Owners have had to petition the B.C. Supreme Court to cancel the clause, which essentially limits the property to a single-family home
Vancouver Sun
Published Aug 13, 2024 • Last updated 1 hour ago • 4 minute read
The owner of a house at 3150 Chrisdale Ave. in Burnaby wants to sell to a buyer who plans to convert it into a multi-unit property. PHOTO BY NICK PROCAYLO /10105512A
A Burnaby couple is eager to sell the home they have lived in for four decades and have found a prospective buyer who is keen to convert the single-family property into a multi-unit building.
But the sale has hit a snag.
Kenneth and Kathleen Pon recently learned that the builder of the home, back in the 1970s, attached a clause to the land title that restricts the building of any dwelling on the property with first-floor space that is smaller than 1,400 square feet unless permission is given by the builder. But that builder has long since gone out of business.
So, now the Pons have had to petition the B.C. Supreme Court to cancel that clause, which essentially limits the property to holding a single-family home.
Currently, the sale and purchase of this five-bedroom, 2,928-sq.-ft. home in the Government Road area of Burnaby is under contract but is conditional on removing the “statutory building scheme” from the land title.
The buyer and seller are asking for an order to cancel the clause, which was placed on the land title, as well as 18 other homes in the same area, in the mid-1970s when a company called De Courcy Developments Ltd. subdivided and developed the land, according to the petition.
The buyer of the home, a numbered company, intends to redevelop the property at 3150 Chrisdale and build multiple housing units on the land. The petition cites new provincial legislation that has mandated municipalities to change zoning bylaws by the end of June 2024 so that areas zoned for single-family or duplex development can now allow for three units on lots less than 280 square metres and four units on lots greater than 280 square metres.
The 3150 Chrisdale lot size is 987 square metres, so a minimum of four dwelling units would be allowed under the new legislation and amended municipal bylaw, according to the claim.
“Effectively, the provincial government abolished all single-family residential zoning across the province,” said the claim.
Starting July 1, the City of Burnaby amended its zoning bylaw and mandated that all residential lots previously zoned for single- or two-family homes be allowed to accommodate three or four housing units, depending on lot size, and lots near frequent transit service to accommodate up to six housing units.
The clause on the land title, however, specifies that no dwelling can be “erected or constructed upon the said lands having a first floor area exclusive of any garage or other appurtenant building of less than 1,400 square feet,” unless the grantor, De Courcy, gives permission.
It also stipulates that “no dwelling shall be erected or constructed upon the said lands unless the specifications, the general architecture design and the site of the dwellings on said lands have been first approved in writing by an officer of the grantor, provided that such approval shall not be unreasonably withheld.”
According to the petition, De Courcy was dissolved in 1988 after failing to file annual reports, so it can’t give the consent specified on the land title.
“As De Courcy has been dissolved for 36 years, obtaining such approval is impossible. If the (clause) remains on title, in order to comply with (it), no new dwelling will ever be constructed on 3150 Chrisdale or any of the (other) properties.”
Reached by Postmedia, the sellers of the home, the Pons, and their realtor, Jason Fan, declined to comment.
One neighbour in the area, William Chan, said he bought his home, which is named in the petition as also being subject to the clause, about seven years ago.
He does not recall the clause being brought to his attention and is resigned to the area changing, but said he feels “torn between allegiance for supporting my neighbour and also not agreeing there should be multi-family housing here. This has been single-family residential for a long, long time.”
Tom Davidoff, an associate professor of real estate at the UBC Sauder School of Business, thinks it is a fascinating case.
“I don’t know the law. I see the (comment) about ‘obsolete’ and I agree it is now obsolete, but neighbours might not think it’s obsolete.”
“One could argue all property values would rise if the zoning were deleted. That’s not totally obvious, and someone could claim they lose even if their property value goes up because they have a special interest in the status quo.”
Postmedia has asked the B.C. Ministry of Housing to clarify if there is any provision in the resulting legislation that handles clauses and restrictions such as this statutory building scheme on land titles.
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