How have restrictive covenants been interpreted in the context of real estate law?
Alberta, Canada
The following excerpt is from Restrictive Covenant Instrument 213AT (Re), 2019 ABQB 309 (CanLII):
In Furano v. Montgomery, 2006 ABQB 230 at paragraph 21 Hawco, J. emphasized the contractual nature of restrictive covenants: With respect, I prefer the reasoning of Slatter J. The original purpose of a restrictive covenant - to maintain uniformity of development in a subdivision - does not detract from its contractual nature. A restrictive covenant is an agreement between the owners of particular properties.
In Potts v. McCann, 2002 ABQB 734, Slatter, J., as he then was, held at paragraph 14: A restrictive covenant is a form of agreement between the various owners of the properties in question. It is an unusual type of contract, in that the burdens and benefits of the contract run with the land, and are enforceable by and against the particular owners of the land from time to time.
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