Navigating Encroachments in Hawaii: What Homeowners Need to Know

Aloha! As a real estate broker with Hawaii Life, I work daily with homeowners and buyers navigating the complexities of property ownership here in the islands. One topic that often comes up in Hawaii real estate is encroachment—situations where one property owner’s land or structure crosses over into another’s. Since encroachment issues can be complicated, here’s an overview to help shed some light on this topic.

Understanding Our Role as Real Estate Professionals

Before we dive into specifics, it’s important to clarify our role. Please understand, as real estate professionals, my colleagues and I at Hawaii Life are licensed agents and brokers with in-depth knowledge of Hawaii’s real estate market and property transaction practices. While we are here to guide folks through the buying and selling process, I want to clarify that we are not attorneys and do not provide legal advice or practice law. Our role is to assist with real estate matters, drawing on our experience in property transactions, market trends, and the local regulatory environment. For any legal questions, including those regarding property rights, encroachments, and other matters requiring legal expertise, we always encourage everyone to consult with a qualified attorney to ensure you receive appropriate legal guidance.

Types of Encroachments in Hawaii

Encroachments come in many forms, and here in Hawaii, they can involve both public and private property. Here are a few examples:

1. Encroachment on Public Land
   Property owners can be fined for structures or improvements that spill over onto public land. In 2024, two cases involved nearly $1 million fines each for failing to address such encroachments. It’s a serious matter, and the repercussions can be steep if not resolved.
2. Encroachment on Neighboring Property
   If a structure (like a wall or fence) crosses onto a neighbor’s land without an agreement, the neighbor generally has the right to have it removed, although Hawaii law requires specific procedures to be followed.
3. Encroachment by Developers
   Occasionally, developers mistakenly build on the wrong lot. Recently, a court ordered the demolition of a house on the Big Island built on the wrong property, emphasizing the importance of accurate boundary checks.
4. Tree and Plant Growth
   Landowners can trim trees or plants from a neighboring property that extend into their own, provided they don’t damage or kill the plant. This can be especially relevant in our lush Hawaiian landscape!

A Closer Look: The “De Minimis” Rule

Some small encroachments, under the 1997 Hawaii law, are considered “de minimis,” meaning they extend no more than six inches over a boundary. While still technically encroachments, they are deemed too minor to require correction. However, encroachments exceeding the “de minimis” limit usually require formal agreements involving the title company, the lender, and the neighboring parties.

Resolving Encroachment Issues: Steps and Options

If you’re dealing with an encroachment, here’s a practical roadmap to follow:

1. Survey and Document
   Start with a survey to clearly document the encroachment. This provides a legal basis for negotiations or potential action.
2. Communicate and Negotiate
   Ideally, neighbors can reach an agreement, which might involve removing the structure or creating an encroachment agreement to allow it to remain. An agreement can be a practical solution, though sometimes structural issues make it unviable.
3. Legal Action
   If negotiation fails, a property owner can seek a court injunction to have the encroachment removed. Courts typically weigh factors like the extent and impact of the encroachment and whether it was intentional or accidental.
4. Easement or Encroachment Agreement
   In some cases, the encroached-upon owner might grant an easement, allowing the structure to stay under specific terms. Such agreements, once recorded, “run with the land,” meaning they stay in effect even if the property is sold.

The Importance of Formal Resolution

In Hawaii, self-help actions like tearing down an encroaching structure without following due process are discouraged. Such actions may expose the property owner to legal liability. Seeking a legal resolution can ensure the matter is handled correctly and fairly.

One other important note: If an encroachment is left unaddressed for a long time, the encroaching neighbor might claim adverse possession, gaining rights to that part of the land after a period, usually 20 years in Hawaii. However, this does not apply to “de minimis” encroachments under current law.

Final Thoughts

While Hawaii law ultimately favors property owners facing encroachments, resolving such issues requires a structured approach and legal advice. Every case is unique, and the best path forward often depends on the specific circumstances. If you’re navigating an encroachment situation or simply have questions, my colleagues and I at Hawaii Life are here to help with the real estate aspects—and we encourage you to consult a legal professional for any issues needing legal guidance.

Mahalo for reading, and as always, please reach out if you have real estate questions here in Hawaii!