Report Title:

Landowner Liability; Unimproved Land

 

Description:

Relieves landowner of liability for any damage, injury, or harm to persons or property outside the boundaries of the landowner's land caused by naturally occurring land failure originating on unimproved land, except for harm arising from negligent or wanton acts by the owner of the unimproved land.  Requires, as part of the county approval process, a study to determine rockfall risks, a risk assessment to determine the extent of risk, and creation of a hazard buffer zone or other mitigation if a hazard exists, for any plan not approved prior to July 1, 2009.  Effective 1/1/2046.  (SD1)

 


HOUSE OF REPRESENTATIVES

H.B. NO.

951

TWENTY-FIFTH LEGISLATURE, 2009

H.D. 1

STATE OF HAWAII

S.D. 1

 

 

 

 

 

A BILL FOR AN ACT


 

 

RELATING TO LANDOWNER LIABILITY.

 

 

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

 


     SECTION 1.  The legislature finds that it is in the best interest of the public to provide certainty in the law with respect to the legal duties and obligations of landowners arising from the inherent risks of land failures caused by natural conditions to persons and property outside the boundaries of their land when these risks have not been created or increased by artificial improvements or alterations to the land.

     The purpose of this Act is to codify the common law that currently exists in Hawaii with respect to the legal duties and obligations pertaining to damages and injuries caused by natural conditions to property and persons outside the land.

PART I

     SECTION 2.  Chapter 663, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART    .  UNIMPROVED LAND; LIABILITY

     §663-    Definitions.  As used in this part:

     "Naturally occurring land failure" means any movement of land, including a landslide, debris flow, mudslide, creep, subsidence, rock fall, and any other gradual or rapid movement of land, that is not caused by human alterations to or improvements constructed upon the land.

     "Unimproved land" means any land upon which there is no improvement, construction of any structure, building, facility, or alteration of the land by grading, dredging, or mining that would cause a permanent change in the land area on which it occurs and that would change the basic natural condition that exists on the land.  Land remains unimproved land notwithstanding the following:

     (1)  Minor improvements, including the installation or maintenance of utility poles and signage;

     (2)  Minor alterations undertaken for the preservation or prudent management of the unimproved land, including the installation or maintenance of fences, trails, or pathways;

     (3)  Maintenance activities, including forest plantings and weed, brush, rock, boulder, or tree removal; or

     (4)  The removal or securing of rocks or boulders undertaken to reduce risk to downslope properties.

     §663-    Land failure on unimproved land caused by natural condition; liability.  A landowner shall not be liable for any damage, injury, or harm to property outside the boundaries of the landowner's land caused by any naturally occurring land failure originating on unimproved land; provided that if a dangerous condition is known, or by the exercise of ordinary care, could have been known by the landowner, the landowner has a duty to exercise reasonable care in the maintenance of the property to prevent any damage, injury, or harm to property on or outside of the landowner's property; provided further that a landowner shall remain liable for damages proximately caused by negligence or wanton acts or omissions committed in the course of any activities on the unimproved land."

PART II

     SECTION 3.  Chapter 46, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§46-    Development in hazardous areas.  (a) Notwithstanding any law to the contrary, it shall be a condition precedent to approval of any county subdivision, development plan, or building permit, to require a subdivider, developer, or builder of a new residential, commercial, or industrial structure, to:

     (1)  Perform a study to determine the risks of rockfalls or landslides if any portion of the subdivision or development project includes hillsides or cliffs with a slope grade of twenty per cent or greater that poses or may pose a hazard to any to any person or structure on or adjacent to the subdivision or development project site;

     (2)  To perform a risk assessment to determine whether and to what extent conditions on an adjacent property pose a risk of harm to the proposed subdivision, development, future homeowners, or persons in the vicinity thereof, if the adjacent property includes hillsides or cliffs with a slope grade of twenty per cent or greater immediately upslope from the subdivision or development project site;

     (3)  Create hazard buffer zones or implement other appropriate mitigation measures in areas of the subdivision or development site where a rockfall or landslide hazard is determined or is suspected to exist, that are sufficient to protect the health and safety of future homeowners and persons in the vicinity of the property, and provide a written disclosure of those risks to all potential homeowners that will run with the land; and

     (4)  For purposes of this section, any determination of the existence of a hazard or risk of harm from hillsides or cliffs with a slope grade of twenty per cent or greater shall be performed by a licensed geotechnical professional.

     (b)  For the purposes of this section, "subdivision" means any land that is divided or is proposed to be divided for the purpose of disposition into two or more lots, parcels, units, or interests and also includes any land whether contiguous or not, if two or more lots are offered as part of a common promotional plan of advertising and sale.

     (c)  This section shall apply to the plan of any subdivision or development that has not been approved by the respective counties prior to July 1, 2009."

PART III

     SECTION 4.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 5.  If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 6.  New statutory material is underscored.

     SECTION 7.  This Act shall take effect on January 1, 2046.