( Not legal advice. Some Ontario condominium corporations may have some reliance - including externally - on "restrictive covenants". )

There has arrived a judicial step back in time to clearer see reasons why investors & lenders urged the passage of modern condominium & strata law environments.

One reason was that newly evolving Condominium/strata models transform Building Scheme communities ( a.k.a. "general schemes of development" or "general plans of development" ) into creatures of statute that do not expire on their own ie NOT like Cinderella's coach becoming a pumpkin at midnight. There were other reasons including governance powers.

The expiry ( of restrictive covenants mutually gluing such communities together ) by MRTA 'marketable record title' provisions, has conversely also been a valuable development tool & arguably protects owner rights with legislative roots back to 1929-30. What's widely called MRTA in the U.S. - once labelled "extinguishment by operation of the recording acts" in Ontario - arguably helps lessen the confusion & entanglements of decades of prohibitions no longer beneficial.

Pairs or small groups of properties might today still have covenanted obligations on titles without reaching as far as the "mutuality" criteria of a genuine Building Scheme ( Keen folks can check EWCA 2016 ). But THAT these expire in Ontario is widely unknown to many typical Ontario property buyers . . .

Andrews v Rago 2019 ONSC 800

After adjacency relationships soured between longtime owners of ( what lawyer Peter Spiro writes are adjacent Downsview area ) residential lots, Servient Tenement property owner Andrews applies for & wins :

- already from L.T.O. an “ex parte” deletion of parts or all of unlimited age covenant on property titles of adjacent owners. For 40 years such burdened a three foot wide sideboundary strip of Andrews’ property along full depth of sideline common to the challenger RAGOs ; and

- here at ONSC successful ratification by ONSC of the covenant deletion order at L.T.O. already granted but presumably challenged by neighbouring former Dominanter property owners Rago . They fail with tiresome argument that covenant had been a perpetuity expressed without end date.

In 2006 the challenged burdens within expiry-silent 1966 restrictive covenant expired at end of FORTY YEARS by operation of Ontario’s L.T.A. . ( Land Titles Act RSO 1990 c L.5 http://canlii.ca/t/536f9 )

Parties expecting the covenant to last perpetually, blissfully left the duration “indefinite”. Or maybe failed to grasp the forty year expiry clock ticking away.

( Why some surprise ? For practical purposes in Ontario these longtime provisions probably and superficially suggested to most readers and even conveyancers, that the DEFAULT maximum lifespan for covenants on most Ontario land titles is forty years.

For years I myself was happy to believe that that LTA's subsection 119(9)meant that the a restrictive covenant's MAXIMUM LIFESPAN was FORTY ( 40 ) YEARS. That's 40 regardless of anything entrenched within a restrictive covenant such as what's on my own titles.

BUT central to Andrews v Rago 2019 are documents with an indefinite duration. Thus the judge's "obiter dictum" is technically a mere sideline comment that GREATER THAN 40 YEARS could be upheld within corresponding covenants if expressly provided ! )

For some "long mature" Building Scheme residential communities, any expiry issues may no longer matter much. That's of course unless - for example - there arise disputes about non-residential uses, so-called 'monster-homing' or lot-splitting severance proposals . . .

Numbers are uncertain, but I suspect few Ontario covenants might be found literally expressing 41 or more years duration.

Bottom Line :

In ignorance of the long-standing MRT marketable record title expiry L.T.A. subsections 119 (8) & (9), those who drafted, bought or sold these things decades ago likely MIGHT HAVE figured that a covenant without an expressed duration, would last forever. ie Guessed that “no expressed limit” means “will last forever” ! BUT . . .

Andrews v Rago 2019 clarifies for a modern age that such was an incorrect guess.

Andrews v Rago 2019 ONSC 800 issued Feb 22/19 http://canlii.ca/t/hxq2g

( Addendum August 5/19 : Ontario's civil courts have arguably evolved a "special case exemption" in certain specific circumstances from the potential harshness of the otherwise commendable MRT marketable record title environment. SEE : application of Ontario Registry Act's Section 113(5) a iv. Such is briefly discussed at Cafcor General Topic "Muskoka RIVERFRONT COTTAGE ROAD WAR revives past struggle against UNLAWFUL SHUTDOWN"
https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18979&catid=2 )

Sooner or later, respectfully, an ostrich response gets regretted. Owners associations, respectfully, are notoriously vulnerable to this.

