Ka Wai Ola - Office of Hawaiian Affairs, Volume 00, Number 1, 1 June 1982 — LAND 'STOLEN' in QUIET ACTIONS [ARTICLE]

LAND 'STOLEN' in QUIET ACTIONS

Kuleana Iands are most often target of takeover By Ellen Y.S. Kim Staff Writer Reprinted with the permission of Kauai Times from Vol. III, No. 31 People have unknowingly renounced their shares in land because they weren't aware of "quiet title" actions against them. The quiet title actions are just that, quiet, legal ways to secure land. People who were unaware of the legal notices would default whatever claims they may have had by not showing up in court on a specified date. Factors such as name changes, "hanai," or adoptions and many eommon owners contributed to the confusion of who the quiet title claims addressed. A land expert said Hawaii's early inheritance laws have prompted even family members to begin quiet title action. For most of their history, Hawaiians relied on oral agreements and, as the concept of land ownership was new to them, so was the concept of a will. Descendants usually shared equally in the land inheritance whieh was passed on without wills. Some of the descendants, as eommon owners, continued to live on the land, to maintain it and to pay property taxes. A legal declaration of ownership, whieh the quiet title act insured, would protect their investment. However, some quiet title claims were deliberately used to defraud those with a genuine land elaim, a land expert said. Land ean also pass from descendants to "outsiders" through a quiet title action as well as "adverse possession" whieh some have characterized as "stealing." Adverse possession was used in Europe hundreds of years ago to encourage land development when land owners were absent. Today the term is legally defined as being "actual, open and notorious, hostile, exclusive and continuous (possession of the land) for 20 years." A person claiming adverse possession had to prove these five points (actual, open and notorious, etc.) to assume ownership of the land even though another person may have the deed or tax records. This person has to show control over the property, such as erecting a fence or excluding others from it. It wasn't unusual to Find commonly held land in the midst of plantations. In time the plantations would successfully initiate adverse possession. To illustrate another way the land ean change hands, a person may allow a neighbor to use a portion of his property for 20 years and then become subject to adversie possession. The neighbor could eventually own that portion of land. The lands in question were usually kuleana lands. During the 1848 Great Mahele or land division, King Kamehameha III divided Hawaii's four million acres into roughly three parts. One third of the land was set aside for royal family, one third was set aside for the aliis and one third was reserved for government use. A small fraction of the land, nearly 30,000 acres, was set aside for native farmers. These kuleana lands comprised less than one percent of Hawaii's land inventory yet were usually subject to quiet title claims and adverse possession as native farmers were unaccustomed to the land ownership concept. Previously the king owned all the land. A strong counterclaim to quiet title actions is proving one's geneology and unbroke succession to the land. Besides a private attorney, Legal Aid Society of Hawaii and the Office of Hawaiian Affairs will assist people with title searches and legl matters. Whereas Legal Aid screens clients on an ineome criterion, OHA screens clients on a "blood quantum." According to Kauai and Niihau trustee Moses Keale, OH A funds are set aside for "native Hawaiians" or those with at least 50 percent Hawaiian blood. He said OHA's planning committee will submit a proposal to the next Legislature and funds should become available to service Hawaiians in general. OHA will assist accepted applicants in the costly research process. The "cases of merit" or those deemed worthwhile will be taken and the client is expected to pay for some of the expenses if the case is successful. In 1978 the Constitutional Convention amended the quiet title act to state that people couldn't initiate the act for patents over five acres. Also, the continuous possession definition extended from 10 years to 20 years. He also suggested that people who find themselves a party in a quiet title action should approach Legal Aid or OHA.