Opinion
No. 63902-1-I.
January 19, 2010.
Appeal from a judgment of the Superior Court for Clallam County, No. 06-2-00413-5, George L. Wood, J., entered June 20, 2008.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Schindler, C.J., concurred in by Appelwick, J., and Agid, J. Pro Tem.
Three owners of a four-lot subdivision, James and Nanci Vanshur, Lawrence and Christine Kerbs, and John and Cindy Bradford (the Bradford lot owners), filed a lawsuit against the owner of Lot 4, the Charles and Ruth Adams Trust (the Adams Trust), to enforce the restrictive covenants that dedicate a portion of Lot 4 for access and joint use of Lake Sutherland. The Bradford lot owners sought a determination that they have the right to use the dock constructed by a previous owner of Lot 4. The court decided in favor of the Bradford lot owners on summary judgment. The court ruled that under the terms of the covenants, all of the lot owners were entitled to ownership and control of the dock, and the Adams Trust cannot remove or alter the dock without the consent of the other lot owners. The court enjoined the Adams Trust from preventing the other lot owners from using the dock and awarded attorney fees. On appeal, the Adams Trust contends the court erred in ruling that the Bradford lot owners are entitled to ownership of the dock and that the Adams Trust does not have the right to remove the dock. Under the plain and unambiguous language of the restrictive covenants, because the dock interferes with the Bradford lot owners' right to use and enjoyment of the dedicated recreational area and Lake Sutherland, they have the right to use the dock. But because there is no dispute that the dock was constructed and paid for by a previous owner of Lot 4, the Bradford lot owners do not have an ownership interest in the dock. However, in the event the Adams Trust decides to remove the dock, under the language of the covenants, no new dock or other improvements can be constructed in the dedicated recreational area without the consent and agreement of all of the lot owners. We affirm in part, reverse in part, and remand.
Marguerite Greaves owned a large undeveloped parcel of property in Clallam County. At the southeast corner of the property, a 423-foot long strip of land leads to the 50-foot wide shoreline of Lake Sutherland.
Greaves consulted a real estate agent about subdividing the property and about selling the lots. Thereafter, Greaves retained an attorney to draft an easement and covenants giving all of the lot owners the right to access Lake Sutherland.
On April 13, 1987, Greaves recorded the short plat and the "Declaration of Access and Use Covenants." The short plat subdivides the property into four lots. Lot 4 contains the 423-foot long strip of land that leads to the shoreline of Lake Sutherland.
The recorded "Declaration of Access and Use Covenants" (the covenants) for the short plat grants an easement on the 423-foot long strip of land on Lot 4 to the other lot owners for "nonvehicular" access to Lake Sutherland, and dedicates the shoreline area of Lot 4 for recreational use of Lake Sutherland. The preface states that Marguerite Greaves, as the common owner of Lots 1 through 4 of "the Short Plat . . . hereby makes the following covenants and commitments for the benefit of the above-described property." The preface also states that "[a]ll restrictions, limitations and conditions hereinafter set forth shall be observed by and be binding upon the original covenantor and each buyer, personal representative, grantee, successor in interest and assigns to the above-described property."
Consistent with the preface, the " Term of Covenants" section states:
These covenants and dedications are for the benefit of and run with land and all parties who gain title to or possession of the land above described are bound by these covenants. These covenants shall run with the land perpetually and are binding on the grantor and all persons claiming under her and they may not be changed in whole or in part without the express written concurrence of all of the owners of said short plat.
The " Access" section dedicates the Lake Sutherland, Road identified on the short plat, and the 423-foot portion of Lot 4 as a nonvehicular easement to access the recreational shoreline area.
The road access identified as the Lake Sutherland Road upon the face of the above-described short plat is hereby dedicated as a nonvehicular easement for ingress and egress to the owners of the above parcels to allow for access to that portion of Lot 4 depicted upon said short plat, which is located in the southeast corner of said Lot 4. . . .
The " Use" section of the covenants describes the dedicated recreational area of the short plat as the 50-foot wide and 75-foot long shoreline area of Lot 4 and states that the area:
is hereby reserved and dedicated to the recreational use of all of the owners of the above-described parcels. This dedication is to allow for the joint use and enjoyment of Lake Sutherland and its immediately adjoining upland property as described in this dedication.
The Use section also specifically states:
The owners of the above parcels shall not place any improvements upon or make any use of said dedicated area that are inconsistent with the intent of preserving said area for recreational purposes.
