Borton & Sons, Inc. v. Burbank Properties, LLC, 471 P.3d 871

Burbank sold 164 acres to Borton in 2016 and kept a three-year leaseback with a written option to repurchase; option notice had to be sent by registered or certified mail by Dec. 31, 2017 and "time is of the essence."
Burbank mailed its notice by regular mail on Jan. 4, 2018 (after the deadline); Borton received it Jan. 8 and treated the option as forfeited.
The trial court granted Burbank summary judgment, concluding an equitable grace period was warranted (citing potential loss of timothy hay and loss of equity) and awarded fees to Burbank.
The Court of Appeals (divided) reversed, holding equitable grace periods require substantial permanent improvements and that none existed here.
The Washington Supreme Court granted review, held the proper standard of review is de novo for whether equitable relief is legally available, ruled that an equitable grace period requires valuable permanent improvements that would be forfeited, affirmed the Court of Appeals, and awarded fees to Borton.

Issue	Burbank (plaintiff)	Borton (defendant)	Held
Standard of review for whether an equitable grace period was properly granted on summary judgment	Defer to trial court; abuse of discretion because equitable remedies are discretionary	De novo review because the threshold question—whether equitable relief is legally available—is a question of law	De novo review applies to whether equitable relief is appropriate as a matter of law
Whether valuable permanent improvements are required before granting an equitable grace period	Not required; loss of hay crop and loss of equity suffice	Required; inequitable forfeiture means loss of valuable permanent improvements	Required: a lessee must show valuable permanent improvements that would be forfeited
Whether the trial court properly granted Burbank an equitable grace period on these facts	Equitable grace period warranted because delay was inadvertent, lessor not prejudiced, and hay loss/equity loss would be unfair	No—Burbank made no valuable permanent improvements; forfeiture element not met	No: as a matter of law Burbank could not get a grace period because it made no valuable permanent improvements
Entitlement to attorney fees under the lease provision	Burbank sought fees (trial court awarded them)	Borton sought and obtained fees on appeal	Borton awarded reasonable attorney fees and costs as prevailing party under the lease and RAP 18.1(a)

Wharf Rest., Inc. v. Port of Seattle, 24 Wn. App. 601 (articulating the limited circumstances and five-factor test for equitable grace periods)
Pardee v. Jolly, 163 Wn.2d 558 (adopting Wharf framework and treating inequitable forfeiture from permanent improvements as central)
Recreational Equipment, Inc. v. World Wrapps Northwest, Inc., 165 Wn. App. 553 (applying Wharf where lessee made substantial improvements)
Cornish Coll. of Arts v. 1000 Va. Ltd. P’ship, 158 Wn. App. 203 (affirming grace period where lessee invested significant permanent improvements)
Miller v. McCamish, 78 Wn.2d 821 (recognizing perennial crops can increase land value and be treated as permanent improvements)