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Statutory Building Schemes

Statutory Building Schemes

When Is a Statutory Building Scheme No Longer Enforceable? Unfortunately, the answer to that question is, “it depends”.

A statutory building scheme is a document that is registered on title to properties within a subdivision imposing terms that limit what a homeowner can do with his or her property. Statutory building schemes can be very broad and include an array of restrictions. Some common examples include restrictions on housing livestock, maintaining a gravel driveway, or storing boats on properties. Statutory building schemes are common in the Okanagan and most developers register them against all properties within a subdivision with a view to control and maintain the ‘character’ of a neighbourhood based on ‘community interest’ and to enhance the marketability of those properties.

A statutory building scheme will remain on the title to a property forever unless it is discharged by court order. This means the restrictions that are contained in it could apply for generations and possibly restrict what you do with your property for years to come.

What if Your Neighbours Aren’t Abiding by the Statutory Building Scheme?

The question becomes, “What can I do if I abide by the restrictions in a statutory building scheme, but others in my neighbourhood do not?”

Let’s use an example where boat storage is restricted on properties in your subdivision, however, most of your neighbours ignore this restriction and continue to store their boats on their driveways. Should you wish to enforce the statutory building scheme and seek a court order to require all your neighbours to remove their boats, you likely will not be successful. BC courts have consistently applied the principle of ‘acquiescence’ to these cases recognizing that the character of a neighbourhood can change, and when that happens, that restriction in a statutory building scheme may no longer be in the interest of the community and consequently may not be enforceable.

A Neighbourhood with a statutory building scheme

For a court to find there has been ‘acquiescence’, there needs to be a gradual change to the neighbourhood with a significant number of people storing their boats on their property. If a neighbour wants to enforce the restriction in the statutory building scheme early on when there were only a limited number of people doing this, they may be successful; however, if no one challenges it after several years have passed, then the BC courts will typically interpret that to mean that everyone in the neighbourhood was agreeable with the change and the restriction should no longer be enforceable.

While the example in this article pertains to restrictions on boat storage, the principle of ‘acquiescence’ could change the character of a neighbourhood and apply to almost anything (i.e., fence height, exterior paint colour, or materials used for home construction).

How Statutory Building Schemes Could Affect You

If you are looking at purchasing a property, or if you own a property that has a statutory building scheme registered on title, it is prudent to read through this document to see what restrictions it contains, and then balance that by considering the age of the community and a walk around to see if your neighbours are complying with it. If your neighbours are in breach of the statutory building scheme and their non-compliance has been long-standing, the principle of ‘acquiescence’ may result in the courts refusing to enforce the restriction in question. Alternatively, if you move into a newer subdivision and one or relatively few home-owners are breaching the restrictions set out in the statutory building scheme, you are more likely to be successful in seeking the assistance from the courts.

If you have questions about a statutory building scheme or anything else in relation to your property reach out to Alison McLeod. This article is not to be taken as legal advice, please consult with legal counsel for your specific matter.

Alison McLeod is a real estate and business lawyer at Doak Shirreff Lawyers LLP. Click here to connect with Alison. She can be reached at [email protected] or 250.979.2561 or you can follow her on Linked In here.