IF - IF - there is an ongoing value to re-vitalizing a restrictive covenant - or mutualized cross covenants affecting MANY DIFFERENT parcels of real property - then respectfully one thing's risky. Or even foolish.

That's for an organization or individual to hope no one notices the ( upcoming ) expiration(s) at all.

Or "let's just wait to see if it becomes a big deal".

Several problems include that the future day of discovery may arrive amidst urgency for someone to sell. ( eg : "Your property is now landlocked because the right of way on adjacent titles have expired ! or "You will have to buy a renewal if you even can persuade such out of the neighbours or co-owners . . ." )

Or amidst some sort of bitter & wider disputes where getting win-win ain't easy any more.

A good start is knowledge. "The hole in the roofing won't heal itself". There will have to be some sort of fix that cheap-skating only postpones and may even worsen . . .

Again not legal advice.

( addendum shock below : Feb 19/20 costs award )

In a Toronto civil court a 43 YEAR OLD pair of reciprocal mutual drive full easements on titles to a pair of adjacent residences, have survived a challenge.

Or at least have survived the FORTY YEAR EXPIRY LAW in place for many decades arguably as to "restrictive covenants" & full easements even if not to the same severity. Both those types of title rights appear to be cousins historically classed as forms of "incorporeal hereditaments". The Ontario staledating scenario is arguably one of "marketable record title" ( more a U.S. term ) a.k.a in 1989 "extinguishment by operation of the recording acts" ) in Ontario. It's arguably harsher to mere "restrictive covenants" than full "easements".

The 40 year limit is defensible to clean up title debris and encourage owners of properties sharing the benefits & burdens, to periodically play fair with each other if they want the non-ownership benefits to continue. It's like house-cleaning.

BUT HERE in ignoring the legislated 40 year expiry or a least vulnerability enacted in section 119(9) of Ontario's Land Titles Act R.S.O. 1990 c L.5 http://canlii.ca/t/53nl4 , the ruling at least suggests a discomfort with ending a longtime convenience albeit one with disproportionate benefits & burdens.

Unfortunately in totally ignoring how the Legislature for decades has chosen to address perpetuity aspects - as well as Andrews v Rago 2019 ONSC 800 issued 10 months earlier - this latest decision raises some questions.

With its 2019 urban defender not even landlocked ( eg unlike for example the Ramsay group waterfront cottagers under obstructions ), why - in override of expiry provision of the Land Titles Act 1990 - here should the pair of 1976 reciprocal registered easements survive statutory expiry in 2016 ?

But not instead get swept away as in Alexander v Rago 2019 where the mere covenanted restrictions died but an accompanying right of way easement was neither attacked nor declared dead ?

AND how much scope should a judge have to override statutory “expiration by recording statutes ” ? ( eg "vesting order" to "rectify" ( ? ) from section 100 of Ontario’s Courts of Justice Act R.S.O. 1990 c C 43 http://canlii.ca/t/53lrq ).

Can an otherwise expired or extinguished restrictive covenant - or even a full easement as this latest judgment addresses - somehow be capable of judicial "rectification" ?

A similar question could be asked about this decision's reference to Ontario's Land Titles Act R.S.O. 1990 c L.5 http://canlii.ca/t/53nl4 , specifically a judicial process to "rectify" ownership as expressed in the title record ( sections 159 & 160 ) .

Yes, subsequent buyers DID BUY INTO into those "property title rectification" powers being available in the judicial toolbox.

But didn't they also buy into what might turn out to be a disproportionate burden/benefit as to their purchase, reasonably expected to eventually expire as legislated by elected officials for decades ? Or to become vulnerable to later 'good faith buyers for value' ? Or to need to be re-negotiated for a new payment ?

One bottom line takeaway : Respectfully if some sort of non-condo covenant or a full easement is an IMPORTANT component of benefits or protections expected out of a property, better do your homework well.

Some "claims" including full easements are believed to have NOT survived the + decade of conversion or forced 'migration' of many older registry ownerships into the Land Titles environment.

