Restrictive covenants allow homeowners to shape their neighbourhoods’ character, but they may sometimes conflict with local land use bylaws.
On October 4th 2026, many homeowners gathered at Churchill Square in Edmonton, Alberta to protest the city’s policies around infill housing. The term infill housing refers to the practice of building more dwellings on lots considered to be underused, often in place of single detached family homes. For some city homeowners, the building of multiplexes on neighbouring properties is frustrating. Not only has that frustration led to protests, but it has also led to an increase in restrictive covenants.
Covenants are an old form of land planning law, finding their roots in the 1800s. At this time, municipal planning was in its infancy and covenants allowed for predictable land planning. Restrictive covenants are a promise made between parties, generally neighbours, which restrict what a piece of land can be used for. Owners must register these restrictions to the land title. The restrictions continue to be enforceable against future owners, allowing for more predictability.
Restrictive covenants and municipal bylaws can coexist. The covenant can place a higher standard on a piece of land than the minimum standard set by municipal bylaws. Enacting higher standards on property in a neighbourhood allows residents to have more control over what their community looks like while still following the minimum standards set by the city.
For example, Edmonton Zoning Bylaw, s 2.40.4.4.3 states that there must be at least a 4.5 m setback, or space between the road and a building. A restrictive covenant could set a higher standard, such as: No building will be built within 5m of the road.
In this example, it is possible to comply with both the restrictive covenant and the city bylaw. An issue arises when the city bylaws and the restrictive covenants conflict with each other. In this case, a landowner may find themselves in court. This was the case with Howes, which involved a development in Calgary, and Antoniuk in the Glenora neighborhood of Edmonton.
How are restrictive covenants discharged?
Restrictive covenants are powerful tools for setting out the possible uses of land, but they can be discharged or changed in certain circumstances. Section 48(4) of the Land Titles Act sets out two circumstances where a covenant can be discharged. The first is where it is in the best interest of the private parties who agreed to or are subject to the covenant.
The second circumstance involves two elements:
- The covenant conflicts with a land use bylaw or statutory plan
- Discharging the covenant is in the public interest.
The court may find itself grappling with these two elements further as property owners register more restrictive covenants with the goal of slowing development contemplated by city bylaws.
Applying the elements in Antoniuk
The Court of King’s Bench decided the case of Antoniuk in February 2026. In this case, a developer bought land subject to a restrictive covenant called the Carruthers Caveat. This Caveat has existed since 1911, when James Carruthers bought a large plot of land (now the Glenora Neighborhood) and registered a restrictive covenant against each subdivided plot in support of his vision of a Garden Suburb in Alberta’s newly named capital. The developer applied to the court to discharge the restrictive covenant from the site.
Applying the first part of the test from the Land Titles Act, the courtlooked at whether there was a conflict between the land use bylaw and the covenant registered to the land. The majority of the Glenora neighbourhood was under Small Scale Residential Zoning, which allows for single attached homes or up to eight residences. However, the site at the center of the dispute was part of a Medium Scale Residential Zone, meaning the bylaw required a much higher density. The new zoning did allow for single attached homes that were already established or shared the lot with buildings holding more units. The covenant allowed for a maximum of two dwellings on the site, while the bylaw set a minimum density of 10 dwellings.
Justice Ayla Akgungor found that the covenant and the bylaw conflicted. She acknowledged that the developer had the option to build nothing. By building nothing, he would not contradict the covenant or fail to meet the minimum density requirement under the bylaw. However, the judge found that the question of a conflict turns on development: Can the developer develop something new that would follow both the covenant and the city bylaws? For this site, the judge found that this was not possible. Therefore, the covenant’s maximum allowance directly conflicted with the city’s minimum requirements.
Having found a conflict, the judge turned to the second part of the test and found that increasing available housing in this area was in the public’s best interest. Some of the points the judge considered were:
- The city planners specifically sought to increase available housing near LRTs.
- The site is within 230 meters of the LRT.
- Preserving Glenora’s historical Garden Suburb was in the public interest.
- However, the site in question was rectangular and did not feature the classic Garden Suburb aesthetic.
- The City did contemplate special zoning to preserve part of the historical Glenora neighbourhood, but this site was outside of the historical area considered.
Finding that there was a conflict between the restrictive covenant and the land use bylaw, and that it was in the public’s best interest, the judge discharged the restrictive covenant.
So, do restrictive covenants still work?
Justice Ayla Akgungor acknowledged that a possible increase in land use bylaws may weaken the private contracting rights of those who enter into restrictive covenants. However, she stressed that the site in Antoniuk is unique and it is the uniqueness of a site that determines whether it is in the public interest to discharge the covenant. If the property in Antoniuk had not been located near the LRT and if it matched the historical aesthetic the residents sought to preserve, the judge might not have found it in the public’s interest to discharge the covenant.
Restrictive covenants do still work but they may not have the rigidity that people once believed they held.
The concept of striking down a covenant because it does not align with the greater good is not new. In 1917, the United States found that zoning by ethnicity was unconstitutional. In response to the possibility of people of other ethnicities moving in, neighbourhoods banded together to create restrictive covenants to restrict who could live in the neighborhood. In the American case Shelley v. Kraemer, the court found these covenants unenforceable as they were unconstitutional.
Restrictive covenants are one way neighbours can work to develop the character of their neighbourhood but, as has been seen in Edmonton, it is not the only way. The democratic process, including reaching out to elected officials, is another way to work towards change. Following the October 4th protests, the provincial government announced on October 8th that it was reversing the recent bylaws in Edmonton, returning the framework to the bylaws in effect before the 2024 amendments. This decision is not without controversy, but the province would likely not have chosen to use its powers under the Municipal Government Act had it not been for the citizen-led campaign.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Avalon Heemskerk
