I Cite as: Sawlor v. Naugle, 1990 NSSC 150 l 1990 S.H. 74834 I IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION I BETWEEN: KEITH R. SAWLOR and DEBORAH SAWLOR I Applicants - and -I ROY NAUGLE and DARLENE NAUGLE, ROGER REHBURG and DONNA REHBURG, I CATHERINE BENNETT and HUBERT BEDNARIK and ANTONIA BEDNARIK, DARRELL THIBAULT and ANNA THIBAULT, STEVE EDDY and PATRICIA EDDY I and GEORGE OSBORNE and JUDITH OSBORNE Respondents I f I I I HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice G. A. Tidinan, Trial Division, on December 10 and 13, I 1990 I DECISION: December 13, 1990 (Orally) COUNSEL: Ms. Jean McKenna and Mr. Paul Charlton, for the I Applicants Mr. T. Peter Sodero, Q.C., for the Respondents I
I t 1990 I IN THE SUPREME COURT TRIAL DIVISION BETWEEN: I KEITH R. SAWLOR and DEBORAH I - I ROY NAUGLE and DARLENE NAUGLE, ROGER REHBURG and DONNA REHBURG, I CATHERINE BENNETT and HUBERT and ANTONIA BEDNARIK, ANNA THIBAULT, STEVE and GEORGE OSBORNE and JUDITH OSBORNE I I f TIDMAN, J. (Orally) This is an application I that certain restrictive covenants I of land are void or, alternatively, cannot enforce the covenants because of acquiescence. I Background I The applicants on April 30th, 1986 purchased from Federal Savings Credit Union Limited Lot 7 in the latter's subdivision I in Cow Bay, Halifax County. I acres. The deed contains a house can stand on any one the ma le app 1 ican t, a carpenter I S.H. 74834 OF NOVA SCOTIA SAWLOR Applicants and -BEDNARIK DARRELL THIBAULT and EDDY and PATRICIA EDDY Respondents inter partes for a declaration contained in conveyances that the respondents Lot 7 has a land area of 5. 76 covenant stating that only one of the said lots. Mr. Sawlor, by trade, bui 1 t a home on
- the lot. Subsequently, he Municipality of Halifax County Lot 7, and Lots 7 A and 7B were approved. a house on Lot 7A. Mr. Municipality for a further portion of the original Lot 7 7C upon which the applicants' The applicants offered the prospective purchaser of the home objected to the applicants' title on the grounds that the restrictive covenant prohibited the building of more than one house on the original Lot 7. Counsel agree that the the lot owners of all of the lots of the Federal subdivision and that Federal no longer has subdivision. All of the respondents and the Eddys have agreed to the restrictive covenant in question. and respondents obtained their land in the subdivision from Federal. The Naugles obtained their lot on August 16, the Sawlors theirs on Apr i 1 on July 9, 1986. To each conveyance of paper containing 17 numbered paragraphs headed: I 2 - j was granted approval by the to subdivide the original l Mr. Saw lor bui 1 t Sawlor later applied to the ] subdivision of the remaining ] and received approval for Lot original house was situate. l original home for sale. The l l l respondents and applicants are ~j a property interest in the excepting the Naugles l release the applicants from All of the applicants J J 1983; 3 0, 19 8 6 and the Eddys theirs l was attached a sheet ] l ]
I t - "SCHEDULE I FEDERAL COW BAY AND SUBDIVISION I Protective Covenants (the legal form of which will be an attachment to the deed):" I The paragraph numbered I states: II 1. The said lands to which these restrictions I shall apply (hereinafter called the 'said lands') include the Schedule 'A' . " I Paragraph numbered 4. provides: I II 4 • No more than one be erected or stand at any one time f any one of the said lots." The paragraph numbered 16. provides: I "16. Provided always I anything herein contained, and its successors instrument or instruments from time to time I modify the above restrictions in any lot or lots or I comprising part of without notice to the owner of any other lot in the said subdivision." I The remaining paragraphs I the use of the lots. There the covenants enure to the benefit of the Grantee or to the other present or future owners I 3 - 'B' SAVINGS DYKE ROAD 1. which immediately follows lots described in dwelling house shall upon that, notwithstanding the Grantor shall have power by in writing to waive, alter or covenants and their application to to any part thereof the said subdivision, all contain restrictions on is no express provision that of land in the subdivision.
