An experienced expropriation lawyer Toronto will see dozens of these cases a year; Landowners across Ontario are contacted regularly by property acquisition agents of government agencies such as municipalities or the Ministry of Transportation, when all or a portion of their land is required for a public project (such as road widening, light rail transit, etc.). Sometimes property acquisition specialists are employed by the authority or are sub-contracted consultants with deep knowledge of property acquisition laws and the Expropriations Act. Tenants are often approached because businesses or individuals may require relocation resulting from a land requirement.
Property acquisition agents will seek to negotiate a “friendly” transaction through an agreement to purchase the land, or they may seek a preliminary agreement, such as a “Permission to Enter” or access agreement, where they want to secure the right to do preliminary assessments and testing on the land to determine its suitability for a project.
Many individuals enter into these agreements without understanding the basic rights or protections available in the Expropriations Act. Their rights are often compromised, or leverage is lost by entering into seemingly routine agreements without adequate or any compensation payable or benefit to the landowner.
Each and every request made by an authority is an opportunity to seek protection and compensation, or at the very least the right to consult with a lawyer and to have reasonable legal fees paid by the authority. If you are contacted by a property acquisition agent, we encourage you to do the following:
- Do not sign or agree to anything verbally before seeking legal advice;
- Take detailed notes of any conversations you may have with the property agent;
- Request a copy of any appraisal, report, or other documentation they have about your property or the project;
- Ask as many questions as possible about the project scope, possible impacts to your property and utilities, prospective timing for completion, etc.;
- Obtain the agent’s full contact information, so that you or your lawyer can reach out to them regarding any additional information you may require;
- Participate in the Environmental Assessment process behind the project if it is still ongoing; and
- Contact a lawyer who regularly practices expropriation law.
Expropriation is a Unique Area of Law
Expropriation is a complex and unique area of law. It is critical that you contact a lawyer who is experienced and knowledgeable about the expropriation process in order to protect your private property. An expropriation file is very different from your typical litigation file or real estate deal, and requires specialized knowledge and connections with other professionals that can help you (real estate appraisers, land use planners, engineers, and the like). Reasonable legal and professional costs are reimbursed.
Fees can often be a barrier for people to contact a lawyer or other professional for advice. Many individuals are not aware that the expropriating authority is actually required in many cases to reimburse owners for their reasonable legal and professional fees pursuant to Section 32 of the Expropriations Act, in addition to proving that an expropriation is fair, sound and necessary, if challenged. Where an amicable agreement is reached outside of a formal expropriation, it is often negotiated that the expropriating authority will pay for the owner’s legal and professional fees to negotiate and close the transaction. Where appropriate and necessary, your fees to obtain your own independent appraisal report on the value of your land will be paid for too. If the appraisal report requires land use planning analysis, then your land use planning fees may also be covered.
The Basic Steps in an Expropriation
Some of the basic steps in an expropriation typically include:
- Pre-expropriation Negotiations – typically there is an attempt to negotiate an amicable purchase of the required land or easement.
- Commencement of Formal Expropriation Process – The expropriating authority will serve owners with a Notice of Application for Approval to Expropriate Land to begin the process.
- Hearing of Necessity – An owner can elect to challenge the decision to expropriate through a hearing of necessity, although it is difficult to stop an expropriation from proceeding.
- Notice of Expropriation – the expropriating authority will register a Plan of Expropriation on title to the property and will serve the owner with a Notice of Expropriation.
- Section 25 Offer – the expropriating authority is required to provide the owner with an appraisal report and a Section 25 offer of compensation. The compensation is supposed to reflect the fair market value, amongst other factors. The owner may accept the offer as a final settlement or accept the funds “without prejudice” and proceed with making an application to the Ontario Land Tribunal
(“OLT”) to determine compensation. Sometimes a Section 30 Agreement can be reached where the Owner receives some compensation initially in exchange for transferring the land, without prejudice to their right to seek full compensation at the OLT.
- Mediation – the parties may request that the OLT conduct a mediation session to try to reach a resolution.
