What is the Process? REALTY SERVICES: FAQ s The City of Kawartha Lakes has adopted a property acquisition and disposition by-law in accordance with the Municipal Act. It has also passed a land management policy, creating a cross-departmental staff team called the Land Management Committee. (The current Chair of the committee is Diane McFarlane, Manager Realty Services.) A non-refundable fee of $125.00 must accompany each request that is submitted to the Realty Services Department, the fee can be submitted by cash, cheque or bank draft, a fee of $35.00 will be applied to any N.S.F. cheques. All requests from interested persons to buy, encroach or obtain right of way to City land are processed first through this staff committee. If the Committee sees no immediate or future need for the municipal property, a report is then prepared for Council to recommend that the property be declared surplus to municipal needs. It is then available for sale. If the Committee determines there is a municipal need for the property, the person making the enquiry is advised by letter. Of course, decisions as to sell or not to sell property are decisions of the municipal council; not the staff. If the prospective purchaser still wishes to pursue purchase of the land, the Realty Services Department will forward that person s request to Council, with a report outlining the Committee s reasons to recommend retention of the land. At the time of the creation of the Land Management Committee (July, 2001), the City of Kawartha Lakes had not passed any by-laws to declare any lands surplus. Where an inquiry has been outstanding since a date prior to the creation of the City of Kawartha Lakes by amalgamation (January 1, 2001), it is possible that the land may already have been declared surplus (by a former municipality). If that is the case, the by-law of the former municipality continues to be valid, and the matter can proceed as if the City of Kawartha Lakes had declared the land surplus itself. (Note, however, that resolutions to declare properties surplus can be rescinded in accordance with the Municipal Act.) Where the Council is inclined to sell a parcel of land, the declaration that the land is surplus must be advertised prior to any sale. In addition, the municipality is required in most cases to obtain an appraisal of the land value before selling (see road allowances section below for an exception). 1
The manner in which a property is to be sold will be part of the Land Management Committee s recommendation to the Council in each case. Often, there is only one logical buyer for land, and in those cases, it is likely that a direct sale will be recommended. What will the Council Do? No staff person or committee can guarantee what the Council will do with a recommendation to either sell or not to sell a particular parcel of land. The Council may or may not concur with the staff committee recommendation, and the Council decision is final. The sale of municipal property is handled at a meeting open to the public, and interested persons may attend and/or make representations about their interests, provided Council s rules are followed. The City Clerk s office can provide assistance with respect to rules for making deputations at Council or Committee meetings. You should note that the Council may choose, as land owner, to assert its right to force any occupier of municipal property to remove any structures on the land and have the occupier cease using the land. What types of Properties Might be Sold? There are three fairly common circumstances where persons approach the City, seeking to purchase municipally owned property: A. Municipal Land Excess Land for the Purpose Municipalities acquire land for many purposes: parks, walkways, trails, roads, landfill attenuation, natural areas, works depots, municipal buildings, etc. Occasionally, more land than is actually needed for the purpose is obtained, either due to the vendor s wishes, or due to a change in plans during development of the property for its intended purpose. In other cases, a change in plans may result in a project being re-located or discontinued altogether. In those situations, there may be extra portions of land which are surplus to municipal needs, but which are not road allowances. 2
Properties that May Have Become Surplus Due to Amalgamation The Land Management Committee is starting to receive enquiries about offices and depot buildings that had been used by the former municipalities but are not currently in use by the administration of the City of Kawartha Lakes. Properties that Are Not Surplus It is conceivable that the Land Management Committee may review, and Council may approve, a request to purchase land that was not considered surplus to municipal needs at the time the enquiry was made. For example, assume the City is holding a parcel of land for development of a future park. However, the land is not centrally located to the community that it is going to eventually serve. The land is not surplus; because the park is needed, and the plans are proceeding to develop it. If a property owner of land more centrally located to the park community had a development proposal more suited to the City parcel, that owner might approach the City to explore a land exchange. Before the City could complete the exchange, the municipal parcel would have to be declared surplus. It would not have been considered to be surplus if the replacement property had not been available. B. Road Allowances There are many situations where roads were originally laid out so that they lead directly into water. Often