01-13-2009, 10:57 AM
I'm not a legal expert or an attorney, but I've taken enough law classes to be able to read case law. A couple years ago I had to research this because my lame neighbor was claiming a prescriptive easement, for which the requirements are almost exactly the same in Hawai'i, except the title doesn't pass.
Anyway, I read a whole lot of Hawai'i cases on adverse possession and for other states, so I'll take a stab from my fuzzy memory.
Glen has beautifully the legal philosophy behind the laws, and between Bob Orts and John Rabi I think they covered all the bases I encountered.
I believe that paying taxes is simply a way of partially meeting the element of "color of right." It is a way of demonstrating that you believe you legally own it, although I think in Hawai'i you would need more. You would need a reason that you think it's yours, whether by purchase, gift, or inheritance.
In Hawai'i, land ownership is somewhat different than the mainland in that the king originally made all the land grants. At the time of the grants, the Hawaiian people had never owned fee simple before and did not all get the concept.
Families were given their kuleana but I believe they had to claim it. Oftentimes the patriarch would die intestate and there would be different claims to the title, disputes between siblings, disputes between widows and stepchildren, and so forth.
Sometimes the owner would both bequeath the land and sell it. Lots of confusion as to who had the rights, especially if no one settled the dispute but let it perpetuate for generations.
Then there were cane companies that tried to steal land from small landowners. They would go to someone who wasn't farming that land and ask to plant on it, and the owner would say, sure, I'm not using it, and with time the cane companies had been farming it for years and put claim on it.
Perhaps for these reasons and others, Hawai'i does not favor adverse possession, the taking of a person's land, meaning that a claimant has a strict burden to prove all the elements.
Not only do you need 20 years of occupation, but the "color of right" means you must prove that you have some reason to believe the land was yours. Maybe a bad survey in the case of adjoining land owners, or a confusion over inheritance, or an unrecorded interest, or a deed that seemed legit but wasn't.
Then there is the "hostile" requirement: any situation where you give permission to the person to use the land defeats the running of the twenty year requirement. In the case of a parent and offspring, permission can be implied. (In my case, my neighbor's mother-in-law who owned the property before us had given her permission)
"open and notorious" means, I believe, that they are open about the occupation, coming and going openly, perhaps even improving the land. There has to be some way in which, if you are paying attention, you can discover the usage.
Squatters who squat long enough may be open and notorious, and hostile, but they have no way to meet "color of right."
Now if someone had "sold" them the land fraudulently and they didn't do a title search, and they moved onto it and occupied it, thinking it was theirs, for twenty years, putting improvements on it and paying the taxes, and you did nothing about it -- well, they might just have a case and you would probably deserve to lose it for ignoring your land all that time.
However, like John Rabi said, they still don't automatically have title. They have to bring a Quiet Title action, and they cannot for parcels recorded under the Land Court system or of 5 acres or more.
Squatters, no, but they sure are trespassing, and I would report it.
Anyway, I read a whole lot of Hawai'i cases on adverse possession and for other states, so I'll take a stab from my fuzzy memory.
Glen has beautifully the legal philosophy behind the laws, and between Bob Orts and John Rabi I think they covered all the bases I encountered.
I believe that paying taxes is simply a way of partially meeting the element of "color of right." It is a way of demonstrating that you believe you legally own it, although I think in Hawai'i you would need more. You would need a reason that you think it's yours, whether by purchase, gift, or inheritance.
In Hawai'i, land ownership is somewhat different than the mainland in that the king originally made all the land grants. At the time of the grants, the Hawaiian people had never owned fee simple before and did not all get the concept.
Families were given their kuleana but I believe they had to claim it. Oftentimes the patriarch would die intestate and there would be different claims to the title, disputes between siblings, disputes between widows and stepchildren, and so forth.
Sometimes the owner would both bequeath the land and sell it. Lots of confusion as to who had the rights, especially if no one settled the dispute but let it perpetuate for generations.
Then there were cane companies that tried to steal land from small landowners. They would go to someone who wasn't farming that land and ask to plant on it, and the owner would say, sure, I'm not using it, and with time the cane companies had been farming it for years and put claim on it.
Perhaps for these reasons and others, Hawai'i does not favor adverse possession, the taking of a person's land, meaning that a claimant has a strict burden to prove all the elements.
Not only do you need 20 years of occupation, but the "color of right" means you must prove that you have some reason to believe the land was yours. Maybe a bad survey in the case of adjoining land owners, or a confusion over inheritance, or an unrecorded interest, or a deed that seemed legit but wasn't.
Then there is the "hostile" requirement: any situation where you give permission to the person to use the land defeats the running of the twenty year requirement. In the case of a parent and offspring, permission can be implied. (In my case, my neighbor's mother-in-law who owned the property before us had given her permission)
"open and notorious" means, I believe, that they are open about the occupation, coming and going openly, perhaps even improving the land. There has to be some way in which, if you are paying attention, you can discover the usage.
Squatters who squat long enough may be open and notorious, and hostile, but they have no way to meet "color of right."
Now if someone had "sold" them the land fraudulently and they didn't do a title search, and they moved onto it and occupied it, thinking it was theirs, for twenty years, putting improvements on it and paying the taxes, and you did nothing about it -- well, they might just have a case and you would probably deserve to lose it for ignoring your land all that time.
However, like John Rabi said, they still don't automatically have title. They have to bring a Quiet Title action, and they cannot for parcels recorded under the Land Court system or of 5 acres or more.
Squatters, no, but they sure are trespassing, and I would report it.