Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Second State Legislature

Regular Session of 2003

State of Hawaii

Sir:

Your Committee on Consumer Protection and Commerce, to which was referred S.B. No. 374, S.D. 1, entitled:

begs leave to report as follows:

The purpose of this bill is to clarify the de minimis structure position discrepancy tolerance that will be applied to structures built on property of undeterminable use that is owned by an owner's association.

A real estate broker, real estate attorney, and a land surveyor submitted comments on this measure and offered amendments.

The de minimis structure position discrepancy law provides some "give" in the property law. It applies to improvements legally constructed along what was reasonably believed to be the boundary line between properties, but which actually intrude onto the neighboring property. Under the law, so long as the intrusion falls within a specified number of feet, it will not be considered a zoning violation or other illegal trespass onto the neighboring property. The actual number of feet allowed is dependent on the type of property on which the improvement is constructed, e.g., agricultural, commercial, or residential property. The law also provides a clear allocation of responsibility for maintenance and repair of, and liability for, damages resulting from the intruding improvement.

This measure attempts to resolve issues that have arisen in situations where property is owned by an owners association and its use cannot be readily determined. This bill provides that the de minimis structure position discrepancy that applies is the discrepancy that applies to the abutting property.

However, your Committee finds that existing law already provides zoning classifications that may be readily applied to the property specified in this bill. In addition, the proposed solution may change existing property interests and expectations of landowners.

The interested parties worked together and presented to your Committee a compromise to address these concerns, which takes an alternative approach that focuses on liability and maintenance issues. Your Committee believes this compromise resolves the issues at hand and has amended the bill accordingly. Your Committee has also amended this bill by removing its July 1, 2099, effective date and making the bill effective upon approval.

As affirmed by the record of votes of the members of your Committee on Consumer Protection and Commerce that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 374, S.D. 1, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 374, S.D. 1, H.D. 1, and be placed on the calendar for Third Reading.