Whatever, such might affect many condo, strata etc. property titles ( eg at past CAFCOR topics some registered non-condo utility covenants to cross land technically NOT the beneficiary's common elements. Some facility-sharing platforms ? ).

Good idea to expect some surprises & eventually need competent professional legal advice.

Le Marchant v. Grunwald, 2019 ONSC 7513 issued Dec 27/19 http://canlii.ca/t/j497g

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ADDENDUM Feb 25/20 :

Le Marchant v. Grunwald, 2020 ONSC 1002 issued Feb 19/20 http://canlii.ca/t/j5d05 has later awarded $ 66 K as ‘partial indemnity’ of winning easement asserter Ms Grunwald’s $ 97.5 K all inclusive declared ‘substantial’ legal costs & disbursements ! !

A gobsmacking penalty – unless appealed - for a neighbour v neighbour dispute over a couple of feet & arguably arcane rights by title.

Ontario's civil justice system looks loathe to strike down ( what appear to be ) "non-revitalized" easements even for NON-landlocked dominant tenement claimants. And far less so for mere "restrictive covenants", thank the gods.


another ADDENDUM July 7/20 :

ONCA Ontario's Court of Appeal upholds Justice Perell's victory for easement-asserter Ms Grunwald. ONCA awards her another $20 K all inclusive. It's been a bath in the red for all the litigants. See how much cheaper & simpler it usually is to live in the world of condominium law rather than the wilder older universe of covenants & easements ?

Grunwald v Le Marchant 2020 ONCA 442 issued July 7/20 http://canlii.ca/t/j8j4t )

NOT legal advice, as usual. Continuing a series showing generally how simpler are condominium or strata declarations wars . . .

Sun is shining . . . . Sky is as blue as the lake . . . lawyers are shrieking . . .

Just when one began to accept that after 40 years a non-revitalized indefinite easement right - somehow not on ( converted ) land title for example - would at least loose priority to a good faith buyer for value ( of the servient property ). . .

2020 ONSC court order strikes down CHESLEY LAKEfront servient tenement owner XXX's years of HELD-progressive deliberate physical obstructions of a mere 20 foot wide easement on her lakefront’s sideline.

( All properties involved are close to northeast side of small lake within Bruce Peninsula east of Lake Huron. Community is described online by Lake Assn as 350 sets of owners at a mere 500 acre interior lake 2 Km long between Owen Sound & Southampton ).

All properties are laconically said originally to have had corresponding easement tenements on titles, but one claimant’s most recent deed is cited to have “lost” ( ! ) such by conveyance oversight ( ! ) but is redeemed by ultra-brief 20 year prescriptive analysis ).

Judge purports to actually declare “PERPETUITY” of dominant rights onto corresponding rear-lotters' land titles as part of remedial Orders worked out by both counsels. . . . .

Schott et al v Malfara (2020) ONSC 3411 issued June 1/20 http://canlii.ca/t/j7zvj


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UPDATE FEB 23/21 : another round of litigation between these same adversaries, reminds how tough it may be for individuals even with counsel to enforce easements & mere restrictive covenants. One suspects that in the easement-war universe courts may lose patience with sloppy evidence-gathering.

Note also, dear neighbours, that this disputed lake access APPEARS TO HAVE ZERO ‘ SHARED USAGE’ aspect; the alleged obstructor herself IS NOT using the disputed sideline strip of land.

In 2020 rearlotters won perpetuity status & injunction –backed status - also specifically to run with titles - against substantial interference but expressed ONLY where such are provably by the current servienter herself !

Forced to revisit the dispute after alleged partial defiance by the servient-obstructor, in 2021 same judge arguably now puts steeper hurdles against proving such by arguably incomplete evidence this time around.

Claimant ( dominanant easement ) rearlotters also have been unable to get agreement on a formal maintenance Agreement with servient obstructor.

They themselves are now ordered to do the physical clearup on the right-of-way at their own expense after servient-obstructor arguably failed to meet 60 day deadline !

Feb 2021 : Schott et al v Malfara (2021) ONSC 1323 issued Feb 19/21 https://canlii.ca/t/jd9hn