Restrictive Covenants (RCs) are agreements attached to the Title of your property, that commit you to doing (or not doing) certain things with your property. RCs are legal agreements between various landowners in an area or ‘Building scheme’ and are separate from zoning and city policy (and are also not enforced by the city).
In Hounsfield Heights and Briar Hill, the most common RC commits the landowner to having only one single-family home on their property, and typically also states a minimum value for that home. These RCs were set up in the early 1950s when the area was subdivided. Typically, an RC can only be removed if the various landowners within that RC agree – if they don’t agree, they can enforce the requirements of the RC. If landowners are properly notified and don’t respond, they have ‘acquiesced’ to the removal and can no longer enforce the RC in future. RCs are often registered with the same ‘instrument number’ in land titles, which makes it clearer who has to agree. However, in Hounsfield Heights, many identical RCs are registered with unique instrument numbers. Since a covenant with just oneself doesn’t make sense, it is most like that the identically worded RCs are really one RC, and everyone with the same phrasing can enforce the RC.
A developer wants to remove the RC on a lot at 1835 – 13 Ave, so that they can build H-GO (12 m tall extra dense row houses) instead of single-family. Their RC appears to have a unique number, but also states “subject to the following covenants and conditions which shall apply to all building lots in the said plan”. That phrase makes the connection of their lot to others in the whole Plan (much of Hounsfield Heights). If you agree that past RC agreements should be upheld, you can check your own RC (if you have one, they are not on every lot) at https://alta.registries.gov.ab.ca/spinii/logon.aspx. If you are in Plan 5625AC with a similar RC, and especially if your RC has that phrase, you may be able to enforce the RC. Please get in touch with the Community Association to discuss the application at [email protected].
Thanks to everyone who came out to the initial hearing on this RC on September 6. It was very helpful to have the community come out in large numbers to express their opposition. There will be another hearing on Wednesday, October 9 at 10:00 am in the Calgary Courts Centre, 601 – 5 Street SW (downtown) in ‘Applications Judge Chambers’. Another good turnout is important and appreciated. Many of us will have put in affidavits before this hearing.
Finally, you may have heard about a recent judgement in Banff Trail that did not uphold an RC. This judgement did not have the same circumstances as the Hounsfield Heights case. In the Banff Trail case, there was a Direct Control (DC) land use district that forbade single-family dwellings, and the Restrictive Covenant called for a single-family dwelling. This created a fundamental conflict, and the court then judged it in the public interest to remove the RC because of the conflict. In this 13 Ave NW case, the current land use is R-CG (what everything was just upzoned to), and R-CG allows single-family dwellings, so there is no fundamental conflict. Because there is no conflict, the applicant can be expected to act within the existing covenant. Also, other RCs in similar situations have recently been upheld, e.g. in Elbow Park.
With the ongoing city policy to make new plans for our communities that fundamentally change our community’s character, defending and enforcing existing Restrictive Covenants is one way to maintain the character of the community.
Beth Atkinson
Director – Land Use, Hounsfield Heights – Briar Hill Community Association
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