Bill Text: HI SB1193 | 2010 | Regular Session | Introduced

Hawaii Senate Bill 1193 (Prior Session Legislation)

Introduced

Bill Title: Land Court; Deregistration

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2009-05-11 - Carried over to 2010 Regular Session. [SB1193 Detail]

Download: Hawaii-2010-SB1193-Introduced.html

Report Title:

Land Court; Deregistration

Description:

Authorizes the deregistration of land from land court.

THE SENATE	S.B. NO.	1193
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII

A BILL FOR AN ACT

relating to land court.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 501, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Deregistration

§501-A Voluntary deregistration of entire parcel of land. (a) An owner of fee simple title to a parcel of registered land who holds a land court certificate of title for the registered land may withdraw the title and remove the land from the operation and provisions of this chapter by filing a petition with the court. All of the owners of fee simple interests and holders of land court certificates of title for registered land, including all holders of any leasehold interests for which a land court certificate of title is issued shall join in the petition. Upon issuance of an order granting the petition and payment of a fee of $100, the assistant registrar, without further charge, shall immediately:

(1) Note on the certificate of title for the registered land described in the order granting the petition all documents and instruments that have been accepted for registration and that have not been noted on the certificate of title as of the time of recording under paragraph (2);

(2) Record in the bureau of conveyances pursuant to chapter 502 the certificate of title for the registered land described in the order granting the petition; and

(3) Cancel the certificate of title.

(b) All persons who may have interests as defined in section 501-82 affecting the registered land which is the subject of the petition shall be cited in the order to show cause for the petition, shall be served with notice of the petition by certified mail, return receipt requested, at their last known address or served by publication if they cannot be found, and shall be given an opportunity to appear and be heard.

(c) Deregistration of the land shall not constitute a breach of a mortgage or other contract affecting the land, or a violation of any provision of a lease.

§501-B Records of deregistration. (a) Upon recordation of a certificate of title pursuant to section 501-A, or as soon thereafter as it can practicably be accomplished, the registrar or assistant registrar shall note the recordation and cancellation of the certificate of title in the registration book and in the records of the application for registration of title of the recorded land. The notation shall state:

(1) The bureau of conveyances document number for the certificate of title recorded;

(2) The certificate of title number;

(3) The land court application number, map number, and lot number for the land that is the subject of the certificate of title recorded; and

(4) In the case of a condominium, the apartment number.

(b) Deregistration shall not be invalid by reason of any delay or failure of the registrar or assistant registrar to comply with the requirements of this section.

§501-C Transfers pending deregistration. (a) After the filing of a petition for deregistration pursuant to section 501-A, the land described therein may be dealt with and instruments relating thereto may be filed or recorded pursuant to this chapter and noted on the certificate of title in the usual manner until the certificate of title is recorded with the bureau of conveyances as described in section 501-A(2).

§501-D Effect of deregistration. (a) Upon the recordation in the bureau of conveyances of a certificate of title pursuant to section 501-A:

(1) The deregistered land shall no longer be registered land for purposes of this chapter;

(2) No instruments, documents, or papers relating solely to deregistered land shall be filed or recorded with the assistant registrar pursuant to this chapter, but shall instead be recorded in the bureau of conveyances pursuant to chapter 502; and

(3) Except as otherwise expressly provided in this chapter, the requirements of this chapter shall no longer apply to the deregistered land.

(b) Recordation of a certificate of title pursuant to section 501-A shall not disturb the effect of any proceedings in the land court where the question of title has been determined. All proceedings had in connection with the registration of title that relate to the settlement or determination of title before that recording, and all provisions of this chapter that relate to the status of the title, shall have continuing force and effect with respect to the period of time that title remained under the land court system. Those provisions giving rise to a right of action for compensation from the State, including but not limited to any limits on and conditions to the recovery of such compensation and the State's rights of subrogation with respect thereto, shall also continue in force and effect with respect to the period of time that title remained under the land court system.

§501-E Chain of title of deregistered land. (a) A certificate of title recorded pursuant to section 501-A shall constitute a new chain of record title in the registered owner of any estate or interest as shown on the certificate of title so recorded, subject only to the matters described in section 501-82(a)(1) to (8), inclusive, and such other matters that may otherwise affect unregistered land subject to the provisions of subsection (c).

(b) For purposes of this section, an encumbrance shall be deemed sufficiently noted on a certificate of title if the notation:

(1) References a document by name or number which contains an encumbrance; and

(2) Indicates that the referenced document contains an encumbrance to which the registered land is subject.

