WHAT IS CREATIVITY FOR LAWYERS?
Most of us are proud of creative things we have done in our
jobs, when we have done something new, unexpected and beneficial.
Creativity for lawyers means finding solutions to legal problems
that are outside the bounds of conventional legal thinking. Here
is an example of such creativity by one of our senior partners,
Ed Fleury.
THE PROBLEM
Our client built an expensive addition to the back of her
home. She was herself creative with the plans supplied by her
architect, and a very important part of the addition became a
large window on the side of the addition. Without that window,
there was simply not enough light in the new extension.
Unknown to our client were the requirements of the Ontario
Building Code. The wall of the addition was built 4 feet from the
lot line, which was by itself acceptable. You cannot, however,
have 'unprotected' windows closer than 6 feet to the lot line. To
'protect' a windows means essentially to make it a non-window,
with special mesh glass and an inability to open the window.
There is good reason for the requirement. If the neighbouring
house were similarly close to the lot line the Code requirements
would leave at least 12 feet of air to dissipate heat and retard
the progress of any fire from one house to the other. An
unprotected window closer than that would be like an invitation
for the fire to come into the house before the fire department
could respond to an alarm and take appropriate protective
measures. Of course, you can build closer if you put in no
windows or 'protect' any that you install.
CONVENTIONAL SOLUTIONS
Our client thought her error could be corrected with a minor
variance application to the City. The City officials made it
clear to her that a breach of the Building Code was a lot more
serious than she'd thought, and would not be forgiven by the
local Committee of Adjustments. Her choices seemed to be to
'protect' the window, or to brick it up altogether. Either
solution resulted in a serious loss of aesthetic value to the
addition. Her architect would have to be called to design some
expensive renovations to the existing structure.
CREATIVE SOLUTIONS
To this point our client's thinking had involved only her
addition and her own property. When she consulted Ed Fleury he
put his mind to the Building Code and the reasons for the
requirements as outlined above. Perhaps you can guess where his
thinking lead him..next door. On the adjacent property the house
was further than 6 feet from the lot line, and in fact the
addition extended beyond the rear of the neighbouring house.
There was no existing fire hazard, but the neighbour would remain
within his rights to build his own addition that would create
such a hazard. Could the requirement be satisfied by some kind of
arrangement with the neighbour?
Ed's first suggestion was very simple: ask the neighbour to
sell 2 feet from front to rear of the lot, effectively moving the
lot line over the requisite distance. The neighbour was not
interested.
Ed's second suggestion was more complicated, but it had the
merit of interesting the neighbour and turned out to be the
solution. The neighbour agreed - in exchange for $1,000.00 cash -
to accept a registered restrictive covenant against his property
that he (and any subsequent owner) would never build a dwelling
closer than 8 feet from the lot line. Ed took this proposal to
the Committee of Adjustments and persuaded them to grant the
variance.
SOME REMARKS ON CREATIVITY
Of course inspiration is 99% perspiration, and Ed would not
have come up with this idea so easily or naturally in the absence
of his extensive experience with real estate and municipal law
issues. Fleury, Comery is a name known to the Scarborough
Committee of Adjustments and at the Ontario Municipal Board, in
good part because of Ed Fleury's experience before these
tribunals. We can assist in all types of variance applications,
minor and not-so-minor. If you have this kind of problem, do not
hesitate to call us for a free consultation.
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