                                                                          FILED
                                                                        JUNE 8, 2017
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

KELLY S. DEAN and ANNA MARIE                 )
DEAN, husband and wife,                      )        No. 34501-7-III
                                             )
                    Respondents,             )
                                             )
      V.                                     )
                                             )        UNPUBLISHED OPINION
TIMOTHY MILLER and DIANE                     )
MILLER, husband and wife,                    )
                                             )
                    Appellants.              )

       SIDDOWAY, J. -Timothy and Diane Miller appeal the trial court's summary

judgment in favor of their neighbors, Kelly and Anna Marie Dean, enforcing restrictions

on use of the Millers' land that were created by a 1993 declaration of covenants executed

by the Millers' predecessors in interest. The declaration was incorporated by reference in

the deed by which the Millers acquired the land. We affirm.

                    FACTS AND PROCEDURAL BACKGROUND

      In December 2013, Timothy and Diane Miller purchased a riverfront lot on the

Wenatchee River from Margaret Dykes. The long, narrow lot was denominated Lot 10

on the plat recorded by the Darling Land Company in 1910. The Millers' new neighbors

to the east were Kelly and Anna Marie Dean, who had purchased their similar, long,

narrow parcel-Lot 9-in 2002.

      Ms. Dykes' s statutory warranty deed conveying Lot 10 to the Millers stated that

the conveyance was "[s]ubject to[:] ... covenants, conditions and restrictions imposed by
No. 34501-7-111
Dean v. Miller


instrument recorded on September 30, 1993, under recording no. 9309300059." Clerk's

Papers (CP) at 16 (some capitalization omitted). That instrument, dated September 29,

1993, is entitled "Declaration of Covenant" and was executed and recorded in connection

with a statutory warranty deed conveying Lot 10 from William and Mary Anne Walsdorf

to William and Kathleen Massey. 1 CP at 23-24.

       At the time the Walsdorfs sold Lot 10 to the Masseys, they owned both Lot 9 and

Lot 10. They retained Lot 9 following the conveyance. The declaration of covenants, 2

which was signed by both the Walsdorfs and the Masseys, recited the Walsdorfs'

ownership of Lot 10, its legal description, and then provided that "the grantee, William L.

Massey and Kathleen A. Massey"-the Millers' predecessors in interest-and "his/her

heirs, successors and assigns agrees":

       A.     There will be no commercial use of the above described Lot.
       B.     No structure shall be erected, placed or permitted on the Lot other
              than one single family dwelling of at least 1,000 square feet and a
              private garage. No part of any structure shall be over two stories
              high above the ground, and no closer than 15 feet from the boundary
              of Lot 9.

       D.     No trailer, mobile home, basement, tent, shack, or other outbuildings
              shall be used ... as a residence, except during construction of a
              permanent residence on said Lot.

       1
          Although the warranty deed bears a typewritten "Dated" date of September 24,
1993, the notarial jurat discloses that it, like the Declaration of Covenant, was actually
signed on September 29. CP at 22. The recording stamps on the two documents reveal
that they were recorded at the same time, September 30, 1993.
        2
          We refer to the 1993 Declaration of Covenant as a declaration of covenants,
since it includes several agreed limitations on the use of Lot 10.

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Dean v. Miller


       E.      No animals, poultry or livestock of any kind ... shall be raised bred,
               or kept on the above described Lot ....
       F.      The Lot shall not be used or maintained as a dumping ground for
               rubbish ....

               These covenants shall run with the land and shall be binding on all
       parties having or acquiring any right, title, or interest in the land described
       herein or any part thereof, and shall inure to the benefit of each owner
       thereof.

CP at 23-24.

       Despite incorporation of this 1993 declaration of covenants in the deed to the

Millers, in February 2015, Mr. Miller applied for a short plat to divide Lot 10 into two

residential lots. Mr. Dean wrote to Mr. Miller thereafter, pointing out the use restrictions

created in 1993 and asking Mr. Miller to withdraw his application. Instead, the Millers

executed and recorded a revocation of covenant, which identifies the Millers as both

grantor and grantee. In purporting to revoke the September 30, 1993 declaration of

covenants, the Millers claimed to do so as "the owners of the benefited and encumbered

property described herein." CP at 26. The revocation states that the 1993 covenant

"shall be of no further force and effect" and that the revocation "shall be effective

immediately." Id.

