Casual legal: Restrictive covenants vs redevelopment
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made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.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 have long been used to shape neighbourhoods by controlling what may be developed on private land. One example is the “Carruthers Caveat” which is registered on over 400 properties in the Glenora neighbourhood in Edmonton.
In the early 1900s, Mr. James Carruthers envisioned a prestigious residential subdivision on his land in rural Edmonton. To implement that vision, he registered a caveat against the lands containing several restrictive covenants, including limits on density, restrictions on business use, minimum setbacks, and minimum construction costs for new homes.
The Carruthers Caveat has been in place for more than 100 years and its impact on shaping and preserving Mr. Carruthers vision for Glenora is obvious. The caveat has been vigorously defended by residents and has survived multiple court challenges.
Generally, restrictive covenants can only be removed from title if they have a specific expiry date or if they are voluntarily discharged. Under section 48(4) of the Land Titles Act, a Court may order that a restrictive covenant be modified or discharged where: (a) the restriction conflicts with a land use bylaw or statutory plan; and (b) the modification or discharge is in the public interest.
In 2357596 Alberta Ltd v Antoniuk, 2026 ABKB 81, the Court of King’s Bench overturned a decision of an Application’s Judge and ordered that the Carruthers Caveat be discharged from two Glenora properties. The properties had recently been rezoned with the new zoning permitting larger scale development and prohibiting the construction of new single-family homes on the properties.
The Applications Judge found there was no conflict because a developer could comply with both the zoning and the covenant by renovating existing homes. The Court of King’s Bench disagreed, concluding that a conflict exists where nothing new can be built that complies with both the zoning and the restrictive covenant.
Relying on City planning policies supporting increased density and transit-oriented development, as well as the proximity of the subject properties to a planned future transit station, the Court determined that discharging the covenant was in the public interest. Importantly, the Court emphasized that the decision on public policy was fact specific, and the analysis and conclusion may be different for other properties affected by the Caveat.
The decision in Antoniuk reflects the difficult balance between preserving private development restrictions and advancing modern municipal planning goals. The Court of King’s Bench decision has been appealed to the Alberta Court of Appeal.
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.
