Registering Plans of Expropriation

When an expropriation is approved by an “approving authority” (as defined by the Expropriations Act in Ontario), the expropriating authority will register a plan of expropriation on the title to the expropriated lands.

Once the plan of expropriation has been registered, title, or ownership of that portion of the expropriated land “vests” in the expropriating authority (but this does not give the expropriating authority the right of possession).

After the plan of expropriation has been registered on title, the expropriating authority will serve all registered owners with: (i) a Notice of Expropriation, which provides notice that the lands have been expropriated; (ii) a Notice of Possession, indicating the date on which the expropriating authority requires possession of the lands; and (iii) a Notice of Election, which permits the owner to select one of three dates upon which compensation for the lands expropriated will be based.

After service of the notice of expropriation, the expropriating authority may enter on the expropriated lands (with the owner’s consent, or upon an order issued by the Local Planning Appeals Tribunal) in order to view the lands for the purpose of preparing an appraisal report, which is intended to support of Offer of Compensation for the expropriated lands in accordance with Section 25 of the Expropriations Act.

Once an appraisal report has been prepared, the expropriating authority will provide a copy of the report to each registered owner, along with an offer of compensation for the owner’s interest in the lands expropriated. Owners then have two options: (1) accept the offer in full settlement of all claims under the Expropriations Act; or (2) accept the offer while preserving the right to claim additional compensation from the expropriating authority. Where the second option is selected, owners can assert their claim for additional compensation through formal or informal negotiation, or through arbitration at the Local Planning Appeals Tribunal (formerly the Ontario Municipal Board). Often, negotiation and arbitration proceedings are pursued simultaneously.

Please note that the above-referenced expropriation procedures are only applicable to expropriations in Ontario – and expropriation legislation and the associated processes and procedures vary from province to province.

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.

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.