Langston v Condominium Corporation No, 2021 ABQB 849

Court of Queen’s Bench of Alberta Citation: Langston v Condominium Corporation No 0112806, 2021 ABQB 849 Date: 20211028 Docket: 2001 07908, 2001 11501, 2101 00303 Registry: Calgary Between: Docket 2001 07908 Walter Langston and Tina Langston Applicants - and - Condominium Corporation No. 0112806 Respondent And Between: Docket 2001 11501 Greg Garrett, Sheila Chetley, Vanessa Ann Steeves and Corey Steeves Applicants - and - Condominium Corporation No. 0112806 Respondent And Between: Docket 2101 00303

Condominium Corporation No. 0112806 Applicant - and - Walter Langston, Tina Langston, Greg Garrett, Sheila Chetley, Vanessa Ann Steeves and Corey Steeves Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________ Introduction [ 1 ] This application and cross-application concern the enforcement of a Restrictive Covenant covering a rural subdivision consisting of 20 bare land units (and common property unit) located near the town of Stavely, Alberta.

The unit land owners brought their applications first then the Condominium Corporation cross-applied. For ease of reference in these reasons, the Condominium Corporation is the Applicant and the unit land owners are the Respondents. [ 2 ] In 2001, the developer of the parcel of land obtained subdivision development approval for the parcel from the Municipal District of Willow Creek ("MD") with conditions. One of the conditions required the developer to enter into a development agreement with the MD.

This was done in 2001 and the development agreement was registered by way of caveat on the parcel. [ 3 ] The Land Use Bylaw ("LUB") in place as at the date of subdivision approval stipulated that proposed uses must comply with the MD's Area Structure Plan ("ASP") for the area. There were three permitted uses, namely: (

a) Accessory buildings and uses; (

b) Home occupation - minor; (

c) Single family dwelling. [ 4 ] The ASP in place for the Parcel at the time of subdivision was the Pine Coulee Reservoir Area Structure Plan. It stipulated: Country residence means a use of land, the primary purpose of which is for a dwelling or the establishment of a dwelling in a rural area, whether the dwelling is occupied seasonally, for vacation purposes or otherwise, or permanently. [ 5 ] The ASP also defined a dwelling unit as follows: Dwelling unit means two or more self-contained rooms provided with sleeping, cooking, dining and sanitary facilities intended to be

used permanently or semi-permanently as a residence for one or more individuals as a single housekeeping unit. [ 6 ] The developer, in compliance with the development agreement, adopted architectural controls and registered them against the 20-lot parcel as a Restrictive Covenant. The Restrictive Covenant set out guidelines.

The guidelines contained the following material provisions: 2.1 No building or structure shall be built, erected or placed on the Units unless the same complies with the Guidelines, and no Unit owner shall apply for any development permit for or with respect to any development of the Units, nor commence any construction whatsoever on the Units, until detailed plans of the buildings, structures, or improvements to be constructed on a Unit, including but not limited to, design, location, elevations, footing elevations, grades, exterior appearance, finishing materials and colors, finished grades and landscaping have been approved in writing by the Developer or by the Condominium Corporation … 2.2 An owner of Unit shall not apply to the MD of Willow Creek No. 26 (the "MD") for a development permit for or with respect to, or proceed with the constructions of, any building or other improvement on a Unit until the approval required by this Restrictive Covenant and the Guidelines has been given by the Developer or the Condominium Corporation. 2.3 The construction of all buildings and improvements and Units shall be carried out in accordance with (and only in accordance with) the Guidelines and in a manner that will not damage, or constitute a nuisance or interference with the use of, any existing or proposed local improvements, service lines, adjacent lands, lanes or sidewalks.

Schedule "A" 2. HOUSE SIZES The homes are to have minimum floor areas (excluding garages and basement whether or not developed) as follows: HOUSE TYPE Bungalow 1000 sq. ft. Two Story 1500 sq. ft. Split Level (3 or more levels) 1500 sq. ft. 6. ACCEPTANCE OF PLANS Any house design may be refused on the grounds that it is not, in the opinion of the architectural controller, compatible with the design objectives for the area.

