Right-of-Entry

Please note that Right-of-Entry discussed below only is applicable to existing structures and only when the repair is necessary for health and safety reasons.  It does not cover NEW BUILDS – no legislation currently deals with this dilemma / the only recourse is to phone the Police and place Trespassing Charges.

 

Update Feb, 2018

Municipal Licensing and Standards prepared a Report For Action on ‘Reviewing the City’s Process to Authorize Access to a Neighbour’s Property’ on May 31, 2017 for review by the Licensing and Standards Committee.  The full report can be accessed here  Report on Right-of-Entry Access May 2017

The recommendations were:

  1. City Council amend Chaper 363, Building Construction and Demolition, by repealing Article V, Right of Entry.
  2. City Council direct that any permit issued under Chapter 363, Article V, prior to the repeal be governed in accordance with the provisions of Article V, Right of Entry, as it read immediately prior to repeal.
  3. City Council amend Chapter 441 by deleting the Application fee and the Renewal fee for a Low-Impact and High-Impact Right of Entry permit.

The recommendations were approved by City Council on July 4, 2017.  The Minutes for Agenda Item LS20.2 can be accessed here  Right-of-Entry City Council July 2017

Prior to 2008, the City of Toronto had a right-of-access bylaw which, at a half page, was short and to the point. It allowed access to a neighbouring property for repairs, alterations and improvements as long as the property was left in the same condition.

That simple bylaw was repealed in 2008 and replaced with a 12-page tome that turned the simple concept of temporary entry onto a neighbour’s property into an enormously complex set of regulations involving expensive entry permits, fees, security deposits, compulsory liability insurance, compensation for damage, inspections and penalties.

At the time, I wrote in this column that “the complexity and cost of the new regimen are staggering. Talk about overkill.”

Turns out, I was right. This past June, the Municipal Licensing and Standards (MLS) Committee received a staff recommendation to repeal the bylaw. The committee did not accept the recommendation and forwarded the report to city council for information.

Between 2012 and 2016, only 105 permit applications were received and just 60 permits issued. In each of 2015 and 2016, only three permits per year were issued.

If the permit process is to be repealed, some homeowners would be cast into limbo regarding the repair of their houses.

One Star reader emailed me to say she had applied for a permit in August 2016 and it still has not been issued.

The city report outlines a homeowner’s options when it is necessary to access a neighbour’s property to make repairs or alterations to their own property. These are:
  • Consent through mutual agreement;
  • The use of a pre-existing registered easement agreement;
  • A court order;
  • The existing right-of-entry bylaw.

The city report notes that the permit process almost always involves a very acrimonious relationship between two property owners and requires a great deal of staff effort and attention.

In the years 2015-16, city legal services spent 114 hours on two court cases involving the permit process.

The staff report to the MLS Committee noted that other municipalities such as Kitchener, Vaughan, Brampton and Mississauga do not have a right-of-entry permit process. It failed to mention, however, that they also do not have the Toronto problem of so many older houses being built inches apart from each other.

Staff suggested two alternatives: repeal the bylaw, or amend it to completely remove the permit requirement. In the end, staff recommended repealing the bylaw.

Its rationale is that with only six permits issued in the past two years, the majority of affected property owners are successfully negotiating their access issues.

The city, it seems, is anxious to avoid being involved in “a complex, resource-intensive, and time-consuming undertaking. The majority of residents,” the report says, “would be unaffected by the repeal of the bylaw.”

In my view, the process could be vastly simplified. And the same city that historically allowed houses to be built inches apart cannot now wash its hands of the access problem it created.

So why not keep the bylaw but delete the permit requirement?

Bob Aaron is a Toronto real estate lawyer. He can be reached at [email protected], on his website http://www.aaron.ca/ and Twitter @bobaaron2.

 

Update Jan, 2016

The right-of-entry bylaw provides the right to access a neighbour’s property when necessary to make repairs or alterations to an existing structure when the repair is necessary for health and safety reasons. If your neighbour agrees to let you use their property, then no permit is required. Even if there is no permit, the following rules should apply:

  • Access should take place at reasonable times and only to the extent necessary to carry out the repairs
  • Reasonable notice must be given
  • The adjoining land shall be brought back to its original condition as much as possible
  • Compensation must be provided for any damages

If your neighbour does not agree, you must apply for a permit.

Right to enter for health and safety reasons only

Right-of-Entry permit applications will only be accepted if work is to be performed on an existing structure and the repair is necessary for health or safety reasons.

The permit application must include the following:

  • why access is necessary for health and safety reasons
  • how work will be carried out
  • will work will impact and/or damage the neighbour’s property
  • how the neighbour’s land will be brought back to its original condition, and
  • proof of addition of the neighbour as an insured on the policy of the owner seeking access

The owner or occupant of the land to be accessed will be advised by the City of any application to enter the property. Once the permit is issued, the owner or occupant of the land to be accessed is notified and provided a copy of the relevant terms and conditions.

