Potts et al. v. McCann, 2002 ABQB 734

• Judge: Slatter, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 31, 2002
• Citations: 2002 ABQB 734;(2002), 325 A.R. 137 (QB)

Potts v. McCann (2002), 325 A.R. 137 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. SE.019

Hugo A. Potts, Lisa M. Clarke-Potts, Lisa Mueller, Ralph Taylor, Marjorie Faulkner, Gerard Thompson, Christine Thompson, Lenny Fleming, Bob Fleming, Judy Fairburn, Mark Fairburn, Rhoda Goba, Jeannette Hemming, Val Walker, Edna Haaland, Brant Summers, Lynn Summers, Jim Foster, Sandy Foster, George Perry, Alice Perry, Joyce Slaney and Sabine Goubau (applicants) v. Patrick J. McCann and Luisa McCann (respondents)

(Action No. 0201 10825; 2002 ABQB 734)

Indexed As: Potts et al. v. McCann

Alberta Court of Queen's Bench

Judicial District of Calgary

Slatter, J.

August 12, 2002.

Summary:

A restrictive covenant in an area of Calgary provided that no more than one house could be constructed on two lots. Two land owners (McCanns) encumbered by the restrictive covenant sought an order that the covenant was of no force and effect. Other owners sought to enforce the covenant.

The Alberta Court of Queen's Bench held that the restrictive covenant was valid and binding. The court granted an injunction restraining the McCanns and their successors in title from constructing any building on their property in breach of the covenant.

Sale of Land - Topic 4504

Restrictive or positive covenants - General principles - Covenant which binds or runs with the land - What constitutes - A restrictive covenant in an area of Calgary provided that no more than one house could be constructed on two lots - Two land owners (McCanns) encumbered by the restrictive covenant sought an order that the covenant was of no force and effect - They argued that the covenant was not one that by its nature was capable of attaching to land - The Alberta Court of Queen's Bench rejected the argument - The restrictive covenants in question formed a part of a valid building scheme covering the nine remaining lots - All of the present owners derived their title from a common vendor -The vendor subjected these lots to restrictions intended to be imposed on all of the lots - The restrictions were imposed for the benefit of the lots - Given the transfer and the operation of the Land Titles Act, all of the present owners and their predecessors in title purchased the lots on the understanding that they would be bound by the scheme - See paragraphs 24 to 28.

Sale of Land - Topic 4504

Restrictive or positive covenants - General principles - Covenant which binds or runs with the land - What constitutes - A restrictive covenant in an area of Calgary provided that no more than one house could be constructed on two lots - Two land owners (McCanns) encumbered by the restrictive covenant sought an order that the covenant was of no force and effect - They argued that subsequent circumstances had rendered the covenant invalid or unenforceable - The Alberta Court of Queen's Bench rejected the argument - The character of the neighbourhood had not changed -The covenant was not spent, obsolete or unworkable - There was no suggestion that the enforcement of the covenant was vexatious - Therefore, the covenant remained enforceable under the common law standard - See paragraphs 30 to 38.

Sale of Land - Topic 4508

Restrictive or positive covenants - General principles - What constitutes a building scheme - [See first Sale of Land - Topic 4504 ].

Sale of Land - Topic 4582

Restrictive or positive covenants - Variation or setting aside - Notice - The Alberta Court of Queen's Bench stated that "a restrictive covenant is a form of agreement between the various owners of the properties in question. It is an unusual type of contract, in that the burdens and benefits of the contract run with the land, and are enforceable by and against the particular owners of the land from time to time. It is a fundamental principle of the in personam jurisdiction of the Court that the rights of parties are not taken away except on proper notice to them, which in court proceedings generally means that the interested parties must be served with court process. It is difficult to see what justification there ever was for removing restrictive covenants from properties without serving the other owners of properties encumbered by the covenant." - See paragraph 14.

Sale of Land - Topic 4582

Restrictive or positive covenants - Variation or setting aside - Notice - The Alberta Court of Queen's Bench stated that "in proceedings to set aside or vary a restrictive covenant, it is necessary that all of the owners of the encumbered properties be parties to the proceedings. Those who are not applicants should be respondents. In applications to enforce the covenant it is desirable that all of the owners be parties, although it is not strictly necessary." - See paragraph 21.

Sale of Land - Topic 4586

Restrictive or positive covenants - Variation or setting aside - Grounds - A restrictive covenant in an area of Calgary provided that no more than one house could be constructed on two lots - Two land owners (McCanns) encumbered by the restrictive covenant sought an order that the covenant was of no force and effect - They argued that covenant should be set aside by the court under s. 48(4) of the Land Titles Act which permitted modification or discharge if it was beneficial to the persons principally interested in the enforcement of the covenant or conflicted with a land use bylaw and it was in the public interest - The Alberta Court of Queen's Bench held that the criteria of s. 48(4) were not met - There was nothing inconsistent about a regime of restrictive covenants existing in parallel with municipal planning statutes - There was no aspect of the "public interest" that required the discharge of the covenant - See paragraphs 39 to 42.

Sale of Land - Topic 4586

Restrictive or positive covenants - Variation or setting aside - Grounds - [See second Sale of Land - Topic 4504 ].

Cases Noticed:

Tompkins et al. v. Kentron Homes Ltd. et al. (1987), 78 A.R. 229 (Q.B.), refd to. [para. 12].

Seifeddine v. Hudson's Bay Traders et al. (1980), 22 A.R. 111; 11 Alta. L.R.(2d) 229; 108 D.L.R.(3d) 671 (C.A.), refd to. [para. 15].

Tulk v. Moxhay (1848), 41 E.R. 1142, refd to. [para. 24].

Elliston v. Reacher, [1908] 2 Ch. 374, affd. [1908] 2 Ch. 665, refd to. [para. 25].

Crump v. Kernahan et al. (1995), 173 A.R. 123; 32 Alta. L.R.(3d) 192 (Q.B.), refd to. [para. 25].

Lim v. Titov, [1998] 5 W.W.R. 495; 208 A.R. 338; 56 Alta. L.R.(3d) 174 (Q.B.), refd to. [para. 25].

Prince, Re, [1996] A.J. No. 1347 (Q.B. Master), affd. (1997), 199 A.R. 157 (Q.B.), refd to. [para. 31].

Rockyview No. 44 (Municipal District) v. Prince - see Prince, Re.

Tanti et al. v. Gruden et al., [1999] 11 W.W.R. 294; 237 A.R. 171; 197 W.A.C. 171; 74 Alta. L.R.(3d) 110; 23 R.P.R.(3d) 186 (C.A.), refd to. [para. 41].

Counsel:

P.J. Major, for the applicants;

B.K. Dell, for the respondents.

These applications were heard on July 31, 2002, before Slatter, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on August 12, 2002.