Presented by David Finlay, Q.C., Curtis Piggott & Bonnie Anderson · 2016-11-05 · Issues: •...

Presented by David Finlay, Q.C., Curtis Piggott & Bonnie Anderson

Strata Subdivisions

1. Introduction • Title – An Overview • Strata Subdivisions – An Overview • The Uses of Strata Titling • An Example of Strata Titling

2. The Benefits of Strata Titling

3. Issues and Solutions • Condominium within a Strata Lot • Financing Issues • Building Code Issues • Encroachment Issues

4. Easements, Covenants and Restrictions Agreements • Shared Easement Plans • Cost Allocation • Assumption Agreement

5. Strata Registration

Agenda

INTRODUCTION

• No bylaws, boards or implied easements

• No similar legislation governing the relationship among the various strata lots

• Relationship among strata lots is primarily contractual and via municipal approvals

• May provide separate titles before structure exists

Strata Subdivision

• Consumer-oriented legislation, highly regularized

• Condo bylaws and boards

• Common property is owned communally (e.g., roads in a bare land condominium)

• Cost sharing is usually based on unit factor

• Automatically provides for easements between units for structural needs etc.

• Boundaries have reference to floors walls ceilings – building must exist

Condominium

Title – An Overview Traditional Title

• The infinite carrot concept

• Limited flexibility on its own

• May incorporate a strata plan or condominium plan

• A strata space plan is a plan subdividing volumetric space, other than mines and minerals, lying on or under the surface of land, into strata spaces.

• The boundaries of a strata space may consist of vertical, horizontal or inclined planes or cylindrical surfaces which have axis that are either vertical or horizontal.

• A strata space plan must conform to, or lie within, the boundaries of the single parcel of land affected.

• Boundaries are independent of physical structures (unlike condominiums) • Generally fixed by elevations on the top and bottom, but can extend infinitely up or down.

• Strata subdivisions can result in sharing amenities and access, and can quickly become complex.

Strata Subdivisions – An Overview

• Mixed-use commercial • Mixed-use commercial and

residential • Developments with multiple owners • Condominiums within a strata lot • Developments requiring present and

future flexibility

Uses of Strata Title

EAD Joint Venture will develop 20 acres of land in downtown Edmonton

The Edmonton Ice District – An Example of Strata Titling

The Benefits of Strata Titling

1. Facilitation of project phasing • Example: underground parkade

2. Flexibility in ownership (Different titles (and potentially different owners) for different uses in one development)

3. Flexibility for financing (potentially different lenders for each strata in the same development as desired/required)

4. Creative solutions to problems • Examples:

• i) cross lot servicing issues, • ii) ownership by one owner of a space in another owner's building

Benefits of Strata Title

Issues and Solutions

• Management Agreements

• Insurance Issues

• Reserve Funds

Condominiums within a Strata Lot

• Issues: • Land Titles Act requires strata subdivision to occur within existing lot. • During construction, there may not be a lot to register on (therefore, there may

be a lack of title as security for financing.)

• Solutions: • Subdivide strata prior to construction and obtain an encroachment agreement

or make an application to vary plan under Section 91 of the Land Titles Act once a post-construction survey has been obtained.

• Estimate strata, and lease from owner of lot in which the strata is contained. • Use lease as security for financing and transfer security to strata title when

registered.

Financing Issues

Issues:

• The Alberta Building Code (the "Code") now includes specific provisions relating to strata subdivisions. • Firewall construction is reduced.

• There may still be cross-lot servicing issues from a utility point of view.

Solutions:

• Plan well in advance.

• Identify potential issues in advance.

• Register Strata Space Plan as far into construction as possible.

• Allow a significant amount of time to deal with issues that may arise.

the Alberta Building Code Issues

• Issue: • If a Strata Plan is registered before construction is

complete, a portion of the building may extend outside of its strata lot.

• Solutions: • Title insurance; • Encroachment agreement; • Application to vary plan under Section 91 of

the Land Titles Act.

Encroachment Issues

Easements Covenants and Restrictions Agreement

Strata Subdivision Approval Conditions

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• Easements • support – lateral, subjacent • shared facilities – emergency equipment, ramps, drive aisles, stairs, exits, elevators, vestibules • services and utilities – water, sanitary, storm • specific shared easements

• Covenants • reciprocal benefit/burdens • shared facilities in each strata

• Restrictions • quiet enjoyment, limited exceptions e.g., emergency • no changes to common foundation, structure

Easements, Covenants and Restrictions Agreement (ECR)

Shared Easement Plans

Cost Allocations

Cost Allocations

Strata Registration

• Consents to Register Strata Plan from: • Owner • Subdivision Authority • All parties with a registered instrument on title

• Consent usually only provided by Caveator listed • Discharges (Partial or full discharge of certain instruments) • Sequence of Registration

Strata Registration

Strata Plans – Land Titles Office

QUESTIONS?