The cities of White Rock and Surrey seem to be ahead of other municipalities in recognizing that restrictive covenants on certain properties could be an obstacle to implementing recent provincial housing legislation.
Bill 44, introduced last year, had ordered municipalities to amend their zoning bylaws to enable small-scale multi-unit housing (SSMUH) – in what had been single family and duplex zones – by June 30 of this year.
The provincial edict, aimed at increasing housing stock, says cities are required to permit development of three to four units on such properties – and up to six for those located near frequent bus service – without holding public hearings.
A story in Vancouver media Aug. 13 reconfirmed a Ministry of Housing position that Bill 44 can not supercede existing covenants prohibiting multiple units which fall under Section 219 of the Land Title Act.
That story was following up on a case in Burnaby in which the homeowners' desire to sell their property to the potential developer of a small apartment building had been blocked by a historic restriction on the land title.
While real estate law experts calculate that thousands of such covenants could exist – in some cases imposed decades ago by former property owners no longer alive – a check with the City of White Rock and the City of Surrey confirmed that both are keeping their eyes open for Section 219 covenants.
White Rock communications and government relations manager Robyn Barra told Peace Arch News that "staff sought clarification on the status of existing Section 219 restrictive covenants shortly after the introduction of the SSMUH legislation" and updated council at its Jan. 29 meeting.
In that report, planning and development services director Anne Berry told council it would be incumbent on the property owner to request a discharge of the covenant document from their land title.
"At this time staff are reviewing any requests for discharge of Section 219 covenants on a case by case basis," Berry said in a statement to PAN this week.
"This will help inform the need for future policy development regarding applicant requests to discharge these documents."
Meanwhile Prabjoht Kahlon, of Surrey's corporate services and communications division, issued a statement on behalf of the city's planning department.
"(The) department is aware that existing retrictive covenants registered on title could impose some challenges for the construction of additional housing units under the Bill 44 SSMUH legislation, on some properties.
"We are currently reviewing this issue and will be seeking clarification from the Ministry on this matter."
A Bill 44 FAQ guide issued by the Ministry of Housing in May notes, however, that local governments should not consider using Section 219 covenants as a loophole.
"Local governments should not pursue new covenants that would prevent the prescribed residential densities required under the SSMUH legislation," it states.
But cities can still request covenants on some properties, it adds, for purposes of "health, safety and the protection of the natural environment."