In 1989, Tim and Lynn Fraser purchased Lot 2 and Lot 4 from the Greaves Estate. The Frasers built a house with a view of Lake Sutherland on a portion of the nonvehicular easement. In the early 1990's, Tim Fraser built a deck at the shoreline of Lake Sutherland and hired a contractor to construct a dock. Fraser obtained permits and paid for the construction of the dock that is attached to the deck. There is no dispute that there was no agreement with the other lot owners about construction of the deck or the dock and the other lot owners did not contribute to the costs of construction. According to Tim Fraser, he owned the dock and the other lot owners used it with his permission.
The covenants allow the owner of Lot 4 to build on the 423-foot strip "so long as sufficient area is preserved for said nonvehicular ingress and egress. . . ."
In 1992, the lot owners recorded an "Amendment to Declaration of Access and Use Covenants." The amendment defines the term "owner" as used in the covenants to mean "one single family per each of the four existing lots." The amendment also prohibits the owners from further subdividing the four lots created by the short plat.
In 1993, James and Nanci Vanshur purchased Lot 1 from James and Angela Neville. The Statutory Warranty Deed states that Lot 1 of the Greaves short plat is subject to the recorded covenants. In 1998, Michael and Gail Frick purchased Lot 3, and in 2005, Lawrence and Christine Kerbs purchased Lot 2. The Statutory Warranty Deeds for Lot 2 and Lot 3 also state that the property is subject to the recorded covenants. The Vanshurs built a house on Lot 1. Lot 2 and Lot 3 remain undeveloped.
In July 2004, Charles and Ruth Adams purchased Lot 4 from Ann Marie Rosecrants and Margaret M. Baker. The Statutory Warranty Deed states that the property is subject to:
EASEMENTS RECORDED UNDER AUDITOR'S NOS. 295468, 406429, 498928, 617852 AND AS DELINEATED ON AND DEDICATED IN VOLUME 16 OF SHORT PLATS, PAGE 11. RIGHT OF WAY FOR LAKE SUTHERLAND ROAD AS SHOWN ON THE FACE OF THE SHORT PLAT. COVENANTS, CONDITIONS, RESTRICTIONS, WARNING AND NOTE RECORDED IN VOLUME 16 OF SHORT PLATS, PAGE 11. DECLARATION OF ACCESS AND USE COVENANTS RECORDED UNDER AUDITOR'S NO. 589949 WHICH WERE AMENDED BY AUDITOR'S NO. 667010.
Charlesand Ruth Adams conveyed Lot 4 by quit claim deed to the Adams Trust. In the late summer 2004, their son Randy Adams and his family moved into the house on Lot 4.
According to Randy Adams, the day after his family moved in, he talked to the Vanshurs' sons and their friends about driving down the nonvehicular easement to use the dock.
`And I confronted them and they said oh, well we've been, they didn't know, the house apparently had been vacant for almost a year, and they had just gotten in the convenient habit of violating the easement.
I had also been advised by counsel that there was some question as to the rights of friends of people who were not actually owners of lots 1, 2, or 3, having some question as to the rights of friends to prevail on the easement and there was, for the first couple of weeks, there was a flood, a constant flood of friends of Chris and Morgan's coming down to the dock. There were three occasions when they drove down. I had a discussion with Jim about it and he apparently put the word out through his sons, I imagine, to quit driving down the driveway.'
In the spring of 2005, Adams removed a section of the dock, leaving only a three-foot by six-foot gangplank connecting the dock to the deck. Adams also posted no trespassing signs and installed a locked gate to access the dock.
On May 31, Adams sent a letter to each of the three lot owners describing the actions he had taken. Adams expressed concern about liability. Adams asserted that as the sole owner of the dock, he has the right to prevent the other lot owners from using it. Adams noted that the other lot owners could still access the lake from the deck.
In spring 2006, the Vanshurs, Kerbs, and Bradfords (the Bradford lot owners) filed a lawsuit against the Adams Trust seeking declaratory and injunctive relief. The Bradford lot owners asserted that the Adams Trust was not the sole owner of the dock and they were entitled to access and use the dock "at all times." The Bradford lot owners requested an order enjoining the Adams Trust from prohibiting them from using the dock and for damages to restore the dock. In the alternative, the Bradford lot owners alleged that they had acquired a prescriptive easement to use the dock.
The Bradford lot owners and the Adams Trust filed cross motions for summary judgment. The Bradford lot owners relied on the language of the covenants, testimony of the current and former owners and real estate agents. The Adams Trust argued that the Bradford lot owners did not have the right to use the dock because it is located outside the dedicated recreational area.
A superior court commissioner denied the Bradford lot owners' motion for summary judgment on their prescriptive easement and damages claims. The commissioner ruled there were material issues of fact as to whether the Bradford lot owners acquired a prescriptive easement to use the dock, and as to damages. However, the commissioner granted partial summary judgment in favor of the Bradford lot owners on the question of whether the Adams Trust was the sole owner and user of the dock. The commissioner concluded that because the clear intent and purpose of the covenants is to dedicate the lakefront area to all of the property owners, the Bradford lot owners are entitled to "full use of the dock."
