Old property covenants stall B.C.'s new density legislation

Property owners in B.C. are starting to notice what some call an unintended complication with provincial legislation aimed at creating more housing density in traditional single-family home neighbourhoods.

Covenants on some properties prohibit replacing single-family homes with multi-unit dwellings.

Private agreements between developers, or builders and owners, are not superseded by provincial legislation passed late last year that mandated local bylaw zoning changes to allow or expedite multi-unit housing on single-family home lots.

For example, a couple in the Government Road area of Burnaby wants to sell their nearly 3,000-square-foot home to a potential buyer who wants to take advantage of the new rules to build a multiplex on the site.

But a covenant, called a statutory building scheme (SBS), put in place on the property by the builder in 1975 and 18 similar homes in the neighbourhood, ensures only a structure of a certain size can replace the current structure. It essentially disallows multi-unit housing such as a duplex, triplex or townhome.

The Ministry of Housing says it "recognizes" that even with changes through its Bill 44, " some homeowners in B.C. may face pre-existing covenants and statutory building schemes that limit redevelopment of multi-unit housing."

According to the ministry, these types of covenants, made under sections 219 or 220 of B.C.'s Land Title Act, were historically used for a variety of purposes, including limiting density.

The SBS on the Burnaby properties can only be changed by the builder, but the company was dissolved more than 30 years ago, meaning the sellers have had to petition the B.C. Supreme Court for an order to remove the SBS.

The court will have to balance the requirements of the covenant with the petition, which argues the SBS is antiquated and prevents building modern, much-needed housing in neighbourhoods that have changed since agreements like it were put in place.

"The statutory building scheme (SBS) restricts the utilization of 3150 Chrisdale to its current status, with a single-family residence, which is an underutilization of the property and is inconsistent with the legislative and zoning changes," reads the petition filed on Aug. 8.

The court must also weigh the argument of one property owner against the rights of others, who may prefer to keep the SBS in place.

The petitioners, Kenneth and Kathleen Pon, did not respond to inquiries from CBC News through their Realtor.

William Chan, a property owner on Chrisdale Avenue in Burnaby, B.C., says he is weighing whether he wants his neighbourhood to support housing other than single-family homes. (Ryan McLeod/CBC News)

William Chan, who lives across the street and was served the petition, says he is conflicted over trying to support his neighbours in selling their home but also preserving the historical nature of the neighbourhood.

"I'm kind of at a loss," said Chan. "I'm at a crossroads between supporting him and my own opinion in keeping this place to be a single-home area."

One real estate lawyer says there are around two million land titles in B.C., and although there don't appear to be official statistics on the number of private covenants or statutory building schemes, they are pervasive.

"There are no doubt many thousands of these types of charges that affect … tens of thousands of properties," said Ron Usher, a retired B.C. lawyer who also taught property law at Simon Fraser University.

'Seek legal advice'

Usher said seeking relief in the courts over these types of private property agreements is costly for residents and an added burden for the justice system.

He would like to see the province use its powers to pass laws that would universally address certain parts of restrictive covenants that may now be outdated.

"There are many obsolete titles, charges on titles and, right now, the only way to get rid of them is through the Property Land Act and court system," he said.

The province is not saying whether or not it is mulling such a move.

"At this time, the province urges homeowners in this situation to seek legal advice regarding their options," said the Ministry of Housing in a statement.

Records in the land title register can be searched by members of the public wishing to investigate whether private agreements apply to their properties by visiting ltsa.ca.