Indiana Law Review, Vol. 43, p. 967, 2009-2010
32 Pages Posted: 22 Nov 2010
Date Written: 2010
This essay argues that common law of real property law in Indiana, and more broadly, is stagnating. This stagnation of the common law of property results from a combination of factors. Transactional attorneys view the litigation process as unworkable, particularly in the real estate context,for three key reasons: (1) the cost; (2) the length of time until resolution; and (3) the uncertain outcome. If neither the common law nor statutory law provide easy answers to an issue, the parties are likely to conclude that they are better off resolving their differences out of court rather than spending time and money to achieve an unpredictable result. This situation is a classic Catch-22 - the parties to real estate disputes refuse to bring their cases to the appellate courts in part because of the failure of the courts to modernize the Indiana common law of property, but the appellate courts of Indiana have limited opportunities to modernize the law because of the failure of parties to modern disputes to allow their cases to be heard.
Keywords: common law, property, real property, real estate, Indiana
JEL Classification: K11
Suggested Citation: Suggested Citation
Marsh, Tanya D. and Pyatt, April Sparks, The Stagnation of Indiana Real Property Law (2010). Indiana Law Review, Vol. 43, p. 967, 2009-2010. Available at SSRN: https://ssrn.com/abstract=1713360