- Schedule "A" contains a metes 7. Mr. Naugle confirms that when he purchased his lot from Federal he was shown a plan showing was revised October 13, 1982. of land labelled "Lands of numbered lots in the subdivision the Cow Bay Road and numbered of each numbered lot ranges plan shows a proposed road between Lots X3 and X4 to Lots X3, X4, and X6 are outlined in dark print and a Municipal approval stamp indicates that the subdivision of those lots was approved by the Municipality on November 5, 1982. The Sawlors purchased their April 30, 1987. At that subdivision dated January 22, 1986, shows Lot X3 as being owned by the respondents Rehburg and Lot X6 as being owned by the Naugles. Y as being comprised of the lots previously designated XS, the previously mentioned additional land which was part previous October 13, 1982 plan 7 is shown as being situate at the intersection of the I 4 - J and bounds description of Lot ] l lands of Federal which J That plan shows a large block Federal". It shows only five J which are situate along X3 through X7. The land area J between 1 and l~ acres.. The l running from the Cow Bay Road undeveloped lands of Federal. ]' 'J l lot, which is Lot 7, on l time a plan of the Federal 1986 and revised on April 7, J It shows Lot X4- l X4, J road allowance, and some of land designated on the l as lands of Federal. Lot Cow J i l
I t - Bay and Dyke Roads as it was I size was increased from approximately l~ acres I the first plan, to 5. 76 acres. Lot X6 owned by the Naugles. I 12 and Lot 14 fronting on land area ranging between two and three acres. I Lot 15. Lot 15 is of irregular shape having of only approximately 100 feet along the Dyke Road from which I the lot extends south widening I then extends west along the rear of Lot 14 approximately 1,200 I approximately 600 feet. Lot 19.62 acres. f I When the Eddys purchased were shown a plan which was I respondents Rehburg prior to X4, XS, the road allowance, I contiguous to the west of The original Lot X3 remains intact but the I acquired by the Rehburgs have I lots being Lot X4-Y-W which contains five acres, an approved plan I located thereon, and Lot X4Y-V over one acre which was approved of a single family dwelling. I 5 -on the previous plan, but its as shown on Part of the lot borders on It also shows Lots 8 through the Dyke Road which lots have a It also shows a road frontage to approximately 375 feet, Lots 8 through 12 and feet and then south again 15 has a total land area of Lot 12 on July 9, 19 86, they revised on April 7, 1986. The April 1986 acquired Lots X3, and some additional land those lots and road allowance. remaining lands now been subdivided into two an area of just under of which shows two dwellings having an area of slightly as a lot for construction
- 6 The evidence of Mr. Naugle made by the Naugles to the violation of the one lot~one dwelling covenant. I accept the evidence of no complaints were made to him of covenant until he sought a release of the covenant from the Naugles shortly before the commencement of this application. I also accept Mr. Sawlor' s evidence that when he first went to see Mr. Eddy about signing Mr. Eddy agreed to sign but later refused after the Naugles had refused. Mrs. Naugle is Mr. Eddy's sister. Mr. Sawlor's evidence that Naugles to sign the waiver Mr. asked Mr. Sawlor to sell him had not agreed to do so. Mr. waiver for a sum of money and an area of land. Issue The issue is, first, whether there has been a violation of the covenant in question binding. In relation to the issue of violation that since there was no covenant he assumed ancl construed the covenant to mean that he could I - J is that no complaint was Rehburgs of their apparent l l Mr. Sawlor in finding that J a violation of the same l l the waiver of the covenant, J I also accept sometime before he asked the Naugle had on two occasions a part of Lot 7 and Mr. Sawlor J Naugle would have signed the l ] and, if so, is the covenant l J Mr. Sawlor says l prohibiting subdivision J
