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Cole v Paterson : B.C. REVIEW COVENANT ruled unenforceable for alleged "ambiguity" 2019/01/28 23:25  
( The properties are not BC strata nor is this legal advice )

A January 2019 recent B.C judgment strikes down a 35 year old Design Review covenant between two adjacent lots ( "plots" ) fronting Lake Okanagan. This however may be only the first round.

Some may see this as "merely housekeeping", but it could also be seen as what arguably fueled the enactments of condo or strata legislation across Canada a half century ago.

Lawfully imposed onto titles for decades & relied on by adjacent owners AND their lenders as value protection, just how vulnerable should non-condo/non-strata restrictive covenants be ?

Should judges purport to overwrite what owners covenanted in ways that do NOT offend the public interest, howsoever that may be ? ( This ain't the Beach O'Pines POA's "White Gentiles Only" covenant killed in 1950 )

Even if theoretically a potential judicial power, isn't that re-allocating rights between owners ?


The adversaries' lakefront lots had been part of a 1978 Statutory Building Scheme whose wider covenants are not in action here.

Unlike Ontario's 40 year expiry (MRT)and 90 year old Middleton dictum protecting covenantees from substantial harm, B.C.'s Property Law Act actually legislates FIVE alternative scopes for judicial modification or total overthrow of restrictive covenants. ( Marketable record title expiries do not kill these. Compensation can be paid as under England & Wales' Upper Lands Tribunal, but it didn't even get considered here. )

One such judicial platform is a finding of "ambiguity" ( a principle so far argued unsuccessfully in Ottawa's Kings Landing roofdeck dispute. See ) .

Although the respective adjacent (p)lot / split lot in contest were part of 1978 Building Scheme, a 1984 private “one- way” DESIGN REVIEW covenant later between only two adjacent plots - one later lot also split in 1994 - gets struck down as “AMBIGUOUS”.

Arguably the objected portion is neither fatal to enforceability nor - with respect - maybe more than marginally "ambiguous" at worse .

Representing a power withheld from the winning challengers' purchased rights & obligations, the losing neighbour’s Design Review covenanted protection is arguably anything but ambiguous.

But the judge arguably manages - with respect - to mis-construct the 35 year old registered document. . .

An exempted outlined area lacks dimensions but is scalable from actual survey dimensions. It’s important to the challenger Coles all right, but arguably a minor component whose ambiguity – IF such is the case at all - is neither fatal nor central to the protection even if genuinely were “ambiguous” .

Running with titles relied on by the protected & their lender, the covenant is about Design Review NOT necessarily controversial "lake view" issues.

Its arguably dubious central grounds are lack of dimensions on a “saving” exemption & peripheral reference to “view protection”.

Will this be appealed ?

Cole v Paterson 2019 BCSC 45 issued Jan 15/19
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