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In This Volume

35 (1) A person interested in land may apply to the Supreme Court for an order to modify or cancel any of the following charges or interests against the land, whether registered before or after this section comes into force:

  • (a) an easement;
  • (b) a land use contract;
  • (c) a statutory right of way;
  • (d) a statutory building or statutory letting scheme;
  • (e) a restrictive or other covenant burdening the land or the owner;
  • (f) a right to take the produce of or part of the soil;
  • (g) an instrument by which minerals or timber or minerals and timber, being part of the land, are granted, transferred, reserved or excepted.
  • (2) The court may make an order under subsection (1) on being satisfied that the application is not premature in the circumstances, and that
  • (a) because of changes in the character of the land, the neighbourhood or other circumstances the court considers material, the registered charge or interest is obsolete,
  • (b) the reasonable use of the land will be impeded, without practical benefit to others, if the registered charge or interest is not modified or cancelled,
  • (c) the persons who are or have been entitled to the benefit of the registered charge or interest have expressly or impliedly agreed to it being modified or cancelled,
  • (d) modification or cancellation will not injure the person entitled to the benefit of the registered charge or interest, or
  • (e) the registered instrument is invalid, unenforceable or has expired, and its registration should be cancelled.
  • (3) The court may make the order subject to payment by the applicant of compensation to a person suffering damage in consequence of it but compensation is not payable solely for an advantage accruing by the order to the owner of the land burdened by the registered instrument.
  • (4) The court must, as it believes advisable and before making an order under subsection (2), direct
  • (a) inquiries to a municipality or other public authority, and
  • (b) notices, by way of advertisement or otherwise, to the persons who appear entitled to the benefit of the charge or interest to be modified or cancelled.
  • (5) An order binds all persons, whether or not parties to the proceedings or served with notice.
  • (6) The registrar, on application and the production of an order made or a certified copy of it must amend the registrar’s records accordingly.

1979-340-31; 1982-46-34, proclaimed effective August 1, 1983.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Amendment of Statutory Building Schemes and Letting Schemes

See s. 220(4) and (6) of the Land Title Act in this Manual.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 2, paras. 340 and 344 to 352, and vol. 3, para. 837.

CASE LAW

While s. 35(2) provides five distinct grounds upon which the courts may rely in ordering the modification or cancellation of a charge, in practice parties rarely address only one of the grounds and courts frequently rely on two or more grounds as the basis for an order. As a result, the five grounds are not as useful a tool for categorization as might be expected, particularly given the large volume of cases involving s. 35. The method of categorization employed for the following annotations instead relies primarily on the various types of charges that may be at issue and aims to assist potential s. 35 applicants in the identification of similar fact patterns. While the review of annotations under the heading for any one type of charge will not give a complete overview of the relevant law on s. 35, it should give a general picture of the issues that may arise and how the courts have resolved those issues in similar circumstances. Select cases of general relevance are also annotated under “General Application” headings, and general principles applicable throughout the cases are highlighted under the “Key Concepts” heading.

Overview

Notes on Case Law: It has long been established that the provisions of s. 35(2) are to be read disjunctively; it is sufficient for the exercise of the jurisdiction under s. 35 if an applicant satisfies any one of the conditions of the section. See Peachtree Mall Ltd. v. Penticton (City), 1979 CanLII 565 (BC SC); Quadrant Development Ltd. v. Madiuk, 1980 CanLII 690 (BC SC); Morelli v. Burkhart, 1981 CanLII 636 (BC SC); Knight v. Stapleton, 1985 CanLII 485 (BC CA).

General Application

Jurisdiction of Court

The court cannot order rectification of a typographical error in an easement document, there being no power under s. 35 to rectify an instrument registered in the land title office (Arduini v. Gasparin, 1995 CanLII 1246 (BC CA)).

Section 35 permits a court to modify or cancel a charge but not to substitute. Accordingly, the court could not address the concerns of respondents opposing the cancellation of a building scheme which prevented consolidation of subdivision lots by inserting some form of height restriction in the building scheme (Re Western Canadian District of the Christian and Missionary Alliance, [1982] B.C.J. No. 50 (QL) (S.C.)).

The petitioners sought cancellation of an easement over their property and proposed alternative access by offering another easement over another portion of their property. The court did not lack jurisdiction to hear the application on the basis that the petitioners sought provision of an alternative access or easement. It merely proposed a way in which to resolve the dispute between the parties (Giatsios v. Dike, [1987] B.C.J. No. 2906 (QL) (S.C.)).

Legislative Intent

It was not the intention of the legislature in enacting s. 35 to usurp the proper functions of municipal councils, or to redraw agreements on behalf of parties who entered into them with their eyes open and who then found the agreements’ terms to be more onerous than they originally believed them to be (Mercier v. Fort St. James (Corporation), [1980] B.C.J. No. 1799 (QL) (S.C.)).

The proper approach to compensation for granting an amendment to an easement is to ask if there has been injury to the persons entitled to the benefit of the easement. If so, compensation would be payable. An approach to compensation almost akin to selling lands that are owned is not that which is intended by the Act (Belco Holdings Inc. v. Woods Lake Resort Campground Ltd., 1997 CanLII 2379 (BC SC)).

Subsection 35(1), as evidenced by its wording, operates only to modify or cancel an existing easement. It does not create easements (Grieve v. Huntley, 2006 BCSC 1112).

Effect of Cancellation or Modification

Section 35 provides a means by which applicants may remove registered charges from the title to lands. The section does not purport to affect the substance of any agreement which may be in existence between the owner of those lands and the person who is the holder of the interest which is registered, or any other interest which may arise by agreement between the parties. The language of s. 35 establishes that only the registered charge or the registered interest may be modified or cancelled, providing that the prescribed statutory conditions are met (227213 B.C. Ltd. v. 908 Holdings Ltd., [1985] B.C.J. No. 838 (QL) (S.C.)).

Applies Only to Servient Party

The petitioners have an easement over the respondents’ land which grants them a right to pass in, along, and over the land within the right of way. They want to run sewer and water lines under the easement. The court dismissed the petitioners’ application and held that s. 35 applies only to the servient party bearing the burden of a charge against the land and does not provide a remedy to the dominant party who enjoys the benefit. Section 35 cannot be used to expand the scope of the petitioners’ interest in land, as to do so would give a power similar to expropriation of a right in land (Sidhu v. Chandra, 1997 CanLII 3977 (BC SC)).

Rectification

The appellants and respondents owned adjacent lots, both of which were subject to reciprocal easements granting access to the lots by way of a shared driveway. In addition to the driveway, the respondents used a turnaround on the appellants’ lot, though the turnaround was located outside the easement area. At trial, the court held that the easement could be modified to include the turnaround. In overturning the trial court decision, the Court of Appeal followed the reasoning in Sidhu v. Chandra, and held that s. 35 of the Act could not be used by the respondents, as the dominant tenant, to modify the easement in their favour against the interests of the servient tenant. The court also agreed that the respondents ought to be able to amend their pleadings to seek rectification of the easement, and, on this ground, the majority of the court agreed that the matter should be referred back to the trial court for determination on the amended pleadings (Banville v. White, 2002 BCCA 239). In subsequent proceedings before the trial judge, the respondents sought a declaration of rectification to have the turnaround included in the easement and the right of way. They claimed that the easement and the right of way did not reflect the true agreement between the previous owners of the respondents’ and appellants’ properties at the time the instruments were created. At all times the previous owners of the property and their successors in title, the respondents and the appellants, shared a common continuing intention that the turnaround was included in the easement and the right of way. The trial court found that the appellants were bona fide purchasers for value who were unaware that the turnaround was not included in the right of way. This meant that the proposed rectification would simply reflect the state of title the appellants believed they were acquiring when they purchased the property. Accordingly, the court granted the order of rectification sought by the respondents (White v. Banville, 2003 BCSC 606). See also the annotation for this decision on other issues under s. 36 of the Property Law Act.

The plaintiff owned a large waterfront property that was upland and appurtenant to a public wharf. The property was subject to a registered easement on which a footpath had been built to connect the wharf to a public road. The plaintiff was aware of the easement at the time the property was purchased. The plaintiff sought a declaration that the operation of the wharf interfered with the plaintiff’s riparian rights at the point where the wharf met the upland property and that a waiver of these rights had not been set out expressly in either the registered easement or in any other instrument. The court found that the easement was being used for its intended purpose, namely to provide access between the public wharf and the public road and that the impairment of the plaintiff’s riparian rights was incidental or ancillary to the reasonable use of the easement. A small portion of the footpath and the wharf were located outside the area defined in the easement. The court declared that the impairment of the plaintiff’s riparian rights was authorized so long as the wharf remained in operation and it ordered that the easement agreement be rectified to include all of the area on which the footpath and the wharf were located. The plaintiff appealed. With the exception of the issue of parking, the plaintiff’s appeal was dismissed. The judge erred by implying that parking on the plaintiff’s property outside the easement area was a right ancillary to the grant of the easement. The case was not sufficiently extraordinary so as to extend to lands beyond the easement area (Arbutus Bay Estates Ltd. v. Canada (Attorney General), 2017 BCCA 374, varying 2016 BCSC 2083).

Crown Proceeding Act

The Crown Proceeding Act does not apply to proceedings under s. 35 of the Property Law Act (McNeice v. British Columbia, 1987 CanLII 2787 (BC SC)).

Procedure for Application

The registrar of land titles refused to register the appellants’ subdivision plan because they had not obtained the consent of another party required under a building scheme. The appellants appealed the registrar’s decision on the ground that the building scheme was obsolete. The appellants did not adopt the proper procedure. They should have applied to court by petition under s. 35 for an order cancelling the scheme (McKenzie v. British Columbia (Registrar, Vancouver Land Title Office), 1987 CanLII 2470 (BC SC)).

The respondents applied to the municipality for a building permit to alter their home without obtaining the approval of the developer as required under a restrictive covenant. The petitioner, a neighbour, applied for an injunction to restrain the respondents from proceeding and the respondents in turn brought a motion to modify or cancel the restrictive covenant pursuant to s. 35 of the Property Law Act.

The court held that the only appropriate way to invoke s. 35 would be to commence proceedings by way of petition and serve all the owners with that process. Accordingly, the motion was dismissed and the injunction was granted despite the fact that the developer was defunct and its consent could not be obtained (Alexander v. Luke, 1991 CanLII 1419 (BC SC), affirmed 1994 CanLII 2910 (BC CA), leave to appeal dismissed [1994] S.C.C.A. No. 236 (QL)).

The plaintiffs and the defendants were neighbours in a subdivision that was subject to a building scheme. The plaintiffs sought an order restraining the defendants from using strands of wire along the perimeter of their property to prevent deer from eating their hedge. The defendants sought an order under s. 35 varying the building scheme as it applied to fences, thus allowing them to keep their wire device. The court found that it would defeat the purpose of a building scheme to allow it to be varied without an application before the court which defines precisely what is being sought and without proper notice of that application to each owner. In this case, the application did not define the variation sought but rather sought only to permit the perpetuation of what was erected and illustrated by photographs. However, the court dismissed the plaintiffs’ application because the wire device was not a fence within the meaning of that word in the building scheme (Rideout v. Fliss, 1998 CanLII 2922 (BC SC)).

Key Concepts

Notes on Case Law: The cases noted under this heading are only a sample of the cases annotated that discuss the identified key concepts in s. 35. They are intended to highlight the issues that frequently arise in s. 35 cases and, in doing so, to give a brief overview of the case law. The annotations are not intended to be definitive statements on the law. For a more complete picture of the law on these key concepts, refer to the additional cases annotated below and categorized by subject matter.

Prematurity

Density Control. An application to cancel a restriction that controls a neighbourhood’s density is not premature where the situation in the neighbourhood is stable, zoning is unlikely to change in the foreseeable future, and nothing is on the horizon that might change the situation (Mortimer v. Dickey, 1994 CanLII 470 (BC SC)).

Inadequate Development Planning. Where an application is made to cancel an easement to enable the applicant to develop property, the application will be considered premature if no groundwork has been laid for the development. In this case, the petitioners had not obtained feasibility studies or financing, or applied for permits. The mere desire to develop encumbered property was not enough (Giatsios v. Dike, [1987] B.C.J. No. 2906 (QL) (S.C.)). For an example of an application for cancellation which was not premature and which ultimately succeeded, see Quadrant Development Ltd. v. Madiuk, 1980 CanLII 690 (BC SC), annotated below under “Easements and Rights of Way”.

Inadequate Information. An application by a municipal corporation to cancel the registration of a statutory building scheme affecting land owned by the corporation, the respondent and others is premature where the respondent has not been made aware of exactly what use is contemplated for the lands by the municipal corporation. The phrase “premature in the circumstances” covers any and all situations where the happening of a future event has a material bearing on the question as to whether any charge should be removed (District of Mission Development Corporation v. 334128 British Columbia Ltd., 1991 CanLII 1749 (BC SC)).

Inadequate Notice. An application was premature where insufficient time had passed for interested parties to respond to the notice published in a local newspaper pursuant to a court order for service of notice (Re Beach Grove Realty Ltd., 1980 CanLII 647 (BC SC)).

Prematurity Fatal. An application under s. 35(2) requires a judge to determine first whether the application is premature. If the application is premature, the judge should dismiss it even if it might otherwise succeed on one or more of the grounds set out in s. 35(2)(a) to (e). Thus, where it appears that considerations material to a determination of whether grounds exist under paragraphs (a) to (e) have not yet materialized or where, for other reasons, it would be better to defer to a later date considerations of whether the covenant should be struck out, the court should dismiss the application (Newco Investments Corporation v. British Columbia Transit, 1988 CanLII 2845 (BC CA)).

Removal of Encroachment Part of Larger Agreement. The petitioner and the respondent owned adjacent lots. Under the terms of an easement agreement, the respondent’s house was allowed to encroach on the petitioner’s lot until such time as the encroaching house was partially or completely destroyed. In this event, the easement would immediately be terminated. The parties entered into a subsequent oral agreement that permitted the petitioner to remove the encroaching portion of the respondent’s house, construct a new outer wall along the property lines, and build an addition on the respondent’s house equivalent to the square footage of the area removed. The petitioner removed the encroaching portion of the respondent’s house and then claimed that, because the respondent’s house has been partially destroyed, the easement agreement should be deemed to be terminated. The court found that the petitioner’s application was premature in the circumstances, because the partial destruction of the respondent’s house was part of a larger agreement not yet fully performed by the petitioner. Although removal of the encroaching portion of the house would appear to make the bare words of the easement agreement applicable, it would be unjust to permit the petitioner whose act brought about the event to rely on that event for the purpose of proving that the easement agreement had been terminated (Smith v. McNeill, 1998 CanLII 1943 (BC SC)).

