Indiana Law Review


Recent Developments in Indiana Real
Property Law

Tanya D. Marsh*

This Article takes a topical approach to the notable real property cases in the

courts of the State of Indiana in this survey period, October 1, 2006, through

September 20, 2007, and analyzes noteworthy cases in each of the following

areas: servitudes; landlord/tenant law; developments in the common law; real
estate contracts; tax sales; liens and mortgages. In addition, this Article

summarizes new statutes that became effective July 1, 2007.

I. Servitudes

A. Restrictive Covenants—Non-Waiver Clause
Johnson v. Dawson 1 is the latest chapter in the Indiana appellate courts'

confusing enforcement of restrictive covenants. It presents a question of first

impression in Indiana: is a nonwaiver clause in a multi-party restrictive covenant

enforceable?
2 The Johnsons owned a home in Meadowbrook Subdivision in

Tippecanoe County.
3 The subdivision was subjected to a declaration of

covenants, restrictions, and conditions when it was developed in 1956.4 The
Johnsons purchased their home subject to the restrictions.5 The Johnsons sought
to construct an additional detached private garage on their lot, which was in clear
violation of one of the restrictive covenants.

6 The homeowners board initially
approved the Johnsons' request to construct the garage, then subsequently voted

to disapprove of the construction.
7 Dawson, Nelson, Graham, and Kauffman

(collectively, "Plaintiffs") filed suit in trial court to enjoin the Johnsons from

constructing the garage.
8 The trial court found in favor of the Plaintiffs and

issued the injunction, as well as attorneys fees, to the Plaintiffs, and the Johnsons

appealed.
9

The court of appeals agreed with the trial court that some of the language of
the restrictive covenant was unambiguous and operated to preclude the Johnsons
from building their second garage.

10 The court then turned to the Johnsons'
second argument that Dawson "acquiesced in prior restrictive covenant violations

* Vice President of Legal, Kite Realty Group.

Bloomington; J.D., 2000, Harvard Law School. Many thanks
our sons, Liam and Riley.

1. 856 N.E.2d 769 (Ind. Ct. App. 2006).

2. Id. at 774.

B.A.,

to my
1994, Indiana University

—

husband, Blane Sherman, and

3. Id. at 771.

4. Id.

5. Id.

6. Id. at 771-72.

7. Id.

8. See id.

9. Id. at 769.

10. Id. at 774.



1238 INDIANA LAW REVIEW [Vol. 41 : 1237

of other Meadowbrook landowners and is therefore barred from challenging the
Johnsons' building of the additional detached two-car garage."

11
The

Meadowbrook covenants contained the following "nonwaiver" clause: "The
failure for any period of time to compel compliance with any restrictions,

condition or covenant shall in no event be deemed as a waiver of the right to do
so thereafter, and shall in no way be construed as a permission to deviate from
said restrictions, conditions and covenants."

12 The court noted that while
nonwaiver clauses are generally enforced in Indiana, the Johnsons argued that

such clauses "have not been enforced [in Indiana law] in the context of a multi-

party restrictive covenant. This difference is material.'"
13 The court agreed that

this issue was a question of first impression in Indiana.
14 The Johnsons asserted,

apparently on public policy grounds, that a multi-party nonwaiver clause is per

se unenforceable because otherwise it "is less likely to have a beneficial effect,

and far more likely to have an insidious one" due to the possibility of selective
enforcement.

15 The court was unmoved by this argument, noting that the
Johnsons agreed to the restrictive covenant and nonwaiver clause by purchasing

the home and that "even if violations and selective enforcement are occurring, the
Johnsons are bound by the clause."

16

Johnson v. Dawson, with its strict application of the restrictive covenant and
apparent lack of concern for public policy arguments, seems out of step with

recent appellate jurisprudence in Indiana on the subject of restrictive covenants.

For example, although the trial court granted the Plaintiffs' request for equitable

relief, there was no discussion by the Indiana Court of Appeals on whether the
trial court found that the Plaintiffs had no adequate remedy at law.

17 The court's
failure to ask this question is inconsistent with the 2003 Kesler v. Marshall

1 *

decision, in which the court of appeals acknowledged that the trial court has the

discretion to award equitable remedies but cautioned that "such judicial

discretion is not arbitrary, but is governed by and must conform to the well-

settled rules of equity."
19

Those "well-settled rules" include the notions that

equitable remedies are "extraordinary" remedies and that they are "not available

as a matter of right."
20

Instead, equitable remedies are only available when no
adequate remedy at law, i.e. monetary damages, exists: "Where substantial
justice can be accomplished by following the law, and the parties' actions are

clearly governed by rules of law, equity follows the law."
21
Judge Robb' s dissent

11. Id.

12. Id.

13. Id. (quoting Appellants' Brief at 7, Johnson, 856 N.E.2d 769 (No. 79A04-0601-CV-8)).

14. Id. (quoting Appellants' Brief, supra note 13, at 8).

15. Id. at 175.

16. Id.

17. See Johnson v. Dawson, 856 N.E.2d 769 (Ind. Ct. App. 2006).

18. 792 N.E.2d 893 (Ind. Ct. App. 2003).

19. Id. at 896 (citing Wagner v. Estate of Fox, 717 N.E.2d 195, 200 (Ind. Ct. App. 1999)).

20. Id.

21. Id. at 897 (citing Porter v. Bankers Trust Co., 773 N.E.2d 901 (Ind. Ct. App. 2002)).



2008] PROPERTY LAW 1239

in Johnson is more consistent with recent jurisprudence as it reflects more

concern for the Johnsons' free use of their property and the idea that restrictive

covenants should be construed against their drafters.
22

Unfortunately for

practitioners who rely heavily on restrictive covenants in commercial and
residential developments, the court of appeals continues to send mixed messages

regarding its application and interpretation of these agreements.

B. Breach ofAccess Easement

Drees Co. v. Thompson
22

" addressed the appropriate remedy for the breach of

a servitude. Thompson owned one-acre parcel surrounded by twenty-nine acres
owned by Drees.

24 An express easement granted by Drees' s predecessor in title
gave Thompson "a non-exclusive easement for ingress and egress" to the
Thompson parcel over a particular strip of real estate located on the Drees
parcel.

25
Drees proposed to develop its parcel into a subdivision with fifty homes

and submitted its plan to the appropriate governmental body.
26 The plan included

the preservation of the ingress/egress easement, with the subdivision residents

being permitted to use the path for biking and walking.
27 Thompson filed a

complaint for declaratoryjudgment and injunctive reliefand sought a preliminary

injunction.
28 The trial court granted both the preliminary injunction and,

ultimately, a permanent injunction to prevent Drees from completing its

development plan, so Drees appealed.
29

Drees argued on appeal that the trial court erred in granting the permanent

injunction because: (a) the easement was non-exclusive; (b) the Thompsons
relied on concerns of vandalism, inconvenience, and possible cancellation of

homeowner's insurance, all of which are unrelated to their easement rights; and

(c) the necessity of the original easement would no longer exist once the Drees
parcel was developed.30

The main portion of the court's decision dealt with whether the injunction
was appropriate.

31 The court noted that "permanent injunctions are limited to
prohibiting injurious interference with rights" and that grant or denial of them is
reviewed on an abuse of discretion standard.

32
According to the court, four

factors must be considered:

22. See Johnson, 856 N.E.2d at 776-78 (Robb, J., dissenting).

23. 868 N.E.2d 32 (Ind. Ct. App. 2007), trans, denied, 878 N.E.2d 220 (Ind. 2007).

24. Mat 35.
25. Mat 37, 39.
26. Id. at 36.

27. Id. at 37-38.

28. Mat 37.
29. Id. at 37-38.

30. Id. at 38.

31. &?e *W. at 38-45.

32. Id. at 41 (citing Ferrell v. Dunescape Beach Club Condos. Phase I, Inc., 75 1 N.E.2d 702,

712 (Ind. Ct. App. 2001)).



1240 INDIANA LAW REVIEW [Vol. 41 : 1237

(1) whether the plaintiff has succeeded on the merits; (2) whether

plaintiffs remedies at law are adequate; (3) whether the threatened

injury to the plaintiff outweighs the threatened harm a grant of relief
would occasion upon the defendant; and (4) whether the public interest
would be disserved by granting relief.

33

As to the first prong of the analysis, whether the plaintiff would succeed on the
merits, the court of appeals reviewed each of the Thompsons' arguments to
determine whether the proposed development would be contrary to its easement
rights.

34 The court was not convinced that any of the Thompsons' arguments had
merit and concluded that the trial court abused its discretion in granting the

injunction because the Thompsons could not prevail on their underlying
argument.

35
In so deciding, the court of appeals did not need to address the other

factors, and the case was reversed and remanded with instructions.36

n. Landlord/Tenant Law

A. Subtenant Hold-over

Fields v. Conforti
31

presented an issue of first impression in Indiana with

respect to a tenant's liability in the event that a subtenant holds over after a lease

expires.
38

Conforti owned a home and agreed to lease it to Marlow, with an
option to purchase.

39 The lease contained a hold-over clause which read: "Any
holding over after the expiration of the term of this lease, with the consent of the

Lessor, shall be construed as a month-to-month tenancy in accordance with the

terms hereof, as applicable."
40 "Marlow and Conforti also signed a 'Permission

to Sublet' form, in which Conforti granted Marlow the right to sublet the
residence to the Fieldses."

41
The document expressly did not release Marlow

from liability during the sublease.
42 Marlow in turn gave the Fieldses oral

permission to occupy the home, but did not execute a written agreement with

them.
43

After moving in, the Fieldses made their rental payments directly to
Conforti.

44
The Fieldses subsequently provided Conforti with written notice that

33. Id. (citing Ferrell, 751 N.E.2d at 712)

34. Mat 42-45.
35. Id.

36. Id. at 44-45.

37. 868 N.E.2d 507 (Ind. Ct. App. 2007).

38. See id. at 514-15.

39. Id. at 511.

40. Id.

41. Id.

42. Id.

43. Id.

44. Id.



2008] PROPERTY LAW 1241

they were exercising the option to purchase the property under the lease.
45 The

Fieldses scheduled a closing, which Conforti did not attend.
46 The record

showed that the Fieldses did not have the economic means to close, even if

Conforti had attended.
47

Conforti then provided Marlow and the Fieldses with
written notice that the lease had expired, that Marlow and the Fieldses were
holdover tenants, and that their rent had been increased.

