Skip to content

Narrow screen resolution Wide screen resolution Auto adjust screen size Increase font size Decrease font size Default font size default color brick color green color
CAFCOR Forum
_GEN_GOTOBOTTOM Post Reply
TOPIC:
#18917
Building Scheme REVIEW COVENANT survives challenge by FLAGPOLE & ROOFDECK changes KINGS LANDING 2018/12/19 14:47  
"The past is never dead. It's not even past." ( Wm. Faulkner : Requiem for a Nun 1951; see also Faulkner's Go Down, Moses ( 1942 ) about restless ghosts of another “peculiar institution” )

This of course is not legal advice.

Out of the ( Building Scheme ) Past” . . . AMIDST unilaterally completing certain ROOFDECK works now adjudicated to have been WITHIN their unit’s boundaries and held to have triggered fully - “as ( definition-lacking ) alterations” - PRIOR REVIEW by governancers, a KINGS LANDING townhouse unit’s owners in 2016 were told parts of their works would have to be dismantled.

Later these challengers would even add a ( ? foolishly defiant ? ) TWENTY FOOT flagpole onto the roof !

Alleging enforcement-killing ambiguity and unfairly selective exemptions given to some other units’ exteriors, as S.R.L. Self Represented ( pro se ) Litigants they would also begin two years of legal challenge against the exterior design review provision itself within the ( Declaration - like ) Covenant of their 20 year old downtown Ottawa Building Scheme.

These review covenant challengers have just lost the first round / ( ? final round ? ). The late October 2018 judgment has refused to either exempt what they did nor judicially modify nor void the exterior design review provision itself.

Nor critically does the judgment overtly show judicial testing whether the disputed works actually reached the "triggering" level of "alterations" as opposed to mere maintenance or non-alteration.

Nor arguably to bother considering - as discrimination nor evidence of obsolescence - allegedly comparable works allegedly getting discriminatory exemptions previously enjoyed by other owners.

Fronting the Rideau Canal in central Ottawa, these Covenant-challengers’ Building Scheme KINGS LANDING happens to be the same of which other owners’ legal challenge was resoundingly rejected earlier this year : please see cafcor topic http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18870&catid=2 .

In that earlier outcome, even arguably un-platformed fines ( voodoo liens ) & arguably third party interference letters to lenders, didn’t seem to get much of anyone’s judicial concern despite lack of covenant nor any provincial POA law to platform such.

Kings Landing’s non-condo Covenant was registered in 1998 under Ontario’s Land Titles Act ( LTA ). Thus as priorly warned within the relevant Law Reform Commission report, Kings Landing’s Covenant – unlike Ontario condo registrations - has a statutory 40 year expiry date regardless of any voodoo provisions to the contrary within a particular covenant.

Thus also the LTA – a full statute – directs judges to apply a certain evaluative criteria when hearing applications to overthrow or to modify such title-registered Covenant. That's if - IF - IF - the judge or challengers have the skillsets to even be aware of it ! ( or to dare admit those legislated criteria are "very loosely worded" . . . .)

We hear nothing about either of these within the latest Ottawa judgment.

The next developments ( for the challengers ) likely won’t be cheap : at least four days of judicial Hearings occurred ( including in 2016 when the challengers were able to beat back an upfront summary motion to squash their legal challenge ).

The October 30/18 loss anticipates legal cost awards against them if they do not appeal successfully.

The FACTUALs

1 - This set of plaintiff covenant challengers managed to run afoul of Covenanted "Alterations to Exterior" (sic) restraints after unilaterally doing revision to their own roofdeck in 2016.

They did so without prior review & approval ( under the challenged Covenanted provision on all titles ) by the Scheme’s “Co-Tenancy Committee”.

What "alterations" - if they were - did the challengers do ? The judgment lists but is critically silent about whether what was done in 2016 was even a covenant violation. Maybe visible only to drones and immediate neighbouring rooftops . . .

