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

[Eric Nelsen]

A few thoughts.


  1.  If the CC&Rs cover multiple parcels, then I would argue that each parcel can enforce the CC&Rs against the other parcels. But if the CC&Rs cover literally only the one parcel, then I agree, unless the document expressly gives somebody enforcement rights, I think there’s a merger issue and they might be extinguished. BUT if the CC&Rs are mentioned in the conveyance deed, consider whether it could be construed to indicate that the seller reserved a personal right to enforce the CC&Rs. If they don’t live in the area any more maybe it’s moot, but if they live next door there might be an argument for that.
  2.  The abbreviated legal requires close analysis to determine if it actually does meet the full legal requirement, but it’s a possibility. I think these technical arguments can be hard to win, but if there are other arguments to go along with it, it could help.
  3.  If the neighbor’s property has a completely separate recorded CC&R document, I don’t think estoppel would apply; I think estoppel in this circumstance has to be among people burdened by the same instrument. On the other hand, maybe it’s an indication that the seller isn’t really paying attention and the CC&Rs could be ignored. I don’t think statute of limitations is relevant to estoppel analysis though; S/L would be a separate defense against enforcement in addition to estoppel.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of David Faber
Sent: Thursday, October 23, 2025 12:11 PM
To: wsbarp <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] CC&Rs - No dominant estate and no legal description?

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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