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

Real Estate Development: Preliminary Layout Review Letters

The filing of a subdivision plan in the Land Title Office cannot occur without the approval of an Approving Officer appointed by the local municipal authority (s.88 Land Title Act). It is common practice for most municipalities to issue a Preliminary Layout Review letter (PLR Letter) which sets out what the approving officer will “likely” require to grant approval to the subdivision.

Although the PLR Letter is not binding on the municipality, administratively it forms a very important checklist for developers. Careful and early review of the PLR letter with your real estate lawyer can be very helpful to streamline the real estate development process.

Some of key items discussed may include:

  1. Park Area Dedication and No Build Areas
  2. Performance Bonds
  3. Development Cost Charges
  4. MOTI (Highways) referrals and Traffic Impact Assessment requirements
  5. Geotechnical and Engineering Considerations
  6. Retaining Wall Requirements
  7. Zoning and Setback Requirements
  8. Utility and Servicing Right of Way Requirements
  9. Restrictive Covenant Requirements (ie; Wildfire Interface Covenants in the Okanagan)
Most, and often all, of these requirements will require the involvement of a real estate lawyer. Real Estate Development Lawyers can assist clients with the negotiation, drafting and registration throughout the process.
The time it takes for a Developer to go from “conception to subdivision to building” will vary greatly from project to project and will often depend on the unique third party requirements (ie; geotechnical, engineering, or provincial approvals). Most PLR Letters have a “sunset” clause and expire (usually within 1 year) from the date of issuance but can be often be extended.
Peter Borszcz is a Business and Real Estate Lawyer practising in Kelowna, British Columbia and a shareholder of Pihl Law Corporation.

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.