EZ Access – Hawaii Easement Basics

We take getting into our driveways for granted. In most places, homes normally front roads owned and maintained by the local municipality. On our island, easements and flag lots are very common as well.

Photo courtesy Dan/Freedigitalphotos.net

What is an Easement?

An easement is a pretty straight-forward arrangement whereby one land owner allows another to cross their property either for ingress and egress, or to bring in utilities. Affected landowners must formally agree. A legal document describing the agreement should be filed with the Bureau of Conveyances otherwise a disgruntled landowner could revoke the use without notice or other cause. Easements may also be created by legal action through habitual or prescriptive use.

Easements are generally said to be “appurtenant” or to “run with the land.” Hence, they pass to subsequent owners. These differ from Easements in Gross, which are individual rights normally granted to utility companies and such. They are commonly established for purposes such as stringing electrical lines. At times, Easements in Gross are granted to individuals. When this happens, the easement is extinguished with an event such as the death of the grantee/beneficiary. The land area of the easement still belongs to the grantor.

What isn’t an Easement?

A “flag” lot looks the same as an easement on the ground, but the portion of the property connecting the roadway to the property is actually part of the lot being accessed, so it’s calculated in the total land area. Flag lots are created when subdivided, so they are usually shown on tax maps. The legal description is the only reliable method of determining access.

Even though tax maps sometimes depict access, they are not the official documentation. These maps are not redrawn every time a change is made. Survey maps should, but often may not, note easements since they are usually of necessity but not a portion of the property.

Who Has Access to the Easement?

Access by easement should always be noted in the title report. A notation of “together with” along with a “subject to” noted on the encumbered property should be shown on the title report. I always request a title report for the encumbered/subject to property as well.

Properties fronting public roadways may not specify access. Access is certainly not a detail to overlook. It can, at times, be extremely complicated and involve a group of easements, or a combination of public, easements, and flag poles. It’s always a good idea to have an attorney verify that your access is completely and legally noted in public records.

A final word of caution regarding “paper” roads. Title policies are written based on recorded access which may not physically exist on the ground. Before you buy, be careful that a road actually exists. Whether your access is through pastures and gates, down streambeds, along shared road ways, or even a simple right turn off a public roadway, access may not be EZ, but it’s always critical to finding your way home!