## Facts

- A 15-lot coastal subdivision was created by a common grantor, with recorded deed restrictions on certain lots.
- The Hashimotos owned an ocean-front lot (Lot 11) subject to a recorded restriction limiting any dwelling to “one story in height” and requiring a fifteen-foot front setback.
- The Fongs owned neighboring lots in the same subdivision; two nearby ocean-front lots carried similar one-story and setback restrictions, while another comparable lot lacked an express one-story restriction.
- The Hashimotos began constructing a two-story residence on Lot 11.
- The Fongs sued to stop construction, asserting that the height and setback provisions were enforceable against Lot 11 as covenants running with the land and, alternatively, as equitable servitudes arising from a subdivision-wide common scheme.
- The circuit court dissolved temporary injunctive relief and entered judgment for the Hashimotos.
- The Intermediate Court of Appeals reversed, concluding the covenants were enforceable and directing entry of a mandatory injunction requiring removal of any portions violating the one-story and setback restrictions.
- On certiorari, the Hawaii Supreme Court reviewed the enforceability and interpretation of the restrictions, with disagreement among the justices over whether the “one story in height” language was ambiguous.

## Issues

1. Whether the “one story in height” restriction was sufficiently definite to be enforced against construction of a two-story residence.
2. Whether the subdivision was subject to a common scheme permitting enforcement of restrictions as equitable servitudes by neighboring lot owners.
3. Whether the restrictions satisfied Hawai‘i requirements for covenants running with the land, including the ability of a grantor retaining legal title under agreements of sale to impose restrictions for the benefit of other lots.
4. Whether enforcement was barred by abandonment or waiver based on conduct within the subdivision.
5. Whether a mandatory injunction requiring removal of nonconforming construction was an appropriate remedy.

## Decision

- The Hawaii Supreme Court granted certiorari and agreed in substantial part that the recorded restrictions were capable of binding successors and supporting neighbor enforcement based on subdivision planning concepts.
- The court scrutinized the meaning and enforceability of the “one story in height” clause and treated the operative language as ambiguous for purposes of enforcement, limiting or modifying the extent to which the height restriction could be enforced as framed by the Intermediate Court of Appeals.
- The court did not adopt an abandonment theory as a basis to deny enforcement on the record presented.
- A concurring and dissenting opinion would have treated the restrictive language as unambiguous and fully enforceable as written.

## Legal Principles

- A developer or grantor retaining legal title under an agreement of sale may possess a sufficient property interest to impose enforceable restrictions benefiting other lots.
- Restrictive covenants may be enforced as real covenants running with the land when statutory and common-law elements (including intent and property-related effect) are satisfied.
- A common scheme or general plan for a subdivision can create equitable servitudes enforceable by similarly situated lot owners, even if restrictions are not perfectly uniform across all lots.
- Recorded restrictions provide constructive notice to subsequent purchasers, supporting equitable enforcement when violations occur with notice.
- Ambiguities in restrictive covenants are construed narrowly, and uncertainty in wording may limit the scope of injunctive enforcement.

## Conclusion

The case confirms that subdivision restrictions can bind successors and be enforced by neighboring owners through running covenants and common-scheme servitudes, but it also illustrates that unclear deed language—particularly a height limitation—can constrain the breadth of enforcement and the remedy ordered.


Fong v. Hashimoto, 94 Haw. 482, 17 P.3d 707 (Haw. 2001)