101-29 Possession pending action; alternative procedure. Where the plaintiff is the State or any county, the following alternative procedure may be followed. At any time after the commencement of an action pursuant to this part, the State or any county may file a motion for an order of possession invoking this section and supported by an affidavit alleging, or by oral evidence prima facie showing:

(1) The right of the State or county to maintain the action;

(2) The public use for which the real property sought to be condemned is being taken; and

(3) The sum of money estimated by the State or county to be just compensation or damages for the taking of the real property.

Upon such motion and upon payment of such estimated sum of money to the clerk of the court for the use of the persons entitled thereto, the court shall issue an order ex parte putting the State or county in possession of the real property sought to be condemned and permitting the State or county to do such work thereon as may be required for the purpose for which the taking of the property is sought. The order placing the State or county in possession shall become effective upon the expiration of ten days after service thereof; provided that for good cause shown within the ten days, the court may vacate or modify the order or postpone the effective date thereof for an additional period of time. Service of the order shall be made personally on those defendants who are in actual possession, and in other cases may be made by depositing a copy thereof in a United States post office, postage prepaid, registered mail addressed to the defendants at their last known addresses, or to their attorneys of record. [L 1951, c 12, pt of 1(l); RL 1955, 8-27; HRS 101-29]

 

Cross References

 

Service by certified mail, see 1-28.

 

Case Notes

 

Despite its earlier mixed messages regarding condemnee's right to possession after entry of quick-take possession order in eminent domain proceeding for a fire station replacement project, the condemnor took exclusive possession of the property by: (1) filing an eminent domain certification stating that it had taken possession of the property; (2) notifying condemnee's attorneys that condemnee did not have a legal right of possession, that neither condemnee nor any other person was authorized to enter the property, and that any personal property would be removed without notice; and (3) reimbursing condemnee for taxes condemnee paid after issuance of possession order. 125 F. Supp. 3d 1080 (2015).

Entry of order of possession is not a bar to abandonment. 42 H. 415.

Section includes no provision for interlocutory appeal. 44 H. 7, 352 P.2d 333.

Paragraph (2) only requires a showing of ultimate public use. No showing of reasons for immediate occupation is required. 49 H. 494, 421 P.2d 300.

If no motion to vacate within ten days, condemning authority has absolute right to immediate possession. 49 H. 494, 421 P.2d 300.

Leasing on a temporary basis after possession obtained under this section. 49 H. 494, 500-03, 421 P.2d 300.

Purpose of section. 54 H. 385, 507 P.2d 1084.

 

 

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