the last several feet (or several hundred feet) of those road allowance properties were never developed as travelable roads, and they remain unopened and in public ownership. These unopened roads sometimes create what appear to be lots between two homes or cottages. Others are within a forested or natural area, and are invisible to all but property surveyors. Some of them may have been developed as public boat launches. In many cases here, also, neighbouring owners have, over the years, encroached onto the road allowances with structures, landscaping, septic beds or wells, etc. Sometimes neighbours have come together and jointly built docks or benches or stairs, etc. (either with or without municipal permission) for mutual enjoyment and/or public use. Please note that in the fall of 2001, City Council resolved not to sell any road allowances that lead to water. Requests to occupy these types of road allowances (or parts of them) should be forwarded to the Land Management Committee. Based on Council s resolution, however, those requests will be denied by the Land Management Committee. The request can be forwarded to Council if the person enquiring still wishes to pursue the matter. 3
Unopened road allowance parcels which are not adjacent to water are also prevalent throughout Kawartha Lakes. These may be unopened road allowances between existing farms or other properties. They may be in circumstances of partial or seasonal use (i.e. used as snowmobile trails or for farm vehicle access routes only) or they may be in a state where the neighbouring property owner has occupied them, including circumstances where someone may have actually fenced the land. Again, there are often circumstances where neighbouring owners have, over the years, encroached onto the road allowances with structures, landscaping, septic beds or wells, etc. Under the Limitations Act, it is not possible for persons to obtain prescriptive or squatter s rights against road allowances; even those that are unopened. Accordingly the unauthorized trespass takes place. People have bought and sold properties with these title problems for years they are either taking the risk that the municipality will never officially open/construct a road, or they are unaware of the title problem. (Note that, under the Municipal Act, where a landowner is in occupation of a road allowance by fence, that owner may have the right to maintain possession of that road allowance against all other persons except the municipality itself.) The private property owner can regularize the trespass in one of three ways: 1. purchase the land from the municipality; 2. lease the land from the municipality; or 3. obtain a license agreement with the municipality for the encroachment. While it may appear that unopened road allowances, especially those that have been largely occupied by private property owners, have no municipal purposes, there may be indirect or invisible uses (such as underground services or overhead wires) or potential future uses (such as walking or bicycle trails, linear parks, or public access to water that is otherwise entirely in private ownership). There are other individual circumstances that might apply. For example, it might be more palatable for staff to recommend the disposition of an entire length of road allowance at a given time, rather than recommend piece-meal purchases that might create small pockets of public land which is landlocked or accessible only by water. 4
C. Shoreline Road Allowances Shoreline road allowances exist on many lakes within Ontario. Crown surveyors reserved a 66 foot wide road allowance around the edges of most Ontario lakes. Although many of these allowances were never opened as public municipal roads, they remain public property. Recreational and residential property owners of lakefront property often do not own their lots right up to the water s edge. In many circumstances, the private owner has encroached onto this space and utilized it as a lot addition, without anyone being the wiser (until title searches are conducted). There are numerous circumstances where entire cottages, parts of cottages, boathouses, garages, playground equipment, landscaping, pools, etc. are actually physically located on property that is not owned by the person who put up the structure or undertook the landscaping. Notes: Sales of all municipal property is on an as is basis What is the cost? By-law 2010-118, as amended, is a By-law to regulate the acquisition and disposition of municipal real property in and for the Corporation of the City of Kawartha Lakes. According to this by-law prior to the disposition of any real property by the City of Kawartha Lakes at least one appraisal must be obtained to determine the fair market value of the land. Exemptions: Schedule D of By-law 2010-118, as amended, sets the price for shoreline road allowances, or strips of road allowance along the edge of a traveled highway, to be offered to abutting owners, as follows: (a) $15.00 per linear foot of highway frontage or $20.00 per linear foot of water frontage; plus (b) a fee of $1,500.00 (to cover the City s staff time expenses); plus (c) all costs of the land transaction including the cost of all required notices and surveys or appraisals, legal fees and all documents required to be registered in the Land Registry Office; and (d) payment of a non-refundable deposit in the amount of $1,000.00 in advance of the road closing, to cover the above costs. It is impossible, therefore, to name the exact price in each instance. This should give a general idea, however. In all other cases, as noted, a land appraisal must be obtained prior to sale. 5
