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WYCHWOOD PARK : Court of Appeal's HISTORIC HEARINGS - Positive Covenant Rule 2017/03/31 18:38  
( At July 29 2017 The comments about this adjudication as posted below, appear to have been surreptitiously screened out of retrieval using Google Search Engine.

One can only conclude those comments were NOT appreciated by the west Toronto Trust whose bizarre decade-long $4,000 /year fee claims against the offsite neighbouring home involved, were struck down in May 2017 as UNLAWFUL by the Ontario Court of Appeal )

* * * * *

A Toronto HOA dispute is about to begin Hearings at the Court of Appeal.

The dispute - actually a fifth judicial outing - at least in Ontario MAY BECOME the leading Positive Covenant Rule judgment of this generation in challenging a 130 year old English & Canadian freedom.

"The Positive Covenant Rule" is a freedom badly lacking in most U.S.states. Check out the ferocity of HOA disputes & oppression in many such.

The Positive Covenant Rule effectively puts a time & obsolescence restraint on attempts to perpetually bind ownership transferees in shared ownership communities. "Positive Covenants" are those title-registered promises requiring expenditures of money or labour to fulfill.

Where a new community has not gotten bound by modern condo/strata/syndicat statutes, developers' 'root deeds' to their first purchasers may - MAY - purport to try to bind by chain of promises on title a.k.a. covenants or CCRs.

Examples have been attempts to bind transferees to promises on title to build future condo complexes next door, to perpetually supply & maintain an offsite staircase entrance, to replace a cottage roof for hundreds of years/in perpetuity ( ! ), to supply heat from the basement of a commercial basement next door in South Winnipeg . . . etc

Or also : " If your lot was developed by the same developer 13 DECADES AGO ! within the same Building Scheme, then in perpetuity you have to comply with the first buyer's promise ( if any made ) to pay fees/comply with our regulation & pass along such to all your subsequent owners for all eternity . . ."

What's it mean ?

The Positive Covenant Rule would prevent such promise on title from leaping onwards onto a promise-maker's next owner(s) without a brand new, title-registered express contract made between them to respectively pass & accept such past promises. Not merely sale of ownership but transfer of promise.

HOA starts shrieking if a chain breaks ?

Its recourse has to be against the departed promise-maker.

BUT it can sue the new owner for Unjust Enrichment if the new liberated owner can be proven getting ongoing enriched by usage within 3 criteria ( Garland; Kerr; Petkus etc etc ).

The leading 2002 Ontario ONCA judgment for example shows that a Bankruptcy Trustee's deed without such renewal of promise, "liberates" the next purchaser.

Long before condo laws where communities were attempted to be bound together merely by promises on title, the Positive Covenant Rule made vulnerable such restraints on subsequent generations. The vulnerability is to the breaking of the chain by sale to the next owner without an express, registered transfer & acceptance of such extra duty in writing.

Modern Condo Statutes however legally avoid the vulnerability of the modern CONDO model to 'chain-breaking'. Reciting unit # & Corp # immediately conjures up the statutory rights & obligations. No need to have to covenant expressly to transfer the burdens on title. . . People buy KNOWINGLY into that. No problem.

BUT NOBODY ALIVE TODAY in English Canada, England or Wales has bought into a covenant-platformed community that legally ignores the Positive Covenant Rule !

In many English law countries, this at least 130 year old Rule also tends to weed out whacky & potentially contradictory restraints that could cause havoc for generations long after being paid down.

Eg : 'Shall supply slaves' or 'shall supply mounted knights in armour on horseback'. 'Shall contribute to landscaping & security costs in the next neighbourhood'. 'Shall pay Danegeld to make us look like bigshots no matter how oppressive we are !' etc

In many US disputes where there is no Positive Covenant Rule, such claims can get resurrected oppressively by bogus or long expired HOA groups. Frequently such lost their legal status long ago . . . . even if they ever had such governancing & collection powers.

But then there's a would-be-perpetuity in a west Toronto historical district . . .

"THIRTEEN DECADES AGO your lot ALMOST almost backed onto a subdivision or Building Scheme. The first buyer of your lot promised on title to pay a couple of bucks annually.

Now we want $ 4,000 annually out of you. . . Even if you are neither physically within the complex. . . NOR are fronting on its private streets. . . . NOR need to use our streets to reach your home. . . . NOR are using them nor anything we own !"

Some big name litigators will square off.

