HAWICA: The "Common Owner" Giving Rise To Implied Easement Can Be The Gov't

by Robert Thomas, Inverse Condemnation, May 21, 2014

Here's one from the Hawaii Intermediate Court of Appeals that illustrates the interesting only-in-Hawaii twists that can happen in our property law.

In Malulani Group, Ltd. v. Kaupo Ranch, Ltd., No. 30509 (May 5, 2014), the issue was whether the owner of a landlocked parcel could assert an easement implied by necessity over a wholly-surrounding neighboring parcel. Back in the day, both parcels had been under common ownership.

Old property hounds will know that "unity of ownership" is one of the key elements in proving an implied easement. Here, the common owner was the government, which triggered the question -- answered differently by various courts over time -- whether government ownership is sufficient to meet the unity of ownership requirement.

The unique Hawaii twist? The government here was the Kingdom of Hawaii.

The court came down on what it described as the modern trend: that prior ownership by the government (even a kingdom) can serve to meet the unity of ownership requirement. The fact that the common owner was the Kingdom, and not its successors the Republic, Territory, or the State, was not dispositive and the court's decision did not turn on the nature of the government in question, not many other states can claim cases where the government in question was a separate sovereign.

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LINK: The Malulani Group, Ltd. v. Kaupo Ranch, Ltd., No. 30509 (Haw. App. May 5, 2014)