Full Cost Recovery: In addition to the non-refundable application fee in the amount of $125.00 any costs that are incurred by the City in connection to a request concerning City owned land or the disposition of surplus property shall be payable by the applicant or the proposed purchaser. Such costs shall include: (a) any legal costs incurred by the City; (b) any costs incurred through the completion of any required public notification; (c) any costs incurred through the completion of any required reference plans; (d) any costs incurred through the completion of any appraisals that are necessary; (e) and any miscellaneous costs that are incurred by the City. The following is a list of approximate costs that would be associated with the land transactions: (a) Legal Fees $1,500.00 - $2,000.00 +/- (b) Public Advertising: $1,000.00 - $1,500.00 +/- (c) Reference Plan of Survey: $2,000.00 - $3,000.00 +/- (d) Appraisal Fee: $2,500.00 - $3,000.00 +/- (e) City Staff Time Expense: $1,500.00 Please note: The above-noted figures are only for informational purposes and the actual costs will vary depending on the parcel of land that is involved in a particular transaction. Circumstances such as clouds on title, for example, or the size/type of parcel of land can increase costs and are not within the control of the Municipality, the applicant will be expected to cover any of these costs. In addition to the above, the applicant is also responsible for any costs owing to the solicitor retained to act on their behalf. If H.S.T. is applicable it is in addition to the above. Notes: The applicant is required to obtain their own legal representation at their expense. A fee of $35.00 will apply to any N.S.F. cheques How do I start the process? If you are interested in applying to purchase land from the municipality please complete the Application Municipal Land Inquiry and submit same along with the applicable $125.00 non-refundable Application Fee. 6
Your application will be presented to the Land Management Committee for review. If there are no objections by the Land Management Committee then the next steps would be as follows: 1. Records Search & Report to Council Historical records search is completed followed by a Report to Council. 2. Reference Plan & Appraisal If the Report is approved by Council we will proceed with the Reference Plan and Appraisal, if applicable. The City requests three quotes from Surveyors and Appraisers and hires the Surveyor and Appraiser that provide the lowest quote. During this process consultation with utilities may be required to determine whether or not any easements are required prior to disposition of the lands. 3. Agreement of Purchase and Sale Once the Reference Plan and Appraisal, if applicable, have been completed we will prepare and present you with an Agreement of Purchase and Sale for review, signature and return along with your lawyers contact information and the $1,000.00 deposit made payable to the City of Kawartha Lakes by certified cheque. Once the Agreement of Purchase and Sale has been signed by the Mayor and Clerk, the Realty Services Department forwards two copies of the fully executed Agreement to your lawyer along with a copy of the Reference Plan and our lawyer s contact information. We also forward our legal counsel a fully executed copy of the Agreement, Reference Plan, contact information for your lawyer and the draft by-law for review and approval prior to presenting same to Council. 4. Public Notice & By-law Once the Agreement of Purchase and Sale has been fully executed by all parties public advertising is completed for three consecutive weeks. Once the Public Notice is complete the By-law authorizing the transaction is presented to Council. If the By-law is passed by Council it is submitted to the City s outside legal counsel for registration. Once the By-law has been registered our legal counsel will contact your legal counsel in order to set the closing date and complete same. 7
How long does the Process Take? Time frames are largely dependent on the individual circumstances of the case. The Land Management Committee meets quarterly however; routine items are circulated electronically to members for comment. By the time a matter is reviewed, reported on, approvals are given, surveys are prepared, advertisements allowed to run their course and legal work completed, there may be months between the Land Management Committee comments and actual disposition. The Council meets the Tuesday afternoons of the second and fourth full weeks in each month except in July and August when they only hold one meeting. If the Council declares land to be surplus, the sale procedure will begin. In all cases, the surplus declaration must be advertised. If Council has determined that land should be sold by public tender, then the process will take slightly longer than if Council has approved a direct sale. How do I contact the Land Management Committee? Address correspondence to the Land Management Committee to: The Corporation of the City of Kawartha Lakes Attention: Diane McFarlane, Manager Realty Services Land Management Committee 12 Peel Street P. O. Box 9000 LINDSAY, ONTARIO. K9V 5R8 Diane McFarlane, Manager Realty Services: Telephone 705-324-9411 ext. 1279 Or (Toll Free) at 1-888-822-2225 Facsimile to: 705-324-2982 Email to: dmcfarlane@city.kawarthalakes.on.ca Nikki Whaley, Law Clerk Realty Services: Telephone 705-324-9411 ext. 1261 Or (Toll Free) at 1-888-822-2225 Facsimile to: 705-324-2982 Email to: nwhaley@city.kawarthalakes.on.ca 8