Douglas N. Owens P.S.

Attorney At Law -  Your Legal Resource
 1610 Commercial Ave., Suite 207
Anacortes, WA 98221

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            In land use matters, the conventional wisdom is that it is difficult to “fight city hall’ in the sense that the costs of the fight can overwhelm the benefits, and market conditions can change dramatically due to the passage of time during the contest.  A recent Supreme Court case showed that sometimes the fight is worth pursuing despite these obstacles.
            Normally, land use decisions can be appealed under LUPA, the Land Use Petition Act.  Appeals under LUPA are limited to determining whether the local government’s decision was based on unlawful procedure, an erroneous interpretation of the law, was outside the agency’s power, was clearly erroneous based on the evidence or violated an appellant’s constitutional rights.  This recent case involved an appeal under LUPA and also a more unusual lawsuit for damages to the property owner that resulted from the two years that had been consumed in battling opponents in the administrative process including activists and officials of government agencies, and which delay had ended the business that would have used the permitted land.
            The case began with a company called Citifor which had manufactured munitions on property in Thurston County that was located on or near a significant prairie oak-wetland habitat, and which obtained from Thurston County a twenty year permit to engage in gravel mining on the site in 2005.  The permit was issued after negotiations with environmental opponents of the mine, one of which withdrew its opposition in exchange for concessions by Citifor as to the scope of mining and restoration activities after mining.  However before mining began Citifor sold the land with the permit to the Port of Tacoma for its use in building a freight transfer location.  The freight transfer location was never built and so the Port of Tacoma negotiated with a company called Maytown to sell the property and based on the assurance to Maytown by the Thurston County Department of Natural Resources that the permit was still valid, Maytown bought the property in 2009.
            Maytown’s problems after its purchase centered on four issues: an environmental opponent (not the one that had negotiated with Citifor) challenged the validity of the permit; because of the delay between the permit’s issuance and the expected commencement of mining certain water quality deadlines had already passed; there was a discrepancy between the type of water quality testing required by the permit and the groundwater monitoring plan; and the permit was due for a five year review by a Department hearing examiner.
            Maytown had proposed some amendments to the conditions in the permit to reflect changed circumstances but once the extent of the legal campaign against the mine became apparent, Maytown withdrew all of the proposed amendments except two that dealt with the timeliness of the water quality measurements.
            During the two year administrative review period, decisions were made by the Department and appealed to a hearing examiner and then to the Department’s Board of Commissioners, all within Thurston County local government, and all during a time when according to the Supreme Court, at least two of the County Commissioners had adopted a plan to try to torpedo the mine for political reasons.
            Accordingly, after the internal county appeals had been exhausted (at which one of the environmental groups that had negotiated and agreed with Citifor participated as a mine opponent) and then the LUPA appeals to Superior Court had also been exhausted, and Maytown and the the Port of Tacoma had largely been vindicated, the victory was a Pyhrric one because the mining market had changed and the business failed.  So the Port of Tacoma and Maytown sued the county for damages resulting from the intentional misuse of government processes to interfere with a valid permit for the use of land.
            The jury agreed with Maytown and awarded $13.1 million in damages against the county, and the county appealed to the Supreme Court.  Other than on the issue of whether the trial court could award Maytown damages for its attorney’s fees in the administrative process, the Supreme Court upheld the lower court.  This case should hearten property owners who face bureaucratic opponents over land use.
            The foregoing is not intended as legal advice and should be considered as educational only.

