If you’ve previously bought an older home or cottage, or have renovated in the past, you’ve likely come across the term “lawful prior non-conforming use”, but frankly, most people know it more informally as “grandfathered”. The term ‘grandfathered’ is used rather often when it comes to real estate and property ownership when issues arise with the existing property that no longer conform to by-laws, ordinances, or construction standards. For example, you may be dealing with an electrical, plumbing or construction issue in and older home that doesn’t meet the current building codes. Or, perhaps your shed was built too close to the neighbour’s yard long before you moved in. As long as your building is safe, it may not have to be upgraded, relocated or torn down to meet the more current requirements – it’s been “grandfathered in”. However, any new construction, additions or renovations must meet the new building code or other by-law requirements.
How does it all work?
First of all, every case and every property is unique, so there can never be a blanket issue that is always “grandfathered” across the board. When reviewing an issue, inspectors, by-law officers and/or real estate lawyers first look at the records and the history of the property, then review all the facts in relation with municipal and provincial building codes.
If you are selling an older home or cottage, you may be concerned about whether certain issues comply with new zoning laws or building codes. In many cases, sellers can rest easy if the issue was already established before the new requirements were made, and if the use was lawful under the old zoning (and if legal permits were obtained at the time). In legal terms, we call it “lawful prior non-conforming use”.
Muskoka-specific concerns:
Here in Muskoka, grandfathering issues come up regularly because of the multitude of older homes and cottages in the area – many going back to the 1800’s. Some cottages (and additions) were built without permits altogether, or many had work done by ‘Grandpa Joe’ who wasn’t a qualified builder…or electrician, or plumber for that matter. Further, some people think that because a cottage is used only seasonally, or that it’s simply a recreation property, it doesn’t need to meet current zoning or building codes, which isn’t the case. That’s why we have so many issues around code compliance in this area.
It’s very important if you are thinking about buying in cottage country that you first find out about what items are or are not grandfathered, or you could find yourself dealing with very costly renovations or repairs. There are also strict environmental policies that need to be complied with. For example, ‘new build’ boathouses aren’t allowed in this region anymore, so the only option may be to repair or permanently remove an older one because a re-build is not an option. Further, there are newer conservation policies to protect the rivers and lakes, so water tables, septic tanks, septic beds, wells, etc. have strict codes to adhere to. Turning a blind eye to these important regulations is never advised, because when the time comes to sell your property, or even if you get inspected for insurance or mortgage purposes, you may find yourself on the hook for all necessary upgrades or repairs.
What’s next?
If you’re worried about whether your home or cottage complies with your municipality’s zoning and by-laws, be sure to do your research, and hire a qualified inspector. Also, working with an experienced real estate law team will help tremendously, as they will conduct research on outstanding permits, existing liens, encumbrances, violations and other matters regarding proposed uses for your property.
Working with an experienced real estate lawyer who knows the specific legislation in your area will help you if you have concerns about your home, cottage or property and what can or cannot be grandfathered. We specialize in real estate law, and it’s our job to ensure that nothing is missed and that your best interests are always protected. If you’re considering renovating, buying or selling in Bracebridge and the Muskoka area, connect with our team today by calling (705) 645–8743 to learn more about the services we offer and how we can help.