I t - subdivide the lot but could I subdivided lot. I Submissions of Counsel Mr. Sodero, on behalf I and Eddys, submits that the I covenant clearly indicates one lot thus is a valid restrictive covenant to which effect should I be given. I Ms. McKenna argues, first I wording of the covenant does thus, additional construction f if the additional construction is prohibited by the wording the covenant is void because I even if the covenant is valid it cannot be enforced because I its violation was acquiesced to by the respondents. I The Law Ms. McKenna argues that I not contain all the necessary give it binding effect. In support of her argument she cites I the following passage from I Re Lakhani et al and Weinstein High Court of Justice) at p. by Nathanson, J. of tl1is Pavlinovic et al (1987), 80 states: I 7 only build one house on each of the respondents / the Naugles wording of the restrictive one house and that it of all, that the specific not prohibit subdivision and, on the lot. Secondly, that of vagueness. Thirdly, that the covenant in question does elements required in law to a decision of Van Camp, J., in 118 D.L.R. (3d) 61 (Ontario 6 4 and 6 5, which was accepted court in Cleary and Cleary v. N.S.R. (2d) 22, Van Camp, J.
- " Since the middle of the last century, has recognized that the negative in nature may covenantor under certain conditions. Construction Co. Ltd. v. Ltd., [1955] S.C.R. 682 at p. 692, 502 at p. 506, Locke, J., recognized that: covenants restricting land imposed by a fall into three classes: imposed by the vendor for his own benefit, (ii) covenants imposed as owner of other sold formed a part, protect or benefit and (iii) covenants upon a sale of land to various purchasers who are intended mutually benefit of, and covenants. ' The requirements of that been called a building development, a local law) were set out by Middleton, J., in Re Wheeler (1926), 232, [1926] 4 D.L.R. 392 at p. said: 'In the case of [1908] 2 Ch. 374, thus sums up the requisites of a building scheme (p. 384): -- "It must be both the plaintiffs defendants derive a common vendor; previously to selling the lands to which the defendants are entitled the his estate, or a defined portion thereof (including purchased by and defendants for sale in restrictions intended imposed on all which, though varying in details as to particular consistent and I 8 - equity j burden of a covenant run with the land· of the In Canadian l Beaver (Alberta) Lumber [1955] 3 D.L.R. ] the user of vendor upon a sale ] ( i) covenants by the vendor land of which that l and intended to such unsold land, imposed by a vendor l to enjoy the be bound by, the l third class (which has scheme, a scheme of 59 O.L.R. 233 at p. 231-398-399, where he Elliston v. Reacher, Mr. Justice Parker l proved ( 1) that l and the title under (2) that l plaintiffs and respectively vendor laid out l the lands the plaintiffs J respectively), lots subject to to be the lots, and l lots, are consistent only 1 1
! t - with some general I development; restrictions by the common and were for I all the lots sold, whether or not they were also intended I for the benefit retained by that both the the defendants, I predecessors in title, purchased their lots vendor upon I the restrictions which the purchases were to enure of the other I in the general or not they were also to enure for the benefit of other lands I retained by the vendors"'." f It is common ground of issue falls within the third category of covenants restricting I the use of land as described I Construction case. Ms. McKenna lacks the essential elements I the Elliston case and is, therefore, invalid. I There is no question that the applicants and respondents all derived title under a I requisite has been met. I Dealing with the second requisite, it is, first of all, questionable whether the vendor Federal has laid out a defined I 9 scheme of (3) that these were intended vendor to be the benefit of intended to be to be and were of other lots the vendor; ( 4) plaintiffs and or their f ram the common the footing that subject to were made for the benefit lots included scheme whether counsel that the covenant in by Locke, J. , in the Canadian argues that the covenant described by Parker, J., in common vendor so that the first
