If you’ve previously bought an older home or cottage, or have renovated in the past, you’ve likely come across the term “lawful prior non-conforming use”, but frankly, most people know it more informally as “grandfathered”. The term ‘grandfathered’ is used rather often when it comes to real estate and property ownership when issues arise with the existing property that no longer conform to by-laws, ordinances, or construction standards. For example, you may be dealing with an electrical, plumbing or construction issue in and older home that doesn’t meet the current building codes. Or, perhaps your shed was built too close to the neighbour’s yard long before you moved in. As long as your building is safe, it may not have to be upgraded, relocated or torn down to meet the more current requirements – it’s been “grandfathered in”. However, any new construction, additions or renovations must meet the new building code or other by-law requirements.
How does it all work?
First of all, every case and every property is unique, so there can never be a blanket issue that is always “grandfathered” across the board. When reviewing an issue, inspectors, by-law officers and/or real estate lawyers first look at the records and the history of the property, then review all the facts in relation with municipal and provincial building codes.
If you are selling an older home or cottage, you may be concerned about whether certain issues comply with new zoning laws or building codes. In many cases, sellers can rest easy if the issue was already established before the new requirements were made, and if the use was lawful under the old zoning (and if legal permits were obtained at the time). In legal terms, we call it “lawful prior non-conforming use”.