Despite the fervent wishes and efforts of many avid golfers, golfing is apparently not immune to the law or time. 

Recently, we happened to come across the Ontario Court of Appeal decision, Ottawa (City) v. ClubLink Corporation ULC, where the Rule Against Perpetuities was central to determining the fate of a golf course. 

The Rule Against Perpetuities is a somewhat archaic common law doctrine that has developed a reputation as the bane of many first year law school students. In Ontario, it has been set into legislation through the Perpetuities Act. 

Our colleagues have gone into some depth on the application and history of the Rule here and here, explaining how, in its modern form, the Rule is not particularly complicated. In short, the Rule Against Perpetuities can be understood as not allowing an individual to control the distribution or ownership of property for longer than the “perpetuity period”, with the perpetuity period equating to a “life in being” who is alive upon the death of the testator plus twenty one years.

In Ottawa (City), the current owners of a golf course development had acquired it from the original developer, with the stipulation that it was to be a golf course in perpetuity. If the land was used for any other purpose, it would revert to the City of Kanata, in whose boundaries it was located, free of charge. The City of Kanata was also required to maintain it as a golf course, failing which it would further revert to the original owner. 

The current owners sought to have the golf course rezoned as a housing development. The City of Kanata argued that the Rule Against Perpetuities did not apply, as the restriction on use was a contingent contractual right and not an interest in land. 

At trial, the court found in favour of Kanata. However, the Court of Appeal overturned the trial decision, holding that a contingency does not stop the creation of an interest in land and, as such, the Rule Against Perpetuities applied, so that the current owners could develop the land for housing. Sadly, for those passionate for the sport, golf is not forever it seems.

Thank you for reading and have a great day! 

Suzana Popovic-Montag & Raphael