[WSBARP] Enforceability of Development Covenant/Options?

[samuel at meylerlegal.com]

Listmates,

 

Developer begins the process of subdividing their property in 2006.
Property is located in Everett.  Developer submits a short plat application
with plans prepared by XYZ Company.  While the short plat application is
pending, Developer sells a portion of their parcel that would have been one
of the lots created once the short plat was approved.  That buyer executes a
development covenant at closing, acknowledging/agreeing that:

*	The property is being subdivided, "into 4 separate lots as per the
attached proposed subdivision prepared by XYZ Company dated 10-13-06
("Subdivision")", (Note that although the proposed subdivision is referenced
as being attached, it was not attached to the recorded version of the
development covenant).
*	"It will take several months for the proposed Subdivision to be
approved and recorded," 
*	That Buyer agrees to cooperate and assist with any efforts of
Developer to make and process its application with the City of Everett for
the development of the Subdivision,
*	Buyer will not take an action that would impair, restrict or
prohibit Developer's ability to complete the subdivision.
*	The development covenant binds Buyer, their successors and assigns.
*	That no delay in exercising the rights under the development
covenant shall operate as a waiver.

 

There is more to it, but these are the relevant terms.  The Snohomish County
Assessor acknowledged the sale and division of the land for tax assessment
purposes and created two separate tax accounts for the property sold to
Buyer and the property retained by Developer.

 

The market tanked in 2007-2008.  Developer did not follow through with the
short plat and the application with the City of Everett expired.  Original
buyer sold their property to current Neighbor.  

 

PC purchased the land retained by the original Developer, believing that
they had development rights.  PC obtained a new set of plans that comply
with the current Everett code and began working toward subdividing the
property.  PC's new plans differ from the "attached proposed subdivision
prepared by XYZ Company dated 10-13-06 ("Subdivision")" that is referenced
in the development covenant (which was not actually attached to the recorded
document).

 

Neighbor now takes the position that the development covenant is
unenforceable because the subdivision application expired, because the
referenced plans were not attached, etc..  Neighbor seeks to invalidate the
development covenant.  PC is unable to proceed with subdividing and
developing his land without some involvement from Neighbor because the
subdivision with the City necessarily involves Neighbor's property.
Neighbor is now making outrageous demands of PC that Neighbor requires PC to
agree to in order to gain Neighbor's cooperation. 

 

Any thoughts on the enforceability of the development covenant?  What
options does PC have to cause the subdivision of their property and
Neighbor's property?  

 

TIA for your thoughts.

 

Sam

 

Samuel M. Meyler

Meyler Legal, PLLC 

1700 Westlake Ave. N., Ste. 200

Seattle, Washington 98109

Tel:  206.876.7770

Fax:  206.876.7771

Email:   <mailto:samuel at meylerlegal.com> samuel at meylerlegal.com

  

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