3150 Chrisdale Ave in Burnaby. which the owner wants to sell to a buyer who plans to convert it to a small apartment building but has been stopped by an old restriction on the land title. Photo by NICK PROCAYLO /PNG
The B.C. government acknowledged Tuesday that housing legislation it passed to allow more housing units on single-family lots does not override old land-title covenants that could restrict the construction of multi-unit buildings on a property.
How many land titles have such covenants or clauses is uncertain — the Ministry of Housing said it does not keep track — but some real estate experts said there are likely thousands.
Andy Yan, director of Simon Fraser University’s City Program, said the issue has been coming up in conversations among planners and real estate lawyers.
“Disarming these covenants and deciding if a property can or can’t be redeveloped — this is basically thousands of land mines,” he said.
Postmedia this week reported on a Burnaby couple who are eager to sell the home they’ve lived in for four decades. They have a prospective buyer who is keen to convert the single-family home into a multi-unit building.
However, the sale is contingent on getting a court order for the Land Title Office to cancel a so-called “strategic building scheme” that essentially bans multi-unit buildings on the property without permission from the original construction company, which no longer exists. The clause was also attached to the land titles of 18 of their neighbours.
In the court petition, the potential buyer and sellers of the Burnaby home argued the new provincial law rendered the old covenants obsolete.
However, the Housing Ministry made it clear Tuesday this is not the case.
The ministry went on to say it “recognizes the challenge” homeowners may face with existing covenants and “urges homeowners in this situation to seek legal advice regarding their options.”
It added that local governments should not pursue new covenants or statutory building schemes that would prevent densification under the new legislation, though such covenants could still be requested for health, safety, and the protection of the natural environment.
It’s not clear how existing covenants will be handled and what it could mean for the province’s goal of adding housing, said Ron Usher, a retired real estate lawyer and former general counsel at The Society of Notaries Public of British Columbia.
He said there are many thousands of these restrictions on land titles and most do not have built-in expiry clauses.
“It’s all very intriguing,” said Usher.
He added there are cases of “concerned or cranky neighbours” using these clauses to stop activities on neighbouring properties.
Usher said there are examples of the Land Title office amending the titles of many properties in response to a change in provincial law. A recent example was the termination of all registered land use contracts, which were allowed in B.C. between 1971 and 1978, to allow for more flexibility between local governments and landowners.
For now, the market is turning to the courts for a ruling.
Said Usher: “It would be good, though, if there was an administrative law or tribunal process in place. How about the position of ‘covenant czar?’”
Coquitlam Coun. Craig Hodge said by email that property owners in an entire Coquitlam neighbourhood that was built in the 1960s have been unable to assemble and redevelop their properties because the original builder of the single-family homes is no longer alive to remove a covenant on the titles.
“The new housing legislation doesn’t seem to override the covenant,” Hodge said.
Roman Taurbekov of Alair Homes, who has been building in Burnaby for 25 years, said that if there are such covenants tied to a land title, it could be harder to sell the property without some kind of resolution.
Credit to: Joanne Lee-Young
Real-estate-law expert Ron Usher says there are likely thousands of covenants and most do not have built-in expiry clauses
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Published Aug 14, 2024