A citizen complained about a new tax imposed on her and her co-owners since 2007, by Arrondissement Le Plateau-Mont-Royal, because part of their garage encroaches on public property.

This building was built in 1905 at a time where Certificates of Localisation did not exist: the property was built according to the standards and requirements of the time and the surface it covers has not been modified ever since.

The first Certificate of localisation regarding this property was issued in 1972, almost 70 years after its construction: this document does not mention any encroachment on public property. The building has been sold many times over the years, without any Notary ever mentioning any encroachment on public property.

In 2005, the Government of Québec conducted cadastral review, following which our complainant was informed that the cadastral documents relating to her property had been modified. This modification was made although there had not been any physical external modification to the building or garage and even after the said modification, no new tax was claimed by either the City or by Arrondissement Le Plateau-Mont-Royal, with regard to this property.

In the context of a recent sale of one of the dwellings of this undivided co-ownership, around 2007, the acting Notary noted for the first time an encroachment of the garage on the public domain. From that moment on, Arrondissement Le Plateau-Mont-Royal decided to charge the co-owners an annual rent for the permanent occupation of public domain. The citizen immediately contested this new tax with the borough, without any success.

Section 50 of the Règlement sur l’occupation du domaine public in effect in this borough states that

“… when the price paid annually for a permanent occupation which existed before December 31st, 1995 is less than $100.00, this occupation shall be free as of January 1996 and shall so remain, as long as the said occupation is not modified. In the case of a modification, the price of the right to occupy is determined in accordance with the section IV, whether it is about a replacement license as prescribed by section 48 or a new license”.

The plaintiff submitted that, since the owners of their building had never paid any rent for occupation of the public domain, they should have benefited from this provision. According to the borough, however, this section does not allow such an interpretation when no rent whatsoever was paid to the City.

After thorough analysis, the Ombudsman de Montréal concluded that, regardless of the interpretation of section 50, the exceptional situation in which these citizens found themselves was unjust and unfair. We initiated, therefore, discussions with Arrondissement Le Plateau-Mont-Royal, in search of a satisfactory solution for both parties.

The Borough Council of Arrondissement Le Plateau-Mont-Royal adopted an amendment of the aforementioned section 50 to add the possibility of free occupation of the public domain, in situations of encroachment similar to the one at stake. The new provisions state that:

“Subject to the decision of the Borough Council in each case, permanent occupation of public domain resulting from an encroachment in good faith, prior to January 1st, 1996, which was discovered following a cadastral review, may also be free: a Certificate of localisation prepared by a land surveyor before January 1st, 1996, showing the building as it actually stands and not mentioning the encroachment constitutes sufficient proof in this regard”.

To obtain this right to gratuitousness, the owners must submit a request to that effect to the borough. In our specific file, the Borough Council granted gratuitousness to co-owners concerned, as of 2009.

As for the amounts they had paid for 2007 and 2008, the new provisions of the By-Law had no retroactive effect. Since this new tax had immediately been contested in 2007, however, we considered that the 2 years period it took to settle this file should not prejudice the citizens in question. The borough accepted our arguments and, therefore, it undertook to reimburse the co-owners, on an exceptional basis.

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