Casual Legal: A Howse of Cards
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.
By Jeff Daniels
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
Restrictive covenants are private contracts which impose restrictions on how a property can be used or developed. If a restrictive covenant is properly drafted and registered on title, the restrictions run with the land, meaning they are binding on all future owners of the affected properties.
Restrictive covenants exist in addition to municipal zoning bylaws, so while a land use bylaw may allow a certain type of development, a restrictive covenant on title may prohibit it.
Under section 48(4) of the Land Titles Act a restrictive covenant may be modified or discharged by a Court if the restrictions conflict with the provisions of a land use bylaw or statutory plan and the modification or discharge is in the public interest. To find a conflict between a restrictive covenant and land use bylaw, the Court must be satisfied that it is impossible to comply with both the bylaw and the restrictive covenant.
In the recent case of Howse v Calgary (City), 2023 ABCA 379 (“Howse”), certain properties in the Banff Trail neighbourhood were subject to a 1950 restrictive covenant which limited development to single-family dwellings. Developers sought to construct higher density projects which were permitted under the land use bylaw but prohibited by the restrictive covenant. The developers were met by opposition from other owners in the neighbourhood who sought to enforce the restrictive covenant.
The City, in support of the proposed redevelopment and greater density, amended the land use bylaw to redesignate certain development properties to a direct control districting which imposed minimum density requirements. With the new minimum density requirements, the construction of new single-family dwellings was effectively prohibited, and it was impossible to comply with both the land use bylaw and the restrictive covenant.
Following the re-zoning, the developers applied to the Court to have the restrictive covenant discharged. The Court found that the restrictive covenant conflicted with minimum density requirements in the bylaw, and it was in the public interest to discharge the restrictive covenant from the affected re-zoned titles.
The decision in Howse is an illustration of the broad authority municipalities have over land use and planning and the tension that can arise where public and private interests do not align.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1.800.661.7673 or email casuallegal [at] abmunis.ca (casuallegal[at]abmunis[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] abmunis.ca (riskcontrol[at]abmunis[dot]ca), or call 310.MUNI (6864) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
