Negligent Infliction of Emotional Distress

Negligent Infliction of Emotional Distress (NIED) is a civil claim of action to recover payment for damages negligently inflicted on you by another person. 

This tort is somewhat controversial and some courts around the United States do not recognize this cause of action.  Hawaii, however, was one of the first states to recognize a claim for NIED and has been at the forefront of its development. The Supreme Court of Hawaii has decided several cases that leave no doubt as to the existence of the tort in Hawaii. 

Generally, to win an NIED claim, you must show that someone owed a legal duty to use reasonable care to avoid causing you emotional distress. Typically you usually must have a physical manifestation of your injury. There are some exceptions to the physical manifestation requirement and the Supreme Court of Hawaii has specifically held that it is possible in certain circumstances, to recover damages based only on serious emotional distress. Emotional distress is defined as mental worry, anxiety, anguish,suffering, and grief. 

Hawaii Dog Bite Law

An attack by a dog on you or a family member can be a terrifying event.  If you have been attacked and bitten, the reminders below will help you receive compensation for your injuries. 

1. Document the attack.  Have a friend or relative record the names and contact information of witnesses and call the police to make a report.  If possible, take pictures of the dog and the area where you were attacked. 
2. Seek medical attention quickly and be sure to tell your doctor everything that happened including a detailed description of the dog. Document your injuries by taking pictures and keeping a journal of your recovery. 
3. Call animal control to make sure that the animal is quarantined and nobody else is attacked by the same dog. 
4. Speak to a personal injury attorney as soon as possible.  An attorney can start an investigation and help gather evidence necessary for you to receive compensation for your injuries. 

For more information about dog bite liability click the following links: 

Hawaii Revised Statute 663-1 Liability
Hawaii Revised Statute 663-9 Liability of Animal Owners

Hawaii Courts have interpreted the statutes in a way that may not seem obvious at first glance.  If you have been attacked by an animal, contact an attorney today to help you receive compensation for your injuries. 

How to Win Your Personal Injury Lawsuit

Here is an article with good advice for winning a personal injury lawsuit.  The article was written by William Abel, an attorney in Florida, however, the advice is still the same no matter what jurisdiction you live in.

1. Get medical treatment.
2. Be consistent with your medical history. 
3. Be descriptive with your symptoms.
4. Be accurate with your medical history.
5. Communicate with your attorney. 

For the full text of the article, click here.  Win Your Personal Injury Lawsuit

Personal Injury and Car Accident Statute of Limitations

An accident involving serious personal injury can be traumatic.  Depending on the type of accident, recovery can be tedious and involve medical appointments, physical therapy or other rehabilitation.  Although you may be busy recovering, it is important to remember that Hawaii law limits the time period within which you may sue someone to recover damages for your injuries. 

If you feel that someone else is responsible for causing your injury, you must file a lawsuit to recover damages within two years.  While the law allows two years to file a lawsuit you should contact an attorney as soon as possible after an accident.  An attorney will need to investigate the incident by interviewing witnesses, obtaining medical records and gathering as much information as possible. 

A proper investigation into an accident can take months and much work on a personal injury lawsuit is done before a lawsuit is filed.  It may be possible to obtain an agreeable settlement without a trial or filing a lawsuit.  Settlement negotiations are always more effective on your behalf if you have left enough time to negotiate without worrying about a looming statute of limitations deadline. 

If you have been injured in an accident, contact a personal injury attorney today.

Hawaii Statute of Limitations
Hawaii Revised Statute §657-7 Damage to Persons or Property. 

Home Prices Continue to Rise

A recent report indicates that home prices nationwide continue to rise.  Core Logic Home Trends

As locals to Hawaii know, homes in the 50th state are in short supply with sellers typically receiving several full priced offers for a property.  There is limited availability and high demand for houses under $500,000.

Some local real estate experts attribute the lack of inventory to the 2011 foreclosure law that forced many houses through time-consuming judicial foreclosures.  However, even though the time-line for some foreclosures has been extended, many lenders do not seem eager to foreclose and have left scores of delinquent homeowner in their houses without making mortgage payments.

