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The Supreme Court of Washington ruled that a covenant that promises not to sue for damages to the land, touches and concerns the land.
A covenant to not sue for damages which seek to compensate any harm caused by the property can be deemed to run with the land so long as it meets all of the requirements of a covenant.
A developer sought permission to develop condominiums in the city of Seattle. Concerned with the land beneath the development site, the city required the developer to enter into a covenant with the city promising that the developer will not sue the city if damages accrue resulting from soil movement. After development, the soil changed in such a way that the condos were deemed uninhabitable. The Condominium association filed suit against the city for negligence claiming the city should have never given a permit to develop on that parcel of land. The condominium association was aware of the covenant and they do not challenge that it was improperly recorded but, instead, they challenge the enforceability of the covenant claiming the covenant does not touch and concern the land. Trial Court granted summary judgment in favor of the city of Seattle. The Court of Appeals upheld the Trial Court’s decision however, the appellate court ruled against the city of Seattle for a separate negligence claim stemming from improper storm drain maintenance. The City of Seattle Appeals.
Can a covenant that prevents bringing suit for damages to land be considered to touch and concern the land?
Yes. A covenant touches and concerns the land when the covenant affects the occupation or enjoyment of the land. The covenant focusses on damages which stem from the land itself, specifically the soil. Therefore, the covenant touches and concerns the land. There is no issue with the other elements of a covenant therefore the covenant runs with the land.
The Court determines that the covenant touches and concerns the land because the covenant focusses on limiting the city of Seattle’s liability for any damages stemming from the future problems that may arise from the soil.