Blackburne Creek Restrictive Covenants Upheld

As many are aware, the Blackburne Creek Homeowners’ Association (HOA) has been involved in litigation with three of our members who chose to replace their roofs with non-wood materials in 2013. A three-day trial was held in April of this year, with a written judgment delivered on August 8, 2019 by the Honourable Mr. Justice Michael Kraus of the Court of Queen’s Bench.

In his decision, Justice Kraus ruled that the Design Guidelines in the Restrictive Covenant are not ambiguous, that the roofing materials must be made of wood, and there cannot be a free use of the land with respect to roofing materials. He also ruled that the HOA “acted promptly and decisively with respect to the defendants in July 2013”, thereby reinforcing the authority of the HOA to enforce the Covenants as per our founding and operating documents.

The HOA had not asked for pecuniary damages (other than costs) but had asked for a mandatory injunction which Justice Kraus granted.

The decision makes it clear that the HOA is tasked with enforcing those covenants. Neighbourhoods such as ours with restrictive covenants registered on title were developed for, and marketed to people who wanted to live in a neighborhood that would have certain features of quality and consistency. This decision upholds those aims and I am sure will be a guiding case for other neighborhoods for years to come.

Brian Hawrelak

President

The decision is now public record and can be viewed at this link.