Changes to the Condominium Act: A Guide to the New Condominium Guide

Post by Annie Bailey

Effective January 1, 2021, the Condominium Act, 1998 (the “Act”) will be amended to require condominium developers to provide potential purchasers of pre-construction and newly-built condominium units with a “Condominium Guide.”

If you are a developer or a potential purchaser of a pre-construction or newly-built residential condominium unit, this new Condo Guide is very important for you. For others, including those who currently own a condominium unit, are purchasing a unit in an existing condominium, or work in the condominium industry, the Condo Guide is a valuable educational resource.

The purpose of the Condo Guide is to provide potential purchasers of condominium units with reader-friendly, understandable information on the process and risks of buying a pre-construction or newly-built condominium unit, as stated by Ontario’s Ministry of Government and Consumer Services. The Condo Guide will assist these potential purchasers with making informed decisions about their purchase. Some of the topics covered include:

  1. Condominium corporations;
  2. Buying a pre-construction unit (including delayed occupancy and interim occupancy);
  3. Warranty coverage with Tarion;
  4. Governing documents and why you should read them;
  5. Condominium living (including owner rights and obligations);
  6. Common elements and common expenses; and
  7. Condominium governance, finances, and management.

The Condo Guide was prepared by the Condominium Authority of Ontario (the “CAO”) and approved by the Minister of Government and Consumer Services. This process ensures that all potential purchasers will receive a copy of the same government-reviewed information. You can access the Condo Guide here:

The Act gives the Minister (and by extension, the CAO) discretion to create different versions of the Condo Guide that apply in different circumstances and to different types of condominiums. The version of the Condo Guide that has been released so far applies only to residential condominiums. So if you are purchasing a commercial condominium unit, this Condo Guide does not directly apply to you. However, the general information in the Condo Guide may still be useful for commercial condominium unit owners. We may also see different versions of the Condo Guide released in the future.

The Condo Guide is an additional document that developers (or those acting on behalf of a developer) must deliver to potential purchasers along with the already-required Disclosure Statement when potential purchasers sign an Agreement of Purchase and Sale for pre-construction or newly-built condominium units. Regulations under the Act have not yet been released specifying how the Condo Guide must be delivered, so for now, it is likely best for developers to deliver it in the same manner in which they already deliver the Disclosure Statement.

After receiving the Condo Guide, Disclosure Statement, and fully signed Agreement of Purchase and Sale, potential purchasers have 10 days to review the documents (ideally with their lawyer) and to decide if they wish to proceed with their purchase. This is known as the “10-day cooling off period,” and potential purchasers may rescind their Agreement of Purchase and Sale by written notice within this timeframe if they so desire. While the “10-day cooling off period” is not new, the requirement to include the Condo Guide is new.

Developers, please speak to your lawyers about these upcoming amendments to ensure you are providing proper disclosure to your purchasers after January 1, 2021. You must provide the Condo Guide to all new residential purchasers entering Agreements of Purchase and Sale in the new year, even for projects that went to market before January 1, 2021.

Purchasers, you can expect to receive this Condo Guide if you purchase a pre-construction or newly-built residential condominium unit in the new year.

Renewal of a Commercial Lease and the Doctrine of Waiver

The Take Away

Once a party waives an enforceable legal right its ability to then enforce such right is not immediate.

The Case

A recent decision of the Court of Appeal reaffirmed the manner in which a party may revoke its waiver.

In North Elgin Center Inc. v McDonald’s Restaurants of Canada Limited, the parties had entered into a commercial land lease agreement for a period of 20 years (the “Lease”).  The Lease was subject to renewal.  The parties agreed the Lessee, McDonald’s Restaurants of Canada Limited, had provided its written notice to renew the Lease within the required period, however, the parties continued to negotiate the rental rate after the deadline to set such rental rate pursuant to the renewal provisions of the Lease.

