Is a charge considered obsolete under Section 31(2) of the Property Law Act?
British Columbia, Canada
The following excerpt is from Mountain Development Corp. v. McCrodan, 1995 CanLII 780 (BC SC):
10 The general principle with respect to whether a charge is considered obsolete under Section 31(2) of the Property Law Act was dealt with by Lambert, J.A. in a concurring judgment in Chivas v. Mysek, [unreported] (December 4, 1986) Van. Reg. #CA005068 (B.C.C.A.) where he stated [at page 6]: "[I]n my opinion, the test of whether the easement or restrictive covenant or other charge is obsolete is not a test to be satisfied on the basis of balancing the rights of the parties, but rather by a consideration of the use of the relevant property and a determination of whether on those facts the charge or interest is obsolete." See also Re Crescent Beach Marina Co. (1967), supra at pp. 5-6.
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