30/06/2017 – Jurisdiction British Columbia
Part 59 published on 01/09/2017
Positive covenants not binding on subsequent owner
The developer had registered two strata corporations on neighbouring lots (Lots A and B). Before the strata corporations were registered, the developer had registered an easement in favour of Lot A over Lot B, for the use of certain recreational facilities located on Lot B.
The easement also required the owners of Lots A and B to share in the cost of repairing and maintaining the recreational facilities. The costs were to be shared pro rata based on the number of strata lots on each of Lots A and B.
The strata corporations were subsequently registered and the Lot A strata corporation subsequently shared in the recreational facility costs for some 20 years. The Lot A strata corporation then “surrendered” its rights under the easement and stopped sharing in the costs. The question for the Court was whether or not the Lot A strata corporation was bound to continue contributing to the costs. The Court held that the Lot A corporation was not obligated to continue sharing in the costs because the sharing obligation amounted to a positive covenant that was not binding on the Lot A corporation. The Lot A strata corporation was not an original signatory to the cost-sharing agreement and the cost-sharing obligation did not “run with the land”.