The application judge held that through such negotiation the Lessor, North Elgin Center Inc., had waived its right to enforce the strict terms of the renewal provisions in the Lease.  The application judge later found that the Lessor’s waiver was revoked by an email sent by the Lessor to the Lessee.

The Court of Appeal disagreed.

The decision emphasises that to be effective, revocation of waiver requires:

  1. reasonable notice to be provided to the receiving party;
  2. the notice to include a clear indication that the party who granted the waiver will insist upon the strict enforcement of its legal rights; and
  3. the receiving party to be provided an opportunity to cure any defect resulting from its reliance on the waiver.

The full decision can be found here:

Condominiums, Drinking Water Systems and the Safe Drinking Water Act

Posted by: Roy Gentles

Recently we have run into a number of issues surrounding the interpretation of the Safe Drinking Water Act, 2002 (the “Act”).  Namely, several municipalities have declared that the system of works that supplies water to the unit owners of the condominium plan is a “non-municipal year round drinking water system”, a “non-municipal drinking water system” or in laymen’s terms a private drinking water system under the Act.

The interesting part from our perspective is that municipalities only appear to be raising this concern when the project is being developed as a vacant land condominium plan.  As you may be aware, a standard condominium plan and a vacant land condominium plan can appear exactly the same once built out (although this is not always the case).  Yet, it appears that if two developments are built side by side, one a standard condominium plan and the other a vacant condominium plan, both of which have the exact same number of units, the exact same layout, and the exact same system of works distributing water, the municipalities would only consider the vacant land condominium plan a non-municipal drinking water system under the Act.

Therefore, it appears that in most, if not all, of these cases it is not a safety concern that results in the vacant land condominium corporation having to comply with the added security, reporting, inspection, and testing imposed by the Act on non-municipal drinking water systems, but rather the location of the unit boundaries.  We draw this conclusion based on the fact that if there was a legitimate safety concern with the system of works distributing water itself, then the municipalities would not allow standard condominium plans to be exempt from these requirements.  Further, we are experiencing these issues in developments where one hundred per cent (100%) of the water supplied to the condominium has already been treated in accordance with the Act by the municipal drinking water system.

This issue is yet to be resolved, but when considering what type of condominium to use for your development be aware that a vacant land condominium plan is likely to run into this issue.  We suspect that common element condominium plans and possibly phased condominium plans will receive similar treatment, however, to date we have not experienced this first hand.

It should be noted that we have solutions to the concerns raised by the municipalities, which should satisfy even a strict reading of the legislation.

If you’re considering developing a vacant land condominium, a standard phased condominium, or a common element condominium we strongly recommend discussing drinking water systems with your legal counsel at the outset of the project.

The Importance of Abutting Land Searches in the Land Titles System

Post by: Carly Haynes

There are two systems of land registration in Ontario, Land Titles and Land Registry. Historically, land in Ontario was registered only under the Land Registry System pursuant to the Registry Act. In this System all land registration documents are submitted to the Land Registrar and are recorded, in the order they are submitted, on the abstract for the geographic area they affect within a Land Registry Office (“LRO”).  Under this System, the documents are registered on title, but the provincial government does not guarantee the effect of such documents or title to properties.  Consequently, in under to satisfy oneself of title under the Registry System, land registration documents must be searched 40 years into the past in order to assess the validity of title.

In the Land Titles System the provincial government has the responsibility for the validity and security of all instruments registered on title. The vast majority of land in Ontario has been converted to the Land Titles Automated System. Title registered and certified under the Land Titles System is guaranteed by the provincial government, and the record is updated each time a land registration document is registered.

Following a recent trend of case law, it has become clear that despite the fshutterstock_73408681act that the provincial government guarantees title of land registered under the Land Titles System, land owners may still be held responsible for administrative errors where said errors were reasonably discoverable.  This highlights the importance of undertaking abutting land searches and title searches, regardless of the acquisition of title insurance.  This raises the questions as to whether title can ever really be absolute.

