What the heck are 'restrictive covenants' and how do they affect Calgary's housing situation?

If you think you can do whatever you want with your own property, your land title may beg to differ.

Dave Robertson learned this the hard way.

Years ago, the Calgary resident went to city council to apply for a rezoning permit in order to build a backyard suite behind the bungalow where he lives with his wife. They planned to rent their existing house and make the small, secondary dwelling their retirement home.

City council approved their re-zoning application in October 2015. (This was before Calgary made secondary suites more broadly permitted by default.) These types of applications were often controversial but theirs passed by healthy 13-1 vote in favour. It helped that Robertson had the blessing of his immediate neighbours to go ahead with the project.

Everything seemed on track, until the couple started looking deeper into what they initially thought would be a niggling detail: the restrictive covenant registered on their land title. They believed the document, which dated back to the 1950s and forbade the construction of secondary dwellings, would have little relevance in the context of a project that met all the city's legal requirements in the 21st century.

They were wrong.

"The lawyers that we spoke to felt that there was a substantial risk that we would spend a lot of money on legal fees — you know, in excess of $10,000 — and that, in fact, our odds of actually having the the covenant relaxed at that time were less than 50 per cent," Robertson said.

They ended up abandoning the project. The financial risk was simply too great.

Robertson hopes others can learn from his experience. And he believes it has renewed relevance today, as the City of Calgary looks to address an affordable housing crisis by pressing forward with a new housing strategy that may include blanket rezoning, which would make it easier to build duplexes and row houses throughout the city.

He wants Calgarians to know that, even if the city permits higher-density housing in a particular area, restrictive covenants can still stand in the way.

Restrictive covenants are binding, legal agreements that are attached to property titles. They restrict what the owner of a property can do with the land and, in some cases, also put obligations on the property owner.

When you buy a property with a covenant attached, you take on all those restrictions and obligations. In many cases, the covenants continue to apply no matter how many times the property changes hands.

Many older covenants were created when lands were initially subdivided. Prior to municipal governments taking on the power of land-use zoning, they were a primary tool to organize towns and cities.

Broadly speaking, covenants helped separate residential development from commercial and industrial development. But they also delved into more minute development rules aimed at fostering the character of a community, including restrictions on the size and appearance of buildings and the types of activities allowed.