Striking racist language from West Vancouver land covenants would cost $1 million, report estimates

Part of a restrictive land covenant for a West Vancouver, B.C., property is seen in an image posted on Change.org. (Michele Tung)

Two years after West Vancouver vowed to address explicitly racist language in decades-old land covenants, staff have recommended the district take almost no action.

In a long-awaited report being presented at Monday's council meeting, staff caution the district would incur "substantial costs," estimated at more than $1 million, trying to address the discriminatory covenants at the municipal level. Even then, the process would only result in the offending language being crossed out, not removed.

Instead, the report suggests that West Vancouver take the issue to the Union of B.C. Municipalities' 2022 convention, and propose a resolution asking the province to lead the charge in weeding out the covenants and having racist clauses properly removed.

Some of those clauses, which are no longer enforceable, once barred anyone of "African or Asiatic descent" from living on a particular property in the district, except as a servant.

PUSH FOR ACCOUNTABILITY

A number of local homeowners argue any developers that were involved in obtaining the covenants back in the mid-20th century should help pay for their removal – including British Pacific Properties Ltd., which is named among the parties on some of the documents.

In giving his opinion on the situation, West Vancouver resident Neil Jensen compared racist covenants to toxic waste, and argued any company that leaves either in a community has a responsibility to clean them up.

"I don't really think it's a taxpayer duty," Jensen said. "British Pacific Properties is in a unique situation – they still exist, they're still around and they could easily clean up their own toxic waste."

In a statement, British Pacific Properties president Geoff Croll told CTV News the developer is "exploring what we can do proactively to remove the offensive language from restrictive covenants on title of lots historically developed by the company."

"These offensive, restrictive covenants are found on properties throughout the province and, although they are void and unenforceable, they have no place in our society," Croll said.

"We believe a cooperative approach between BPP, the District of West Vancouver and the Land Title Office will be required to address this issue in a timely way for affected lands in the British Properties."

The developer did not respond when asked whether it has records of how many of the homes it built in West Vancouver have racist covenants attached.

A DISTURBING HISTORY

Though the B.C. government rendered discriminatory clauses unenforceable through legislation in 1978, the language remains on the record, and some non-white residents who have since moved onto the properties consider the covenants an upsetting reminder of their community's overtly racist history.

The guarantee that one would not be surrounded by any non-white homeowners was once a selling point in some neighbourhoods.

Michele Tung, who previously shared her experience of discovering a racist covenant on her home, said it was disturbing and disheartening, particularly as she was asked to submit the document as part of a West Vancouver building application.

"It feels awful," Tung told CTV News at the time. "I don't want our children's children, or someone else's children to one day have to see this language."

THE COST OF ACTION

West Vancouver's staff report notes there are more than 17,300 parcels of land in the district, and that the Land Title and Survey Authority charges a $10 fee for pulling the title on each, along with another $16 fee per covenant.

When factoring those fees and the staffing hours required to review the documents for racist language, the district estimates the cost of proactively seeking them out at the municipal level would "likely total in excess of $1,000,000."

A request to the LTSA to waive search and retrieval fees was rejected, according to the report.

The district also noted the most that could be achieved would be having the LTSA strike through the discriminatory language.

Under the Torrens system of land registration used in the province, the registrar "must maintain a complete and unabridged record of dealings with land since the title’s origin and hence is not authorized to alter land title documents," according to the LTSA website.

West Vancouver staff argued the province should both bear the cost and lead the effort, proposing the government grant the LTSA the power to "delete, rather than merely strikethrough, any occurrences of discriminatory language."

COMPLICATED SOLUTIONS

Part of the challenge with updating or changing the covenants is that they also contain non-racist clauses that remain enforceable, and which previous homeowners in a given subdivision once agreed upon for the benefit of the neighbourhood.

"Many of the things in here go to more general uses of the land," said Ron Usher, a lawyer with the Society of Notaries Public of B.C. "Controlling the growth of vegetation, controlling a lot of what each owner could do."

Under the current system, there is a framework for getting the covenants properly updated, but Usher said doing so requires the consent of each property owner within a subdivision, along with the municipality and potentially even the mortgage lenders. That could be a considerable challenge on its own.

"Would anybody push back? I doubt it," Usher said.

"But there are many reasons, out of a large number of owners, why someone may not be available or may not be willing to release the covenant, reasons that could be completely unrelated to the discriminatory clause."

Figuring out a more straightforward process for updating the covenants will be up to government, Usher added, and that might require changes at the provincial level.

"I've long advocated for some kind of regulatory process, some kind of hearing body that could deal with the release of obsolete and unnecessary titles and charges on titles," he said. "I think that could be helpful for all kinds of things that are not within the scope of the registrar of land title and also don't require the courts."

There is also some hope that technology will help turn the page on discriminatory covenants once and for all. The North Shore News has reported the LTSA has paired with Simon Fraser University on a project using artificial intelligence to scan covenants from across B.C. for racist clauses, so there is at least a clear picture of how many exist and to which properties they belong.