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Bob Ferguson

AGO 1956 No. 272 -
Attorney General Don Eastvold


1. A county may lease lands located anywhere in the county for a period not to exceed 35 years without a provision requiring the lessee to construct buildings on the leased property, except where the property is to be used for municipal, commercial buildings, manufacturing or industrial purposes.

2. A lease for 35 years executed by a county pursuant to the provisions of Sec. 2, chapter 10, Laws of 1941, for commercial purposes is valid without a requirement that the lessee construct buildings.

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                                                                   May 22, 1956

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County-City Building
Seattle 4, Washington                                                                                                             Cite as:  AGO 55-57 No. 272

Attention:  !ttMr. K. G. Smiles

            Chief Civil Deputy

Dear Sir:

            By letter previously acknowledged you have submitted two questions concerning a form of lease submitted with your letter:

            1.         "We would appreciate your opinion on the general question ofwhether all county leases for a term of more than ten years must contain a provision requiring the lessee to construct a building or buildings on the demised property.

             [[Orig. Op. Page 2]]

            2.         "We have a further specific question.  May the instant lease, copy of which is enclosed, be cancelled or terminated at this time on the ground and for the reason that the lessee has not constructed a building or buildings on the demised property?"

            The answer to both questions is in the negative.


            1. In your letter you make reference to § 1, chapter 41, Laws of 1951.  This law in our opinion has no bearing on the questions submitted.  The general rule of law pertaining to the construction of contracts as stated in 17 C.J.S. 355, § 22, reads:

            "Every contract is said to be made with reference to the law in force at the time of its making;"

            We find nothing in chapter 41, Laws of 1951, that makes it retroactive so that it would apply to any contracts of lease entered into prior to the effective date of that act. The lease in question was entered into on September 24, 1945.  The law in effect at that time is found in § 2, chapter 110, Laws of 1941, and so far as material to the questions here involved reads:

            ". . . Provided,  That where a county owns property within or outside the corporate limits of any city or town or anywhere in the county suitable for municipal purposes, or for commercial buildings, or owns property suitable for manufacturing or industrial purposes or sites, or for military purposes, or for temporary or emergency housing, or for any requirement incidental to manufacturing,commercial, agricultural, housing, military or governmental purposes, the Board of County Commissioners may lease same for said purposes for any period not to exceed thirty-five years. . . ."  (Emphasis supplied.)

             [[Orig. Op. Page 3]]

            From the foregoing it is apparent that the county may lease its property for thirteen distinct and separate purposes and uses.  Reading further from the section of 1941 law just quoted we find the following provision:

            ". . .  Where property is leased for municipal purposes or for commercial buildings ormanufacturing or industrial purposes the lessee therein shall prior to the execution of such lease file with said Board of County Commissioners general plans and specifications of the building or buildings to be erected thereon for such purposes. . . ."  (Emphasis supplied.)

            The law appears to us to be clear and unambiguous to the effect that the county may enter into a valid lease for county property located either within or without an incorporated city for thirteen separate and distinct uses and purposes, while the provisions that require construction of buildings by the lessee apply only to the first four of the thirteen categories named.

            The lease itself, beginning at page 1, provides as follows:

            "Said property shall be used by the Lessee for the purpose of general dock operation including, but not limited, to the mooring of vessels, houseboats and other water craft; dry storage of water craft; loading and unloading of marine cargo; repair of vessels of all types; seaplane sales, storage, repair and other operations and the storage of goods, wares and merchandise and operation of club facilities.  And the use made of the premises by the said Lessee shall be at all times limited during the term of this lease to the purpose herein designated unless the Board of County Commissioners shall first consent in writing to a charge of the use herein designated."

            It is our opinion that the property was leased for commercial uses.

             [[Orig. Op. Page 4]]

            Nothing in the lease indicates that it was the intention of the parties that the lease was made for municipal purposes, commercial buildings, manufacturing, or industrial purposes.  This being true, there was no obligation on the part of the lessee to submit any plans or specifications or construct any buildings of any types upon the leased premises during the life of the lease.

            2. The answer to question No. 1 substantially answers question No. 2.  In 51 C.J.S. 858, § 232k, we find a general statement of the law as follows:

            "Where there is uncertainty or ambiguity as to the meaning of any provision of the lease, the practical construction put on such provision by the parties to the lease, as manifested by their acts, should be considered and given due weight by the court in construing the lease, and may be conclusive on the parties, and binding on the court construing the lease, unless such construction violates some positive rule of law. . . ."

            Since the lease in question makes no reference to plans and specifications and has been in existence for approximately eleven years, and the facts stated in your letter do not show that any demand has ever been made by the county to the lessee to construct any buildings of any type upon the property, it appears that the implied construction placed on this lease by the lessor would be that the construction of buildings on the property was not required by the terms of the lease.  It is true that the lease itself contains a provision that makes it somewhat ambiguous.  Beginning at the second line from the bottom of page 2 the lease provides:

            "This lease is made pursuant to the authority of 4827-29 et seq, Pierce's Code of the State of Washington, and each and every provision of said sections is hereby and now incorporated in this lease and made a part hereof as fully as if set out word for word herein. . . ."

             [[Orig. Op. Page 5]]

            We find ourselves unable to determine the purpose of this provision.  An examination of Pierce's Code discloses no section numbered 4827-29.  The same is true of Pierce's Perpetual Code, the last edition of that code published.  If it were intended by this reference to refer to Pierce's Code 4827 to 4829, inclusive, we are still unable to determine any applicability of the reference to the subject of the lease.  These sections of Pierce's Code pertain to public education and refer particularly to the establishment of model schools or training departments in normal schools and the selection of students from public schools for training as teachers in such model schools.

            If it were the intention of the parties to the lease to make reference to the county lease laws as they appear in Pierce's Code, the reference should have been to Pierce's Code, § 1726 or Pierce's Perpetual Code, § 487-33.  The reference as made in the lease is certainly inadequate to constitute an adoption of either one of the sections just referred to.

            The general rule applying to the construction of a lease is found in 51 C.J.S. 859, § 232L, which provides as follows:

            "It has frequently been laid down that leases are to be most strongly construed against the lessor, and that if there is any doubt and uncertainty as to the meaning of a lease it is to be construed most strongly in favor of the lessee. . . ."

            Our own supreme court has adopted this rule in the case of Anderson v. Ferguson, 17 Wn. (2d) 262.  Reading from page 272 of the opinion, our court stated:

            "The covenant is at least capable of two constructions, but any ambiguity therein must be resolved in favor of the lessees, for it is well settled that, where a lease is capable of more than one construction, the courts will adopt that construction which is most favorable to the lessee.  Salzer v. Manfredi, 114 Wash. 666, 195 Pac. 1046; Diettrich v. Newberry Co., 172 Wash. 18, 19 P. (2d) 115;National Bank of Commerce of Seattle v. Dunn, 194 Wash. 472, 78 P. (2d) 535;Murray v. Odman, 1 Wn. (2d) 481, 96 P. (2d) 489."

             [[Orig. Op. Page 6]]

            Applying this rule to the lease in question it is our opinion that it cannot be properly construed to include a reference to the county lease law under which the lease was executed.  We find nothing in the opinion from this office dated April 5, 1946 [[to Delbert S. Scoles, Prosecuting Attorney, Stevens County]], which seems to be in conflict with the conclusions herein reached.

            We trust the foregoing analysis will be helpful to you.

Very truly yours,

Attorney General

Assistant Attorney General