Restrictive Covenants and Fences

No Swimming Pools

Question:

A buyer wanted to buy a property and put a pool in their back yard. When doing a title search they found that the seller had a restriction to putting up a fence in the backyard (which would be needed to have a pool). The original developer had registered this restrictive covenant on the title of everyone in the subdivision.

After finding this out, does the buyer have an option to cancel the contract? The seller is also complying with the restriction and currently doesn’t have a fence up.

Answer:

Cancelling the contract is not an option.

While one might think that good title is the bargain, it is not, and one of the important exceptions is “restrictive covenants provided they have been complied with”.

The restrictive covenant was designed to open up the subdivision by ensuring that there were no fences. However, by doing so, it also ensured that there would be no swimming pools.

Here, we have compliance, so there is no valid requisition requiring remedial action of some sort. The issue of submitting requisitions within the appropriate time limit has no bearing on this issue.

Going forward, this is another example where a real estate agent would have been wise to conduct a search of title at the outset, reviewed the restrictive covenants and advised their client in advance.

The deal that was struck limited the involvement of the lawyer. By the time they were involved, it was too late.

Backyard Pool Safety - Toronto Pool Supplies Blog

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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