As a landowner, you may think you have the right to do whatever you want with your property. But, the fact is, you are limited in what you can do due to zoning by-laws and other ordinances like building codes.
It is, however, entirely possible that you may be exempt from the legal limitations imposed by these laws under something colloquially known as the grandfather clause.
What exactly are the grandfathered property rights in Ontario, how do they apply, and what does it mean for you as an owner or individual looking to purchase a property?
To help you make sense of grandfathered property rights, and to help you grow or protect your assets, we’ve put together this guide to tell you everything you need to know.
What Are Grandfather Rights in Property?
Grandfathered property rights in Ontario are a way to protect property owners from changes in zoning bylaws.
Grandfather rights allow property owners to continue with activities or operations when the zoning bylaws change after the non-conforming use has been established.
In essence, grandfather property rights allow owners and tenants to operate under the previous set of laws and regulations.
The Planning Act of Ontario legislates that changes in municipal zoning bylaws cannot be applied retroactively. Instead, if the property was legal under the previous zoning, it will now be deemed ‘legal non-complying’ or ‘legal non-conforming’ and be allowed to carry on.
Zoning bylaw changes apply only to subsequent developments and builds.
When Do Grandfathered Property Rights Exist in Ontario?
There are a few instances where grandfathered property rights exist in Ontario.
The first applies to zoning bylaws, as mentioned above. Perhaps you own an apartment building and have been operating a storefront out of the main lobby. Then, the municipality changes the zoning to prohibit commercial spaces. As long as the commercial space was legal before the change, you may be grandfathered, allowing the storefront to remain in operation.
Another instance where grandfathered clauses may apply to your property is in regard to changes in the building codes and regulations. If, for example, you own an old home that has a shed built well before you moved in that has been deemed too close to the property line, you may be exempt from having to tear down or move the structure as long as the building is safe.
The same can be applied to outdated plumbing or electrical. As long as the structure is safe, you may not need to upgrade to code. However, any subsequent renovations or builds on the property will have to conform to the new code.
As established by the 1948 Supreme Court ruling in Central Jewish Institute v. City of Toronto, usage in part of a building or structure can be expanded to encompass other parts of the building.
These rights, however, do not extend beyond the building or structure. So, if you wanted to add outdoor dining or build an addition to the structure of a restaurant, you would need to seek permission. The Ontario Planning Act grants the decision-making authority to the Committee of Adjustment for a municipality rather than initiating a process that would require a zoning by-law amendment or minor variance, both of which could be appealed to the Local Planning Appeal Tribunal.
Can a Grandfathered Clause Be Revoked?
A grandfathered clause, or legal non-conforming rights, in Ontario, cannot be unilaterally revoked but there are some parameters and controls on its usage and application.
Legally, a property owner needs to show the courts that:
- The land, building, or structure was lawful at the time of the bylaw change.
- The non-conforming use of the land, building, or structure has been continuous from the date of the bylaw change.
If the legal non-conforming usage has stopped, the new bylaw will apply and the property can no longer be used for the previous non-conforming purpose. There are some small exemptions to this stoppage.
Temporary interruption, like closing for renovations or for COVID safety, will not revoke the grandfathered property rights as long as there is an intention to resume use.
What Options Do You Have if Your Property Rights Aren’t Grandfathered?
Understanding whether or not your property rights are grandfathered can be a tricky thing, even for those in the real estate industry. This lack of understanding is often a source of significant tension and frustration between property owners and municipalities.
While it may initially appear to be a cut and dry matter, there are circumstances that can muddy the water.
If you were to buy an illegal non-conforming property, for example, you are not sheltered from legal ramifications and the property will not automatically become legal non-conforming if the previous owner was operating illegally.
The simple truth is that grandfathered property rights in Ontario are often examined on a case-by-case basis. While there are provisions written into the Planning Act of Ontario, there are nuances and circumstances in each case that may impact the decision.
Because of this, determining your options when not grandfathered must also be considered on a case-by-case basis.
In many instances, the property owner will have no choice but to conform to the new bylaws and ordinances. In others, there may be an opportunity for a genuine legal challenge.
This means that your best option, whether you have grandfathered rights or not, is to speak with an attorney that has experience in real estate law.
These attornies, especially if they are located in your municipality, will be able to determine your rates and the strength of any possible legal challenges to the restrictions being placed upon you.
Examples of Legal Non-Conforming Rights
A legal non-conforming property may be granted permission to modify or renovate as long as these changes apply to the legal non-conforming use. Grandfathered property rights do not apply to a legal non-conforming property looking to transition into a different non-conforming use.
For example, a legal non-conforming retail outlet in a residential zone will be granted the right to continue but the owner of that property cannot change that commercial space into a manufacturing plant.
The Planning Act states that the non-conforming rights are applied to “land, building, or structure.” This means that the grandfathered rights are granted to the land, building, or structure and not granted to the owner. So, if you own and operate a legal non-complying commercial use business in a residential zone, you can sell that property to a new owner and they will be permitted to continue the legal non-complying use. The new owners can adapt the business for their own purposes but they cannot change the use.
Look at it this way, if you sell your legal non-compliant Italian restaurant, the new owners can close, renovate, and reopen as a Thai restaurant but they cannot close, renovate, and reopen as a tattoo parlour.
Grandfathered property rights in Ontario that are tied to open-air usage (usage not tied to a specific building or structure), apply to the “land,” are more complicated to discern, and are open to interpretation based on intent and circumstances.
Whether or not the rights apply to the land in use or the entire lot that contains the land in use, is a matter of some debate and often depends on the circumstances, intent, and legal interpretation.
As an example, the courts have held that the legal non-conforming rights of a quarry located on part of a property can be extended to the entire property for the purposes of expanding the quarry.
But again, these decisions are typically made on a case-by-case basis.
Trust RBHF Professional Corporation With Your Property Rights in Ontario
Determining your rights as a property owner can be a challenge. This challenge is further complicated when the bylaws and zoning ordinances that govern the property change.
If you are concerned about your rights, are looking to purchase or sell a property that may be subject to grandfathered rights, or are looking to make amendments to a legal non-complying building or property, it is best to consult with our team.
Our Kingston lawyers are experts in real estate law and can advise you of your rights and support you in any legal challenges you face. Property ownership is a significant investment and you want to make sure that investment is working for you.
Contact us today to learn more about your property rights and obligations.