48
"The Fieldses

responded by filing a complaint against Conforti for specific performance."
49

Conforti gave written notice to Marlow and the Fieldses that they were in default
for failing to pay the increased rent. The Fieldses did not vacate the property.

50

After a bench trial,

[t]he trial court concluded that: (1) the Fieldses were not entitled to

specific performance because they were not parties to the Lease . .
. ; (2)

the Fieldses were sublessees pursuant to an oral agreement with Marlow;

(3) both Marlow and the Fieldses were in default . . . and were liable to
Conforti for the [increased rent]; (4) the Fieldses were liable for

Conforti' s attorney fees . . . because the Fieldses 'continued to litigate

the action for specific performance after it should have become clear to
them that they had no right to exercise the option to purchase under the

Lease'; and (5) Marlow was liable for Conforti 's attorney fees . . .
because of the prevailing party clause in the Lease.

51

With respect to the Fieldses' liability for the increased rent, the court of

appeals found that there was no privity of contract or privity of estate between
the Fieldses and Conforti, thus that conclusion by the trial court was clearly
erroneous.

52 The fact that the Fieldses paid their rent directly to Conforti did not
create privity.

53

Marlow argued that he should not be liable for the increased rent because the
failure to pay the full rental payments occurred after the term of the lease

expired.
54

Although the parties did not cite any Indiana cases on point, the court

was persuaded by a federal case that held:

[W]here a tenant subleases property, the tenant has a responsibility to

see that the subtenant vacates the premises in order to surrender them to
the landlord without further liability. If a subtenant holds over, it is

effectively a holding over by the tenant, and the landlord can hold the

45. Id.

46. Mat 51 1-12.
47. Id.

48. Id. at 512.

49. Id.

50. Id.

51. Id.

52. Mat 513-14.
53. Id. at 514.

54. Id.



1242 INDIANA LAW REVIEW [Vol. 41 : 1237

tenant liable for damages for the holdover period.
55

Marlow further argued that Conforti could not unilaterally increase the rent
amount during the holdover period.

56 The court disagreed, citing precedent for
the statement that "a month-to- month tenancy may be terminated or the rent may
be changed by the landlord giving a one-month notice to the tenant."

57 The court
concluded that when Marlow received notice that the lease had expired, he could
have paid the increased rent or vacated, but chose to do neither.

58

B. Material Breach ofLease

In Collins v. McKinney,
59
the court of appeals remanded the matter to the trial

court for a determination of whether a sublease without landlord's required

permission was a material breach of the master lease.
60

Collins owned land in
Fort Wayne which she leased to McKinney for a period of five years.61 The lease
provided that McKinney could not assign or sublet without Collins' s prior
written consent.

62 McKinney sublet to Tomkinson Chrysler Jeep, Inc.
("Tomkinson") with Collins' s permission.

63
Subsequently, Tomkinson entered

into an asset purchase agreement with Glenbrook Dodge, Inc. ("Glenbrook")

whereby Tomkinson agreed to sell Glenbrook the auto dealership that it operated
on the property owned by Collins.64 After closing on the asset purchase
agreement, Glenbrook began making the payments pursuant to the sublease
between McKinney and Tomkinson, although Tomkinson did not formally assign
the sublease to Glenbrook.

65

Shortly after the asset purchase agreement closed, Collins notified McKinney
that she refused to consent to an assignment from Tomkinson to Glenbrook and
that McKinney was in default of the master lease.66 In response, McKinney
initiated a declaratoryjudgment action.

67
Collins counterclaimed that McKinney

was in breach of the master lease because Glenbrook was in possession of the
property without Collins' s consent.

68
After ajury trial, McKinney filed a motion

for a directed verdict, which the trial court granted, reasoning that there was no

55. Young v. D.C., 752 A.2d 138, 142 (D.C. Cir. 2000) (citations omitted).

56. Fields, 868N.E.2dat515.

57. Id. (emphasis added) (citing Speiser v. Addis, 41 1 N.E.2d439, 441 (Ind. Ct. App. 1980)).

58. Id

59. 871 N.E.2d 363 (Ind. Ct. App. 2007).

60. Id. at 368, 371.

61. Id. at 366.

62. Id.

63. Id. at 366-67.

64. Mat 367.
65. Id.

66. Id.

67. Id.

68. Id.



2008] PROPERTY LAW 1243

breach of contract.
69

Collins appealed and McKinney cross-appealed the trial
court's order that Collins' s consent was required prior to any assignment or

sublease of the sublease.
70

The court ofappeals addressed two issues: whether damages were proper and

whether the failure to obtain Collin's consent constituted a breach of the lease.
71

On the damages issue, McKinney argued that because Collins "failed to produce
any evidence of damage, devaluation, or waste due to the alleged breach by

McKinney," Collins cannot recover for breach of contract.
72 The court of

appeals disagreed, finding that Collins was asking for and could receive the

remedy of rescission.
73

"Rescission of a contract is not automatically available.

However, if a breach of a contract is a material one which goes to the heart of the

contract, rescission may be the proper remedy."74

The court of appeals then turned to the question of whether there was a
breach of the lease.

75
Although the court noted that construction of a written

contract is generally a question of law, it concluded by remanding the matter

back to the jury for a determination of whether the breach was material.
76

IE. Common Law

A. Private Owner Liabilityfor Sidewalks

Denison Parking, Inc. v. Davis
11
addressed the liability of a private property

owner to an individual who slipped and fell on ice on an adjoining sidewalk.78

Davis parked her car at a garage managed by Denison Parking.
79

She then fell

on a patch of ice located on the sidewalk near to the garage and injured herself.
80

Snow removal in that area was provided by Denison Parking.81 Denison
Parking's policy, and its agreement with the Capital Improvement Board of

Managers, stated that Denison Parking should "stay on top of snow removal" and
"[r]emove snow and ice build-up that may restrict the safety of pedestrian
traffic."

82
Davis filed a complaint against Denison Parking, and Denison Parking

69. Id. at 368-69.

70. Id. at 369.

71. Mat 369-76.
72. Id. at 370.

73. Mat 370-71.
74. Id. (citing Gabriel v. Windsor, Inc., 843 N.E.2d 29, 45 (Ind. Ct. App. 2006)).

75. Mat 371.
76. Id. at 372, 376.

77. 861 N.E.2d 1276 (Ind. Ct. App.), trans, denied, 869 N.E.2d 462 (Ind. 2007).

78. Mat 1277.
79. Id. at 1277-78.

80. Id.

81. Id.

82. Id. at 1278.



1244 INDIANA LAW REVIEW [Vol. 41 : 1237

filed a motion for summaryjudgment.
83 The trial court denied Denison Parking'

s

motion for summaryjudgment but granted Denison Parking' s subsequent motion
for an interlocutory appeal.

84

Denison Parking argued that the trial court erred in denying its motion for

summary judgment because Denison Parking did not, as a matter of law, owe a
duty to Davis nor did it assume a duty by creating an artificial condition that

increased risk or proximately caused injury to Davis.
85

In order to establish a

claim against Denison Parking, Davis had to show "that Denison Parking: (1)
owed Davis a duty, (2) that Denison Parking breached its duty, and that (3) the
breach proximately caused Davis's injuries."

86
Denison Parking argued that it

did not owe Davis a common law or statutory duty to clear the public sidewalks
of ice and snow, nor did it assume such a duty.

87 The court of appeals found that
Denison Parking did not owe a common law or statutory duty of care to Davis
because Denison Parking is a private owner, not a municipality.

88
Although

Davis pointed to Indianapolis Municipal Code section 931-102 to show that
Denison Parking had a duty to clear the sidewalk,

89
the court noted that

ordinances such as this one "are not enacted for the protection of individuals

using the streets, but rather are for the benefit of the municipality."
90

Finally, the

court noted that in Indiana, "persons are held to have assumed a duty to

pedestrians on a public sidewalk only when they create artificial conditions that
increase risk and proximately cause injury to persons using those sidewalks."

91

In this case, the court found no designated evidence that Denison Parking had

created such an artificial condition.
92 The court reversed and remanded with

instructions to grant Denison Parking's motion for summary judgment.93

IV. Real Estate Contracts

A. Equity ofForfeiture

Keene ("Seller") and Armstrong ("Buyer") were parties to a conditional
contract for the sale of a restaurant and tavern in Marion.

94 The purchase price

83. Id.

84. Id.

85. Id. at 1279.

86. Id.

87. Id.

88. Id. at 1280.

89. Rev. Code ofthe Consol. City and County Indianapolis/Marion, Ind. § 931-102

(2007).

90. Davis, 861 N.E.2d at 1281.

91. Id. at 1280 (citing Lawson v. Lafayette Home Hosp., Inc., 760 N.E.2d 1 126, 1 130 (Ind.

Ct. App. 2002)).

92. Id.

93. Id. at 1281-82.

94. Armstrong v. Keene, 861 N.E.2d 1 198 (Ind. Ct. App.), trans, denied, 878 N.E.2d 205



2008] PROPERTY LAW 1245

was to be paid in a down payment and monthly payments (including interest)
over a period of fifteen years.

95 The contract called for Buyer to pay real estate
taxes and insurance and contained a forfeiture clause which provided that if

Buyer failed to make the required payments for a period of thirty days after due,
then the agreement "shall become null and void, at the option of the SELLER,"
whereby Buyer was required to surrender the real estate to Seller.

96

Approximately seven years after the contract was signed, Buyer failed to make
the monthly payments and pay the real estate taxes. Seller sent Buyer a letter

informing him of the default.
97

"At the time of the default, Buyer had paid
approximately $43,000 in principal."

98
Several months later, Buyer executed a

bill of sale to Seller whereby he granted all of his interest in the real estate,

improvements, and personal property to Seller.
99
Buyer also conveyed the liquor

license back to Seller.
100

Approximately eighteen months later, a fire destroyed

the bar, and Seller allegedly received $179,000 from in insurance proceeds and

from the sale of the real estate and liquor license.
101

Buyer filed a complaint for breach of contract against Seller, alleging that

Seller had orally promised to pay him $25,000 for Buyer' s interest in the bar, but
that Seller had not paid him the money. 102 In the alternative, Buyer alleged that
he was entitled to foreclosure of the real estate.

