Popular in Professional

Culture and Society

The City as a Growth Machine: Toward a Political Economy of Place

New York University Harvey Moltoch

Education

The Role of Education in Reducing Racial Inequality

University of Southern California Pedro A. Noguera

Law

Diversity and Social Mobility in the UK legal profession

Law Society I. Stephanie Boyce

Internet Law

The Law of AI for Good

University of San Diego Orly Lobel

Pharmacy

Cytotoxic Activity and Anti-Migratory Effect of Berberine-Phytantriol Liquid Crystalline on Non-Small-Cell Lung Cancer

University of Technology Sydney Kamal Dua

Human Rights Law

Transforming Restorative Justice for Transitional Settings

University of Nottingham Kerry Clamp

Education

Strawberry Fields Forever? Some Observations About Restrictive Covenants and Zoning

View more insights in Professional - Law - Property Law

View more figures from University of Alberta

View the page of Eran S. Kaplinsky

Read the Study

Restrictive covenants and statutory land use controls are both capable of promoting private or public interests, but there is tension surrounding their use. Eran Kaplinsky explores the relationship between the two devices and discusses the courts’ evolving approach to resolving conflicts between restrictive covenants and restrictive land use controls that apply to the same property.

Image courtesy of interviewee. August 15, 2024

Generating Workspace

Export as PDF

This video is a transcript of a conversation about a study on restrictive covenants and their implications for land use, particularly in the context of zoning reforms in Canada and the United States. The discussion begins with the date and time of the recording before transitioning to an overview of restrictive covenants—legal agreements that dictate how land can be used—and the motivations behind studying them, particularly in light of recent municipal initiatives to increase housing density.

The conversation highlights how traditional low-density residential areas have typically been protected by zoning laws, which prevent alterations in land use, ensuring neighborhoods retain their character. However, growing pressures for increased housing supply and sustainability have led to reforms aimed at relaxing these restrictions, allowing for multi-family units and higher density developments.

This video details the significant role of covenants, which predate zoning laws, in maintaining neighborhood stability. Such covenants create binding agreements on land use that can affect redevelopment opportunities, with references to specific neighborhoods in Edmonton and Calgary where these covenants have restricted changes despite municipal efforts to increase density.

The discussion also covers the legal context, including recent court rulings in Calgary that may signal a shift towards allowing public planning regulations to take precedence over private covenants when they conflict with community interests.

The closing remarks emphasize the complex interplay between private covenants and public land use policies, suggesting that while both serve important functions, a decline in reliance on covenants could undermine private conservation efforts and future urban planning.

Overall, the text provides insight into the ongoing conflict between maintaining traditional residential character through restrictive covenants and the need for adaptive zoning to address housing challenges in rapidly growing cities.

Language:

Export as PDF

X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

00:00.115 --> 00:01.525
This article was inspired

00:01.705 --> 00:04.205
by several recent land use disputes

00:04.555 --> 00:08.885
that arose from municipal initiatives to increase densities

00:09.585 --> 00:12.765
in established residential areas in,

00:12.765 --> 00:13.925
many metropolitan areas.

00:14.065 --> 00:15.685
In, in Canada and the United States.

00:16.255 --> 00:19.045
Whole neighborhoods, and even entire suburbs,

00:19.335 --> 00:20.525
especially those built

00:20.615 --> 00:23.565
after Second World war, are reserved

00:23.565 --> 00:26.925
for so-called single family detached homes, meaning that

00:27.475 --> 00:29.605
only one dwelling unit designed

00:29.705 --> 00:33.965
to accommodate one household was built on each lot,

00:33.965 --> 00:37.245
those lots, often being quite large by,

00:37.245 --> 00:38.285
today's standards.

00:38.625 --> 00:40.925
And buyers overwhelmingly preferred

00:40.925 --> 00:43.165
to live in such neighborhoods if they could afford it.

00:44.105 --> 00:46.885
And local councils passed zoning bylaws

00:46.885 --> 00:50.085
that generally ensured that the character

00:50.085 --> 00:53.365
of these neighborhoods is for the most part, fixed.

