## Facts

- Neighboring waterfront owners in Seattle negotiated during a proposed short-plat subdivision.
- The Bergs opposed the short plat before the City and agreed to withdraw their opposition in exchange for an easement benefiting their property across the Cahills’ parcel.
- The parties executed a written agreement and easement grant in March 1984; due to changes in the plat configuration, they executed a new written agreement and a new grant of easement on June 8, 1984.
- The June 8, 1984 grant was recorded on June 18, 1984, and described the easement as running over “Tracts A and B,” which were not yet legally defined and were expected to be fixed by the later-recorded short plat.
- The City approved the short plat on May 2, 1988, but the final configuration differed substantially from what the easement grant contemplated, such that the grant’s description did not match the eventual plat layout.
- In October 1988, the Cahills sold their property to the Tings; the Tings’ deed did not reference the Bergs’ claimed easement, and the Tings refused to recognize it.
- The Bergs sued in March 1990 to quiet title to the claimed easement.

## Issues

1. Whether the recorded written grant contained a sufficiently definite property description to satisfy Washington’s statute of frauds for an easement.
2. If the writing was insufficient, whether part performance (the Bergs’ withdrawal of opposition to the short plat) could render the easement enforceable despite noncompliance with the statute of frauds.

## Decision

- The Washington Supreme Court reversed the Court of Appeals and reinstated summary judgment for the Tings.
- The Court held the easement grant failed the statute of frauds because its description (referencing undefined “Tracts A and B” and a future plat) did not permit location of the easement with reasonable certainty.
- The Court held part performance could not be used to enforce an easement where the defect was a fatally inadequate land description required by the statute of frauds.
- The claimed easement was declared void and unenforceable against the Tings.

## Legal Principles

- A conveyance of an easement must be evidenced by a writing that contains a legal description or otherwise describes the burdened land with sufficient certainty to allow the location to be determined with permissible extrinsic evidence.
- A description dependent on future, not-yet-defined tracts or a later, reconfigured plat may fail the statute of frauds if it cannot reliably fix the easement’s location.
- Part performance is limited to acts unequivocally referable to the alleged agreement and cannot supply or cure a missing or fatally defective land description where the statute of frauds requires certainty.
- An easement void under the statute of frauds is unenforceable, including against a subsequent purchaser whose deed does not recognize the claimed servitude.

## Conclusion

Because the written easement grant did not describe the easement location with reasonable certainty and part performance could not cure that statutory defect, the easement was void, and the neighboring purchasers took the property unburdened by the claimed easement.


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