The strange result of lower inventory and lack of follow-through with foreclosures is that prices are rising rapidly, pricing many potential homeowners out of the market while others are living rent free. 

How to Buy Foreclosure Property on Maui - Part 2

This post is Part 2 of a series on how to purchase foreclosed property on Maui.

When selling a property, a Commissioner must advertise the property in a newspaper of local circulation.  The Commissioner must also conduct open houses of the property.  The dates and times of the open houses will be listed in the legal advertisement.  An open house is your chance as an investor to perform due diligence and investigate how high you should bid on the property. 

Due diligence is particularly important when purchasing foreclosure properties because they are sold “AS IS.”  This term means that if the house has termites, structural damage or a serious mold problem you have no recourse after you complete the purchase and you should price your bid accordingly. 

Typically a Commissioner will hold two open houses of the property, however, some Commissioners will also arrange a private viewing for interested bidders.  When you have access to the property, take pictures, make notes and if necessary, take an expert with you to examine the premises. 

In addition to inspecting the physical condition of the property, you should also investigate the possibility of liens, back-taxes, homeowner’s associations arrearages, property encroachments and problems with the title.  A Commissioner may be able to give you some relevant information but will not be able to give you legal advice about the importance of this data.  If you have questions about the legal consequences, you should hire an attorney to guide you through the process. 

After you have completed investigating the property and have decided you want to purchase it, spend time with a calculator determining your maximum bid.  If you are the highest bidder, you will be responsible for all closing costs including the costs of escrow, conveyance and back taxes.  You should also consider the cost of repairs and improvements to the property. 

Do not bid higher than your predetermined maximum bid.  Many potential investors become excited with the thrill of an auction and bid more than they originally intended.  Savvy bank representatives will happily prey on your enthusiasm and counter your offer, trying to drive your bid higher. 

In the next part of the Foreclosure Investment Series we will discuss what happens in the judicial foreclosure process after the auction. 

IRS Recognizes Same-Sex Marriages

In June, the United States Supreme Court struck down the Defense of Marriage Act.  As a direct result of that decision, the Internal Revenue Service has changed its policy to recognize same-sex marriages. 

Here is a link to a New York Times article detailing the change. 
IRS Recognizes Same-Sex Marriages

Low Numbers of Foreclosures in Hawaii

According to a recent report by CoreLogic, the number of completed foreclosures in the nation has dropped.  The most recent report shows that 397 foreclosures were completed in the month of June in our Hawaii.  This number gives Hawaii one of the lowest number of completed foreclosures in the nation, ranking in the bottom five.

National Foreclosure Report
Foreclosures Drop 20% Nationwide

At first glance, the low number of foreclosures in Hawaii may seem as if the housing market has recovered.  However, the foreclosure law passed in 2011 by the Hawaii State Legislature forced many non-judicial foreclosures to go through a judicial process.  A slowdown in the number of completed foreclosures in Hawaii may merely mean that cases are working their way through the judicial foreclosure process. 

How to Buy Foreclosure Property on Maui - Part I

Maui, like many other parts of the country, saw a significant reduction in economic activity after the Great Recession of 2009.  Although the economy is recovering, the housing market is still lagging and prices are much lower than they were before the downturn.  Many smart investors are buying on the dip in prices while calculating that the market will recover.  This series of blog posts will help you navigate the often confusing area of housing foreclosure and show you how to purchase property that is still within the foreclosure process.  Finding properties that are still within the foreclosure process can help diligent investors find lucrative investments at significantly reduced prices.  

In Hawaii, a foreclosure can be judicial or non-judicial.  A judicial foreclosure has oversight by the court and will go through a court process including a court hearing before the house is sold.  There are many statutory requirements for a non-judicial foreclosure and this process is only available in certain situations. 

As an investor, you should look for houses that are in judicial foreclosure.  There is no central database or clearing center that lists properties that are in foreclosure.  Although some websites list “foreclosed” or “REO” properties for sale, these houses are usually owned by banks who have possession of the house after the foreclosure process is complete.  Occasionally, the bank will offer the property at a reduced price but usually the price will be close to fair market value. 

