Planning Act, Subdivisions, Severances And Building Restrictions

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Doctrine of Merger:

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Common law doctrine: superior right or entitlement annihilates the lesser (lesser disappears in the larger)

Tenure doesn't matter - identity does. Two owners holding abutting lands: one tenancy in common, other in joint: merge!

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Planning act prevents:

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S 50(3) The sale of lands that abut (merged) - not even right of way over one's land.

Failure to comply prevents good title: onus on purchaser.

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Subdivision Lots on registered Plans:

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S 50(3)(a): allows for any conveyance of land within a plan of subdivision.

* 50(5)(a) can't convey less than “whole lot” in subdivision
* S 50(7) municipality may pass by-law allowing division of lot in reg. subdivision. (anti (5)(a))

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How to Register Plan of Subdivision:

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Be owner of parcel of land.

Fill out municipal authority's application form and pay fee.

Create plan, showing roads, proposed property divisions - compliance w/ by-laws, house distance from road etc.

Maybe public meeting...

Municipality Approves? Register and then good to go.

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Identity of grantor for application of 50 (no sale of abutting)

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Interpreted strictly. Different owners where A owns 1 and A+B own 2. However, if B dies then merger - no sale of abutting lands.

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Simultaneous Conveyance avoid S 50?

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No: amendment 50(15) closed that loophole.

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Severance Requires: (even for easements and consents)

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Consent of the land division committee - may impose conditions: 1 year to comply...

S 50(12) states that consents allow for sales that would otherwise violate subsections 50(3) and(5).

Severance applies from then on unless LDC stipulates otherwise.

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Lapsing of Consent:

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must convey within 2 years. Otherwise consent lapses; new app for consent necessary.

Can convey to self to effect severance.

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Consent and previous breaches of 50:

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Consent can be granted retroactively curing defect. Land sold in violation of planning act? May be cured if consent given upon application.

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Conditional Upon Compliance w/ S 50:

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If acting for purchaser: make purchase agreement conditional upon compliance with S 50.

Failure to include compliance condition may make the K unenforceable: might not though if courts read in compliance condition.

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Failure to Comply W/ 50? Exceptions?

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Conveyance a nullity. Unenforceable interest even if money paid.

Unless: to Crown.

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Transmission and Utility Lines:

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* S 50(3)(d) - Transmission lines are exempt from subdivision control conveyances - as defined in Ontario Energy Board Act
* S 50(5)(c) utility lines, which includes hyrdro and gas pipe easements, exempt within plan of subdivision.

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Takeback Mortgage:

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OK because of S 50(8)

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Mortgagee sale of property in default: must be...

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- the part is a whole lot on a plan

* the part does not abut any other land covered by the mortgage
* the parcel to be conveyed was previously consented to or is the remaining part of parcel that had consent
* approval of Minister of Municipal Affairs or the land division committee has been obtained

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Leases:

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Leases in excess of 21 years are prohibited (S 50(3) and 50(5)) unless covered by exception:

* eg consent by land division committee
* Business Exemption:
* parts of buildings are exempt from the long term lease prohibitions - S 50(9) (ONLY part - whole buildings may not be leased for more than 21)

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Easements: Exceptions?

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Require consent unless they cover entirety of land.

* Exception to the rule: S 50 does not apply to easements transferred by or reserved to a condo corporation. S 9(3) of the Condominium Corporation Act
* Condos exempt: may declare easements which do not cover entirety of parcel - S 40(5) Land Titles Act

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CURATIVE PROVISION: 50(22): 4 elements required on deed/transfer:

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1. Statement by grantor: to best of knowledge to contravention of S 50.

2. Statement of grantor's solicitor.

3. Statement of grantee's Solicitor.

4. deed or transfer registered in compliance w/ registry or titles act.

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Grantor solicitor Statement for 50(22)

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1. explained effects of 50(22) to grantor

2. made inquiries of grantor checking no contravention.

3. to best of solicitor's knowledge no contravention.

4. I am ontario solicitor in good standing

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Grantee's solicitor's statement for 50(22)

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1. I have investigated title, and abutting land if relevant

2. no historic contravention

3. no contravention to best of knowledge and belief re 50(22)

4. ontario lawyer in good standing

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Consent for Severance: S 53

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* authority typically region, county or district: reflecting desire for broad overview for planning. However, can be delegated to municipal authorities.
* Applications made with required form
* Can be conditions for consent...

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Appeal consent for severance decision:

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Possible because 53(39): must be made w/in 20 days.

Once decision final: deed will be stamped.

Makes certificate conclusive. - no further action may be brought to question it.

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Registered subdivision plan agreements: between authority and developer:

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Developer may be required to provide plumbing, electricity and lighting to subdivision as condition for approval.

Municipality may create conditions imposed on all subsequent owners.

Sometimes controlled via 1 foot reserve along entrance to subdivision (block it)

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Official Plans (re zoning laws)

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S 14: requires local planning board to develop and register plan for the area.

Submitted to minister of affairs for approval.

After which, s 24: no by-law may be passed except in compliance w/ official plan. Only way: amend official plan.

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Zoning By-Laws allowed by Act

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S 34: restricted area (aka land use control by-laws)

Type of buildings and uses permitted.

34(9) : permits existing stuff to continue in spite of new by-law.

S 45(1): Minor Variances: may be permitted e.g. house 20 ft from st instead of 22.

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Zoning enquiries:

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Many possible by-laws affecting: therefore ask municipality - although they may not help.

Check frontages, set back, and side yard allowance if survey available.

34(1): may be height, size restrictions etc

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ON building Code

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Trumps all other by-laws: however by-laws may add additional requirements.

Orders possible under building code act:

-completion of construction or demolition

- general compliance w/ code

- work or demolition to be stopped