Wash. Court of Appeals published opinion — 361896_pub.pdf

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Wash. Court of Appeals published opinion — 361896_pub.pdf
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Washington (state)
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https://www.courts.wa.gov/opinions/pdf/361896_pub.pdf ↗

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. . . Termination and forfeiture of the lease shall not result if within
thirty days of the receipt of such notice, Lessee has corrected the default or
breach, or has taken action reasonably likely to affect such correction within
a reasonable time. If any rent shall be due and unpaid, or if default shall be
made in any of the covenants here contained, or should the Lessee fail to pay
any of the obligations herein mentioned, the Lessor or his attorneys shall
give the Lessee proper written notices, commence with lawful eviction, and
have all persons and property removed therefrom as provided in the
Landlord-Tenant Act (RCW 59.18).

5
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 36189-6-III
Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)

CP at 14.

SECTION THIRTEEN TIME OF THE ESSENCE

It is specifically declared and agreed that time is of the essence of
this lease agreement.

CP at 15.

This appeal raises important policy questions about parties’ freedom to contract

and the court’s role in upholding contract provisions or modifying contract terms to serve

fairness. On the one hand looms equity’s abhorrence of a forfeiture. Wharf Restaurant,

Inc. v. Port of Seattle, 24 Wn. App. 601, 611, 605 P.2d 334 (1979). Courts wish not to

forfeit one’s rights when one inadvertently makes a mistake and a forfeiture would cause

one hardship and no harm to the other contracting party. Bekins Moving & Storage Co. v.

Prudential Insurance Co., 176 Cal. App. 3d 245, 251-52, 221 Cal. Rptr. 738 (1985). If

there is no harm, why call a foul?

On the other hand, the law favors definiteness of contracts. United Properties Co.

v. Walgreen Properties, Inc., 2003-NMCA-140, 134 N.M. 725, 82 P.3d 535, 538-39. A