APPENDIX A. SUMMARY OF RECOMMENDATIONS

RECOMMENDATION 1The British Columbia government should enact legislation enabling private landowners to grant conservation covenants voluntarily in favour of conservation groups qualified as holders of such interests, so that the land subject to the conservation covenant is preserved for purposes permissible under the legislation and as specified in the conservation covenant.

RECOMMENDATION 2The legislation should provide that any incorporated society or other not-for-profit corporation, whose constitution provides that

• (1) its purposes include any purpose for which a conservation covenant may be granted, and
• (2) upon dissolution any conservation covenant held by it shall be transferred to another incorporated society or not-for-profit corporation eligible to hold a conservation covenant

is qualified to hold a conservation covenant.

RECOMMENDATION 3The conservation covenant legislation should not require that a conservation covenant must be reviewed and approved by a government body before it is valid and may be registered on title to a property.

RECOMMENDATION 4The conservation covenant legislation should provide that the existing common law and Property Law Act rules regarding the abandonment, termination, discharge or extinguishment of easements or covenants do not apply to conservation covenants.

RECOMMENDATION 5The conservation covenant legislation should provide that a court may modify or discharge a conservation covenant upon application by a holder, an owner or any other party the court determines has a sufficient interest, in circumstances where

• (1) the original purposes of the conservation covenant and the intention of the grantor are no longer being achieved, and
• (2) the modification or discharge serves the original purposes of the conservation covenant and the intention of the grantor, rather than other societal purposes.

RECOMMENDATION 6The legislation should contain a non-exhaustive list of conservation purposes which may be served by a conservation covenant. It should be permissible to create a conservation covenant the purposes of which can include the protection, preservation, conservation, maintenance, enhancement or restoration of

• (1) the environment, broadly defined,
• (2) any form of plant or animal life or habitat,
• (3) aesthetic values,
• (4) recreational use of land,
• (5) an existing state or use of land, or
• (6) heritage values, including the paleontological, archaeological, historical, architectural, scientific or cultural values associated with land.

RECOMMENDATION 7The legislation should provide that a conservation covenant is a non-possessory interest in land, created in writing, that is either perpetual or of fixed duration and which may contain

• (1) positive or negative obligations respecting the use of the land or anything to be done or not to be done on it by its owner or the holder of the conservation covenant,
• (2) obligations to permit access to or use of the land by the holder of the conservation covenant, and
• (3) obligations and entitlements relevant to achieving any of the purposes for which the conservation covenant has been created.

RECOMMENDATION 8The legislation should provide expressly that a conservation covenant may be granted and held whether or not it benefits land other than the land which it burdens.

RECOMMENDATION 9The legislation should provide that a conservation covenant is presumed to run with title to the land and to bind subsequent owners of the land, whether or not such an intention may be gathered from the instrument.

RECOMMENDATION 10The legislation should provide that positive obligations in a conservation covenant bind

• (1) the grantor of the conservation covenant and the successors in title of the grantor, whether or not in possession of the burdened land, and
• (2) anyone in possession of the burdened land.

The legislation should provide that restrictive obligations in a conservation covenant bind

• (1) the grantor of the conservation covenant and the successors in title of the grantor, whether or not in possession of the burdened land,
• (2) anyone who has any subsequent interest in the burdened land, and
• (3) anyone in possession of the burdened land.

RECOMMENDATION 11The conservation covenant legislation should provide that anyone who is bound by a conservation covenant who breaches or permits a breach of an obligation in a conservation covenant is liable for the breach.

RECOMMENDATION 12The legislation should provide that

• (1) a person who is bound by a conservation covenant ceases to be liable after disposition by that person of his or her interest in the burdened land, but only to the extent of the interest disposed of, and
• (2) the parties to the conservation covenant may provide that, contrary to the foregoing rule, the person who is bound by the obligation remains liable after disposition by that person of his or her interest in the burdened land.

RECOMMENDATION 13The legislation should provide that a conservation covenant is enforceable by action in the Supreme Court of British Columbia and that all of the common law and equitable remedies are available to remedy its breach. The legislation should further provide that a court may order compliance with a positive obligation in a conservation covenant, despite any rule of law or equity to the contrary.