The approval of house plans will also be subject to municipal standards and regulations ... [ 7 ] As set out in the Exhibit H of the December 11, 2020 affidavit of Corporation Board member Barbara Joy, the registered Bylaws for the Corporation include the following provisions: 1. In these by-laws, unless the context or subject matter requires a different meaning: (d) "Building" means for purposes of these By-laws and the [ Condominium Property] Act any building on a Unit which shall be designated as part of a Unit; (o) "Restrictive Covenant" means, if applicable, the restrictive covenant(

s) signed by the Developer and registered against the title to all Units; 3. An Owner shall: (

e) not make any additions, changes or alterations to the Building on his Unit without first obtaining the written consent: of the Corporation; (

f) strictly comply with the architectural and landscaping guidelines of the Corporation in effect from time to time; (

g) not place or erect on any Unit any structure without the prior approval by the Board prior to any placement or construction; (

l) not make any additions, changes or alterations to the Building of this Unit without first obtaining the written consent of the Corporation. 4. In addition to the duties of the Corporation set forth in the Act, the Corporation, through its Board, shall: (

a) enforce the Restrictive Covenant and take all necessary steps it sees fit to uphold the restrictions imposed, and to control, manage, maintain and administer the Restrictive Covenant; (

g) establish and enforce architectural guidelines to preserve the character of the Parcel and the integrity of design and appearance of the improvements to the Units; 6.1 In this By-law: (

b) An Owner shall not, and shall ensure that Occupants of his Unit do not: (iv) erect or place any building or structure on the Unit or Common Property without the consent in writing of the Board; 6.2 The Owners acknowledge that the development of the lands contained in the Condominium Plan shall be for country residential

housing only. The Owners further acknowledge that the Unit Factors as set out in the Condominium Plan are based on an equal unit factor for every unit in the Condominium Plan. [ 8 ] The applicable MD Land Use Bylaw for the Parcel was modified in March 2010 that expanded a discretionary use to include cabins. [ 9 ] At present, all residential structures within the parcel, Condominium Plan No. 0112806, are of a minimum size of 1000 square feet. Langston Unit [ 10 ] According to the December 11, 2020 affidavit of Board member Barbara Joy the Respondents, Walter and Tina Langston, became the registered owners of Unit 18 in July 2015. A

summary of the development and proposed development of this unit is as follows: (

a) A shed was initially constructed, without Corporation approval; (

b) A second shed was constructed, again without Corporation approval; (

c) In July 2016, an application was made to the MD for approval for a stand-alone garage to complement an intended future home. The MD approved the application. No prior approval from the Corporation was sought or obtained. Subsequently the Corporation gave retroactive approval for the garage on the commitment from the Langston Respondents that a home would be constructed; (

d) In April 2019, an application was made to the MD for approval for a 500 square foot cabin. No prior approval from the Corporation was obtained; (

e) Subsequently, approval from the Corporation for the cabin was sought. The Corporation's Board members at that time were Respondent Walton Langston, Respondent Greg Garrett, Karena Miller and Terry Stevenson. Karena Miller voted against approval, relying upon the restrictive covenant and the required minimum size for a residential structure. The other Board members gave approval. The cabin has yet to be constructed; (

f) A new Corporation board was elected in June 2019; (

g) A request was then made to the Corporation to approve conversion of part of the existing garage into a cabin. Approval was not given; (

h) The Langston Respondents then sought approval from the Corporation for a stand-alone 500 square foot cabin. The Corporation did not give its approval, again relying on the restrictive covenant size restrictions. Notwithstanding that refusal, a development permit application for a 500 square foot cabin was made to the MD, which gave its approval. The Langston Respondents then sought approval from the Corporation for a stand-alone 500 square foot cabin. The Corporation did not give its approval, again relying on the size restrictions; (