       In July 2015, the Deans filed the action below. They sought a declaration that the

use restrictions remain in effect and asked the court to enjoin the Millers from (1)

building any structure on Lot 10 beyond the existing single family dwelling and a private

garage and (2) otherwise using the property in violation of the use restrictions. In an

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No. 34501-7-111
Dean v. Miller


answer and counterclaim, the Millers asserted that the use restrictions failed to include a

legal description for any benefited property, which they claim is required by the statute of

frauds. They also contended that the covenant "at most" was personal to the Deans'

predecessors in interest and was not conveyed to the Deans, who lacked standing to

enforce it. CP at 48.

       Both sides filed motions for summary judgment. After initially granting the

Millers' motion for partial summary judgment, the trial court reversed itself on

reconsideration and granted summary judgment to the Deans. It concluded that the

declaration of covenants complies with the statute of frauds and runs with the land and,

alternatively, that the use restrictions are enforceable as an equitable servitude.

       The Millers appeal.

                                        ANALYSIS

       Whether summary judgment was properly granted in this case depends on whether

the use restrictions contained in the 1993 declaration of covenants are valid and

enforceable covenants running with the land.

       A covenant is:

       "[A]n agreement or promise of two or more parties that something is
       done, will be done, or will not be done. In modem usage, the term
       covenant generally describes promises relating to real property that
       are created in conveyances or other instruments."

Hollis v. Garwall, Inc., 137 Wn.2d 683, 690-91, 974 P.2d 836 (1999) (alteration in


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No. 34501-7-111
Dean v. Miller


original) (quoting 9 RICHARD R. POWELL, POWELL ON REAL PROPERTY§ 60.01 [2], at 60-

5 (1998) (footnotes omitted)). "There are essentially two kinds of covenants that run

with the land-real covenants and equitable covenants." Id. at 691.

       The Washington Supreme Court observed in Hollis that "Washington cases have

generally not distinguished between the two kinds of covenants." Id. (citing 17 WILLIAM

B. STOEBUCK, WASHINGTON PRACTICE: REAL ESTATE-PROPERTY LAW§ 3.1, at 121

(1995)). Nevertheless, the Supreme Court has never expressly eliminated the distinction

between real covenants and equitable servitudes,3 and this court has continued to analyze

each theory separately, taking into consideration the difference in their traditional

requirements. See 1 WASH. STATE BAR Ass 'N, WASHINGTON REAL PROPERTY

DESKBOOK SERIES: REAL ESTATE ESSENTIALS§ 8.2(2), at 8-5 to 8-7 (4th ~d. 2014)

(discussing Lake Limerick Country Club v. Hunt Mfg. Homes, Inc., 120 Wn. App. 246,

253, 84 P.3d 295 (2004) and Dickson v. Kates, 132 Wn. App. 724, 133 P.3d 498 (2006)).

       In reviewing an order on summary judgment, we engage in the same inquiry as the

trial court. Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d

1383 (1994). An order granting summary judgment is reviewed de novo, "considering


       3
         Real covenants have historically been those that meet the requirements evolving
from the early English common law decision of Spencer's Case (1583) 77 Eng. Rep. 72;
5 Co. Rep. 16 a (Q.B.), while equitable servitudes can be enforced in equity if they
satisfy the less stringent doctrine established in Tulk v. Moxhay ( 1848) 41 Eng. Rep.
1143; 2 Ph. 774 (Ch.). 1 WASH. STATEBARAss'N, WASHINGTON REAL PROPERTY
DESKBOOK SERIES: REAL ESTATE ESSENTIALS§ 8.2, at 8-3 (4th ed. 2014).

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No. 34501-7-111
Dean v. Miller


the evidence and all reasonable inferences from the evidence in the light most favorable

to the nonmoving party." Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).

Summary judgment is appropriate where there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter oflaw. CR 56(c).

              I       The covenants included in the declaration of covenants
                                     run with the land

       In Washington, the requirements for the running of a real covenant are ( 1) the

covenant must have been enforceable between the original parties as a matter of contract

law, including 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; and

(5) there must be horizontal privity of estate, or privity between the original parties.

