Lae Street Landscaping Easement
When a subdivision is developed, the File Plan map has to be finalized and recorded prior to any houses being built. At that early stage the grading for the individual lots has not been completed and it is impossible to foresee every possible need for easements. Changing a finalized File Plan requires a new subdivision application; therefore, it is customary for the Declaration of virtually all developments to contain wording such as that excerpted from the Kuau Bayview Declaration Section 7 below...
7. LIMITATIONS AND RESERVATIONS.
Declarant specifically reserves unto itself, its successors, and assigns, the right at any time and from time to time, in its sole determination and discretion:
- (a) Easements, Licenses, Etc. To designate and grant to any Person, and/or reserve unto Declarant, easements, licenses, permits, and rights-of-way for public or private access and/or utility purposes, sewer, drainage, gas distribution systems, pedestrian walkways, roadways, electrical, telephone and television-cables, and other or similar purposes and uses in, over, across, through, and under any Common Areas and Improvements and Facilities as Declarant deems appropriate or necessary. In connection with the foregoing reservations, each Owner irrevocably appoints Declarant as such Owner's attorney-in-fact to file maps designating such easements and to grant such easements and rights and to do all things necessary or convenient in connection therewith, and upon Declarant's request, each Owner, promptly and for no additional consideration, shall execute all documents which may be requested by Declarant to designate such easements on any map and to grant such easements and rights....
- (f) Transfer to Association of Common Areas, Etc. To transfer from time to time to the Association ownership, possession, and the obligation to maintain, landscape, repair, and replace Common Areas and Improvements and Facilities and other real and personal property and interests (including, without limitation, leases, easements, rights-of-way, and licenses).
This reservation gave A&B Properties the legal right to designate a landscaping easement on the Lae St slope and build fences demarcating this area on Lots 41, 42, and 43. The managing agent, Oihana, subsequently installed irrigation and landscaping plants which have been maintained by the Association ever since the easement was transferred to the Association in 1997. Even though this easement was not marked on File Plan 2181 (which pre-dated the easement), in accord with the procedure described in 7(a) above, revised Plot Plans were sent to the Lot 41 & 42 owners in 1997 and the Lot 43 owner in 1998 along with a letter from A&B Properties which was signed and returned by all three owners. Copies of these signed letters and revised Plot Plans have been requisitioned from the A&B archives in Honolulu.
The main body of the letter contained the following text:
"Attached for your information is a revised plot plan for your lot which shows, among other things, the fence and landscaping easement which encumber Lot 41/42/43. The fence and landscaping within the easement area are owned by the Homeowners Association which will maintain the fence and slope landscaping. This easement will perpetually encumber your lot and you will be obligated to disclose the existence of the easement to future buyers."
As original owners, Lot 41 and Lot 42 owners should still possess these letters. The original owners of Lot 43 were legally required to provide the buyer with a copy of this letter with the deed when Lot 43 changed ownership. All deeds for Kuau Bayview notated in Exhibit A that they were subject to the Declaration, which includes Section 7 above. The landscaping easement encumbers the lots in perpetuity and passes with the deed to any new owners. There was no oversight on the part of A&B Properties -- it is not uncommon for easements in new subdivisions to be established and transferred in this way without being recorded on the File Plan map; however, in my opinion, A&B should have made more of an effort to provide the Association with copies of the documentation needed to prove the legalities of this unrecorded easement.