A restrictive covenant is an agreement between the owners of the affected properties, which places limitations on what can be done on such property.
In newer community developments, a restrictive covenant may be put in place by developers to maintain the value of the properties located in a given subdivision by ensuring uniformity in the architectural and landscaping controls. These restrictions may include the material type or colour of the roof, or the exterior wall material or fences. Another example may be a restrictive covenant limiting the minimum distance to be maintained between the street and a house, or a restrictive covenant preventing the storage of any boats or trucks in the driveways, or prohibiting the installment of satellite dishes or clothes lines, or there may be a restriction placed on whether a business may be run from the property or not.
Once registered, the restrictive covenant runs with the land and will remain on the property title, also binding the subsequent owners of the land.
Restrictive covenants do not have an expiration date unless there is intentionally an end date included within the covenant – this is rarely ever so. Because there is no expiration date some covenants from as far back as the 1800’s will still run with the land and remain in force on the property title. Some older restrictive covenants quite often may be more complex, such as the ones that include restrictions on use (such as only a single family dwelling being permitted) and on the location of buildings (such as the setback from the street). It is possible that a home is built in compliance with current municipal regulations, but it may contravene a restrictive covenant on the title. The property could even have a real property report with a compliance certificate from the municipality and yet there might still be a defect on title if it is not consistent with the restrictive covenant.
It is possible to remove or amend restrictive covenants on title. However, in order to remove a restrictive covenant completely it may be a lengthy process, a court application and a requirement to address potential community concerns. In certain instances, it may be possible to amend a current restrictive covenant rather than to remove it entirely, but the viability of this is determined on a case by case basis and is particular to the nature of the restrictive covenant.
TAKE AWAY
If you have a restrictive covenant registered on title, it is vital to understand what this document entails before signing the purchase contract. There is no guarantee it can be removed or amended, and it is a restriction as to what the buyer can or cannot do with the subject property.
Questions about interpreting your restrictive covenant? Contact our team today. We’re here to help!
