Zuckerberg suits rely on concept some revile

In his quest to create a secluded, tranquil estate on Kauai, Facebook CEO Mark Zuckerberg has run into a messy problem that involves publicly advocating for something Native Hawaiians often regard as an injustice equated to stealing land.

This is the picture now emerging from previously unreported details in seven of the eight lawsuits Zuckerberg filed last month asking a state judge to declare that nine small land parcels he claims to own were properly acquired by prior owners who may have gained ownership just by using the land for decades without opposition.

Acquiring land in this fashion is known as adverse possession, and is legal in Hawaii if someone can show they continuously used real estate openly and without objection from a legal owner for at least 20 years, or 10 years if it was before 1973.

Adverse possession has a negative connotation in Hawaii history because it was used by powerful agribusinesses, including sugar cane plantations and ranches, to take land from Native Hawaiians, sometimes by preventing access to legal owners.

According to a University of Hawaii Center for Excellence in Native Hawaiian Law primer on this area of law: “The doctrine of adverse possession is based on the Western idea that title to property should not remain uncertain or in dispute for long periods of time. Some Native Hawaiian rights advocates have argued that the doctrine of adverse possession should be abolished, as it is a legal concept foreign to Native Hawaiians.”

Mililani Trask, a local attorney and former Office of Hawaiian Affairs trustee, summed up adverse possession as something that disenfranchised and dispossessed Hawaiians from their lands and associated resources.

“Adverse possession was a Western legal tool used to steal native land,” she said in an email. “This Western legal principle was incomprehensible to Hawaiians who had no concept of private ownership of land; rather they viewed (land) as a collective blessing to be cared for by each generation in its time.”

Zuckerberg, who filed his lawsuits on Dec. 30, announced Tuesday that he is reconsidering the legal action and is discussing how to move forward in a way that protects property owner interests and respects Native Hawaiian traditions.

The reconsideration followed much criticism based on details from just one of the eight lawsuits filed under a section of Hawaii law known as quiet title. This lawsuit involves an attempt by Zuckerberg to acquire whole ownership of four parcels totaling 2 acres that for generations have been owned by descendants of an immigrant Portuguese sugar cane plantation worker named Manuel Rapozo, who bought the land in 1894.

More than 200 Rapozo descendants supposedly own fractions of an interest in the property, which is contained within 700 acres of rural land on Kauai’s north shore that Zuckerberg bought two years ago for about $100 million.

Under quiet title law, Zuckerberg can ask that the land be sold at public auction because it can’t be physically divided among all owners. Zuckerberg has standing to do this because he bought shares in the Rapozo lands from several willing family members amounting to a 24 percent stake, according to the lawsuit.

One prominent Rapozo family member and major owner who is part Hawaiian, retired UH Hawaiian studies professor Carlos Andrade, has joined Zuckerberg as a plaintiff.

In a Facebook post last week, Zuckerberg emphasized that his legal action would result in Rapozo family members receiving payment for something many of them don’t know they even have.

Zuckerberg also said no one is using or living on any of the 13 parcels targeted in the eight lawsuits.

“No one will be forced off the land,” Zuckerberg said in his Facebook post.

The 13 parcels are important to Zuckerberg because they lie within his 700-acre estate and give every owner rights that include access to the property and water as well as residential use.

Unlike the lawsuit involving the Rapozo family land, the other seven lawsuits all make adverse possession claims.

One case claims two beachfront parcels totaling about one acre were deeded in 1851 to a Hawaiian man named Kane, who had no surname, as was tradition in old Hawaii.

Kane’s land, like the other parcels in Zuckerberg’s quiet title lawsuits, are kuleana lands that were originally awarded to commoners who typically had farmed the land and were awarded ownership by Hawaiian monarchy officials under the Kuleana Act of 1850.

In the Kane case, attorneys with the Honolulu law firm Cades Schutte LLP representing Zuckerberg contend that there is no record of Kane conveying his interest to anyone and that he died without heirs in an unknown year without a Bureau of Health and Vital Statistics record.

