678 THE ADVOCATE
VOL. 76 PART 5 SEPTEMBER 2018
ment would run with the land. Neither of the other judges disagreed with
that observation or made an observation that directly, or even implicitly,
contradicted it. In reviewing the discussion of Austerberry in the cases
referred to in Jameson House, it appears that the context in which the discussion
of the judges was being made was overlooked.
So there are at least two bases on which to criticize the Austerberry rule:
1. the case does not stand for the proposition for which it is cited; and
2. in any event there has been a “change in the circumstances … that
‘fundamentally shifts the parameters of the debate’”.
Why, then, are the courts so reluctant to look at the foundation of a rule
that is no longer relevant to modern business and commercial practice?
Municipalities frequently encourage multi-use buildings with zoning and
community plans. This results in commercial, retail, office and residential
components in one project. After unhappy experiences in the early days of
mixed-use properties with a single strata corporation, projects now feature
two or more strata corporations, each in its own airspace parcel (or with one
in the remainder). Common elements and facilities such as structural support,
utilities, parkades, elevators, loading docks, entrance foyers and roof
decks are dealt with through reciprocal easements that set out the rights
and obligations of each party.41 These easements are registered in the Land
Title Office so that any purchaser has notice of them.
Under the current view of the law these easements only bind the original
parties to the positive obligations (repair, contribution to operating and repair
costs and taxes among them) contractually. Subsequent purchasers are not
bound and yet are entitled to the benefit of the easement. This seems on any
view to be an absurd result, especially since if the agreement had been
assumed by the strata corporation, then it would have been enforceable. Why
this should be so when the foundation, on which the rule in Austerberry is
based, is so faulty and out of date remains a mystery. Stasis indeed.
This article began as an exploration of the contrast in the approach of courts
to social and moral issues on the one hand and to commercial issues on the
other. However, it became apparent in reviewing the cases involving positive
covenants in easements that some precedents had been significantly
misunderstood and misread in the creation of a “rule” that is not stated in
the case it has been named after, but only seems to be based on a reporter’s
inference. Even the reporter’s note has been misread: the “(not involved in
a grant)” has been ignored. On top of that it became apparent that even the