Ontario’s land registry rules are famously unforgiving when it comes to old Restrictive Covenants. Sections 111–113 of the Registry Act create the well-known rule that Restrictive Covenants expire after 40 years, unless preserved by a Notice of Claim. Section 119 (9) of the Land Titles Act (“LTA”) provides that unless the Restrictive Covenant includes a fixed expiry date, the Restrictive Covenant is deemed to have expired 40 years after its registration. Thus, if the 40-year period passes or a notice lapses, the Covenant is generally considered gone, often to the surprise of neighbourhood associations and developers alike.
But what happens when the benefiting landowners still wish to enforce the restriction, and the current owner wants to redevelop?
1. Background: A 1974 covenant past its 40-year life
In 1974, a Home Owner’s Association conveyed land to a nursing home operator. As part of that transaction, the nursing home agreed to a Restrictive Covenant. The original Covenant restricted the lands to be used only as a nursing home with no more than two storeys. By 2024, the owner wished to sell the property to a municipality for use as transitional supportive housing, which was well beyond the original contemplated use as set out in the Restrictive Covenant.
Under s.119(9) LTA, a Covenant with no fixed expiry is deemed to expire 40 years after registration. By that logic, the Covenant would have expired in 2014.
2. The Argument: A Notice of Claim resets the 40-year period
The pivotal moment came when the Association filed a Notice of Claim on in 2024 after learning of the proposed sale.
The legal position advanced — supported by Melville v. McLaren, 2023 ONSC 342 — was that a Covenant is deemed registered on the date a Notice of Claim is registered and not the original registration date of the Covenant. If the covenant contains no fixed expiry, it lasts 40 years from the registration date of the notice.
In Melville, the Court held:
- A covenant is deemed registered on the date the Notice of Claim is filed (para. 26).
- With no fixed expiry, the covenant expires 40 years after that new “registration” date (para. 27).
Applying Melville:
- Filing the Notice in 2024 meant the covenant would now run until 2064.
- In other words: the Notice did not merely preserve the covenant — it restarted the clock.
This argument gained further support from Land Registrar’s Bulletin 2007-02, which, although focused on easements, affirms that:
- a Notice of Claim may renew or extend a property-related claim; and
- “claims” would include restrictions and covenants under s.111(1) of the Registry Act, as the section refers to “right, title, interest, claim, or demand of any kind or nature whatsoever affecting land”.
Thus, combining Melville with the Bulletin’s broader interpretation, the Association had a legitimate — and innovative — basis to assert:
“Our Notice of Claim has revived a covenant that would otherwise have been expired.”
3. The Other Pillar: The Covenant survived as a personal obligation
Even if a judge concluded that the registrable covenant was expired on title, the Association had a second, independent foundation:
**The covenant originated in a contractual agreement between the parties.
Title registration governs registered restrictive property covenants — not personal ones.**
Section 119(10) of the Land Titles Act provides:
“(10) Where a condition or restriction has been registered as annexed to land, the condition or restriction is as binding upon any person who becomes the registered owner of the land or a part thereof as if the condition or restriction had been in the form of a covenant entered into by the person who was the registered owner of the land at the time of the registration of the condition or restriction.”
The original agreement between the nursing home and the Association imposed:
- use restrictions,
- a requirement for consent before any sale or change of use, and
- a buy-back mechanism.
Because the original contracting parties (or their successor corporations) still existed:
- privity of contract remained intact,
- the covenant existed independently of the land titles system, and
- the nursing home could not rely on any registry system expiry to escape its contractual obligations.
This “dual-track” approach:
(1) revived real property (?) covenant + (2) surviving personal covenant, and gave the Association significant leverage.
4. How negotiation resolved what litigation might not have
Armed with these two arguments, the Association was well positioned. But litigating the issue would have required the Court to address several unresolved questions:
- Does Melville apply to Restrictive Covenants that, without a Notice of Claim, would have expired at the 40-year registration date?
- Does Bulletin 2007-02 support using Notices of Claim to renew covenants generally?
- Can a Notice registered after an apparent expiry revive a real property claim?
- How do personal covenants interact with expired registered Restrictive Covenants?
These are complex, unsettled questions with no appellate guidance.
Instead, all parties chose a more constructive path: use the legal leverage to negotiate a new 40-year Restrictive Covenant tailored to modern needs. This led to:
- a new Restrictive Covenant Agreement,
- deletion of the 1974 covenant,
- discharge of the 2024 Notice of Claim,
- registration of a brand-new covenant under s.119 of the LTA, and
- registration of a 40-year Right of First Offer.
The argument that the Notice reset the clock — combined with the survival of the personal covenant — created the leverage needed to achieve a result better than anything a judge might have ordered.
5. Why this matters for planners, developers, and municipalities
This case highlights several important principles:
- Notices of Claim may have broader power than assumed
Melville suggests they can reset, not just preserve, Restrictive Covenants.
- “Claims” under the Registry Act include Restrictive Covenants
Bulletin 2007-02’s renewal framework, though expressed in the context of easements, is applicable to covenants.
- Personal covenants survive even when real covenants expire
This can dramatically alter bargaining power. - Negotiation can accomplish more than litigation
Strong legal arguments create the leverage needed to craft practical, tailored solutions.
Conclusion: Legal ingenuity meets practical resolution
This file is a textbook example of how creative statutory interpretation, coupled with a deep understanding of the land registration system, can transform a seemingly expired Restrictive Covenant into a renewed and enforceable one.
Although negotiation ultimately resolved the matter, the key leverage came from two arguments:
- A Notice of Claim resets the 40-year period, and
- Personal covenants bind the parties independently of land title expiry.
It is a reminder that real estate law in Ontario is as much about strategy as it is about registration — and that sometimes, “forever” can mean 40 more years after all.
Article written by: Alicia Turney and Robert (Bob) Tchegus