1993
NOTE: This is an example for educational purposes only. It is not to be used as a legal precedent. For legal advice regarding an actual situation, please consult a lawyer.
TERMS OF INSTRUMENT - PART 2
SECTION 215 CONSERVATION COVENANT
This Agreement dated for reference October 1, 1993 is BETWEEN: ("Covenantor")
AND:
("Covenantee")
GIVEN THAT:
A. The Covenantor is the registered owner of the land on described in this Agreement;
B. The Covenantor wishes to grant a covenant under s. 215 of the Land Title Act (British Columbia), and a statutory right of way under s. 214 of the Land Title Act, in order to protect and conserve the land described in this Agreement,
C. The Covenantee, as a Crown agency, is authorized to accept covenants under section 215 of the Land Title Act and to accept statutory rights of way under section 214 of the Land Title Act;
D. The statutory right of way granted by this agreement is necessary for the operation and maintenance of the Covenantee's undertaking,
This Agreement is evidence that in consideration of the payment of $2.00 by the Covenantee to the Covenantor (the receipt and sufficiency of which is acknowledged by the Covenantor), and in consideration of the promises exchanged below, the Covenantor covenants and agrees as follows with the Covenantee in accordance with ss. 214 and 215 of the Land Title Act (British Columbia):
1. The Covenantor and the Covenantee agree that the intent of this Agreement is to ensure that:
(a) the Creekside Zone is protected, preserved and kept in its natural state as of the reference date of this Agreement, and
(b) trees on the Land are dealt with only as expressly permitted by this Agreement,
and the Covenantor and the Covenantee agree that this Agreement is to be interpreted, performed and applied accordingly.
2. In this Agreement
(a) "Covenantee" means and its elected and appointed officials, employees, agents and contractors,
(b) "Creekside Zone" means that part of the Land which is contained within heavy black line on the Explanatory Plan of Covenant Over Part of , certified correct by _________________, B.C.L.S. on _______________________, 1993, and deposited in the Land Title Office under number ,
(c) "enactment" has the meaning given in the Interpretation Act (British Columbia),
(d) "Land" means the land on legally described as
(e) "Covenantor" means and that person's successors in title, successors, heirs, executors and administrators, and
(f) "Remainder" means that part of the Land outside the Creekside Zone.
3. The Covenantor covenants and agrees with the Covenantee that the Creekside Zone must be protected, preserved and conserved, including by strictly adhering to the following non-exhaustive conditions:
(a) no component of the land within the Creekside Zone, including soil, gravel or rock, may be disturbed, explored for minerals, moved, or removed from the Creekside Zone;
(b) subject to sections 6 and 7, no living or dead tree, which in this section includes bushes and shrubs, or other plant life on the Creekside Zone, may be trimmed, pruned, cut down, damaged, destroyed, moved, harvested or removed from the Creekside Zone;
(c) no herbicides, insecticides or pesticides may be applied or introduced on or to the Creekside Zone;
(d) there may be no alteration or interference with the hydrology of the Creekside Zone, unless the Covenantor receives the prior written consent of the Covenantee;
(e) the Creekside Zone must not be polluted or contaminated by any matter;
(f) there may be no interference with, or alteration of, any wetland or body of water in the Creekside Zone;
(g) no fixtures or improvements, including buildings or other structures, may be built, affixed or placed on the Creekside Zone;
(h) no road, trail, path or other way may be laid out or constructed in the Creekside Zone;
(i) without limiting section 4(e), no fill, soil, rock, rubbish, ashes, garbage, waste or other material foreign to the Creekside Zone may be deposited in or on the Creekside Zone;
(j) no hunting, fishing, commercial gathering or grazing of domesticated animals may be carried out in the Creekside Zone; and
(k) no other acts may be carried out on or in respect of the Creekside Zone which, in the opinion of the Covenantee, acting reasonably, may have a detrimental impact on the Creekside Zone.
4. Despite section 3, the Covenantee agrees that activity necessary for fish or wildlife habitat protection, preservation, conservation, restoration or enhancement may be undertaken in the Creekside Zone, but only with the prior written consent of the Covenantee.
5. Given that the Remainder is immediately adjacent to the Creekside Zone, the Covenantor must use and occupy the Remainder in an ecologically sensitive fashion so that the Creekside Zone is protected, preserved and conserved in accordance with section 3. Ecologically sensitive treatment of the Remainder includes not doing anything described in section 3(a) to (k) or the Remainder to an extent or degree that would have an adverse impact on the Creekside Zone judged in light of the intent and terms of section 3. The intent of this section is to ensure that the Covenantor uses and occupies the Remainder recognizing that the natural processes on the Remainder and on the Creekside Zone are interconnected. This section does not limit or affect sections 3, 4 or 6.