To take advantage of significantly reduced foreclosure prices, you need to find properties that are still within the judicial foreclosure process and attend the actual auction. 

A property enters the judicial foreclosure process when a homeowner defaults on a loan and the lender files a lawsuit asking the court to auction the home to satisfy the debt owed.  Legal proceedings typically take a year or more.  When the court is ready to auction the property, a foreclosure commissioner is appointed to take possession of the property, conduct an auction and distribute the proceeds of the auction to those who are owed money. 

The commissioner will inspect the property, advertise the auction and hold open houses so that potential bidders can see the house and formulate a bidding price.  The commissioner will try to obtain the highest feasible price for the property in order to satisfy as much of the debt as possible. 

Hawaiian law requires that a Commissioner advertise an auction of a property three times in a newspaper of local circulation, thus giving the owner of the house and the general public notice that the property is to be sold.

In Part II of this Foreclosure Investment series, we will continue exploring how investors can find and take advantage of attractive foreclosure prices. 

Foreclosure law can be intricate and confusing.  Homeowners often hire an attorney to defend a foreclosure lawsuit.  Investors often also hire an attorney to help them purchase a property in foreclosure.  A local attorney experience in foreclosure law can represent you at an auction and bid for you, even if you are out of state.  

For an overview of Hawaii foreclosure law click on this link.  Hawaii Revised Statute Chapter 667 

Begin Estate Planning Today

One of the first steps to implementing an estate plan is to decide what you would like to do with your assets. If you are unsure of how to divide your estate, begin your research online by reading background information about wills, trusts and other estate planning and tax planning tools.

Dividing your assets is often just one part of estate planning.  Tax considerations and health care issues such as long-term illnesses or incapacity are also important.  If you anticipate that your spouse or an adult child will need specialized care in the near future or after you die, speak to an estate planning attorney about how your assets can help provide care and also about other important documents such as a health care directive.  


Financial planners and accountants often work closely with estate planning attorneys and may be willing to give you a referral to a lawyer who can help. If you need help determining how to plan for the future, call our office today for a free consultation to discuss the options available for your estate.

 This article is a good place to start learning about the basic elements of an estate plan. 

 Money Magazine Estate Planning Article

Estate Planning and James Gandolfini

Estate planning is important for everyone and can save your heirs from losing a significant portion of their inheritance to the U.S. government in the form of taxes.  Here is a link to an interesting article about how much money James Gandolfini's (star of the televisions series Sopranos) heirs could have saved if he had planned properly for his estate.

Estate Planning Lessons From James Gandolfini

Maui Foreclosures

A mortgage allows many people to purchase a home who would not otherwise be able to afford one.  When the owner fails to make payments on the loan, the lender often seeks to foreclose on the home, which is the collateral for the mortgage. 

In Hawaii, a foreclosure can be judicial or non-judicial.  A judicial foreclosure has oversight by a judge and will go through a court process including a hearing before a judge before the house is sold.  There are many statutory requirements for a non-judicial foreclosure and they are only available in certain situations. 

A judicial foreclosure begins with the lender filing a lawsuit against the homeowner and asking the court to sell the property to satisfy the mortgage debt.  After the judge issues an order allowing the sale of the property, a foreclosure commissioner is appointed to dispose of the property in a way that is fair for all parties involved while obtaining the highest price. 

The commissioner will inspect the property, advertise the auction and market the property to potential bidders.  The commissioner will try to obtain the highest feasible price for the property in order to satisfy as much of the debt as possible. 

A confirmation hearing will be set by the court after the auction has taken place so the judge can determine if the sale to the highest bidder should be approved.  If additional bidders appear at the court hearing, the judge may reopen bidding for the property to see if a higher price can be obtained. 

Once the judge has confirmed the sale to a bidder at auction an escrow company distributes the proceeds of the auction in a way that will satisfy the debt and give any excess to the previous owner of the house.  Title is then transferred to the new owner. 