If this is correct, Kane’s land would have reverted to the konohiki, or overseer, of the surrounding mountain-to-sea land division known as an ahupuaa. The lawsuit said William Lunalilo, who later would become king, was that konohiki, and that from there ownership of the land passed through different owners, ending with Zuckerberg.

The lawsuit doesn’t detail any of this ownership succession, which could later be presented as evidence in the case.

However, other people recorded deeds claiming ownership of the same beachfront property, according to the complaint. One such deed was recorded in 1928 by William Kaiwi Kolo, who the lawsuit said descended from a Hawaiian man named Papalauahi or Paul Papalauahi Kamani. The lawsuit identifies about 130 living descendents of Papalauahi who would own fractions of an interest in the two parcels if Papalauahi is recognized as an owner, which the lawsuit argues isn’t correct.

Even if relatives of Papalauahi can prove an ownership link to the property in court, Zuckerberg’s lawsuit said it can be shown that someone else prior to Zuckerberg adversely possessed the land and therefore established a chain of legal title that was conveyed as a piece Zuckerberg’s purchase of almost 400 acres from retired Hawaii car dealer Jimmy Pflueger for more than $55 million.

In another case, Henry Kalionui reportedly inherited two kuleana parcels totaling 1.6 acres when J.W. Kalionui (also known as Palinui or Palionui) died in 1867. But when Henry Kalionui died in 1913, the lawsuit said the land either reverted to Lunalilo as the area’s konohiki or was adversely possessed by a man named Piikalama and his wife, Kaluli, who recorded a deed for the land in 1890.

Property records show that Zuckerberg bought one of these two parcels containing a 522-square-foot home along with another parcel for $336,800 from Heidy Huddy-Yamamoto, a descendent of Piikalama and Kaluli who reportedly acquired the parcel by adverse possession. Zuckerberg bought the second parcel from Pflueger, who had bought it from Huddy-Yamamoto in 1998.

The lands once owned by Kane and Kalionui are classic examples of Hawaii real estate with so-called “noisy” titles that involve competing ownership claims or largely undocumented ownership. Such noisy titles can be “quieted” or settled by a judge under the quiet title law.

Moses Haia III, an attorney with the Native Hawaiian Legal Corp., said there are holes in some of Zuckerberg’s complaints because some contend that kuleana parcels reverted to Lunalilo as konohiki. Generally in such cases, Haia said, the land should belong to the state Office of Hawaiian Affairs if there is no adverse possession claim that can be proved.

Three cases contend that descendants of original private owners of kuleana parcels within Zuckerberg’s estate deeded all interests to Kilauea Sugar Co. and that this ownership passed through subsequent owners to Zuckerberg.

In one of the seven cases that is most similar to the first one that gained widespread media coverage, Zuckerberg acquired about 90 percent of fractional shares in a 1-acre parcel from Falko Partners, a California company that bought the shares from individual owners and sold Zuckerberg its interest in the parcel along with 325 acres of surrounding land. About 20 other owners, according to the lawsuit, own the 10 percent balance of the small parcel that Zuckerberg could use quiet title to acquire at auction.

Yet even in the former Falko property and the three cases in which Kilauea Sugar recorded deeds, Zuckerberg’s attorneys contend that adverse possession is an alternate reason for determining that Zuckerberg is the rightful owner.

“The claims of all persons of an estate or interest in the parcel, adverse to (Zuckerberg’s) fee simple title, are barred by adverse possession,” the seven complaints say.

W. Keoni Shultz, a Cades Shutte attorney representing Zuckerberg, said it would be inappropriate and perhaps misleading to comment on the quiet title actions involving adverse possession because Zuckerberg is reconsidering his legal action.

Haia suspects that if the cases are advanced, then much more ownership information will be obtained and presented in court. “They’re going to have to show how title reaches Zuckerberg’s entities,” he said. “I doubt they (have) reached the tip of the iceberg.”

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Clarification: Generally when a kuleana land owner dies without an heir, the property should belong to the state Office of Hawaiian Affairs provided no adverse possession claim can be proven, according to Native Hawaiian Legal Corp. attorney Moses Haia III. The adverse possession condition was not mentioned in an earlier version of this story and the version in Thursday’s print edition.