Municipal by-laws
Each municipality has its own particularities and a multitude of municipal by-laws exist. Depending on the use he intends to make of the immovable and the regulations of the municipality where it is located, the buyer must verify the feasibility of any construction or repair work, the establishment of a certain type of business, etc.
When a buyer tells his broker his intentions concerning the use he intends to make of the property, or when the broker determines that verification is necessary, the broker must recommend that his client check the municipal by-laws to ensure that his project can be carried out.
Acquired rights
An immovable that is in violation of a current municipal by-law may be grandfathered if it complied with the by-law in effect at the time of its construction. The burden of proof is always on the person claiming the acquired right.
Documents to be obtained:
- permit issued by the municipality;
- certificate issued by the municipality recognizing the existence of the acquired right.
In the absence of recognition by the municipality, the person claiming to have an acquired right will have to go to court to have this right confirmed.
► DUTIES AND OBLIGATIONS OF THE BROKER
When a seller claims that his property benefits from acquired rights, the broker must:
- complete section D2.6 of the form Declarations by the seller of the immovable and provide details under section D14;
- keep a copy of the document evidencing the acquired right in the agency’s record.
For his part, the buyer’s broker must:
- make the Promise to purchase conditional upon the seller providing, within a certain time period, proof of the existence of this acquired right using clause 9.1 of the Promise to purchase.
Minor variances
Each municipality is free to adopt regulations regarding minor variances, which means that these regulations differ from one municipality to another.
Definition1
A minor variance is an exceptional procedure by which the municipal council may authorize the carrying out of proposed work or the regularization of work in progress or completed that does not meet the provisions of the municipality’s planning by-laws.
Such a minor variance can only be granted if the following criteria are met:
- the application of the zoning and subdivision by-law causes serious harm to the applicant;
- it does not adversely affect the enjoyment of the right of ownership of the owners of neighbouring properties;
- it complies with the objectives of the municipality’s development plan;
- the work, if in progress or already completed, was done in good faith and covered by a permit.
1 See Affaires municipales, Régions et Occupation du territoire, Règlement sur les dérogations mineures. Repéré à https://www.mamh.gouv.qc.ca/amenagement-du-territoire/guide-la-prise-de-decision-en-urbanisme/reglementation/reglement-sur-les-derogations-mineures/
► DUTIES AND OBLIGATIONS OF THE BROKER
When a seller mentions that his immovable has been granted a minor variance, the broker must:
- complete section D2.6 of the form Declarations by the seller of the immovable and provide details under section D14;
- keep a copy of the document evidencing the minor variance in the agency’s record.
The buyer’s broker, for his part, must:
- make the Promise to purchase conditional upon the seller providing, within a given time period, proof of the existence of such a variance using clause 9.1 of the Promise to purchase.
Immovable requiring a minor variance
If the buyer’s renovation, development or expansion projects lead the broker to anticipate the obligation for the latter to obtain a minor variance to carry them out, the broker should articulate a clause to this effect under clause 12.1 of the Promise to purchase.
Non-compliance
Notwithstanding the above sections, it is quite possible that an immovable does not comply with the applicable municipal by-law.
In this case, this must be noted on the form Declarations by the seller of the immovable.
► DUTIES AND OBLIGATIONS OF THE BROKER
When taking up the brokerage contract, the box “yes” under clause D2.7 of the form Declarations by the seller of the immovable must be checked and details provided under section D14.
The form Declarations by the seller of the immovable must be attached to the Promise to purchase in order to release the seller from any liability toward the buyer.