RECOMMENDATION 14The legislation should provide that a conservation covenant may grant a third party right of enforcement to an entity otherwise qualified to be the holder of a conservation covenant.

RECOMMENDATION 15The legislation should provide that it is permissible for the holder of a conservation covenant to assign it, but only to another entity qualified to hold a conservation covenant.

RECOMMENDATION 16The legislation should stipulate that the following common law and equitable rules do not apply to conservation covenants, namely any rule that

• (1) land other than the land burdened by the interest must be benefitted, or that the interest must touch and concern or be appurtenant to land other than the land burdened,
• (2) the burden of an interest will not run with title to the burdened land, or that it will run with title to that land only if the interest is restrictive or negative in nature,
• (3) an interest cannot be enforced unless there is privity of estate or of contract, or
• (4) an interest must demonstrate an intention to bind the burdened land and run with title to it.

RECOMMENDATION 17The conservation covenant legislation should amend the Property Purchase Tax Act to provide property purchase tax relief where a conservation covenant is granted to a qualified holder for a purpose permitted under the conservation covenant legislation. The tax relief should be commensurate with the fair market value of the transaction after accounting for the conservation covenant. The tax relief should be available where the conservation covenant is registered against title either before the taxable transaction occurs or within a specified time after it occurs. Cabinet approval of a conservation covenant should not be required in order to obtain property purchase tax benefits.

RECOMMENDATION 18The conservation covenant legislation should enact amendments to the Assessment Act so that any land subject to a conservation covenant is placed in a special class of property to which preferential lower assessments of value apply. In the alternative, the government should consider implementing a system of property tax rebates or grants to encourage the use of conservation covenants.

RECOMMENDATION 19The government should consider funding a transition program in the years immediately following enactment of conservation covenant legislation to assist conservation groups in enhancing their expertise in using conservation covenants and to educate landowners about the environmental benefits of granting conservation covenants.

APPENDIX B. GLOSSARY OF TERMS

This appendix defines a number of the concepts and terms used in this report. These definitions are by no means exhaustive or definitive, but are intended to provide a discussion framework for this report. The circumstances of a particular case often will require a different understanding of what is meant by each of the terms.

Conservation: This refers to protection of land, or some aspect or component of it, from a certain kind of development or from development in a specified manner or degree. Conservation contemplates some human use -- including, in some cases, development -- either in the past or the future. Given this context, conservation is a lesser kind of protection than preservation. Indeed, conservation is often the kind of protection envisioned when the object is to conserve in its present state some feature of the land, such as the heritage conservation of buildings.

Conservation Covenant: This is the term used in this report to describe an interest in land created for conservation or preservation purposes. The law reform required to allow this interest to be created in British Columbia is recommended in this report. Throughout this report the term conservation covenant is used to encompass both preservation and conservation of land. Despite the fact that conservation covenants often will be designed to preserve land, in many cases the interest will in fact attach to privately owned land which has already been developed in some way.

Conservation Easement: This is a term widely used in the United States to describe a legal tool for land preservation or conservation. A conservation easement may be defined as a binding promise given in writing by a landowner to a government or to a private organization. The conservation easement is recorded against title to the land and binds subsequent owners of the land.

The objective of a conservation easement is to ensure that land, or some feature of it, is preserved, conserved or kept in a specified state. American conservation easements are usually hybrid tools, with characteristics of both easements and covenants. The easement may include one of the purposes set out below.

• (1) The landowner agrees not to use the land in a certain way, that is, agrees to restrictions on use.
• (2) The landowner agrees to use his or her land in a particular way, that is, agrees to positive obligations regarding the land. [[Footnote: (110) -- 110. See The Conservation Easement Handbook, supra, note 64.

]]

• (3) The landowner allows access by the interest-holder for performance monitoring purposes. [[Footnote: (111) -- 111. See the model conservation easement in The Conservation Easement Handbook, ibid. at 156.

