The home and property were inherited from our grandparents. Our grandparents are still on title. How do we fix the title, so we can apply for loans to rebuild?
By Liʻulā Christensen, NHLC Senior Staff Attorney
When multiple family members own undivided interests or shares in a single property, that property is generally considered “heirs’ property.”
Sometimes title is still in the name of a deceased relative because the property has passed down, sometimes even across multiple generations, without the legal paperwork and process required to keep the title in the name of the current, living owners. As a result, sometimes large groups of relatives can own partial interests in family land, however, they often do not have deeds or court documents listing their ownership interest in the property.
This can make it hard to secure loans with the property, which many families need for property repairs and improvements. It can also make it hard for families to allocate shares of expenses related to the property among members of the family, including taxes and maintenance costs needed to retain the property over time.
After a disaster, heirs property owners can struggle to evidence their property ownership as needed to access disaster assistance and recovery aid for their home. In 2021, the Federal Emergency Management Agency (FEMA) recognized these challenges and the need to accept alternative proof of ownership to access federal aid.
FEMA expanded the ways to prove ownership, including by affidavit in which one must declare how they are an heir to the deceased owner and the circumstances surrounding their ownership claim while providing a death certificate. Other government programs, including the debris removal program on Maui, are not so lenient.
There are numerous strategies that ʻohana can use to update title on their property and manage the property into the future. For many families, the preferred option is that everyone who has an interest in the property agree on a path forward and then enlist legal help to update the legal palapala.
One option is an agreement to create a family land trust and designate trustees that manage the property consistent with terms for the trust. Another option is to transfer ownership of the property into a family-owned corporation, with a board that manages the property and bylaws that outline the rules the board must comply with. Some families might also agree to partition the property to enable separate use, management, and ownership. Yet another option is to allow some members to buy out others and consolidate ownership into a smaller group of family members.
What makes sense for each family and property will vary depending on their unique circumstances. And, if all interested family members cannot agree, perhaps because many are involved and hard to reach, or because of disagreement, that adds complexity. Importantly, however, all interests matter, no matter how small. Obtaining legal counsel can be a critical step in assessing all the options and navigating the complex legal system to update title and maintain ʻohana lands.
E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302. You can also learn more about NHLC at nativehawaiianlegalcorp.org.
