Condo Covenants

Dear Rebecca
I am looking for a downsizing type of property either a condo or townhome. I was wondering about restrictive covenants and am hoping to find an “Adult Only” community. Would this be specified in the restrictive covenants? What kinds of things are in these covenants? Can they be negotiated when purchasing?
Brian

Dear Brian
Restrictive covenants are limitations on the use of land which are registered on the title. These restrictions are said to “run with the land”, in other word these covenants are attached to the title of the property and continue to remain in place if it is sold. When you purchase a property with restrictive covenants you agree to abide by these restrictions. These covenants, if not provided to you when making your original offer to purchase, will be discovered by your lawyer when they research the title on your behalf.
In the United States “Adult Only” communities are legal however in Canada they are against the Charter of Rights and Freedoms.. Any restriction that prohibits the occupancy of the property on a basis of age, race or religion will not be enforceable. Covenants may not be contrary to public interest. In the past these types of restrictions were registered, however, they have been struck down by federal statute and if discovered to be registered on title would not be enforceable. This type of restriction based on age, religion or race may not be integrated into an “Agreement of Purchase and Sale” as it would render the contract void. Any development with this type of restriction in the bylaws would not be able to enforce such a restriction.
Restrictive covenants are always set up as “negative in nature” meaning they are things that you are not allowed to do on the property. A few common examples of covenants that you may encounter in Fredericton are; you cannot run a home business or daycare, you may not be allowed to keep more than 2 dogs, you may not be able to build a fence or park an RV. When covenants are registered they must be reasonable, and be beneficial or enhance the value of the land of the covenantee. Restrictive covenants are found in most new subdivisions however not all subdivisions have restrictive covenants. Some subdivisions and townhome developments do not have the covenants registered on the title, however, have integrated these same types of restrictions into the “Agreement of Purchase and Sale”. Restrictive covenants registered on title cannot be negotiated during the purchase of a property. In order for a restrictive covenant to change it would have to be by a court order.
It is prudent to review the restrictive covenants prior to the purchase of a property so that you know that you will be able to comply with the covenants. Generally, well thought out restrictive covenants will enhance or help to sustain property values as the integrity and intended use of the property will be maintained.