Building Permit Condition Ontario

Published 11 September 2026 · By Jatin Dua, Broker of Record, RE/MAX Quantum Realty

Last updated 11 September 2026. Written by Jatin Dua, Broker of Record at RE/MAX Quantum Realty, 799 The Queensway, Etobicoke · For Ontario registrants · 10 min read

The short answer

A building permit condition in Ontario makes the agreement conditional on the buyer satisfying themselves, at their own expense, that a permit is available for a specific structure described in an attached schedule. The clause is BUILD/CONST-1. It is written as a fulfilment condition rather than a waiver condition, which means the buyer must deliver written notice inside the window saying the condition has been met — silence ends the agreement and returns the deposit. The mistake most agents make is the schedule. The clause points at a structure described somewhere else in the paperwork, and a vague description, or a schedule that never gets attached, leaves you with a condition about nothing. The second mistake is choosing a deadline without calling the building department first.

The deal that goes firm and then falls apart

The call is always the same. A buyer bought a lot, or a bungalow they intended to put a second storey on, and three weeks after the agreement went firm somebody at the building department told them that what they planned to build is not going to be permitted as drawn. Sometimes it is a setback. Sometimes it is lot coverage or height. Sometimes it is a servicing question nobody thought to ask. By then the condition period is gone, the deposit is sitting in trust, and the buyer wants to know whether they can walk.

Usually they cannot, at least not on the strength of the paperwork in front of me. And in most of those files there was a building permit condition in the agreement. It just did not do what the agent who wrote it believed it did.

What BUILD/CONST-1 actually does

BUILD/CONST-1 (Condition – Obtaining Building Permit) makes the agreement conditional on the buyer determining, at the buyer’s own cost, that a permit is available for a particular structure. The structure is not described inside the clause. The clause reaches out to a schedule, and the schedule is where the description has to live.

Two mechanical features matter more than anything else when you are drafting. First, the burden of action sits on the buyer and it is a positive burden: the buyer has to deliver written notice, by the stated time on the stated day, that the condition has been satisfied. Silence does not preserve the deal. Silence ends it and sends the deposit back. Second, the condition is expressed as being for the buyer’s benefit and waivable at the buyer’s option, using the same notice route inside the same window.

Pull the current clause out of your own OREA member copy before you rely on any of this. I am describing what the clause does and where it bites. The wording is theirs and it changes from revision to revision.

The short version

BUILD/CONST-1 is a fulfilment condition, not a waiver condition. No notice means no deal. It is also a research condition — your buyer is confirming that a permit could be obtained, not walking out of city hall with one.

“Available” is carrying most of the weight

Availability is not issuance, and the difference is the whole clause. A municipality deals with the registered owner or someone the owner has authorised in writing, which means your buyer, who owns nothing yet, is usually not in a position to have a permit issued before closing. The condition is satisfied by research and by what the municipality will tell them, not by a permit in hand.

That research is broader than most agents assume. Zoning compliance for the proposed use. Setbacks, lot coverage, height, and the definitions the by-law uses for each of them, which are rarely what a layperson expects. Parking. Servicing and capacity. Whether the lot is inside a conservation authority’s regulated area. Entrance or access permits where the property fronts a regional or provincial road — that one pairs directly with ACC-2 (Condition – Road Access by Open Public Road), and I have seen a permit die on access long before anyone got to setbacks. On rural files, septic approval and well capacity. On older properties, heritage status.

Most municipalities in the GTA run some form of pre-consultation or zoning review process, and that is what your buyer should be booking on day one. Do not tell them what the answer will be. Tell them who to ask and how long it takes, and then build the date around the answer.

The schedule is the clause

If the description of the structure is soft, the condition is soft. “A new home” is not a description. “An addition” is not a description. A buyer who wrote “a new home” and then discovered that the by-law would permit a much smaller home than the one they had in mind is in an argument about what they were entitled to be satisfied about, and that argument is expensive and unpredictable.

Describe the building envelope in terms the by-law itself uses, and attach a sketch. Illustrative only, and my own wording rather than OREA’s, to show the level of specificity I mean: a detached accessory building of not less than 60 square metres of gross floor area, sited in the rear yard substantially as shown on the sketch attached as Schedule C. Short, dull, and impossible to argue about later. That is what you want.

Then confirm the schedule is physically attached, referenced by the same letter the clause uses, and initialled with everything else. I have seen a Schedule C referenced in a clause and absent from the executed agreement more than once. At that point you are not arguing about permits. You are arguing about whether there was ever a condition at all, and that is a question for the clients’ lawyers.