The here-ignored LTA judicial criteria then tend to trigger the question " Given the works, who would be interested - as opposed to interested merely in principle - in enforcement of the review covenant ? "

Could out of sight challenging a residential community's conformity control / design review sub-covenant - if IF this would actually be the essence here - constitute harm to adjacent property or property values ? This isn't always so clear in U.S. covenant disputes about the roof colour of backyard sheds. Nor small rearyard fountains . . .

UPFRONT why is properly construing basic owner contractual rights so germane ? As given appeal court deference after the adjudicated in the famous CONDO hot tub dispute Wentworth CC # 198 v McMahon 2009 ONCA 870 http://canlii.ca/t/270k9 – unit revisions were entitled to being considered whether reaching whatever undefined status of “alterations” at all.

The recent decision however is totally silent as to any such argument having been made nor considered judicially nor abandoned at all by these SRLs.

We do not for example hear about neighbouring visual impacts at all. Were they physically even visible to neighbours ? Could any neighbours even see them ? .

2 - Was the following warning missed by these challengers ?

In 2015 a different set of sub-Covenant challengers lost an arbitrator’s decision upholding a different review refusal by the Co-Tenancy Committee. The Building Scheme governance Co-Tenancy Committee had rejected relocating to ground level a limited number of units’ private AC units from rooftop to common element ground consistent with most existing units. The challengers lost an attempt to appeal that arbitration. The alteration would have reduced open commonly-owned space. The changes weren't up-top maybe visible only to birds. . . .

The arbitrator is cited to have considered but factually rejected, the reasonings from the condo universe’s 2009 McMahon condo hot tub war which over-rode section 98 of the Condominium Act 1998. Kerr v. King’s Landing, 2015 ONSC 84 http://canlii.ca/t/gg0nt )

3 - ALLEGED EXEMPTIONS SELECTIVELY GIVEN TO OTHER OWNERS

The challengers argued that the governancers' 2016 rejections had been discriminate, unfair and even evidence of exhaustion of the covenant. They submitted specifically that there exist past exemptions for comparable revisions granted to other sets of owners.

The judgment pointedly admits refusing to consider those albeit in detail !

Yes, Canada's Supreme Court in Polai v Toronto had refused to consider the mere freestanding existences of historic past zone infractions as valid proof of oppressive or unfairly selective discrimination.

But refusals of substantially similar request amidst exemptions, could be a different matter.

The judgment pointedly declines to address in detail whatever might have been submitted by the self-represented challengers as to the alleged exemptions.

4 - A high risk strategy choice ?

Upfront in 2016 the roofdeck challengers could have accepted the changes being demanded – ie arguably not a bad short term strategy for POA targets with busy lives & maybe without widespread support from other stakeholders.

Instead they litigated.

They dared challenge that the review sub-covenant itself was spent and invalid and sought its judicial disallowance.

Bigger, as Ottawa area Building Scheme challengers they were riding into several Wild Wests. Those included : being “ S.R.L. " challengers / Building Scheme modification criteria being challenged / daring to challenge governancers.

That next step took them into 90 year old judicial dicta by a giant of Ontario Building Scheme law . . .

Chapadeau et al v. Devlin et al 2018 ONSC 6456 issued Oct 30/18 http://canlii.ca/t/hvtcc

Chapadeau et al v. Addelman et al 2016 ONSC 6803 issued Nov 1/16 http://canlii.ca/t/gvg0b
  The administrator has disabled public write access.
#18918
ONUS TO CHALLENGE Building Scheme COVENANTS = high risk 2018/12/19 19:25  
( This is still not legal advice. Respectfully, D.I.Y challenges of property covenants are usually just crazy risks. Make a deal, suck it up, hire a competent insured legal pro OR do all 3 ! Remember the Italian guy at the entrance ? : "Lasciate ogne speranza, voi ch'intrate" )

A gobsmacking NINETY YEARS later the covenant-challenge dicta of William Edward Middleton get gold standard treatment including in Ontario's appeal courts & here.

