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#18988
P.E.I. OCEAN AREA SHORTLEASE WAR : Appeal Court orders re-run of MacMillan Point HOA v JAY 2019/08/12 12:37  
( again NOT legal advice )

After years of weekly leasing of his detached ocean-area home near P.E.I. National Park - via VRBO etc and other owner shortleasing services - owner Nicholas Jay's WEEKLY LEASES were targetted as violations of one or more subdivision restrictive covenants.

( Like many "loose ends", these P.E.I. judicial outcomes do not bother to specify what sort of legal entity is the 19 year old subdivision nor its Owners Association. NOR whether the incorporated Owners Association actually has any legal authority or vires to purport to seek compliance with restrictive covenants. Some U.S. style models are designed to morph from developer vehicles directly into "governancers". AS EWCA 2016 exposes, a century of English jurisprudence wrongly upheld ( dozens or hundreds of ! ) alleged but fake "Building Schemes" larded with voodoo extraneous junk ! )

In a 2018 mutually agreed ( No Full Formal Trial etc ) upfront process reminiscent of Ontario's, Mr Jay's weekly leases HAD BEEN SOMEHOW RULED NOT in violation of the following "RESTRICTIVE COVENANTS".

The contested covenants on title reportedly included :

" 3. Use of lands

(a) The lands and any dwelling erected or to be erected thereon shall not be used for any commercial purpose, or for the practice of any trade, employment, profession or service of public resort; . . . nor as a hotel . . . or public accommodation; nor shall anything be done or permitted upon any of the lands or buildings erected thereon which shall be a nuisance to the occupants of neighbouring lands or buildings.

(b) No signs, billboards, placards, notices or other advertising or informational material of any kind, except of the size and type ordinarily employed by real estate agents offering the lands for sale or rent, shall be placed on the lands, dwelling or other structure on the lands without the express written approval of the Grantor. .. "

BUT . . .

1 - PEI's Court of Appeal has now cancelled the 2018 outcome ( landlord beat HOA & covenants ! ) and ordered the lower court to formally re-run the applications for compliance.

2 - Note that the contested covenanted uses are NOT expressed to protect nor be limited to "single family" usage. Neither P.E.I. outcome cites - nor does it owe deference to - Ottawa's 2016 Menzies HIGHRISE CONDO highprofile decision which used Declaration to strike down some AirBnB-type short term urban condo leasing. The judicial rationale however may have helped these P.E.I. efforts, which claim there's been little Canadian precedent so went looking to dangerous U.S. . . . ! ).

( “OCSCC # 961 v Menzies et al : LAWYER'S AirBnB operation ORDERED HALTED by Declaration & Rules” https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18644&catid=9#18644. There, short term leasing was held as "commercial" and an hotel-like usage incompatibly in violation of a "SINGLE FAMILY" RESTRICTION within Menzie's Declaration. Think : close interactions with inn-keeping type activity; elevator interactions etc )

This P.E.I. dispute of course is being fought about detached structures on multi-acre rural /ocean area plots. Not an urban highrise. Not about strangers with luggage crowding onto condo elevators . . .

3 - The P.E.I Appeal Court rationale also discusses & raises the possibility that generally restrictive covenant disputes - and ? whether statutory condo/strata disputes too ? - arguably may now require such a matrix of "factuals" as to be beyond "matters of law" alone for upfront trial-avoiding (summary disposals). Do such require formal trial proceedings to integrate possibly extraneous factual matrices into "interpretation of contracts" ? etc . . . .

4 - Before the latest decision a May 7/19 CBC online article clarified that Mr Jay above has now sold his disputed P.E.I. building & lot. Also that there are 31 lots in the low density subdivision. It quotes P.E.I.'s Chief Appeal Justice predicting "there will be big implications for covenants all over."

5 - Another Maritime shortlease war hit CBC's National News on August 12/19 with hundreds of U.S. style viral HOA comments online before comment shutdown. Non-resident winners of a 2018 Lottery Home at Chester Basin ( "Skipper Hill Estates" overlooking southshore Nova Scotia )began short term leasing. The owner "hosts" deride neighbours' interference / direct chastisement of guests ( merely ? 9 pm "washer toss" & "guests" launching their host's kayak at the communal wharf.

CBC dug up a copy of the Nova Scotia title covenants which it claims also ban home-based business but NOT SPECIFICALLY AirBnB type shortleasing. IF SO, apparently there would be no ban on "hotel " nor "public accommodation".

Will a 'no-commerce from home' clause be enough to shut down short term leasing in these provinces ?

CBC Aug 12/19 “How this couple's dream home lotto win turned into a headache” ( whether for the country neighbours too ) https://www.cbc.ca/news/canada/nova-scotia/dream-home-lottery-cottage-airbnb-chester-1.5242168


6 - Well managed lakefront /rural B&Bs with owners onsite MAY NOT be a disruption even if it's a covenant-banned commerce. In my own waterfront residential Building Scheme ( 70 private "plots" over almost a square mile ), one owner's well-supervised B&B "guests" for several vacation seasons were visible but arguably NOT really a nuisance nor municipal zoning infractions. The sky didn't fall. B&B owners are usually onsite, unlike full premises leasing. These accompanied guests to the waterfront.

* * *

The P.E.I . litigation :


MacMillan Point Homeowners Assn. v Jay, 2019 PECA 18 issued July 12/19 http://canlii.ca/t/j1fqp

which orders formal trial to replay owner’s lower court victory over HOA in :

MacMillan Point v. Jay, 2018 PESC 34 issued Sep 24/18 http://canlii.ca/t/hv833
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