(a) In determining under section 668A-9(a) whether partition in kind would result in great prejudice to the cotenants as a group, the court shall consider the following:

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Terms Used In Hawaii Revised Statutes 668A-10

  • Attachment: A procedure by which a person's property is seized to pay judgments levied by the court.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
  • Heirs property: means real property held in tenancy in common that satisfies all the following requirements as of the filing of an action for partition:

    (1) There is no agreement in a record binding all the cotenants that governs the partition of the property;

    (2) One or more of the cotenants acquired title from a relative, whether living or deceased; and

    (3) Any of the following applies:

    (A) Twenty per cent or more of the interests are held by cotenants who are relatives;

    (B) Twenty per cent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or

    (C) Twenty per cent or more of the cotenants are relatives. See Hawaii Revised Statutes 668A-2

  • Partition in kind: means the division of heirs property into physically distinct and separately titled parcels. See Hawaii Revised Statutes 668A-2
(1) Whether the heirs property practicably may be divided among the cotenants;
(2) Whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if it were sold as a whole, taking into account the condition under which the court-ordered sale likely would occur;
(3) Evidence of the collective duration of ownership or possession of the property by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant who are or were relatives of that cotenant or each other;
(4) A cotenant’s sentimental attachment to the property, including, without limitation, any attachment arising because the property has ancestral or other unique or special value to the cotenant;
(5) The lawful use being made of the property by a cotenant and the degree to which the cotenant would be harmed if the cotenant could not continue the same use of the property;
(6) The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property; and
(7) Any other relevant factor.
(b) The court shall not consider any one factor in subsection (a) to be dispositive without weighing the totality of all relevant factors and circumstances.

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