- OLT Hearing – the parties will have the opportunity to present evidence, challenge evidence and make oral arguments before the OLT. The OLT will then make a decision regarding compensation.
What You Need to Know, Determined by an Experienced Toronto Expropriation Lawyer
If you only take one thing away from this article, remember this: contact a Toronto expropriation lawyer experienced in handling expropriation matters before you sign any sort of agreement. Whether it is an agreement to sell your land, a permission to enter your property or any other agreement, you should always seek legal advice first to protect your rights. Often property owners feel that since it is difficult to stop expropriations from occurring that they might as well “play along” and sign documents. Like anything, though, you’ve got to know and understand the fine print and the implications.
How a Leading Expropriation Lawyer at Unified LLP Can Help
The Property and Commerce team at Unified LLP has handled many expropriation matters, including full takings of land, partial takings, permanent easements, and temporary easements. We have acted for both residential and commercial property owners. As your expropriation lawyer in Toronto, we strive to provide the best services possible for our clients, including:
- Walking you through the expropriation process;
- Building a team of expert witnesses, such as business valuators and real estate appraisers, to strengthen your claim;
- Negotiating for full and fair compensation with the expropriating authority;
- Reviewing and revising any agreements with the expropriating authority; and
- Advocating for you at a hearing before the Ontario Land Tribunal, when necessary.
Please contact Michael Paiva, head of the Property & Commerce department of Unified LLP at 416.800.1733 or 519.729.5038 for more information or if you need assistance with an expropriation or municipal law matter. Michael has years of experience as an expropriation lawyer Toronto helping clients protect their property rights. He’s successfully represented dozens of clients facing expropriation in the Toronto area and across Ontario.
Expropriation Lawyer FAQ
What is expropriation? What can I do if I’m facing land expropriation?
The Ontario Expropriations Act grants the government the authority to seize land without the consent of the owner for a public purpose. The Act does require that the owner be made “whole”, which is to say that appropriate compensation must be paid for the property; this includes compensation for reasonable legal and professional fees. At Unified LLP, we have extensive knowledge of expropriation cases and relevant acts. We work on behalf of our clients to get the maximum amount of compensation they are entitled to if they are facing land expropriation.
What is a notice of possession?
In the context of expropriation law Ontario, a Notice of Possession is a legal document that a government agency or an authorized body issues to a property owner.
A Notice of Possession informs the property owner of the following key points:
- Confirmation of Expropriation: It officially notifies the owner that their property has been expropriated by the government or the authorized agency.
- Date of Possession: The notice includes the specific date when the government or agency will take possession of the land.
- Compensation Details: While the notice might not include the exact compensation amount, it usually indicates the process for determining compensation and informs the owner of their rights in this regard.
- Legal Rights and Recourse: The notice provides information about the property owner’s legal rights, including any rights to object to the expropriation or to negotiate the terms of compensation.
- Instructions for Vacating the Property: If applicable, the notice will include instructions and deadlines for vacating the property.
The Expropriations Act in Ontario governs how these processes are to be carried out, ensuring that property owners are treated fairly and receive appropriate compensation for their property. Property owners receiving such a notice often seek legal advice to understand their rights and the compensation they are entitled to under the law.
What does compensation cover?
The compensation must cover all losses and expenditures incurred due to the expropriation. This includes compensation for:
- The land
- Business losses
- Special difficulties in relocating your business
- Any additional damages resulting from the expropriation
- Injurious affection (long-term impacts on your land when there is only a partial expropriation)
At Unified LLP, we will use every tool and action available in the expropriation Ontario law to maximize the compensation you will receive if you’re facing land expropriation.
Do I have to fully own the land to be compensated?
No. If your land is under mortgage, you are an estate trustee, a tenant, or a creditor, you may still be entitled to compensation as per expropriation law in Ontario.
What is an expropriation scheme?
The expropriation “scheme” encompasses the land-taking project and the actions of the expropriating authority leading to the eventual public project. This scheme may develop long before the actual expropriation occurs. Recognizing the scheme is crucial as it serves as a foundation for pre-expropriation damages and other losses. While the scheme is not factored into compensation for fair market value, it plays a role in other aspects of the process and damages or compensation assessment.
