In my last post - which offered guidance to a follower in I Need Help With Architects, Builders And Toronto’s Committee Of Adjustment - I shared the disappointing setback that occurred when the urban planner I hired to take my dwelling through the Committee of Adjustment Approvals Process missed including the words "the addition and extension will be built on the zero lot line" in the Committee of Adjustment Application. As a result, even though the drawings showed my addition on the zero lot line, the missing written words meant that, unless I got a Party Wall Agreement I would have to either set back the third floor addition 18" away from the existing party wall or return to the Committee of Adjustment and get those words inserted into the approval.
As it turned out, my attached neighbours kindly accepted my offer of $2500 in exchange for their Party Wall Agreement, which is the sum I would have otherwise spent going back to the Committee. In a lovely gesture, they used the funds to build a new privacy fence between our back yards, which I thought very kind of them.
Since then, my architect and engineer are still in the process of securing the Building Permit, which has now been turned down three times. In the last refusal, the plans examiner appeared to be extra picky with many items, some of which my architect and engineer had not experienced previously. In particular, in the examiner's concern over a fire risk, he questioned our use of Roxul, a non-combustible material often used as a fire-stop. Although the materials are deemed fire-rated and meet building code standards, the examiner deemed concrete block as the only acceptable material for my new third-floor party wall addition. Although this baffled my architect and engineer the City would not budge. Perhaps it's because Residents In 5 West End Homes Pushed Out By 4-Alarm Fire put the spotlight on our housing stock being so close together (a roofer dropped his torch which set off the blaze) and the City is being pro-active about the risk realities of fire. I'm all for safety and security, but this new City requirement means new drawings have had to be prepared, stamped, and resubmitted to the City. Sadly, these delays and changes in material are contributing to a significant increase in cost. As a ballpark, my project costs have increased over $100,000 beyond my initial estimate two years ago, which is far from ideal.
Through my own debacle, I've come to learn there are a lot contradictory opinions whether a Party Wall Agreement with your neighbour(s) is a necessity, or whether one can proceed without one, if your permit drawings otherwise comply. After sleuthing on the City of Toronto website, I discovered the City has a policy which states Building Permits must be issued for all the properties which share a Party Wall, but it doesn't clarify whether your neighbour has to approve.
Here's an interesting story. I recently received a call from a woman-in-distress who discovered the sale of her house was at risk of not closing because there was an outstanding permit related to the Party Wall which she shared with her neighbour. She had recently sold this property, which she had purchased specifically to renovate and resell. The renovation had been completed with permits, which were all signed off and closed by the City. None of the work she did impacted the Party Wall.
However, while she was renovating her house, her attached neighbours asked her if it was ok if they dug down their basement and underpinned the foundation, including along their Party Wall. She verbally agreed. With her renovation complete, she sold the house while the neighbours undertook the underpinning of their basement next door.
As the closing date approached, the lawyer representing the Buyers of her house called to say there was an outstanding permit on the dwelling for the Party Wall and, unless the permit was closed the property would not have clear title and the ownership could not be transferred. The woman called the City for clarification because she had never signed any paperwork nor taken out a permit for the Party Wall. The City told her that a Party Wall Permit is automatically issued when an attached neighbour is doing work that could impact the Party Wall - and that nothing signed by the attached neighbour was required because the neighbour provided a form saying they had obtained consent. For the side underpinning their basement a Building permit was issued - and for the attached side a Party Wall Permit was registered by the City. This is standard protocol.
I called the City for clarification as it pertained to my own circumstance. The City confirmed that - if I had had the words "the addition and extension will be built on the zero lot line" in my Committee Of Adjustment Application - and the Permit drawings showed my third-floor addition was being constructed on just my half of the Party Wall, then I would not have required a signed Party Wall Agreement from my attached neighbours. In that circumstance, once a Building Permit was issued for my third-floor addition, a Party Wall Permit would automatically be issued on my adjoining neighbour's property with or without their written approval.
However, because my neighbours have consented and signed a Party Wall Agreement, instead of my addition being constructed on my half of the Party Wall (originally proposed as a steel frame with Roxul), my third-floor addition can now be constructed on the entire Party Wall (and not just my half). The architects, engineers, and the City prefer this as the preferred course of action. Basically, continuing the use of concrete block on top of the existing concrete block party wall ensures structural continuity, stability, and fire safety. I see the merit in this.
There's a further twist for the woman selling her flip. The lawyer representing her managed to convince the Title Insurance firm to transfer the existing Title Insurance Policy to the new Buyer, which allowed the outstanding permit for the underpinning on the Party Wall to remain (the underpinning was still in progress so there was no way the permit could have been closed prior to the sale). What's strange is that the law purportedly stipulates Title Insurance policies cannot be transferred and that new ones must be arranged. I did not have the contact info to speak to the woman's lawyer to get further clarification. As far as that Seller was concerned, all was resolved and she could move forward. Regardless, this information suggests there may be challenges for any owner being impacted by a neighbour's renovation when it involves their Party Wall.
Addendum 1 - After a round-robin of calls, the official line from the City of Toronto is that the neighbours who are being impacted by an attached neighbour for any impact on a Party Wall must give their consent in writing in the form of a Party Wall Agreement. Once that is provided to the City, the Building Permit will be issued and the Party Wall Agreement noted on the City's system for both properties. As a result, if the attached neighbour does not give their consent then the Building Permit will be denied. However, it's come to my attention there are many instances where - because no signature by the third party (aka the impacted neighbour) is required on a Party Wall Agreement (this may have recently changed, I hope) - the neighbour seeking the Building Permit has submitted paperwork implying consent by the attached neighbour has been obtained when, in fact, none has been forthcoming. This has caused a number of lawsuits between property owners, and anger at the City Permit Office for not requiring more comprehensive legally-binding paperwork.
Addendum 2 - A reader sent a note after the post date which offers some additional advice. He wrote "I just negotiated one of these agreements with my client's neighbour who just happened to be a solicitor for the city! My client was underpinning her foundation walls including the party wall. Their Party Wall Agreement basically made her solely responsible for any damage to the neighbouring property and included assurances that her contractor and engineer were suitably insured to cover any deficiencies which were the result of the underpinning." Great insight!
Addendum 3 - December 18th, 2020 - Although it's been 3 years since this post originally went live, this blog keeps garnering tremendous interest, mostly from people who own semi-detached or row homes who are trying to underpin their basements (or live next door to an owner who wants their consent to underpin their basement). Still to this day, those contacting the City tend not to receive clear directions on the process. One reader just granted me permission to include their experience: Just to share, I spent the last hour on the phone with a plans examiner and the general rule is "Does the work you're proposing impact the shared wall in a significant enough way (that a Party Wall Agreement is necessary)?" The City likes to keep interpretations "lose" over there".
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