Another Calgary community turns to restrictive covenants with blanket rezoning in effect

The day Calgary city council approved its contentious blanket rezoning policy — which allows for different housing types, like duplexes and row houses to be built in all residential areas — Lake Bonavista residents began planning ahead.

That spring day, a group of homeowners in southeast Calgary held their first meeting about protecting their homes and community through restrictive covenants.

They are legal contracts between homeowners that can prevent the construction of certain types of buildings. The covenants are attached to land titles, meaning they stay in place even when the property owners change. They're also known to be challenging to remove.

In Lake Bonavista, the goal is to legally prevent developers from tearing down single-family homes for multi-family developments, though residents have agreed to allow secondary suites in basements and garages.

"I think a lot of people are very uneasy about what's happening in the community," said Karen Robinson, a volunteer for the committee running the Lake Bonavista restrictive covenant initiative.

"I think it's going to be very disruptive to the fabric of the community and just not give people that comfort and peace of mind about knowing what their street is going to look like."

Robinson says she hopes at least 60 per cent of the community signs on so they can prevent "land assemblies" — where developers purchase multiple lots side-by-side to build larger developments — and remain a single-family community with wide streets, mature trees and large yards.

It isn't just happening in Lake Bonavista. Many Calgary communities have historic restrictive covenants in place, and a number of other Calgary communities are turning to the idea now that Calgary's blanket rezoning bylaw is in effect.

Curtis Marble, the lawyer representing Lake Bonavista residents, said 15 to 20 per cent of the community has agreed to get the restrictive covenant registered to their land titles.

According to the initiative's website, it costs $500 per household to get the covenant registered.

Marble's team is getting those covenants finalized in batches, with roughly 70 households officially registered, he said.

He said restrictive covenants are more common in Calgary than people think — but often people don't realize it's on their land title because, in most cases, there wasn't any reason to enforce them in court until recently.

"Given that the city's zoning laws were, until recently, in many of those neighbourhoods [consistent] with what the restrictive covenant was saying, it simply wasn't necessary to go to court," said Marble, a partner with Carbert Waite LLP.

That's changing, and so too is the nature of Marble's work. He's been litigating restrictive covenants for roughly five years. But now, his team is also working to draft new restrictive covenants for communities like Lake Bonavista.

"We were not doing that work prior to the city proposing and then passing the new bylaw," he said.

Marble is also working with Chinook Park, Kelvin Grove and Eagle Ridge on their restrictive covenant initiative, among other communities in the city.

He predicts the covenants are going to become more common as time goes on.

Residents in Rideau-Roxboro can attest to that. Many properties in that community have had restrictive covenants in place for decades, but now there's a new push to get the remaining homes on board.

"In our initiative to talk to our neighbours to see if they're interested in having restrictive covenants placed on their property to both benefit themselves and to help their neighbours regarding future development of the community, the uptake has actually been very strong," said Tony Morris, a resident helping to lead the initiative.

He said it's interesting to see more communities turn to restrictive covenants as a solution — especially in neighbourhoods that are further out from inner-city Calgary.

For his community, it's all about certainty over the future of their streets, "without having the developer community really kind of drive that agenda."

Eliot Tretter, an associate professor in geography at the University of Calgary, said he finds the movement fascinating. He specializes in the history of restrictive covenants.

Tretter said he doesn't see this movement having a big impact on the ability to build more housing supply in Calgary, since adding a restrictive covenant is a costly and complex process that most people likely wouldn't want to go through.

But for him, there are bigger concerns at hand.

"There's no form of private restriction that is inclusionary.... Why don't we want inclusive communities? What is driving that?"

"That is something that is maybe more troubling and has longer impacts on the way in which we deal with housing … and how people get housed and how we build our neighbourhoods," said Tretter.

In a statement, the City of Calgary says it doesn't enforce or determine the validity of restrictive covenants. Instead, they're private civil matters that are to be dealt with between the landowners subject to the agreement.

Marble said to get a restrictive covenant removed, all parties who have signed the agreement would have to agree to do so. Or someone could file a court application, arguing that the covenant is no longer enforceable "because people have stopped following it, people have stopped complying with it or it's somehow contrary to the public interest."