AIR SPACE PARCELS MAY 2017 by Michael Quattrocchi Outline 1. Land, Air Space & the Land Title Act 2. Air Space & Remainders, Further Subdivision 3. Role of Approving Officer 4. Air Space Agreements 5. Role of Lawyers 1
Normal Parcel Two dimensional boundaries Undefined/un-surveyed upper and lower limits As far as necessary for ordinary use and enjoyment Part 9 of the Land Title Act Air Space Titles Only 9 sections, 2 pages 2
S.138 air space parcel means a volumetric parcel, whether or not occupied in whole or in part by a building or other structure, shown as such in an air space plan One or More Air Space Parcels S.141(1) An owner in fee simple whose title is registered under this Act may, by deposit of an air space plan, create one or more air space parcels separated by surfaces and obtain indefeasible titles for them 3
Subdivision of Single Parcel s.143(b) An air space plan must not be accepted for deposit by the registrar unless the land of which the air space parcels are part is shown as a single parcel on a subdivision plan or a reference plan deposited under this Act. An air space parcel may be transferred, leased, mortgaged and otherwise dealt with in the same manner as other land (s.141(3)) 4
The Remainder Parcel - S.140(2) Unless expressly granted, the title to the air space above the upper limits and below the lower limits of an air space parcel remain in the grantor. Traditional Use Highway over passes/walkways 5
Mixed Use/Mixed Ownership Residential Strata Lots & Commercial Space Public Space (daycare, affordable housing) 6
Alternative to Strata Property Act No Shared Governance (no strata bylaws or strata corp.) 7
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Air Space Parcel Further Subdivision may be further subdivided under Strata Property Act 9
Remainder Further Subdivision LTSA Practice Bulletin No. 1-16 owner of a Remainder may subdivide the Remainder in compliance with the Act, and upon satisfying the registrar that the requirements of ss.143, 144 and 169 have been met S. 169(1)(b) On application for registration of indefeasible title to land, registrar must be satisfied that a good safe holding and marketable title in fee simple has been established by the applicant 10
LTSA Practice Bulletin: provided there is no overlap vertically (i.e., not lying above or below) as a result of the adjacency of the boundaries of the newly subdivided parcel or air space parcel and the boundaries of the initial air space parcel. create one or more additional air space parcels from Remainder subdivide Remainder by subdivision plan dedicate part of Remainder as highway or park by plan under s.107 subdivision under Strata Property Act new Remainder may again be subdivided in accordance with Practice Bulletin 11
Initial Air Space Subdivision A/S Parcel 1 Remainder Regular Subdivision Remainder A/S Parcel 1 New Lot A 12
Highway or Park Dedication Remainder A/S Parcel 1 Highway More Air Space A/S Parcel 2 A/S Parcel 1 Remainder 13
Approving Officer S.144(2)(f) An air space plan tendered for deposit must be approved by the approving officer. Part 7 sets out approving officer role and discretion in relation to subdivision but, s.146(2) says that Part 7 does not apply to this Part Approving Officer role is unclear 14
The Air Space Agreement Developer will typically register an Air Space Agreement Contains easements among Remainder and Air Space Parcels For Support, Access & Services Approving Officer May require/review Air Space Agreements for: Structural Support Pedestrian and Vehicular Access Emergency access Utilities & other services Amenities Fire Protection Parking (municipal bylaw requirements) 15
Building Department may require Code Compliance Report Requirements No separation between air space parcel and remainder parcel buildings Reports typically require registration of Air Space Agreement Air Space Agreements also typically include cost sharing between owners for shared elements 16
Section 219 Covenant(s) in favour of Municipality Single Use Covenant Ensure Easement not discharged or modified without municipality s consent Indemnity & Release of Municipality Usually part of Air Space Agreement (single use covenant sometimes separate) A Chilling Reminder on the Law of Easements: Positive Covenants Do Not Run with the Land! 17
The Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation, 2017 BCSC 71 Air Space Parcel Subdivision 7 Air Space Parcels, including: 4 story office tower 4 level parking facility 18
Air Space Agreement registered in LTO Allocates parking rights to each air space parcel to meet Burnaby parking bylaw requirements 76 spaces to office tower Air Space Agreement requires air space parcel owners to pay annual parking fee: Annual base rate ($33,000 for office tower), plus a proportionate share of parking facility operating costs and taxes 19
Air Space Agreement provides that its covenants and agreements run with each Parcel and bind each Parcel. After air space subdivision, office tower subdivided into 68 strata lots Strata corporation eventually became concerned with parking costs, refused to pay part of parking fee Dispute arose off to court! 20
Court reviewed the law relating to easements Easements do not place on the owner of the servient tenement any obligation to act obligations to act or pay can only be imposed by a positive covenant and will not run with the land Parking Facility (Servient Tenement) Office Tower (Dominant Tenement) - Right of Access to Parking - Payment of $$ (positive covenant) - Permit office tower owner to use parking (no obligation to act) - Repair and maintain parking facility (positive covenant) 21
Obligation to pay for parking a positive covenant - does not run with land Office tower strata corporation never agreed to positive covenant to pay for parking Payment provisions do bind office strata 22
But no obligation on parking facility owner to operate parking facility, provide security or repair and maintain parking facility! Objectives Clear Air Space Agreement, with Section 219 Covenant in favour of Municipality Need understanding of what is to be subject of easements under Air Space Agreement Code Compliance Report Ensure Air Space Agreement includes required easements per Code Report requirements and any other municipal requirements (e.g. parking) 23
Role of Developer s Lawyer Prepare the Air Space Agreement Ultimately, a private agreement Approving Officer s Role in Reviewing Air Space Agreement 24
Review Code Report requirements Ensure easements cover required facilities and services per Code Report Parking Bylaw requirements Ensure section 219 covenant meets municipality s requirements Role of Municipal Solicitor in Reviewing Air Space Agreement General review of Air Space Agreement Assist Approving Officer with understanding and review of Code Report & Air Space Agreement Review section 219 Covenant 25