What is the test for determining whether a restrictive covenant or easement is obsolete?
British Columbia, Canada
The following excerpt is from Campbell et al v. Blainey et al., 2005 BCSC 250 (CanLII):
In Chivas v. Mysek, [1987] B.C.W.L.D. 687 (B.C.C.A.), the court said: The test of whether the easement or restrictive covenant or other charge is obsolete is not a test to be satisfied on the basis of balancing the rights of the parties, but rather by a consideration of the nature of the charge itself in the circumstances of the use of the relevant property and a determination of whether on those facts the charge or interest is obsolete.
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