By Trina Brubaker
The “investigation” period is one of the most important stages in purchasing property. This is the time between your offer being accepted and removal of the conditions you included in your offer. Common conditions include approval for financing and insurance, and an inspection of the property. These conditions are often referred to as “subjects” as your offer is subject to those conditions being satisfied.
Another important condition involves reviewing and approval of a current title search for the property and copies of the non-financial charges that will remain on title after your purchase completes.
A title search discloses the name of the registered owner of the property, the legal description or the property, legal notations, and charges that are registered against title to the property. The charges will include any financial charges, such as mortgages, liens, judgments, and certificates of pending litigation, which will be removed when the property is transferred.
The title search will also disclose non-financial charges that will remain on title after the property is transferred. Non-financial charges can include covenants, easements, statutory buildings schemes, and exceptions, reservations and undersurface rights.
A Covenant may restrict your use of the property. A Restrictive Covenant will be tied to another parcel of property, which receives the benefit of the charge. As an example, a Restrictive Covenant could restrict the height of buildings and trees on your property, or the use of your property.
A Section 219 Covenant is registered in favor of the provincial or local government, and is not tied to another piece of property. These covenants are common in new real estate developments, and can be used to protect sensitive areas, such as those prone to flooding or on hillsides, by restricting where and how owners can build. Section 219 Covenants are often used to impose boundaries relating to water, setting out the required distance between any buildings and water located on the property.
An Easement will likely impose limitations or restrictions on what you can do with the area of your property that the Easement covers. It will be tied to another parcel of property, which will receive the benefit of the Easement.
Easements are commonly used to provide access to from a parcel that is not adjacent to a roadway. The Easement area will be defined in the charge, which will grant the neighbouring property the right to cross over the Easement area to access their property. If you own the property over which the Easement is registered, you may be restricted from using or altering the Easement Area in any way that would interfere with the ability of the other owner to use the Easement to access their property.
If the Easement is registered over your property, it will appear on title and will be granting a benefit to another property owner. If your property is receiving the benefit of an Easement, it will appear as a legal notations.
Statutory Right of Way
A Statutory Right of Way can allows the provincial or local government, or utility providers access to your property to construct or provide for transmission of utilities, maintenance of sidewalks, and other such services. Unlike an easement, a Statutory Right of Way is not tied to another lot.
Statutory Buildings Schemes
Statutory Building Schemes are registered by developers for the purpose of maintaining the general design or layout of a development. They can restrict the height and size of buildings, building materials, landscaping, the parking of recreational vehicles, fence heights, and positioning of clotheslines.
Land Use Contracts
Land Use Contracts were contracts between an original developer and local government, governing the development and subsequent use of land. While they can no longer be registered against title, existing Land Use Contracts that remain on titles can still impact the use of that parcel of land.
Exceptions, Reservations and Undersurface Rights
Exceptions, Reservations and Undersurface Rights are used to preserve the right to minerals or timber when property is transferred. Ownership of the land transfers, but the right to minerals, or other elements as set out in the charge, remain with the party that holds the charge.
You should review a current title search and copies of all non-financial charges prior to removing this condition from your offer. This is particularly important if you are purchasing a lot with the intention of building a new home.Upon removing this condition, you are agreeing to receive title with all of the non-financial charges, and are accepting any restrictions that may be imposed by the charges.