Deep Water Brewing, LLC v. Fairway Resources Ltd.
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Full Opinion
¶1 This suit follows a dispute between a developer and a restaurant owner. The restaurant owner’s predecessor in interest granted the developer a right-of-way in exchange for money and the developer’s promise to restrict the height of houses in the development so as not to impair the view of Lake Chelan from the restaurant building. The trial court concluded that the developer ultimately breached that agreement and that the development’s homeowners association and its president tortiously interfered with the agreement. The court awarded the restaurant owner damages and attorney fees. We conclude that the restaurant owner was entitled to enforce the height restriction covenant as one that runs with the land. We also uphold the tort liability of the homeowners association president and the association. We remand for the court to revisit the attorney fees and for entry of necessary findings and conclusions to support any award of attorney fees and costs.
FACTS
¶2 History. Cindy Smith and Robert Ahlquist (Ahlquist) are siblings. They owned and operated the Cosina del Lago Restaurant overlooking Lake Chelan in Washington State. The dining room was on the second floor of the building and the lounge was on the first floor. The land between the
¶3 Jack Johnson is the sole shareholder and president of Key Development Corporation. David Milne was president of Fairway Resources, Ltd. They wanted to develop the property between the restaurant and the lake for single family housing. But any development required access over Ahlquist’s property. Toward that end, Mr. Johnson presented Ahlquist with a signed easement that included a provision that “[a] restrictive covenant shall be placed on the face of the plat to be developed by Fairway stating the [sic] no building will be constructed that will obscure the view from Cosina del Lago Restaurant.” Ex. 37; Clerk’s Papers (CP) at 639 (I Finding of Fact
¶4 Ahlquist referred the matter to their attorney who drafted an easement agreement and included protection for the view from the lounge:
The Corporation warrants and covenants that it shall establish and monitor compliance with all necessary building covenants in its development so as to not affect the sight or views from Cosina del Lago restaurant to the lake. There shall not be any homes or structures in the development that interfere with the view of the lake from the restaurant or its lounge.
Ex. 2; CP at 640 (I FF 1.20). The new document was entitled “Do Not Record Agreement” but amounted to an easement across Ahlquist’s property. Ahlquist’s attorney titled the document “Do Not Record Agreement” because he was “concerned about the character of the individuals we were dealing with” and wanted to ensure that all compensation and consideration for the right to the easement was received
¶5 The city of Chelan rejected the easement. It required a dedicated right-of-way before it would approve the development. Mr. Johnson drafted a right-of-way and presented it to Ahlquist. But he again left off the words “or its lounge” when addressing protection for the view from the restaurant building. CP at 640 (I FF 1.23); Ex. 40, ¶ 8. Ahlquist refused to sign the document, in part because of Mr. Johnson’s failure to provide protection of the view from the downstairs lounge. Ahlquist added back in the “or its lounge” language and the parties then signed the right-of-way agreement on October 23, 1995. The right-of-way agreement incorporated all of the previous terms of the easement agreement. Mr. Johnson signed the agreement granting the right-of-way both individually and in his capacity as president of Key Development.
¶6 Key Development then purchased the orchard property on March 2, 1996. The right-of-way was deeded to Key Development on April 23,1996. The parties understood that the right-of-way agreement was to be recorded with the plat, but it never was. The preamble to the right-of-way agreement provided that a homeowners association would protect Ahlquist’s rights: “The Corporation shall require the establishment of a Homeowners Association which shall be responsible for all obligations owed to the Owners [Ahlquist] as set forth herein, except for the continuing obligations (joint and several) of JACK A. JOHNSON.” Ex. 3, at 1-2; CP at 643 (I FF 1.43). Mr. Johnson then incorporated the Key Bay Homeowners Association (Association or Homeowners Association) and appointed himself president. He remained president and head of the Association’s architectural control committee from 1996 until at least Memorial Day 2002.
¶7 Mr. Johnson had hired John Walcker to develop the property. He directed Mr. Walcker to draft restrictive covenants for the Homeowners Association. But Mr. Johnson
¶8 The “Key Bay Declaration of Restrictive Covenants” and the “Key Bay Architectural Control Committee Rules, Regulations and Procedures” were recorded in September 1996. Paragraph 11 of the committee rules limited all buildings in the development to a single story and a maximum height of 16 feet above the top of the foundation. Mr. Gottschalk, however, established higher maximum roof elevations of up to 26 feet “from elevation point” (from median curb elevation). This is reflected in exhibit A to the covenants — a document drafted by Mr. Gottschalk in 1996. CP at 645 (I FF 1.56); RP at 632.
