more violations during the first inspection or have been the subject of any credible complaint within the previous three years, (2) a 4-year cycle for those owners who receive three or less violations during the initial inspection and who did the necessary repairs in less than two weeks, and (3) a 5-year cycle for those owners who had no violations during the initial inspection.

O.P.E.N. Fees, Incentives & Penalties

There would be a one-time registration fee of $25 per building. All registered rental units would have to display a current registration sticker on the front door or front window of the property. 

Initial inspections would occur within 12 months of the registration. The inspection fee for a single family house would be $45. The fee for a multi-family dwelling would be $40 per building plus an additional $10 per unit. 

All re-inspections would occur within 60 days of the inspection. The first re-inspection would be done at no additional cost. For every re-inspection after that, it would be $30 plus an additional $10 per unit. 

Inspection fees would be paid after the inspection has been completed. All fees would be paid to the City of Lebanon 30 days after the inspection.

An owner or property manager would be required to accompany the Lebanon O.P.E.N. inspector during any and all inspections. No show for any scheduled appointment would incur a $50 fee. The O.P.E.N. inspector would wait no more than 15 minutes after the designated inspection time. Cancellations and rescheduling of the appointment would have to occur 24 hours before the original inspection time or a $50 fee would be incurred. 

The City wishes to promote complete compliance with the O.P.E.N. program and would therefore grant a 25% inspection fee reduction to any owner which has received no violations during an inspection cycle, including the initial inspection.

If an owner refuses to comply with the O.P.E.N. program, a fine of $100 would be charged for each day the offense continues.

O.P.E.N. Independent Inspections

If a building is being inspected by a qualified inspector and the process is equal or greater in detail than the O.P.E.N. program, and if the property is being inspected at least as often as the O.P.E.N. program requires, and the owner can produce records of such, no further inspections would be scheduled and no fees except the initial inspection fee would be collected. If a property that is being inspected independently of the O.P.E.N. program receives a credible complaint by any person, the property would be put in the normal inspection program cycle and incur all applicable fees. 

O.P.E.N. Appeals Prcocess

Any person directly affected by a decision, notice or order issued under this code would have the right to appeal to the O.P.E.N. board of appeals, provided that a written application for appeal is filed within 20 days after the day the decision, notice or order was served. All hearings before the board of appeals would be open to the public.

Constitutional Concerns

Amendment IV of the Constitution of the United States provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The proposed O.P.E.N. program highlights the important U.S. Supreme Court opinion in Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523 (1967). The Fourth Amendment of our U.S. Constitution, which is enforceable in the states through the Fourteenth Amendment, bars prosecution of persons who refuse to permit warrantless code enforcement inspections of their personal residences. The Fourth Amendment, through its prohibition of "unreasonable searches and seizures” without a “probable cause” warrant, safeguards as “basic to a free society” the privacy and security of individuals against arbitrary invasions by governmental officials. With certain carefully defined exceptions for emergency situations, a search of private property without proper consent is "unreasonable" unless it has been authorized by a valid search warrant. A judicial officer, not a government enforcement agent, is to decide when the right of privacy must reasonably yield to the right of search. The O.P.E.N. program fines if an owner refuses an inspection are clearly unconstitutional.

An O.P.E.N. rental inspector, without a probable cause warrant, would have access to a rental property at the time of his choosing and be able to observe anything and everything within the rental property. The rental inspector could alert thieves to the location of valuable property, gossip about what they observe in someone’s apartment, mistakenly inform legal authorities about perceived illegalities, and spread communicable diseases. Well-established legal precedents regarding landlord and renter rights and obligations would be improperly altered. What would happen if someone exercised the Castle Doctrine and forcibly prevented the rental inspector from entering their apartment home? The ramifications of the invasion of privacy presented by Lebanon’s proposed O.P.E.N. program are truly staggering in their scope.

