What you should know about Hawaii's Land Court
Updated: Sep 3, 2020
A special court established in Honolulu in 1903 to administer the Torrens System of land registration. The Land Court registers all documents affecting title to registered land in Hawaii, including easements or other rights in the land. Every decree of registration of absolute title insures the land . owner a quiet title to the registered land. Title to land once registered cannot be subsequently acquired through adverse possession or through prescription since the possession of a Land Court certificate of title is deemed to be a continuing possession of the land itself. The judge of the Land Court is designated by the Chief Justice of the Hawaii Supreme Court from among the judges of the HRSt Circuit Court. The judge appoints a Registrar for the Land Court. In addition, the Registrar of Conveyances in the Bureau of Conveyances and his or her deputy act as Assistant Registrars of the Land Court to carry out the recording and registration of documents 'affecting title to registered property.
Under the registration procedure: (1) the applicant files an application and a survey of the property with the Land Court, and records a memorandum to that effect in the Bureau of Conveyances; (2) the Land Court orders an examiner of title. to report on the condition of title; (3) the Registrar publishes a notice of the application in the newspaper and sends notices to all affected parties. If the examiner's report is favorable to the applicant and no parties dispute the applicant's claim of title, the Court then enters its decree registering title in the applicant's name. In the event that there is a dispute of the title, a hearing will be held to determine whether title should be decreed in favor of the applicant, thus insuring the land owner a quiet title to the real property covered by the application. The Registrar then enters the original certificate of title in the indexed registration book located in the Bureau of Conveyances. The registration runs with the land and is binding on successors in title. Once registered, the land may not be withdrawn from the Land Court jurisdiction except by order of the Land Court. HRS § 501-86.
The distinctive feature of Land Court registered property is that title does not pass, and encumbrances are not effective against the property, until such encumbrances or conveyances are noted on the original certificate of title. Thus the certificate of title reflects the current status of the title to the property. There are a few exceptions to this rule, such as financing statements affecting fixtures on Land Court property, federal tax liens and bankruptcies, which need only be recorded in the Bureau of Conveyances. Unlike the Regular System of recording, delivery of a deed covering property registered in Land Court does not pass title until the transfer is noted on the certificate of title. The act of registration, rather than delivery, is the operative act to effect the transfer of title to Land Court property. HRS § 501-101.
The proper procedure upon transfer of the fee simple is for the grantor or grantee to present the deed of conveyance to the Assistant Registrar, who notes the transfer on the original certificate of title and then cancels it. A new certificate of title, called a "Transfer Certificate of Title" (TCT), is then issued. The deed must contain the full names of all parties; that is, all names must be completely spelled out and initials may not be used unless the initial itself constitutes a complete part of the person's true name. A TCT is not issued for any transfer of less than a fee simple; only a memorandum is noted on the certificate of title in the case of a lease, an assignment of lease, mortgage, or other encumbrance.
The Assistant Registrar previously issued duplicate certificates of title and TCTs to owners. However, no owners' duplicate certificates of title have been issued since June 14, 1988 (HRS § 501-83.5), and all outstanding owners' duplicate certificates of title have been deemed surrendered.
Although the State of Hawaii guarantees title to registered land, the process of recovering on that guarantee is neither simple nor expeditious. There is no recorded instance of any person recovering on the guarantee. As a result, lenders routinely require title insurance for mortgages of Land Court property. Additionally, the title insurance company would defend any lawsuit challenging title, while the State would not. (HRS §§ 501-211 to 501-217, inclusive, set forth the procedures for claiming against the State of Hawaii based on a loss of title due to an error in the certificate of title made by the Registrar's office.)
Land Court property is never described by metes and bounds. A typical description of property registered in Land Court would read as follows:
All of that certain parcel of land situated at Moana, District of Ewa, County of Maui, State of Hawaii described as follows:
Lot 1632, area 15,932.2 square feet, as shown on Map 211, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 410 of Development Corporation; being a portion of the land described in Transfer Certificate of Title No. 156452 issued to Charles Primo.
SUBJECT, HOWEVER, to any and all encumbrances noted in said Transfer Certificate of Title No. 156452.
NOTE: It is not uncommon for a title report to include with a description of Land Court property an easement across Regular System (non-Land Court) property that is described by metes and bounds.
With respect to condominiums located on Land Court registered property, upon the conveyance of a fee simple unit, a Land Court 'certificate of title is issued to the owner of the fee simple unit, covering the unit owner's undivided common interest in the land, with a notation of the unit number.