Ka Wai Ola - Office of Hawaiian Affairs, Volume 1, Number 1, 1 June 1981 — The ʻAina: Adverse Possession [ARTICLE]

The ʻAina: Adverse Possession

by Boyce Brown With this first issue, the OfficeofHawaiian Affairs introduces what will be a regular feature. The 'Aina eolumn will be devoted to legal, legislative and historical matters touching on the subject of land ownership and land use by Native Hawaiians. As the Office of Hawaiian Affairs was being organized, the trustees recognized that because there are so many areas of eoneem to Native Hawaiians whieh need attention, some priorities had to be established. One area of eoneem whieh the surveyed Native Hawaiians consistently put high on their list was the continuing loss of their lands through various legal devices. Ever since the Great Mahele in 1848, when Hawaiians first began to acquire fee title to lands granted to them by the King, Hawaiians have been losing title to their lands because of their laek of familiarity with non-Hawaiian legal concepts of land ownership and court procedures. Unfortunately, for the last century, non-Hawai-ians who were very familiar with such legal concepts and procedures have used them to take the land from Native Hawaiians.

One of the foreign legal concepts whieh was introduced into Hawaii law and whieh has been used time and time again to take land frdm Native Hawaiians is the legal concept known as ADVERSE POSSESS!ON. The first adverse possession law in Hawaii was passed in 1870 and, in amended form, the law isstillineffect. This law has the effect of giving the title to a pieee of real property to anyone who takes actual possession of the property and openly controls and uses it for twenty years, and prevents others from coming on or using the land without permission. Until 1973 the statutory period for adverse possession was ten years. In 1973 the F>eriod was increased to twenty years and in 1978 the new Hawaii State Constitution also limited adverse possession claims to parcels of five acres or less. However, if someone qualifies under the previous adverse possession law, then the limits do not apply. For example, if someone had been in adverse possession for ten years prior to 1973, when the law was passed increasing the statutory period

from ten to twenty years, that person would not have to wait another ten years before he or she could assert title by adverse possession. Likewise, if someone met the twenty-year requirement for a parcel of land larger than five acres before the 1978 Constitution limited the use of adyerse possession to parcels of five acres or less, he or she will be allowed to elaim title to the larger parcel. Deciding whether or not the legal requirements were met before the law changed usually requires a trial. Just claiming title to land for the statutory period is not enough. The adverse possessor's elaim must be asserted in an "open and notorious" fashion. In other words, the elaim to ownership of the land cannot be made quietly or secretly. It must be made publicly so that anyone who tries to find out who owns the land would find out that it is being claimed by the adverse possessor. Usually the adverse possessor must be in physical possession of the land and must use it. These rules sound simple, but what has often happened in the past (and is still happening today) is that a

Kuleana may be completely surrounded by a larger parcel. If the larger surrounding parcel is fenced, or even if it isn't and the owner of the larger surrounding parcel denies access to the Kuleana, then the owner of the larger parcel ean elaim that the Kuleana is in his possession and use, and that his elaim to title is being asserted openly and notoriously. Many Kuleanas have been lost because they simply were "swallowed up" by the larger surrounding parcel and the Kuleana boundaries could no longer be determined. This is, of course, only one, fairly simple example of how adverse possession works and how Kuleanas are lost. Only a few of the numerous rules and variations on the rules of adverse possession have been discussed. What should be clear, however, is that the legal advantage is with those who know those rules and ean afford surveyors, title searches, and lawyers. Unfortunately in the past the odds have been stacked against Native Hawaiians, who lacked the advantages. OHA is determined to change this situation and has made saving Hawaiians' land one of its highest priorities.