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

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improvements constituting an element, equity does not deem improvements to be a

necessary element, if a party fulfills the other two elements. Berg v. Ting, 125 Wn.2d at

558 (involving consideration as the missing element). In the context of part performance,

equity also wishes the trial court to weigh the particular facts and circumstances of each

discrete case rather than apply a rigid, formulaic rules. Berg v. Ting, 125 Wn.2d at 557.

Now the facts. One might ponder if exercising the option was so important to

Burbank Properties, why Eric Rogers failed to plant in advance numerous prompts and

reminders to insure timely exercise of the option. An astute and cautious businessperson

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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)

would forgo other tasks, mail several notices by certified mail a week or more in

advance, and personally deliver the notice days before the option expired on December

31. But people make mistakes and equity sometimes aids the forgetful when the

forgetfulness does not harm another.

I agree with Borton that Burbank Properties installed no substantial improvements.

Still it planted a hay crop and would not benefit from the crop’s presence in 2019 if it

could not exercise the option. More importantly, Burbank Properties suffers other

inequities as a result of forfeiture of the option. Burbank Properties loses equity of

$75,000 in the land. It loses land it has farmed since 2000. At the same time, Borton

reaps a profit of at least $250,000 if Burbank Properties buys the land.

The other four factors weigh heavily in favor of Burbank Properties. Burbank