182 Registration Of Restrictive Covenants And Easements

PRACTICE

A party wall agreement is registered in the same manner as a reciprocal easement with a dominant and servient tenement.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Common Property as a Dominant Tenement

Easements benefitting common property will be endorsed as a legal notation on the title to each strata lot, because an entry in the common property record alone is insufficient to reflect the appurtenancy attaching to the strata lots. Consequently, the application for easement in Item 3 of the Form C must not only denote the common property as the dominant tenement, but also denote all of the strata lots when the grant of easement in the Terms of Instrument, Part 2 grants an easement for the benefit of the common property. For example, strata plan EPS500 consists of 50 strata lots. Where a grant of easement in the Terms of Instrument, Part 2 is for the benefit of the common property, strata plan EPS500, then the “Additional Information” field in Item 3 of the Form C must state: “Dominant tenement: common property strata plan EPS500, and strata lots 1 to 50, strata plan EPS500”. This ensures the endorsements on title are consistent with the application.

See Practice Bulletin 0395 at “Common Property (Practice Bulletin No. 0395)” in chapter 70.

Summary of the Law on Easements

See the summary of the law on easements located in the appendix at “Appendix—Summary of the Law of Easements” in this chapter.

Restrictive Covenants

See s. 221 of the Act regarding the requirements of registrable restrictive covenants.

Property Law Act

See the following sections of the Property Law Act:

• s. 18 regarding the power of an owner to grant an easement or restrictive covenant over land that individual owns for the benefit of other land that individual owns;
• s. 35 regarding the power of the court to modify or cancel charges; and
• s. 36 regarding the court’s power to grant an easement in cases of encroachment.

Consent of Owners to Plans Creating Easements, Rights of Way, or Restrictive Covenants

See s. 97 of the Act regarding the signatures requirements for subdivision plans and s. 103 of the Act regarding the requirements for reference or explanatory plans.

Acceptable Description

In accordance with s. 99 of the Act, applications to register restrictive covenants, easements, or other incorporeal rights must provide adequate descriptions.

Subdivision of Dominant Tenement

See s. 223 of the Act regarding the consequences of subdividing a dominant tenement.

Registration of Easements or Restrictive Covenants under Other Acts

See chapter 66 (Registration of Instruments) in this Manual for a summary of various statutes, other than the Land Title Act, which authorize the registration of easements or restrictive covenants.

Legal Notations and Charges

See chapter 68 (Legal Notations and Charges) in this Manual for sample forms of endorsement for easements and restrictive covenants.

Secondary Sources

See “Easements and Statutory Rights of Way” in Real Estate—1997 Update (Continuing Legal Education Society of British Columbia, 1997); and “Easements, Statutory Rights of Way and Covenants within the Subdivision Process” in Subdivision Regulation and Discretion (Continuing Legal Education Society of British Columbia, 2016).

See also the following materials on easements and restrictive covenants:

• Di Castri, Law of Vendor and Purchaser, vol. 2, paras. 692 to 714
• Di Castri, Registration of Title to Land, vol. 1, para. 263 and vol. 2, para. 331
• Gaunt and Morgan, Gale on Easements, 19th ed.
• Megarry and Wade, The Law of Real Property, 8th ed.

CASE LAW

Notes on Case Law: Cases involving easements and restrictive covenants frequently involve applications by a servient tenement owner to modify or cancel an easement or restrictive covenant encumbering that owner’s land. Applications are made under s. 35 of the Property Law Act and annotations for such cases are accordingly included in this Manual under s. 35 of the Property Law Act.

The cases annotated below all involve easements and focus on issues such as the effect of an endorsement on title, agreements to grant an easement, and the interpretation and scope of easements. Similar cases with respect to restrictive covenants are annotated under ss. 219 and 221 of the Act. Particularly where issues of the interpretation and scope of an easement or restrictive covenant are concerned, refer to the cases annotated under s. 35 of the Property Law Act for a more complete overview of the case law.

For a brief summary of the law on easements, see also the appendix entitled “Summary of the Law of Easements” immediately following this section.

