“I own a house on one acre in Hawaii. Directly behind us is a one acre flag lot parcel that was just purchased and then divided in two (a CCR, I think it’s called out here) by a developer who will build two houses, one on each (now) half acre parcel, to sell. The 15 ft. wide flag pole portion his lot–now shared, I believe, as a “common element” by the two 1/2 acre lots–runs 200 feet along the side of our property to the public road. Adjacent to this “pole” section is an easement, which is, without question, on our property. It’s 20 ft. across. In the “Declaration of Easements, Covenants and Restrictions,” this easement is described thusly: “Easement ‘A’, described in Exhibit ‘F’ attached hereto and incorporated herein by reference, is declared to be in favor of [the developer’s full acre flag lot, below our property] for utility, ingress and egress purposes over, under and across the easement premises. Said easement is a perpetual easement.” In the very next section, section 9 (under “Easements Within Residential Lots”) it reads, “All easements for installation and maintenance of utilities, drainage facilities, and road widening as shown on said Exhibit ‘B’ are reserved for the purpose and benefit of the subdivision and for dedication by the Declarant. Within said easements no structure, planting (other than ground cover), or material shall be placed, grown or permitted to remain therein which may damage or interfere with the installation and maintenance of such utilities, drainage facilities and road widening, or which may change the directional flow of drainage channels or swales.”
The developer plans to build a concrete driveway on the easement (Easement “A”), and place his utility lines along side, on the our- property side of the driveway. He has already bulldozed the entirety of the easement in preparation. He has a history of bulldozing over large segments of our backyard (having nothing to do with the easement), planting trees well into our property (ten feet on our side of the easement, thereby visually defining the easement land as belonging to his flag lot) and claiming that the easement (“A”) is actually his property (something not legally under question; the language is quite clear on this point. But he continues to claim ignorance on this matter). Therefore, a reasonable arrangement between neighbors is, unfortunately, unlikely. In addition to laying out the concrete drive, he plans to create a large entryway where the easement joins the public road and landscape to further (visually) associate the entire easement, as well as his untouched and unused 15 ft. wide, 200 ft. long flag pole, with his property, thus expanding his property footprint and increasing its market value while significantly diminishing ours. I have contacted the law office of the attorneys who drafted the document, and they refuse to clarify the intent of their language. An honest local lawyer has told us that the easement description is legally meaningless and therefore susceptible to the whims of whatever judge might be asked to interpret it. Do the words “ingress and egress” mean that my neighbor can pour a driveway on the easement? I can’t thank you enough for taking the time to read this and answer.”
I must begin with a caveat: As I’m sure you’re aware, even in a country where each state’s laws are unique, Hawaii’s property laws are more unique than most. I am therefore in large part guessing, since I do not practice in Hawaii. The honest local lawyer you refer to is in a much better position to give you advice than I am. That having been said, the general rule is that easement declarations, like any contract, are interpreted in light of the surrounding circumstances. In some circumstances, an ingress/egress easement owner would be entitled to pour a concrete driveway, and in others not. You are, unfortunately, looking at the equally-unappealing options of letting the developer do whatever he wants, or starting a potentially very expensive lawsuit. I would suggest spending a little money and asking your attorney whether there are any government agencies which would be interested in whether the developer is going beyond the boundaries of his property.