Court of Appeals, Div. II: The Dead Hand picks the wrong plaintiff
Lakewood Racquet Club Inc., v. Jensen In Lakewood Racquet Club Inc., the court of appeals denies standing to sue for heirs of a long deceased landowner. This patriarch, a Mr. Orr, entered into real estate agreements with the Racquet Club back in the 60s, selling them part of his land while obtaining a restrictive covenant preventing the Club from building any residential units on the property.
When the Club decided to build condos and townhomes on its property, the diasporated children of the Patriarch sued to enforce the covenants. Each was removed from the land in some way. One child lived in Nevada, another in Pierce County, and one with no identifiable location in the record.
Interestingly, this case presented a question of first impression in Washington. To wit, whether covenantees later removed from the land maintained their right to enforce the covenant. From that question, the ultimate question of the case can be answered: whether the covenantees suffered and "injury in fact" by the breach of the covenant. The first question turns on whether the benefit is appurtenant or in gross. The court held that the benefit was specific to the neighboring parcels to the Club; it is appurtenant to those parcels. As such, only those with an ownership interest in those parcels would have a justiciable claim to enforce the covenant. Those without will lack standing to sue for a declaratory judgment.
The court was careful to state that its holding did not foreclose all divested covenantees' enforcement actions, but the implication is that in most cases they will lack standing.