▪ Examining the Impact of Act 5 on Restrictive Deed Covenants (CC&Rs)

an earlier version of this post was published in Hawaii Agriculture magazine (July – September 2006)

Hawaii law protects the “right to farm.”  But what exactly does that mean? 

In addition to the Right to Farm Act detailed here, the Hawaii Legislature recently outlawed certain agriculture-restrictive deed restrictions known as “conditions, covenants, and restrictions,” or CC&Rs. 

Ag-restrictive CC&Rs

Use of land within many so-called “agricultural subdivisions” is governed by CC&Rs which limit or restrict otherwise legal agricultural uses.  CC&Rs have been characterized as “private zoning,” because they represent a private agreement among neighboring landowners to mutually restrict the otherwise legal uses of their land. 

For example, ag-restrictive CC&Rs may restrict crop height or prohibit more than a certain number of animals on a parcel, despite these uses being perfectly permissible in an Agriculture district. 

Act 5

Overriding Governor Lingle’s veto, the 2003 Legislature enacted Act 5 (now codified here) and outlawed CC&Rs that restrict “agricultural uses and activities” on land classified "Agriculture," if the CC&Rs were created after July 8, 2003, the effective date of the Act. 

The definition of “agricultural uses and activities” is somewhat different than the definition of “farm operation” in the Right to Farm Act, but does cover a broad range of activities.

Protected agricultural uses include crop cultivation, orchards, farming, animal husbandry, ranching, aquaculture, forestry, wind energy generation, and accessory uses.  A more detailed list of protected activities is set out in the State Land Use Law.

The only ag-restrictive CC&Rs allowed are those that protect environmental or cultural resources, agriculture leases, or utility or access easements.  Act 5 also permits the counties to enact further limitations under their zoning power, but no county has yet done so.

“Voidable” not "Void"

Act 5 makes ag-restrictive CC&Rs “voidable,” not “void.”  What this means is that if a community association or neighboring landowner attempts to enforce an ag-restrictive CC&R, it is not automatically invalid and the farmer must properly assert Act 5 as a defense. 

In other words, if Act 5 is applicable, care must be taken to insure that the farmer does not inadvertently waive Act 5’s protections. 

Finally, what if a deed contains ag-restrictive CC&Rs that were agreed to before July 8, 2003?  If that’s the case, the Act 5 defense may not be available.  The Legislature avoided constitutional problems of interfering with existing agreements and property rights when it enacted the law, so only outlawed CC&Rs entered into after the Act’s passage.