Opinion
No. 49761-8-I, c/w 50662-5-I
Filed: April 28, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 00-2-10243-7 Judgment or order under review Date filed: 12/06/2001
Counsel for Appellant(s), John Warren Hathaway, Attorney at Law, 701 5th Ave Ste 3401, Seattle, WA 98104-7032.
Deborah Jean Jameson, Attorney at Law, 516 3rd Ave C203, Seattle, WA 98104.
Bruce David Thomas, Attorney at Law, 520 Kirkland Way Ste 400, P.O. Box 2821, Kirkland, WA 98083-2821.
Counsel for Respondent/Cross-Appellant, Howard Mark Goodfriend, Edwards Sieh Smith Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Evy F McElmeel, Edwards Sieh Smith Goodfriend, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Robert Erling Ordal, Attorney at Law, 1000 2nd Ave Ste 1750, Seattle, WA 98104-3620.
A dispute between neighbors over a walkway has resulted in nearly three years of litigation. Although we reverse the trial court's conclusion that there was a restrictive covenant, we hold that there is an implied easement of necessity over the walkway. And because there is no restrictive covenant, we vacate the trial court's contempt order and award of attorney fees.
I
In 1959, Helen and Raymond Zech purchased lakefront property in Kirkland (Lot B). There was a small cabin on the property. In 1961, they purchased additional land abutting their property to the North (Lot A). They then built a larger, second home on Lot A, where they resided. Eventually they rented out the smaller home on Lot B. A walkway running from the driveway to the lake bisected the property and provided beach access for both homes.
In 1980, Helen, now a widow, deeded Lot B and the southernmost 10 feet of Lot A to her son, Ralph Zech I (Zeck I).
The following year, she decided to sell Lot A. After negotiating with prospective buyer Russ Keyes, she decided to deed the southernmost five feet of lot A to her son in order to reduce the purchase price of her home. She had the property surveyed and stakes were placed along the proposed adjustment.
At some time before recording the lot line adjustment, Keyes noticed that as a result of the lot line adjustment, the walkway would encroach onto the southern property. To preserve his use of the walkway, he contacted Helen's attorney and negotiated restrictive language into the real estate contract:
The southerly line of the above-described property lies within a paved walkway between Lot A, above, and adjacent Lot B, owned by the seller. Seller agrees not to establish a fence on the boundry (sic) line, or otherwise abstruct (sic) said walkway.
Zech I, acting with Helen's power of attorney, signed this agreement on April 15, 1981. The contract was recorded on April 29, 1981. On the same date April 29 a quit claim deed correcting the legal description to lot B was recorded. This deed had been signed and notarized on April 15, 1981 by Zech I, acting with Helen's power of attorney. But this deed did not contain the restriction found in the real estate contract between Helen and Keyes.
Zech I later sold Lot B, including the five foot addition, to his son Ralph Zech II and his wife Cynthia (Zech II). The deed conveying title did not reference the Keyes' real estate contract containing the walkway restriction. Zech II continues to own this property. Keyes owned Lot A until 1996, when he sold it to Ralph and Cynthia Pathe (Pathe). The deed did not specifically mention the contract restriction, but did state that it was subject to '[e]asements, restrictions, reservations, covenants, agreements, rights of way and zoning ordinances' as set forth in the title insurance report. The report noted the contract restriction under special exceptions and excluded it from coverage. The report also provided the restrictive language from the contract.
The Boundary dispute In 1987, Zech II tore down his house and built a new one. Later, he replaced the walkway. Zech II also placed a privacy fence alongside the eastern portion of the walkway. As part of the construction, the landing near the driveway was rebuilt and relocated, and a planted area was added. Keyes agreed to the improvements and did not request Zech II to remove the fence. At some point after this reconstruction, Zech II planted a hedge next to the walkway west of the landing.
In 1999, Zech II decided to relandscape his property. As part of the project, he reconfigured the landing beside Pathe's house to eliminate access from his property. To achieve this, Zech II removed steps coming down from his property and stacked boulders in their place, creating a retaining wall. This wall abutted onto the edge of the landing, but it was on Zech II's property. Later, he replaced the now rotting privacy fence between his property and Pathe's, this time bolting it to the southern edge of the concrete walkway. Because the parties could not resolve issues surrounding the walkway and fence, Pathe sued to enforce the 1981 contract restriction. Following a five day trial, the trial court found that the 1981 contract created an enforceable restrictive covenant and that in the alternative, Pathe had an implied easement preventing Zech II from obstructing access to the walkway. The court granted an injunction enjoining Zech II from interfering with Pathe's access and requiring that Zech II remove the fence on the eastern walkway.
From photos and testimony by Pathe it appears that Zech II moved the fence between six and eight inches.
