Séparation de la propriété? Quelques questions à prendre en considération
mars 26, 2014 Read Time: 2 minutes

A severance of land to create a new lot requires an application to the Committee of Adjustment (‘Committee’) for one another. In this article, I will review some of the conditions that may be attached to the consent, and which will be made before the consent of the Committee will be formalized. The conditions are time sensitive in that they must be satisfied with the date of the decision. If the conditions are not met, the consent lapses and a complete new application will 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 parcel must be replaced by the parcel. We usually recommend that these applications are made so that they can 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 standards that the Committee of Adjustment may impose when it is granted.

  1. Each parcel of land is dedicated to sanitary and water services connected to the city. The services can not cross the severed property. If they 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 that the property is in the process of being independent. This is frequently a factor with semi-detached houses located in older neighborhoods.
  2. The owner must provide proof of the fact that it is independent and does not include 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 between the completed units with Ontario Building Code . Currently, the Code requires a separation with fire-resistance ratings that comply with the Code 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 the purpose of maintenance, or for other purposes, particularly with respect to semi-detached homes. Easements form part of the legal description. It is advisable to have an easement agreement prepared and registered on the title and the obligations of each property owner.
  6. The registration of restrictive covenants may also be one of the conditions of severity. For example, the property may have restrictions attached to the property (eg conformity of landscaping, facade, paint colors of the two adjoining properties). In order for restrictive covenants to run the land, they must be negative in nature and set out what can not do. In addition, restrictive covenants must be registered on title to the property.

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

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

Service: Droit immobilier

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