The commissioner ruled that the covenants prohibit the Adams Trust from preventing the Bradford lot owners from using the dock. Under the terms of the covenants, the commissioner awarded reasonable attorney fees to the Bradford lot owners.
The commissioner's memorandum decision states in pertinent part:
It is clear that the purpose of the covenants was to enhance the profitability of the entire parcel so that Marguerite [sic] Greeves could obtain the most money possible for her investment. To do that, she had to make each of the lots accessible to Lake Sutherland. That is why she dedicated a parcel of property 50 feet wide and 75 feet long at the terminus of Lot 4 to the recreational use of all of the owners of the parcels for the joint use and enjoyment of Lake Sutherland. Had Ms. [sic] Greeves wanted to preserve the right to Lot 4 to build a dock on the end of the recreation property, she could have reserved that right. She did not do so and it is clear that she intended the lot owners to work together so that they could jointly use and enjoy Lake Sutherland.
. . .
The covenants even go so far as to say that no one owner shall place any improvements upon or make any use of the dedicated area that is inconsistent with the intent of preserving said area for recreational purposes, and those purposes are to be enjoyed by all the owners. Certainly the covenants imply a sharing of costs associated with any upkeep or improvements to the recreation area, but also an agreement concerning such issues.
The dock is appurtenant to the land. The covenants envision an equal sharing of the right of access to Lake Sutherland. Each property owner is entitled to full use of the dock that is appurtenant to the land and Defendant's actions in barring Plaintiffs' use of the dock that is in direct violation of the covenants and shall be enjoined. Plaintiffs are entitled to reasonable attorney fees for having to enforce the covenants in a court of law.
The Adams Trust filed a motion to revise the commissioner's decision. The superior court denied the motion to revise. In a memorandum opinion, the court ruled that because the construction of a dock interferes with the recreational use of the lake, exclusion of the other owners violates the terms of the covenants. The court concluded that the unambiguous language of the covenants "clearly contemplates joint and equal use." The court ruled that the dock "clearly limits the ability of the other owners to use and enjoy the lake as contemplated in the Declaration." Although the court noted the "original builder of the dock may have been able to request the others to contribute toward the costs of the improvements, but once built, he and his successor have no authority to restrict its use to the exclusion of the other owners."
The Adams Trust filed a motion for reconsideration arguing the court did not "address the ownership rights of the dock itself, including the right of the adjoining upland owner to remove, remodel or relocate the dock as the owner sees fit." The court ruled that because the Bradford lot owners had a right to ownership and control of the dock, the Adams Trust could not remove the dock without the agreement of the Bradford lot owners, and "the dock and future improvements shall be governed by the agreement of the parties."
The court's reconsideration decision states in pertinent part:
With regard to ownership of the dock it is clearly implied within the covenants that once an improvement is built within the dedicated area it becomes itself a part of the dedicated area, available for the joint use and enjoyment of all the property owners. Once constructed, a party does not control the use of that improvement and it likewise follows that said party does not retain a right to remove it without the consent of all of the property owners. As a part of the dedicated area, ownership and control of the improvement is with all the owners.
Likewise it is unreasonable to suggest that the building of improvements can occur without the consent of all the owners. Improvements cannot be `inconsistent with the intent of preserving said area for recreational purposes.' What constitutes an `inconsistent' use can only be a decision made by the owners who use the property.
. . .
It is the Court's finding that the dock and future improvements shall be governed by the agreement of the parties. The dock in question was built without a request for a contribution. However, until the Defendants restricted the use of the dock, it was clearly open for the joint use of all the property owners. All of the owners, therefore, should be involved with its future.
Consistent with the court's ruling, the final judgment states that all four lot owners are entitled to use and ownership of the dock, and enjoins the Adams Trust from preventing the other lot owners from using the dock. Under the terms of the covenants, the judgment also awards the Bradford lot owners attorney fees and costs of $17,269.66.
After entry of the judgment, the Bradford lot owners dismissed their prescriptive easement and damages claims.
The final judgment states in pertinent part:
1. All four lot owners are entitled to joint use and enjoyment of Lake Sutherland on and from the 50 foot by 75 foot dedicated piece of property described in the covenants on the finger of land on lot 4, of the M. Greaves short plat, recorded at Volume 16 of short plats, page 11, under Auditor's file number 574181, records of Clallam County, Washington.
2. Plaintiffs are entitled to recreational use of the dock appurtenant to the land on lot 4. Ownership and control of the dock is with all the owners. All of the owners are to be involved with decisions regarding the dock. Agreement among the owners is necessary with regard to upkeep and improvements of the recreation area, including the dock.
