Dickson v. Kates
| Decision Date | 02 May 2006 |
| Docket Number | No. 32771-6-II.,32771-6-II. |
| Citation | 133 P.3d 498,132 Wn. App. 724 |
| Parties | Raymond and Theresa DICKSON, husband and wife, Appellants, v. Don B. KATES and Valerie J. Kates, husband and wife, Respondents. |
| Court | Washington Court of Appeals |
Mark G. Passannante, Attorney at Law, Portland, OR, for Appellants.
Don B. and Valerie J. Kates, Battleground, WA, Pro Se Respondents.
¶ 1 Raymond and Theresa Dickson appeal the trial court's decision upholding a restrictive view covenant that purported to benefit property belonging to their neighbors. Finding the deed conveying the restrictive covenant did not comply with the statute of frauds, and that the Dicksons had no notice of restrictive covenants against their property, we reverse.
¶ 2 The parties own adjoining land in Clark County. The Dicksons own tax lots 1 and 119. Don Kates and Valerie Klein1 (a married couple) own tax lot 99. This dispute arose out of a restrictive view covenant executed by both property owners' predecessors in interest that purported to benefit the Kates' property by prohibiting the Dicksons from planting any trees or erecting any structures blocking the Kates' view.
¶ 3 In March 2003, the Dicksons brought an action to quiet title and obtain declaratory relief declaring the restrictive covenant favoring the Kates invalid.
¶ 4 In 1969, Darla Kellogg and her husband acquired a 160 acre parcel of land that includes tax lots 1, 96, 99, and 119. In 1981, the Kelloggs divorced and Darla Kellogg became the sole owner of the parcel. The divorce decree was recorded in Clark County.
¶ 5 In 1983, Kellogg conveyed lot 96 to the Henker family. Lot 96 adjoins lot 99 to the north. The deed conveying lot 96 included a restrictive view covenant burdening lots 1 and 119.2 The restrictive covenant contained a precise legal description of the burdened land.3 This deed and restrictive covenant were recorded under auditor's file 8306270008 on June 27, 1983 and rerecorded under auditor's file number 8401170016 on January 17, 1984, and established the legal description of Kellogg's remaining property that is at issue here.
¶ 6 In January 1984, Kellogg conveyed tax lot 99 (the Kates property) to Cecil and Nelda Andrews (Kates' remote predecessors in title). Kellogg retained the land to the west of lot 99, described in the 1983 deed and restrictive covenant to the Henkers. The Andrews wished to obtain the same view guarantee that Henker's had on lot 96 so they asked that a restrictive view covenant be included in their deed. Kellogg agreed, but rather than use the legal description contained in the Henker's deed, the Andrew's deed stated:
The grantor herein does hereby agree that the land lying immediately to the west of the property herein conveyed is restricted as to having any tress or structures that will unreasonably block the view of the property herein conveyed, and said restrictions shall run with the land lying to the west of the property herein described.
CP at 31. This deed was recorded in "Auditor's File # 8401130116" on January 13, 1984, relating to lot 99. CP at 32. The restrictive covenant was never recorded on the land Kellogg retained located west of Lot 99, 40 acres of which the Dicksons acquired.
¶ 7 The Andrew's built a home on lot 99. The house and the property are generally higher than the land to its west and there it has a view across lots 1 and 119 of Vancouver, the Columbia River to Portland, and the Coastal Range. Subsequently, the Andrews sold lot 99 to Ihor Wolosenko. The statutory warranty deed conveying lot 99 to Wolosenko did not include mention of any beneficial interest through a restrictive covenant on land to the west of lot 99. Wolosenko conveyed lot 99 to the Kates by statutory warranty deed and the Wolosenko-Kates deed also did not include mention of or reference to a restrictive covenant on the west-lying land.
¶ 8 The Dicksons purchased lot 119 from Christopher and Suzanne Kellogg4 in 1998 by statutory warrant deed. They subsequently built a house on the lot. In 2000, they purchased lot 1 from Wolosenko and Victoria Street.5 When the Dicksons purchased lots 1 and 119, they were not aware of the restrictive covenant benefiting lot 99 and their deeds did not mention it. Stewart Title Company, who performed the title search on behalf of the Dicksons, issued title insurance. Stewart Title Company found no mention of or reference to a restrictive covenant on lots 1 and 119 and thus, the title report did not inform the Dicksons of it.6
¶ 9 The Dicksons learned of the restrictive covenant after Ray Dickson walked his property and noticed that lot 100 was for sale. Lot 100 is situated directly south of the Kates' lot 99 and east of the Dicksons' lot 1. The real estate brochure advertising lot 100 stated that it had a view to the west. Ray thought this odd because his lot 1 was directly west of lot 100 and his trees on lot 1 blocked any view from lot 100.7 When Ray called the real estate agent selling lot 100, the agent informed him that lot 100 had a beneficial interest in a restrictive covenant burdening lot 1. Subsequently, Ray learned that Kellogg's deed conveying lot 99 (the Kates' property) to the Andrews had contained an interest in a restrictive view covenant on land to the west.
