Each year, 10,000’s of new statutes, rules and regulations are passed into law. Then, there are 1,000’s of changes in case law and appellate decisions interpreting the 1,000,000’s of existing statutes, rules and regulations. No one lawyer knows the law. That is humanly impossible. Yet, you, as a citizen, are expected to know and follow all the laws that apply to you in your nation, state, county and city or town. It is a ridiculous notion and an unfair burden on citizens, but that is how the law imposes itself on you and us all.
This year, the Indiana General Assembly passed nearly 200 new laws that Governor Daniels has signed into law. While we cannot review all 190 plus new laws, below is a short list of new Indiana laws that might impact business and real estate clients of the GRIFFITH LAW GROUP LLC. We have included the synopsis of each law that comes directly from the official bill itself.
“HB” refers to a bill that originated in the House. “SB” is a bill that came from the Senate. The Governor has signed all these bills. For a complete list of new Indiana laws, visit the Indiana government website at http://www.in.gov/gov/billwatch.htm or at http://www.in.gov/legislative/reports/2011/2011GOV.PDF
HB 1251 – Young entrepreneur program.
Requires the Indiana economic development corporation (IEDC) to establish a young entrepreneurs program to promote the business proposals of students in entrepreneurial programs at state educational institutions. Provides that the program must include at least one auction per year in which communities bid for the opportunity to locate a young entrepreneur’s start-up business in their community. Requires the office of community and rural affairs to assist rural communities in preparing for an auction.
HB 1058 – Homeowners associations.
Authorizes the attorney general to bring an action against the board of directors of a homeowners association or individual members of a homeowners association if the attorney general makes certain findings. Provides for judicial remedies for violations of the statute governing homeowners associations.
HB 1321 – Secured transactions.
Makes changes to the uniform commercial code pertaining to secured transactions to conform to recommendations made by the National Conference of Commissioners on Uniform State Laws. Provides clarification regarding how a name of an individual debtor is to be provided on a financing statement. Provides clarification regarding how a debtor’s name should be included on a financing statement when the debtor is a corporation, limited liability company, or limited partnership and when the collateral is held in a statutory or common law trust or in a decedent’s estate. Makes changes regarding the filing of financing statements. Makes changes to assist a secured party having a security interest in after-acquired property when the debtor relocates to another state or merges with another entity. Eliminates the requirement to contain certain information on a financing statement. Makes technical corrections. Repeals a statute that contains forms for a financing statement and a financing statement amendment.
SB 459 – Streamlined sales and use tax conformity.
Makes changes concerning calling services, durable medical equipment, and reliance on the department of state revenue’s taxability matrix under the state gross retail and use taxes to bring the state into compliance with the Streamlined Sale and Use Tax Agreement.
HB 1046 – Property tax deduction for new unsold residences.
Provides a 50% property tax deduction to a residential builder for a single family residence, townhouse, or condominium that has never been occupied. Specifies that the deduction terminates when title to the structure is transferred to the homeowner. Provides that the deduction applies for one assessment date for which the structure is assessed as partially completed and not more than three assessment dates for which the structure is assessed as fully completed. Provides that a residential builder may not claim deductions for more than three residences in Indiana per assessment date.
HB 1174 – Sale of real property by local government.
Provides that a local government disposing agent may hire a broker to sell real property directly rather than using the bid process if: (1) the disposing agent publishes a notice of the determination to hire the broker; and (2) the property has been up for bid for at least 60 days before the broker is hired, and either no bids were received or the disposing agent has rejected all bids that were received. Provides that a political subdivision may sell real property to an abutting landowner without using a competitive bid process if the real property has not been assessed and the property was previously part of a public right-of-way. Allows a local government disposing agent to sell real property for less than 90% of the appraised value as determined by the average of the two appraisals of the property (instead of as determined by a joint appraisal of the property). Allows a local government disposing agent to sell real property for purposes of an economic development project or to facilitate compatible land use planning for a value that is not less than the appraised value as determined by the average of the two appraisals (instead of as determined by a joint appraisal of the property), if the agent publishes notice of the amount of the offer to be accepted. Allows a local government disposing agent to lease real property for a value that is less than 90% of the appraised fair market rental as determined by the average of the two appraisals (instead of as determined by a joint appraisal of the property), if the agent publishes notice of the amount of the bid to be accepted. Provides that if the disposing agent rejects all offers or bids, the agent must make a written determination for the rejection and explain why the bids or offers were rejected. Provides that a sale or transfer of property constituting a public easement or right of way under the statutes governing disposal of property by local government does not deprive a public utility of the use of the public easement or right of way if, at the time of the sale or transfer, the public utility is occupying and using all or part of that public easement or right of way for the location and operation of its facilities.