Obsolescence

Notes on Case Law: The following words of Lambert J.A. in Chivas v. Mysek, [1986] B.C.J. No. 2547 (QL) (C.A.), have established the test applicable to any judicial consideration of obsolescence under s. 35(2)(a):

[T]he test of whether the easement or restrictive covenant or other charge is obsolete is not a test to be satisfied on the basis of balancing the rights of the parties, but rather by a consideration of the nature of the charge itself in the circumstances of the use of the relevant property and a determination of whether on those facts the charge or interest is obsolete.

Lambert J.A. went on to state that a balancing of rights may be applicable to s. 35(2)(b) and (d), and in fact a balancing of rights has been common under those subsections. However, the case law clearly establishes that there is no place for the balancing of rights where obsolescence is at issue.

As a rule, a charge or interest is not obsolete if it still serves a purpose or continues to be used. The fact that a charge or interest is no longer necessary for the purpose for which it was established is not determinative. For example, in Chivas v. Mysek cancellation of an easement providing access to the respondent’s property was denied, even though alternative access to the respondent’s property had been developed.

Scope of Inquiry: The appropriate scope of inquiry under s. 35(2)(a) should be the obsolescence of the covenant as to the specific parcel for which an applicant seeks cancellation and not as to the area the covenant covers. The petitioner also satisfied the requirements under s. 35(2)(b) and (d) (Broadmead Farms Ltd. v. Gawley, 1990 CanLII 567 (BC SC)). But see also Cloutier v. Ball, 1995 CanLII 450 (BC SC), in which the court held that a restrictive covenant limiting the height of trees in a subdivision could not be obsolete on the basis of changed neighbourhood character in respect of some lots in the subdivision and not others depending on whether the lots still enjoyed a view.

The respondents, owners of Lot 19, had access to a public road by way of a lane across a portion of adjacent Lots 20, 78, and 79. The portion of the lane across Lot 20 was registered as an easement in 1974. No corresponding easements were registered against the titles to Lots 78 and 79, although the owners of those lots continued to grant free passage along the lane to the owners of Lot 19. In 2008, the appellant, owner of Lot 20, informed the respondents that he wished to have the easement discharged. He began to interfere with the respondents’ access to the easement by building raised concrete beds, planting shrubbery, building a shed, and erecting a fence on the easement. The chambers judge found that the easement was valid and granted an injunction restraining the appellant from interfering with the respondents’ use of the easement. The Court of Appeal agreed. It confirmed that s. 35 of the Act is a comprehensive code that displaces the common law and sets out specific, disjunctive grounds for cancelling an easement. The fact that no easements had been granted over Lots 78 and 79 did not render the easement over Lot 20 obsolete within the meaning of s. 35(2). An easement does not lose its utility simply because access across other properties is dependent upon the gratuitous or voluntary permission of adjacent property owners. The respondents used the lane on a continuing basis as a means of vehicular and pedestrian access to the rear of their lot. The owners of Lots 78 and 79 provided evidence to the court acknowledging the existence of the lane and confirming their permission to the respondents to access those portions of the lane that crossed over their properties. In dismissing the appeal, the court declared that the easement, to the extent that it benefited Lot 19, was valid and subsisting (Vandenberg v. Olson, 2010 BCCA 204).

The respondents entered into a statutory right of way agreement in furtherance of a joint undertaking to develop certain waterfront facilities including a marina and an access road. That undertaking did not proceed and the petitioner, as a secured creditor of one of the respondents, sought to remove the statutory right of way from title in order to enhance the value of the property prior to its sale. The court found that, although there were no changes in either the character of the land or the neighbourhood, there were other circumstances, as contemplated under s. 35(2)(a), that rendered the statutory right of way obsolete. There was no evidence that the respondents had done anything concrete with respect to the development other than securing the foreshore rights and acquiring some dock facilities. It was also clear that the statutory right of way was acquired only in relation to the joint venture and that the joint venture was not going to proceed. Given these other circumstances, the court concluded that the statutory right of way was obsolete and ordered that it be cancelled from title (Romspen Investment Corp. v. Chemainus Quay and Marina Complex Ltd., 2011 BCSC 768, affirmed 2012 BCCA 356). See also the note about this decision under s. 218 of the Land Title Act.

The plaintiffs had been aware of a building scheme when they purchased their property. They had been unable to obtain the three-fourths majority approval to build their proposed home. The chambers judge found that setback provisions in the building scheme should be cancelled, in part on the basis that the provisions were obsolete. On appeal, the Court of Appeal concluded the chambers judge had misapprehended the concept of an “obsolete” covenant. A covenant becomes obsolete when it has ceased to have currency because of a change in circumstances or due to disuse. In this case, the evidence established minor relaxations of the setback requirements over the years, falling far short of disuse. Further, nothing in the circumstances of the neighbourhood robbed the setback requirements of their vitality (Paterson v. Burgess, 2017 BCCA 298).

Section 35(2) provides for removal of charges that have become obsolete because of, inter alia, “material changes”. The plaintiff, a privately owned water utility (“WWU”) servicing a 29-lot subdivision, was the grantee of a covenant pursuant to a rent charge agreement. WWU sought, inter alia, judgment, interest, and damages against the defendant. The defendant and counterclaimant sought, inter alia, a restraining order against the plaintiff and its operators. The court found the defendant’s property had not received any service from WWU for over two years, the manager of the grantee told the defendant titleholder that WWU would not provide him with water and went so far as to threaten refusal of firefighter access to WWU hydrants, and its manager had subjected the defendant to intimidation and caused some damage to his well system. He “lastingly” shut off the water supply to the defendant’s residence. All of this constituted a very material change in the circumstances that, in the defendant’s case, rendered the covenant obsolete (Williamsburg Water Utility Co. Ltd. v. Conyd, 2018 BCSC 284).

Easements and Rights of Way

Acquiescence

The petitioner and the respondent owned adjacent properties in which they had a mutual easement over a portion of each property. One of the mutual covenants stated that neither party would allow or permit vehicle parking on the easement areas. The petitioner sought an injunction prohibiting the respondent from using the easement area for parking. The respondent sought to modify the easement under the Property Law Act by reducing its area so the parking spaces would remain available without contravening the easement’s covenants. In dismissing the petitioner’s application, the court found that the petitioner had for some considerable period of time acquiesced in the use of part of the easement area for parking and had actively engaged in the very conduct it sought to restrain. As such, the court held that it would be unjust to grant the injunction requested. With respect to modification, the respondent was entitled to apply for a modification of the easement area within its property but could not apply to modify the area belonging to the petitioner. Under s. 35(2) of the Act, the court found that the easement was not obsolete but that modification would allow the reasonable use of the easement area within the respondent’s area without the loss of practical benefits to those using and attending at the building on the petitioner’s property; that the petitioner had impliedly agreed to modify the easement by allowing parking and planters within the easement area; and that the petitioner and others accessing the petitioner’s building would not be injured by the modification (Strata Plan NW 1837 v. Strata Plan NW 2794, 2003 BCSC 1037).

Under a subdivision plan registered in 1985, the petitioner’s predecessor in title granted an easement over the petitioner’s lot for the purpose of providing access to two neighbouring lots now owned by the respondents. The original access road was located within the easement but was abandoned many years ago. Since that time, the owners of the neighbouring lots gained access to their properties by a second access road over a different part of the petitioner’s lot. The court granted the petitioner’s application to cancel the original easement under s. 35(2)(a) of the Property Law Act because changes in circumstances had rendered the original easement obsolete. However, accepting the principles of proprietary estoppel, the court also ordered that the petitioner enter into a new easement agreement with the respondents. All of the parties were aware of the location and use of the second access road from the time they purchased their properties. The petitioner had actively allowed and accommodated the respondents by providing access through its property for many years. Apart from the second access road, the respondents had no other means of access by land to their properties. In relying upon an ongoing right of access, both of the respondents had spent considerable sums on improvements to their properties. For these reasons, the court ordered the parties to negotiate a new easement agreement based on the location of the second access road and incorporating appropriate provisions for use, maintenance, damages, and costs (Sherbinin v. Jackson, 2011 BCSC 74).

Changes in Circumstances—Alternative Access

The appellant sought cancellation of an easement that provided access to the respondent’s property. The respondent was ready, willing, and able and in fact continued to exploit the easement and use it. Accordingly, the easement could not be said to be obsolete even though alternative access to the respondent’s property had been developed. The test of whether an easement or restrictive covenant or other charge is obsolete is not a test to be satisfied on the basis of balancing the rights of the parties, but rather by a consideration of the nature of the charge itself in the circumstances of the use of the relevant property, and a determination of whether on those facts the charge or interest is obsolete (Chivas v. Mysek, [1986] B.C.J. No. 2547 (QL) (C.A.), per Lambert J.A., concurring).

The appellants had the benefit of an easement over a portion of the respondents’ lands. The easement was used as a common driveway which the appellants were required to keep in proper repair and condition at all times. Although the appellants had alternative access to their land by a new road constructed after the easement was granted, they continued to use the easement. Under s. 35(2)(a), an easement is not obsolete if it is still being used. Under s. 35(2)(b), as long as the grantee uses the right of way in the manner contemplated by the grant, the reasonable use of the respondents’ land is not impeded if the easement is not cancelled or modified. Under s. 35(2)(d), the appellants would be injured if they were deprived of the use of the driveway, even though they now had alternative access. The default of the appellants in keeping the right of way in proper repair and condition did not determine the easement. However, the appellants’ use of the right of way was suspended until they complied with their obligation to keep it in proper repair and condition (Collinson v. Laplante, 1992 CanLII 685 (BC CA), leave to appeal refused [1993] S.C.C.A. No. 121 (QL)).

The owner of the servient tenement granted an easement across her land to provide access to the dominant tenement, which at the time the easement was created had no other road access. The dominant tenement, rather than being used as expected for the construction of a cottage, was sold several times and eventually bought by the regional district, which turned it into a public park. An alternative access road was constructed, though it was not sufficient for use by heavy machinery. The servient tenement owner sought cancellation or modification of the easement under s. 35(2)(a), (b), and (d). The court, in denying relief, relied upon Collinson v. Laplante. The creation of the alternative access did not render the easement obsolete, and the obstruction of the use of the easement by the servient tenement owner could not render it obsolete. Furthermore, the easement was of practical benefit to the dominant tenement owner and cancellation or modification would cause injury (Granfield v. Cowichan Valley (Regional District), 1993 CanLII 2218 (BC SC), varied 1996 CanLII 356 (BC CA)).

The respondent had an easement over the petitioner’s land for the purpose of accessing a portion of her land that was otherwise separated by a deep, steeply-sided ravine. The petitioner applied under s. 35 for cancellation of the easement. Over the 40 years that the respondent had title to her land, she had always crossed the petitioner’s property to access the land across the ravine, but she had not used the easement itself. In these circumstances, the court found that while the need for an easement was not obsolete, the registered easement itself arguably was. However, the petitioner’s application was premature as the petitioner had no present plans to subdivide the property or to use it in such a way that the easement would be an impediment. Further, construction of access across the respondent’s land to the isolated portions of it was not, for all practical purposes, realistic. The easement continued to be of value and its cancellation would injure the respondent (374131 Alberta Inc. v. Vallance, 1998 CanLII 1905 (BC SC)).

The petitioner and respondent owned adjoining properties. The properties were subject to reciprocal easements granting a right of passage over the rear 20 feet of each lot for the benefit of the other party. Sometime after the easements were registered, a 20-foot laneway was granted to the city by the owner of adjacent lands. The laneway provided public access to the rear of the lots and the easements ceased to be needed for this purpose. Both parties continued to use the easement area for parking. Neither party sought actively to restrict use of its own easement area until the petitioner redeveloped its property and conflict arose between the parties. The project involved an extension of the original structure over the rear 20 feet of the petitioner’s property. The petitioner proceeded in good faith in seeking its local government approval for the development, and proper notices of its construction plans were provided to the respondent and others. The construction project proceeded in accordance with all laws and regulations, and the development was consistent with growth in the area. Although the structure did not completely cover the easement area, concrete steel supports made parking and unloading on the petitioner’s property virtually impossible. However, the development did not prevent the respondent from parking on his own property. In granting the petitioner’s application to cancel the easement, the court found that the easement was obsolete within the meaning of s. 35(2)(a) of the Act. The respondent’s continued use of the easement was not in accordance with the uses contemplated by the grant. Although the easements may have allowed for brief times to load and unload or park on each other’s lots without unduly impeding the passageway, the original essence of the easements was to provide an unobstructed passageway for each party over the other’s lot and that use was no longer necessary. Accordingly, the court ordered cancellation of the easements on both properties (444038 B.C. Ltd. v. Suraj Imports Ltd., 2004 BCSC 307).

In setting aside a trial court order cancelling an easement that provided access to the appellant’s land, the Court of Appeal confirmed that an easement is not necessarily obsolete because alternative access later becomes available to a dominant tenement. In this case, the easement granted “free and uninterrupted use” and “free ingress and egress (for) carts, vehicles or cattle … as necessary and convenient … at all times and seasons forever thereafter”. If the grant had been intended to terminate in the event that alternative access later became available to the dominant tenement, such a restriction would have to have been set out unambiguously in the operative clauses of the grant. As no such restriction was found, the operative clause was not ambiguous. The easement had not fallen into disuse, it was suitable for pedestrian traffic and the use of the easement by walkers was clearly included in its original purpose (McCorquodale v. Baranti Developments Ltd., 2015 BCCA 133).

