I Have Been Contacted About an Expropriation: What Do I Do?
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 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. 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. 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.
If you only take one thing away from this article, remember this: contact a 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 We 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. We strive to provide the best services possible to 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.