¶9 But exhibit A was not recorded until September 19, 2000, when Mr. Johnson again recorded the covenants. He was then president of the Homeowners Association and still head of the architectural control committee. Mr. Johnson blamed the title company for not recording exhibit A in 1996. He claimed the title company must have misplaced the document. He said he did not realize the problem until 2000. Mr. Johnson recorded covenants a third time on October 2, 2000, raising the maximum height restriction to 35 feet. But he again recorded covenants in March 2002 that returned the maximum height to 26 feet.
¶10 Meanwhile, Robert and Roberta Kenagy purchased the restaurant from Ahlquist in 1998. Mr. Kenagy was aware of the right-of-way agreement at the time he purchased the property. Mr. Kenagy was not aware of exhibit A to the covenants because it was not included with any
¶11 Mr. Kenagy leased the building to his business, Deep Water Brewing, LLC. Deep Water operated the restaurant and lounge as a brew pub from spring 1999 until shortly before he sold the property on September 30, 2005. Sometime before July 2001, Mr. Kenagy learned that property owners in the Key Bay development would be allowed to build multistory homes. He then sent letters to Mr. Johnson and other lot owners warning that he would enforce the height restrictions set out in the right-of-way agreement.
¶12 Michael and Patricia Taylor purchased lot 5 in the development on April 20, 2002. They were told that the elevation of their house could not exceed 1,164 feet above sea level as stated in exhibit A, which was attached to the covenants they received. They were also given a “Seller’s Property Conditions Report Vacant Land.” It represented that there were no disagreements, disputes, or legal actions concerning the property. No one told the Taylors about the Kenagys’ claims regarding height restrictions or about the agreements. Ed Ferguson was a real estate broker hired by Mr. Johnson to sell Key Bay lots. Mr. Ferguson told the Taylors that a 26-foot height restriction applied. Mr. Johnson never apprised Mr. Ferguson of the easement and right-of-way agreements.
¶13 Proceedings. Deep Water (the Kenagys) sued Fairway Resources, Ltd.; Key Development Corporation; the Homeowners Association; and Jack Johnson on September 10, 2002, for declaratory judgment and injunctive relief to enforce the provisions in the agreements (easement and right-of-way agreements) that protected their view and to enjoin the defendants from interfering with the restaurant and lounge views. The complaint was later amended to include the Kenagys as plaintiffs and to add claims for damages and attorney fees.
¶14 The Taylors submitted building plans for a two-story house to the Homeowners Association’s architectural con
¶15 In a fourth amended complaint, the Kenagys claimed breach of contract and entitlement to contractual attorney fees against only Fairway Resources and Key Development, equitable indemnity against only Key Development, and entitlement to damages from all defendants— Fairway Resources, Key Development, the Homeowners Association, and the Taylors.
¶16 Liability Phase. The court bifurcated the case into a liability and a damages phase. The liability phase began in March 2006. The Taylors had completed their home and the Kenagys had sold the restaurant before trial. The case was tried to the court sitting without a jury. At the close of the testimony in the liability phase, the court granted the Kenagys’ motion to amend their complaint to add a tortious interference with contract cause of action against the Homeowners Association and Mr. Johnson personally.
¶17 Several exhibits admitted during the liability trial show a view toward the lake from the downstairs lounge, before and after the Taylors built their house. Numerous witnesses testified that, despite the fact that there was an orchard there, there was a view of the lake from the downstairs lounge before the Taylors built their house. Carolyn Hamshaw worked as a bartender for both Cosina del Lago and Deep Water. She testified that there was a view of the lake from the downstairs lounge and that the Taylors’ home blocked part of that view. Patricia Taylor admitted that her house interfered with the view to the lake
¶ 18 Trial Court Holding — Liability. The court found that the Taylors’ house interferes with a view of the lake from the downstairs lounge.
