Restrictive Covenants on Title in BC: Can You Remove One?

You want to build, subdivide or use your property in a certain way, and a covenant on title says you cannot. It may have been registered decades ago by a previous owner, or required by a municipality as a condition of approval. Before you plan around it, you need to know what it is and who can enforce it.

This article explains how restrictive covenants are registered in British Columbia, who they bind, and the main routes for changing or ending one. The right route depends on who holds the covenant and what it says, so a lawyer should read the actual document.

This article covers the law of British Columbia.

Where a restrictive covenant shows up

A title shows the registered owner, the legal description, the PID, and the charges, liens and interests registered against the property. A restrictive covenant appears as one of those charges. What a particular covenant actually requires depends on the registered document itself, so it is worth getting a copy and having a lawyer read it.

To see a title you must order a copy, and a fee applies. The LTSA says the most reliable way to search is with the nine-digit Parcel Identifier (PID), and a civic address cannot be used to search. If you do not have the PID, you can find it in ParcelMap BC, in BC Assessment's Assessment Search, or on a property tax notice.

A title reflects the register at a specific point in time. Registration also does not settle whether a charge can be enforced, because the registrar does not determine that when a charge is registered.

Who a covenant binds and who can enforce it

Section 219 of the Land Title Act allows a covenant about use of land, building, subdivision and separate sale to be registered against title. It is enforceable against the covenantor and the covenantor's successors in title, even if the covenant is not annexed to land owned by the covenantee. In plain terms, buying the property does not free you from it.

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. A covenant protecting land or an amenity may also be held by a person the minister designates.

Other kinds of restrictions exist too. An owner who intends to sell or lease two or more parcels can register a declaration of statutory building scheme as a charge, and its restrictions bind the land and its successors from the endorsement date.

Ways to modify or discharge a covenant

For a section 219 covenant, the holder and the landowner together may modify it, or the holder alone may discharge it, by a written instrument witnessed or proved in accordance with the Act. The landowner cannot discharge it alone. That makes the holder's cooperation central.

If the holder is a municipality, the process and what the municipality will agree to vary with the covenant's terms and the holder, so it is worth asking what they require early.

One catch applies to covenants held by a minister-designated person. Such a 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.

Asking the court to modify or cancel it

Under section 35(1) of 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.

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.

What to do next

• Order a current copy of the title and the registered covenant document.
• Identify who holds the covenant and whether it is under section 219, a building scheme or something else.
• Read exactly what is restricted and whether your plan actually conflicts with it.
• Contact the holder to ask whether they would modify or discharge it, and in what form.
• Talk to a lawyer before applying to the court, since the grounds and compensation issues depend on the facts.

The LTSA does not answer questions about title contents or research records for you. A lawyer or registry agent can help read the documents.

Frequently asked questions