Easement request raises many legal questions
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: email@example.com.