Building Scheme Restrictions #240

By Gerry Neely
B.A., LL.B.

There are hundreds, if not thousands, of homes in the province whose titles are subject to the restrictive covenants contained in the building schemes registered at the time the subdivisions were created.

An increasing number of cases deal with the enforcement of restrictive covenants, as some owners find them to be too restrictive and other owners with the benefit of the restrictive covenants find that they are being ignored.

How far will a court go to enforce a clear breach of an unambiguous restriction? That question arose in a case where one of the restrictive covenants contained in a building scheme created in the mid-1950s, was a prohibition against allowing trees or shrubs to exceed 20 feet in height.

An owner who had purchased his property in 1966 mainly for its panoramic view, was attempting to obtain an order that his neighbour trim four 60 to 70 foot high trees which interfered with his view. His intention, if the application succeeded, was to sue all of the other owners whose property contained trees impeding his view.

The neighbour, who had purchased in 1991 at a time when the excessive growth must have occurred over the preceding 20 years, refused to do so because of the expense.

The first issue raised by the neighbour was that it would be inequitable to enforce the restrictive covenant because of the owner's failure to take timely steps to enforce it over the many years the trees were growing. The judge accepted this argument, agreeing that the owner's inaction might have led subsequent purchasers of other lots to believe that the performance of the covenants had been waived, or that they were no longer enforceable.

The major defense, and the one most troubling to owners who would like to see restrictive covenants enforced, arises from the neighbour's assertion that if the owner was successful, the neighbour would be forced to spend money to cut the four trees.

The significance of this argument is that one of the characteristics of the restrictive covenants within a building scheme, is that if the covenants are to be enforced against subsequent purchasers from the first owners, they must be negative rather than positive.

Thus, a covenant in a building scheme that required an owner to build a fence would be unenforceable, either because it required the expenditure of money or the doing of some act. Instead, a covenant preventing an owner from building a fence, or a fence above a certain height, is a negative covenant which could be enforced.

In this case the restriction was clearly a negative covenant, namely, not to allow trees to grow beyond 20 feet. Enforcing it, however, would require the expenditure of money, a positive act.

The judge resolved this dilemma by saying that what was initially a negative covenant became a positive covenant, when the earlier owners entitled to enforce the covenant, did not do so when the trees on the neighbour's property began to exceed 20 feet in height.

The comments made by the judge suggested that the only way in which the original purchasers could have complied with the restrictive covenant without expending money, was to plant trees that would not grow beyond 20 feet.¹

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That comment is inconsistent with an earlier British Columbia decision where an owner tried to enforce a similar restrictive covenant intended to protect views. The owner sought an order that a very large tree that was on the neighbour's property, at the time of the creation of the building scheme, be removed.

The judge hearing this case decided that the restrictive covenant would not apply to an existing tree. He went on to say, however, that either neighbour would be in breach of the restrictive covenant, if trees or shrubs planted by them grew to obstruct the views of other owners in the subdivision. No mention was made in this decision of the cost to the property owner of trimming or cutting such trees.²

The lesson of the first decision is that owners in a building scheme must be vigilant in enforcing restrictive covenants, and that purchasers of property subject to building scheme restrictions, cannot assume that they will have the benefit of them.

	1.	Cloutier v. Ball, S.C.B.C., New Westminster Registry #207314, June 9, 1995.
	2.	Purdy v. Kneip, (1975), 3 W.W.R., 573.

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