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Feider v. Feider
Citations: 699 P.2d 801; 40 Wash. App. 589Docket: 5986-3-III
Court: Court of Appeals of Washington; May 9, 1985; Washington; State Appellate Court
The Washington Court of Appeals ruled that a preemptive right agreement between adjoining landowners Francis A. Feider and Andrew S. Feider was not enforceable by Andrew's heirs. The agreement, executed in 1951, stated that if Francis chose to sell his land, he would first offer it to Andrew. Despite this, Francis sold the property in 1980 without notifying Andrew's children, who subsequently sought specific performance or damages for breach of the agreement. Francis argued the agreement was intended as a personal commitment and raised defenses claiming it constituted an unlawful restraint on alienation and violated the rule against perpetuities. The heirs claimed they would have purchased the property under the same terms as the actual buyers, the Hechts. Francis countered with affidavits stating he was unaware of the agreement's implications and that it was not included in title reports prior to the sale. The agreement was recorded by Andrew's heir three months after Francis's sale. The court ultimately concluded that the agreement was not enforceable as a covenant running with the land, thus siding with Francis. The trial court determined that the agreement in question did not meet the criteria for real covenants and was classified as a personal contract. Relying on the precedent set in Robroy Land Co. v. Prather, the court ruled that the agreement was effective for a reasonable time, which it found to be a maximum of 29 years, leading to summary judgment in favor of Francis and dismissal of the case. The court noted that a right of first refusal does not constitute an interest in land and is not a restraint on alienation, presuming it to be effective only for a reasonable duration if no specific term is stated. Andrew's children contended that a reasonable time should exceed 29 years due to the infrequency of farmland sales in Garfield County, but the court found no supporting evidence in the record. The contract had remained unrecorded and unmentioned in estate inventories for 29 years, only being asserted after Francis sold the property. The court also concluded that the agreement was not a running covenant, which requires several conditions: enforceability between original parties, a 'touch and concern' relationship with both lands, intent to bind successors, and both vertical and horizontal privity of estate. The court found a lack of horizontal privity because the right of first refusal did not transfer with land ownership or relate to shared property interests. Although Andrew's children claimed common interests due to an easement, the agreement did not pertain to it. Furthermore, the court stated the agreement did not 'touch and concern' the land, as it did not alter the value of either party's property. Therefore, the right of first refusal was deemed insufficient as a covenant. The ruling was affirmed, with MUNSON and THOMPSON, JJ. concurring.