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 ( UPDATED
- 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
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
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
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.
Basement Apartments: Untangling the Web
apartment, granny flat, accessory unit; no matter what it is called, there are
many different reasons for having a second suite. Whether it’s for extra
income, providing a place for a family member, increasing the value of the
house or having a tenant for company, a second suite can be beneficial.
But is it a ‘legal’ apartment? If not, how can it be made ‘legal’? In the
process of getting the apartment approved, 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 a second suite?
This report will look at some of the key concepts of second suites including:
The legislation history
The evaluation process and required inspections
Where to get more information
WHERE THERE ARE RULES, THERE IS GOVERNMENT
There are two levels of government with interests in the regulation of second
Prior to 1993, there was little to worry about.
In 1994, the NDP government in Ontario created Bill
120, which allowed for second suites anywhere in the province, regardless
of local bylaws. Standards were set out for building, fire and parking
requirements. At this point, a permit was required to change a home from
single family to multi‐family.
This legislation was nullified by the Conservatives in 1996, although any
units created prior to November 1995 were to be recognized and permitted to
stay in use.
The Liberals have since introduced Strong
Communities through Affordable Housing Act, 2011(effective January 1,
2012). This Act requires municipalities to allow second units within primary
residences as well as in other structures (e.g. garages). Generally only one
extra unit would be permitted. Planning for the possible inclusion of these
units is actually encouraged in any new developments.
At the same time, the Act allows each municipality to dictate areas that may
not be suitable (e.g. inadequate services available) as well as standards for
size, requirements for parking, etc. The Minister of Municipal Affairs and
Housing warns that the standards should encourage the creation of these second
units. These units must also adhere to the Building Code, the Fire Code and
any applicable property standards bylaws.
What about old units?
There is no provision for ‘grandfathering’. Current standards will apply to
In effect, the provincial government has told the municipalities, ‘If
you don’t have a policy that governs second units, get one; and if you do have
one, make sure it agrees with ours.’ (Once
all the legislation is declared in force). To confuse matters, there is no
specific date that municipalities have to be in conformance.
Many larger municipalities have established policies on second units with
different biases for and against them. With the recent Provincial legislation,
this is now a bit of a gray area, specifically in municipalities that do not
allow for ‘accessory dwelling units’ (e.g. Mississauga). As mentioned
previously, while the Province has said that municipalities must ‘get in
line’, no exact date has been set.
For the City of Toronto, legislation was passed in the summer of 2000 which
permitted a second dwelling unit in almost the entire amalgamated city. This
Second Suites Bylaw used the repealedBill
120 as a template to specify
the requirements for planning standards, building and fire codes.
THE EVALUATION PROCESS (Toronto)
The first thing to establish is whether the suite is existing or new.
If there is an existing suite and the City has records that identify the house
has been adjusted for a two unit residence, the Fire Department has issued a
Certificate of Compliance and the Electrical Safety Authority has given
approval, all is good.
If there are no records, you may have to prove the pre-existence with
supporting records for rents collected, improvement expenses, taxes, etc.
Inspections would then be required to determine if any upgrading is required.
In Toronto, a Municipal Licensing and Standards inspector will use Chapter 629
to confirm the requirements for occupancy and property standards are being
met. If there are problems, they can be addressed by:
fixing them, or
applying to the Committee of Adjustment for a variance
After these conditions are approved, you must get a Fire Services Inspection
and then an Electrical Safety Inspection.
If a new suite is being planned, there are a number of questions that have to
be answered before your apartment can be considered ‘legal’.
Do the local bylaws permit you to have a basement apartment?
In most cases they will be permitted. Assuming that a second suite is allowed,
you must ask,
Does the apartment comply with the building code requirements?
When creating a second suite, plans must be submitted, permits taken out and
work approved. The Ontario Building Code and Ontario Fire Code are used for
reference. There is lots of room for the inspectors to be more or less
‘strict’. In municipalities that encourage basement apartments, the inspection
may be less strict. In municipalities that discourage basement apartments, the
inspection may be more strict.
Have the requirements of the Ontario Fire Code been met?
After the building requirements are passed, the local municipal fire
department will have to be contacted so they can ensure current fire safety
codes are being met. A ‘Letter of Inspection’ will be issued when all is good.
Have the requirements of the Electrical Safety Authority been met?
Inspection for Compliance of Two-Unit Residential Dwelling must
be arranged with the ESA and once any electrical defects are corrected a
‘Certificate of Inspection’ is issued.
What are the consequences of having an
A disgruntled tenant or neighbour may call the City and complain. If you are
found to be not in compliance there are a number of possibilities:
You could be asked to dismantle the apartment and remove the tenant
You could fix the problem
You could be fined or go to jail
HOW ABOUT SOME SPECIFIC REQUIREMENTS?
