What restrictions does an MECP certificate of property use place on a buyer?

A certificate of property use is issued by a Director under Ontario’s Environmental Protection Act, which the provincial environment ministry (the MECP) administers. It follows an accepted risk assessment for the property. It is not a permit to operate. It is a set of conditions on the land, and a buyer who takes the property may take the conditions too.

What it can require

Once a risk assessment has been accepted, the Director may issue a certificate to the owner requiring actions that, in the Director’s opinion, are needed to prevent, eliminate or ameliorate an adverse effect the assessment identified, including installing equipment, monitoring a contaminant and recording or reporting information. The certificate can also require the owner to refrain from a specified use of the property or from constructing a specified building. It cannot require the owner to reduce a contaminant’s concentration below the level the risk assessment’s standards require.

Why a buyer is bound

The Act says a certificate of property use binds the executor, administrator or attorney for property of the person it was directed to, and “any other successor”. It also binds a receiver or trustee who holds the property, and treats a person it binds as its holder. A buyer should confirm with an environmental lawyer how that applies. The Director can also require financial assurance, including for performing the specified actions, and the owner must give occupants the relevant provisions and ensure they comply.

What to check before closing

• Ask the seller and your lawyer whether a certificate exists for the property, and get a copy.
• Search title. The Act lets a certificate setting out a requirement under its rules for orders and decisions affecting land be registered there.
• Compare the restrictions with your plans for use, buildings and expansion.
• Ask whether a record of site condition was filed with the ministry’s Environmental Site Registry.
• Do not confuse it with an environmental compliance approval, which is the separate permission for a facility’s emissions and discharges.