Encroaching Garage and a Fence Inside a 20-Ft Access Easement
You survey a 5-acre rural lot in Waimea, Hawaii Island, for a buyer. The lot benefits from a 20-ft-wide access easement along its makai boundary, described as “a 20-foot wide right of way centered on the existing fence line.” In the field, the existing wire fence is 4 ft inside the easement's northerly line, and a neighbor's detached garage, built in 2003, extends 1.2 ft over the common boundary. The neighbor has used the garage continuously and mowed the strip. The buyer wants the fence removed and the garage corner cut off. The seller says “after 20 years they own it.” The title report shows no easement of record for the garage and no boundary line agreement. The property has been in the seller's family since 1978.
1. What are the elements of adverse possession under Hawaii law, and does the garage's 1.2-ft encroachment likely satisfy them? What is the surveyor's role versus the attorney's?
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Hawaii's adverse possession period is 20 years. The claimant must show possession that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period, along with any statutory tax-payment requirement. The garage has existed since 2003-about 21 years-and the encroachment is open and visible, but a 1.2-ft strip under the edge of a garage is a weak candidate for exclusive possession. The neighbor's mowing of the strip may or may not be exclusive. The surveyor's role is to locate the boundary, measure the encroachment, and document the physical evidence and dates; the surveyor does not decide title. The attorney must evaluate the legal elements, including hostility and exclusivity, and determine whether a claim exists. A survey map should not state that title has been acquired.
2. How should you treat the 20-ft access easement and the fence 4 ft inside it? Does the fence location change the easement's legal width?
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The easement is a 20-ft-wide strip centered on the existing fence line as described in the granting document. The fence is physical evidence of where the parties intended the centerline to be, but a fence later placed 4 ft inside the easement does not shrink the legal width. The easement remains 20 ft wide unless a court or a recorded instrument changes it. Map the easement lines from the deed description and the fence centerline as evidence. The 4-ft offset means the fence may encroach within the easement or may simply be a fence within the burdened strip, depending on which side it lies. The buyer's remedy is a legal question, but the survey should clearly show both the record easement and the fence so the attorney can evaluate obstruction and maintenance rights.
3. What evidence would you gather and what note would you place on the survey map regarding the encroachment and the easement?
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Gather the deed and easement documents, the subdivision or parcel map, building permits for the garage, any dateable aerial imagery, and physical evidence such as fence posts, corner monuments, and the garage foundation. Measure the encroachment from the record boundary and from any recovered monuments, and tie the fence to both the easement centerline and the boundary. On the map, label the garage encroachment as an “apparent encroachment, 1.2 ft, not a title determination,” and label the easement as a recorded 20-ft strip with the fence shown as a physical feature. Add a note that the fence is 4 ft inside the easement line and that the map does not determine adverse possession or prescriptive rights. Recommend that the buyer obtain a title report and legal review before demanding removal or closing the purchase.