What is a Legal Non-Conforming Use?
Imagine purchasing a charming long-standing bed & breakfast (B&B). After temporarily closing for renovations, you discover the municipality now prohibits short-term accommodations on your street. Can you reopen?
Under subsection 34(9) of the Ontario Planning Act, if the B&B was lawfully operating before the zoning amendment, it can continue as a legal non-conforming use. This “grandfathered” status allows the use to continue but only if operations remain consistent.
Note: Temporary closures for renovations are generally fine. Permanent changes to the use, like converting the B&B to a private residence, can eliminate your grandfathered rights.
Does the Protection Apply to the Entire Property?
Legal non-conforming rights attach to the land, building, or structure, not the owner.
- Transferable Rights: A future purchaser can continue operating the B&B.
- Expanding the Use: Rights can extend within the existing building (e.g., from one floor to the whole house), but any additions or expansions beyond the building require municipal approval.
For open-air operations (like farms or yards), rights typically attach to the land itself. Courts may allow expansion across the property if there’s evidence of a pre-existing intent to grow.
How Much Change is Allowed?
The Supreme Court of Canada sets clear limits:
- The original purpose of the use defines the scope.
- Intensification is permitted if it doesn’t fundamentally alter the nature or community impact.
- Expansion beyond the original activity is generally not protected.
- Minor accessory uses consistent with the original purpose may be allowed.
- Evidence of neighbourhood effects matters.
In short: grandfathered rights are flexible but must remain connected to the original lawful use.
Conclusion
Grandfathered rights are valuable but conditional:
- Keep a clear paper trail proving lawful use.
- Avoid long interruptions in operation.
- Understand that protection usually extends only through the existing building unless municipal approval is obtained.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com