Notice to the Land Register in case of land contamination
The Environment Quality Act (''the Act'') establishes rules regarding land protection and rehabilitation in case of contamination. It is supplemented by the Land Protection and Rehabilitation Regulation, whose purpose includes setting out the types of industrial or commercial activities that require a particular treatment and establishing contamination limit values beyond which rehabilitation measures must be undertaken.
The Act imposes land protection mechanisms not only on polluters, but also on land custodians – that is those who have effective control of the land – if they had custody after March 2003. These parties include owners, lessors, lessees and hypothecary creditors who have exercised the right to take in payment. The Act includes various mechanisms to identify contaminated lands.
It includes a mandatory characterization study that is either based on a change of the type of activity carried out on the land, ordered by the Minister or the result of voluntary rehabilitation. This characterization study must be certified by an expert and conducted in accordance with a characterization guide. The Act states that this study must be filed with the Ministère du Développement durable, de l’Environnement et des Parcs. This step serves to set out the measures, if any, which must be implemented to rehabilitate the land.
Land rehabilitation
In case of land contamination beyond limit values set by regulation, the Act states that a rehabilitation plan must be submitted and approved by the Minister to remedy the situation. If the rehabilitation plan calls for work to be done, the completed work must be verified by an expert who will attest to its conformity to the approved plan. The Act also calls for the registration of certain notices in the Land Register in order to inform third persons about the state of contamination of the land.
The various notices to be registered in the Land Register
Whether the rehabilitation is done on a voluntary or forced basis, various notices must, or in some cases can, be registered in the Land Register by the person responsible for the characterization or rehabilitation of the land, all in order to make some situations effective against third parties. These notices are as follows:
- A contamination notice must be registered as soon as a characterization study conducted pursuant to the Act reveals a concentration of contaminants exceeding the regulatory limit values;
- A decontamination notice that can be registered if the measures provided for in the rehabilitation plan result in the decontamination of the land and a subsequent characterization study reveals the absence or presence of contaminant, but under the regulatory limit values;
- The notice of land use restrictions that must be registered as soon as the Minister approves a rehabilitation plan that includes land use restrictions as a result of maintaining a concentration of contaminants exceeding the regulatory values limit on the land. This notice outlines the work to be performed and any restrictions on land use.
Municipalities are required to maintain a list of lands subject to these notices and that the information contained in these lists is public.
Implications for real estate brokers
The Act’s provisions challenge some aspects of brokers’ activities.
Given their obligation to take all necessary steps to discover the factors that could adversely affect the parties to a transaction or the very object of that transaction, when licence holders consult the Land Register, they must make sure they identify and check these notices and inform the parties to the transaction about their existence and content.
Inventory of contaminated lands
The Ministry makes available on its website an inventory of contaminated lands in Québec. The Ministry compiles general and technical information about lands contaminated by commercial or industrial activities or by accidental spills. The list is not exhaustive since it contains only cases brought to the attention of the Ministry. Unlike the Land register, it is possible to make a search by address, which can be beneficial to real estate brokers.
Implications for real estate brokers
Furthermore, it is important to remember brokers’ obligation to advise the owner of the immovable to provide his declarations on the immovable. Since July 1, 2012, such declarations must be provided by means of a mandatory form published by the OACIQ when a residential immovable containing less than 5 dwellings is concerned. In this context, the seller’s broker must be able to explain to his client the implications of the existence of notices registered in the Land Register about the immovable on the content of declarations he is about to provide on this property.
Similarly, when declarations to this effect exist in relation to an immovable covered by a transaction proposal, the buyer’s broker (or seller’s broker if the buyer is not represented) must explain to the buyer the scope of these notices. The sellers’ and buyers’ brokers’ obligations in connection with such transactions stems from the general obligation to inform the parties to the transaction of any factor that may adversely affect these transactions or their very object.
If specific circumstances of a transaction involving such notices may compromise the interests of a party to the transaction, the broker would be wise to advise this party to consult an environmental quality expert or a legal advisor.
For more information, we encourage you to check the website of the Ministère du Développement durable, de l’Environnement et des Parcs, under “Contaminated lands” section or contact the Ministry by telephone at 1-800-561-1616.
Also read the article entitled: Record documentation is every broker’s business.