]]

• (4) The landowner allows the interest-holder to enter the burdened land for other purposes, for example, to take positive steps to preserve waterfowl habitat.
• (5) The landowner agrees to a prohibition against filling in or otherwise interfering with wetland located on a farm, thus protecting waterfowl habitat. In this case, the rest of the farm may still be used for agricultural purposes or even non-agricultural purposes which would not interfere with the swamp habitat.
• (6) The landowner agrees that development of a parcel of land is prohibited. For example, the owner of a large piece of forest land may agree that no buildings can ever be built on it and that the forest is never to be cut down.

Although in the United States the term conservation easement has been used, one commentator has stated that "conservation servitudes more closely resemble real covenants than easements and hence should not be labeled and treated as easements." [[Footnote: (112) -- 112. Korngold, supra, note 31 at 437.]]

Development: This refers to land that is either

• (1) exploited by humans, other than for traditional uses by aboriginal peoples, including by extracting its renewable or non-renewable resources, or
• (2) altered, including by alteration of its soil, water, plant or animal life, in a manner which leaves tangible, but not necessarily permanent, evidence of human alteration of a more than evanescent kind, but excludes temporary alteration which is directly associated with the traditional land uses of aboriginal peoples.

Land: The legal nature of land is a bundle of separate property rights, each of which can be separated from the others and sold or otherwise dealt with by a landowner. In this report, land includes land covered by water. In the non-legal sense, this report refers to land as

• (1) the uppermost layer of the Earth's crust, comprised of bedrock and other rock and the soil which forms part of that layer,
• (2) the totality of all natural physical features of that layer of the Earth's crust,
• (3) the biomass which is supported by and upon that layer of the Earth's crust, including all plant and animal life, and
• (4) water on or in that layer of the Earth's crust.

Preservation: This refers to measures to ensure land is excluded from development permanently. Preservation of land will not preclude traditional uses of the land by aboriginal peoples, prevent use of the land for passage by humans or, in some cases, prevent use for carefully regulated "light-footprint" recreational use, such as canoeing. At the very least, preservation consists of exclusion of land from development, as defined above.

Section 215 Environmental Covenant: This term is used in this report to refer to a covenant of a negative or positive nature, granted in favour of the Crown or other government body under section 215(1.1)(e) of the Land Title Act, that includes a provision that land or a specified amenity in relation to it be protected, preserved, conserved or kept in its natural state in accordance with the covenant and to the extent provided by the covenant.

A section 215 environmental covenant binds successors in title and need not be annexed to land owned by the grantee.

APPENDIX C. THE EXISTING LAW ON COVENANTS AND EASEMENTS

C.1 Covenants Affecting Land

A covenant is a binding written promise by which one person agrees to do something or refrain from doing something. [[Footnote: (113) -- 113. A covenant need not concern land. The law of covenant developed before and independent of the law of contract and for a long time fulfilled many of the functions now discharged by the law of contract. As to the law on deeds under seal, that is, the law of covenant in general, see British Columbia Law Reform Commission, Report on Deeds and Seals (Vancouver: Ministry of Attorney General, 1989). See also, Anger & Honsberger, supra, note 11.]] A covenant is enforceable by the person to whom the promise is made -- that is, the person with whom the promising party stands in a direct relationship under the written covenant can enforce the covenant by court action. [[Footnote: (114) -- 114. This action will in some cases be for an injunction to prevent breach of the covenant, although damages for its breach often will be the remedy, in accordance with well-established legal principles. End of Footnote]] z Although covenants do not necessarily relate to land, they often do concern land. A landowner may grant a covenant to another person, by which the landowner agrees to do, or not to do, something with respect to his or her land. [[Footnote: (115) -- 115. A covenant not to do something with land is commonly called a restrictive covenant or a negative covenant. A covenant to do something with land is known as a positive covenant. The crucial test for distinguishing between the two types of covenants is whether the covenant is in substance negative. The language used is not determinative. See Ontario Report, supra, note 23 at 8. A simple test for identifying a positive covenant is to ask whether it requires the landowner to spend money. If it does, it is almost certainly a positive covenant in substance. This test is not, of course, definitive in all cases. End of Footnote]] z

If a landowner covenants with another person to do or not to do something with land identified in a covenant, the person to whom the covenant is given can enforce the covenant. However, if the land is subsequently sold, the important question is whether the person to whom the covenant was given can enforce it against the new owner.

