- A registered restrictive covenant is noted on the titles of both the burdened and benefited parcels, and later owners are treated as knowing about it and bound by it.
- The usual routes to remove one are a discharge signed by the registered owner of the benefited (dominant) land, or a court order.
- A caveat protecting a restrictive covenant that runs with the land is not subject to the s.138 lapse process, and it may be modified or discharged only by court order under s.48.
You are looking at your certificate of title and see a restrictive covenant. It may limit what you can build or how you can use your land, and you want to know whether it really binds you and whether it can be removed.
The answer depends on how the covenant was registered, what it says, and who benefits from it. This article explains the main rules in plain terms. Because a title search is only the starting point, a lawyer can confirm how these rules apply to your parcel.
This article covers the law of Alberta.
How a restrictive covenant ends up on your title
A restrictive covenant may be registered as annexed to registered land for the benefit of other registered land. A memorandum is entered on the certificates of title of both the burdened (servient) parcel and the benefited (dominant) parcel.
The covenant is a registered interest, and a certificate of title shows the encumbrances and interests endorsed on it.
Why it binds later owners
Later owners are deemed to have notice of a registered covenant that runs with the land, and they are bound by it. Not having read the title before buying does not change that.
There is a limit. Calling a covenant 'running with the land' does not make it run if its nature or wording would not otherwise allow it. Whether a particular covenant truly runs with the land can turn on its exact wording, so it is worth having a lawyer read it.
Ways to remove or change it
| Route | How it works |
|---|---|
| Discharge from the dominant owner | The Registrar must cancel a registered restrictive covenant on production of a prescribed discharge signed by the registered owner of the dominant tenement. |
| Application by an affected owner | An affected owner may apply for the Registrar to cancel such an instrument. |
| Court order | A registered restrictive covenant may be modified or discharged by court order, including where it conflicts with a land use bylaw or statutory plan, if the change is in the public interest. |
The most direct route is usually agreement with the owner of the benefited land. If that owner will not sign, the other routes may be worth discussing with a lawyer, since what is available depends on the facts.
Caveats protecting a covenant
A covenant may also be protected by a caveat. A caveat protecting an easement, party wall agreement, encroachment agreement or certain restrictive covenants with an identified dominant tenement may be withdrawn only by the registered owner of the dominant tenement.
The usual 60-day lapse process does not help here. A caveat protecting a restrictive covenant running with the land is not subject to the s.138 lapse, and the Land Titles Act says it may be modified or discharged only by court order under s.48. How that fits with withdrawal by the dominant owner depends on your situation, so it is worth confirming with a lawyer.
An ordinary caveat is different. The Registrar can lapse it on application made after 60 days following a notice to take proceedings (Form 29), unless the caveator starts court proceedings and files a certificate of lis pendens. A caveat is also not deemed lapsed unless the person applying proves to the Registrar an interest in the land, mortgage or encumbrance.
What to do next
- Get a current title search and read the covenant and any caveat. You need a legal description, a LINC or a title number.
- Remember that a search reflects only what has been registered, and other interests can affect land without being on the title.
- Check any municipal land use bylaw or statutory plan that may conflict with the covenant.
- Ask a lawyer to confirm the current section numbering in the Land Titles Act, since subsection references can change, and to advise on your route.
Frequently asked questions
Am I bound by a covenant I did not know about?
If it is registered and runs with the land, later owners are deemed to have notice of it and are bound. A covenant whose nature or wording does not allow it to run may not bind you, even if it says it does.
Can the benefited owner remove it?
Yes. The Registrar must cancel it on a prescribed discharge signed by the registered owner of the dominant tenement. For certain restrictive covenants with an identified dominant tenement, a caveat may be withdrawn only by the registered owner of the dominant tenement.
Can I get a court to remove it?
A court may modify or discharge a registered restrictive covenant, including where it conflicts with a land use bylaw or statutory plan, if that is in the public interest. Whether a court would do so depends on the facts.
Why can't I use the 60-day caveat lapse process?
A caveat protecting a restrictive covenant running with the land is not subject to the s.138 lapse, although withdrawing certain caveats with an identified dominant tenement is reserved to the registered owner of that dominant tenement. The Land Titles Act says such a caveat may be modified or discharged only by court order under s.48, so how this fits with withdrawal by the dominant owner depends on your situation and is worth confirming with a lawyer.
Sources
- Land Titles Act, RSA 2000 c L-4 (King's Printer) — kings-printer.alberta.ca
- Alberta.ca – Find land titles, documents and plans — alberta.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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