What are acquired rights?
- Apr 9
- 4 min read
In the event of a conflict between successive laws, the concept of acquired rights (also known as “grandfathered rights”) refers to a right that a person acquired under the former law and that continues to exist even though the new law would normally prohibit it.
This is a concept that comes up frequently in real estate law because municipalities have the right to change and adapt their zoning bylaws to fit the needs of the municipality and its citizens.
Concretely, this means that it is likely that over time a house could become non-conform due to a change in the bylaw. Generally, and assuming permits were obtained, a house that would have been built in conformity with the zoning bylaw in effect at the time of construction will likely be protected by acquired rights.
However, certain conditions must be respected.
Conditions for the existence of acquired rights
Most importantly:
- Acquired rights only apply if the non-conforming use was legal before the by-law or regulation that now prohibits it came into effect;
- The use must be real and ongoing. Simply intending to use the property in a certain way is not enough;
- The same usage has always existed continuously without any significant interruption;
- Acquired rights belong to the property itself and are not personal to the owner, meaning that they can be transferred and automatically follow the property when it is sold;
- Acquired rights cannot, however, override regulations regarding building safety, environmental interests, hygiene issues, or anything that is in public interest.
It is the responsibility of the person claiming acquired rights to prove that those rights exist. On the other hand, if necessary, it is the municipality that must prove that these rights do not exist, that these rights were lost, or that the usage was never legal.
Example of a situation where acquired rights may apply
When a house was built, the municipal zoning bylaw required a minimum setback of 3 metres from the property line. The house was constructed in full compliance with that rule following the emission of a permit.
Years later, the municipality amended its zoning bylaw and increased the required setback to 4 metres. As a result of this change, the house would no longer comply with the current bylaw.
In this situation, the house may benefit from acquired rights, because it was legally built in compliance with the bylaw in force at the time of construction. Even though it is now non-conforming under the new requirements, it may be allowed to remain as is.
Confirmation of acquired rights and non-conformities revealed in the certificate of location
Land surveyors are obligated to include information regarding the conformity (or non-conformity) of the location of the structures and accessory structures in relation to the property boundaries based on the municipal zoning bylaw in force at the time that the certificate of location is prepared.
However, in recent years, land surveyors do not determine whether acquired rights exist in the context of a mandate for the preparation of a certificate of location. Some legal texts explain that the surveyor is not a professional authorized to determine whether acquired rights exist and the surveyor only has a general and practical knowledge of the laws that affect their work. This is why, in their reports, they will often use language such as saying that a property could possibly benefit from acquired rights. Other surveyors will choose to include the text of the bylaw, therefore indicating the possibility or probability of the existence of acquired rights. Unfortunately, neither of these confirm concretely the existence of acquired rights, even if all signs point to the high likelihood of it.
Likewise, the Notary will not be authorized to confirm the existence of acquired rights, especially since it is impossible for them to know whether the same usage has always existed continuously without any significant interruption.
To confirm the existence of acquired rights, a formal request must be made to the municipality. They will ask for documents, such as permits and plans, to be submitted along with the request. After performing the required verifications, they will send a letter to the owner containing their response and explanations. If it appears that the property does not benefit from acquired rights, they could also verify whether it could be granted a minor exemption.
Minor exemptions
An owner can sometimes request a minor exemption (“dérogation mineure”) from the municipality, which is a limited exception to zoning or building rules. This exists to deal with unusual situations or to legalize genuine errors made during construction. However, a permit for this work must have been delivered before building and the errors must have been made in good faith. This cannot be used to get around or change the rules, and it must not negatively impact the neighboring properties.
Loss of acquired rights
Acquired rights can be lost if the non-conforming use is abandoned, interrupted, or stopped for 6 months or more. During this six-month grace period, the use may be temporarily stopped without losing the benefit of the acquired rights, if it resumes within that time.
Also note that while it is permitted to make repairs and renovations to the property while maintaining acquired rights, if there is complete destruction of the building, there will be a loss of acquired rights. The new building must be rebuilt in conformity with the bylaws in force at the time of reconstruction.
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Sources:
Beaulier, Berthier, Le certificat de localisation, 3e éd. Montréal, Chambre des notaires du Québec/Wilson et Lafleur, 2018.
City of Montréal website, “Apply for a minor exemption” page: https://montreal.ca/en/how-to/apply-minor-exemption
LeChasseur, Marc-André, Zonage et urbanisme en droit canadien, 3e éd. Montréal, Wilson & Lafleur, 2016.
Règlement sur la norme de pratique relative au certificat de localisation, chapitre A-23, a. 49
