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Owner’s SHED beats DECLARANT’s review; ruled open-ended ambiguity even killed 'Building Scheme' 2020/11/30 12:26  
NOT legal advice, as usual. ( non-condo but applies to the interpretation of restrictive covenants on Ontario subdivision property titles )

Whether the NON-CONDO restrictive covenants on titles to a 20 lot rural subdivision were here worded so vulnerable to Declarant arbitrary over-ride - even to potentially whimsical unilateral amendment - that overall Building Scheme status itself was invalidated and/or never created ? Answer : such in 2019 was ruled in lower court during this struggle to enforce a disputed Developer Review Covenant. !

In 2019 at ONSC Ontario Superior Court & recently on appeal to ONCA Ontario's Court of Appeal, Declarant developer LONE OAK PROPERTIES Ltd. loses a shed approval war. Lone Oak fails to obtain a court order for demolition or downsizing of rootdeed buyer Baillies' recent free-standing SHED.

Lone Oak's losses occur amidst expiry of express 20 year duration ( Building Scheme ) covenants on legal titles at Lone Oak's 20 lot rural subdivision about 90 Km north of London Ontario.

In 2019 ONSC rejected developer LONE OAK’s Application to order the dismantling of ( private lot ) rootdeed buyer Baillies’ new shed complained larger than what had been "tolerated" amidst casual informality even during foundation pouring etc.

So "informal" had been the covenant compliancing dialogues, that apparently nobody bothered with documenting any formal review.

That's except the municipal planning authority which had merrily approved the disputed shed dimensions ( after municipal servicing eventually arrived sufficient to obviate stricter site-coverage limits. Arguably few permit-issuers see their job as enforcing private restrictive covenants, even if they had the skillsets to understand & do so anyway. )

Shed wars and architectural approval fights in American shared ownership communities are reported to frequently reach hysteria levels.

The floorplate dimensions of the respondent Baillies' SHED here - 60 ft by 30 ft - exceeded even the developer's personal shed. In the final years of the Covenants' title-expressed 20 year duration, that this dispute reached this far dares to hint at deep-seated psychological undercurrents. Or even p * * * s envy ?

Anyway in 2019 at ONSC, arbitrary vagueness of covenant & application were cited as a parallel to the ambiguity ruled unenforceable in the landmark 1973 ONCA Sekretov v City of Toronto decision ( allowable easement uses deferred casually to whatever uses future municipal City by-lawers might whimsically ever decide ! )

Right upfront : did Atwood subdivision titles ever validly create a genuine Building Scheme compliant with 140 years of mostly English & Welsh jurisprudence ?

One looks in vain for such analysis. BUT ONSC in 2019 - without any express direct analysis - appeared to recognize the Atwood subdivision covenants as otherwise purporting to create an otherwise conventional cross-covenanted ”Building Scheme”.

Consistently with such finding ONSC pointedly also cited genuine Building Scheme enforcement in the Kings Landing roofdeck & flagpole war in Ottawa ( see cafcor topic )

As to covenant-killing consequences of enough ambiguity or whimsical discretion, ONSC cited landmark 1949-50 Beach of Pines ( bigotry clauses on cottage subdivision titles ) & Sekretov above from Hogtown .

Biggy ONSC dictum in 2019 :

that Restrictive Covenants' open-ended arbitrary over-rides & unilateral modification power ( reserved to Declarant discretion ) can even be held to invalidate the entire Building Scheme itself as an enforceable entity on titles ! : ( ie : including review power being unenforceable for appearance of haphazard arbitrary vetting . )

There's little of the depth & sophistication of some discussions in the late Mr Justice W.E. Middleton's brilliant Ontario work a century ago. Nor as in some of the English & Welsh Court of Appeal in a landmark modern pronouncement.

( Suffice it to respectfully put forth that unless set up by a statutory model like B.C.'s, any genuine cross-covenanting attempt upfront requires that root deed buyers know with certainty what they are cross-covenanting and with whom ? ( And of course as to which real property ? ) In 1950 for example how was anyone to sort out White Gentiles Only ? Or in 1960 which Georgian Bay islands were attempted covenanted 80 years earlier ? Or in 1973 what's on the horizon from Toronto's By-law department ? Or which properties were allegedly covenanted in a certain 1908-1914 Buckinghamshire subdivision venue with myriad incomplete or contradictory maps sloppily incorporated into original purchase agreements ?

THUS : could rootdeed buyers here credibly be held to have bindingly cross-covenanted that the Declarant's discretion can overwrite what they purportedly agreed to ( with each other via the typical proxy-style Declarant conveyancing process ) ?

