In 2357596 Alberta Ltd v Antoniuk, 2026 ABKB 81 (“Antoniuk”), a property owner sought to remove a restrictive covenant from their property title. A restrictive covenant is a private agreement registered to more than one property. The agreement sets restrictions on how the properties with the agreement on title can be developed, limiting built form and/or the activities that can occur on the lot. When a restrictive covenant is created, the owner(s) of all properties affected must agree to registration against the relevant certificates of title. A restrictive covenant is an agreement that “runs” with the lands.  In other words, if one of the properties is transferred from the original owner to a purchaser, the purchaser is obliged to follow the requirements in the restrictive covenant; the purchaser effectively becomes a party to the agreement and is entitled to enforce it. 

There are only two ways to amend or discharge a restrictive covenant: first, by unanimous agreement; second, by court direction pursuant to the Land Titles Act (see discussion below).     Written down restrictions do not mean anything without proper enforcement mechanisms though. If there is a breach by one property owner, the restrictive covenant can be enforced, by other property owners who are also subject to the agreement. Property owners concerned about a breach would apply to court for relief, which could compel the property owner breaching the restrictive covenant to comply with it. For instance, if a restrictive covenant allows only one dwelling per lot and a property owner develops a basement suite to rent out, a neighbour whose property also has the restrictive covenant on title could attempt to enforce against this breach and may be able to receive a court order to require the property owner to not rent out the basement suite and to remove any alterations that create the second dwelling.

Restrictive covenants are an early form of private land use control that are separate from public regulatory regimes for land use planning. If a municipality is not a party to a restrictive covenant, they do not set the restrictions embedded within them and cannot enforce them. Restrictive covenants were developed before many municipalities in Alberta had the extensive powers to regulate local development that they now have. As land use bylaws have developed, sometimes conflicts have arisen between what restrictive covenants require and what the land use bylaw requires. However, true conflict between these two kinds of land use control is rare, since land use bylaws are often framed permissively and do not often set minimum expectations for development. But, the Court in Antoniuk found that there was an actual conflict and therefore ordered that the caveat for the restrictive covenant be discharged.

THE CARRUTHER’S CAVEAT AND THE PROPERTY

Glenora is a central neighbourhood in Edmonton, known for its mature trees, curvilinear streets, and early 20th century architecture. When Glenora was initially developed, a restrictive covenant was registered on title for all properties within a portion of the neighbourhood. This restrictive covenant is known as the “Carruthers Caveat.” The restrictive covenant sets many requirements for development on properties it is registered to. Many aspects of the restrictive covenant remain highly relevant to this day, like the requirement for only residential development and a limit of one dwelling per property. 

The property owner owns a corner property in Glenora. The district in the prior version of the land use bylaw allowed single detached homes as a use. The original house was demolished and the property owner applied to redistrict the property. The new district included a minimum density requirement of approximately 10 residential dwellings on the parcel, reflecting the property owner’s development intention to build an infill development. City Council approved the redistricting in October 2022.

With the site being vacant, the property owner was not in breach of the restrictive covenant since they had not built more than one dwelling on site. However, any potential development of the subject property could create conflict between the land use bylaw and the restrictive covenant.

THE COURT APPLICATION

The property owner applied to court under section 48(4) of the Land Titles Act to discharge the restrictive covenant. Applying under this section of the Act allows the court to order the discharge a restrictive covenant (or a caveat referencing the restrictive covenant) from title. The test for discharge contains two requirements:  first, the restrictive covenant must conflict with the provisions of the land use bylaw; and second, it must be in the public interest to discharge the restrictive covenant. This section provides an alternative to the common law requirement that all property owners consent to the discharge of the restrictive covenant.

An applications judge denied the property owner’s initial section 48(4) application, and the property owner appealed this decision. Other property owners contested this appeal, as they wanted to ensure that the restrictive covenant remained on title.

On appeal, Justice Akgungor of the Court of King’s Bench determined that the restrictive covenant could be discharged from the certificate of title for the single property because both parts of the test under section 48(4) were met. Justice Akgungor found: 

1. There was a conflict between what was required in the restrictive covenant and what was required under the provisions of the land use bylaw.
2. It was in the public interest to discharge the restrictive covenant.

CONFLICT

Justice Akgungor determined that the question around conflict had to be assessed from the perspective of whether any new structures could be built which satisfy both the land use bylaw and the restrictive covenant. She opted to do this in part because, if the question of conflict was approached from only reviewing the present status of the property, a situation of no conflict could always be achieved through the option of doing nothing. In other words, a vacant property would always comply with both the land use bylaw and the restrictive covenant. This would render the conflict portion of the test under section 48(4) redundant. Justice Akgungor also noted that the court should not only focus on conflicting uses, but look at the entirety of the land use bylaw to see whether there is any conflict when it comes to setbacks, height, density, or other land use controls.