In Connick v. Strata Plan VIS 7092, 2019 BCSC 710, all strata lot owners enjoyed driveway access to their respective lots except the petitioners. The petitioners’ lot was subject to a broadly-worded restrictive covenant operating in perpetuity “for the protection of natural vegetation” on the innermost portion of their lot. The covenant prevented the removal of dead, diseased, or hazardous vegetation without written consent of the other strata owners, and prevented the petitioners from securing access to their lot on the north side from a common roadway servicing all the other lots. The petitioners applied for modification of the covenant, as it affected a portion of the property where trees were in declining health, to allow them to construct a driveway in a less obtrusive manner. The court allowed the application in part, finding that that the lack of driveway access to the petitioners’ lot was an oversight on the part of the developer and that the petitioners’ reasonable use of the land would be impeded without “practical benefit” to others (Property Law Act, s. 35(2)(b)) if the covenant were not modified. The court cancelled a portion of the restrictive covenant on the southwest part of the covenant area (“area 1”) but adjourned the aspect of the petition pertaining to the northwest portion (“area 2”) that involved a more contentious removal of vegetation. The adjournment was intended to give the petitioners an opportunity to negotiate a resolution with their neighbours, an attempt that proved unsuccessful. At the rehearing of the petition with respect to area 2, two options for driveway access to the petitioners’ lot were put forward. The court ordered that the petitioners were entitled to have driveway access to their lot similar to that enjoyed by other owners in the subdivision and fashioned a remedy from the two options presented.

Changes in Circumstances—Character of Land

The owners of a servient tenement applied for an order modifying the respondent’s easement for a water line registered against their land. The easement had originally been granted across a mostly treed lot “for the purpose of constructing, reconstructing, operating and maintaining … pipes, ditches, flumes or other water conduits” and a steel pipeline was built across the surface of the servient tenement, connecting the respondent’s land with a water box located on another property. Later the original pipeline was replaced with a plastic pipeline which was buried six feet underground and the petitioners subsequently purchased the servient tenement, cleared the land, and constructed a house and outbuildings which were used for residential and farming purposes. The character of the land in question had substantially changed from treed to residential/farm land and accordingly the charge was to some degree obsolete. Furthermore, burial of the pipeline rendered unnecessary its constant inspection. Finally, the respondent’s frequent use of the easement constituted a continual irritation to the petitioners and challenged their right to a reasonable degree of privacy. Given the conflict that had arisen between the parties and their inability or unwillingness to resolve it, the application made in reliance on s. 35(2)(a) and (b) was not premature. The easement was modified to limit the respondent’s use of the easement to one inspection per month and as necessary for repairing or replacing the pipeline. The fact that the petitioners’ action contained elements of nuisance did not prevent relief from being granted on a Supreme Court Rule 10 hearing (now Rule 16-1) (Barclay v. Denault, 1994 CanLII 3336 (BC SC), affirmed 1995 CanLII 2905 (BC CA)).

A 12-foot easement over the westerly boundary of the appellant’s property was granted originally to provide access to a private garage on the respondent’s land. The respondent’s land was redeveloped as a 51-unit apartment building with vehicular access and access to all of the parking areas for the apartment building from a nearby street. The original residence and garage no longer existed, and there had been a complete cessation of the use of the easement. Both its original purpose and its earlier use were long dormant. In these circumstances, the easement was obsolete and the order for its cancellation was granted (TDL Group Ltd. v. Harvey, 2002 BCCA 258).

The petitioners owned adjacent residential lots in a rural subdivision that included reciprocal easements granting access across each of the lots to a public road. The owner of a 13-acre hay field adjacent to the lots but outside the subdivision was also a party to the easement agreement. The agreement granted each of the dominant tenements “full right and liberty to use the easement as a roadway for the use, enjoyment and benefit of the dominant tenements but not for any other purpose”. The owner of the hay field sold his lot to the respondent, a public university. The lot was consolidated with other land, eventually becoming a 232-acre parcel within a larger 500-acre campus. The use of the easement increased, providing access to the campus for vehicles, bicycles and pedestrians, access to a nearby lake for field trips and access for recreational walkers and runners. The petitioners applied for a declaration of excessive use under s. 35(2)(b) of the Property Law Act. The court held that the grantee of a private right of way cannot turn it into a public right of way. The express words of the easement agreement limited the use of the easement to the owners and occupiers of the dominant tenement and their servants, licensees and invitees for the purpose of passage to and from the dominant tenement and not for any other purpose. As a private right of way, the easement could not be used for field trips, as part of a running racecourse or for exercising by walking or cycling. While there was nothing in the easement agreement that limited its use to agricultural purposes, the court held that the size of the dominant tenement at the time of the granting of the easement was a “surrounding circumstance” which could provide guidance in determining the permissible extent of its use. The court found that the easement created a private right of way on private land for access to and from the dominant tenement and it ordered that the use of the easement be restricted to the owners and occupiers of the buildings or other facilities physically located within the boundaries of the original 13-acre parcel (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 ss. 182 and 223 of the Land Title Act.

Abandonment/Non-Use

The respondents obtained an easement over the petitioners’ land for the purpose of constructing and maintaining waterworks under a specific water licence and generally for the purpose of constructing, maintaining, and operating an irrigation system. The respondents had not cultivated the land for a number of years because it was uneconomical to do so. They had abandoned one water licence and sold another. Consequently, they no longer had a water licence and had not used the right of way. The petitioners were not entitled to cancellation of the easement. Mere non-use of an easement does not extinguish it and the respondents had no intention of abandoning the easement. Reference to a specific water licence which had expired did not limit the easement and entitle the petitioners to cancellation under s. 35(2)(c). The parties considered the terms in the agreement to be general rather than specific (Kamwood Ranches Ltd. v. Kalyk, [1989] B.C.D. Civ. 2197-01, [1989] B.C.W.L.D. 753 (S.C.)).

The petitioner wanted to sell a lot. The agreement to sell was subject to her removing an easement over the easterly 20 feet of the lot. She therefore sought cancellation of the easement on the grounds that it was unenforceable as too vague, and that it had been abandoned. While the purpose of the easement did not appear in the words of grant, a court may look at the surrounding circumstances at the time of its reservation to find evidence of its purpose. In this case, the evidence was that the purpose of the easement was to give access by pedestrian and vehicular traffic. The easement had not been abandoned under s. 35(2)(c). A retaining wall erected in 1981 blocked use of the easement for access. However, non-use alone is not enough to bring about abandonment of an easement according to common law authorities. Non-use has to be accompanied by, or be evidence of, an intention to abandon. This was not the case here as the owner of the dominant tenement planned to make use of the easement in the future. The court dismissed the application (Zabolotniuk v. Strata Plan NW1527, 1990 CanLII 2215 (BC SC)).

The owner of a servient tenement sought modification of a right of way located between his own residence and that of the dominant tenement owner. The right of way, a strip of land running the length of the two lots, was paved along the front half and consisted of lawn on the rear half. The dominant tenement owner, who had used the paved portion of the right of way primarily for pedestrian traffic into his back yard over the past years, sought to have the paved portion extended to create access for a new garage. The rear portion of the right of way had never been used by the dominant tenement owner, and vehicular traffic on the front paved portion had been rare in the over 50 years since it was created. The court found that, despite these facts, there had been no abandonment of any part of the right of way and that it could not be modified under s. 35(2) to exclude vehicular traffic. The additional paving permitted for the dominant tenement’s use was the minimum amount necessary for access to a garage in his back yard. The court explicitly rejected the approach of balancing the interests of the parties and emphasized the lack of evidence of intention to abandon (Arduini v. Gasparin, 1993 CanLII 704 (BC SC)). On appeal, the Court of Appeal confirmed that intention is a vital part of abandonment and that there was no evidence of an intention to abandon. However, the court also found that the trial judge had erred in holding that the owner of the dominant tenement could lengthen the paved portion of the easement without the assent of the servient tenement’s owner, there being no evidence as to the sort of surface to be installed on the easement for its use (1995 CanLII 1246 (BC CA)).

The petitioner sought to cancel a portion of an easement over lands owned by it and known as Lot A. The easement was originally granted to the owners of an adjacent lot, but the current owner of Lot A proposed building improvements which would extend into the easement. The application was allowed based on s. 35(2)(b) and (c) of the Act, as the proposed construction constituted a reasonable use of the petitioner’s land and the relevant portion of the easement had not been used by the respondents for any purposes. Because there was no economic loss to the respondents due to the partial cancellation, the court declined to award compensation in that respect and noted that the proper approach to compensation for granting an amendment to the easement was to ask if there had been injury to the respondents. If so, compensation would be payable. An approach to compensation almost akin to selling lands that are owned is not that which is intended by the Act (Belco Holdings Inc. v. Woods Lake Resort Campground Ltd., 1997 CanLII 2379 (BC SC)).

The respondent’s land was subject to a registered easement in favour of an adjacent lot, Lot A, which was owned by the appellant. The easement provided a 20-foot strip for the purpose of a “free and uninterrupted right-of-way”. Access to the appellant’s house was by private driveway located entirely on Lot A. Although the previous owners of Lot A had not used the easement, the easement was a registered charge against the respondent’s land when the appellant’s title to Lot A was registered in 1984. At that time, the appellant refused a request for a release of the easement because it was being used for foot and bicycle access and because the appellant planned to further develop part of the easement. The respondent purchased her land in 1990 subject to the easement in favour of Lot A. The existence of a driveway on Lot A was not determinative of the issue of obsolescence under s. 35(2)(a). The easement was used by members of the appellant’s family and the appellant had continued to express the intention to use the easement as alternative access to Lot A, and as access to another lot if Lot A was subdivided. Cancellation of the easement would cause potential economic loss to the appellant by not having separate access to Lot A if Lot A should be subdivided. As a consequence, the order of the trial judge cancelling the easement was set aside and the court ordered that the easement be reinstated as a charge against the respondent’s land (Gray v. Doyle, 1997 CanLII 4198 (BC SC) (Chambers), reversed 1998 CanLII 5131 (BC CA)).

In Tessaro v. Langlois, 2019 BCCA 95, the respondent strata lot owner owned a dominant tenement constituting access to his residence by way of a gravel driveway over the petitioners’ neighbouring lots (the servient tenements). A “blanket easement” and a subsequent modification easement defined the easement area. The blanket easement provided that the owner of the dominant tenement could construct a driveway in the easement area, and the easement area was then to be released from those parts of the servient tenement not used for the driveway. The respondent now wished to pave the driveway, which would widen it and require removal of encumbrances built/planted on the easement area by the petitioners. The petitioners sought a modification of the easement under s. 35(2) of the Property Law Act or, alternatively, a declaration that the respondent could not expand the driveway. They argued that the existing gravel road was the driveway contemplated by the easement and the remaining portions of the easement not used by it should have been released. The respondent claimed he was entitled to construct a driveway provided it remained within the area stipulated in the easement modification. The trial judge found that non-use of an easement does not constitute an implied agreement to cancel or modify the easement, and the easement and modification, properly interpreted in light of the factual matrix, entitled the respondent to construct the proposed driveway, provided it remained within the easement area, at a time convenient to him. The court granted a declaration that the respondent was entitled to the easement sought, a final injunction restraining the petitioners from interfering with the full and complete use of the easement area, and an order requiring the petitioners to remove the structures on the easement area. The Court of Appeal upheld the trial court’s interpretation of the easement and the modification easement but allowed the appeal to the extent that the trial order should (1) take into account the risk that compliance might be affected by the statutory building scheme and municipal bylaws; and (2) reflect that the respondent would be entitled to “costs” rather than “special costs” if the petitioners failed to remove the encroachments and the respondents removed them instead.

Original Purpose No Longer Served

The previous owners of adjacent residential lots entered into an easement agreement granting the dominant tenement a right to access, maintain, and use buildings or improvements in the easement area. Included within the easement area were a carport and shed that encroached upon the adjacent residential lot. Both properties changed hands. The respondent, as the new owner of the dominant tenement, subsequently demolished the carport and shed and constructed a new residential building with attached garage entirely within the respondent’s lot. The petitioner, as the new owner of the servient tenement, applied for an order cancelling the easement. The court found that the wording of the easement did not clearly stipulate whether the previous owners intended the easement to apply only to buildings existing at the time of the grant or to any buildings in the easement area existing at the time or constructed in the future. In considering other evidence to determine the meaning of the easement, the court found that, when the easement agreement was registered, it was intended to remedy existing encroachments in order to permit the dominant tenement to sell her property and obtain relief from “daily financial losses”. As such, the court found that the previous owners did not intend to grant more rights than were necessary to permit the sale, that the easement agreement must be read to grant rights only in relation to structures existing at the time and that, with the demolition of the carport and the shed, the original purpose of the easement could no longer be served. The easement was now obsolete and the court ordered its cancellation (0730729 B.C. Ltd. v. Shoker, 2007 BCSC 540).

Delay in Proceeding with Phased Strata Development

In foreclosure proceedings, the appellant acquired land that had been approved for development as Phase II of a strata plan. The common property in Phase I of the strata plan was subject to access and construction easements in favour of the original developer and its successors and assigns. In granting the owners of the property in Phase I an order cancelling the easements, the chambers judge found that changes in material circumstances rendered the easements obsolete. The Court of Appeal overturned the decision of the chambers judge. In the easement agreement, the court found nothing that restricted the appellant from proceeding with the development of Phase II in the manner it proposed, and nothing that restricted the use of the easements only in the event the Phase II development proceeded as originally planned. Because the appellant intended to make use of the easements in essentially the same way as intended by the parties to the easement agreement, the easements could not be said to be obsolete (Portrait Homes Ltd. v. Strata Plan LMS 1191, 2002 BCCA 257).

Excess Easement Area

Three adjoining properties were located along a stretch of highway and were both dominant and servient tenements of an easement running parallel to the highway. The easement had been provided “to construct and maintain access and egress works for the benefit of the dominant tenement”. Substantial portions of the easement had been used to provide access to and from the highway, but some areas remained unused for that purpose. The defendant hotel began building a swimming pool on one of the unused portions of the easement and the plaintiff applied for an injunction. The defendant hotel responded with an application for cancellation or modification of the easement pursuant to s. 35(2)(b) or (d) of the Property Law Act. The injunction was granted. The benefits of the easement included the ability to travel the length of the easement without venturing onto the highway. Accordingly, the defendant hotel could not construct a pool at one end of the easement which would impede the access of the other two servient tenements’ guests and customers to the property adjoining it (Samra Brothers Enterprises Ltd. v. Coquihalla Motor Inn Ltd., 1996 CanLII 2868 (BC SC)).

The petitioner sought an order cancelling or modifying a reciprocal easement which created a right of way shared by four lots in a bare land strata plan. A brick road had been built for access on a portion of the right of way before any of the lot owners purchased their properties. Some unused portions had previously been landscaped, and the petitioner sought to landscape the untravelled portion of the right of way on her property not covered by the road. The respondents asserted the right to ingress and egress over the entire right of way, but the court found no apparent need for vehicular traffic on any portion of the easement other than the brick road. It also observed that the dispute was part of a “grudge match” which was fueled by a previous conflict. Relying particularly on s. 35(2)(b), but also on s. 35(2)(c) and (d), the court ordered a modification of the easement which would permit landscaping on the disputed area (Babie v. Bal, 1996 CanLII 2767 (BC SC)).