The particular dicta - expressed in an age of pre-consumerism - addressed what should or should not be the limit on judicial discretion facing applications to modify or even void what parties contracted onto title.

But what's not easy arguably includes fitting them onto ignored facts & sloppy covenants.

The late Ontario Justice William Edward Middleton ( 1860-1948 ) adjudicated leading Building Scheme litigation as well as the wild Depression era Baby Derby & corn flakes wars disputes. Middleton was himself ultimately appointed to a predecessor of today's Ontario Court of Appeal.

He was a superstar of Building Scheme law in gobsmacking tune with emerging covenant jurisprudence WELL OUTSIDE Ontario let alone merely Toronto. Not citing him as judgment authorship even of an appeal panel decision, discloses much in this latest judgment.

1 - Disputes between Building Scheme owners are merely just one subset of wars over alleged restrictive covenants between every type of property owner with or without any shared ownership. These have overtly gotten "contract warfare" analysis only.

It's been disturbingly easy to overlook a strict construction protection for challengers where arguably ambiguous provisions got sloppy contract drafting.

Building Scheme covenant challengers can try to unseat governancers if there actually IS a covenanted governance body. But every single plot owner has a DIRECT twin duty to benefit & burden of any challenged covenant regardless of who might be a governancer.

To resolve what are ultimately disputed contracts running with legal title, there's NO legislated consumer protection parallel to Ontario's Condominium Act 1998.

So thus there's NO section 135 Oppression remedy nor U.S. style Open Meetings nor right of access to management documents nor any consumer/property remedies as under some states' HOA laws. Voodoo votes abound purporting to assert meanings retroactively. ( see below ).

And eventually courts receive applications to modify, exempt, even strike down, restrictions "bought into" on title . . .

2 - Totally absent AWOL from any mention in this latest Building Scheme decision, Ontario's LTA Land Titles Act, R.S.O. 1990, c. L.5 https://www.ontario.ca/laws/statute/90l05#BK140 provides :

Notice and modification or discharge of covenants

. . . 119 (5) . . any such condition or covenant may be modified or discharged by order of the court on proof to the satisfaction of the court that the modification will be beneficial to the persons principally interested in the enforcement of the condition or covenant. R.S.O. 1990, c. L.5, s. 119 (5).

That high hurdle at least is thankfully followed by the forty year ( or less ) EXPIRY of such covenants in LTA's section 119 ( 9 ). It is the current expression of Ontario's excellent MRT marketable record title law from 1929-30.

Unrenewed unanimously, Building Scheme Covenants eventually turn into Cinderella's pumpkin. That's the bargain, thank the Gods.

2 Middleton's Dec 1926 dicta however were directed to a split path including a then-expressed second route for non LTA covenants through the then-current C.L.P.A Conveyancing & Law of Property Act with subtle differences from their modern versions.

( At the time of Midddleton's Dec 1926 dicta, both the 1914 LTA and 1922 CLPA had weird little / highly arguable formulaic limits on discretion to judicially modify. But CLPA's alone were ended in 1927 ). )

Ontario's modern CLPA - now subtly unlike modern LTA's 119( 9 ) - legislates NO modification criteria onto adjudicators. ( Conveyancing and Law of Property Act, RSO 1990, c C.34 : . . . Restrictive covenants, modification or discharge of section 61 (1) https://www.ontario.ca/laws/statute/90c34 )

This latest decision - without explanation - is judicially routed through CLPA - ie NO "purely legislated" modification criteria to hamper judicial discretion.

Middleton's familiar appeal court-mates in Re Beardmore ( 1935 ) expressed the CLPA route to be even more challenging to covenant challengers. ( Re Beardmore 1935 CanLII 102 (ON CA) issued Nov 7/35 http://canlii.ca/t/g1826 )

But is such really true on the facts of this particular challenge ? Did the DIY'ers understand ?

