The date that decides your association's position

May 28, 2024. Covenants recorded before it keep their ADU and long-term-rental restrictions. Covenants recorded after it do not, on qualifying lots.

Which raises the question every Hawaii planned community should ask before its next document project: what happens when we amend and re-record?

The statute grandfathers “private covenants recorded before the effective date.” It does not say what becomes of a restated declaration recorded in 2027 that carries forward a 1998 restriction. There is a reading on which the restriction survives as a pre-Act covenant merely restated, and a reading on which the operative recorded instrument is the 2027 one. We are not aware of Hawaii authority resolving it.

That is an unresolved point, and it is an expensive one to be wrong about. A community contemplating a restatement should get counsel on it first — and, if the ADU and rental restrictions matter, should consider whether a full restatement is worth the risk it creates.

Who this actually reaches

Mostly planned community associations under HRS ch. 421J, not condominiums. The statute’s reach is single-family and two-family detached zoning inside the urban district, which is where subdivision-style communities sit. Most multifamily condominium projects are outside it entirely.

That matters because ch. 421J is the thinner statute. It has no reserve requirement, no insurance mandate, no state registration, and no fining statute — and its document-restriction powers come almost entirely from the recorded declaration. A preemption aimed at recorded covenants lands hardest on the association type whose only real authority is recorded covenants.

The county layer, and the deadline

December 31, 2026 is the compliance deadline for every county. Honolulu’s implementation is reported as Ordinance 25-2, which reportedly relaxes the previous 3,500-square-foot minimum lot rule, allows an ADU up to 500 square feet on lots under 5,000 square feet and up to 1,000 square feet on lots of 5,000 square feet or more, permits an ADU where an ohana unit or two principal dwellings already exist, and drops the owner-occupancy covenant while retaining long-term-rental, no-short-term-rental and no-condominium-property-regime covenants. We could not verify those details against the City’s own pages, so confirm before relying on them.

The county ordinance is what sets the number the covenant may not go below. So the two documents have to be read together: the county sets the floor, and the covenant cannot dip under it on a qualifying lot.

What a board can do this quarter

• Find the recordation date of your operative declaration and every amendment. Before or after May 28, 2024 is the first question and it has a documentary answer.
• Check whether your lots are in the ch. 205 urban district and zoned for single-family or two-family detached dwellings. If not, the statute does not reach you.
• Check the hazard and SMA carve-outs. A community in a mapped high-hazard area or a special management area may be outside the mandate even if everything else fits.
• Do not amend the ADU or rental provisions without counsel — the restatement question above is live.
• Separate ADU restrictions from short-term-rental restrictions in your documents. Act 39 preempts limits on long-term rental. Short-term rental restrictions are untouched, and a covenant that lumps them together is harder to defend than one that treats them separately.

What to watch

County ordinances landing before the December 31 deadline, and the first Hawaii dispute over whether a restated covenant is a pre-Act or post-Act covenant. That case will decide more for Hawaii planned communities than the statute’s text does.