Long before municipal zoning by-laws existed, restrictive
covenants were used as an effective community planning tool. If
Susan owned a large parcel of land and sold a piece to Jason, Susan
may have required that Jason promise not to use the land for
industry, and they would have entered into a contract. The courts
later recognized that this restriction on how Jason could use the
land did not apply only to Jason, but it applied to anyone after
Jason, such as subsequent owners of the affected land or any future
transferees. Essentially, the courts recognized the doctrine that
both the benefit and the burden of that restrictive covenant (the
land cannot be used for industry) between Susan and Jason would run
with the land.
A restrictive covenant is simply a contract between two
neighbouring landowners. In a restrictive covenant, the landowner
who obtains the benefit under this contract is called the
covenantee, who is anxious to maintain the saleable value of the
property. The covenantee acquires the right to restrain the
covenantor, the landowner who assumes the burden of the promise,
from putting the neighbouring land to certain specified uses.
One of the most important requirements of a restrictive covenant
is that it must be negative in nature. For example, a positive
requirement, such as you must paint your house bright pink, would
typically not be enforced by the courts because the courts will not
force you to do a certain thing with your land; however, a covenant
that you will not paint your house bright pink may be
enforceable. After all, a restrictive covenant must be restrictive,
as its name implies. It can't just sound restrictive, it
must actually be restrictive. If you can comply with the
restriction by not doing anything, but if you do something it must
be done in a certain way, the restriction is likely
Restrictive covenants are typically present in most new housing
subdivisions under the building scheme. They affect every lot in a
subdivision, and are actually a private scheme of town planning.
All the parties living in that subdivision possess a common
interest to preserve the character and value of all the land in the
subdivision. In certain subdivisions, one cannot plant a particular
tree on one's property because of the tendency of that
particular tree to seek out moisture and eventually grow into a
It is important to remember that all restrictive covenants
affecting your property would be found on title to your property.
Ask your lawyer about any restrictive covenants that may be
affecting your property before you decide to purchase a home or
paint your current home bright pink.
Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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