Full vs partial expropriation in Ontario
The government can either acquire your entire property or just a portion of it for infrastructure projects and other needs. A partial expropriation can significantly affect your land’s use and value. This is referred to as “injurious affection,” which encompasses the lasting negative consequences of an expropriation on the land or a business situated on it. For instance, if a partial expropriation diminishes the economic feasibility of an intensification development like a condo project. Compensation for the business owners affected by expropriation may be required to address this loss. To receive the maximum compensation you are entitled to, work with an experienced expropriation lawyer Toronto. At Unified LLP, we help you navigate the complexities and nuances of expropriation law in Ontario.
What is a Section 25 offer?
Within 90 days of an expropriation becoming official on your property title, the expropriating authority is required to provide you with compensation for the taking. You have the option to accept this offer “without prejudice,” which means you can still pursue additional compensation. This is called a Section 25 offer, and frequently does not cover the complete and equitable compensation for injurious affection and business damages, making it necessary to pursue further claims even after accepting the Section 25 compensation payment.
What is a Section 30 agreement?
Expropriating authorities and landowners can engage in a transaction where the landowner willingly transfers the land to the expropriating authority in exchange for agreed-upon compensation payments. Section 30 Agreements offer flexibility and can be skillfully structured to address various issues, such as road access or construction management, providing protection for both the landowner and the authority to mitigate potential losses in advance. If an agreement is struck between the land owner and the approval authorities, you’ll cede the land for the agreed upon compensation.
What are my options when faced with expropriation?
You can fight back. But crafting a robust claim and navigating negotiations requires the expertise of professionals, including land use planners, real estate appraisers, business loss valuators, and legal counsel well-versed in the intricacies of expropriation matters. These specialists should also have experience presenting evidence at the Ontario Land Tribunal (formerly Local Planning Appeal Tribunal and Ontario Municipal Board), as expropriations may lead to hearings concerning the appropriate compensation amount. Land use planners assist in valuation by determining the property’s “highest and best use,” while real estate appraisers evaluate fair market value based on comparable property sales and the highest and best use. Together with an expropriation lawyer Toronto, your team will make a forceful case for fair compensation above what the relevant authority has offered. Expropriation can occur for a variety of public needs; if you’re facing expropriation and wish to dispute it, you will need legal representation before the tribunal and the courts. Owners and tenants have options – contact an expropriation law firm today.
How does this impact my taxes?
Expropriation can have significant tax consequences. For instance, you may qualify for a “rollover” under the Income Tax Act if you replace your expropriated property with a similar one. A rollover allows you to defer taxation on the replacement property rather than triggering a capital gain for the expropriated property’s deemed disposition. Seeking advice from a tax accountant familiar with rollover and replacement property rules is essential for effective expropriation planning, and typically, the expropriating authority covers the legal costs associated with this advice. When you speak with the expropriation lawyers at Unified LLP, we’ll walk you through all the relevant tax demands and options following expropriation.
How does injurious affection work?
Injurious affection applies when the following occurs as a consequence of expropriation:
- A reduction in the market value of the land of the owner, and
- Personal and business damages.
If you experience injurious affection, you are entitled to compensation. Even if no land has been claimed, injurious affection may apply (see Antrim Truck Center Ltd. v Ontario (Transportation)).
There is also a time limit for injurious affection, as outlined in Willies Car & Van Wash Ltd. v Simcoe (County). See Pinning Down Section 22 of the Expropriations Act – Giving Notice of IA” for more information about giving notice for more information.
Additionally, the owner of the expropriated lawn may be entitled to paid interest on a portion of the market value interest in the land. This comes on top of additional compensation payable to the land owner, including damages for injurious affection, compensation for special difficulties in relocation, etc.
Learn more about injurious affection.
The above FAQ is only meant to inform and should not be considered legal advice. Consult with a leading expropriation lawyer Toronto so we can get a better understanding of your specific situation.