If a property owner agrees to grant a restrictive covenant for a specific purpose, can that restrictive covenant be kept on title if there is only a “remote” possibility of the specific purpose being fulfilled?
Pushor Mitchell LLP recently successfully tackled this issue on behalf of their client.
In a recent decision from the British Columbia Supreme Court (Watermark Developments Ltd. v Kelowna (City), 2024 BCSC 2188), Justice Hardwick confirmed that the City of Kelowna requires more than a hypothetical plan to build a roadway in 16+ years to restrict a property owner from building on a 13-acre portion of land that the City does not own, particularly where the property owner has already been restricted from building on the parcel for nearly 16 years.
In some ways, this decision provides much needed clarity to confirm that a restrictive covenant which may never be used may not remain on title indefinitely.
However, for property owners, this decision also highlights that a property owner may have to be patient to have such restrictive covenants removed.
The court decision is currently being appealed to the British Columbia Court of Appeal by the City of Kelowna.
If you’d like to learn more about removing restrictive covenants (or other charges) hindering your property, please reach out to Alison Memory at [email protected].