In 923424 Ontario Limited v 1695850 Ontario Inc. Justice Perell found that a landowner cannot rely on the lack of express notice of a right of way on servient land to extinguish the right of way.  In this case the existence of a right of way was registered on the abstract of the dominant property, but was absent from the abstract of the servient property. The servient landowner in these circumstances argued that as a result of the failure to register the right of way following conversion of the property from the Land Registry System to the Land Titles System, the right of way was extinguished.

All parcel abstracts for land expressly stipulate that the abstracts are subject to paragraph 2 of section 44 (1) of the Land Titles Act, which provides that unless the contrary is expressed on the register, the registered land is subject to certain liabilities including easements.  This section serves as notice that the land may be subject to a right of way. The court found that despite lack of express notice of the right of way registered on the servient property, the landowner had implied notice through the section 44 statement found on the parcel abstract.  As such, had the landowner heeded the section 44 instructions and undertaken an abutting land search, the right of way would have been discovered and costly litigation could have been avoided.

The Takeaway  

This case reinforces the importance of abutting land searches when undertaking a title search prior to property acquisition.  While many title defects may be protected by title insurance, it remains necessary to complete all title searches to protect against unlikely errors and obtain clear title.

Parkland Dedication Fees Capped by Ontario Municipal Board

Post by: Roy Gentles

Parkland dedication, or cash-in-lieu of land, has been a hotly debated topic between municipalities and developers for years.  In a decision dated January 15, 2015, the Ontario Municipal Board (“OMB”) sided with developers saying that the Town of Richmond Hill’s parkland dedication rate, the cash-in-lieu equivalent argued to be $37,600 per unit, was too high.

The OMB ruling imposes a cap on how much the town can charge on new development: 25 per cent of the land being developed, or its value in cash.

“No matter how many units there are on the site, they are going to pay the same amount,” said Bassios. “The cap removes any relationship between a density increase and the parkland that they owe,”

With an appeal to the to the divisional court likely, this is a case we will be watching closely.

For the full Toronto Star article click here.

Choosing a Condo Plan That is Right for You – Part 4: Common Elements Condominiums

Post by: Roy Gentles


In our previous blog post we discussed phased standard condominiums.  In this post we will offer part one of our discussion on common elements condominiums.


Common Elements Condominium Plans

A common elements condominium plan (“CECP”) refers to a condominium plan where the condominium property consists only of common elements.  As such, there are no condominium units in CECPs.  Instead of owning a unit in the condominium plan, as one would see in other types of condominiums, each owner in a CECP owns an undivided interest in the common elements of the CECP.  Ownership of an undivided interest in the common elements of the CECP occurs when the owner of a piece of freehold land outside of the proposed CECP consents to having  his or her land “tied” to the CECP.  This consent is obtained at the time the CECP is being established.  The owner’s freehold piece of land so tied to the CECP is referred to as a Parcel of Tied Land (“POTL”).

The POTLs tied to a CECP take the place of units for most purposes in the legal structure of a common elements condominium.  However, the POTLs are not part of the CECP; the POTLs have and retain freehold tenure.

An example can help clarify how a CECP can be used.  For this example, a developer wants to build a residential development with single family dwellings on half acre freehold lots and does not want to bring those lots into a condominium plan. The developer also wants to allow the owners of the freehold lots the use of a shared recreational facility, such as tennis courts.

The developer has decided for marketing or other reasons it would be beneficial to sell the homes as freehold estates instead of selling the homes as condominium units.

However, the developer, or the municipality which has to approve the development, is worried that the recreational facility will not be properly taken care of over the long run and, instead of adding value to the development, will detract value from it if the recreational facility is not under the jurisdiction of a condominium.  The main concerns facing the developer or municipality are usually: 1) how is this recreational facility to be governed; and 2) how will the recreation facility be properly funded over the long term.  Including the recreational facility in the CECP resolves these concerns.