HB 1311 – Numerous changes to planning and zoning law.
Eliminates review of zoning decisions by certiorari, and establishes a judicial review procedure. Provides procedures for vacation of a plat, including any recorded covenants. Allows a plan commission to adopt a rule to limit further consideration for up to one year after its disapproval of a plat or vacation request. Allows a plan commission (or plat committee acting in its behalf) to: (1) grant waivers from the subdivision control ordinance; and (2) allow or require a commitment to be made as a condition of granting a waiver. Makes changes regarding: (1) qualifications of citizen members of plan commissions and boards of zoning appeals; (2) appointment of alternate members to all plan commissions (current law allows only an area plan commission to appoint alternate members); (3) disqualification of plan commission and board of zoning appeals members due to financial interest or bias; (4) publication of the zoning ordinance; and (5) commitments and conditions. Makes other changes to the planning and zoning law. Repeals superseded statutes concerning vacation of plats, commitments, and writ of certiorari.
HB 1541 – Transfer fee covenants.
Defines “transfer fee covenant” as a declaration or covenant that: (1) purports to affect an interest in real property in Indiana; and (2) requires the payment of a transfer fee to a specified person upon a subsequent transfer of the interest in real property. Provides that a transfer fee covenant recorded in Indiana after June 30, 2011: (1) does not run with the title of the real property interest purported to be affected; and (2) is not binding or enforceable against any subsequent owner, purchaser, or mortgagee of the real property interest. Provides that any lien purporting to secure the payment of a transfer fee under a transfer fee covenant recorded in Indiana after June 30, 2011, is void and unenforceable.
HB 1543 – Regulation of residential leases.
Provides that the owner of a rental unit assessed any inspection, registration, or other 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. Provides that 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. Requires the political subdivision to maintain the fees collected in a special non-reverting fund dedicated solely to reimbursing the costs reasonably related to services actually performed by the political subdivision that justified the imposition and amount of the fee.
SB 155 – Tax liens.
Requires the department to release a judgment if: (1) it has been fully satisfied; or (2) the tax assessment or issuance of the tax warrant was erroneous. Provides that a tax lien on real property is void if the person owing the tax provides written notice to the department to file an action to foreclose the lien, and the department fails to file an action to foreclose the lien not later than 180 days after receiving the notice. Permits a sheriff to collect the outstanding tax liability if the taxpayer has taken an action to foreclose the lien. Specifies that a complaint to foreclose a homeowners association lien may not be filed earlier than 90 days after recording, unless a person files a notice to foreclose the lien, or another person files an action to foreclose the property that is the subject of the lien.
SB 346 – Environmental legal action statute of limitations.
Specifies the statute of limitations for: (1) an environmental legal action; and (2) an action for a contribution to pay for corrective action related to a release from an underground storage tank. Prohibits a person from reviving or raising new claims in an action that was finally adjudicated or settled prior to the effective date of the statute of limitations. Specifies that a person who brings an action prior to the effective of the statute of limitations for an environmental legal action may not amend the action or bring a new action based on the establishment of the statute of limitations.
SB 582 – Settlement conferences in residential foreclosures.
