Pictured: Entrance to Oneloa Subdivision in Puna.
You’d be hard-pressed to imagine some of the calls REALTORS® get. None are more interesting than those who want information about adversely possessing property. Several years ago, a popular story circulated about an adverse possessor on the mainland “buying” a home worth over $300,000 for about $16.
We’ve had our fair share of those looking to pursue adverse possession of our listings. One even removed my sign and lockbox, and changed the locks. After being ordered to leave and locked out, they came back again! They likely thought they’d succeed under the laws of adverse possession. Truth be told, the “$16 Dollar Man” probably didn’t get to stay long. Thankfully, our hopeful “homesteaders” left peacefully.
There are several ways an owner might lose property without permission.
- Property can be foreclosed to satisfy liens.
- The government can condemn it for public good.
- An estate might be surrendered to the State if no heirs can be found.
- It can be seized when use is related to criminal activities.
- It’s also possible that, by omission, property could be lost through adverse possession.
To be successful in an adverse possession claim in Hawai`i:
- The claimant (person trying to adversely possess) must occupy the property continuously for 20 years. This period varies from state to state.
- The claimant must occupy the property completely without the owner’s permission.
- The occupancy must be made in such a fashion that the owner would absolutely know someone was on the property if they visited.
- The person attempting to claim title must have always represented that they own the property. This may include paying the taxes but remember, the tax office doesn’t care who pays the taxes. Even making consistent tax payments won’t establish ownership. The tax office will mail the bill to the address they are given.
Land Court properties and any parcel over 5 acres in size cannot be adversely possessed. Many of our larger subdivisions, including most Puna subdivisions, are Land Court properties. Unique to Hawaii, Land Court is an additional system of recordation. All deeds, liens or transfers actually go before a judge who approves the transaction. One of the criticisms of Land Court is that the original registration process is burdensome. It seems that in our remote island state, having this protection might make a lot of sense.
Thousands of parcels were originally sold through the mail. Many owners have still never seen their property. As much as those involved in today’s real estate transactions complain about land court, the original developers were wise in taking the extra step involved in Land Court registration.
As an owner, be wise; visit your property now and then to be sure you don’t have uninvited guests who might want to threaten your ownership rights and if you are interested in adverse possession, you may want to think twice before you become just a garden variety trespasser.