The Contempt Order Several months later, Pathe brought a motion for contempt. Pathe claimed that his access had been blocked by Zech II's contractors, and Zech II had installed tiles in the driveway along the boundary that allegedly impeded Pathe's access to the walkway. Pathe also alleged that Zech II had removed the survey pin in the driveway, cut off the support for the hand railing that runs along the three stairs just west of the concrete walkway, and intentionally extended the existing hedge, blocking his view.
The court concluded that Zech II interfered with Pathe's use of the existing landing and walkway. To remedy this violation, the court ordered Zech II to eliminate the uneven seam along the driveway tiles. The court also found that by installing the hedge, Zech II impermissibly installed the functional equivalent of a fence. The court required that Zech II remove the five westernmost hedge trees, and granted Pathe the right to trim Zech II's remaining hedge to a height of seven feet.
The order also required Zech II to provide 30 days notice for any construction, landscaping, or any other 'extraordinary' activities within the easement or within three feet of the boundary between Lots A and B. If Pathe refused to grant consent, the parties were required to submit their respective proposals to a mediator. Finally, Zech II was also required to pay $3,500 for Pathe's attorney fees. Zech II appeals both the original judgment and the contempt order. We have consolidated these claims for the sake of efficiency. Pathe appeals the trial court's summary judgment order denying their adverse possession claim.
II
At the outset, the distinct nature of covenants and easements must be clarified. An easement is the limited right to use another's land. A covenant is a promise by a landowner to do or not do something with respect to his own land. Confusion in this case arises because the agreement signed by Helen and Keyes arguably created both a right of passage (easement) along the walkway and a restriction on building a fence (restrictive covenant) that limited Helen's and later Zech II's use of the five foot strip. But the presence of an easement would only prevent Zech II or his successors from interfering with Pathe's use of the walkway, while a restrictive covenant might prevent certain uses of the entire strip. Here, Zech II challenges whether the covenant was binding against the original parties as a real covenant because Helen did not own the burdened land when she recorded the covenant and that he did not have notice of the covenant.
17 William B. Stoebuck, Washington Practice: Real Estate sec. 2.1, at 80 (1995) ('an easement is a right to go on another's land and more or less to use it').
See Stoebuck, supra, § 3.1, at 121 ("covenant' means a covenantor's promise to a covenantee to do or to refrain from doing something, which the covenantee may enforce in court. The thing promised always relates in some way to land in which covenantor or covenantee have legal interests').
An easement's precise location is not required, only the exact location of the servient estate. See Berg v. Ting, 125 Wn.2d 544, 551, 886 P.2d 564 (1995).
In 1515 — 1519 Lakeview Boulevard Condominium Ass'n v. Apartment Sales Corp., our Supreme Court explained that the distinctions between real and equitable covenants 'have largely vanished from our law.' The court then set out what it called the 'general' requirements for a covenant to run with the land. These five elements are: (1) a promise which is enforceable between the original parties; (2) which touches and concerns; (3) which the parties intended to bind successors; and (4) which is sought to be enforced by an original party or a successor, against an original party or a successor in possession; (5) who has notice of the covenant or has not given value. Zech II argues that the agreement was not enforceable between the original parties because Helen no longer owned the strip when she entered into the agreement with Keyes. At issue is whether the lot line adjustment was effective to transfer the ownership interest in the disputed strip before the parties executed the restrictive covenant. Lot line adjustments are administrative procedures that do not purport to transfer title between property owners. The purpose of lot line adjustments is to change lot lines for county records.
1515 — 1519 Lakeview Boulevard Condo. Ass'n v. Apartment Sales Corp., 146 Wn.2d 194, 43 P.3d 1233 (2001).
Condo. Ass'n, 146 Wn.2d at 203.
Citing to a law review article by Professor Stoebuck on running covenants, the elements listed by the court were not elements for real covenants, but were instead the elements for equitable covenants. Condo. Ass'n, 146 Wn.2d at 203 (citing William B. Stoebuck, Running Covenants: An Analytical Primer, 52 Wash. L. Rev. 861, 909-10 (1977)).
Condo. Ass'n, 146 Wn.2d at 203 (citing Stoebuck, supra, at 909-10).
