Fong v. Hashimoto

994 P.2d 569

 

RULE:

The use of the words "successors and assigns" after a covenantee's name in the portion of the deed creating the covenant is evidence of an intent to create a covenant running with the land. 

FACTS:

Plaintiff lot owners and intervenor lot owners both sought review of a decision by the First Circuit Court (Hawaii), which entered a directed verdict for defendant lot owners, ordered the temporary restraining order against defendants to be dissolved, and entered a final judgment in favor of defendants against plaintiffs and intervenors in plaintiffs' action seeking declaratory and injunctive relief. Plaintiffs and intervenors contended that the trial court erred in entering a directed verdict for defendants because plaintiffs and intervenors were entitled to enforce the 1-story height and 15-foot setback restrictions. On review, the court vacated and remanded the directed verdict order and the final judgment in favor of defendants. On remand, the trial court was instructed to enter judgment in favor of plaintiffs on their request for a mandatory and permanent injunction, and to award such other and further relief as might have been appropriate under the court's decision.

ISSUE:

Did the the covenanting parties intend the covenant to run with the land?

ANSWER:

Yes.

CONCLUSION:

The court concluded that the 1-story and 15-foot setback restrictive covenants imposed on the lot currently owned by defendants were imposed for the benefit of the lot currently owned by intervenors. These restrictive covenants satisfied the requirements for "running with the land" and, therefore, intervenors were 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 a common grantor and because the conveyances made by the grantor was evidence that the common scheme existed when the sale of lots in the subdivision began, intervenors and plaintiffs might have enforced the restrictions on defendants' lot as equitable servitudes. The court found that defendants had constructive notice of the 1-story and 15-foot setback restrictions on defendants' lot.

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