New right-of-entry bylaw is overkill

Bob Aaron in Legal

Power of entry is subject to a number of conditions and permit fees are costly

A Star reader recently emailed me to say he was thinking of purchasing a property – which is under construction – but the seller told him that the neighbour is refusing access to his driveway to complete construction on that side of the house.

This house, like many in Toronto, is built too close to the lot line to allow convenient access for construction purposes without stepping onto the neighbouring property.

The reader wanted to know what his rights were.

Back in 1994, the City of Toronto passed a bylaw allowing the owner or occupant of a building, or his or her employee or agent, to enter onto adjoining land "for the purpose of making repairs, alterations or improvements, to the owner's building" as long as the neighbour's land was left in the same condition that it was in prior to the entry.

All of the former municipalities comprising the amalgamated City of Toronto, except North York, had similar bylaws.

It came as something of a surprise to me to discover that on Oct. 30 last year, Toronto City Council quietly passed a bylaw to repeal the old municipal bylaws and to have a uniform "right of entry" bylaw across the entire city.

The old Toronto bylaw was short and simple. What was a half-page piece of legislation has now mushroomed into a 12-page tome, which turns the simple concept of temporary entry onto a neighbour's property into an enormously complex set of regulations involving permit fees, security deposits, liability insurance, inspections and penalties.

The city's new bylaw 1154-2008 states that an owner or occupant of land may enter adjoining land at any reasonable time for the purpose of making repairs to any building, fence or structure on the land of the owner or occupant, but only to the extent necessary to carry out the repairs or alterations.

The right of entry may only be exercised if the adjoining owner consents (this seems to be fairly obvious), or if the executive director of the city's Municipal Licensing and Standards department has issued a permit for the entry.

The power of entry is subject to a number of conditions (such as the need to display the entry permit), and requires that the permit holder "shall provide compensation for any damages caused by the entry or by anything done on the land."

An application for an entry permit must be on a prescribed form. The applicant for a permit must comply with 18 requirements set out on the form, and has to add the neighbour's name to his or her own liability insurance policy.

The applicant also has to post with the city a $500 security deposit for "low-impact" work, and a $2,000 security deposit for "high-impact" work.

Low-impact is defined as work which does not require the construction of any temporary structures such as scaffolding, the use of any heavy equipment, or the excavation or removal of any landscaping.

High-impact work involves one or more of these activities.

After a permit application is filed, the adjoining owner is notified and has 10 business days to "make a submission" to the city "providing details of any circumstances" that should be considered before the permit is issued. The neighbour can also ask the city to "review" the amount of the security deposit.

Detailed provisions are set out for refunding the security deposit if the work is properly completed, or for applying the deposit to pay the neighbour for damages that have been incurred and not remedied.

There is also a section that permits entry onto neighbouring property without a permit in cases of emergency posing an immediate danger to health or safety.

The permit fees are $230 for low-impact work, and a staggering $845 for high-impact work, in addition to the security deposit. The fees increase annually with inflation.

The goal of the new bylaw is laudable, especially in a city where many properties are built so closely together, but the complexity and cost of the new regime are staggering. Talk about overkill.

Bob Aaron is a sole practitioner at the law firm of Aaron & Aaron in Toronto and a board member of the Tarion Warranty Corp.  Bob specializes in the areas of real estate, corporate and commercial law, estates and wills and landlord/tenant law. His Title Page column appears Saturdays in The Toronto Star and weekly on Move Smartly.  E-mail

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