I noticed from a recent post that the issue of non-conforming usage came up, and since this is something I have direct experience in, I thought it would be worthwhile to start a post on this subject. My knowledge is based on BC, but it would be interesting to hear whether this applies consistently across the country.
First, its important to distinguish between `non-conforming`, `illegal`, and `legal`. If the property conforms to the current zoning bylaw it is `legal`. If the usage prior to the date of the bylaw was something different and this usage has continued in the meantime, then you have grounds to establish `non-conforming` usage. If it is neither of these, it is `illegal`. In BC, the Local Government Act section 911 trumps any local government zoning bylaw. There are some benefits to investing in `non-conforming` properties, but also a couple of risks....
Some implications of established `non-conforming` usage:
1. If the building is damaged more than 75%, you cannot rebuild without conforming to the current local bylaw.
2. Make sure your insurance policy is for named `cash value` rather than `replacement` (otherwise you will be paying too high a premium, with no extra benefit).
3. If you want to guarantee keeping the non-conforming usage, you cannot allow the usage to lapse by more than a contiguous 6 month period. (Note: It is up to the local government to prove the loss of use....they have to have documented evidence to show when they started the clock and that 6 months went by)
4. Non-conforming usage can be extended to the whole of the building (a fantastic benefit!) but not outside the building.
5. If you are planning on doing any changes to the building, make sure you know the rules! `Maintenance` is permitted as normal (your definition of maintenance may not fit the local building bylaw so be careful....there is both opportunity here but also caveat). Any structural changes will require a Variance Permit, so plan your design to avoid structural change if you can and you should have no problem getting the building permit.
6. Typically local governments don`t like established `non-conforming` usage buildings. If you get a letter from them challenging the usage, do not necessarily take it at face value. Do your homework and force them to prove the usage change. You`ll be surprised how they become less litigious when you let them know you know section 911 of the LGA backwards.
7. Don`t rub their nose in it....be diplomatic...you never know when you need to go back to the same local government for a building permit or have an issue on another property. Most of the time the planner or bylaw enforcement officer does not know how to accurately interpret section 911. In my case, the local planner and I worked jointly to establish the correct interpretation in conjunction with their in-house counsel.
8. Human nature is to steer clear of `non-conformity` since it appears tricky.....don`t write these opportunities off without looking into the potential upside!
9. If anyone is interested...I`d be happy to share a strategy on using non-conforming usage to generate increased property value and increased monthly cash flow.
First, its important to distinguish between `non-conforming`, `illegal`, and `legal`. If the property conforms to the current zoning bylaw it is `legal`. If the usage prior to the date of the bylaw was something different and this usage has continued in the meantime, then you have grounds to establish `non-conforming` usage. If it is neither of these, it is `illegal`. In BC, the Local Government Act section 911 trumps any local government zoning bylaw. There are some benefits to investing in `non-conforming` properties, but also a couple of risks....
Some implications of established `non-conforming` usage:
1. If the building is damaged more than 75%, you cannot rebuild without conforming to the current local bylaw.
2. Make sure your insurance policy is for named `cash value` rather than `replacement` (otherwise you will be paying too high a premium, with no extra benefit).
3. If you want to guarantee keeping the non-conforming usage, you cannot allow the usage to lapse by more than a contiguous 6 month period. (Note: It is up to the local government to prove the loss of use....they have to have documented evidence to show when they started the clock and that 6 months went by)
4. Non-conforming usage can be extended to the whole of the building (a fantastic benefit!) but not outside the building.
5. If you are planning on doing any changes to the building, make sure you know the rules! `Maintenance` is permitted as normal (your definition of maintenance may not fit the local building bylaw so be careful....there is both opportunity here but also caveat). Any structural changes will require a Variance Permit, so plan your design to avoid structural change if you can and you should have no problem getting the building permit.
6. Typically local governments don`t like established `non-conforming` usage buildings. If you get a letter from them challenging the usage, do not necessarily take it at face value. Do your homework and force them to prove the usage change. You`ll be surprised how they become less litigious when you let them know you know section 911 of the LGA backwards.
7. Don`t rub their nose in it....be diplomatic...you never know when you need to go back to the same local government for a building permit or have an issue on another property. Most of the time the planner or bylaw enforcement officer does not know how to accurately interpret section 911. In my case, the local planner and I worked jointly to establish the correct interpretation in conjunction with their in-house counsel.
8. Human nature is to steer clear of `non-conformity` since it appears tricky.....don`t write these opportunities off without looking into the potential upside!
9. If anyone is interested...I`d be happy to share a strategy on using non-conforming usage to generate increased property value and increased monthly cash flow.
