We’re frequently asked to prepare Hawaii encroachment agreements. Once we are provided the surveyor’s report which identifies the encroachments, we can prepare the Hawaii encroachment agreement. We are also asked to review Hawaii encroachment agreements and explain the legal ramifications to Hawaii residents.
What They are and What You Need to Know About Them
In Hawaii an encroachment occurs when there is an unauthorized intrusion of a fence, wall, or cement from one property into another separately owned real estate. Encroachments happen because back in the old day’s people just eyeballed the property lines. With today’s modern technology such intrusions are commonly found prior to a sale of real estate.
Purchase Contracts generally obligate surveys be done and paid for by seller prior to closing, and most lenders require such surveys. If any encroachments are found the selling party is normally required to obtain an “encroachment agreement” with the neighboring landowner.
Due to the numerous encroachments that were discovered, the Hawaii legislature made it so that certain “de minimis” discrepancies are not legally considered encroachments and so encroachment agreements are not necessary. For encroachments that exceed the “de minimis” standards the buyer and their lender will require encroachment agreements from the seller and the neighboring landowner.
The seller of the real estate must then contact the neighboring landowner and see if the neighboring landowner will agree to sign an encroachment agreement. Such a document identifies the landowners, attaches the survey and identifies the specific encroachment.
The parties then agree that the encroachment may remain in place as long as the party that is encroaching is responsible for maintenance, does not make a claim to the neighboring lot, and agrees to rebuild on their own lot if the structure is substantially damaged or destroyed. The document is notarized and then recorded against both properties and binds their heirs, devisees, personal representatives and assigns. As a result, when the buyer sells the property in the future this issue will already have been dealt with and should not pop up later on.
Thus, there is good reason to remain neighborly with adjoining landowners. For a lot of people bad relations with their neighbors leads to a refusal by the neighbor to sign an encroachment agreement. A corollary of this is some grandparents may want to deal with encroachments now, prior to transferring their family property to their children and grandchildren, especially if the family property has not changed hands in over 30 years and so a survey was never done on the property.
When you gift Hawaii real estate normally surveys are not conducted and so you are just passing along the problem to the next generation to deal with when the grandparents are in the best position to obtain the encroachment and can identify who built what.
Contact us today to find out how we can help you get matters settled quickly and firmly.