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The Government Wants My Land - How Does Expropriation Work?

4 minute read

There’s an old joke about there being two seasons in Canada: winter and construction. For many people who live and work in the London, Ontario area, it is the second season that has been particularly challenging of late. All throughout the city, infrastructure and roadwork projects are underway. Commuting times have ballooned; formerly simple trips have become circuitous nightmares, and construction noise, dust, and nuisance are seemingly inescapable.

Painful though it may be now, generally, there are good reasons for London’s municipal transportation infrastructure to be strengthened and improved. For instance, in 2022, Statistics Canada reported that London’s population was growing at the fastest rate in Ontario and the fourth-fastest in Canada. Another report estimated that, by 2051, London’s population would be nearing 650,000 people (its current population is roughly 422,000).

The burden this growth places on existing municipal infrastructure is untenable. It is also clear, based on municipal policy, that London needs additional space to expand its transportation corridors. This need for space does not necessarily imply urban sprawl; added car, bus, and bike lanes often require that roadways internal to a city need to be widened or adjusted.

A municipality may be able to complete a road widening or improvement using land the municipality already owns. This is not always the case, though. And the effects a road project may have on private real estate can be substantial. Sometimes, an easement on a private landowner’s property is needed – either of a temporary or permanent nature – that permits the municipality to install and maintain its infrastructure. Or, more dramatically, a municipality might seek to take some or all of a landowner’s property.

Such takings are generally more common on busy arterial roads – in London, think Oxford Street or Wellington Road – but there can also be impacts on less trafficked streets, such as those in residential neighborhoods. This is particularly the case when lots on those quieter streets back onto busier roads.

Governmental bodies have the statutory power to expropriate or forcibly acquire land from private citizens who might otherwise object. This is a drastic power. The Supreme Court of Canada labelled expropriation “one of the ultimate exercises of governmental authority.” A more colloquial saying is that no one asks to be expropriated. To put it mildly, a municipality’s deployment of expropriation can be politically unpopular.

Partially because of the above, expropriating authorities look first to negotiate an amicable agreement with a landowner. That may not always happen, though. The process that then follows most commonly in Ontario is governed by the Expropriations Act, possibly with a hearing before the Ontario Land Tribunal (formerly known as the Ontario Municipal Board).

When a landowner is informed that their property, or part of it, is required for municipal purposes, they need to consider all the implications that may flow from the municipality’s project. Will there be any harmful effects, such as a loss of marketability, on the landowner’s remaining piece of land once the municipality’s work is complete? Will the landowner be out-of-pocket for professional fees incurred with the process, such as those for a lawyer or an appraiser? Does a mortgage lender need to become involved so that any land sold to the municipality is sold free and clear of the mortgage?

The above inquiries are a small sliver of the many questions a landowner will need to assess when they’re informed property of theirs will be needed for municipal purposes. These questions will vary on a case-by-case basis. They will also depend upon the scope of the municipality’s project, the landowner’s use of and plans for the property, and the interests of a variety of third parties, such as tenants.

There is a lot to consider when you learn that your real property may be used or taken for municipal purposes. Please do not hesitate to contact a Real Estate and Land Development lawyer from Lerners LLP to assist you through an expropriation process.

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Clark Armstrong

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