Court: Washington Supreme Court; October 7, 1965; Washington; State Supreme Court
On April 17, 1940, a plat for Sunset Addition No. 6 in Olympia was filed, but no building restrictions were included. As residential lots were sold, restrictive covenants were incorporated into the deeds, notably a requirement that houses and garages be set back a minimum of 30 feet from street lines. In 1945, Lots 11 and 12 in Block 5 were deeded to Howard C. Moon, including the aforementioned restrictions. In 1958, Moon sold the lots to Robert H. Keller under a contract that acknowledged existing easements and restrictions, although the deed itself did not contain these covenants. The Kellers received a title insurance policy that referenced the 12 restrictive covenants.
Keller began constructing a residence on Lot 11, a corner lot, in December 1961. By January 5, 1962, it was clear that the construction would not comply with the 30-foot setback requirement. Property owner F. Whitmore Reading contacted Keller regarding the violation and warned of potential legal action. Despite this, Keller continued construction and had incurred $1,500 in costs by that point. On January 26, 1962, other property owners formally protested the violation.
On February 15, 1962, Reading and his wife initiated legal action to enjoin Keller's construction. By this time, Keller had spent $6,000 of the estimated $12,000 total construction cost. The court issued a temporary injunction against further construction on the same day, which was later dissolved on March 5, 1962, although the Kellers were warned that any further expenditures would be at their own risk and would not influence the court's ultimate decision. When the case was tried, Keller had completed the residence.
Findings of fact and conclusions of law were made in favor of the plaintiffs, resulting in a judgment that granted a permanent injunction against the defendants. The injunction prohibits the defendants, along with their marital community and any grantees, from constructing or maintaining any structure closer than thirty feet to the street line on Lot 11, Block 5, Sunset Addition No. 6. The defendants are given 120 days from the entry of the injunction to comply. The defendants have appealed, asserting minimal factual controversy and that their appeal is based on equitable principles. The trial court determined that the defendants built their residence in violation of a restrictive covenant, despite their knowledge of it.
The plaintiffs purchased a residence on Lot 9, Block 1, which had also been built in violation of the covenants. The defendants argue that one who violates a building restriction cannot enforce it against others. The court found the plaintiffs' violation to be minor and not destructive to the overall building scheme, thus granting them relief. The defendants further claim inconsistent enforcement of covenant No. 2, particularly on Blass Street, arguing that such inconsistency constitutes a waiver of the covenant. The court referenced past rulings on the right of landowners to enforce covenants even when they are not parties, provided a general building scheme exists. However, if the scheme has not been uniformly applied or has been substantially violated, equity may not enforce the covenants. The trial judge, after inspecting alleged violations, concluded that only one additional violation, associated with the VanMeter house, was established.
The court determined that there was only one violation of the restrictive covenant concerning the ninety-one lots in Sunset Addition No. 6 since its platting on April 17, 1940, leading to the conclusion that the appellants did not present a sufficient defense as established in the precedent case of Mt. Baker Park Club v. Colcock. The court found that the argument of waiver regarding the enforcement of the covenant was without merit. The appellants also claimed that the respondents were guilty of laches for not acting quickly enough to prevent financial loss; however, the trial court ruled that the respondents had not engaged in laches. This was supported by the inclusion of the restrictive covenants in the appellants' title insurance, timely notification of the violation by the respondents, and a court warning to the appellants about the risks of further construction after the temporary restraining order was lifted. A six-week delay in commencing action was justified as it was an effort to settle the dispute, which does not invoke laches. The judgment was affirmed, granting the appellants 120 days from the remittitur filing to comply with the judgment. The decision was supported by Chief Justice Rosellini and Justices Hill, Hale, and Langenbach, J. Pro Tem. The petition for rehearing was denied.
