The Carruthers Caveat: What Developers Need to Know

Introduction

Glenora is one of Edmonton’s most sought-after neighbourhoods, known for its tree-lined streets, historic homes, and proximity to downtown. But for infill developers eyeing opportunities in this area, there’s a hidden challenge that can throw a wrench into even the best-laid plans: the Carruthers Caveat. This restrictive covenant, which is registered on the land titles for properties in Glenora south of Stony Plain Road, limits what property owners can do with their land. So, if you’re thinking of developing in Glenora, the Carruthers Caveat is something you absolutely need to understand.

The Carruthers Caveat was originally put in place in the 1910s to limit density and restrict the types of buildings that could be built to single detached and semi-detached housing. However, as Edmonton slowly brings density back to its established areas, as called for in City Plan, today the caveat is a significant hurdle for those wanting to bring new homes to the neighbourhood. Whether you’re planning to build row housing, multi-unit housing, or even just add a basement suite, the caveat could stop you in your tracks.

For developers, the risks associated with the Carruthers Caveat are real, including community pushback, project uncertainty, and legal challenges. No one wants to invest time and money into a project only to have it stalled or blocked by a legal issue, so it’s essential to understand the risks upfront.

To a certain extent there are ways to manage these risks and, in some cases, work to remove the caveat altogether. However, we should be clear: Glenora isn’t for the risk-averse. Developing in this neighbourhood is best suited for those who are interested in pushing boundaries, challenging the status quo, and navigating complex regulatory and legal landscapes.

In this article, we’ll break down what you need to know about the Carruthers Caveat, the risks it poses, and how you can mitigate them to keep your project moving forward.

What is the Carruthers Caveat?

In Alberta, a restrictive covenant is a legal agreement made between property owners that places limitations on how land can be used. These agreements are registered on land titles and bind all future property owners unless they are legally removed. Restrictive covenants are often private arrangements, intended to preserve specific characteristics or uses of the land. The Carruthers Caveat in Glenora is one such covenant, limiting the density and type of development allowed in the neighbourhood.

The Carruthers Caveat was established by James Carruthers, a prominent businessman and land developer in the early 20th century who owned significant portions of land in Glenora. Carruthers envisioned Glenora as a prestigious residential area and used this restrictive covenant to maintain a low-density, single-family character, prohibiting anything other than detached and semi-detached homes.

How is the Carruthers Caveat Enforced?

The City of Edmonton is not party to the Carruthers Caveat and is therefore not required to comply with it or enforce it. The City of Edmonton makes decisions based on its standard planning and regulatory framework, including City Plan, the applicable district plan, and Zoning Bylaw 20001.

The Carruthers Caveat operates separately from the City’s policies and bylaws, creating an additional layer of complexity. Even if the City approves a development permit under current zoning rules, the Carruthers Caveat can still prevent the project from moving forward. That’s because enforcement of the caveat rests with private individuals, typically neighbours who wish to maintain the historical restrictions.

How to Remove the Carruthers Caveat?

Under Alberta’s Land Titles Act, a restrictive covenant like the Carruthers Caveat can be removed in two ways: either i) by agreement of all parties to the original covenant, or ii) by a judge if it is found that there is a conflict between the caveat and the zoning on the site that makes the two unable to coexist, and that the removal of the caveat is in the public interest.

In Glenora, the Carruthers Caveat affects a large number of properties, making it nearly impossible for all landowners to collectively agree to remove it. Therefore, the primary recourse for developers is to seek a court order to discharge the caveat.

So, to remove the Carruthers Caveat, developers first need to create a conflict between the caveat and the site’s zoning. This typically involves rezoning the land to a designation that conflicts with the caveat’s restrictions, such as zoning that doesn’t permit single detached or semi-detached housing. Situate provides expert guidance in navigating this critical first step, helping developers understand the best zoning strategy to establish this conflict.

Once the conflict is in place, the next step is to bring the matter before a judge. The court must then determine if the caveat and the new zoning can reasonably coexist or if the caveat should be removed due to the conflict. Legal experts handle the court proceedings, presenting evidence that the current zoning requirements cannot be fulfilled with the caveat in place and that the removal is in the public interest.

The outcome of a current court challenge to the Carruthers Caveat has not yet been determined. The crux of the matter that the judge will examine is whether the site can be redeveloped in compliance with both the caveat and the zoning. While this route provides a path forward, it requires time, money, and a high tolerance for uncertainty.

What About Row Houses and Suites? Are They Allowed?

The Carruthers Caveat restricts the development of anything other than single detached or semi-detached homes in Glenora. According to the neighbours’ submissions in an ongoing court challenge, there is acknowledgment that side-by-side duplexes and subdividing lots to build “skinny” homes are generally seen as acceptable within the Carruthers Caveat area. This suggests that there may be some room for modest densification without directly challenging the caveat, so long as the new homes are ground-oriented, can be subdivided into fee simple lots, and don’t significantly alter the existing low-density character of the neighbourhood.

The Carruthers Caveat doesn’t specifically reference very small scale infill projects like basement or garden suites.

Can Neighbours Enforce the Caveat Even After Something is Built? For How Long?

One major concern for developers is the potential for neighbours to enforce the Carruthers Caveat after a new structure has already been built. The short answer is: yes, neighbours can challenge the development in court, but there are limitations. In Alberta, the general limitation period is two years from when a party knew or ought to have known that it had a claim.  

One way that could reduce risk is to secure a development permit and post a sign on-site for the duration of the two-year limitation period before starting construction. While this approach doesn’t completely eliminate the risk of neighbours’ enforcing the caveat, it strengthens the argument that neighbours had ample notice of the planned development. This tactic provides an additional layer of protection, though cannot fully safeguard against potential legal challenges.

It’s important to remember that Glenora’s residents are particularly vigilant about preserving the character of their neighbourhood, and the risk of enforcement action, though reduced, still lingers. For developers, being upfront with neighbours, clearly communicating plans, and taking some precautionary steps can help navigate the complexities of the Carruthers Caveat while minimizing potential legal challenges.

Final Thoughts

The Carruthers Caveat represents both a barrier and a call to action for developers interested in adding new homes to Glenora. While the caveat restricts many forms of densification, it’s not necessarily insurmountable. Situate can guide you through rezoning to create a conflict that opens the door to court proceedings, and legal experts can handle the courtroom challenges. Yet, developing in Glenora requires a willingness to engage with neighbours, embrace uncertainty, and navigate uncharted territory.

For those who are up to the challenge, Glenora offers a unique opportunity to shape a prestigious neighbourhood for the 21st century while navigating one of Edmonton’s most storied legal restrictions. As always, understanding the rules, mitigating risks, and consulting the right experts will be your best tools in navigating the complexities of the Carruthers Caveat.