Positive Covenants Cannot Bind Land

A covenant that requires a positive act cannot be a binding covenant that runs with the land.  Today’s Court of Appeal decision in Lohse v. Fleming, 2008 ONCA 307 provides:

The trial judge then considered the covenant relating to water supply in Schedule “A” with a view to determining its nature and whether it did or did not “run with the land either at law or in equity.” He concluded that the covenant in issue constituted a positive covenant, and as such, it did not run with the land. His reasons in this regard are found at paras. 36-38 as follows:

Amberwood Investments Ltd. v. Durham Condominium Corp. No. 123 (2002) Carswell Ont. 850 ( C.A. ) and Parkinson v. Reid, [1966] S.C.R. 162 (S.C.C.) refer to covenants that require spending money or the doing of some act concluding that such covenants do not run with the land either at law or in equity. Simply put the supplying of water from a drilled well serviced by motor and pressure system into a trunk piping supply conduit system and maintenance thereof requires the doing of many acts and the expenditure of money. These are positive acts. There is the further issue of liability for unsafe water. The insurance costs which may be attracted, have been touched upon in the evidence but without particulars. In addition, the cost of necessary steps to supply water safe in the context of acceptable, community safety standards are referenced in the evidence but without particulars.

Rights flowing from any of the oral water rate supply agreements have ended by the passage of time.

…

… the trial judge was on solid ground in concluding that the positive nature of this obligation prevented the appellants from obtaining an easement, and that absent privity of contract, this positive covenant could not run with the land: see Nordin v. Faridi, [1996] 5 W.W.R. 242 at para. 45 (B.C.C.A.); Parkinson v. Reid, [1966] S.C.R. 162 at 167; and Amberwood Investments Ltd. v. Durham Condominium Corp. No. 123 (2002), 58 O.R. (3d) 481 ( C.A. ).

 

 

James Morton

Steinberg Morton Hope & Israel

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