Often in documents which are registered at the Land Title Office, one sees an example of a positive covenant – you, the landowner, are supposed to perform the action described in the document.
In this article we distinguish between section 219 covenants and other covenants.
There are many examples of positive covenants in the arrangements required by government agencies if a land owner wants to subdivide or move parcel boundaries. These covenants are "section 219 covenants", sanctioned under section 219 of the Land Title Act, which expressly allows a positive obligation to be imposed, by covenant, in favour of local or provincial governments.
Examples are a wildland interface covenant which includes an obligation to use fire resistant materials in building, and to create fire-fuel-reduced areas around buildings. Another is a geotech covenant which includes an obligation to have property assessed by a geotechnical engineer to locate a safe building site if the owner wishes to build a habitation on the property. A third is a water treatment covenant, to test and treat water from a domestic water supply.
Section 219 covenants are used by local governments and the province to control subdivision/development, and contain a continuing liability waiver by the land owner and future owners, in favour of the government. The government agrees to allow the subdivision to go ahead, with the stipulated covenants, and the "don’t blame us if something goes wrong in future" provision in each of them.
Taking the wildland interface covenant as an example, there is a positive obligation to use fire resistant materials and establish reduced-fuel buffers to reduce fire risk--but if a wildfire comes through and causes damage to the land owner despite these protective measures, don’t blame the government for having approved the subdivision knowing that wildfire was a risk.
Apart from section 219 covenants, if someone dealing with a land owner wants to establish a positive obligation on the land owner (the obligation to do something; as opposed to a negative or restrictive covenant which is the obligation not to do something), the covenant containing the positive obligation may not be enforceable.
Here are some examples of positive covenants:
The case discussed in this article is Williamsburg Water Utility Co. Ltd. v. Conyd (2018 - BC Supreme Court).
In 39 pages covering the history of the parties and the litigation, the judge tells the story of the high conflict dispute between the water utility company and the subdivision owners, including threats, counter-threats, trespasses to safeguard, turn off, turn on, or dismantle access to water from the utility, police attendances, and innumerable approaches to the Comptroller of Water Rights.
Of the 29 subdivision lot owners, four or five were so put off by the actions of the water utility company that they paid to drill their own wells and discontinued water service by the utility.
Mr. Conyd was one of the owners who drilled a well for his water needs, after the water utility had disconnected him from water service. At issue in Mr. Conyd’s claim against the water utility was the attempted collection from him of an "availability of service" charge of $437 per year, after he had drilled his own well and was disconnected from the water utility service.
The judge noted that:
At common law, covenants that are positive in nature cannot bind successors in title. This was recently confirmed by Branch J. in The Owners, Strata Plan NWS 3457 v. The Owners, Strata Plan LMS 1425, 2017 BCSC 1346:
The plaintiff concedes…it is settled that, at common law, positive covenants do not run with the land and that positive covenants have been defined to include obligations requiring the expenditure of money: Heritage Capital Corp. v. Equitable Trust Co. 2016 SCC 19 (SCC) at para 25.
In other words, the positive covenant can bind the land owner which grants the positive covenant, as it is a contract between the land owner and the covenant holder; but it cannot bind subsequent owners of the same land. In this case, Mr. Conyd was a subsequent owner, not the person who originally granted the covenant to the water utility, so the judge said that Mr. Conyd was not bound by the covenant to pay the "availability of service" charge.
The judge also found that the covenant could be discharged from Mr. Conyd’s title on several of the grounds in section 35(2) of the Property Law Act (BC). Section 35(2) describes the circumstances under which a court can modify or cancel an easement, land use contract, statutory right of way, statutory building scheme, restrictive or other covenant, a right to take the produce of or part of the soil, or an instrument by which minerals or timber are granted, transferred, reserved, or excepted.
Section 35(2) of the Property Law Act reads as follows:
(2) The court may make an order under subsection (1) on being satisfied that the application is not premature in the circumstances, and that
(a) because of changes in the character of the land, the neighbourhood or other circumstances the court considers material, the registered charge or interest is obsolete,
(b) 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,
(c) the persons who are or have been entitled to the benefit of the registered charge or interest have expressly or impliedly agreed to it being modified or cancelled,
(d) modification or cancellation will not injure the person entitled to the benefit of the registered charge or interest, or
(e) the registered instrument is invalid, unenforceable or has expired, and its registration should be cancelled.
The judge found that the covenant to pay the availability of service charge was obsolete and dischargeable under sections 35(2)(a) and 35(2)(b) because Mr Conyd’s lot had not received any water service from the water utility for over two years; the water utility manager told Mr. Conyd that the utility would not provide him with water and further improperly threatened to refuse firefighter access to water utility hydrants in case of a fire on Mr. Conyd’s lot; the water utility manager subjected Mr. Conyd to intimidation, threats, and caused some damage to his well system; and finally the water utility had poured cement into the water utility supply to Mr. Conyd’s lot so as to prevent it ever being used.
One thing we can learn from this case is that judges tend not to favour people who bully others, especially from a position of power or authority.
The main point of this article is that if you look at an easement or other charge on your land titles and see that there is a covenant to do something, as opposed to a covenant not to do something, there is a potential that you are not bound to comply with the positive covenant.
Further analysis by your own lawyer will be needed to determine your true legal position.