One of the first tasks taken up by a real estate lawyer when dealing with the purchase of property by his or her client is reviewing the land survey. In the records kept in the Land Registry Office relating to the lot or property there is generally a legal description of the property which demarcates the boundaries of the land, however the Land Registry Office records rarely if ever include details as to whether or where any building or structure on the land is or is not. Keeping this in mind in order for the purchaser to gain any form of assurance that the property they are purchasing, contains the building (or not) obtaining which forms the objective of the purchase such as a house etc. a Plan of Survey made by a Registered Ontario Land Surveyor is required. Such a Survey aids the lawyer in determining the following fundamental facts:
- Whether the building which the purchaser seeks to purchase is or is not on the lot or land that the purchaser is intending to buy.
- Whether any building belonging to the adjoining owners is encroaching on the lot or property being purchased. (If an encroachment by or on adjoining properties is found this may require a partial or entire destruction of the building).
- Whether the building(s) on the land comply with, any and all, current zoning by-laws, which may restrict the size and location of the buildings relating to the lot lines (other wise referred to as set backs).(if the buildings on the property are in serious violation of zoning by-laws then partial or entire destruction of the building may be required).
Another reason why a Plan of Survey is necessary is due to the fact that generally many home owners require a mortgage in order to purchase their home; that being said mortgage companies do not generally approve the mortgages of property without first verifying that a Plan of Survey has been obtained and certified by a real-estate lawyer to the effect that the lawyer can confirm that the property and the buildings are in compliance with any and all current zoning by-laws. It is very difficult if not impossible to determine whether a property complies with zoning by-laws without a Plan of Survey. It is important to note however that a Plan of Survey is not a legal requirement, and as such a purchaser may instruct the real estate lawyer to proceed in the absence of a Plan of Survey.
In instances where a survey shows that the buildings on the property does not comply with the current zoning by-laws; it may be found that the building perhaps is in violation due to legal non-conforming use. A legal non-conforming use of property is where the building or property has been legally constructed upon prior to the by-law, which it is now in breach of, was brought into force. An experienced and reputable real estate lawyer should be able to advise his or her client regarding whether such an excuse can be relied upon or not.
For more information please contact one of our experienced Real Estate Lawyers at MEHDI AU LLP.
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