Notice of Application for Approval to Exproriate Land

As has been discussed, expropriation is a taking of land without consent of the owner by an expropriating authority. An understanding of the expropriation process is essential for lawyers and appraisers to properly consult property owners and business owners that are subject to land acquisition by governmental authorities.

Time Requirements in Expropriations in Ontario 

The first step in the formal expropriation process is for the authority to serve a Notice of Application for Approval to Expropriate Land on the registered owner of the property.  A registered owner is an owner whose interest in land is registered or specified in an instrument in the Land Registry Office.  The authority is required to publish the Notice of Application for Approval to Expropriate Land for three consecutive weeks in a local newspaper where the lands are situated.

Once served with the document, the owner has 30 days to request a hearing of necessity, where the authority must demonstrate that the expropriation is fair, sound and reasonably necessary. Often, the hearing has reduced the scope of an acquisition from a fee simple taking to easement takings or to amend construction plans to minimize the impacts on the property.

Once the expropriation plan is approved, the authority must register the Plan of Expropriation within 3 months, at which time legal title to the expropriated lands vests with the expropriating authority. An owner can remain in possession of the land following registration of the expropriation plan, the owner is no longer the legal owner of the lands specified in the plan.

Other Time Requirements

After registering the Plan of Expropriation, the authority has 30 days to serve Notices of Expropriation and Election. The Notice of Expropriation notifies the owner that an expropriation has occurred and the legal title has vested with the authority. The Notice of Election provides the owner with a valuation date to select for the purposes of determining compensation. The valuation dates are either:

a. the date the notice of hearing for an inquiry was served;

b. the date of the registration of the Expropriation Plan; or

c. The date on which the owner was served the Notice of Expropriation.

In addition, the authorities will serve a Notice of Possession, indicating that the authorities will take possession of the lands at least 3 months after the date of service, before which, an offer of compensation pursuant to Section 25 of the Expropriations Act must be served on the property owner.

For more information about timelines and provisions of the Expropriations Act, it is imperative to consult with a lawyer and land appraiser early in the process in order to document the state of the property prior to the expropriation for comparison purposes in order to maximize the value of the property on the valuation date.

Offers of Compensation – Approving Expropriations

An expropriating authority is required to obtain the approval of the local council or “approving authority” in order to carry out an expropriation. An example of such approval is contained here

In the link, attached, permission is sought from the City of Toronto to expropriate and acquire temporary construction easements to facilitate the construction of the Toronto Spadina Subway Extension Project. As we have discussed here, temporary easements are strips of land contained in a property owners parcel, which is required by the authorities for an indicated period of time to carry out construction work. The authorities do not seek to acquire permanent interests in such property; as when the construction work is completed, access will no longer be required to such land, and full ownership reverts back to the property owner, with no easement or otherwise attached thereto.

The expropriating authority will always require that the property owner signs a Full and Final Release in exchange for the payment of compensation for the expropriation. It is imperative that the property owner carefully reviews the terms of the Release to ensure that future claims are not barred should they arise. For instance, in the above-referenced case related to a temporary construction easement, if the works take longer than initially anticipated, the authorities may need to extend the duration of the easement, which will result in additional compensation for the property owner. However, if the Release is drafted in a way that precludes the property owner from obtaining additional compensation for an easement extension, then substantial funds could be lost.

Accordingly, and given that expropriating authorities are required to reimburse reasonable legal and professional fees under the Expropriations Act, it is advisable to consult with an expropriation lawyer before signing any agreement for compensation.

What is Expropriation?

Government authorities such as municipalities, school boards, and provincial and federal governments undertake projects which require them to obtain land from private property owners. In many cases, the authorities only require a small portion of the private property owners’ land for an easement or for related purposes such as utilities, although, in certain instances, entire properties are required (i.e., full vs. partial expropriation).

The authorities will attempt to purchase the land required from a project through a negotiated process with the affected property owners. The first step in the negotiation process is a hearing with the Board of Negotiation at the Local Planning Appeals Tribunal (formerly Ontario Municipal Board). Absent successful negotiations, the authorities may use the expropriation process to ensure that the land is obtained in a specific timeline to suit their project needs. Simply, an expropriation is a transfer of lands or an easement to an authority for reasonable compensation, including payment for the fair market value of the transferred lands, without the property owners consent.

In Ontario, an expropriation by an authority must follow the process set out in the Ontario Expropriations Act to ensure that the rights of the property owners are protected.

Sometimes, authorities will seek a negotiated resolution while the expropriation process is underway. This approach is necessary to ensure that the lands are in the authorities possession in the necessary timeframe; however, it can also save costs of both sides. Expropriation proceedings can be discontinued and the land transferred to the authorities in exchange for the payment of the negotiated compensation.

If your land has been expropriated or the authorities require an easement on your property to accommodate a public work, call the expropriation lawyer at Goldstein Law Firm to ensure you maximize the compensation that you deserve in conjunction with an expropriation in Ontario.

Legal Fees in Expropriation Law Matters

The Expropriations Act in Ontario allows for claimants to be reimbursed for any legal fees incurred through the expropriation process, as long as they have been awarded 85.0% or more of the compensation that was originally offered by the expropriating authorities. The Expropriations Act will cover reasonable legal, appraisal, and professional fees that are associated with the expropriation.

In our expropriation law practice, clients can retain our expert expropriation law counsel without paying any fees out-of-pocket. We also have a team of advisors, including business valuators, land use planners, and appraisers, that may necessarily be engaged through the expropriation process, whose reasonable fees will be covered by the expropriating authorities. Accordingly, if your property is in the midst of an expropriation, it is best to consult with a qualifying expropriations lawyer as the Expropriations Act protects clients against the payment of substantial out-of-pocket legal and professional fees.

I have received a Notice of Expropriation — what now?

When the government is set to expropriate your land, you will receive a Notice of Expropriation. The Notice will include, among other details, the date on which the authority requires possession of the lands (“Notice of Possession”) and a date which the owner can select on which the property will be valued (“Notice of Election”).

Following issuance of the Notice of Expropriation, the authorities have the right to enter the property owners land to conduct an appraisal or valuation, which is then served upon the property owner.  The property owner has the choice whether to accept the offer by the authorities in full and final settlement of all expropriation related claims or to accept the offer while preserving the property owners’ right to claim additional compensation. Where the latter option is chosen, the property owner will proceed through formal or informal negotiation in the Land Appeal Tribunal (formerly Ontario Municipal Board).

The initial offer and appraisal produced by the authorities are generally below fair market value in hopes that the property owner does not consult professionals to determine a fair price for their expropriated property.  It is imperative that as a property owner being expropriated by the authorities you do not accept the initial offer of compensation and rather consult experienced legal counsel to discuss your rights and obligations.

Expropriation is a complicated process that requires the assistance of experienced professionals (lawyers, valuators, real estate appraisers, land use planners, etc.). 

Goldstein Law is well-versed in the case law related to expropriation and the necessary procedure to ensure you maximize the value of your expropriated business or property. Contact us today if you have any questions at 647-838-6740.