Current Legal Headlines

Last week was eventful on the mainland as well as Hawaii for legal issues.  The U.S. Supreme Court made a noteworthy decision on the Defense of Marriage Act which directly addresses same-sex marriages. U.S. Supreme Court - Defense of Marriage Act

The U.S. Senate also made headlines by passing a bill that sets forth a thirteen year path to citizenship for eleven million unauthorized immigrants in the United States.  The bill effectively links a substantial border security increase to citizenship.  It will be interesting to see what happens to this proposed law in the House.  U.S. Senate Immigration Bill

In Hawaii, Governor Abercrombie is expected to sign a new law soon that will allow homeowners to purchase a solar photovoltaic system by using state bonds or “on-bill” financing.  The program will begin in 2014 and will enable people who could not otherwise afford the up-front cost of a project to install a solar system.

New Hawaii Solar Law

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Divorce in Hawaii

A divorce can be difficult and highly emotional whether you are seeking one yourself or if you have been served with a divorce complaint. 

No-Fault Divorce

Hawaii is a no-fault divorce state.  A no-fault divorce grants a legal end to a marriage that is no longer working, without the need to assign fault to either spouse.  It is no longer necessary to allege adultery, abandonment or other similar objectionable behavior.  No-fault divorce has become the benchmark throughout the country and lends itself to a more civilized end to marriage. 

Marital Property Division

You and your spouse may agree how to divide your jointly owned property or you may ask a judge to divide it for you.  If a judge must divide your marital property, he or she will partition the property equitably.  Equitable distribution is not the same as equal distribution.  Most of the time, a judge will divide marital property equally but will place a priority on apportioning it fairly. 

Marital property is property that you and your spouse received while you were married.  Gifts during the marriage, property you inherit and property you received before you were married are not marital property. 

Considering Factors

The court will consider many factors when deciding how to distribute marital property including:

            -Financial circumstances of each spouse. 

            -The value of your separately owned property. 

            -Amount each spouse contributed to acquiring marital property. 

            -Support for the other spouse’s education. 

            -Individual debt. 

            -Age and health of each spouse. 

            -Premarital agreements. 

There are many factors a judge will take into account when deciding how to divide your marital property.  If you are considering a divorce, particularly in a situation that is likely to be contested, you should contact an attorney to guide you through the legal process and help make sure you receive your fair share of marital property.  

Click here for more information filing a divorce on Maui including a civil union divorce.  

Maui Second Circuit Court Divorce and Civil Union Divorce Forms 

How to Make Estate Planning Decisions

Estate planning includes making important decisions for your children, your assets and yourself.  Preparing for the future can save a significant amount of time, expense and worry for your heirs.  Use the following guidelines to help you make two of the most important decisions when planning for your death. 

Guardian

Designating who takes care of your children may be the most important decision you make while estate planning.  Grandparents might seem like a natural choice to be guardians but you should carefully consider their age, financial ability and desire to raise children. 

Your parents may love to visit their grandchildren but do they really want to be full-time parents?  Will they have the time and energy to care for active, young children?  A better choice may be good friends who are about your age, already have children and share similar values.  It is good practice to include alternatives for guardian in your will in the event that someone is unwilling or unable to care for your children. 

Advance Health Care Directive

This document allows you to specify who will make your health care decisions if you are not able to make them yourself.  You may also list certain medical instructions in advance.  It may be tempting to ensure that you are given life-extending treatment such as intravenous fluids, feeing and oxygen for a long period of time to see if you will recover. 

However, you should carefully consider the expense and emotional strain on your loved ones in such a situation.  Life support can be costly and may quickly diminish the estate you want to leave your children and relatives.  No matter what you choose, you can avoid misunderstandings and unnecessary expense if you name a trusted person in your health care power of attorney.  This person should know your true wishes and be able to make objective decisions in a difficult situation. 

The most important decisions during estate planning should be thought out well in advance.  Sometimes the wisest choice to achieve your goals may be also be the simplest one.  In any event, you should contact an attorney to answer your questions and ensure that your decisions are properly recorded in your documents.   

