By Joseph Gaetan
August 20th, 2022
BURLINGTON, ON
If you know anyone who is thinking about buying a condominium – pass this along to them. They will thank you.
Privately Owned Public Spaces, a.k.a POPS, are spaces dedicated to public use and enjoyment, which are owned and maintained by private property owners (but not all property owners in the City of Burlington, just condo owners), in exchange for bonus floor area or waivers.
POPS agreements when in place are provided by a developer but then maintained by property owners in perpetuity in accordance with the statutes, bylaws, regulations in place and pursuant to any City approvals. POPS in part are also the result of City zoning regulations aimed at ensuring the densest areas of our city also offer a measure of open public space and greenery. Thus, POPS can be important amenities for the enjoyment of Burlington citizens, and visitors.
The POPS that is to be part of the Core development located between Lakeshore Road and Old Lakeshore Road is a decision made by the developer that future residents will have to pay for.
If you have never owned a condo that has a POPS or never plan on doing do so, you may think what is the big deal anyway? Well, the big deal is, those who do own one, end up paying for something they had little input on and something that will affect their cost of living as long as they live there. The cost of the POPS will be reflected in both the common area fees (CEF’s) that owners pay on a monthly basis as well as the monthly contribution to the Reserve Fund that is put in place for major repairs and/or replacement of the POPS assets at some point in the future.
So, imagine a situation where the parking structure is buried under a POPS. In the beginning owners will be paying for basic and ongoing yard maintenance, snow removal, pruning of trees, replacement of benches and any litigation, insurance etc. Sometime in the future (as identified in the Reserve Fund but often sooner) the underground concrete slab will have to be repaired or sections replaced. But before that, all of the overburden, all the trees, all the sidewalks, everything on top of the slab will be stripped clean and taken off-site so that the remedial work can be performed.
Upon completion of the repair/remediation work, guess what, new soil will be returned to the site, new trees planted, new sidewalks poured and after 6 to 8 months of disruption the POPS will have been restored to its original design parameters. Without exaggeration this could cost the property owners millions of dollars.
When a developer turns a property over to a not-for-profit condominium corporation the common area fees and Reserve Fund allocations are grossly understated. The principal reasons for this being, there is no cost history or Reserve Fund study to base these figures upon. A condominiums first Reserve Fund study occurs during its first year of incorporation with follow-up studies every three years afterward.
Under normal circumstances per the Condominium Act 1998, upon turnover the Condominium Corporation usually has one year to cancel any contracts made by the Declarant.
Case in point, one condo in Burlington chose to cancel the Geo-Thermal, Renewal Energy Agreement put in place by the Declarant. The corporation was able to cancel the agreement and then secured a loan to purchase the system saving residents approximately $6 million dollars over a 30-year period. This option does not apply to POPS as canceling such agreements is beyond the scope of this section of the “Act.”
Below is an excerpt from an Official Plan Amendment Rezoning Application document for a development that was approved in 2008:
Conditions of Zoning Approval
“agree to grant an easement to the City for the purpose of providing public access over the (feature details redacted) containing the (feature details redacted) at the South end of the front yard, from (address details redacted) of, and pay for all costs associated with the easement including the preparation of a reference plan legally describing the location of the landscape courtyard subject to the easement; and,
“include the following warning clause in all Offers of Purchase and Sale and in the
Condominium declaration:
“purchasers/tenants are advised that the landscape courtyard containing the (redacted) at the South end of the front yard, is for public use”
POPS were invented in New York, in 1961 via a Zoning Regulation, the purpose was to find solutions to the city’s budget gaps in providing public spaces. Mobilising private funds seemed like a good way to build public infrastructure and something a city could offer that was seemingly free (i.e., public spaces, in exchange for additional housing units).
POPS have a place in the public realm and should not be discarded in totality. The use of POPS has been successfully used throughout the world (i.e., High Line NYC) but not without issues (i.e., Autumn of 2011, a small anarchist group occupied Zuccotti Park, a public plaza in Downtown New York).
All homeowners in Burlington should expect and deserve to be treated fairly and equitably. While I there is a place for POPS, such developments that create a cost burden to one class of taxpayers and not others are simply wrong. If the City of Burlington approves POPS for additional height on a particular building, or additional housing units in a development, those costs should be spread across all taxpayers within the City of Burlington.
With an election on the horizon the subject of POPS deserves attention. When a candidate asks for your support, it is fair game to ask them if they are in favour of approving developments where the POPS will place an unfair financial burden on some taxpayers (condo owners). Residents of a building that sits on .58 hectare of land, and contributes around $1 million a year in realty taxes, should not be asked to also pay more for a POPS.
