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w w w . C A N A D I A N L a w y e r m a g . c o m O C T O B E R 2 0 1 6 23 setbacks and other regulations are imposed. "It's a mistake, in my opinion, that jurisdictions make that they don't want to impose" this on property owners, she says. "Ultimately, heritage legislation is about protecting buildings, in some cases, from current owners. It's about recognizing buildings are in the hands of an owner for a limited time and the goal is to protect them for future generations." A federal tax incentive in the United States, she says, has revolutionized the way people look at heritage property there. And in Canada, environ- mentally significant property is preserved through a federal ecologi- cal gifts program — something she thinks could work for heritage buildings as well. The revamped Ontario Heritage Act allows municipalities to designate buildings it deems important. But it also allows other buildings to be listed — a way municipalities can buy time if faced with an application for demolition or dramatic change of a build- ing considered to be of significance but that hasn't been designated heritage. Jane Pepino, a municipal and land-use planning lawyer with Aird & Berlis LLP who frequently does work related to heritage buildings, considers Ontario's situation vastly improved as a result of the changes. But it isn't perfect. "All that can happen in Ontario is the provincial government sets the legislation, the provincial government sets the policy expecta- tion and leaves it to the municipalities to implement," says Pepino, who is also a member of the president's advisory council to the Architectural Conservancy of Ontario, which is devoted to main- taining built heritage. "In Ontario, it's very unevenly applied, and, therefore, there's a very uneven understanding of both its benefits and its pitfalls. "My advice to my clients is: Listen carefully, make sure that the research the municipality does is in fact accurate, but enter into a dialogue with the municipality to say: 'You know what you need to sharpen up your pencils to define more closely what the important heritage attributes are because it is those alone which are required to be protected in the future. Just because a building is designated does not mean in every circumstance that it's shrink-wrapped and should never be used for anything else or can't have additions put on it." Ottawa real estate lawyer Sarah Morgan-White points out that designating a property as heritage doesn't mean it's frozen in time. Rather, certain attributes need to be maintained — it's generally about the exterior façade. And the seller of a designated property is required to disclose it. Where she sees problems occurring is when a seller is unrepresented. "Definitely, the role of the lawyer is changing as a result, basi- cally, of sellers wanting to do things themselves without the aid of a real estate agent. At the end of the day, if ever it was not disclosed, the seller would be the one responsible. But to avoid issues, lawyers should make inquiries and definitely the purchaser's lawyer, I think, where they know they're dealing with a seller that is unrepresented, should check with the municipality," Morgan-White says. New Brunswick's Heritage Conservation Act also provides for municipalities to enact heri- tage bylaws to conserve, pre- serve and rehabilitate buildings deemed to have heritage value. That has led to the downtown Saint John Trinity Royal Heri- tage Conservation Area, which dates back to 1982 covering sev- eral city blocks. "We have a lot to protect," says Mike Gillis, a commercial lawyer with Cox and Palmer's Saint John, N.B. office, pointing to the eastern provinces' history pre-dating confederation. "There's a balancing act that goes on with these heritage statutes. On one hand there's people who want devel- opment and then there's people who want heritage preservation." The emphasis is on the exterior of the building. Any work being done on a heritage building requires a certificate of approval from the city. One of Gillis' clients wanted to replace the windows on his heritage building, but he was told he needed to use the more expensive wood windows. While some costs could well be higher than those of other buildings, if everyone in the district meets those standards then the value increases, he says. From a lawyers' perspective, Gillis adds, clients need to be made aware that a heritage designation could mean there are more hoops to jump through and more work to do, but there are often grants available to help offset additional costs. R E A L E S TAT E THERE'S A BALANCING ACT THAT GOES ON WITH THESE HERITAGE STATUTES. ON ONE HAND THERE'S PEOPLE WHO WANT DEVELOPMENT AND THEN THERE'S PEOPLE WHO WANT HERITAGE PRESERVATION. MIKE GILLIS, Cox and Palmer REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin: T: 416.649.9327 E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Untitled-6 1 2016-09-14 3:30 PM

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