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INTERESTS IN LAND - Restrictive covenants - Modification and discharge

Monday, June 07, 2021 @ 9:26 AM  

Lexis Advance® Quicklaw®
Appeal by New Casa Holdings from dismissal of an application to remove a restrictive covenant. The appellant owned residential land located in a Calgary neighbourhood. In 1912, a restrictive covenant provided that only one house could be constructed on the lands, and that a setback of 25 feet from the street was required for construction. Subsequently, redevelopment, consolidation and resubdivision resulted in the restrictive covenant being registered against seven mineral leases and 11 fee simple titles, including the lot owned by the appellant, and the lands owned by the respondents. In 2018, the appellant obtained municipal approval to subdivide its land into two lots. The proposed development contravened the restrictive covenant’s density requirement. The appellant accordingly applied for its discharge. A master granted the application. The Court of Queen’s Bench allowed an appeal from the master’s decision and refused discharge. New Casa appealed to the Court of Appeal.

HELD: Appeal dismissed. The chambers judge did not err in concluding that the restrictive covenant was a valid building scheme, as the land was easily ascertainable by reference to the subdivision plan with respect to lands covered by certificates of title. The restrictive covenant was registered by way of caveat, the prescribed form of which required the caveator to refer to the certificates of title. The authorities did not prohibit reference to the certificates in order to ascertain the land. The chambers judge appropriately found that consolidation and resubdivision did not make identification of the lots subject to the restrictive covenant uncertain. The interpretation with reference to the certificates accorded with the underlying intent and purpose of the restrictive covenant in regulating development density and maintaining uniformity of development in the area.

New Casa Holdings Ltd. v. Reference Re: Instrument 213AT, [2021] A.J. No. 507, Alberta Court of Appeal, P.A. Rowbotham, F.L. Schutz and D. Pentelechuk JJ.A., April 14, 2021. Digest No. TLD-June72021002