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Hawaii Revised Statutes

Haw. Rev. Stat. § 101-29 (2026)

  Possession pending action; alternative procedure

✓ current as of July 2026
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     §101-29  Possession pending action; alternative procedure.  Where the plaintiff is the State or any county, the following alternative procedure may be followed.  At any time after the commencement of an action pursuant to this part, the State or any county may file a motion for an order of possession invoking this section and supported by an affidavit alleging, or by oral evidence prima facie showing:

     (1)  The right of the State or county to maintain the action;

     (2)  The public use for which the real property sought to be condemned is being taken; and

     (3)  The sum of money estimated by the State or county to be just compensation or damages for the taking of the real property.

     Upon such motion and upon payment of such estimated sum of money to the clerk of the court for the use of the persons entitled thereto, the court shall issue an order ex parte putting the State or county in possession of the real property sought to be condemned and permitting the State or county to do such work thereon as may be required for the purpose for which the taking of the property is sought.  The order placing the State or county in possession shall become effective upon the expiration of ten days after service thereof; provided that for good cause shown within the ten days, the court may vacate or modify the order or postpone the effective date thereof for an additional period of time.  Service of the order shall be made personally on those defendants who are in actual possession, and in other cases may be made by depositing a copy thereof in a United States post office, postage prepaid, registered mail addressed to the defendants at their last known addresses, or to their attorneys of record. [L 1951, c 12, pt of §1(l); RL 1955, §8-27; HRS §101-29]

 

Cross References

 

  Service by certified mail, see §1-28.

 

Case Notes

 

  Despite its earlier mixed messages regarding condemnee's right to possession after entry of quick-take possession order in eminent domain proceeding for a fire station replacement project, the condemnor took exclusive possession of the property by:  (1) filing an eminent domain certification stating that it had taken possession of the property; (2) notifying condemnee's attorneys that condemnee did not have a legal right of possession, that neither condemnee nor any other person was authorized to enter the property, and that any personal property would be removed without notice; and (3) reimbursing condemnee for taxes condemnee paid after issuance of possession order.  125 F. Supp. 3d 1080 (2015).

  Entry of order of possession is not a bar to abandonment.  42 H. 415.

  Section includes no provision for interlocutory appeal.  44 H. 7, 352 P.2d 333.

  Paragraph (2) only requires a showing of ultimate public use.  No showing of reasons for immediate occupation is required.  49 H. 494, 421 P.2d 300.

  If no motion to vacate within ten days, condemning authority has absolute right to immediate possession.  49 H. 494, 421 P.2d 300.

  Leasing on a temporary basis after possession obtained under this section.  49 H. 494, 500-03, 421 P.2d 300.

  Purpose of section.  54 H. 385, 507 P.2d 1084.

  The court in an eminent domain proceeding has the discretion to permit a governmental entity to withdraw a portion of a deposit of estimated just compensation when the deposit has not been disbursed to the landowner, the government acted in good faith in seeking to adjust the estimate to accurately reflect the value of the property on the date of the summons, and the adjustment will not impair the substantial rights of any party in interest.  139 H. 511, 394 P.3d 741 (2017).

  Where the plaintiff county of Kauai ("county") sought to withdraw a portion of the estimated just compensation that had been deposited with the court following eminent domain proceedings, the circuit court did not abuse its discretion in allowing the county to withdraw a portion of the amount deposited.  The estimated just compensation had not been dispersed to the landowners when the county, which appeared to have acted in good faith, sought to adjust the estimate to accurately reflect the value of the property on the date of summons, and the adjustment did not impair the substantial rights of the landowners.  137 H. 471 (App.), 375 P.3d 250 (2016).

 

 

Notes of Decisions
Cited in 9 cases (2 in the last 5 years), 1973–2025 · leading case: Cnty. of Kaua'i v. Hanalei River Holdings Ltd., 375 P.3d 250 (Haw. App. 2016).
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Cnty. of Kaua'i v. Hanalei River Holdings Ltd., 375 P.3d 250 (Haw. App. 2016). · cites it 20× “The Sheehan Defendants contend that the circuit court’s actions should be reviewed under the abuse of discretion standard, and that there is no legal authority that permits the County to withdraw a portion of the estimated just compensation that was deposited pursuant to HRS §…”
Cnty. of Hawai'i v. C & J Coupe Fam. Ltd. P'ship, 198 P.3d 615 (Haw. 2008). · cites it 4× “On October 9, 2000, Appellee also filed an "Ex Parte Motion for Order Putting [Appellee] in Possession" pursuant to HRS § 101-29 (1993), which was granted on October 10, 2000.”
Cnty. of Kauai v. Hanalei River Holdings Ltd.., 394 P.3d 741 (Haw. 2017). · cites it 9× “Addressing the circuit court’s order allowing the County to withdraw a portion of its estimated just compensation, the ICA reviewed HRS §§ 101-29, -30, and -31 and noted that the statutes do not expressly authorize the withdrawal of a portion of the deposit.”
City & Cnty. of Honolulu v. Mkt. Place, Ltd., 517 P.2d 7 (Haw. 1973). · cites it 10× “00 as estimated just compensation for the property pursuant to HRS § 101-29. On June 5, 1970, the City and County filed a Motion for Order Putting Plaintiff in Possession, and on the same date the trial court issued an order to this effect, to become effective ten days after…”
City & Cnty. of Honolulu v. BONDED INVEST. CO., LTD., 507 P.2d 1084 (Haw. 1973). · cites it 8× “It follows also that the estimate cannot serve as an admission against interest.”
James v. City & Cnty. of Honolulu, 125 F. Supp. 3d 1080 (D. Haw. 2015). · cites it 11× “On April 22, 2010, the City filed an Ex Parte Motion for an Order Putting the City in Possession of the Property pursuant to HRS § 101-29 (“Ex Parte Motion”). The City’s Ex Parte Motion and its supporting evidence recites that the City is seeking condemnation of the subject…”
Hawaii Hous. Auth. v. Midkiff, 739 P.2d 248 (Haw. 1987). · cites it 4× “Counsel for the lessees takes the basic position that we should ignore our previous decisions which held that blight of summons damages were an integral part of just compensation in cases where the date of valuation is fixed at the date of summons, and urges us to decide that…”
State of Hawaii v. Pedro (D. Haw. 2025). · cites it 3× “The Hawaii State Court matter stems from an eminent domain action brought pursuant to Haw. Rev. Stat. § 101-29 . The eminent domain action was brought by the State of Hawaii in Hawaii state court pursuant to Hawaii state law against fifteen individual defendants and their heirs,…”
HART v. Ward, 153 Haw. 462 (Haw. 2023). · cites it 2× “After HART filed its Complaint, HART obtained an Order of Possession before final judgment through an expedited procedure under HRS § 101-29 (2012). The Order of Possession specified that HART was thereby awarded all real property interests it sought, as well as the ability to…”
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