Lake Arrowhead Cmty. Club, Inc. v. Looney, 112 Wn.2d 288,295, 770 P.2d 1046 (1989)

(quoting Leighton v. Leonard, 22 Wn. App. 136, 139, 589 P.2d 279 (1978)); Deep Water

Brewing, LLC v. Fairway Res. Ltd., 152 Wn. App. 229,257,215 P.3d 990 (2009). The

Millers dispute the presence of only the first three requirements.

       Enforceable contract. The Millers' principal contention is that the declaration of

covenants is not enforceable because it does not satisfy the statute of frauds. They point

out that it includes a legal description of Lot 10 but fails to recite or legally describe the


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No. 34501-7-111
Dean v. Miller


property that is benefited. Yet they provide no authority that the statute of frauds requires

an express recital and legal description of the benefited property.

         The Millers cite authority for the requirement that "' every contract creating or

evidencing any encumbrance upon real estate, shall be by deed''' and that every deed

'" shall be in writing, signed by the party bound thereby, and acknowledged."' Br. of

Appellant at 9 (quoting RCW 64.04.010, .020). The declaration of covenants satisfies

those requirements.

         They then cite authority that 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, or else it must contain a reference to another instrument which does contain a

sufficient description. Id. at 10 (citing Berg v. Ting, 125 Wn.2d 544, 551, 886 P.2d 564

(1995)). But they do not explain why they view a covenant that restricts land use as a

"conveyance" of the benefited land. The several cases they cite all deal with the need to

sufficiently describe land that is conveyed or to be conveyed. E.g., Berg, 125 Wn.2d at

551 (to convey an easement, its exact location need not be identified but "[t]he servient

estate must be sufficiently described"); Martin v. Siegel, 35 Wn.2d 223, 226, 212 P.2d

107 (1949) (describing the sufficiency oflegal descriptions in "contracts for the sale of

real property"); Halbert v. Forney, 88 Wn. App. 669, 945 P.2d 1137 (1997) (earnest

money agreement for the sale of real property). No violation of the statute of frauds is

shown.

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Dean v. Miller


       Whether or not it is subject to the statute of frauds, every contract must be definite

enough to determine, with at least a reasonable degree of certainty, the nature and extent

of the obligation that has been assumed. Hansen v. Transworld Wireless TV-Spokane,

Inc., 111 Wn. App. 361, 376-77, 44 P.3d 929 (2002). In determining the meaning of a

restrictive covenant, the "context rule" applies. Hollis, 13 7 Wn.2d at 696. Viewed in

context, the declaration of covenants is sufficiently definite in benefiting Lot 9. Not only

does it refer to Lot 9 ("No part of any structure shall be over two stories high above the

ground, and no closer than 15 feet from the boundary of Lot 9") but the Masseys'

promise to abide by the restrictions was made to the Walsdorfs, the W alsdorfs owned Lot

9, they were retaining Lot 9, and Lot 9 shared a boundary with Lot 10. CP at 23. The

Millers presented no argument or evidence of any genuine confusion or dispute over the

identity of the benefited property; they merely asserted, incorrectly, that a legal

description of Lot 9 was required. The requirement of an enforceable contract is

demonstrated by the summary judgment record.

       Touching and concerning the land. In arguing that the requirement that the

covenant touch and concern the land is not met, the Millers repeat their argument that Lot

9 is not legally described in the declaration of covenants. The lack of a legal description

of Lot 9 is irrelevant to this requirement.

       "A covenant touches and concerns the land if it is connec.ted with the use and

enjoyment of the land." Deep Water Brewing, 152 Wn. App. at 258; Rodruck v. Sand

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Dean v. Miller


Point Maint. Comm 'n, 48 Wn.2d 565, 574-75, 295 P.2d 714 (1956). For a burdened

parcel, a use restriction that limits the use of the land or diminishes the value of the parcel

touches and concerns the land. Hollis, 137 Wn.2d at 692; Leighton, 22 Wn. App. at 139-

40. For a benefited parcel, the covenant must be "so related to the land as to enhance its

value and confer a benefit upon it." See Rodruck, 48 Wn.2d at 575.

       The limitation on the use of Lot 10 and the corresponding enhancement of the

value of Lot 9 both touch and concern the land.

