State of Washington Court of Appeals Division II, No. 38906-1-II, May 18, 2010
In an issue of first impression in Washington the court held an original covenantee lacks standing to enforce restrictive covenants against an original covenantor when the covenantee no longer owns property that the covenants benefit. Covenants in a 1962 deed from Orr to Lakewood Racquet Club (LRC) forbade subdividing, building residences, or using the land for any purpose besides a “tennis, swimming, and squash club” without the consent of Orr or his heirs. In 1976 Orr sold his remaining land to third parties. In 2007 Orr’s heirs refused to permit certain development of the LRC land. Court held Orr’s heirs lack standing to enforce the covenants because they sold the benefited property.
Orr’s heirs also argued that they should be permitted to enforce the covenant under section 8.1 of the Restatement (Third) of Property: Servitudes because, as holders of the benefits of the restrictive covenants in gross, they have a legitimate interest in enforcing the covenant regardless of whether they still own the benefited land. The court declined to address section 8.1 of the Restatement “because its application involves the rights of adjacent landowners who are not parties to this action.”
Decision available at http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=389061MAJ.