Wildfire Covenants: What Okanagan Home Owners Need to Know.

The Peachland Wildfire highlighted the importance of good urban planning and the use of Wildfire Covenants to reduce the danger posed by wildfires in the Okanagan.  The Ponderosa Golf Course development by TreeGroup acted as an important firebreak to prevent the fires from spreading into the densely populated Princeton residential subdivision. (see news story here)

In many new subdivisions which have been developed since the large Okanagan Mountain Park fire of 2003, local municipalities have mandated that Wildfire Covenants be registered against title to the newly created lots. A Wildfire Covenant is a Section 219 Covenant by which municipalities impose obligations on the landowner to lower the wildfire risk.

A Wildfire Covenant legally requires landowners to:

a)      maintain a minimum distance of 3m between conifer trees (this may require a homeowner to thin existing trees as they naturally grow much denser than this requirement)

b)      do not plant conifer trees, only plant small shrubs and deciduous trees;

c)       prune all low branches (below 3m) on tall trees (over 9m) (this will likely require a homeowner to hire an arborist);

d)      remove all dead trees, woody debris, branches, and pines needles on the ground, roof and gutters (this is easy, keep the yard clean);

e)      use fire resistive materials for exteriors, roofs and  walls of all structures (no wooden shingles or shutters);

f)       ensure house address is visible (to assist emergency personnel);

g)      have an evacuation plan (know alternative routes);

h)      for ground cover use pea gravel, lava rock or other non-combustible material rather than combustible materials such as bark mulch;

i)        water your lawn and have a hose that can reach the roof(with a sprinkler) and around the house; and,

j)        do not store flammable materials near the house.

The Wildfire Covenant puts landowners on notice that they live in an interface area and there is a risk of wildfire. Under the terms of the covenant, the municipality will not be liable in the event of wildfire to the homeowner.

Wildfire Covenants can be found in most new subdivisions including Ponderosa, Wilden, Kettle Valley, South Ridge, Kirschner Mountain and the Ponds. These Wildfire Covenants assist the entire neighborhood in reducing the naturally occurring wildfire risks associated with living in the sunny Okanagan.

Peter Borszcz is a Kelowna Real Estate Lawyer and Kelowna Business Lawyer at Pihl Law Corporation. Have a legal question? Contact the firm at 250-762-5434

Marriage and Name Changes in the Land Title Office

I heard a wonderful story from a client this week who had decided to propose to his girlfriend after he carried her “over the threshold” in to the new home they had just bought together in Kelowna. The client asked me “When we get married, do we have to file that change with the Land Title Office?”

Steps to Name Changes in the Land Title Office:

  1. Obtain the  original certificate of change of name or marriage certificate from the BC Vital Statistics Agency.
  2. Inform your lender of the change of name, they may require your lawyer to prepare a declaration that you have changed your name.
  3. Once Step 1 & 2 are complete, bring the original document to your lawyer who will verify your identity and will file the legal name change in the Land Title Office.
Will the wrong name on title prevent me from selling or re-mortgaging the property?
It might, identity verification is taken very seriously by Realtors, Mortgage Brokers, and Lawyers in the Province of British Columbia and these professionals will require proof that you have the legal capacity to sell your property.

So, when you legally change your name, it is recommended that you file the change of name in the Land Title Office as set out above.

Written by Peter Borszcz, a Kelowna Real Estate Lawyer and Kelowna Business Lawyer. 

Permits Under Part 26 of the Local Government Act

I commonly get calls from home buyers and Realtors on what the legal notation “This Title May be Affected by a Permit under Part 26 of the Local Government Act” (previously Part 29 of the Municipal Act) means.

Under s.927 of the Local Government Act, a local government (municipality or regional district) is required to file a Part 26 Notice on a Land Title where:

  1. a Development Permit has been issued
  2. a Temporary Use Permit has been issued
  3. a Development Variance Permit has been issued

This is simply notice that one of these permits has been issued by the governing municipality on the subject property. Where residential property is fully complete (and an occupancy certificate has been issued) and no renovations or change of use is contemplated, these notices will likely not materially effect a Buyer’s decision.

