Watch Your Schedules -
LTO Rejects BC FireSmart Manual

Recent attempts to have the BC FireSmart Manual included as a schedule to a covenant registered under section 219 of the Land Title Act (“S. 219 Covenant”) have been rejected by the Land Title & Survey Authority (“LTO”). The issue arises because some local governments have included the registration of a S. 219 Covenant either as a condition of, or exemption from, a development permit requirement. For example, an OCP Guideline provided that “development...shall be in accordance with the BC FireSmart Manual for Homeowners”.

In our recent experience, the Covenant’s operative clauses referred to “use” and “building” provisions specifically, which clearly are valid s. 219 clauses. However, the LTO was concerned with other aspects of the Manual and advised: “There are many vague ‘suggestions’ ... that are open to interpretation and cannot be contained in a covenant.” The compromise of stating specifically the relevant use and building provisions of the attached Manual in the text of the covenant was also rejected. In addition, attaching the FireSmart Manual for background context or information purposes only was deemed unacceptable because, among other reasons, the registry is “not a notice board”.

In consultation with the Registrar, we determined that the LTO will accept a reference to the FireSmart Manual in the preamble or recital paragraphs, but they are adamant that the FireSmart Manual itself cannot be attached as a Schedule and thereby become part of the operative provisions of a S. 219 Covenant

In light of the above discussions and assuming consistent application of this position by LTO, we recommend the following:

• Planners should be careful in drafting provisions that refer to the FireSmart Manual in their Official Community Plans, Zoning Bylaws and/or Development Permits. If there is anything in the FireSmart Manual that should be included as a condition in a Covenant, then the planner needs to take the time to specifically extract from the Manual the applicable restrictions or requirements intended for inclusion in the text of the covenant itself and ensure that the provisions are worded in clear and enforceable language. Alternatively, consider including them in the Development Permit, rather than a Covenant, further to section 920(7.1) of the Local Government Act.
  
  
• At the general level, local governments will need to be more vigilant about their drafting of S.219 Covenants and attached Schedules. Schedules that are not property specific or that include irrelevant or descriptive (guideline) provisions are unlikely to be accepted by the LTO (even though they may aid in the interpretation of the relevant provisions).

It appears that the attachment of professional reports that are specific to the property in question should continue to be acceptable. In particular, section 56 of the Community Charter specifically refers to “conditions specified in the report” and the geotechnical report should continue to be attached as a schedule to the s.219 Covenant required under s.56(5).

Lui Carvello, MCIP

This article was published in Fall 2008 and may be superseded by changes in the law at a later date. It is for general information only. Specific legal advice should be obtained from a qualified lawyer.