§101-28 Possession pending action;
immediate occupation by plaintiff. At any time after the service of
summons the court may, upon motion of the plaintiff and upon notice to the
defendant, issue an order putting the plaintiff in possession of the land
sought to be condemned and permitting the plaintiff to do such work thereon as
may be required for the purpose for which the taking of the land is sought.
The motion shall contain a statement of the reasons for requiring an immediate
occupation of the land sought to be condemned and a statement of the sum of
money estimated by the plaintiff to be just compensation or damages for the
taking of the land. Upon the filing of the motion the court shall issue an
order directed to the defendants and returnable not more than twenty days from
the date of the filing of the motion, requiring the defendants to appear and
show cause why the motion should not be granted. The court may require proof
by affidavit or otherwise of the right of the plaintiff to maintain the action
and of the facts set forth in the motion and shall grant or deny the motion as
the public interest and the rights of the parties may require.
Where the plaintiff is not the State or a
county, the court may, upon motion of any defendant and good cause shown
therefor, require the deposit with the clerk of the court, of such additional
amount of money, or of a surety bond approved by the court in such additional
amount, as the court deems necessary to reasonably secure the defendant in the
collection of the final award which may be made thereafter, taking into
consideration the adequacy of the initial estimate, the financial
responsibility of the plaintiff and other pertinent circumstances. [L 1937, c
184, pt of §5; RL 1945, §319, pt of subs 1; am L 1947, c 200, pt of §1(d); am L
1951, c 12, pt of §1(l); RL 1955, §8-26; HRS §101-28]
Case Notes
Filing of motion for order of possession will not be
restrained as defendants may be heard on order itself to protect their rights.
39 H. 53.
Section is generally available to condemnors while §101-29 is
restricted to use by the State or a county. 49 H. 494, 421 P.2d 300.
Notes of Decisions
Hous. Fin. & Dev. Corp. v. Takabuki, 921 P.2d 92 (Haw. 1996).
· cites it 12× “The only question is whether the blight of summons damages should stop accruing after the funds were deposited with the clerk of the circuit court.”
City & Cnty. of Honolulu v. Mkt. Place, Ltd., 517 P.2d 7 (Haw. 1973).
· cites it 10× “One arises during the period between the date of order of possession under HRS §§ 101-28 or 29 and the date of final payment of just compensation to the defendant, and consists of interest at the statutory rate of 5% per annum provided in HRS §§ 101-33 and 25 applied during this…”
City & Cnty. of Honolulu v. BONDED INVEST. CO., LTD., 507 P.2d 1084 (Haw. 1973).
· cites it 4× “" HRS § 101-33 provides that, as a part of just compensation and damages, interest at the rate provided in HRS § 101-25 shall be given from the date of order of possession under HRS § 101-28, 29, until the final judgment is paid.”
State, by Atty. Gen. v. Pioneer Mill Co., 637 P.2d 1131 (Haw. 1981).
· cites it 2× “One arises during the period between the date of order of possession under HRS §§ 101-28 or 29 and the date of final payment of just compensation to the defendant, and consists of interest at the statutory rate of 5% per annum provided in HRS §§ 101-33 and 25 applied during this…”
Cnty. of Kauai v. Hanalei River Holdings Ltd.., 394 P.3d 741 (Haw. 2017).
· cites it 2× “One arises *524 during the period between the date of order of possession under HRS §§ 101-28 or 29 and the date of final payment of just compensation to the defendant, and consists of interest at the statutory rate of 5% per annum provided in HRS §§ 101-33 and 25 applied during…”
City & Cnty. of Honolulu v. Ing, 58 P.3d 1229 (Haw. 2002).
“If the defendant in the defendant’s answer, or in return to the order to show cause, issued under section 101-28, denies that the use for which the property sought to be condemned is a public use, or a superior public use within the meaning of section 101-7, the issue may, upon…”
Hous. Fin. & Dev. Corp. v. Castle, 819 P.2d 82 (Haw. 1991).
· cites it 2× “In order to do this, the condemning authority has to deposit what it, in good faith, estimates the compensation for the property condemned to be, and the owner, if there are no tax liens outstanding, can usually draw down that deposit.”
City & Cnty. of Honolulu v. Sherman, 129 P.3d 542 (Haw. 2006).
“If the defendant in the defendant's answer, or in return to the order to show cause, issued under section 101-28, denies that the use for which the property sought to be condemned is a public use, or a superior public use within the meaning of section 101-7, the issue may, upon…”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.