Law Commons^™

Stop The Beach Renourishment Stops Private Beachowners' Right To Exclude The Public, Kristen G. Juras, Sydney F. Ansbacher, Robert K. Lincoln

Faculty Law Review Articles

In this article, the authors examine the various measures implemented by state and local governments to enhance public access to and use of government-owned tidelands, streambeds, and lake shores and how, although not necessarily titled as such, many of these measures result, without payment of compensation, in an easement allowing public access to and use of private waterfront property.

Section I describes the rights of riparian property owners and the right of the public to use government-owned shores and tidelands, followed by a general overview of various state legislative and judicial responses designed to address the conflicts that arise when …

Unbundling Property In Water, Sandra B. Zellmer, Jessica Harder

Faculty Law Review Articles

The United Nations Intergovernmental Panel on Climate Change predicts that, in the foreseeable future, climate change will exacerbate water problems worldwide. In the United States, we are likely to see more severe flooding, more frequent droughts, and a rush to secure legal rights to water supplies. Sustainable management of water resources for present and future generations will become all the more imperative as we face increasing pressure on limited supplies. The quest for sustainable management has stimulated a movement for greater recognition of private property rights to attain efficient use and allocation of water. The World Bank and the International …

Is Water Property?, Sandra B. Zellmer, Jessica Harder

Faculty Law Review Articles

One of the most controversial issues in natural resources law is whether interests in water are property. In the western United States, water is typically viewed by appropriators as a form of private property, while in the East it is not. In either case, the law is surprisingly unsettled, notwithstanding the important consequences that follow, particularly under constitutional takings jurisprudence. Treating water as property has significant implications for investment, conservation and environmental protection as well. Establishing secure property rights can foster stewardship and wise investment of labor and capital. By the same token, the absence of property ownership can result …

Not In My Backyard: The Clash Between Native Hawaiian Gathering Rights And Western Concepts Of Property In Hawaii, Samuel J. Panarella

Faculty Law Review Articles

This article examines the uneasy truce that exists between Western property law and the original Hawaiian native gathering practices that existed before the arrival of Europeans. The author traces the development of Hawaiian law from early cases that severely restricted gathering rights to more permissive results. The article demonstrates both the strengths and weaknesses of the present system of land tenure in Hawaii and argues for the continued expansion of native Hawaiian gather rights providing such expansion takes place within, not outside of, the dominant fee simple land tenure system now in place in Hawaii.

Condominiums, Reform, And The Unit Ownership Act, Robert G. Natelson

Faculty Law Review Articles

This article assesses the Montana Unit Ownership Act (UOA), the condominium statute adopted by the Montana legislature in the 1960s. Part II sketches the nature and history of condominium ownership. Part III provides the history, organization, language, and essential purpose of UOA. Part IV offers a philosophy for reform and concludes that the Montana legislature should amend the UOA rather than replace it. Part V makes detailed recommendations for such reform.

Consent, Coercion, And "Reasonableness" In Private Law: The Special Case Of The Property Owners, Robert G. Natelson

Faculty Law Review Articles

This article examines property owner association decision making and the current standards of judicial review that prevail in reported cases.

Part II outlines the factual and legal background of property owner associations. Part III provides an overview of the consent/coercion debate. Part IV addresses regulation without consent. Part V analyzes measuring utility under the efficiency principle. Part VI examines measuring harm under the unanimity and compensation principles. Part VII explores protection of personhood interests.

Running With The Land In Montana, Robert G. Natelson

Faculty Law Review Articles

This article examines Montana statutory sections on covenants running with the land and their life in the Montana courts. Part II outlines the common law of running covenants as it appeared on the eve of codification. Part III describes the origin and theory of the Field Civil Code. Part IV examines the original intent of the codifiers and legislature that adopted the statutes regulating land covenants. Part V reviews relevant Montana case law regarding these statutes. Part VI offers suggestions regarding changes in Montana jurisprudence of land covenants.

Comments On The Historiography Of Condominium: The Myth Of Roman Origin, Robert G. Natelson

Faculty Law Review Articles

This article seeks to dispel the common perception that the condominium is an institution peculiarly Roman. The article attempts to set the record straight and to trace a course of events that is symptomatic of underlying problems in American legal scholarship.

Part II outlines the considerations which render it improbable that anything like modern condominium existed in Roman civil law. Part III is a short sketch of the actual history of condominium. Part IV traces the process by which the fable of Roman origin crept throughout American legal literature. Part V explains, in reverse chronological order, how a now-discredited European …

Mending The Social Compact: Expectancy Damages For Common Property Defects In Condominiums And Other Planned Communities, Robert G. Natelson

Faculty Law Review Articles

This article examines one of the most significant forms of common property lawsuits that has resulted as the number of planned communities has grown -- the action against the community developer for alleged construction defects and plaintiff's seeking expectancy damages. Noting that an adequate guide for measuring expectancy damages in common property defects cases has not yet been developed, this article suggests several mechanisms by which damages in these cases can be measured and allocated in a straightforward manner.

Keeping Faith: Fiduciary Obligations In Property Owners Associations, Robert G. Natelson

Faculty Law Review Articles

No abstract provided.

Colorado "Buyer Brokerage": Does It Still Exist After Velten V. Robertson?, Robert G. Natelson

Faculty Law Review Articles

This article examines the decision in Velten v. Robertson which raises serious questions as to whether a purchaser of real property can employ a real estate broker on a commission basis with full confidence that the broker will be able to avoid conflicts of interest and thus limits effective commissioned real estate brokerage in Colorado to the representation of sellers.