Understanding Restrictive Covenants
Throughout the years, many developers, private landowners and municipalities wanted to restrict a person’s ability to do certain things with specific pieces of property. For the government, several mechanisms exist to allow for them to implement these restrictions (for example, land use bylaws, building code, etc). For private individuals and developers, the mechanism used to control that happens to property down the road are restrictive covenants. After reviewing this, if more questions remain, please feel free to connect with the real estate lawyers at Kahane Law Office in Calgary, Alberta. We help people understand, remove and amend restrictive covenants.
What Is A Restrictive Covenant?
A restrictive covenant is a document registered at the Alberta Land Titles Office. Essentially, the document includes an agreement between the owners of two or more properties. In some instances, the same person or company owns all the pieces of land to which the restriction is applied. Most restrictive covenants focus on one or two unique matters. A single property may be subject to more than one restrictive covenant. Since the restrictive covenant “runs with the land” it means that it binds the current owner and every future owner unless discharged or amended.
Types Of Restrictions Restrictive Covenants Put On Land
The types of restrictions contained in these documents include all types of matters. For example, they often contain restrictions on:
- House colour;
- Roofing material;
- Water drainage;
- Number of homes per number of lots;
- The distance a garage must be form a lane or road;
- Disallowing livestock on the property;
- Types of fencing; and lastly
- Forbidding a house of “ill repute”.
Do Restrictive Covenants Expire
Restrictive covenants do not expire automatically. Some of them include an expiry. Most lack this term so that no automatic expiry ever occurs. This means that old restrictive covenants on title from the 1800s or early 1900s remain in force. Landowners should not ignore them based on the age of the registration.
How To Read A Restrictive Covenant
Trying to read restrictive covenants often confuse and overwhelm people. The reality is that reading them is simpler than it looks from first glance. First, each one has recitals at the beginning. When you see “Whereas” statements, you know these are the recitals. Usually, ignoring these statements is the best course.
Next, comes the substantive component of restrictive covenants. Some people refer to these as the guts of the registration. This is the meat of the matter with regards to the prohibitions the agreement forces on the land. Each one usually focuses on one or two matters.
Lastly, some of these documents include schedules. The schedules usually contain specific addresses (based on legal description). The guts, in these documents, restrict a variety of things but the restrictions only apply to the properties listed in the different schedules. This means that you need to look to see which schedule, if any, lists your property. On sections referencing schedules containing your property apply to your property.
Making Changes To Restrictive Covenants
Many people want to amend or remove restrictive covenants. This process often causes troubles for people. The biggest issue is that the restriction is enforceable by every property named in the document. Often this includes every home in a neighbourhood. To make a change or remove the restriction, the process includes a court appearance. In some instances, the document is only registered against two or three homes. In these cases or any where you secure the signature of every homeowner the restriction relates to, the process is simpler and less expensive. Lastly, to serve a whole community, the courts often include a long time for people to respond. This means a long notice period, prior to the court appearance, occurs.
Removing Restrictive Covenants
Removing a restrictive covenant includes a tougher court application than amending one. This challenge exists due to community concerns that often arise from removing restrictions. Further, the courts themselves often hesitate to remove a restriction unilaterally, even with notice. Understand that the mechanism exists and works to remove them, however the situation largely dictates the success of the application. For example, removing it from title occurs more easily if most homes in the area violate it (ie the garage is too close to the land) vs. only one home violates it.
Amending The Restrictions
Amending the restrictions often comes easier. Applying to amend the restrictive covenant, to use the garage example, to allow a garage that is two feet from the lane instead of three, happens more easily that removing the restriction all together. Again, the situation dictates the likelihood of success.
Consequences Of Breaching The Restrictions
The worst consequence of breaching one of these restrictions is someone requiring you to remove it. The consequence largely rests with the type of violation on your property. For example, possible orders include:
- Removing a structure from your property;
- Repainting a property to a new colour;
- Sandblasting brick to show the natural brick colour;
- Installing a new type of fencing; and lastly
- And any other thing that remedies the violation is an amendment or discharge of the RC is not granted.
Lawyers To Help With Restrictions On Your Property
If your property has something that violates a restrictive covenant, call our Calgary real estate lawyers. We work with our litigation team so that the court application addresses everything required. If selling your property, call right away. Dealing with any violation, happens easier when there is time to address it rather than after a sale when time is of the essence. Call us today 403-225-8810 or, if easier for you, email today to contact us.