By Honest Alf Dick – the Little Guy Lawyer
In Blog #4, I mentioned “zoning bylaws” and I’m sure that most of you are familiar with them – but, did you know that our law had controls of use of land long before the first municipal bylaw was passed?
Centuries ago in England, a man owned a successful pub together with a vacant lot next door. He needed some money so he decided to sell the vacant lot but, understandably, he did not want a pub built there – a pub that could compete and ruin his existing business – and so he extracted from the buyer a promise (we call it “a covenant”) that the buyer would not build a pub on it (at this point it becomes a “restrictive covenant”). That promise, if broken by the buyer, could be enforced in the Courts to prevent a pub being established there by the buyer.
However, the buyer sold the vacant land to Mr. Third Person and told Third Person about the covenant. Now Mr. Third Person was not very nice because he wanted to build a pub on that land and he said the covenant was a personal agreement which the seller could enforce only against the buyer, not against Mr. Third Person, even though he knew about the promise.
The seller went to Court and – what do you know – the Court said that, because certain rules had been followed by the seller, the promise was said to “run with the land” and therefore would be binding on nasty old Mr. Third Person as the new owner. So, no pub on that vacant land.
We still use restrictive covenants today in Ontario – sometimes properly, sometimes not – therefore if you are thinking of buying a parcel of land with a “restriction” on it, talk to your lawyer as to whether it is something that you want to have removed.