Review use of restrictive covenants in Alberta, urges planning prof

Albertans make greater use of a powerful legal device to limit the future use of private land than other provinces do, and may be harming their own communities the process, says the head of the University of Alberta's planning program.

Sandeep Agrawal says restrictive covenants registered against a property's land title, are most often used by developers to enforce architectural and design guidelines in neighbourhoods, but have also been used by companies to restrict competition and are now being used as a weapon by residents to fight City Hall.

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Restrictive covenants were used by Canada Safeway to ensure no competitor opened on their former properties once they sold their stores, creating what Agrawal called "food deserts".

Canada Safeway no longer exists as a corporate entity, but the restrictions on grocery stores are still in place, despite years of study and protest by the City of Edmonton.

Now, residents who are fighting the city's plan to increase densities in older neighbourhoods say they will register covenants on their properties preventing them from being subdivided any time in the future.

It's a prospect Agrawal says could clash with city goals such as transit-oriented development and its plans for more sustainable, walkable communities.

Residents in several southside and west-end neighbourhoods have expressed interest in registering covenants on their properties to bar future owners from subdividing, and West Jasper Place residents have said they want to preserve the character of small, single-family homes on large lots.

The planned Valley Line LRT extension would run through West Jasper Place and is intended to spur development along its route.

Agrawal said filing a restrictive covenant is a "harsh and extreme" step because once they're registered on a land title, there is no "sunset clause" and removing them has been very difficult historically.

"It is certainly a realistic concern ... and is in direct conflict with the city's vision and the city's policies and I think we're at the point where we need to deal with these types of restriction," Agrawal said.

Agrawal said covenants and city zoning bylaws usually co-exist in most jurisdictions, but seem to have a special power in Alberta.

"The use of restrictive covenants is much more pervasive here in Alberta than in other places," Agrawal said, citing Alberta's historical recognition of individual and property rights, which are written into the province's Bill of Rights.

He said residents may have legitimate concerns about the city's planning policies, but called restrictive covenants an "extreme approach to community resistance."

Restrictive covenants are part of the Municipal Government Act, a sweeping piece of legislation which the provincial government is in process of overhauling.

Agrawal says the province should look at covenants within in the act with an eye to balancing the rights of landowners with the larger public good.