Amends the definition of “mortgage” in the statute governing settlement conferences in residential mortgage foreclosure actions to specify that the term does not include a land contract. For purposes of the statute, defines “loss mitigation package” as a set of documents, the components of which: (1) are specified by the Indiana housing and community development authority (authority); (2) provide certain financial information about a debtor; and (3) are necessary for a creditor to make underwriting decisions in connection with a potential foreclosure prevention agreement. Provides that in a residential foreclosure action filed after June 30, 2011, the creditor shall include with the complaint filed with the court the following most recent contact information for the debtor that the creditor has on file: (1) All telephone numbers and electronic mail addresses for the debtor. (2) Any mailing address for the debtor other than the address of the mortgaged property. Provides that the following are excepted from the act governing access to public records and may not be disclosed: (1) The debtor’s contact information. (2) Any document submitted to the court as part of the debtor’s loss mitigation package. Requires the following with respect to a residential foreclosure action filed after June 30, 2011: (1) That the creditor include on the first page of the summons that is served on the debtor a notice that informs the debtor of the debtor’s right to participate in a settlement conference. (Current law requires that a separate notice be included with the complaint served on the debtor.) (2) That upon the filing of the complaint by the creditor, the court shall send to the debtor a notice that informs the debtor of the debtor’s right to participate in a settlement conference. (3) That a debtor who requests a settlement conference must provide a copy of the debtor’s loss mitigation package to: (A) the creditor’s attorney; and (B) the court; not later than 30 days before the date of the settlement conference. (4) That if the debtor requests a settlement conference, the creditor must send to the debtor, by certified mail and not later than 30 days before the date of the settlement conference: (A) a payment record substantiating the default; and (B) an itemization of all amounts claimed by the creditor as being owed on the mortgage. Provides that not later than June 1, 2011, the authority shall prescribe a list of documents that must be included as part of a debtor’s loss mitigation package in a foreclosure action filed after June 30, 2011. Provides that the authority may amend the list: (1) in response to changes in any federal loan modification programs; or (2) as otherwise determined to be necessary by the authority. Requires: (1) the authority to make the list available on the authority’s Internet web site; and (2) the division of state court administration to make the list available on the Internet web site maintained by the state’s judicial branch. Provides that in a residential foreclosure action in which the debtor requests a settlement conference, the court shall do the following: (1) Stay the granting of any dispositive motion in the action until the court receives notice that the settlement conference has concluded and that the creditor and debtor either have agreed to enter into a foreclosure prevention agreement, or were unable to agree on the terms of an agreement. (2) Treat the debtor’s request for a settlement conference as the entry of an appearance in the action. Provides that in a residential foreclosure action, any: (1) costs to a creditor associated with a settlement conference; or (2) civil penalty imposed on a creditor by the court for violation of a court order; may not be charged to or collected from the debtor. Provides that during the pendency of a residential foreclosure action filed after June 30, 2011, if the debtor continues to occupy the mortgaged dwelling, the court may issue an order requiring the debtor to continue to make monthly payments with respect to the mortgage on which the action is based. Provides that the court shall determine the amount of the payment, which: (1) may be based on debtor’s ability to pay; and (2) may not exceed the debtor’s monthly obligation under the mortgage. Provides that any payments made: (1) shall be held in trust for the parties by the clerk of the court or in an attorney trust account; and (2) may be disbursed only upon order of the court. Provides that any payments held shall be credited: (1) to the debtor if the parties subsequently enter into a foreclosure prevention agreement; or (2) against the amount of the judgment entered or the amount owed if a judgment of foreclosure is subsequently entered. Provides that any civil penalties imposed and collected by a court for violation of a court order in a residential foreclosure action shall be deposited in the home ownership education account to support programs conducted by specified entities to facilitate settlement conferences in residential foreclosure actions. Provides that a person who is not the owner of real property, and who suspects that the property may be vacant or abandoned, may enter upon the premises to do the following: (1) Visually inspect the property to determine whether the property may be vacant or abandoned. (2) Perform certain specified actions to secure and maintain the property. Provides that a person who enters the property and, after performing a visual inspection, determines that the property may be vacant or abandoned, may notify the appropriate enforcement authority and request that the enforcement authority determine whether the property is in fact vacant or abandoned. Provides that a person that enters upon the property for one of the permitted purposes: (1) is immune from civil liability for an act or omission related to the entry or to any permitted action; and (2) shall be held harmless with respect to any claims of civil or criminal trespass. Urges the legislative council to assign the following topics of study to the commission on courts or to another appropriate study committee: (1) Short sale procedures in real estate transactions in Indiana. (2) Specified topics concerning nonjudicial mortgage foreclosure procedures. Provides that any committee assigned the topics must issue a final report on the topics not later than November 1, 2011.
HB 1006 – Entrepreneurial know-how.
Requires the secretary of state, in collaboration with other state agencies, to develop and maintain a web site that would allow a person to submit information concerning the person’s business to the secretary of state and other state agencies, as applicable, for the purpose of complying with the requirements of state law, including establishing the new business, registering with states agencies, and obtaining necessary licenses and permits. Allows money in the electronic and enhanced access fund to be used to develop and maintain the Internet web site. Requires the Indiana economic development corporation (IEDC) to work with local economic development organizations within geographic regions in Indiana and with the various state economic development organizations within the states contiguous to Indiana. Requires the IEDC to include, in its annual report to the general assembly, recommendations for strategies and plans for collaboration with local economic development organizations and with the various state economic development organizations of neighboring states. Requires the department of education, in cooperation with the commission for higher education and the IEDC, to develop curriculum guides based on best practices for entrepreneurship instruction in high schools. Requires the commission for higher education (commission) to make an inventory of entrepreneurship programs conducted by colleges and universities in Indiana and to display the inventory on the commission’s web site for the use of students, after consulting with the department of workforce development and the Indiana economic development corporation.