i) The Development Permit contained the following notification: "This permit-indicates only-the-development to which it relates…is authorized in accordance with the provisions of the Land Use Bylaw. This is not a Building Permit. The applicant is not excused from complying with the requirements of any Federal, Provincial or other municipal legislation, or the conditions of any easement, covenant, building scheme or agreement affecting the development or land." (

j) Construction of the cabin has not occurred. The Garrett Unit [ 11 ] The Respondents Greg Garrett, Sheila Chetley, Vanessa Ann Steeves and Corey Steeves became the registered owners of Unit 20 In September 2016. A

summary of the development of the unit is as follows: (

a) In February 2017, an application was made to the MD for approval for a garage. The application was approved, subject to a condition that the owners build a single-family dwelling within two years. Approval of the Corporation was not sought or obtained. (

b) In October 2017, the then Board of Directors approved the stand-alone garage, subject to full compliance with the Restrictive Covenant and subject to the proviso that the structure could not be utilized as a residence. The garage structure has been built. (

c) In April 2019, the Garrett Respondents submitted a request to the Corporation for approval for a 300 square foot cabin. The then Board, which included the Respondents Greg Garrett and Walter Langston, gave approval without giving consideration to the Restrictive Covenant. (

d) A new Board of Directors was elected in June 2019, and the prior approval was rescinded on the basis that a 300 square foot cabin did not meet the minimum size requirement in the Restrictive Covenant. (

e) The Garrett Respondents have advised the Corporation that they intend to build a 300 square foot cabin, notwithstanding that the Corporation has refused their request to do so.

(

f) The Garrett Respondents made a development permit application to the MD for a 300 square foot cabin. The application wasapproved. [12] The position of the Respondents is that the Restrictive Covenant and the Bylaws of the Corporation do not apply to theproposed cabins and that they are entitled to proceed with the proposed development without approval from the Corporation. In otherwords, the proposed cabin development would be compliant with the Restrictive Covenant.

Issues [13] Does the Restrictive Covenant apply to all proposed residential structures on a bare land unit, including cabins? [14] If the Restrictive Covenant does apply to the proposed cabin developments, can the developments proceed if MD approval isobtained, notwithstanding the Restrictive Covenant and notwithstanding refusal of approval by the Corporation? [15] If the size restrictions in the Restrictive Covenant do not apply to a cabin, is approval of the Corporation pursuant to both theRestrictive Covenant and the Bylaws of the Corporation required before a cabin can be constructed?

Law and Analysis Restrictive Covenants [16] It appears that both parties recognize that even though a person is the legal owner of land, other persons may have legal rightsto enforce certain restrictions on what an owner can do with that land. Restrictions on the use of a person’s land are called RestrictiveCovenants. A Restrictive Covenant is a contract which places limitations on what can be done on with a owner’s property. General legalprinciples of the

interpretation of a contract apply to the

interpretation of a Restrictive Covenant. Blackburne Creek HomeownersAssociation v Burt, 2019 ABQB 608. [17] Restrictive Covenants operate outside of, and in addition to, municipal zoning bylaws. Seifeddine v Adventures of England,1980 ABCA 29 at para 30. [18] In some instances, Restrictive Covenants are stricter than the obligations set out under the existing MD zoning bylaws. Sincemunicipalities are only concerned with their own regulations, it is entirely possible for a home or a cabin to be built in compliance withmunicipal regulations but in contravention of the Restrictive Covenant on the title.

Even though the MD gives development approval tobuild a cabin that does not automatically override the Restrictive Covenant that requires minimum size construction requirements.Crump v Kernahan, at para 21. Condominium Corporation Bylaws [19] Bylaws are rules governing the condominium corporation. Every condominium corporation is required to operate according toits bylaws. As part of their powers and duties under Condominium Property Act, RSA 2000 c C-22, condominium board members havethe authority to enforce condominium corporation bylaws.

Courts consistently emphasize that the decisions of a condominium board aregiven considerable deference and respect. Once the rules have been established a unit owner is expected to abide by the bylaws and thecondominium corporation is obliged to enforce them. The Owners: Condominium Plan No. 762 1302 v Stebbing, 2015 ABQB 219 para29-31. Rulings Bylaws of the Corporation [20] The Bylaws of the Applicant clearly require prior approval of the Board for any improvements to be made to a unit. TheRestrictive Covenant clearly requires prior approval of the unit holder application before development approval is sought.

