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Chapter 18. HERITAGE CONSERVATION COVENANTS AND EASEMENTS

WHAT IS IT? Like a common law restrictive covenant, a heritage conservation covenant is a promise by a landowner to protect his or her land in certain ways.

Like a common law easement, a heritage conservation easement is a right which an owner of land has to use the land of someone else in a particular way or to prevent another owner from using land in a particular way. But heritage conservation covenants and easements have features different from their common law cousins.

Heritage conservation covenants and easements are created under the Heritage Conservation Act, which is a statute aimed at the protection of human heritage or archaeological sites. The Act applies only to property having a heritage value which is defined in the Act as follows:

'[H]eritage' means of historic, architectural, archaeological, palaeontological or scenic significance to the Province or a municipality, as the case may be. 227

AN EXAMPLE. Suppose that a conservation organization wanted to protect a piece of property owned by a cooperating landowner that had several natural features including old growth forests and ancient petroglyphs. Because the land has "heritage value" — and that does not mean just built heritage, but includes the petroglyphs, and could also include the natural heritage of the old growth forest — it would be possible to register a heritage conservation covenant on the title to the property in favour of the Crown. The owner could be required, for example, to build and maintain a wooden walkway for access to viewing the petroglyphs.

Possible Applications

Heritage Conservation Covenants

If a landowner or conservation organization wanted to maintain wildlife habitat on property which was also of scenic value, a heritage conservation covenant could be useful. Or, if a conservation organization wanted to invest money in a landowner's land — to restore it, for example — it might be possible to use a heritage conservation covenant to be sure the land would always be properly maintained.

Provided that the property has heritage significance as defined in the Act, a heritage conservation covenant may be useful when the restrictions of common law or other statutory tools could defeat the intent of the landowner and the conservation organization.

In certain circumstances, a conservation organization might be able to use a heritage conservation covenant if

• the group and the landowner wanted to protect the land with a covenant, but
• the group could not use a common law covenant because there was no servient tenement or because it wanted to include positive obligations on the landowner in the covenant, and
• the group did not want to use a section 215 covenant because both parties wanted the covenant to be held by a conservation organization rather than by the government.

Since a heritage conservation covenant can only be used for conservation purposes if the interest that is being protected is a heritage purpose under the Heritage Conservation Act, any property having scenic value as part of its conservation value could qualify. 228 Initially, it must be granted to the Crown, the British Columbia Heritage Trust, 229 or a municipal council.

Heritage conservation covenants offer a unique way for conservation organizations to work together with municipal governments. The conservation organization could agree with a local municipality that the organization would negotiate the provisions of a covenant with a landowner, the municipality would accept the covenant under the Heritage Conservation Act, and then the municipality would assign or transfer the covenant to the conservation organization. 230 The conservation organization would take responsibility for the monitoring and enforcement of the covenant over time.

The municipality would be able to participate in the greening of the community without much cost to it. Its contribution could be as minimal as accepting and then assigning a heritage conservation covenant or easement; or it could assist in the protection process by lending legal or environmental expertise, or by paying the fees associated with getting the land assessed and the covenants drawn and filed.

The result of such arrangements over time may not only be the protection of private land, but also the raising of the environmental awareness of the local government.

Heritage Conservation Easements

Heritage conservation easements are available in the same circumstances and have the same features as heritage conservation covenants. They could also be used where the restrictions of common law or statutory rights of way are barriers and land has heritage significance.

LEGAL BASIS. A heritage conservation covenant or easement is entirely a creature of statute, so it is available for ecological purposes only if land has heritage value as defined in the Heritage Conservation Act. This includes scenic value, but would not include protecting our natural heritage for its own sake.

Compare a common law restrictive covenant with a heritage conservation covenant. 231

A common law restrictive covenant 232

• can be created on any piece of property,
• can contain only negative obligations on the landowner, that is, things the landowner cannot do with the land, rather than things he or she must do with respect to the land,
• can affect part or all of a piece of land,
• must benefit an adjoining piece of property (the dominant tenement),
• can be registered against the landowner's title and run with the land,
• cannot be assigned by the covenant holder separate from the land which it owns, and
• cannot be held by a conservation organization unless it owns an adjoining piece of property which is benefited by the restrictive covenant.

A heritage conservation covenant

• can be created only on property which has heritage significance,
• can contain both negative and positive obligations on the landowner,
• can affect part or all of a piece of land,
• is written not in favour of neighbouring land, but in favour of the Crown, a municipality, or the British Columbia Heritage Trust,
• can be registered against the landowner's title and run with the land,
• can be assigned by the original covenant holder to any person, whether or not that person is a landowner, and
• can be held by a conservation organization, whether or not it owns land, if the heritage conservation covenant is assigned to it by the original covenant holder.

Heritage conservation easements have the same legal features as heritage conservation covenants.

In sum, a heritage conservation covenant or easement is a promise made by a landowner to the provincial Crown, a municipality, or the British Columbia Heritage Trust, to do or not do specific things in order to preserve the heritage of the property. The heritage conservation covenant or easement can be assigned to any person, including an incorporated conservation organization.

HOW IS IT CREATED? A heritage conservation covenant is created by a written document describing the land, the nature of the covenant, and the covenant holder, 233 which is filed in the land title office against the property of the landowner.

If a heritage conservation covenant is to be held by a conservation organization, there is a second step. The original covenant holder must assign the covenant to the conservation organization. That is done by a written assignment which is also registered in the land title office against the property of the landowner.

HOW LONG CAN IT LAST? A heritage conservation covenant can be written to last indefinitely, or for some shorter time. 234

WHO MONITORS AND MAINTAINS THE LAND? The responsibilities of the landowner, on the one hand, and the covenant or easement holder, on the other, are set out in the document creating the covenant.