00:53.825 --> 00:55.965
Um, meaning that a resident

00:55.965 --> 00:59.285
of a single family neighborhood could be reasonably sure

00:59.315 --> 01:02.885
that his or her neighbors could not put the, the,

01:02.895 --> 01:06.165
their property to a different use, say a business,

01:06.225 --> 01:08.925
or build an apartment building on the street.

01:10.325 --> 01:13.595
These low density patterns supported

01:13.595 --> 01:17.075
by local zoning bylaws have persisted for decades,

01:17.415 --> 01:21.475
but policymakers recently embarked on reforms

01:21.505 --> 01:24.435
that greatly relax existing land use restrictions,

01:24.935 --> 01:27.915
and some councils have rewritten their zoning codes

01:27.915 --> 01:31.035
to abolish single detached, zones altogether

01:31.455 --> 01:33.835
and several provinces and states.

01:34.375 --> 01:35.435
Um, Ontario

01:35.615 --> 01:39.275
and California being two examples passed, legislation

01:39.275 --> 01:41.435
that overrides local zoning codes

01:41.495 --> 01:43.595
and allows multiple dwelling units

01:44.215 --> 01:47.035
to be built on any land zone residential.

01:47.815 --> 01:50.955
And the City of Edmonton, changed its regulations

01:50.955 --> 01:53.715
to make it easier, to split,

01:53.955 --> 01:58.195
a large residential lot into two smaller parcels.

01:59.045 --> 02:02.905
There are two reasons for these zoning reforms.

02:02.965 --> 02:06.745
The first reason is that, relaxing land use restrictions

02:07.465 --> 02:09.665
increases the supply of developable land,

02:09.665 --> 02:12.265
which may improve housing affordability.

02:13.005 --> 02:14.785
And the second reason is

02:14.785 --> 02:18.025
that low density residential patterns,

02:18.605 --> 02:20.185
are widely regarded

02:20.185 --> 02:23.425
as less sustainable than compact less

02:23.725 --> 02:24.985
car dependent neighborhoods.

02:25.565 --> 02:29.425
Now, arguably the case for zoning reforms in Canada is not

02:29.665 --> 02:32.425
as strong as it is in the United States, chiefly

02:32.425 --> 02:35.545
because Canadian zoning codes are more permissive.

02:35.965 --> 02:39.305
In the United States, metropolitan areas are often made up

02:39.305 --> 02:42.905
of many small suburban municipalities where almost all

02:42.905 --> 02:45.025
of the land is zoned for single household

02:45.145 --> 02:47.185
detached on large lots.

02:47.295 --> 02:50.425
Whereas in Canada, cities are less fragmented

02:51.085 --> 02:53.545
and as much as one half of the land designated

02:53.565 --> 02:55.945
for housing is zoned multifamily.

02:56.665 --> 02:58.785
Nevertheless, Canadian

02:58.895 --> 03:02.915
Cities are quite busy rewriting their zoning codes,

03:04.015 --> 03:05.395
but there is a fly in the ointment,

03:05.895 --> 03:09.235
and that is the existence of a completely separate mode

03:09.235 --> 03:12.875
of regulating land use called restrictive covenants.

03:13.215 --> 03:16.315
And covenants predate zoning by half a century,

03:16.975 --> 03:20.035
and there are increasingly relied on by developers

03:20.055 --> 03:21.955
and homeowners who feel

03:21.985 --> 03:26.635
that zoning is no longer a dependable means of stabilizing,

03:26.895 --> 03:27.995
their neighborhoods.

03:29.285 --> 03:30.345
So what are covenants?

03:30.525 --> 03:34.145
Uh, covenants are essentially a special kind of land use

03:34.785 --> 03:39.265
contract, best explained, using an example, suppose

03:39.265 --> 03:41.985
that you want to purchase part of my land

03:42.365 --> 03:43.785
and I'm agreeable to selling,

03:44.445 --> 03:48.545
but I am worried that you will use, the property

03:48.545 --> 03:51.545
that you're buying for a purpose that I find objectionable.

