02/11/2017 – Jurisdiction British Columbia
Part 60 published on 01/12/2017
Strata corporation not bound by positive covenants in easement agreement
The strata corporation (and/or its owners) had an easement over a separate parcel of land – a parkade – giving the corporation’s owners the right to park up to 183 cars in the parkade. The easement agreement also included a covenant that the owner of the strata property pay 80% of the parkade costs.
The easement agreement had been registered against the relevant lands, but before creation of the strata corporation. The strata corporation (and/or its owners) had never signed the easement agreement.
The strata corporation challenged the positive covenant, contained in the easement agreement, to contribute to the parkade costs.
The Court held that this covenant to pay towards the parkade costs, contained in the registered easement, was not binding upon the strata corporation, since this would run contrary to the long-standing law that positive covenants generally “don’t run with the land”. The Court said:
Nowhere does the Easement Agreement provide that the right to use the parkade is conditional upon the acceptance of the burden contained in the positive covenant that contemplates the cost-sharing of expenses to operate the parkade.
Editor’s Note: I find myself more and more bothered by the unfairness of such decisions respecting positive covenants. In our modern systems of land registration, I don’t see why a purchaser is not assumed to take the burden of covenants that clearly come hand-in-hand with a benefit (such as an easement) afforded to the purchaser, all clearly recorded on title. It is also my understanding of the law that – even assuming that the specific covenants are not enforceable – there are separate obligations upon the holder of an easement right to contribute towards the expenses to maintain and operate the servient tenement (the lands to which the easement applies), based upon his or her actual use of those servient tenement lands.