Effect of Endorsements on Title

No particular description of an easement is necessarily required in its notation on title in order that the easement be registered against that title, so long as the plan evidencing the easement and its registry number appear in the notation. In this case, the plan recording the easement was mentioned on the titles as showing a right of way in favour of some but not all of the dominant tenements created by the plan. It was necessary to consult the plan to discover the location of the easement. Accordingly, the court held that the plan itself must be regarded as part of the registered description of the easement. It was not open to a party to rely on the description of the easement made by the registry clerk on the title alone as a complete description of the land entitled to the benefit of it (Montador v. Cerenzia, 1991 CanLII 2400 (BC CA)).

The parties’ predecessors in title executed an easement agreement for reciprocal parking and access rights. The agreement was registered as a charge on the title to Lot 6 (the petitioners’ land), and the registrar made a corresponding notation under s. 182(1) against the titles to Lots 2 and A (the respondents’ land) that the benefit of the easement was annexed to those lots. The easement was not recorded as a charge on Lots 2 and A, and no notation was made on the title to Lot 6. The petitioners’ application to have the easement registered as a charge on the respondents’ land was dismissed. Under s. 182(2), the s. 182(1) endorsement transferred the benefit of the easement to the respondents when they purchased Lots 2 and A. However, the endorsement did not record burdens on the property against which it was endorsed and it was not, by itself, notice that the property might be subject to an easement benefiting other lands (Blue Diamond Enterprises Ltd. v. Lee, 1993 CanLII 2552 (BC SC)).

Interpretation and Scope of Easements

Uses within the Scope of Easement

The plaintiff and defendants entered into an easement agreement that allowed the plaintiff to construct a sewage line by tunneling under the defendant’s property. After the easement was registered in the land title office, the plaintiff was advised by a contractor that the tunneling method could not be used. A method, known as “air-spading”, was approved by the plaintiff and the defendants, although the final alignment of the pipes was located partly outside the registered easement area. During construction, the defendants observed that two parallel pipes were being laid. They also learned that the plaintiff intended ultimately to subdivide his lands. The defendants objected to the parallel pipes by asserting that the agreement allowed only one line. They then cut and capped the second line. The plaintiff brought this action to clarify an ambiguity in the easement agreement and to rectify the easement to accommodate the new alignment. In granting the plaintiff’s application and ordering the preparation of a new survey plan, the court found that the term “sewage line” as defined in the easement agreement included “pipes, lines and conduits of every description”. On the evidence, the court determined that the true intention of the parties could be arrived at by changing the ambiguous references in the agreement from “sewage lines” and “sewer line” to the defined term “sewage line”. With the ambiguity resolved, the court found nothing to prevent the plaintiff from putting in two separate pipes for the conveyance of sewage. The court also found it was clear on the evidence that the defendants had approved the actual location of the line and were in agreement with the recommended route. In these circumstances, the doctrine of promissory estoppel intervened and allowed the court to order a redefinition of the easement area to include the actual location of the pipes (Burke v. Kroeker, 2004 BCSC 27). The defendant appealed and then sold the property. The new owner disavowed any interest in the ongoing dispute between the parties. The Court of Appeal dismissed the defendant’s appeal on the grounds that it was moot and no significant issue of general legal application was involved (2005 BCCA 242).

Uses beyond the Scope of Easement

The appellants and the respondents owned adjoining residential properties. An easement was granted by the predecessors in title of the respondents, owners of the servient tenement, in favour of the predecessors in title of the appellants, owners of the dominant tenement. The easement was granted “for the purpose of the construction of … a swimming pool and facilities incidental thereto, or other improvements consistent with the amenities of the area”. No swimming pool was built, but the owners of the dominant tenement installed a gazebo, lawns, and gardens on the easement area. The court held that the word “improvements” is limited to things that must be constructed. The gazebo was an “improvement” but the lawns and gardens were not. The owners of the servient tenement had exclusive use of the whole easement area, except for the gazebo, unless and until the owners of the dominant tenement constructed a swimming pool or other improvement. The agreement was not void for uncertainty. Rights may be wide in scope without being uncertain (Grant v. MacDonald, 1992 CanLII 5969 (BC CA)). In subsequent proceedings, the court refused to order that the dominant tenement owners be allowed to proceed with the proposed construction of a swimming pool and “facilities incidental thereto” on the easement area. The development plans required the exercise of the easement or its interpretation in a way that essentially conveyed the proprietorship or exclusive occupancy of the whole of the easement area and was therefore inconsistent with the servient tenement owners’ rights and with the exercise of a valid easement. The plans would have resulted in 90% to 95% of the easement area being occupied by the pool and other facilities (MacDonald v. Grant, 1993 CanLII 1164 (BC SC)).