03:51.925 --> 03:53.865
Uh, for example, a glue factory.

03:54.925 --> 03:58.105
So we stipulate in the sale agreement,

03:58.135 --> 03:59.505
that you promise not

03:59.505 --> 04:01.865
to use your new property for a glue factory.

04:02.965 --> 04:05.945
If I can't get that promise in writing, then I won't sell.

04:07.505 --> 04:09.845
And maybe it's you who are concerned about

04:10.025 --> 04:11.205
my use of my land.

04:11.865 --> 04:16.085
So you insist on the appropriate restrictions in the

04:16.365 --> 04:17.445
contract between us.

04:19.795 --> 04:21.495
The thing about contracts is

04:21.605 --> 04:25.295
that they're only binding on the parties who signed them.

04:25.915 --> 04:27.095
If you promised not

04:27.095 --> 04:29.775
to use your property in some prescribed manner

04:30.355 --> 04:33.615
and subsequently transferred your title to a new owner,

04:34.325 --> 04:37.255
that new owner would be free from any obligation

04:37.325 --> 04:40.215
that they did not personally undertake.

04:41.235 --> 04:43.655
But in the middle of the 19th century,

04:43.795 --> 04:46.255
the courts in England created a special

04:46.255 --> 04:47.615
exception to this rule.

04:48.875 --> 04:53.325
If you covenanted with your neighbor regarding the use

04:53.325 --> 04:55.405
of your land and the covenant,

04:55.515 --> 05:00.245
meaning the contractual promise met specific,

05:00.245 --> 05:02.645
requirements, which I will not go into here,

05:03.275 --> 05:07.005
then anyone taking title from me with notice

05:07.005 --> 05:09.365
of the covenant would be bound by it.

05:10.025 --> 05:13.565
And anyone taking title from my neighbor would be entitled

05:13.585 --> 05:14.765
to enforce the covenant.

05:15.345 --> 05:19.405
Now, we lawyers say that the covenant is now annex

05:19.825 --> 05:22.685
to the land in question, so that when you acquire the land,

05:22.825 --> 05:26.565
you also acquire the benefit or the burden of the covenant.

05:28.395 --> 05:32.775
Now, imagine a whole neighborhood governed by some sort

05:32.775 --> 05:35.095
of super covenant that consists

05:35.115 --> 05:38.175
of mutual restrictions undertaken by

05:38.355 --> 05:40.575
and for the benefit of all

05:40.575 --> 05:42.255
of the lands governed by the covenant.

05:43.075 --> 05:46.415
In Canada, those covenants are called building schemes.

05:47.615 --> 05:50.015
A building scheme may be enforced

05:50.035 --> 05:52.855
by any owner against any other owner,

05:53.235 --> 05:57.365
and they can only be changed by consensus of all

05:57.365 --> 05:58.965
of the property owners or

05:59.025 --> 06:01.165
by special proceedings in the courts.

06:01.785 --> 06:06.285
And before the advent of zoning, developers used covenants

06:06.305 --> 06:08.725
to fix the character of neighborhoods

06:09.265 --> 06:10.885
to suit homeowners preferences.

06:11.465 --> 06:15.285
And importantly because covenants are private arrangements,

06:15.405 --> 06:19.765
they're generally beyond the reach of local policymakers.

06:19.875 --> 06:23.845
Once zoning became acceptable, it replaced covenants

06:23.845 --> 06:26.925
as the go-to method of regulating land uses.

06:27.105 --> 06:29.845
But in Edmonton,

06:30.025 --> 06:31.885
and also, Calgary, these are,

06:32.035 --> 06:33.485
Alberta's two largest cities.

06:33.545 --> 06:35.365
And among the fastest growing in Canada,

06:36.015 --> 06:39.125
there are still several large scale building schemes.

06:39.465 --> 06:42.005
Uh, Edmonton's Glenora neighborhood, for example,

06:42.345 --> 06:45.965
is a residential area still governed by the,

06:45.995 --> 06:47.565
notorious caruthers caveat

06:47.755 --> 06:49.805
that was registered over 100 years ago.

