What is the test for determining whether an easement is obsolete for purposes of section 2547 of the Condominium Act?
British Columbia, Canada
The following excerpt is from Dykes v. Nagel, 2011 BCSC 1549 (CanLII):
In the case of Chivas v. Mysek, [1986] B.C.J. No. 2547, Mr. Justice Lambert described the tests for determining whether an easement is obsolete for the purposes of that section. He held: ... in my opinion, the test of whether the easement or restrictive covenant or other charge is obsolete is not a test to be satisfied on the basis of balancing the rights of the parties, but rather by a consideration of the nature of the charge itself in the circumstances of the use of the relevant property and a determination of whether on those facts the charge or interest is obsolete.
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