Big Island

EZ Access

We often take getting into our driveways for granted. In most places, homes generally front roads owned and maintained by the local municipality. However, on our island, easements and flag lots are very common.

What Is an Easement?

An easement is a straightforward arrangement where one landowner allows another to cross their property, either for ingress and egress or to bring in utilities. Affected landowners must formally agree, and a legal document describing the agreement should be filed with the Bureau of Conveyances. Otherwise, a subsequent or disgruntled landowner could revoke the use.

Easements may also be created by legal action through habitual or prescriptive use. They are generally said to be “appurtenant” or to “run with the land,” meaning they pass to subsequent owners. This differs from Easements in Gross, which are individual rights typically granted to utility companies. In some cases, Easements in Gross are granted to individuals. When this happens, the easement is extinguished with an event such as the death of the grantee or beneficiary. The land area of the easement still belongs to the grantor.

What Is a Flag Lot?

A “flag” lot might look like an easement on the ground, but the portion of the property connecting the roadway to the lot is actually part of the lot itself and is included in the total land area. Flag lots are created during subdivision and are usually shown on tax maps. However, tax maps are not always the most reliable for determining access, as they are not redrawn with every change.

The legal description of the property is the only reliable method of determining access. Although survey maps should note easements, they often may not because easements are usually necessary but not part of the property. Easements should always be noted in the title report. There should be a notation of “together with” or “subject to” on the encumbered property. I always recommend requesting a title report for the encumbered or subject property as well.

The Complexity of Access

Properties fronting public roadways may not specifically address access. However, access can sometimes be extremely complicated, involving a group of easements or a combination of public roads, easements, and flag poles. It’s always a good idea to have an attorney verify that your access is fully and legally noted in public records.

A Word of Caution About Paper Roads

A final word of caution relates to “paper” roads. Title policies are written based on recorded access, which may not physically exist on the ground. Before you buy, be sure that a road actually exists.

Whether your access is through pastures and gates, down streambeds, along shared roadways, or just a simple right turn off a public road, access may not always be easy—but it’s 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.

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