- 10 estate, but I will consider that question later. I will deal with the question of whether or not the covenant in issue, assuming it is intended to be the lots, consistent only development? The covenant states is to be built on the lot. alleged by counsel for the respondents, that the subdivision of the lot is prohibited then scheme as to the required size of the lots one dwelling may be placed. first imposed, or at least at the time the Naugles purchased their lot, only five lots subdivision all of which ranged from The same covenants were attached when the applicants and the Eddys purchased their lots, but the Federal plan of subdivision then ranging in size from just over an acre, the size of the Naugle lot, to 19.62 acres, the size of Lot Although there is no evidence as to whether or not the grantor Federal or its successor waived No. 4 in relation to any other granted to the applicants. I accept Mr. Sawlor's statement that he did not require a waiver because he intended to build only one house on each subdivided lot. In my view, I For now j l imposed on all of with some general scheme of l that only one dwelling If interpreted to mean, as is ] there is no comprehensible J upon which only l When the listed covenants were were shown on the plan of l to l~ acres in size. to the later conveyances showed additional lots l 15 shown on the plan. l l compliance with covenant lots, no such waiver was ] J ] no reasonable person would ] J
I l - believe that a building scheme I subdivision would permit only one dwelling per lot regardless of whether its size was 1 acre, I a scheme, in my view, is not I development" as Parker, J. says it must be. the general scheme must be set out in I known or ascertainable from development. In this case it was I set out in the original plan of subdivision were substantially altered in subsequent plans. I has not been met. I It is also questionable whether the covenant in issue, f which restricts building to one dwelling per lot, was intended by the common vendor Federal to be I of all the lots intended to I must, as a matter of equity, find an implied mutual contract by which each purchaser is to have the benefit of the promise I by all the other purchasers. express term that the covenants are to enure to the benefit I of or be binding upon each purchaser. is to be found, then it must I covenant between the gr an tor I purchasers. Covenant 14, however, without notice and, thus, without of any other lot, has the power I 11 in relation to the Federal 5 acres or 19 acres. Such " some general scheme of To be so defined a way that it can be the very beginning of the not because the lots as Thus, the second requisite and was for the benefit be sold. To so conclude, one In this case, there is no If a mutual covenant be implied from the express Federal and the individual·· provides that the grantor the consent of the owner to waive, alter or modify
- the so-called protective covenants any other lot. The protection of the covenant to be for only the vendor and not for the various purchasers. A prospective purchaser upon reading that clause could hardly be said to believe, to the extent that it should be implied in equity, that he would by virtue of purchasing a a mutually binding contract with every other lot owner that only one house will be placed on each lot. I would thus find also that the third requisite as set out by Parker, J., has not been met. In dealing with the fourth requisite, of at least some of the lot owners it is not apparent that the lot owners purchased their lots footing that the restrictions were of and be binding upon purchasers. Apparently, nobody when they breached the covenant, Rehburgs ask permission of the other lot owners the covenant. We do know Naugles voiced no complaint the ··covenant and that the Rehburgs from the Naug les to do so. he says and which I accept, l 12 in their application to J seems to me J J lot enter J J ] ] from the actions l ,J from Federal upon the to enure to the benefit J such purchaser and all other complained to the Rehburgs J nor apparently did the J to violate for certain, however, that the ] to the Rehburgs for violating did not seek permission J The applicant Mr. Sawlor, as did not consider himself bound l J J J
I l - 13 to others or others to him I no restriction on the subdivision of the lots. I voiced an -objection to the construction of the second house on Mr. Sawlor' s lot to indicate I the benefit of the covenant. Mr. Sawlor after being told there was I invited complaint by asking the other purchasers for a release I from the covenant, and then only on the covenant. I I would thus find also that the purported I not comply with the fourth requisite set out by Parker, J. f A further question to be considered to which I referred is whether Federal has laid out an estate or defined portion thereof to be benefitted by the restrictive covenants. I In order to justify a finding in a conveyance runs with the I to be benefited by the covenant I reference to the conveyance. I In Harrietsfield-Grandlake Municipality of the County of Halifax (1978), I 198, Mr. Justice Cooper in dissent has no bearing on the issue here, quotes with approval I because he believed there was No lot owner a perceived entitlement to A complaint was made only when a problem practically two owners sought to rely scheme does I earlier that a restrictive covenant land the dominant tenement must be ascertainable by Community Association v. 26 N.S.R. (2d) a dissenting judgment, which