6. The Covenantor covenants and agrees with the Covenantee that without the prior written consent of the Covenantee, in its sole discretion, no living or dead tree on the Remainder may be trimmed, pruned, cut down, damaged, destroyed, moved or removed from the Remainder except
(a) subject to all applicable enactments, to clear a building site for one single family dwelling on the Remainder and then only with the prior written consent of the Covenantee and in accordance with such reasonable conditions as the Covenantee may require, acting reasonably, or
(b) to prune any tree to the extent necessary to eliminate any interference by that tree with any electric power line or any telecommunications line or pole.
7. Despite the rest of this Agreement,
(a) if any living or dead tree on the Land poses a threat to the safety of those on or immediately adjacent to the Land by its falling or fire, that tree may be cut down or trimmed with the prior written consent of the Covenantee, not to be unreasonably withheld, so as to remove the risk, but the Covenantor and the Covenantee agree that unless it would, in the Covenantee's reasonable opinion, constitute a fire hazard, the cut tree or trimmings must be left on the Land so that natural processes can occur, and
(b) the Covenantor may cut down or trim any living or dead tree on the Land without the consent of the Covenantee in an emergency situation, such as a fire or imminent threat to human safety, but the Covenantor must promptly advise the Covenantee of the Covenantor's actions.
8. In accordance with s. 214 of the Land Title Act, the Covenantor grants to the Covenantee the statutory right of way for the Covenantee to enter, leave and be on the Land, in order to inspect the Land and monitor performance of this Agreement by the Covenantor. The Covenantor agrees that the Covenantee, its employees, agents and contractors may remove from the Land samples of flora, fauna, soil and water necessary for tests to be conducted in connection with monitoring of performance of this Agreement by the Covenantor.
9. As security for the performance of the Covenantor's obligations under this Agreement, by this section the Covenantor grants to the Covenantee a perpetual rent charge against the Land, ranking prior to all other financial charges and encumbrances registered against the Land. This rent charge secures payment to the Covenantee by the Covenantor of $25,000.00. The Covenantee may enforce this rent charge only if the Covenantor is in breach of any provision of this Agreement and has not cured the breach, or is not diligently and effectively proceeding to cure the breach, within 10 days after notice to do so is given to the Covenantor by the Covenantee. If the breach is not cured within 30 days after the notice to cure was given by the Covenantee, the Covenantee may enforce this rent charge. The Covenantee may enforce this rent charge by any combination, or all, of:
(a) an action against the Covenantor for the money secured by the rent charge,
(b) distraint against the Land to the extent of the money secured by the rent charge,
(c) an action for appointment of a receiver in respect of the Land, or
(d) an order for its sale.
This rent charge is created both under section 215(2)(b) of the Land Title Act (British Columbia) as an integral part of the statutory covenant created by this Agreement and as a fee simple rent charge at common law. Enforcement of this rent charge by the Covenantee does not limit, or prevent the Covenantee from enforcing, any other remedy or right the Covenantee may have against the Covenantor.
10. If the Covenantor has breached any of its obligations under this Agreement, the Covenantee may in its sole discretion enter the Land and perform the obligation at the expense of the Covenantor. The cost to the Covenantee of performing the obligation is a debt due and owing by the Covenantor to the Covenantee, with interest accruing on that debt at the annual rate of interest that is equal to 3% above the annual rate prime rate of interest charged from time to time by the Bank of Montreal, 595 Burrard Street, Vancouver, being the annual rate of interest charged by it for Canadian dollar demand commercial loans extended to its most credit-worthy customers. The Covenantee may exercise its rights under this section only if the Covenantor has not cured the breach in question within 45 days after notice to do so is given to the Covenantor by the Covenantee. Exercise by the Covenantee of its rights under this section does not limit, or prevent the Covenantee from enforcing, any other remedy or right the Covenantee may have against the Covenantor.
11. The Covenantor agrees that the Covenantee is entitled to obtain an order for specific performance or a prohibitory or mandatory injunction in respect of any breach by the Covenantor of this Agreement. The Covenantor agrees that this section is reasonable given the public interest in the need for effective protection of the Land from breaches of this Agreement.
12. The Covenantor is only liable for breaches of this Agreement caused or contributed to by the Covenantor or which the Covenantor permits or allows. The Covenantor is not liable for the consequences of the requirements of any enactment or law or any order, directive, ruling or government action thereunder. The Covenantor is liable only for breaches which occur while the Covenantor is the registered owner of any of the Land.