Impediments to Development

The petitioners sought cancellation of an easement over their property so they could consolidate and redevelop it. The easement provided access to the respondents’ residence as well as to their office. The petitioners proposed alternative access by offering another easement over another portion of their property. The application was premature. The petitioners had completed none of the groundwork towards redevelopment. They had not obtained feasibility studies or financing, or applied for permits. They had merely expressed a desire to redevelop their property. In any event, the petitioners had not met any of the criteria in s. 35(2). There were no changes in the character of the property or neighbourhood. The preservation of the easement was surely not an impairment to the overall commercial plan for the area. The charge was not obsolete. The modification or cancellation of it would have an injurious effect upon the respondents and their business. Balancing the rights of the parties, the easement should not be cancelled (Giatsios v. Dike, [1987] B.C.J. No. 2906 (QL) (S.C.)).

The petitioners sought cancellation of two easements to which their land was subject because they wished to subdivide the land. The trial judge dismissed the application as premature and the Court of Appeal dismissed the appeal from that decision. The two lots that benefited from the easements were across the road from an area in which certain development had taken place and were not to be included in developments taking place to the west. The time had not yet come when the court could say with confidence that the character of the neighbourhood had changed to such a degree as to make it proper to invoke s. 35. Lambert J.A. (concurring) went on to say that there is no reason to give the word “obsolete”, as it appears in s. 35(2)(a), anything other than its normal meaning in the context in which it appears. Lambert J.A. adhered to what he said in Chivas v. Mysek regarding the test of whether a charge is obsolete (Lonegren v. Rueben, 1988 CanLII 2830 (BC CA)).

The petitioner applied to cancel an easement for a subsurface pipeline on its property so it could continue with its subdivision development plans, which called for the building of a road on the area of the easement. The easement had originally been granted to allow the respondent to discharge water from his pool into a stream given the lack of a municipal sewer system. It was not, as alleged by the respondent, intended to preserve his privacy. Drainage through the easement now amounted to a non-conforming use since a municipal sewer system had been installed and bylaws now prohibited drainage of chlorinated effluent except through sewer systems. The petitioner was prepared to connect the respondent’s pool to the sewer system at its own expense. In view of all the circumstances, the road was a reasonable use of land. Cancellation would legally injure the respondent, but to deny cancellation due to a pure legal injury would make this subsection senseless as a charge could then never be cancelled. Subsection (3) supports this view. The entire section involves a balancing of rights. In this case, the court had to balance the large disruption and expense to be occasioned by the petitioner were it to have to relocate the road against the respondent’s right to have his pool drained. The easement should be cancelled subject to an order for damages. The applicant was ordered to connect the pool to the sewer system at its own expense (Quadrant Development Ltd. v. Madiuk, 1980 CanLII 690 (BC SC)).

The petitioner, a property developer, applied to court for an order cancelling an easement across land slated for a high rise condominium development. The respondents, as grantees of the easement, were condominium owners in two adjacent developments. The easement was registered initially to permit access for construction purposes and to provide a pedestrian walkway. Most of the purposes of the easement were fulfilled upon completion of the initial construction. In ruling that the petitioner’s application was not premature and that the easement was not obsolete, the court found that, while the respondents’ intended use of the easement was not central to their use and enjoyment of their land, the easement was nevertheless a benefit to them. Furthermore, as the developer offered no evidence to demonstrate that the property could not be developed in a profitable manner without the removal of the easement, the court dismissed the developer’s petition (Odyssey Tower Properties Ltd. v. Surrey (City), 2006 BCSC 1842).

The petitioner bought land subject to an easement in favour of the respondent. The easement allowed the respondent to construct, maintain, and operate a transmission line across the southeast portion of the petitioner’s lands. The petitioner obtained preliminary approval to subdivide the land including a cul-de-sac that extended onto the easement area. Because of the encroachment, the approving officer required the respondent’s signature on the subdivision plan as part of the petitioner’s application for registration in the land title office. The respondent refused to sign the plan and, in this action, the petitioner applied to have the easement cancelled or modified so that it could dedicate the cul-de-sac, including the encroachment, as a public road. In considering s. 35(2)(b), the court found that access to the right-of-way for future expansion of the respondent’s transmission line was fundamental to both the respondent and its ratepayers. The respondent’s interest far outweighed the financial interests of the petitioner who had purchased the land in full knowledge of the easement and who should have taken the easement into consideration in planning for its development and anticipated profits. In balancing practical benefit to the respondent against impediments to the petitioner’s reasonable use of the land, the court found that, in this case, the petitioner failed to show a very substantial benefit in its favour. The court declined to cancel or modify the covenant and dismissed the petitioner’s application (Hilltop Sand & Gravel Co. Ltd. v. FortisBC Inc., 2010 BCSC 108).

For a decision in which the court ordered cancellation of charges upon the posting in court of an undertaking by a property developer, see Emil Anderson Construction Co. Ltd. v. 0977415 B.C. Ltd., 2017 BCSC 957, under s. 97 of the Land Title Act.

Rights Ancillary to Easement

The southwestern boundary of the petitioners’ land was subject to a registered easement, five feet wide, originally granted to provide beach access via a footpath for the owner of the adjacent land. The petitioners applied to the court under s. 35(2) of the Property Law Act to cancel the easement. The court will not cancel an easement on the grounds that it is obsolete where it still serves a purpose, or in the absence of evidence that the easement impedes the reasonable use of the land by the petitioners (Kasch v. Goyan, 1992 CanLII 2251 (BC SC)). In affirming the lower court decision, the Court of Appeal observed that the grant of an easement includes such ancillary rights as are reasonably necessary to its exercise or enjoyment. There was evidence that the walkway built on the easement by the respondent interfered with the petitioners’ view. Without evidence of other relevant factors, the court could not conclude that the walkway was not reasonably necessary to such use and enjoyment (Kasch v. Goyan, 1993 CanLII 2291 (BC CA)). In further proceedings between the two parties, the petitioner wanted an order to have the walkway removed and a ground-level concrete structure built in its place, the cost to be shared by the parties. Although the court refused to make the order, it suggested that the respondent reconsider his position because the existing elaborate form of the walkway, aside from being in a dangerous state of disrepair, was not reasonably necessary. A cement path or some other form of low lying path would still allow the respondent to use the easement. The court also dealt with a claim by the petitioners that the walkway substantially interfered with their privacy, rejecting the claim on evidence that the petitioner’s deck was used only infrequently, as was the walkway by which it stood (Kasch v. Goyan, 1997 CanLII 3898 (BC SC)).

Costs Associated with Easement

The petitioner owned a large lot with a well which was used to provide water. Upon subdivision of the lot, she was required to ensure that sufficient water would be available for domestic purposes for both of the two lots created, and accordingly granted an easement “for water pipe line and/or well over the servient tenement” in favour of the dominant tenement. The easement further provided that “the grantor and the grantee consent and agree that cost of maintenance will be shared equally”. The drafter of the easement document did not include a provision establishing the fact that there was an existing well on the servient tenement, but appeared to contemplate the use of the servient tenement for a well. The petitioner subsequently sold the dominant tenement to the respondents, who used the well to supply water for 10 years before a dispute arose over payment for costs to upgrade the well due to an insufficient water supply. The respondents claimed that they were not required to pay for anything beyond an equal share in maintenance costs. The petitioner applied for an order modifying the easement to clarify her original intention that all costs, including the cost of improvements, be shared equally. The court granted the order. Given the circumstances of the easement’s creation, the right to use the well and the cost of maintenance must of necessity have included the implied obligation of the owners of both tenements to share the cost not only of maintaining the well, but of operating and improving it to enable its continued use. The respondents would not be injured by the modification within the meaning of s. 35(2)(d) because they were not the initial parties to the easement document and could not thereby be injured by its modification. Subsection 35(2)(d) only seeks to prevent injury to the person entitled to the benefit of the charge or interest (Cross v. Malekow, 1996 CanLII 907 (BC SC) (Chambers)).

Note: The learned judge’s statement in Cross v. Malekow that the respondents would not be injured in law because they were not the initial parties to the easement document and could not thereby be injured by its modification does not appear to recognize the enduring nature of interests in land. The benefits and burdens of easements run with the dominant and servient tenements, not with the parties which created them. For another case involving similar facts, see Nordin v. Faridi, 1996 CanLII 3321 (BC CA), reversing 1993 CanLII 2151 (BC SC), annotated under s. 182 of the Land Title Act in this Manual.

Invalid Instruments

The respondent’s easement over a portion of the petitioners’ land included the right “to pass and repass”. The easement was granted because a portion of the swimming pool and some of the outbuildings on the land encroached on the neighbouring land and the respondent wanted a buffer zone between her property and the adjoining farmland. The petitioners’ application to cancel the easement so that they could use the land in the easement area for agriculture was refused. A right that is “wide” is not necessarily also vague or uncertain. Although an easement cannot deprive the grantor of legal possession, even a right that significantly detracts from the servient owner’s rights may be consistent with the existence of an easement. Some land in an easement can be devoted exclusively to the use of the grantee. The easement is of practical benefit to the respondent and she would be injured by its modification or cancellation (Vantreight v. Gray, 1993 CanLII 2669 (BC SC), affirmed 1994 CanLII 1189 (BC CA)).

An agreement purported to provide an easement for the benefit of the grantees (the respondents) in common with the grantor (the petitioner). It also provided, in para. (e), that the respondents could use the easement area “for the purpose of landscaping, gardening and enjoying the easement as an integral part” of their property. The respondents constructed an access road through the easement area, built an eight-foot fence along both sides of the road and installed concrete pillars, a drip-water system, and trellises to accommodate grapevines planted in the easement area. For all practical purposes, the landscaping and gardening activities of the respondents deprived the petitioner of the use and enjoyment of a large portion of her property. The court found that the provisions in para. (e) were so vague as to be unenforceable; that it was not possible for the respondents to landscape and garden in common with the petitioner; and that the respondents’ rights detracted so substantially from the rights of the petitioner that the agreement in para. (e) must be something other than an easement. Although the court upheld other aspects of the agreement, it ordered that, with the exception of some trees planted in the easement area, the respondents remove the fencing, the water system, and the concrete pilasters associated with the landscaping and gardening activities (Prinsen v. Wickland, 2003 BCSC 1795).

The plaintiffs registered an easement against the defendant’s land. The easement agreement granted the plaintiffs free and uninterrupted use of the easement area for farming and recreational uses, free and uninterrupted access at all times, all timber rights including the rights to remove and sell, and all gravel, including the right to removal. In addition, the defendant was prohibited from placing anything on the easement that would obstruct the plaintiffs’ use and the defendant had no right of access to the easement area. The court held that the rights of the plaintiffs were wholly outside any normal idea of an easement and amounted to a claim for the whole beneficial use of the easement area. This constituted a complete derogation of any rights to the proprietorship or possession of the easement area by the defendant as the servient tenement owner. On these facts, the court declared that the easement was invalid and unenforceable and ordered the registrar to cancel the registration (Robinson v. Pipito, 2013 BCSC 1670, affirmed 2014 BCCA 200).

A supportive living services agreement (“SLSA”), which each strata lot owner was required to sign according to the owner developer’s disclosure statement, was registered as a restrictive covenant against each strata lot in a seniors’ independent supportive living strata complex. After the deceased left his strata lot for health reasons, he continued to be charged service fees under the SLSA. He was unable to sell the strata lot. He filed a petition seeking to have the restrictive covenant cancelled under s. 35(2). The executrix of his estate continued the petition. The court granted the petition, finding that, although framed in the negative, the restrictive covenant was positive in substance. Moreover, an enforceable restrictive covenant must be connected with the enjoyment and for the benefit of the dominant tenement. Here, the true beneficiary of the restrictive covenant was the successor in title to the owner developer in its capacity as service provider (Rohaly v. Strata Plan EPS 319, 2019 BCSC 667).

Expiry of Instruments

The petitioner granted an easement to the respondents to pass and repass upon the petitioner’s land and to construct a roadway to municipal specifications. The agreement granting the easement also specified that, if no roadway or installations were constructed by January 1, 1979, the easement would cease. The intention was that the respondents build a road capable of dedication to the municipality, which they did not do. Consequently, the petitioner was entitled to cancellation of the easement on the ground that it had expired under s. 35(2)(e) (Maddocks v. Scheves, [1983] B.C.J. No. 676 (QL) (S.C.)).

Restrictions on Use

Changes in Circumstances—Character of Land or Neighbourhood

The petitioners applied under s. 35 for cancellation of a restrictive covenant restricting the use of their lot to a single family dwelling. The respondent owned a motel and restaurant and was located next to the petitioner’s lot. There was a motel across the street. The character of this neighbourhood had changed radically and the restrictive covenant was therefore obsolete. The normal zoning process protected the respondent from undue injury. It was a question of balancing the rights of the parties (Laurence v. Century Holdings Ltd., 1985 CanLII 489 (BC SC)).

A motel owner sought cancellation of a restrictive covenant registered against its property by its predecessor in title more than 20 years earlier. The covenant restricted the motel owner from operating a restaurant. The adjoining property owner operated a restaurant. The court refused to cancel the covenant. It was not obsolete under s. 35(2)(a). While the neighbourhood was developed with other businesses, including restaurants, that change in circumstances allowed an all too easy escape from the restriction intended by the covenant. The covenant did not impede the reasonable use of the land under s. 35(2)(b). The definition of “restaurant” was not so broad that it eliminated businesses not directly in competition with the adjoining property owner. Motel employees and guests used the restaurant. Modification or cancellation of the covenant could therefore injure the adjoining property owner. A restaurant on the motel owner’s property would be more effective competition due to its proximity. Finally, the restrictive covenant was not invalid and unenforceable under s. 35(2)(e) as a covenant in restraint of trade. The restrictive covenant was reasonable in the interests of the parties and the covenant was not injurious to the public. If anything, the evidence showed that the public was already well served with restaurants (East Kootenay Ranch N’ Home Centre Ltd. v. O-Ryson Holdings Ltd., [1987] B.C.J. No. 2265 (QL) (S.C.)).

