Fong v. Hashimoto
| Decision Date | 20 February 1998 |
| Docket Number | No. 19424.,19424. |
| Citation | 994 P.2d 569,92 Haw. 637 |
| Parties | Leonard K.K. FONG and Ellen Lee Fong, Plaintiffs-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, Defendants-Appellees. |
| Court | Hawaii Court of Appeals |
Trudy Burns Stone and Andrew R. Bunn, Chun, Kerr, Dodd, Beaman & Wong, on the briefs, Honolulu, for plaintiffs-appellants and intervening plaintiffs-appellants.
Michael A. Lilly and R. Laree McGuire, Ning, Lilly & Jones, on the brief, Honolulu, for defendants-appellees.
We hold that the legal title to land retained by a vendor pursuant to an agreement of sale is an interest sufficient to permit the vendor to impose restrictions on another parcel of land for the benefit of the land subject to the agreement of sale. Accordingly, based on the evidence adduced, we conclude that the one-story and fifteen-foot setback restrictive covenants imposed on the lot currently owned by Defendants-Appellees 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 (the Hashimoto trustees), and Susan M. Hashimoto, individually (Susan), (collectively referred to herein as Defendants) were imposed for the benefit of the lot currently owned by Intervening Plaintiffs-Appellants Dale S.N. Fong (Dale) and Linda L. Fong (Linda) (collectively referred to herein as the Jr. Fongs). The record reveals that these restrictive covenants satisfy the requirements for "running with the land" as set forth in Waikiki Malia Hotel v. Kinkai Properties Ltd. Partnership, 75 Haw. 370, 383, 862 P.2d 1048, 1057 (1993), and therefore the Jr. Fongs are entitled to enforce the restrictive covenants on Defendants' lot.
Also, because a "common scheme" of one-story and setback restrictions was imposed on the subdivision by the common grantor, Edward P. Fogarty (Fogarty) and his estate, and because the conveyances made by Fogarty and his estate evidence that the common scheme existed when the sale of lots in the subdivision began, the Jr. Fongs and Plaintiffs-Appellants Leonard K.K. Fong and Ellen Lee Fong (the Sr. Fongs) may enforce the restrictions on Defendants' lot as equitable servitudes.
We further hold that a mandatory injunction is the appropriate relief against a landowner who has constructive notice of restrictive covenants affecting his or her lot, and who nonetheless violates those restrictive covenants. Defendants had constructive notice of the one-story and fifteen-foot setback restrictions on their lot.
Since we do not believe the record supports Defendants' contention that the Jr. Fongs and the Sr. Fongs (collectively referred to herein as Plaintiffs) abandoned their right to enforce the one-story restriction on Defendants' lot, we vacate the August 1, 1995 "directed verdict" and the October 27, 1995 judgment of the first circuit court (the court) entered in favor of Defendants, and remand to the court with instructions to enter an injunction requiring Defendants to remove portions of any structure on their lot violating the one-story and fifteen-foot setback restrictions.
The parties own lots in a subdivision known as the "Fogarty Subdivision," named for the common grantor of the lots, Fogarty. The subdivision consists of fifteen lots, twelve of which are located around a hammershaped road. The portion of the road resembling the hammer's handle is twenty feet in width and the hammerhead portion is fifteen feet in width. Entering the subdivision on this road, Lots 2 through 5 are adjacent lots located to the left, on the mauka1 side of the road. The Jr. Fongs own Lot 4, and Dale's parents, the Sr. Fongs, own Lot 5. Lots 7 through 10 are adjoining lots located along the hammerhead end of the road. Lot 11, owned by Defendants, and Lots 12, 14, and 15 are adjacent lots located on the makai2 side of the road, facing Lots 5, 4, 3, and 2, respectively.
The following brief history traces the Jr. Fongs' and Sr. Fongs' chains of title to Lots 4 and 5.
On March 27, 1940, Fogarty entered into an unrecorded agreement of sale to sell Lot 4 of the Fogarty Subdivision to John Carden Austin and Frances W. Austin (the Austins). The Austins assigned this agreement of sale to James Akana Ai and Frances Leong Ai (the 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 deed did not mention any height or view restrictions.
On September 21, 1984, the Ais conveyed Lot 4 to the Jr. Fongs through a recorded deed.
On April 4, 1940, Fogarty executed a deed conveying Lot 5 of the Fogarty Subdivision to Noel Lee-Von Howell and Verona O. Howell (the Howells). This 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 this deed.
The chain of title from the Howells to the Sr. Fongs is unbroken, with the Sr. Fongs acquiring Lot 5 by way of a deed recorded November 29, 1968 from Martin Fried and L. Louise Fried.
Defendants' chain of title to Lot 11 is as follows.
By an unrecorded agreement of sale dated April 5, 1941, Fogarty agreed to sell Lot 11 to Franklyn J. De Canio and Lucille C. De Canio (the De Canios).
On June 26, 1943, the administrators of Fogarty's estate conveyed Lot 11 to the De Canios by a recorded deed (the Fogarty Estate—De Canios deed). The deed stated that the property conveyed was "the same real property described in and covered by that certain [aforesaid] agreement of sale dated April 5, 1941, unrecorded." It further 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 the deed:
(Emphases added.)
The De Canios then conveyed Lot 11 to Aldoph J. Mendonca and Violet G. Mendonca (the Mendoncas) by way of a recorded deed dated August 16, 1943 (the De Canios—Mendoncas deed). This deed contained the same restrictive covenant provisions as quoted above from the Fogarty Estate—De Canios deed, except that the first paragraph stated that the grantees "covenant and agree with the Grantors, and their heirs, executors and administrators...."
In turn, the Mendoncas conveyed Lot 11 to Gerald S. Hashimoto and Muriel Y. Hashimoto (the Hashimotos) in a recorded deed dated February 10, 1946 (the Mendoncas—Hashimotos deed). This 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 Canios—Mendoncas deed.]" The Mendoncas—Hashimotos deed did not detail these specific covenants and building restrictions.
On October 13, 1992, the Hashimotos executed a warranty deed, which they later recorded, conveying Lot 11 to the Hashimoto trustees. Exhibit A, attached to the deed, described the property and stated that the conveyance was "subject to [inter alia] all grants, easements, covenants, restrictions, liens, and encumbrances of record." (Emphasis added.) This deed did not further specify such covenants or restrictions.
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...
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JANRA ENTERPRISES v. City of Honolulu
... ... Additionally, where the evidence is uncontradicted, this court will consider issues on which the trial court did not make specific findings. Fong v. Hashimoto, 92 Hawai`i 637, 645 n. 9, 994 P.2d 569, 577 n. 9 (App. 1998), vacated on other grounds, 92 Hawai`i 568, 994 P.2d 500 (2000) ... ...
- Fong v. Hashimoto