CASUAL LEGAL: The Importance of Consent in Partial Land Acquisitions

Attention: AMSC Members – Please distribute to all appropriate personnel

The Importance of Consent in Partial Land Acquisitions

By Greg Weber

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

Very often when a municipality requires land for projects such as road widenings or intersection upgrades, only a portion of land is needed. Invariably, efforts to acquire portions of property will start with direct engagement with the land owner to see if the property might be purchased consensually.

It should always be the first objective to acquire the property consensually. Consensual acquisitions have many advantages for municipalities which include:

1. If the municipality expropriates, it will be required to pay both its own legal and expert fees and that of the land owner’s. Consensual acquisitions allow municipalities to avoid potentially lengthy and expensive administrative and litigation proceedings under the Expropriation Act;
2. A consensual acquisition has the effect of capping the risk exposure of the municipality. If resort to the Expropriation Act is required, even under a consensual transfer of the property under section 30, the landowner will maintain rights to additional compensation from the municipality. This has the effect of increasing the municipality’s exposure to claims for business losses, out-of-pocket expenses, loss in market value for the remaining land (i.e. injurious affection), owner’s time and compensation for virtually any and all losses sustained by the owner as a result of the acquisition. Acquiring the property consensually without a formal taking or without an agreement under section 30 will provide certainty that the municipality will have no exposure to pay further compensation beyond the agreed upon price; and
3. In a partial taking, the cooperation and consent of the landowner is required in order to complete a survey of the needed portion of land. The only right a municipality has to enter onto the land without the consent of the land owner for the purposes of obtaining a survey is under section 63 of the Expropriation Act. Section 63 can only be engaged if the municipality has given notice to the owner of expropriation proceedings, even if they have not formally been initiated.

The last point is one that may force the hand of municipalities in engaging the expropriation regime earlier than desired. It is not possible to know with certainty what amount of land is required prior to a survey, but unless the landowner consents to entry the municipality has no right to actually carry out a survey without communicating the intent to expropriate. If the municipality requires a survey at an early stage but is not yet prepared to engage expropriation proceedings, then negotiations with the landowner should focus on reaching an agreement for payment to the owner in order to obtain temporary access for a survey. This will allow municipalities to obtain certainty of the portion of land that is needed while maintaining the possibility of a negotiated consensual transfer of the partial land to the municipality.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca (casuallegal[at]amsc[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] auma.ca (riskcontrol[at]auma[dot]ca), or call 310-AUMA (2862) to speak to AUMA’s Risk Management staff. Any Regular or Associate member of the AUMA can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.