Leighton v. Leonard, 5537-I

• Decision Date: 11 December 1978
• Docket Number: No. 5537-I,5537-I
• Court: Washington Court of Appeals
• Parties: Roy S. LEIGHTON and Gladys M. Leighton, husband and wife, Appellants, v. Charles T. LEONARD and Brenda A. Leonard, husband and wife, Cascade Savings& Loan Association, a Washington Corporation, Respondents.

Page 136

22 Wn.App. 136

589 P.2d 279

Roy S. LEIGHTON and Gladys M. Leighton, husband and wife, Appellants, v. Charles T. LEONARD and Brenda A. Leonard, husband and wife,

Cascade Savings& Loan Association, a Washington

Corporation, Respondents.

No. 5537-I.

Court of Appeals of Washington, Division 1.

Dec. 11, 1978.

As Corrected Feb. 15, 1979.

Reconsideration Denied Feb. 28, 1979.

Helsell, Fetterman, Martin, Todd & Hokanson, Russell V. Hokanson, Seattle, for appellants.

Jackson, Ulvestad, Goodwin & Grutz, Daniel G. Goodwin, Seattle, Anderson, Hunter, Dewell, Baker & Collins, P.S., Thomas R. Collins, Everett, for respondents.

RINGOLD, Judge.

This declaratory judgment action was brought by Roy S. and Gladys M. Leighton against Charles T. and Brenda A. Leonard to determine the effect of a height restriction in a real property agreement.

At the close of the plaintiffs' case the trial court weighed the evidence and entered findings of fact, conclusions of law and a judgment sustaining the restriction as a covenant limiting the height of any house to be built on Lot 2 of Bay View Circle owned by the Leightons. The plaintiffs appeal, assigning error to several findings of fact and conclusions of law made by the trial court, and to the entry of the judgment dismissing plaintiffs' complaint.

On June 19, 1966, Dwight Pack conveyed by warranty deed Lot 3 in Bay View Circle to James Hanson. Pack, a builder, also then owned adjacent Lot 2. When Pack completed construction of Hanson's house on Lot 3 Pack and Hanson entered into an agreement which contained a restriction limiting the type of house Pack then anticipated building, but never built on Lot 2, as follows:

The highest point of the roof of the house to be built on Lot 2, Bayview Circle Addition shall not be higher than 13 feet above the level of the concrete backyard patio of the adjoining property commonly known as 2135 N.W. 97th or shall not exceed the main floor living room windowsill level of this house to be built on Lot 3, Bayview Circle Addition with windows detailed to measure 5 feet in height. (Plaintiff's Exhibit No. 3)

This agreement, along with Hanson's affidavit attesting to it, was recorded in February, 1967.

In 1969 the Leightons purchased Lot 2 from Pack, but Pack did not expressly inform the Leightons of the existence of the height limitation. When the Leightons attempted to sell Lot 2 in 1976 they became aware of the height limitation arising from the Pack-Hanson agreement. The Leightons then brought this action seeking to have the trial court find that the limitation was not a covenant running with the land. Alternatively they urged that if it is such a restriction it only affects that portion of the lot upon which Pack anticipated building a house in 1966, the only site upon which the structure would impede the Leonards' view.

Parol evidence was introduced to resolve the intent of the parties to the original agreement as to whether the covenant should run with the land and the meaning of the term "the house" in the agreement. The trial court concluded that the covenant was intended to run with the land and that it limits the height of any house built on Lot 2. We agree.

The errors assigned raise four issues:

(1) Is the height restriction a covenant running with the land enforceable against the Leightons?

(2) Did the trial court misconstrue the scope of the covenant?

(3) Should the trial court have interpreted the covenant in such a way as to minimize the burden to Lot 2?

(4) Did the trial court err in admitting prejudicial testimony?

COVENANT RUNNING WITH THE LAND

A consistent explication of the Washington law regarding covenants running with the land is extremely difficult. No Washington case authoritative on the subject of when covenants run with the land has been cited by the parties or discovered in research. Without undertaking a comprehensive review of the caselaw, it should be noted that the cases dealing with the problem have often relied upon as determinative only one of the elements of a proper analysis. In The prerequisites for a covenant to "run with the land" are these: (1) the covenants 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 benefitted 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; ¹ and (5) there must be horizontal privity of estate, or privity between the original parties. ² W. Stoebuck, Supra.

Rodruck v. Sand Point, etc., Comm., 48 Wash.2d 565, 295 P.2d 714 (1956), for example, the analysis turns solely upon the "touch and concern the land" element. Johnson v. Mt. Baker, etc., Church, 113 Wash. 458, 194 P. 536 (1920) was decided on the basis of equitable estoppel, rather than on the basis of equitable restrictions running with the land. A recent article by Professor William Stoebuck, "Running Covenants: An Analytical Primer," 52 Wash.L.Rev. 861 (1977) highlights many of the analytical difficulties and provides us with assistance.

All the elements of the above analysis are satisfied here. The original covenant is in writing signed by both parties, Pack and Hanson. For the benefit side the test for whether a covenant "touches and concerns the land" is whether it enhances the land's value, and for the burden side, whether it diminishes the land's value. Rodruck v. Sand Point, etc., Comm., supra, 48 Wash.2d at 575, 295 P.2d 714; W. Stoebuck, Supra at

874. By this criterion it is clear that the covenant "touches and concerns" both the burdened estate and the benefitted estate. There is testimony in the record by Pack that the parties intended to bind their successors-in-interest. Pack sold to the Leightons the fee interest in the parcel to be burdened, so the vertical privity requirement is satisfied on the burden side. Pack sold to Hanson and Hanson to Leonard the fee interest in the estate to be benefitted, so this requirement is satisfied as to the benefit side. Pack conveying to Hanson a fee estate satisfies the horizontal privity requirement. The trial court correctly decided that the covenant runs with the land, both on the burden side and on the benefit side.

NOTICE

The Leightons argue that the restriction was simply a personal agreement limited to Pack's own plan and that it was not intended to be recorded. Hanson, after Lot 3 had been conveyed to him, signed an affidavit incorporating that part of the additional agreement which dealt with the height restriction on Lot 2. He then recorded the document with the county auditor. The Leightons contend this recording was contrary to RCW 65.08.070, which requires instruments to be acknowledged in order to be recorded.

Strong v. Clark, 56 Wash.2d 230, 352 P.2d 183 (1960) holds that a properly recorded instrument gives notice of its contents to all the world. RCW 65.08.030 provides:

An instrument in writing purporting to convey or encumber real estate or any interest therein, which has been recorded in the auditor's office of the county in...