§101-29 Possession pending action; alternative procedure.
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§101-29 Possession pending action; alternative procedure. Where the plaintiff is the State or any county, the following alternative procedure may be followed. At any time after the commencement of an action pursuant to this part, the State or any county may file a motion for an order of possession invoking this section and supported by an affidavit alleging, or by oral evidence prima facie showing:
(1)The right of the State or county to maintain the action;
(2)The public use for which the real property sought to be condemned is being taken; and
(3)The sum of money estimated by the State or county to be just compensation or damages for the taking of the real property.
Upon such motion and upon payment of such estimated sum of money to the clerk of the court for the use of the persons entitled thereto, the court shall issue an order ex parte putting the State or county in possession of the real property sought to be condemned and permitting the State or county to do such work thereon as may be required for the purpose for which the taking of the property is sought. The order placing the State or county in possession shall become effective upon the expiration of ten days after service thereof; provided that for good cause shown within the ten days, the court may vacate or modify the order or postpone the effective date thereof for an additional period of time.
Service of the order shall be made personally on those defendants who are in actual possession, and in other cases may be made by depositing a copy thereof in a United States post office, postage prepaid, registered mail addressed to the defendants at their last known addresses, or to their attorneys of record. [L 1951, c 12, pt of §1(l); RL 1955, §8-27; HRS §101-29]
Cross References
Service by certified mail, see §1-28.
Case Notes
Despite its earlier mixed messages regarding condemnee's right to possession after entry of quick-take possession order in eminent domain proceeding for a fire station replacement project, the condemnor took exclusive possession of the property by:
(1)filing an eminent domain certification stating that it had taken possession of the property;
(2)notifying condemnee's attorneys that condemnee did not have a legal right of possession, that neither condemnee nor any other person was authorized to enter the property, and that any personal property would be removed without notice; and
(3)reimbursing condemnee for taxes condemnee paid after issuance of possession order. 125 F. Supp. 3d 1080 (2015).
Entry of order of possession is not a bar to abandonment. 42 H. 415.
Section includes no provision for interlocutory appeal. 44 H. 7, 352 P.2d 333.
Paragraph
(2)only requires a showing of ultimate public use. No showing of reasons for immediate occupation is required. 49 H. 494, 421 P.2d 300.
If no motion to vacate within ten days, condemning authority has absolute right to immediate possession. 49 H. 494, 421 P.2d 300.
Leasing on a temporary basis after possession obtained under this section. 49 H. 494, 500-03, 421 P.2d 300.
Purpose of section. 54 H. 385, 507 P.2d 1084.
The court in an eminent domain proceeding has the discretion to permit a governmental entity to withdraw a portion of a deposit of estimated just compensation when the deposit has not been disbursed to the landowner, the government acted in good faith in seeking to adjust the estimate to accurately reflect the value of the property on the date of the summons, and the adjustment will not impair the substantial rights of any party in interest. 139 H. 511, 394 P.3d 741 (2017).
Where the plaintiff county of Kauai ("county") sought to withdraw a portion of the estimated just compensation that had been deposited with the court following eminent domain proceedings, the circuit court did not abuse its discretion in allowing the county to withdraw a portion of the amount deposited. The estimated just compensation had not been dispersed to the landowners when the county, which appeared to have acted in good faith, sought to adjust the estimate to accurately reflect the value of the property on the date of summons, and the adjustment did not impair the substantial rights of the landowners. 137 H. 471 (App.), 375 P.3d 250 (2016).