Bill Text: HI SB741 | 2024 | Regular Session | Amended
Bill Title: Relating To The Hawaiian Homes Commission Act.
Spectrum: Moderate Partisan Bill (Democrat 8-1)
Status: (Engrossed - Dead) 2023-12-11 - Carried over to 2024 Regular Session. [SB741 Detail]
Download: Hawaii-2024-SB741-Amended.html
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THE SENATE |
S.B. NO. |
741 |
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THIRTY-SECOND LEGISLATURE, 2023 |
S.D. 2 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO THE HAWAIIAN HOMES COMMISSION ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
The legislature believes that all department of Hawaiian home lands beneficiaries should be able to enter the Hawaiian Homes Commission Act program with a reasonable expectation of eventually receiving a lease.
The purpose of this Act is to prohibit lessees who sell or transfer their interest in a Hawaiian home lands tract for personal gain from being placed on any subsequent waiting list maintained by the department of Hawaiian home lands for an additional lease.
SECTION 2. Section 208 of the Hawaiian Homes Commission Act, 1920, as amended, is amended to read as follows:
"§208. Conditions of leases. Each lease made under the authority granted the department by section 207 of this Act, and the tract in respect to which the lease is made, shall be deemed subject to the following conditions, whether or not stipulated in the lease:
(1) The
original lessee shall be a native Hawaiian, not less than eighteen years of
age. In case two lessees either original
or in succession marry, they shall choose the lease to be retained, and the
remaining lease shall be transferred, quitclaimed, or canceled in accordance
with the provisions of succeeding sections[.];
(2) The
lessee shall pay a rental of $1 a year for the tract and the lease shall be for
a term of ninety-nine years; except that the department may extend the term of
any lease; provided that the approval of any extension shall be subject to the
condition that the aggregate of the initial ninety-nine year term and any
extension granted shall not be for more than one hundred ninety-nine years[.];
(3) The
lessee may be required to occupy and commence to use or cultivate the tract as
the lessee's home or farm or occupy and commence to use the tract for
aquaculture purposes, as the case may be, within one year after the
commencement of the term of the lease[.];
(4) The
lessee thereafter, for at least such part of each year as the department shall
prescribe by rules, shall occupy and use or cultivate the tract on the lessee's
own behalf[.];
(5) The
lessee shall not in any manner transfer to, or otherwise hold for the benefit
of, any other person or group of persons or organizations of any kind, except a
native Hawaiian or Hawaiians, and then only upon the approval of the
department, or agree so to transfer, or otherwise hold, the lessee's interest
in the tract; except that the lessee, with the approval of the department, also
may transfer the lessee's interest in the tract to the following qualified
relatives of the lessee who are at least one-quarter Hawaiian: [husband, wife,] spouse, child,
or grandchild. A lessee who is at least
one-quarter Hawaiian who has received an interest in the tract through succession
or transfer may, with the approval of the department, transfer the lessee's
leasehold interest to a [brother or sister] sibling who is at
least one-quarter Hawaiian. Such
interest shall not, except in pursuance of such a transfer to or holding for or
agreement with a native Hawaiian or Hawaiians or qualified relative who is at
least one-quarter Hawaiian approved of by the department or for any
indebtedness due the department or for taxes or for any other indebtedness the
payment of which has been assured by the department, including loans from other
agencies where such loans have been approved by the department, be subject to
attachment, levy, or sale upon court process.
The lessee shall not sublet the lessee's interest in the tract or
improvements thereon; provided that a lessee may be permitted, with the
approval of the department, to rent to a native Hawaiian or Hawaiians, lodging
either within the lessee's existing home or in a separate residential dwelling
unit constructed on the premises[.];
(6) Notwithstanding the provisions of paragraph (5), the lessee, with the consent and approval of the commission, may mortgage or pledge the lessee's interest in the tract or improvements thereon to a recognized lending institution authorized to do business as a lending institution in either the State or elsewhere in the United States; provided that the loan secured by a mortgage on the lessee's leasehold interest is insured or guaranteed by the Federal Housing Administration, Department of Veterans Affairs, or any other federal agency and their respective successors and assigns, which are authorized to insure or guarantee such loans, or any acceptable private mortgage insurance as approved by the commission. The mortgagee's interest in any such mortgage shall be freely assignable. Such mortgages, to be effective, must be consented to and approved by the commission and recorded with the department.
