Bill to alter ‘quiet title’ law advances

A bill that would help families fight lawsuits like recent ones filed by Facebook CEO Mark Zuckerberg to acquire ancestral lands in Hawaii by forced sale took its first step forward at the state Legislature on Tuesday, buoyed by Native Hawaiian organizations and individuals.

Among supporters of the measure were people who said their families lost land to the court action called “quiet title and partition” through which family members who own fractional stakes in land first conveyed as private property around 1850 by the Hawaiian government can be forced to sell their interests in such property known as kuleana lands.

“Quiet title is a legalized theft,” said Kapua Keliikoa- Kamai, who said her family lost about 5 acres on Hawaii island through the process. “This is something that we need to stop. Yesterday is not soon enough. Tomorrow isn’t promised. Today is when we need to act.”

The action Tuesday was taken by the House Committee on Ocean, Marine Resources and Hawaiian Affairs, which passed House Bill 860, which aims to amend Hawaii’s quiet title law.

Quiet title law allows anyone to file a lawsuit to have a court determine rightful owners of real estate, including kuleana parcels that commonly were passed to heirs of an initial owner and then on down through generations of descendants often in absence of a will, deed or recorded title documents.

As a result, such parcels with “noisy” titles can be shared by dozens or hundreds of relatives who have fractional interests that are vulnerable to a forced sale under a piece of quiet title law that allows a judge to auction the land to a single high bidder if the property can’t be physically divided among all owners.

To force a sale, which is called partition, a plaintiff has to own an interest in the property. There are cases where a family member will initiate partition, but other times it can be a wealthy outsider who convinces at least one family member to sell their stake as a way to force a sale by all owners.

That’s what Zuckerberg did on Kauai in three of eight quiet title lawsuits he filed in December in an attempt to acquire seven kuleana parcels totaling about 4 acres that lie within 700 acres the billionaire social media mogul bought two years ago for about $100 million. The five other cases sought to only validate old claims of ownership for another six parcels.

Zuckerberg ended his litigation in January after a public outcry, but a co-plaintiff in one case, Carlos Andrade, is still pursuing a forced sale of four parcels totaling 4 acres believed to be shared by more than 200 of his relatives.

Rep. Kaniela Ing, committee chairman, said the legislation he introduced would give defendants in partition cases a better chance to retain their land.

“It just takes away the thumb on the scale for the plaintiffs,” he said. “It seems like the quiet title process is weighted so heavily towards the plaintiffs. How do we give the defendants a fighting chance?”

HB 860 would mandate mediation between plaintiffs and defendants in quiet title partition actions and eliminate one provision in the law that critics say acts as a financial deterrent for kuleana land owners to contest such cases.

This provision allows plaintiffs to recover a lot of their attorney fees and costs from defendants. These expenses can total tens of thousands of dollars and even as much as $100,000 or $200,000 in contested cases with many defendants.

Jocelyn Doane, public policy director for the state Office of Hawaiian Affairs, said this provision has prevented family members from defending themselves in partition cases because the legal fees can be more than what a property is worth at auction.

“It’s kind of like extra salt in the wound,” she told the committee.

Ing added that defendants have had to consider whether they want to risk having a lien put on their house if they can’t pay what a judge determines to be their share of a legal bill that can involve high-priced lawyers hired by a plaintiff.

The premise for splitting fees among all parties in a quiet title case is that everyone benefits from having a judge legally defining who owns a property with unclear title. Ing agreed with that but said if a forced sale is part of the case, then having defendants share the legal costs incurred by a plaintiff isn’t right.

Keliikoa-Kamai said legal fees were a big reason why her family lost their land on Hawaii island. She said her family was hard-pressed to afford their own attorney, much less pay for expenses of the plaintiff.

“This idea of being able to claim somebody else’s land is hewa loa (very wrong),” she said.

Other supporters of the bill included the Hawaiian advocacy organization Ho‘omana Pono LLC and the political action committee of sovereignty group Ka Lahui Hawaii.

No one opposed the bill, but a few people expressed concerns with aspects of the measure. One such testifier was Michael Gibson, an attorney with Honolulu firm Ashford & Wriston who handles quiet title cases but wasn’t involved in the Zuckerberg litigation.

Gibson said he is OK with mediation but doesn’t think it will help. Gibson also said part of the bill that proposes to allow multiple quiet title cases filed by one plaintiff to be consolidated could be problematic. And he didn’t agree with having defendants share legal costs.

“At the end of the case, the court determines who the owners are, and it’s only fair that whoever benefited — who was determined to be an owner — pick up some of that cost of what the plaintiff originally had to pay,” he said.

One other piece of the bill would preserve a kuleana land owner’s access to the property for cultural or traditional practices even if a sale is forced.

The bill was passed without amendments and awaits a hearing by the House Judiciary Committee.