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

[David Faber]

Thank you, Eric. I always appreciate your thoughtful replies to my
questions!

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

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On Thu, Oct 23, 2025 at 1:59 PM Eric Nelsen <eric at sayrelawoffices.com>
wrote:

> 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
>
>
>
> *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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