THIRTIETH LEGISLATURE, 2020
STATE OF HAWAII
A BILL FOR AN ACT
relating to property access.
ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 7-1, Hawaii Revised Statutes, is amended to read as follows:
"§7-1 Building materials, water, etc.; landlords'
titles subject to tenants' use. (a)
Where the landlords have obtained, or may hereafter obtain, fee
simple or allodial titles to their lands, the landowners and landlords of
and people on each of their lands shall not be deprived of the right to
take firewood, house-timber, aho cord, thatch, or ki leaf, from the land on
which they live, for their own private use, but they shall not have a right to
such] any articles to sell for profit. The landowners and people shall also
have a right to drinking water, and running water, and the right of way. The springs of water, running water, and
roads shall be free to all, on all lands granted in fee simple; provided that
this shall not be applicable to wells and watercourses[ , which] that
individuals have made for their own use."
SECTION 2. Chapter 664, Hawaii Revised Statutes, is amended by adding a new section to part III to be appropriately designated and to read as follows:
"§664- Easement by necessity. (a)
If a complaint filed pursuant to section
664-33 is in respect to a rights of private way and seeks an easement of necessity for ingress, egress, or
utility purposes over or across an adjoining parcel, the circuit court,
exercising its equitable powers, shall grant an easement by necessity if it
(1) The landlocked
parcel has no other reasonable way of obtaining access for ingress, egress, or
(2) The owner of the
landlocked parcel 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.
(b) 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 pursuant to this section.
(c) In determining the route of an easement, the
circuit court shall give preference to a route that:
existing roadways on the adjoining parcel;
(2) Provides the
shortest route to the landlocked parcel from a public highway;
(3) Causes the
least amount of damage and intrusion to the adjoining parcel; and
located away from any residence or related improvements on the adjoining parcel
if the route requires the construction of a new roadway.
(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; and
(2) Shall not
exceed twenty feet in width and that any road on the easement shall not exceed ten
feet in width.
(e) The owner of a landlocked parcel who acquires
an easement pursuant to this section shall pay 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. If the parties cannot agree upon an appraiser,
the court shall appoint one.
(f) The court shall
render a decision pursuant to section 664-34 within six months of the filing of
the complaint; provided that any periods of delay caused by or granted
at the request or with the consent of the claimant shall be excluded in
computing the six-month period."
SECTION 3. Section 664-31, Hawaii Revised Statutes, is amended by adding three new definitions to be appropriately inserted and to read as follows:
""Adjoining parcel" means a
parcel of land that shares a common boundary with a landlocked parcel.
"Owner" means the person
holding fee simple title or the fee.
"Landlocked parcel" means a
separate parcel of real property that has no legal access for ingress, egress,
or utilities purposes."
SECTION 4. Section 664-34, Hawaii Revised Statutes, is amended to read as follows:
"§664-34 Same; decision. (a) The court shall hear the evidence offered relative to the right in controversy, and may, if deemed desirable to the rendering of a correct decision, visit the locality where the controversy arose. It shall give such decision as may in each particular case appear to be in conformity with vested rights and shall be just and equitable between the parties.
(b) The decision shall state expressly the
findings of fact on the evidence, and shall in cases of [
(1) Right of
way, clearly indicate the location (if possible) and nature of the way; [
on a water] provided that in cases of an easement, the decision shall also
be rendered in accordance with section 664- ; and
it shall] state the proportion of time for use, and any other
things necessary to the right. [ It]
The decision may also regulate the methods by which water may be
obtained, and by which its supply can be controlled.
(c) As far as possible, the rights of parties
served by publication who have not appeared in the action shall be ascertained. Judgment shall be entered in accordance with
SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 6. This Act shall take effect upon its approval.
Gathering Rights; Landowner; Landlord; Easement; Rights of Way; Circuit Court
Extends the application of gathering rights to lands owned in fee simple and to landlords and landowners. Authorizes an action for easement by necessity for landlocked parcels not previously under a unity of title with the prospective subservient estate.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.