thestar.com
Bob Aaron

Bob Aaron bob@aaron.ca

June 6, 2009

How to create a legal second suite

One of the biggest mysteries of the local real estate market is the legality of basement apartments – also known as granny flats, in-law suites, accessory apartments or non-retrofit units.

Toronto bylaws permit basement apartments in all single detached and semi-detached homes, subject to certain requirements. Determining just what those requirements are, and whether any of the tens of thousands of basement apartments in Toronto are legal, is a tall order.

The City of Toronto has prepared a kit that provides information on how to create a legal second suite. It's available at the Access Toronto desk at municipal offices (or 416-338-0338). It's somewhat shy on the actual physical requirements, including unit size, fire protection, zoning, parking, window area, ceiling height, exit requirements, etc. Recently I came across a superb explanation of the basement apartment issue. It's on the website of Carson Dunlop, a well-known firm of home inspectors and consulting engineers (carsondunlop.com/OBS/basementRetrofit.htm - and below).

The report starts off with the big Catch-22: "Homeowners with a basement apartment would like to find out what it would take to 'legalize' the apartment," it says, "but they want to find this out without tipping off the authorities."

The answer, according to Carson Dunlop, involves five issues:

Under Ontario law, a permit is required to add a new basement apartment to a single family house. In 1994, the NDP government overrode local bylaws prohibiting basement units, if certain conditions were met. New Fire Code rules were introduced, and they apply to all basement apartments.

Carson Dunlop suggests checking the zoning bylaw at city hall and applying for a building permit. The new unit will have to comply with current building codes.

For existing units, the first step is to check with Municipal Property Standards or the fire department for a certificate of compliance. If there is one, the apartment is legal.

If not, the next step is to have the fire department inspect the home to verify compliance with the Fire Code. The four key areas of this inspection involve fire containment and fire-rated drywall separations from the remainder of the house; fire exits (including qualifying windows); fire detection and alarms; and electrical safety.

Following the fire inspection, an Electrical Safety Authority inspection is required.

Several rules apply to all basement units:

If the unit passes all the required inspections, it can be used, advertised and sold as a legal basement apartment. In my experience, if a house is advertised or listed as having a basement apartment, and there is no mention that the unit is legal, it probably isn't.

For anyone buying, selling, building, or arranging insurance for a basement apartment, the best advice is to complete the required inspections and always make full disclosure.

Bob Aaron is a Toronto real estate lawyer and a director of the Tarion Warranty Corporation.  He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.  Visit the column archives at http://aaron.ca/columns/toronto-star-index.htm for articles on this and other topics.

 

Carson Dunlop Reports

Basement Apartment Retrofit - “ Untangling the web”

In a city like Toronto, where the apartment vacancy rate is low and real estate values are
high, many people rely on the rental income from a basement apartment to give them the
edge they need to own a home. But is it a ‘legal’ apartment? If not, how can it be made
‘ legal’? In the process of legalizing the apartment, will I be inviting ‘trouble’? What if the
‘ city’ prescribes improvements that are prohibitively expensive? What if the ‘city’
decides that I can’t have an apartment?

Catch 22

Homeowners with a basement apartment would like to find out what it would take to
‘ legalize’ the apartment, but they want to find this out without tipping off the authorities.
The only way to know for sure what will be required is to have inspections done by the
appropriate authorities.

This report sheds some light on this complicated subject. We will look at basement
apartments including –

Is it ‘legal’?

‘Legal’ involves five separate issues including –

We will look at these issues more closely.

Building code vs. fire code

The Building Code prescribes minimum requirements for the construction of buildings.
For the most part, the Building Code is a code that applies only the day the house was
built. The code changes over the years, but we don’t have to keep changing our houses to
comply with the code. The code does not apply ‘retroactively’.

The Fire Code is a subset of the Building Code. It prescribes construction and safety
issues as they relate to how the building is required to perform should it catch fire. A
significant distinction with the fire code is that it can apply retroactively.

Basement retrofit
Now that we know that the Fire Code applies retroactively, we can see where the phrase
“ basement retrofit” comes from. A new Fire Code was developed that applies to basement apartments. The code applies retroactively, so all basement apartments whether existing or new must comply with the new Fire Code. All owners of homes with basement apartments were given a period of time to upgrade their homes to comply with the new Fire Code. This ‘grace period’ has long since passed.

Certificate of compliance
All basement apartments have to be inspected to verify that they are in compliance. Once
this has been verified and any improvements completed, the apartment is given a ‘certificate of compliance’.

