Hawai‘i Life, Hawai‘i Law Matters
Hawai‘i Supreme Court Makes State and Private Property Owners Jointly Responsible For Seawall
Oct 13, 2017
In the case of Gold Coast Neighborhood Association v. State of Hawai‘i, SCWC-14-0000472 (Aug. 25, 2017), the Supreme Court of the State of Hawai‘i held that, through decades of public use coupled with the State’s prior repair and maintenance of a seawall on private property, the State acquired an easement over it and thereby a joint responsibility with the private property owners to maintain the seawall.
HISTORY OF THE SEAWALL
The Gold Coast case concerns the section of a seawall bordering eleven properties along Waikiki’s “Gold Coast” that is in a state of disrepair. Although privately built, the seawall has been used by members of the public to access the ocean and walk along the coast since approximately 1930. As far as anyone could recall, the private property owners allowed the public to freely use the seawall and never attempted to restrict access to it. Over the years, beginning as far back as 1975, the State of Hawai‘i recognized the seawall as a public walkway and repeatedly admitted a duty and responsibility to maintain it. For example, in 1975, the then-Deputy Attorney General stated that given “[t]he use by the public of this right of way since 1930 . . . the State has the responsibility to maintain the public right of way over the seawall.” Similarly, in 1992, the Department of Land and Natural Resources stated that “[t]he State of Hawai‘i has a right-of-way over all the seawalls and walkways and is responsible to keep them in good and safe condition.” Consistent with these statements, the State completed repair work and construction on the Seawall on several occasions beginning in 1982. In 2006, the Hawai‘i State Legislature appropriated funds to further repair the seawall, but the State ultimately declined to repair the wall, taking the position that the seawall is private property that the State has no duty to maintain.
In June 2007, the property owners—through the Gold Coast Neighborhood Association (“GCNA”), a non-profit organization whose members include the managers of the buildings abutting the seawall—filed suit seeking a declaration that the State is required to keep the seawall in good and safe condition.
LOWER COURT RULINGS
Following a bench trial, the Circuit Court ruled in favor of the Plaintiff, finding (a) that the State had acquired an easement over the seawall by implied dedication, a common law doctrine through which private property can be dedicated for public use, and (b) that the seawall and the property under it had been “surrendered” to the State by operation of H.R.S. § 264-1(c)(2). Along the way, the court rejected the State’s argument that the GCNA was an improper party and that the private property owners were the only proper plaintiffs. Though ruling in favor of Plaintiff, the Circuit Court held that Plaintiff could not recover attorneys’ fees and costs because the State had not waived its sovereign immunity.
The Intermediate Court of Appeals (“ICA”) affirmed the Circuit Court’s ruling on both implied dedication and surrender, but reversed the Circuit Court with respect to attorneys’ fees and costs, holding that GCNA was entitled to recover both.
THE HAWAI‘I SUPREME COURT’S DECISION
In a split 3-2 opinion, the Hawai‘i Supreme Court held that the state had acquired an easement “over and across” the seawall through the common law doctrine of implied dedication, but that statutory surrender was inapplicable, such that the seawall and underlying land remained the property of the private landowners. With respect to implied dedication, the Court explained that this common law doctrine prevents a property owner from denying public access where the owner has “admitted the public to use the land over a long time.” The Court did not specify the exact amount of time required for an implied dedication to occur, but stated that, at a minimum, the public’s use of the land must continue for longer than the period required for adverse possession, which is currently twenty years. The State’s principal argument against having acquired an interest in the seawall through implied dedication was that it never formally consented to any such dedication or accepted the property. The Court rejected that argument, holding that while the State’s acquisition of an interest in land through implied dedication requires both an “offer” by the property owner and an “acceptance” by the State, the offer and acceptance could be implied by the circumstances. In this case, given the public’s extensive use of the land for an extended period of time, and the State’s own statements and repeated repairs of the seawall, the Court concluded that an implied dedication had occurred. However, only the portion of the land used by the public is subject to the implied dedication, and therefore, the implied dedication resulted in an easement in favor of the State “over and across the seawall” and a concomitant “right and duty” of the State only to maintain that area—i.e., the surface of the seawall.
With respect to statutory surrender, the Court vacated the ICA’s conclusion, holding instead that the seawall and the real property underneath it had not been surrendered to the State pursuant to H.R.S. § 264-1(c)(2). Rather, the Court held that, in the case of a seawall, surrender requires a preexisting easement in favor of the State over the state opening up the seawall as a public pathway. For the most part, that was not satisfied in this case. There was, however, an express easement over a small portion of the seawall that spanned one of the eleven parcels of land, but that parcel had been registered in land court, and the surrender statute does not apply to property registered in land court.
The end result is that the State owns an easement over and across the seawall, but the private property owners retain ownership of the seawall itself and the underlying real property. The easement gives the State the “right and duty to maintain the surface of the seawall over and across which it has an easement.” However, the Court further held that the state was not solely responsible for the maintenance. Rather, following the general rule that joint use of an easement creates a joint obligation to repair and maintain property, the Court held that “the State in this case will be jointly responsible with the relevant property owners for the repair and maintenance of the Seawall—over and across which the State has an easement—in accordance with equitable considerations relating to their relative use, enjoyment, and contributions to the Seawall.” The Court remanded the matter to the trial court to determine the proper apportionment between the parties.
With respect to the ancillary issues, the Court also rejected the State’s argument that the actual property owners were missing indispensable parties to the litigation. The Court held that, pursuant to statute, the managers of the apartment and condominium associations were entitled to represent the interests of the property owners in litigation. As the manager of each property was a member of GCNA, the GCNA could fully represent the interests of the owners. Finally, the Court held that the State did not waive its sovereign immunity in filing a cross-complaint for declaratory relief, and thus could not be required to pay GCNA’s attorneys’ fees. The State is liable for GCNA’s costs, however, because the State’s sovereign immunity for that issue is statutorily waived by H.R.S. § 607-24.
The Hawai‘i Supreme Court’s opinion in this case establishes two ways in which, under certain circumstances, property owners may be able to get assistance from the State in maintaining and repairing seawalls on their properties. With sea levels rising, this case could potentially have major implications around the state.
This article was written by Nicole Altman with contributions from Brett Tobin.