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1. Duty to verify

Municipality


1.1 Identity and legal capacity

1.2 Information on the immovable

1.2.1 Land Register

1.2.2 Municipality

a) The Municipal assessment roll

b) Municipal regulations

c) Acquired rights

d) Minor variances1

e) Non-compliance

1.2.3 Certificate of location


a) The Municipal assessment roll

The municipal assessment roll is a source of public information that must be consulted by the licensee to obtain and validate certain information about a property such as its value and taxes.

However, other information that is useful to licence holders is not necessarily listed on the valuation roll, for example the building area or the year of construction. This information could be found in the documents used to prepare the assessment roll that the licensee must obtain and consult in order to fulfil his verification duty.

Therefore, when required, the licensee may request to obtain and consult documents emanating from the municipality under the Act respecting access to documents held by public bodies and the protection of personal information. However, as an exception, the Act respecting Municipal Taxation only allows access to those documents that were used as the basis for an entry on the roll and were prepared by the assessor. Also, access is limited to the following persons:

  • The owner of the immovable
  • The occupant of the immovable
  • The occupant of the business establishment
  • A person having filed an application for review with the municipal organization responsible for the assessment
  • The applicant with respect to the immovable or business establishment in respect of which the application for review or a proceeding brought before the Tribunal has been made
  • The local municipality
  • The municipal body responsible for assessment; and
  • The Minister

In some municipalities, licensees may access the documents that were used to prepare an immovable’s assessment. To do so, licensees must first obtain the consent of the property owner, using the recommended form Consent to release information by a municipality concerning an immovable.

However, even under these circumstances, municipalities are not obliged to disclose this information. Therefore, it is important to determine in advance whether a municipality will accept to do this, failing which the owner will have to go to city hall in person to consult the documents used to prepare the valuation roll of his immovable.

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b) Municipal regulations

Each municipality has its own particularities and a multitude of municipal by-laws exist. Depending on the use he intends to make of the immovable and the regulations of the municipality where it is located, the buyer must verify the feasibility of any construction or repair work, the establishment of a certain type of business, etc.

When a buyer tells his broker his intentions concerning the use he intends to make of the property, or when the broker determines that verification is necessary, the broker must advise his client to check the municipal by-laws to ensure that his project can be carried out.

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c) Acquired rights

An immovable that is in violation of a current municipal by-law may be grandfathered if it complied with the by-law in effect at the time of its construction. The burden of proof is always on the person claiming the acquired right. To demonstrate the existence of an acquired right, it is necessary to obtain:

  • The permit issued by the municipality
  • The certificate issued by the municipality recognizing the existence of the acquired right

In the absence of recognition by the municipality, the person claiming to have an acquired right must go to court to have this right confirmed.

Thus, when a seller claims that his property benefits from acquired rights, the licensee must:

  • Complete section D2.9 of the form Declarations by the seller of the immovable and provide details under section D15
  • Keep a copy of the document evidencing the acquired right in the agency’s record

The buyer’s broker, for his part, must:

  • Make the Promise to purchase conditional upon the seller providing, within a certain time period, proof of the existence of this acquired right using clause 9.1 of the Promise to purchase form.

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d) Minor variances1

Each municipality is free to adopt regulations regarding minor variances, which means that these regulations differ from one municipality to another.

A minor variance is an exceptional procedure by which the municipal council may authorize the carrying out of proposed work or the regularization of work in progress or completed that does not meet the provisions of the municipality’s urban planning by-laws.

Such a minor variance can only be granted if the following criteria are met:

  • The application of the zoning and subdivision by-law causes serious harm to the applicant
  • It does not adversely affect the enjoyment of the right of ownership of the owners of neighbouring properties
  • It complies with the objectives of the municipality’s development plan
  • The work, if in progress or already completed, was done in good faith and covered by a permit.

When a seller mentions that his immovable has been granted a minor variance, the licensee must:

  • Make sure section D2.9 of the form Declarations by the seller of the immovable is completed and the necessary details are provided by the seller under section D15
  • Keep a copy of the document evidencing the minor variance in the agency’s record

The buyer’s broker, for his part, must:

  • Make the Promise to purchase conditional upon the seller providing, within a given time period, proof of the existence of such a variance using clause 9.1 of the Promise to purchase form.

Immovable requiring a minor variance

If the buyer’s renovation, development or expansion projects lead the licensee to anticipate the obligation for the latter to obtain a minor variance to carry them out,  the broker should articulate a clause to this effect under clause 12.1 of the Promise to purchase form.


1 By-law on minor variances (in French only)

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e) Non-compliance

Notwithstanding the above sections, it is possible that an immovable does not comply with the applicable municipal by-law.

In this case, this must be disclosed in the form Declarations by the seller of the immovable. When taking up the brokerage contract, the box “yes” under clause D2.12 of this form must be checked and details provided under section D14.

The form Declarations by the seller of the immovable must be attached to the Promise to purchase in order to release the seller from any liability toward the buyer.

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Last updated on: October 12, 2023
Numéro d'article: 264833