In British Columbia, there are generally two types of Covenants which are noted as charges on a Land Title:
- Covenants or Restrictive Covenants – must be “negative” obligations restricting what an owner can do on the lands and, similar to easements, there must be a dominant (benefited) lands and servient (burdened) lands.
- s.219 Covenants – which can imposed both positive and negative covenants and can only be registered for the benefit of certain local and provincial governments. There is no requirement for a dominant tenement for s.219 covenants.
Covenants have long been used as real estate development tools in British Columbia by both developers and municipalities. Covenants are also used in commercial properties to restrict operation of certain types of businesses.
Importantly, covenants cannot discriminate on the basis of sex, creed, colour, nationality, ancestry or place of origin. Notoriously, the British Properties development in West Vancouver historically had a covenant which forbid sales of lands to persons of certain races. Where a covenant is over broad, Section 35 of the Property Law Act grants the power the Supreme Court of British Columbia to modify covenants and easements.
Section 219 Covenants are commonly found on many new real estate developments in British Columbia as they are used by municipalities, regional districts, the Crown (Province), as tools to ensure the development proceeds on certain terms and conditions (like restrictions on the number of homes that can be built). Alternatively these covenants can be used to ensure that obligations are placed on current and future property owners (hillside development covenants, wildfire covenants, flooding covenants).
Recently Section 219 Covenants have also been utilized by municipalities and land conservancies to protect environmentally sensitive wetlands, islands, and foreshore areas.
Buyers should ensure that they understand the terms of any Covenants and Section 219 Covenants on the land title to the property prior to subject removal as both types of instruments will contain terms which limit the owner’s use and enjoyment of the property.