¶19 The court concluded that there was a valid and enforceable contractual relationship between the Kenagys as Ahlquist’s successor in interest and as third party beneficiaries of the easement and right-of-way agreements. The court concluded that Key Development breached the agreements; that Mr. Johnson tortiously interfered with the agreements; and, that because Mr. Johnson acted as the Homeowners Association’s agent when doing so, the Association was vicariously liable to the Kenagys. And the court ultimately concluded that Mr. Johnson, the Homeowners Association, and Key Development were jointly and severally liable to the Kenagys. The court also ruled the Taylors were bona fide purchasers without notice and were therefore not liable to the Kenagys.
¶20 Damages Phase. The damages phase of the trial started in July 2007. The Kenagys’ expert witness, Dennis Johnson, is a certified real estate appraiser with some 40 years’ experience in sales and appraisal of commercial real estate in the Chelan area. The Kenagys gave his report to opposing parties Jack Johnson, Key Development, and the Homeowners Association on May 10, 2007. Those parties moved to exclude Dennis Johnson’s testimony because the property values he used were based on the work of another appraiser, Thomas Walters. They argued, from this, that his expert opinion was then based on hearsay. They also argued that Dennis Johnson could not base his opinion on the work of another appraiser by the rules of professional appraisers. The judge denied their motion.
¶21 Dennis Johnson testified that the value of the restaurant had been diminished because its view corridor to
¶22 Key Development, Jack Johnson, and the Homeowners Association retained certified appraiser Scot Auble shortly before trial and then moved for a continuance to develop their case on damages. The court denied the motion. Mr. Auble criticized Dennis Johnson’s methodology as invalid and in violation of the Uniform Standards of Professional Appraisal Practice.
¶23 Trial Court Holding — Damages. The court accepted Dennis Johnson’s conclusions and awarded the Kenagys a judgment of $245,000 jointly and severally against Jack Johnson, Key Development, and the Homeowners Association.
¶24 Attorney Fees. The court concluded that the attorney fees and costs provisions of the easement and right-of-way agreements were expansive enough to include all parties to the case, including the Kenagys as third party beneficiaries. The court also concluded that the central issue in the dispute was the nature and extent of the view protected by the easement and right-of-way agreements and the damages that followed the breach of those agreements. The court entered findings of fact and conclusions of law awarding the Kenagys attorney fees of $243,000 and costs of $35,000 jointly and severally against Key Development, Jack Johnson, and the
¶25 Jack Johnson, Key Development, and the Homeowners Association all appeal the liability determination, the damages, and the attorney fees and costs award. The Taylors also appeal the court’s denial of their attorney fees award against the Kenagys.
I
LIABILITY
¶26 Issue One. Did the trial court err in concluding that the agreements were mutually negotiated?
¶27 Key Development, Jack Johnson, and the Homeowners Association first contend that the trial court erred when it concluded that the easement and right-of-way agreements were mutually negotiated. They urge that Ahlquist’s counsel drafted both agreements and therefore any inconsistencies or ambiguities must be construed against the Kenagys.
¶28 Mr. Milne (Fairway Resources) approached Ahlquist first to secure an easement across Ahlquist’s property. Mr. Johnson drafted and presented Ahlquist with an easement agreement that Mr. Johnson had signed in early May 1994. Ahlquist refused to sign. Ahlquist then directed their attorney to insert language that would protect the view for the upstairs restaurant and downstairs lounge. Their attorney did so.
¶30 Appellants Key Development, Jack Johnson, and the Homeowners Association challenge several of the court’s findings of fact to the effect that the agreements were mutually negotiated (I FF 1.24, 1.27, 1.38, and 1.39). First, the findings are easily supported by this record. And other unchallenged findings and evidence show that each party had the opportunity to negotiate the documents and make changes to material terms (particularly that language that assured preservation of the view) before signing the final documents. The court’s conclusion that the agreements were the result of mutual negotiation is supported by the findings. And the necessary findings are supported by the record.
¶31 Issue Two. Did the court err when it concluded that there was a breach of the agreements to protect the view from the lower level lounge of the restaurant building?
¶32 Key Development, Jack Johnson, and the Homeowners Association next assign error to the trial court’s conclusion that Key Development impeded the traditional view from the restaurant. They note that neither Ahlquist nor their attorney specified or quantified the exact view to be protected. And this, they argue, is particularly troublesome because the parties knew that the orchard would be leveled and homes would be built. They challenge the trial court’s conclusion that the agreements contemplated the same view both pre- and postdevelopment as both unreasonable and impractical.