(c) All instruments, documents, and papers noted on a certificate of title recorded pursuant to section 501-A shall have the same force and effect as if they had been recorded in the bureau of conveyances pursuant to chapter 502 as of the date, hour, and minute of reception noted on the certificate of title pursuant to section 501-107; provided that:

(1) No such instrument, document, or paper shall have any greater or other effect after a certificate of title is recorded pursuant to section 501-A, as constructive notice or otherwise, than it had or acquired at the time it was registered pursuant to this chapter or was made;

(2) Any other right or interest that arose prior to the recordation of the certificate in the bureau of conveyances that would have become a lien or encumbrance on the registered land, if it had been unregistered but that did not affect the land when it was registered, shall take effect from and after the time of recordation of the certificate. Any rights or interests shall be subordinate to those matters that affected the registered land immediately prior to the time of recordation of the certificate but shall otherwise be deemed thereafter to have priority in the order of recordation or as may be determined under the laws as applied to unregistered land.

(d) Nothing in this part shall be construed as giving any greater or other effect, as constructive notice or otherwise, to any instrument, document, or paper recorded in the bureau of conveyances pursuant to chapter 502 prior to the recordation of the certificate of title pursuant to section 501-A as to any land than was provided by the laws of this State (including this chapter and other laws regarding registered land) in effect at the time the instrument, document, or paper was recorded.

§501-F Dual recording involving deregistered land. Nothing in this part shall prevent or prohibit the registration of an instrument which conveys, assigns, or affects both registered land and deregistered land.

§501-G Reference to prior recorded instrument. Any instrument conveying or otherwise dealing with deregistered land and which requires a reference to a prior recorded instrument may satisfy the requirements of section 502-33 by reference to:

(1) The land court document number; or

(2) The book and page number or the bureau of conveyances document number, in the case of a document recorded pursuant to chapter 502;

of the instrument to which reference is made.

§501-H Legal incidents of deregistered land. Nothing in this part shall be construed to relieve deregistered land or its owners of:

(1) Any rights incident to the relation of husband and wife;

(2) Liability to attachment or mesne process or levy on execution;

(3) Liability to any lien of any description established by law on the deregistered land, or in the interest of the owner in the deregistered land;

(4) The right to change the laws of descent;

(5) The rights of partition between coparceners and other cotenants;

(6) The right to take the same by eminent domain;

(7) Liability to be recovered by a trustee in bankruptcy under the provisions of law relating to preferences; or

(8) Any other rights or liabilities created by law and applicable to the owner of a condominium apartment that is part of a condominium property regime established on registered land and which is not utilized in a time share plan, except as otherwise expressly provided in this part.

§501-I Jurisdiction for matters pertaining to deregistered land. (a) The land court shall have jurisdiction over all matters relating to instruments required by this part to be registered pursuant to this chapter. Where any party is in doubt as to whether an instrument must be registered, the question shall be referred to the land court for decision. The court, after notice to all parties and a hearing, shall enter an order determining the question. Notice to the owner of a fee time share interest shall be given notice by mail to the association of time share owners established pursuant to section 514E-29, and the association shall represent the owners in any matters and proceedings, without prejudice to the right of any individual owner to appear and be heard as a separate party. Except as expressly otherwise provided in this section, nothing in this part shall deprive the land court of exclusive jurisdiction pursuant to section 501-1 over registered land, or any interest therein, other than registered land that becomes deregistered land.

(b) The land court shall have jurisdiction to hear and determine, after notice to all parties in interest, any petition to correct an error, omission, or mistake in a certificate of title recorded pursuant to section 501-A. The land court may require that an amended certificate of title be recorded in the bureau of conveyances pursuant to chapter 502, or may order the entry of a new certificate, the entry or cancellation of a memorandum upon a certificate, or grant any other relief upon such terms and conditions, requiring security if necessary, as it may deem proper. Notice to the owner of a fee time share interest shall be given notice by mail to the association of time share owners established pursuant to section 514E-29, and the association shall represent the owners in any such matters and proceedings, without prejudice to the right of any individual owner to appear and be heard as a separate party. This section shall not be construed to give the court authority to open the original decree of registration. The court shall not order or take any action that impairs the title or other interest of a purchaser of deregistered land for value and in good faith, or the purchaser's heirs or assigns, without the purchaser's or their written consent; provided that in the case of a fee time share interest, the association of time share owners established pursuant to section 514E-29 may provide consent on behalf of all owners of time share interests except for those owners who elect to appear and be heard as a separate party in the matter or proceeding.