The rule has long been that a covenant will be enforceable if there is a direct contractual link between the plaintiff enforcing the covenant and the defendant. This is a rule of contract law. A covenant also will be enforceable if there is privity of estate between the plaintiff and the defendant, meaning that one of the parties must have derived his or her interest in the land in succession to the interest of the other party. This rule is a rule of the law of property. [[Footnote: (116) -- 116. See Ontario Report, supra, note 23 at 6-8. See also the Law and Equity Act and the Property Law Act. ]]

The first rule means that if a landowner covenants with an adjacent landowner regarding use by the first owner of his or her land, the second landowner cannot enforce that covenant against someone who purchases the land owned by the first landowner. There is no direct contractual relationship or privity of estate between the second landowner and the successor to the first landowner.

The second rule is limited today to the relationship of landlord and tenant, since earlier feudal forms of tenure have been abolished, apart from the relationship between the Crown and all other landowners. It is clear that a covenant in a lease can be enforced by the landlord against the assignee of the original lessee, since by the assignment the assignee becomes the landlord's tenant. This means there is privity of estate. If a tenant sub-leases the property, there is no privity of estate between the landlord and the sub-tenant. In this situation a covenant in the lease cannot be enforced by the landlord against the sub-tenant if the covenant is merely personal and does not run with the land. [[Footnote: (117) -- 117. Of course, the original lessee remains liable to the landlord for any breaches of the covenant, despite any subsequent assignment or sub-lease. See Anger & Honsberger, supra, note 11 at 453 ff.]]

Complex and arcane rules have evolved which expand the enforceability of covenants outside the two cases just discussed. These rules differ as between the common law and the equitable jurisdictions of our courts. By common law jurisdiction is meant the legal principles and rules administered and developed by the courts of the Sovereign. By equitable jurisdiction is meant the body of law originally developed and applied by the courts of the Lord Chancellor of England. The latter court strived to create law which enforced the dictates of good conscience. In theory, at least, this meant the court of equity was determined to ensure fair play and flexibility. [[Footnote: (118) -- 118. For a good introduction to the history of the common law and equitable jurisdictions, see Baker, supra, note 25. The Supreme Court of British Columbia now administers the rules of both equity and the common law. See the Supreme Court Act, R.S.B.C. 1979, c. 397.1.]] Accordingly, in the case of covenants affecting land, equity took a much more liberal approach than did the common law.

Nonetheless, the common law and equitable rules in this area are complex and ill-suited to the needs of environmental protection. Some detailed discussion of the common law and equitable rules is necessary in order to understand why conservation covenant law reform is needed in British Columbia.

C.1.1 Common Law Rules Regarding Covenants

The critical common law rule is that the benefit of a covenant runs with the land, but its burden does not. The benefit of a covenant is, in essence, the benefit its performance confers on the landowner whose land is benefitted by the covenant. It is also the right to enforce the covenant. The burden of a covenant is the obligation to perform its terms.

The benefit of a covenant can be enforced by the purchaser of the land benefitted by the covenant if

• (1) the covenant touches and concerns the land,
• (2) the person to whom the covenant was originally given was the legal owner of the land benefitted, and
• (3) the assignee of the covenantee has the same interest in the land as the covenantee.

It is clear that at common law the person giving the covenant need not own land for the covenant to be enforceable against that person. [[Footnote: (119) -- 119. See, for example, Smith v. River Douglas Catchment Board, [1949] 2 All E.R. 179 (C.A.).]] It is necessary only that the person to whom the covenant is given own land benefitted by that covenant. The purchaser of that benefitted land will be able to enforce the covenant against the person who granted it. That does not mean, however, that the covenant will bind successor owners of any land owned by the person who granted the covenant.

