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Easements, Right-of-Ways and Encroachments
By Carol C. Cummings R/CRS/GRI/SRES - Kauai Realty, Inc.
What are easements, right-of-ways, and encroachments? How do they affect real property?
Easements.
An easement is a nonpossessory right of a benefited party to access and use the real property of the (burdened) property owner granting such a right. Easements usually limits use and the easement area is assigned a legal description by a licensed Surveyor. Easements are recorded at the State of Hawai`I Bureau of Conveyances, and therefore appear on title searches of both the benefited parcel (if applicable) and the burdened property (easement grantee).
On Kaua`i common easements include both underground and overhead utility easements, access easements, and subdivision signage & wall easements. Access to easements cannot be blocked or denied, as easements often require maintenance and/or monitoring.
Easements “run with the land” until they are terminated. Reasons for easement termination include:
1. Merger of ownership of the dominant and servient estates.
2. Easement beneficiary abandons or releases the easement.
3. The purpose the easement was created for ceases.
4. The grantee abuses or improperly uses the easement (overburdens).
Right-of-Ways.
The “Right-of-Way” is the right acquired by accepted use, or written contract to pass over the designated portion of the property of another. A right-of-way can be private, assigned to a specific party, or open to the public. Right-of-ways usually provide a means of access, therefore should be kept clear, and are not intended for parking, or other long term storage of items. Beach access Right-of-Ways are often a condition of development of private oceanfront property, and provide reasonable access to Kaua`i’s shoreline.
Encroachments.
An encroachment is the unacknowledged use by one property owner of the real property of another. Common encroachments include perimeter or retaining walls, building eaves and walls, gazebos, spas, and landscape.
When an encroachment is discovered during the sale of a property, remedies include:
1. Removal of the encroaching real property.
2. Execution and recordation of a perpetual encroachment agreement, whereby both parties acknowledge the encroachment and set guidelines for maintenance, correction upon destruction of encroaching property.
3. Buyer’s acknowledgement and acceptance of the property with the encroachment.
4. Purchase of affected land area to eliminate encroachment.
Over the decades, the method of surveying property has evolved from monument location to more recent high tech methods of boundary verification via laser, infrared, and now global position system (GPS). Because of the revolution of surveying property and the enormous amount of “minor” encroachment revealed by today’s surveying methods, the State of Hawaii legislature passed Act 131 in 1997 and it was modified by Act 185 in 1999, which forgives “de minimus” encroachments of up to 6 inches in residential zoned properties and up to 3 inches in commercial zoned properties. For example, if Property “A” has a rock wall which encroaches 4.5 inches into Property “B”’s boundary, no encroachment agreement would be required by escrow or the Lender because the encroachment is less than the 6 inch de minimus.
While easements, rightofways, and encroachments may seem intimidating, these are normal components of property ownership, and won’t be an obstacle to Kaua`i property ownership when fully understood and properly addressed.
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