Nhsc-v1-261

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nhsc-v1-261

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Finally, many kuleana plots liave been claimed by persons other than the original grantee and his heirs by adverse possession. Adverse possession is a legal principle that permits a person who has occupied the land for a statutory period in an open, hostile, notorious, and exclusive manner to claim title to that land. In Hawaii, the statutory period from 1870 until 1898 was 20 years; in 1898 it was reduced to 10 years. In 1973, it was changed back to 20 years (7A Hawaii Rev. Stats. §657-31). A 1978 law limits adverse possession for rights that mature in 1978 or thereafter to claims for real property under five acres, and to claimants who have not asserted a similar defense within the last 20 years (7A Haw. Rev. Stats. §657-31.5). Large landholders primarily have used adverse possession to absorb the enclosed kuleana of native Hawaiians. Native Hawaiians have been less able to use the doctrine to secure lands for themselves. One reason is that if a native Hawaiian remained on cultivated lands after 1850 but did not perfect kuleana rights, his tenancy was considered permissive rather than adverse, so he could not claim the land by adverse possession. To avoid problems in the future, kuleana owners could register their lands to prevent them from being taken by adverse possession, 59/ or could seek some reform in the adverse possession laws in the State. 60/ Adverse possession cannot be claimed for lands owned by the State or by the United States. Adverse Possession Adverse possession has been considered a problem for native Hawaiians in continuing kuleana land rights. (See discussion in the preceding section.) The benefits of the doctrine for native Hawaiians are shown in a recent decision by a Circuit Court in Hawaii. That case uses the principle to benefit smaller landholders against a large company and to help in dividing undivided common ownership interests. 61/ Every state has developed a law on adverse possession. It has been suggested that in Hawaii the concept developed because larger land owners wanted a means to increase their holdings by engulfing smaller plots owned by native Hawaiians. 62/ Genealogical Searches During the hearings, some concern was expressed about the difficulty and expense of undertaking genealogical research in order to establish qualifications for land that must be owned by those of native Hawaiian ancestry. Three circumstances related to land ownership could give rise to the need for such research: establishing a legal interest in land that may be recognized by courts in Hawaii today; 63/ qualification under the Hawaiian Home Lands program, which provides land to those of 50 percent or more native Hawaiian blood; and qualification under legislation, if any, which could in the future be passed to compensate native Hawaiians for their land claims. Such research may be expensive; in addition, without a central site for relevant materials, the research can be difficult indeed. The State or the Office of Hawaiian Affairs may be undertaking to resolve some of these problems. 64/ 261


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