06:50.665 --> 06:52.285
And that covenant was designed

06:52.465 --> 06:54.205
to protect the neighborhood's amenities

06:54.225 --> 06:55.645
and exclusive character.

06:55.985 --> 07:00.165
And it stipulates that no more than one, detached

07:00.185 --> 07:04.765
or semi-detached dwelling, may be built on any lot

07:04.945 --> 07:07.725
and it has to be set back at least 25 feet from the street.

07:08.745 --> 07:10.445
And the neighborhood's proximity

07:10.465 --> 07:13.845
to the center makes it attractive for redevelopment,

07:14.465 --> 07:18.005
but not withstanding Edmonton's efforts to allow it.

07:18.545 --> 07:22.485
The residents have been largely successful so far in suing

07:22.485 --> 07:26.845
to enforce the covenant and block redevelopment proposals.

07:27.345 --> 07:29.805
But it's not just the older covenants

07:30.005 --> 07:33.485
that impede municipal zoning reforms, initiatives

07:33.485 --> 07:36.845
to establish new covenant, covenants.

07:37.065 --> 07:40.445
Uh, were launched in some mature neighborhoods in Edmonton.

07:40.525 --> 07:44.325
I gave the, greater hardesty, example in my article,

07:44.825 --> 07:49.325
and that represents, residents response to some

07:49.325 --> 07:53.735
of the recent efforts to, bring in more density,

07:54.025 --> 07:58.095
bring in more mixed uses, et cetera.

07:58.475 --> 08:02.575
Um, and on top of that, we have developers who continue

08:02.575 --> 08:05.215
to register covenants in new neighborhoods.

08:06.315 --> 08:08.775
And one of the things that,

08:08.955 --> 08:12.215
struck me about the controversies surrounding residential

08:12.495 --> 08:16.735
covenants were, the sentiments of municipal officials,

08:17.115 --> 08:20.295
and Edmonton officials cautioned homeowners that

08:21.055 --> 08:24.735
entering enduring binding arrangements,

08:24.735 --> 08:27.455
could be detrimental to their long-term interest.

08:27.965 --> 08:31.135
It's better they said to trust the city's regulations

08:31.195 --> 08:34.375
to be more responsive and adaptable.

08:35.235 --> 08:38.055
But, Calgary, took a step farther.

08:38.355 --> 08:42.775
Uh, when a covenant from the 1950s stood in the way

08:42.775 --> 08:45.255
of the city's plans for densification

08:45.275 --> 08:49.335
of the Banff Trail neighborhood, the city applied

08:49.335 --> 08:50.735
to the court to have the covenant

08:51.455 --> 08:53.695
discharged in the view of local officials.

08:53.785 --> 08:57.805
There was room for only one set of regulations.

08:58.465 --> 09:00.325
The city's own Calgary

09:01.185 --> 09:05.525
relied on a rarely used provision in Alberta law,

09:06.025 --> 09:08.685
which authorizes the courts to modify

09:08.945 --> 09:11.565
or strike a covenant, which is found to conflict

09:11.565 --> 09:15.725
with local end use regulations if the court believes

09:15.725 --> 09:16.925
that the modification

09:16.985 --> 09:19.405
or discharge of the covenant is in the public interest.

09:20.265 --> 09:24.005
And the case, which is called house in Calgary from 2022,

09:24.065 --> 09:27.525
was significant because it was previously held

09:27.755 --> 09:28.925
that a covenant

09:29.025 --> 09:33.205
and zoning are in conflict, only if it is impossible

09:33.225 --> 09:34.845
to comply without, with one,

09:34.995 --> 09:36.925
without running a foul of the other.

09:37.665 --> 09:40.165
But because in Alberta, both covenants

09:40.165 --> 09:43.885
and zoning are restrictive in nature, that is they spell out

09:43.885 --> 09:46.205
what the owner cannot do with their land rather than

09:46.205 --> 09:47.725
what the owner must do with their land.

