What the Heck is a Restrictive Covenant? (March 14, 2018)

What the Heck is a Restrictive Covenant? James Carruthers' Legacy

If you frequent Urban Planning circles or local new's headlines, you've probably heard the term "Restrictive Covenant" come up, especially with Edmonton's new focus on infill.  If you're from a small town, like me, with no exposure to development-law whatsoever, you’ve probably never heard of it.

Edmonton neighbourhoods facing infill development have taken different routes to protect the character of their community.  Some residents will appeal to the SDAB, participate in public hearings, or complain to their councillor. But one “strategy” is something called a Restrictive Covenant. A Restrictive Covenant, according to dictionary.com, is: “a covenant imposing a restriction on the use of land so that the value and enjoyment of adjoining land will be preserved.”

Covenants are conditions/restrictions that go above your usual Land Use Bylaw and are attached to the Land Title of a property. They are regulated provincially. This means that even if a piece of property is sold or altered significantly, the Restrictive Covenant still applies.

So how does this work with Residential Infill?

Neighbourhoods and their residents can make restrictive covenants on their properties to prevent lot splitting, impose height or setback restrictions, or state that only single-family homes can exist on the property. We see this occurring in Edmonton neighbourhoods like Hardisty and Rio Terrace. Residents are putting restrictive covenants on their lots. These residents are requesting that their neighbours also adopt a restrictive covenant on their lot so that no significant change can occur within the area.

But where did they learn this from? Carruthers Caveat.

Old James Carruthers was a farmer and grain exporter. Carruthers and his family and friends lived and used the land he owned west of Edmonton in the late 1800s early 1900s. You may know these lands today as Old Glenora. Here’s a nice map showing you where we are talking about: (Map not available)

With the building of the Groat Road bridge, he could now sell his land to the City. And boy, he had a vision. He only wanted rich folk on his land, with only single-family homes and wide expansive lots. Here are some of my favourite things he wrote in to the caveat.

1.    " No building or any kind other than a private dwelling house […] shall be erected upon the said land, and no trade or business of any kind shall be carried on upon the said land, and no part of the said land [...] shall be used as a place of public entertainment, amusement, or resort." [In other words… houses ONLY!]

2.     Houses made must cost at minimum either $3000, $4000 or $5000 dollars depending on where they are. (A good chunk of money to spend on a house back then… And that is just the minimum!)

3.     No temporary buildings of any kind shall at any time be erected.

So, what was the outcome? Well, many rich folk did settle in the area due to it being just far enough away from the hustle and bustle of Edmonton and the warehouse district, but just close enough to the Alberta Legislature Building. It also gave off vibes of exclusivity due to the Government House in the neighbourhood. It is your traditional garden suburb, and it is absolutely beautiful:

But it was an incredibly classist caveat, and to this day, it doesn’t allow Glenora to change. In fact, if you are a Glenora resident who would like to add a Garden Suite for your Grandma or a Basement Suite for a little bit of extra income, good luck- because you are probably going to be subject to the Alberta Court of Appeal (like in this case from 2014). Why? Because Carruthers didn’t want “servants” living in this area of the city- and the Carruthers Caveat is still in effect today.

So: in conclusion- Restrictive Covenants provide no leniency or second glance once they are attached to a Land Title. They can effectively “sterilize” the property and keeps it stuck in time. They are, as the Edmonton Journal put it, like using a sledgehammer to kill a fly. Putting a restrictive covenant on your land title and urging your neighbours to do the same because you hate skinny houses and infill is probably not the best attitude to have towards a City that is changing and growing.