Severing Property? Some Issues to Consider

A severance of land to create a new lot requires an application to the Committee of Adjustment (‘Committee’) for consent to sever one parcel of land from another. In this article, I will review some of the conditions that may be attached to the consent, and which will have to be satisfied before the consent of the Committee will be formalized. The conditions are time sensitive in that they must be satisfied prior to one year from the date of the decision of the Committee. If the conditions are not met within that time frame, the consent lapses and a complete new application will have to be made. No allowance is made for the fact that the severance of the parcel has already been considered and agreed upon by the Committee. The application will be subject to the same fees and subject to a new hearing.

The parcel of land for which the severance is sought is the ‘severed parcel’, and the remaining parcel of land is the ‘retained parcel’. Under the terms of the Planning Act, the severed parcel must be sold prior to the retained parcel. We usually recommend that reciprocal applications are made so that each parcel is severed from the other, and either parcel can then be sold at any time. In Ottawa, the fees are reduced for the reciprocal application. In other jurisdictions, there may be no such reduction, and in some cases it may not make economic sense to submit reciprocal applications.

The following sets out some of the standard conditions that the Ottawa Committee of Adjustment may impose when consent to sever is granted.

1. Each parcel of land (severed and retained) must have separate storm, sanitary and water services connected directly to City infrastructure. The services cannot cross the severed property. If they cross or are not independent, the owner will be required to relocate or construct new services at his or her cost. The cost can be fairly substantial, and it is advisable to confirm if the property for which a severance is sought has independent sewer and water facilities. This is frequently a factor with semi-detached houses located in older neighborhoods.
2. The owner must provide proof that the services are independent and do not cross the severed property by hiring a plumbing contractor to conduct a sewer and water locate.
3. Fire separation between semi-detached properties is also a consideration. The owner must satisfy the City’s Building Services Branch that the fire separation (demising wall) between the units complies with Ontario Building Code. Currently, the Code requires a separation with fire-resistance ratings that conform with the Code’s Major Occupancy Fire Separations Table, in addition to other specific requirements.
4. A new reference plan will be required which delineates the severed parcel and the retained land. The reference plan must be prepared by an Ontario Land Surveyor and deposited in the registry office. The reference plan provides the new legal description of the properties.
5. Easements may be required for maintenance and encroachment purposes or for rights-of-way, particularly with semi-detached homes where one of the walls of the house lies directly on the lot line. Easements form part of the legal description. It is advisable to have an easement agreement prepared and registered on title setting out the rights and obligations of each property owner.
6. The registration of restrictive covenants may also be one of the conditions of severance. For example, if a semi-detached dwelling is severed, the property owner may wish to have restrictions attached to the property (e.g. conformity of landscaping, façade, paint colours of the two adjoining properties). In order for restrictive covenants to run with the land, they must be negative in nature and set out what one cannot do. In addition, restrictive covenants must be registered on title to the property.

As this article illustrates, there are many areas to consider when a severance of a property is contemplated.