The Stagnation of the Common Law of Property

I'm uploading older articles to SSRN, so I thought I'd mention a short piece that I co-authored this summer for the Indiana Law Review.  You can find it here.  While the second half of the article discusses changes in the Indiana law of property over the past year, the first half is a short essay in which I lament the stagnation of the common law of property.  Although this article specifically concerns Indiana, I think that this is broadly true.  I'm sure that my thesis will be strongly challenged, but I think it reflects the frustrations of transactional real estate attorneys -- too much uncertainty leads to settlements which do nothing to advance the law.  I've been involved in circumstances that would have made great test cases, but my clients were just too darn risk averse.

Here's my conclusion:

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.

Tanya Marsh

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