Whether you’re a property owner with acquired rights who wants to have them recognized, or a person who feels aggrieved or wants to contest an acquired right, we’re here to help!
While many questions can be answered with the help of the guides, sample letters and forms in our legal toolkit, an independent jurist affiliated with PSP Legal will always be happy to help you by answering any questions you may have.
Of course, if you prefer to have an experienced practitioner take charge of your situation and intervene directly and quickly on your behalf, you can also request that one of the independent jurists affiliated with PSP Legal represent you by clicking here.
What is a vested right?
An acquired right is one that a person benefited from under a previous law or regulation, and whose existence is maintained despite the contrary provisions of the new law.
Let’s take the example of a 4-storey building built before a new municipal by-law came into effect, allowing only 3 storeys. The owner of the 4-storey building will not have to demolish the 4th floor in order to comply with the new by-law. This building will therefore be subject to acquired rights. This right is provided for in section 12 of the Interpretation Act, which states that “the repeal of a law or of regulations made under its authority does not affect acquired rights” and that “acquired rights may be exercised, notwithstanding the repeal“.
The legislator may exclude or allow acquired rights to be excluded so as to allow immediate application of the law. However, this exclusion must be explicitly provided for in a law.
Main rules and conditions governing the existence of acquired rights
The courts have established the rules and conditions governing the existence of acquired rights. The Court of Appeal addressed this issue in Huot v. Municipalité de l’Ange-Gardien.
Acquired rights only exist when the derogatory use prior to the coming into force of the provisions prohibiting such use was legal. It is therefore not possible to have the right to a derogatory use prescribed by the passage of time, except in exceptional cases.
The owner’s intention or use alone is not enough. The use must actually exist. The issuance of a permit under the previous by-law, even if construction has not begun or the use is being carried out before the modification, is sufficient to confer an acquired right against the new standards.
The use must remain the same and be continuous without significant interruption.
Acquired rights benefit and follow the building that takes advantage of them. These rights are not personal (i.e., the right of one person to demand a good or service from another), but are transferable to the future purchaser of the property. Thus, a clothing store protected by acquired rights will not lose its right to operate this type of store if it is sold to a future operator of the same type of store.
Acquired rights cannot be modified in terms of their nature, and sometimes their scope, while derogatory activities can be intensified in certain cases.
Ownership alone is not enough to establish acquired rights. Owners who do not build or use a property, or who did not obtain a permit under the old regulations, have no acquired rights under the new, more restrictive regulations.
Main ways of losing acquired rights :
- Total or partial destruction of the vested property;
- Abandonment or cessation of use. The intention to cease use can lead to a loss of acquired rights, even if there is no by-law to this effect.
- Change of use, which may result in particular from the extent or intensity of the activity, the addition of new activities or the considerable modification of existing activities. Change of use may also occur if it can be demonstrated that the new or modified activities create disproportionate additional problems or an excessive aggravation of existing problems for the local municipality, local authorities or neighbors, compared with previous activities.
How we can help
Our legal toolkit includes a variety of online resources and links to templates and guides to help you better understand your obligations.
However, should the Legal Toolkit prove insufficient in your situation, you can obtain additional assistance by speaking with one of PSP Legal’s affiliated jurists:
Of course, if you prefer to have an experienced practitioner handle your situation, you can always request that one of the independent jurists affiliated with PSP Legal intervene on your behalf by clicking here. He or she will then be able to intervene directly and rapidly on your behalf by:
- Preparing, negotiating and drafting applications, procedures or any other legal documents related to your situation;
- Assisting and advising you on your legal rights and obligations;
- Representing you before the courts when legal action is taken;
- Guiding you through the choices available to you, leading to a fair and satisfactory solution.
PSP Legal, because you deserve expert advice!
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