by Jeanne Roberts
In 2014, Zuckerberg and his wife, Priscilla Chan, bought two adjacent tracts of land – a 393-acre Pila’a Beach tract, and a 357-acre former sugarcane farm called Kahu’aina Plantation.
It would have been an ideal getaway for one of the world’s richest men, if not for the fact that the plantation contains as many as 24 tiny plots of land that Zuckerberg hasn’t been able to buy, and whose owners are free to cross his land at any time they choose.
These tiny parcels, known as “kuleanas”, are by law (and historically) the property of families who have passed ownership down through the decades. Kuleana rights include “reasonable access, agricultural uses, gathering rights, rights to a single-family dwelling, water rights, and fishing rights”. In Hawaiian, kuleana means “right, privilege, or responsibility”.
Some of the kuleanas contain huts, and are used as weekend or vacation getaway spots. All are protected under a 2012 Hawaiian Supreme Court ruling that confirmed the original decision laid out 160 years ago vis à vis tenant farming rights.
Zuckerberg, who filed eight lawsuits known as “quiet title and partition” actions to obtain the parcels, has since dropped his litigation efforts and apologized. Reports indicate he hopes to negotiate a solution with the individuals and communities involved. Given the uncertain nature of land titles in Hawaii, this may be the best resolution, especially as some kuleana owners don’t even know the boundaries of their land. The situation is sadly reminiscent of Native American tribes in the 19th century.
The kuleana holders are not squatters in any sense of the word, and Zuckerberg is far from the first to face this dilemma. In fact, land taken by squatters, sharecroppers, tenant farmers, and the homeless – a process known as “adverse possession” – has plagued many a buyer who thought he, or she, had finally purchased the home and/or acreage of his or her dreams.
Moreover, land law and land rights may actually recognize the ownership of squatters and the homeless after a certain amount of time has passed. In California, for example, someone who takes over an abandoned building, or sets up farming on an open plot of land, can obtain a document of ownership for said property after five continuous years of occupation.
In Pennsylvania, a couple who lost track of one of their land purchases actually forfeited most of it to someone who lived next to it and used it consecutively, for 21 years.
Each state views adverse possession somewhat differently, and some mandate that the trespasser pay the local property taxes for a certain number of years in order to claim the property.
Historically, the law tended to differentiate sharecroppers and tenant farmers by noting that the latter usually had their own farming tools – a distinction that has not clarified adverse possession status. A tenant farmer using a verbal agreement can farm the land for a number of years without sharing the profits of his labor and then demand adverse possession status. A piece of property that is purchased and then ignored can pass to a sharecropper who faithfully shares the profits of his labor and then asks the court for title to the land.
According to one global land policy institute, the rights to land are commonly related to the amount of labor invested “as an extension of the right to the fruit of such labour”.
The bottom line is simple. Property owners should either inspect their lands regularly or hire someone to do so, and every granting of right or easement should be accompanied by legal documentation of the exact rights given – or taken.