The common law refused to allow the burden of a positive or restrictive covenant to run with the land, apparently because it was feared that it would render land unsaleable. It was assumed that people would not be willing to purchase land encumbered with such burdens. [[Footnote: (120) -- 120. See Keppell v. Bailey (1834), 39 E.R. 1042. See Ontario Report, supra, note 23 at 19-22.]] It might be asked why agreeing to take on such a burden, usually for a price, unreasonably restrains the marketability of land. Assumption of such a burden simply affects the value of the land, meaning that it will be sold for a lower, or possibly a higher, price. Nonetheless, the common law continues to limit freedom of contract by fettering the extent to which landowners may bind future owners of their land. The burden of a positive or restrictive covenant does not run with the land at common law.

Another concern of English judges of the last century was that a prospective purchaser of land would have no way of knowing what covenants might burden the land to be purchased. This concern has not applied for some time in British Columbia because of our statutory land registry and land titles schemes, discussed in the main text of this report. [[Footnote: (121) -- 121. See Ontario Report, supra, note 23 at 19-22.]]

C.1.2 Equitable Rules Regarding Covenants

Charles Dickens might have had the equitable rules governing covenants in mind when he caricatured the law of equity in Bleak House. Equity permits both the burden and the benefit of a restrictive -- but not a positive -- covenant to run with title to land. So long as a covenant is restrictive or negative in nature, it can be enforced against the successor in title to the land which is burdened by the covenant. If a covenant is positive in nature, only its benefit runs with the land in equity; its burden does not. This rule applies in British Columbia today.

A. Running of the Burden of Restrictive Covenants in Equity

The apparently simple proposition that equity permits the burden of a restrictive covenant to run with the land in fact breaks down into several components. For the burden of a restrictive covenant to run with title to land in equity, the following criteria must be met:

• (1) the covenant must be restrictive or negative in nature;
• (2) the covenantee must be the owner of some land which is benefitted by the covenant;
• (3) the covenant must touch and concern the land benefitted by it;
• (4) the covenant must reflect an intention to bind the land and run with it; and
• (5) the person against whom the covenant is sought to be enforced must not be someone who has purchased the burdened land in good faith without notice of the covenant. [[Footnote: (122) -- 122. This last criterion has been supplanted by the statutory land titles regime instituted under the Land Title Act. See, generally, the discussion above in Chapter 1 regarding that system.

]]

It is necessary to examine each of these elements of the equitable rule in some detail.

I. Covenant Must be Restrictive

It is the substance of what a covenant obliges the covenantor to do that is most important. Even if it is cast in negative language, a covenant may be positive. Only if the substance of a covenant is negative -- so that it imposes no positive obligation on the part of the landowner -- will it be negative.

For example, in the classic case of Tulk v. Moxhay [[Footnote: (123) -- 123. (1848), 41 E.R. 1143 (Ch.).]] the owner of the burdened land agreed to keep land as a garden and to allow access to it by adjacent landowners on certain terms. Although the language of the covenant was positive, it was in substance negative, since it required the covenantor to maintain the land free of any buildings. The effect was that the land could not be built on and that a certain use could not be made of the land.

Perhaps the easiest test to determine whether a covenant is positive in nature is to see whether it requires the landowner to spend money. For example, while a covenant not to allow certain structures to fall into disrepair appears negative, it is in fact positive, since it requires the expenditure of money.

II. Covenantee Must Own Land Benefitted

If it cannot be demonstrated that a covenant benefits adjacent land owned by the person enforcing the covenant, the attempt to enforce the covenant will fail. [[Footnote: (124) -- 124. See Formby v. Barker, [1903] 2 Ch. 539 (C.A.) and see Re Sekretov and City of Toronto (1973), 33 D.L.R. (3d) 257 (Ont. C.A.). ]] This requirement is often described as the need for a dominant tenement -- meaning land benefitted by the covenant -- and a servient tenement -- meaning land burdened by the covenant. The dominant land need not be contiguous with the burdened land; it need only lie within a reasonable distance from the burdened land. [[Footnote: (125) -- 125. Kelly v. Barrett, [1924] 2 Ch. 379 (C.A.). In the United States, some states allow a covenant to run with the servient land even if there is no parcel of land benefitted by that covenant. For authority that the burden of an in gross covenant runs with the land even if the benefit is in gross, that is, is not appurtenant to a dominant tenement, see Van Sant v. Rose, 103 N.E. 194 (1913) at 195-96 and Neponsit Property Owners' Ass'n v. Emigrant Indus. Sav. Bank, 15 N.E. 2d 793 (1938) at 795-97. See also Korngold, supra, note 31. In British Columbia, the only inroad into this well-established rule is section 215 of the Land Title Act, which is discussed elsewhere in this report. End of Footnote]] z