An application to cancel a restrictive covenant restricting the use of land to agricultural purposes was not premature. The petitioner had to have the property removed from the Agricultural Land Reserve and obtain rezoning before it could proceed with redevelopment; however, it had not yet satisfied either of these requirements. The evidence was that the petitioner would be successful in satisfying these requirements. The restrictive covenants had become obsolete under s. 35(2)(a) because of construction of a sewer main on the land and development of neighbouring lands as residential. The petitioner also satisfied the requirements under s. 35(2)(b) and (d) (Broadmead Farms Ltd. v. Gawley, 1990 CanLII 567 (BC SC)).

The defendants in an action to enforce a restrictive covenant relating to the height of trees in a subdivision counterclaimed for a declaration under s. 35 cancelling the restrictive covenant on the grounds that it was obsolete due to a change in the character of the neighbourhood. The neighbourhood had changed since the 1950s, when it was developed, from one with no trees to one with numerous mature trees exceeding the height limit; however, some lots in the neighbourhood still enjoyed views, at least in part perhaps because of the restrictive covenant. The restrictive covenant could not be obsolete on the basis of changed neighbourhood character in respect of some lots it covered and not others. The counterclaim was dismissed (Cloutier v. Ball, 1995 CanLII 450 (BC SC)).

The plaintiff sought a declaration that a covenant granted under s. 219 of the Land Title Act in favour of the District of North Vancouver be cancelled under s. 35 of the Property Law Act. The covenant was registered against strata lots owned by the defendants in a residential building, and contained an age restriction which required that each suite be occupied only by persons over 19 years and including at least one person of at least 50 years of age. The age restriction did not apply to ownership of the units, but some of the owners sought to have the age restriction removed as they had encountered difficulties in renting their suites. In upholding the covenant, the court refused to find that it was obsolete due to changes in the character of the land as set out under s. 35(2)(a) of the Act, because to do so would make a mockery of the municipal approval process. Public policy mitigates against a conclusion that developers may receive benefits and concessions on the basis that they will construct a specific project with agreed-upon restrictions, and then have the restrictions removed because they have constructed a different project, thereby altering the character of the land (North Vancouver (District) v. Lunde (sub nom. North Vancouver (District) v. Fawcett), 1997 CanLII 985 (BC SC), affirmed 1998 CanLII 4205 (BC CA)).

The petitioner applied to cancel a provision in a building scheme that prohibited the use of its residential lot for commercial purposes. The court found that, under s. 35 of the Act, the application was not premature as the petitioner wanted to know whether the lot would be released from the building scheme before it incurred the expense of submitting a rezoning application to the local government. A neighbouring lot had been released earlier from the building scheme because it was located directly adjacent to a large shopping centre, it fronted on a main road, and its use was greatly impacted by the shopping centre. However, a number of neighbours objected to the petitioner’s application. The petitioner’s lot was part of a residential area, and the exterior boundary of the petitioner’s lot provided a treed buffer and a clear and distinct demarcation between the residential area surrounding the lot and the shopping centre. In dismissing the petitioner’s application, the court found that the building scheme was not obsolete and that it continued to have practical benefit for the residents in the area (Re 676604 B.C. Ltd., 2010 BCSC 1624, affirmed 2011 BCCA 447).

The petitioner entered into an agreement to purchase three lots in a 32-lot residential subdivision. Most of the lots in the subdivision were burdened by a covenant restricting development to single family homes. The covenant expressly prohibited apartments and lodging houses. The petitioner intended to consolidate the lots and together with other adjacent properties redevelop the lands as a residential care home for seniors. Years earlier, the property owners had agreed to release the covenant over Lot 10 to permit the construction of a swimming pool. Subsequently, Lot 10 was redeveloped as a stratified commercial development located on what later became a main road in the community. Although the court found that the lots in question were located adjacent to the town centre and designated for commercial use within the Official Community Plan, these findings did not provide a basis for discharging the covenant. They were, rather, a factor to consider in assessing the provisions of s. 35 of the Act. The court found that, apart from the development of the swimming pool, the rest of the neighbourhood had retained its single family status and character. Further, the release of the covenant over Lot 10 did not constitute an implicit or express rejection of the covenant by the owners. Accordingly, the court dismissed the petitioner’s action to have the covenant discharged (Re West Shore Laylum Management Ltd., 2013 BCSC 2080).

Restrictions on Use, Changes in Zoning

The petitioner applied to cancel a restrictive covenant under s. 35 of the Act. The petitioner owned land subdivided into 20 lots, all subject to the covenant, which prohibited the cutting of evergreen trees in an area bordering a road through the subdivision. The subdivision and covenant were registered prior to a decision by the Court of Appeal downzoning the land and restricting its use to timber production and harvesting. The court found that the simple purpose of the covenant was to preserve evergreen trees along the roadway by maintaining a buffer between the road and the forestry area and by providing a treed area for a public right-of-way. As such, the covenant provided a legitimate benefit to the community. Its purpose remained valid and substantially unaltered despite the change in zoning. Voluntary inclusion of the land under the Private Managed Forest Land Act, S.B.C. 2003, c. 80 did not completely satisfy the purpose of the covenant because the petitioner could withdraw the land from the statutory scheme at any time. After considering each of the circumstances in s. 35(2) of the Act and finding no significant impediment to the petitioner’s current use of the land as a result of the covenant, the court upheld the covenant (Winmark Capital Inc. v. Galiano Island Local Trust Committee, 2004 BCSC 1754).

Unenforced Covenants

Lots created in a subdivision were subject to a restrictive covenant that the lands be used only for residential purposes. A parcel of land in this subdivision at the mouth of a river was unsuitable for residential development but was nonetheless covered by the covenant. In 1960, this parcel was developed as a marina. No one objected to this use of the property. In 1986, the owner built two boathouses. The municipality objected on the basis that the owner violated the restrictive covenant. On a s. 35 application, it is a court’s function to confine itself to the issues that the section raises and not to balance what is in the best interests of the parties. In considering whether a covenant is obsolete under subsection 2(a), a court is to consider obsolescence solely as it concerns the particular owner’s land and not whether the covenant is obsolete relative to all the other lands that it encumbers. Thus the question becomes whether, in considering changes in the character of the owner’s land, or in the neighbourhood, or for other circumstances, it can be said that the covenant is obsolete. “Obsolete” is something that “is no longer practised or used; discarded; out of date”. Applying this definition to the case, the covenant was clearly out of date because it would confine use of the owner’s land to residential construction when for 20 years it had been a marina (Re Crescent Beach Marina Co. (1967) Ltd., [1987] B.C.J. No. 2635 (QL) (S.C.)).

The defendant operated a waste oil collection, recycling, processing, and refining plant contrary to a registered restrictive covenant. Under it, the land was only to be used for auto-wrecking purposes. The defendant began leasing the land in 1983 and had operated its business on the land since then. The defendant’s landlord had made no mention of the restrictive covenant, and the plaintiff regional district had, until recently, “forgotten” about the restrictive covenant. The regional district brought an action to restrain the defendant from continuing its breach of the restrictive covenant and in its counterclaim the defendant sought cancellation of the restrictive covenant. The court cancelled the restrictive covenant. It was obsolete. The land was already in an industrial zone. The character of the land and the neighbourhood was entirely compatible with the defendant’s use of it. For the same reasons, the reasonable use of the land would be impeded without practical benefit to others if the covenant was not cancelled. The cancellation would not injure the regional district (Capital Regional District v. Millstream Industrial Park Ltd., 1990 CanLII 497 (BC SC)).

The petitioners’ property was subject to a building scheme prohibiting the construction of more than one dwelling house on a lot. The petitioners’ residence contained a secondary suite. Although secondary suites were prohibited under both the building scheme and the zoning bylaw, the city took no steps to enforce the bylaw against the petitioners or against other owners in the neighbourhood until complaints were lodged. Following a complaint about the petitioners’ secondary suite, the petitioners brought this application to cancel the building scheme with respect to their lot. In dismissing the application, the court found no evidence to satisfy any of the criteria in s. 35(2) of the Act. If the building scheme were truly obsolete, the proper remedy would be to cancel the prohibition against secondary suites for all of the lots governed by it, not just the lot owned by the petitioners. Neither the number nor the nature of the secondary suites had transformed the character of the neighbourhood. Maintaining the prohibition against secondary suites did not impede the petitioners in the reasonable use of their property and the court inferred, from the opposition to the petitioners’ application, that the prohibition conferred a benefit on some of the other owners by limiting the neighbourhood to single-family dwellings. Finally, although many owners had previously either offered secondary suites to tenants or acquiesced in theexistence of secondary suites within the neighbourhood, the building scheme was not patently or even likely unenforceable, and the court was unable to conclude that a future application from an owner for injunctive relief against the rental of all secondary suites would necessarily fail (Sargent v. Sandhorst, 2002 BCSC 107).

Impediments to Reasonable Use

The petitioner entered into a 10-year lease to purchase agreement with the respondent provincial Crown under which the petitioner agreed to make improvements to the land. At the end of 10 years, the petitioner had completed the improvements and applied to purchase the land. The respondent told the petitioner that the conveyance would be subject to a covenant restricting the use of the land to agriculture. The petitioner consented to the covenant and purchased the land, but the land proved unsuitable for agriculture. The petitioner sought to remove the restrictive covenant so that he could develop the land for residential use. The respondent refused to remove the covenant unless the petitioner agreed to pay the difference between the value of the land “as is” and the value of the land without the covenant. The petitioner’s application under s. 35(2) for an order cancelling the covenant was allowed. The court held that the application was not premature even though the proposed use required rezoning. The petitioner had met the requirements of s. 35(2)(a), (b), and (d): the character of the neighborhood had changed; if the covenant was not cancelled, reasonable use of the land would be impeded without practical benefit to others; and cancellation of the covenant would not injure the respondent (Parmenter v. British Columbia (Ministry of Environment, Lands, and Parks), 1993 CanLII 1351 (BC SC)).

The petitioner owned an eight-acre property subject to a building scheme. The property was divided roughly in half by a 350-foot bluff. Under the building scheme, no independent access was provided to the lower half of the property and subdivision was prohibited. After the building scheme was registered, a new road, constructed outside the building scheme area, provided access to the lower half of the property. The petitioner applied to cancel or modify the building scheme to permit subdivision of her property. The court found that, because of the bluff, the petitioner could not make full use of her property. However, with new road access, the petitioner’s proposed subdivision would permit reasonable use of the entire lot. The court granted the petitioner’s application because, (1) the lower half of the property was physically independent from the remaining properties covered by the statutory building scheme; (2) traffic and noise would not increase in the building scheme area as a result of the subdivision; and (3) any home constructed on the new lot would not be visible from or impede the view of anyone within the building scheme area. It held that cancelling the restriction on subdivision as it applied to the petitioner’s property would permit reasonable use of the petitioner’s property and would not result in the loss of any practical benefit to the other owners within the building scheme area (Putt v. Kunetsky, 2010 BCSC 394).

The parties in this action were owners of residential lots in a subdivision subject to a statutory building scheme. The petitioners applied to have the court remove the building scheme from their three large lots so that the lots could be subdivided in accordance with preliminary approvals granted by the local government. The court found that the original purpose of the building scheme was to create a residential area with a reasonable number of good-sized single-family homes and to regulate the appearance of the neighbourhood. Even though there had been significant residential and commercial development in the surrounding area, the court found that the building scheme was not obsolete and that a number of owners, including the respondents, continued to rely on provisions in the scheme to protect the appearance and nature of their neighbourhood. However, based upon the zoning of the land and the preliminary approval to subdivide from the local government, granted after a full and complete appraisal, the court found that the building scheme was impeding the petitioners’ reasonable use of their property. As the building scheme itself clearly contemplated that there would be reasonable subdivision of the large lots, consent to modify the building scheme could not be withheld. In balancing the interests of all of the parties, the court concluded that modification of the building scheme to permit the proposed subdivision, which had already received preliminary municipal approval, rather than cancellation of the entire building scheme, was the appropriate remedy (Tri-X Timber Corp. v. Rutherford, 2010 BCSC 1001, affirmed 2012 BCCA 71). See also the annotation for this decision under s. 220 of the Land Title Act.

The question for a court in interpreting s. 35(2)(b) is whether the reasonable use of a petitioner’s property will be impeded without practical benefit to a respondent if an encumbrance, as it currently exists, is not modified. This is not the same as asking whether the denial of a modification will provide a practical benefit. The interpretation of s. 35(2)(b) should not be approached as an exercise in balancing the impediments that will be suffered by a petitioner if the encumbrance is not cancelled or modified against the benefits enjoyed by a respondent if the status quo is maintained. The petitioner bears the burden of proving that continuation of the encumbrance provides no practical benefit to others. If the burden is not met, the petition should not be granted. In this case, the Court of Appeal dismissed the petitioner’s application to modify a restrictive covenant because the height restriction in the covenant protected the respondents’ view and therefore provided a practical benefit to them (Wallster v. Erschbamer, 2011 BCCA 27, followed with approval 676604 B.C. Ltd. v. Nanaimo (City), 2011 BCCA 447).

The parties in Robb v. Walker, 2015 BCCA 117, owned adjoining properties. The defendant operated a marina on his property, access to which was by a right of way easement created in 1978 by the parties’ predecessors in title. It provided for a “free and uninterrupted easement … to use, enter, pass and repass over and upon” the easement area. The plaintiff’s residential property was the servient tenement. The defendant wished to lay sewer lines in the easement. The plaintiff sought a declaration that the easement did not permit the laying of sewer lines. The defendant pointed to the use of the easement for water lines, electricity, phone, and cable, and the terms of a consent order in previous litigation that included use of the easement for “any purpose in any way related to access to or from the dominant tenement”. The judge below held that the right to lay service lines was a different use and consequently a different easement not subsumed in a right of way that provided access for all purposes, and that the right of way did not grant a right to lay, install, repair, or service a sewer line. The defendant appealed. The decision was held and the appeal dismissed. Per Willcock J.A. (Tysoe J.A. concurring): in light of the deference due to the trial judge’s interpretation of the instrument, and of the fact there was no identified error in principle, it was not open to the court to set aside the judgment simply because the easement could be read differently. The task of the judge was to interpret the extent of the right of way granted to “use, enter, pass and repass over and upon” the easement (para. 54). The plain and ordinary meaning of the grant did not provide any right to the defendant to construct utilities underneath the land subject to the easement.

