The Occupancy That Was Never Authorized
A contractor completes a 900 m² tenant fit-up in a multi-tenant commercial building: a restaurant with a commercial cooking line, a new grease-laden exhaust hood, and a seating area for 120 patrons. The building permit was issued for the fit-up, and inspections of the structure and electrical work passed. The fire suppression inspection for the hood system has not been completed, and the final building inspection has not been requested. The tenant opens for business on a Friday night. On Saturday, the building inspector observes the restaurant operating, the hood in use, and 120 seats occupied. The tenant says the landlord told them 'occupancy is fine, the permit is issued.' The designer who prepared the fit-up drawings is the same person who told the tenant that the hood inspection 'can follow.' The municipality's records show no occupancy permit or authorization was issued for the space.
1. Was occupancy lawful? Explain the occupancy framework and identify every failure.
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Occupancy was not lawful.
The framework: the Building Code Act and Code separate the authority to construct from the authority to occupy. A building permit authorizes construction. Occupancy of a building or part of a building requires that the work be completed and that the building official be satisfied the requirements for occupancy are met; where the Act requires an occupancy permit or authorization, none may be issued until the applicable inspections and conditions are satisfied. The official also has the power to prohibit occupancy where the building is unsafe or the requirements are not met.
Failures:
- No occupancy authorization. The records show none was issued. The landlord's assurance is not authorization; only the building official can authorize occupancy.
- Uninspected fire suppression. A grease-laden exhaust hood system is a life-safety system. Operating the cooking line before the suppression system is inspected and accepted is a direct hazard to occupants and firefighters.
- No final inspection. The permit's requirements were not closed out.
- The designer's advice. Telling the tenant the hood inspection 'can follow' is wrong. The inspection is a precondition to using the hood, not an administrative afterthought.
- The landlord's representation. 'The permit is issued' conflates construction authority with occupancy authority. That statement, if made, is a misrepresentation of the regulatory position.
Consequence: the building official should prohibit occupancy and require the space to close until the suppression system is inspected and accepted and occupancy is authorized.
2. What orders or enforcement steps are available, and who bears responsibility among landlord, tenant, contractor, and designer?
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Enforcement steps:
- Order prohibiting occupancy or an order to comply, served on the owner (and the tenant as occupier where the Act allows).
- Order to stop work / stop use of the hood until inspected.
- Requirement to complete inspections and close out the permit.
- Prosecution where the Act's offence provisions are engaged - occupying without authorization and using an uninspected life-safety system are serious. The official should consider whether the conduct was knowing.
- Referral of the designer's conduct to the applicable regulatory body if warranted.
Allocation of responsibility:
- Landlord/owner: primary responsibility. The owner controls the building, holds the permit, and is the party the Act most directly regulates. The assurance to the tenant is aggravating, not exculpatory.
- Tenant: responsible as occupier for opening without authorization. Reliance on the landlord's statement may mitigate but does not excuse - a commercial tenant has its own obligation to confirm occupancy authority.
- Contractor: responsible for completing the work and for not facilitating occupancy before inspections. If the contractor knew the hood was uninspected and proceeded, that is a compliance failure.
- Designer: the most serious professional exposure. The designer gave incorrect regulatory advice to the client and characterized a mandatory inspection as optional. That is a breach of professional responsibility, independent of the building department's enforcement.
Practical note: the building official should document the observations, serve the order promptly, and not accept a retroactive 'we'll get the inspection Monday' as a substitute for prohibiting occupancy now.
3. The tenant argues it relied on the landlord and the designer in good faith. Does that change the analysis?
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It may affect penalty and prosecutorial discretion; it does not make occupancy lawful.
The legal position: occupancy authority comes from the building official, not from a landlord or a designer. Good-faith reliance on a private party's assurance does not create an authorization that was never issued. The tenant's reliance is a mitigating factor in enforcement - it may influence whether prosecution is appropriate, the penalty sought, or the compliance timeline - but the underlying noncompliance stands.
The reliance argument's limits:
- A commercial tenant, particularly one operating a restaurant with a commercial cooking line, is expected to confirm that occupancy is authorized and that life-safety systems are inspected. Reliance on a verbal assurance is thin.
- The tenant chose its designer and contractor or accepted them from the landlord; it cannot outsource all regulatory diligence.
- The designer's advice was itself wrong, so reliance on it is reliance on an error - not a defence to the Code.
What the tenant should do now: cease occupancy, cooperate with the inspection, and preserve its position against the landlord and designer for any losses. What the building official should do: treat the reliance as a factor in how enforcement proceeds, not as a reason to overlook the uninspected suppression system. The hazard to 120 patrons does not diminish because the tenant was misled.