Covenant blocks mall grocery store

A B.C. Supreme Court judge has ruled in favour to re-register a covenant that prohibits a grocery store from going into Boitanio Mall.

A B.C. Supreme Court judge has ruled in favour of Overwaitea Food Group and ordered the Registrar of Land Titles to re-register a restrictive covenant that prohibits a grocery store from going into Boitanio Mall.

The order was part of a ruling Justice Barry Davies delivered on March 13, 2015, after hearing the case between Overwaitea Foods and BC Retail and Janda Group Holdings on Feb. 5 and 6, 2015, in Vancouver.

In his summary of events, Davies wrote that  in 2012 the principals of Janda Group began discussions with Loblaw Properties West Inc. (Loblaw’s) regarding the possibility of leasing the space that was then occupied by Zeller’s.

“Those discussions led to negotiations between Janda and Loblaw’s that culminated in a letter of intent for Loblaw’s to lease space dated May 15, 2013 providing for Loblaw’s to take possession of the space to be leased in January of 2014 and to commence renovations with an anticipated opening of a grocery store in the spring of 2014,” Davies noted.

The posting of signs by Janda at the Shopping Centre in late 2013 notifying the public of the upcoming presence of a national retail store resulted in Overwaitea becoming aware of the intended use of the BC Retail Lot would contravene the restrictive covenant.

In October of 2013, Overwaitea’s vice-president of real estate and store development Michael Fong, contacted Sonny Janda and advised him of the existence of the restrictive covenant and a lease to Loblaw’s would be contrary to it.

Janda responded he was not aware of the alleged restriction and requested documentation evidencing its existence.

Janda deposed that when he did not receive that documentation he continued with the intended lease to Loblaw’s until November of 2013 when the property managers for Standard Life advised Janda that Overwaitea wished to enforce the restrictive covenant.

On Nov. 26, 2013 Donald Eng, general counsel for Overwaitea, served BC Retail with correspondence stating that Overwaitea continued to claim its restrictive covenant rights over the BC Retail Lot and in the event any grocery/food store use occurs on the site, the company would be taking legal action to enforce the covenant.

On Nov. 29, 2013, after referring to that correspondence from Overwaitea, Loblaw’s wrote to BC Retail and Janda withdrawing from further involvement in the leasing of the BC Retail Lot unless a retraction of Overwaitea’s claims concerning the Restrictive Covenant was obtained.

Both Overwaitea and Janda Group did not return the Tribune’s calls for an interview.

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