The appellants, owners of the servient tenement, sought a declaration that an easement only permitted the respondents to install and maintain a water system on the appellants’ property within the designated easement area. The respondents contended that the easement also gave them a general right of ingress and egress over the easement area. At issue was the meaning of the words “together with” in the easement agreement, those words having been used to connect the right to use the easement area for a water system and the right of ingress and egress. The court found that those words linked the right of access with the right to take water from the easement area. There was no general right of ingress and egress. Apart from the recital, which contained a statement of the purpose of the agreement, such an interpretation was supported by other terms in the operative part of the agreement (Carter v. Sigmund, 1996 CanLII 2138 (BC CA), reversing 1995 CanLII 2282 (BC SC)).

Under the terms of an easement, the respondents had a right to cross over a portion of the appellants’ land. The respondents constructed a reinforced concrete driveway and parking area across the easement. In light of the circumstances at the time of the grant, the words “right to cross over” did not carry with them a right of parking. The court granted an injunction restraining the respondents from parking vehicles or permitting vehicles to be parked on the easement (Brundrett v. Muckle, 1997 CanLII 4439 (BC CA)).

An easement registered for the purpose of providing limited private access across a number of residential lots to the owners or occupiers of a dominant tenement cannot be turned into a public right of way. The court looked to the size of the dominant tenement at the time of the granting of the easement as a “surrounding circumstance” in determining the scope of the easement. In this case, through a series of consolidations, the original dominant tenement, a 13-acre hay field, eventually became a 232-acre parcel used for the purposes of a public university. The court held that the easement across lands owned by the servient tenements could continue to be used for access to facilities physically located within the boundaries of the original 13-acre parcel. However, the easement could not be used for access to other parcels within the university or for purposes such as field trips, running races or exercises by walking or cycling (Lafontaine v. University of British Columbia, 2012 BCSC 805; see also the related proceedings at 2013 BCSC 1517). See also the annotation for this decision under s. 223 of the Land Title Act and s. 35(2)(b) of the Property Law Act.

Easements Not to Impose Positive Obligations

The appellant owned Lot A and the respondent owned adjoining parcels of land, Lots B and C. When the property comprising the three lots was subdivided by a previous owner, the owner granted an easement over Lot A in favour of Lots B and C to permit the laying of a water pipeline across Lot A to the owner’s well. After the subdivision was registered, the previous owner built a water system including a well, a water line from the well, a storage reservoir, a pumphouse, and a water line to the dwelling on Lot A. The dwelling on Lot B was constructed and connected to the water system several years later. The respondent applied to the court seeking declarations of entitlement to access over Lot A. The Court of Appeal held that the trial judge erred in granting the respondent’s application for declaratory and injunctive relief. The easement agreement did not refer to a “water system”. Granting free and uninterrupted access to the system would place a positive obligation on the servient tenement to act;that is, to continue to provide and maintain the structures and premises comprising the water system for the benefit of each of the dominant tenements. To interpret the easement agreement in such a manner would be inconsistent with the language of the agreement and with the jurisprudence regarding the nature of an easement. It is an essential characteristic of an easement that it does not place upon the owner of the servient tenement any obligation to act (Nordin v. Faridi, 1996 CanLII 3321 (BC CA), reversing 1993 CanLII 2151 (BC SC)).