Dates: work backwards from the committee calendar

Permit conditions blow up on timing because the buyer’s real path is often not a permit application at all. It is a minor variance, and that means a committee of adjustment meeting on a published schedule, a complete application some weeks before the hearing, and a decision that can be appealed. Add the appeal window and you are well past the fourteen days somebody copied off the last deal.

Before you write a date, make three phone calls: the building department, the zoning examiner or planner, and — if the property is anywhere near water, a slope, or a floodplain — the conservation authority. Ask each of them how long their piece takes in weeks, not in theory.

What drives the date	Who controls it	What to ask before you write a number
Zoning review or pre-consultation	Municipal planning or zoning staff	How long is the current queue, and is the review written or verbal
Minor variance	Committee of adjustment	Next application cut-off, next hearing date, and how long after the decision before it is final
Conservation authority screening	The local authority	Is the property regulated, and what is the turnaround on a property inquiry
Access or entrance permit	Municipality, region or province	Is the frontage on a road that requires a separate permit
Septic or well approval	Municipality or health unit	Is a new or upgraded system needed for the proposed structure
Heritage status	Municipal heritage staff	Is the property listed or designated, and does that add a review step

Who can waive a condition that depends on somebody else

Here is where it gets genuinely unsettled, and I would rather tell you that than pretend otherwise. A condition that turns on the act of a third party — a municipality, a committee, an approval authority — may be characterised as a true condition precedent, and where that characterisation applies the usual thinking is that neither party can simply waive it and force the deal through. Turney v. Zhilka (SCC, 1959) remains the leading authority on true conditions precedent in Canada. Whether a given permit condition falls on that side of the line depends on how it is drafted and on facts I do not have, which is exactly why it is a question for the clients’ lawyers and not for you.

The related point is discretion. Marshall v. Bernard Place Corp. (ONCA, 2002), as reported, held that a discretionary inspection condition carries both objective and subjective elements, and that a buyer could rely on genuine deficiencies found through the inspection. A clause that reads like a free option to walk is not necessarily read that way. Do not promise your buyer a condition is an escape hatch.

Say the uncomfortable thing early

Tell your buyer, in writing, before they sign: this condition confirms what the municipality is prepared to say now. It does not guarantee a permit later, and the waiver question on approval-dependent conditions is not settled. Then send them to their lawyer.

Notice and service is where these actually die

The failure mode is almost never substantive. It is procedural. Somebody emails a fulfilment notice to an agent’s personal address at 4:58 p.m. on the day, the agreement said something else about how notice is delivered, and now there is a fight.

High Tower Homes Corp. v. Stevens, 2014 ONCA 911, as reported, dealt with a waiver delivered by fax where the agreement called for personal delivery, and the delivery was held ineffective. Read that as the general rule: the notice provision in the agreement governs, and it governs even when everybody knows the notice was received. Before you send anything, read your own agreement’s notice clause and the email addresses actually filled in on it.

The other direction exists too. In VanderMolen Homes Inc. v. Mani, 2025 ONCA 45, as reported, buyers who had waived conditions and paid the deposit were held to the agreement even though the seller’s acceptance of an extension arrived a day late, because the parties’ subsequent conduct kept the agreement alive. A missed technical deadline does not automatically kill a deal. That is comfort for nobody, though — it means the outcome turns on conduct and on a judge, which is a far worse place to be than simply serving notice properly.

THE DEPOSIT DOES NOT MOVE ON ITS OWNWhen a permit condition is not fulfilled, the agreement ends but the money stays where it is. A brokerage may only release a deposit on a written direction signed by all parties to the agreement, or on a court order. A formal mutual release is not strictly required — a signed direction from all parties is. Start that conversation the day the condition fails, not a month later.

Your exposure as the registrant who drafted it

You are not going to be sued because a committee of adjustment said no. You are going to be sued because of what you said about it, or because of a date you chose without asking anyone.

