Fong v. Hashimoto

994 P.2d 500 (2000)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Fong (P) and D own lots in the same subdivision. The subdivision consists of fifteen lots. 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 Ps through a recorded deed. Fogarty executed a deed conveying Lot 5 to Noel Lee-Von Howell and Verona O. Howell (Howells). The deed contained the following setback restrictions: At 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. Ps 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). 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: 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. A De Canio-Mendonca deed contained the same restrictive covenant provisions as quoted above. The Mendoncas-Hashimoto deed stated that the conveyance was 'subject . . . to . . . the 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. Ds began building a two-story home on Lot 11. Ps informed Ds of the restrictions. Construction stopped on April 14, 1995, but Ds instructed the builder to resume construction on May 2, 1995. Ps sued Ds seeking declaratory and injunctive relief. The circuit court issued a temporary restraining order (TRO). The circuit court ruled for Ds. The appeals court Held that (1) legal title to land retained by a vendor pursuant to an a/s 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 a/s; (2) because a 'common scheme' of one-story and setback restrictions was imposed on the subdivision by the common grantor, and because conveyances evidenced a common scheme existing when the sale of lots in the subdivision began, the restrictions may be enforced as equitable servitudes; (3) the owners of the upslope lots did not abandon their right to enforce the height restriction, despite the construction of two-story homes on other height-restricted lots; and (4) that a mandatory injunction is the appropriate relief. The court of appeals vacated and remanded and held that Ps are entitled to mandatory injunctive relief to prevent Ds from building the second story of their home. D