Judge overrules century-old legal covenant restricting how a property can be developed
CBC
A century-old covenant that restricted how properties could be developed in a central Edmonton neighbourhood has, for the first time, been successfully challenged in court.
Earlier this month, an Alberta judge overruled the restrictions set out by the Carruthers Caveat on a property in the Glenora neighbourhood, located west of Edmonton's downtown.
In the decision, Court of King’s Bench Justice Ayla Akgungor said the covenant, which dates back to 1911, conflicts with Edmonton's zoning bylaw and said removing it is in the public interest.
The court challenge had been launched by a numbered Alberta company after a previous one failed. The company’s directors include Edmonton lawyer James Scott and a real estate company with a B.C. address. Both Scott and the law firm that filed the challenge declined to comment.
Previous discussions involved developing a six-storey apartment on the site at 138th Street and 102nd Avenue. The property will be steps from the Valley Line West LRT, which is currently being built on 102nd Avenue.
“This is really a milestone, I would say for the neighbourhood, for housing in Edmonton, for our city as a whole,” said Chelsey Jersak, strategic director of Situate, a development consultant who was hired to do the rezoning application for the site.
Created by James Carruthers in 1911, the caveat was intended to create a prestigious subdivision in Old Glenora, allowing only the finest houses for professional and commercial elite, according to affidavits submitted by residents.
Part of the terms of the legal document was that only single family homes or duplexes could be built. The caveat is registered on more than 400 properties in Glenora.
The resulting neighbourhood has historic value as one of the best conserved examples of a “garden city suburb” design in Western Canada.
The Carruthers Caveat helped inspire a more recent wave of restrictive covenants that have been added to properties in Glenora and some other neighbourhoods. These newer restrictive covenants have been seen as a solution by homeowners trying to head-off the construction of large, multi-family buildings, which were allowed after the city did a zoning overhaul in 2024.
Some 65 Glenora homeowners tried to protect the Carruthers Caveat in court.
Wendy Antoniuk, one of the Glenora homeowners involved, wrote in an email to CBC that residents will be seeking an appeal. She said discussing the impact of the decision is premature.
“It is important to note the caveat still applies to over 400 properties in Glenora and fellow Carruthers Caveat property holders intend to uphold it through legal action, if necessary,” Antoniuk said.
The site is two lots with single family homes that have been merged. City council upzoned it to a medium-rise apartment zone in 2022. It is just off an arterial road and is close to two high-rise developments built on lots not subject to the caveat.
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