Dennison v. Rubatino, 2003 WL 22996113 (Wash.App. Div. 1) (unpublished).
From the February, 2004 issue of The Title Insurance Law Newsletter
Even though a building height restriction on shorefront lots was to the advantage of back lots in the subdivision, it could not be enforced by the rear owners because it was adopted after all of those lots were sold.
McKee's Addition is a 65 lot subdivision on the shore of Puget Sound. There are three rows of lots. All but the four shoreline lots were sold by William and Frances McKee in 1953. There were no deed restrictions created at that time. The four waterfront lots were sold in 1962 and 1963, each deed containing a restriction limiting building height to one story.
In 1998, Rochelle Rubatino, one of the waterfront lot owners, pulled a permit to add a second floor to her house. She was sued by the owners of four lots, all in the second and third rows of lots sold without any restrictions. The back lot owners acknowledged that there were no restrictions in their chains of title and that the 1962 restrictions did not name their lots as benefitted parcels. However, they claimed the right to enforce the restrictions because they represented a general plan of restriction for the subdivision.
The court rejected the theory, because it was not general enough and was imposed too late in the day:
The height restriction imposed on only four lots sold in 1962 63, ten years after the sale of the majority of the property in the subdivision, cannot be characterized as a common plan or scheme of development. The upland owners cannot establish the existence of a common plan or scheme of development for the four waterfront lots which allows them to enforce the height restriction.
The court also refused to adopt the position of the new Restatement (Third) of Property: Servitudes sec.2.6 (2000), that a party seeking enforcement who is not a party, or a successor, to the covenant may be a third party beneficiary.