09:48.565 --> 09:52.365
Conflicts were thought to arise rarely, if ever.

09:52.795 --> 09:56.485
However, in this instance, the court was persuaded

09:56.675 --> 09:59.525
that there was indeed a conflict between the private

10:00.265 --> 10:03.885
and the public regulations as they pertain to a small number

10:03.885 --> 10:05.925
of, properties, and the court

10:06.645 --> 10:08.485
discharged the covenants against those properties.

10:09.105 --> 10:12.765
And that decision may signal a change in the court's

10:13.085 --> 10:17.645
attitude toward large scale covenants when those impede,

10:17.815 --> 10:19.005
local policies.

10:19.545 --> 10:21.485
Uh, there have been calls,

10:22.065 --> 10:25.685
by legal scholars in the US also, in, in view

10:25.685 --> 10:28.765
of the housing crisis there, at least in parts

10:28.765 --> 10:32.605
of the country that, covenants that restrict the supply

10:32.605 --> 10:35.645
of land should not be enforced as a matter of public policy.

10:36.505 --> 10:39.685
But there's also a strong argument to uphold covenants,

10:40.015 --> 10:43.325
which is that the parallel existence of private

10:43.345 --> 10:45.965
and public regulations provides opportunities

10:46.225 --> 10:49.165
for competing planning visions, planning ideals,

10:49.545 --> 10:52.845
and that it's necessary to decentralize planning authority.

10:54.265 --> 10:57.805
And there is one last argument against interfering

10:57.805 --> 11:00.245
with covenants, and that is the critical role

11:00.315 --> 11:03.205
that they play in private conservation arrangements.

11:03.595 --> 11:06.565
Imagine a farmer, who is set to retire,

11:06.625 --> 11:09.605
but would like to ensure that the land continues

11:09.605 --> 11:12.325
to be farmed rather than being redeveloped

11:12.355 --> 11:13.645
into, say, country homes.

11:14.385 --> 11:16.045
The farmer can sell

11:16.145 --> 11:18.845
or donate the development rights to a land trust,

11:18.845 --> 11:20.165
which is a,

11:20.215 --> 11:24.205
charitable non-profit organization dedicated to conservation.

11:24.705 --> 11:28.285
And the land trust will register a special,

11:28.565 --> 11:31.365
covenant called a conservation easement against the land,

11:32.125 --> 11:33.885
ensuring that the land shall never be used

11:33.945 --> 11:37.005
for any purpose other than agriculture.

11:37.905 --> 11:40.085
And similarly, a developer who volunteers

11:40.105 --> 11:44.045
to forego development opportunities in one location may be

11:44.045 --> 11:48.125
granted in exchange special development rights elsewhere,

11:48.545 --> 11:50.405
but only if the developer's end

11:50.405 --> 11:55.005
of the bargain can be guaranteed by a restrictive covenant.

11:55.425 --> 11:56.445
And these arrangements

11:56.505 --> 12:01.085
and similar initiatives would not be realized if we relied

12:01.085 --> 12:02.485
solely on zoning.

12:02.945 --> 12:05.125
Uh, the point that I'm making is

12:05.125 --> 12:08.405
that so-called private covenants can serve the public

12:08.765 --> 12:13.245
interest to sometimes more effectively than public

12:13.315 --> 12:14.525
land use controls.

12:15.305 --> 12:20.165
If legal reliance on covenants, is, continues

12:20.165 --> 12:21.165
to be undermined,

12:21.475 --> 12:25.765
then we can expect a decline in private conservation.

12:28.295 --> 12:33.195
So I, continue to be fascinated by the interplay

12:33.195 --> 12:36.195
between private and public land use regulations.

12:36.775 --> 12:39.995
Uh, I think both will determine what our cities look like

12:40.135 --> 12:42.155
and how we can protect our natural areas.

12:43.055 --> 12:47.075
And it will be interesting to see the developing attitudes

12:47.075 --> 12:48.675
of planners, elected officials

12:49.415 --> 12:52.515
and the courts, towards covenants in particular.