In this example the recreational facility could be registered as the common elements of a CECP.  The lots containing the single family dwellings would become the POTLs to the CECP.  The owners of each single-family freehold home (the POTL)  would own a freehold estate in his or her home and an undivided interest in the common elements condominium, which consists of the recreational facility.

The common elements condominium corporation, which is automatically created upon registration of the CECP, would :

  • manage the recreational facility;
  • be responsible for the maintenance and repair of recreational facility; and
  • collect the monies necessary to operate the recreational facility and to properly fund the recreational facility reserve fund from the owners of the POTLs.

The owners of the POTLs are obligated, on the same basis as if such owners were the owners of condominium units, to pay common expenses on account of costs of operating the CECP and to fund the reserve fund of the CECP as needed.  As the POTLs are not part of the CECP, no costs related to the POTLs become part of the condominium budget.

CECPs are often useful in providing parking or in providing an access roadway to freehold parcels of land that do not otherwise have adequate legal or physical access to a public street.  In this circumstance, only the parking lot or the roadway that leads to the freehold parcels of land would be in the CECP.

Take Home: Pros and Cons of Common Elements Condominium Plans

The greatest advantage of a CECP is allowing a developer to provide a shared feature or facility to a group of freehold parcels of land and have that shared feature or facility governed by the provisions of the Condominium Act.  This ensures the governance of the shared feature or facility is regulated by the provisions of the Condominium Act and also ensures there are sufficient funds available to maintain, operate, repair and replace the shared feature or facility.

If the owner of a POTL fails to pay the common expenses attributable to his or her freehold parcel of land, the common elements condominium corporation has the right to register a common expense lien against the POTL.  A common expense lien is a first charge against the POTL, ranking ahead of any mortgages on the property if properly processed.

The shared features or facilities in a CECP can include anything a developer seeks to have shared by the owners of the parcels of land.  The most usual shared features and facilities are items such as access roads, parking facilities, recreational facilities, other amenities, retaining walls and/or noise walls.

Common expenses for common elements condominiums are usually much less than in other types of condominiums because the common expenses are only on account of costs relating to the shared facility, not the POTLs.  As discussed in our blog on phased condominiums, currently only standard condominiums can be phased, therefore a developer is forced to register the entire CECP at one time. It is usually not practically possible to add POTLs to a CECP once the CECP is registered.  It is also important to note that POTLs cannot be subdivided without an amendment to the condominium declaration.  It is however possible, in some circumstances, to register a new condominium on top of a POTL.

In part two of our discussion on CECPs, we will look at how CECPs are treated under the Ontario New Home Warranties Plan Act  and discuss some other aspects of such plans.

Choosing a Condo Plan That is Right for You – Part 3: Phased Condominiums

Post by: Carly Haynes

Our previous blog post discussed standard condominiums. This week we will offer a discussion on a specific type of standard condominium, phased condominiums.

Phased Standard Condominium Plans

As the name suggests, a phased condominium plan is a condominium plan that is developed and registered in stages.  Currently the Condominium Act, 1998 (the “Act”) only allows standard condominiums to be phased.  In phased condominium projects, there is one condominium plan which is expanded through amendments to the condominium declaration and description plans, with each new registration constituting a phase as new units are constructed. The condominium plan gradually increases in size as phases are added until the project is complete.  This type of project is attractive to builders  as they are able to balance sales of the units and registration of additional phases in order to ensure the project does not become over-extended.  After each phase is registered the builder can complete the closing of the units in that phase which allows the builder to obtain sales proceeds to assist in constructing the next phase.

The registration of the condominium declaration which brings the first building(s) into the condominium plan is not the first phase. Our office usually refers to this first registration as the Initial Registration.  The first “phase “is the next registration after the Initial Registration.  Needless to say this causes confusion.  Most people quite logically assume the Initial Registration is the first phase.  It isn’t.

References in this blog to a “declarant” mean the person/company that registers the condominium.  Often the builder is the declarant.

