Condo Living

April 12, 2019 Published by Toronto and Area Chapter - By Brian Horlick, Julia Lurye

Privately Owned Publicly- Accessible Spaces

From the Spring 2019 issue of the CCI Toronto Condovoice Magazine.

As land in Toronto becomes increasingly limited and expensive, the City is looking to creative ways to meet the demand for open space. In comes the concept of privately owned publicly-accessible spaces, or "POPS" for short.

As the name suggests, POPS are spaces that, although privately owned and maintained, are required to be open for use by the public pursuant to a zoning by-law or a planning agreement.

This hybrid of sorts (one that is neither totally private, nor completely public) has emerged in Toronto (and in other metropolises around the world) as a product of the City's planning tools and powers under the Planning Act, R.S.O. 1990, c. P.13. Simply put, in exchange for obtaining community benefits, the City of Toronto grants developmental approval. For example, where a real estate developer wants to construct a new condominium building with particular height and density, which will typically require a site-specific zoning by-law, in exchange for granting valuable zoning concessions and development approval for this condominium project, the City of Toronto will often require the developer to provide a benefit to the community, such as creating and maintaining POPS on their property. These negotiations are reflected in a site plan agreement and/or an agreement pursuant to section 37 of the Planning Act, registered on title to the property.

POPS include green spaces, such as the Rose Garden at the Four Seasons Hotel in Yorkville, and parkettes, such as the one at 79 Wellington Street West, with art (in the form of cows) called the Pasture. POPS also include plazas in front of commercial buildings, and pedestrian walkways, among others. The City of Toronto's website includes an interactive map that identifies existing and future POPS locations in Toronto and provides a description and a photograph of the spaces (see http://www.toronto.ca/planning/ POPS).

In the condominium context, any POPS negotiated as part of the development application will typically form part of the condominium corporation's property. Access to the public will often be secured by easements or other agreements registered on title to the property.

The result is that, subject to the nature of the POPS, there will be more green space, court yards and/or amenities for members of the public to use and enjoy, regardless of whether they own a unit in the condominium building or are just visiting.

The condominium corporation will typically be responsible to maintain the POPS. This carries a number of implications, which are highlighted below.

Use of POPS by the Condominium Corporation

Generally, condominium corporations with POPS on their property should operate the POPS in a way that encourages public uses like walking, siting and gathering. Subject to any agreements registered on title and the nature of the POPS (e.g. courtyard, plaza, etc.), the corporation may consider installing or providing for a seating area, a children's play area, public art, lighting or trees and other vegetation. There should be no fence, wall or other obstructions that blocks access or discourages public use of the space. Indeed, such an obstruction may be prohibited by the applicable zoning by-law or site plan agreement.

Toronto's City Council endorsed a "Draft Urban Design Guidelines for Privately Owned Publicly- Accessible Spaces (POPS)" (the "Guidelines") on July 11, 2014. The Guidelines are intended to provide direction on the development and use of POPS for projects in progress or initiated after the date that the Guidelines were endorsed. The Guidelines are intended to be read together with applicable zoning by-laws, municipal policies, standards, guidelines and requirements.

The Guidelines can also be used by condominium corporations created prior to July 11, 2014 to inform the use of those existing POPS.

Maintenance and Repair

A condominium corporation is responsible to maintain and repair the common elements. Subject to its declaration, this includes anything beyond the boundaries of the units, such as hallways, elevators, amenities and landscaping. When a POPS forms part of the condominium corporation's property, the condominium corporation is also responsible to maintain it and undertake any repairs to this area. Given that POPS are accessible to the public, in addition to the owners and residents of the condominium building, it is likely that this area will see more wear and tear.

This could mean increased costs for the condominium corporation. In some cases, the developer may set aside funding to help the condominium corporation pay for maintaining these areas. If such funding is not provided, or if the funding runs out, then the costs would generally be borne by the condominium corporation alone.

Occupiers' Liability

At law, the condominium corporation owes a duty to take all reasonable steps to ensure that persons entering on the property are reasonably safe while on the premises. This is because the Condominium Act, 1998 deems the condominium corporation (and not the individual owners) to be the "occupier" of the common elements, which would include any POPS on the property.

As such, a condominium corporation that has a POPS on its property may have an increased exposure to liability claims for personal injury (especially if the injury is caused or contributed by the corporation's failure to maintain or repair the POPS). This is because, in addition to the owners and residents of the condominium building, members of the public also have access to this area.

Although condominium corporations are required to carry occupier's liability insurance, which would include coverage for any POPS on their property, in some cases, the increased exposure to potential liability claims could result in higher insurance premiums. As with the additional cost of maintaining and repairing the POPS, unless the developer sets aside any funding, the cost of these higher insurance premiums is typically borne by the condominium corporation.

Signage

The City of Toronto requires any existing POPS developed after July 11, 2014 to have a sign posted identifying these spaces as privately-owned and publiclyaccessible. The installation of the sign is recommended for POPS developed prior to this date. The sign should be consistent with the template adopted by the City of Toronto, which boasts an Alder Tree and a squirrel. The Alder leaf is shown on the Toronto coat of arms, and the image of an Alder Tree and a squirrel is a nod to nature.

This means that a condominium corporation with a POPS on its property will be required to absorb the cost if it chooses to install such a sign, unless (as noted above) funding from another source is available.

To be clear, POPS are good things for their communities. As land in the City of Toronto becomes increasingly limited and expensive, POPS play an important role in meeting the need and demand for open space. That said, condominium corporations may have additional responsibilities (and costs) in maintaining any POPS on their properties. Therefore, if you are an owner or a prospective purchaser of a unit in a condominium building that has a POPS on its property, take care to understand and appreciate the implications that the POPS may have on your investment.