Positive Covenants and the Inherent Instability of Alteration Agreements within Condominium: The Owners, Strata Plan NW 2476 v. Jensen

Positive covenants—contractual obligations to do things that touch and concern land—are not recognized as property interests at law or in equity. A positive covenant, including the requirement to maintain or repair a building, only binds the parties that contract to be bound. The obligation is personal to the contracting parties and does not run with the land; future owners are bound only if they agree to be bound. The Supreme Court of Canada confirmed as much in 2020 in a dispute between owners of air space parcels over an obligation to pay parking fees: “Where positive covenants are concerned, the general rule is that they do not run with the land.” In The Owners, Strata Plan NW 2476 v. Jensen, the British Columbia Civil Resolution Tribunal (the “CRT”) ruled that Trevor Jensen, the owner of Strata Lot 1 in a duplex-style complex with nine buildings and seventeen strata lots, was responsible for the cost of replacing two skylights that a former owner had installed in the roof under an alteration agreement with the strata corporation. The strata corporation’s bylaws allowed alteration agreements to permit such modifications to common property (including the roofs of strata lots), but only if the owner agreed “to take responsibility for any costs relating to the alteration as well as the future repair and maintenance”. In this instance, the former owner had agreed to assume future costs associated with the skylights, and thus to indemnify the strata corporation. Moreover, the alteration agreement purported to bind the owner’s “heirs, successors and assigns”, i.e., future owners, to costs associated with the alteration in the common property.

Also posted at 2023 BCCRT 623 (CanLII)