Further the judgment claims the challengers tried to argue on mistaken wording from a long-past version of the CLPA

3 - Anyway the 1926 Middleton dicta include : . . . ( more to come . . .)
  The administrator has disabled public write access.
#18919
Middleton's 1926 dicta get modern traction; HURDLES before JUDICIAL intervention 2018/12/22 20:25  
( This is again NOT LEGAL ADVICE. As a Building Scheme owner myself I recognize why it's tough to persuade 100 % of co-owners to amend or renew the master covenant. There's virtually no consumer protection. Buy into one very carefully only with extreme prior diligence. At least they turn into pumpkins at year 40 or sooner if so abbreviated. )

1 - William Edward Middleton ( 1860-1948 ) served as a justice of the Supreme Court of Ontario for thirty-three years, twenty-two of them as an appellate judge. After his dazzling 1913 lower court judgment in Re: Lorne Park, Middleton penned many appeal court judgments still resilent :

WHAT SHOULD BE THE TRIGGER POINT FOR JUDICIAL AMENDMENT of restrictive covenants on title ?

Re: George ONCA Dec 3/26 https://www.canlii.org/en/on/onca/doc/1926/1926canlii356/1926canlii356.pdf

Under then-current CLPA Middleton-led panel rejects VIEW PROTECTION RIGHTS asserted against winning lot-splitters ( 5 acre parcel ) opposed by North Rosedale ravine neighbours held unable to establish even a Building Scheme nor possibly any rights !

xcrpt “ . . . The meaning that has been given to the expression in practice is that the Judge must satisfy himself that the balance of convenience is in favour of granting the application, having regard to the rights and interests of both parties, and I think it may safely be said that the order should not be granted unless the benefit to the applicant greatly exceeds any possible detriment to the respondents. . . .”

Re: ONTARIO LIME (1927) https://www.canlii.org/en/on/onca/doc/1926/1926canlii362/1926canlii362.pdf

Under then-current LTA Middleton-led ONCA panel rejects 50 horse stable ( ! ) proposed next to possibly widowed resident despite massive non-residential neighbourhood changes NE of Yonge at Merton St. - railtracks, industrial etc :

Xcrpt “ . . . It has been more than once pointed out that under this statute there is no power to make compensation to a landowner who is prejudicially affected, and the jurisdiction is one to be exercised with the greatest caution, and an order should seldom, if ever be made which will in truth operate to the prejudice of the adjacent landowner who has any real rights.

The true function of the statute is to enable the Court to get rid of a condition or restriction which is spent or so unsuitable as to be of no value and under circumstances when its assertion would be clearly vexatious . . .”

Re: George & Re: Ontario Lime principles were clarified by Middleton's frequent court-mates in Re Beardmore 1935 CanLII 102 (ON CA) issued Nov 7/35 http://canlii.ca/t/g1826 - Asserters fighting 4 plexes win overthrow of lower court judgment by CJHC that had temporarily voided 1923 covenants actually already upheld by Middleton near Eglinton/Yonge .

Dicta that total discretion in by- then CLPA is actually heavier burden than specific criteria in LTA; clarifies “Balancing ” is not solely definitive.

Modern confirmations 90 + year old Middleton dicta Re:George and Re: Ontario Lime

Remicorp Industries v METROLINX et al 2017 ONCA 443 http://canlii.ca/t/h419w

Silver Seven Corp Centre v Home Depot 2017 ONSC 5091 http://canlii.ca/t/h5vd6

Icona Hospitality v 2748355 Canada 2018 ONSC 4239 issued July 6/18 http://canlii.ca/t/ht8z8

8310 Woodbine Dev v 2261039 Ont 2017 ONSC 4684 issued Aug 1/18 http://canlii.ca/t/ht8xq and now

Chapadeau et al v. Devlin et al 2018 ONSC 6456 issued Oct 30/18 http://canlii.ca/t/hvtcc
  The administrator has disabled public write access.
#18920
accept the mystery . . . . 2018/12/22 20:52  
( This again is not legal advice. )

Finally, Building Schemes can be unforgiving purchase choices. They can be such ennobling scenarios. Or may be no different from a barn full of pitbulls nor a loaded, cocked shotgun standing upright on its stock on a shaky tabletop. Prior diligence better be good. Applying for contested judicial modification ? Expect frustration. Respectfully it's foolish without professionals.