(1) All matters relating to instruments required by this part to be recorded pursuant to chapter 502;

(2) All other matters pertaining to deregistered land, except where jurisdiction is vested in the land court pursuant to this section; and

(3) All matters as to which jurisdiction would otherwise lie in the land court in part and in the circuit court in part."

SECTION 2. Chapter 657, Hawaii Revised Statutes, is amended by adding a new section to part II to be appropriately designated and to read as follows:

"§657- Deregistered land. In no event shall the period of limitations provided in this part begin, with respect to land that was registered land under chapter 501 and deregistered pursuant to section 501-A, prior to the recordation of the certificate of title for the deregistered land pursuant to section 501-A."

SECTION 3. Section 501-20, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Deregistered land" means any land that is the subject of a certificate of title recorded pursuant to section 501-A."

SECTION 4. Section 501-71, Hawaii Revised Statutes, is amended to read as follows:

"§501-71 Decree of registration; conditional when; quieting title, exceptions; reopened when. If the court, after hearing finds that the applicant, at the time of filing an application, or subsequently, had title, as stated in the application, that the title is proper for registration, and that since filing the application the title of the applicant has not been encumbered in any manner, then a decree of confirmation and registration as prayed for shall be entered.

If the court finds that the applicant, at the time of filing an application, or subsequently, had title, as stated in the application, that the title is proper for registration, and that subsequent to the filing of the application, the title has been encumbered, then the title shall be registered subject to the encumbrances so found.

If the court finds that the applicant, at the time of filing an application, or subsequently, had title, as stated in the application, that the title is proper for registration, and that subsequent to filing the application, the applicant has conveyed away all or any portion or portions of the premises or interest therein sought to be registered, then a decree of confirmation and registration shall be entered, covering the entire premises, confirming title in the applicant and the person or persons deriving their title through the applicant, to the premises or interest in accordance with the applicant's or their respective true ownership of the whole or any portion or portions thereof or interest therein at the time of filing the decree, and subject to all encumbrances affecting all or any portion thereof.

Every decree of registration of absolute title shall bind the land, and quiet the title thereto, subject only to the exceptions stated in section 501-82. It shall be conclusive upon and against all persons, including the State, whether mentioned by name in the application, notice, or citation, or included in the general description "to all whom it may concern[."] ". The decree shall not be opened by reason of the absence, infancy, or other disability of any person affected thereby, nor by any proceeding for reversing judgments or decrees[;], subject[,] to the right of any person deprived of land or of any estate or interest therein by a decree of registration obtained by fraud to file a petition for review within one year after the entry of the decree; and provided that no innocent purchaser for value has acquired an interest. If there is any [~~such~~] purchaser, the decree of registration shall not be opened but shall remain in full force and effect forever, subject only to the right of appeal hereinbefore provided[.] and to sections 501-A to 501-I. Deregistration pursuant to sections 501-A to 501-I shall not alter or revoke the conclusive nature or effect of a decree of registration, which shall continue to quiet the title to the deregistered land as to all claims arising prior to the recording of the certificate of title pursuant to section 501-A, except any claims that would not otherwise be barred under this chapter if the lands were not deregistered. Any person aggrieved by the decree in any case may pursue remedy by action of tort against the applicant or any other person for fraud, in procuring the decree."

SECTION 5. Section 501-86, Hawaii Revised Statutes, is amended to read as follows:

"§501-86 Registration runs with land. The obtaining of a decree of registration, and the entry of a certificate of title, shall be regarded as an agreement running with the land, and binding upon the applicant and all the applicant's successors in title, that the land shall be and forever remain registered land, and subject to this chapter [~~and of all acts in amendment hereof.~~], except as provided in sections 501-A to 501-I."

SECTION 6. Section 634-51, Hawaii Revised Statutes, is amended to read as follows:

"§634-51 Recording of notice of pendency of action. (a) In any action concerning real property or affecting the title or the right of possession of real property, the plaintiff, at the time of filing the complaint, and any other party at the time of filing a pleading in which affirmative relief is claimed, or at any time afterwards, may record in the bureau of conveyances a notice of the pendency of the action, containing the names or designations of the parties, as set out in the summons or pleading, the object of the action or claim for affirmative relief, and a description of the property affected thereby. From and after the time of recording the notice, a person who becomes a purchaser or [~~incumbrancer~~] encumbrancer of the property affected shall be deemed to have constructive notice of the pendency of the action and be bound by any judgment entered therein if the person claims through a party to the action; provided that in the case of registered land, [~~section~~] sections 501-151 [~~and sections~~], 501-241 to 501-248, and 501-A to 501-I shall govern.

