Construction: Emergency access to neighbouring property - The rules and limitations

It was some time ago that it was trite law in the City of Toronto by-laws that a contractor could in fact utilize neighbouring property to effect repairs on their client’s property, without consent, or even a permit. This ‘trespass’ was constituted as acceptable in order to carry out essential health and safety repairs, and of course permit the contractors to carry out their work in a safe manner, without tight constraints on space.

However, this default is not written in stone. In fact, the City of Toronto By-Law currently requires that contractors or owners of the house under renovation, obtain a Right of Way permit (a short term permit issued by the City of Toronto Building Department, which has as a condition, a security deposit requirement), or consent from the neighbour to use neighbouring walkway, backyard, or other area, to permit the contractor to safely carry out works, and use machinery if necessary.

The By-law states that absent consent from the neighbour, the right of way permit is essential. Though it’s an onerous process, a homeowner should always apply for such a permit at the outset to prevent any disputes with their neighbours, particularly if there is no consent being granted by the neighbour.

In emergency scenarios where a repair or modification is required to be carried out right away, and access to neighbouring property is essential to access the area to be worked upon, a contractor may, without the consent of the neighbour, access the neighbour’s property, but then immediately file for a right of way permit retroactively, if in fact, the neighbour does not grant consent, retroactively and does not waive the requirement for a right of way permit to be applied for.

Disputes with neighbours can be avoided if all parties act reasonably and rationally; however, there are scenarios where neighbouring property owners legitimately refuse to grant access, as is their right, thus requiring a homeowner intending to carry out repairs or construction to apply for a permit for use.

Applying for a right of way permit may reduce trespass claims made by any neighbouring homeowner.