31 Oct Joe Oppenheim Counsel Comments for Alberta Take Five
Vallieres v. Vozniak, 2014 ABCA 290
“Because the memorandum attached to the transfer of title had been lost, the restrictive covenant at the Land Titles Office did not expressly apply to the property. Our argument emphasised a fundamental principle of the Torrens system that the Land Title Register be reliable so that land can be dealt with efficiently. We asked: “How could a covenant that did not apply to the property nevertheless affect its saleability?”
The Court of Appeal ignored our argument and entered into a very different analysis. It took judicial notice of the fact that restrictive covenants of the type seen here are generally applied to all lots in a subdivision. This reasoning is arguably consistent with subsection 48(4) of the Land Titles Act, which states that every person is deemed to have notice of a covenant and is bound by it “if it is of such nature as to run with the land”. As such, I think the Court was correct in holding that the covenant applied to the property.
Our clients suffered a loss of more than $300,000 as a result of the buyer pulling out of the deal at the onset of the 2008 recession. We feel that justice was accomplished (at least for now – we’re hopeful the judgment will be paid in short order). I was also pleased about the Court’s discussion on the importance of setting clear precedents on standard form contracts such as this. It lends a degree of certainty and stability in the law.”
Counsel Comments provided by Joseph G. Oppenheim, Counsel for the Appellants