TheRespondents did not seek prior Board approval then ignored the Board decision declining to give its approval when they applied to theMD for a Development Permit. The Board on behalf of the Corporation exercised its authority within the scope of its powers and dutiesunder the Corporation Bylaws. As cited above in these reasons, courts will show deference to the reasonable, objective decisions of theBoard. I find that the Board’s action to enforce the Restrictive Covenant was within its Bylaws powers and duties.

Restrictive Covenant [21] I reject the Respondents submission that the Restrictive Covenant guidelines are vague, too general in nature, and do notspecifically state that the housing types, nor expressly prohibit any other types or other uses. Any reading of provisions in the RestrictiveCovenant, quoted above, clearly indicate that the size restrictions applied to all dwelling structures to be constructed on a unit in thedevelopment. At the time of subdivision approval, the only permitted residential use of a unit was for a single-family dwelling, whetheroccupied seasonally, for vacation purposes or permanently.

The Restrictive Covenant was, therefore, intended to apply to any and allresidential dwellings. It further provided that any proposed "development must comply with the guidelines; plans must first be approvedby the Applicant; and that development approval would not be sought from the MD without prior approval of the Applicant.”

[ 22 ] I note that the Langston cabin Development Permit obtained from the MD contained the following notification requiring the Respondent Langstons to comply with a covenant: This permit-indicates only the development to which it relates is authorized in accordance with the provisions of the Land Use Bylaw. This is not a Building Permit. The applicant is not excused from complying with the requirements of any Federal, Provincial or other municipal legislation, or the conditions of any easement, covenant, building scheme or agreement affecting the development or land.

Previous Board Approval [ 23 ] The approvals from the Board for both the Langston's stand-alone cabin on April 15, 2019 and the Garret proposed cabin on April 28, 2019 were properly rescinded in 2020 by the new Board elected in June, 2019. The approvals granted by the previous Board were flawed since it gave approval to the respondents' cabin proposals without considering the terms of the Restrictive Covenant. Area Structure Plan ("ASP") [ 24 ] The Respondents submitted that the Restrictive Covenant refers to architectural guidelines according to an area structure plan ("ASP") that was never adopted by a bylaw.

The Respondents further argued that because the Board had no architectural controller there was no objective basis for the Board to determine whether there was Respondents compliance or non-compliance. [ 25 ] As for the ASP, this was an MD development plan that defined the intent and stipulated the permitted uses for a group country residential district for the larger Pine Coulee Reservoir which included the subject development parcel.

The ASP serves as a reference in this case because the original land developer of the subject parcel, as required by the Development Agreement with the MD, had to register a subdivision plan with architectural controls in accordance with the ASP and had to register a Restrictive Covenant to enforce those architectural controls. The fact that the ASP was never adopted as a bylaw is immaterial to this application.

Architectural Controller [ 26 ] The Respondents submission, that because the Board lacked an architectural controller there was no objective basis for the Board to decide whether the Respondents were in compliance, is rejected. Typically, when the MD requires architectural guidelines these are created and controlled by the developer of the property. After the developer has sold all or a substantial part of its property in the development, that control evolves to the board of directors of the Condominium Corporation to enforce. That was the situation with this small-scale rural Condominium Corporation.

Nowhere is it required nor would it be practical that the Corporation retain a third-party architectural controller. Architectural guidelines can be enforced by the Corporation Board pursuant to the Bylaws and Restrictive Covenant. Improper Board Conduct [ 27 ] The Respondents alleged that there was improper conduct on the part of the Corporation. Specifically, the thrust of improper conduct alleged is that the Corporation targeted the Langstons when the Board decided in June 2020, during this ongoing dispute, to amend the architectural guidelines so that the number of outbuildings was listed to 3 per lot.