1 - Is it discrimination that "historically somebody else got away with it" but today everybody gets refused ?

2 - What's "ambiguous" or vague in a property covenant ? ( highprice general principles : see widely circulated Driedger or Sattva v Creston principles or whatever )? And if "ambiguous" under strict construction, what remedy if - IF - at all ? .

3 - Anderson v Dickie 1915 House of Lords cited in
Zhang v. Davies, 2018 BCCA 99 issued March 16/18 http://canlii.ca/t/hr1n1

" . . .[12] It is not a matter of resolving the ambiguity. A restriction on the use of land must be clearly expressed.

If ambiguity exists, it is to be resolved in favour of the free use of the land.

The principle was stated in Anderson v. Dickie (1915), 84 L.J.P.C. 219 (H.L.) by Lord Dunedin at 227 “ . . . Far earlier than this it had been held that all conditions restricting the use of land must be very clearly expressed, the presumption being always for freedom. “

( also cited by B.C.Supreme Court in Jabs v Good BC 2009 http://canlii.ca/t/22qv8 & Saskatchewan’s Podwin v Gondziola 2004 http://canlii.ca/t/1h8r5 against view asserters with ambiguous covenant )

4 - The New Mexico Court of Appeal : . . .

5 - The North Carolina Court of Appeal : . . . .
  The administrator has disabled public write access.
#18923
" CUT FIRST ! MEASURE LATER ?" 2019/01/01 16:41  
again not legal advice.

1 - Above there's still the arguably "missing in action" discussion ( Did the Chapadeau rooftop works actually rise to the level of "alterations" ? Factually was the review covenant validly triggered there ? )

2 - But one sometimes has to question whether condo or Building scheme owners genuinely understand the financial & social etc costs of risking a world of pain ?

Is it about being overwhelmed by legitimate concern for protecting property & civil rights ? Is it hating to hear NO ! Is it temptation like queue-jumping ? Is it a failure to grasp that the mere existence of past exceptions doesn't necessarily mean that your own NO was unfair oppressive discrimination ? Was it originally too shaky diligence as buyers ? Or is now foolish reliance on a building permit issued without care for property rights ? What municipality trumps covenant burdens or has legal authority to even purport to do so ?

3 - In contrast to casually treating "physicalities" in these review disputes . . .

A classic & cautionary tale about huge costs of risky improvements from New York State issued almost the same day as Chapadeau v Devlin above in Ontario :

Physicalities / specifics get treated central to State judicial order for partial demolition of waterfront works ( without any covenant-expiring legislated MRTA type limits either ).

Not only did the NY Court of Appeal concern itself with specifics, a civil judge actually personally viewed the disputed works with both counsels before issuing the latest dismantling order .

Sodus Bay ( S.E. Lake Ontario waterfront Wayne County; Finger Lakes area ) New York neighbours with counsel & survey experts, fight for FOUR 4 years all the way into New York Appeals Court !

They contest whether or not certain waterfacing additions violate a century old set of covenants applicable on merely 3 Sodus Bay lakefront properties. Addition built with apparent failure to precisely comply with 1894 survey . . . ( If survey aspects were imprecise, why did the addition builders risk this much without working sensitive, probably big-bucks waterfront issues professionally & well onside with eventual objectors ? )

There's Zero reference made to any Review Committee process nor HOA at all.

Bottom line : Lacking a covenanted nor legislated MRTA expiry formula the plaintiff Objectors' century-old Covenant rights are substantially held to prevail over additions made ( despite ? sociopathic ? building permit. ) ! With legal & now survey experts, the costs will be astronomical and sadly amidst fabulous lakefront. Neighbourly relationships are presumably long destroyed . . .

