Restrictive Covenants
There are a variety of restrictive covenants which may be registered against your property and could affect how the land can be used or developed. These covenants were placed on title by developers or original owners to control how those lands were developed. Some common examples of these restrictions include:
- Any building constructed must have a minimum value or have a minimum square footage.
- Any building constructed must be a minimum distance from a street or avenue.
- Only one dwelling house can be constructed on the lands.
- A restriction on the type of siding or roofing allowed on any building.
- A restriction on the size or height of a building or accessory building.
- A restriction on the types of fencing allowed. Examples include chain link or wood only.
How Can I Remove, Relax or Amend a Restrictive Covenant?
A Court application is required to amend or remove a restrictive covenant from title. An affidavit sworn by the owner is required in order for the Court make a decision whether remove or amend the restrictive covenant.
The requirements for each case can vary depending on your situation. We can work with you to develop a strategy to meet your needs.
What happens if I ignore a Restrictive Covenant on my title?
It is important to note that the City of Calgary will issue building and development permits without regard to any existing restrictive covenant. The City of Calgary is concerned with compliance with the City of Calgary Bylaws and enforcement of those Bylaws and not compliance with any restrictive covenant.
Generally, the only party that can enforce compliance of a restrictive covenant is another property owner who has the same covenant registered against their property. If you haven’t addressed an existing restrictive covenant, you could receive approval from the City of Calgary to develop your property only to be faced with a neighbour initiating Court proceedings to enforce the restrictive covenant which could delay or even stop your development.
The standard Area Real Estate Association contract used by realtors has a contractual warranty that the location of all improvements comply with the restrictions contained in any covenant on title. It is essential that you, or your lawyer, review a current Real Property Report to ensure that the improvements do comply with the covenant. If not, you will need to obtain the necessary Court order prior to your sale.
How Can We Help?
We have achieved a variety of results over the years which include the following examples:
- The removal of a restrictive covenenant from title.
- A relaxation of a restrictive covenant with a declaration of the Court that the existing development, as evidenced by a current Real Property Report, was deemed compliant.
- A relaxation of a restrictive covenant to alter a distance requirement.
- An amendment of a restrictive covenant to remove a requirement of a single dwelling house.
- A relaxation of a restrictive covenant to alter a height restriction on an accessory building.
- An amendment of the restrictive covenant to allow for removal of a chain link fence and construction of a wood fence.
- An amendment of the restrictive covenant to allow for three storey row townhouses.
- Where a number of owners desired to have a restrictive covenant on their tiles, drafting and registering it on their titles
Do you need help with or have questions about a restrictive covenant? Contact Us to find out how exactly how we can help you.
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