§501-241 - Leasehold time share interests. - Hawaii Statutes

LEASEHOLD TIME SHARE INTERESTS

 

     §501-241  Leasehold time share interests.  (a)  Except as otherwise expressly provided in this part, the requirements of chapter 502 shall apply to a leasehold time share interest and the requirements of this chapter shall not apply to such leasehold time share interest.

     (b)  Without limiting the generality of subsection (a), the following instruments need not be registered pursuant to this chapter to be effective and shall be recorded in the bureau of conveyances pursuant to chapter 502:

     (1)  An assignment or other instrument transferring a leasehold time share interest;

     (2)  A mortgage or other instrument granting a lien on a leasehold time share interest;

     (3)  An agreement of sale for the sale of a leasehold time share interest.  Any such agreement of sale shall be subject to section 502-85 and shall not be subject to section 501-101.5;

     (4)  A lien or notice of lien pertaining to a leasehold time share interest in favor of a time share owners association, an association of owners under chapter 514A or 514B, or a similar homeowner's association;

     (5)  A judgment, decree, order of court, attachment, writ, or other process against a leasehold time share interest;

     (6)  A mechanic's or materialman's lien or other lien upon a leasehold time share interest;

     (7)  A lis pendens or notice of pendency of action, notice, affidavit, demand, certificate, execution, copy of execution, officer's return, or other instrument relating to a leasehold time share interest and otherwise required or permitted to be recorded or registered in connection with the enforcement or foreclosure of any lien, whether by way of power of sale pursuant to section 667-5, or otherwise;

     (8)  A power of attorney given by the owner of a leasehold time share interest or the vendor or vendee under an agreement of sale for the sale of a leasehold time share interest, a mortgagee or other lienor having a mortgage or lien upon a leasehold time share interest, or another party holding a claim or encumbrance against or an interest in a leasehold time share interest; or

     (9)  An instrument assigning, extending, continuing, dissolving, discharging, releasing in whole or in part, reducing, canceling, extinguishing, or otherwise modifying or amending any of the foregoing instruments.

     (c)  Every conveyance, lien, attachment, order, decree, instrument, or entry affecting a leasehold time share interest which would, if registered, filed or recorded, or entered in the office of the assistant registrar pursuant to this chapter, affect the leasehold time share interest to which it relates, if recorded, filed, or entered in the bureau of conveyances pursuant to chapter 502, shall be notice to all persons from the time of such recording, filing, or entering in the bureau of conveyances.

     (d)  The assistant registrar shall not be required to make a memorandum or other note upon the certificate of title for registered land subject to a leasehold time share interest of any conveyance, lien, attachment, order, decree, instrument, or entry recorded, filed, or entered solely in the bureau of conveyances against the leasehold time share interest.

     (e)  Notwithstanding subsections (a), (b), and (c), the following instruments shall be registered by recording the instrument with the assistant registrar and by a brief memorandum thereof made by the assistant registrar upon the certificate of title, and signed by the assistant registrar:

     (1)  The apartment or unit lease, and any amendments thereto, and any cancellation or extinguishment thereof;

     (2)  Any deed or other instrument conveying the fee interest in registered land and any other instrument encumbering or otherwise dealing with the fee interest in registered land including but not limited to a mortgage of the fee interest, an assignment of the lessor's interest in a lease, or the designation, grant, conveyance, transfer, cancellation, relocation, realignment, or amendment of any easement encumbering the fee interest;

     (3)  If the apartment or unit lease is a sublease, any assignment or other conveyance of the sublessor's estate or any other leasehold estate which is superior to the apartment or unit lease, and any other instrument mortgaging, encumbering, or otherwise dealing with the sublessor's estate or any other estate which is prior and superior to the leasehold time share interest;

     (4)  Any other instrument assigning, modifying, canceling, or otherwise dealing with an interest in registered land which is:

         (A)  Less than an estate in fee simple; and

         (B)  Prior or superior to the lessee's interest in a leasehold time share interest;

     (5)  The declaration of condominium property regime or similar declaration by whatever name denominated, the bylaws of the association of owners under chapter 514A or 514B, the condominium map, any declaration of annexation or deannexation, any declaration of merger and any instrument effecting a merger, and any amendments to any of the foregoing and any cancellation or extinguishment thereof;

     (6)  Any declaration of covenants, conditions, and restrictions, or similar instrument, by whatever name denominated, encumbering the fee, the bylaws of any homeowners association, any declaration of annexation or deannexation, any amendments and supplements thereto, and any cancellation or extinguishment thereof;

     (7)  Any declaration of covenants, conditions, restrictions, or similar instrument, by whatever name denominated, establishing the time share plan, the bylaws of the time share owners association, any declaration of annexation or deannexation, any amendments and supplements thereto, and any cancellation or extinguishment thereof; and

     (8)  Any notice of time share plan, any declaration of annexation or deannexation, any amendments thereto, and any cancellation or extinguishment thereof.

     (f)  The execution or joinder of the lessees of the leasehold time share interests shall not be required for the registration or notation of instruments which must be registered and noted pursuant to subsection (e); provided, however, an instrument amending, canceling, or extinguishing an apartment lease shall not be registered unless such instrument is:

     (1)  Required to be registered by order of a court of competent jurisdiction;

     (2)  Executed by officers of the time share owners association pursuant to any registered time share instrument or power of attorney which authorizes the time share owners association, its board, or its officers, to deal with issues arising under the apartment lease; or

     (3)  Accompanied by an affidavit of an officer of any title insurer or underwritten title company, as defined in section 431:20-102, stating that based upon a search of the records of title to the apartment lease, the parties who executed and acknowledged the instrument amending, canceling, or extinguishing the apartment lease are the owners of the leasehold time share interests in such apartment and/or their duly authorized attorney(s)-in-fact.  In the event that the affidavit is incorrect and the title insurer or underwritten title company acted with gross negligence or in bad faith in making the affidavit, the title insurer or underwritten title company shall be liable to the owners of the leasehold time share interests for treble damages and reasonable attorneys' fees and costs.

This section shall not alter the rights of the parties to any such instrument. [L 1998, c 219, pt of §1; am L 2008, c 28, §30]

 

Note

 

  The 2008 amendment is retroactive to July 1, 2006.  L 2008, c 28, §43.