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

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analyzing whether the optionee fulfills element two of the test, an inequitable forfeiture

resulting if equity does not intervene. Nevertheless, inequity may result regardless of

whether the optionee improves the real property. Also, if my predecessors on this court

deemed an improvement as a necessary factor, the prior decisions could have and should

have expressly placed the element in the list of factors. If earlier courts deemed valuable

improvements to be a qualifier outside the five element factors, the courts would not have

discussed improvements within the context of element two.

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

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

No Washington court has specifically held that substantial permanent

improvements to the property is essential to a grace period. Instead Washington courts

observe that all five circumstances need not be present in every case in which an

equitable grace period is granted. Cornish College of the Arts v. 1000 Virginia Ltd.

Partnership, 158 Wn. App. at 218. Therefore, element two, which sometimes includes

substantial improvements, cannot be an indispensable circumstance.

Applying a rigid rule that precludes a grace period under one particular

circumstance is anathema to equity. To repeat, whether a grace period is warranted

depends on the equities in each particular case. Moeller v. Good Hope Farms, Inc., 35

Wn.2d at 783 (1950). Whether or not an equitable grace period is appropriate depends on

the facts and circumstances of a case and is largely within the discretion of the trial court.

Pardee v. Jolly, 163 Wn.2d at 575 (2008). An inflexible approach would be inconsistent