HB 1129 – Use of telecommunications device while driving.
Provides that it is a Class C infraction if a person uses a telecommunications device to type, transmit, or read a text message or an electronic mail message while operating a moving motor vehicle, but permits a person: (1) to use hands free or voice operated technology to transmit a text message or an electronic mail message; and (2) to call 911 to report an emergency; while operating a moving motor vehicle. Provides, for purposes of the prohibition against using a telecommunications device while operating a motor vehicle, that “telecommunications device” does not include: (1) amateur radio equipment operated by a person licensed by the Federal Communications Commission as an amateur radio operator; or (2) a communications system installed in a commercial motor vehicle weighing more than 10,000 pounds. Prohibits a police officer from confiscating a telecommunications device for the purpose of determining compliance or confiscating a telecommunications device and retaining it as evidence pending trial for a violation. Repeals the current definition of “telecommunications device”.
SB 590 – Illegal immigration matters.
Makes various changes concerning enforcement of federal immigration laws, illegal immigration, and related criminal matters, including the following: (1) Requiring the office of management and budget to calculate the costs of illegal aliens to Indiana and make a written request to the Congress of the United States to reimburse the state for those costs. (2) Prohibiting governmental bodies from limiting or restricting: (A) certain actions by other governmental bodies with regard to information of the citizenship or immigration status of an individual; and (B) the enforcement of federal immigration laws to less than the full extent permitted by federal law. Allows certain persons to bring an action to compel a governmental body to comply with these provisions. (3) Prohibiting a law enforcement agency or law enforcement officer from requesting verification of the citizenship or immigration status of an individual from federal immigration authorities if the individual has contact with the agency or officer only as a witness to or a victim of a crime or for purposes of reporting a crime. (4) Disallowing certain state income tax credits and deductions for individuals who are prohibited from being hired as employees, unless the employer participated in the E-Verify program. (5) Requiring the department of correction to verify the citizenship or immigration status of criminal offenders. (6) Requiring an agency or political subdivision to verify the eligibility of an individual who applies for federal, state, or local public benefits. (7) Requiring the department of workforce development (DWD) to verify the status of an individual as a qualified alien through the Systematic Alien Verification for Entitlements program to determine the individual’s eligibility for unemployment compensation benefits. (8) Authorizing DWD to file civil actions to obtain the reimbursement of amounts paid as unemployment insurance benefits from employers that knowingly employed unauthorized aliens. (9) Requiring state agencies, political subdivisions, contractors with public contracts for services with the state or a political subdivision, and certain business entities to use E-Verify. Requiring certain subcontractors to certify that they use E-Verify. (10) Allowing a state agency or political subdivision to terminate a public contract for services with a contractor for breach of the public contract for services if the contractor knowingly employs an unauthorized alien. (11) Prohibiting individuals from commencing day labor without completing an attestation required under federal law. Requiring probable cause before a law enforcement officer may submit a complaint to the United States Customs and Immigration Enforcement office concerning violations of required federal attestations related to day labor. (12) Establishing certain state crimes, including: (A) offenses related to consular identification; (B) false identity statement; (C) knowingly or intentionally transporting or moving an alien, for the purpose of commercial advantage or private financial gain, knowing or in reckless disregard of the fact that the alien has come to, entered, or remained in the United States in violation of the law; and (D) knowingly or intentionally concealing, harboring, or shielding from detection an alien in any place, including a building or means of transportation, for the purpose of commercial advantage or private financial gain, knowing or in reckless disregard of the fact that the alien has come to, entered, or remained in the United States in violation of law. (13) Requiring law enforcement officers to impound motor vehicles for violations of crimes related to moving, transporting, concealing, harboring, or shielding from detection aliens. (14) Allowing a law enforcement officer to arrest a person if the officer has a certain removal order, detainer, or notice of action issued for the person or if the officer has probable cause to believe the person has been indicted for or convicted of one or more certain aggravated felonies. (15) Requiring a judicial officer in setting bail to consider that the defendant is a foreign national who has not been lawfully admitted to the United States as relevant to the risk of nonappearance. (16) Establishing certain bond requirements if bail is set for a defendant who is a foreign national unlawfully present in the United States. (17) Urging the legislative council to: (A) assign to an existing study committee certain topics concerning immigration; and (B) urge the study committee to consult with the lieutenant governor on the topics.