Legal non-conforming use

A shop or workshop that has operated for years may sit under zoning that no longer permits what it does. You may meet the idea when a seller says the use is grandfathered. The protection comes from the province’s planning statute and the municipality’s bylaw, so it needs to be confirmed, not assumed.

How two provinces word it

Ontario’s Planning Act, s. 34(9), says a zoning by-law passed under that section does not apply to prevent the use of land, a building or a structure if it was lawfully used for that purpose on the day the by-law was passed, so long as it continues to be used for that purpose; see the section for its second branch. Alberta’s Municipal Government Act, s. 643, says a non-conforming use may be continued, but if it is discontinued for six consecutive months or more, any future use must conform with the land use bylaw then in effect. It also says a change of ownership or tenancy does not affect the use, and its subsections (3) to (6) limit extending, enlarging and rebuilding. Other provinces are not covered here.

What to check or ask

• Evidence the use was lawful on the date the rule changed.
• Whether the use has stopped for any period.
• What the municipality says about expansion or rebuilding; see a zoning compliance letter.