PMT XII LLC v. The Owners, Strata Plan VR 2753, Section 1

PMT XII LLC v. The Owners, Strata Plan VR 2753, Section 1

The covenant was enforceable because the Front Desk Lot is an integral component of the hotel use of the land and thereby benefits from the covenant (it touches and concerns the land); the covenant provided a practical benefit to the beneficiaries by preserving a lobby‑accessible ski rental and valet service and cancellation would likely injure them; the covenant was not obsolete or premature to consider; accordingly the petition to cancel the PMT Covenant was dismissed and costs awarded to the respondent.

Citation
2010 BCSC 1235
Parties
Petitioner: PMT XII LLC; Respondent (residential Section): The Owners, Strata Plan VR 2753, Section 1
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
1 September 2010
Procedural Posture
Petition to Cancel Restrictive Covenant Under Property Law Act (s.35) / Final Judgment (reasons for Judgment)
Outcome
Petition dismissed
Legal Topics
Enforceability of Restrictive Covenants, Touch and Concern Doctrine, Obsolescence of Covenant, Practical Benefit Test, Strata Bylaws and Common Assets
Source Language
English
Property Law Strata Law Restrictive Covenants Equity Enforceability of Restrictive Covenants Touch and Concern Doctrine Obsolescence of Covenant Practical Benefit Test +1 more

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Parties

PMT XII LLC

Petitioner

The Owners, Strata Plan VR 2753, Section 1

Respondent (residential Section)

Procedural Posture

Petition to Cancel Restrictive Covenant Under Property Law Act (s.35) / Final Judgment (reasons for Judgment)

Legal Issues

  1. 1 Whether the restrictive covenant touches and concerns the benefited land (Front Desk Lot) (Property Law Act s.35(2)(e))
  2. 2 Whether reasonable use of the burdened PMT lots will be impeded without practical benefit to others (s.35(2)(b))
  3. 3 Whether cancellation would injure the person entitled to the benefit of the covenant (s.35(2)(d))

Ratio Decidendi

The covenant was enforceable because the Front Desk Lot is an integral component of the hotel use of the land and thereby benefits from the covenant (it touches and concerns the land); the covenant provided a practical benefit to the beneficiaries by preserving a lobby‑accessible ski rental and valet service and cancellation would likely injure them; the covenant was not obsolete or premature to consider; accordingly the petition to cancel the PMT Covenant was dismissed and costs awarded to the respondent.

Court Disposition

Petition dismissed

Orders

  • Petition dismissed
  • Respondent The Owners, Strata Plan VR 2753, Section 1 awarded costs on Scale B