Jan 6, 2020

Restrictive Covenant on Land Held Invalid for Lack of Certainty

Skene v Ucluelet (District), 2019 BCSC 2051 (CanLII)


A statutory right of way (SROW) granted to a municipality under s 218 of British Columbia’s Land Title Act was found invalid because the registration on title was not accompanied by information sufficient to define the boundaries of the SROW.


The petitioners were owners of a parcel in Ucluelet, BC. Prior to the petitioners purchasing the parcel in 2013, it was part of a larger undivided parcel that was proposed to be developed as a single resort in the 1990s by a developer.

In 1998, in fulfillment of a condition for the development permit, the developer granted an SROW to the District of Ucluelet for a public right of way over a proposed boardwalk. The SROW was registered against title but a plan of the SROW or proposed boardwalk was not included in the filing.

By 2000, the developer ran into financial difficulties and the proposed development was abandoned. Construction of the proposed boardwalk never began. Subsequently, the developer’s lands were subdivided and sold to individual purchasers, one parcel being purchased by the petitioners.

In 2015, the District indicated to the petitioners that it was preparing to move forward with construction of the boardwalk in reliance on the SROW. The petitioners applied under s. 35 of the Property Law Act for an order cancelling the SROW charge.

Decision and Reasoning

The challenged SROW was found to be invalid and the Court ordered that its registration be cancelled.

The Court first established that an SROW, like other restrictive covenants, is to be interpreted based on principles of contract interpretation, where the primary goal is to determine "the intent of the parties and the scope of their understanding." In the context land contracts, the Court noted that “covenants…must be clearly and distinctly stated so that present and future owners may know with precision what obligations are imposed upon them,” and that an ambiguity in terms is to be resolved in favour of the free use of the land.

The Court found that no maps of the boardwalk or boundaries of the SROW had been included with the SROW filing, so the area over which the District was asserting a public right of way was not defined with any certainty. The fact that the SROW was registered against the title does not, by itself, mean that its boundaries are certain. A “general location of the boardwalk” does not provide sufficient level of certainty. The Court referred to Cole v. Paterson, 2019 BCSC 45, where a plan describing an area using a black outline filled with black diagonal lines was found to be vague and imprecise, and noted that there was not even a vague and imprecise plan attached to the SROW in question.

The District’s argument that extrinsic sources of information (i.e., outside the four corners of the SROW document) could be used by the parties to define the SROW boundaries was not successful. While the Court did not deny that extrinsic information could be used to determine the boundaries, it found that the extrinsic information available in this case was not sufficient to define the area granted under the SROW. The Court hinted that had the boardwalk actually been constructed, it may have “crystallized” the District’s interest over the SROW.

In sum, even though the SROW was filed without a plan during registration, it may still have been rescuable if there was reliable extrinsic definition of the SROW boundaries or if the boardwalk had actually been constructed. In absence of any intrinsic or extrinsic definition of boundaries in the SROW, it was held to be invalid.