## Facts

- The Lakes at Mercer Island is a residential subdivision governed by recorded covenants, conditions, and restrictions (CCRs) enforced by a homeowners’ association.
- After a neighboring lot owner began constructing a home, Bonnie Witrak planted a continuous row of tall “pyramidalis” trees along or near the shared lot line to screen her property; the trees grew well above six feet.
- The CCRs included a “landscaping and fencing” provision requiring Architectural Control Committee (ACC) approval for “fences, walls, or shrubs delineating lot lines” and limiting fence height to six feet.
- At the time of planting, Witrak did not seek ACC approval for the trees; she later obtained ACC approval for a six-foot wooden fence on the same boundary.
- Witrak later sought ACC approval for a home addition, which the ACC denied and reaffirmed after reconsideration.
- The association alleged the trees functioned as a boundary barrier exceeding the CCR height limit for lot-line delineations and sought an order requiring removal or modification.
- The trial court granted summary judgment for Witrak, ruling the trees were not a “wall or fence” under the CCRs.

## Issues

1. How should restrictive covenants in a planned community be interpreted—by strict literal construction favoring free use of land, or by the parties’ intent and the subdivision’s common plan?
2. Can a deliberately planted, continuous row of trees along a property line constitute a “fence” under a covenant regulating lot-line “fences, walls, or shrubs” and imposing a six-foot height limit?
3. Was summary judgment proper where the covenant’s application depended on how the vegetation functioned in context?

## Decision

- The Court of Appeals reversed the grant of summary judgment for Witrak and remanded.
- The court held that, under the CCRs, a row of trees planted along a property line may constitute a “fence” for purposes of regulating lot-line barriers.
- The court concluded that factual and application questions remained regarding whether the trees operated as a fence within the meaning and purpose of the CCRs, making summary judgment inappropriate.

## Legal Principles

- Restrictive covenants are construed to effectuate the intent of the parties and the objectives of the common plan reflected in the CCRs.
- Covenants should not be interpreted in a manner that defeats the plain and obvious meaning and purpose of the restriction.
- In planned communities, interpretation should account for the property owners’ collective interests rather than defaulting to a narrow reading that enables evasion of the scheme.
- Contract language is interpreted in context, considering the agreement’s subject matter and objective, surrounding circumstances, subsequent conduct, and the reasonableness of competing interpretations.
- For a covenant regulating fences that delineate lot lines, a continuous row of trees planted and maintained as a boundary barrier may be treated as a “fence.”

## Conclusion

The appellate court ruled that vegetation can fall within fence restrictions when it functions as a lot-line barrier, and it required the trial court on remand to apply the CCRs in light of their purpose and context rather than excluding trees from the term “fence” as a matter of law.


Lakes at Mercer Island Homeowners' Ass'n v. Witrak, 61 Wn. App. 177, 810 P.2d 27 (Wash. Ct. App. 1991)