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Executive Summaries Jan 29, 2021

Major Renovations: Avoid Having Your Acquired Rights Go To Dust

When purchasing a new immovable with the intention of carrying out major renovations, it is important to consider whether these renovations will be permitted by the currently applicable regulations or whether they will be analyzed by the municipality under the grandfathering system.

There are numerous examples of buildings that were probably constructed when these standards did not exist and therefore benefited from grandfathering:

  • a cottage located, all or in part, within a waterfront protection strip;
  • a building located on too small a lot;
  • a residence located near a cliff that does not respect the setback margin.

Some Basic Principles on Grandfathering

A grandfathered building is limited in the modifications that can be made. Each zoning by-law includes a grandfathering chapter that sets out what can and cannot be done on such a regime. Each municipality's by-law is different. However, some basic principles are found in all by-laws.

It should be noted at the outset that the grandfathering regime must be interpreted restrictively. This means that the rules must be strictly followed and that it is not possible to interpret them broadly in order to "stretch" what can be done.

Generally, it is not possible to aggravate a grandfathered situation. For example, extending the cottage located in the shoreline protection strip towards the lake will usually be prohibited. Obviously, maintenance repairs to keep the building in good condition will be permitted. On the other hand, relocation and major renovations will be more strictly controlled. A demolition that becomes necessary following a disaster is also governed by separate rules that usually allow for reconstruction within a certain time frame.

The Repercussions of Demolition

Unlike a post-disaster demolition, if a grandfathered building is voluntarily destroyed, the grandfathered rights will be lost. It is, therefore, essential not to proceed with such a demolition. Voluntary demolition does not only include completely "throwing down" a building. Many other acts of major renovations can be equated with a voluntary demolition and thus result in the loss of acquired rights.

Here are a few things you should not do as an owner or developer if you wish to avoid your project to be considered a new entity and, in consequence, losing the acquired rights protecting your immovable:

  • Complete removal of existing facilities and buildings;
  • The building collapses during construction and becomes a total loss;
  • When one building is destroyed and another is rebuilt with some parts of the old construction, it is not a renovation;
  • When a new house is built around the old building and the old building is then pulled down and moved;
  • There is nothing left of the original structure; everything has been removed;

On the contrary, in the following cases, since the project won’t be considered a new entity, the acquired rights will be preserved:

  • The structure of the house is not demolished or rebuilt; it is temporarily moved and preserved;
  • Pieces of wall affected by mould are replaced, retaining three out of four wall sections;

In closing, we reiterate the importance of informing you about your building’s situation and its compliance with zoning regulations before undertaking any work whatsoever. A good legal accompaniment will allow you to know the rules of the game so that you can adapt your project to the regulations in force or the acquired rights regime.

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