Once a permit is granted to a neighbour to enter a person’s property to perform repairs for health and safety reasons, it is a Provincial offense for that neighbour to obstruct or hinder access and they can be charged.

Permit application

To apply for a permit, access the City’s  Right to Enter Neighbour’s Property for Repairs webpage for the current version of the forms.

There are two types of permits: for low-impact work and high-impact work. To determine which permit you require see the information below.

Right-of-Entry Overview
This form provides a general overview of the permit application process and includes a list of what the applicant needs to submit.

Right-of-Entry Permit Application
This is the main application form. This form also needs to be completed if you are applying for a permit renewal. Please make sure that the form is completed in full and as accurately as possible. Counter staff will not accept incomplete applications.

Declaration of Responsibilities
By signing this form the applicant declares that he or she understands the obligations under the bylaw and permit and will abide by them. This form also needs to be submitted if a permit renewal is requested.

Right-of-Entry Pre-assessment
Permits generally take six to eight weeks to issue. Please submit them to the Road Allowance office (see the section ‘Where to contact us or submit Right-of-Entry Applications’ below.

Application and renewal fees

The non-refundable fees for 2015 to obtain a right-of-entry permit are as follows:

Type Fee
Low-impact (New application) $ 313.53
Low-impact (Renewal) $ 173.13
High-impact (New application) $ 1151.88
High-impact (Renewal) $ 380.34

Security deposit

The bylaw requires that the person seeking access to the neighbouring land provide a security deposit in case the land is not brought back to its original condition or there are other damages. This deposit is $500 for a low-impact permit and a minimum of $2,000 for a high-impact permit. The final security deposit amount for a high-impact permit is determined by Municipal Licensing and Standards as part of its application review.

Please note that a low-impact permit security deposit may be held for up to 60 days from the completion of the work and that a high-impact permit security deposit will be held for twelve months after the completion of work.

Only certified cheques or money orders are accepted for security deposits. Cheques are to be made out to the City Treasurer. Please note that no interest is paid by the City on security deposits.

Who to contact:

ML&S Road Allowance

Phone: 416-392-6700
Fax: 416-392-4515
East York Civic Centre, 850 Coxwell Avenue, 3rd Floor
Monday to Friday, 8:30 a.m. to 4:00 p.m. except statutory holidays

 

