Gold Creek North v. Gold Creek Umbrella

• Decision Date: 20 February 2008
• Docket Number: No. 35301-6-II.,35301-6-II.
• Citation: 177 P.3d 201,143 Wn. App. 191
• Court: Washington Court of Appeals
• Parties: GOLD CREEK NORTH LIMITED PARTNERSHIP; Paul E. Miller, an individual; and Deidra J. Miller, an individual, Respondents, v. GOLD CREEK UMBRELLA ASSOCIATION, a Washington nonprofit" corporation, Appellant.

177 P.3d 201

143 Wn. App. 191

GOLD CREEK NORTH LIMITED PARTNERSHIP; Paul E. Miller, an individual; and Deidra J. Miller, an individual, Respondents, v. GOLD CREEK UMBRELLA ASSOCIATION, a Washington nonprofit" corporation, Appellant.

No. 35301-6-II.

Court of Appeals of Washington, Division 2.

February 20, 2008.

Robert G. Casey, Attorney at Law, Tacoma, WA, for Appellant.

Blake Edward Marks-Dias, Daniel Joseph Gunter, Courtney L. Seim, Riddell Williams PS, Seattle, WA, for Respondents.

ARMSTRONG, J.

¶ 1 The Millers¹ sued the Gold Creek Umbrella Association (Association) to establish an express easement for ingress and egress across Association property to the Millers' adjoining property to the north. When the Millers rested, the Association moved to dismiss under CR 41(b)(3) (failure to prove a claim). The trial court ruled that the Millers were entitled to an express easement across the Association's property. The Association raises a number of issues but principally argues that the trial court should have dismissed the Millers' express easement claim. We agree; accordingly, we reverse and remand for the trial court to enter an order dismissing the Millers' express easement claim.

FACTS

¶ 2 In the 1970s, the Miller family (Edward and Juanita and their children, Paul and Deidra) owned a large piece of real property in Pierce County between Narrows Drive and the Burlington Northern Railroad. Today, that property is divided, with the northern undeveloped part known as "Gold Creek North" and the southern developed part known as "Gold Creek South." The Association now owns Gold Creek South, which contains three condominium developments the Association governs. Gold Creek North is owned by successors-in-interest to the Miller family; the Gold Creek North Limited Partnership and Paul and Deidra Miller.

¶ 3 The Millers intend to build 62 homes on Gold Creek North, and to do so, they seek access to their property through Gold Creek South. In this quiet title action, the Millers allege that they have "easement rights" over Gold Creek South by way of certain documents executed in the 1970s and 1980s. Clerk's Papers (CP) at 8.

1. Transactions Purportedly Creating Easement

¶ 4 In 1977, the Millers negotiated a real estate transaction with Donald Huber,² giving him an option to purchase the entire Gold Creek property in two stages, beginning with Gold Creek South. The document detailing this arrangement is not in the record.

¶ 5 On December 27, 1979, after Huber rezoned Gold Creek South, the Millers and Huber executed a "Gold Creek Parcel A Real Estate Purchase and Sale Agreement" (1979 P & S Agreement) to govern Huber's purchase of Gold Creek South. Section 8 of that agreement was entitled "Sellers' Easement" and provided:

As a material consideration to Seller [Millers], Buyer [Huber] has agreed to grant Seller an unspecified and undefined easement (the "Sellers' Easement") for road and utility access down and across to the Sellers' properties. . . . The Sellers' Easement shall be granted and defined only in accordance with the following conditions:

(i) The purpose shall be for the reasonable access to the Sellers Parcels;

(ii) Sellers' Easement shall run with and be deemed appurtenant to their said properties located adjacent to the south and north sides of the sale property;

(iii) Sellers shall have no right to establish, define or use Sellers' Easement until written notice is given that Sellers will be commencing substantial development of their property or properties within six (6) months;

(iv) Sellers' development and usage of said easement shall comply with the laws and regulations of the City of Tacoma (the "City");

(v) The location of Sellers', Easement shall be determined by mutual reasonable agreement of Sellers, Buyers and the City in conjunction with Sellers' application process with City for preliminary plat approval for the development of Sellers' Parcel; and

(vi) Sellers shall cause the Sellers' Easement to be a hard-surfaced road so as not to create dust or noise disturbance.

Resp'ts Exh. 3, at 7. This document was neither notarized nor recorded until 1992.

¶ 6 Also on December 27, 1979, the Millers conveyed a portion of Gold Creek South (known as "Phase I") to Huber and executed a real estate contract for the sale of the rest. The contract included a "Sellers' Easement" provision stating, "Purchasers shall provide all access and utility easements to Sellers in accordance with Section 8 of the Gold Creek Parcel A Real Estate Purchase and Sale Agreement by and between the parties dated December 27th, 1979." Resp'ts Exh. 6. The contract was recorded on February 26, 1980. Huber then began constructing the Gold Creek Condominium development on the Phase I property.

