Black v Owen
Posted May 5, 20162016 ONSC 40; Lerners acted for the Appellants in this appeal. The action arose out of the Respondents’ failure to pay annual levies related to a property located in Wychwood Park in Toronto from 2010 to 2014, as required under a Trust Deed established for the benefit of the properties situated in Wychwood Park. In a prior action against the Respondents based on their failure to pay such levies in 2008 and 2009, the Divisional Court upheld the trial finding that the levy was valid and that the Respondents’ family was required to pay it. The deputy judge in this action held that the Respondents were not required to pay the levy because the Trust Deed was a positive covenant that did not run with the land. The Divisional Court allowed the appeal and ordered that the Respondents were liable to pay the annual levies, on the basis of the conditional grant exception to the general rule that positive covenants do not run with the land.