¶34 For Ahlquist, including the lounge view protection was an essential term of any agreement — a “deal breaker.” RP at 135. Mr. Johnson tried to avoid protecting the view from the lounge. But the right-of-way agreement ultimately includes language that does protect the view from the lounge. It also required Key Development to “establish! ] a Homeowners Association which shall be responsible for all obligations owed to the Owners [Ahlquist] as set forth herein.” Ex. 3, at 1-2; CP at 643 (I FF 1.43).
¶35 Mr. Johnson incorporated the Homeowners Association. He then directed Mr. Walcker to draft restrictive covenants. Mr. Walcker prepared the covenants that limited all buildings in the subdivision to a single story, 16-foot height. The covenants were recorded in September 1996. Mr. Gottschalk, however, set higher maximum roof elevations (up to 26 feet “from elevation point” from median curb elevation). This is reflected in exhibit A to the covenants — a document drafted by Mr. Gottschalk. CP at 645 (I FF 1.56); RP at 632. The 16-foot height restriction satisfied the limitations set out in the easement and right-of-way agreements; the heights permitted by exhibit A do not.
¶36 The agreements’ description of exactly what views were to be protected is not a model of clarity. But the conduct of the parties following the agreements is consistent with an intent to limit building heights in the Key Bay development to 16 feet so as not to interfere with any view
¶37 Appellants Key Development, Jack Johnson, and the Homeowners Association point to testimony by Mr. Ahlquist that he saw no construction in the Key Bay development that he would have considered a breach of the agreements. But Mr. Ahlquist by his own admission was “never down there to notice it” because he met with Mr. Kenagy in an office that had no windows. RP at 167. These appellants also point to Jack Johnson’s testimony that before the 1994 easement agreement, Ahlquist saw proposed building elevations for the Key Bay development in two documents (exhibits 51 and 52) that were essentially the same as exhibit A to the covenants, and Ahlquist voiced no objection. But Mr. Ahlquist explained he was relying on Mr. Johnson’s word that the height restrictions shown would not affect the view from the lounge. Mr. Ahlquist’s intent all along was that the downstairs view be protected and he believed that is what Mr. Johnson and Key Development promised to do. He considered “maintaining the views” to be “gospel.” RP at 171. Exhibits 51 and 52 set out elevations expressed in terms above sea level. They would have permitted buildings in the development that would have interfered with views from the lounge. RP at 171. But no one suggested incorporating those exhibits into the agreements.
¶38 Appellants Key Development, Jack Johnson, and the Homeowners Association also rely on their own actions after the 1996 covenants were recorded to show the agreements lacked ascertainable view protection standards consistent with a 16-foot height. Br. of Appellants (Key Development and Jack Johnson) at 12-13; Br. of Appellant (Homeowners Association and the Taylors) at 15. But, for us, these actions show a breach of the agreements, not confusion over the intent of these parties. Berg, 115 Wn.2d at 667-69; Stender, 82 Wn.2d at 254.
¶40 Exhibit A was not recorded, however, until September 19, 2000, when Mr. Johnson (still president of the Homeowners Association and head of its architectural control committee) again recorded the covenants. Mr. Johnson insisted that exhibit A was part of the covenants all along and that he never realized until 2000 that it had not been recorded in 1996. He blamed this on title company error. He also said he believed the Homeowners Association had complied with all of the terms of the agreements. But the court did not find him credible, and the record supports the court’s finding.
¶41 The question before us is whether the trial judge’s findings are supported by the evidence; not whether the trial judge could have made other findings suggested by Key Development, Jack Johnson, and the Homeowners Association. In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002). Ultimately, we agree with the trial court’s reading of the agreements. These parties intended to protect the view of the lake from both the restaurant and the lounge. The homes in Key Bay development that exceeded 16 feet interfered with that view. Berg, 115 Wn.2d at 667-69; Stender, 82 Wn.2d at 254.
¶42 Issue Three. Whether substantial evidence supports the court’s findings that the lake view from the lounge protected by the agreements (and 1996 covenants) was obstructed by the Taylors’ house.
¶43 In a related issue, Key Development, Jack Johnson, and the Homeowners Association argue that the court’s
¶44 Surveyor Norman Nelson’s opinion on the view corridor also supports the court’s finding that the Taylors’ house impedes the view. He obtained elevations of various structures, including the Taylors’ rooftop and the windowsill on the first floor of the restaurant building. He concluded that the Taylors’ roof impedes the lower floor view corridor and, in fact, even obstructs the view from the second floor.
