Deck or Garage Not Meeting Setbacks? What Happens in Alberta

Many homeowners build a deck, garage or shed without checking how close it can be to the property line. Years later, a sale brings a Real Property Report and a municipal review, and the problem comes to light.

This article explains what a setback problem means for selling your home, how the municipal stamp fits in and how owners usually deal with it. Municipal rules and practices differ across Alberta, so treat this as a map of the process and check the details locally.

This article covers the law of Alberta.

What a setback problem is

In plain words, a setback problem is about how close a building or structure sits to a property line or other feature. The exact requirements depend on where you live, so it is worth confirming them with your municipality or a lawyer. A deck, garage or shed that sits closer than allowed does not meet the setback rules.

The setback shows up through an RPR. An RPR is a service provided by an Alberta Land Surveyor. The surveyor prepares the report, but does not decide whether it complies with municipal bylaws. The owner takes the RPR to the municipality, in person, to obtain a compliance stamp.

Only an Alberta land surveyor, meaning a person holding a certificate of registration and annual certificate under the Land Surveyors Act, RSA 2000, c L-3, may practise surveying in Alberta. The Surveys Act, RSA 2000, c S-26, defines surveyor as an Alberta land surveyor under the Land Surveyors Act. So when you need a new or updated RPR, it comes from that kind of professional.

What it means for a sale

Most standard residential purchase contracts in Alberta require the seller to give the buyer a current RPR with a municipal stamp of compliance. This is a contractual term rather than a statutory requirement.

Buyers' lenders and lawyers usually require a current RPR, and the buyer's lawyer needs reasonable time to review it before funds are released. Ideally, buyers see the RPR before making an offer. If the review finds a non-compliant item such as a setback problem, the seller is typically expected to resolve it before the stamp is given.

Where nothing on the property has changed since an existing RPR, the seller may sign a Statutory Declaration or Affidavit stating the existing RPR is accurate and the property is in the same state as at the date of the original RPR. That route does not help if a deck or garage has been added or changed since then.

How this plays out when a seller cannot or will not fix a problem depends on the contract wording and the parties. A lawyer can review your contract and explain your options.

How owners usually fix it

• Ask the municipality about a variance or relaxation. This is one way a seller may resolve a non-compliant item before the stamp is given. Whether one is available differs between municipalities.
• Alter or remove the structure so it meets the setback. This may be practical for a shed or small deck, and less so for a garage.
• Update the RPR after the work, since a changed property needs a new or updated RPR and a new municipal review.
• Discuss with the buyer how to handle it, in writing, if a sale is already underway.

Whichever route you choose, keep two points in mind: a non-compliant item is typically expected to be resolved before the stamp is given, and a changed property needs a new or updated RPR and a new municipal review. The exact steps and their order depend on your municipality and your situation, so it is worth confirming them with the municipality or a lawyer.

Enforcement risk and why a stamp is not the whole picture

How a municipality enforces its bylaws, and what it can order, varies by place, and a lawyer or the municipality can tell you how it applies to your property.

Be aware of what a stamp does and does not do. A compliance stamp confirms only that the improvements shown on the RPR meet the municipality's requirements. It does not mean the building's use complies with the Land Use Bylaw, and it does not address easements, covenants, legislation or other requirements affecting the land or buildings.

If you have changed the property since the RPR, a statutory declaration is not enough to show the property complies. Only an updated RPR with a compliance stamp can do that. The old stamp cannot simply be reused, because it relates to the RPR it was issued on.

What to do next

• Find your current RPR and compare it with what is on the lot today.
• Note any deck, garage, shed or addition built after the date of the RPR.
• Contact your municipality about its stamp process and whether a relaxation or variance is possible.
• Talk to an Alberta land surveyor if you need an updated RPR after changes.
• Have a lawyer review your purchase contract before you promise a buyer a stamped RPR.

Frequently asked questions