O.J. No. 1023 (C.A.), leave to appeal to S.C.C. abandoned 
S.C.C.A. No. 208.
 In Amberwood, a condominium corporation and the owner
of an adjoining property had entered into an agreement to
exchange easements on their respective properties and to share
expenses concerning a recreational facility. The agreement was
registered on title to both parcels of land and the obligations
and benefits in the agreement were expressed to run with
the land and to bind and benefit the successors in title of the
original contracting parties. When the successor in title to
one of the original covenantors refused to pay its share of the
expenses, litigation ensued.
 Justice Charron, writing for the majority of the
Amberwood court, held that the common law rule that positive covenants do not run with freehold land is settled law in Ontario
and that legislative action is required and advisable for any
reform of it. The court also considered whether two exceptions
to this rule recognized under English law, known as the “
benefit and burden exception” and the “conditional grant of easement exception”, could and should be adopted in Ontario and,
if so, whether either applied on the facts of the case.
 For lengthy reasons it explained, including the uncertainties and many frailties of the existing common law in England
in this area of the law, the majority in Amberwood concluded
that it would be inadvisable to adopt the benefit and burden
exception to the rule about positive covenants in Ontario.
For essentially the same reasons, although perhaps not as
explicitly, the majority also declined to import the conditional
grant exception as discussed in the English jurisprudence into
Ontario law, holding, in any event, that it was not available on
the facts to assist the defaulting landowner. The dissenting
judge in Amberwood, MacPherson J.A., would have adopted
both exceptions to the positive covenants rule into the law of
Ontario and would also have held that both exceptions applied
in the particular factual circumstances of that case.
 The principles articulated in the majority opinion in
Amberwood are directly engaged in this appeal. As I will
explain, in this case, the Divisional Court judge (the “appeal
judge”) declined to apply the majority decision in Amberwood
and, based on a recent case in England and a decision of
the Ontario Superior Court of Justice, concluded that both
the benefit and burden and conditional grant exceptions to the
positive covenants rule form part of Ontario law and are applicable on the facts of this case. These rulings are now challenged before this court.