1530 Foster Street Ltd. v. Newmark Projects Ltd.

1530 Foster Street Ltd. v. Newmark Projects Ltd.

The Parking Covenant is valid and enforceable as a surface-parking lot-coverage covenant; its terms are not void for uncertainty or technically defective when interpreted in the factual matrix at the time of grant; municipal planning objectives do not nullify pre-existing private covenants; the petitioners failed to satisfy any statutory ground in s.35(2) (not obsolete, reasonable use not impeded without practical benefit to others, no consent, cancellation would injure beneficiary) and estoppel was not established; therefore the petition is dismissed.

Citation
2017 BCSC 1763
Parties
Petitioner: 1530 Foster Street Ltd.; Petitioner: 15160 North Bluff Road Ltd.; Respondent: Newmark Projects Ltd.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
2 October 2017
Procedural Posture
Petition to Modify or Cancel Restrictive Covenant Under the Property Law Act / Reasons for Judgment (decision on Application)
Outcome
Application dismissed
Legal Topics
Enforceability of Restrictive Covenant, Interpretation and Uncertainty, Property Law Act S.35 Relief, Obsolescence of Easement, Estoppel by Acquiescence, Public Policy
Source Language
English
Property Law Restrictive Covenants Real Estate Law Municipal Planning Law Equity (estoppel) Enforceability of Restrictive Covenant Interpretation and Uncertainty Property Law Act S.35 Relief +3 more

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Parties

1530 Foster Street Ltd.

Petitioner

15160 North Bluff Road Ltd.

Petitioner

Newmark Projects Ltd.

Respondent

Procedural Posture

Petition to Modify or Cancel Restrictive Covenant Under the Property Law Act / Reasons for Judgment (decision on Application)

Legal Issues

  1. 1 Is the Parking Covenant enforceable (vagueness/uncertainty; technical validity; public policy)
  2. 2 Whether s.35 PLA authorizes cancellation or modification (obsolete; impediment; consent; no injury)
  3. 3 Whether estoppel or acquiescence prevents enforcement

Ratio Decidendi

The Parking Covenant is valid and enforceable as a surface-parking lot-coverage covenant; its terms are not void for uncertainty or technically defective when interpreted in the factual matrix at the time of grant; municipal planning objectives do not nullify pre-existing private covenants; the petitioners failed to satisfy any statutory ground in s.35(2) (not obsolete, reasonable use not impeded without practical benefit to others, no consent, cancellation would injure beneficiary) and estoppel was not established; therefore the petition is dismissed.

Court Disposition

Application dismissed

Orders

  • Application dismissed