Property II, Pages 586–587

Bremmeyer Excavating, Inc. v. McKenna

Court of Appeals of Washington, July 7, 1986

Facts:

Plaintiff entered a contract with Parks which provided that plaintiff would exclusively haul all material onto and off of the property and install all water and sewer utilities on the property for the lowest competitive price from a responsible contractor.

Parks then sold the property to defendants who filled the property without plaintiff. Plaintiff filed suit suit, alleging breach of contract.

Procedural History:

Trial court dismissed the complaint.

Issue:

Did the covenant run with the land?

Rule:

For a covenant to run with the land:

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  1. [T]he 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.

Reasoning:

This covenant does not "touch and concern" the lands, and there is no horizontal privity. Horizontal privity would require evidence that the contract was made by the original parties in conjunction with an estate "in conjunction with an estate in land or that the fill contract relates to coexisting or common property interests."

Holding:

The covenant did not run with the land. Affirmed.

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