Report Title:

Landlocked parcels; access easements; petition

Description:

Permits a landowner of a parcel that has no access to a public highway to petition the circuit court for an easement by necessity. Provides for the payment of just compensation as determined by a mutually agreed upon appraiser. (HB2785 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

2785

TWENTY-SECOND LEGISLATURE, 2004

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO EASEMENTS.

 

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

SECTION 1. The legislature finds that:

(1) Due to our insular and geographic nature and our particular history of land tenure, there is a concentration of land ownership in the State in the hands of a few large landowners and a shortage of parcels or property in the hands of smaller landowners for residential and other uses;

(2) In many cases where there is private ownership of a small parcel, the landowner cannot use the parcel due to the lack of legal access from a public highway or road to the parcel, leaving the parcel landlocked;

(3) These landlocked parcels include many kuleana parcels scattered among and within larger surrounding parcels of land;

(4) While the courts of our State have recognized easements by necessity, these judicial rulings require a finding of a original unity of ownership of the parcels that would later become the dominant and servient parcels; and

(5) These judicial determinations require a long and costly process and do not necessarily result in the necessary access.

The purpose of this Act is to allow the circuit courts to more readily grant easements of necessity to landlocked parcels and provide for just compensation.

SECTION 2. Chapter 664, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . GRANT OF EASEMENT

OF NECESSITY FOR LANDLOCKED PROPERTY

§664- Definitions. (a) When used in this section, unless the context requires otherwise:

"Adjoining parcel" means a parcel of land that shares a common boundary with a landlocked parcel.

"Landlocked owner" means the person holding fee simple title to a landlocked parcel.

"Landlocked parcel" means a separate parcel of real property that has no legal access for ingress, egress, or utilities purposes to a public highway, as described in section 264-1.

(b) A landlocked owner may petition the circuit court of the circuit in which the landlocked parcel is situated for an easement of necessity for ingress, egress, or utility purposes over and across an adjoining parcel. If there are multiple adjoining parcels to a landlocked parcel and one is a private road, the easement of necessity for ingress, egress, or utility purposes shall be granted over the parcel representing a private road before any other parcel.

(c) The circuit court, exercising its equitable powers, may grant an easement by necessity if it determines that:

(1) The landlocked parcel has no other reasonable way of obtaining access for ingress, egress, or utilities;

(2) The landlocked owner requires the easement to properly have the use and enjoyment of the landlocked parcel;

(3) The adjoining parcel is the most reasonable parcel to burden with the easement; and

(4) Granting the easement would not overly burden the adjoining parcel.

The circuit court shall not be required to find that there existed a prior unity of title between the landlocked parcel and the adjoining parcel before granting the easement.

(d) In granting the easement, the court shall order that the easement:

(1) Shall be nonexclusive and may be used by the owner of the adjoining parcel and other persons to whom the owner of the adjoining parcel may reasonably grant similar rights or easements;

(2) May not exceed twenty feet in width;

(3) Be routed in a manner that is the shortest distance to the landlocked parcel, consistent with subparagraph (b);

(4) Be routed in such a manner that causes the least amount of damage to the adjoining parcel, consistent with subparagraph (b); and

(5) Is located the greatest possible distance from any residence or related improvements on the adjoining parcel, consistent with subparagraph (b).

(e) The landlocked owner who acquires an easement pursuant to this section shall pay a just compensation as determined by a mutually agreed upon appraiser, and shall contribute to the improvement and maintenance of the easement for the purpose of ingress, egress, or utilities in accordance with all laws, ordinances, and rules."

SECTION 4. This Act shall take effect upon its approval.