Since 2008, the City of Hamilton has volleyed around the idea of licensing residential rental units in buildings that contain 1-6 units. In September 2014 the City tabled it’s draft Licensing By-Law until they were able to get feedback from a task force of a stakeholders and concerned Councillors. The task force started to meet in late 2015 and discussions continue. Hamilton has a shortage of good affordable housing options. The creation of legal rental units in Hamilton is a win/win.
Chances are if you’re reading this you’ve got one or you’re thinking of buying one- an illegal duplex or triplex aka two or three family home in Hamilton. If you already own one you may be losing sleep thinking about the illegal status of your investment. If you’re thinking about buying one, you may be weighing the pro’s and con’s of handing over hard cold cash for something that’s not legal and gambling with your investment dollars. Perhaps you’re trying to figure out if you can even make it legal and what it’s going to cost.
6 Important things you’ll need to know, do or get
1) What is the current City of Hamilton recognized use.
You’ll need to order a Zoning Verification Certificate. Two family: Cost: $111 and you get it in 10 days or $167 for express 2 day service. Three or Four Family: $227 & $344 respectively.
2) Do you qualify for a Section 19 Conversion2 ?
- Minimum lot size of 270 square meters or 2906 square feet.
- Minimum unit size: 699 square feet
- Parking: cannot use more than 50% of your front yard for parking even if it’s already being used as parking. Currently Hamilton requires 2.7m x 6 m for a parking spot. (8.85827 ft x 19.685 ft) 2 front parking spaces will require 17.7 feet. Since parking can only be 50% of front lawns, a property would require a minimum of 35.4 feet frontage. Anything less will require Committee of Adjustment approval and that’s not a guaranteed process. (Toronto’s parking requirement is 2.6m x 5.6 (8.53 ft x 18.37 ft) meaning 2 front parking spaces would require a total of 17.06 feet. Under Toronto’s Zoning By-law, 2 parking spots on a 35′ lot would not require Committee of Adjustment approval)
- Parking cannot be tandem. Rear parking is permitted.
3) Drawings showing the units you’re creating (or the unit(s) that are already there)
- Architectural Drawings (may be required)
- Floor plans for each floor
- Structural Drawings (cross section/materials)
- Electrical Drawings
- HVAC Drawings
- Survey or Plot Plan drawn to scale showing all structures and lot lines.
4) Obtain a Building Permit
If you’re lucky enough to meet all the requirements of a Section 19 conversion, you’ll be able to take all of your drawings and Building Permit Application to the Building Department at Hamilton City Hall. Tip: Save time by calling the Building Department in advance to set up an appointment. If you do not meet ALL of the requirements for a Section 19 conversion, you will be directed to attempt to obtain a minor variance from the Committee of Adjustment. (note the key word here is “attempt”)
5) Patience, knowledge and money.
This is not a cheap, quick nor guaranteed process. Being super prepared and educated in the process can save time and money. Over the past year, the City of Hamilton has come a long way in providing information to property owners looking to legalize or create additional living units in their buildings.
6) Is it going to be worth it?
For the answer to this question, you’re best to consult a local Realtor® to find out if the expense incurred to create and/or attempt to legalize an additional unit will add the expected value to the property.
Question: What is a Habitable Room?
Hamilton Zoning By-Law definition (Page 2-34) : “Habitable Room“ means any room of a residential building or an institutional building, used or capable of being used by one or more persons for living, eating or sleeping, or as a kitchen serving a dwelling unit; but does not include a bathroom, water-closet compartment, laundry, serving or storage pantry, corridor or other space not for use frequently or during extended periods. (9451/61) (08-228)
Hamilton Property Standards By-Law definition (Page 4) : “habitable room” means a bedroom, living room, dining room, kitchen, family room, recreation room, basement, bath or shower room, toilet room, laundry room and any other room or space in a dwelling or dwelling unit used for living, eating or sleeping
Question: How high does a basement have to be to get a building permit to create or legalize a “habitable” room?
