With the City of Calgary’s recent decision to move forward with blanket rezoning, it’s important to consider the limitations of that change—specifically, restrictive covenants that limit or prescribe how a property can be used.

Restrictive covenants are agreements between two or more property owners that limit what can be done with the properties affected by the covenant. These agreements are registered documents with the Land Titles office. When a person, group, or corporation takes ownership of a property, they agree to abide by any restrictive covenant registered on that property.

These types of agreements primarily aim to preserve certain characteristics of a community. They can relate to the types of building materials used, animals allowed on the property, the types of businesses permitted, and the number of dwellings on the property.

Buyer representatives must review the land title, not just the zoning, to determine if a property suits their purchaser's needs. Simply put, just because a property is now zoned to permit low-density homes doesn’t guarantee it’s allowed.

It’s important to adequately inform potential buyers about the restrictive covenants associated with the land. We caution members against claiming that blanket zoning opens the door for low-density development in every case, as restrictive covenants could prove otherwise. Below are some instances where restrictive covenants and city zoning bylaws faced off in court.

Court cases

Ukrainian Senior Citizens Home of St. John vs. Torres

The short version: A corporation wanted to build a senior living facility on lots with a restrictive covenant (RC). The RC limited the number of dwellings permitted on each lot to “one private dwelling house.” The Applicant (the Ukrainian Senior Citizens Home of St. John) sought to have the RC declared of no force and effect, which would allow them to proceed with their plans to build a 4-storey seniors’ residence—a permitted use under the City of Edmonton’s land use bylaws. After reviewing the evidence, arguments, and relevant case law, the decision was made to uphold the restrictive covenant.

The long version can be accessed here.

Faulkner vs. Donaldson

The short version: In 2018, the City of Calgary began allowing properties zoned as RC-1 to have secondary suites. In 2019, the City of Calgary approved a secondary suite for the Respondent’s (Donaldson) property, which had a restrictive covenant. The RC limited the lot to no more than one single-family dwelling. The Applicant (Faulkner) sought to have the RC enforced to prevent the property from having a secondary suite. The decision favoured the Applicant; the Respondents were ordered to comply with the RC and were given six months “to take any steps necessary to either comply with, modify, or discharge the restrictive covenant.”

The long version can be accessed here.

Howse vs. Calgary

The short version: The City of Calgary approved an Area Redevelopment Plan that impacted lots with a restrictive covenant limiting one or two dwellings on each affected lot. Developers wished to build structures that violated the RC (which stated a maximum density) but were compliant with the city’s proposed Direct Control District (DCD) zoning bylaws (which stated a minimum density) and sought to have the RC discharged due to the inability to comply with both the RC and DCD. After statutory tests were applied, evidence and arguments were reviewed, and the application to discharge the RC was split—the RC was discharged on some properties involved in this dispute while it remained enforceable on others.

The long version can be accessed here.

Click here to learn more about Restrictive Covenants.