Opinion
No. 40151-7-II.
January 21, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Pierce County, No. 08-2-10201-2, Katherine M. Stolz, J., entered December 4, 2009.
Reversed by unpublished opinion per Armstrong, J., concurred in by Worswick, A.C.J., and Van Deren, J.
Karin and Richard Manthei hold an easement over property owned by the Barbara Nevins Hall Revocable Living Trust (Hall Trust). The Hall Trust sued the Mantheis to extinguish the easement, arguing it violated a covenant between the Mantheis' predecessors in interest and a third-party property owner. The trial court terminated the easement and the Mantheis appeal, arguing (1) the Hall Trust does not have standing to enforce the covenant because it lacks vertical privity of estate with the original contracting parties, and (2) the easement does not violate the covenant. The Hall Trust counters that even if the covenant is not enforceable, the easement is invalid for (1) failure to accomplish its intended purpose, (2) failure to comply with the requirements for amending a short plat, or (3) lack of consideration. We hold that the covenant does not prohibit the easement and, even if it did, the Hall Trust has no right to enforce the covenant because it is not a party to the covenant. We also reject the Hall Trust's alternative arguments for extinguishing the easement. Accordingly, we reverse the trial court's order terminating the easement and award of attorney fees, and we grant the Mantheis attorney fees on appeal.
FACTS
The Hall Trust owns property adjoining the western boundary of the Manthei property in Gig Harbor. The Millennium Corporation owns property directly south of the Hall Trust and Manthei properties. The Hall Trust property was previously owned by Robert and Shannon Doremus. The Manthei property was previously owned by Lorne and Turid Bentley.
In 1997, Millennium and the Bentleys were involved in a lawsuit. They settled, with the Bentleys agreeing to "erect a fence along the west side of the Bentley Property sufficient to prevent motor vehicles from being driven across that property to the property that lies to the west of that property." Clerk's Papers (CP) at 31. Millennium and the Bentleys also signed a covenant, which provided:
[I]n consideration of the dismissal by plaintiff [Millenium] of the claims and causes of action against the defendants in Pierce County Superior Court . . . the undersigned, as owners of the Bentley Property, covenant and agree for themselves, their heirs, successors and assigns, that there shall be no ingress and egress from the easement road delineated on the Large Lot Subdivision across the Bentley Property from or to any property lying west of the Bentley Property.
CP at 42.
In March 1999, the Doremuses granted the Bentleys an easement running along the eastern edge of their property for "ingress, egress and utilities." CP at 49. In June 1999, the Bentleys granted the Doremuses an easement over an existing road on their property "for ingress, egress and utilities." CP at 56.
In 2002, the Hall Trust purchased the Doremus property. In 2003, the Mantheis purchased the Bentley property. The Mantheis' home is located within 15 feet of the western boundary of their property, facing the Hall Trust property. To access the front of their home, the Mantheis use the Doremus-Bentley easement running along the eastern edge of the Hall Trust property. A few years after purchasing the property, the Mantheis installed a concrete driveway that is partially located within the easement area.
In 2008, the Hall Trust brought this action to quiet title and extinguish both of the Doremus-Bentley easements. The parties agreed to a trial by affidavit. The Hall Trust argued that the easements were invalid because they violated the Millennium-Bentley covenant. The Mantheis argued that the Hall Trust could not enforce the covenant because it lacked vertical privity of estate with either of the original contracting parties. They also argued that even if the covenant was enforceable, their easement did not violate its terms. The trial court concluded that the covenant was enforceable and that both easements violated the covenant. The court entered an order quieting title in favor of the Hall Trust, terminating the easements, and ordering the Mantheis to remove their concrete driveway from the Hall Trust property.
ANALYSIS I. Millennium-Bentley Covenant
The Mantheis assign error to the trial court's conclusion that the Millennium-Bentley covenant is enforceable in this case, arguing the Hall Trust lacks vertical privity of estate with the original contracting parties and, therefore, does not have standing to enforce the covenant. We review a trial court's conclusions of law de novo. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).
A "restrictive covenant" is an agreement or promise between two or more parties that limits permissible uses of land. See Hollis v. Garwall, Inc., 137 Wn.2d 683, 690, 974 P.2d 836 (1999); Restatement (Third) of Property: Servitudes § 1.3 (2000). When the covenant "runs with the land," it burdens a particular parcel with the duty of complying with the restriction and benefits a particular parcel with the right to enforce the restriction. Deep Water Brewing, LLC v. Fairway Res. Ltd., 152 Wn. App. 229, 257-58, 215 P.3d 990 (2009); 17 William B. Stoebuck John W. Weaver, Washington Practice: Real Estate: Property Law § 3.5 (2d ed. 2004). Between the original parties to the covenant, enforcement is a matter of contract law. Deep Water Brewing, 152 Wn. App. at 257; Leighton v. Leonard, 22 Wn. App. 136, 139, 589 P.2d 279 (1978). If the covenant runs with the land, it may also be enforced by the original parties' successors in interest. Deep Water Brewing, 152 Wn. App. at 257-58; Leighton, 22 Wn. App. at 139. In other words, "there must be vertical privity of estate, i.e., privity between the original parties to the covenant and the present disputants" for a third party to enforce a running covenant. Leighton, 22 Wn. App. at 139; see also Lake Limerick Country Club v. Hunt Mfg. Homes, Inc., 120 Wn. App. 246, 260, 84 P.3d 295 (2004).