The principle that a covenant will only run with the land if the covenantee owns land benefitted by the covenant appears to have been designed to ensure that only covenants which affect land directly can be enforced against those with whom there is no privity of contract or estate. The court of equity originally intervened and allowed the burden of restrictive covenants to run with the land so as to mitigate the harshness of the common law restrictions. The court of equity wished to preserve the value of land benefitted by such covenants. If there is no land benefitted by a covenant, there is perceived to be no need for equitable intervention. [[Footnote: (126) -- 126. See Ontario Report, supra, note 23 at 29.]]

As is the case with easements, the requirement that a covenant must benefit adjacent land seriously limits the utility of conservation covenants in British Columbia. Even if other obstacles to their availability are overcome, the need for an adjacent parcel of land benefitted by the covenant is a serious and unnecessary barrier to the use of conservation covenants. Conservation organizations often will not be able to arrange for the creation or purchase of an adjacent anchor parcel. The cost of purchasing an anchor parcel will be prohibitive in many cases. In other cases, creation of a new anchor parcel may be precluded by statutory subdivision controls. It serves no interest to force the use of anchor parcels simply to satisfy this existing requirement of land law.

III. Covenant Must Touch and Concern Land

For the burden of a covenant to bind subsequent owners in equity, it must benefit other land or must "touch and concern that land." As one judge stated, "the covenant must either affect the land as regards mode of occupation, or it must be such as per se, and not merely from collateral circumstances, affects the value of the land." [[Footnote: (127) -- 127. Rogers v. Hosegood, [1900] 2 Ch. 388 at 395, per Farwell J. (Ch.).]] The requirement that a covenant must benefit adjacent land calls into question the availability of common law conservation covenants in British Columbia. If one landowner grants a restrictive covenant over land which prohibits the draining of a marsh on the land, it may not be seen as benefitting adjacent land in the sense articulated above. The covenant may be a benefit to waterfowl or other wildlife, but there may be a question as to whether it touches and concerns the land of another person in the anthropocentric, utilitarian manner laid down by the cases. It is true that the covenant affects the value of the land, but it may not affect the value of any other land in a beneficial way.

A British Columbia court might be willing to reform these principles, but that is far from certain. Since there are other uncertainties in our judge-made law of covenants and easements, statutory reform is the safest option.

IV. Intention to Bind the Burdened Land

Just as a covenant must clearly benefit land, it must burden the land in respect of which it has been granted. There must be evidence that the covenantor meant to bind successors in title. Otherwise the covenant is merely personal and cannot be enforced against subsequent owners of the land. [[Footnote: (128) -- 128. See Anger & Honsberger, supra, note 11 at 908.]]

V. Notice Of Covenant

The rule of equity was that if land burdened by a covenant was purchased by someone in good faith and that person had no notice of the covenant, title to the land was taken free of the covenant. [[Footnote: (129) -- 129. Ibid. at 908.]] In British Columbia this rule has been supplanted by the Land Title Act, which provides that registration of such a covenant against title to land is considered to be notice to all the world of the existence of the covenant burdening the land. [[Footnote: (130) -- 130. Land Title Act, s. 27. Other provinces have adopted statutory land registry or land title schemes which achieve the same end. See, for example, the Ontario Land Titles Act, R.S.O. 1990, c. L.5 and the Alberta Land Titles Act, R.S.A. 1980, c. L-5. End of Footnote]] z

b. Running Of The Benefit Of Restrictive Covenants In Equity

The equitable rules regarding the running of the benefit of restrictive covenants are "technical and stringent". [[Footnote: (131) -- 131. Ontario Report, supra, note 23 at 33.]] They need not be examined in any great detail here. For the purposes of this report it is enough to outline their main features.