00:00 - This article was inspired by several recent land use disputes that arose from municipal initiatives to increase densities in established residential areas in, many metropolitan areas. In, in Canada and the United States.

00:16 - Whole neighborhoods, and even entire suburbs, especially those built after Second World war, are reserved for so-called single family detached homes, meaning that only one dwelling unit designed to accommodate one household was built on each lot, those lots, often being quite large by, today's standards. And buyers overwhelmingly preferred to live in such neighborhoods if they could afford it.

00:44 - And local councils passed zoning bylaws that generally ensured that the character of these neighborhoods is for the most part, fixed. meaning that a resident of a single family neighborhood could be reasonably sure that his or her neighbors could not put the, the, their property to a different use, say a business, or build an apartment building on the street. These low density patterns supported by local zoning bylaws have persisted for decades,

01:17 - but policymakers recently embarked on reforms that greatly relax existing land use restrictions, and some councils have rewritten their zoning codes to abolish single detached, zones altogether and several provinces and states. Ontario and California being two examples passed, legislation that overrides local zoning codes and allows multiple dwelling units to be built on any land zone residential.

01:47 - And the City of Edmonton, changed its regulations to make it easier, to split, a large residential lot into two smaller parcels. There are two reasons for these zoning reforms. The first reason is that, relaxing land use restrictions increases the supply of developable land, which may improve housing affordability. And the second reason is that low density residential patterns, are widely regarded

02:20 - as less sustainable than compact less car dependent neighborhoods. Now, arguably the case for zoning reforms in Canada is not as strong as it is in the United States, chiefly because Canadian zoning codes are more permissive. In the United States, metropolitan areas are often made up of many small suburban municipalities where almost all of the land is zoned for single household detached on large lots. Whereas in Canada, cities are less fragmented

02:51 - and as much as one half of the land designated for housing is zoned multifamily. Nevertheless, Canadian Cities are quite busy rewriting their zoning codes, but there is a fly in the ointment, and that is the existence of a completely separate mode of regulating land use called restrictive covenants. And covenants predate zoning by half a century, and there are increasingly relied on by developers and homeowners who feel

03:21 - that zoning is no longer a dependable means of stabilizing, their neighborhoods. So what are covenants? covenants are essentially a special kind of land use contract, best explained, using an example, suppose that you want to purchase part of my land and I'm agreeable to selling, but I am worried that you will use, the property that you're buying for a purpose that I find objectionable. for example, a glue factory.

03:54 - So we stipulate in the sale agreement, that you promise not to use your new property for a glue factory. If I can't get that promise in writing, then I won't sell. And maybe it's you who are concerned about my use of my land. So you insist on the appropriate restrictions in the contract between us. The thing about contracts is that they're only binding on the parties who signed them.

04:25 - If you promised not to use your property in some prescribed manner and subsequently transferred your title to a new owner, that new owner would be free from any obligation that they did not personally undertake. But in the middle of the 19th century, the courts in England created a special exception to this rule. If you covenanted with your neighbor regarding the use of your land and the covenant,

04:55 - meaning the contractual promise met specific, requirements, which I will not go into here, then anyone taking title from me with notice of the covenant would be bound by it. And anyone taking title from my neighbor would be entitled to enforce the covenant. Now, we lawyers say that the covenant is now annex to the land in question, so that when you acquire the land, you also acquire the benefit or the burden of the covenant. Now, imagine a whole neighborhood governed by some sort

05:32 - of super covenant that consists of mutual restrictions undertaken by and for the benefit of all of the lands governed by the covenant. In Canada, those covenants are called building schemes. A building scheme may be enforced by any owner against any other owner, and they can only be changed by consensus of all of the property owners or by special proceedings in the courts.

06:01 - And before the advent of zoning, developers used covenants to fix the character of neighborhoods to suit homeowners preferences. And importantly because covenants are private arrangements, they're generally beyond the reach of local policymakers. Once zoning became acceptable, it replaced covenants as the go-to method of regulating land uses. But in Edmonton, and also, Calgary, these are, Alberta's two largest cities.