However, where real estate development or changes in use of a property are contemplated (ie; applying for redevelopment or increased density), these filings should be reviewed. However, the Land Title Office filing does not contain any further detail about the nature and terms of the permit. Therefore, if a developer needs to obtain this information they will need to inquire with the office of the local government (ie; City Hall).

Peter Borszcz is a Real Estate Lawyer and Business Lawyer practicing in Kelowna, BC and a shareholder in the law firm of PIHL Law Corporation.

Distressed Property: Judgements, Liens, and Certificates of Pending Litigation

Most transactions involve the discharge of at least one financial charge, being a Seller’s mortgage which is found on most titles. Where a seller has run into financial or legal trouble, often a Judgement, Builder’s Lien or Certificate of Pending Litigation are registered against title to the Lands.

Judgement – A judgement registered against the Land Title is an indication that the BC Court has awarded a judgment to the chargeholder against the land owner and that the amount of the judgment is payable by the land owner to the chargeholder. The amount of the judgement can be obtained by retrieving a copy of the charge from the Land Title Office.

Builder’s Lien – A Builder Lien can be registered by a contractor, architect, or material supplier that has supplied goods or services to the property, who have a 45 day period to register the lien. Although the mere registration of the lien does not “prove” the debt, the landowner must either a) pay the chargeholder, or b) pay the amount into court pending the resolution of the matter.

Certificate of Pending Litigation – Also called a CPL, is a declaration that a court action has been started by a litigant claim an “interest” in the land. A CPL cannot (and should not) be filed by a person merely claiming monetary damages. A CPL is often filed by a spouse where the landowner is involved in family law proceedings.

Unlike a bank (which is required to provide a discharge when full payment is made under the mortgage), the discharge of these charges will require the Seller’s lawyer to negotiate terms with the respective parties holding the charge. In some cases, for example a Judgement, this is can be as straightforward as paying the chargeholder and obtaining a release of the charge, in other cases, the for example where a CPL has been filed in a family law proceeding, this may require extensive preclosing discussion with the Seller’s family lawyers.

Equitable Charges and Rent Charges

Equitable Charges and Rent Charges are charges which indicate that there are payments due from the landowner to the chargeholder. In the Okanagan region often these charges are placed on lands by private utilities at resorts (for example: Big White, Silver Star or Apex Ski Resorts) to secure the payment of utility fees to the resort. In other circumstances there are used to enforce payments to a local homeowners association (for example at Sunset Ranch Golf Course).

Although these charges impose ongoing financial obligations on the landowner, unlike mortgages Equitable Charges and Rent Charges are not (usually) discharged on closing as (similar to strata fees) they represent the security interests of ‘service providers’ to the land. Much like a Buyer would wish to review strata bylaws, these charges MUST to reviewed prior to subject removal, as the additional financial obligations imposed need to be understood by the Buyer.

Priority Agreements

A Priority Agreement is a notation on a Land Title where one chargeholder has chosen to grant priority over its prior registered charge to a subsequent chargeholder.

In most cases, a Priority Agreement is registered by a lender (bank) holding a mortgage which requires priority over a previously registered mortgage. One of the most common situations where this occurs is where a developer has used a secondary lender to finance the early stages of development and, once the development has proceeded to the building stage, an institutional lender (major bank) has lent additional funds to finish the project. In most cases, the institutional lender will require, as a condition of lending a Priority Agreement over the first lender.

From a Buyers perspective, most Priority Agreements on a Land Title are of little consequence on the purchase of residential real estate as the standard contract of purchase and sale require that all financial charges be discharged. As the Priority Agreement are linked to the charges (in this example the Mortgage) they reference, the Priority Agreement is discharged along with the Mortgage.

Covenants

In British Columbia, there are generally two types of Covenants which are noted as charges on a Land Title:

  1. 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.
  2. 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.