Digital Assets and Estate Planning

In addition to a will and perhaps a trust, proper estate planning includes making an inventory of assets that you own.  When considering your assets, be sure to include your digital estate.  Every year, a larger percentage of our lives and business involve online interaction and most people own digital assets even if they do not realize it.  Email accounts, blogs, websites, social media accounts, online banking accounts and music are just a few of the digital assets you may own. 

One way to manage your online assets is to use a digital afterlife service.  Such services organize your accounts, passwords and online information and are quickly becoming popular as a method of planning for your digital estate. 

Digital giant, Google also recently introduced a feature that allows you to decide in advance what to do with your Google related accounts after you die.  The tool controls many different Google services including Gmail, Google Plus, Blogger, Picassa, YouTube and several others. 

Google Inactive Account Manager

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Assault

Assault is a common crime and arises when a person injures someone else.  The level of crime is based on how serious the injury is and may also depend on whether the injury was caused with a dangerous instrument. 

It is important to note that a dangerous instrument does not have to be inherently dangerous and can be merely an object that is used in a dangerous way and has the potential to inflict serious bodily harm.  A vehicle, a rock or even a champagne bottle in a bar fight can be dangerous instruments if they are used to hurt someone. 

First Degree Assault

This level of assault is the most serious and is charged as a Class B felony.  A person commits assault 1° by intentionally or knowingly causing serious bodily injury to another person. 

First Degree Assault Statute

Second Degree Assault

You might be charged with assault 2° if you intentionally or recklessly cause substantial bodily injury to someone else or if you cause any bodily injury with a dangerous instrument.  Assault 2° is charged as a Class C felony. 

Second Degree Assault Statute

Third Degree Assault

Assault 3° is a misdemeanor.  There are several circumstances when this crime might be charged.  Assault 3° typically arises when you intentionally cause bodily injury to someone else or if you hurt another person by doing something a reasonable person would not have done with a dangerous instrument. 

If this level of assault occurs in a fight where both people are fighting willingly, it is charged as a petty misdemeanor. 

Third Degree Assault Statute

How to Make a Valid Will in Hawaii

A will is an important document as it can control a considerable amount of money, assets and property and make significant life decisions.  If you make a will, it is essential to make sure there are no questions about its validity.  Specific language and clear wording can prevent disputes after you die and give you peace of mind that your wishes will be carried out as quickly as possible. 

Hawaiian law describes several important requirements to make a valid will.  Hawaii Revised Statute 560 2-502

Proper Age

You must be at least 18 years old to make a legally binding will in Hawaii. 

Hawaii Revised Statute 560 2-501

Witnesses

You must sign your will in front of two witnesses.  In some states, witnesses to a will signing must be “uninterested,” however, in Hawaii, the witnesses may be “interested.”  An “interested” witness is a person who is a beneficiary under the will.  The witnesses do not have to read the document, they must only know that you are signing your will. Hawaii Revised Statute 560 2-505

In Writing

A valid will must be written.  Some people attempt to simplify matters by handwriting their will.  Such a document is called a holographic will and is legal in Hawaii.  A holographic will often makes matters more complex than a printed document drafted by an attorney because the handwriting must be proven to be yours.  Many holographic wills are not witnessed and handwriting experts or people familiar with your handwriting must testify that the writing is yours. 

Print or type your will.  Holographic wills can make probate difficult.  

It is often difficult for a court to determine your true intent from a holographic will.  For example, if you bequest “$10,000 to Auntie Em” the court will not know if you meant your elderly neighbor Emaline who you visit daily or your mother’s sister Aunt Emily who you haven’t seen for years but decides she would like to have $10,000. 

Self-Proving Affidavit

A self-proving affidavit is not a requirement under Hawaii law but wills drafted by a knowledgeable attorney should include one.  This affidavit is a sworn and notarized statement saying that you intend this document to be your will.  If you do not include a self-proving affidavit with your will, your personal representative will have to prove to the court that the will was made by you. 

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Probate

Probate is the legal process of resolving and closing a person’s business and personal affairs after death.  The person who handles the probate process is called a personal representative.  Probate is often explained as retitling of assets although this is usually a small part of the process.  The personal representative must notify creditors and beneficiaries, distribute assets, resolve or pay any debts and claims against the estate and communicate with the court to verify that the process is done accurately and according to state of Hawaii law. 