( addendum July 1 2017 : The ultimate ONCA de-construction of the original Building Scheme creation documents in this dispute, would turn out to be that there had NEVER EVEN BEEN First Buyers' promises at all ! Much less an ongoing downstream chain of vulnerable promises perpetuated between transferees . . . .

The alleged obligations between 1891 developers would turn out to be voodoo - to have never reached the offsite user lot at all, nor apparently any other lots. ONCA had seen & struck down similar claims several times elsewhere since 1999 ! )

* * *

Ontario Court of Appeal

Durham C.C. # 123 v. Amberwood Investments Limited, 2002 CanLII 44913 (ON C.A.)

Canada's Supreme Court :

Parkinson et al. v. Reid, [1966] SCR 162, 1966 CanLII 4 (SCC) issued Jan 25/66

( Alberta ) Heritage Capital Corp. v. Equitable Trust Co., [2016] 1 SCR 306, 2016 SCC 19 issued May 6 2016

The British House of Lords now Ct of Appeal

Rhone et al v Stephens [1994] 2 All ER 65, [1994] 2 AC 310, [1994] UKHL 3 House of Lords March 17 1994
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Historic Court of Appeal Hearing : Positive Covenant Rule under attack 2017/05/02 21:43  
Ontario's Court of Appeal has concluded Hearings triggered by a controversial 2016 Divisional Court attack on the 130 year old Positive Covenant Rule.

Whatever the resulting outcome, ONCA's eventual decision may ultimately attract attention not only from other Provinces.

But from England, Wales & other parts of the Commonwealth that apply such Rule.

Without widely recommended preliminary legislation, the judicial attack had been induced by a Toronto area Building Scheme seeking to enforce a 130 year old perpetuity.

The Divisional Court decision had the judicial verve to ignore the House of Lords (1994), several current period prior ONCA decisions ( 2002 & 2005), and a specific warning of an Ontario Law Reform Commission of 1989.

( It appears in some ways to challenge several treatments of the issue in Canada's Supreme Court itself. )

The 1989 Law Reform warning had been to leave the issue to LEGISLATIVE DECISION.

As has also been warned in certain other jurisdictions, such warning recognized the import of the Rule in commercial property law FAR OUTSIDE claims by residential Building Schemes.


1- American observers might see familiarity with the voodoo pursuits of external neighbours under "implied authority" claims. The Positive Covenant Rule is NOT American state law.

Here's a famous one : Dreamland v Raimey 2010.

2- A well-known real property legal commenter has recently well presented the Building Scheme's position in the Toronto struggle.
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VICTORY for property & civil rights : ONCA strikes down bizarre attack on Positive Covenant Rule 2017/07/01 17:17  
The absolutely correct decision by Ontario's Court of Appeal.

What it overturns would bizarrely tie endless generations of offsite properties - arguably the winners' home here as well as now-broken ‘predecessor promise on title’ chains of genuine Building Scheme owners - into perpetuities whose burdens were neither passed to nor accepted by transferees.

Building Scheme owners like myself have “Unjust Enrichment” judicial remedies where genuine benefits & services are un-contributed by Free Rider enjoyers. NOT the case here.

A HUGE victory for property & civil rights, and one which Ontario's 1989 Covenants Law Reform Commission said should be left ONLY to legislators to set aside ( if at all ). House of Lords 1994 ( Rhone v Stephens ) said the same about its Rule.

NOT left to voodoo.

Thank you Court of Appeal.

Black v. Owen, 2017 ONCA 397 issued May 18/17

2 - Backgrounder :

Building Scheme developers frequently were able to sever & sell offsite properties NOT included within the group Scheme itself.

One example is direct lakefrontage where - for example - the discrete 'free-standings' allowed quick income for developers without the potential for their separate buyers being subjected potentially to later wild group shenanigans / misgovernance etc in whatever form of shared ownership nearby. The "nearbys' could be backlots like my own current & previous Building Schemes, and might share elaborate amenities like giant common waterfrontage.

Ontario courts have struck down a number of modern day oppressive attacks by shared ownership groups attacking totally free properties outside their legitimate group borders. Those wild west attacks may not be limited to merely against the offsite neighbours.

It may take a trip to the Court of Appeal to get Ontario justice where a Building Scheme or group sets a target illegally. There is a disturbing modern scenario where lower courts - even the Divisional Court as overthrown here - may lack the skillsets to understand the legal framework ( ! ! ) of pre-condo Building Schemes.

