COVID19 UPDATE
Big Island

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

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!

About the Author

Denise Nakanishi

Denise Nakanishi is a REALTOR Broker with Hawai'i Life. Denise Nakanishi is one of Hilo's most acclaimed real estate agents. She reached the rank of Major in the US Army and is now known by many as "Major Mom." The nickname fits–not only does Denise bring the discipline and mission-oriented attitude you'd expect, she's also caring and compassionate, always looking out for her clients like they're her own family. Having made the Big Island her home since 1987, Denise combines her extensive knowledge of the area with a sharp focus on customer service and the results speak for themselves. She's the recent recipient of the Best East Hawai`i, Best of Zillow, Chairman's Circle Award, President's Circle, Top Producing Agent since 2001, and Realtor of the Year awards. Denise stays ahead of the curve because she's passionate about education–she served as Education Chair for Hawaii Island REALTORS® for many years. She's one of Big Island's best real estate resources, known for her weekly article in the Hawaii Tribune Herald. Denise leads Team Nakanishi for Hawai`i Life, who is committed to their family, work, and community. In her little time away from work, Denise is a committed runner and Grandy. She also devotes many hours to various Veterans' Organizations, the East Hawaii Cultural Center, and the Hawaii Island REALTORS®. You can email me at denise@hawaiilife.com or via phone at (808) 936-5100.

Comments (5) Show CommentsHide Comments (Remember)

Cool. Add your comment...

Your email address will not be published. Required fields are marked *

Leave your opinion here. Please be nice. Your Email address will be kept private, this form is secure and we never spam you.

Beth Thoma Robinson R(B)

August 29, 2014

Great post, and I will have folks refer to it often, I’m sure. Especially the last line as we have many situations in Kohala where an easement was simply drawn on paper as part of a long-ago subdivision process, and when it comes to finding it on the ground we suddenly see it is a completely impractical access route! Luckily there is usually a pre-existing route, and all it takes is a bit of money and time to re-write the easements.

Beth Thoma Robinson R(B)

August 29, 2014

Great post, and I will have folks refer to it often, I’m sure. Especially the last line as we have many situations in Kohala where an easement was simply drawn on paper as part of a long-ago subdivision process, and when it comes to finding it on the ground we suddenly see it is a completely impractical access route! Luckily there is usually a pre-existing route, and all it takes is a bit of money and time to re-write the easements.

Joe Sillaman RA

September 7, 2014

Very informative post Denise!

Joe Sillaman RA

September 7, 2014

Very informative post Denise!

Laura

May 28, 2020

I realize this is an older post however, it helped gain a better understanding as I study for the real estate exam. Thanks for posting 😃

More Articles from Hawaii Life