the restrictive covenants from the register pursuant to s. 119( 9) of the Land Titles
Act, which provides that where a condition, restriction or covenant has been registered and no period or date was fixed for its expiry, the condition, restriction or
covenant is deemed to have expired 40 years after registration. The applicant then
applied to the Superior Court for an order requiring the respondents to remove
their encroachments on the three-foot strip. The respondents argued that, since
the original conveyance by which the restrictive covenants were created was a grant
to the grantee for its sole and only use “forever”, a period of time was specified,
Held, the application should be allowed.
The use of the word “forever” in the original deed suggested that the rights
granted were intended to be perpetual, which in turn suggested that the covenants
were not intended to be for a specified period of time. The covenants were therefore caught by the express language of s. 119( 9) and were deemed to have expired
40 years after their registration.
Cases referred to
Belwood Lake Cottagers Assn. Inc. v. Ontario (Ministry of the Environment),
 O.J. No. 485, 2019 ONCA 70, 2019 OREG ¶ 59,330; Girard (Re),  O.J.
No. 5216, 61 R.P.R. (4th) 288 (S.C.J.); Roberston v. Graham,  O.J. No. 1711,
2017 ONSC 2177, 2017 OREG ¶ 59,220 (S.C.J.); Walmart Canada Corp. v. UFCW,
Local 1400,  S.J. No. 415, 2010 SKCA 89, 185 C.L.R.B.R. (2d) 63, 321 D.L.R.
(4th) 397,  9 W.W.R. 387, 7 Admin. L.R. (5th) 306, 359 Sask. R. 131,
192 A.C. W.S. (3d) 615; Wiltshire v. McGill,  O.J. No. 2164, 139 A.C. W.S. (3d)
Statutes referred to
Land Titles Act, R.S.O. 1980, c. 230 [rep.], s. 118( 9)
Land Titles Act, R.S.O. 1990, c. L. 5, s. 119( 8), ( 9)
The Land Titles Act, R.S.O. 1950, c. 197 [rep.], s. 101
The Land Titles Act, R.S.O. 1960, c. 204 [rep.], s. 122( 5)
The Land Titles Act, R.S.O. 1970, c. 234 [rep.], s. 129( 9)
Registry Act, R.S.O. 1990, c. R. 20
Authorities referred to
Ontario Law Reform Commission, Report on Covenants Affecting Freehold Land
(Ministry of the Attorney General, 1989)
APPLICATION for an order requiring the respondents to remove
encroachments on the applicant’s property.
Michael W. Carlson, for applicant.
Megan Sanford, for respondents.
STINSON J.: —
[ 1] This dispute concerns a three-foot wide strip of land
between two residential properties. The applicant owns the house
at Street No. 99 and her neighbours, the respondents, own the
house at Street No. 97. The three-foot strip runs along the eastern