Acquired rights and security of your property

Every building owner knows it well: municipal bylaws can sometimes be complex and constitute a tangle of rules to follow. These rules can also be modified, canceled, substituted by others, without necessarily that you are informed each time.

Faced with this situation, it is always useful to remember that your building may benefit from acquired rights, because of its location, its previous use and its date of construction or the work that transformed it.

The theory of acquired rights therefore makes it possible to invoke that a municipal by-law will not apply to your building, because it existed and was occupied prior to the coming into force of this by-law. The previous use of the building can then derogate from this by-law if this use was legal and real before the by-law was adopted, and if it has always continued without a significant interruption (i.e. the use did not cease nor it was abandoned).

The owner of the building will then have to validate his acquired right with the municipality concerned, for example by obtaining a building permit or a certificate of occupancy.

Limits of acquired rights

However, certain regulatory standards relating to construction (for example, stairs), fire prevention (for example, the installation of sprinklers) or even public safety will prevent the application of acquired rights to your building.

This is how the court rejected the case of an owner who refused to comply with a new regulation of his municipality requiring him to fencing the outdoor swimming pool of his building. Although this swimming pool was used without a fence before this new regulation, the Superior Court recalled that the objective of the safety of people of this regulation was imperative and largely prevailed over this previous use. The owner therefore had the obligation to comply and to enclose his outdoor swimming pool (see Théroux v. Municipalité du village de Stukely-Sud, 2005 CanLII 28767 (QC CS) ).

A costly BBQ

In another case, the tenant of a dwelling was sued by three insurance companies for having set fire to a building after using a charcoal barbecue. The charcoal bag was stored after use in a shed, on the balcony of this building. Although the claims adjusters firmly concluded that the starting point of the fire was the charcoal bag in the shed, the location of the shed against the building contravened an urban planning by-law of the City of Montreal, which requires to install a shed at a minimum distance of three meters from any residential building. This by-law was adopted in order to reduce and stop a significant increase of destructive sheds’ fires in the past.

Since the involved insurance companies could not demonstrate that the building of their insured benefited from the acquired right to maintain a shed against its walls, this violation of this city by-laws resulted in a sharing of liability for the fire between the landlord and his tenant. The latter, represented by the author of this text, was therefore able to settle this lawsuit for a minimal fraction of the amount claimed by the insurers.

It is essential to comply at all times with the municipal by-laws that apply to your building. If you certainly risk a fine because you contravene to the by-law, you could also be in breach of regulatory provisions that could engage your liability in events with much more serious repercussions... Better safe than sorry!

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