In Strata Plan BCS 4006 v. Jameson House Ventures Ltd., 2019 BCCA 144, the original parties to an easement agreement, the City of Vancouver and the developer of a commercial/residential strata complex, appeared to have intended to grant an easement (providing residential strata lot owners access to an automated underground parking system) conditional upon the performance of an obligation. The easement agreement was registered on title to each of the residential strata lots and the common property. The appellate court upheld the trial court’s decision that the obligation does not run with the land despite the parties’ intentions that it would be binding on subsequent owners. As a result, the covenant to pay the parkade operating costs was unenforceable against non-parties to the easement agreement. The court declined to recognize an exception to the rule that positive obligations do not run with the land to bind successors in title (the “rule in Austerberry”), although some exceptions to the rule have been recognized in England; the court said the Legislature is in a better position to make such modifications to the rule as may be considered desirable. The rule, however, does not preclude truly conditional easements, where the owner of the dominant tenement cannot exercise the rights under the easement unless they have fulfilled a corresponding condition. Here, the pleadings did not squarely raise the issue whether continued exercise of the easement by the dominant tenant was conditional on the fulfilment of corresponding burdens.

In Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2019 BCCA 145, leave to appeal requested 2019 CanLII 115280 (SCC), an appeal heard on the same date as Strata Plan BCS 4006 v. Jameson House Ventures Ltd., 2019 BCCA 144, the court again considered the effect upon successors in title of agreements imposing positive obligations that purported to run with the title to the land. Here, the defendant developer and the plaintiff strata corporation’s predecessor in title had entered into an easement agreement under which the defendant agreed to operate, maintain, and insure the strata development’s parkade and reserved its right to reimbursement from a percentage of costs from the then yet-to-be-incorporated plaintiff strata corporation. The case arose eight years later in a dispute over shared parkade expenses. As in Strata Plan BCS 4006, the court declined to recognize an exception to the rule in Austerberry and dismissed that ground of appeal. The court allowed the appeal and remitted the claim and counterclaim to the trial court for determination of contractual issues that had not been addressed.

Limits on Liberal Interpretation

An easement granted for the express purpose of providing access to a spring which was found not to be located within the boundaries of the easement could not simply be interpreted liberally so as to provide access when such an interpretation would effectively extend the easement well beyond the originally defined area. The required extension would increase the impediment upon the servient tenement to an extent that was far from apparent to the servient tenement’s owners when they obtained title to the property. Relief for the dominant tenement’s owners was to be found in the Water Act (now the Water Sustainability Act) provisions on expropriation (Rizzi v. Nikmo, [1996] B.C.J. No. 735 (QL) (S.C.)).

Interference with Dominant Tenement Owner’s Rights

The appropriate remedy for the encroachment of a “temporary carport” on a right of way easement that interferes with the ability of the dominant tenement’s owner to access parking stalls on the dominant tenement is a mandatory order to remove the carport from the easement within six months. The interference with the dominant tenement’s owner’s rights was not substantial enough to require an injunction restraining it. The counterclaim of the servient tenement’s owners for cancellation or modification of the easement was dismissed (Firman v. Michaleski, 1995 CanLII 2499 (BC SC)).

Two easements over a private road along the eastern boundary of the servient tenement’s land provided access for each of two dominant tenements (Bakewell and Birch) to their respective properties and to a nearby beach and the waterfront. The owner of the servient tenement (Brenner) blocked access by Bakewell and Birch to the beach and waterfront by installing fences, hedging, a locked gate, and a large boulder along and across the private road. The trial court found that the easement agreements were intended by the original grantors and grantees to afford the grantees a right of access from the private road not only to their properties but also to the beach and the waterfront. While the wording of the easement agreements contained no beginning or end points, these points were readily apparent from the accompanying plan indicating that the private road extended from a public road in the north, past the two dominant tenements and the servient tenement, ending at the beach and the waterfront. The Court of Appeal mostly dismissed Brenner’s appeal, although it modified the trial court’s order to ensure that the order did not have the effect of expanding the dominant tenements’ rights beyond those granted by the easement (Birch v. Brenner, 2017 BCCA 22, varying 2015 BCSC 466).

