Thursday, March 3, 2011

Hawaii Property Ownership Complexities

Property use in Hawaii is ruled by a complex web of historic laws, articles in the Hawaii Constitution, Hawaii Revised Statutes (HRS) and controlled by State and County organizations including the State Land Use Commission, Department of Land and Natural Resources (DLNR), State Board of Land and Natural Resources, Hawaii Homelands, and individual County Planning Commissions. In Hawaii, no title is entirely free of encumbrances because of historic claims that are still in effect, as well as the State of Hawaii’s ownership of all property mineral rights.

The ancient Hawaiians’ version of property ownership was by ahupua‘a, a division of land running from the mountains (mauka) to the sea (makai). The ahupua‘a supplied food and materials to the maka‘ainana (commoner residents) who tended the land, as well as to the konohiki (overseers) who administered the ahupua‘a, and the ali‘i nui (chief), who was often responsible for one or more ahupua‘a. Today, Article XII, Section 7 of the Hawaii Constitution, adopted in 1978, states “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights." These rights are maintained regardless of the ownership of the land.

A dramatic change occurred in 1845 when King Kamehameha III changed property ownership to be more like the westernized system with land titles. Hawaii lands were divided up among the Kingdom, Chiefs, and the Territorial government, in what is known as Ka Mahele ( “The Division”). In 1850, a law was passed allowing native tenants to claim title to the lands they worked and acquire what is known as a Kuleana parcel. Today Kuleana rights are still attached to the land irrespective of the current owners of the title or deed. The rights attached to the decedents of the original Kuleana owners include: access, agricultural use, gathering and religious ceremony rights, rights to a single-family dwelling, water rights, and fishing rights. An adjoining property may be the only way to access to Kuleana and the rights to water in a stream on the property may be under the control of the Kuleana. Many of the Kuleana are never used, but at any time a group or individual could show up and plant taro or construct a house on the parcel within the property. Kuleana details are defined in Hawaii Revised Statutes (HRS) Chapter 183C.

The Highways Act of 1892 approved by Queen Liliuokalani guarantees the public’s right-of-way to all existing trails at that time. This act combined with HRS Chapters 171 and 264. is under the jurisdiction of the State Board of Land and Natural Resources so that private property with historically used trails must allow public access to the trail.

And any property with a building, structure, or burial site that is over 50 years old may be designated as a Historic site under HRS Chapter 6E. The DLNR State Historic Preservation Division is responsible for all 6E sites and property owners are limited in what they can do with that portion of their property. In many cases the sites are cordoned off so that the historic areas cannot be accessed by the owners.

But, even if a fee-simple property doesn’t have a Kuleana, historic site, or trail on it, native Hawaiians may still have the right to gather on the property for religious or cultural purposes. The Hawaii Supreme Court ruled that Hawaii Revised Statutes section 7-1 protect the gathering rights of native Hawaiians on Moloka’i on private property. Pele Defense Fund also won a case that gave them access to private land for religious purposes based on the land’s historic use. In another case, a building permit issued by Hawaii County to develop a resort was successfully challenged when the Hawaii Supreme Court ruled that native Hawaiians retain their rights to pursue traditional and customary activities. The Hawaii Supreme Court did clarify that “fully developed” residential property is not open to native Hawaiian gathering rights, but the court acknowledged that the reality of property ownership in Hawaii is that “ land title in Hawaii confirms only a limited property interest”.

8 comments:

paul said...

the other property right is claimed by PELE

BlogFront said...

Hi,

BlogFront.org is committed to uphold the quality standards of blogging. We strive to maintain and promote only the most credible blogs in their respective fields.

Spam blogs or "splogs" has been a problem for some time now and people are getting confused about which blog to trust.

We would like to thank you for maintaining such a reputable blog. We know that it takes time, effort and commitment to keep such a blog and as such, we have added your blog as one of the top Hawaii Blogs.

You can see your blog listed here: http://blogfront.org/hawaii/8

You can also claim your BlogFront Top Blogs badge at http://blogfront.org/badges/hawaii

Thank you for keeping your blog credible. Let's keesp the blog revolution alive!

Maria Blanchard
BlogFront.org
Blog Revolucion

devic said...

I think this one is very nice and excellent information and post regarding hawaii property and it's ownership.I like this great post.

Homeowners Association Management

rentecdirectsmn said...

Hawaii offers one of the best climate here in the United States. There might be some complexities but there's no stopping for people who wants to live permanently in the Aloha state.


landlord software

Unknown said...

Wow, I didn't realize how complex all the systems were! Luckily, I have discovered socalenterprise.com which is involved in home owners association management. Check it out if you guys want more information.

sophie said...

Acquiring a home really needs a lot of considerations, complexities are always define. Especially for amateur buyers who doesn't have enough knowledge, they need expert attention to assist them as they go along with so many complexities.
tenant screening

ScottishHouseMove.com said...

Interesting for investors looking to buy in Hawaii

Blogger said...

If you want your ex-girlfriend or ex-boyfriend to come crawling back to you on their knees (even if they're dating somebody else now) you got to watch this video
right away...

(VIDEO) Why your ex will NEVER get back...