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

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and continue to rely on, Wharf. And Wharf was very clear in its reliance on Professor

Corbin’s hornbook that the only cases in which equity might relieve a party from its

negligent mistake was when “he had made valuable permanent improvements with

intention to give the notice.” 24 Wn. App. at 611 (quoting Corbin).

The leaseholder in Wharf had an agreement with Port of Seattle and had exercised

options to renew its prior lease agreements. Id. at 603. In 1977, after 25 years as

leaseholder, Wharf inadvertently failed to exercise its option and had to sue to regain its

lease after Port of Seattle found a new lessee. Id. at 604. After a trial, the court awarded

an equitable grace period and ordered specific performance of the option to renew. Id. at

604-05. The court found that Wharf had made permanent improvements to the property

“with the intention of exercising its option and remaining on the premises.” Id. at 612.

On appeal, Division One of this Court held that equitable relief period was proper under

the special circumstances. Id. at 609. It summarized those circumstances: (1) failure to

give notice was inadvertent, (2) an inequitable forfeiture would result, (3) the lessor had

not changed its position in reliance on the failure to timely exercise the option, (4) the

lease was long-term, having existed 25 years, and (5) there was no undue delay. Id. at

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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 Prop., LLC

612-13. There was evidence that the restaurant was making improvements at the very

time the option was supposed to be exercised. Id. at 612.

The cases following Wharf similarly have involved significant levels of permanent