February 25, 2009 BCLS CPD Presentation Air Space Parcels Presentation by: Brent Taylor Peter...

February 25, 2009BCLS CPD Presentation

Air Space Parcels

Presentation by:Brent TaylorPeter Tolensky


Air Space Parcels

Used when there is a desire to create an independent 3D parcel

Created under Part 9 of the Land Title Act

Limited options after initial creationCannot subdivide further other than by

strataCannot consolidateCannot revert to 2D title


When to use Air Space

Original intent was for simple aerial parcels that could not otherwise be created

Typically tenure over Crown land, for example:Overhead walkway between buildingsBridge over a riverBuilding encroachment over a road


When to use Air Space

Current uses include:Mixed use developmentsMixed ownership developmentsPublic ownership of amenities within a

buildingAffordable HousingDaycare


Who is involved?

DeveloperBC land surveyorArchitectLawyerCode consultantLocal government


Roles - Developer

Needs to understand and accept the additional costs, complexities and timing issues

Brings the parties together throughout the process to ensure a team approach

Makes sure the marketing component understands the way air space works


Roles – BC Land Surveyor

Defines the 3D parcels including the datum for the 3rd dimension

Identifies building design aspects that could simplify air space subdivision


Roles - Architect

Designs the buildingWorks with other design professionals to

isolate each air space parcel and relevant services where possible


Roles - Lawyer

Designs the air space agreementEnsures that all easements required for

support, servicing and access are in placeEnsures that provisions are made for

sharing common costsEnsures that liabilities are properly allocated


Roles – Code Consultant

The BC Building Code does not provide for air space parcels

A code consultant is required to work with the architect and the building inspector to define and defend the exceptions to the building code


Roles – Local Government

The air space plan must be approved by the approving officer

The building inspector must allow the exceptions to the building code

The council must agree to be a party to the air space agreement.


Air Space Examples


Air Space Agreement

Typically in the form of a Section 219 Covenant registered on title

an acknowledgment from the owners that the building is treated as a single building for the purposes of the Code and the City Building Bylaw

future development control (i.e. no further subdivision, except by strata plan)

Local Government a party to the agreement a release and indemnity from the owners in favour of

the City in connection with the Airspace Agreement


Agreement Terms

Terms of the agreement include: reciprocal easements for shared elementspedestrian accessvehicular accessservice connectionsfire safety and emergency systemsstructural supportfuture construction


More Agreement Terms

maintenance, repair and the use of other common building services, such as sewer, garbage, water and electrical services

insurancedamage and destructioncost sharing


Design Considerations

While Air Space Agreements provide many blanket aspects it is best to design the building(s) with the components as independent as possible. Independent access Independent services


Air Space Boundaries

Parcels are defined: Horizontally by dimensions relative to the

parent parcelStraight linesCircular curves

Vertically by elevations related to a local bench mark (geodetic elevations)

Level planes Inclined planes


Approvals

Requires the consent of the local Approving Officer in the same form as a 2D subdivision

Typically requires a Section 219 covenant that the local government is a party to


Conclusions

Can add flexibility to developmentsDoes add complexity to both the

development and future operationsHas many legislative limitations at this

timeMust get the design and location of the

parcels right the first timeMust create all parcels at once


Next steps

Association of BCLS is working with the Canadian Bar Association to craft a set of proposed legislative changes to create a more robust and flexible set of rules for Air Space Parcels

The support of the development community will be key to successfully changing the legislation.


Air Space Task Force

Short Term – Subdivision of Remainder

Long term – Legislative Reform Fixing Plans Statutory and Municipal Consistency Phased ASP Subdivision Destruction issues Building Code Issues Positive Covenants


Question?

Brent Taylor

Peter Tolensky

February 25, 2009 BCLS CPD Presentation Air Space Parcels Presentation by: Brent Taylor Peter...

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