Justice Akgungor concluded that, because of the minimum density requirement, the new land use district directly conflicted with the restrictive covenant. The new land use district required that any residential development on the property must have at least 10 units. The restrictive covenant required that any development on the property have at most 1 unit. There was no apparent way for any future development to comply with both the restrictive covenant and the land use bylaw. Building a single dwelling, as required by the restrictive covenant, would conflict with the land use district. Building a multi-unit dwelling, as required by the land use district, would conflict with the restrictive covenant. Justice Akgungor also noted that prior court decisions had concluded that, where renovations or improvements to the existing buildings that complied with the restrictive covenant were still possible, no true conflict existed. But, because the subject property was vacant, there were no potential uses for the property and a conflict between the land use bylaw and the restrictive covenant was inevitable.

Interestingly, Justice Akgungor determined that the suggestion that the density requirement of 10 dwellings could be waived was speculative and did not undermine the determination that a conflict between the land use bylaw and the restrictive covenant existed. The municipality could vary the requirements set within the land use bylaw and grant approval of a redevelopment of the subject property with fewer than 10 dwellings. But, because the court had no evidence before it regarding whether a variance could occur, Justice Akgungor determined that she had no real way of knowing whether this was possible.

PUBLIC INTEREST

Pursuant to section 48(4) of the Land Titles Act, it is not enough for there to be conflict though. Discharging the restrictive covenant must also be in the public interest. Justice Akgungor explained that the court must weigh many factors, publics and interests, and then determine, on balance, whether it is in the public interest to discharge the restrictive covenant. She noted that the public interest in any given case may be determined based on the evidence provided, whether documentary, from ordinary witnesses or from expert witnesses. 

Justice Akgungor largely focused on the statutory plans in place to determine what the public interest was in this context. These plans, alongside the land use district, clearly conveyed a particular direction of densification along corridors. The subject property was along a corridor and densification was encouraged. Compared to the original applications judge decision, the planning framework had become much clearer. In the lower level decision (before the applications justice), the City had only updated its Municipal Development Plan, which provided high level policy around urban intensification. By the time the decision was appealed and heard by Justice Akgungor, the City had passed lower level statutory plans which reinforced this direction and provided specific objectives around density for the corridors in the Glenora neighbourhood.

Though Justice Akgungor also reviewed expert evidence and community submissions, she noted that this information could be used to both support and undermine whether increased densification of the area was in the public interest. She also emphasized that the fact that densification objectives may be achieved elsewhere is largely irrelevant to a public interest analysis. The party seeking discharge only needs to demonstrate that the restrictive covenant prevents a proposed development from moving forward at a particular site that in and of itself would be consistent with the broader public interest.

When it came to the fact that there was no specific development application in place that articulated what the exact building would be on the subject site, Justice Akgungor noted that this was not fatal to the application to discharge the restrictive covenant. The existence of concrete development plans might assist in focusing the public interest analysis. But, she concluded that it was more likely than not that the Appellant intended to develop the subject property consistent with the land use district and that this development generally aligned with the public interest of densification along the corridor. There would also be practical impediments to providing specific development plans in advance of discharging the restrictive covenant because there was no development certainty over whether a development could proceed and therefore it was commercially not viable to create a specific proposal for the subject property.

At the time of publishing this article, the Court of King’s Bench decision in Antoniuk is being appealed to the Court of Appeal. Therefore, the end result in this matter could change up until this appeal route is exhausted.

TAKEAWAYS 

Though land use regulation enacted by local governments like the land use bylaw cannot directly change restrictive covenants, municipalities should be aware of where restrictive covenants are registered. A restrictive covenant may inform the development potential of different areas of the community. Should the municipality approve a land use bylaw that conflicts with the requirements of a restrictive covenant, then property owners may be able to apply to court to discharge the restrictive covenant. Discharge of the restrictive covenant is not certain though, since property owners will need to prove that a true conflict exists and that discharging the restrictive covenant is in the public interest. 

As with many things related to property, our neighbourhoods, and our community’s writ large, restrictive covenants and land use planning can be contentious and spur differing viewpoints within a community. Land use bylaws that conflict with restrictive covenants could give rise to discharging restrictive covenants. Opponents to restrictive covenants could view this as a step in the right direction, while supporters could view this as undermining their private rights to a certain built form in the neighbourhood. 

Where there is conflict between these two forms of land use control, municipalities should be aware that other regulatory functions, such as decisions around allowing for demolition, can become more contentious too, because it could give rise to situations where any future development of the site necessarily conflicts with the restrictive covenant. As always, please reach out to members of our municipal team should you have any questions or concerns regarding issues they may be facing with their community.