First, for the benefit of a restrictive covenant to run with the land in equity the covenant must touch and concern the land benefitted by it.

Second, any subsequent owner of the benefitted land must establish entitlement to the benefit of the restrictive covenant. This may be shown in any one of the following three ways:

• (1) by the subsequent owner demonstrating that the benefit of the covenant has been annexed to the dominant land; [[Footnote: (132) -- 132. Rogers v. Hosegood, supra, note 128, and Oluk v. Marahens (1976), 68 D.L.R. (3d) 294 (Alta. S.C., App. Div.). It has been said that this is merely another way of saying that the covenant must touch and concern the dominant land, so that it runs with the land into the hands of the assignee. The question of whether the benefit of a restrictive covenant has been annexed to the dominant land is one of intention. That question will be answered by the court looking at the nature of the covenant, interpreting it and looking at the surrounding circumstances. See the Ontario Report, supra, note 23 at 33. In most cases the careful lawyer will have provided expressly in the covenant that its benefit is annexed to the dominant land and that it runs with the dominant land.

]]

• (2) by the assignee demonstrating that the benefit of the covenant was expressly assigned to the assignee; [[Footnote: (133) -- 133. Reid v. Bickerstaff, [1909] 2 Ch. 305 (C.A.). This will almost always be the case in an ordinary conveyance, but there may be situations where assignment has not clearly occurred.

]] or

• (3) if the covenant is part of a development or building scheme, the benefit of a restrictive covenant may run with the land. [[Footnote: (134) -- 134. Such a scheme is formed where a series of related covenants benefitting and burdening several parcels of land are sold by a common vendor. See Elliston v. Reacher, [1908] 2 Ch. 374 at 384, aff'd [1908] 2 Ch. 665 (C.A.). See also Ontario Report, supra, note 23 at 41 ff. For a discussion of this early form of subdivision control -- which is still in use in British Columbia -- see Megarry & Wade, supra, note 60 at 793.

]]

The most important of these rules is the first, that the benefit of a restrictive covenant will run with the dominant land only if the covenant touches and concerns the dominant land. This requirement has already been discussed above in the context of the running of the burden of covenants. The comparable requirement in the law of easements is addressed below.

C.2 Easements

An easement is the right granted by a landowner to another landowner to use the grantor's land in some way or to prevent the grantor from using his or her land in some way. [[Footnote: (135) -- 135. Anger & Honsberger, supra, note 11 at 925. For a good discussion of the origins of easements, see A.J. McLean, "The Nature of an Easement" (1966) 5 Western L. Rev. 32.]]

Easements have been in use for many years and they are still commonly used today in a broad range of situations in British Columbia. Many easements are granted in favour of public bodies and are, therefore, often granted under special statutory provisions. They frequently play an important role in private land use situations.

There are serious limits on the utility of easements for land preservation or conservation. Law reform is needed to remove impediments which make easements of little use in the environmental context. The reasons for this conclusion follow.

C.2.1 British Columbia Law on Easements

In legal terms, an easement may be described as follows:

An easement is a privilege without profit annexed to land to utilize the land of a different owner (which does not involve the removal of any part of the soil or the natural produce of the land) or to prevent the other owner from utilizing his land in a particular manner[,] for the advantage of the dominant owner. [[Footnote: (136) -- 136. Anger & Honsberger, ibid. at 925.]]

British Columbia law stipulates [[Footnote: (137) -- 137. Dukart v. District of Surrey, [1978] 2 S.C.R. 1039, citing Re Ellenborough Park, [1955] 3 All E.R. 667 (C.A.).]] that to be valid an easement must

• (1) burden one parcel of land, traditionally called the servient tenement,
• (2) benefit another nearby parcel of land, traditionally called the dominant tenement, and
• (3) be capable of forming the subject of a grant by one landowner to another.