“Owner” of Land Subject to Easement

The petitioner issued development and building permits under its bylaws to the owners of the dominant tenement of an easement for the purpose of constructing a swimming pool. The petitioner sought a declaration as to whether the permits were valid or invalid. The bylaw regarding development permits did not define or restrict the meaning of the word “applicant”. As the obtaining of a development permit is a non-invasive act that cannot bring any potential liability upon the owner of the servient tenement, the owner of the dominant tenement can apply for such a permit. However, the bylaw relating to building permits only allowed “owners” to apply, and defined “owner” as the registered owner, or the last registered holder of an agreement for sale and purchase, or the occupier of Crown-owned lands. The term did not include the registered owner of a charge such as an easement. Therefore, the development permit issued to the owner of the dominant tenement was valid, but the building permits were invalid and of no force and effect (Vancouver (City) v. Grant, 1993 CanLII 2508 (BC SC); see also Grant v. MacDonald, annotated above, for related proceedings).

Intention to Grant Easement

The petitioner, a mortgagee that had initiated foreclosure proceedings with respect to Lot A, sought a declaration that there was an easement or right of way across Lot B in favour of Lot A. In doing so, the petitioner relied upon a letter which the owner of Lot B, a company whose principal was the mortgagor’s father, wrote for the purpose of enabling the mortgagor to get a building permit. The letter stated that the company had granted an easement to the mortgagor for road access across the corner of Lot B and that the easement would be registered upon the completion of applicable surveys. No steps were ever taken towards the registration of an easement and no representations were made to the petitioner regarding the existence of an easement or access to the property, though the petitioner did obtain an appraisal and sketch plan of Lot A which indicated that access was through Lot B. There was no evidence that the petitioner had knowledge of the letter at the time it entered into the mortgage. The mortgagor did in fact gain access to Lot A by way of Lot B, but the actual driveway used ran three-quarters of the distance along the border between the two lots before crossing onto Lot A. The court concluded that the letter, which referred to a corner of Lot B, did not evidence an intention to create an easement in the form of the access that existed on the ground. Furthermore, it was evident that the principal of Lot B’s owner did not intend to grant a permanent easement across the lot to anyone who might ultimately gain title to Lot A. Consequently, the court could not determine what quantity of the land should be transferred or be subject to the easement as a result of the letter. The application was therefore dismissed (Scotia Mortgage Corp. v. Woodsdale Estates Ltd., 1995 CanLII 1962 (BC SC)).

Agreement to Grant Easement

The defendants sold one of two adjoining lots to the plaintiff. Under the terms of the sale agreement, the purchaser was to grant the defendants an easement to construct a road through the sale property to enable the defendants to access the home they intended to build on their remaining lot. Pending determination of the actual location of the road, a blanket easement was agreed to over a portion of the sale property. A dispute arose about the exact location of the road once construction commenced. The court held that because the exact location of the easement was undetermined, the easement’s grantor was entitled to assign the way. However, if the grantor failed to assign one or assigned one that was unreasonable, then the grantees could select the way which was most direct and convenient for them without unreasonably interfering with the rights of the grantor. In the circumstance, the reasonableness of the grantor’s assignment would be relative to the location chosen by the defendants for the construction of their home and to the cost of constructing the road (Malahat Chalet Ltd. v. Pfizenmaier, 1996 CanLII 1302 (BC SC)).

Assignment of Easement

In earlier proceedings, the Court of Appeal denied an application by the respondent, the then-owner of Lots B and C, for declaratory and injunctive relief in connection with an easement in favour of Lots B and C over Lot A. (See the annotation for Nordin v. Faridi, 1996 CanLII 3321 (BC CA), under this section.) In so doing, the appeal court did not hold or suggest that there was no easement exercisable over Lot A. It referred the matter back to the trial court for adjudication of any issues still in dispute and amenable to determination. Certain issues remained unresolved when the respondent sold the dominant tenements, Lots B and C, to third parties who then purported to execute an assignment of easement rights back to the respondent. On reviewing the complex facts in the case, the trial court affirmed that the benefit of an easement cannot be assigned independently of the dominant tenement to which it is appurtenant and that an easement must be attached to an interest in land. Following the purported assignment of the benefit of the easement by the third parties to the respondent, the easement did not meet those qualifications (Nordin v. Faridi, 2001 BCSC 544).