Similarly, the words of the grant did not suggest that the intent and purposes of the use of the land were the same as if it were a public road. A reference in the grant to vehicles, animals, and persons collectively as users of the easement suggested that the easement was to be used for transit. The fact that the easement was to be exercised “over and upon” the land suggested it was limited to the surface of the property. The reference to the “use” of the land could suggest some activity other than mere transit over it, but it could not be said the judge erred by interpreting the grant as he did. The apparent repetition of similar words “use, enter, pass and repass” suggested that they were variations on the same theme, rather than describing a different use. Justice of Appeal Chiasson (dissenting) stated (at para. 74) that “the judge erred in his application of the legal principles of contract interpretation, by not considering the implications of the words ‘use’, ‘enter’, and ‘pass and repass’, ... [and] by not considering those words in light of the surrounding circumstances at the time the easement was executed”. In addition to a right of access, the easement granted rights to enter and use the servient land, which included services such as power and water lines that existed at the time of the grant, and the ability to maintain them. There was nothing in the easement to suggest that that use was limited to existing services. It extended to other required services, including a sewer line. As a matter of legal principle, the judge was required to construe the easement language as broadly as possible, in light of the language used and the surrounding circumstances, but he narrowed the contents of the grant despite the presence of expansive language and no restrictive surrounding circumstances.

Two easements were registered on the petitioner’s title to his unit that secured rights of access to two neighbouring units and a small mechanical room. The petitioner said the situation was unfair because he was unable to use the hallway space for any practical purpose and yet his unit entitlement was calculated on the basis that it was his, requiring him to pay what he said was a disproportionate share of the building’s strata fees, electricity costs, taxes, and levies. The court dismissed the petition. As the mechanical room easement did not deprive the petitioner entirely of the use and enjoyment of the easement area, it was not invalid or unenforceable for the purpose of s. 35 (Biles v. Strata Plan LMS 749, 2017 BCSC 1560).

Two neighbouring commercial properties were formerly “landlocked” without access to the rear. In 1970, the previous owners granted each other reciprocal easements to allow for such access. Over the years, while streets were extended and a lane created to allow access to the rear of the defendant’s property, the defendant’s customers continued to use the easement for parking, deliveries, and access to the rear. The plaintiff applied under s. 35 to have the easement cancelled in order to pursue its redevelopment plans. The defendant claimed the easement was critical to the viability of its business and to accommodate its customers. In cancelling the easement, the court found the reference in the grant of easement to “agents and servants” served to restrict those authorized to use the easement. Members of the public who attended for the purposes of shopping at the defendant’s business were not part of the authorized group. The plaintiff’s reasonable use of its property would be impeded, without practical benefit to the defendant, if the easement were not cancelled. While it did not appear that the defendant would suffer injury, the defendant was granted leave to apply with further evidence to determine if there should be an order for compensation (Prior Holdings Ltd. v. The Source Enterprises Ltd., 2019 BCSC 1871).

Required Consents

To expand its pub operation, the defendant D purchased a portion of property the defendant L was developing. The parties agreed on registration of a restrictive covenant against the remainder of L’s property prohibiting use of it for a restaurant or licensed premises without D’s consent. As well, D obtained an easement over a certain area for pub parking. The plaintiff agreed to purchase another part of L’s property, including much of the parking lot, and intended to operate a restaurant. D refused to consent. In addition to suing L, the plaintiff sued D, alleging that it had orally agreed with L not to object to an unlicensed restaurant. In the alternative, the plaintiff asked the court to modify the restrictive covenant. The court allowed D’s applications under Rules 18A and 19 [now Rules 7-3 and 9-7] to dismiss the plaintiff’s claim. The court refused to modify the restrictive covenant as the plaintiff met none of the requirements under s. 35. In any event, the court was not disposed to exercise its discretion in favour of the plaintiff. D could be seriously affected by the plaintiff locating on the adjacent premises. It is not appropriate for a court to exercise its discretion to the detriment of a property owner merely because another business seeks to acquire a profitable location (McDonald’s Restaurants of Canada Ltd. v. Lanco Assembled Properties Ltd., [1988] B.C.J. No. 2056 (QL) (S.C.) (Chambers)).

Inequitable Results

Before sale at a public auction, the district as owner of the land and the petitioner as a prospective purchaser agreed that a restrictive covenant should be attached to the land in order to keep the price low and the number of potential purchasers small, while still enabling the district to receive fair market value. The covenant included a condition precedent which required the owner to pay the district, as a condition of the condition precedent’s removal, the amount of any increase in the value of the land that would result from its discharge. The covenant was registered against the land and the petitioner, who succeeded in purchasing the land, later sought its cancellation under s. 35(2). The court found that the issue before it was not whether the charge should be cancelled under s. 35(2), but whether the covenant should be discharged on its terms. Regardless of whether the petitioner could bring itself within any of the conditions in s. 35(2), the relief sought by the petitioner was to be rejected on the basis that the result would prove inequitable. The petitioner had taken the benefit of the agreement between the parties and, by bringing its application, sought to avoid the quid pro quo (Burmont Holdings Ltd. v. Chilliwack (District), 1994 CanLII 3326 (BC SC); see also the annotation for this decision under s. 219 of the Land Title Act in this Manual).

Bylaws as Substitutes

A municipal corporation (the “petitioner”) proposed to cancel the registration of a statutory building scheme and replace it with a zoning bylaw, the terms of which had not been established. Under the building scheme, the respondent was entitled to injunctive relief or to the protection of s. 35 of the Act. These remedies are different from the right of a respondent to make representations at a public hearing because the representations have no binding effect on the municipal council. If the petitioner had in mind some particular use offensive to the building scheme that the zoning bylaw allowed but the scheme did not, the court could award damages. However, where the loss of a legal right cannot be tangibly expressed in damages, no compensation can be awarded and the cancellation offends s. 35(2)(d) (District of Mission Development Corporation v. 334128 British Columbia Ltd., 1991 CanLII 1749 (BC SC)).

Bylaw Abandoned

The petitioner, a commercial greenhouse operator, sought to cancel restrictive covenants registered against its land in favour of the respondent local government. The covenants restricted the type of fuel the petitioner could use in heating its greenhouses. Based on its stated intention of enacting a new bylaw to deal with greenhouse heating fuel, the respondent imposed the covenants as conditions of the petitioner’s building permits. Three years after the covenants were registered, the respondent had not initiated the public hearings required before the bylaw could be passed and showed little signs of doing so. The court found that the covenants were intended to be temporal in nature. They were not intended to restrict the petitioner’s use of its lands, possibly forever, under the threatened enactment of a bylaw, long since prepared but not yet enacted. As the respondent had not enacted the bylaw within the time reasonably permitted under s. 929 of the Local Government Act (now, s. 463), the covenants were no longer valid and should be cancelled under s. 35(2)(e) of the Property Law Act (Windset Greenhouses (Ladner) Ltd. v. Delta (Corporation), 2001 BCSC 462, affirmed 2002 BCCA 70).

Restrictions on Building

Density Control—Successful Applications

The petitioner sought modification of a restrictive covenant in a deed of land under which only two houses could be built on each of 14 lots. The original object of the covenants in question was to create a residential area with a limited number of single family homes. That object would not be defeated by the addition of one single family home on the petitioner’s lot. In the context of s. 35(2)(b), the proposed modification was clearly a reasonable use to the petitioner and, if not permitted, such use would have been impeded without practical benefit to others. As for s. 35(2)(c), all persons entitled to the benefit of the restrictive covenant, other than the respondents, agreed to the modification. That did not fully meet the conditions of the paragraph, but could be a factor for a court to consider in making an order on the basis of another paragraph. As for s. 35(2)(d), the proposed construction would be screened from the respondent and so the modification would not injure any person entitled to the benefit of the covenant.

A court must deal with each application for modification on its merits. A “thin edge of the wedge” argument did not work. It simply did not follow that other modifications would come about as a result of allowing this one (Knight v. Stapleton, 1985 CanLII 485 (BC CA)).

The petitioners sought removal of a restrictive covenant provision preventing the construction of a duplex on their subdivision lot pursuant to s. 35(2)(a), (b), or (d) of the Property Law Act. The application could not succeed on the obsoleteness ground of s. 35(2)(a). Given that the remedy is discretionary, the petitioners faced the burden of establishing on the balance of probabilities that either the nature or the use of the covenant was obsolete. Although there had been significant changes in the neighbourhood, which had to be defined more broadly than the subdivision lots, that fact alone did not make the restrictive covenant obsolete. Because all of the lots in the subdivision were single family dwellings, the nature of the covenant could not be said to be obsolete, and at best there were an equal number of persuasive arguments on the side of the petitioners about the obsolete use of the covenant as there were on the side of the adjoining property owners within the subdivision who opposed the application. The petitioners were, however, entitled to succeed under s. 35(2)(b). The petitioners’ lot was located on a corner of the subdivision and the proposed duplex would be accessed by a different road than the one which bordered the other lots. Largely due to this circumstance, there was no practical benefit to the other lot owners by leaving the restrictive covenant in place. Whether the duplex would affect property values was uncertain. Furthermore, it was reasonable that the petitioners be able to use their lot as a duplex because the lot was zoned for that purpose and there were other duplexes nearby (Matthews v. Howse, 1994 CanLII 1769 (BC SC)).

A 1.5 acre lot that was subject to a restrictive covenant was subdivided into seven strata lots, five of which were purchased by the appellant. The appellant sought to develop each of its five lots, but the respondent claimed that the restrictive covenant that attached to each of them upon subdivision prohibited development. The restrictive covenant, which had been imposed on the land in 1936, stated that only one dwelling was to be erected on the land at any one time. One dwelling already existed on one of the two new strata lots not owned by the appellant. The restrictive covenant did not contain a provision prohibiting subdivision. The Court of Appeal allowed the appeal for two different reasons. A majority of two held that extrinsic evidence failed to clarify ambiguity on the face of the instrument and it was impossible to ascertain the lands intended to benefit from the covenant. The third appeal court judge allowed the appeal on the grounds that the trial judge erred in failing to modify or cancel the restrictive covenant pursuant to s. 35(2)(b) of the Property Law Act. The objections to development which were expressed by various parties, including the respondent, were unrelated to the objects of the covenant. If the restrictive covenant was not modified to permit construction of one house on each of the strata lots, each of which was as large or larger than the neighbourhood’s surrounding lots, the reasonable use of the land would be impeded without practical benefit to others (Kirk v. Distacom Ventures Inc., 1996 CanLII 1442 (BC CA), reversing 1994 CanLII 1030 (BC SC); for a discussion of the use of extrinsic evidence, see the annotation for this decision under s. 221 of the Land Title Act in this Manual).

For a discussion of building restrictions on lots subject to a building scheme and later subdivided, see the annotation for Goodwin v. Ridley, 2006 BCCA 581, under s. 220 of the Land Title Act in this Manual.

Density Control—Unsuccessful Applications

The petitioner applied for an order modifying a statutory building scheme to permit development of one lot in a subdivision as a multi-family dwelling site. The building scheme restricted construction to one single family dwelling per lot. The application was not premature because the municipality was prepared to issue the necessary development permits. The petitioner could take no further steps to develop the property until it obtained the desired order. If the court ordered modification of the building scheme, the owners of the adjoining property would suffer a decrease in the value and enjoyment of their properties. It was significant that the lot was not “ripe” for development and that the petitioner was instrumental in placing the building scheme in the first instance. The petitioner did not establish the necessary requirements under s. 35(2)(b) (Re Stirling Estates Ltd, [1985] B.C.J. No. 824 (QL) (S.C.)).

The petitioner’s two adjoining lots were subject to a restrictive covenant in favour of the respondent’s land restricting development on the “double lot” to a single dwelling house and garage. The petitioner applied under s. 35 to have the restrictive covenant removed. The application was not premature because the situation in the neighbourhood was stable and zoning was unlikely to change in the foreseeable future; if the grounds for cancellation of the restrictive covenant did not currently exist, there was nothing on the horizon that might change that situation. However, none of the grounds provided for in s. 35(2) was satisfied. The benefit of the covenant, which provided a valuable barrier against increased density to the respondent, and the “injury” to her which might result from its cancellation, were sufficient to bar the petitioner from the order sought under either s. 35(2)(b) or (d). Furthermore, the neighbourhood had been a single family residential neighbourhood at the time the covenant was created and still was, despite an increase in density due to the elimination of other “double lots”. Consequently, the covenant was not obsolete within the meaning of s. 35(2)(a). Finally, the instrument creating the restrictive covenant was valid and enforceable. The views of the other neighbouring landowners on the issues were of no significance to the court’s decision because the restrictive covenant was not for the benefit of them or their lands (Mortimer v. Dickey, 1994 CanLII 470 (BC SC)).

A restrictive covenant and building schemes provided that only one private dwelling house could be erected on each lot within a subdivision. One of the lots subject to the restriction was subdivided into two with a house on the southern portion. The petitioner, the owner of the northern portion, sought to have the restriction modified or cancelled under s. 35(2)(b), (d), or (e) so that a house could be built on his portion of the lot. The respondent owners of the southern portion objected. The petitioner was not entitled to a modification or cancellation. The respondents enjoyed a practical benefit as a result of the restrictions, namely, the maintenance of the private character of the area through limits on housing density. The respondents also showed that they would be injured through loss of privacy and increased density in the event that the petitioners were allowed to build a house on the northern portion of the original lot. The restrictive covenant and building schemes, being unambiguous in light of the surrounding circumstances, were enforceable and valid (Gubbels v. Anderson, 1994 CanLII 411 (BC SC), affirmed 1995 CanLII 1377 (BC CA); see also the annotation for this case under s. 220 of the Land Title Act in this Manual).

The petitioners sought to cancel a restrictive covenant over land which they owned. The restrictive covenant prohibited an owner from building more than one private dwelling on a lot and from subdividing any lot. The application was held not to fall within s. 35(2) of the Act, first, on the basis that the restrictive covenant was not “obsolete” under s. 35(2), as it existed to control density in the area, and continued to do so presently. Second, with regard to the practical benefits, cancelling the covenant would have been injurious to the respondents opposing the application (Murrayfield Developments Ltd. v. Brandon, 1995 CanLII 1589 (BC SC)).