In Toronto, Municipal Licensing and Standards (ML&S) has developed guidelines
for developing second suites. To start:
The building must be at least five years old
The building must be detached or semi-detached (and in some cases it may be
a row house)
The front of the house must stay essentially the same
The second suite cannot be larger than the primary residence
Parking must be provided (with exceptions in some parts of the former City
Ontario Building Code and Municipal Bylaws
While the Provincial standards are ordinarily followed, ML&S bylaws may
provide exceptions or refinements. In Toronto, Chapter 629 provides the rules
for Property Standards.
These include specifics for everything from the sizes of rooms, required
heating and lighting to the necessities for storage of garbage and debris.
Size of Living Space –
629.25C requires a minimum habitable space of 9 square meters (97 ft²) per
Ceiling Height – 629.25D
requires a height of 1.95 meters (6 ft. 5 in.) for at least ½ of the floor
area in a room.
Bedrooms – 629.25E/F
requires 6 square meters (65 ft²) for one person or 4 square meters (43 ft²)
per person when more than one person is sleeping in the room.
Bathroom Ventilation –
629.39B requires any bathroom to have an exhaust fan or an operable window.
Ontario Fire Code Retrofit Section 9.8
Any rental unit, old or new, must comply with the standards set out in the
Ontario Fire Code. There are four key areas regarding fire code compliance,
all having to do with the safety of the occupants:
Mean of egress
Fire detection and alarms
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 a minimum
prescribed time. These components are given ‘Fire
Resistance Rating’ of how long they will survive a direct fire before
burning through. A 30-minute rating means that the component will withstand
the fire for at least 30 minutes.
The typical requirement is a 30-minute separation between the units.
Drywall and plaster are acceptable but suspended (T‐bar type) ceilings are
The ceiling must be continuous. For example, this means that you can’t have
exposed joists in the furnace room – this area has to be covered with
drywall or plaster as well. (See note below in Suppression.)
Doors should be solid wood or metal – at least 45 millimeters (1¾ inch)
Flame Spread Ratings which
determine how quickly the fire on a burning material will spread are also
considered, meaning materials like wood paneling are not ordinarily
2. Means of Egress ‐ Escaping
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 alarm sounds, the
others will sound as well). The second exit is typically a window.
What is an acceptable window?
The windowsill must be within 1 meter (3 feet) of grade. We don’t want
people jumping and breaking a leg.
The smallest dimension is 0.5 meters (~18 inches).
The opening is at least 0.38 square meters (~4 ft²).
If a basement window has a window well, it must extend 1 meter (3 feet) out
from the house wall, to allow room to crawl out.
3. Fire detection
All units must have smoke alarms on every floor and audible from the bedrooms
(when doors are closed). The owner of
the property is responsible for
the installation and maintenance. 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).
Interconnection may also be required if a unit is located on a third floor.
Carbon monoxide detectors are also required.
While sprinkler systems are not mandatory, their installation may lower the
requirements for fire containment and/or egress. As an example, an open
ceiling in a furnace area may be acceptable. Portable fire extinguishers
should be provided.
The Fire Code includes a provision that any suite must have a general
inspection by the Electrical
Safety Authority and any
hazards must be fixed. If requested, a letter of compliance must be made
available to the Chief Fire Official.
Although there are many more ‘illegal’ apartments than ‘legal’ ones, the
benefits of ‘flying under the radar’ should be weighed carefully. The
consequences of being reported by a perturbed tenant or neighbour are one
thing; being sued for negligence or being denied an insurance claim can be
more onerous. If you are going to represent the property as Multi Unit, verify
that it is registered with Municipal Property Standards.
WHERE TO GET MORE INFORMATION
Province of Ontario – Ministry of Municipal
Affairs and Housing
- Information on the Strong
Communities through Affordable
Housing Act, 2011: http://www.mah.gov.on.ca/Page9575.aspx
General inquiries: Phone 311
City of Toronto Buildings Division: www.toronto.ca/building
For building information, permits and inspections
Municipal Licensing and Standards: www.toronto.ca/licensing
For information, inspection and investigation of zoning and bylaw
Toronto Fire Services: www.toronto.ca/fire/prevention
Electrical Safety Authority: www.esainspection.net
The Carson Dunlop website (www.carsondunlop.com)
has this report and other reports of interest to Real Estate Professionals
available for download.
This article was submitted by Carson Dunlop, a Toronto based consulting
engineering firm that has specialized in Home Inspection since
1978. For more information, call 416-964-9415 or 1‐800‐268‐7070, or visit www.carsondunlop.com.
© Copyright Carson, Dunlop & Associates Ltd. 2013. All rights reserved