Customary and Traditional Hawaiian Rights

Pictured home: 34-1471 Hawaii Belt Road, Papaaloa, HI 96780

I recently read about an agent who specializes in sales of lakefront property. He mentions consideration of water depth, shallow spots, idle zones, channels and big water views as things buyers and sellers in his market should consider. I have to be honest, even though I grew up on a huge river, I’d never heard of some of these issues. I found myself thinking how lucky his clients are that their agent really knows the area.

Of course, on Hawai`i Island, we have quirky issues like catchment, SSPP participation, lava tubes, lava zones, tsunami evacuation/inundation areas, and special management areas to name a few. These are actually fairly straightforward, easy to understand issues.

Customary & Traditional Rights

Unfortunately, the issue of “Customary and Traditional Hawaiian Rights” isn’t quite so simple to explain. In fact, without an astute agent, it’s an issue that sometimes slips in as an exception to the title insurance coverage.

Native rights have two sources:

1. The Grant 

One emanates from the original grant and is therefore contained in the original chain of title. This type of reservation is almost impossible to remove.

2. The PASH

The other type is a reservation established by law and by a Hawaii Supreme Court Decision commonly referred to as PASH. In a nutshell, these reservations mean that individuals of Hawaiian ancestry (and possibly others) who have traditionally entered and used the property for customary and traditional practices may have the right to continue doing so. Traditional practices are generally for subsistence gathering access (for instance, to gravesites) and for cultural and/or religious purposes.

The list and interpretation is fairly broad, however the right to enter the property of others is rarely exercised because establishing historical use really isn’t so simple. Properties subject to PASH, for instance, have a limitation to “undeveloped” and “underdeveloped” parcels. In East Hawai`i, we most commonly see these exceptions north of Hilo and most commonly on larger pieces of land. This is not universally true. I’ve seen the exception even on a residential property.

Title & Insurance

While the reservation may never become a practical problem, it’s often an issue with lenders. Some title companies will “insure over” the exception. This basically means that they will issue the title insurance policy but if they will not cover claims related to the omitted issue.

This is commonly done when a structure encroaches into a setback, for instance. PASH reservations are sometimes removed by providing proof to the title insurer that there are no archeological, graves, or historical sites on the property. Other considerations would be the existence of physical features such as streams, trails, gulches, or fishponds included on maps or historical documents. The proximity to ceded lands, the ocean, heiau/other archeological sites and a determination of development status of the property are other considerations. Title companies use various methods for determining if an exception can be removed.

For those considering a purchase (especially) along the Hamakua Coast, it’s a good idea to ask the seller’s agent for a preliminary title report from the get-go.

One thing is for sure, I won’t be buying property on Morse Lake without REALTOR® Andy Sheets who specializes in that area. After all, hiring a local expert really provides the best insurance against making your best buying and selling decisions.