In order to divide land that you own into smaller lots, official approval is required from the municipality. Land-owners must ensure that the land severance has no long-term negative impact on the community. Otherwise, municipal services such as garbage collection, snow plowing, and school busing could quickly become over-extended. Alternatively, the severance could result in damage to the natural environment if the lots are too small to accommodate adequate sewage disposal systems. Consideration is given to neighbours that could be negatively affected and the severance could conflict with the planning goals and policies of the community.
How Land Severance is Defined
The severance of land is also known as a subdivision of land. It is defined as the authorized separation of a piece of land to form a new lot or a new parcel of land. The authorization or legal basis to do this is referred to as ‘consent’ in the legislation. This official approval is granted by local governments in order ensure that land severances are considered within an established community planning framework.
The Planning Act, R.S.O. 1990 was created in order to help municipal governments keep control over how their communities develop and grow. It is the key legislation in the legal framework that controls the circumstances in which a seller of land will be able to sever land from their property.
One of the powers given to the municipalities by the Act is the ability to create zoning by-laws, in order to ensure that development follows the plan set up by the municipality. The most important power that is given to the municipalities by the Act, however, is provisions on how landowners can subdivide their land.
The specific provision regarding the severance of land is found in s. 50 of the Act. This section provides prohibitions on the selling of land in certain proscribed circumstances. However, it also lists certain exceptions to such prohibitions. Generally, consent is required if a landowner wants to sell, mortgage, charge or enter into any agreement (at least 21 years) for a portion of their land. However, if the two parts of land are already split, by a road or railway for example, consent will not be not needed.
Applying For Severance
The application process is time-consuming, and it must be done thoroughly, with the processing fee included. The municipality or other consent-granting authority in your area must be consulted in order to ensure compliance with the requirements.
In most cases, supporting material is necessary, such as sketches and plans of the existing property and proposed severance, including dimensions of the proposed lots and the existing uses of all adjoining lands. Depending on the nature of the property, additional permits and approvals (e.g., a septic system permit) may be required. Moreover, there may be certain restrictive covenants that must be adhered to.
In considering an application for land severance, the consent-granting authority will evaluate the merits of the proposal based on criteria in s.24 of the Act. Some of the considerations are the:
- Effect of development of the proposed subdivision on matters of provincial interest;
- Prematurity or if the proposed subdivision is in the public interest;
- Conformity with the official plan and compatibility with adjacent uses of land;
- Suitability of the land for the proposed purpose, including the size and shape of the lot(s) to be created;
- Restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land; and
- Adequacy of vehicular access, water supply, sewage disposal, and school sites.
The Ontario Ministry of Municipal Affairs and Housing releases guidelines on the process to follow in submitting these applications but, overall, the process can be complicated. Mistakes and omissions in the application process can lead to the denial of a severance application. Conversely, it may be possible that your land comes under one of the exceptions for consent, and the application may not be required. Regardless, a professional opinion on this process is highly recommended.
When a Land Severance Application is Approved
Severance can be approved with conditions attached to it, such as the requirement for road widening, parkland dedication or rezoning (or a minor variance) to allow a new land use. Any conditions stipulated must be met within one year and, only once all the conditions have been met, is a certificate issued by the authority. Next, the severance is registered in the land registry office, which gives it effect. Then, the new land parcels may be sold or resold without further approval. In some cases, there is a stipulation granted to the consent that any further severance cannot occur without further approval.
When a Land Severance Application is Refused
If the application fails to provide the information or material prescribed by the Act`s regulations or the requirements of the municipal official plan it could be declined. If the consent-granting authority confirms that an application is refused, you may make an appeal to the Ontario Municipal Board or a Local Appeal Body (if established by the municipality) for a final determination of the matter. Appeals must be filed with the consent-granting authority within the specified time limits, accompanied by reasons for the appeal and the required processing fee. S. 53 of the Act allows for dismissal of an appeal in certain circumstances without a hearing being held.
How an Experienced Ottawa Real Estate Lawyer Can Help
Legal advice is recommended in order to ensure compliance with the legislation and to ensure that you receive approval for your severance. The real estate lawyers in Ottawa at Merovitz Potechin LLP have experience dealing with municipalities and the specific policies and requirements for land severance.
Contact us at Merovitz Potechin LLP
An experienced real estate lawyer at our firm can help you determine if severance approval is likely, and how to apply for your land severance. We have years of experience with land severance cases, and work with real estate professionals to ensure that your application is handled in a practical, timely and cost effective way. We can advise you about your real estate property today. Contact our real estate lawyers at Merovitz Potechin LLP in Ottawa today to book your consultation. 613-563-7544