Is Your Basement Apartment Legal?

Is Your Basement Apartment LegalThere are thousands of basement apartments in Toronto, and the vast majority of them are NOT legal. There is a lot of confusion as to what it means for a basement apartment to be legal, and what is required to make it so. If you are thinking about buying a house with an illegal basement apartment because you like the idea of the extra income, you should understand the requirements for legality so that you can determine what it will take to make the apartment fully legal (assuming that it’s even possible) and whether you want to make the necessary improvements. Here’s a quick summary of the key issues:

  1. The local bylaws must permit basement apartments. In the City of Toronto, for example, basement apartments are permitted in all detached and semi-detached homes as long as they are at least five years old. In early 2016, changes to the Planning Act came into effect that require ALL Ontario municipalities to change their zoning by-laws to permit basement apartments, but no deadline was set for conforming to these changes, and so basement apartments are still not permitted in many municipalities outside Toronto.
  2. The apartment must comply with building code requirements, that is, a building permit is necessary to create a new basement apartment, even if that just involves adding a kitchen in an already finished basement.
  3. Most important of all, the apartment must comply with Fire Code requirements for basement apartments. These involve fire safety in four key areas:
  • Fire containment – keeping the fire contained in the unit where it started long enough for everyone in the house to get out safely. This is also called “fire separation” and is measured in minutes, i.e., how many minutes will it take for the fire to burn through the separation to the adjoining unit. Typically a 30 minute fire separation is required and this can be achieved with drywall or plaster and with doors that are metal or solid wood and at least 1 3/4″ thick. Suspended ceilings are not acceptable, and no gaps are allowed (for example, the ceiling in the furnace room must also be drywalled or plastered).
  • Means of Escape – this is probably the most poorly understood fire code requirement. If the basement apartment has it’s own dedicated exit (for example a walk-out or a side door that doesn’t connect to the main floor), then that’s all that’s necessary. If an exit is shared, however (like a shared side door), then each unit must have a second exit AND the fire alarms in the two units must be interconnected so that if the alarm goes off in one unit it will go off in the other as well). A typical second exit from a basement apartment would be a window whose opening is at least 600 square inches with the smallest dimension being at least 18 inches. The window must also be within 3 feet of grade and, if there is a window well, it must extent at least 3 feet from the wall. Another way to meet the code requirements in the case of a shared exit is to isolate and fire separate the exit area from both units.
  • Fire detection – each unit must have smoke alarms and carbon monoxide detectors.
  • Electrical safety – the apartment must pass an inspection by the Electrical Safety Authority.

In addition, there are some general rules for basement apartments in Toronto:

  • The minimum ceiling height is 6 feet 5 inches.
  • The entrance door must be at least 32 inches by 78 inches.
  • All bathrooms must have either a window or an exhaust fan.

Once all of the requirements are met, and the apartment has passed a fire safety inspection, a Certificate of Compliance will be issued – this is the proof that the apartment is fully legal. You can find out if an existing basement apartment simply by checking with Municipal Property Standards or the Fire Department – if there is a Certificate of Compliance registered, it’s legal; if not, not.