Applicable Indiana Code Requirements

IC 36-1-20
Chapter 20. Regulation of Residential Leases

IC 36-1-20-1
Applicable definitions
    Sec. 1. The definitions in IC 32-31-3 apply throughout this chapter.
As added by P.L.212-2011, SEC.1.

IC 36-1-20-1.5
"Rental unit community"
    Sec. 1.5. As used in this chapter, "rental unit community" means one (1) or more parcels of contiguous real property upon which are located one (1) or more structures containing rental units, if:
        (1) the combined total of all rental units in all of the structures is five (5) or more rental units; and
        (2) the rental units are not occupied solely by the owner or the owner's family.
As added by P.L.193-2014, SEC.2.

IC 36-1-20-2
Assessment of tenants for fees assessed by political subdivision; exceptions
    Sec. 2. (a) Except as provided in subsection (b), the owner of a rental unit assessed any fee by a political subdivision pertaining to the rental unit may:
        (1) notify the tenants of the rental unit of the assessment of the fee; and
        (2) require the tenants of the rental unit to reimburse the owner for the payment of the fee.
    (b) Tenants of a rental unit may not be required to reimburse the owner of a rental unit for fees assessed by a political subdivision relating to the construction of the rental unit, such as building permit fees.
As added by P.L.212-2011, SEC.1. Amended by P.L.193-2014, SEC.3.

IC 36-1-20-3
Deposit of fees in dedicated fund; budgeting of money in fund; nonreversion
    Sec. 3. Any fee assessed and collected by a political subdivision pertaining exclusively to a rental unit or rental unit community must be maintained in a special fund dedicated solely to reimbursing the costs actually incurred by the political subdivision relating to the imposition and amount of the fee. Each fund shall be maintained as a separate line item in the political subdivision’s budget. Money in the fund may not at any time revert to the general fund or any other fund of the political subdivision.
As added by P.L.212-2011, SEC.1. Amended by P.L.193-2014, SEC.4.

IC 36-1-20-3.5
Permit to lease rental units, when authorized; participation in class or program as condition prohibited; section not applicable to registration or inspection programs created before July 1, 1984
    Sec. 3.5. (a) This section does not apply to a political subdivision with a rental registration or inspection program created before July 1, 1984.
    (b) A political subdivision may not require a rental unit's owner or landlord to do any of the following:
        (1) Except as provided in subsection (c), obtain a permit to lease the rental unit.
        (2) Participate in a class or government program as a condition for leasing the rental unit.
    (c) Notwithstanding subsection (b), a political subdivision may require a rental unit's owner or landlord to obtain a permit only as follows:
        (1) A fee may not be charged to obtain a permit.
        (2) Except when there is a change of ownership of the real property, a permit does not expire. A political subdivision may require a new owner of the real estate to obtain a new permit.
        (3) Only one (1) permit may be required for a rental unit community.
As added by P.L.193-2014, SEC.5.

IC 36-1-20-4
Repealed
(Repealed by P.L.193-2014, SEC.6.)

