A few months ago I was working with a family who wanted to acquire their next principal residence, but one that included a full or partial suite well suited to accommodate visiting families or potentially be used as a separate rental unit in the present or in the future.

It’s not an uncommon objective, but the search, assessment and acquisition of such a beast can lead down a winding road where there are many tradeoffs, ramifications, unknowns and risks to be explored and decided upon.

After ruling out numerous properties for a variety of reasons – most of them due to fundamental structural and layout problems, we came across a solid candidate. The property had been thoroughly renovated within the past 5 years.

The building had been used as a duplex for decades prior to the recent renovation. Separate main entrances to the two units – a second floor flat and a main floor plus basement dwelling – were provided from a common foyer accessed by the single front door to the building. This is a common set up in older duplexes in Ottawa. The renovation removed the interior main entrances separating the units, leaving a hallway into the main floor and a stairway from the front door to the second floor.

The current owners who were now selling the property used the second floor for extended family to have separate living space. The renovation was extensive, rendering the property unlivable during the 3 to 4 month renovation process. 

For my clients, it was crucial to understand what they would be buying – what uses were permitted under Ottawa’s zoning bylaws, was the property built to code, with permits, in its original form and in its renovated form? The land registry entry for the property identified it as a single family residence. There were no notes in the listing regarding compliance with the building code, fire code, nor zoning bylaws. Caveat emptor (buyer beware) prevails.

Many realtors in Ottawa include the phrase “non-conforming” to describe one or more dwelling units in buildings of this type in their listing information. The problem is that this phrase without clarification is entirely meaningless. What does “non-conforming” mean?

• does the property’s current use conform to the zoning bylaw?
• did the property conform to the Ontario building code when constructed?
• does the property conform to the Ontario fire code?
• did all improvements conform to the building code when completed?
• was all construction completed with all required permits (the original building and all stages of renovation over the years)
• if the property’s use does not conform to the current zoning bylaw, is the use legal (“grandfathered”) or illegal?

Many properties – especially multi-unit properties – exist and operate without having met all of the above. They are in some sense or another “illegal” or “non-conforming”. In many cases when investigated, the seller’s realtor used the term “non-conforming” without understanding the property’s status. For example, the property fully conforms to the zoning bylaw, but was not built to code or was not permitted or registered, or it was built to code but does not meet fire code requirements, or nothing was done right so it is more illegal than non-conforming.

To simply state that a unit (or a property) is “non-conforming” is meaningless. If you’re hiring a realtor to help you sell a multi-unit (or any other) property, be certain to choose one who asks all of these questions, performs the required research, and documents the property’s status accurately for potential buyers to assess. You’ll increase your chances of a successful sale and minimize your potential liability. Buyers aren’t keen on acquiring property of dubious compliance status – the more complex the property (multiple units etc.) the more reluctant they are and the harder they will negotiate over any lack of certainty or discovery of errors.

If you’re hiring a realtor to help you evaluate and acquire a property, be sure to select someone who will help you understand the fundamental status of the property, and not just how “the lovely bay window frames the view of the garden”. There are four considerations for a property’s use and legality:  1. was it built to code, 2. does the use of the property conform to the zoning bylaw or is its use legal despite not conforming to current zoning, 3. does it meet the fire code and/or has it been approved or inspected and passed by the City’s Fire Marshall’s office, and 4. has everything been done following due process (were all required applications, permits, City inspections, etc. performed and filed with the City)? 

Legal Non-Conforming Property Use Ottawa

In the case of a legal, non-conforming use, consider whether you plan any work on the property that would result in revocation of the grandfathered legality of its current use.

In the case study described above, the property’s use as a duplex for decades may or may not have conformed to the zoning bylaw when first used as a duplex. We did not find records to prove this one way or the other. My clients were happy with the property as a single family residence with a fully functional second floor for extended-stay guests or family (“in-law suite” usage). If the property’s use as a duplex had been legal, non-conforming, that status was eliminated with the renovation. Since being converted into a single family home, its use is now limited to that, because the property’s zoning does not permit duplex use.

If you’re considering acquiring a property whose use is questionable, or if you own a property whose use does not conform to current zoning but you believe it is legal or “grandfathered”, you can follow a City of Ottawa process to register your property’s legal status. Start here: What is a legal non-conforming right?

If you’re planning some improvements to your property that you aren’t certain are permitted under current zoning, you can consult the City of Ottawa’s committee of adjustments to figure out the requirements and learn the steps you need to take.

Ottawa’s zoning bylaws have recently undergone a major transformation, enabling more dense usage in many areas. Most residential zones in Ottawa also allow for development of a secondary dwelling unit as part of a single family or some multi-unit properties. There are more ways to achieve the use you want; but this does not mean diligence goes out the window. Many non-duplex second units in the City are not legal secondary dwelling units (SDUs), and the cost to transform existing “nanny” or “in-law” suites into legal SDUs varies immensely. Don’t get stuck with a massive financial surprise.