§171-36 - Lease restrictions; generally.
§171-36 Lease restrictions; generally. (a) Except as otherwise provided, the following restrictions shall apply to all leases:
(1) Options for renewal of terms are prohibited;
(2) No lease shall be for a longer term than sixty-five years, except in the case of a residential leasehold which may provide for an initial term of fifty-five years with the privilege of extension to meet the requirements of the Federal Housing Administration, Federal National Mortgage Association, Federal Land Bank of Berkeley, Federal Intermediate Credit Bank of Berkeley, Berkeley Bank for Cooperatives, or Veterans Administration requirements; provided that the aggregate of the initial term and extension shall in no event exceed seventy-five years;
(3) No lease shall be made for any land under a lease which has more than two years to run;
(4) No lease shall be made to any person who is in arrears in the payment of taxes, rents, or other obligations owing the State or any county;
(5) No lease shall be transferable or assignable, except by devise, bequest, or intestate succession; provided that with the approval of the board of land and natural resources, the assignment and transfer of a lease or unit thereof may be made in accordance with current industry standards, as determined by the board; provided further that prior to the approval of any assignment of lease, the board shall have the right to review and approve the consideration to be paid by the assignee and may condition its consent to the assignment of the lease on payment by the lessee of a premium based on the amount by which the consideration for the assignment, whether by cash, credit, or otherwise, exceeds the depreciated cost of improvements and trade fixtures being transferred to the assignee; provided further that with respect to state agricultural leases, in the event of foreclosure or sale, the premium, if any, shall be assessed only after the encumbrances of record and any other advances made by the holder of a security interest are paid;
(6) The lessee shall not sublet the whole or any part of the demised premises except with the approval of the board; provided that prior to the approval, the board shall have the right to review and approve the rent to be charged to the sublessee; provided further that in the case where the lessee is required to pay rent based on a percentage of its gross receipts, the receipts of the sublessee shall be included as part of the lessee's gross receipts; provided further that the board shall have the right to review and, if necessary, revise the rent of the demised premises based upon the rental rate charged to the sublessee including the percentage rent, if applicable, and provided that the rent may not be revised downward;
(7) The lease shall be for a specific use or uses and shall not include waste lands, unless it is impractical to provide otherwise;
(8) Mineral and metallic rights and surface and ground water shall be reserved to the State; and
(9) No lease of public lands, including submerged lands, nor any extension of any such lease, shall be issued by the State to any person to construct, use, or maintain a sunbathing or swimming pier or to use the lands for such purposes, unless such lease, or any extension thereof, contains provisions permitting the general public to use the pier facilities on the public lands and requiring that a sign or signs be placed on the pier, clearly visible to the public, which indicates the public's right to the use of the pier. The board, at the earliest practicable date, and where legally possible, shall cause all existing leases to be amended to conform to this paragraph. The term "lease", for the purposes of this paragraph, includes month-to-month rental agreements and similar tenancies.
(b) The board, from time to time, upon the issuance or during the term of any intensive agricultural, aquaculture, commercial, mariculture, special livestock, pasture, or industrial lease, may:
(1) Modify or eliminate any of the restrictions specified in subsection (a);
(2) Extend or modify the fixed rental period of the lease; or
(3) Extend the term of the lease
to the extent necessary to qualify the lease for mortgage lending or guaranty purposes with any federal mortgage lending agency, to qualify the lessee for any state or private lending institution loan, private loan guaranteed by the State, or any loan in which the State and any private lender participates, or to amortize the cost of substantial improvements to the demised premises that are paid for by the lessee without institutional financing, such extension being based on the economic life of the improvements as determined by the board or an independent appraiser; provided that the approval of any extension shall be subject to the following:
(1) The demised premises have been used substantially for the purpose for which they were originally leased;
(2) The aggregate of the initial term and any extension granted shall not be for more than fifty-five years;
(3) In the event of a reopening, the rental for any ensuing period shall be the fair market rental at the time of reopening;
(4) Any federal or private lending institution shall be qualified to do business in the State;
(5) Proceeds of any mortgage or loan shall be used solely for the operations or improvements on the demised premises;
(6) Where improvements are financed by the lessee, the lessee shall submit receipts of expenditures within a time period specified by the board, otherwise the lease extension shall be canceled; and
(7) The rules of the board, setting forth any additional terms and conditions, which shall ensure and promote the purposes of the demised lands.
(c) The board at any time during the term of any intensive agricultural, aquaculture, or mariculture lease and when justified by sound economic practices or other circumstances, may permit an alternative agricultural, aquaculture, or mariculture use or uses for any portion or portions of the land demised. As a condition to permitting alternative uses, the board may require such other modifications, including rental adjustments or changes in the lease as may be necessary to effect or accommodate the alternative use or uses. An alternative use or uses may be allowed by the board upon:
(1) The application of the lessee;
(2) Consent of each holder of record having a security interest in the leasehold; and
(3) A finding by the board that the alternative use or uses are in the public interest.
(d) The board, from time to time, during the term of any agriculture, intensive agriculture, aquaculture, commercial, mariculture, special livestock, pasture, or industrial lease, may modify or eliminate any of the [restrictions] specified in subsection (a), extend or modify the fixed rental period of the lease, or extend the term of the lease upon a showing of significant economic hardship directly caused by:
(1) State disaster, pursuant to chapter 209, including seismic or tidal wave, tsunami, hurricane, volcanic eruption, typhoon, earthquake, flood, or severe drought; or
(2) A taking of a portion of the area of the lease by government action by eminent domain, withdrawal, or conservation easement; provided that the portion taken shall not be less than ten per cent of the entire leased area unless otherwise approved by the board; and provided that the board determines that the lessee will not be adequately compensated pursuant to the lease provisions.
(e) The approval of any extension granted pursuant to subsection (d) shall be subject to the following:
(1) The demised premises has been used substantially for the purposes for which they were originally leased;
(2) The aggregate of the initial term and any extension granted shall not be for more than fifty-five years;
(3) The rental shall not be less than the rental for the preceding term;
(4) The rules of the board, setting forth any additional terms and conditions which shall ensure and promote the purposes of the demised lands; and
(5) The length of the extension shall not exceed a reasonable length of time for the purpose of providing relief and shall in no case exceed five years. [L 1962, c 32, pt of §2; am L 1965, c 239, §18; Supp, §103A-36; am L 1967, c 234, §14; HRS §171-36; am L 1969, c 217, §1; am L 1971, c 19, §1 and c 38, §1; am L 1976, c 196, §1; am L 1978, c 191, §1; am L 1982, c 37, §1 and c 55, §1; am L 1988, c 159, §2; am L 1989, c 104, §1; am L 1990, c 242, §1; am L 1992, c 283, §1; am L 1994, c 114, §1; am L 1997, c 67, §1, c 206, §1, c 258, §6, and c 286, §1; am L 1999, c 160, §21; am L 2000, c 261, §§2, 5; am L 2002, c 68, §2, c 103, §1, and c 180, §1; am L 2005, c 129, §2]
Note
L 2005, c 129, §3, provides in part: "... the department of land and natural resources is urged to commence using the prevailing real property tax assessment value of the fast land in determining lease rent for a lease of the state submerged land or land beneath tidal water entered into after July 1, 2006."
Cross References
Mineral rights and leases, see chapter 182.