REPORT TITLE:
Real Property Encroachment


DESCRIPTION:
Adds industrial property to types of property covered by the
structure position discrepancy law.  Provides that the owner of
the property upon which the improvement is substantially located
is responsible when the owner who constructed the improvement is
not readily identifiable. (HB77 SD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        77
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 1
TWENTIETH LEGISLATURE, 1999                                S.D. 1
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO REAL PROPERTY ENCROACHMENT.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The legislature finds that this Act represents a
 
 2 collaborative effort among licensed land surveyors, title and
 
 3 escrow companies, and the real estate community in Hawaii at
 
 4 clarifying the existing law on real property encroachments.
 
 5      The purpose of this Act is to adopt cost-efficient, time-
 
 6 saving methods to resolve relatively minor structure position
 
 7 discrepancies, including those situated on industrial property,
 
 8 and without regard to the date at which such discrepancies arise.
 
 9 The legislature recently enacted a structure position
 
10 discrepancies law.  However, that law applies only to
 
11 discrepancies that existed on June 16, 1997.  The problem with
 
12 the law is that applicability turns upon the date of construction
 
13 of the encroaching structure, which often is indeterminable due
 
14 to the lack of documentation.  This ambiguity renders the law
 
15 unusable in many situations.  The legislature believes that the
 
16 removal of the retroactive date of that law will allow that law
 
17 to be implemented.  Furthermore, the requirement that the
 
18 structures be otherwise "legally constructed" forecloses the
 
19 possibility that the law, without any temporary restrictions as
 
20 to its applicability, will be used to promote or encourage
 
21 future, intentional encroachments.
 
Page 2                                                     77
                                     H.B. NO.           H.D. 1
                                                        S.D. 1
                                                        

 
 1      SECTION 2.  Section 669-11, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "[[]669-11[]]  De minimus structure position discrepancies,
 
 4 defined.  For the purposes of this part, "de minimus structure
 
 5 position discrepancy" means:
 
 6      (1)  For commercial property, industrial property, and
 
 7           multi-unit residential property, 0.25 feet;
 
 8      (2)  For all other residential property, 0.5 feet;
 
 9      (3)  For agricultural and rural property, 0.75 feet; and
 
10      (4)  For conservation property, 1.5 feet;
 
11 between the location of an improvement legally constructed along
 
12 what was reasonably believed to be the boundary line and the
 
13 actual location of the boundary line based on [a modern] the most
 
14 recent survey."
 
15      SECTION 3.  Section 669-12, Hawaii Revised Statutes, is
 
16 amended to read as follows:
 
17      "[[]669-12[]]  Consequences.
 
18      (1)  A de minimus structure position discrepancy shall not
 
19           be considered an encroachment or a basis for a zoning
 
20           violation;
 
21      (2)  No de minimus structure position discrepancy authorized
 
22           under this part shall be considered as a basis for any
 
23           claim of adverse possession of land.  If the wall or
 

 
Page 3                                                     77
                                     H.B. NO.           H.D. 1
                                                        S.D. 1
                                                        

 
 1           other improvement that is affected by the discrepancy
 
 2           is removed or substantially damaged or destroyed, the
 
 3           replacement improvement shall be constructed to comply
 
 4           with the most recent survey available at the time of
 
 5           construction of the improvement;
 
 6      (3)  Responsibility for maintenance and repair of an
 
 7           improvement within a de minimus structure position
 
 8           discrepancy shall be borne by the property owner who
 
 9           constructed the improvement[,] or the property owner's
 
10           successor in interest; [and]
 
11      (4)  Liability for any claims for injuries or damages to
 
12           persons or property arising out of, or in connection
 
13           with, an improvement within a de minimus structure
 
14           position discrepancy shall be borne by the property
 
15           owner who constructed the improvement[,] or the
 
16           property owner's successor in interest[.]; and
 
17      (5)  In the event that the property owner who constructed
 
18           the improvement within a de minimus structure position
 
19           discrepancy is not readily identifiable, then for
 
20           purposes of this part, the owner of the improvement
 
21           shall be determined to be the owner of the property
 
22           upon which the improvement is substantially located."
 

 
 
 
Page 4                                                     77
                                     H.B. NO.           H.D. 1
                                                        S.D. 1
                                                        

 
 1      SECTION 4.  Act 131, Session Laws of Hawaii 1997, is amended
 
 2 by amending section 5 to read as follows:
 
 3      "SECTION 5.  This Act shall apply to all structure position
 
 4 discrepancies [in effect on its effective date] without regard to
 
 5 when the facts or actions giving rise to the discrepancy
 
 6 occurred."
 
 7      SECTION 5.  Statutory material to be repealed is bracketed.
 
 8 New statutory material is underscored.
 
 9      SECTION 6.  This Act, upon its approval, shall take effect
 
10 retroactive to June 16, 1997.