Can You Remove a Restrictive Covenant From Your BC Property Title?

You look at your title and find a covenant registered against it. It may limit what you can build, how you use the land, or whether you can subdivide. Many owners want to know whether it can be changed or removed.

There are two main routes: an agreement with the person or body that holds the covenant, or a court application. Which one fits depends on who holds the covenant, what it says and why you want it changed. This article explains the general rules so you can ask better questions.

This article covers the law of British Columbia.

What a section 219 covenant is and why it binds you

Under Land Title Act s. 219, a covenant about the use of land, building, subdivision and separate sale may be registered against title. It is enforceable against the covenantor and the covenantor's successors in title, even if it is not attached to land owned by the covenantee. That is why a covenant signed by a past owner can limit you today.

Covenants on use, building or subdivision may be held by the Crown, a Crown corporation or agency, a municipality, a regional district, the South Coast British Columbia Transportation Authority, or a local trust committee. Covenants protecting land or an amenity may also be held by a person the minister designates.

Registration is not a ruling on enforceability. Registering a s. 219 covenant does not mean the registrar has decided it can be enforced.

Route one: discharge or modification by agreement

A s. 219 covenant may be modified by the holder and the landowner together, or discharged by the holder alone, by a written instrument witnessed or proved in accordance with the Act. The landowner cannot discharge it alone.

• Modification: both the holder and the landowner must sign.
• Discharge: the holder must sign; your signature alone is not enough.
• Old flooding covenants required under former s. 82 (since repealed): the approving officer and the landowner may modify the covenant, or the approving officer alone may discharge it.
• Covenants held by a minister-designated person: the covenant stops being enforceable on that holder's death or dissolution, unless another covenantee is named or the minister has approved an assignee in writing.

Discharge practice for covenants held by municipalities varies with the holder and the covenant's terms, so expect to ask the holder what it requires and have a lawyer review the wording.

Route two: applying to the Supreme Court under the Property Law Act

A person interested in land may apply to the Supreme Court to modify or cancel an easement, a statutory right of way, or a restrictive or other covenant burdening the land.

The court may make the order if the application is not premature and one of these grounds applies:

• The charge is obsolete because of changes to the land or neighbourhood.
• Reasonable use of the land is impeded without practical benefit to others.
• The benefited parties agreed.
• The change will not injure the person entitled to the benefit.
• The registered instrument is invalid, unenforceable or expired.

Compensation, notice and updating title

The court may require you to pay compensation to anyone damaged by the order, but not for an advantage that only benefits the burdened owner. Before ordering, it must direct inquiries to public authorities and notice to those who appear entitled to the benefit.

The order binds all persons, and the registrar amends the records when the order is produced.

Related situations: building schemes and neighbouring land

Not every restriction is a s. 219 covenant. An owner who intends to sell or lease two or more parcels can register a declaration of statutory building scheme under s. 220. Its restrictions bind the land and its successors, and the owners may consent to modify or discharge them.

When a restrictive covenant or easement is registered to benefit other land, the registrar endorses it against the title of that benefited land, and the benefit passes on transfer without express mention. So the people you need to deal with may be your neighbours' successors, not just the original parties.

What to do next

• Order a current copy of your title and the registered covenant document.
• Identify the holder and what the covenant restricts.
• Ask the holder whether it will agree to modify or discharge the covenant.
• Write down why the covenant is obsolete, burdensome or no longer needed, in case a court application is required.
• Speak with a BC lawyer about the wording, the right route and the cost of each.

Frequently asked questions