Bylaw
We mention this term here to make sure that we don’t confuse bylaws with building
codes. Bylaw in the context of basement apartments refers to whether you are permitted
to have a basement apartment in your area and any special conditions involved. Bylaws
are set by municipalities to keep people from being a nuisance to their neighbours. Codes
are health and safety rules to protect occupants.

Basement Apartments – The History
Prior to 1993, there was little to worry about. After 1993, a permit was required to change
a home from single family to multi-family.

In 1994, the NDP government in Ontario said that we could ignore local bylaws that
prohibited second dwelling units in houses if certain conditions were met. In 1994, the province set new Fire Code rules for basement apartments. A deadline was established for all existing basement apartments to upgrade to the new fire code. Upgrading to comply with the new fire code is called a “retrofit”. The owners were allowed to apply for an extension for up to two years past the deadline if they had financial or logistical obstacles. Even with the extension, the deadlines have long since passed.

In 1995, the provincial Conservative government told municipalities that they could enforce their bylaws regarding basement apartments. A grand-fathering clause says that apartments existing before November 1995 do not have to meet local bylaws.

The Evaluation Process

NEW UNITS
If you are thinking of adding a basement apartment here is the procedure –
Check the Zoning Bylaw at City Hall Buildings Division to find out if basement
apartments are allowed.

EXISTING UNITS
This report will focus on existing homes with a single basement apartment.

Four Key Elements
There are four key areas regarding fire code compliance. They all have to do with the
safety of the occupants –

Let’s look at each of these.
1. Fire Containment

The goal is to contain the fire in the unit that the fire started, long enough to get all of the
occupants out of the house. This means that any walls, floors, ceilings and doors between
units should control the fire for at least a few minutes. These components are given
‘ ratings’ of how long they will survive a direct fire before burning through. A 30 minute
rating means that the component will control the fire for at least 30 minutes.

The typical requirement is a 30 minute separation between the units.

2. Means of Egress - Escaping the home

The goal is to allow the occupants to get out of the house if there is a fire. There are two
common situations; either each unit has its own exit, or there is a common exit. If each
unit has its own exit, you are all set. If the units share an exit, it is more complicated.
A common exit is allowed if it is ‘fire separated’ from both of the units with a 30 minute
rating. If the common exit is not appropriately fire separated, you can still use this common exit as long as there is a second exit from each dwelling unit and the fire alarms are interconnected (if one alarms, the others will alarm as well). Here is an example:

There is a common exit area but the common area does not have a 30 minute fire
separation between both of the units. If there is an ‘acceptable’ window for an escape
route and the smoke alarms are interconnected, we are all set.

What is an acceptable window?

3. Fire detection
All units must have smoke alarms. The owner of the property is responsible for ensuring
that there are smoke alarms and that they are maintained. The smoke alarms do not have
to be interconnected unless the fire separation to the common exit area does not have a 30
minute rating (Note: It must have at least a 15 minute rating). A carbon monoxide detector (CO detector) may be required by the city.

4. Electrical Safety
An electrical inspection by the Electrical Safety Authority is required. The Electrical
Safety Authority used to be called Ontario Hydro Inspection Department. All deficiencies
must be addressed.

General Rules

Here are a few rules that your apartment must meet.

Inspections and their costs

As we already pointed out, two inspections are required, fire code inspection and
electrical safety inspection.

Once the inspections are done, you will be required to make the prescribed improvements. Improvements may be minor, but can cost $15,000 or more.

There is lots of room for the inspectors to be more or less ‘strict’. In municipalities that encourage basement apartments, the inspection may be lest strict. In municipalities that discourage basement apartments, the inspection may be more strict.

Inspections for fire code compliance cost between $120 and $300. Inspections for electrical safety cost $72.

The consequences
If you are going to represent the property as two family, verify that it is registered with
Municipal Property Standards. Failure to comply can result in a $25,000 fine and oneyear
jail term.

More information

The Second Suites kit from City of Toronto is a useful reference. Contact the Access Toronto desk at municipal offices (or 416-338-0338)

Office Presentation Available

If you would like an Engineer from Carson Dunlop to come to your office to do a presentation on basement retrofit requirements, please contact our office at 416-964-9415.

Our Web Site

The Carson Dunlop web site has this report and other reports of interest to Real Estate Professionals available for download. See us at www.carsondunlop.com

This article was submitted by Carson Dunlop, a Toronto based Consulting Engineering company that has specialized in Home Inspection since 1978. For more information, call 1-800-268-7070 or visit www.carsondunlop.com.

Bob Aaron is a Toronto real estate lawyer. He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.
Visit the Toronto Star column archives at http://www.aaron.ca/columns for articles on this and other topics or his main webpage at www.aaron.ca.