( disclaimer : My own 1980's Building Scheme DID cross-covenant a Declarant design review principle - apparently never formally applied - but not a discretionary total covenant over-ride power for such Declarant. These cross-covenants on title here are incidentally about to expire "by operation of recording statutes" ( or MRTA )without most other owners ever hearing the term "Building Scheme" ) ! The covenant-cited Declarant review process therein may have been merely a cosmetic reassurance to rootdeed buyers. )

Anyway ONCA in 2020 peremptorily refused to repudiate the 2019 dictum about the Atwood shed war. ONCA briskly slams the door shut after correcting the 2019 ONSC cost award won by the shed-owners. ( This hints at Ontario jurisprudence once more in a somewhat grey area before brilliant judicial superstar W.E. Middleton's 1913 Lorne Park decision ( including using English & U.S. precedents to resolve what was or was not a common element or common amenity component. )

ATWOOD'S SHED WAR : Maybe a much bigger decision than it looks.

Lone Oak v. Baillie 2019 ONSC 4667

largely upheld by ONCA in Lone Oak v. Baillie 2020 ONCA 614
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Owner’s SHED beats DECLARANT’s review covenant ; open-ended ambiguity held killed Building Scheme 2020/12/01 11:39  
Not legal advice as usual.

A Toronto lawyer's blog has reviewed the outcomes.

Oct 5/20 “Ontario Court of Appeal Declines to Enforce “Building Scheme” Restrictions" by lawyer James Cook ( partner - Gardiner Roberts LLP ) C2%AC%C3%85%E2%80%9CBuilding-Scheme%C3%83%C2%A2%C3%A2%E2%80%9A%C2%AC%C3%AF%C2%BF%C2%BD-Restrictions- 120?utm_source=Mondaq&utm_medium=syndication&utm_campaig#
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Supreme Court REFUSES TO HEAR Lone Oak's appeal ( shed-vetting KILLED attempted Building Scheme ) 2021/04/30 19:04  
Not legal advice, as usual.

Yesterday the "gate-keepers" at Canada's topcourt issued a simple outright refusal to even hear the "last gasp" appeal by the Declarant of the Atwood ( attempted ) Building Scheme.

Declarant LONE OAK's attempt to enforce what was construed in the lower courts as vague & ambiguous, had taken some hard APPEAL - DISCOURAGING hits in ONCA Ontario's Court of Appeal :

( ". . .[7] . . . .there is no issue of public or constitutional importance (see: Borowski v. Canada, 1989 CanLII 123 (SCC), [1989]1 S.C.R. 342 at para. 39). " - unquote

Given the backlog of Criminal Code appeals pending & amidst "gate-keeping" said to typically bar more than 92 % of S.C.C. Applications, the latest hard hit is not that surprising.

The rationales in the lower courts arguably broke no new ground. Although Covenant & Building Scheme disputes may readily be "eccentric" or idiosyncratic - lots of unique and/or uncertain factuals etc - a 1911 House of Lords decision still looms large over enforcing ambiguity.

So too does the landmark S.C.C. decision in its not-famous-enough ( WHITE GENTILES ONLY ) Beach o' Pines decision 70 years ago, ( although "WHICH ? " rationale may be controversial ).

FWIW & respectfully : ambiguous wordings and/or whimsical "vetting" arguably encourage unfairness, flummox judicial review and should be discouraged. They play into imbalances of power. Incompetents love them.

Bottom line :

the Atwood shed war will NOT be joining ( at the Supreme Court of Canada ) the sparse modern ranks of wars from the shared ownership universes ( like Winnipeg CC # 36 v Bird Construction nor the Montreal balcony succaths / "religious sincerity" . . . )

( eg C.M. Callow Inc. v. Zollinger et al , 2020 SCC 45 issued Dec 18/20

Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29 issued Oct 23 /20 ( CRYSTAL SHARED FACILITY WAR” )

balcony succahs : Syndicat Northcrest v. Amselem, 2004 SCC 47

Winnipeg C.C. # 36 v BIRD Construction 1995 1 SCR 85

Less recent : Beach of Pines ( Noble et al. v. Alley, 1950 CanLII 13 (SCC), [1951] SCR 64 ) - more whacky Building Scheme stuff of an especially dark nature albeit contrary to a prior Toronto area outcome that struck down a new subdivision's bigotry clause )

Galbraith v Madawaska Club Ltd 1961 SCR 639 issued June 26 1961 )

* *

SCC file # 39345 : Lone Oak v. Baillie 2021 canlii 34997 ( SCC )
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