Is a covenant to maintain an open, unassuming garden "in an open state, uncovered with any buildings"?

Alberta, Canada


The following excerpt is from Spruce Grove v. Yellowhead Regional Library Board, 1985 CanLII 1162 (AB QB):

On the issue of covenants running with the land, Megarry and Wade have this to say at p. 754: The question is whether the covenant is negative in nature: it is immaterial whether the wording is positive or negative. Thus the covenant in Tulk v. Moxhay was positive in wording (to maintain the Leicester Square garden “in an open state, uncovered with any buildings”) but negative in nature, for it merely bound the covenantor to refrain from building, without requiring him to do any positive act. A test which is often applied is whether the covenant requires expenditure of money for its performance; if the covenant requires the covenantor “to put his hand into his pocket,” it is not negative in nature. But the converse does not necessarily follow; a covenant that can be performed without expense may still require some positive act and so not be restrictive. A covenant to use the premises as a private dwelling-house only is negative in nature, for really it is a prohibition against use for other purposes; and the same applies to a covenant to give the first refusal of a plot of land, for in effect it is a covenant not to sell to anyone else until the covenantee has had an opportunity of buying. But a covenant “not to let the premises fall into disrepair,” despite its apparently negative form, is in substance positive, for it can be performed only by the expenditure of money on repairs.

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