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T H E C A N A D I A N
HOME INSPECTOR
IN THE NEWS
When real estate agents prepare offers for a
house with a basement apartment, they typi-
cally insert a clause stating that “seller does not
warrant retrofit status.”
This results in the purchaser taking the risk of
getting caught by city inspectors and having to
vacate the unit and forfeit rental income.
Agents and sellers seem to think they are shel-
tered from liability if they do not “warrant” the
basement’s so-called retrofit status.
This practice could end in the light of a recent
letter to local real estate agents by Toronto Real
Estate Board president Richard Silver.
Silver’s letter attempts to end the confusion
over what is and what is not a “legal” basement
apartment, and what’s missing if there is only
partial compliance.
Silver quotes noted home inspector Carson Dun-
lop, who reports (at
that achieving a “legal”
basement apartment involves five separate issues:
• Do the local bylaws permit basement
apartments?
• Does the apartment comply with fire code?
• Does it comply with building code requirements?
• Does it comply with electrical safety
requirements?
• Has the apartment been “registered?”
Real estate agents frequently use the term “ret-
rofit” to signify whether the basement unit is or
is not fully “legal.” But in this context, its use is
incorrect, and only refers to fire code — one of
the five requirements.
The provincial fire code is a subset of the Ontario
building code. The building code applies only to
the day the unit was constructed. Only the fire
code is retroactive — and this gives rise to the
term “retrofit.”
As a result, a unit which does not have a fire
retrofit may otherwise comply with the building
code, electrical safety requirements and zoning
bylaws. It’s all very complicated.
In 1994, the provincial government set new fire code
rules with which all basement apartments, new and
existing, must comply. A unit upgraded to comply
with the fire code is called a “basement retrofit.”
Compliance with the fire code involves four
requirements: fire containment, means of escape,
fire detection and alarms, and electrical safety.
Drywall separations between the basement and
the rest of the house must have a minimum
30-minute fire rating. A separate exit (or fire-
separated shared exit) is required. A basement
window is acceptable if it meets certain size and
location requirements.
Fire safety rules also require installation of
smoke alarms in all units in a house. They do
not have to be interconnected unless the fire
separation to a common exit area does not have
a 30-minute rating. Many municipalities also
require carbon monoxide detectors.
Once a unit has been inspected and any defi-
ciencies corrected, the fire department will
issue a retrofit certificate to verify compliance.
But a unit that has been fully retrofitted may still
not comply with zoning, building code and other
requirements.
Identifying whether a municipality’s bylaws
permit basement apartments is also important
when buying a house with a basement unit.
Since 1995, municipalities have had the author-
ity to enforce their bylaws with respect to base-
ment apartments; however, units that existed
prior to November 1995 are exempt from meet-
ing local bylaw requirements.
Silver notes that the building code, which pre-
scribes minimum requirements for the construc-
tion of buildings, for the most part applies only to
the day the house was built, and not retroactively.
As a rule, a basement apartment’s minimum
ceiling height must be 6 feet 5 inches; its
entrance door must be at least 32 inches by 78
inches; bathrooms require either a window or an
exhaust fan; and if there is a parking spot for
one of the units, there must also be a parking
spot for the other unit.
Electrical safety refers to the required inspection
by the Electrical Safety Authority.
Buyers of houses with basement units, and agents
marketing them, should always insist on evidence
that the unit was in existence in 1995. And they
should find out whether the unit does or does not
comply with the fire code, building code, electrical
safety requirements and municipal zoning bylaws.
Full disclosure is of the utmost importance.
UPDATE:
In 2010, the Province of Ontario introduced
Bill
140: Strong Communities through Affordable
Housing Act, 2011
. Bill 140 amended various sec-
tions of the Planning Act so that they now require
municipalities to implement official plan policies
and zoning by-law provisions to allow basement
apartments (second units) in detached, semi-
detached and townhouses, or as accessory units.
The changes to the Planning Act came into effect
on January 1st, 2012, however the Province has
not specified a deadline by which municipalities
are required to bring their respective planning
documents into conformity with Bill 140.
Ontario municipalities are now required to initi-
ate a policy review to implement policies in their
Official Plans and performance standards in
their Zoning By-laws.
Until the Official Plans and zoning bylaws are
amended, the effect of zoning bylaws which
appear to prohibit basement apartments in the
face of the new legislation is uncertain.
Bob Aaron
is a Toronto real estate lawyer. He
can be reached by email at
phone 416-364-9366 or fax 416-364-3818.
Visit the Toronto Star column archives at
for articles on this and
other topics or his main webpage at
.
Basement Apartments Must Comply With Code
By Bob Aaron