- from the judgment given by and City of Toronto, [1973) 166 he states: "The law of Ontario and Provinces plainly require for the benefit of which is imposed in a deed purchaser of other lands be ascertainable from the it is personal and collateral as being for the benefit of and not enforceable against to the purchaser." The Alberta Court of Appeal also dealt with this issue in Guaranty Trust Company of Canada v. Centre Ltd. (1986), 44 Alta. issue in that case was whether use of a lot in a shopping centre could be enforced against a subsequent purchaser of the it could not be so enforced containing the restrictive covenant did not in itself define, either specifically or by reference, the land to be benefited. To decide otherwise would render it too onerous on the part of a purchaser to have to search further in order to determine the identity of the land to be benefited. In the case at bar, the heading of the listed protective covenants states that II restrictions shall apply (hereinafter called the 'said lands') J 14 - j Schroeder, J .A., in Re Sekretov J 2 O.R. 161 where at p. 165 and J of the other common law that the dominant land a restrictive covenant J from the covenantee to a of the covenantee must deed its elf; otherwise, J to the conveyance the covenantee alone a successor in title J J Campbelltown Shopping l L.R. (2d) 270. The specific a covenant restricting the -J J lot. The court found that because the original deed J J l J J the said lands to which these l ,) J J
I l - 15 include the lots described in I from Federal to the applicants Schedule 11 A" is Lot 7 of the Federal subdivision. I in the conveyance are the specifically or by reference. I I Mr. Sodero submits that it "said lands" are those referred I schedule, namely, Federal Savings, Subdivision. I cannot agree. I requirements there must be description of the lands, a reference to I the lands or some other specific reference by which the lands to be benefited may be readily identified or ascertained. "I Even if the purchaser should suggests, that the land to I Savings, Cow Bay and Dyke Road Subdivision, that description I alone lacks the specificity required to enable the tenement" to be readily identified or ascertained. I Even if I were to find I on Mr. Sawlor as a personal covenant, which for reasons stated I do not, I find that the I covenant are not ascertainable I the covenant does not run with subsequent purchasers. ~ I Schedule 'A' 11 • In the deed the only lot described in Nowhere said lands described either may be inferred that the to in the heading of the Cow Bay and Dyke Road In order to comply with the either a metes and bounds a plan identifying conclude, as Mr. Sodero be benefited is the Federal "dominant that the covenant is binding lands to be benefited by the from the deed itself thus land and is not binding on
- Conclusion In conclusion I find that the covenant in question does not have the necessary requisites as set out in Elliston v. Reacher (supra) and is, therefore, invalid. Costs though they normally in the discretion of the court. one hand, it could be said that the respondents, the Naugles and the Eddys, could have avoided the risk of costs by signing the release as requested by hand it was not unreasonable the covenant in issue effectively of more than one dwelling on each lot. to this application, in fact, created the problem that brought the matter before the courts. I am inclined to exercise respondents and thus will order that the parties each bear their own costs. Halifax, Nova Scotia December 13, 1990 l 16 -j J by Parker, J. l follow the cause are always J Although I suppose, on the l J the applicants, on the other on their part to believe that J restricted the building None of the parties So, under those circumstances my discretion in favour of the J ) J J .. l J J J j J
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