Eminent Domain in Hawaii: The Property Owner’s Guide

Hawaii fixes the value of your property on the day you are served, which means the market can move for years while your case proceeds and none of that movement belongs to you unless the statute’s interest provisions make you whole.

The law that governs takings in Hawaii

Hawaii’s eminent domain law is codified at Chapter 101 of the Hawaii Revised Statutes, in Title 9. HRS section 101-2 authorizes a condemning authority to take private property for public use, and section 101-52 addresses the proceedings authorized for particular condemnors.

Hawaii’s public use doctrine has an unusual history. In Hawaii Housing Authority v. Midkiff, the U.S. Supreme Court upheld an expansive reading of public use, effectively equating it with public purpose as defined by the state legislature. That 1984 decision laid the groundwork for Kelo, and Hawaii did not follow other states in enacting reform legislation after Kelo was decided. Owners here should expect public use challenges to be difficult and should focus their effort accordingly.

Who can take property in Hawaii

The State of Hawaii, the counties of Honolulu, Hawaii, Maui, and Kauai, the Hawaii Housing Finance and Development Corporation and related agencies, the Department of Transportation, and utilities hold condemnation authority. Because Hawaii’s land tenure history produced a body of law comfortable with substantial state intervention in land ownership, the range of purposes recognized as public here is broader than in most jurisdictions.

The condemnation process in Hawaii, step by step

A condemnation action is filed in circuit court. Service of the summons is the pivotal event, because under Hawaii law the right to compensation and damages accrues at the date of summons, and actual value at that date is the measure of valuation for all property to be condemned.

The case then proceeds to a determination of just compensation. When all payments required by the final judgment have been made, the court makes a final order of condemnation describing the property condemned and the purposes of the condemnation, and registration of the deed is a condition precedent to vesting of title.

Possession and deposits

HRS section 101-29 provides for possession pending the action and an alternative procedure, and section 101-30 governs orders of possession. Section 101-31 addresses payment of estimated compensation and its effect, and section 101-36 covers the certificate of deposit of money in court and notice of lien.

Because valuation is fixed at the date of summons but possession and payment can come much later, interest matters more in Hawaii than in states that value at the date of taking. HRS section 101-33 addresses the allowance of interest, and how it is calculated on your award is worth understanding before you agree to any schedule for resolving the case.

What just compensation includes in Hawaii

Hawaii compensates the actual value of the property as of the date of summons, plus severance damages to any remainder in a partial taking, offset by special benefits.

The date-of-summons rule cuts in both directions and property owners should be alert to it. In a rising market, a long case means the award reflects a value that is stale by the time it is paid, and the interest allowance is what closes that gap. In a falling market, the rule protects you. Either way, the date is fixed by service and it will not move because the case takes years.

Hawaii does not provide a broad statutory right to recover lost business profits as a separate item of condemnation damages. Business impacts generally have to be established through their effect on real property value, which makes it important that your appraiser understands how the operation uses the site before a valuation is finalized.

Relocation assistance and moving costs

Federally assisted projects trigger the Uniform Relocation Assistance and Real Property Acquisition Policies Act, and state and county projects in Hawaii generally follow parallel relocation practices. Relocation benefits pay moving costs, business reestablishment expenses, and replacement housing supplements. They are separate from the price of the property, and accepting relocation assistance does not settle your compensation claim.

Deadlines that protect your rights in Hawaii

The date of summons is the deadline that shapes the entire case, because it fixes valuation. Everything you do afterward is about proving what the property was worth on that day, which means preserving evidence of market conditions, comparable sales, and the property’s condition as of that date should begin immediately rather than after discovery opens.

HRS section 101-27 provides that where proceedings are abandoned before final judgment, or the property is not finally taken for public use, the defendant may recover costs of court, a reasonable amount to cover attorney fees paid in connection with the proceeding, and other reasonable expenses. That provision is one of the few fee-recovery routes available to Hawaii owners, and it applies only in the abandonment scenario.

How to fight a taking in Hawaii

Public use challenges are harder in Hawaii than almost anywhere else, given Midkiff and the absence of post-Kelo reform. That does not make them impossible, but it does mean the realistic leverage in most Hawaii cases lies in necessity, the scope of the taking, and valuation rather than in stopping the project.

Scope is genuinely contestable. A condemnor is not entitled to a larger interest than the project requires, and the difference between a fee taking and an easement, or between a permanent and a temporary construction easement, can be worth a great deal over the life of the property. Section 101-27’s fee provision also gives a condemnor a reason to think twice before filing and then abandoning, which is worth knowing if the project’s funding looks uncertain.

Before you sign anything

The offer reflects an appraisal the condemnor commissioned under its assumptions about zoning, entitlements, access, and highest and best use, and in Hawaii entitlement assumptions carry unusual weight. Read the appraisal itself. A signed deed or settlement release ends every claim in the case, including severance damages and interest that may not be quantified until much later.

Frequently asked questions

When is my property valued in a Hawaii condemnation case?

At the date of summons. Hawaii law provides that the right to compensation and damages accrues at the date of summons, and actual value at that date is the measure of valuation for all property to be condemned. This rule is often called the blight of summons.

How does Hawaii let a condemnor take possession before the case ends?

HRS section 101-29 provides for possession pending the action along with an alternative procedure, and section 101-30 governs orders of possession. Section 101-31 addresses payment of estimated compensation and its effect, and section 101-36 covers the certificate of deposit of money in court.

Do I get interest on my award in Hawaii?

HRS section 101-33 addresses the allowance of interest. Because valuation is fixed at the date of summons while payment may come much later, how interest is calculated on your award can be a significant part of what you ultimately receive.

Did Hawaii limit eminent domain after the Kelo decision?

No. Hawaii did not enact post-Kelo public use reform. Hawaii is also the source of Hawaii Housing Authority v. Midkiff, the 1984 U.S. Supreme Court decision that read public use expansively as public purpose defined by the legislature, and which preceded Kelo.

Can I recover attorney fees if the condemnor drops the case?

Under HRS section 101-27, if proceedings are abandoned before reaching a final judgment, or the property is not finally taken for public use, the defendant can recover costs of court, a reasonable amount to cover attorney fees paid in connection with the proceeding, and other reasonable expenses.