Typically phased condominium plans are made up of town homes but there are many examples of phased apartment building condominium plans and single family home condominium plans.

When considering undertaking a phased condominium project, it is important to note the first phase cannot register until title to the majority of the units in the Initial Registration of the condominium plan are no longer owned by the declarant and the declarant has delivered certain documents to the condominium corporation pertaining to the phase to be registered (this requirement applies to the first phase only, not subsequent phases). Furthermore, a phase cannot be registered until all facilities and services have been installed as required by the municipality to ensure  the phase being added to the condominium can function properly even if the planned additional phases are never added to the condominium.


Phase Disclosure

There are specific disclosure provisions for phased condominiums. Section 147 of the Act requires that all purchasers be provided with disclosure statements which provide specific information on phasing, including whether the declarant intends to create one or more further phases, the projected timing of registration of subsequent phases and details regarding units, location of buildings etc.

The Act permits the condominium corporation to apply for injunctive relief or damages if the declarant proposes certain changes to the proposed phase from what was disclosed in the disclosure statement which are “material and detrimental”.  This type of application could result in significant delays for a declarant, and as such a declarant  who is uncertain about future plans for future phases should fairly and completely disclose all options for the project that the declarant is considering in its disclosure statement to purchasers to reduce the chances of this complication.

A successful injunction application by a condominium corporation does not necessarily preclude the registration of the proposed phase.   It may simply mean the proposed phase will have to proceed as a separate condominium.  The approval authority may have concerns with this result but if the declarant has carefully drafted the condominium documents with proper cross easements between the registered condominium and the lands being held for future phases the problem should not be insurmountable.

Take Home: Pros and Cons of Phased Condominium Plans

The most substantial benefit of a phased condominium plan is that phasing eliminates the requirement to have all proposed buildings in a standard condominium plan completed before the condominium plan can be registered.  This allows a builder to build and close units in segments (and get proceeds of these sales) rather than having to wait for all of the proposed units in the condominium to be constructed before registering the condominium plan and transferring title to purchasers, allowing the declarant to start paying down their construction loan.  This can dramatically reduce the amount of the declarant builder’s construction loan as he or she is only borrowing enough at any one time to build part of the proposed development.

A phased condominium can allow a declarant to post less security with Tarion.   Rather than having to post security for the whole development (possibly at $20,000 per unit), the declarant is only required to post security for the units in the proposed phase.  This is subject to the declarant not entering into any agreement of purchase and sale for units in phases not covered by Tarion.

The only significant drawback  associated with phased condominiums is increased costs on multiple fronts for each phase due to the costs related to the registration of multiple phases, including application and approval fees, planner, lawyer, engineer and surveyor fees.

Finally, the individual unit sales agreements cannot be closed until the unit is built and registered within the condominium. As such, in order to justify the costs associated with each new phase, a sufficient number of agreements of purchase and sale need to have been entered into for the proposed units in the new phase. However, it often makes more financial and practical sense to create a phased condominium instead of multiple condominiums.

Choosing a Condo Plan That is Right for You – Part 2: Standard Condominiums

Post by: Carly Haynes

Standard Condominium Plans

Our previous blog post offered an introduction to vacant land condominium plans.  In this post we will examine standard condominium plans.

What is a Standard Condominium Plan?

A standard condominium plan is the traditional form of condominium that people tend to be most familiar with. Under previous condominium legislation in Ontario, only standard condominium plans could be created, as such, all condominium plans registered prior to May 5 2001 are standard condominiums.  Under Ontario’s new legislation, the  Condominium Act 1998 (“the Act”), a standard condominium plan is any condominium that is neither a leasehold condominium, nor any of the other types of freehold condominiums provided for in the Act (for example: common elements condominiums or vacant land condominiums).

Defining something by what it is not may not be very helpful, so what exactly is a standard condominium?

