What Is a Variance and How Do You Get One in Alberta?

You may have found out that a garage, deck, addition or fence sits too close to a property line, or that something on your lot does not match local zoning. Often this comes up when you are selling and the buyer wants a clean Real Property Report (RPR). The word you will hear is "variance".

This article explains in plain words what a variance is, where it fits in an Alberta sale, and what generally happens next. It cannot give you a fixed process or timeline, because municipalities run their own, and it is not legal advice for your situation.

This article covers the law of Alberta.

What a variance means in plain words

A variance is a decision by the municipality to relax one of its rules for your property. Instead of making you tear down or move something that does not fit the rule, the municipality may allow it to stay. You may also hear it called a relaxation. Both terms appear when an RPR review turns up a problem such as an encroachment or a setback issue.

Whether a variance is available at all, what it is called locally and what the municipality weighs when deciding are not the same everywhere. How a variance fits with other requirements that affect your land depends on your situation, so it is worth confirming with a lawyer. A compliance stamp itself does not address easements, covenants or other requirements affecting the land or buildings.

Where the issue usually surfaces: the RPR and the stamp

An RPR is a survey product prepared by an Alberta Land Surveyor, the only kind of person who may practise surveying in Alberta. The surveyor prepares the report but does not decide whether it complies with municipal bylaws. That decision belongs to the municipality.

To get a compliance stamp, the owner takes the RPR to the municipality in person. The stamp confirms only that the improvements shown on the RPR meet the municipality's requirements. It does not mean your use of the building complies with the Land Use Bylaw, and it does not address easements, covenants or other requirements affecting the land.

There is no Alberta statute that makes an RPR mandatory for a sale. Most standard residential purchase contracts, though, require the seller to give the buyer a current RPR with a municipal stamp of compliance, so it is a contract term rather than a statutory rule. Buyers' lenders and lawyers also usually require a current RPR.

How the variance step generally fits in

If the municipality's review finds a non-compliant item, the seller is typically expected to resolve it, for example by seeking a variance or relaxation, before the stamp is given. A variance is one example of how that can be done, and the exact route depends on the municipality and the facts.

The exact application form, the supporting material the municipality wants, who makes the decision, any notice to neighbours, the fee and how long it takes all depend on the municipality. Ask the planning or development office where your property is located what its process is, and ask for the timeline in writing if you can.

• Get your current RPR and note the specific item flagged as non-compliant.
• Contact your municipality's planning or development office and ask whether a variance or relaxation is possible for that item.
• Ask what application is needed, what it costs and how long decisions usually take.
• Ask your lawyer how the timing fits with your purchase or sale contract dates.
• Keep copies of everything you submit and receive.

If a variance is refused or not possible

A refusal is a real possibility, and the outcome depends on the facts and the municipality. The general options are to ask whether the municipality offers any review of its decision, to change the building so it complies, or, in a sale, to talk with the other side about how to handle the problem. Which of these is open to you is worth confirming with a lawyer.

If you change the property to fix the problem, remember that a stamp relates only to the RPR it was issued on. A changed property needs a new or updated RPR and a new municipal review, so an old stamp cannot simply be reused. A statutory declaration is also not enough once the property has changed.

What happens to a sale if the seller cannot deliver a stamped RPR depends on the contract wording and the parties' choices, and should be reviewed with a lawyer before you decide anything.

What to do next

If nothing on the property has changed since an existing RPR, a seller may be able to sign a Statutory Declaration or Affidavit saying the existing RPR is accurate and the property is in the same state. That does not help where something was built or altered after the RPR, which is when a variance question usually appears.

• Find any RPR you already have and compare it with what is on the lot today.
• Talk to your lawyer before you list, make an offer or waive any conditions about the RPR.
• If you are buying, ask to see the RPR before making an offer, because lawyers need reasonable time to review it before funds are released.
• Call the municipality early, since its process and timing are outside your control.
• Keep a record of any permits for work done on the property.

Frequently asked questions