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INTERESTS IN LAND - Restrictive covenants - Enforcement

Wednesday, April 04, 2018 @ 5:23 AM  


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Appeal by the defendants from trial judgment finding them liable for breach of a restrictive covenant and nuisance. Cross-appeal by the plaintiff from the damages awarded and the refusal to grant injunctive relief for nuisance. The restrictive covenant required that owners of strata lots 4 and 5 wishing to commence construction of a single family residence had to first submit the plans and specifications of the dwelling house for the written approval of the registered owners of strata lots 1, 2 and 3. In 2013, the respondent purchased a home located on strata lot 3. At that time, her home had unobstructed views of the valley, ocean and mountains from its main and second floors. In 2015, the appellants purchased strata lot 5. They planned to build a house on their lot. They were aware of the restrictive covenant when they purchased the lot but commenced construction of their house without the written approval of the respondent. When the house was completed, it became evident that the metal roof caused a strong glare inside the east-facing rooms of the respondent’s house on sunny days. A qualified real estate appraiser inspected the house and found the glare from the roof to be very unpleasant. He found the loss in value to the respondent’s property resulting from a combination of the height of the appellants’ home and glare from the roof to be $153,000, representing a loss on the order of 15 per cent of its market value of $1,020,000. The respondent claimed the appellants had breached the restrictive covenant and that the glare from the roof created a nuisance. The judge rejected the respondents’ argument that the restrictive covenant was invalid and enforceable. She concluded that the damages resulting from the breach of the restrictive covenant had to be assessed from the perspective of the loss of value from the loss of the view, and not, as the respondent’s appraiser had proposed, from the loss of value from the loss of view and the negative external influence of the glare from the roof. The judge estimated the loss to be 10 per cent of $1,020,000 or $102,000. The judge was satisfied that the elements of a claim in nuisance had been made out and awarded the respondents $7,500 in general damages.

HELD: Appeal and cross-appeal dismissed. The trial judge did not err in inferring from the terms of the covenant that the intention was to preserve views. On the plain and unambiguous wording of the modified covenant, the respondent had to approve the plans and specifications before the appellants constructed their dwelling house. The judge’s assessment of the loss in market value of the respondent’s home from the construction of the appellants’ home was not unfair or otherwise erroneous. The value of the respondent’s home had been significantly impaired by the loss of view. Since the appellants were never prepared to consider any changes to the design of their home, no other assessment would adequately compensate the respondent for their breach, the construction of the dwelling house without approval. The judge did not err in assessing damages for breach of the restrictive covenant by effectively re-calculating the measure of damages assessed by the expert evidence by separating the total impact of the wrongful construction on the value of her home. The judge’s assessments of damages were factual findings to which deference was owed. The respondent had not demonstrated any error sufficient to justify disturbing them. The judge was correct to reject the application for an injunction as the order suggested by the respondent was so vague as to be unenforceable and would invariably lead to further litigation.

Zhang v. Davies, [2018] B.C.J. No. 469, British Columbia Court of Appeal, M.V. Newbury, P.A. Kirkpatrick and B. Fisher JJ.A., March 16, 2018. Digest No. TLD-April22018004