(concurring in part, dissenting in part) — While I concur with the majority that the grant of the easement failed to conform with the statute of frauds, I disagree with the majority’s rigid application of the doctrine of part performance. The majority effectively precludes a court from ever finding part performance in the grant of an easement. This is contrary to both the equitable nature of part performance, and the court’s tradition of weighing the unique circumstances of each case to determine the enforceability of an agreement not in compliance with the statute of frauds. Because the facts of this case have not been fully resolved, I would deny both parties’ motions for summary judgment and remand for trial.
The dispute before the court concerns whether a grant of an easement conforms with the statute of frauds, and if not, whether there was sufficient part performance to remove the agreement from the statute of frauds. While complicated, the relevant facts are as follows. In 1983, the Cahills submit*564ted a short plat application5 to the City of Seattle. The Bergs, whose property lies directly adjacent to the Cahill property, publicly opposed this application. Fearing this would slow or thwart the application’s approval, the Ca-hills offered the Bergs an easement across their property in return for their cessation of opposition. In 1984, the parties executed this agreement in writing.
It is undisputed that the Bergs dropped their opposition to the short plat application upon signing the grant of the easement. In 1988, Seattle approved a modified version of the original short plat application.6 Shortly after Seattle’s approval, the Cahills sold their property to the Tings. It is unclear whether the Tings knew of the easement when they bought the property. In any event, when the Bergs mentioned the easement to the Tings, they denied its existence. In response, the Bergs brought this action to quiet title in the easement.
In determining the enforceability of an agreement granting an easement, the court first considers whether the agreement conforms with the statute of frauds. If it does not, the court determines whether there is sufficient part performance to remove the agreement from the statute of frauds. Kruse v. Hemp, 121 Wn.2d 715, 724-25, 853 P.2d 1373 (1993); Powers v. Hastings, 93 Wn.2d 709, 717, 612 P.2d 371 (1980); Richardson v. Taylor Land & Livestock Co., 25 Wn.2d 518, 528-29, 171 P.2d 703 (1946). Even if sufficient part performance exists, there must be "clear and unequivocal” evidence of the terms, character and existence of the agreement to compel its enforcement. Miller v. McCamish, 78 Wn.2d 821, 829, 479 P.2d 919 (1971) (quoting Granquist v. McKean, 29 Wn.2d 440, 445, 187 P.2d 623 (1947)).
By insisting on a written deed, the statute of frauds mitigates the possibility of perjury or fraud in agreements for the conveyance of real property. RCW 64.04.010, .020. The *565statute of frauds reflects a recognition that fraud or perjury is more apt to occur when an agreement is based only on the strength of a handshake, rather than on the specifics of a written instrument. In contracts for the purchase or sale of real property, the statute of frauds precludes reliance on oral testimony by requiring that a written agreement meticulously describe the location of the property, or refer to another instrument that describes the location. Herrmann v. Hodin, 58 Wn.2d 441, 443, 364 P.2d 21 (1961). By requiring the clear delineation of property boundaries, the statute of frauds ensures a systematic and organized transfer of property.
In contrast, an easement merely allows one property owner to use the property of another. Since it is often both unnecessary and difficult to describe the exact boundaries of an easement, the statute of frauds does not require a description of the precise location of an easement. Instead, the statute of frauds dictates that a deed locate the easement on a specific servient estate. Smith v. King, 27 Wn. App. 869, 871, 620 P.2d 542, 24 A.L.R.4th 1049 (1980) (citing Rhoades v. Barnes, 54 Wash. 145, 102 P. 884 (1909)).
By its terms, the written agreement between the Bergs and Cahills granted an easement to the Bergs in consideration for their discontinuation of public opposition to the short plat application. For the grant of the easement to have satisfied the statute of frauds, it needed to locate the easement on a specific servient estate. Smith v. King, supra. The agreement used the conditionally approved short plat application as the basis for describing the location of the easement, but simultaneously stated that the location of the easement could be found by referring to the "finally approved” short plat application. As the Court of Appeals held, the grant of the easement could be reasonably read either as fixing the location of the easement, or as providing the method for locating the easement in the future. Berg v. Ting, 68 Wn. App. 721, 729, 850 P.2d 1349 (1993). As a result, it failed to refer to a specific servient estate, and thus did not comply with the statute of frauds.
*566This court has recognized, however, that there are instances where an inequitable result would follow from the failure to enforce an agreement that has not met the requirements of the statute of frauds. Where the repudiating party would reap a windfall, this court has developed the doctrine of part performance to remove such agreements from the statute of frauds and allow their enforcement.7 See Richardson v. Taylor Land & Livestock Co., supra at 529. In these circumstances, sufficient part performance of the agreement overcomes the failure to conform with the statute of frauds. Richardson, at 528-29; Powers v. Hastings, supra; Kruse v. Hemp, supra.
Given that the grant of the easement between the Cahills and Bergs failed to conform with the statute of frauds, the next step is to determine whether there was sufficient part performance of the agreement to remove it from the statute of frauds.
This court originally developed the doctrine of part performance to allow enforcement of oral agreements for the purchase/sale of real property.8 Richardson v. Taylor Land & Livestock Co., supra; Powers v. Hastings, supra; Miller v. McCamish, supra. We examined three elements or circumstances to determine whether sufficient part performance occurred:
(1) delivery and assumption of actual and exclusive possession of the land; (2) payment or tender of the consideration, whether in money, other property, or services; and (3) the making of permanent, substantial, and valuable improvements, referable to the contract.