103
Seller filed for summary

judgment.
104

Buyer filed his own motion for summary judgment, arguing that he
was entitled to foreclosure pursuant to Skendzel v. Marshall.

105 The trial court
ruled that the alleged oral agreement between the parties was unenforceable and
that Skendzel does not apply where Buyer voluntarily abandoned and

relinquished his interest in the property.
106

Buyer appealed.
107

On appeal, the buyer relied on Skendzel, a case in which "the Indiana
Supreme Court addressed the equity of forfeiture as a remedy in land
contracts."

108 The court noted that forfeitures are generally disfavored by law
because a significant injustice results where the buyer has a substantial interest
in the property.

109 The court concluded that land sales contracts are akin to

(Ind. 2007).

95. Id. at 1199.

96. Id. at 1199-1200.

97. Id. at 1200.

98. Id.

99. Id.

100. Id.

101. Id.

102. Id.

103. Id.

104. Id.

105. Id. at 1200 (citing Skendzel v. Marshall, 301 N.E.2d 641 (Ind. 1973)).

106. Id.

107. Id.

108. Id. at 1201 (footnote omitted).

109. Id.



1246 INDIANA LAW REVIEW [Vol. 41 : 1237

mortgages, and therefore the remedy offoreclosure is preferred.
1 10

InArmstrong,

the court of appeals agreed with Seller that Skendzel does not apply because the

Buyer signed the bill of sale voluntarily.
1 l

1

There was no forfeiture. U1 The court
cited Justice Prentice's concurrence in Skendzel. "'It follows that if the vendee

has indicated his willingness to forego his equity, if any, whether by mere
abandonment of the premises, by release or deed or by failure to make a timely
assertion of his claim, he should be barred from thereafter claiming an
equity/"

113

B. Boundary Description

Schuler v. Graf
14
addressed an unclear boundary description in a real estate

contract.
115

Schuler owned a 149-acre tract of land. Graf expressed interest in
purchasing approximately eleven acres of the tract.

116
Schuler and Graf walked

the property and discussed the boundaries of the parcel to be sold.
117

During this

discussion, a fence post was spray painted to indicate one boundary, and a line
was drawn in the dirt to indicate another boundary. 118 Schuler and Graf
subsequently entered into a land contract which stated that "[t]he boundaries of

the two parcels have been agreed upon by the parties" and that the exact acreage
would be determined by a survey.

119
Graf paid the earnest money to Schuler. 120

After Grafs surveyor prepared a survey, Schuler sent notice that the legal
description was not accurate and that the contract did not reflect a meeting of the
minds.

121
Schuler refused to complete the paperwork required to subdivide the

smaller parcel from the larger tract and indicated to Graf that she no longer

wished to sell.
122

Graf filed a complaint for specific performance of the

contract.
123

Schuler asserted that the contract failed to satisfy the statute of

frauds because it did not contain a metes and bounds description of the real estate

and that there was no meeting of the minds regarding the boundaries of the
parcel.

124
Following testimony by both Schuler and Graf regarding their

110. Id.

111. Id. at 1202.

112. Id.

113. Id. (quoting Skendzel v. Marshall, 301 N.E.2d 641, 651 (Ind. 1973) (Prentice, J.,

concurring) (emphasis added)).

1 14. 862 N.E.2d 708 (Ind. Ct. App.), trans, denied, 869 N.E.2d 461 (Ind. 2007).

115. Id.

116. Id. at 710.

117. Id.

118. Id.

119. Id.

120. Id.

121. Id.

122. Id. at 711.

123. Id.

124. Id.



2008] PROPERTY LAW 1247

discussions of the property lines, the trial court concluded that there was a

meeting of the minds and ordered specific performance.
125

Schuler appealed.
126

On appeal, Schuler argued that the trial court erred in ordering specific
performance because the contract did not satisfy the statute of frauds as it did not

provide a legal description of the real estate to be sold.
127 The court cited case

law for the proposition that an agreement must " 'completely contain the essential

terms without resort to parol evidence in order to be enforceable.'"
128

Regarding

the description of land, the court cited a previous case which held that a

description of property "'may be abstract and of a general nature, if with the

assistance of external evidence the description, without being contradicted or

added to, can be connected with and applied to the very property intended, to the

exclusion ofall other property.'"
129 The court noted:

In this case, the Contract only describes the property to be sold in terms

of acreage, without providing boundaries, making it impossible from the

initial description given to determine exactly where in Schuler' s 149 acre

property the approximate [eleven] acres to be sold are located. The
Contract therefore does not appear to satisfy the Statute where, without

more, it only describes the parcels in terms of acreage.
130

Because the survey referred to in the contract was not completed at the time the

contract was signed, the court reasoned that it could not furnish the means of
identification necessary to identify the parcel.

131 The court concluded, however,
that the contract furnished the means of identification—the agreement of the
parties.

132
Accordingly, the court held that the contract did satisfy the statute of

frauds.
133

Since the contract was complete, parol evidence was properly admitted
to "complete the legal description" of the parcel.

134 The court noted that Schuler
and Graf both testified that they "essentially agreed" on the boundaries of the

parcel.
135

In the alternative, Schuler argued that even if the contract did not violate the

statute of frauds, there was no meeting of the minds sufficient to order specific
performance.

136
Specifically, Schuler argued that there was no meeting of the

125. Id. at 711-12.

126. Id. at 712.

127. Id.

128. Id. at 713 (quoting Coca-Cola Co. v. Babyback's Int'l, Inc., 841 N.E.2d 557, 565 (Ind.

2006) (emphasis added)).

129. Id. (quoting Cripe v. Coates, 116 N.E.2d 642, 644-45 (Ind. App. 1954)).

130. Id. at 714.

131. Id.

132. Id.

133. Id.

134. Id.

135. Id.

136. Mat 715.



1248 INDIANA LAW REVIEW [Vol. 41 : 1237

minds regarding the location of the eastern boundary.
137 The first survey

prepared by Grafwas later revised by Graf to "correct" the location ofthe eastern

boundary.
138 The court held that the fact "[t]hat the first survey did not

accurately reflect the parties' agreement does not constitute a failure to come to
a meeting of the minds at the time the parties entered into the Contract."

139

V. Tax Sales

The Indiana appellate courts issued several opinions regarding tax sales
during the survey period, including one opinion by the Indiana Supreme Court.

A. Partial Refund Under Indiana Code Section 6-1. 1-25-4. 6(d)

In In re Parcels Soldfor Delinquent Taxes,
140

the Indiana Supreme Court
held that "a purchaser at a tax sale who does not seek an order to issue a deed is
not entitled to the partial refund of the purchase price provided in Indiana Code
section 6-1. l-25-4.6(d)."

141
Michiana Campgrounds, LLC ("Michiana") bought

several properties at a tax sale in 2004.
142

Before the redemption period had

expired, Michiana filed motions for refunds of the purchase price, minus a

twenty-five percent penalty.
143

Indiana Code section 6-1.1 -25-4.6 provided at the
relevant time that a petitioner could obtain such a refund "if the court refuses to

enter an order directing the county auditor to execute and deliver the tax deed

because of the failure of the petitioner under subsection (a) to fulfill the

requirements of this section."
144

In response to Michiana' s motion, the trial court

ordered the Vanderburgh County Auditor ("Auditor") to refund the purchase

price minus the penalty.
145 The appellate court affirmed, and the Indiana

Supreme Court accepted the petition to transfer.
146

The Auditor argued that a petitioner is only entitled to a refund under section
4.6 if it attempts to obtain a deed but the trial court refuses.

147
The Indiana

Supreme Court agreed: "We think that the statutory reference to 'refusal'
purposefully limits refunds to purchasers who go to the time and expense of
seeking a deed. Buyer's remorse is not a basis for a refund."

148 The court

unanimously reversed the decision of the trial court.
149

137. Id.

138. fd.

139. Id.

140. 873 N.E.2d 1051 (Ind. 2007).

141. Id. at 1051.

142. Id. at 1052.

143. Id.

144. Id. at 1051-52 (citing Ind. Code § 6-l.l-25-4.6(d) (2000)).
145. Id. at 1052.

146. Id.

147. Id.

148. Id. at 1054.

149. Id. at 1055.



2008] PROPERTY LAW 1249

In Whalen v. M. Doed, LLC,
150

the Indiana Court of Appeals addressed

whether a tax deed should have been set aside following confusion regarding

whether the delinquent property taxes at issue were listed as proceeds in a

bankruptcy action.
151 Whalen owned property in Muncie upon which he failed

to pay property taxes.
152 The property was sold at a tax sale in October 2002 to

Doed.
153 The following year, Whalen informed the county treasurer and auditor

that he had filed for bankruptcy.
154 The County invalidated the tax sale and

returned the proceeds to Doed.
155

Later, the County learned that Whalen never
properly listed the delinquent property taxes in the bankruptcy action, and it

reinstated the tax sale.
156 Doed repaid the proceeds to the County. 157 Whalen

filed an action to re-invalidate the tax sale.
158

Following judgment in favor of

Doed at the trial court level, Whalen appealed.
159 The court of appeals found that

the tax deed did not suffer from any of the fatal defects set forth in Indiana Code
section 6-1.1-25-16

160
and that Whalen was not entitled to have the tax deed set

aside.
161 With respect to Whalen' s claim of equitable estoppel, the court of

appeals agreed with the trial court that although there was confusion in the
auditor and treasurer's offices regarding Whalen' s claims that the property was
included in the bankruptcy action, none of the county officials misled Whalen
into believing that he would not have to redeem his property.

162 The decision of
the trial court was upheld. 163

B. Priority of Tax Deeds

In MJ Acquisitions, Inc. v. Tec Investments, LLC, 164 the Indiana Court of
Appeals addressed a situation in which a county placed the same property on the
tax sale list in two consecutive years, even though the entity that purchased the
property at the first tax sale overbid in an amount sufficient to pay the later tax
debt.

165 Husk owned property that was included in the 2003 tax sale based on

150. 859 N.E.2d 368 (Ind. Ct. App. 2006), trans, denied, 869 N.E.2d 454 (Ind. 2007).

