Applicants were owners of townhouse in development and were bound by co-tenancy agreement. Section 6.2 of co-tenancy agreement provided that owner would not alter unit exterior without written approval of co-tenancy committee, unless alteration was minor or cosmetic in nature. Whether alteration was minor or cosmetic was to be determined by committee. Applicants renovated their rooftop deck without prior approval. Applicants sought order that s. 6.2 of co-tenancy agreement be discharged pursuant to s. 61(1) Conveyancing and Law of Property Act, was unenforceable for vagueness, and was unenforceable as obsolete. Application dismissed. Concerning s. 61(1) of Act, it could not be said that s. 6.2 of co-tenancy agreement was spent or of no continuing practical value. Maintaining original design features had always been important to community's owners, and s. 6.2 conferred ongoing benefit. Section 6.2 of agreement was clear and unambiguous in providing that committee's decision as to whether alteration was minor or cosmetic was final and binding. There was ample evidence that s. 6.2 was capable of interpretation and had been interpreted in past. Applicants failed to establish that previous violations of 6.2 or exceptions had eroded overall character of development. Building scheme remained intact.
Chapadeau v. Devlin (2018), 2018 CarswellOnt 18085, 2018 ONSC 6456, Robyn M. Ryan Bell J. (Ont. S.C.J.).
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