Land Court: Demystifying an Enigma

• Jurisdiction: United States,Federal
• Citation: Vol. 21 No. 09
• Publication year: 2017

Land Court: Demystifying An Enigma

by Honorable Gary W.B. Chang

To many lawyers, land court is as foreign and misunderstood as a galaxy far, far away. But to those who operate in the land court system, it is a reliable, trustworthy, formal system of land title registration. This article attempts to untangle some of the mystery of land court and offer a few practice pointers.

I. What Is "Land Court"?

There is some confusion regarding the use of the phrase "land court." Does it necessarily refer to a judicial proceeding? Does it refer to the circuit court building or the bureau of conveyances? Where do I take a document to be filed in land court? An understanding of land court organization may help to address these questions.

Generally, the phrase "land court" refers to a comprehensive system of land title recordation that is separate and distinct from the "regular system" of land title registration (grantor-grantee indices). "Land court" is an oft used colloquial term that loosely refers to the Torrens system of land title recording.

The Torrens system is named after Sir Robert Torrens, who first invented this system of title recordation in Australia. The Torrens system was first adopted by the Territory of Hawaii in 1903. The hallmark distinction between the Torrens system and the regular system of land title registration is a document called the certificate of title or "TCT" ("transfer certificate of title") found in the land court system. This document will be discussed in greater detail below.

All land in Hawaii was originally registered in the regular system of land title registration.¹ Upon the enactment of the Torrens Land Act in 1903, landowners could apply to have their regular system land formally registered as land court property by order of the land court.² Land court has exclusive jurisdiction over the registration of regular system land into the land court system.³

The Hawaii land court system consists of two components: (1) an adjudicatory arm (that decides all contested and uncontested issues pertaining to land court title) and (2) a recording arm (that records land court title documents and registers title).⁴ The adjudicatory arm is headed by the land court judge (adjudication) and the registrar of the land court (administration), while the recording arm is headed by the assistant registrar of the land court.

The land court judge appoints the registrar of the land court.⁵ The registrar's direct duties include the filing of land court litigation documents and scheduling and attending land court hearings. The registrar's office is physically located on the first floor in the Kaahumanu Hale (circuit court) courthouse, which is located at 777 Punchbowl Street in Honolulu (across from Restaurant Row on Pohukaina Street). The land court judge also holds its judicial hearings on the fourth floor of Kaahumanu Hale.

The land court judge also appoints the assistant registrar of the land court.⁶ The actual functions of recording and registration of title documents are statutorily delegated to the assistant registrar.⁷ The assistant registrar's office is physically located in the Kalanimoku Building, located at 1151 Punchbowl Street in Honolulu (across from the State Capitol). This is where the filing and recording of land court title documents (as contrasted from litigation documents) takes place, and is also where the bureau of conveyances is located.

The assistant registrar of the land court's office⁸ is, however, wholly different and distinct from the bureau of conveyances⁹ in location, function, jurisdiction, funding, administration, and organization. The assistant registrar of the land court's office handles all of the land court filings and recordings. The bureau of conveyances handles all of the regular system filings and recordings.

Each island does not have a land court judge or a registrar of the land court. There is only one registrar¹⁰and one land court judge¹¹ for the entire state and they are both located in Honolulu.

Organizationally, the registrar and the assistant registrar of the land court are created under two separate branches of government. The assistant registrar, where land court title documents are recorded, is under the executive branch (governor) and the registrar of the land court and the land court judge are under the judicial branch (chief justice).

Notwithstanding that the registrar and the assistant registrar fall under different branches of government, the two offices are not wholly independent. The land court (judicial branch) bears some supervisory authority over the assistant registrar (executive branch).¹²

Additionally, where the assistant registrar has a "doubtful question" regarding the registration of land court title, there is a formal procedure for the assistant registrar to refer such doubtful questions to land court for formal determination and adjudication.¹³ This "doubtful question" procedure has rarely been used, however. Most recordation questions are resolved informally.

Thus, the phrase "land court" can, depending upon its context and usage, refer to a court of limited jurisdiction, a system of recording land title under the Torrens system, a clerical office in Kaahumanu Hale (the circuit court building) where court documents are filed for land court cases, or the place in the Kalanimoku Building where land court title deeds and other instruments are recorded (and also where the bureau of conveyances is located).

II. Fundamental Principles of Land Court A. Chapter 501

With that general explanation, we now address some general concepts that drive land court. First, land court is like any other creature of statute. If one practices litigation or transactional law in the area of land court, there is no way around reading the governing statute: Haw. Rev. Stat. Chapter 501. There are approximately 123 sections in Chapter 501. However, for any given land court issue one may face, there are typically only about five to ten sections of statutes and court rules that apply.

The greatest challenge for professionals who dabble in the area of land court, is that such dabblers are typically not inclined to invest the time to acquire expertise in land court matters. As a consequence, they struggle to navigate their way through what they view as a morass of confusion and frustration.

The key to an understanding of land court is to read the applicable provisions in Chapter 501, which is not overly lengthy. A quick glance over the entire chapter will give the reader a flavor of the topics addressed. Chapter 501 is broken down into 23 convenient subject matter areas with subheadings describing each area. After perusing the entire chapter, the reader can then focus on the provisions that are directly applicable to his/her matter of interest and read those provisions with great care. The land court statutes set forth detailed requirements that guide professionals in the preparation and recording of land court documents as well as related litigation documents, such as a money judgment, the collection of which may involve the execution upon land court property. In that instance, it would behoove an attorney to include the TCT number of the property in the text of the judg-ment,¹⁴ which will enable the attorney to record the judgment in land court and to establish a lien on the land court property.

Additionally, an attorney should ensure that the name of the judgment debtor matches the exact name of the registered owner of the land court property. Leaving out a middle name or misspelling a name could be problematic in recording the money judgment with the assistant registrar of the land court.

B. The Transfer Certificate of Title

As was mentioned above, the primary distinguishing feature between the land court system and the regular system is the certificate of title in land court, also colloquially referred to as the "TCT" in land court.¹⁵

The information set forth in every TCT includes: (1) a unique TCT number that is assigned and dedicated to a specific parcel of land court property, (2) the date of issuance of the TCT (the same date the underlying title document is recorded), (3) name(s) of the registered owner(s) of that land court parcel of land, (4) the nature of the tenancy of the title being held by multiple owners, (5) the trust powers, if a registered owner is a trustee, (6) the legal land court description of the land (which land court description is different from a regular system land description and which does not include any reference to the tax map key number or street address number), and (7) a comprehensive list of all encumbrances and memorials of those who own an interest in the land other than an ownership interest in title (such as a lease, mortgage, easement, etc.).

There is no comparable document to the land court TCT in the regular system. The TCT is a single document (that is typically multiple pages long) that lists each current registered owner of the property and every encumbrance or other interest that binds the property. This enables anyone who is interested in ascertaining who has any ownership or other interest in a parcel of land court property to determine who owns what interest in or encumbrance upon the property. All one has to do is to check the current TCT. Everyone and everything is conveniently listed on a single TCT document.

This is different from the regular system, where one must search both the grantor index and the grantee index to ascertain who has any interest in or encumbrance upon a parcel of regular system land. Therefore, there is a greater chance that a person searching the indices may miss some transaction that created some interest in or encumbrance upon the property.

C. The Backlog

As described above, the land court system provides a much more efficient and convenient method of ascertaining who or what has an interest in or encumbrance upon any property that is registered as land court property; with one significant...