151. Id.

152. Id. at 369.

153. Id.

154. Id.

155. Id.

156. Id. at 370.

157. Id.

158. Id.

159. Id. at 369.

160. Ind. Code § 6-1.1-25-16 (2000).
161. Whalen, 859 N.E.2d at 374.

162. Id. at 375.

163. Id.

164. 863 N.E.2d 379 (Ind. Ct. App. 2007)

165. Id.



1250 INDIANA LAW REVIEW [Vol. 41 : 1237

delinquent 2000 and 2001 taxes.
166

At the start of the sale, the auditor announced

that additional taxes would be due and owing shortly after the sale due to the

2002 reassessment.
167 MJ Acquisitions, Inc. ("MJ") was the highest bidder with

an overbid amount of over $43,000.
168

In 2004, the property was again placed on

the delinquent tax list as a result of unpaid taxes accrued in 2002 payable in

2003, as well as those accrued in 2003 and payable in 2004.
169 The property was

again sold at a 2004 tax sale.
170

Notice of the 2004 sale was sent to Husk as the
record owner.

171
Tec Investments, LLC ("Tec") was the highest bidder at the

sale, purchasing the property for the minimumbid of $5,292.82. 172 Following the
sale, MJ filed a petition for a tax deed. 173 Later, Tec sent notices to Husk and MJ
informing them of the 2004 tax sale and the expiration date for the redemption

period.
174

Following the expiration ofthe redemption period, MJ filed its verified
objection to Tec's petition.

175 A few days later, the auditor issued a tax deed to
MJ based on the 2003 sale. 176 A few months later, the trial court held a hearing
and entered a order directing the auditor to issue a tax deed to Tec for the 2004

tax sale.
177

On appeal, MJ argued that the property should not have been included in the
2004 tax sale.

178 The court noted that the treasurer was required to have applied
a portion of MJ's surplus from the overbid to the 2002 taxes payable in 2003.

179

In addition, the court noted that the taxes due and owing in 2004 were not

grounds for including the property on the delinquency list for the 2004 tax sale. 180

Finally, Tec argued that its 2004 tax deed should have priority over the 2003 tax

deed pursuant to Indiana Code section 6-1.1-24-12. 181 However, the court
reasoned that, had the treasurer properly applied the surplus to the taxes due in

2003, there would have been no "delinquency" from 2003 to place the property

in the 2004 tax sale.
182

Accordingly, the property was not properly placed in the
tax sale and the priority set forth with in the Indiana Code does not apply. 183 The

166. Id. at 380.

167. Id.

168. Id.

169. Id.

170. Id. at 380-81.

171. Mat 381.
172. Id.

173. Id.

174. Id.

175. Id.

176. Id.

177. Id.

178. Id. at 384.

179. Id.

180. Id.

181. Id.

182. Id. at 385.

183. Id.



2008] PROPERTY LAW 125

1

court reversed and remanded with instructions to set aside Tec's petition for the

issuance of a tax deed.
184

VI. Liens and Mortgages

A. Per Diem Late Fees as Unenforceable Penalties

Harbours Condominium Ass'n v. Hudson 1 *5 raises several interesting
questions, chiefly whether a set per diem late fee is always an unenforceable

penalty.
186 The Declaration of the Harbours Horizontal Property Regime and the

Third Amendment to the Declaration provided that if assessments were not paid
when due, the delinquent owner would be charged a late fee of at least $25 plus
an additional $5 per day until paid in full.

187
Additionally, the owner would be

required to pay the Harbours Condominium Association's ("Association")
attorneys fees if incurred as a result of a delinquency.

188
Furthermore, all late

assessments were subject to interest at a rate equal to the lesser of (i) the

maximum amount allowed by law or (ii) 18%. 189 All assessments, interest, costs,
and expenses constituted a lien on the owner's unit and could be foreclosed

190
upon.

In 2002, the assessment and dues for Hudson's unit were $323.40 per

month.
191 "On October 10, 2002, Hudson paid to the Association $646.80," a

payment that she believed made her current with the Association. 192 However,
the Association claimed that this payment only made her current through July
2002.

193 Hudson had a $10,000 escrow held by the Harbours 's attorney from an
earlier dispute between the parties.

194 Hudson made no further payments of
assessments or dues, believing that the amounts would be deducted from the
escrow.

195
In October 2003, the Association's attorney informed Hudson's

counsel that the escrow would be disbursed to the Association and deducted from
Hudson's accumulated delinquent assessments, which, according to the attached

schedule, then totaled over $16,750.
1%

In December 2003, the Association filed
a notice of condominium lien and, in January 2004, "filed suit against Hudson,
seeking a money judgment in the amount of $7325.86 plus continuing monthly

184. Id. at 386.

185. 852 N.E.2d 985 (Ind. Ct. App. 2006)

186. Id.

187. Id. at 987.

188. Id.

189. Id.

190. Id. at 987-88.

191. Id. at988n.l.

192. Id. at 988.

193. Id.

194. Id.

195. Id.

196. Id.



1252 INDIANA LAW REVIEW [Vol. 41:1237

fees, costs and attorney's fees and also seeking foreclosure of its lien."
197

At

trial, the Association claimed that Hudson owed $26,000 in October 2003 and
"that, at the time of the trial, Hudson owed $74,154.24 in monthly assessments
and late fees from December 2003 through February 15, 2005.

"

198 The trial court
denied the Association's attempted foreclosure of the condominium lien, but
found that the Association had sustained actual damages in the amount of
$71 17.29 and that Hudson owed the Association only $799.12. 199

On appeal, the Association claimed inter alia that the trial court erred when
it denied the Association's request to foreclose on the condominium lien.200

Hudson argued that the statute does not mandate foreclosure.201 The court of
appeals agreed with the Association that the trial court should have decreed

foreclosure of the Association' s lien pursuant to the Indiana Horizontal Property

Law.
202 The court, however, found that the error was harmless because Hudson

immediately paid the amounts awarded to the Association by the trial court.203

The Association was in the same position as it would have been if the trial court
had foreclosed the lien.

204

The Association also argued that the trial court erred when it found that the
late fees charged by the Association constitute an unenforceable penalty.205

Instead, the Association claimed that the late fees were appropriate liquidated

damages.
206 Under the formula contained in the Association's declaration,

interest and late fees on the condominium lien amount of $7,235.80 totaled
$66,828.44.

207 The court of appeals found that these late fees constituted an
unenforceable penalty "because they are grossly disproportionate to the actual

damages suffered by the Association as a result of Hudson's delinquencies."
208

The trial court found that the Association's actual damages were $7117.29,
which consisted of $3616.50 in attorney's fees and $3500.79 in administrative

costs of collection.
209 The court of appeals noted that there is some contradiction

in the rules that distinguish liquidated damages from an unenforceable penalty.
210

A party seeking to enforce liquidated damages need not prove actual damages,
but may be required to show a correlation between the liquidated damages and

197. Id.

198. Id.

199. Id.

200. Id. at 990-91

201. Id. at 991.

202. Id. at 990.

203. Id. at 990-91

204. Id. at 991.

205. Id.

206. Id.

207. Id. at 992.

208. Id.

209. Id.

210. Id. at 993.



2008] PROPERTY LAW 1253

actual damages.
211

Given the disconnect between the Association's actual

damages and the late fees, the court of appeals agreed with the trial court that

they were much more akin to a penalty.
212

B. Judge May Use Personal Experiences

Clark v. Hunter
213

is interesting for two reasons. First, the court of appeals

ruled that a judge can use his own personal experience to assess the evidence.214

Second, the case illustrated a typographical error made during the recodification
of Title 32, which has since been fixed by the Indiana General Assembly.

215

Clark was engaged by Hunter to perform as the electrical subcontractor in the

construction of Hunter's home.
216

Payment was to be made in two
installments.

217
Hunter made the first payment, but a subsequent dispute arose

between Hunter and Clark about the timing and quality of Clark's remaining

work.
218

Clark filed a notice of its intent to hold a mechanic's lien and then filed

suit to foreclose on its lien.
219

Clark sought to recover the remaining value of the

contract, plus attorneys fees and prejudgment interest.
220

At trial, Hunter' s expert

testified that Clark's work was "inadequate" in several material respects.
221 The

trial court issued the following finding: "8. That the Court would note that the

Judge of this matter was previously involved in the building business and that as
presented, it appears that 80% of the work was completed by and for
defendant."

222 The trial court did not foreclose on the mechanic's lien, but
awarded Clark 80% ofthe total value of the contract, minus amounts already paid
by Hunter, plus court costs.

223
Clark was not awarded prejudgment interest or

attorneys fees.
224

Clark contended on appeal that the trial court judge committed reversible

error by considering his personal experiences in finding that Clark had completed

only 80% of the work.225 The court of appeals disagreed, reasoning that the trial
judge is "permitted to utilize his own life experiences" in weighing the evidence

211. Id.

212. Id at 992.

213. 861 N.E.2d 1202 (Ind. Ct. App. 2007).

214. Id at 1206-07.

215. Mat 1210-11.
216. Id. at 1205.

217. Id.

218. Id.

219. Id.

220. Id at 1205-06.

221. Mat 1205.
222. Id. at 1206.

223. Id.

224. Id.

225. Id.



1254 INDIANA LAW REVIEW [Vol. 41 : 1237

and that there was sufficient evidence to support the judgement.
226

With respect to Clark's claim for prejudgment interest, the court of appeals

noted that prejudgment interest is '"proper where the trier of fact need not

exercise its judgment to assess the amount of damages.'"
227 On the other hand,

'" [d]amages that are the subject of a good faith dispute cannot allow for an award

of predjugment interest.'"
228

On Clark's third claim, that the trial court erred when it did not order
foreclosure of the mechanic's lien, the court of appeals sided with Clark, holding

that the trial court was required to foreclose the lien to comply with the statute.229

Accordingly, the court of appeals reversed and remanded with instructions that
the trial court order the sale of the property subject to the lien.

