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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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