§10.5 COMPLIANCE WITH STATUTE OF FRAUDS
RCW 64.04.010 requires that every contract "creating or evidencing any encumbrance upon real estate" shall be by deed. RCW 64.04.020 requires every deed to be in writing, signed by the party bound thereby, and acknowledged.
(1) General principles
General statements in a few cases might give the impression that a REPSA is not required to comply with the statute of frauds. Phillipp v. Curtis, 35 Wn.2d 844, 847, 215 P.2d 431 (1950). A careful reading of the cases, however, discloses that the only element under the statute of frauds that is not required to be present in a REPSA is an acknowledgment. Fallers v. Pring, 144 Wash. 224, 257 P. 627 (1927); Anderson v. Wallace Lumber & Mfg. Co., 30 Wash. 147, 70 P. 247 (1902); Edson v. Knox, 8 Wash. 642, 36 P. 698 (1894). Even as to deeds purporting to convey an interest in land (as distinguished from a real estate contract), it has been held that the lack of an acknowledgment does not affect the validity of the instrument as between the parties themselves. Anderson v. Thursday, Inc., 76 Wn.2d 54, 455 P.2d 932 (1969). The deed becomes a contract for a deed and conveys equitable title. In re Deaver's Estate, 151 Wash. 454, 276 P. 296 (1929); Edson, 8 Wash. 642. This rule as to deeds has been extended to include a REPSA. Fallers, 144 Wash. 224.
Although an acknowledgment is not required, a REPSA must otherwise comply with the statute of frauds. Failure to comply with the statute of frauds renders a REPSA unenforceable. Martin v. Seigel, 35 Wn.2d 223, 212 P.2d 107 (1949). To comply with the statute of frauds, a REPSA must be in writing, signed by the parties bound by it, and "embody all essential and material parts of the contemplated agreement, with sufficient clarity and certainty to indicate the parties' meeting of the minds on all material terms with no material matter left for future agreement or negotiation." See Knight v. Am. Nat'l Bank, 52 Wn.App. 1, 4, 756 P.2d 757, review denied, 111 Wn.2d 1027 (1988) (citing Saunders v. Callaway, 42 Wn.App. 29, 36, 708 P.2d 652 (1985)); Hedges v. Hurd, 47 Wn.2d 683, 289 P.2d 706 (1955).
The existence of a "meeting of the minds" or mutual assent is normally a question of fact. Sea-Van Invs. Assocs. v. Hamilton, 125 Wn.2d 120, 126, 881 P.2d 1035 (1994) (citing Multicare Med. Ctr. v. Dep't of Soc. & Health Servs., 114 Wn.2d 572, 586 n.24, 790 P.2d 124 (1990)). As for material terms, a REPSA must be definite enough on...
