Grandfathering : what is it and who is responsible for proving it?
The acquired right with respect to a lot, a construction, a use or a sign allows for the maintenance and enjoyment of a de facto situation, even if this situation is no longer in conformity with the new urban planning regulations. In fact, many citizens have acquired rights that allow them to maintain or continue certain uses, structures or constructions that are not in compliance with the laws and regulations in effect.
First, in order to be able to speak of acquired rights, the use must have begun before the coming into force of the law or regulation that prohibits it and the derogatory construction or work must have been built or completed before the coming into force of the law or regulation that prohibits it. For example, if you built a dock that did not comply with the applicable regulation 10 years ago and the dock still does not comply with the regulation currently in force, the dock does not have any acquired rights. Thus, to claim such a right, the derogatory use must have begun or the derogatory construction or work must have been implemented or carried out while the municipal by-law allowed it.
However, in some cases, the regulations apply despite acquired rights. This is the case, for example, in matters of nuisance, safety or environmental protection. This is obvious in that no one can claim acquired rights to harm, to endanger the safety of others or to pollute! It is also important to know that the concept of acquired rights does not apply to the cutting of vegetation in the riparian strip. For example, a lawn mowing that must be repeated week after week has no concept of acquired rights, even if the mowing has been done the same way for 40 years!
The big question: Who is responsible for proving the vested right?
The big question: Whose responsibility is it to demonstrate said vested right?
It is very important to understand that it is not up to the municipal official to confirm the existence of an acquired right for the benefit of the citizen, but rather it is up to the owner to transmit the documents or information to the municipal official to demonstrate the existence of this acquired right. These documents or information must make it possible to confirm that the derogatory use began legally or that the construction or work was legally established or carried out. Such evidence may take various forms, such as dated photographs, dated videos.
It is important to understand that it is not the role of the municipal official to conduct a legal analysis of your particular situation. If you wish to know your rights with respect to the existence of such acquired rights on your property, it will be your responsibility to mandate a professional to do so. In all cases, the official will be able to forward the regulations that were applicable.
But beware, it is also possible to lose one’s acquired rights, and this, in many ways!
The acquired right to a use will be lost if there is a significant interruption of this use or if it is changed. You can also lose your acquired right to a work or a construction when you carry out work or modifications on it. We therefore recommend that you never initiate any work without first obtaining a permit issued by the Municipality’s urban planning department.
It is not always easy to define the notion of acquired rights, their limits and the methods to preserve them. However, it is essential to understand that these rights are not without limits and that it is the owner’s responsibility to ensure that these acquired rights are maintained.
We hope that this explanation will help you understand that the role of the municipal civil servant is not to demonstrate the existence of acquired rights in the place of the owner. It must also be considered that the Municipality of Ivry-sur-le-Lac is composed of a small staff and cannot afford to respond and analyze, for the benefit of the citizen, all situations that could lead to the existence of acquired rights. It is inevitable that this additional task will have a significant impact on its daily work.
We invite you to consult chapter 11 concerning the provisions applicable to derogatory uses, constructions and signs protected by acquired rights of the zoning bylaw (bylaw number 2013-060) and chapter 7 concerning derogatory lots and properties of the subdivision bylaw (bylaw number 2013-058). You will find these by-laws on the Municipality’s website: https://www.ivry-sur-le-lac.qc.ca/en/by-laws/
Enjoy your reading!