            Some investors these days look for opportunities to obtain residential properties in foreclosure sales, including trustee’s sales under the Deed of Trust Act.  The Deed of Trust Act specifies periods that must elapse between the notice of the sale and when the sale can legally take place.
            Sometimes the borrower who is in financial distress will file a petition in bankruptcy after the notice of trustee’s sale has been recorded but before the sale takes place.   This may be an attempt by the borrower to stave off the trustee’s sale or for other reasons.  The filing of the petition invokes the automatic stay provisions of bankruptcy law, making it illegal for the trustee’s sale to be held as long as the bankruptcy case is pending in the bankruptcy court.
Unless the petition is deemed meritorious by the bankruptcy court, it will be dismissed. This type of situation can present a quandary for the investor who attends and bids at the trustee’s auction after a petition in bankruptcy by the borrower has been dismissed.  A recent case in the Court of Appeals considered such a case in which the borrower filed a petition in bankruptcy the day before the scheduled trustee’s sale and after the petition was dismissed, the trustee’s sale which had been continued by the trustee, was rescheduled and went forward, resulting in the borrower’s loss of the home.
The borrower then sued the lender and the purchaser at the trustee’s sale and the trustee, arguing that the trustee was required to send out a new notice of trustee’s sale, giving forty-five days’ notice after the dismissal of the bankruptcy petition before the sale could legally go forward.  The borrower also contended that the continuance of the trustee’s sale by the trustee violated the bankruptcy stay, and for both of these reasons asked that the sale be set aside by the court.
The Court of Appeals analyzed the borrower’s first argument based on two different statutes. The first statute says that when a bankruptcy petition is filed by the borrower and then later dismissed the trustee can choose to issue a new notice of trustee’s sale and the date of the sale cannot be fewer than forty-five days from the date the bankruptcy petition is dismissed.  The second statute says that the first statute is permissive only and does not apply when a trustee’s sale has been properly continued for a period not exceeding one hundred twenty days.  Because the trustee in this case had properly continued the sale after the filing of the bankruptcy petition for about fifty-eight days, the court held that the trustee was not required by the Deed of Trust Act to record a new notice of trustee’s sale.  
The Court of Appeals considered the borrower’s second argument under a case decided by the federal appeals court for the Ninth Circuit.  That case said that the automatic stay in bankruptcy is not violated by any action of the lender that does not change the status quo or give the lender some advantage over the borrower or harass or interfere with the borrower.  The Ninth Circuit court held that a continuance by the lender of the date of the trustee’s sale by publishing a notice of postponement of the sale did not create any advantage in the lender or otherwise prejudice the borrower while the bankruptcy was pending and therefore such a postponement did not violate the automatic stay.
The Court of Appeals therefore concluded that the borrower’s second argument was without merit and affirmed the dismissal of the lawsuit.  The court rejected the borrower’s argument that the “permissive” statute described above did not apply since according to the borrower the trustee lacked power to continue the sale due to the bankruptcy stay and must necessarily issue a new notice.  
The teaching of this case is that while it is important to keep abreast of any bankruptcy filings by the borrower that affect a trustee’s sale of property in which an investor is interested, that due diligence includes reviewing how the trustee has reacted to the bankruptcy filing.
The foregoing is intended to be educational and should not be considered legal advice.


A concept that investors rarely discuss is the Statute of Frauds. What is the Statute of Frauds, and how could it affect my deal? The Statute of Frauds is legislation, and it comes from early English law. The statute was created in the seventeenth century, when real estate transactions were relatively infrequent and many people could not read or write. The purpose of the statute was "the Prevention of Frauds and Prejudices," and this meant that people should be required to have written proof of their intentions in real estate deals so that frauds on the unwary could be avoided.

In Washington, the Statute of Frauds applies to brokerage agreements and agreements for the transfer of interests in land. Such agreements must be signed, in writing and sufficient for the intentions of the parties to be understood. If a transaction does not meet this requirement it is void.

What can this mean for investors? We know that a purchase and sale agreement is the usual starting point in an investment deal. In a purchase and sale agreement there needs to be an agreed statement of what the parties are contracting to purchase and sell, namely the specific real estate involved.

What happens if the parties sign a purchase and sale agreement, and the prospective buyer pays a substantial earnest money deposit, but the parties never really agree at the outset on how much property the seller is selling and the buyer is buying? The result may surprise you. This happened in a recent case from Eastern Washington.

A seller hired a broker to list a large undeveloped parcel near Quincy for sale, but the seller wanted to retain a 3.93 acre portion of the property for his own use. The listing agreement described the property as "included in Farm Unit 182", and consisting of 30.12 acres. The total parcel was 43 acres. A developer made an offer to purchase the 30.12 acres and included a provision allowing him to purchase the 3.93 acre portion of the remaining area later if the seller decided to develop that property. That offer was not accepted, but after a period of time another offer by the same purchaser was accepted, again reciting the area to be purchased as 30.12 acres, but omitting any mention of the 3.93 acres and including a $50,000 earnest money on a purchase price of $1.65 million. The purchase and sale agreement was written with this second description of the sale.

Some conditions needed to be satisfied before closing could occur, and after about a year closing was scheduled. The purchaser went to the closing appointment and then refused to close because, among other things, he claimed that the 3.93 acres that had been omitted from the description of the sale should have been included. Both sides filed lawsuits against each other. The seller sought to have the sale completed and the purchaser sought rescission of the contract and refund of the earnest money.

The court decided that the contract did not satisfy the Statute of Frauds because of the ambiguity surrounding whether the missing 3.93 acres was or was not in the deal. One would think that if the court decided that the agreement was void for failure to meet the Statute of Frauds, then the purchaser should receive back the earnest money, right? Wrong. The court said that it was the purchaser's burden in order to receive back his $50,000 earnest money to prove that the seller was not "ready, willing and able" to proceed to closing of the agreement. The court further said in order to do that the buyer had to prove that the agreement legally included the 3.93 acres. The court recognized that the sides held opposing views of what the agreement actually included. Given that all parties recognized it was impossible for the party with the burden to meet it under the circumstances, practically the case means that the buyer is out his $50,000 earnest money.

The lesson of this case is that "buyer beware" of a real estate contract that does not adequately describe the real estate that is to be purchased and sold. This information is provided for education only and may not be construed as legal advice.


Douglas Owens Attorney Seattle

Douglas N. Owens

1971 Graduate of University of Michigan Law School, twelve years service as Assistant Attorney General, thirty-five years private practice