(b) This section authorizes the recording of a notice of the pendency of an action in a United States District Court, as well as a state court."

SECTION 7. Section 636-3, Hawaii Revised Statutes, is amended to read as follows:

"§636-3 Judgment, orders, decrees; lien when. Any money judgment, order, or decree of a state court or the United States District Court for the District of Hawaii shall be a lien upon real property when a copy thereof, certified as correct by a clerk of the court where it is entered, is recorded in the bureau of conveyances. No [~~such~~] lien shall continue beyond the length of time the underlying judgment, order, or decree is in force. Except as otherwise provided, every judgment shall contain or have endorsed on it the Hawaii tax identification number, the federal employer identification number, or the last four digits [~~only~~] of the social security number for persons, corporations, partnerships, or other entities against whom the judgment, order, or decree is rendered. If the debtor has no social security number, Hawaii tax identification number, or federal employer identification number, or if that information is not in the possession of the party seeking registration of the judgment, order, or decree, the judgment, order, or decree shall be accompanied by a certificate that provides that the information does not exist or is not in the possession of the party seeking recordation of the judgment. Failure to disclose or disclosure of an incorrect social security number, Hawaii tax identification number, or federal employer identification number shall not in any way adversely affect or impair the lien created upon recordation of the judgment, order, or decree. When any judgment, order, or decree is fully paid, the creditor or the creditor's attorney of record in the action [~~shall~~], at the expense of the debtor, shall execute, acknowledge, and deliver to the debtor a satisfaction thereof, which may be recorded in the bureau. Every satisfaction or assignment of judgment, order, or decree shall contain a reference to the book and page or document number of the registration of the original judgment. The recording fees for a judgment, order, or decree and for each assignment or satisfaction of judgment, order, or decree shall be as provided by section 502-25.

In the case of registered land, [~~section~~] sections 501-102 [~~and sections~~], 501-241 to 501-248, and 501A to 501I shall govern."

SECTION 8. Section 231-64, Hawaii Revised Statutes, is amended to read as follows:

"[[]§231-64[]] Tax liens; registered land. If the land [~~has been~~] is registered in the land court, the state tax collector shall also send by registered mail a notice of the proposed sale to any person holding a mortgage or other lien registered in the office of the assistant registrar of the land court. The notice shall be sent to [~~any such~~] the person at the person's last address as shown by the records in the office of the registrar, and shall be deposited in the mail at least forty-five days prior to the date set for the sale."

SECTION 9. Section 246-57, Hawaii Revised Statutes, is amended to read as follows:

"§246-57 Same; registered land. If the land [~~has been~~] is registered in the land court, the tax collector shall also send by registered mail a notice of the proposed sale to any person holding a mortgage or other lien registered in the office of the assistant registrar of the land court. The notice shall be sent to [~~any such~~] the person at the person's last address as shown by the records in the office of the registrar, and shall be deposited in the mail at least forty-five days prior to the date set for the sale."

SECTION 10. Section 531-15, Hawaii Revised Statutes, is amended to read as follows:

"§531-15 Determination of bar to dower or curtesy. The bar to dower and curtesy or to rights by way of dower or curtesy provided by the second paragraph of sections 533-9 and 533-16, respectively, shall not operate except upon determination by order of a court of probate in proceedings for the administration of the estate, or by a court in proceedings for the determination of heirs, of the deceased spouse, and then only if claim of bar is made by a person claiming the estate, or any part thereof, or any interest therein. The spouse sought to be barred shall be notified of the claim and of the hearing thereon either by personal service or by publication of the notice thereof, in the manner provided for, and which may be included in, notice of determination of heirs or devisees or by both such personal and published service, as the court may direct. The order of determination shall be conclusive as to the rights of the surviving spouse, subject only to be reversed, set aside or modified on appeal. A certified copy of the order shall be recorded in the bureau of conveyances, in case the title to land is involved, and if the land affected [~~has been~~] is registered in the land court, a like copy shall be filed in the office of the assistant registrar of the court unless the interest of the deceased spouse in such land consists solely of one or more leasehold time share interests as described in section 501-20."

SECTION 11. Nothing in this Act shall terminate, extinguish, diminish, or impair any existing right in or pertaining to any deregistered land, or any right to compensation created by chapter 501, Hawaii Revised Statutes, but any right may be asserted and enforced in the same manner, to the same extent, subject to the same limitations and conditions provided in this Act.

SECTION 12. In codifying the new sections added by section 1 of this Act, the revisor of statues shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 13. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 14. This Act shall take effect July 1, 2009.