When a Royal Pacific Realty Group Realtor® lists you property for sale, as part of our due diligence, we search the property title for encumbrances such as liens, unpaid taxes, and restrictive covenants.
A restrictive covenant is a legal document which lists restrictions on how a property can be used.
There are a range of different types of covenants – from restrictions about building schemes or heights of trees, to restrictive covenants specifying who can’t buy property, according to Andrew Peck, vice-president and general manager, Royal Pacific Realty Group.
Race-based discriminatory covenants
We occasionally see covenants on title restricting the sale and ownership based on race and nationality. They’re left over from a different time, decades ago. The current owners may not know about them,” said Peck.
Ron Usher, general counsel for the Society of Notaries Public of BC, said it’s impossible to estimate the number of discriminatory restrictive covenants still on property titles in Metro Vancouver.
“There could be thousands. They were common in Vancouver, West Vancouver, North Vancouver and Victoria, and there’s no way of knowing the exact numbers,” Usher said.
In 1978, the BC government amended the Land Title Act, section 222, voiding any racist covenants restricting the sale, ownership, occupation or use of land because of sex, race, creed, colour, nationality, ancestry, or place of origin.
“It’s not legally possible to have an enforceable race-based covenant,” said Usher.
Usher advises Realtors to always get a copy of the document associated with that covenant.
“Realtors should read all of the other underlying documents associated with the title search,” said Usher.
“Each document is unique, and there could be multiple clauses within clauses, so it’s important to read each paragraph to look for a potential time bomb that could cause a deal to collapse.”
Realtors may come across surprises – some beneficial. For example, a discriminatory covenant may have an expiry clause. This would allow the easiest, most inexpensive removal of the covenant, according to Usher.
When a Royal Pacific Realty Group Realtor® finds a discriminatory covenant on title, they let their clients know about it in keeping with directives from the Real Estate Council of BC.
“We explain to clients that the discriminatory covenant was put there many years ago and we will help the client deal with it,” said Peck.
Remove a restrictive covenant
Owners who want the discriminatory covenant removed, can submit requests to the Land Title and Survey Authority (LTSA) registrar through the LTSA Customer Service Centre; or in writing by mail to Registrar, New Westminster Land Title Office, Suite 300-88 Sixth Street, New Westminster, British Columbia, Canada, V3L 5B3.
With discriminatory covenants, the LTSA will amend the register and records to reflect that the covenants aren’t valid and indicate on the original document that the covenant has been cancelled as per the Land Title Act, s. 222.
The TLSA doesn’t change for this service.
If the title documents are older and stored on microfilm, it’s impossible to remove individual discriminatory documents for technology-related reasons.
If the documents are digital, the LSTA may be able to make a digital alteration. But the LSTA typically can’t remove all discriminatory covenants at once.
This is because discriminatory covenants may be embedded as a partial clause or a paragraph within a larger document that contains legally valid and binding covenants, explains Usher.
For example, a discriminatory covenant may be located within a paragraph which also states the property can be used only as a single family residence and the owner can’t raise chickens or goats.
In some neighbourhoods, there are covenants on the property titles of homes specifying the height of trees and shrubs.
In West Vancouver, these were created to keep view corridors. Trees that grow too high and block views can have a significant effect on neighbouring property values.
To get an obsolete covenant about building size or height removed, an owner may have to apply to the courts, according to Usher. For example, if an owner wants to build an addition, they may need the consent of their neighbours and the municipality. Even then, they may not succeed in the courts.
“That’s why it’s so important to always thoroughly read all documents associated with a property title,” said Usher.
For information, contact your Royal Pacific realty Group Realtor®.
LTSA, Practice Note 01-15 − Cancellations of discriminating covenants, August 7, 2015
Real Estate Council of BC, “Discriminatory Covenants: What Licensees Can Do,” Report from Council, December 2016
Writer: Teresa Murphy
Sources: Land Title and Survey Authority; Ron Usher, Society of Notaries Public, Real Estate Board of Greater Vancouver
For information, contact Andrew Peck, vice-president and general manager at firstname.lastname@example.org