¶ 7 In 1981, the Millers and Huber amended an unrelated easement agreement to correct the legal description and to include "Except for the modifications set forth in this Amendment, the terms and conditions of the Gold Creek Parcel A Real Estate Purchase and Sale Agreement dated December 27, 1979 by and between the parties hereto shall remain in full force and effect." Resp'ts Exh. 7, at 2.

2. Subsequent Transactions

¶ 8 In May 1982, Huber executed as declarant the "Gold Creek Umbrella Declaration and Covenants, Conditions, Restrictions, Easements and Reservations" ("Umbrella Declaration" or "the Declaration"). Article 2 of the Declaration subjected all of Gold Creek South (the "Entire Property") to its terms, which were declared to run with the land and be binding on "Declarant, its successors, and assigns, and all Persons, including Owners, who now or hereafter own or acquire an interest in any Phase Parcel or any part thereof." Resp'ts Exh. 8, at 4. The Millers also signed the Declaration, agreeing to "subject . . . their or any of their . . . interests in that Contract of Sale recorded February 26, 1980" and any property interest in Gold Creek South to the Umbrella Declaration. Resp'ts Exh. 8, at 30. The Declaration thus referred to the Real Estate Contract recorded in February 1980, which in turn incorporated the easement rights set forth in the 1979 P & S Agreement. The Declaration was recorded on May 28, 1982.

¶ 9 Section 16.4 of the Umbrella Declaration, entitled "Reservation of Access and Utilities Easements Related to Declarant's Other Parcel,"³ provides:

Declarant owns or has the right to acquire Declarant's Other Parcel, which lies in a northerly direction from the Umbrella Property. Declarant hereby reserves for itself, its successors and assigns, an easement for pedestrian and vehicular ingress and egress to and from Narrows Drive and Declarant's Other Parcel [Gold Creek North]. . . . Declarant also hereby reserves for the benefit of Declarant's Other Parcel, an easement for a storm water line to run from the Declarant's Other Parcel to a location acceptable to Declarant and located approximately on the cliff of the Greenbelt Area above Puget Sound Declarant shall, as soon as reasonably possible, and in any event, within ten years of the recording of this Declaration, establish, of record, the location of all easements and related improvements arising out of this Section 16. All easements reserved and granted under this Section 16.4 are for the benefit of Declarant and any present and future Owner of all or any portion of Declarant's Other Parcel, including their respective grantees, successors, heirs, executors, administrators and assigns. . . . All terms and provisions of this Section 16.4 shall be deemed covenants running with the land and shall bind the Greenbelt Area as the servient tenement in favor of the Declarant's Other Parcel as the dominant tenement and shall at times inure to the benefit of and be binding upon each Person who has at any time an interest or estate in any part of the Greenbelt Area or Declarant's Other Parcel. This Section 16.4, however, shall be void and of no effect, without action by any Person, if Declarant fails to acquire, or record, fee title or a real estate contract vendee's interest in Declarant's Other Parcel within five years from the date hereof

Resp'ts Exh. 8, at 24-25.

¶ 10 Two days after executing the Declaration and according to its terms, Huber conveyed the "Umbrella, Property" to the Association by quitclaim deed. The term "Umbrella Property" denotes all common or non-condominium areas in Gold Creek South, including roadways providing access to Narrows Drive. Huber then began selling condominium units in the Phase I development.

¶ 11 In 1985, Huber experienced financial difficulties. As a result, his financer, Citizens Federal Savings & Loan, assumed Huber's interest in Gold Creek South. Citizens Federal approached the Millers about choosing a location for their Sellers' Easement over Gold Creek South. The Millers were not ready to develop Gold Creek North yet, so they executed a "Gold Creek Parcel A Stipulation" with Citizens Federal, stating:

WHEREAS on December 27, 1979, the Sellers entered into and signed the "Gold Creek Parcel A Real Estate Purchase and Sale Agreement", (copy attached hereto), with Gold Creek Limited Partnership and Donald G. Huber; and

WHEREAS, Citizens Federal . . . has subsequently taken over the original purchase contract on the Gold Creek property, and

WHEREAS, Citizens Federal . . . has paid said contract in full and desires a Warranty Deed to the Gold Creek property, and

WHEREAS, Citizens Federal . . . is currently in the process, of selling the Gold Creek property, now

THEREFORE, it is hereby acknowledged and agreed by both the, Sellers and the Buyer that all conditions as set forth in said "Gold Creek Parcel A Purchase and Sale Agreement" remain in full force and effect and shall continue to be binding on the parties hereto, specific reference is made to Section 8, "Sellers' Easement", and

FURTHER, that this stipulation shall inure to the benefit of and be binding upon the heirs, successors, and assigns of each of the...