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Encroachments

Encroachments are intrusions onto one's property. An example of an encroachment is when a fence or wall extends beyond the owner's property line onto another owner's property.

In a sales transaction, a seller may discover that improvements for his property may be beyond his property line, or that the neighbor has built something that extends beyond the neighbor's boundary into the seller's property. A buyer may find that the property he is interested in purchasing has encroachment problems.

When one sells real property, the DROA provides that seller must convey good title to the buyer. An encroachment is deemed to affect the title. Encroachments problems can be addressed in a number of ways.

Encroachment problems became more common with the introduction of more precise survey instruments. There were so many problems, the legislature enacted a de minimus rule for residential real property. This rule provides that if the encroachment is six inches or less , the intrusion, by statute, is not deemed to be an encroachment and nothing further needs to be done. Most title companies, however, prefer that a written encroachment agreement be drafted, signed and recorded. This would remove any doubts and would set forth the responsibilities of the neighboring owners.

An encroachment agreement is a relatively simple agreement between the two adjoining property owners. The property owners acknowledge the encroachment. The owner who is encroaching agrees to maintain the encroachment and to hold the other owner harmless from any damage that might be caused by the encroachment. The encroaching owner further confirms that no claims of ownership are being asserted against the property upon which he is encroaching. The owner, on whose property there is the encroachment, agrees that the improvements can remain where they are. Encroachment agreements are signed by all the owners of the properties involved. The fully signed and notarized encroachment agreement is recorded in Land Court or the regular system, depending upon the property. The encroachment agreement is binding on all future owners. It is intended to be a permanent remedy to the problem.

If there is a good relationship between the parties, an encroachment agreement usually does not present a problem to secure. The encroachment agreement clears any title concerns for both neighbors' properties.

Difficulties may arise if there is a poor relationship between the neighbors. If either of the neighbors is unwilling to sign an encroachment agreement and if the encroachment is greater than six inches, the de minimus rule would not apply. The party who is encroaching then faces the prospect of removing the encroachment.

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DO'S AND DON'TS FOR LANDLORDS

DO:

1. Have the premises ready for occupancy on the first day. If you don't, the tenant is not liable for the rent, could cancel the lease and recover damages from the landlord in an amount necessary to secure adequate substitute housing.

2. You must make the appropriate disclosures. Disclose in writing the person who is authorized to manage the property. This person must live on the island where the property is located. Disclose who is authorized to accept service of process and to receive the rents. Provide the tenant with a copy of the lease agreement. Provide written receipts for rent paid (a cancelled check fulfills this requirement), unless a receipt is requested by the tenant. Disclose the landlord's General Excise Tax number. The landlord who fails to disclose, within 10 days after the tenant's demand, shall be liable to the tenant for $100 plus reasonable attorney's fees and costs.

3. Check tenant's references. Ask the tenant for recent references and actually call the references. The information you receive might help you avoid problems and financial losses.

4. Promptly make repairs of the premises and appliances. Depending upon the nature of the problem, the tenant could make the repairs and deduct up to $300 for work done to correct health and safety violations.

5. If a tenant is delinquent, have your attorney do a five-day demand letter. If this is not done properly, you may have to do this all over again, including the time and expense of refiling the complaint.

6. Notify the tenant in writing if you intend to keep any part of the security deposit. The landlord must send a letter to the tenant within fourteen (14) days after the premises is vacated by the tenant. It should be sent to the tenant's last known address and should include the reasons for any retention of the security deposit and include receipts, and estimates for repair or cleaning.

7. Do not rent substandard premises for a discounted rent. The landlord will still be subject to a variety of health and building code violations.

8. The rental agreement should be in writing. The standard Rental Agreement available at the Honolulu Board of Realtors at 1136 12 th Ave., Suite 200, Honolulu, Hawaii 96816 is a good form and is inexpensive.

9. Prepare an inventory of the furnishings and items included in the rental. This will help minimize disputes as to what was included with the rental.

10. Document the condition of the premises and furnishings. Many landlords now take videos or pictures of the premises both before renting the premises and at the termination of the lease.

11. Provide tenant with copies of any house rules, association requirements and regulations. Have the tenant sign a receipt to address the potential response, A I never knew that was the rule. @ .

DON'T :

1. Do not lock out a delinquent tenant or turn off the utilities. A landlord could be liable to the tenant for two months' rent and the cost of the suit, including reasonable attorney's fees.

2. Do not allow tenants to become delinquent for long periods of time. It has been our experience, the longer the delinquency, the less likely the landlord will ever recover any delinquent rent.

3. Do not make suggestions or comments which might be interpreted as bias or prejudice. Be careful of even casual inquiries, because they may be perceived as being prejudicial based on race, religion, gender, country of origin, disability or HIV status.

