Severance (consent to sever land)토지 분할, 세버런스

What is it?

A severance means splitting one lot into two or more. The law calls the approval a "consent". You need one, for example, to divide a large house lot in half and build a second home, to move a lot line a little with a neighbour (a lot line adjustment), or to sell only part of your land.

A large project that creates a whole new street of lots needs a "plan of subdivision" approval instead. A severance is the process for smaller cases.

In Toronto, the Committee of Adjustment decides consent applications (dividing or adjusting lot lines) as well as minor variances.

The basic rule: no dealing in part of a lot without approval

Section 50 (3) of the Planning Act sets out "subdivision control". To transfer land, mortgage it, sign an agreement to sell it, or give someone the use of it for 21 years or more (including renewals), one of the exceptions below must apply.

• The land is within a registered plan of subdivision and described in line with that plan.
• The seller does not own any land right next to it (abutting land), with some exceptions such as whole lots in a plan of subdivision, condos, or the same parcel that was dealt with before under a consent.
• A consent has been given.
• Other exceptions in the Act, such as land bought or sold by a government or city, or land that would have merged when one of the joint tenants died.

Even a lot already in a registered plan of subdivision needs approval for the same reason if you deal with only part of it (section 50 (5), part-lot control).

Who decides, and what do they look at?

Depending on where the land is, consent is given by the city council, the upper-tier (regional) council, or the Minister (section 50 (1)). A council can hand this power to a body such as a committee of adjustment or a land division committee (section 54). Who decides differs across the GTA, so check with your city.

The decision-maker may give consent if it is satisfied that a plan of subdivision is not needed for the proper and orderly development of the area (section 53 (1)). It considers the same matters as for a plan of subdivision (section 51 (24)), such as fit with the Official Plan, the size and shape of the new lots, whether the land suits the use, and whether water, sewer and other services are adequate.

Each new lot must also fit zoning (frontage, area and so on). If it falls a little short, owners often apply for a minor variance at the same time.

Steps and deadlines

1. Apply: the owner, a mortgage lender (chargee), or a buyer whose agreement of purchase and sale authorizes it can apply. A surveyor’s drawing of the new line is usually needed.
2. Notice and public meeting: if the regulations require them, notice is given and a public meeting held at least 14 days before the decision.
3. Decision: a "provisional consent" with conditions may be given. Within 20 days after notice of the decision, the applicant, the Minister, a specified person or a public body can appeal to the Ontario Land Tribunal (OLT). Decisions of Toronto’s Committee of Adjustment are appealed to the Toronto Local Appeal Body (TLAB) instead (City of Toronto).
4. Meet the conditions: if they are not met within two years after notice, the application is treated as refused. If there was an appeal, the two years run from the date of the Tribunal’s order or notice (section 53 (41)).
5. Certificate: once consent is final, you get a certificate. It is conclusive proof that the consent was properly given (section 53 (42)).
6. Complete the deal: if the transfer is not carried out within two years from the date of the certificate, the consent lapses. The decision-maker can set a shorter period (section 53 (43)).

Why does it matter to buyers?

• An agreement or transfer that breaks these rules does not create or pass any interest in the land (section 50 (21)). That is why the standard Ontario agreement of purchase and sale says it is effective only if section 50 of the Planning Act is complied with.
• Being in the Land Titles system is not enough. The Land Titles Act says registered land is still subject to section 50 of the Planning Act (Land Titles Act, section 44 (1), paragraph 11). Registration does not fix the problem by itself.
• So the lawyers check. When the transfer contains statements from the seller, the seller’s lawyer and the buyer’s lawyer that section 50 is not being breached, and it is registered, earlier breaches no longer have any effect (section 50 (22)).
• Be extra careful when the seller also owns the lot next door. If the two parcels touch and are not whole lots in a plan of subdivision, selling just one may need a consent.

Toronto, and garden suites

Toronto is a single-tier city, so it can delegate consent powers to its Committee of Adjustment (section 54 (5)), and the Toronto Committee of Adjustment does handle applications to divide land or adjust lot lines.

If you build a garden suite in the backyard, you cannot split it off and sell it. Toronto says severances that would put the main house and the garden suite on separate lots are not permitted.

What owners who want to split a lot should check

• Zoning: whether each new lot meets the frontage and area rules, or needs a minor variance.
• Survey: you usually need a survey drawing showing the new line (a reference plan). Ask a surveyor about cost and time early.
• Conditions: the decision-maker can set conditions like those for a plan of subdivision. Meeting them can take time and money.
• Mortgage: after the split, sort out with your lender which lot the existing mortgage covers.
• Deadlines: conditions within two years after notice (or after the Tribunal’s order or notice if there was an appeal), the deal within two years after the certificate. Miss them and you may have to start over.

Example