Xcrpted PIEKUNKA et al v STRAUBING et al 2018 :

xcrpt “ Turning to the facts of this case, we start with the declaration of the Appellate Division that "the construction on defendants' property violates restrictive covenants in the deeds to the parties' properties."

It was left to this Court to determine the "extent of the violation." Accordingly, the issue here is the extent to which the construction complained of constitutes the type of structure prohibited by the restrictive covenants.

. . . The construction complained of is the erection of the so-called privacy walls on the east and west sides of defendants' deck located in the restricted building area, as well as the roof covering the deck or portions thereof, including a fireplace.

How much of this construction, if any, constitutes a building ? The Court finds, based upon the trial record, and its inspection of the premises with counsel, that the privacy walls adjacent the deck and the roof over the deck create a building or, perhaps more accurately, an expansion of the existing dwelling so to create an expanded building that violates the restrictive covenant.

The Court is very mindful of the relevant canons of construction, having labored in this vineyard before . . .

First, restrictive " covenants 'are strictly construed against those seeking to enforce them,' in light of public policy favoring 'free and unencumbered use of real property"'( Witter v Taggart, 78 NY2d 234, 237 [1991 ]).

Thus, "where the language used in a restrictive covenant is equally susceptible of two interpretations, the less restrictive interpretation must be adopted" (Ludwig v Chautauqua Shores improvement Assoc., 5 AD3d 1119, 1120 [4th Dept 2004]). Second, . . .

. . . The only conceivable purpose of the building restrictions was to preserve for each lot something of a panoramic view of Sodus Bay.

The construction undertaken by defendants has all the indicia of a building and has the same effect upon their neighbors' views of the bay.

. . . for this Court not to enforce the restriction would perforce mean that it would not enforce the restriction for future building by other affected property owners into the area where buildings are not permitted .

That, of course, would render the restriction a dead letter and defeat the original development plan to which all affected property owners have conformed to and ostensibly relied upon.
. . “ - unquote


PIEKUNKA et al v STRAUBING et al 2018 NY Slip Op 32707 issued Oct 24/18 NY Supreme Ct Wayne County https://casetext.com/case/piekunka-v-straubing-4

This Oct 24/18 order applies specifics of 4th Div N.Y. (state ) Appellate Decision PIEKUNKA et al v STRAUBING et al 149 A.D.3d 1483 (2017) 2017 NY Slip Op 03289 53 N.Y.S.3d 743 https://www.leagle.com/decision/innyco20170501726 decided April 28/17

Original Jan 6/16 NY state lower court decision http://www.courts.state.ny.us/Reporter/pdfs/2016/2016_30021.pdf
  The administrator has disabled public write access.
#18925
$ 90 K COSTS AWARDED to "indemnify" respondent Committee members 2019/01/11 19:58  
Jan 10/19 $ 90 K response legal COSTS are awarded to the successful respondent Directors as "substantial indemnity" . ( It's troubling that any part of the costs justification is stated to be derived from any provision within the main Covenant itself, or anything such from a universe notorious for sloppiness & generally sociopathic development. ) But such of course has to be viewed in the overall contexts of the Building Scheme Wild West.

Again this is NOT legal advice.

1 - The winning Respondent governancers had sought a total of $ 142 , 500 for its defence costs.

Such had included $ 28.5 K as sought - but such latter gets here refused - against 2 intervenors clarified here to have been on the sidelines

( Those intervenors are stated to have lawfully declined to expressly consent or "sign on" to the Covenant defence by Committee members, some of whose decisions it had challenged but in 2018 lost big time. )

Structuring Building Scheme litigation may somewhat be ploughing new ground in a jurisdiction without a US style HOA law.

Ontario - arguably fortunately - offers NO one-stop Building Scheme law parallelling its Condominium Act 1998 as amended.

