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

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with the trial court’s broad discretion to fashion equitable remedies. Cornish College of

the Arts v. 1000 Virginia Ltd. Partnership, 158 Wn. App. at 218. Thus, the court must

review all relevant circumstances, not simply whether the optionee improved the real

property. If one factor controlled, the law would hamstring the trial court’s discretion.

No case announces any reason behind adopting a rule necessitating an

improvement to the land for a grace period. Presumably, such a rule deems expenditures

as the only acceptable form of prejudice to the optionee, and the rule does not wish the

optionor to receive a windfall by gaining possession of the improvements. But the

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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)

opposite side of the prejudice coin is lack of prejudice to the optionor. No decision

explains why prejudice to the optionee is more important than lack of prejudice to the

optionor.

A contractual deadline for the exercise of the option allows the optionor to plan

and act based on a firm understanding of whether the optionee will buy the land.

Burbank Properties’ delay was so short that Borton changed no plans. Instead, Borton

wants the rigid application of a rule in order to gain a windfall. Since the common era,

grace has superseded the application of rigid rules.

Part performance, an equitable doctrine, includes three elements: (1) delivery and

assumption of actual and exclusive possession, (2) payment or tender of consideration,

and (3) the making of permanent, substantial and valuable improvements, referable to the

contract. Berg v. Ting, 125 Wn.2d 544, 556, 886 P.2d 564 (1995). Despite