## Facts

- A landowner, Gerald Parks, signed a written “fill contract” with Bremmeyer Excavating, Inc. giving Bremmeyer an exclusive five-year right to perform fill and certain utility work on the property, at the lowest competitive price from a responsible contractor.
- Parks later sold the property to John McKenna and John Pietromonaco; the deed did not expressly reference the fill contract.
- After purchase, McKenna and Pietromonaco performed fill and development work using other contractors.
- Bremmeyer sued, alleging the fill contract created a covenant running with the land that bound the successors.
- The trial court granted summary judgment for McKenna and Pietromonaco, ruling the contract did not run with the land.

## Issues

1. Whether a five-year exclusive services agreement to perform fill and utility work at the lowest competitive price creates a covenant running with the land enforceable against subsequent purchasers.
2. Whether summary judgment was proper because, as a matter of law, the agreement could not satisfy the requirements for a real covenant.

## Decision

- The Washington Court of Appeals affirmed summary judgment for McKenna and Pietromonaco.
- The court held the fill contract did not create a covenant running with the land and therefore did not bind subsequent purchasers.
- The court concluded the agreement failed the “touch and concern” requirement and lacked horizontal privity of estate between the original parties.

## Legal Principles

- A covenant runs with the land only if the traditional elements are met, including that the covenant touches and concerns the land, the parties intended it to bind successors, and required privity (including horizontal privity) exists.
- A promise that primarily controls who will perform work (an exclusive contractor arrangement) is generally a personal commercial obligation, not a covenant affecting the land’s use, value, or enjoyment.
- Horizontal privity requires the covenant to be created in connection with a conveyance or other shared or transferred property interest between the original covenanting parties; a standalone services contract does not satisfy this requirement.
- When the contract’s legal effect is determinable from the written agreement and undisputed property relationships, the running-of-the-land question may be resolved on summary judgment.

## Conclusion

The court treated the exclusive five-year fill-and-utilities arrangement as a personal contract right enforceable against the original owner, not as a real covenant binding later purchasers, because it did not touch and concern the land and was not formed with horizontal privity.


Bremmeyer Excavating, Inc. v. McKenna, 721 P.2d 567 (Wash. Ct. App. 1986)