This type of condominium plan is typically comprised of completed buildings which are made up of units and common elements.  Some common elements, for example patios attached to the units, may be deemed exclusive use portions of the common elements, meaning that use of those spaces is reserved for specific unit owners only.  Other common elements may include exercise rooms, recreational facilities, roadways, green space and walkways. Notably, some units in a standard condominium can be left empty at the time of condominium registration, such as parking units, or units intended for commercial or industrial (not residential) use.

Finally, prior to the registration of a standard condominium plan all proposed buildings within the plan must be constructed to the level required by the Act regulations, which is also what forms the basis of “Schedule G” of a standard condominium plan.  Schedule G includes an engineer’s or architect’s certificate (or combination), as to the status of the construction of the condominium’s buildings. A completed Schedule G must be included as part of the condominium declaration in order for the declaration to be registered along with the description plans.


Why Develop a Standard Condominium Plan?

One benefit of standard condominiums is that proposed standard condominium units can be marketed to potential unit purchasers prior to obtaining draft plan approval from the approval authority (this is also the case with common elements condominiums and phased condominiums).

Also, pursuant to the regulations, the municipality is not required to provide notice of a public meeting for the approval of a standard condominium plan to the surrounding community nor is any circulation to any agencies required. This factor may increase the efficiency of the development.

The Downside of Standard Condominium Plans

The buildings in a standard condominium plan must all be built at one time, without phasing, therefore substantial construction capital may be necessary at the outset of a project, especially if marketing of the units is slow. Phasing the condominium plan offers a solution to this issue, and will be discussed in the following blog.

Finally, pursuant to the Tarion New Home Warranties Act a developer is required to post security to enroll the condominium in Tarion. Registration with Tarion must occur at least 30 (thirty) days before construction begins.

In our next blog post, we will discuss phasing of  standard condominium plans.

Choosing a Condo Plan That is Right For You- Part 1 : Vacant Land Condominiums

Post by: Carly Haynes

Ontario’s Condominium Act, 1998( “the Act”) provides for different types of condominiums, which in turn allows developers to utilize a condominium plan which is best suited to their needs. These variations include vacant land, leasehold, common elements and standard condominiums.  Only standard condominiums can be phased although there is hope the 002ability to phase condominium plans will be extended to other types of condominium in the expected updates to the Act.  The type of condominium development undertaken by a developer will vary based on a range of factors including the type of interest held in the land, intended future use and development plans.  It is important to be aware of the various positive and limiting aspects of each form of condominium when undertaking a development project in order to insure an efficient and successful project.

Vacant Land Condominium Plan

A vacant land condominium plan (“VLCP”) refers to a condominium plan that contains at least one unit with no structures on it at the time of registration of the declaration and description (the documents that are registered to create the condominium).

A VLCP allows the condominium plan to be registered on the land before structures are constructed on all of the units. In other words, what usually presents as a vacant “lot” is the unit, and the common elements are made up of any other parts of the plan outside the units such as for example, roads, visitor parking, sewers, recreational facilities etc.

Pursuant to the Act, the following qualifications must be met in order to register as a VLCP:

1.         No unit in a VLCP can be part of a building;

2.         If at the time of registration of the condominium, a unit in the VLCP contains any structure, the structure must be within the boundaries of the unit and cannot “straddle” a unit boundary. For example, a foundation for a town home block cannot be in place at the time of the registration of the vacant land condominium plan as it would constitute a structure crossing a unit boundary; and

3.         Units in a VLCP cannot be stratified. This restriction does not preclude the construction of multi storey buildings on units in a VLCP.  Rather, it prevents having units above or below each other.

VLCPs are generally intended for the development of units containing single buildings, whether they happen to be residential, commercial or industrial.    However, town homes can be constructed on a vacant condominium plan.  The foundations cannot be put in place until after condominium registration because of wording in the regulations to the Act.

If there are incomplete common elements at the time of condominium registration the municipal approval authority may allow the condominium plan to be registered but the approval authority is obligated to take sufficient security from the developer to ensure the common elements will be completed at a later date.