Richardson, at 528-29, cited in Kruse, at 724; Powers, at 717. We acknowledged some general, but flexible, guidelines. *567First, evidence of all three elements provided the strongest case for invoking the doctrine of part performance, whereas the total absence of these elements provided the weakest. Richardson, at 529. Second, of the three elements, evidence of consideration provided the least support for a finding of part performance. Richardson, at 529. Third, generally two elements needed to be present for a finding of part performance, but as the majority admits the "court never set forth a rigid requirement that two of the three factors be present.” Majority, at 558. Finally, when making a part performance determination, courts are not limited to considering solely the three elements outlined in the doctrine of part performance. See Richardson, 25 Wn.2d at 528-29.
In applying the doctrine of part performance, we emphasized that "no positive rule has been, or can be, formulated for the government or decision of all cases indiscriminately”. Richardson, at 529. Rather, the facts and circumstances of each case must be considered on their own merits. Richardson, at 529. The court applied a flexible analysis to determine whether an agreement existed. See Richardson, at 529.
Today, however, the majority sets forth a rigid application of the doctrine of part performance which holds that it will not invoke the doctrine of part performance without a showing of actual possession or improvement of the property by the nonrepudiating party. In other words, of the three elements comprising the part performance doctrine, evidence of consideration alone will never result in a finding of part performance.
This approach ignores the context in which the doctrine developed. In purchase/sale agreements, actual possession and improvement of property, along with consideration, are likely indicators of a purchase/sale transaction. By definition, however, the grantee of an easement does not take actual possession of property. Whether the recipient of the grant of an easement may make improvements depends on the terms of the easement. As a result, consideration often is the only element of the doctrine of part performance applicable to a grant of an easement.
*568This is not to say that the doctrine of part performance has no relevant application to a grant of an easement that fails to conform with the statute of frauds. But it must remain flexible for it to be adaptable. Just as the statute of frauds recognizes the distinction between the grant of an easement and the purchase/sale of property, so must the doctrine of part performance. The majority’s holding, which categorically rejects a finding of part performance based on consideration, effectively prohibits a court from ever finding part performance of a grant of an easement.
The majority defends its position by arguing that consideration "reveals nothing about the character or terms of any contract.” Majority, at 558. The majority appears to believe that a finding of sufficient part performance will lead the court to immediately order specific performance of the agreement. For a court to order specific performance, however, there must be "clear and unequivocal” evidence as to the terms, character, and existence of the agreement.9 Miller v. McCamish, 78 Wn.2d 821, 829, 479 P.2d 919 (1971) (quoting Granquist v. McKean, 29 Wn.2d 440, 445, 187 P.2d 623 (1947)). The majority engages in a complete departure from our precedent by arguing that the doctrine of part performance provides the sole evidentiary basis for determining the terms, character, and existence of an agreement.
Specific performance is appropriate where there is "substantial evidence of the terms, character and existence of the agreement, and of part performance”. (Italics mine.) Powers, at 713. While we require evidence of part performance, we do not require that the part performance itself elucidate the terms of an agreement. Powers, at 722. Instead, we insist on a "quantum of proof” to demonstrate the exact terms of an agreement. (Italics omitted.) Miller, at 828-29. The elements comprising the doctrine of part performance can illuminate fully the terms, character, and existence of an agreement, or they can work in conjunction with other evidence. Their *569relevance will depend on the facts and circumstances of each case. In general, the evidentiary function of the doctrine of part performance will differ depending on whether the disputed agreement was oral or written.
When no written instrument exists to identify the terms and character of an agreement, the doctrine of part performance has greater evidentiary value. The elements of part performance — actual possession of the property, consideration, and improvements on the property — elucidate the terms and conditions of an agreement. In instances where there is no written instrument, the majority’s position may be defensible. Under these circumstances, consideration has the weakest evidentiary value because the only term of the agreement it describes is payment.
Where there is a written agreement, however, it is necessary to consider the probative value of the writing. It is imperative to ask whether the writing dispels doubts as to the terms, character, and existence of the agreement. In the present case, the majority chooses to ignore the written agreement between the Bergs and Cahills which specifically grants an easement across the Cahills’ former property. By ignoring a written instrument of significant evidentiary value, the majority thwarts its own attempt to discover the terms and conditions of the agreement.
Accordingly I would deny both parties’ motions for summary judgment, and would remand for a trial on the merits to determine whether there was sufficient part performance to remove the agreement from the statute of frauds, and whether the evidence taken as a whole left no doubt as to the terms and character of the agreement.
Madsen, J., concurs with Durham, J.
Reconsideration denied March 29,1995.
Approval of a short plat application gives the property owner permission to subdivide his or her property.
In the initial short plat application, the property was divided into seven lots. By 1988, the lots had been reconfigured slightly and reduced to six.
Furthermore, where evidence of an agreement "leaves no doubt as to [its] terms, character, and existence”, it becomes unnecessary to apply the statute of frauds since the statute was developed to combat fraud resulting from uncertainty in agreements. Miller v. McCamish, 78 Wn.2d 821, 829, 479 P.2d 919 (1971) (quoting Granquist v. McKean, 29 Wn.2d 440, 445, 187 P.2d 623 (1947)).
Kruse v. Hemp, 121 Wn.2d 715, 853 P.2d 1373 (1993) applied the doctrine of part performance to written agreements that failed to conform with the statute of frauds. Kruse, at 725.
Where a party seeks damages, as opposed to specific enforcement, the terms, character, and existence of an agreement must be proved by a preponderance of the evidence. Powers v. Hastings, 93 Wn.2d 709, 716-17, 612 P.2d 371 (1980).