The Langstons already had two sheds and a garage on their lot. Also, it is generally alleged by the Respondents that the Corporation failed to adhere to its bylaws and Restrictive Covenants. [ 28 ] Section 67(1) of the Condominium Property Act , defines improper conduct. In reviewing that section, I find that there is no evidence or at least no convincing evidence in the materials before me to find that the Corporation or any of its Board members or Unit owners acted oppressively or prejudicially unfair to the Respondents.

The evidence indicates that a dispute arose over the Respondent unit owners not complying with the Corporation's Bylaws and Restrictive Covenant. The other unit owners were entitled to begin a process to enforce compliance with the terms of the Restrictive Covenant, which they did. It is unfortunate for all unit owners and for the peace and enjoyment of their rural property that a negotiated settlement was never obtained and that litigation matters had to come this far.

Limitations Act [ 29 ] The Respondents submit that even if the Langston properties were in breach of the Restrictive Covenant or bylaw, which the Condominium Corporation is by the Alberta Limitations Act RSA 2000 c L-12 barred from bringing an action past the 2 year limitations for alleging bylaw violations. The Respondents argue that the first two sheds built by the Langstons were completed in 2015 and 2017.

The Corporation failed to take any steps against the alleged breach until January 14th of 2021 about 4 years later. [ 30 ] The 2 year "clock" under the Act starts to tick from the date that the claimant knew or ought to have known that (

a) the issue occurred; (

b) the issue was a result of the defendant's conduct; and (

c) the issue warranted bringing an action. [ 31 ] The events that give rise to this application for a declaration and an injunction restraining the Respondents and their successors in title from constructing any building on the Respondents' property in breach of the covenant commenced on January 6, 2020 with the Respondent Langston emailing the Board seeking approval to convert part of the garage on his property into a cabin. On January 16, 2020 the Board met to review the Respondent Langston's email application and denied the request because the project did not comply with the Restrictive Covenant.

In February 23, 2020 Langstons informed the Board that they would be moving forward to the MD for a development permit for a stand-alone cabin. Multiple emails followed. The “triggering” event was on January 6, 2020. Given the dates for these events and those that followed I find that this application is not barred by the Alberta Limitations Act .

Remedy [ 32 ] I find that the Restrictive Covenant applies to all proposed residential structures including cabins. The MD development permit approval is subject to the Restrictive Covenant including the Corporation’s refusal to approve the cabin development.

Corporation approval is required before a cabin can be constructed. [ 33 ] I agree with the Corporation's submission that the appropriate remedy is a declaration and injunction as stated in Potts v McCann , 2002 ABQB 734 para 43 . [ 34 ] I find that the Applicant Corporation is entitled to a declaration that the Restrictive Covenant is valid and binding on the Respondents and their successors in title.

They are also entitled to an injunction restraining the Respondents and their successors in title from constructing any building on the Respondents' property in breach of the Restrictive Covenant without written approval of the Corporation in compliance with the Corporation bylaws and Restrictive Covenant. [ 35 ] The application of Walter and Tina Langston, action number 2001 07908 and the application of Greg Garrett, Sheila Chetley, Vanessa Ann Steeves and Corey Steeves, action number 2001 11501 are dismissed.

Costs [ 36 ] A claim for costs can be submitted to the court in writing with a brief of no more than 5 pages and an attached Bill of Costs. The Applicant will submit its claim to the Respondents and the Court within 5 days of the date of these reasons. The Respondent, similarly, will respond to the Applicant and the Court within 5 days of receiving the Applicant's brief. If the Applicant chooses to Reply it will do so to the Respondent and the Court within 3 days of receipt of the Respondent's brief. Heard on the 19 th day of October, 2021. Dated at the City of Calgary, Alberta this 28 th day of October, 2021.

Bryan E. Mahoney J.C.Q.B.A. Appearances: Faizan Butt for the Applicants/Respondents Walter Langston, Tina Langston, Greg Garrett, Sheila Chetley, Vanessa Ann Steeves and Corey Steeves Jamie E. Polley for the Respondent/Applicant Condominium Corporation No. 0112806