3. Defendants are permanently enjoined from preventing or prohibiting Plaintiffs, their families and invitees from recreational use and enjoyment of the 50 foot x 75 foot parcel of lot 4, the recreational area, the deck and the dock. Invitees must be accompanied by the lot owners. Any use by invitees must be in conjunction with the owner's use.
4. Under the covenants, Plaintiffs are entitled to attorney's fees for having to enforce them in a court of law. The amount of attorney's fees shall be decided after presentation by Plaintiffs' counsel of an affidavit regarding the attorney's fees incurred.
On appeal, the Adams Trust contends the court erred in interpreting the covenants and ruling the Bradford lot owners are entitled to joint use and ownership of the dock. The Adams Trust asserts that the dock is outside the scope of the covenants and does not interfere with the Bradford lot owners' use of Lake Sutherland. The Adams Trust also asserts the court erroneously ruled that the Bradford lot owners have an ownership interest in the dock, and the Adams Trust does not have the right to remove the dock without the agreement of the other lot owners.
Interpretation of the language of a restrictive covenant is a question of law that we review de novo. Day v. Santorsola, 118 Wn. App. 746, 756, 76 P.3d 1190 (2003). The primary goal in interpreting a covenant that runs with the land is to determine the grantor's intent and the purpose of the covenant when it was drafted. Riss v. Angel, 131 Wn.2d 612, 621, 934 P.2d 669 (1997). In determining the grantor's intent, the court examines the clear and unambiguous language of the covenant. Burton v. Douglas County, 65 Wn.2d 619, 621-22, 399 P.2d 68 (1965). We consider the instrument in its entirety and if the meaning is unclear, we look to the surrounding circumstances. Lenhoff v. Birch Bay Real Estate Inc., 22 Wn. App. 70, 72, 587 P.2d 1087 (1978). Where homeowners of a subdivision are governed by a restrictive covenant, "[t]he court will place `special emphasis on arriving at an interpretation that protects the homeowners' collective interests.'" Riss, 131 Wn.2d at 623-24 (quoting Lakes at Mercer Island Homeowners Ass'n, 61 Wn. App. 177, 181, 810 P.2d 27 (1991)).
Here, the grantor's intent is clear. The language of the covenants unambiguously dedicates access to Lake Sutherland, the 50-foot shoreline area, and joint use and enjoyment of Lake Sutherland to all four owners. The covenants expressly state that the lot owners have the right to "joint use and enjoyment of Lake Sutherland and its immediately adjoining upland property. . . ." And although the covenants do not expressly address construction and ownership of a dock, the covenants clearly address any improvements in the dedicated area: "The owners of the above parcels shall not place any improvements upon or make any use of said dedicated area that are inconsistent with the intent of preserving said area for recreational purposes."
There is no question that the dock is an improvement that is located in the dedicated recreational area. Construction of a dock is not inconsistent with "the intent of preserving" the dedicated Lake Sutherland recreational area as long as it does not interfere with joint use and enjoyment of the lake. And as noted, while a dock is not inconsistent with the intent of preserving the area for recreational purposes, the language of the covenants expressly prohibit "[t]he owners" from constructing of "any improvements" in the dedicated recreational area unless all of the lot owners agree to do so.
Here, the previous owner of Lot 4 did not obtain the agreement of the other lot owners before constructing the dock. However, once built, under the plain and unambiguous language of the covenants, all of the lot owners have the right to use the dock that is located in the dedicated recreational area. To conclude otherwise would interfere with the express right to joint use and enjoyment of Lake Sutherland. In order to give effect to the language of the covenants, the Adams Trust cannot prevent or prohibit the other lot owners from using the dock.
However, based on the undisputed testimony that a previous owner of Lot 4 paid all of the costs to construct the dock, we conclude that the court erred in ruling that the Bradford lot owners have an ownership interest in the dock, and vacate that portion of the judgment that prohibits the Adams Trust from removing the dock. Nonetheless, in the event the Adams Trust decides to remove the dock, under the plain language of the covenants, no new dock or other improvement can be constructed in the dedicated recreational area without the agreement of all four lot owners. Because we reverse the determination that the Bradford lot owners have an ownership interest in the dock, on remand the court must reconsider the award of attorney fees.
Because we conclude that the Bradford lot owners do not have an ownership interest in the dock, we need not address the Adams Trust's argument under RCW 79.105.430. We note, however, that the statute does not conflict with the requirements of the covenants.
We affirm in part, reverse in part, and remand.
Because neither side prevailed on appeal, we decline to award attorney fees on appeal.
WE concur.