A fourth traditional requirement, that the owners and possessors of the dominant and servient land must be different people, has been abolished by statute in British Columbia. [[Footnote: (138) -- 138. Property Law Act, s. 18(7).]]

The traditional characteristics of an easement pose problems in relation to preserving land for environmental purposes. It is necessary to examine each of the traditional requirements for easements in some detail to understand why they pose problems. The third requirement will be considered first.

I. Must Be Capable of Forming the Subject of a Grant

In the leading modern English case on easements it was held that for an easement to be valid, it must be "capable of forming the subject-matter of a grant." [[Footnote: (139) -- 139. Re Ellenborough Park, supra, note 137 at 673-674, per Lord Evershed, M.R.]]

As has been pointed out by others, [[Footnote: (140) -- 140. Anger & Honsberger, supra, note 11 at 928-929.]] this criterion requires an easement to originate

from an express, implied or presumed grant, or by statute. This requires a capable grantor, a capable grantee ... and a right that is reasonably definite. [[Footnote: (141) -- 141. Ibid. at 928.]]

This requirement ensures that the right being asserted is framed with certainty. This is sensible, since easements run with the land and affect the rights and obligations of successor owners.

While the right must be reasonably definite, it is not entirely clear what types of rights can form the subject-matter of a grant. The categories of recognized, valid easements are not closed. [[Footnote: (142) -- 142. Simpson v. Mayor of Godmanchester, [1896] 1 Ch. 214 (C.A.), aff'd [1897] A.C. 696 (H.L.).]] In determining if a right can form the subject-matter of a grant, a court is almost certain to approach this issue through extension by analogy, a process which invites circularity. If the court concludes that a particular right can constitute a valid easement, it will be found to be capable of forming the subject-matter of a grant.

The courts apply this rule by examining the range of easements which have been recognized in the past and deciding whether the right in question should be accorded the status of an easement. This is necessary to ensure the law remains reasonably in touch with changing social and economic conditions. It is not clear that a British Columbia court would extend the category of easements and recognize a conservation covenant which amounts to an easement as being valid. Given this uncertainty, law reform is needed.

II. Must Burden One Parcel and Benefit Adjacent Parcel of Land

It has been stated that to be valid an easement must

be both appurtenant to the dominant tenement and connected with the normal enjoyment of the dominant tenement[,] so as to both accommodate and serve the dominant tenement. [[Footnote: (143) -- 143. Anger & Honsberger, supra, note 11 at 927.]]

The meaning of this requirement is open to debate. [[Footnote: (144) -- 144. Ibid. at 927 and McLean, supra, note 135 at 44.]] At the very least it means an easement will only be valid if it accommodates use of the dominant land by its owner. In other words, the requirement is anthropocentric in that it is designed to accommodate human uses of land for human ends. An easement must benefit the dominant land in that sense.

This rule very likely excludes conservation purposes from the class of valid common law easements. [[Footnote: (145) -- 145. D. Loukidelis, "Habitat Preservation Through Conservation Easements", in C. Sandborn, ed., Law Reform For Sustainable Development In British Columbia (Vancouver: Canadian Bar Association, 1990) 108 at 109.]] It is possible that British Columbia courts would recognize conservation purposes as valid subjects of easements against land. However, the experience in the United States, and the traditionally anthropocentric perspective of our courts in land use matters generally, leaves this open to doubt.

Further, the requirement that there must be a piece of land which is burdened by the easement and another piece of land benefitted by it severely limits the usefulness of easements for the preservation of private land. This rule requires the purchase of an anchor parcel near the land to be burdened by the easement. Apart from the cost of doing this, it is often difficult to find sufficiently small and appropriately situated anchor parcels.

The third requirement set out above, that an easement must benefit the adjacent dominant land, is also troublesome. It would be risky to rely on a court to amend the common law as needed to uphold an easement granted for environmental purposes.

Given the serious concerns expressed in this report, statutory reform is by far the better course. As one author has stated, "[t]he difficulty of enforcing conservation servitudes at common law highlights the need for specific legislative intervention." [[Footnote: (146) -- 146. Dana, supra, note 28.]]

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