Defendant 1991 S.H. 78014 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DEVELOPMENTS LIMITED, body corporate and H.C. DELANO, Registrar of Condominiums Respondent HEARD BEFORE: The Honourable Mr. Justice Hilroy Nathanson, in Chambers, at Halifax, Nova Scotia on June 26, 1991 DATE OF DECISION: June 26, 1991 (Oral) COUNSEL: D. Coles, Esq., for the applicant J. Davies, Esq., for the respondent 1991 S.H. 78014 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DEVELOPMENTS LIMITED, body corporate and H. C. DELANO, Registrar of Condominiums Registrar NATHANSON, J.: (Orally) The applicant is the owner of certain lands concerning which he has informed the Registrar of Condominiums of his intention to seek registration pursuant to the Condominium Property Act, R.S.N.S. 1989, c.85. The land is subject to a right‑of‑way in favor of all landholders out of the original undivided piece of land. The structure sought to be registered as a condominium has been completed and does not physically encroach upon the right‑of‑way. An adjacent owner with rights over the right‑of‑way refuses to consent to the registration. The Registrar of Condominiums has advised the Applicant that s.11(b) of the Act prohibits him from registering declaration with respect to the property, such declaration being condition precedent to the operation of the Act, unless the owners of the right‑of‑way consent to the declaration. The Applicant has not formally applied to the Registrar of Condominiums for registration. The applicant is seeking an order in the nature of mandamus directing the Registrar to accept the applicant's property for registration under the Act without a declaration of consent from the users of the right‑of‑way or, in the alternative, a declaration that such consent is not required by that section of the Act. Dealing first with the procedural aspects and the availability of mandamus, there must be duty whose performance it is sought to coerce actually do, and that does not exist here. There is no such duty on the Registrar of Condominiums. The application has not been formalized and such duty would not arise until the application has been made and formalized. So mandamus is not available. declaration is available. is remedy for use where an individual wishes to establish the existence or scope of public duty. cannot see any reason here why the Court cannot declare what the scope of the duty of the Registrar of Condominiums is, in circumstances such as the present. So, the Court is prepared, if the facts are with the applicant, to grant declaration. The principal issue comes down to whether the right‑of‑way is registered encumbrance, for which consent must be obtained, pursuant to s. 11(b) of the Condominium Property Act. think that issue can be decided very quickly and very simply. The Act contains statutory interpretation or meaning of the word "encumbrance". It is set out in s. (1)(0), as follows: "In this Act, encumbrance means claim that secures the payment of money or the performance of any other obligation, and includes mortgage or lien." The Legislature hints what it means by "encumbrance" in giving us the examples of a mortgage and a lien. It does not allow broad meaning, but restricts us to the meaning as set out. That meaning requires claim that secures the payment of money or secures the performance of any obligation. It is the security feature that governs. is security that is the principal characteristic of mortgage and lien. would put into the same category debenture that secures charge against land, and might go so far as to include in that category certain types of leases. But there is no security aspect to a right‑of‑way and, therefore, a right‑of‑way is not an encumbrance as defined in s. 3(1)(o) of the Act. have been referred to the case of Equities Limited v. Courtyard Green Developments Limited et al (1985) 68 N.S.R. (2d), 72, decision of Chief Justice Glube. In that decision, there are two interesting sentences, on page 77, as follows: "I am unable to find that would have any right to insist that the Registrar requires their consent. find there was no requirement that execute the declaration and consent to the use of the property as condominium." The words quoted may very well be obiter, that is, not the basis of the decision, but they are strongly worded findings of the Court and are not to be disregarded. The decision is not, strictly speaking, binding on me, but it is extremely persuasive and happen to agree with those comments of the Chief Justice. The implication of Chief Justice Glube's words is that person who has right‑of‑way over servient tenement which becomes condominium is not required to execute the declaration and consent that are required by the Act. In the result, the Court is prepared to issue a declaration in favor of the applicant and pointing out to the Registrar of Condominiums that consent is not required of users of rights‑of‑way over servient tenements. The applicant will have its costs of this application in the amount of Seven Hundred and Fifty Dollars ($750.00). J. Halifax, Nova Scotia June 26, 1991 1991 S.H. 78014 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DEVELOPMENTS LIMITED, body corporate and H. C. DELANO, Registrar of Condominiums
The applicant landowner sought to register a declaration with the respondent respecting a condominium property, which was subject to a right of way in favour of all the original landowners. An adjacent landowner refused to consent to the declaration. The applicant sought a declaration that the consent of the adjacent landowner was not required. Granting the application, that the word 'encumbrance' as defined in s.3(1)(o) of the Act involves a security feature and as there is no security feature to a right of way, unlike a mortgage or lien, it is not an encumbrance. The consent of the adjacent landowner, who had a right of way over a servient tenement, was not required.