Ease­ment re­quest raises many le­gal ques­tions

The Daily Courier - - LIFE & ARTS - TONY GIOVENTU Condo Smarts

DEAR TONY: The prop­erty next to our strata cor­po­ra­tion has been sold and a new de­vel­op­ment is about to start con­struc­tion.

Our build­ing is a rel­a­tively new high­rise with 10 town­houses and a large un­der­ground park­ing garage.

Our strata coun­cil has been ap­proached by the city and the de­vel­oper and has re­ceived a num­ber of re­quests for ac­cess to our prop­erty through the lane area, and stan­dard types of de­vel­op­ment agree­ments that would per­mit them right of ways for con­struc­tion and ser­vices.

Pre­vi­ously, you wrote about the sub­di­vi­sion of prop­erty and the need for ev­ery owner to agree to the changes. Is our strata re­quired to ob­tain the ap­proval of all of the own­ers be­fore we can pro­ceed or is coun­cil to per­mit­ted to ap­prove th­ese agree­ments? — Mike Foster, Van­cou­ver

DEAR MIKE: A sub­di­vi­sion re­quires the con­sent of all own­ers, but the types of agree­ments your strata cor­po­ra­tion is be­ing re­quested to con­sider are ease­ments and right of ways.

Th­ese are com­mon and sev­eral are likely reg­is­tered in the Land Ti­tle Registry and shown on your ex­ist­ing strata com­mon prop­erty.

A few tips though to pro­tect your strata cor­po­ra­tion. There is no such thing as a “stan­dard ease­ment or de­vel­op­ment agree­ment” with neigh­bour­ing prop­er­ties.

What may seem like a sim­ple agree­ment at the time may have far-reach­ing and costly im­pli­ca­tions for your strata own­ers.

Cur­rent and fu­ture im­pli­ca­tions have to be con­sid­ered. If a de­vel­oper wants ac­cess to your prop­erty or con­ces­sions for use, re­mem­ber it is your prop­erty and you have a duty to pro­tect the in­ter­est of your own­ers.

The pro­posed ease­ment may also have sig­nif­i­cant value for the strata cor­po­ra­tion that should be ne­go­ti­ated in each sep­a­rate case.

If your strata cor­po­ra­tion is will­ing to con­sider the pro­pos­als, one con­di­tion of the agree­ment is the de­vel­oper will be re­quired to pay for all of your le­gal and re­lated ex­penses to re­view, ne­go­ti­ate and rat­ify the agree­ment at an an­nual or spe­cial gen­eral meet­ing of the strata cor­po­ra­tion.

Start by re­tain­ing a lawyer who has ex­per­tise in this area of con­struc­tion and de­vel­op­ment and en­gage them to work for your strata cor­po­ra­tion.

De­ter­mine if there is any value to the re­quested ease­ment.

Elaine McCor­mack, with Wil­son McCor­mack Law Group, cau­tions all coun­cils to be closely en­gaged with the process so they un­der­stand what the ease­ment means re­gard­ing the use and con­di­tion of the strata com­plex.

“A strata cor­po­ra­tion is not re­quired to give a neigh­bour ac­cess to its land, in­clud­ing the court­yard or drive­way, but if you do, you may be able to ne­go­ti­ate com­pen­sa­tion. If the ease­ment is im­por­tant to a new de­vel­op­ment, grant­ing the ease­ment could re­sult in sig­nif­i­cant rev­enue for the strata cor­po­ra­tion.

“There are also a num­ber of con­struc­tion is­sues re­quir­ing ease­ment agree­ments, in­clud­ing un­der­pin­ning of build­ing struc­tures, soil sup­port, over­head crane swings, mod­i­fi­ca­tions to util­i­ties, and other im­pact to your build­ing to con­sider.”

Fi­nally, be­fore you agree to any ease­ments, your strata cor­po­ra­tion will be re­quired to pass a three­quar­ters vote at a gen­eral meet­ing and give the coun­cil the au­thor­ity to ne­go­ti­ate and au­tho­rize the terms and con­di­tions of the agree­ments.

Tony Gioventu is ex­ec­u­tive di­rec­tor of the Con­do­minium Home Own­ers As­so­ci­a­tion. To of­fer a ques­tion for con­sid­er­a­tion write: CHOA, Suite 200-65 Rich­mond St., New West­min­ster, V3L 595 or email: tony@choa.bc.ca.

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