Probate can be time-consuming and complicated.  The procedure can take from 6 - 12 months or even longer and many personal representatives hire an attorney to guide them through the legal process.  If the deceased person died with a will, the personal representative must distribute assets according to the instructions in the will.  A will may leave directions for many assets, however, there are also many classes of property that will transfer automatically and outside of the probate process. 

Transfer by Operation of Law

Some assets may be transferred upon death to other people by “operation of law.”  This type of transfer happens automatically and such property does not need go through the probate. 

Jointly Owned Property

The most common type of jointly owned property is a bank account.  Accounts that have been specifically designated with the “right of survivorship” will transfer by operation of law. 

Tenancy by the Entirety

Property owned as a “tenancy by the entirety” will also pass by operation of law without the need to go through probate.  In Hawaii, “tenancy by the entirety” is available to property owned by married couples and also to registered same sex domestic partners.  “Tenancy by the entirety” includes a “right of survivorship” that transfers the property to the other partner upon death. 

Transfer on Death or Payable on Death

Some financial investment accounts and insurance benefits may also be specifically designated to transfer on death or have a “death benefit” with a listed beneficiary. 

Property in a Trust

Property that is already within a trust will also avoid the probate process.  A trust is a powerful estate planning tool and can be used for tax planning, asset protection and also avoiding probate. 

Probate can be a complicated process that involves resolving the business and personal affairs of a person who has died.  The process can be informal or formal depending on the total value of assets and the type of property involved.  Call our office today for a consultation to see how we can help with your probate matters. 

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Wills, Trusts and Estate Planning

Estate planning is important no matter what your age to make sure your goals are carried out after you die.  Proper planning with an attorney can also reduce taxes and help you prepare for important health care decisions in advance. 

Will

A will is a document that states your wishes about what should happen after you die.  The most important decisions are who receives your property and who will take care of your children.  If you do not have a will when you die, the state of Hawaii will make those decisions for you even if they are different than your preferences.  A will can make sure that you make your own decisions for your property and your children. 

It is critical to hire a lawyer to draft your will and other estate planning documents.  Estate planning laws are different in every state and unless your estate planning documents are drafted with special consideration to Hawaii specific laws, your plans for what happens after you die may not be carried out. 

Family arrangements vary widely and you should carefully consider if your situation needs special planning.  A prior divorce, step-children and civil unions will all have impacts on your estate plan.  It is also important to make a will if you want to leave property to friends or distant relatives since they may not otherwise receive anything. 

Trust

A trust can give someone the benefit of your property without actually receiving the property immediately.  You may give your property to a trustee when you die and the trustee will take care of the property while giving the benefit to someone you name.  For example, you may specify that your house should go into a trust, a trustee make important decisions about the house and maintain it while a favorite niece lives in the house.  This is just one scenario and there are many different kinds of trusts to accomplish your desires. 

Tax Planning

Another reason to plan ahead when you die is that your property may be subject to an estate tax.  Both the federal government and Hawaii impose a tax on your estate when you die.  Proper estate planning can reduce or avoid taxes on your estate. 

Living Will and Durable Power of Attorney

An Advance Health Care Directive combines a power of attorney for health care and a living will into one document.  This document allows you to specify who will make your health care decisions if you are not able to make them yourself.  If you have specific instructions for your health care such as what happens when you are in an extended coma or if you want to donate your organs when you die, the Health Care Directive can also state those. 

There are many powerful estate planning techniques available to accomplish your goals for your family and property after you die.  Proper estate planning with an attorney can give you peace of mind knowing that your wishes will be carried out. 

Click here to see the many statutes that govern Hawaii estate planning law.  Hawaii Uniform Probate code

 

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Gideon and the Right to Counsel

Fifty years ago, the U.S. Supreme Court decided the case of Gideon v. Wainwright and directed state courts to provide an attorney to indigent defendants in criminal cases who have been charged with a serious crime and are not able to pay for an attorney. 