Money Matters

As any experienced developer will tell you, Tarion New Home Warranty enrollment fees for condominium projects represent a significant cost for residential developments.  Tarion can require security of up to $20,000.00 for each proposed condominium in a standard condominium plan.  The good news in regards to VLCPs is that Tarion treats these condominium units as a freehold homes, therefore no Tarion security is necessary for the common elements in the condominium. That being said, while Tarion doesn’t provide any warranty on the common elements of a VLCP, it will in almost all cases continue to apply to the new homes which are constructed on the units.

Upon completion of construction of the buildings on the condominium units, maintenance and repair obligations regarding each unit fall to the owners of the unit, not the condominium corporation.  The Act prohibits the condominium from doing any maintenance or repairs with respect to a vacant land condominium unit unless the owner fails to do so.

The Act also makes all insurance obligations with respect to the unit the responsibility of the unit owner.  While the unit owners are responsible for the units themselves, the vacant land condominium corporation remains responsible for the common elements.

Take Home

Positive aspects of VLCPs include:

  • registering the whole condominium at one time, prior to building
  • sales agreements for new homes on a VLCP can be closed as soon as construction is completed because the unit is already registered within the condominium; and   The builder does not have to wait for condominium registration or a phase to register.
  • developers are not required to post security to Tarion to enroll the condominium in Tarion.

The downsides of a VLCP include:

  • certain municipalities may be wary about foundation walls being situated on lot lines (see requirement #2 above) after condominium registration .
  • all units must be registered at once, and once registered the lot and parcel sizes are fixed;
  • no sales agreements can be finalized until the draft plan of approval of the proposed condominium is complete and construction cannot begin for any structure (such as town home) that will straddle a unit boundary until the condominium plan is registered, meaning all conditions placed on the draft plan must be met prior to such construction.  Single family home construction that will not straddle a unit boundary is not affected by this restriction. ; and
  • the inability of the condominium to insure any part of the units may result in the buildings having inadequate insurance which can result in serious repercussion in the event of a fire or other damage particularly if the units are semi-detached homes or townhomes.

In Part Two of this blog series we will discuss the pros and cons of standard phased condominiums.

Development Charges Season

Post by: Craig Robson

Many municipalities in Ontario are currently undergoing a review of their development charges bylaws for 2014 implementation.

Anyone who is involved in real estate development should be paying careful attention to these reviews.

It is not unusual for a developer to determine that provisions in a development charges bylaw are not as favourable to that developer as they could or ought to have been.  For example, a few missing words in a definition within the bylaw can defeat a right to claim certain exemptions or credits.

Now is the time to be reviewing any definitions in a proposed development charges bylaw which may affect your development and to try to have those definitions “tweaked” as necessary to accommodate the developments you may be undertaking during the life of the bylaw (usually five years).

If nothing else, you should be keeping an eye on the proposed amounts of the development charges so that if the charges are increasing you can attempt to take out any requisite building permits to fix the amount of the charges at the old rates prior to the implementation of the new rates.

In addition, if there are any capital works which your proposed development may need in order to proceed, such as for example, a road or trunk sewer, a careful review of the background study relevant to the proposed bylaw should be undertaken.

You should attempt to ensure that all necessary capital works, to the extent any of them could be considered to be “growth related”, are:

  • shown as included in the capital works to be completed within the background study relating to the new bylaw; and,
  • that such capital works are scheduled to be completed within a timeframe which will accommodate your proposed development.

Otherwise, you could be faced with the prospect of having to either delay your development or, if the municipality will allow you to do so, pay the cost of the capital works without any guarantee of reimbursement.  Even if the municipality is inclined to reimburse you for the cost of any capital works that you undertake on its behalf, there may be difficulty in completing such arrangements if the proposed capital works are not contemplated by the background study that gives rise to the final development charge amounts in the bylaw.