In Hawaii, a boundary encroachment occurs when a structure or fixture on one property illegally extends onto a neighboring property. This can include fences, walls, driveways, or even roof overhangs. While some minor encroachments (de minimis) are tolerated, larger ones can lead to legal disputes and require formal agreements.
The last thing a seller or their agent wants to discover in the middle of escrow is an encroachment issue with one or more property lines. This year, I experienced an encroachment on four property lines! Two were in the property set backs, the distance between the property line and where a building or fence can legally go on the seller’s property, and two actual encroachments of fencing on to a neighbor’s property and road. All this was discovered when the sellers ordered a survey of their property as part of the Purchase Contract. The above survey shows the encroachments.
How was this resolved? The sellers and buyers came to a financial agreement allowing the buyers to reconfigure their fence lines after close of escrow. Could it have caused a canceled escrow? You bet!
How can encroachment issues stay out of the escrow process? If your property doesn’t have a current, or somewhat current survey, have this done prior to going into escrow, preferably when the property is being prepared to go on the market.
Key aspects of boundary encroachments in Hawaii:
Hawaii law recognizes that some minor encroachments are too small to warrant legal action. The “de minimis” rule generally applies to discrepancies of six inches or less on residential properties and 0.75 feet on agricultural land.
- Formal Agreements:
Encroachments exceeding the de minimis threshold often require formal agreements between the affected property owners. These agreements may involve granting easements, allowing the encroachment to remain, or requiring removal or adjustments.
- Legal Options:
If negotiation fails, property owners can pursue legal action. Options include abatement of a nuisance (seeking a court order to remove the encroachment), trespass and ejectment (claiming trespass and requesting removal), or a quiet title action (seeking a court declaration of ownership and removal).
- Disclosure:
Even de minimis encroachments should be disclosed to potential buyers of the property.
- Importance of Surveys:
A survey is crucial for accurately determining boundary lines and identifying any encroachments. An ALTA survey (American Land Title Association survey) is recommended as it provides detailed information about property lines, encroachments, easements, and building restrictions.
- Negotiation is Key:
Open communication and negotiation between neighbors are often the best first steps in resolving encroachment issues.
In summary, encroachments are common in Hawaii, but understanding the de minimis rule, pursuing formal agreements when necessary, and being aware of legal options can help property owners navigate these situations effectively. A survey is essential for clarity, and open communication with neighbors is the first step towards resolution.