The petitioner, NPL, and the respondents were registered owners of lots in a residential development that were subject to a registered statutory building scheme. The petitioner, CME, was a wholly owned subsidiary of NPL and the registered owner, in trust for NPL, of lands adjacent to the residential development. The building scheme restricted the use of land to private single-family residences, regulated construction and other like matters, and specified that the restrictions were for the benefit of all lots. Aside from NPL, the registered owners of the lots had relied on the provisions of the building scheme since its registration in 1990. NPL and CME applied for an order cancelling the restrictions under the building scheme against the lot owned by NPL, leading to an inference that the lot would be developed for multiple family residences. While the application was not premature, the court dismissed the application on the grounds that changes in the character of the land had not occurred and the building scheme was not obsolete within the general class of factors under s. 35(2)(a) of the Act. In addition, the respondents were adamantly opposed to a modification of the building scheme under s. 35(2)(c), and the building scheme was not invalid, unenforceable, or expired under s. 35(2)(e) by virtue, simply, of an agreement between NPL and CME (North Pacific Land Ltd. v. Kroeker, 1995 CanLII 1953 (BC SC) (Chambers)).

In earlier proceedings between the parties, the court held that the defendant was precluded by a statutory building scheme from constructing anything other than a single family residential dwelling on his lot. The defendant then brought this action seeking relief from the scheme’s restrictions under s. 35 and asking that the scheme be modified or cancelled on the basis that it was obsolete or unenforceable. In dismissing the defendant’s counterclaim, the court held that the scheme was not obsolete or unenforceable because the character of the neighbourhood had not changed, the objectives served by the scheme were still alive and flourishing, and the plaintiffs clearly enjoyed real and tangible practical benefits from the scheme. The court also granted an injunction against the use of the lot for any purpose other than a single family residential dwelling (417489 B.C. Ltd. v. Scana Holdings Ltd., 1997 CanLII 4401 (BC SC)). In subsequent proceedings, the court refused to make an order for equitable damages in lieu of mandatory injunctive relief. The defendant was ordered to take any steps necessary to modify the building to ensure that it complied with the building scheme (1998 CanLII 6770 (BC SC); for an annotation of the earlier proceedings between the parties, see s. 220 of the Land Title Act in this Manual).

Changes in Circumstances—Highway Development

A covenant to protect a “no build” area in favour of the Ministry of Transportation and Highways was held to be obsolete under s. 35(2)(a) of the Act where, several years after the covenant was extracted from the land owner, the highway for the corridor that the covenant had been registered to protect, remained unfunded and not approved for construction by the ministry (Maple Ridge Projects Ltd. v. British Columbia (Minister of Transportation and Highways), 1997 CanLII 3643 (BC SC)).

Changes in Circumstances—Building Schemes

The petitioners and respondents owned houses in a subdivision subject to a building scheme. The building scheme was registered in 1978 and controlled exterior appearances, design, and materials. Since 1978, many of the owners, both petitioners and respondents, altered their houses contrary to the provisions of the scheme. In response to a 2006 consultant’s report citing serious deficiencies in the building envelopes, the petitioners applied to court for an order cancelling the building scheme. The court found that the overall design of the houses, dating from the 1970s, was inadequate to repel the rains of the B.C. climate. The serious and substantial evidence of water entry, the development of newer and better building materials, and the advent of better architectural and design responses to improve the health of the inhabitants and the lives of the houses all supported the court’s conclusion that the 1978 restrictions on exterior appearance no longer had sensible application to 30-year-old houses in need of urgent remediation and equally urgent use of modern building materials and techniques. In granting the petitioners’ application, the court held that the restrictions in the building scheme were obsolete and directed that the scheme be cancelled (Bertamini v. Clark, 2007 BCSC 1090).

Protective Covenants

The defendants owned property against which was registered a restrictive covenant under s. 219 of the Land Title Act. The covenant provided that no building could be located at a distance greater than 60 metres from the highway right of way, or 200 metres from the west boundary of the property. The reason for the covenant was the possibility of flood damage. In spite of the covenant, and the advice of officials that they would not approve proposed construction, the defendants constructed a basement on the site about 200 metres from the highway. The plaintiff sought a declaration that the defendants had breached the covenant and an injunction requiring the defendants to remove the offending structures. In response, the defendants claimed that the covenant was obsolete and unnecessary, and pleaded s. 35 of the Property Law Act. The land was likely to be subject to flooding. To permit construction of buildings in face of the hazards outlined by the plaintiff’s witness would not be reasonable and to restrict construction would not impede the reasonable use of the land for such purposes as those to which it had previously been put. The risk was present and ongoing and so the restriction could not be said to be obsolete. The court denied the defendants’ application for relief under s. 35. The defendants could have, had they seen fit, initiated proceedings for the relief they claimed under s. 35. They did not do so but instead, and in the face of the restrictive covenant and with knowledge of it, proceeded as they did. By so doing, they ought to be held to have deprived themselves of the more favourable consideration to which they might have otherwise been entitled (British Columbia v. Metheral, [1987] B.C.J. No. 1775 (QL) (S.C.)).

The petitioners’ Lot B was subject to a restrictive covenant in favour of the respondent’s adjoining Lot C. The covenant was intended to protect the privacy of Lot C by limiting construction on the eastern 1/3 of Lot B and prohibiting construction on its western 2/3. After investigating and confirming the effect of the covenant, the respondent purchased Lot C, demolished a small existing dwelling and built a large home, garage, and swimming pool that took advantage of the views over the undeveloped western part of Lot B. The petitioners then applied for cancellation of the covenant to permit redevelopment of Lot B. The court found that, although many of the homes in the neighbourhood had been redeveloped, the covenant itself was not part of a larger building scheme. The question of the covenant’s obsolescence must therefore be addressed by determining its effect on Lot C alone. The original intention of the covenant was to protect the privacy of the home and the view from Lot C. The covenant continued to serve its original purpose. It was neither obsolete nor vague. As the petitioners’ had no proposal before the court for a specific plan or modification of the covenant guaranteeing the benefit of the covenant would not be compromised, the court found that the petitioners failed to demonstrate the covenant ceased to be of benefit to others. In conclusion, the court found that none of the criteria for cancellation or modification existed and the petition was dismissed (Berrettoni Estate v. Belzberg, 2006 BCSC 225).

Unenforced Covenants

The petitioners purchased a property on which a house had been constructed in 1941. The house was located in such a position that it violated the provisions of a restrictive covenant registered against the property. The purpose of the restrictive covenant was to preserve the view of the adjoining property owners. No one had ever objected to the presence of this building. The petitioners wanted to build a new house on the property, which would also be partially constructed on the restricted portion of the lot, and sought cancellation of the restrictive covenant. The respondents, who owned a lot benefited by the covenant, opposed. The covenant was not obsolete under s. 35(2)(a) because there had been no change in the neighbourhood. Contrary to s. 35(2)(b), the covenant did have a practical benefit to others. Under s. 35(2)(d), the court has authority to modify a covenant if the modification will not injure the person entitled to the benefit of the covenant. The covenant could be modified to prevent uncertainty regarding future development of the petitioners’ lot and maintain the original object for the benefit of the respondents (McCooey v. Hertzberg, [1989] B.C.J. No. 337 (QL) (S.C.)).

Subdivision and Road Dedication Required

The petitioner owned property that was subject to an enforceable covenant in favour of and for the benefit of the local government. The covenant restricted the use of the petitioner’s property by requiring that it be subdivided before building permits were issued. Although the petitioner was no longer interested in subdividing the property and, instead, wished to use the property for a single-family dwelling, the local government still intended to require that a portion of the property be dedicated as a road when it was developed and demonstrated this intent by acquiring adjacent land for this purpose from a third party. In finding for the local government, the court determined that the purpose of the covenant was not obsolete, that the practical benefit of the covenant would be lost to the local government if building permits were issued for a single-family dwelling without the required road dedication, and that the reasonable use of the petitioner’s property for a single-family dwelling would not be impeded by the dedication required under the covenant (Deep Six Developments Inc. v. Richmond (City), 2002 BCSC 955, affirmed 2003 BCCA 518; see also the annotation for this decision under s. 219 of the Land Title Act).

Parking Covenants

The petitioners were property developers who planned to redevelop two lots in White Rock with mixed-use high-rise buildings. The respondent was the owner of an adjacent property. The petitioners applied to cancel a restrictive covenant registered against their land in 1959 for the benefit of the respondent’s land, under which the grantor covenanted that if it constructed new buildings, specified units of area would be set aside for parking. The petitioners applied for a declaration that provisions of the covenant were invalid and unenforceable, or alternatively, for an order under s. 35(2) of the Property Law Act that the covenant be cancelled because it was obsolete. The petition was dismissed, with the chambers judge finding the covenant enforceable and that it required surface parking. On appeal, the petitioners no longer sought an order under s. 35(2). The petitioners sought to have the covenant declared void, either on the basis that it was impermissibly vague or because it was not a negative covenant and so could not run with the land. Alternatively, they sought a declaration that the parking areas in the covenant could include parking at ground level or above or below ground. The court held that a parking covenant such as the one in this case was properly characterized as “negative in substance”: all the covenant did was prohibit the appellants from constructing or maintaining buildings in their lands unless they also provided parking spaces commensurate with the area of the property occupied by the buildings. Accordingly, the covenant could run with the land. Also, the vagueness argument could not succeed. However, it was clear that the owner of the dominant tenement was not particularly concerned with whether the servient tenement’s parking was above or below ground or at ground level. The court allowed the appeal in part, granting a declaration that the parking covenant could be satisfied by setting aside the required area of parking spaces, whether at ground level or above or below ground (1530 Foster Street Ltd. v. Newmark Projects Ltd., 2018 BCCA 198).

Prohibited Improvements

A municipality applied to compel owners of certain property to remove improvements they had erected contrary to a restrictive covenant. The owners, on the other hand, sought cancellation of the restrictive covenant. Only the owners of one neighbouring property objected to the improvements and they had largely withdrawn their objections, having reached an agreement on modifications to the improvements. The municipality believed itself compelled to object on the ground that, if the covenant was not strictly enforced, other owners would be tempted to apply for similar relief. If further applications developed, a court had to consider each on its merits. An increase in applications would not necessarily be bad. The court ordered that the modification be the subject of an instrument to be registered in the land title office so as to obviate disagreement between successors (North Vancouver (District) v. Metzger, 1990 CanLII 2113 (BC SC)).

Bylaws as Substitutes

Notes on Case Law: The adequacy of bylaws to protect the interest of those parties who benefit from a restrictive covenant or building scheme subject to cancellation or modification under s. 35 is often considered by the courts. While the cases generally express the view that bylaws are not a substitute for a restrictive covenant or building scheme, the existence of bylaws has also been used to support decisions to cancel or modify a charge.

An applicant applied for cancellation or modification of a restrictive covenant on the ground that it was obsolete. The application, which was heard on May 26, 1980, was premature under s. 35(2) of the Act because, on April 25, 1980, the applicant had obtained an order for service of notice, on all persons who might be interested, by publication in a local newspaper. Such persons may have had insufficient time in which to appear. If the court erred in this conclusion, the petitioner still did not succeed on the merits. Although municipal zoning regulations and bylaws overlapped to some extent with the restrictive covenant, it was not obsolete. One clause imposed stricter requirements and other clauses dealt with other matters. The submission that the restrictive covenant would necessitate construction of a building the aesthetic value of which would be less than that proposed by the petitioner did not meet the test in s. 35(2)(a) (Re Beach Grove Realty Ltd., 1980 CanLII 647 (BC SC)).

Errors in Registration

Through inadvertence, the petitioner registered a statutory building scheme over all of its lands. Subsequently, part of the land was subdivided and developed as a residential area. The petitioner did not intend that the building scheme apply to the remainder of the lands. The building scheme as it pertained to the remainder was obsolete from the outset. If the scheme continued to be registered over the remainder, the petitioner’s reasonable use of the remainder would be impeded and there would be no practical benefit to the residents of the subdivided area. In ordering the modification of the building scheme as it applied to the remainder of the lands, the court found that the residents of the subdivided area would still enjoy the benefit of the scheme and that the modification would not cause undue hardship or devaluation of the residents’ property. Furthermore, any future development of the remainder would have to go through the normal zoning process, thereby protecting those potentially affected from any undue injury (Mountain Development Corp. v. McCrodan, 1995 CanLII 780 (BC SC)).

Restrictions Imposed by Registrar

Restrictive covenants concerning the design of homes which were imposed by an approving officer as a pre-condition of subdivision approval were held to be valid and enforceable (Neufeld v. Surrey (City), 1995 CanLII 3086 (BC SC); see also the annotations for this decision under ss. 86 and 219 of the Land Title Act in this Manual).

Invalid, Unenforceable, or Expired Instruments

An agreement between two parties contained a restrictive covenant requiring the petitioner to construct “improvements for the public good” in connection with a hotel the petitioner planned to build at a transit station. When the parties could not agree on the improvements, the petitioner applied to cancel the restrictive covenant. The application was not premature. Future events would not offer clarification of the essential ambiguity of the covenants under consideration. The term “improvements for the public good” was inherently vague and uncertain, especially when it had application to a public facility like the station and improvements of a more private nature such as the hotel. Covenants that run with the land must be clearly and distinctly stated so that present and future owners may know their obligations with precision. The covenants here lacked definition and precision and were open to a variety of interpretations, and therefore should be cancelled under s. 35(2)(e) (Newco Investments Corporation v. British Columbia Transit, 1988 CanLII 2845 (BC CA)).

The petitioner sought cancellation of a restrictive covenant limiting construction to nothing higher than a one-storey building. The petitioner had entered into an interim agreement of sale of the property, subject to removal of the covenant. The court found that, while the original covenant created a contractual obligation limiting construction, the covenant was not a restrictive covenant capable of running with the land. The application was not premature. All parties had received notice, one had chosen not to make representation, and the petitioner had taken all steps possible to sell the property. There was a potential buyer and the sale depended on the outcome of proceedings. The respondent was protected by municipal regulations relative to development, so the petitioner was entitled to the relief sought (Norvale Investments Ltd. v. Mission City Investments Ltd., 1990 CanLII 1975 (BC SC)).

The appellant challenged the validity of a restrictive covenant registered against his strata lot in a building operated as a resort hotel to the extent that the strata lots were not occupied by their owners. The owner developer had entered into a covenant with itself, and the covenant was registered against all of the strata lots in the building, which were subsequently sold by the owner developer to purchasers, except that the strata lot containing the front desk was sold to a numbered company and subsequently leased to a company that managed the hotel. The covenant prohibited rental of a strata lot to the public except in accordance with a rental pool management agreement setting out the terms under which the resort’s rental manager would rent the unit. The form of the agreement was not attached to the covenant and had to be negotiated between the owner of the strata lot and the rental manager. The court dismissed the appellant’s application for a declaration that the covenant was void, which the appellate court reversed. Relying on Newco Invt. Corp. v. B.C. Transit, 1987 CanLII 2662 (BC CA) and Re Sekretov and City of Toronto, 1973 CanLII 712 (ON CA), the court declared the covenant void for uncertainty. There was no certainty with respect to the terms of the rental pool management agreement and no independent mechanism (such as arbitration) by which the terms could be established. As a result, there was uncertainty with respect to the specifics of the restricted use of the strata lot, and the covenant lacked the required certainty (585582 B.C. Ltd. v. Anderson, 2015 BCCA 261).