4. Except for emergencies, do not enter a tenant's premises without giving the tenant the requisite prior notice. The landlord may be liable to the tenant for any theft, casualty, or other damage caused by the entry into the dwelling unit and possibly a fine of up to $100.

5. Don't delay in returning the security deposit to tenant. If the security deposit is kept beyond 14 days without the requisite notice (see #6 above), the landlord cannot keep the security deposit and the tenant can sue the landlord in Small Claims Court and can recover up to three times the amount of the security deposit and the costs of suit.

6. Don't dispose of tenant's properties without following the applicable rules for abandoned possession. The landlord runs the risk of a subsequent claim by the tenant for loss of value. The claim for loss of value is often substantially higher than the landlord would expect. Preparing an inventory and condition report and taking pictures of the property and the furnishings would be useful.

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FROM THE DESK OF HAROLD CHU

The holiday season is now upon us. It's hard to believe that another year has passed. As we experience the joys and activities of the holiday season, take time to remember your loved ones and families. Cherish the time you have with them and make sure they understand how you feel about them. Time and life pass by so quickly. It shouldn't be wasted.

Survey and encroachments are common problems encountered in the sale and the purchase of real property. In this newsletter, we have included articles on survey and encroachment concerns. We also have some suggested Do's and Don'ts for landlords.

We will be closed on the following days:

. Thursday, December 23, 2004 from 12:00 noon through Sunday, December 26,

2004 (Christmas Holiday)

. Thursday December 30, 2004 from 12:00 noon through Sunday, January 2, 2005

(New Year's Holiday)

Thank you for your business and for your support. We have included a calendar as a small token of our appreciation. On behalf of myself and my staff, we wish you a joyous holiday season and best wishes throughout the New Year.

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  How do you say "Merry Christmas" in:

> Chinese:

(Cantonese)?

"Saint Dan Fai Lok"

(Mandarin)?

"Kung His Hsin Nien bing Chu

Shen Tan"

> Filipino:

Tagalog?

"Maligayang Pasko"

Ilocano?

"Naimbag nga paskua yo"

> French?

"Joyeux Noel"

> German?

"Froehliche Weihnachten"

> Greek?

"Kala Christouyenna"

> Hawaiian?

"Mele Kalikimaka"

> Italian?

"Buone Feste Natalizie"

> Japanese?

"Shinnen omedeto. Kurisu

masu Omedeto"

> Korean?

"Sung Tan Chuk Ha"

> Portuguese?

"Boas Festas"

> Russian?

"Pozdrevlyayu s prazdnikon

Rozhdestva is Novim Godom"

> Samoan?

"La Maunia Le kilisimasi Ma Le

Tausaga Fou"

> Spanish?

"Feliz Navidad"

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FLOOD AND HURRICANE INSURANCE

The recent flood in Manoa and the University of Hawaii is a reminder of how much damage a flood can cause.

If your property is in a flood zone, you should check your homeowner's liability policy. Most homeowner's policies specifically exclude damage from floods. If your policy does have such an exclusion, we suggest that you consider contacting your insurance agent and inquire about the possibility of obtaining flood insurance.

Similar precautions should be taken with respect to hurricane insurance.

Please note that since Christmas and New Year fall on a Thursday, our offices will be closed on the following dates during this holiday season:

Wednesday, December 24, 2003 (from 12:00 noon )

Thursday, December 25, 2003 (all day)

Friday, December 26, 2003 (all day)

Wednesday, December 31, 2003 (from 12:00 noon )

Thursday, January 1, 2004 (all day)

Friday, January 2, 2004 (all day)

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SURVEY vs. STAKING

In the purchase of single family property, the buyer has a choice between staking and survey. The average lay people may not understand the difference between these two concepts.

In staking, the boundaries of the properties are identified by placing stakes or pins in the ground or by painting marks on stone walls or rocks. There is no determination of the exact perimeter of the property. In staking, it would be difficult to determine if there is an encroachment unless an encroachment happens to be on or near the stakes.

In a survey, the boundaries are measured to establish the exact perimeter. This is especially important for properties which have irregular or unusual boundaries.

When there is a choice, it is our recommendation that a survey be done. While a survey costs more than a staking, the survey would determine if there are any encroachment problems before the buyer purchases the property. If the survey does reveal an encroachment, this can usually be addressed. Please see the accompanying article on encroachments.

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Thank you for your business and support. May Peace, Joy, Hope and Happiness be yours during this Holiday Season and throughout the New Year

Harold

Cora                      Jan  

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Copyright © 2009 by Harold Chu. All rights reserved.

The information you obtained at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.