Removing Restrictive Covenants

Removing Restrictive Covenants

It may have been a good idea at the time the Restrictive Covenant was registered however, as time passes, things change and having a restrictive covenant on title to property can become something which out of date.

Restrictive covenants are charges registered on title to land that restrict the use and enjoyment of that land in some way. They can prohibit activities on a property or confine the nature, size and location of construction on the property. Restrictive covenants are placed against title to a property for the benefit of one or more other properties (and the owners of those parcels). They can be very simple. For example, a restrictive covenant may prevent building a home above a certain height so the view from a neighbouring property is preserved. Restrictive covenants can also be far more complex and registered against a large number of properties. For example, a restrictive covenant can be on title to dozens of parcels and regulate and restrict all manner of conduct and construction on them all.

So how does one get rid of a restrictive covenant when it is no longer of use? It can be done in the following manner:

If the parties for whose benefit the covenant was registered agree, then it can be quite simple. An application to the court with evidence of consent of all affected parties will facilitate a ruling under section 35(3) of the Property Law Act for removal of that restrictive covenant. However, if the parties who benefit from the restrictive covenant do not agree to remove the covenant even though current conditions warrant a change the only route left to remove the covenant is to request the court to remove it under Section 35(2) (a), (b), (d) and (e).

Section 35 of the Property Law Act allows the court to modify or cancel several different types of charges against land (i.e. restrictive covenants, statutory rights of way, building schemes, land use contracts) in appropriate circumstances, even over the objections of other interested parties. The court can order cancellation for several different reasons. Those include:

because of changes in the character of the land, the neighbourhood or other circumstances considered material, the registered charge or interest is obsolete; the reasonable use of the land will be impeded, without practical benefit to others, if the registered charge or interest is not modified or cancelled; those entitled to the benefit of the registered charge or interest have expressly or implicitly agreed to it being modified or cancelled; modification or cancellation will not injure those entitled to the benefit of the registered charge or interest; or the registered instrument is invalid, unenforceable or has expired, and its registration should be cancelled.

Whether such an application will succeed depends entirely on the type and strength of the evidence before the court. Some cases succeed, others do not. It depends on the prevailing Official Community Plan of the City, character of the neighborhood, need of the hour as visualised by the court and benefit it will bring to the community.

If you own land that is encumbered by a restrictive covenant or some other restriction, it is possible to have it modified or discharged, even in the face of opposition from property owners who benefit from that covenant or restriction. It is vital to assemble the necessary evidence to persuade a court to exercise the discretion given to it under the Property Law Act.


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