Part 21 published on 01/02/08
Restrictive covenant upheld
A restrictive covenant was registered in 1971 against a lot adjacent to the condominium property. Among other things, the restrictive covenant prohibited construction of structures beyond certain heights upon certain areas of the effected neighbouring lot.
The neighbour challenged the validity of the restrictive covenant.
The Court held that the restrictive covenant was valid and could properly “run with the land”, so as to be binding upon all owners, from time to time, of the neighbouring property.
One of the arguments advanced by the neighbouring owner was that the restrictive covenant was not valid because the land registrar failed to arrange for registration of a memorandum reflecting the restrictive covenant upon both the dominant and servient lands. The Court rejected this argument.