With growing populations and increased housing options in the Lower Mainland, neighbouring properties are often temporarily becoming construction sites for many strata corporations. Often, those neighbours are asking for more than just a simple cup of sugar. Instead, many strata corporations are asked for access to their common property and airspace in order to facilitate construction, in the form of an easement agreement. Strata corporations have the authority to grant such access, pursuant to section 80(2) of the Strata Property Act which provides:
(2) To dispose of common property in a way not set out in section 253 (1), the strata corporation must ensure that the following requirements are met:
(a) a resolution approving the disposition must be passed by a 3/4 vote at an annual or special general meeting. (emphasis added)
This article discusses important considerations when looking at potential easements with access to strata property.
First and foremost, strata corporations should look at the scope of the access that is being requested. Where is the access being requested? Is the access limited to the common property? Requests can range from simply passing vehicles over the common property, to works that are installed for the duration of the construction, to works that will be installed and remain permanently.
In addition to considering how long the work installed will remain, the next important consideration is how long the access will be for. Access can be limited to any amount of time, or can be allowed indefinitely. Often access that is granted indefinitely is granted because it benefits both parties– this is known as a reciprocal easement.
Should the strata approve of the scope and timeline of the works, the next consideration is protections for the strata corporation both during the course of the construction, immediately afterwards, and in the long term. Though there are many protections that a strata corporation should consider, of particular concern are insurance and indemnity. Parties completing construction will surely take out insurance policies. However, strata corporations should be certain that the strata corporation is protected under such insurance policies.
Additionally, strata corporations will also want to be certain that they are protected from lawsuits and claims arising out of the works being completed on the common property. This requires an indemnity for the strata corporation, whereby the other party will protect the strata corporation from any impending claims. Though such an indemnity is generally included in easement agreements, what many fail to take into consideration is protecting individual strata lot owners as well.
A final important consideration when looking at easement agreements is compensation. Strata corporations will often incur costs to grant an easement, face potential damages, and also lose some to all access to their common properties for a period of time, or indefinitely. Strata corporations should ensure that they are compensated according to the costs they will face, such as legal, engineering, surveying, and landscaping costs. As such, strata corporations should ensure that they are compensated accordingly.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Rikki K. Shoker is lawyer whose practice includes strata law, municipal law, general corporate matters, general litigation, and real estate. She is an associate with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or firstname.lastname@example.org.