Fong v. Hashimoto, 19424.

Decision Date01 February 2000
Docket NumberNo. 19424.,19424.
PartiesLeonard K.K. FONG and Ellen Lee Fong, Respondents-Appellants, and Dale S.N. Fong and Linda L. Fong, Intervening Plaintiffs-Appellants, v. Muriel Y. HASHIMOTO and Susan M. Hashimoto, as Trustees of the Living Trust of Gerald S. Hashimoto and Muriel Y. Hashimoto dated October 13, 1992, and Susan M. Hashimoto, individually, Petitioners-Appellees.
CourtHawaii Supreme Court

R. Laree Mcguire and Jared N. Kawashima (Michael A. Lilly of Ning, Lilly & Jones with them on the briefs), for petitioners-appellees.

Trudy Burns Stone (Andrew R. Bunn of Chun, Kerr, Dodd, Beaman & Wong with her on the brief) for respondents-appellants.

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, and RAMIL, JJ.

Opinion of the Court by KLEIN, J.
I. SYNOPSIS

We granted the application for a writ of certiorari filed by Petitioners-Appellants Muriel Y. Hashimoto and Susan M. Hashimoto, as Trustees of the Living Trust of Gerald S. Hashimoto and Muriel Y. Hashimoto (the Hashimoto trustees), and Susan M. Hashimoto (Susan) individually (collectively the Hashimotos), to review the decision of the Intermediate Court of Appeals (ICA) in Fong v. Hashimoto, 92 Hawai`i 568, 994 P.2d 569 (Ct.App.1998) (hereinafter, the "ICA's opinion"). In Fong, Leonard K.K. Fong and Ellen Lee Fong (Senior Fongs), along with Dale S.N. Fong and Linda L. Fong (Junior Fongs) (collectively Fongs), appealed the circuit court's dissolution of a temporary restraining order (TRO) against the Hashimotos building a two-story home and granting the Hashimotos' motion to dismiss. The ICA vacated and remanded the circuit court's dismissal, holding, inter alia, that the retention of legal title, pursuant to an agreement of sale (a/s), is a sufficient interest to impose a restrictive covenant and that the restrictive covenant, burdening the Hashimotos' lot, could also be enforced as an equitable servitude. For the following reasons, we reverse the ICA's opinion inasmuch as the "one-story in height" restriction is ambiguous, and therefore, unenforceable in law.1 Moreover, we disagree with the ICA's analysis and emphasize that Fogarty failed to create a legally enforceable restrictive covenant over Lot 11 simply by describing a one-story height restriction in the deed to Lot 11.

II. DISCUSSION

We agree with the essential facts, as set forth in the ICA's opinion as follows:

The parties own lots in an Alewa Heights subdivision, known as the "Fogarty Subdivision," named for the common grantor of the lots, Edward Fogarty. The subdivision consists of fifteen lots. Upon entering the Fogarty Subdivision, Lots 4 and 5 are adjacent lots located to the left, on the mauka side of the road. The Junior Fongs own Lot 4, and the Senior Fongs own Lot 5. Lot 11, owned by the Hashimotos, is located on the makai side of the road, facing Lots 4 and 5.

The history of the Junior and Senior Fongs' title is as follows. On March 27, 1940, Fogarty entered into an unrecorded a/s to sell Lot 4 to John Carden Austin and Frances W. Austin (Austins). The Austins assigned this a/s to James Akana Ai and Frances Leon Ai (Ais) by an unrecorded assignment, dated May 12, 1942. The administrators of Fogarty's estate conveyed Lot 4 by way of a recorded deed to the Ais on January 24, 1944. The following covenant was contained in the deed:

That at no time shall any building or structure or any part thereof be erected or placed or allowed to remain on [Lot 4] within fifteen (15) feet of the property boundary line on the 20-foot right-of-way adjoining said premises.

The Fogarty-Ai deed did not mention any height or view restrictions. On September 21, 1984, the Ais conveyed Lot 4 to the Junior Fongs through a recorded deed.

On April 4, 1940, Fogarty executed a deed conveying Lot 5 to Noel Lee-Von Howell and Verona O. Howell (Howells). The deed contained the following setback restrictions:

[A]t no time shall any building or structure or any part thereof be erected or placed or allowed to remain on [Lot 5] within fifteen (15) feet of the property boundary line on the 20-foot road right-of-way adjoining said premises, nor within five (5) feet of the property boundary line on the 15-foot road right-of-way adjoining said premises.

No view or height restrictions were mentioned in the Fogarty-Howell deed. The chain of title from the Howells to the Senior Fongs is unbroken, the Senior Fongs acquiring Lot 5 by way of a November 29, 1968 recorded deed from Martin Fried and L. Louise Fried (Frieds).

By way of an unrecorded a/s dated April 5, 1941, Fogarty agreed to sell Lot 11 to Franklyn J. De Canio and Lucille C. De Canio (De Canios). On June 26, 1943, the administrators of Fogarty's estate conveyed Lot 11 to the De Canios by a recorded deed. The deed provided that "IT IS UNDERSTOOD AND AGREED that the execution of the within indenture by the Grantors shall constitute full compliance with and performance by [Fogarty] and the Grantors of any obligations under [the April 5, 1941 agreement of sale]."

