THE SENATE

S.R. NO.

144

THIRTY-FIRST LEGISLATURE, 2021

 

STATE OF HAWAII

 

 

 

 

 

SENATE RESOLUTION

 

 

requesting THE formation of a working group to examine the governance and maintenance OF shared areas IN non-planned community subdivisions.

 

 


WHEREAS, in Hawaii, the governance and maintenance of common areas in condominium associations are governed by section 514B, Hawaii Revised Statutes, and the governance and maintenance of common areas in planned community associations are governed by section 412J, Hawaii Revised Statutes; and

 

WHEREAS, there is a lack of statutory guidance on the rights and responsibilities of homeowners or entities on the governance and maintenance of shared areas, such as private roads, recreational facilities, mailboxes, and infrastructure, of non-planned community subdivisions that were created prior to statehood; and

 

WHEREAS, the failures of these pre-statehood, non-planned community subdivisions to maintain these shared areas negatively impacts the public, like the delayed arrival of emergency response vehicles due to unmaintained roads or mailed prescriptions of essential medications due to lack of mail delivery; and

 

WHEREAS, though the Hawaii Supreme Court held in Paradise Hui Hanalike v. Hawaiian Paradise Park Corporation, 66 Haw. 362, 662 P.2d 211 (1983), that landowners have a duty to contribute to the maintenance of private roads that abut the landowners' property even without any recorded instrument stating covenants and declarations, yet there still are no formal procedures nor rules on the collection and expenditure of these contributions; and

 

WHEREAS, the lack of guidance regarding the shared areas of nonplanned community subdivisions result in the constant need for homeowners and entities of these nonplanned community subdivisions to litigate to resolve issues related to the governance and maintenance of shared areas, such as voting rights, use of collected contributions, and authority to audit; and

 

WHEREAS, it is in the public interest to establish a procedure for the governance and maintenance of the shared areas within non-planned community subdivisions; now, therefore,

 

BE IT RESOLVED by the Senate of the Thirty-first Legislature of the State of Hawaii, Regular Session of 2021, that a working group be formed to examine the governance and maintenance of shared spaces, improvements, and infrastructure in non-planned community subdivisions; and

 

BE IT FURTHER RESOLVED that the working group is requested to:

 

(1) Examine any guidance on the rights and responsibilities of homeowners of a non-planned community subdivision regarding the governance and maintenance of its shared areas, including but not limited to any agreements, leases, or other contracts under which the entities have any obligation or responsibility;

 

(2) Examine any guidance on the rights and responsibilities of shared management and governance entities of a non-planned community subdivision regarding the governance and maintenance of its shared areas, including but not limited to any agreements, leases, or other contracts under which the entities have any obligation or responsibility;

 

(3) Examine the various forms of regulation and governance, including any statutory frameworks, oversight agencies, and related programs over the shared areas of non-planned community subdivisions in other jurisdictions, including but not limited to voluntary homeowners' associations;

 

(4) Examine the maintenance strategies of shared areas in the non-planned community subdivisions in other jurisdictions, including but not limited to any procedures for the collection of contributions or dues towards the maintenance of shared areas, the creation of an entity that collects and/or manages the contribution or dues, and any audit authority of a governmental agency;

 

(5) Gather information on the costs, including the potential budget, assessments, shared area maintenance fees, reserve accounts for expenditures and capital maintenance, and any cost-savings to the creation of an entity that governs and/or maintains the shared areas in the non-planned community subdivisions in the State; and

 

(6) Review pertinent resources, including prior state legislation, reports, and studies regarding the governance and/or maintenance of shared areas in non-planned community subdivisions; and

 

BE IT FURTHER RESOLVED that the working group is requested to be comprised of the following members or their designees:

 

(1) A member of the House of Representatives representing an affected district to be appointed by the Speaker of the House of Representatives;

 

(2) A member of the Senate representing an affected district to be appointed by Senate President;

 

(3) The President of the Hawaii State Association of Parliamentarians;

 

(4) The President of the Hawaii Council of Community Associations; and

 

(5) The Chairperson of the Community Associations Institute, Hawaii Chapter, Legislative Action Committee; and

 

 

BE IT FURTHER RESOLVED that the working group is also requested to consist of an additional member with expertise in mediating issues related to non-planned community subdivisions, such as a trained or certified mediator from the Kuikahi Mediation Center or another similar organization that facilitates or practices alternative dispute resolution; and

 

BE IT FURTHER RESOLVED that the working group should serve without compensation; and

 

BE IT FURTHER RESOLVED that the working group is requested to submit a report of its findings and recommendations, including any proposed legislation, regarding the governance and maintenance of shared areas in non-planned community subdivisions, to the Legislature no later than twenty days prior to the convening of the Regular Session of 2022; and

 

BE IT FURTHER RESOLVED that the working group should cease to exist on December 31, 2022; and

 

BE IT FURTHER RESOLVED that certified copies of this Resolution be transmitted to the President of the Hawaii State Association of Parliamentarians; President of the Hawaii Council of Community Associations; and Chairperson of the Community Associations Institute, Hawaii Chapter, Legislative Action Committee.

 

 

 

 

OFFERED BY:

_____________________________

 

 

Report Title:

Homeowners Associations; Counties; Working Group; Non-planned Community Subdivisions