In a recent case, Oxford Common Elements Condo Corp. No 73 (“OCECC No. 73”) v Greenbury, the Ontario Superior Court of Justice reaffirmed the principle that in instances of overlapping restrictive covenants, the least restrictive covenant will take priority.
The properties in question are 76 parcels of tied land (“POTL’s”) in Woodstock, Ontario, tied to OCECC No. 73. In 2004, a building scheme was registered on all 76 lots, and included a restrictive covenant that limited fencing on boundary lines between the common element condominium corporation and the POTL’s to four-foot wrought iron fencing (“RC8”).
After a change in ownership in 2006, a new building scheme was registered on the title of 52 of the 76 lots. The restrictive covenant in the 2006 building scheme provided that fences be “wrought iron fence or pressure treated fence” (“RC6”).
The Defendants owned a POTL subject to both building schemes and had installed a seven-foot high wooden fence. Both the Defendants and the OCECC No. 73 agreed the fence was in compliance with RC6 but not with RC8. The question before the Court was which restrictive covenant applied to the fence.
The Court found that both building schemes were valid and registered on title. Following the legal principle that the least restrictive of two conflicting covenants should be applied, the Court allowed the Defendants to keep their fence.
The Court also admonished the condominium board for failing to mediate the dispute and for acting unreasonably in enforcing a minor violation of a restrictive covenant. In the court’s view, the fence in question had not reached the level or nuisance of annoyance requiring board action.
The takeaway here is that in the case of multiple or ambiguous restrictive covenants, the courts will apply the least restrictive covenant. Further, boards should behave reasonably and consider the severity of the impact of a minor violation before taking enforcement action.
Special thanks to Alyssa Gebert and Michael McDonald who assisted with this article.