In 1961, Clarence Gideon was charged with burglary in Florida.  When it came time for his trial, he asked the judge for a court appointed attorney to represent him because he could not afford to pay for one.  The judge declined to give Gideon an attorney so Gideon represented himself at trial.  He lost and was sentenced to serve five years in prison. 

While serving his prison term, Gideon went to the prison library and wrote an appeal with a pencil on prison stationery to the U.S. Supreme Court challenging the judge’s refusal to grant him court-appointed counsel. 

The U.S. Supreme Court agreed with Gideon and granted him the right to a new trial while represented by a court appointed attorney.  The attorney skillfully uncovered exculpatory evidence and cross-examined the prosecution’s witnesses to expose Gideon’s innocence.  The jury took less than one hour acquit Gideon. 

As a result of the Gideon case, Hawaii and every state in the country now pay for an attorney to represent indigent defendants charged with crimes. If you have been charged with a crime and cannot afford an attorney, ask the judge for a court appointed attorney

Landlord and Tenant Disputes

Landlord and Tenant Law

Purchasing a house on Maui is expensive.  As a result, many people rent the home they live in.  Disputes between landlords and tenants happen frequently and can be frustrating for both parties.  Disagreements can often be settled outside of court.  In other situations, filing a lawsuit is necessary to resolve differences between the parties. 

The Hawaii Residential Landlord-Tenant Code is a useful reference when you have difficulty with your tenant or landlord.  The Code has information relevant to most situations you will encounter and will save you time and money if you read and follow its common sense procedures before you have a dispute.  

Hawaii Residential Landlord Tenant Code

The following are some rough guidelines you should follow to avoid many common landlord/tenant disagreements. 

Avoid Disputes Before They Happen

One method of avoiding disputes is to use a written rental agreement.  Reducing the terms agreed upon to writing will protect both the landlord and tenant and both parties should insist on signing one.  Make sure all important information is recorded in the agreement including when rent is due, the length of lease or rental term and any specific requirements pertaining to a security deposit, pets and smoking.  All important notices and correspondence should be in writing as well. 

Proper Eviction Procedure

In a month-to-month tenancy, 45 days notice is required to evict a tenant.  The end of the notice period should correspond to the end of a normal rental period.  For example, if the rental agreement specifies a month-to-month tenancy you should give notice on the 15th of the month before you want the tenancy to end. 

Nonpayment of Rent

A landlord may demand payment of rent anytime after it is due and may also notify the tenant that if payment is not made within five days, the rental agreement will terminate.  If the tenant does not make full payment of rent, the landlord may sue to evict the tenant and also to recover the unpaid rent. 

If you have a dispute with your tenant or landlord, do not hesitate to assert your legal rights. 

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Invasion of Privacy - Part 2

The public’s endless fascination with the private details of the rich, the famous and the unusual has driven aggressive journalism tactics to extremes that the drafters of our Constitution would never have imagined when they contemplated freedoms of the press. 

Modern photojournalism began in the United States in the 1880’s and it is no coincidence that privacy concerns started almost immediately.  In 1890, two lawyers, Samuel Warren and LouisBrandeis, published a law review article titled “The Right to Privacy” primarily to address concerns about aggressive journalists publishing information that people considered private.  The essay was directed at gossip and society sections of newspapers. 

“Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops."

The article was extremely influential and began the gradual recognition of a new privacy tort but 120 years later the tension between dueling freedoms of the press and individual privacy has never been greater. 

Caselaw, scholarly analysis and legislation have defined the parameters of the now almost universally accepted tort of invasion of privacy and broken it field into four categories:  1) “intrusion of solitude”; 2) “public disclosure of private facts”; 3) “false light” and 4) “appropriation.”  For this series, we will focus on “public disclosure of private facts” which is the main area of this tort applicable to restricting modern paparazzi. 

