So You Have An Illegal Secondary Suite…

By Jeff Kahane

As floodwaters recede, advocates of secondary suites are again renewing their calls for grandfathering in existing illegal suites. They cite the low vacancy rate (hovering around 1%), the impending return of post-secondary students this month, and the fact that numerous apartment buildings and basement suites were adversely affected by the flood. In addition, they note that Calgary’s population continues to grow at unprecedented rates, further stretching the already limited supply of rental accommodations.

To further complicate matters, some previously legal basement suites which were destroyed in the flood will no longer have the city’s blessing should the homeowners decide to rebuild their tenant spaces. This is based on the fact that the city has allowed these suites to exist merely because they pre-date 1970 when certain zoning bylaws were adopted. Homeowners that live within the zones allowed to have basement spaces are also required to know of some of the sump pump basics, considering the floods have destroyed many basements locally before. When they do get a chance to rebuild they are going to need to put steps in place to make sure that this doesn’t happen again if another heavy shower comes and affects the home. If it does, they would need to look at waterproofing basement walls and floors again! No one would want to go through the same ordeal again, and for that, they might have to think of remediation options and keep them in mind for any future use. Prevention is always better than cure! But maybe, by utilizing something similar to a Basement Waterproofing Kingston service, as well as having the structure checked by a professional, for example.

These bylaws effectively banned basement and backyard apartments in new areas. As it applies today, the law prohibits the grandfathering in, under modern land-use rules, of secondary suites which are required to be structurally rebuilt. So any previously legal suites in these older areas which experienced heavy damage from flooding will no longer be considered legal by the City’s standards.

These previously legal suites, now considered illegal by the city’s standards raises the question of what the city will require of these homeowners as they rebuild. That is, should they be served with a notice that their suite is no longer able to be grandfathered in, how far must they go to pass inspection? Alternatively, what does the city require when those responsible for enforcement of secondary suite compliance discover illegal suites? What steps will they require of homeowners in these situations?

The answer to these questions depends largely on what the homeowners want ? do they want to keep the suite, and bring it up to city by-law and provincial building code standards? Or do they simply want to remove the suite altogether, and do the minimum necessary to be a compliant non-suited residence?

The answer to the first option, bringing a suite up to code and bylaw standards, will require a number of steps both procedural and practical, depending on each homeowner’s specific circumstances. Some broad questions that will have to be addressed include:

• Does the homeowner have the correct land use designation under the Land Use Bylaw 1P2007?
• Does the suite conform to the current building code (see our article from last month for a more detailed explanation of the requirements)?
• Is the suite located in a single detached dwelling?
• When was the suite constructed? (As mentioned, those constructed prior to 1970 are grandfathered in under current land use bylaws, provided the homeowner is not seeking further development on the property and the building does not have structural damage this is particularly pertinent to those affected by the flood)

Depending on how the homeowner answers these questions, remediation of a suite to become legal may be extensive, and bring with it a great expense of both time and money.

In the event that the homeowner finds compliance cost and time-prohibitive, how far must they go to be a non-suited single-family residence? This question is more challenging to address, as it depends somewhat on how the bylaws are interpreted.

The end goal is to have only one ?dwelling unit? in the residence. A Dwelling unit is defined in the city’s Land Use Bylaw (1P2007 ? s. 188) as use that contains two or more rooms designed to be used as a residence by one or more persons, and that contains a kitchen, living, sleeping, and sanitary facilities. So in ensuring compliance with the city’s Land Use bylaws, a homeowner must, at a minimum, ensure their secondary space no longer meets this definition. They can also take a look at this blog page https://www.uniteddwelling.com/blog/adu-rules-regulations-los-angeles to learn more about the rules and regulations concerning dwelling units.

As the removal of living, sleeping, or sanitary facilities is generally neither desirable nor practical, going from two dwelling units in a residence to one likely means removal of the kitchen, specifically whatever cooking appliance was being used. Out of an abundance of caution, and if a full-size stove was previously installed in the suite, a home owner may also consider having an electrician remove the 220V wiring as well. This will prevent any further suspicion from city inspectors should they have any doubts about the space continuing to be used for tenants after being cited as an illegal or non-conforming suite.

Whichever direction the home owner decides to go, remediation of a secondary suite will require some investment of time and/or money. How much time and money will depend on the direction the home owner wants to go either to continue as a landlord with a legal suite or remove enough of the accessory suite to enable them to reclaim the entire house as their own.

Jeff Kahane founded the Kahane Law Office in 2004. He earned his B.A from the University of Western Ontario, a B.Ed. from the U of C and Law degree from the U of C (Dean’s list and Silver medal winner). The law firm is ranked third in Alberta with respect to real estate transactions by volume by a title insurance company. Jeff won the Ernst & Young Global competition for methods of building a better global law firm in 2002, the Alberta Centennial Medal of Honour in 2005, was nominated for the Ernst & Young Entrepreneur of the Year Award in 2007, was named Leader of Tomorrow in 2010 by Business in Calgary magazine and won the Calgary Choice Award for small business in 2011. In addition, Kahane Law Office was recognized as the Best Place to Work in Calgary in 2006.

Cover photo: www.thestar.com