13. The Covenantor irrevocably releases the Covenantee from, and waives, any claim, right, remedy, action, cause of action, loss, damage, expense or liability which the Covenantor may have against any or all of them in respect of this Agreement or its performance or breach. The Covenantor must indemnify and hold the Covenantee harmless from and against any claim, right, remedy, action, cause of action, loss, damage, expense or liability incurred, suffered or asserted by any of them or anyone else in connection with performance of this Agreement by the Covenantor or its breach by the Covenantor or connected with any negligence or other legal wrong of the Covenantor. The Covenantor agrees with the Covenantee that for the purposes of the Occupier's Liability Act (British Columbia), all other enactments and the common law, the Covenantor is, as between the Covenantor and the Covenantee, the sole occupier of the Land.
14. The rights given to the Covenantee by this Agreement are permissive only and nothing in this Agreement imposes any duty of any kind on the Covenantee to anyone or obliges the Covenantee to perform any act or to incur any expense for any of the purposes set out in this Agreement. Where the Covenantee is required or permitted by this Agreement to form an opinion, exercise a discretion, make a determination or give its consent, the Covenantor agrees that the Covenantee is under no public law duty of fairness or natural justice in that regard and agrees that the Covenantee may do any of those things in the same manner as if it were a private party and not a public body.
15. The parties agree that this agreement creates only contractual obligations and obligations arising out of the nature of this document as a deed. The parties agree that no tort obligations or liabilities of any kind exist between the parties in connection with the performance or any default under or in respect of this agreement. The intent of this section is to exclude tort liability of any kind any to limit the parties to their rights and remedies under the Law of Contract and the law pertaining to deeds under seal.
16. This Agreement does not
(a) affect or limit the discretion, rights, duties or powers of the Covenantee under any enactment or at common law, including in relation to the use or subdivision of the Land,
(b) affect or limit any enactment relating to the use or subdivision of the Land, or
(c) relieve the Covenantor from complying with any enactment, including in relation to the use or subdivision of the Land.
17. Unless it is otherwise expressly provided in this Agreement, every obligation and covenant of the Covenantor in this Agreement constitutes a personal covenant and a covenant granted under s. 215 of the Land Title Act (British Columbia) in respect of the Land. This Agreement burdens the Land and runs with it and binds the successors in title to the Land. This Agreement burdens and charges all of the Land and any parcel into which it is subdivided by any means and any parcel into which the Land is consolidated.
18. The Covenantor must give written notice to the Covenantee of the name and address of any purchaser of the Land before the transfer to the purchaser is complete.
19. Nothing in this Agreement of itself affects any obligation of the Covenantor to pay all property taxes, rates, charges and levies payable under any enactment on or in respect of the Land.
20. The Covenantor agrees that this Agreement is intended to be perpetual in order to protect the Land as set out in this Agreement. In view of the importance of protecting the Land for ecological and other reasons, the Covenantor agrees not to seek a court order modifying, discharging or extinguishing this Agreement under the Property Law Act (British Columbia), any successor to that enactment, any other enactment or the common law.
21. The Covenantor agrees to do everything necessary at the Covenantor's expense to ensure that this Agreement is registered against title to the Land with priority over all financial charges, liens and encumbrances registered or pending at the time of application for registration of this Agreement, including the mortgage and the assignment of rents in favour of , registered under numbers , respectively.
22. An alleged waiver of any breach of this Agreement is effective only if it is an express waiver in writing of the breach. A waiver of a breach of this Agreement does not operate as a waiver of any other breach of this Agreement.
23. If any part of this Agreement is held to be invalid, illegal or unenforceable by a court having the jurisdiction to do so, that part is to be considered to have been severed from the rest of this Agreement and the rest of this Agreement remains in force unaffected by that holding or by the severance of that part.
24. This Agreement is the entire agreement between the parties regarding its subject and it terminates and supersedes all other agreements and arrangements regarding its subject.
25. This Agreement binds the parties to it and their respective successors, heirs, executors and administrators.
26. By executing and delivering this Agreement each of the parties intends to create both a contract and a deed executed and delivered under seal.
As evidence of their agreement to be bound by the above terms, the parties each have executed and delivered this Agreement under seal by executing Part I of the Land Title Act Form C to which this Agreement is attached and which forms part of this Agreement.
courtesy of David Loukidelis, Lidstone, Young and Anderson
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Section 215 Covenant - Conservation
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