What you should disclose about a heritage property
Although the article below refers to clients, the same obligations apply to your customers.
Buying a heritage home is a lot like owning a piece of history. It brings its own splash of character and community pride. However, there are certain restrictions to owning a heritage home that must be disclosed to your client before an offer is made.
There are different ways that a property might fall under the Ontario Heritage Act:
Listed in the heritage register
Designated heritage property
Part of a heritage conservation district
Ontario municipalities maintain a list of properties that are of cultural heritage value or interest.
If a property is included in the register, the owner must give the municipal council at least 60 days' written notice before demolishing or removing a building from the property.
A home is declared a designated heritage property when the municipality passes a by-law. This grants the property additional protection and promotes awareness of its local history and cultural value.
The owner of a designated heritage property can't alter the property in any way that would affect the property's heritage attributes, unless they apply to the municipal council and receive written consent. The application must include the plans and set out any other information the council may require.
However, not all changes to a heritage property require heritage approvals. This will depend on the specific by-law and what the municipality has defined as the heritage attributes of the property that must be preserved.
When purchasing a designated heritage property, the new owner must also give notice of the change to the clerk of the municipality within 30 days of taking possession.
A property may also be granted heritage status if it falls within a heritage conservation district, which extends to a defined area of a municipality. This could include entire neighbourhoods, buildings, shops, land and fixtures such as street lamps.
As with a designated heritage property, if an owner wishes to make any alterations to a home that falls within a heritage conservation district, they must apply to the municipality for a permit before they can do anything. However, the municipal heritage district plan for the area will include specific examples of "minor" changes that can be made without a permit.
Legal advice on restrictions
Whenever a property has heritage restrictions, a real estate lawyer is a great asset to help determine what is permitted under municipal by-laws.
Identifying a heritage property
The best way to determine if a property is a listed property, designated heritage property or in a heritage district is to check the local municipal register, which will contain a list of properties in the area that are deemed culturally valuable.
The register will include important details about listed homes, such as:
A description of the property;
Name and address of the property's owner; and
Whether the property is listed as a designated heritage property, or within a heritage conservation district.
A statement explaining the cultural heritage value or interest of the property and a description of its historical attributes.
Informing your client
It is your obligation to determine all material facts associated with a property and to disclose it to your client, in order to promote and protect their best interests. As such, if you are dealing with a property that could potentially have heritage restrictions (for example, if it is in a historic area) you should seek confirmation by checking the municipal register. And, if you are aware of any heritage restrictions, you must advise your client about them, and refer them to expert professional advice since it may impact their decision to place an offer. That includes any heritage designation on a property, or whether a property is in the process of being listed as a designated heritage property.
Failure to disclose material information about a property can have significant consequences, both in terms of civil liability and under the Real Estate and Business Brokers Act, 2002 (REBBA 2002), so it's important to seek out any and material facts related to your client's requirements.