06:33 - And among the fastest growing in Canada, there are still several large scale building schemes. Edmonton's Glenora neighborhood, for example, is a residential area still governed by the, notorious caruthers caveat that was registered over 100 years ago. And that covenant was designed to protect the neighborhood's amenities and exclusive character. And it stipulates that no more than one, detached

07:00 - or semi-detached dwelling, may be built on any lot and it has to be set back at least 25 feet from the street. And the neighborhood's proximity to the center makes it attractive for redevelopment, but not withstanding Edmonton's efforts to allow it. The residents have been largely successful so far in suing to enforce the covenant and block redevelopment proposals. But it's not just the older covenants that impede municipal zoning reforms, initiatives to establish new covenant, covenants.

07:37 - were launched in some mature neighborhoods in Edmonton. I gave the, greater hardesty, example in my article, and that represents, residents response to some of the recent efforts to, bring in more density, bring in more mixed uses, et cetera. and on top of that, we have developers who continue to register covenants in new neighborhoods. And one of the things that, struck me about the controversies surrounding residential covenants were, the sentiments of municipal officials,

08:17 - and Edmonton officials cautioned homeowners that entering enduring binding arrangements, could be detrimental to their long-term interest. It's better they said to trust the city's regulations to be more responsive and adaptable. But, Calgary, took a step farther. when a covenant from the 1950s stood in the way of the city's plans for densification of the Banff Trail neighborhood, the city applied to the court to have the covenant

08:51 - discharged in the view of local officials. There was room for only one set of regulations. The city's own Calgary relied on a rarely used provision in Alberta law, which authorizes the courts to modify or strike a covenant, which is found to conflict with local end use regulations if the court believes that the modification or discharge of the covenant is in the public interest. And the case, which is called house in Calgary from 2022,

09:24 - was significant because it was previously held that a covenant and zoning are in conflict, only if it is impossible to comply without, with one, without running a foul of the other. But because in Alberta, both covenants and zoning are restrictive in nature, that is they spell out what the owner cannot do with their land rather than what the owner must do with their land. Conflicts were thought to arise rarely, if ever.

09:52 - However, in this instance, the court was persuaded that there was indeed a conflict between the private and the public regulations as they pertain to a small number of, properties, and the court discharged the covenants against those properties. And that decision may signal a change in the court's attitude toward large scale covenants when those impede, local policies. there have been calls, by legal scholars in the US also, in, in view

10:25 - of the housing crisis there, at least in parts of the country that, covenants that restrict the supply of land should not be enforced as a matter of public policy. But there's also a strong argument to uphold covenants, which is that the parallel existence of private and public regulations provides opportunities for competing planning visions, planning ideals, and that it's necessary to decentralize planning authority. And there is one last argument against interfering with covenants, and that is the critical role

11:00 - that they play in private conservation arrangements. Imagine a farmer, who is set to retire, but would like to ensure that the land continues to be farmed rather than being redeveloped into, say, country homes. The farmer can sell or donate the development rights to a land trust, which is a, charitable non-profit organization dedicated to conservation. And the land trust will register a special,

11:28 - covenant called a conservation easement against the land, ensuring that the land shall never be used for any purpose other than agriculture. And similarly, a developer who volunteers to forego development opportunities in one location may be granted in exchange special development rights elsewhere, but only if the developer's end of the bargain can be guaranteed by a restrictive covenant. And these arrangements and similar initiatives would not be realized if we relied

12:01 - solely on zoning. the point that I'm making is that so-called private covenants can serve the public interest to sometimes more effectively than public land use controls. If legal reliance on covenants, is, continues to be undermined, then we can expect a decline in private conservation. So I, continue to be fascinated by the interplay between private and public land use regulations.

12:36 - I think both will determine what our cities look like and how we can protect our natural areas. And it will be interesting to see the developing attitudes of planners, elected officials and the courts, towards covenants in particular.

Faculti AI can make mistakes