Room heights are covered in the City of Hamilton Property Standards By-Law
OCCUPANCY STANDARDS for a Habitable Room: Section 34(2) Page 21
Height Requirements for Living room, dining room, kitchen & bedrooms
- 1.9 meters (74.5”) over the required floor area and in any location that would normally be used as a means of egress; or
- 2 meters (78”) over at least 50% of required floor area. Nothing under 1.4 m is considered in square footage measurements.
Question: Can you convert a “legal non-conforming two family home” into a “legal three family home” by adding a unit under Section 19?
Answer: The simple answer is “NO”. As a rule, a “non conforming use” does not have the requirements to be considered for “legal two family use” nor has it obtained legal two family status under Section 19. To continue with a legal non conforming use, there’s a requirement that the property owner is able to prove that the property has had been continuously used as the non-conforming use since it obtained the “legal non-conforming” status. In most cases in Hamilton, this will go back to the 1950’s.
The property is “legal non-conforming” for a reason. The City recognizes the fact that the property does not meet the Zoning By-law and have authorized its use at some point in history: lot size, parking and zoning are the most popular reasons why it never became a “legal two family”. Once you go to apply for a change of use to a three family home, you’ll need to meet all the requirements under the regular three family zoning in the current By-law and cannot use Section 19 for this type of conversion. The City will treat it as if it’s going from single family to three family use. At the end of the day, you may still have a hard time getting it converted to a “Legal two family home” under Section 19. You should retain the services of a professional.
The assessment report from MPAC shows it as a duplex- does that not mean anything?
NO- it means absolutely nothing in the eyes of the City. MPAC assessment reports are simply what MPAC uses to determine what mill rate will be applied to the property. This is one of the biggest mistakes I see people make- home owners, buyers and real estate colleagues. The only way to find out the legal use of the property is by obtaining a Zoning Verification Certificate.
What’s the worse thing that can happen to me if I own something that’s not legal?
If you own a property that is not in line with the City’s recognized use you can run into issues on more than one front. Tenants and neighbours may complain to the City about your property or you may get caught up in one of the neighbourhood blitzes that the City of Hamilton By-law Enforcement team conduct. If the City does not recognize the use, you’ll have a choice- either convert it back to the legal use, which may involve trying to evict a tenant, or try to convert it under Section 19. The City may proceed to take legal action against you for a Zoning By-law infraction.
Also, insurance companies and financial institutions are becoming a lot more concerned about the legal status of income properties.
*****When asked about the implications of the April/15 By-law change allowing development of cellars, I received the following interpretation from the “Open for Business” department at City Hall.
“The result in the revisions are that basements and cellars are to be treated the same in the Hamilton zoning by-law and the Ontario Building Code will determine if a conversion is to be permitted.”
Something really sticks out here- the reference to the Ontario Building Code and not the City of Hamilton’s Building Code. In the case of ceiling heights, the Ontario Building Code is actually more stringent.
1. In April 2015, Hamilton City Council approved a zoning bylaw amendment whereby cellars and basements would be treated the same and the Ontario Building Code would be used to determine if a conversion is possible. As a result, cellars may now be used in square footage calculations for living units subject to the ability to obtain a building permit. City of Hamilton Council Meeting
2. Section 19 Conversions- City of Hamilton Zoning By-Law– Page 306
Window requirements for bedrooms and other living areas fall under the Ontario Building Code. Following excerpt taken from Page 475 of the Ontario Building Code
Ceiling Heights– Ontario Building Code– page 470
Donna Bacher, Broker, with Royal LePage State Realty Brokerage has been representing Buyers and Sellers in the Hamilton area since 1983. The information provided in this article is for information purposes only and should not be considered a legal opinion. Donna has been involved with the Hamilton Rental Licensing debate and affordable housing issues in the City of Hamilton since 2008. Even though all efforts have been made to make sure the information provided is accurate as of the date of this article, the writer does not guarantee that rules, policies and By-laws have not been changed by the City of Hamilton or Province of Ontario. If you are interested in creating additional units or legalizing existing units, please consult a Designer/Architect who is licensed in the City of Hamilton to explore your options.