What Is an Easement, and How Does It Affect My Property Rights?
Short answer: An easement gives someone else a legal right to use part of your property for a specific purpose, like a driveway or utility line, even though you still own that land. It doesn't transfer ownership, but it can genuinely limit what you're allowed to build or do on that portion of your property, and it typically stays with the land even after you sell.
5 minute read: Below I'll explain what an easement actually is, the different ways they're created under Hawaii law, and the mistakes I most often see buyers make when they overlook one.
Why This Matters
On Kauaʻi, easements affect more properties than most buyers expect, especially on CPR units, agricultural parcels, and older subdivisions. Whether a property has an easement, and where exactly it sits, can affect:
- Where you're allowed to build a fence, structure, or ADU
- Who's responsible for maintaining a shared driveway or utility line
- Whether you can gate or restrict access to part of your own land
- Your relationship with neighbors who rely on that access
- How easily the property will sell later, since unresolved easement disputes can complicate a sale
In Plain English
Imagine your neighbor has a permanent, legal pass that lets them walk or drive across a strip of your yard to reach their own home, even though you own that strip of land outright. You can't block that pass or build across it, even though your name is the one on the deed. That's essentially what an easement is: a legal right for someone else to use part of your land for a specific purpose, without actually owning it.
The Details
Hawaii recognizes several ways an easement can come into existence, and each behaves a little differently.
| Type | How It's Created |
|---|---|
| Express (recorded) | Written and recorded at the Bureau of Conveyances, the clearest and most common type |
| Implied | Arises when land under one owner is later divided, and circumstances show an easement was intended |
| By necessity | Applies to landlocked parcels, particularly ancient tenancies or kuleana lands traceable to the Great Mahele, under HRS Section 7-1 |
| Prescriptive | Established through open, continuous, adverse use of another's land for 20 years, the same period required for adverse possession under HRS Section 657-31 |
Easements are also classified by who they benefit. An easement appurtenant runs with the land, benefiting whoever owns the neighboring property, and it transfers automatically when either property is sold. An easement in gross benefits a specific person or entity, most commonly a utility company, rather than a neighboring parcel.
Recorded easements appear on a property's title report and are typically referenced in the deed. On CPR properties, they're also frequently spelled out in the CPR Declaration and condominium map, since shared driveways, water lines, and utility corridors are exactly the kind of feature a CPR is built around.
Common Misconceptions
What I Tell My Clients
Before writing an offer on any property with a shared driveway, agricultural access road, or CPR designation, I always pull the recorded easements and, where applicable, the CPR Declaration and condominium map. It's not enough to see how much land is on the tax map. What matters is what portion of that land you can actually use without restriction, and what portion is legally committed to someone else's access or utility needs. That distinction has changed more than one client's decision about where to place a future ADU or addition.
Frequently Asked Questions
Generally no, not if it would block the easement holder's ability to use it for its intended purpose. Doing so can expose you to legal action to remove the obstruction.
This depends on the recorded easement document or, for CPR properties, the Declaration and any maintenance agreement among the unit owners. It's rarely automatic, so check the actual paperwork rather than assuming a 50/50 split.
Recorded easements should appear on your title report and are generally considered part of the public record regardless of disclosure. This is exactly why title insurance and a careful title review before closing matter.
Sometimes, through a recorded release signed by the easement holder, abandonment in some circumstances, or a court action. It's not something a property owner can simply revoke unilaterally.
A right-of-way is a specific type of easement, one that grants passage across land, typically for a road or driveway. All rights-of-way are easements, but not all easements involve passage, some cover utilities, drainage, or conservation instead.
Related Articles
Sources
Hawaii Revised Statutes Section 7-1 (rights of native tenants) and Section 657-31 (twenty-year period for recovery of possession of land, applied to prescriptive easements)
Lalakea v. Hawaiian Irrigation Co., Ltd., 36 Haw. 692; Malulani Group, Ltd. v. Kaupo Ranch, Ltd., 329 P.3d 330 (Haw. 2014)
This article is intended for educational purposes only and does not constitute legal advice. Easement rights are highly fact-specific and depend on recorded documents, historical use, and individual circumstances. Buyers and owners should consult a qualified real estate attorney and review a current title report before making decisions involving an easement.
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