Fuji Builders Ltd. v. Tresoor et al., (1984) 28 Man.R.(2d) 115 (QB)

• Judge: Morse, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: May 04, 1984
• Jurisdiction: Manitoba
• Citations: (1984), 28 Man.R.(2d) 115 (QB)

Fuji Builders Ltd. v. Tresoor (1984), 28 Man.R.(2d) 115 (QB)

MLB headnote and full text

Fuji Builders Ltd. v. Tresoor and Tresoor

(Suit No. 974/84)

Indexed As: Fuji Builders Ltd. v. Tresoor et al.

Manitoba Court of Queen's Bench

Morse, J.

May 4, 1984.

Summary:

The purchaser of a parcel of land applied for a determination of its rights under an agreement made between it and the vendor. The issue concerned whether the agreement constituted a restrictive covenant which ran with the land, or a personal covenant.

The Manitoba Court of Queen's Bench held that the agreement constituted a restrictive covenant, the majority of which was enforceable. The court held that one portion of the restrictive covenant was void as a partial restraint on alienation.

Real Property - Topic 241

Restrictions on alienation - General - A restrictive covenant between a purchaser (a builder) and a vendor provided that only the purchaser could build upon the land - The restraint was unlimited as to time and could not be enforced if the purchaser ceased to do business - The Manitoba Court of Queen's Bench held that the covenant was void as a partial restraint on alienation - See paragraphs 11 to 17.

Sale of Land - Topic 4504

Restrictive covenants - Covenants which bind or run with the land - What constitute - A vendor and purchaser agreed that "all houses and dwellings erected on the said lands shall be erected and constructed by the purchaser and by no other person, firm or corporation" - The Manitoba Court of Queen's Bench held that the agreement was a restrictive covenant which ran with the land because (1) the covenant directly affected the purchaser's land by controlling its use (2) the observance of the covenant directly benefited the land of the vendor and (3) the parties intended the covenant to run with the land - See paragraphs 8 to 10.

Cases Noticed:

Hi-Way Housing (Sask.) Ltd. v. Mini-Mansion Construction Co. Ltd., [1980] 5 W.W.R. 367; 4 Sask.R. 415, consd. [para. 9].

Maloney v. Whitlock, [1908] 7 W.L.R. 460 (Sask.), consd. [para. 15].

Re Bahnsen and Hazelwood (1966), 23 D.L.R.(2d) 76 (Ont. C.A.), consd. [para. 16].

Re Building Restriction Caveat (1957), 22 W.W.R. 17, not appld. [para. 18].

Authors and Works Noticed:

Anger and Honsberger, Canadian Law of Real Property (1959), p. 103 [para. 12].

Counsel:

M. Gutkin, for the applicant;

A. Dobrowolski, for the respondents.

This application was heard before Morse, J., of the Manitoba Court of Queen's Bench, whose decision was delivered on May 4, 1984.