HOW CAN THE LAND BE PROTECTED OVER TIME? The covenant can specify what is to happen in case of a breach of the covenant. A very effective protection is for the covenant to contain a provision that if the landowner breaches the covenant, the covenant holder can file a lis pendens Footnote: (235] -- 235. A lis pendens is a notice on the title to land that a legal action is pending. A lis pendens can also be applied to property where there is a legal dispute regarding other interests, such as restrictive covenants, section 215 covenants, and profits à prendre. End of Footnote]] z on the property until the matter is resolved. In practice this means that the landowner cannot easily get financing or dispose of the property until any dispute with the covenant holder over a breach of the covenant is resolved.

Section 28 of the Heritage Conservation Act also provides for enforcement of the Act by the Crown or a municipality. If a person alters property in contravention of the Act that person can be ordered to restore it and on failure to do so can be billed for the restoration work.

HOW IS IT TERMINATED? A heritage conservation covenant is terminated by the covenant holder giving a release — a written termination of the covenant — to the landowner, who then files it in the land title office against the title of the property. A special land title office form is required.

It can also be terminated under section 31 of the Property Law Act. 236

Advantages

for the conservation organization

1. A heritage conservation covenant or easement runs with the land, binding future owners.
2. Unless the conservation organization owns property adjoining the land to be protected, the Heritage Conservation Act is currently the only route available to most conservation organizations interested in holding covenants or easements on property. 237
3. A heritage conservation covenant can be negotiated with the landowner so that the owner can continue to use the land as he or she would otherwise have done, while protecting it from environmental degradation in the future according to the terms of the covenant.
4. A heritage conservation covenant can include positive obligations to maintain or restore land.
5. The acquisition of a heritage conservation covenant is much cheaper than the acquisition of title to the property.
6. A conservation organization can use heritage conservation covenants effectively to work hand in hand with a municipal government.
7. Government funds may be available to support the acquisition and maintenance of a covenant on property, through the British Columbia Heritage Trust, the provincial Crown or a municipality.

for the landowner

1. A heritage conservation covenant or easement runs with the land, binding future owners.
2. A heritage conservation covenant can be structured so that the owner can continue to use the land as he or she would otherwise have done, while protecting it according to the terms of the covenant.
3. Government funds may be available to support the maintenance of a covenant property, through the British Columbia Heritage Trust, the provincial Crown or a municipality.

Disadvantages

for the conservation organization

1. Use of the heritage conservation covenant depends on the willingness of a municipality, the British Columbia Heritage Trust, or the Crown in right of the Province to cooperate with the conservation organization.
2. Not all conservation purposes fit within the Heritage Conservation Act.
3. Legal fees may be high to draft a novel heritage conservation covenant or easement, unless the parties are able to find legal assistance on a pro bono basis.

for the landowner

1. As stated above, use of the heritage conservation covenant depends on the willingness of a municipality, the British Columbia Heritage Trust, or the Crown in right of the Province to cooperate with the conservation organization.
2. As stated above, not all conservation purposes fit within the Heritage Conservation Act.
3. As stated above, legal fees may be high to draft a novel heritage conservation covenant or easement, unless the parties are able to find legal assistance on a pro bono basis.

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227. Heritage Conservation Act, R.S.B.C. 1979, c. 165, s. 1.

228. Because the Heritage Conservation Act defines heritage as "... of scenic significance to the Province or a municipality" it is arguable that the property need not be currently of scenic significance, but could be, for example, land which was to be rehabilitated. It is also possible that a heritage conservation covenant could be granted for heritage purposes even though it is not over the heritage land itself, but is used to restrict development around a heritage village.

229. The British Columbia Heritage Trust is a body created by the Heritage Conservation Act.

230. Thanks to Bill Huot, Heritage Planner with the Heritage Conservation Branch, Ministry of Tourism and Ministry Responsible for Culture, for this observation. Municipal governments have had much more experience with conservation of private property in the context of heritage programs. In that regard, there are two excellent resources for municipal governments which are considering heritage programs, that would also be useful for conservation organizations wanting to persuade municipal governments to participate in a conservation program. One report describes the elements of a successful heritage management program, and some choices for local governments involving more, or less, resources and staff time. See British Columbia, Province of British Columbia, Heritage Conservation Branch, Planning: A Guide for Local Government (Victoria: Province of British Columbia, 1992). A second report describes and evaluates the different incentives that local governments can offer landowners to achieve heritage goals. The incentives include entitlement grants, loans, property tax exemptions or freezes, and zoning concessions: ideas which can have a direct application in the conservation context. See British Columbia, Ministry of Municipal Affairs, Recreation and Culture, Carrots: Methods for Local Government to Give Assistance to Heritage Property Owners in British Columbia (Draft) (Victoria: Queen's Printer, 1991).

231. New legislation has been recommended which could enable conservation organizations to enter into conservation covenants, directly with landowners, under the Land Title Act. If this legislation is enacted it is unlikely that heritage conservation covenants would be the mechanism of choice. See Chapter 23 on Conservation Covenants.

232. See Chapter 14 on Restrictive Covenants, for a detailed discussion of this topic.

233. The first beneficiary of the covenant has to be the Crown in right of the Province, the British Columbia Heritage Trust, or a municipal council.

234. Because a heritage conservation covenant vests immediately it does not offend the rule against perpetuities.

236. See Chapter 14 on Restrictive Covenants, for a discussion of this procedure.

237. An exception is contained in section 214 of the Land Title Act, which permits statutory rights of way to be held by designated organizations. See Chapter 19 on Statutory Rights of Way.

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