Restrictive covenant was non-compliant with statutory requirement to set out lands benefited by covenant

Ontario civil | Real Property | Registration of real property | Registration of land

Plaintiff owned commercial development on several parcels of land. Library board purchased portion of land, under condition of restrictive covenant prohibiting commercial use of property. Library board later sold property to parent company of defendant. Defendant entered into lease with financial technology firm. Plaintiff brought action against defendant. Plaintiff brought motion for declaration that property was subject to restrictive covenant, and order to rectify register if covenant was not binding. Defendant brought motion for summary judgment to dismiss action and for declaration that restrictive covenant was not enforceable. Motion for declaration that restrictive covenant was unenforceable was granted; motion for rectification of restrictive covenant was granted. Restrictive covenant currently registered on title was non-compliant with statutory requirement to set out lands benefited by covenant. Although defendant was successor to original agreement between library board and plaintiff regarding restrictive covenant, defendant had notice that restrictive covenant existed in Land Titles. Restrictive covenant was referred to and attached as schedule to agreement of purchase and sale between library board and defendant. Knowledge and willingness of defendant to run risk with respect to restrictive covenant militated in favour of finding that it would be unjust not to rectify restrictive covenant. Rectification did not impact indefeasibility of defendant's title to property that followed from registration.

Wonderland Power Centre Inc. v. Post and Beam on Wonderland Inc. (2018), 2018 CarswellOnt 21570, 2018 ONSC 7589, L. Templeton J. (Ont. S.C.J.).

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