A historic residential property in Niagara-on-the-Lake was subject to a restrictive covenant placed on title 50 years ago by the original developer. The covenant states, 'No building exceeding two storeys in height shall be erected or maintained on the said land.' The current owner wishes to add a third storey. What is the most likely outcome if the owner proceeds with construction without addressing the covenant?

Question: A historic residential property in Niagara-on-the-Lake was subject to a restrictive covenant placed on title 50 years ago by the original developer. The covenant states, 'No building exceeding two storeys in height shall be erected or maintained on the said land.' The current owner wishes to add a third storey. What is the most likely outcome if the owner proceeds with construction without addressing the covenant?

Answer options: ✅ A neighbouring property owner, if negatively affected and benefiting from the covenant, could apply to the court for an injunction to stop construction or demand removal of the third storey.

• The municipality will approve the construction as restrictive covenants are generally not enforceable after 30 years.
• The title insurance policy will automatically cover any legal expenses related to the breach of the covenant.
• The restrictive covenant is unenforceable as it was created by a private party and not the municipality.

Correct answer: A neighbouring property owner, if negatively affected and benefiting from the covenant, could apply to the court for an injunction to stop construction or demand removal of the third storey.

Explanation: Restrictive covenants run with the land and are enforceable by property owners who benefit from them, provided the covenant meets certain legal criteria (e.g., benefits a dominant tenement, negative in nature, clear intention). A neighbour benefiting from the covenant could seek legal action for its enforcement to prevent or rectify a breach, even after a significant period, though courts may sometimes modify or discharge them under specific conditions (e.g., Planning Act).