Restrictive Covenants #197

By Gerry Neely
B.A., LL.B

The Land Title Act allows a developer who subdivides a parcel of land into lots to register a statutory building scheme which will be binding upon all purchasers and subsequent owners. The typical building scheme contains a number of restrictive covenants whose purpose is to set standards sufficient to create an orderly development and preserve the values of the developed properties.

Many of these building schemes have been in effect for decades and since they are intended to continue in perpetuity, what effective action can the owner of a lot within a building scheme take to have the restrictions removed or modified? That was a question the court had to answer in the case of a subdivision created in 1954 in a part of the Municipality of Surrey which subsequently became part of the city of White Rock.

Among other restrictions, the building scheme required approval by the developer of the plans and specifications of the house, stipulated that the setbacks must be at least 35 feet from the road and prohibited subdivision. The intentions of the owner of an 18,000 square foot lot to subdivide that lot was opposed by adjoining owners within the subdivision. They claimed that smaller lots would mean smaller homes with greater traffic density and increases in noise and other problems. One owner's specific objection was that the view from her home would be reduced if the subdivision was permitted. The opponents also were concerned that since it was the first application to subdivide a lot, granting the application would be the thin edge of the wedge which would alter and destroy the neighborhood.

The lot owner's position was that the character of the neighborhood had changed from the rural atmosphere of the 1950's to urban development. In addition, the White Rock bylaws allowed subdivision into the 5,000 square foot lots which surrounded the 1954 subdivision.

The argument on the law was based upon Section 31 of the Property Law Act which allows a judge to cancel a restriction if the judge is satisfied that the application is not premature and that one of the conditions referred to in Section 31 exists. The condition which the owner hoped the judge would apply in the owner's favor, required a finding that "the restriction is obsolete by reason of changes in the character of the neighborhood", or "its continued presence impedes the reasonable use of the land without practical benefit to others."

The judge rejected the "thin edge of the wedge argument" and granted the owner's application, largely because the area in which the subdivision existed was now substantially developed and any future changes would bc controlled by the bylaws of the city of White Rock which were more current in providing for modern development and standards.

He cancelled the requirement for approval by the developer of the plans and specification, and the 35 foot setback, as being obsolete. He cancelled the clause prohibiting subdivision because it impeded the owner's reasonable use of the land without practical benefit to others. (For other cases dealing with Section 3 1, see columns II, 44 and 76.)¹

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The new technology of the fax machine, which brings us the benefit of speedy communications and the detriment of the expectation of an equally speedy response, also brings with it the specter of additional legal liability arising from the parties reliance upon faxed communications to create contracts. This point was raised in a recent issue of the Financial Post where the author of an article discussed some of the legal problems raised by the use of fax machines. One problem for a U.S. bank which resulted in it being held to be negligent, was its failure to check its fax machine which was out of paper when an important message arrived at the fax's command centre.

The importance of the case is to remind licensees that there will be circumstances in which a court may decide that a licensee had a duty because of the expectations of the parties, to be available, in person, or at a telephone, or a functioning fax machine, at a particular place or at a particular time.

1.

Stevenson v. Corbett, S.C.B.C., New Westminster Registry, SO-3439.

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