Customary and Traditional Hawaiian Rights

I once read about an agent who specializes in sales of lakefront property. He mentions considerations 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 Hawaii 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. 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 title insurance coverage.

Native Hawaiian Rights

Native rights have two sources. 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. The other type is a reservation established by law and 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, visiting gravesites, or for cultural and/or religious purposes. The list and interpretation are fairly broad; however, the right to enter the property of others is rarely exercised because establishing historical use really isn’t so simple.

Implications for Real Estate on Hawaii Island

Properties subject to PASH, for instance, have a limitation to “undeveloped” and “underdeveloped” parcels. In East Hawaii, we most commonly see these exceptions North of Hilo on larger parcels. This is not universally true. While the reservation may never become a practical problem, it can be an issue with lenders. Some title companies will “insure over” the exception. This basically means that they will issue title insurance but will not cover claims related to omitted issues.

PASH reservations are sometimes removed by providing proof to the title insurer that there are no archeological, graves, or historical sites on the property. There are other considerations as well. For those considering a purchase, especially along the Hamakua Coast, it’s a good idea to ask for a preliminary title report from the get-go.

The Value of Local Expertise

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.