Indiana Court of Appeals Rules on Foreclosed Properties and Attractive Nuisances
by: David J. Cutshaw, Attorney
In a very tragic case, our Court of Appeals in Erwin v. HASBC Mortgage Services, Inc., 983 N.E. 2d 174 (Ind. Ct. App. 2013) ruled that a mortgage company has no duty to maintain property of a homeowner who abandons the property. In this case, a homeowner had placed an in-ground pool on his property with a safety cover, but did not fence in the pool. The home owner filed bankruptcy and abandoned the property–and the pool. The pool and the pool cover deteriorated and was not maintained for several months. A five-year-old granddaughter of a neighbor slipped into the pool and drowned. Because the sunken pool cover was covered in algae, the young girl could not climb out of the pool when she slipped into the pool.
This cannot be an uncommon problem in light of all the properties that have been abandoned due to our recent and continuing foreclosure problems. The Court ruled that since the mortgage company did not actually have possession of the property (which was an asset of the bankruptcy estate), the mortgage company could not be responsible for maintaining the property, the pool or the pool cover. The Court made this ruling even though several neighbors and the homeowner’s association had complained to the mortgage company before the drowning that the home and pool were in bad shape and the pool was dangerous.
The Court also ruled that the homeowner’s association had no responsibility to remedy the dangerous condition of the pool or protect this five-year-old from harm. In short, the Court hinted that this was a job for our legislature to impose duties upon mortgage companies or homeowner’s associations, as Indiana law does not protect children in this situation.
So, the question is, what can an adjacent homeowner who has young children do to make sure this does not happen to his or her children? One could argue that if no one has a duty to maintain this type of property, then no one should complain when the pool cover is removed and the pool is drained–with the drain left open so that water will not accumulate. The adjacent homeowner should consult with a lawyer before taking the law in his or her own hands in this situation, but the safety of children should be paramount. Sending this case to your legislator may also help, assuming they are not lobbied mercilessly by mortgage companies and homeowner’s associations already.