In our real estate practice, we routinely review and advise clients on matters related to titles of properties they are purchasing, selling or seeking to develop. This is the second article in a series of articles that will focus on the various types of registrations (also known as “charges”) that we find regularly on titles.
Further to our previous article regarding the registration of statutory rights of ways on titles https://touchstonelawgroup.com/kelowna-lawyers/title-registrations-statutory-rights-ways/, covenants in favour of municipalities or other government agencies are also quite common and often impose obligations on the land owner with respect to the use of the land or future subdivision of the property. In the Land Title Act, section 219 sets out the authority for the registration of these covenants as follows (some portions have been removed for brevity):
219 (1)A covenant described in subsection (2) in favour of the Crown, a Crown corporation or agency, a municipality, a regional district, the South Coast British Columbia Transportation Authority, or a local trust committee under the Islands Trust Act, as covenantee, may be registered against the title to the land subject to the covenant and is enforceable against the covenantor and the successors in title of the covenantor even if the covenant is not annexed to land owned by the covenantee.
(2)A covenant registrable under subsection (1) may be of a negative or positive nature and may include one or more of the following provisions:(a)provisions in respect of (i)the use of land, or (ii)the use of a building on or to be erected on land; (b)that land (i)is to be built on in accordance with the covenant, (ii)is not to be built on except in accordance with the covenant, or (iii)is not to be built on; (c)that land (i)is not to be subdivided except in accordance with the covenant, or (ii)is not to be subdivided; (d)that parcels of land designated in the covenant and registered under one or more indefeasible titles are not to be sold or otherwise transferred separately.
(3)A covenant described in subsection (4) in favour of(a)the Crown or a Crown corporation or agency, (b)a municipality, a regional district, the South Coast British Columbia Transportation Authority or a local trust committee under the Islands Trust Act, or (c)any person designated by the minister on terms and conditions he or she thinks proper, as covenantee, may be registered against the title to the land subject to the covenant and, subject to subsections (11) and (12), is enforceable against the covenantor and the successors in title of the covenantor even if the covenant is not annexed to land owned by the covenantee.
(4)A covenant registrable under subsection (3) may be of a negative or positive nature and may include one or more of the following provisions:(a)any of the provisions under subsection (2); (b)that land or a specified amenity in relation to it be protected, preserved, conserved, maintained, enhanced, restored or kept in its natural or existing state in accordance with the covenant and to the extent provided in the covenant.
(5)For the purpose of subsection (4) (b), “amenity” includes any natural, historical, heritage, cultural, scientific, architectural, environmental, wildlife or plant life value relating to the land that is subject to the covenant.
(6)A covenant registrable under this section may include, as an integral part,(a)an indemnity of the covenantee against any matter agreed to by the covenantor and covenantee and provision for the just and equitable apportionment of the obligations under the covenant as between the owners of the land affected, and (b)a rent charge charging the land affected and payable by the covenantor and the covenantor’s successors in title.
(7)If an instrument contains a covenant registrable under this section, the covenant is binding on the covenantor and the covenantor’s successors in title, even though the instrument or other disposition has not been signed by the covenantee.
(8)No person who enters into a covenant under this section is liable for a breach of the covenant occurring after the person has ceased to be the owner of the land.
(9)A covenant registrable under this section may be(a)modified by the holder of the charge and the owner of the land charged, or (b)discharged by the holder of the charge
by an agreement or instrument in writing the execution of which is witnessed or proved in accordance with this Act.
(13)A recital in a covenant that a person “has been designated by the minister under section 219 (3) (c) of the Land Title Act”, or a statement to that effect in the application to register the covenant, is sufficient proof to a registrar of that fact.
In many cases, covenants are negotiated and registered in the course of development of land. They may be required by the governing authority when development or building permits are applied for and the process provide the municipalities with the ability to require specific registrations against title in conjunction with the approval being granted. Some common covenants we see in the Okanagan region include:
- The imposition of obligations with respect to wildfire mitigation including removal of flammable debris, management of trees on the property, and use (or prohibition of use) of specific construction materials;
- For properties with geotechnical concerns, registrations may be in place to ensure compliance with geotechnical requirements if changes are to be made to the property (often encompassing a requirement to comply with recommendations of a completed geotechnical report);
- Prohibitions of construction or disturbance in specific areas of a property (sometimes called no-build or no-disturbance covenants) which are intended to protect sensitive of unstable areas;
- With some developments, covenants may be registered to prohibit access to the property from a specific road if internal roads are constructed for the maintenance of flow;
- Prohibition on a future subdivision or stratification of the property; or
- Restrictions on the use of the property such as limiting the number of separate dwellings that may be located on the property.
The above list is certainly not exhaustive but provides some examples of the types of registrations that may be found within this category. For a property owner, it can be important to review the obligations imposed by these covenants and ensure they will be consistent with the owner’s plans for the property. The notation on title is not sufficient to determine what the specific obligations are in the document and the terms themselves must be obtained and reviewed to understand the nature of the covenant and the implications for the property owner as well as any reference plans associated with the charge terms (if any). For a purchaser of property, this can be very important and should be completed prior to conditions being removed.
Stay tuned for our next article on undersurface rights.
Author: Una Kuzio
This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (250) 448-2637 or any of our lawyers practicing real estate law at the following:Una Kuzio: firstname.lastname@example.org Jennette Vopicka: email@example.com Danielle (Dani) Brito: firstname.lastname@example.org Jane Otterstrom: email@example.com Sasha Platz: firstname.lastname@example.org