230

Finally, Clark argued that the mechanic's lien statute mandates the award of

attorney ' s fees upon foreclosure of a lien.
231

Hunter argued that prior to the 2002

recodification of title 32, former Indiana Code section 32-8-3-14 provided that
'"[i]n all suits brought for the enforcement of any lien under the provisions of

this chapter, if the plaintiff or lienholder shall recover judgment in any sum, he

shall also be entitled to recover reasonable attorney's fees.'"
232 The recodified

section, now found at Indiana Code section 32-28-3- 14(a), reads: '"in an action
to enforce a lien under this chapter, the plaintiff or lienholder may recover
reasonable attorney' s fees as a part of the judgement. '

"233
Hunter argued that the

switch from "shall" to "may" made the award of attorney's fees discretionary
rather than mandatory.

234 The court of appeals disagreed, citing Indiana Code
section 32-16-1-1, which provides that the intent of the recodification of title 32

was not intended to result in a substantive change in prior property law and that
if the literal meaning of a section changed, it should be regarded as a

typographical or other clerical error.
235

In other words, the court of appeals

reasoned, the discretionary "may" must be read as the mandatory "shall."
236

The court of appeals remanded to the trial court with instructions that the
lien's priority be determined, that a judgment for attorney's fees be entered for

Clark in the amount of $3109.20, and that a decree of foreclosure be entered to

226. Id. at 1206-07.

227. Id. at 1208 (quoting J.S. Sweet Co. v. White County Bridge Comm'n, 714 N.E.2d 219,

225 (Ind. Ct. App. 1999)).

228. Id. (quoting Bopp v. Brames, 713 N.E.2d 866, 872 (Ind. Ct. App. 1999) (citations

omitted)).

229. Id. at 1208-09.

230. Id. at 1209.

231. Id.

232. Id. (quoting Ind. Code § 32-8-3-14 (2002) (emphasis added)).

233. Id. (quoting Ind. Code § 32-8-3-14(a) (2004) (emphasis added)).

234. Id. at 1210.

235. Id. (citing Ind. Code § 32-16-1-1 (2004)).
236. Id. In the 2007 Technical Corrections bill, the Indiana General Assembly amended

Indiana Code section 32-28-3- 14(a) to change the "may" back to "shall." See IND. CODE § 32-28-3-

14(a) (Supp. 2007); 2007 Ind. Legis. Serv. 1 (West).



2008] PROPERTY LAW 1255

satisfy both the $2952 determined by the trial court and the attorney's fees.
237

C. Failure to Process Mortgage Payoff

In Dreibelbiss Title Co. v. MorEquity, Inc.™ the court of appeals once again
addressed a case in which the title company did not properly process the payoff
of a loan before issuing a lender's title policy which purported to assure that a

subsequent mortgage had first priority.
239

The Youngs owned a home subject to two mortgages in favor of KeyBank,
securing a fixed sum note and a home equity line of credit.240 The Youngs sought
to refinance with MorEquity, which engaged Dreibelbiss Title Company
("Dreibelbiss") to provide a lender's policy of title insurance.

241
Dreibelbiss

obtained a payoff letter from KeyBank for the two mortgages, plus instructions
that KeyBank would require written instructions from the Youngs to close the
line ofcredit and release the mortgage securing it.

242
Dreibelbiss arranged for the

payoff but did not provide KeyBank with any written instructions from the
Youngs.

243
Accordingly, KeyBank released the first mortgage, but not the

second.
244

The Youngs drew money on the KeyBank line of credit and
defaulted.

245 KeyBank foreclosed on the property, taking the position that it held
the first lien.

246
MorEquity did not dispute that it was the junior lienholder.

247

Foreclosure of the Youngs' property did not realize sufficient proceeds to make
any payment to MorEquity.

248
Subsequently, MorEquity filed a complaint

against Dreibelbiss under the title policy, asking for damages in the amount of
MorEquity' s lien.

249 The trial court found in favor of MorEquity.
250

On appeal, the appellate court upheld the trial court decision, including its
calculation of damages in the amount of the MorEquity lien.

251
Dreibelbiss

argued that the damages should be the amount of the KeyBank lien, but did not
specify the value of that lien.

252
Dreibelbiss cited policy language that its liability

"shall not exceed the least of . . . the difference between the value of the insured

237. Clark, 861 N.E.2d at 1211.

238. 861 N.E.2d 1218 (Ind. Ct. App.), trans, denied, 869 N.E.2d 461 (Ind. 2007).

239. Id. at 1219-20.

240. Id. at 1219.

241. Id.

242. Id.

243. Id.

244. Mat 1220.
245. Id.

246. Id.

247. Id.

248. Id.

249. Id.

250. Id. at 1219.

251. Id. at 1222.

252. Id.



1256 INDIANA LAW REVIEW [Vol. 41:1237

estate or interest as insured and the value of the insured estate or interest subject

to the defect, lien or encumbrance insured against by this policy."
253

In other

words, the damages that a title policyholder was entitled to obtain represent the
difference in the value of the property with and without the lien or encumbrance

that the title company failed to disclose. For example, if the KeyBank lien was
$100,000 and the net proceeds from foreclosure were $232,000, a strict

application of that language would seem to state that MorEquity would have had
no damages, because its $132,000 lien could have been fully satisfied. However,

if the KeyBank lien was $100,000 and the net proceeds from foreclosure were
only $100,000, MorEquity would have damages equal to $100,000—the value
of the undisclosed lien that took priority over its lien. It is unclear how the court
could reason that MorEquity could be entitled to damages of $132,000 if the

property sold for less than that amount, since it could not have been made whole
even if it had held the first lien. Nonetheless, the court did not mention the value

of the KeyBank lien nor the net proceeds from the sale, except to state that
MorEquity received no proceeds.

254 The court's reasoning here seems
disconsonant with the popular understanding of the recovery provisions in title

insurance policies.

D. Alternation ofa Promissory Note

In Keesling v. T.E.K. Partners, LLC,
255

the court of appeals analyzed whether

the capitalization of interest was a material alteration of a promissory note that

required the consent of the guarantors in order to bind them to a revised note.
256

Heritage/M.G. executed a promissory note to Henke to partially finance the
development of a residential subdivision.

257 The note was signed by four
individuals (Green, McMullen, Larry Keesling, and Vivian Keesling), both in

their individual capacities and on behalf of Heritage/M.G. and its partners.
258

The note was secured by a mortgage on property in Delaware County.
259

Heritage/M.G. did not fulfill its payment obligations in a timely manner.
260

"Without the Keeslings' knowledge or consent, R.M.G. Investment Group,

L.L.C. ("R.M.G.") whose principals include Green and McMullen, purchased the

note" from Henke, and Henke assigned the note and mortgage to R.M.G.
261

R.M.G. subsequently assigned the note and mortgage back to Henke.
262

In

253. Id.

254. Id.

255. 861 N.E.2d 1246 (Ind. Ct. App. 2007), appeal after remand, 881 N.E.2d 1025 (Ind. Ct.

App. 2008).

256. Id. at 1249.

257. Id.

258. Id.

259. Id.

260. Id.

261. Id.

262. Id.



2008] PROPERTY LAW 1257

addition, without the knowledge or consent of the Keeslings or Heritage Land,

Heritage/M.G. executed a second note to Henke.
263 The second note provided

that it was secured by the original mortgage.
264

"Green and McMullen personally
guaranteed the second note. No payments were ever made on the second
note."

265 Henke filed to foreclose the mortgages and for judgment against the
Keeslings, Heritage/M.G., Green, and McMullen.

266
Later, Henke assigned the

note and mortgage to T.E.K. Partners and released Green and McMullen from
any liability.

267
Following a bench trial, the trial court entered judgment for

T.E.K. against each of the defendants.
268 The Keeslings and Heritage Land then

appealed.
269

The Keeslings and Heritage Land argued that because they were
accommodation parties on the original note and the second note constituted a

material alteration of the original note, they were discharged from further

personal liability under the original note and had no liability under the second

note.
270 The court of appeals explained the black letter law regarding guaranty

contracts at length and noted that " '[a] guarantor is afavorite in the law and is
not bound beyond the strict terms of the engagement. Moreover, a guaranty of
a particular debt does not extend to other indebtedness not within the manifest

intention of the parties.'"
211

Since the Heritage/M.G. was the principal obligor
and the Keeslings were guarantors on the original note, they and Heritage Land
were accommodation parties.

272 The trial court found that the mortgage provided
that Henke could advance additional funds.273 The court of appeals, however,
pointed out that the mortgage was not a negotiable instrument and merely secured
the debt under the original debt.

274
It did not constitute a promise to pay and did

not serve to authorize Henke to obligate the Keeslings further without their
knowledge or consent.

275
Therefore, the court concluded, "the mortgage itself

provides no grounds for holding either the Keeslings or Heritage Land liable for
funds advanced under the second note."

276

T.E.K. argued that the second note was not a material alteration of the
original note because it merely restated the original borrowers' then-current

263. Id.

264. Id.

265. Id. at 1249-50.

266. Id.

267. Id.

268. Id.

269. Id.

270. Id.

271. Id. at 1251 (quoting S-Mart, Inc. v. Sweetwater Coffee Co., 744 N.E.2d 580, 586 (Ind.

Ct. App. 2001) (emphasis added)).

272. Id.

273. Id. at 1252.

274. Id.

275. Id.

276. Id.



1258 INDIANA LAW REVIEW [Vol. 41 : 1237

obligation.
277

However, the court noted the second note included additional

money to "pay the bills" as well as capitalized interest.
278

This capitalization of

interest, the court concluded, was a material alteration of the first note that
required the consent of the guarantors in order to bind them.

279 The result was
that the court discharged the Keeslings and Heritage Land from their personal
liability on the first note and found that they had no liability for the additional

sums advanced under the second note.
280

E. Preparation ofLoan Documents

In Charter One Mortgage Corp. v. Condra,2*
1

the Indiana Supreme Court
ruled that a bank may charge a fee related to the preparation of legal documents
related to a loan and that charging for such a service does not constitute the

unauthorized practice of law.
282

Condra borrowed money from Charter One Mortgage Corporation ("Charter
One"), secured by a mortgage on real property.

283
At the closing, "Charter One

charged Condra a $175 fee for the completion of a deed and mortgage. These
documents were prepared by Charter One's agents or employees who were not
licensed to practice law."

