[WSBARP] CC&Rs - No dominant estate and no legal description?

[David Faber]

List,

(C)lient purchased a parcel of real property with a document titled
"Declaration of Protective Covenants, Conditions and Restrictions"
specifically requiring all buildings to be "stick built" (it literally uses
that language, with the quotation marks). C is now seeking to build on the
property and is getting sticker shock, so wants to explore options,
including the possibility of putting a manufactured home on the property.

I see two likely defects with the CC&Rs and I want to test my read against
this list's knowledge:

(1) The CC&Rs were established by the owner of the property against their
own property prior to the sale to C and not as a condition of sale. Nowhere
in the CC&Rs is there any dominant estate retaining control or enforcement
rights. It's just a declaration from the owner of their own property that
the restriction is being established. When the prior owner sold the
property to C, it seems the prior owner sold all enforcement rights as
well. In other words, isn't this a merger issue that eliminates the CC&Rs
for all intents and purposes?

(2) The CC&Rs do not contain a complete legal description. It has the
address, tax parcel number, and abbreviated legal description, but doesn't
an instrument binding real property require the actual full legal
description of the property to be effective?

Furthermore, C's neighbor had a version of the same CC&Rs recorded against
their title by the same prior owner prior to her sale to the neighbor. The
neighbor already put a manufactured home on the property without issue,
which suggests an estoppel issue if anyone tried to enforce against C. The
only complication with this argument is that the CC&Rs are only three years
old, so the statute of limitations has not run.

I'd love to hear any thoughts this list has on my analysis.

Thank you!

Best,
David J. Faber
Faber Feinson PLLC
800 Polk Street, Suite B
Port Townsend, WA 98368
(360) 379-4110

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