       Intent to bind successors in interest. The declaration of covenants states, "These

covenants shall run with the land and shall be binding on all parties having or acquiring

any right, title, or interest in the land described herein or any part thereof, and shall inure

to the benefit of each owner thereof." CP at 23-24. It is hard to imagine how the parties'

intent to bind successors could be clearer.

       Yet the Millers contend that this requirement. too, is not met without an explicit

identification and legal description of the benefited property. They cite no legal support.

Properly understood, the requirement of an intent to bind successors in interest is clearly

set forth in the declaration.

       II      The Millers were not owners of the sole benefited property for purposes of
                     the defense of merger and the power to revoke the covenants

       It is a defense to a once-enforceable covenant running with the land that the

covenant has been terminated by merger because the same person has become the owner



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Dean v. Miller


of both the benefited and the burdened land. Schlager v. Bellport, 118 Wn. App. 536,

539, 76 P.3d 778 (2003). And the parties to a covenant have the power to revoke it. Cf

Save Sea Lawn Acres v. Mercer, 140 Wn. App. 411, 166 P.3d 770 (2007) (accepting the

proposition as a given in holding that lot owners in an adjacent subdivision had no power

to interfere). The Millers contend that because Lot 10 is the only property identified by

more than a passing reference in the declaration of covenants and the only one legally

described, it was the only property burdened or benefited by the covenants. Accordingly,·

they argue, the covenants either terminated by merger or, if not, the Millers can revoke

them.

        We have already held that Lot 9 is the benefited property. We also observe that an

interpretation of the declaration as burdening and benefiting only Lot 10, at the very

moment the Walsdorfs were conveying title to that lot, is absurd. We do not adopt

interpretations that render a contract, or part of it, absurd or meaningless. Kelley v.

Tonda, 198 Wn. App. 303, 316, 393 P.3d 824 (2017).

        Ill.   The covenants included in the declaration of covenants are
                         enforceable as an equitable servitude

        In Washington, the traditional elements giving rise to an equitable servitude are

        ( 1) a promise, in writing, which is enforceable between the original parties;
        (2) which touches and concerns the land or which the parties intend to bind
        successors; and (3) which is sought to be enforced by an original party or a
        successor, against an original party or successor in possession; (4) who has
        notice of the covenant.


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No. 34501-7-111
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Hollis, 137 Wn.2d at 691. In its most recent decision on equitable servitudes limiting the

use of land, our Supreme Court clarified the first element, holding that a promise to limit

the use of land may be implied, at least when there is some writing (such as a notation on

a plat) that supports imposition of the burden. Riverview Cmty. Grp. v. Spencer &

Livingston, 181 Wn.2d 888, 897-98, 337 P.3d 1076 (2014). The major distinction

between running of real covenants and equitable servitudes is that equitable servitudes

require notice but not horizontal privity. WASHINGTON REAL PROPERTY DESKBOOK

SERIES: REAL ESTATE ESSENTIALS,§ 8.2(2) at 8-5.

       The Millers make only one argument against the existence of an enforceable

equitable servitude that we have not already rejected in analyzing the existence of a real

covenant. Relying on Johnson v. Mt. Baker Park Presbyterian Church, 113 Wash. 458,

194 P. 536 (1920) and Riverview, they suggest that a fifth element must be present to

enforce a covenant as an equitable servitude: the benefited party must have been induced

to purchase their property by promises of use restrictions that will enhance its value.

They argue the Deans presented no evidence of such an inducement in support of their

motion for summary judgment.

       Neither Johnson nor Riverview holds that proof of acts or conduct inducing

reliance is a fifth requirement for an equitable servitude. Instead, because the benefited

parties in those two cases could not satisfy the first element by pointing to an enforceable

promise in writing, they substituted evidence of conduct, representations, and acts that

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No. 34501-7-111
Dean v. Miller


the courts held could not be repudiated. Riverview, 181 Wn.2d at 896-97 (discussing

Johnson). The Deans can point to an enforceable promise in writing: the declaration of

covenants. They do not need substitute evidence.

       The elements of an enforceable equitable servitude are shown.

       Because the declaration of covenants creates valid and enforceable covenants

running with the land, the Deans had a clear legal or equitable right that could be

enforced by injunction. The trial court's orders are affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                      d)~(j}Yj
                                                 Siddoway, J.
                                                                                I~.



WE CONCUR:




                                            12