Right-of-Entry Frequently Asked Questions

  1. From where does the City get its authority to pass the right-of-entry bylaw?
    The authority to pass a right-of-entry bylaw comes from Section 101 of the City of Toronto Act, 2006. The authority also exists under the Municipal Act, 2001 for other municipalities.
  2. Do other municipalities have similar bylaws?
    Yes, other Ontario municipalities such as Ottawa (Bylaw 2005-0025) and Windsor (Bylaw 5711) also require a permit to obtain access to adjoining lands for making repairs and alterations.
  3. Is this right-of-entry bylaw new?
    No, the right-of-entry bylaw is a new city-wide bylaw, which took effect on February 28, 2009. Prior to that, all former municipalities making up the amalgamated City or Toronto, with the exception of North York, had a right-of-entry bylaw prior to the implementation of the city-wide bylaw.
  4. Why is this bylaw being introduced to North York now?
    The main purpose of the new by-law is to ensure that the entire City of Toronto operates under the same rules concerning right-of-entry. This promotes fairness and consistency city-wide.
  5. If I need to access my neighbour’s land to make repairs and alterations to my own property, do I need a permit?
    If neighbours can come to an agreement on the access needed, then no right-of-entry permit is required. If this is the case, although not covered by the terms and conditions of a specific permit, the provincial legislation still requires that the neighbour granting the entry is given notice and that his or her land is brought back to its original condition.
  6. What kind of work does a right-of-entry permit cover?
    The permit only applies to repairs and alterations to an existing structure, such as a building, fence, or other structure, that need to be performed for health and safety reasons. Plumbing and sewage (which may include drainage systems) not located directly in a building are also covered. Landscaping or other yard work is not covered. Where the structure is a swimming pool, the work is limited to repairs and alterations, which includes maintenance and upkeep and any activities related directly to such work, such as troubleshooting or periodical inspections. It is important to note that repairs and alterations are limited to the owner’s property. The permit does not give the right to the owner to repair or alter anything on their neighbour’s property.
  7. Can I access my neighbours roof under a right-of-entry permit?
    If the work that is to be conducted reasonably necessitates that the neighbour’s roof be accessed, a right-of-entry permit may grant this access. Such entry will be strictly limited to what is required and the property owner seeking the entry, along with his or her contractor, will be responsible for ensuring there is no damage to the neigbour’s roof.
  8. If I need to swing a load with a crane over my neighbour’s property, do I need a right-of-entry permit?
    If your neighbour refuses to grant you access over his or her property, you will require a right-of-entry permit to swing a load or crane over his or her land, as this access implies hazards to both people and property and therefore needs to be explicitly addressed.
  9. If I obtain a right-of-entry permit, do I still need to take out a building permit?
    Right-of-entry permits and building permits are very different things. A right-of-entry permit grants access to carry out some specified work. The building permit facilitates a technical inspection process for work that is deemed to require it. If you obtain a right-of-entry permit, you may or may not need a building permit. Similarly, just because you do not need a right-of-entry permit to access your neighbour’s land does not mean that you don’t need a building permit. If you are uncertain about whether you need a right-of-entry permit, contact us. If you are uncertain about whether you need a building permit, visit Toronto Building to find out.
  10. How long does it take to issue a right-of-entry permit?
    From the moment a right-of-entry application is submitted, it generally takes six to eight weeks before a permit can be issued. This time frame is determined in large part by the notice and consultation requirements of the bylaw, including a ten-business-day period that is granted the owner or occupant of the land that is proposed to be accessed to submit any issues or concerns that he or she may have respecting the entry. The permit application process also includes on-site inspections and a review by the ML&S District Manager, which may include consultations with other authorities or experts. Please note that once a permit is issued, there is also a five-business-day waiting period to allow for notification to the neighbour by registered mail (plus a 24-hour notice that must be provided by the owner seeking entry).
  11. In the event of an emergency, do I still need to apply for a right-of-entry permit?
    In the event of an emergency, where a building, fence or other structure poses an immediate danger to the health or safety of any person, the owner or occupant of the building, fence or other structure may enter the neighbour’s land without a permit or prior consent, but only to terminate the emergency. The person entering must provide notice beforehand, to the extent possible, and act as if a permit were in place. Afterwards, unless the neighbour explicitly waives this requirement, the owner or occupant who entered the land must apply for a permit retroactively for the work already performed as well as for any additional work that still needs to be done. This requirement includes permit fees and security deposits. Note that in the event of an emergency, in which City staff are made aware of the matter, an Officer may exercise his or her right to issue an Emergency Order under Section 15.7 of the Building Code Act, and if necessary take City action to terminate the emergency.
  12. Who can access a neighbour’s land under a permit?
    Only the persons or companies listed on the right-of-entry permit can access the neighbour’s land. If the owner or occupant of the land being repaired or altered wishes to have access to his neighbour’s land to do or inspect any work, his or her name must be included in the permit. Contractors need not specify the name of individuals. All persons or companies exercising the right-of-entry must identify themselves if asked by the owner of the land being accessed or a City Officer.
  13. What should I do if I have a right-of-entry permit and my neighbour still refuses to grant me the required access?
    If you have a right-of-entry permit and comply with all of its terms and conditions, and your neighbour still refuses to grant you the required access, contact the Manager or Supervisor indicated on your permit. An officer will be dispatched to advise your neighbour that he or she is in contravention of the bylaw and failing compliance may be subject to fines and other proceedings. The City will then take action to enforce the bylaw and its permit. Damages resulting from the non-compliance of the neighbour, however, are a civil matter and would have to be pursued by the permit-holder in court.
  14. What should I do if my neighbour, or his or her contractors, access my land without my agreement, and without a right-of-entry permit or another separate legal right to do so?
    In the event that a neighbour enters onto land without consent, a permit, or under a separate legal right to do so (as discussed in Question No. 16), he or she may be trespassing under the Trespass to Property Act. You may advise your neighbour of the requirements under the bylaw and refer him or her to our web site or to our offices for more information. Trespassing, however, is a police matter.
  15. How can I renew my right-of-entry permit?
    If there are circumstances beyond your control that necessitate you extend the period of access beyond the date indicated on your right-of-entry permit, you must apply for your permit’s renewal. A renewal application must be filed before the original permit expires. If the permit expires prior to your renewal being issued, you may be asked to cease any access until the renewal is issued. Renewals applications are filed like original applications and are subject to the same time lines. The fees for a permit renewal are lower than for a new application.
  16. How does a separate right-of-entry power affect the requirement for a right-of-entry permit?
    The bylaw does not affect a separate right-of-entry power that your neighbour already has over your land (e.g., an easement or easement agreement registered on title). The easement allows a specified use of a part or parts of your property and is subject to the terms and conditions set out in the document creating the easement. The existence of a separate right-of-entry power just gives the neighbour additional options to consider depending on the scope of the easement and the required access. Any access pertaining to repairs or alterations not covered by the easement is subject to the right-of-entry bylaw and may require a permit, if consent is not otherwise obtained. The owner making the repiars or alterations, at his or her option, could also proceed under the right-of-entry bylaw without relying on any applicable easement for any part of the required access.
  17. What does the security deposit cover?
    The security deposit is intended to “provide compensation for any damages caused by the entry or by anything done on the adjoining land.” Generally, damages refers to the physical damage done to a property and they usually occur when it is not brought back to its original condition. Such damages, however, may also include the loss of potential revenues in the case of commercial properties.
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