Hawaiian Privacy History

In 1968, the Hawaii Supreme Court recognized the broad concept of “invasion of privacy” by allowing a lawsuit for the tort of appropriation while hinting that other aspects of the tort may exist.  Also in 1968, the Hawaii constitutional convention debated invasions of privacy and added new language in the Hawaii Constitution.  The intent of the language was not entirely clear, however and the Hawaii Supreme Court only extended the new protections to government intrusions and not those by private citizens. 

In 1978, Hawaii held another constitutional convention and clarified the state’s intent to recognize the tort of invasion of privacy by adding a new provision specifically addressing the issue.  The convention language left no doubt as to its objective when it stated that “[i]n short, this right of privacy includes the right on an individual to tell the world to “mind your own business.”  Since 1978, Hawaiian case law addressing invasion of privacy has consistently confirmed the widely recognized four branches of the “invasion of privacy” tort. 

It is worthwhile at this point to note that invasion of privacy by the government and invasion of privacy by another citizen are two entirely different matters.  Government intrusion is specifically addressed in the Fourth Amendment to the U.S. Constitution and pertains to situations in criminal cases when police are searching for evidence.  The term “reasonable expectation of privacy” was coined in the famous U.S. Supreme Court case of Katz v. United States while discussing a governmental search and seizure. 

Invasion of privacy by a private person who is not acting for the government refers to the common law right to sue and recover damages.  The phrase “reasonable expectation of privacy” has often been borrowed from the criminal context and applied to civil cases because of its ability to concisely articulate an inherent right that we all feel. 

The new privacy legislation introduced by Senator Kalani English this year is a new and fascinating chapter in the invasion of privacy story.  As we continue the privacy series, we will consider the tort of “constructive invasion of privacy” in more detail and its relationship to the current four-part privacy tort.  

 

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Invasion of Privacy - Part 1

The Hawaiian State Legislature recently considered a bill introduced by Senator Kalani English that would recognize the tort of constructive invasion of privacy.  The legislation is titled the “Steven Tyler Act” and has received an extraordinary amount of attention.  The bill borrows statutory language from a similar California law that targets photographers who aggressively follow and track celebrities with the aim of capturing their picture. 

The Hawaiian legislation is called the Steven Tyler Act because the Aerosmith singer pushed for the legislation after paparazzi photographed him from a boat while he was at his own house on Maui in a situation that most people would consider private. 

Maui is a paradise on earth and as a result many of the world’s wealthy and famous spend time here enjoying the sun, ocean and relaxed island attitude.  Local residents have always respected the privacy of visitors and celebrities alike and only recently have paparazzi begun to cause problems. 

The tort of invasion of privacy was originally introduced in 1888 in a treatise by Thomas M. Cooley when he identified a right “to be let alone.”  Two years later Samuel Warren and Louis Brandeis expanded the concept in a landmark law review article that indentified a right to privacy while criticizing aggressive media.  Within a few years, states began to recognize the cause of action and now many courts from jurisdictions around the country have validated privacy suits. 

The state of Hawaii recognized a right to privacy in a series of steps, beginning with the case of Fergerstrom v. Hawaiian Ocean View Estates.  Two Constitutional amendments followed in 1968 and 1978 that further delineated a right to privacy against both the government and individuals. 

The world was irate in 1997 after Princess Diana was killed in a high-speed car chase purportedly attempting to evade paparazzi.  Soon after, California introduced a law designed to create new privacy protections for celebrities.  The state introduced additional laws strengthening its anti-paparazzi stance three subsequent times and to date, has some of the strongest privacy laws in the nation. 

The effect of the newly proposed Hawaiian legislation would be two-fold.  The bill would confirm in statute the right to sue for an invasion of privacy and would also join California’s law at the forefront of privacy legislation by focusing the lens of the tort to address modern technology. 

The field of privacy torts gives us a rare and fascinating study of how new torts are created and adopted.  When the new privacy Hawaiian legislation was introduced, dire predictions erupted forecasting an avalanche of lawsuits.  With a careful look at the history of this tort and its interaction with the First Amendment, we will see why excessive litigation is unlikely to happen and why this area of law is ripe for legislation and clarification.  We will continue exploring this topic and the proposed Hawaiian law in a series of blog posts about the Invasion of Privacy. 

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