The De Canios agreed to several restrictive covenants by the following provisions in their deed:

AND the Grantees, in consideration of the premises and of One Dollar ($1.00) received to their satisfaction from the Grantors, do hereby for themselves and their assigns, and the survivor of them and his or her heirs and assigns, covenant and agree with the Grantors and their successors and assigns, as follows:
1. That at no time shall any building or structure or any part thereof be erected or placed or allowed to remain on the hereinabove described premises of more than one (1) story in height, nor within fifteen (15) feet of the property boundary line on the 20-foot road right-of-way adjoining said premises, nor within five (5) feet of the property boundary line on the 15-foot road right-of-way adjoining said premises.
2. That no deed, lease, mortgage or other conveyance of the premises hereby conveyed will be made unless the same shall in each case contain the same restrictive covenants, including this covenant, either expressly or by appropriate reference, nor unless or until the grantee, lessee, mortgagee, or other person thereunder shall join therein and bind himself, his heirs and assigns to require the same covenants on the part of any grantee, lessee, mortgagee, or other person under any deed, lease, mortgage or other conveyance made by him.
3. That the foregoing covenants shall run with the land hereby conveyed and shall also apply to and be equally binding upon the legal representatives and successors in interest of the parties hereto, whether or not expressly contained in any deed or other instrument whereby any title to or interest in said property is obtained.

(Emphases added.)

The De Canios then conveyed Lot 11 to Adolph J. Mendonca and Violet G. Mendonca (Mendoncas) by way of a recorded deed dated August 16, 1943. The De Canio-Mendonca deed contained the same restrictive covenant provisions as quoted above. In turn, the Mendoncas conveyed Lot 11 to Gerald S. Hashimoto and Muriel Y. Hashimoto (Mr. and Mrs. Hashimoto) in a recorded deed dated February 19, 1946. The Mendonca-Hashimoto deed stated that the conveyance was "subject ... to ... [,inter alia,] [t]he covenants and building restrictions relative to the use of said land as set forth in [the De Canio-Mendonca deed.]" The Mendonca-Hashimoto deed did not detail the specific covenants and building restrictions.

On October 13, 1992, Mr. and Mrs. Hashimoto executed a warranty deed, which they later recorded, conveying Lot 11 to the Hashimoto trustees. The warranty deed's attached Exhibit A described the property and stated that the conveyance was "subject to [,inter alia,] all grants, easements, covenants, restrictions, liens and encumbrances of record." Finally, on December 23, 1994, the Hashimoto trustees executed a recorded deed conveying an undivided one-half interest to Susan, as a tenant in severalty, and retaining the other undivided one-half interest in the Hashimoto trustees as a tenant in common. This most recent deed provided that the conveyance of Lot 11 was "subject... to ... [,inter alia,] [r]estrictions, covenants and conditions as contained in [the DeCanio-Mendonca deed]."

The dispute between the parties arose in January 1995, when the Hashimotos began building a two-story home on Lot 11. On April 7, 1995, Ellen L. Fong (Ellen) spoke to the owners of Lot 14, who explained that they did not build a higher house because of the restriction in their deed. Ellen then spoke to Susan's sister, Sandra Suan (Sandra), informing her that the house on Lot 11 might be too high. On April 12, 1995, Sandra obtained the deed to Lot 11 from her father's study and told Susan that there were restrictive covenants in the deed. The Senior Fongs sent a letter dated April 14, 1995 to the Hashimotos' contractor, Armstrong Builders (Armstrong), advising them that the construction of the Hashimotos' home "may be violating certain restrictions placed upon [Lot 11] by the developers [that] are recorded within [the Hashimotos' deed]." Construction stopped on April 14, 1995, but the Hashimotos instructed Armstrong to resume construction on May 2, 1995.

On May 30, 1995, the Senior Fongs filed a complaint against the Hashimotos seeking declaratory and injunctive relief. The Senior Fongs alleged that "[the Hashimotos'] two-story building, if permitted to remain, w[ould] severely interfere with and shut off the view from the [Senior] Fong's [sic] home, to their great detriment."

On June 2, 1995, the circuit court issued a temporary restraining order (TRO), pursuant to a motion by the Senior Fongs "in order to prevent further harm to [the Senior Fongs], to preserve the status quo and the equities of the parties until a hearing may be held on [the Senior Fongs'] motion for preliminary injunction."

On June 28, 1995, the Junior Fongs filed a motion to intervene pursuant to Hawai`i Rules of Civil...

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2 cases
  • JANRA ENTERPRISES v. City of Honolulu, 25814.
    • United States
    • Supreme Court of Hawai'i
    • June 6, 2005
    ...... Fong v. Hashimoto, 92 Hawai`i 637, 645 n. 9, 994 P.2d 569, 577 n. 9 (App. 1998), vacated on other ......
  • Lee v. Puamana Community Ass'n
    • United States
    • Supreme Court of Hawai'i
    • February 23, 2006
    ......For support, Appellees quote the following passage from our prior decision in Fong v. Hashimoto, 92 Hawai`i 568, 576, 994 P.2d 500, 508 (2000): .         It would be absurd ......

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