BUT maybe its better to allow a Wild West than something badly one-sided & even corrupt
as in some U.S. states with dedicated HOA laws which can arguably buffer oppressive misconduct without protecting an individual owner's property & civil rights.

Ontarions like myself at least have a choice whether or not to buy into a condo law straitjacket. At least our Covenants eventually turn into Cinderella's pumpkin.

2 - The main costs decision now fills in some blanks.

A - The SRL self-represented challengers had voluntarily agreed earlier to NARROW the scope of their challenge to merely validity of the review Covenant.

Dependent on “whatever" physicals, arguably this deprived the challengers of a “factuals" / McMahon type argument ( “my hot tub didn’t trigger condo law s 98” ). But maybe the whatever actual "factuals" would not have helped them.

B - Looks like the winning Covenant-Defender governancers in Aug 2017 had offered a declined settlement : Its own defence costs to be waived & challengers to dismantle the “whatever” rooftop objectionables.

Would the challengers instead have accepted that offer if their crystal ball predicted a whopping $ 90 K adverse cost award against them so far ?

3 - IF - IF - unappealed successfully, this outcome arguably dooms the rooftop "whatevers" & 20 foot flagpole whose refusals got judicial deference.

Even if mere quiet tolerance is obtained by sucking up the defence costs, how vulnerable will they be in the minds of potential buyers or lenders ? . . .


Chapadeau v. Devlin, 2019 ONSC 241 issued Jan 10/19 http://canlii.ca/t/hwxb5
  The administrator has disabled public write access.
#18928
An opposite outcome in B.C. : REVIEW COVENANT ruled unenforceable for alleged "ambiguity" 2019/01/28 22:59  
Lawfully imposed onto titles for decades & relied on by adjacent owners & 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 ?

Unlike the Kings landing outcome above so far, a very recent B.C judgment strikes down a 35 year old Design Review covenant between two adjacent lots ( plots ) fronting Lake Okanagan.

Those 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, 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 ).

One such is a finding of "ambiguity" as argued above.

( More at Out of Province items : “Cole v Paterson : B.C. REVIEW COVENANT ruled unenforceable for alleged ambiguity" http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=31&func=view&catid=11&id=18929#18929 )
  The administrator has disabled public write access.
#19001
APPEAL COURT rejects self-representeds' APPEAL 2019/10/01 00:13  
Ontario's Court of Appeal ( "ONCA" ) has just peremptorily rejected an appeal by the Covenant challengers - disturbingly still S.R.L. self represented litigants - against both the 2018 ( member ) asserters' victory AND against the $ 90K partial costs award.

Zero mention of any loose ends discussed above. Had such even been raised at all ? Was D.I.Y smart in challenging these Covenants per se against lawyers ( albeit usually specializing in condominium law from a different universe ) ?

Do the "microphones get turned off" or down when do-it-yourselfers speak to a court about Building Scheme law ?

The litigation status of the covenant-defenders continues to be individuals only. Such underlines a nagging suspicion that there may even be NO clearly lawful legal entity / governance body with legislation-supported power to even be a litigant. ONCA begins to grasp one issue : how to allocate costs between the plural member covenant asserters .

With the community heading just past halfway to its 40 year expiry point, what will occur down the line ?

That's without either the Partition Act or a 100 % owner's consent to conversion to condominium ?

Excrpt : “ [1] We are in substantial agreement with the reasons of the application judge on the application.

We are satisfied that she accurately identified the applicable legal principles, properly considered those authorities as they applied to this case, and did not, in our view, err in the manner in which she applied them to the facts before her.

The provision in question (s. 6.2) is enforceable.

The appeal from the order dismissing the application is dismissed. . . .” - unquote.

- Chapadeau et al v. Devlin et al 2019 ONCA 767 issued Sep 30/19 http://canlii.ca/t/j2m1d
  The administrator has disabled public write access.
_GEN_GOTOTOP Post Reply
contact webmaster