284 Condra filed a class action, arguing that Charter

One's document preparation fee was not permitted under Indiana law "because
charging a fee for documents prepared by non-lawyers constituted the

unauthorized practice of law."
285

Charter One asked the trial court to dismiss the
action under Indiana Trial Rule 12(B)(6).

286
Charter One argued that it was a

subsidiary of a national bank and was therefore governed by federal regulations
with respect to banking.

287
These regulations include "a provision that allows

national banks and their operating subsidiaries to charge incidental fees for legal

services provided by non-lawyers in the preparation of real estate loan

documents."
288

Charter One contended that these federal regulations preempted
any conflicting state law.

289
"The trial court denied the motion but certified its

order for an interlocutory appeal."
290 The court of appeals affirmed, holding that

the Indiana Supreme Court's "jurisdiction over the unauthorized practice of law

277. Id. at 1253.

278. Id.

279. Id.

280. Id. at 1254.

281. 865 N.E.2d 602 (Ind. 2007).

282. /d. at 607.

283. Id. Sit 604.

284. Id.

285. Id.

286. Id.

287. Id.

288. Id.

289. Id.

290. Id.



2008] PROPERTY LAW 1259

is not preempted by the federal regulations."
291 The Indiana Supreme Court

granted transfer.
292

The court noted that it "has original jurisdiction over 'the unauthorized

practice of law'"
293

and that it is the responsibility of the court to "determine

what acts constitute the practice of law."
294

After discussing the public policy

reasons behind confining the practice of law to licensed attorneys, the court

concluded that "if the completion of legal documents is ordinarily incident to a

lender's financing activities, it is generally not the practice of law, whether or not

a fee is charged."
295

Further, the court "disapproved" of the case relied upon by

Condra.
296

F. Equitable Subrogation

In Gibson v. Neu 291 the court of appeals analyzed the doctrine of equitable
subrogation in Indiana following the Indiana Supreme Court's 2005 decision in

Bank ofNew York v. Nally.
29*

Nowak executed a promissory note to Gibson, secured by mortgages on
Nowak' s two residences.299 The note required Nowak to make monthly payments
for several years with a final balloon payment.

300 The mortgage on Nowak'

s

Indiana property provided that if Nowak sold the property before the note was
fully paid, Gibson would release the mortgage if Nowak had not defaulted on his
obligations to Gibson and was current in his payments.

301
At the time that

Gibson recorded his mortgage on Nowak' s Indiana property, Irwin Mortgage
Corporation ("Irwin Mortgage") held a first mortgage on the property.

302 Nowak
made five payments to Gibson, then, without informing Gibson, sold his Indiana
property to the Neus.

303 The title company found the Irwin mortgage, but not the
Gibson mortgage.

304
The Neus borrowed money to finance the acquisition, and

their lender, Washington Mutual Bank ("Washington Mutual"), placed a
mortgage on the property at closing.

305
Following the sale, Nowak made four

291. Id.

292. Id.

293. Id. (quoting Ind. CONST, art. 7, § 4).

294. Id. at 605 (citing IND. CONST, art. 7, § 4; Alvarado v. Nagy, 819 N.E.2d 520, 523 (Ind.

Ct. App. 2004)).

295. Id. at 607.

296. Id. (citing Miller v. Vance, 463 N.E.2d 250 (Ind. 1984)).

297. 867 N.E.2d 188 (Ind. Ct. App. 2007).

298. 820 N.E.2d 644 (Ind. 2005).

299. Gibson, 867 N.E.2d at 190.

300. Id.

301. Id.

302. Id.

303. Id. at 191.

304. Id.

305. Id.



1260 INDIANA LAW REVIEW [Vol. 41 : 1237

more payments to Gibson.
306

Gibson filed a complaint for judgment on the note

and for foreclosure of his mortgage against Nowak, the Neus, and Washington
Mutual.

307 Nowak subsequently filed for bankruptcy.308 The Neus filed their
own motion for summary judgment, arguing "that Nowak was not in default on
the note at the time he sold the property to the Neus or, alternatively, that Nowak
was in substantial compliance, and that Gibson would have been required to
release his mortgage."

309
In addition, the Neus "argued that they had priority

over Gibson' s mortgage under the doctrine ofequitable subrogation."
310 The trial

court denied Gibson's motion for summary judgment and granted summary
judgment to the Neus.

311

On the Neus' first argument, the trial court found that Nowak had
substantially complied with the payment terms of the mortgage and that Gibson

would have been required to release the mortgage if he had been asked to do

so.
312 On appeal, Gibson argued that "Nowak was in default under the note and

mortgage by his failure to make full and timely payments, that Nowak was not
entitled to notice [of his default] under the note and mortgage, and that the

doctrine of substantial performance does not apply to a note and mortgage."
313

The court of appeals noted that the evidence presented to the trial court was that
Nowak was in default at the time of the sale to the Neus and that his subsequent
payment did not cure that default.

314
In its application of the doctrine of

substantial performance, the court reiterated that timely payment of the debt was

an "essential condition" of the note and mortgage.
315

Since Nowak was not
current in his payments at the time of the sale to the Neus, he was not entitled to
a release by Gibson, and the doctrine of substantial performance was

inapplicable.
316

On the issue of equitable subrogation, the trial court found that the Neus
would have been entitled to assume the first lien position of Irwin Mortgage
because "[t]he Gibson mortgage was always junior to the Irwin Mortgage and
"no harm would come to Gibson's lien position by the Neus (and their lender,
Washington Mutual) attaining first lien status."

317 The court ofappeals examined
the Indiana Supreme Court's recent decision in Bank ofNew York v. Nally and

306. Id.

307. Id.

308. Id.

309. Id.

310. Id.

311. Id. at 191-92.

312. Id. at 192.

313. Id. at 193 (quoting Appellant's Brief at 18-19, Gibson, 867 N.E.2d 188 (No. 49A02-

0608-CV-680)).

314. Id. at 194.

315. Id. at 195.

316. Id.

317. Id. at 193.



2008] PROPERTY LAW 1261

its application of the doctrine of equitable subrogation.
318

Following this

comprehensive discussion ofBank ofNew York, the court concluded that the trial
court did not err by granting the Neus and Washington Mutual equitable

subrogation to the extent of the Irwin mortgage.
319

G. Accord and Satisfaction

In Wolfe v. Eagle Ridge Holding Co.,
320

the court of appeals discussed the

rule of accord and satisfaction in connection with a construction contract.
321

Eagle Ridge Holding Company ("Eagle Ridge") contracted with Wolfe
Construction in June 2004 to construct a building.

322
In October, "after

completion of the work, Wolfe sent Eagle Ridge a final invoice for

$27,03 1 .75."
323

Shortly thereafter, "Eagle Ridge sent Wolfe a check for $ 1 2,000
as partial payment," leaving a balance of $15,031.75.

324 A month later, Eagle
Ridge sent a check, numbered 1031, to Wolfe in the amount of $10,461.94.

325

"Written on both the front and back of the check were the words, 'Full & Final
Payment.'"

326 The check was accompanied by a document that listed portions of
the invoice that Eagle Ridge believed to be inaccurate and purported to reduce

the total invoice by $4569.8 1

.

327

Instead of cashing check 1031, Wolfe filed a notice of intention to hold a
mechanic's lien.

328
Six months later, in June 2005, Wolfe attempted to cash the

check after endorsing it, "Deposited without prejudice & with full reservation of
all rights to balance per [Indiana Code section] 26-1-1-207. It is not an accord
or [sic] satisfaction . . . ,"

329
Eagle Ridge's bank refused to cash check 1031

"because it was more than six months old."330 A week later, Eagle Ridge sent
Wolfe check number 1071, also in the amount of $10,461.94, with a note that it
was intended to replace check 1031.

331 Check 1071 was also marked "Full &
Final Payment."

332
Wolfe cashed check 1071 without the language that it had

written on check 1031 regarding a reservation of rights.
333

318. Id. at 197-99 (citing Bank of N.Y. v. Nally, 820 N.E.2d 644 (Ind. 2005)).

319. Id. at 202.

320. 869 N.E.2d 521 (Ind. Ct. App. 2007).

321. Id. at 523.

322. Id.

323. Id.

324. Id.

325. Id.

326. Id.

327. Id.

328. Id.

329. Id.

330. Id.

331. Id.

332. Id.

333. Id.



1262 INDIANA LAW REVIEW [Vol. 41 : 1237

In September 2005, Eagle Ridge attempted to secure financing on its property

and demanded that Wolfe release the mechanic's lien.
334

Wolfe entered into
agreement with the title company whereby an escrow was established so that
Eagle Ridge could close on the loan without a release of the lien.

335
Wolfe then

filed a complaint to foreclose the lien.
336

Eagle Ridge "filed a counterclaim,

alleging that it suffered damages because of Wolfe's refusal to release the lien

and because ofWolfe' s poor workmanship."
337

"The trial court enteredjudgment

of $13,917.14 in favor of Eagle Ridge, and against Wolfe on his foreclosure

complaint."
338

This damages award "included $1,415.00 on Eagle Ridge's poor
workmanship claim and $ 1 2,502. 14 for Wolfe' s refusal to release the mechanic'

s

lien."
339 The trial court refused to award Eagle Ridge attorney's fees based on

a frivolous lawsuit. Wolfe appealed, and Eagle Ridge cross-appealed.
340

On the issue of accord and satisfaction, the court held that Wolfe's act in
cashing check 107 1 operated as an accord and satisfaction because: (1) the check

"was conspicuously marked on the front and back as being for full and final
payment"; (2) the check "was accompanied by other correspondence indicating

that the check was intended as full and final payment"; (3) the check was
"tendered in good faith"; and (4) "[t]here was a bona fide dispute over the
amount that Eagle Ridge owed."

341

With respect to the calculation of damages, the court held that the language

of Indiana Code section 32-28-6-1 is clear and that it "requires that a demand for
release of a mechanic's lien must be made before damages . . . may begin to
accrue to the lienholder for refusal to release the lien.

