Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the January 14, 2014 mailing of "Constructive Notice":

Adverse Use As Termination of Unopened Easement

In a case of first impression, the Hawai`i Intermediate Court of Appeals has determined that an express, albeit unopened, easement might be terminable by an adverse use of the servient parcel. Childs, et al. v. Harada, et al., 130 Haw. 387, (ICA, 2013).

The Court analyzes precedent from jurisdictions across the U.S., beginning with the NY Appellate Division case of Castle Associates v. Schwartz. It announces a test that centers on the nature of the impediment. On the one hand,where the nature of the servient estate owner's use of the easement is a readily removed or dismantled impediment, obstruction, or such, the prescriptive period does not run against the dominant estate until a demand to open the easement area is made. The Court also held, however, that courts must determine whether the servient estate's use or improvement of an easement is so completely irreconcilable with the dominant estate's future interest in the easement that the prescriptive period is triggered.

One key fact in the case involved the obstruction posed by a hoshidana, a large, heavy coffee-drying structure not permanently affixed to the ground.


The Courts characterization of the dominant estate as a future interest is troubling. While the Court commends the Castle Associates approach, this formulation doesnt provide much guidance for the parties. Despite the September opinion date, the case is not yet ripe for further appeal due to procedural matters. In the meantime, it makes for interesting reading in an area of law that is seeing increased litigation. (N.B.: This is a lengthy opinion that addresses many issues in addition to termination.)