In April 2024, six families in Pepe‘ekeo on Hawai‘i-island were startled by a notice they received from a large lot landowner nearby. The large landowner declared they would be building a barbed wire fence through their properties, starting in two weeks. The families sent the landowner protests and objections, saying they did not agree to the fence. Nevertheless, crews entered their properties and built the fence, cutting them off from a 25-foot-wide stretch of land across their backyards.  

From 2019-2021, these families participated in a self-help housing program that provided affordable home ownership. In the program, families provided their own labor as “sweat equity” to build homes for themselves and their neighbors. Thirty families participated, including six families affected by the barbed wire fence.  

The properties included a 25-foot wide, non-exclusive road and utilities easement crossing their backyards.  The easement allows the owner of a 20.98-acre property located behind their homes to traverse the families’ properties to access their land and run utilities to it. The easement, however, does not give exclusive rights to access the Pepeʻekeo families’ land to the large landowner, meaning the large landowner was not entitled to sole use of that land.  Nevertheless, the large landowner built the barbed wire fence through the families’ backyards to enclose the land in the easement. 

The Pepeʻekeo families protested. The families actively used and maintained that part of their properties, which was landscaped with grass and ti leaf. They were also surprised at this action, because in the 20 years since the easement was created in 2004, it had not been improved nor used for vehicular access. Further, the large landowner benefitted from a second, parallel easement for the same purpose—accessing their land—on the property to the West of the Pepeʻekeo family lots, which they could use instead. The land in that other easement was already fenced.  

Despite the families’ protests, the large landowner built the fence, and the families were then prevented from accessing the rear portion of their backyards. The families continued to ask that the fence be removed. They received no response.  Then, a month after the fence was built, the large landowner sold their property. The new owners also did not use the easement for vehicular access, nor did they maintain the land. As a result, the land became overgrown with weeds that were taller than a person in some portions and that began to attract pests. 

Three of the six Pepeʻekeo families impacted by the fence contacted Native Hawaiian Legal Corporation (“NHLC”) for help. NHLC Senior Staff Attorney, Liʻulā Christensen, contacted both the first owner that installed the fence as well as the new owners of the large property to remove the fence, explaining that the easement didn’t give the right to exclude the Pepe’ekeo families from their backyards.  

While initially agreeable to removing the barbed wire, the large landowners were insistent on maintaining a fence to enclose the easement as a matter of “safety” for vehicular traffic. NHLC presented the relevant law governing non-exclusive easements and argued that the unilateral fencing of the non-exclusive easement was tantamount to taking fee simple title to the families’ properties as it excluded them from their own land. The fact that the easement was unimproved, unused, and now severely overgrown, in combination with the existence of a fenced alternative easement right next door, weighed heavily against their concerns for vehicle safety.  

The past and present large landowners eventually agreed to remove the barbed wire fence completely and restore the condition of the land to what it was prior to the fence installation. At the beginning of September, the barbed wire fence was removed, the holes left by the fence posts filled, and the landscaping was restored.  

“We built our homes with our own hands, and they mean everything to our families. We were shocked when we got these notices that a barbed wire fence was going up, without our permission, right through our backyards. We said no and they built anyway while we had to watch, not knowing what to do. We are grateful for legal advocates that helped us defend our land and our rights,” said Homeowner Maile Lavea-Malloe.  

“There may be a day in the future when these families may want some kind of privacy hedge or barrier along the easement. That might be appropriate for them if the large property is fully developed, and the easement is used for vehicular traffic. But that is not the case today, and the easement does not entitle the other landowner to build against their wishes. It is unfortunate that the large lot landowners were unwilling to respect that until the families retained legal counsel, but for all involved it is good to reach a peaceful outcome as they all continue to be neighbors in this area.” said Senior Staff Attorney Liʻulā Christensen.   

Maile Lavea-Malloe said, “Mahalo piha no kēia hana nui! Our village and ohana are supremely grateful to you and NHLC for helping us.” 

Counsel for the Pepeʻekeo families at Native Hawaiian Legal Corporation included Liʻulā Christensen and Devin Kamealoha Forrest.