IC 36-1-20-4.1
Rental unit inspection programs; limitations; fees; section not applicable to registration or inspection programs created before July 1, 1984
    Sec. 4.1. (a) This section does not apply to a political subdivision with a rental registration or inspection program created before July 1, 1984. This section does not apply to a manufactured housing community or mobile home community that is licensed, permitted, and inspected by the state department of health.
    (b) Except as provided in subsection (c), this chapter does not prohibit a political subdivision from establishing and enforcing a program for inspecting rental units.
    (c) Except as provided in subsection (d), after June 30, 2014, a political subdivision may not inspect a rental unit or impose a fee pertaining to the inspection of a rental unit, if the rental unit satisfies all of the following:
        (1) The rental unit is:
            (A) managed by; or
            (B) part of a rental unit community that is managed by; a professional real estate manager.
        (2) During the previous twelve (12) months, the rental unit has been inspected or is part of a rental unit community that has been inspected by either of the following:
            (A) By or for:
                (i) the United States Department of Housing and Urban Development, the Indiana Housing and Community Development Authority, or another federal or state agency; or
                (ii) a financial institution or insurance company authorized to do business in Indiana.
            (B) By an inspector who:
                (i) is a registered architect;
                (ii) is a professional engineer; or
                (iii) satisfies qualifications for an inspector of rental units prescribed by the political subdivision.
            The inspector may not be an employee of the owner or landlord.
        (3) A written inspection report of the inspection under subdivision (2) has been issued to the owner or landlord of the rental unit or rental unit community (as applicable) that verifies that the rental unit or rental unit community is safe and habitable with respect to:
            (A) electrical supply and electrical systems;
            (B) plumbing and plumbing systems;
            (C) water supply, including hot water;
            (D) heating, ventilation, and air conditioning equipment and systems;
            (E) bathroom and toilet facilities;
            (F) doors, windows, stairways, and hallways;
            (G) functioning smoke detectors; and
            (H) the structure in which a rental unit is located.
        A political subdivision may not add to the requirements of this subdivision.
        (4) The inspection report issued under subdivision (3) is delivered to the political subdivision on or before the due date set by the political subdivision.
    (d) This subsection applies to all rental units, including a rental unit that meets the requirements for an exemption under subsection (c). A political subdivision may inspect a rental unit, if the political subdivision:
        (1) has reason to believe; or
        (2) receives a complaint;
that the rental unit does not comply with applicable code requirements. However, in the case of a rental unit that meets the requirements for an exemption under subsection (c), the political subdivision may not impose a fee pertaining to the inspection of the rental unit. If an inspection of a rental unit reveals a violation of applicable code requirements, the owner of the rental unit may be subject to a penalty as provided in section 6 of this chapter.
    (e) This subsection applies only to a rental unit that meets the requirements for an exemption under subsection (c). If the inspection report for the rental unit or rental unit community is prepared by or for the United States Department of Housing and Urban Development, the inspection report is valid for purposes of maintaining the exemption under subsection (c) until:
        (1) the date specified in the inspection report; or
        (2) thirty-six (36) months after the date of the inspection report; whichever is earlier.
As added by P.L.193-2014, SEC.7.

IC 36-1-20-5
Rental unit registration program; limitations; fees; section not applicable to registration or inspection programs created before July 1, 1984
    Sec. 5. (a) This section does not apply to a political subdivision with a rental registration or inspection program created before July 1, 1984.
    (b) This chapter does not prohibit a political subdivision from establishing and enforcing a registration program for rental units within the political subdivision.
    (c) A political subdivision may impose on an owner or landlord of a rental unit an annual registration fee of not more than five dollars ($5).
    (d) A registration fee imposed under subsection (c) covers all the rental units in a rental unit community. However, if a rental unit is not part of a rental unit community, a registration fee may be imposed for each separate parcel of real property on which a rental unit is located.
    (e) If the ownership of a rental unit community or the ownership of a parcel of real property on which a rental unit is located changes, a political subdivision may require the new owner of the rental unit community or new owner of the real estate parcel to:
        (1) pay an annual registration fee of not more than five dollars ($5); and
        (2) provide updated registration information to the political subdivision; not later than thirty (30) days after the change of ownership.
As added by P.L.193-2014, SEC.8.

IC 36-1-20-6
Imposition of penalties for nuisances and violations of political subdivision's ordinances or codes
    Sec. 6. (a) This chapter does not prevent a political subdivision from imposing and collecting a penalty for an act or omission that is a nuisance or violation of the political subdivision's enforceable ordinances or codes, subject to subsection (b).
    (b) A penalty permitted under subsection (a) may not be imposed until after:
        (1) reasonable notice of the nuisance or violation has been given to the owner or the owner's designee;
        (2) passage of a reasonable time, which must be stated in the notice, for the nuisance or violation to be cured; and
        (3) failure of the nuisance or violation to be cured within the time stated in the notice.
As added by P.L.193-2014, SEC.9.

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This page was last updated on 06/02/15 .