3 - Shockingly PRIOR to Divisional Court, a Deputy Judge in Small Claims Court had got things correct about the Wychwood voodoo claims , was next disparagingly overriden in Divisional Court . But his wise decision has been totally sustained & restored in Ontario's highest provincial court.

HERE in west central Toronto, the home of Mr Owen & Ms Anderson does NOT front on nor use any Wychwood Park services nor its private roads.

Nor did they contract on change of property title, to accept burdens to pay, comply, pass along.

Predecessors who tolerantly may have done so, may have been influenced by the misplaced rural phenomenon of "Tolerant Neighbourliness" which I keep seeing around here . . . . .

( Contextual : ONCA's de-construction of the documents suggest there had NEVER ever been a downstream chain of pay/comply/pass along promises on individual property titles ! IF SO the same principles had been applied in Berry v Indian Park & Brennan v Dole, at least the first of which involved outrageous targetting of offsite neighbours. And also if so, the Wychwood Trust may really be a perpetuity . )

4 - Not everyone agrees with the above outcome. Certainly not those Building Schemes if they have been violating the Positive Covenant Rule in place since 1885 :

July 1/17 ToStar Bob Aaron LLB “Ontario court rules homeowners are not obligated to pay park maintenance fees. This ruling means many associations will lack the power to enforce payments, Bob Aaron writes” pay-park-maintenance-fees.html
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whether keeping out of the light of day ? ? 2017/07/30 01:13  
At July 29 2017 The comments about this adjudication as posted here, appear to have been surreptitiously screened out of retrieval using Google Search Engine.

One can only conclude those comments were NOT appreciated by the west Toronto Trust whose bizarre decade-long $4,000 /year fee claims against the offsite neighbouring home involved, were struck down in May 2017 as UNLAWFUL by the Ontario Court of Appeal

Trustees : Just look in the mirror if you want to see your problem.

It ain't what gets described here. Nor the way it's described . . .

Is this where your ethics & skillsets will take your community ? :

Feb 11/13 Consumerist “How A Homeowners Association Went Bankrupt Because Of One Obama Yard Sign” yard-sign/

. . . Back in 2008, a couple in Olde Fairhaven, Virginia put up a sign in their lawn showing their support for a presidential candidate. This simple action led to a feud that has raged for years and cost the neighborhood homeowners association hundreds of thousands of dollars. Now the HOA is broke, and the central “town square” that turns a clump of townhouses into something resembling a community is up for sale.
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Ontario's BLACK v OWEN is cited in BC judgment upholding the Positive Covenant Rule 2017/08/10 00:12  
Less than 3 months after the property & civil rights victory in Black v Owen, that Ontario appeal judgment is cited authoritatively by B.C. Supreme Court in a strata v strata war. ( 2 separate entity strata within "Scottsdale Village" in Surrey B.C. )

Thus Black v Owen 2017 has quickly been picked up in B.C. and effectively applied, whether or not everyone agrees with the results.

How about the legal skillsets when these stratas ( plural stratae ? ) were created ?

Disputed - and totally upheld - is the decision by one strata corp after 20 years to now totally withdraw from both benefits & financial burdens of a developer's shared facility deal with the Planning Approvers. That deal was registered onto land titles long before either strata had been created. The Planning Approver was privy/has standing to seek enforcement, but understandably is not getting involved in this nor other mishigas . . .

The disputant strata were not even in existence when the cross benefits & burdens were promised by the strata developer they shared. The B.C. court construes the Developer/ Approver document to predate the existence of the litigants.

Given that the 1885 Austerberry Positive Covenant Rule had LONG LONG been mainstream property law , gotta ask about the skillsets that merely relied on the Developer / Approver deal (described as an "easement" here ) without immediately committing each strata within the then-brand new Declarations . . . .

Bottom Line now : The court rules neither strata was privy to - nor bound by - the attempt to use some covenant in an "easement" to do an end run around the Positive Covenant Rule (1885).

Further, as held before - including ONCA, Canada's Supreme Court, and the House of Lords - the B.C court wrote that overturning such is a matter for the B.C. LEGISLATURE, not for some voodoo law-breakers nor XXXXX.

The Owners, Strata Plan NWS 3457 v The Owners, Strata Plan LMS 1425, 2017 BCSC 1346 issued Aug 2/17
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