¶45 In sum, both the photographs admitted at trial and the testimony support the court’s findings that the Taylors’ house interferes with a view of the lake from the downstairs lounge.
¶46 Issue Four. Were the covenants, memorialized in the easement and right-of-way agreements, extinguished by merger into either the recorded deed to the Kenagys or the right-of-way?
¶47 The Homeowners Association next argues that any covenant rights merged with the deed and cannot now be enforced by the Kenagys. Black v. Evergreen Land Developers, Inc., 75 Wn.2d 241, 450 P.2d 470 (1969). The court therefore erred in concluding that the Kenagys acquired any rights to the agreements, and in concluding that there
¶48 The general rule is that provisions of a real estate purchase and sale agreement merge into the deed. Id. at 248; Barber v. Peringer, 75 Wn. App. 248, 251-52, 877 P.2d 223 (1994). There are, however, exceptions. Collateral contract requirements not contained in or performed by execution and delivery of the deed and not inconsistent with the deed are independent obligations that do not merge. Barber, 75 Wn. App. at 251-52. Whether the terms of a purchase and sale agreement merge depends again on the intent of the parties: “where the intent of the parties is not clearly expressed in the deed, courts may consider parol evidence. In order to determine the intent of the parties, extrinsic evidence is admissible as to the entire circumstances under which a contract is made.” Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 742, 844 P.2d 1006 (1993) (footnote omitted); Failes v. Lichten, 109 Wn. App. 550, 554, 37 P.3d 301 (2001).
¶49 The Homeowners Association assigns error to the court’s I Conclusion of Law 2.12:
[T]he merger doctrine does not preclude this action since the deed from Smith and Ahlquist to Key Development was only for the roadway and not the land that should have been encumbered by covenants running with the land and it does not apply in [the] transaction between Smith and Ahlquist and Kenagy because Key Development and Johnson are not parties to that transaction.
CP at 653.
¶51 In any event, the Kenagys primarily rely on the oral covenant exception to merger discussed in Black:
We do not find that the oral covenant not to impair the view of the east channel is inconsistent with the deed; nor do we find that there was any intention on the part of either party to surrender this covenant by merger — the evidence is entirely to the contrary. Both the admissions and the actions of the defendants demonstrate that the oral covenant did in fact exist, was an inducement to enter the contract, and was foremost in the minds of all the parties subsequent to the execution of the deed of conveyance.
Black, 75 Wn.2d at 249.
¶52 The deed to the Kenagys says nothing about protecting the views of the lake. But the real estate purchase and sale agreement, quoted in the court’s I FF 1.8, provides that
[a]ll representations, warranties and covenants of Seller contained herein shall survive the Closing and shall inure to the benefit of Buyer and its legal representatives, heirs, successors or assigns.
CP at 638; Ex. 29, at 4. And exhibit A attached to the purchase and sale agreement, also quoted in I FF 1.8, provides that “[a] 11 rights of the sellers or running with the
¶53 Whether these agreements to preserve the view from the restaurant and lounge merged with the deed or instead survived is a mixed question of fact and law. It depends on the intent of the parties to the agreement. Failes, 109 Wn. App. at 554.
¶54 Ahlquist absolutely believed that the Kenagys would have the same lounge view protections that were set forth in the agreements. Mr. Kenagy knew of the agreements and that the building height restrictions were one of the conditions for purchasing the property. And Mr. Kenagy later attempted to enforce the height restrictions despite Jack Johnson’s assertions they benefited only Cosina del Lago and were null and void after the building was sold to the Kenagys.
¶55 This uncontroverted evidence establishes that the parties intended that the Kenagys’ right to the view would survive any merger of the real estate contract and deed. And this is reflected in the court’s I FF 1.8:
Exhibit A to the Purchase and Sale Agreement contains a provision that: “Other: All rights of the sellers or running with the land with respect to the Key Bay Development adjacent to the premises shall be included.” In addition, Paragraph 12.1(F) of the Purchase and Sale Agreement (Trial Exhibit 10) states: . . . All . . . covenants of Seller contained herein shall survive the Closing and shall inure to the benefit of Buyer and its legal representatives, heirs, successors, or assigns.