342

vn. Takings

A. Biddle v. BAA Indianapolis, LLC343

Homeowners who live in Hawthorne Ridge subdivision, located within three
miles of Indianapolis International Airport ("Airport"), claimed that noise from

airplanes amounted to a taking under the Fifth Amendment.344 The homeowners
also argued that the Airport should have been compelled to offer them financial
settlements similar to those offered to their neighbors who had earlier sued the

334. Id.

335. Id. at 524.

336. Id.

337. Id.

338. Id.

339. Id. (footnote omitted).

340. Id.

341. Id. at 527-28.

342. Id. at 528.

343. 860 N.E.2d 570 (Ind. 2007).

344. Id. at 572-73.



2008] PROPERTY LAW 1263

Airport.
345

In 1999, some residents of Hawthorne Ridge, not including the present

plaintiffs, filed suit against the Airport.
346

At settlement, those plaintiffs received

a $16,000 payment each in exchange for an easement in favor of the Airport.
347

The settlement also included certain price guarantees at the time those

homeowners sold their homes.
348

In Biddle, the trial court granted summary

judgment to the Airport, finding that the plaintiffs "did not suffer a special injury

and that the flights were too high to constitute a taking" and "that the flights did

not cause practical destruction of the [plaintiffs'] properties."
349

Regarding the

earlier settlement, the trial court found that the plaintiffs could not rely upon a

theory of promissory estoppel that the Airport had agreed to "treat all neighbors

alike" because they had not attended the meeting in which the promise had

allegedly been made.
350 The court of appeals reversed and remanded for trial.

351

The Indiana Supreme Court granted transfer.
352

Chief Justice Shepard, writing for the court, spent several pages describing

the origins of the Fifth Amendment and the rationale behind the line of cases
interpreting it.

353 With respect to claims of takings due to airport noise, he noted

that while at least one state decision held that airport noise can constitute a

taking, the "'great weight of Federal authority' is that a taking occurs only when
aircraft are present in the 'superadjacent airspace' (meaning the air the owner

reasonably occupies for his own use)."354 The court cited the 1963 Court of
Federal Claims case ofAaron v. United States

355
for the proposition that when an

aircraft flies within the navigable airspace above private property, "the court

presumes there is no taking unless the effect on private property is 'so severe as

to amount to a practical destruction or a substantial impairment of it.'"
356

In this

case, the court concluded that the trial court was "warranted" that the noise from

the aircraft over the plaintiffs' homes was "no doubt considerable," but did not
defeat the Aaron presumption.

357

The plaintiffs also claimed that the Airport was estopped from declining to
offer the terms of the previous settlement to all of the homeowners in Hawthorne
Ridge, even those who were not litigants in that action.358 The plaintiffs relied

345. Id. at 573.

346. Id. at 574.

347. Id.

348. Id.

349. Id.

350. Id.

351. Id.

352. Id.

353. Mat 575-80.
354. Id. at 578 (quoting Branning v. United States, 654 F.2d 88, 99 (Ct. CI. 1981)).

355. 311 F.2d 798 (Ct. CI. 1963).

356. Biddle, 860 N.E.2d at 579 (quoting Aaron, 311 F.2d at 801).

357. Id. at 580.

358. Id.



1264 INDIANA LAW REVIEW [Vol. 41 : 1237

upon statements made by Airport representatives at a neighborhood meeting prior
to the commencement of the first lawsuit, in which the Airport promised to treat
all Hawthorne Ridge residents "uniformly and equally."

359 The plaintiffs alleged
that they did not join the previous lawsuit in reliance on that promise.

360
The

plaintiffs claimed to be third-party beneficiaries of the alleged promises, even

though they did not attend the meetings.
361 The Airport argued that the plaintiffs'

lack of attendance at the meetings prevented them from receiving the promise,
and therefore the promissory estoppel claim must fail.

362 The court agreed with
the Airport, finding that the plaintiffs failed to demonstrate any evidence that a

promise was made.363 "The public statements made by [the Airport] officials are
more akin to a statement of policy than a promise. Even assuming arguendo that
the statements were promises, it is clear they referred to the operation of [the

Airport's] land use programs, not to settlement of future litigation."
364

Finally,

the court agreed with the trial court that the plaintiffs failed to establish

detrimental reliance.
365

B. Jensen v. City of New Albany366

Fawcett executed a warranty deed to the City of New Albany in 1935,
conveying 5.82 acres to the City "'so long as said real estate shall be used as a

Municipal Park and Golf course and with the provision that no picnic parties are

to be allowed on said real estate.'"
367 The deed contained a reversionary clause

to Fawcett' s heirs.
368 The property was used for park purposes, except for a

small portion that was conveyed to the state in lieu of condemnation for the
expansion of 1-64, until 2004.

369 The City conveyed the land to the Community
Housing Development Organization, Inc. to serve as a place to relocate homes
to be moved due to the expansion ofFloyd Memorial Hospital.370 Fawcett' s heirs
filed for declaratory judgment and an injunction to enforce the reversionary

clause of the 1935 deed.
371

The court of appeals agreed with the trial court that the case of Dible v. City

359. Id. at 580 & n.20.
360. Id.

361. Id.

362. Id. at 580-81.

363. Id. at 581.

364. Id.

365. Id.

366. 868 N.E.2d 525 (Ind. Ct. App. 2007).

367. Id. at 526 (quoting Briefofthe Appellant at 3, Jensen, 868 N.E.2d 525 (No. 22A01-0605-

CV-187)).

368. Id.

369. Id. at 527.

370. Id.

371. Id. at 527-28.



2008] PROPERTY LAW 1265

ofLafayette
312

is applicable and dispositive.
373

In particular, both courts noted

that while Dible stands for the proposition that a restrictive covenant is not

enforceable against an entity with the power of eminent domain, the reasoning

of the case is consistent with extending that holding to apply to reversionary

clauses as well.
374

C. Utility Center, Inc. v. City of Fort Wayne375

The City of Fort Wayne ("City") owns a sewer and water utility. 376 Utility
Center, Inc. is a privately owned, for-profit corporation providing identical

services in an area around Fort Wayne.
377

Following Fort Wayne's annexation

of certain land served by Utility Center, the City initiated an action pursuant to

Indiana's general eminent domain statute to condemn that portion of Utility
Center's system which serves the annexed area.

378
"Utility Center filed a

complaint seeking declaratory and injunctive relief from the condemnation, on

the grounds that the City was not following the proper condemnation
procedure."

379 The City filed its own declaratory relief claim, arguing that Utility
Center was compelled by law to consent to the sale of its system.380 "The parties
filed cross-motions for summaryjudgment."381 The trial court granted the City ' s
motion and denied that of Utility Center.

382 The Indiana Court of Appeals
reversed and remanded.

383 The Indiana Supreme Court granted the City's
petition to transfer.

Justice Sullivan, writing for the majority, expressed the essence of the case:

"Stated simply, the question before the Court is whether this sixth section of

chapter 30 ([Indiana Code section] 8-1-30-6) abrogates or restricts the City's
authority to condemn Utility Center's property pursuant to sections 92 and 93 of
chapter 2 ([Indiana Code sections] 8-1-2-92 & 93)."384 The sixth section reads
as follows:

A municipality or other governmental unit may not require a utility
company that provides water or sewer service to sell property used in the
provision of such service to the municipality or governmental unit under

[Indiana Code section] 8-1-2-92, [Indiana Code section] 8-1-2-93, or

372. 713 N.E.2d 269 (Ind. 1999).

373. Jensen, 868 N.E.2d at 529.

374. Mat 529-30.
375. 868 N.E.2d 453 (Ind. 2007).

376. Id. at 454.

377. Id.

378. Id. at 455.

379. Id.

380. Id.

381. Id.

382. Id.

383. Id.

384. Mat 457.



1266 INDIANA LAW REVIEW [Vol. 41 : 1237

otherwise, unless the procedures and requirements of this chapter have

been complied with and satisfied.
385

The court of appeals, in its vacated opinion, held that "[t]he Legislature could
have limited the circumstances to which section 6 applies . . . , but did not.

386

The supreme court, however, held that "section 6 must be read in the context of
the rest of chapter 30" and therefore "applies only to a utility company that has
been the subject of the remedial measures identified in the preceding sections of

chapter 30."
387

The court wrote that Senator David Long, the author of chapter 30 when it
was enacted in 1999, filed an affidavit with the trial court explaining his "intent

as the author" of the statute.
388 The trial court and the court of appeals did not

consider the affidavit.
389 The supreme court, however, noted that Senator Long'

s

affidavit stated that "his intent, as the author, was to prevent 'a municipal utility

from using its powers of eminent domain to take over the ownership of a healthy

private utility."'
390

Justice Sullivan wrote that "[w]e respect Senator Long's

work in this field but, for the reasons set forth above, are unable to conclude that
his intent in this regard was enacted into law."

391

Justice Boehm filed a dissenting opinion in which Justice Dickson
concurred.

392
Justice Boehm parsed the language of section 6 in the context of

sections 1 through 5 of chapter 30 and suggested that

the majority reads that section in a manner that strips it of any meaning
whatever. Section 6 prohibits condemnation of a utility without going

through the 'procedures and requirements' of Section 5. The majority
concludes that Section 6 applies only to utilities that are the subject of

a Section 5 order. But those are the very utilities that have gone through

the only 'procedures and requirements' of Chapter 30. It therefore

seems to me that the majority's reading renders Section 6 wholly empty
of content.

393

vm. Miscellaneous: Russo v. Southern Developers, Inc. 394

Southern Developers, Inc. created a residential subdivision in Floyd County,

385. Ind. Code § 8-1-30-6 (2004).
386. Utility Ctr., Inc., 868 N.E.2d at 457.

387. Id.

388. Id. at 459.

389. Id.

390. Id. (quoting Brief of Indiana Ass'n of Sewer Cos., Indiana-American Water Co.,

American Subu at 13, Utility Ctr., Inc., 868 N.E.2d 453 (No. 02A04-0410-CV-576)).

391. Id.

392. Id. at 461 (Boehm, J., dissenting).

393. Id. at 463.

394. 868 N.E.2d 46 (Ind. Ct. App. 2007).



2008] PROPERTY LAW 1267

Indiana, and in 1995 built a single-family residence in the subdivision.
395

That

home was sold to the Conlees in 1996.
396 The following year the surface water

drainage system of the subdivision failed, and the Conlees' home suffered flood
damage.

397 The developer attempted to repair the system, but the following year

it failed again, and the Conlees notified the developer of the problem.
398

In 2001,

the Conlees sold the home to the Russos without informing them of the prior
flooding problems.