The petitioners owned a strata lot in a resort complex. The respondent, the owner of the strata lobby unit, ran a centralized rental management system (“RMS”) under which strata lots were made available for rent to the public. The RMS was protected by a restrictive covenant registered against the title to each strata lot. The covenant prohibited owners from renting their units except through the centralized RMS. The petitioners applied under s. 35(2)(e) for cancellation of the covenant, claiming it was invalid by reason of, inter alia, it being impermissibly vague. Granting the petition, the court followed 585582 B.C. Ltd. v. Anderson, (see above) upon finding the covenant impermissibly uncertain because it provided that the petitioner’s lot could be made available for rental use only through the RMS on unspecified terms. In other words, the terms on which the rental management pool was to operate were not set out in, appended to, or incorporated by reference into the covenant. Even if it were permissible to go “outside the covenant” by consulting the draft rental management agreement that accompanied the legislatively required disclosure statement, this would not assist the respondent. Given the absence of any actual agreement as to the terms of the RMS, there was nothing more than “an agreement to agree” with no specified mechanism for resolving any failure to do so. The court said it was reinforced in its interpretation of Anderson by the more recent decision in 1120732 B.C. Ltd. v. Whistler (Resort Municipality), 2020 BCCA 101 (see below). Cancellation of the covenant registered against the petitioners’ title would call into question the enforceability of similar covenants on the other 301 strata lots, and that could pose a threat to the continued viability of the RMS. However, the law requires that restrictive covenants be sufficiently precise for present and future owners to be able to ascertain the restrictions on the use of their property. Further, the outcome in this case might not be dispositive insofar as the question of remedy was concerned, since another party in another case may argue for modification of the covenant rather than cancellation (Kent v. Panorama Mountain Village Inc., 2020 BCSC 812).

A covenant registered in favour of the Resort Municipality of Whistler and municipal zoning amendment bylaws precluded owners of strata units in hotel-like complexes from renting out units except through a rental pool manager; required all units to be available as temporary lodging to visitors when not used by owners; and required all units within hotel-like complexes to be operated under a single hotel business licence. On judicial review, the court found the covenant and bylaws to be valid and within the municipality’s statutory authority to enact under s. 479 of the Local Government Act and rejected the petitioner’s alternative argument (use of the property being lawful non-conforming use under the Local Government Act). The court found the petitioner was seeking an exemption from the bylaws, a matter improperly raised in a judicial review petition. The petitioner’s appeal from judicial review was dismissed. On a “reasonableness” standard of review, the court said the municipality’s implicit conclusion that it had the statutory authority to enact the impugned bylaws was reasonable. The court said the covenant was neither vague nor uncertain in requiring the use of a rental pool arrangement and did not exceed the municipality’s statutory authority. The court said (at para. 108) that 585582 B.C. Ltd. v. Anderson

does not stand for the proposition that, unless the covenant sets out all of the terms of a rental pool arrangement, it is vague or uncertain. Instead, it stands for the proposition that a covenant will be unenforceable if it requires an owner of property wishing to rent out their unit to first enter into an agreement with a third party having unknown terms and if there is no mechanism for settling the terms of the agreement.

In this case, the covenant did not require a strata lot owner to enter into an agreement. It simply required the lot to be placed in a rental pool approved by the municipality for rental to the public for the days on which the owner was not permitted to use it. It was open to the strata corporation, either directly or indirectly, to operate the rental pool without the owners having to enter into agreements with a third party. The absence of the terms of a rental management agreement did not create uncertainty in the covenant because the covenant did not require such an agreement to be entered into. There was no ambiguity (or vagueness) as to the restrictions imposed by the covenant, which provided a mechanism for the municipality to monitor and enforce its substantive terms. The covenant was not vague or uncertain simply because it required the strata lot in question to be placed in a rental pool. The provisions of the covenant were clear and did not require the strata lot owner to enter into an agreement with unknown terms. The petitioner also failed to establish prior non-conforming use (1120732 B.C. Ltd. v. Whistler (Resort Municipality)).

Developer No Longer Exists

The petitioners owned Lot 14 in a residential subdivision subject to a building scheme that required owners to obtain the approval of the developer (the grantor) for any house plans before applying to the local government for a building permit. Prior to the petitioners’ purchase of Lot 14, it was owned by the owners of Lot 15 (the respondents) and used as part of their grounds. At the time Lot 14 was purchased, the petitioners entered into a restrictive covenant with the respondents giving them a large measure of control over the design of any home on Lot 14. The petitioners obtained approval from the local government for a variance as to the siting of their proposed home. By this time, the grantor no longer existed and no one had been designated to exercise the grantor’s powers. The respondents objected to the siting approved in the variance and gave notice to the petitioners that they intended to rely on both the building scheme and the restrictive covenant to prevent construction of any house on Lot 14 that did not meet with their approval. The petitioners brought this action for an order modifying or cancelling the building scheme on the grounds that it was obsolete. The court confirmed that where a grantor no longer exists, a person seeking to do something that required the grantor’s consent could only proceed with the consent of all other owners subject to the building scheme or by way of an application to the court under s. 35 of the Act. In this case, the court confirmed that the express purpose of the building scheme was to create lots for the construction of single family homes of a quality and esthetic standard approved by the grantor. That purpose was realized many years ago when the lots were sold and built out. The respondents’ objections to the siting approved in the variance would for all practical purposes frustrate the very purpose for which the subdivision was developed in the first place—which was to provide lots for single family homes. The court found that the building scheme was not intended to subject indefinitely every owner who wished to make alteration to the discretion of every other owner and therefore that it was obsolete (Larocque v. Mackenzie, 2014 BCSC 2223).

Restrictions on Subdivision

Successful Applications

The petitioner wanted to subdivide his lot and sought partial cancellation of a restrictive covenant. The covenant was created and registered in 1954 before the lands became part of the City of White Rock. The rural character of the neighbourhood had changed. The area was now substantially developed and further changes would be controlled by the city’s bylaws. In these circumstances, the covenant which gave the grantor authority to approve building plans, locations, materials, and colour schemes and which specified permitted setbacks from road allowances was obsolete under s. 35(2)(a). A covenant preventing a subdivision that has received preliminary approval from the City impedes an owner’s reasonable use of the land without practical benefit to others under s. 35(2)(b) (Re Stevenson, 1992 CanLII 1710 (BC SC)).

The petitioners sought an order cancelling or modifying a restrictive covenant over lands and premises owned by them. In earlier proceedings brought by the owners of other lots in the subdivision and unopposed by the petitioners, the covenant was modified with respect to the other lots, but not with respect to the petitioners’ lands. The effect of the modification sought by the petitioners would be to put them on exactly the same footing as other residents in the area by allowing them to apply to subdivide their two lots into not more than two lots each. No evidence justified a conclusion that the respondents would be injured, prejudiced, or affected other than in the most minor fashion by the modification sought by the petitioners. On this basis, the court was satisfied under s. 35(2)(d) that a modification would not injure the persons entitled to the legal benefit of the restrictive covenant. The court found that, because each of the considerations in s. 35(2) is disjunctive, the circumstances justified an order modifying the original covenant (Hertzberg v. Claxton, 1999 CanLII 6189 (BC SC)).

Unsuccessful Applications

A subdivision was subject to a building scheme containing a restrictive covenant which prevented subdivision of any lot the effect of which would be to create lots less than one acre in size. The restrictive covenant was not obsolete under s. 35(2)(a) and should be enforced. The subdivision, save for housing and other minimal requirements, had not changed appreciably since it was created over 30 years before. The present zoning requirements required that, before construction of a residence could take place, there had to be a minimum of 12,000 square feet. These factors were proof positive that the residents of the subdivision considered the restrictive covenant to be as valid, purposeful, and alive then as it was when it was created (Bartholomew v. Clippingdale (1981), 16 M.P.L.R. 213 (B.C.S.C.)).

The applicants wanted to subdivide their lot, which was subject to a building scheme. The building scheme required that no subdivisions were to be made without the consent of the developers of the subdivision in which the lot was located. The developers no longer had a financial interest in the property, but withheld their consent because of protests by other lot owners. The applicants then sought modification of the building scheme under s. 35 in order to permit the subdivision. The court refused on the basis that the test for judicial interference is a high one and that the restriction was not unreasonable in the circumstances. The reasonable objections of neighbouring lot owners were sufficient grounds for denying the application (Hewko v. Salco Management Ltd., 1993 CanLII 1232 (BC SC)).

The petitioner purchased several lots in a subdivision which were subject to a registered statutory building scheme providing that no lot could be subdivided. The purchaser sought to subdivide the lots and applied for an order modifying the building scheme accordingly. Residents of the subdivision opposed the application. Many people would be “injured” if the application were allowed. The covenant preventing subdivision was not obsolete and reasonable use of the land was not impeded (Tri-Vista Holdings Ltd. v. Subdivision Plan 24948, 1993 CanLII 1788 (BC SC)).

The petitioner, whose lot was subject to a building scheme prohibiting subdivision, sought modification of the scheme under s. 35 so that her lot would be exempted. The court denied her application on the basis that she was unable to satisfy any of the requirements under s. 35(2), noting in particular that a view is one of the amenities which a building scheme protects and that neighbours whose views would be compromised by a proposed modification have a right to rely upon the building scheme to prevent approval (High Point Enterprises Ltd. v. Subdivision Plan 47460, 1993 CanLII 1557 (BC SC) (Chambers); see also the annotation for this decision under s. 220 of the Land Title Act in this Manual).

The petitioner owned a lot that was subject to a restrictive covenant prohibiting subdivision without the approval of the respondent. The petitioner sought an order directing the respondent to approve a proposed subdivision of the lot or an order modifying or cancelling the restrictive covenant under s. 35 of the Act. The court held that the decision of the respondent in refusing to approve the subdivision was not objectively and manifestly unreasonable. The respondent’s reasons for its refusal were not based on wholly specious or totally inadequate facts. The land had a steep slope with a stream running through it. Subdivision would have had the effect of increasing the density in the area. It was the respondent’s opinion that increased density was not in the interests of the majority of owners and there was no evidence to the contrary. The covenant was not obsolete under s. 35(2)(a) as its true objects—promotion of low density, with resulting privacy—had not changed. Under s. 35(2)(b) and (d), the requirement to obtain the respondent’s consent was a “practical benefit to others”, as homeowners in the same subdivision had the benefit of low density, privacy, and seclusion. Modification or cancellation of the covenant would “cause harm to” the homeowners who benefited from the restriction, as further subdivision would reduce the benefits of the covenant. Accordingly, the petition was dismissed (Fleischman v. British Pacific Properties Ltd., 1997 CanLII 2182 (BC SC) (Chambers)).

Land Use Contracts

A municipality is not the only party that has any rights with respect to the modification or cancellation of a land use contract. In this case, the developers who were a party to the contract and the people who acquired property from the developers were entitled to some benefits under the contract and therefore had a right to have their views on modification or cancellation considered by the court (West v. Surrey (District), 1979 CanLII 595 (BC SC)).

The petitioner sought to amend a provision in a land use contract in order to advance the date on which a shopping mall could open to the public. The petitioner was supported by the respondent city, but three interest groups opposed the application. Injury to those groups, even though they were not parties to the contract, was relevant. They were “persons who are or have been entitled to the benefit” of the contract within the meaning of the section. The application was dismissed (Peachtree Mall Ltd. v. Penticton (City), 1979 CanLII 565 (BC SC)).

The applicant entered into a land use contract with a municipal corporation regarding the location of gasoline storage tanks in connection with the applicant’s retail gasoline business. When the applicant began to construct the storage tanks he decided that the location designated in the land use contract was not the best location and brought an application under s. 35 to modify the contract. This was not an appropriate case in which to apply the provisions of s. 35. It was not the intention of the legislature to usurp the proper functions of municipal councils, or to redraw agreements on behalf of parties who entered into them with their eyes open and who then found the agreements’ terms to be more onerous than they originally believed them to be (Mercier v. Fort St. James (Corporation), [1980] B.C.J. No. 1799 (QL) (S.C.)).

It may well be that between the time when the repeal of s. 702A of the Municipal Act took effect, thereby abolishing land use contracts, and the time when the predecessor to s. 930 of the Local Government Act (now, s. 546) was proclaimed effective August 1980, a period of almost two years, there was no way a land use contract with no built-in amendment procedure could be amended, except through application to court under s. 35 of the Property Law Act (Re Dundee Holdings and Surrey (District), 1987 CanLII 2559 (BC SC)).

Options to Lease

Section 35 provides a means by which applicants may remove registered charges from the title to lands. The section does not purport to affect the substance of any agreement which may be in existence between the owner of these lands and the person who is the holder of the interest which is registered, or any other interest which may arise by agreement between the parties. The language of s. 35 establishes that it is only the registered charge or the registered interest which may be modified or cancelled, providing the statutory conditions prescribed are met. Here, the registered charge or interest was an option to lease. Because the optionee had exercised the option, it was obsolete, and the optionor was entitled to cancellation. Cancellation of the option did not affect the lease the parties were negotiating (227213 B.C. Ltd. v. 908 Holdings Ltd., [1985] B.C.J. No. 838 (QL) (S.C.)).

Mineral or Timber Reservations

The registered owner of land applied under s. 35(2)(a) to have mineral reservations struck from title. The court adjourned the application for six months on the basis that it was premature. Section 35 was enacted to relieve against charges that have manifestly become obsolete in the sense that there is no one able or willing to exploit a charge. The section was not enacted to enable an owner to disentitle someone of something of value. The decision as to what is of value must fall on those who would assert title. The court gave the heirs at law six months within which to perfect their title (British Columbia Buildings Corporation v. Anderson, 1983 CanLII 482 (BC SC)).

The registered owner of land applied to clear a reservation of timber from title. What had been reserved was a fee simple in the trees “conditional on the life of the tree”, that is, a reservation of one crop of timber. Because the trees now growing on the land were not as old as the reservation, it was appropriate to release the reservation (Re Newson and Masters, 1984 CanLII 413 (BC SC)).