Opinion
No. 61636-6-I.
February 9, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-2-06985-1, Richard J. Thorpe, J., entered April 4, 2008.
Affirmed by unpublished per curiam opinion.
A deed of trust is an encumbrance against real estate and is subject to the strict requirements of the statute of frauds. Compliance with the statute of frauds in land transaction contracts or deeds requires a description of the property sufficiently definite to locate it without recourse to extrinsic evidence or reference must be made in the deed to another instrument that does contain a sufficient description. In Washington, the consequence of using an imperfect description is that the conveyance is void.
2 Wash. State Bar Ass'n, Real Property Deskbook § 33.2, at 33.2 (3d ed. 1996) (citing Bonded Adjustment Co. v. Edmunds, 28 Wn.2d 110, 182 P.2d 17 (1947)).
Here, the trial court concluded the deeds were invalid. The deeds of trust at issue have admittedly incorrect legal descriptions but contain a partial street address and references to other recorded documents. Our review of the documents, however, does not provide a sufficient description of the property without resorting to extrinsic evidence. As such, we affirm the decision of the trial court.
FACTS
Sometime in the early 1980s, Donald Beriault hired attorney Paul King. To secure his fee, King had Beriault sign promissory notes and secured them with two related deeds of trust for King's benefit. Many years later a dispute arose between King and Beriault regarding the amount still due on the notes. Beriault denied there was a balance owing. That underlying dispute is not at issue in this appeal. What is at issue is the validity of the deeds of trust. King sought to collect the fees he claimed were owed through nonjudicial foreclosure.
Initially this case was tried as a quiet title action and for a determination of the amount due, if any, on the promissory notes. Based upon the documentation presented at trial, the trial court originally granted judgment to Beriault on both claims. However following a motion for new trial, the court modified its ruling and re-set the matter of the amount due on the promissory notes for trial. There is nothing in the record to show whether this trial occurred. What remains is the trial court's determination that the deeds are invalid.
The legal description in the deeds of trust contained the following legal description:
APARTMENT 218, BUILDING 2 OF CASA DEL REY, A CONDOMINIUM, ACCORDING TO SURVEY MAP AND FLOOR PLANS RECORDED IN VOLUME 38 OF PLATS, PAGES 9 THROUGH 16 INCLUSIVE, RECORDS OF SNOHOMISH COUNTY, WASHINGTON, UNDER AUDITOR'S FILE NO. 7803240359; AND AS IDENTIFIED BY DECLARATION RECORDED UNDER AUDITOR'S FILE NO. 7803240360, TOGETHER WITH AN UNDIVIDED 2.12 PER CENT INTEREST IN THE COMMON AREAS AND FACILITIES DESCRIBED IN SAID DECLARATION. THE APARTMENT IS INTENDED FOR SINGLE FAMILY RESIDENTIAL USE AND INCLUDES THAT USE OF THE LIMITED COMMON AREAS AND STORAGE LOCKER NO. 207 AS DEFINED IN RCW 64.32.010(11) AND IN SAID DECLARATION AT SECTION V. THE POST OFFICE ADDRESS IS 19411 56TH WEST, LYNNWOOD, WASHINGTON 98036.
Clerk's Papers at 79, 82.
The parties do not dispute that this legal description is incorrect. Unit 218 is located in building 1 of the condominium complex, not building 2; there is no unit 218 in building 2.
King twice began nonjudicial foreclosure proceedings of the deeds of trust. Beriault filed an action on numerous grounds, seeking to quiet title of the property and to restrain the foreclosure. King responded, arguing affirmative defenses and making a general denial of Beriault's allegations. However, King did not seek reformation of the deeds, argue scrivener's error, or assert a theory of mistake.
Trial was held, and Beriault abandoned several of his causes of action, with the exception of the cause to quiet title. The trial court found the legal descriptions contained in the deeds of trust were not accurate or sufficient and that extrinsic evidence would be required to determine the correct legal description. The trial court, citing the seminal case of Martin v. Seigel, 35 Wn.2d 223, 212 P.2d 107 (1949), quieted title in Beriault, concluding the deeds were void. King moved for reconsideration, which was denied. This appeal followed.
DECISION
In November 2008, this case was set for hearing. On December 2, 2008, King filed a motion on the merits to reverse. The decision of the court subsumes any order on the motion on the merits, and as such, it is denied.
We review questions of law and conclusions of law de novo. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003). The determination of the trial court regarding the sufficiency of the legal description under the statute of frauds is a question of law.
The statute of frauds for real property provides, "Every conveyance of real estate, or any interest therein, and every contract creating or evidencing any encumbrance upon real estate, shall be by deed. . . ." RCW 64.04.010. It has been long held in Washington that to comply with the statute of frauds, the writing must contain a legal description of the property by lot and block number, addition, city, county, and state. In other words, in order to comply with the statute of frauds, a contract or deed for the conveyance of land must contain a description of the land sufficiently definite to locate it without recourse to oral testimony.
Martin holds that "with respect to legal descriptions, we hereby hold that every contract or agreement involving a sale or conveyance of platted real property must contain, in addition to the other requirements of the statute of frauds, the description of such property by the correct lot number(s), block number, addition, city, county, and state." Martin, 35 Wn.2d at 229.
King argues that the trial court erred in invalidating the deeds of trust because it failed to consider references to other instruments in the deed to find a sufficient description. He asserts that an adequate legal description was incorporated by reference in the deed. We disagree and affirm.
