Restrictive Covenants on Property: (Re)Making Canada | An Open Legal Coursebook

Keppell v Bailey

Mon, 01 Jan 0001 00:00:00 +0000

The Facts #

The Beaufort Ironworks entered into an agreement with the shareholders of the Trevil Railway, which was constructed to transport limestone from Trevil Quarry to the Ironworks for use in their furnaces. The covenant stipulated that Beaufort would continue to source all of its limestone from Trevil Quarry, thus providing the initial financial incentive to build the railway. In the course of his decision, Lord Chancellor Brougham described the terms of the covenant thus:

Tulk v Moxhay

Mon, 01 Jan 0001 00:00:00 +0000

In the year 1808 the Plaintiff, being then the owner in fee of the vacant piece of ground in Leicester Square, as well as of several of the houses forming the Square, sold the piece of ground by the description of “Leicester Square garden or pleasure ground, with the equestrian statue then standing in the centre thereof, and the iron railing and stone work round the same,” to one Elms in fee: and the deed of conveyance contained a covenant by Elms, for himself, his heirs, and assigns, with the Plaintiff, his heirs, executors, and administrators, “that Elms, his heirs, and assigns should, and would from time to time, and at all times thereafter at his and their own costs and charges, keep and maintain the said piece of ground and square garden, and the iron railing round the same in its then form, and in sufficient and proper repair as a square garden and pleasure ground, in an open state, uncovered with any buildings, in neat and ornamental order; and that it should be lawful for the inhabitants of Leicester Square, tenants of the Plaintiff, on payment of a reasonable rent for the same, to have keys at their own expense and the privilege of admission therewith at any time or times into the said square garden and pleasure ground.”

Austerberry v Corporation of Oldham

Mon, 01 Jan 0001 00:00:00 +0000

A., by deed, conveyed for value to trustees in fee a piece of land as part of the site of a road intended to be made and maintained by the trustees under the provisions of a contemporaneous trust deed (being a deed of settlement for the benefit of a joint stock company established to raise the necessary capital for making the road); and in the conveyance the trustees covenanted with A., his heirs and assigns, that they, the trustees, their heirs and assigns, would make the road and at all times keep it in repair, and allow the use of it by the public subject to tolls. The piece of land so conveyed was bounded on both sides by other lands belonging to A. The trustees duly made the road, which afforded the necessary access to A.’s adjoining lands. A. afterwards sold his adjoining lands to the Plaintiff (Austerberry), and the trustees sold the road to the Defendants [Corporation of Oldham], both parties taking with notice of the covenant to repair.

Restrictive Covenants and Public Policy

Mon, 01 Jan 0001 00:00:00 +0000

Certain “private” forms of land-use regulation are still in widespread use. One of the most pervasive—but often least noticed—is the restrictive covenant.

From one point of view, restrictive covenants look like a fairly straightforward promise by one landowner to another—a promise to refrain from doing something on one’s own land. One landowner might promise not to cut down the trees in their yard, for example, or promise not to paint their house a garish shade of bright green. But from a legal perspective, restrictive covenants are much more than this. Not only do covenants represent a sort of contractual promise between parties, they help to define the durable “bundle of rights” in the land itself—that is, covenants are said to run with the land and can, at least in theory, long outlast the original parties to the covenant. This possibility raises some difficult questions for courts in how they define the basic character of covenants along with their consequences.

Re Drummond Wren

Mon, 01 Jan 0001 00:00:00 +0000

Mackay J. — #

This is an application brought by Drummond Wren, owner of certain lands registered in the Registry Office for the County of York, to have declared invalid a restrictive covenant assumed by him when he purchased these lands and which he agreed to exact from his assigns, namely, — “Land not to be sold to Jews or persons of objectionable nationality.”

The application is made by way of special leave and pursuant to s. 60 of the Conveyancing and Law of Property Act, R.S.O. 1937, c. 152, and Rules 603 and 604 of The Rules of Practice and Procedure.

Noble et al v Alley

Mon, 01 Jan 0001 00:00:00 +0000

This case addressed a discriminatory restrictive covenant attached to land forming part of a summer resort development called the Beach O’Pines. The covenant, in clause (f), prohibited the sale, transfer or lease of the land to, or use or occupancy by, individuals of Jewish “race or blood” or people of colour, and expressed an intention to restrict ownership of land in the resort development to “persons of the white or Caucasian race not excluded by this clause.”