Further, notwithstanding the
authorized purposes of loan limitations imposed under section 214 of this Act and
the authorized loan amount limitations imposed under section 215 of this Act,
loans made by lending institutions as provided in this paragraph, insured or
guaranteed by the Federal Housing Administration, Department of Veterans
Affairs, or any other federal agency and their respective successors and
assigns, or any acceptable private mortgage insurance, may be for such purposes
and in such amounts, not to exceed the maximum insurable limits, together with
such assistance payments and other fees, as established under section 421 of
the Housing and Urban Rural Recovery Act of 1983, which amended Title II
of the National Housing Act of 1934 by adding section 247, and its implementing
regulations, to permit the Secretary of Housing and Urban Development to insure
loans secured by a mortgage executed by the homestead lessee covering a
homestead lease issued under section 207(a) of this Act and upon which there is
located a one to four family single family residence[.];
(7) The
lessee shall pay all taxes assessed upon the tract and improvements
thereon. The department may pay such
taxes and have a lien therefor as provided by section 216 of this Act[.];
(8) Notwithstanding
any law to the contrary, the commission shall have the right of first refusal by
requiring the lessee to surrender the lease to the department whenever the
lessee seeks to sell or transfer the lessee's interest in the lease for
personal gain; provided that if the commission does not exercise the right of
first refusal, the respective lessee may proceed in the sale or transfer in
accordance with the law;
(9) If
the lessee sells or transfers the lessee's interest in the lease for personal
gain, whether or not in a manner otherwise authorized by this Act, the lessee
shall be ineligible for placement on any subsequent waiting list maintained by
the department to receive a lease authorized by section 207; and
[(8)] (10) The lessee shall perform such other
conditions, not in conflict with any provision of this Act, as the department
may stipulate in the lease; provided that an original lessee shall be exempt
from all taxes for the first seven years after commencement of the term of the
lease."
SECTION 3. Section 209 of the Hawaiian Homes Commission Act, 1920, as amended, is amended to read as follows:
"§209. Successors to lessees. (a) Upon the death of the lessee, the lessee's
interest in the tract or tracts and the improvements thereon, including growing
crops and aquacultural stock (either on the tract or in any collective contract
or program to which the lessee is a party by virtue of the lessee's interest in
the tract or tracts), shall vest in the relatives of the decedent as provided
in this paragraph. From the following
relatives of the lessee who are: (1)
at least one thirty-second Hawaiian,
spouse, children, grandchildren, [brothers, or sisters,] siblings,
or (2) native Hawaiian, [father and mother, widows or widowers] parents,
surviving spouses of the children, [widows or widowers] surviving
spouses of the [brothers and sisters,] siblings,
or [nieces and nephews,--] children of the siblings,--the lessee
shall designate the person or persons to whom the lessee directs the lessee's
interest in the tract or tracts to vest upon the lessee's death. The Hawaiian blood requirements shall not
apply to the descendants of those who are not native Hawaiians but who were entitled to the leased lands under
section 3 of the Act of May 16, 1934 (48 Stat. 777, 779), as amended,
or under section 3 of the Act of July 9, 1952 (66 Stat. 511,
513). In all cases that person or
persons need not be eighteen years of age.
The designation shall be in writing, may be specified at the time of
execution of the lease with a right in the lessee in similar manner to change
the beneficiary at any time and shall be filed with the department and approved
by the department in order to be effective to vest the interests in the
successor or successors so named.
In
case of the death of any lessee, except as hereinabove provided, who has failed
to specify a successor or successors as approved by the department, the
department may select from only the following qualified relatives of the
decedent:
(1) Spouse; [or]
(2) If there is no spouse, then the children; [or]
(3) If there is no spouse or child, then the grandchildren; [or]
(4) If there is no spouse, child, or grandchild, then [brothers or sisters;] siblings;
or
(5) If there is no spouse, child, grandchild, [brother, or sister,] sibling,
then from the following relatives of the lessee who are native Hawaiian: [father and mother, widows or widowers]
parents, surviving spouses of the children, [widows or widowers] surviving
spouses of the [brothers and sisters,] siblings, or [nieces
and nephews.] children of the siblings.
The rights to the use and occupancy of the tract
or tracts may be made effective as of the date of the death of the lessee.
In
the case of the death of a lessee leaving no designated successor or
successors, spouse, children, grandchildren, or relative qualified to be a
lessee of Hawaiian home lands, the land subject to the lease shall resume its
status as unleased Hawaiian home lands and the department is authorized to
lease the land to a native Hawaiian as provided in this Act.