King concedes that the Martin case defines what may be a sufficient description of property in a deed. However, King argues that additional cases since Martin have modified its holding and provide that courts may consider other instruments referred in the deed to find a sufficient description. Lofberg v. Viles, 39 Wn.2d 493, 236 P.2d 768 (1951); Bingham v. Sherfey, 38 Wn.2d 886, 234 P.2d 489 (1951); Garrett v. Shriners Hosp. for Crippled Children, 13 Wn. App. 77, 533 P.2d 144 (1975). These cases, and others, uphold the rule of Martin, that the instrument must contain a description sufficient to locate the land without recourse to oral testimony or contain a reference to another instrument that does contain a sufficient description. See Bigelow v. Mood, 56 Wn.2d 340, 341, 353 P.2d 429 (1960); Ecolite, 43 Wn. App. at 270-71. This was recently reaffirmed in Home Realty Lynnwood, Inc. v. Walsh, 146 Wn. App. 231, 189 P.3d 253 (2008).
It is also well settled that a legal description that designates the land conveyed as a portion of a larger tract, without identifying the particular part conveyed, does not meet the requirements of the rule.Martinson v. Cruikshank, 3 Wn.2d 565, 567, 101 P.2d 604 (1940); Garrett, 13 Wn. App. at 79. Finally, any deed that contains an insufficient legal description is void. Schweiter v. Halsey, 57 Wn.2d 707, 710, 359 P.2d 821 (1961). The question is whether the deeds, with resort to the references contained therein, provide a sufficient legal description under the statute of frauds.
In his opening brief, King makes a number of allegations to support the sufficiency of the description — the description of the property in the underlying sales contract to Beriault, the legal description of the entire parcel on which the condominium development rests, and the tax identification number of the entire property. These arguments fail as either the information is not contained in the deeds or is insufficient to describe the condominium unit at issue. Initially, unit 218 was sold to Beriault under a real estate contract that also misidentified the unit as being in building 2. This contract was initially recorded under auditor's file number 7901260003. This file number is contained in the deeds at issue. However, the mistake of the improper building number was discovered and the real estate contract was recorded a second time using the correct building number. The file number of this second recording is not found in the deeds.
Once the declaration of condominium was recorded with the auditor, the legal description of the condominium was that required by RCW 64.32.120, which provides:
Deeds or other conveyances of apartments shall include the following:
(1) A description of the land as provided in RCW 64.32.090, or the post office address of the property, including in either case the date of recording of the declaration and the volume and page or county auditor's recording number of the recorded declaration;
(2) The apartment number of the apartment in the declaration and any other data necessary for its proper identification;
(3) A statement of the use for which the apartment is intended;
(4) The percentage of undivided interest appertaining to the apartment, the common areas and facilities and limited common areas and facilities appertaining thereto, if any;
(5) Any further details which the grantor and grantee may deem desirable to set forth consistent with the declaration and with this chapter.
The legal description set forth in the declaration of condominium is the legal description for the entire property of the condominium project. Thus, the legal description contained in that declaration is not helpful to describe the individual unit owned by Beriault with any sufficiency.
Review of the individual deeds alone shows they do not meet the standards set forth in RCW 64.32.120 as they fail to provide the correct identification of the building in which unit 218 is located. King's argument that the identification of the building is merely superfluous language is incorrect given the strict provisions of RCW 64.32.120 and 64.04.010.
King also contends that the tax parcel identification number is the same for all of the property located within both buildings. But the record shows that each unit within the development has its own tax parcel identification number, and a review of the deeds demonstrates that they do not refer to any tax identification number.
King's primary argument is that the legal description in the deeds, when read together with the referenced declaration of condominium, survey map, and floor plans, meets the requirements of RCW 64.32.120 and the statute of frauds. He claims that because there is only one unit 218 in either building of the complex, resort to the referenced documents adequately shows the location of unit 218 to be in building 1, thus providing the sufficient description. We disagree.
Standing alone, none of the individual documents provide a sufficient legal description of the property. Even when the referenced documents are reviewed with the deeds, strict application of the statute of frauds cannot save the legal description. The doctrine of incorporation by reference does not solve the issue because it would require a leap that the creator and signatory of the deeds actually intended to describe the particular condominium apartment as one in building 1 rather than building 2 without resort to oral testimony. Mere mention of the documents does not constitute sufficient reference to the specifics of the instrument necessary to incorporate a proper legal description. To explain this leap from building 2 to building 1 requires the admission of extrinsic evidence to prove a sufficient description. To hold otherwise — that the documents, read together, provide a sufficient legal description — would diminish the long-standing rule of strict compliance. Washington's rule is "the strictest in the nation. . . . In most states an incomplete description or a street address is sufficient, and parol evidence may be received to locate the land. Not so in Washington." 18 William B. Stoebuck John W. Weaver, Washington Practice: Real Estate Transactions § 16.3, at 225 (2d ed. 2004).
King did not seek reformation of the deeds or make a claim of mistake or scrivener's error in his briefing or argument before the trial court. He did not raise it in his motion for reconsideration. On appeal, he contends the error in the legal description was a mistake. Issues or claims not presented to the trial court will not be considered on appeal. RAP 2.5; Elber v. Larson, 142 Wn. App. 243, 250, 173 P.3d 990 (2007).
Beriault seeks an award of attorney fees for the appeal. His claim for fees is based on paragraph 5 of the deeds of trust, which provides for attorney fees and costs in connection with the deed, as well as the provisions of RCW 4.84.330. The trial court awarded attorney fees, and so do we, in an amount to be set by a commissioner of this court upon compliance with RAP 18.1.
Affirmed.