A property in Waimanalo is located adjacent to land where native Hawaiian families have historically exercised traditional gathering rights. The seller is aware that community members periodically access a portion of the property to gather plants recognized under traditional Hawaiian practice. The seller does not mention this on the HRS 508D disclosure form, believing it is not a physical defect. After closing, the buyer is surprised to find people accessing the property. Which statement most accurately reflects the seller's disclosure obligations in this situation?

Correct Answer

B) The seller was required to disclose the traditional gathering access as a material fact, since it affects the buyer's use and enjoyment of the property

Native Hawaiian traditional and customary access and gathering rights recognized under HRS §1-1 and Article XII, Section 7 of the Hawaii Constitution can encumber private property and are not extinguished by a fee simple deed or title insurance. These rights materially affect a buyer's use and enjoyment of the property and therefore constitute material facts that must be disclosed under HRS Chapter 508D. The seller's knowledge of ongoing access activity triggers an affirmative disclosure duty regardless of whether the right is characterized as a physical defect.