Upon the death of a lessee who has not designated a successor and who leaves a spouse not qualified to succeed to the lease or children not qualified to succeed to the lease, or upon the death of a lessee leaving no relative qualified to be a lessee of Hawaiian home lands, or the cancellation of a lease by the department, or the surrender of a lease by the lessee, the department shall appraise the value of all the improvements and growing crops or improvements and aquacultural stock, as the case may be, and shall pay to the nonqualified spouse or the nonqualified children as the lessee shall have designated prior to the lessee's death, or to the legal representative of the deceased lessee, or to the previous lessee, as the case may be, the value thereof, less any indebtedness to the department, or for taxes, or for any other indebtedness the payment of which has been assured by the department, owed by the deceased lessee or the previous lessee. These payments shall be made out of the Hawaiian home loan fund and shall be considered an advance therefrom and shall be repaid by the successor or successors to the tract involved. If available cash in the Hawaiian home loan fund is insufficient to make these payments, payments may be advanced from the Hawaiian home general loan fund and shall be repaid by the successor or successors to the tract involved; provided that any repayment for advances made from the Hawaiian home general loan fund shall be at the interest rate established by the department for loans made from the Hawaiian home general loan fund. The successor or successors may be required by the commission to obtain private financing in accordance with section 208(6) to pay off the amount advanced from the Hawaiian home loan fund or Hawaiian home general loan fund.
(b) The appraisal of improvements and growing crops, or stock, if any, shall be made by any one of the following methods:
(1) By
a disinterested appraiser hired by the department; provided that the previous lessee or deceased
lessee's legal representative shall not be charged for the cost of the
appraisal; [or]
(2) By one disinterested appraiser mutually agreeable to both the department and the previous lessee or the deceased lessee's legal representative, with the cost of appraisal borne equally by the two parties; or
(3) By not more than three disinterested appraisers of which the first shall be contracted for and paid by the department. If the previous lessee or the deceased lessee's legal representative does not agree with the appraised value, the previous lessee or the deceased lessee's legal representative shall contract with and pay for the services of a second appraiser whose appraisal report shall be submitted to the department not later than ninety days from the date of the first appraisal report; provided that the first appraisal shall be used if the second appraiser is not hired within thirty days from the date the department transmits the first appraisal report to the previous lessee or the deceased lessee's representative. If the appraisal values are different and a compromise value between the two appraisals is not reached, a third appraisal shall be made by an appraiser appointed by the first two appraisers not later than ninety days from the date of the second appraisal report and the third appraiser shall determine the final value. The cost of the third appraisal shall be borne equally by the department and the previous lessee or the deceased lessee's legal representative.
The department may adopt rules not in conflict with this section to establish appraisal procedures, including the time period by which the department and the previous lessee or the deceased lessee's legal representative shall act on appraisal matters.
(c)
If a previous lessee has abandoned the tract or tracts or cannot be
located after at least two attempts to contact the previous lessee by certified
mail, the department by public notice published at least once in each of four
successive weeks in a newspaper of general circulation in the State shall give
notice to the previous lessee that the lease will be canceled in accordance
with sections 210 and 216 of this title and the department will appraise the
value of the improvements and growing crops and stock, if any, if the previous
lessee does not present [himself or herself] oneself within one
hundred and twenty days from the first day of publication of the notice. Following cancellation of the lease and
appraisal of the improvements and growing crops and stock, if any, the
department shall make the payout as provided in subsection (a).
(d)
After the cancellation of a lease by the department in accordance with
sections 210 and 216 of this title, or the surrender of a lease by a lessee,
the department may transfer the lease or issue a new lease to any qualified
native Hawaiian regardless of whether [or not] that person is related in
any way by blood or marriage to the previous lessee.
(e) If any successor or successors to a tract is a minor or minors, the department may appoint a guardian therefor, subject to the approval of the court of proper jurisdiction. The guardian shall be authorized to represent the successor or successors in all matters pertaining to the leasehold; provided that the guardian, in so representing the successor or successors, shall comply with this title and the stipulations and provisions contained in the lease, except that the guardian need not be a native Hawaiian as defined in section 201 of this title.
(f) If the successor sells or transfers the successor's interest in the lease for personal gain, whether or not in a manner otherwise authorized by this Act, the successor shall be ineligible for placement on any subsequent waiting list maintained by the department to receive a lease authorized by section 207."
SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 5. The provisions of the amendments made by this Act to the Hawaiian Homes Commission Act, 1920, as amended, are declared to be severable, and if any section, sentence, clause, or phrase, or the application thereof to any person or circumstances is held ineffective because there is a requirement of having the consent of the United States to take effect, then that portion only shall take effect upon the granting of consent by the United States and effectiveness of the remainder of these amendments or the application thereof shall not be affected.
SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 7. This Act shall take effect on March 22, 2075.
Report Title:
Native Hawaiian Caucus; Department of Hawaiian Home Lands; Lessees; Waiting List
Description:
Excludes from any waiting list maintained by the Department of Hawaiian Home Lands any lessee or successor who sells or transfers their lease on a tract of Hawaiian home lands for personal gain. Establishes that the Hawaiian Homes Commission shall have a right of first refusal for the sale or transfer of a lessee's interest in the lease when the sale or transfer is for personal gain. Takes effect 3/22/2075. (SD2)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
