Real Property Encroachment

Adds industrial property to types of property covered by the
structure position discrepancy law.  Provides that the property
owner is responsible for an encroachment where the property owner
who constructed the improvement is not readily identifiable.

THE SENATE                              S.B. NO.           224
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 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.  The law is thus rendered unusable.
15 The legislature believes that the removal of the retroactive date
16 of that law will allow that law to be implemented.  Furthermore,
17 the requirement that the structures be otherwise "legally
18 constructed" forecloses the possibility that the law, without any
19 temporary restrictions as to its applicability, will be used to

Page 2                                                     
                                     S.B. NO.           224

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

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                                     S.B. NO.           224

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

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                                     S.B. NO.           224

 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.
12                           INTRODUCED BY: ________________________