Covid-19: beware of the loss of non-conforming uses’ acquired rights
- Posted by Me Camille Ingarao
On April 29th, 2020, the state of health emergency in Quebec was renewed a sixth time until May 6th, 2020, under Decree 483-2020. As a reminder, since March 15th, 2020, the state of health emergency has the effect of interrupting all deadlines in civil procedure and prescription in accordance with Order No. 2020-4251 of the Chief Justice of Quebec and of the Minister of Justice.
However, it is possible that acquired rights in urban planning matters enjoyed by owners may be affected, despite the pandemic.
Under the Act respecting land use planning and development (Loi sur l’aménagement et l’urbanisme, RLRQ c. A-19.1: LAU), a municipality has the power to regulate the time period for the extinction of acquired rights protecting non-conforming uses with municipal by-laws. The extinction of acquired rights takes place by the abandonment, the termination or the interruption of the non-conforming use for a period of time, which must not be less than 6 months. Moreover, some cities and municipalities have adopted planning regulations allowing the survival of acquired rights for a period much longer than the 6-month threshold provided by the LAU. For example, the urban planning by-law of the Ville-Marie borough in Montreal allows a period that can extend up to 12 months since the abandonment, the termination or the interruption of the non-conforming use.
In the event that a use protected by acquired rights has been abandoned, has ceased to be exercised or has been interrupted in the past months, it is important to note that the period provided for by municipal by-law for the loss of acquired rights from this usage is not interrupted due to the COVID-19 pandemic, contrary to the deadlines for civil procedure and prescription, by the adoption of Order No. 2020-4251.
Thus, if the municipal by-laws provide for the loss of acquired rights’ protection within 6 months following the termination or interruption of a non-conforming use and such use has, in fact, been terminated or not been exercised for more than 6 months, the acquired rights protecting this non-conforming use may be extinguished and this non-conforming use can then no longer be exercised, with the exception of obtaining a specific authorization from the municipality (ex: certificate of authorization for a specific construction, alteration or occupancy proposals for an immovable, certificate of authorization to exercise a conditional use etc.).
In order to avoid the possible extinction of acquired rights protecting a non-conforming use during this pandemic period, it is therefore essential to continue to take concrete steps to demonstrate the continuation of such use or the intention to continue such use.
For any question relating to non-conforming uses protected by acquired rights or any other question in municipal law, do not hesitate to contact Beauregard Avocats’s team.
At no time does the information contained on this page constitute legal advice. Please refer to one of our professionals for more information or specific information.