Predicting the outcome. “You’ll get the variance, everyone does.” You do not know that, and neither does the person who told you. Put the buyer in front of the municipality, a planner, or a designer, and stay out of the prediction business.
Choosing the date alone. If the condition period cannot physically accommodate the process the buyer needs, you built the failure in. Ask, then write.
Advising a self-represented party. Under TRESA, where the other side is self-represented, you confirm they intend to proceed that way, you deliver and explain the RECO Information Guide and the Information and Disclosure to Self-Represented Party form, you make it plain you act for your client and not for them, and you make reasonable efforts to get written acknowledgement. What you must not do is advise them on price, terms or clauses. Helping an unrepresented seller understand what a permit condition means to them is precisely that.
Unpermitted work you know about. RECO’s guidance is that patent defects need not be disclosed and caveat emptor applies, but active concealment removes that protection and latent defects rendering a property unfit or dangerous must be disclosed — to every interested buyer, with best efforts to obtain an acknowledgement from each and a copy to each. Those duties come from case law, not the TRESA regulations.
The listing copy. Under the advertising rules, a misleading statement is one that causes someone to have a wrong idea or impression, and it does not matter that not everyone was misled. “Permit ready” and “buildable” are statements you will be asked to support.

How I want this handled in my office

None of this is complicated. It is just sequential, and the sequence is what gets skipped when an offer is being written at eleven at night.

Before the offer goes out, have the buyer tell you in one sentence what they intend to build. Write that sentence down.
Call the building department and the zoning examiner and ask what process that structure requires and how long each step takes. Note the names and the dates.
Draft the schedule around the by-law’s own vocabulary, attach a sketch, and give the schedule a letter that matches the clause.
Set the condition date against the longest of the timelines you were quoted, plus room, and confirm the notice mechanics in the agreement before you rely on them.
On the day, deliver written notice the way the agreement says to deliver it, and keep proof of delivery in the file.
If the condition fails, get the signed direction for the deposit moving immediately and send both clients to their lawyers.

If you are also working through the approvals side of a development file, the same discipline applies to the severance and subdivision conditions, and the by-law analysis overlaps heavily with the zoning conditions in the same book.

Questions agents actually ask

Does a building permit condition mean my buyer gets a permit before closing?

No. BUILD/CONST-1 is about a permit being available for the structure described in the schedule, not about a permit being issued. In practice a municipality deals with the registered owner or an authorised agent, so a buyer who does not yet own the property is rarely in a position to have one issued. Treat it as a research condition and build the timeline around municipal response times.

What happens if my buyer misses the notice deadline on a building permit condition?

Under the clause as drafted, the agreement ends and the deposit is returned to the buyer. The condition requires positive written notice that it has been fulfilled, so silence does not keep the deal alive. The deposit still does not move on its own: a brokerage may only release it on a written direction signed by all parties or on a court order.

Can a buyer waive a building permit condition if the municipality has not answered yet?

The clause is expressed to be for the buyer’s benefit and waivable at the buyer’s option. Whether a condition that depends on a third-party approval can be waived that way is a genuinely contested question, and Turney v. Zhilka remains the leading authority on true conditions precedent. It is not a question an agent should be answering. Send the buyer to their lawyer before they waive.

How long should a building permit condition run in Ontario?

Long enough for the actual process, which you find out by calling. A straightforward zoning review may be quick. A minor variance means an application cut-off, a committee hearing on a published schedule, and a decision that can be appealed. Add a conservation authority or an access permit and the timeline extends again. Fourteen days copied from another deal is a guess, not a plan.

Do I need to attach a schedule to a building permit condition?

Yes, and it should describe the structure in the vocabulary the zoning by-law uses, with a sketch. The clause points at the schedule for the description. A soft description produces an argument about what the buyer was entitled to be satisfied about. Confirm the schedule is physically attached, uses the same letter the clause references, and is initialled with the rest of the agreement.

What is my liability if the buyer cannot build what they planned?

The risk is not the municipal decision, it is what you said and what you drafted. Predicting an approval, choosing a condition date without asking anyone how long the process takes, or advising an unrepresented party on the terms are all your exposure. Under TRESA you must not advise a self-represented party on price, terms or clauses, and that includes explaining what a permit condition does for them.

The clause checklist I make my own agents use

A one-page pre-submission check for conditions and schedules — the dates, the notice route, and the eight things that get missed. Built for Ontario agents. Free, and there is no drip campaign behind it.

Separately — if you have ever wondered what your last twelve months would have paid on a different split, run it through Quantum Leap. Six questions, no signup wall.

Writing conditions on approvals you do not control?

Every agreement my agents write crosses my desk before it goes out, and permit and approval conditions get the longest look — the schedule, the date, and the notice route. If nobody at your brokerage is reading your schedules with you, come have a conversation about how we do it here.

Book a 15-minute call or call or text 833-330-1925.

If the honest answer is that your current brokerage is fine, I will tell you that.

Building Permit Conditions in Ontario: Drafting One That Holds Up