Restrictive Covenants Flashcards
What is a restrictive covenant?
An agreement to do something, or not, with one’s OWN land for the benefit of another
What is the difference between an easement and a restrictive covenant?
An easement is a right to do something with someone else’s land
A restrictive covenant is an agreement to do something with your own land, it is generally wider in scope than an easement.
Unlike easements, a restrictive covenant cannot be implied and can only be created expressly
Define covenantor and covenantee
Covenantor: the person who agrees to do/not do something with their land
Covenantee: person for whose benefit the covenant is made
Define burden of the covenant and the benefit of the covenent
Burden of the covenant: held by the covenantor - thing promised to do. runs with the land
benefit of the covenant: held by the covenantee - the outcome of the promise
Define burden of the covenant and the benefit of the covenent
Burden of the covenant: held by the covenantor and is what they agree to do/not do
Benefit of the covenant: held by the covenantee and is the benefit for which the burden is created
Define running the benefit/burden of the covenant
enforcing it for/against a successor-in-title
Are covenants allowed to run in the common law?
Historically no, and Canandian Courts have not officially changed the rules
There are complex rules that must be followed to allow a burden to run in equity
What are the requirements for allowing the burden of a restrictive covenant to run?
1) Notice is given to the successor (occurs in registration required by statute today) (Tulk)
2) the covenant is negative in substance (positive is too onerous a burden)
3) there must be a dominant and servient tenement (LCC v Allen)
4) the dominant tenement must be ascertainable from the deed (Sekretov)
5) covenant must touch and concern the dominant land - must relate to the use, and affect the value of private land (Nobel & Wolf)
Importance of Tulk?
(covenant on square garden)
Equity can allow courts to enforce a restrictive covenant on a successor-in-title when the successor has notice of the restriction
Importance of LCC v Allen?
(covenant to not build houses on a road)
Restrictive covenants must have a dominant tenement to be enforceable
Importance of Re Sekretov?
(Toronto land)
The dominant tenement must be clearly identified (‘ascertainable’) from the deed itself
Importance of Victoria University v Heritage Properties?
This was an application of Re Sekretov - the dominant tenement must be ascertainable
Importance of Galbraith?
(land to be acquired by club members only)
For a restrictive covenant to run, it must touch and concern the dominant tenement and must relate to the use of the land. Otherwise, it is not enforceable
Why is it important for there to be a way that allows burdens to run?
If burdens were never allowed to run, a landowner could not sell part of his land without incurring the risk of rendering what he retains worthless (Tulk)
