Title Restrictions

Allowable Title Restrictions

The Alberta Land Stewardship Act directs that the provincial government may make regulations with regard to which title restriction devices would be acceptable in a TDC program. Given that 1) the allowable purposes are limited to environmental, scenic, agricultural and historic conservation, and 2) conservation easements were extended to include agricultural conservation, it is logical to assume that the TDC Regulation will require a:

• A conservation easement; or
• A Provincial Historic Resource or a Municipal Historic Resource designation under the Historical Resources Act.

Common law restrictive covenants are not likely to be recommended as they provide no benefit over and above the conservation easement tool, can be unwieldy, require a ‘benefited’ parcel, and therefore likely to add confusion rather than clarity to a TDC program.

Conservation Easements

For TDC programs with conservation goals related to environmental, aesthetic, or agricultural values of the land, the logical tool for title restriction is the conservation easement (CE). The TDC Regulation is likely to direct that conservation easements created within the program must be satisfactory to the municipal council. This can be accomplished in two ways.

First, a municipality is an eligible conservation easement holder, and may choose to receive the CE directly. The municipality may also choose that a third-party, eligible CE holder (such as a land trust) hold the conservation easements that result from a TDC program. In either case, there is no requirement for a conservation easement to be perpetual within a TDC program, but that maybe the expectation from both municipal councils and program participants, as they seek conservation surety on a par with the enduring nature of the development.

The provisions of the conservation easement tool are also included under the Alberta Land Stewardship Act’s conservation and stewardship tools.

For more detailed information about conservation easements, visit the "Conservation Easements in Alberta" web guide, a joint project of the Miistakis Institute and the Environmental Law Centre.

Historic Resources Act Designation

For TDC programs with conservation goals related to historic or cultural values, the logical tool for title restriction is the designations under the Historic Resources Act. There are two designations likely to be identified by the TDC Regulation: the Provincial Historic Resource and the Municipal Historic Resource.

The Provincial Historic Resource designation enables the province to protect sites, structures or other works of people whose conservation is in the public interest. The Municipal Historic Resource gives municipalities the authority to protect historic places, as well. Both designations require the owners to get permission from the Province / municipality to make alterations. The TDC Regulation will likely clarify that these designations can be made under a TDC program for a parcel, or any aspect of that parcel (such as a building).