Nov 29, 2014

Refusal to allow positive covenants to run with land in both common law and equity

Amberwood Investments Ltd. v. Durham Condominium Corp. No. 123, 2000 CanLII 22699 (ON SC)

Positive covenants do not run with the land in either common law or equity. At common law, the burden of a positive covenant will NOT run at law because burdens do not run at law at all! Positive covenants also do not run in equity b/c only negative/restrictive covenants fall within the rules now in place

The court in this case acknowledged that reform might be warranted but court declined to abolish the rule against the running of positive covenants because: (1) the complex problems at play could not be easily solved through incremental case law development; (2) the retrospective effect of a common law ruling could adversely affect existing property rights

This case illustrates court’s hesitancy to create new property interests (numerous clausus policy)

THEREFORE in the context of freehold land, a positive covenant can be enforced only against the original covenanter. The enforcing party can be either the original covenantee or an assignee of the benefit, at law or in equity.

The reason for the refuel