RCW 58.17.060 directs local legislative bodies to enact procedures for summary approval of short plats or short subdivisions. But because the procedures for approving boundary line adjustments are not defined by chapter 58.17 RCW, local authorities must establish their own procedures for the consideration and review of requests for boundary line adjustments. King County has such procedures, which Helen and Zech I followed. Here, the lot line adjustment was signed and notarized by Helen, Zech II, and Keyes. But the purpose of these signatures is to ensure that all parties having an interest in the land current or future have notice of the lot line adjustment. Although the lot line adjustment document was recorded, there is no language purporting to convey title or affect ownership of the underlying land. To transfer ownership to real property, the parties must convey title by deed. This transfer was made when Helen executed a quit claim deed to Zech I on April 29, 1981. Zech II also argues that he did not have notice. Without proper notice of a covenant, a burdened landowner (or potential landowner) has no way to know that there is a restriction on how he uses his property. Here, the only evidence showing notice is testimony by a title insurance representative that a title search would have turned up the restrictive covenant on the burdened property because the search would have extended to other properties owned by Helen. But when Helen recorded the quit claim deed granting her son the five foot strip, she did not include the restrictive language in the deed, nor did she reference the real estate contract or its recording number in the quit claim deed. In fact, the only way to conclude that there was a burden on the property was to examine the real estate contract, which concerned the benefited land only. But this does not mean that the parties did not create a restrictive covenant. Because a restrictive covenant may be either real or equitable, Helen, through Zech I, conveyed an equitable covenant binding the five feet bordering Keyes' property. The trial court found that Zech I, by signing the agreement for Helen, is estopped from denying the unity of title. But this covenant terminated when Zech I conveyed Lot B to his son Zech II because the covenant's enforceability was based on actual notice to Zech I as her attorney in fact. We cannot bind Zech II to the original agreement merely because the previous owner was his father. This restrictive covenant was binding against Zech I only. Accordingly, there is no restrictive covenant currently burdening Lot B.
RCW 64.04.010 ('Every conveyance of real estate, or any interest therein, and every contract creating or evidencing any encumbrance upon real estate shall be by deed.').
The trial court also found that there was an implied easement. An implied easement (either by grant or reservation) may arise (1) when there has been unity of title and subsequent separation; (2) when there has been an apparent and continuous quasi easement existing for the benefit of one part of the estate to the detriment of the other during the unity of title; and (3) when there is a certain degree of necessity that the quasi easement exist after severance. Unity of title and subsequent separation are absolute requirements. Here, the court's written and oral findings support an implied easement.
Adams v. Cullen, 44 Wn.2d 502, 505, 268 P.2d 451 (1954).
Adams, 44 Wn.2d at 505.
The trial court found that there was unity of title in Helen before she conveyed any of her property to Keyes or Zech I. The court also found that Pathe established the second requirement apparent and continuous use of the walkway during the time Helen owned the entire property. Finally, the court found that there was a reasonable necessity for Pathe to use the walkway because the access was necessary and the cost to alter access would be substantial. Zech challenges the court's findings, especially that the cost to relocate Pathe's access would be substantial. Pathe did not submit any estimates showing the cost of relocating or reconfiguring his access. But he testified that '[i]n order to have the same access, we would have to remove the tree that's in the southeast corner of the planting area, we would have to remove the curb,' and that he would have to pave that area. He also stated, 'I don't know if we have to rip everything up to re-do the concrete or if patching works . . . .' He also testified that to reconfigure the landing and western portions of the walkway, he would have to remove some or all of his deck and create a new walkway.
The test of necessity for an implied easement is whether the party claiming an implied easement can create substitute access at a reasonable cost on his own estate without trespassing on his neighbor's property. The burden is on Pathe to establish these elements. In her findings, the trial court explained that '[t]he cost to reconfigure the landing, stairs, curb and pathways . . . would be unreasonably large.' This finding was based on Pathe's testimony concerning the cost to relocate the landing, western, and eastern portion of the walkway, and a site visit by the court. Although Pathe did not submit estimates showing the cost to reconfigure the walkway, the exhibits and his testimony established that the cost would not be reasonable.
Bays v. Haven, 55 Wn. App. 324, 329, 777 P.2d 562 (1989) (citing Adams, 44 Wn.2d at 507).
Because we find that there was an implied easement, we do not need to remand this case to determine if Pathe established a prescriptive easement over the same disputed portions of the walkway. Zech II also appeals the trial court's injunction enjoining his use of his land on the boundary line and imposing attorney fees. Here, Pathe has only an implied easement, and Zech II's activities did not substantially and permanently interfere with this easement. Zech II, like Pathe, is entitled to reasonable non-interfering use of the easement. Activities on his property outside of the implied easement area did not interfere with Pathe's use of the easement. Accordingly, the injunction restricting Zech II's use of his property was inappropriate. Further, placing paving stones on the walkway owned by Zech II but used by Pathe was not inappropriate because Zech II can improve the easement as he sees fit, as long as that use does not interfere with Pathe's use. And Zech II complied with the trial court's requirement that he eliminate the lip on the edge of the pavers.
Because the restrictive covenant was unenforceable, the trial court's ruling requiring Zech II to remove the five westernmost hedge trees, allowing Pathe to trim Zech II's hedges, and establishing a mediation mechanism for landscaping within three feet of the boundary line were inappropriate. We vacate these provisions of the contempt order, as well as the provision awarding attorney fees to Pathe.
We conclude that Pathe has an implied easement of necessity. But we vacate the trial court's contempt order because the restrictive covenant was unenforceable. Because the implied easement is in the same location as the prescriptive easement, we need not reach this issue.
REVERSED in part, AFFIRMED in part.
KENNEDY and COX, JJ., concur.