Legal Question in Real Estate Law in Hawaii

In this warranty deed with 4 JTs there were agreements and protective clauses. Like; subject, however, to the encumbrances set forth in exhibit B. And exhibit B stated in D) the sale of any or all of the real property described in exhibit A must have an agreement of all grantees in written form with affidavit in support. How do we(remaining JTs) contest or remove the conveyance of the JT who conveyed her interest to her daughter.

Asked on 5/22/14, 7:56 pm

1 Answer from Attorneys

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Without seeing the Deed and covenants therein it is hard to give a solid answer as to their enforceability. However, generally, if one Joint Tenant decides to convey their interest in the property the joint tenancy is broken and the new owner becomes a Tenant in Common with the other owners. Also, a joint tenant may usually transfer their interest unilaterally and without the knowledge or consent of the co-tenant(s). Even though restrictions on alienation exist within the Deed these may not be enforceable if you file an ejectment, quiet title or partition action. This is because the Court does not like unreasonable restraints or restrictions on the inter-vivos transfers of real property (free alienation), especially in a Deed. A Deed is not a contract but merely a recording instrument. If this was the original wish then a Co-Tenancy Agreement or Estate Planning should have been drafted. This is a complex fact intensive matter that is not a slam dunk either way. Some State Courts have found it reasonable to restrain free alienation in order to preserve family ownership for a limited time.

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Answered on 5/22/14, 8:41 pm

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