This post was written prior to our January 2017 merger, under our previous firm name, Aikins, MacAulay & Thorvaldson LLP.
Legislative authority is given to local governments to undertake repairs and demolition of certain dangerous property and buildings without a specific bylaw. Outside Winnipeg the authority to inspect and demolish buildings is found beginning at section 239 of The Municipal Act.
A local government may require an owner to eliminate any dangers to public safety or remove or demolish structures and level the site if, in the opinion of its designated officer, the structure is dangerous to public safety or property, or is in an unsightly condition or is detrimental to the surrounding area. Council is the review body if a person disagrees with the actions taken by the designated officer and subsequently the local government may take whatever actions or measures it considers necessary to eliminate the condition or the danger on the property including building removal. Costs of any action or measures taken are an amount owed by the person who was required to do something by the order and can be added to the taxes.
Process must be followed very carefully or the local government may be found to have acted beyond its jurisdiction, and liability will arise.
For example, if it’s found that proper notice is not given to the owner before the designated officer steps foot on the property to inspect it, any report given from that inspection cannot be used in a decision by council to demolish a building. The local government must not ignore the obligation of providing the owner with reasonable notice before entering the land to conduct its inspection. The Municipal Act states:
“…a Designated Officer of the Municipality may, after giving reasonable notice to the owner or occupier of land or the building or other structure to be entered to carry out the inspection, remedy, enforcement or action, enter the land or structure at any reasonable time and carry out the inspection, enforcement or action authorized or required…”
If this isn’t followed, it will be trespass. The Court of Queen’s Bench has said in one Manitoba case:
“The right of individual land owners to be informed of municipal officials entering on their land is not a trivial right. It goes to the heart of ownership. Breaching that right can not be described a trivial. At the time of the inspection …the municipality had not complied with section 239(1) [of The Municipal Act] by giving notice and therefore lacked the legal jurisdiction to enter onto the Plaintiff’s property. The act of entering on the land by the inspector constituted an unlawful trespass.”
If a building is demolished by a local government without a proper report, taken after a properly constituted inspection report, the demolition activity will be found to be unlawful.
For property within Winnipeg, the City’s Charter Act gives it similar authority to engage in a process through inspection, notice and order to have buildings removed or demolished. Process must be carefully followed. Costs are awarded against the person and charged against the property.
Taking it a step further, a derelict building bylaw may be enacted giving authority to a local government to acquire title to property owned by someone who is in breach of the obligation to maintain it in accordance with the bylaw. Both Brandon and Winnipeg have passed such bylaws to permit seizure to such land. These bylaws permit land seizure without having to compensate the owner for its value. Local governments elsewhere in Manitoba have the same authority to pass such a bylaw. The bylaw must be carefully worded, and the process and procedures clearly spelled out, but the legislative authority is there to do so.
As for the City of Winnipeg, in 2004 it enacted a Vacant and Derelict Building Bylaw which was subsequently split up and expanded in 2010 with the enactment of two additional bylaws known as the Vacant Buildings Bylaw 79/2010 and the Taking Title to Vacant and Derelict Buildings Bylaw 89/2010. All three bylaws are in effect although the Vacant and Derelict Buildings Bylaw 35/2004 has very little left in it. But together with the Derelict Property section of the City of Winnipeg Charter Act, Winnipeg has an aggressively strong arm when it comes to this subject matter.
The objective of these by-laws would include such concerns as reduce the risk of fire, safety hazards for fire fighters and emergency personnel, urban blight, illegal activities and to contribute to neighbourhood renewal by discouraging vacant buildings to remain inactive for extended periods and to ensure vacant buildings are brought back to habitable standards prior to occupancy. The programs developed from the by-laws target vacant buildings that are dilapidated, dangerous, improperly secured and the subject of public complaints.
The first step in the process under such a bylaw is obtaining a conviction of guilt against the owner for non-compliance with the bylaw. There can be challenges.
What if an owner has died, and there is no legal representation for the estate? How does the local authority get a conviction? The legislation doesn’t seem to have addressed this. In such instances, unless someone steps forward to pay the taxes, it may end up being seized in the tax sale process.
And what about the time delays? It is never a quick process. It can sometimes take many months, even a year or more, to get a conviction for the bylaw breach. It can then take many months or so of wading through all of the notice requirements, the registration requirements, appeal periods, negotiations with the owner, etc. to try to get the owner to comply, etc. before title is acquired. But, at the end of the day, a local authority with a properly drafted bylaw can take the property without compensation and, much like taking property by tax sale, all other interests in the property are extinguished.
Enacting a Vacant and Derelict Building Bylaw with authority to convict and seize can be a strong deterrence to property owners who fail or refuse to keep a property in a safe and secure condition. A review by legal counsel is advised before final reading to ensure compliance with The Municipal Act.
This article was originally published in Municipal Leader, Summer 2012 issue.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
Robert L. Tylerpractises in the areas of Business Law including Real Property, Municipal, Commercial Transactions, Mortgages, Foreclosure and Estate Administration. Reach him at (204) 957.4630.