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INTERESTS IN LAND - Restrictive covenants - Enforcement

Friday, October 11, 2019 @ 6:16 AM  


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Action by the Blackburne Creek Homeowners Association to enforce a restrictive covenant by means of a mandatory injunction against the defendants. The defendants were three adjoining neighbours in Blackburne Creek. Their homes were subject to the Blackburne Creek Restrictive Covenant Caveat registered on title. Prior to 2013, each home had wood pine roofing materials. By 2013, the lifecycle of the wood pine roofing materials was reaching its end. The relevant clause in the restrictive covenant was that “All roofs were to be wood shakes or shingles only.” The president of the Homeowners Association noticed that the defendants had new synthetic rubber roofing materials delivered to their homes. The Homeowners Association notified the defendants that the synthetic rubber roofing materials did not comply with the restrictive covenant. The defendants disregarded that notice and installed the synthetic rubber materials on their roofs. The Homeowners Association sought to have the defendants replace their synthetic materials with wood roofing materials. The Homeowners Association argued that the word “or” in the restrictive covenant was inclusive and that the adjective “wood” modified the noun “shakes” and also modified the noun “shingles,” with the result that roofs had to be made from wood shakes or wood shingles. The defendants took the position that the word “or” was disjunctive and, as a result, shakes had to be made from wood, but shingles did not have to be made from wood. They also submitted that the restrictive covenant was not negative or restrictive and therefore not enforceable. Furthermore, the defendants took the position that enforcement could not occur because the restrictive covenant was ambiguous and because the Homeowners Association was not enforcing the restrictive covenant uniformly.

HELD: Action allowed. The correct interpretation of the clause “All roofs were to be wood shakes or shingles only” was that the word “or” was used conjunctively and the words “shake” and “shingle” were used interchangeably. As a result, the defendants’ synthetic rubber roofing materials were prohibited under the restrictive covenant. The restrictive covenant was restrictive and enforceable. The design guidelines were not ambiguous. The Homeowners Association was not being vexatious in seeking to enforce the restrictive covenant against the defendants. The restrictive covenant had not become unenforceable through other alleged breaches or lack of enforcement. In the circumstances, a mandatory injunction was a fair and appropriate remedy.

Blackburne Creek Homeowners Assn. v. Burt, [2019] A.J. No. 1055, Alberta Court of Queen's Bench, M. Kraus J., August 8, 2019. TLD-October72019012