Restraining Alienation

Recall from our first problem this term, protest at West Eggleston, that the community has been experiencing significant changes in the past few years. Rising housing price across the province have increased demand for land in West Egg dramatically. With its idyllic setting along the coast, several of the co-operative’s founding members worried that their community had lost sight of its roots in affordable housing and would eventually become nothing more than another tony suburb for wealthy. As we saw in our earlier problem, these dynamics had already begun to fracture the community and raised mounting concerns about exclusion and discrimination.

Those conflicts are also playing out in quieter ways in the more obscure worlds of estate planning and restrictive covenants–two different legal tools that can be used, in some instances, to control the transfer of interests in land.

One of West Egg’s oldest landowners has been among the most vocal about recent changes in the community and is worried that their modest house, affectionately known as “the Cottage”, on a beautiful waterfront lot next door to some community parkland owned by the West Egg co-op, might some day neighbour one of those gaudy new mansions that have been popping up more and more frequently. After consulting informally with several of their lawyer friends, the landowner convinces West Egg’s co-op board to enter into an agreement in which the board promises never to construct any structure on the community parkland larger than 1,000 square feet and, if the board ever chooses to sell the parkland, to offer it for sale first to existing residents of West Egg. At the time the agreement was made, the owner of the Cottage made it clear to the board that they intended it to be binding on future owners. Within a few years of the agreement, however, the membership of the co-op board had changed almost entirely and the parkland was sold directly to a developer who plans to build a mansion exactly as the owner of the Cottage feared. The developer claims to have had no knowledge of the agreement described above when they purchased the land.

On the other side of town, one of West Egg’s newest landowners is thrilled with their recent luck at having been able to sell their old house in Halifax for top dollar and purchase a substantially larger one in West Egg on a big lot with tons of room for their kid to run and play. At the same time, they have started to worry about how to ensure that their good fortune is shared among the rest of their family and passed on to the next generation. This new landowner sits down to draft the following clause, which they intend to include in their Last Will and Testament:

When I die, my land in West Egg should go to my younger sister, who I want to be the land’s full and rightful owner. After that, the land should go to my daughter.

Can the developer carry out their plans to build a new mansion in West Egg? According to the terms of the will above, what interests, if any, in the land would go to the sister and the daughter?