Here, the original parties to the covenant are Millennium and the Bentleys. The covenant benefitted a particular parcel of property: the Millennium property. Under the law of running covenants, only Millennium or its successors in interest can enforce the covenant and terminate any easements that violate its terms. The Hall Trust is not a successor in interest to Millennium and cannot enforce the covenant on Millennium's behalf.
The covenant expressly states that it "burdens the Bentley Property . . . and benefits the Millennium Corporation [property]." CP at 42.
Additionally, even if the covenant were enforceable by the Hall Trust, the Mantheis' easement does not violate its terms. The covenant prohibits the Bentleys and their successors in interest, the Mantheis, from granting easements over their property for access to properties lying to the west. Neither the Bentleys nor the Mantheis granted the easement at issue here and it does not provide access over the Bentley-Manthei property. Rather, the Doremuses granted the easement and it provides access over the Doremus-Hall Trust property. The Doremuses were not parties to the covenant and nothing in the covenant prohibited them from granting an easement over their property.
II. Intended Purpose of the Easement
Alternatively, the Hall Trust argues that the trial court properly extinguished the Mantheis' easement because it is invalid on other grounds. The Hall Trust first argues that the easement has failed to accomplish its intended purpose. When an easement is established for a particular purpose and that purpose ceases to exist, "the land is discharged of the burden of the easement and right to possession reverts to the original land owner or to that landowner's successor in interest." Lawson v. State, 107 Wn.2d 444, 450, 730 P.2d 1308 (1986).
The Hall Trust argues that the Mantheis' easement was granted for the purpose of ingress and egress across the boundary line between the Bentley-Manthei and Doremus-Hall Trust properties, but because the Millennium-Bentley covenant expressly prohibits such access, the easement has failed its essential purpose and must be extinguished. As we discussed above, the easement across the Doremus-Hall Trust property does not violate the covenant. Even if the easement did violate the covenant, only Millennium or it successors could enforce it. Thus, the easement would remain valid and capable of fulfilling its intended purpose unless and until Millennium or its successors in interest chose to terminate it.
III. Short Plat Amendment
The Hall Trust next argues that the easement is void because the Bentleys added the easement to their short plat but did not comply with the formal requirements for amending a short plat under chapter 58.17 RCW and Pierce County Code 18F.10.020. The Hall Trust does not cite specific statutes from chapter 58.17 RCW or explain how the Bentleys failed to comply with those statutory requirements. Instead, the Hall Trust relies exclusively on M.K.K.I., Inc. v. Krueger, 135 Wn. App. 647, 145 P.3d 411 (2006), and Pierce County Code 18F.10.020.
In Krueger, a landowner attempted to extinguish easements that were created and conveyed in a short plat, but the land owner failed to comply with the requirements for amending a short plat under chapter 58.17 RCW or the Yakima County Code. Krueger, 135 Wn. App. at 650-53. Division Three of this court held that the easements could not be extinguished without formally amending the short plat. Krueger, 135 Wn. App. at 657-60. Krueger is distinguishable. The easements in that case were created and conveyed in a short plat, so their validity was derived from the short plat. In contrast, the easement here was conveyed in a private agreement between the Doremuses and the Bentleys. Krueger does not establish that such easements become invalid if the property owner fails to properly amend a short plat to include the easement.
Title 18F of the Pierce County Code governs the subdivision of land. Pierce County Code 18F.10.010. Pierce County Code 18F.10.020 provides that "any division or redivision of land, boundary line adjustment, amendment or alteration to previously granted approvals covered by this Title shall require County approval and shall comply with the provisions of Chapter 58.17 RCW." The easement at issue here is located on the Doremus-Hall Trust property, not the Bentley-Manthei property, and the Hall Trust does not allege that its property has ever been subdivided. The easement at issue here is not an "amendment or alteration" to a previously approved subdivision and, therefore, is not subject to Title 18F of the Pierce County Code.
IV. Lack of Consideration
Finally, the Hall Trust argues that the easement is void for lack of consideration. The easement agreement states: "For good and valuable consideration, Doremus grants and conveys an easement to Bentley. . . ." CP at 49. The agreement does not describe the consideration further.
The Hall Trust contends that the consideration for the easement that the Doremuses granted to the Bentleys was the easement that the Bentleys subsequently granted to the Doremuses. Because the easement the Bentleys granted was invalid under the covenant, the Hall Trust argues, consideration did not support the easement that the Bentleys received. But the record does not support the Hall Trust's speculation that one easement served as consideration for the other. The easement agreements were executed several months apart and neither agreement references the other.
For these reasons, we reverse the trial court's order terminating the Doremus-Bentley easements. We also grant the Mantheis' request that we reverse the trial court's award of attorney fees and grant them attorney fees against the Hall Trust.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, J. and WORSWICK, A.C.J., concur.