22/02/2019 – Jurisdiction Ontario
Part 67 published on 01/09/2019
Indefinite restrictive covenants expired after 40 years
The parties were neighbours. One of the two properties was subject to certain restrictive covenants (for the benefit of the other) applying to a three-foot strip of land located immediately adjacent to the boundary between the two properties. The restrictive covenants in question were indefinite (ie. were not subject to any time limit). The Court held that the restrictive covenants were subject to Section 119 (9) of the Land Titles Act and accordingly expired 40 years after their registration. The Court said:
(1) The restrictive covenants did not expressly contain a period or date fixed for their expiry; rather, they purported to be permanent or perpetual.
(2) In light of (1) above, the restrictive covenants fall within the scope of s. 119(9) of the Land Titles Act.
(3) As a result of (2) above, by operation of law and the passage of time, the restrictive covenants were deemed to have expired and ceased to have any legal force or effect on March 3, 2006, forty years after their registration.
(4) In light of (3) above, the deletion of the restrictive covenants by the land registrar was proper.
(5) The applicant is no longer bound by the restrictive covenants and the respondents no longer enjoy their benefits.
The Court also confirmed, however, that the neighbor still had the benefit of a right-of-way which had been registered in favour of the neighbor over the three-foot strip. The Court said:
(6) As a result, the only rights enjoyed by the respondents in relation to the three foot strip are a right-of-way for all purposes “in, over, along and upon” the three foot strip for the usual purposes associated with such a right, namely, ingress and egress. Those rights do not include the right to construct or alter improvements or conditions on the three foot strip, to park vehicles along the three foot strip or otherwise to interfere with the use of that portion of the applicant’s property.