Filling in the Gaps: The Continuing Evolution of Property Law in Indiana (original) (raw)
In this survey period, October 1 , 200 1 , through September 30, 2002, the state appellate and federal courts tackled a number of discrete issues regarding property law. This Article examines those cases which clarified an existing rule or applied the principles of the common or statutory law to a new situation. The first four sections of this Article correspond with four thematic divisions of property law: (1) relationships between private parties; (2) the creation and enforcement of property interests; (3) land use law; and (4) developments in the common law of property. These sections abstract and analyze a handful of cases which either depart from or clarify existing property law in a significant way. The fifth section describes two significant revisions to the Indiana Code made in the 2002 session of the Indiana General Assembly: the recodification of Title 32 and the Landlord/Tenant Act of 2002. The sixth and final section contains brief summaries of a number of other cases handed down during the survey period which may be of interest to practitioners. I. Relationships Between Private Parties One of the most important practical aspects of property law concerns the rules governing relationships between private parties with respect to real property. The principal relationships which arise are: (1) a buyer and seller of property; (2) a landlord and tenant; (3) a holder of a lien on property and the owner of the property; and (4) holders of competing liens on property. Of course, the contracts that the parties enter into govern the bulk of their relationship, but the rules that govern how those contracts are to be construed and enforced become as much a part of the contract as the words with which they are written. A. Buyers and Sellers Buyers and sellers of property typically are most concerned about the practical terms of their transaction-what is to be included with the property, what the price will be, when closing will occur-and that their contracts are carefully prepared with those issues in mind. Unfortunately, the buyer and seller do not typically spend a lot of time thrashing out what will happen if one of them fails to live up to his or her part of the bargain. These issues are usually left to the form of contract used and virtually dismissed as "boilerplate." The Indiana Court of Appeals recently had occasion to address the damages *
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