I found records in OHA’s Kīpuka Database that my ancestor was awarded, and owned, kuleana lands. I am a direct descendant and want to reclaim ownership of these lands. What do I do next?
By Liʻulā Kotaki, NHLC Staff Attorney
Discovering our kūpuna’s connections to ʻāina in public records is exciting. These records can raise questions about who legally owns the parcel of land today. If you’re not sure, the next step is to research the chain of title – or complete history of ownership – since the land was awarded.
The records that you found are likely a Land Commission Award or a Royal Patent. A Land Commission Award granted ownership of property to a makaʻāinana (commoner) claimed under the Kuleana Land Act of 1850. A Royal Patent shows that payment was made, and the government no longer claims to own it. These lands are commonly known as “kuleana lands.”
ʻOhana are sometimes unsure about whether kuleana lands can be sold or otherwise transferred outside of their ʻohana. Hawaiʻi’s courts have consistently treated kuleana lands as fee simple property. This means that kuleana land can be transferred in all the ways that fee simple land can be transferred. As a result, title to kuleana land can be permanently transferred outside of the ʻohana. These are examples of how fee simple land transfers can occur:
- by sale
- as a gift
- through inheritance or as a gift in a will
- partially, by partition or land division
- as a loss in foreclosure (if used to secure a mortgage, or due to non-payment of taxes or a claim of adverse possession)
If you do not already have documents showing all of the ownership history to the property since your kupuna’s grant up to today, research is needed to establish and document that history. This history and documentation is called the “chain of title” for the land. Researching chain of title means finding the links in the chain since your kupuna’s grant, or in other words, the later owners.
The information needed relates to the land’s ownership, including any deeds showing sales, gifts, or other transfers. Court cases dealing with the land can also provide documentation of ownership transfers. Genealogy can be important for filling in breaks in the chain too – for example, when someone dies, and the property passes to family by inheritance.
Some ʻohana continue to own and hold legal title to kuleana lands granted to their kūpuna. For others, only part of the ʻohana continues to hold legal title. This happens when someone leaves the property by will to one ʻohana member instead of to all their descendants. And, unfortunately, some ʻohana no longer have legal claim or title to their kūpuna’s kuleana land at all, due to sales or other land transfers. Each ʻohana and parcel of land has a unique history that must be researched and documented.
You can hire title search companies to research the chain of title, and some law firms do this work as well. You can also look for self-help resources. Title Searching for the Non-Professional, by Jackie Mahi Erickson, is available online for free at www.ulukau.org and provides title research guidance.
You should seek legal advice if you believe that you can document legal rights to kuleana land but do not currently have title, or are facing a challenge by others. Importantly, if your ʻohana is named in a lawsuit or served a legal complaint regarding title to land, there is a very short period of time to respond. Seek assistance from legal counsel as soon as possible to best preserve your rights.