CP at 638 (emphasis omitted). This finding supports our legal conclusion that the covenants assuring preservation of a view from the restaurant and lounge survived the deed conveying the property to the Kenagys. Black, 75 Wn.2d at 249.
¶56 The Homeowners Association also asserts that the court should have found there was a merger when the right-of-way deed was recorded on April 22, 1996, because “there was no language relating to or reserving the so-
¶57 Issue Five. Are the Kenagys third party beneficiaries or otherwise entitled to the benefit of the covenants set out in the agreements, as successors to Ahlquist’s interests?
¶58 The Homeowners Association next challenges the trial court’s I Conclusion of Law 2.2 that Kenagys are third party beneficiaries to the agreements. The Homeowners Association argues first that nothing in these agreements expresses any intent that some third party benefit from the covenants guaranteeing a view of the lake. It argues that a third party beneficiary must be expressly identified by the contracting parties and that was not done here. And, second, it argues that the agreements do not show any intent to bind successors or to create covenants that would run with the land. Again, under these theories, the Kenagys could not prevail on the claim for tortious interference with a contract they cannot enforce.
¶59 Here is part of the court’s oral ruling on this:
The Court also concludes the agreements, themselves, the Right-of-Way Agreement and the Easement Agreement, are not covenants running with the land. Rather, Key Development breached its promise to provide those covenants running with the land, which the Kenagys and Deep Water [Brewing] were third-party beneficiaries of that contract.
RP (June 23, 2006) at 8.
Third Party Beneficiary
¶60 The creation of a third party beneficiary agreement requires that the parties intend, at the time they enter into the agreement, that the promisor assume a direct obligation to the beneficiary. Lonsdale v. Chesterfield, 99 Wn.2d 353, 361, 662 P.2d 385 (1983). “ Tf the terms of the contract necessarily require the promisor to confer a benefit upon a third person, then the contract, and hence the
¶61 There is, of course, no mention of benefiting the Kenagys or any other third party, for that matter, in either the easement or the right-of-way agreement. The Kenagys are not third party beneficiaries to these agreements. Indeed, we find no attempt to assign the benefits of these agreements to the Kenagys. Exhibit 11, which purports to assign the rights under the agreements to Deep Water Brewing, was never offered or admitted into evidence.
¶62 The Kenagys are not third party beneficiaries as defined in Lonsdale to either the easement or the right-of-way agreements. Lonsdale, 99 Wn.2d at 361.
Running Real Covenants
¶63 The question whether these agreements were to run with the land — running real covenants — is more difficult. The trial court’s theory appears to be that the 1996 recorded covenants, those that complied with the agreements, would be “running covenants” had Key Development and Jack Johnson not breached by recording noncomplying covenants (exhibit A) in 2000. This, according to the trial court, conferred the status of third party beneficiaries on the Kenagys, as Ahlquist’s successor. The parties argued in the trial court over whether these agreements created running covenants that were enforceable by the Kenagys. CP at 862-69, 891-93, 957-65. The gist of the Kenagys’ argument was that there is no reason why they should not have the enforcement status of third party beneficiaries since the running covenant intent was present. CP at 965.
¶64 We nevertheless can and will decide the case on any legal theory established by the pleadings and supported by the proof, regardless of the theory applied below. Barber, 75 Wn. App. at 254. Whether the evidence and findings here support the elements necessary to establish a running real covenant is a question of law that we will decide de novo. See, e.g., Stokes v. Rummer, 85 Wn. App. 682, 689-90, 936 P.2d 4 (1997).
¶65 The elements of a running real covenant are
(1) the covenants must have been enforceable between the original parties, such enforceability being a question of contract law except insofar as the covenant must satisfy 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.
Leighton v. Leonard, 22 Wn. App. 136, 139, 589 P.2d 279 (1978) (footnote omitted) (citing William B. Stoebuck, Running Covenants: An Analytical Primer, 52 Wash. L. Rev. 861 (1977)).
¶66 Professor Stoebuck explains in Washington Practice: Real Estate: Property Law:
Enforcement between the original parties is a matter of the law of contract.... But the doctrine with which we are concerned here is the doctrine, generally regarded as part of the law of real property, under which the covenant by the original parties may be enforced by or against persons who succeed to interests they held in the burdened or benefited land. The doctrine of “running” is analogous to the contract doctrines of assignment of rights and delegation of duties; it is a doctrine whereby remote parties are bound or benefited by contractual covenants made by the original parties. <