FOR PUBLICATION


ATTORNEYS FOR APPELLANT:    ATTORNEY FOR APPELLEE:

ANDREW C. CHARNSTROM    TERRY R. CURRY
MAUREEN E. WARD    Sommer, Barnard, P.C.
Wooden & McClaughlin, LLP    Indianapolis, Indiana
Indianapolis, Indiana

     IN THE COURT OF APPEALS OF INDIANA

ABERDEEN APARTMENTS, et al.,    )

                                 )
Appellant-Plaintiffs             )
                                 )
vs.                              )    No. 29A04-0406-CV-297
                                 )
CARY CAMPBELL REALTY             )
ALLIANCE, INC.,                  )
                                 )
Appellee-Defendant.              )

    APPEAL FROM THE HAMILTON CIRCUIT COURT
    The Honorable Judith S. Proffitt, Judge
    Cause No. 29C01-0304-CT-595

    January 11, 2005

    OPINION - FOR PUBLICATION

ROBB, Judge

Whether the trial court properly denied the Apartments’ motion for a preliminary injunction because the preliminary injunction sought by the Apartments is an impermissible prior restraint under the United States and Indiana Constitutions.

N. In accordance with Indiana law, unless otherwise agreed to or specifically reserved, everything which belongs to the demised premises or is used with and is appurtenant to the leased premises, and which is reasonably necessary to the beneficial use and enjoyment thereof, will be considered as incidental to the leased premises and thus a right belonging to the tenant. Caito v. Indianapolis Produce Terminal, Inc., 320 N.E.2d 821, 825 (Ind. Ct. App. 1974). Receiving information in the form of free newspapers and accepting deliveries at the tenant’s leased premises are all reasonably necessary to the beneficial use and enjoyment of leased premises. Absent any provision in the plaintiffs’ leases or rules to the contrary, Campbell Realty’s activity cannot be prohibited by plaintiffs.

O. The fundament [sic] element of trespass to realty is injury to possession, and right to possession is necessary for the maintenance of the action. State v. Gibson Circuit Court, 206 N.E.2d 135 (Ind. 1965); Sigsbee v. Swathwood, 419 N.E.2d 789 (Ind. Ct. App. 1981). [The Apartments] thus cannot maintain an action for trespass because a party cannot assert an action for trespass unless the party has exclusive dominion and control over the property alleged to be trespassed upon by [Campbell Realty]. [The Apartments] do not have the common areas of their communities within their exclusive control.

Appellant’s Brief at tab 1 pg. 9-10 (emphasis added). The trial court found that the Apartments did not have exclusive control over the common areas because the tenants were allowed to use these areas.
    The question of whether a landlord must have exclusive possession of the common areas of an apartment community before he or she may sue for trespass to those areas has not been addressed in this state; therefore, we will consider how courts in other states have resolved this or similar issues. Initially, we note that in a trespass claim a plaintiff must prove that “he was in possession of the land and that ‘the defendant entered the land without right.’” Indiana Michigan Power Co. v. Runge, 717 N.E.2d 216, 227 (Ind. Ct. App. 1999) (quoting Lever Bros. Co. v. Langdoc, 655 N.E.2d 577, 581-82 (Ind. Ct. App. 1995)). By our own enunciation of the elements of a trespass claim, a plaintiff need only prove that he or she is in possession, rather than exclusive possession, of the land in question to succeed. But we have also abided by the “traditional rule that an action for trespass to real estate ‘cannot be maintained for an invasion of a right of way or easement.’” Runge, 717 N.E.2d at 227 (quoting State ex rel. Green v. Gibson Circuit Court, 246 Ind. 446, 449, 206 N.E.2d 135, 137 (1965)). This traditional rule ‘“is based upon the principle that trespass actions are possessory actions and that the right interfered with is the plaintiff’s right to the exclusive possession of a chattel or land.”’ Id. The traditional rule then seems to muddy the waters by suggesting that for a plaintiff to prevail in a trespass claim he or she must prove exclusive possession of the land in question.
    We do not need to resolve this ambiguity in the case law as we conclude that the Apartments are in exclusive possession of the common areas. As the Michigan Court of Appeals has explained:
[t]he landlord grants to tenants rights of exclusive possession to designated portions of the property, but the landlord retains exclusive possession of the common areas. The landlord grants to tenants a license to use the common areas of the property. Tenants pay for this license as part of their rent. Therefore, tenants are invitees of the landlord while in the common areas, because the landlord has received a pecuniary benefit for licensing their presence.

Stanley v. Town Square Coop., 512 N.W.2d 51, 54 (Mich. Ct. App. 1994).
However, the Washington Supreme Court has taken a position contrary to that of the Michigan Court of Appeals. They have stated:
Contrary to appellants’ assertion, landlords do not have exclusive authority over the common areas. In order to admit visitors to an apartment, the tenant must necessarily possess the authority to permit guests to pass through the common areas leading to that apartment. The tenant must therefore possess the authority to consent to the visitor’s entry into the building itself. For that reason, the authority over common areas is more properly characterized as common to both tenant and landlord, rather than exclusive to the landlord alone.

