Habitat for Humanity Nova Scotia’s Spryfield project is ambitious, the largest the organization has ever undertaken. The proposed 78-unit development includes a four-storey condo building with 40 units, along with 38 townhouse units.
The Halifax & West Community Council held a public hearing about the proposed development on September 12, 2018. Representatives of Habitat for Humanity (H4H) spoke in support of their own project, and no one appeared to speak against it. The council approved the project on a unanimous vote.
But the project is snagged in a property dispute with the neighbouring property owner.
The H4H property consists of 5.6 acres just west of J.L. Isley High School. Access to the site is via Drysdale Road to the north and River Road to the west.
At issue is the southerly neighbour, Foxwood Terrace Apartments, owned by Paradigm Investments of Bridgewater. The Foxwood property consists of 3.8 acres hosting 117 units. “FoxWood Terrace offers spacious 1, 2 and 3 bedroom suites which surround a natural tree grove courtyard,” reads the company’s website. “Many of our patios and balconies overlook the beauty of the courtyard. Children and adults alike enjoy the peaceful tranquillity provided by this serene setting.”
The H4H and the Paradigm parcels are the result of the split of a larger parcel back in 1994. At that time, the larger property was owned by Cadillac Developments of Chester. The president of Cadillac was then Wilfred Young.
In 1994, Cadillac sold the 3.8-acre parcel to Paradigm, and Cadillac kept ownership of the adjacent 5.6-acre parcel. However, along with the deal, Paradigm was granted a covenant restriction on the Cadillac property, signed by Wilfred Young. The covenant restriction reads:
The said lands, known as the “restricted lands”, owned by the Grantor [Cadillac] herein being and lying along the northern boundary of Lots X and RC-1 [that is, the Paradigm property], herein shall not be developed, sub-divided, conveyed or used for purposes other than “R-2” uses as provided for by the City of Halifax, Province of Nova Scotia as of April 19, 1994, provided that and in no event may such lands be developed, sub-divided, conveyed or used for a greaty density than duplex dwellings, without the written permission of the Grantee herein (Paradigm Investments Limited).
The Registry of Joint Stock Companies indicates that in 1996, Cadillac had a change in directorship, and Linda Young became the president of the company.
Fast forward to 2012, and Cadillac sold the 5.6-acre parcel to H4H. But the covenant restriction did not make it onto the deed. The 2012 deed showed no restrictions of the property H4H bought.
The error was made during “migration.” Starting in 2003, the province’s land registration office required all agents of property sales to “migrate” the property from the old registry of deeds (indexed by property owner) to the new land registration system (indexed by the parcel of land). As part of that migration, the agents are required to do a title search going back 40 years to look for all restrictions, liens, etc. In the case of the H4H property, the agent missed the 1994 covenant restriction.
On December 1, 2016, lawyer Craig Berryman of Cassidy Nearing Berryman filed a Form 6A with the land registration to correct the error on the 2012 deed. It reads:
At the time PID 00334102 [the H4H property] was migrated, the restrictive covenant (burden) was omitted in error. The Burden is Restictive Covenants that are found in a Deed, recorded as Document No. 17265 in Book 5560, Page 566 on May 5, 1994 (as shown as a benefit to PID 00334086 [the Paradigm property]), and should have been recorded against PID 00334102 as the burden as this is the servant tenement and the ‘flipside’.
I’m guessing that “flipside” refers to the next page in the old deed book, and the agent had not turned the page to see the covenant restriction.
So H4H had purchased the property thinking there were no restrictions on it, but Paradigm had and has a legal right to enforce those restrictions. And the restriction gives Paradigm veto power over any development larger than duplexes — that is, Paradigm can prohibit H4H from building its proposed four-storey, 40-unit condo building.
H4H and Paradigm president Ron Boston have been in negotiations to resolve the issue, but they “have been unable to reach an agreement regarding the removal of the Covenants from the Property,” according to a document H4H has filed with the Supreme Court.
H4H is asking the court to declare the covenant restriction on its property “null and void.” It gives three reasons:
- The Covenants are uncertain and ambiguous;
- The Covenants offend public policy; and
- Such other reasons as may appear
Contacted by the Halifax Examiner, H4H Nova Scotia CEO Steve Doane downplayed the issue, saying he felt the issue would be resolved.
Doane said he expected it would take “six to 12 months to get it all resolved,” and in the meanwhile, planning for the project would continue. He insisted that there would be no delay in the development.
Asked what Paradigm president Steve Boston’s objection to the H4H project was, Doane said he hasn’t spoken with Boston, but “I really don’t know what his objection is, to be honest.” Doane said H4H’s lawyer, Ian Dunbar of McInnes Cooper, is negotiating with Boston.
Boston has not returned a call for comment.