399 The Russos suffered flood damage in both 2003 and 2004

and notified the developers of the issue and demanded repairs in January 2005.
400

The system was not repaired.
401 The Russos then filed suit against the developers

and the Conlees, among others.
402 The developers defended on the grounds that

the statute of limitations on the Russos' breach of the implied warranty of

habitability claim had run.
403 The trial court agreed, and the Russos appealed.

The trial court was affirmed.
404

The court held that the knowledge of the prior owner of the home is imputed
to subsequent owners for purposes of determining when the statute of limitations
begins to run with respect to a claim for a breach of the implied warranty of

habitability.
405 As such, the six-year statute did not begin to run in 2003 when

the Russos first suffered flood damage, but in 1997 when the Conlees first
suffered the damage.

406 The holding in this case represents a matter of first
impression for the Indiana courts.

IX. New Statutes Effective July 1 , 2007

Indiana Code section 32-21-4-1 was amended to provide that if a mortgage
is recorded but fails to comply with the requirements of Indiana Code section 32-
21-2-3 or Indiana Code section 32-21-2-7 or the technical requirements of
Indiana Code section 36-2-11 -16(c), the mortgage will still be deemed to be
validly recorded and to provide constructive notice as of the date of filing.

407

Indiana Code section 32-3 1 -5-6 was amended by House Enrolled Act 121

4

408

to provide that a residential tenant "may not unreasonably withhold consent" for
a landlord to enter upon the tenant's dwelling to inspect; repair; improve;

395. Mat 47.
396. Id.

397. Id.

398. Id.

399. Id.

400. Id.

401. Id.

402. Id.

403. Id.

404. Id.

405. Id. at 49.

406. Id.

407. Ind. Code § 32-21-4-l(c) (Supp. 2007).
408. Rental Property—Storage, 2007 Ind. Legis. Serv. 115 (West).



1268 INDIANA LAW REVIEW [Vol. 41 : 1237

decorate; supply services; or exhibit to buyers, mortgagees, tenants, workers, or

contractors.
409

Indiana Code section 32-31-42 states that a landlord has no
liability for the loss or damage to a tenant's personal property if the property has
been abandoned.

410
Property is considered abandoned if a reasonable person

would conclude that the tenant had vacated the premises and surrendered

possession of the personal property.
411 An oral or written rental agreement may

not define abandonment differently.
412 The Act also provides that, under certain

circumstances, a landlord may remove a tenant's personal property and deliver
it to a storage facility approved by the court.

413
This section of the code applies

only to "dwelling units" and not to commercial tenants.

Indiana Code section 32-31-9 was created as a new chapter of the Indiana
Code by House Enrolled Act 1509

414
entitled "Rights of Tenants Who Are

Victims of Certain Crimes." The new chapter provides lease protections for
victims ofdomestic violence and prohibits a landlord from "terminat[ing] a lease,

refusing] to renew a lease, refusfing] to enter into a lease, or retaliating] against

a tenant solely because: a tenant; an applicant; or a member of the tenant's or
applicant's household" is a victim or alleged victim of a sex offense, stalking, or

a crime involving domestic violence and has received a restraining order or a

criminal no contact order.
415 A tenant who is a victim or an alleged victim of a

crime involving domestic or family violence, a sex offense, or stalking may, at

tenant's expense, have the locks of the tenant's dwelling unit changed within

twenty-four hours of providing the landlord with a copy of a restraining order if

the perpetrator is a tenant in the same dwelling unit
416

(within forty-eight hours

if the perpetrator is not a tenant in the same dwelling unit).
417 The Act also

provides that such a tenant is entitled to terminate the tenant's rights and

obligations under the rental agreement if an accredited domestic violence or

sexual assault program recommends relocation as a part of its safety plan for the
tenant.

418 A landlord is immune from civil liability for excluding the perpetrator
from the dwelling unit under court order and for the loss of, use of, or damage to
personal property while the personal property is present in the dwelling unit.

419

Indiana Code section 32-28-14 is a new chapter entitled "Homeowners
Association Liens" and was created by Senate Enrolled Act 232.

420
It creates a

409. Ind. Code § 32-31-5-6(e) (Supp. 2007).

410. Id. §32-31-4-2(a).

411. Id. §32-31-4-2(b).

412. Id. §32-31-4-2(c).

413. Id. §32-31-4-2(e).

414. Crime Victims—Landlord and Tenant, 2007 Ind. Legis. Serv. 22 (West).

415. Ind. Code § 32-31-9-8(a) (Supp. 2007).
416. Id. §32-31-9-10.

417. Id. §32-31-9-9(b).

418. Id. §32-31-9-12.

419. Id. §32-3 1-9- 10(d).

420. Real Estate—Conveyances—Records and Recordation, 2007 Ind. Legis. Serv. 135
(West).



2008] PROPERTY LAW 1269

new type of lien that can be levied against the real property of a homeowner who
fails to pay for certain common expenses.421 The process for enforcing the lien
is set forth in the new chapter.

422

Indiana Code section 32-21-2-3 was amended to provide that "a conveyance

may not be recorded after June 30, 2007, unless" the conveyance includes "the
street address or rural route address of the grantee."

423

Indiana Code section 32-21-12 applies to restrictive covenants recorded after

June 30, 2007, and states that "[e]xcept as provided in section 4 of this chapter,

a deed restriction or restrictive covenant may not prohibit or restrict the erection
ofan industrialized residential structure on real property."

424
Section 4 states that

"[a] deed restriction, restrictive covenant, or agreement that applies uniformly to

all homes and industrialized residential structures in a subdivision may impose
the same aesthetic compatibility requirements on an industrialized residential

structure in the subdivision that are applicable to all residential structures in the

subdivision."
425

X. Other Cases

The following cases concern property issues, but were not particularly
noteworthy or simply applied accepted common law or statutory tests.
Nonetheless, they are listed here as a guide to practitioners who may be
interested in a particular area of property law.

426

421. Ind. Code § 32-28-14-5(a) (Supp. 2007).

422. Id. § 32-28-14-8.

423. Id. § 32-21-2-3(b).

424. Id. § 32-21-12-3(a).

425. Id. § 32-21-12-4.

426. Cook v. Adams County Plan Comm'n, 871 N.E.2d 1003, 1004, 1009 (Ind. Ct. App.)

(holding that "one-year lease for real estate which contained provisions for annual automatic

renewal" did not constitute a "long term lease" under applicable zoning ordinance for intensive

livestock operations), trans, denied, 878 N.E.2d 220 (Ind. 2007); Green Tree Servicing, LLC v.
Random Antics, LLC, 869 N.E.2d 464, 468-70 (Ind. Ct. App. 2007) (holding that a mobile home

was personal property and should not have been included in the fee interest that passed through a

tax deed on the underlying real property); Green Tree Servicing, LLC v. Auditor & Treasurer of
Howard County, 868 N.E.2d 1, 3-4 (Ind. Ct. App. 2007) (holding that "statute designating

claimants oftax sale surplus funds did not unconstitutionally deprive mortgagee ofproperty without

due process by failing to designate mortgagee as a claimant"); State v. Universal Outdoor, Inc., 864

N.E.2d 403, 407 (Ind. Ct. App. 2007) (holding that "[t]o harmonize subsections (a) and (c)" of

Indiana Code section 32-24-1-11 in the unique facts of this case, "exceptions are timely if filed

within twenty days of the filing of the appraisers' report but no later than twenty days after the clerk

sends notice of the appraisers' report to the parties"), opinion vacated, 880 N.E.2d 1188 (Ind.

2008); Gilpin v. Ivy Tech State College, 864 N.E.2d 399, 402-03 (Ind. Ct. App. 2007) (holding that

Gilpin, the father of an adult child attending Ivy Tech, was a licensee rather than a public invitee

when he entered the building to use the restroom because "no reasonable person could conclude

Ivy Tech extended an invitation to Gilpin to use its public restrooms under these circumstances"



1270 INDIANA LAW REVIEW [Vol. 41 : 1237

and also holding that Gilpin was aware of the loose gravel upon which he slipped, so the gravel

cannot be considered to be a latent danger about which Ivy Tech had a duty to warn); Hodges v.

Swafford, 863 N.E.2d 881, 887-91 (Ind. Ct. App.) (holding, as a matter of first impression, that

finance charges paid by a borrower over the entire life of a loan amounted to points and fees

"payable" by borrower at or before closing, such that the land contract was a high cost loan subject

to the Federal Home Ownership and Equity Protection Act), amended on reh 'g by 868 N.E.2d 1 179

(Ind. Ct. App. 2007); Huntington v. Riggs, 862 N.E.2d 1263, 1270 (Ind. Ct. App.) (holding that

a property owner acquired title to a disputed strip of land through "acquiescence"), trans, denied,

869 N.E.2d 462 (Ind. 2007); House v. First Am. Title Co., 858 N.E.2d 640, 644-45 (Ind. Ct. App.

2006) (holding that an injunction against the previous owner preventing use of a common septic

system was not a "title defect" that would permit House to make a claim under his title insurance

policy); Wetherald v. Jackson, 855 N.E.2d 624, 638-43 (Ind. Ct. App. 2006) (upholding trial court

ruling that Jackson had acquired certain waterfront property by adverse possession), trans, denied,

869 N.E.2d 456 (Ind. 2007); Prairie Material Sales, Inc. v. Lake County Council, 855 N.E.2d 372,

374, 367-77 (Ind. Ct. App. 2006) (holding that a local ordinance that limited the weight of trucks

on certain roads and bridges did not violate Indiana Code section 36-7-4-1 103(c) which prohibits

any action outside urban areas that prevents "the complete use and alienation of any mineral

resources or forests by the owner or alienee of them"), trans, denied, 869 N.E.2d 458 (Ind. 2007);

St. Charles Tower, Inc. v. Bd. of Zoning Appeals, 855 N.E.2d 286, 293-94 (Ind. Ct. App. 2006)

(reversing trial court's denial of Appellant-Plaintiffs petition to reverse the Board of Zoning

Appeals' s denial of a special use permit for the construction of a cellular tower), vacated, 873

N.E.2d 598 (Ind. 2007).