City of Seattle v. McCready, 124 Wash.2d 300, 307, 877 P.2d 686, 690 (1994).
Although we agree that tenants must have the right to permit visitors to pass through the common areas in order to enter their apartment, we believe the Michigan Court of Appeals has satisfactorily dealt with this by giving tenants a license to use the common areas. The Washington Supreme Court’s position that landlords and tenants share authority over common areas also leaves us with the same problem caused by the trial court’s decision here. If neither the landlord nor the tenant has exclusive control over common areas then no one would be able to maintain an action for trespass to those areas. We believe that for each piece of property there should be at least one individual with a sufficient interest in that property to maintain an action for trespass to it. This would help to protect the property from such things as waste, and also protect the interests of any individuals who happen to be tenants on the property. We therefore hold that a landlord retains exclusive possession of the common areas of an apartment complex and that the trial court has abused its discretion to the extent that it has held otherwise. See footnote
    Regardless of whether or not a landlord has exclusive possession over common areas, we would still conclude that he or she has a sufficient possessory interest in the common areas of an apartment complex to bring an action for trespass. The Apartments correctly note that a landlord has a duty to maintain the common areas or areas under his or her control in a safe condition. City of Indianapolis Hous. Auth. v. Pippin, 726 N.E.2d 341, 345 (Ind. Ct. App. 2000). Should a landlord breach this duty, he or she could be liable in an action for negligence. The Apartments argue that because a landlord is burdened with this duty and the threat of potential liability, he or she must retain a sufficient possessory interest in the property to maintain an action for trespass.
    The Missouri Court of Appeals has reached a similar conclusion. In Motchan v. STL Cablevision, Inc., 796 S.W.2d 896 (Mo. Ct. App. 1990), the landlords owned a four-family dwelling that they rented out to tenants. The defendants installed video transmission cables across the property and into the building at the request of one of the tenants. In order to install the cable, the defendants had to drive nails and drill holes into the building. The landlords brought a suit against the defendants for trespass. The defendants moved for summary judgment, arguing that the landlords could not maintain a trespass action because they were not in possession of the property. The trial court granted the defendants’ motion for summary judgment. On appeal, the landlords argued that they retained a possessory interest in the common areas that was sufficient to permit them to maintain an action for trespass. The landlords argued that their possessory interest in the common areas was derived from their retention of control over those areas and their duty to repair and keep those areas safe. The Missouri Court of Appeals noted that “[t]he landlord retains, as to the tenants, possession and control of the common areas.” Id. at 899. The court also stated that “[w]hen a tenant is in full possession of the premises, the landlord will have no liability for injuries occurring therein, but when the landlord reserves some area for common use, he may be liable.” Id. The court ultimately held that because landlords retain control over and could be subject to liability for injuries occurring in the common areas, they retain sufficient possession of the common areas to support an action for trespass. Id. at 900. We agree with the Missouri Court of Appeals. Because Indiana landlords have a duty to maintain common areas in a safe condition and can be held liable for injuries occurring in those areas, we hold that landlords retain sufficient possession over common areas to maintain an action for trespass. See Colonial Properties, Inc. v. Vogue Cleaners, Inc., 86 F.3d 210, 211 (11th Cir. 1996) (concluding that Alabama law is the same as that enunciated by the Missouri Court of Appeals in Motchan).
    We further conclude that public policy supports allowing landlords to maintain an action for trespass to the common areas of their properties. The United States Supreme Court has stated that “one of the essential sticks in the bundle of property rights is the right to exclude others.” Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 82, 100 S.Ct. 2035, 2041, 64 L.Ed.2d 741, 752 (1980). The trial court’s denial of the Apartments’ motion for a preliminary injunction denies the Apartments their right to exclude trespassers from their property. As with all rights afforded to citizens, our property rights must be closely safeguarded from unwarranted infringements. Here, the denial of the Apartments’ property rights is unwarranted.
    The Apartments also persuasively argue that the trial court’s conclusion will lead to illogical and unjust results. The trial court concluded that the Apartments could not maintain an action for trespass against Campbell Realty because they were not in exclusive possession of the common areas of their properties. The Apartments, however, note that by their very nature the common areas are used by both the tenants and the landlord in common. Under the trial court’s reasoning, neither the landlord nor the tenant would have exclusive possession of the common areas. If no one has exclusive possession, then no one would have the ability to maintain an action for trespass to the common areas. Such a result would mean that businesses like Campbell Realty would have “unfettered access to all apartment communities in Central Indiana.” Appellant’s Brief at 20. Perhaps of even greater concern, if landlords cannot maintain an action for trespass to the common areas of their properties, then those common areas, like parking lots, sidewalks, laundry rooms, tennis courts, playgrounds, and swimming pools, “would be open to public use without limit or restriction.” Id. This result is not in the public’s best interest, as it would have a deleterious effect on the landlord’s business and would interfere with the privacy and repose that tenants expect from what is their home.
    We therefore hold that landlords do have a sufficient possessory interest in the common areas of their properties to maintain an action for trespass to those areas. The trial court abused its discretion in concluding that the Apartments did not demonstrate a reasonable likelihood of success at trial on their trespass claim because the Apartments have made a prima facie showing that they are in possession of the common areas of their properties and because Campbell Realty has indisputably entered the Apartments’ land without right. See footnote

Baker, Judge, dissenting.

    I understand that the Apartments find themselves in an aggravating situation—having to dedicate extra employee time to cleaning up the Renter’s Gazette from its properties, losing tenants who buy a home as a result of information contained in the Renter’s Gazette, and fearing a loss of prospective tenants who see the littered properties and choose not to rent an apartment. But I believe that granting the requested preliminary injunction gives landlords an unprecedented right to bar whomever they choose from their properties, and I also believe that the injunction violates Campbell Realty’s and the tenants’ rights under the First Amendment to the United States Constitution and Article I, Section 9 of the Indiana Constitution. Therefore, I respectfully dissent from the majority opinion.