Hawaii Easement Law

An easement gives one party the right to use the property of another party for a specific purpose.  This is known as an affirmative easement.  An easement may also prohibit a landowner from using his property is a certain way.  Such is known as a negative easement.  Examples of easements are:

• Utility Easements;
• Solar Easements;
• Conservation Easements;
• Right-of-Way Easements; and
• Drainage Easements.

Easements are divided into two categories: 1) appurtenant easements and 2) easements in gross.

1. Easements Appurtenant – An easement appurtenant benefits adjoining property and continues to exist regardless of who owns the property.  In order to be classified as an easement appurtenant, there must be a dominant tenement which benefits from the easement and a servient tenement which is burdened by the easement.
2. Easements In Gross – Easements in gross benefit a specific individual or a specific business entity.  Unlike an easement appurtenant, an easement in gross generally cannot be sold, assigned, or inherited and upon the easement holder's death, the easement terminates.

Creating Easements in Hawaii

• Express Easements -  When an easement is created by deed or contract, it is known as an express easement.  An express easement typically describes the location and dimensions of the easement and the intended and permissible use or uses of the easement.  If the deed or contract that created the easement is ambiguous, the court will examine the intention of the parties and the facts surrounding the transaction to resolve those ambiguities.
• Implied Easements – Under Hawaii law, an easement may be implied where there was unity of ownership between the dominant tenement and the servient tenement before the property was severed.  Once the claimant has proven that there was unity of title, courts will look to the intention of the parties and the surrounding circumstances to determine whether there was an implied easement. An implied easement may also be retained by the grantor.  In such instances, when the grantor sells a portion of his land (the servient tenement), depending on the circumstances and the intent of the parties, courts may find an implied easement exists.
• Prescriptive Easements -  The requirements to prove a prescriptive easement under Hawaii law are the same for proving adverse possession.  A claimant must prove that his use of the land over which the easement is claimed has been adverse, continuous, and uninterrupted for the statutory prescriptive period of 20 years.

Easement Legal Issues and Boundary Disputes

In Hawaii, one of the most common easement disputes involves implied easements by dedication.  In such cases, the question is whether the public has acquired an easement over private lands for access to or use of beaches and other recreational areas.

Easement disputes may also arise where a landowner erects improvements that encroach on adjoining property.  Moreover, it's not uncommon for a landowner and an easement holder to have issues over the easement holder's use of the easement or the landowner's interference with the easement holder's use of the easement.

Help from a Real Estate Attorney in Hawaii

If you have questions about Hawaii easement law or are involved in an easement dispute, you should contact an experienced real estate attorney.  If you are in an easement dispute, a qualified real estate attorney will review the survey of the property as well as the title search and any other relevant documents and will explain your legal options.