Kaplinsky, who teaches the Carruthers Caveat in his courses, says private covenants have a long history in property law, much longer than municipal bylaws. They play an important role in development and that they remain very much in fashion. Many new neighbourhoods in Edmonton are being developed under private covenants. In the southwest, Ambleside, for instance, has a restrictive covenant that requires certain types of fences, landscaping and roofing materials.
Kaplinsky says homeowners have long entered private covenants to “stabilize the character of the neighbourhood,” and, in the minds of many, protect the value of their investment. Many early covenants were exclusionary with reference to the character of the user; that is, you can’t sell the property to Black people, or Armenians, or Jews, or French Catholics, or whomever homeowners chose to direct their bigotry at.
But most have been about amenities or the perceived harms that apartment buildings bring: parking and noise problems, congestion, monopolization of sunlight and fire safety issues. The courts eventually forbade openly racist covenants, but the premise behind them and their roots in private law remain intact.
Kaplinsky says zoning does bring advantages over covenants because it allows for control of an area larger than the covenant. “You’re not going to have to worry about spillover effects at the boundary of the covenant,” he says. But in recent years, he says, many people have lost faith in their elected councils, who may favour social or environmental considerations, such as densification, over individual asset protection. “I’m not saying they’re not important, they are,” says Kaplinsky, “but from the perspective of the homeowner, if you can’t rely on the zoning you can go back to the covenant.”