Further information regarding the issues and cost effects of POPS on condo owners can be found by reading the CCI Toronto article entitled, “Privately Owned Publicly Accessible Spaces” that may be found by visiting, CCI-T-Condovoice-Spring2019-FB19.pdf (ccitoronto.org)
Related news story:
Joe Gaetan is a Burlington resident who lives in a condominium that has a POPS.
He speaks on occasion before Council on civic issues and participates in Ontario Land Tribunal matter
The purpose of the article was to highlight the fact some property owners, as a result of an agreement between the city of Burlington and a developer, will have to pay to maintain and replace assets that normally would be the responsibility of the city.
For the record,
The planning document for the development contained the statement, “purchasers/tenants are advised that the landscape courtyard containing the (redacted) at the South end of the front yard, is for public use.”
The title document contained this statement: “Unit x, level x, Halton Standard Corporation plan number XXX and its appurtenant interest; subject to easements as set out in schedule x as in HR xxxxxx; City of Burlington.”
The registered Declaration for the subject property, Schedule “A,” refers to the “easement” in favour of the City of Burlington.
The operating expenses and reserve fund implications of POPS will not be fully known or fully realized until the development is turned over. Here are a few reasons why this the case:
1 All New Condominium Reserve Fund allocations in Ontario start out underfunded.
Per the Condominium Act 1998 Act the current minimum that a developer must allocate to the Reserve Fund, before turnover is 10% of the Operating Budget that does not reflect the long-term operating costs. The first Reserve Fund study for a newly turned over condo corp must be performed with the first year of incorporation, until then prospective owners will not know the long-term costs of major repairs or replacement of POPS assets.
2 All New Condominiums In Ontario Operating Budgets also start out underfunded.
Generally speaking, a developer will continue to sell units until they reach a certain level. They then turn over the structure and operating responsibility to a non-profit condominium corporation. As mentioned, the operating costs of a condo are not fully realized until it is fully operational and has been so for 3 to 5 years. For this reason, condo owners become upset when their operating expenses increase by double digits for a number of years after turnover.
People contemplating the purchase of a pre-construction condo unit containing a POPS can follow the development as it makes its way through the planning process. The relevant information may be found in, Community Benefit Costs (CBC) pursuant to section 37 of the planning act, and in the amending bylaw, voted upon by council members and based on a recommendation from planning and that gives final approval to the development.
Within the final planning report, more information may be found in an Appendix that may also contain the conditions of the zoning approval.
POPS may not be readily identified as such but there should be enough information for a discerning, purchaser to identify the fact that a POPS will exist on the property and whether they are comfortable with such a purchase.
Hopefully, readers will recognize that buying a condominium is not as straightforward as buying other types of home ownership. With this in mind using a lawyer who understands the intricacies of condo purchases may be beneficial.
I agree with the saying “Buyer Beware”.
Unfortunately, some people who go to their lawyer with the condominium documents don’t realize that unless they are using a lawyer who specializes in condominium law the lawyer may not be aware of how this would impact the owner of the unit.
I would ask Bob if he lives in a condominium building that has a POPS? If he does, I would then ask if the real estate agent who sold him the unit made him aware of this and how it would affect him? If it was a resale was he verbally made aware of the POPS?
Most first time buyers would never even know what a POPS is and how it would impact them.
“ Condominium declaration:
“purchasers/tenants are advised that the landscape courtyard containing the (redacted) at the South end of the front yard, is for public use”
How do you figure condo owners are unaware? They sign the condo agreement upon purchase, assuming after obtaining legal advice on said agreement and if not then caveat emptor (let the buyer beware)
Most if not all condo owners do not like or want to pay to maintain non-resident perks. Thank you for this excellent and very informative article Joe.
Excellent article.
It explains in full what I have been asking councillors to rethink for over a year. NO MORE POPS.
Some developments already include these and the CORE Development project on Old Lakeshore Road/Lakeshore Road/Martha which was appealed and ended in their favour has a large POPS included. The location of this POPS will be on Lakeshore/Martha/Old Lakeshore.
The only people who benefit are the developers, certainly not the owners of the units in the condominiums who will not only have to deal with the public on their property 24/7, but also be responsible for the cost of maintaining and all liability associated with it.
Shame on the city if they felt they could take advantage of Public Space that would fall to the taxpayers who are already paying their fair share.