| 47 | | - | SECTION 1. The legislature finds that the severe shortage of affordable housing imposes a tremendous hardship on the residents of the State. This shortage is in part attributable to the high costs to develop property in Hawaii. A concerning potential component of that cost involves securing air rights for construction cranes to swing over surrounding properties to avoid any potential claim for trespass. The legislature also finds tower cranes transport necessary steel, concrete, large tools, and other building materials required for the construction of housing on the site. The tower crane often stands more than two hundred fifty feet tall, and its horizontal arm, known as the "jib", may extend more than two hundred feet. When not in use, the jib must be left free to swing in the wind; otherwise, a high wind may knock the crane over. In compact urban areas, the free-swinging jib typically intrudes into the unoccupied airspace well above neighboring properties. If the crane's intrusion is deemed a trespass and is enjoined, the project could be indefinitely delayed. The legislature further finds that the cost of obtaining a license or easement for use of the construction crane may be dependent on the neighboring landowner's cooperation. In some cases, these neighboring landowners are demanding exorbitant sums of money that are not proportional to the actual use of the unoccupied airspace. These costs and potential delays of obtaining cooperation from neighboring landowners will ultimately be borne by the future owners of the units being constructed. Furthermore, when adjacent landowners unreasonably restrict a housing project's need to access airspace for a project's tower crane, the restriction negatively affects the State's overall goal of producing more affordable housing as cost effectively as possible. The legislature additionally finds that states such as Illinois and New Jersey have found that temporary construction cranes and scaffolding do not constitute an actionable trespass because the intrusion does not interfere with the landowner's use of the landowner's property and does not cause harm to the landowner. While ownership of property is a sacred right in Hawaii, landowners should not be permitted to use their property in such a way as to be injurious to the greater good of the community, nor should they be allowed to unjustly withhold permission for exorbitant sums of money for temporary rights to airspace. Accordingly, the purpose of this Act is to prohibit a landowner from bringing a private cause of action against a contractor, developer, or owner of affordable housing for trespass in instances where a temporary construction crane or other construction machinery intrudes into the landowner's airspace during construction, repair, or maintenance of affordable housing, including any intrusion that may occur when the crane or other machinery is not in use; provided that the conduct does not materially interfere with the landowner's actual use of the landowner's premises. Additionally, this Act is not intended to discourage contractors, developers, or owners of affordable housing from obtaining the necessary insurance to cover any potential risks to neighboring landowners. SECTION 2. Chapter 663, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows: "§663- Trespass; no liability for temporary use of airspace; affordable housing. (a) A contractor, developer, or owner of affordable housing shall be permitted to employ a construction crane or other machinery that temporarily intrudes into a neighboring landowner's airspace and such temporary intrusions shall not constitute a trespass, and no cause of action for the same may be brought by a landowner if the temporary intrusion: (1) Occurs not less than twenty-five feet above the height of the neighboring structure; (2) Does not materially interfere with the landowner's actual use of the premises; and (3) Is directly related to the construction, maintenance, or repair of affordable housing. (b) This section shall apply regardless of whether the construction crane is or is not in operation. (c) As used in this section, unless the context otherwise requires: "Affordable housing" has the same meaning as in section 201H-57. "Premises" includes any building or portion thereof, or any real property. "Temporarily" means the duration of the construction of the affordable housing project; provided that the project is being constructed in good faith. "Trespass" means the entry into or occupying of the airspace above a landowner's premises or interference with any asserted property right attributable to that airspace without the prior authorization, permission, or invitation of the landowner." SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 4. New statutory material is underscored. SECTION 5. This Act shall take effect on July 1, 2024. |
|---|
| 47 | + | SECTION 1. The legislature finds that the severe shortage of affordable housing imposes a tremendous hardship on the residents of the State. This shortage is in part attributable to the high costs to develop property in Hawaii. A concerning potential component of that cost involves securing air rights for construction cranes to swing over surrounding properties to avoid any potential claim for trespass. Tower cranes transport necessary steel, concrete, large tools, and other building materials required for the construction of housing on the site. The tower crane often stands more than two hundred fifty feet tall, and its horizontal arm, known as the "jib", may extend more than two hundred feet. When not in use, the jib must be left free to swing in the wind; otherwise, a high wind may knock the crane over. In compact urban areas, the free-swinging jib typically intrudes into the unoccupied airspace well above neighboring properties. If the crane's intrusion is deemed a trespass and is enjoined, the project could be indefinitely delayed. The legislature further finds that the cost of obtaining a license or easement for use of the construction crane may be dependent on the neighboring landowner's cooperation. In some cases, these neighboring landowners are demanding exorbitant sums of money that are not proportional to the actual use of the unoccupied airspace. This cost and potential delay impacts of getting cooperation will ultimately be borne by the future owners of the units being constructed. Furthermore, when adjacent landowners unreasonably restrict a housing project's need to access airspace for a project's tower crane, the restriction negatively affects the State's overall goal of producing more affordable housing as cost effectively as possible. The legislature additionally finds that states such as Illinois and New Jersey have found that temporary construction cranes and scaffolding do not constitute an actionable trespass because the intrusion does not interfere with the landowner's use of the landowner's property and does not cause harm to the landowner. While ownership of property is a sacred right in Hawaii, landowners should not be permitted to use their property in such a way as to be injurious to the greater good of the community, nor should they be allowed to unjustly withhold permission for exorbitant sums of money for temporary rights to airspace. The purpose of this Act is to prohibit a landowner from bringing a private cause of action against a contractor, developer, or owner of affordable housing for trespass in instances where a temporary construction crane or other construction machinery intrudes into the landowner's airspace during construction, repair, or maintenance of affordable housing; provided that the conduct does not materially interfere with the landowner's actual use of the landowner's premises. Additionally, this Act is not intended to discourage contractors, developers, or owners of affordable housing from obtaining the necessary insurance to cover any potential risks to neighboring landowners. SECTION 2. Chapter 663, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows: "§663- Trespass; no liability for temporary use of airspace; affordable housing. (a) Subject to the requirements of subsection (b), a contractor, developer, or owner of affordable housing shall be permitted to employ a construction crane or other machinery that temporarily intrudes into a neighboring landowner's airspace. (b) The conduct described in subsection (a) shall not constitute trespass if it occurs in the airspace above a landowner's premises and the conduct: (1) Does not materially interfere with the landowner's actual use of the premises; and (2) Is directly related to the construction, maintenance, or repair of affordable housing as defined in section 201H-57. (c) No cause of action may be brought by a landowner based upon a claim of trespass when the conduct meets the criteria identified in subsections (a) and (b), nor is any independent cause of action created by this section. (d) As used in this section, unless the context otherwise requires: "Premises" includes any building or portion thereof, or any real property. "Trespass" means the entry into or occupying of the airspace above a landowner's premises or interference with any asserted property right attributable to that airspace without the prior authorization, permission, or invitation of the landowner." SECTION 3 This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 4. New statutory material is underscored. SECTION 5. This Act shall take effect on July 1, 2024. INTRODUCED BY: _____________________________ |
|---|