¶ 10 The Dicksons brought an action to quiet title and to obtain a declaratory judgment declaring invalid the restrictive covenant purportedly burdening their lots. In upholding the covenant, the trial court first held that the parties were dealing with a covenant rather than an easement and found that the language was specific enough to bind Darla Kellogg's successors on lots 1 and 119.8 Further, it found the Kates' to be in vertical privity with "their predecessors as successors to the land involved in the original restrictive view covenant contained in the 1984 [deed]." CP at 33.
¶ 11 The trial court concluded that (1) the parties had actual and constructive notice of the 1984 restrictive view covenant; (2) the covenant ran with the benefited and burdened land; (3) it touched and concerned the land; (4) it was enforceable between the original parties (Darla Kellogg and the Andrews); and (5) the original parties intended to, and did bind all successors in interest. The court awarded the Kates $200 in attorney fees.
¶ 12 Where the trial court has weighed the evidence, our review is limited to determining whether substantial evidence supports the findings and, if so, whether the findings in turn support the trial court's conclusions of law and judgment. Org. to Pres. Agric. Lands v. Adams County, 128 Wash.2d 869, 882, 913 P.2d 793 (1996). "`Substantial evidence' exists when there is a sufficient quantum of proof to support the trial court's findings of fact." Org. to Pres. Agric. Lands, 128 Wash.2d at 882, 913 P.2d 793. We need only review findings of fact to which error has been assigned and findings to which no error is assigned are verities on appeal. We review questions of law de novo. Ed Nowogroski Ins., Inc. v. Rucker, 137 Wash.2d 427, 436-37, 971 P.2d 936 (1999).
¶ 13 On appeal, the Dicksons argue that (1) the view restriction covenant in the deed from Kellogg to Andrews lacked a sufficient legal description of the burdened estate; (2) the court erred when it found that they had actual notice of the restriction; and (3) the court erred when it found they had constructive notice of the restriction.
¶ 14 Neither party challenges the trial court's finding of fact (actually a conclusion of law) that the provision in question is a restrictive view covenant rather than an easement. Further, an easement is a "right, distinct from ownership, to use in some way the land of another, without compensation." City of Olympia v. Palzer, 107 Wash.2d 225, 229, 728 P.2d 135 (1986). A restrictive covenant limits the manner in which one may use his or her land. City of Olympia, 107 Wash.2d at 229, 728 P.2d 135. The distinction between the two is that an easement allows its holder to go upon the land possessed by another and a covenant imposes upon the possessor restrictions on how he or she may use the land. 17 WILLIAM B. STOEBUCK, WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW, §§ 2.1, 3.1, at 80, 123 (2004). Here, the Kates seek to impose a restriction on how the Dicksons may use their land, thus the court did not err when it found that the language in the Kellogg-Andrews deed had the characteristics of a covenant.
¶ 15 A covenant is: Hollis v. Garwall, Inc., 137 Wash.2d 683, 690, 974 P.2d 836 (1999) (quoting 9 RICHARD R. POWELL, POWELL ON REAL PROPERTY § 60.012[2], at 60-65 (1998)).
¶ 16 Generally there are two types of covenants; equitable and real. But distinctions between the two have largely vanished in Washington law.9 And neither the Dicksons nor the Kates distinguish between the two. A real covenant runs with the land when:
(1) the covenant[] must have been enforceable between the original parties, such enforceability being a question of contract law except insofar as the covenant must satisfy the statute of frauds; (2) the covenant must "touch and concern" both the land to be benefited and the land to be burdened; (3) the covenanting parties must have intended to bind their successors in interest; (4) there must be vertical privity of estate, i.e., privity between the original parties to the covenant and the present disputants; and (5) there must be horizontal privity of estate, or privity between the original parties.
Lake Limerick Country Club v. Hunt Mfg. Homes, Inc., 120 Wash.App. 246, 254, 84 P.3d 295 (2004) (quoting Lake...
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