Deep Water Brewing, LLC v. Fairway Resources Limited
Washington Court of Appeals
215 P.3d 990 (2009)
Before selling their lakefront restaurant to the Kenagys (plaintiffs), the sellers executed an easement and right-of-way agreement with developers (defendants) restricting new home heights so as not to obscure the restaurant's lake view and requiring a homeowners association (defendant) to protect that interest; Johnson, the HOA's self-appointed president, failed to disclose the height restriction to subsequent builders and approved homes that obscured the protected view, including one built by the Taylors (found to be bona fide purchasers without notice and not liable). The trial court found the defendants breached the agreement and imposed damages; the non-Taylor defendants appealed.
Whether, in Washington, a covenant runs with the land if (1) it is enforceable between the original parties, (2) it "touches" and "concerns" the land, (3) it binds successors in interest, (4) there is privity between the original parties to the covenant and present disputants, and (5) there is privity between the original parties.