Focus On

INTERESTS IN LAND - Restrictive covenants - General principles

Monday, August 26, 2019 @ 9:29 AM  


Lexis Advance® Quicklaw®
Appeal by the plaintiff Homeowners Association from a decision of the motions judge that determined restrictive covenants, which she found were not ambiguous, did not prohibit the rental of the defendant’s property. The plaintiff brought a proceeding against the defendant for a declaration that renting his property in the residential summer cottage subdivision breached applicable restrictive covenants. The parties co-operated to have the plaintiff bring a motion under Rule 21.01(1)(a) for a determination, before trial, of two questions of law, being whether renting of property in the subdivision was prohibited by the restrictive covenants and if not, what terms were applicable to renting of properties in the subdivision. There was no express provision in the restrictive covenants that said a property owner could not rent one’s residence.

HELD: Appeal allowed. The parties employed Rule 21.01(1)(a) for an impermissible purpose. Rather than answering a true question of law, the decisions made were based on an evaluation of the evidence and assessments of credibility. The motion should have been rejected without being heard because the determination was clearly beyond the scope of Rule 21.01(1)(a). The order was a nullity. The motion judge’s reasons did not consider applicable general principles of property law and equity and did not effectively take into account the particular prohibitions expressed in the declaration of covenants and restrictions that were under consideration. Proper construction of the declaration of covenants and restrictions involved a balanced assessment of the objectives of the covenants, the interests of the property owners and the plaintiff and the equities engaged in evaluation of the proscriptions against commercial use and public accommodation.

MacMillan Point Home Owners Association Inc. v. Jay, [2019] P.E.I.J. No. 49, Prince Edward Island Court of Appeal, D.H. Jenkins C.J.P.E.I., M.M. Murphy and J.K. Mitchell JJ.A., July 12, 2019. Digest No. TLD-August26019001