By Pepper Parr
August 18, 2022
BURLINGTON, ON
Imagine this:
You decide to buy a condominium and learn, probably well after you the sale has closed, that some of the property is privately owned but it is public space – which means any Tom, Dick or Harry can use that space and you are responsible for the upkeep of the space and probably ensuring that it is safe.
The Chrysler Carriage House will be integrated into the development
The developer selling you the property will not have told you this but it will be included in the title document you get once the condominium is registered.
The lawyer you hired to handle the paper work may not know all that much about POPS
Privately owned public space (POPS), or alternatively, privately owned public open spaces (POPOS), are terms used to describe a type of public space that, although privately owned, is legally required to be open to the public under a city’s zoning ordinance or other land-use law.
Both terms can be used to represent either a singular or plural space or spaces. These spaces are usually the product of a deal between cities and private real estate developers in which cities grant valuable zoning concessions and developers provide in return privately owned public spaces in or near their buildings. Privately owned public spaces commonly include plazas, arcades, small parks, and atriums.
The term privately owned public space was popularized by Harvard professor Jerold S. Kayden through his 2000 book Privately Owned Public Space: The New York City Experience. The history of privately owned public space commenced in 1961 when New York City introduced an incentive zoning mechanism offering developers the right to build.
Between 1961 and 2000, 503 privately owned public spaces, scattered almost entirely in downtown, midtown, and upper east and west sides of New York City’s borough of Manhattan, were constructed at 320 buildings.
While privately owned public space as a term of art refers specifically to private property required to be usable by the public under zoning or similar regulatory arrangements, the phrase in its broadest sense can refer to places, like shopping malls and hotel lobbies, that are privately owned and open to the public, even if they are not legally required to be open to the public.
POPS is often referred to as Public Realm by a developer.
Let’s apply this concept to Burlington, and specifically to the Core development that is located on properties that are between Old Lakeshore Road and Lakeshore Road and the large Molinaro development that has towers on either side of Brant Street at Ghent.
That development has five POPS.
The Core development, in the words of the development justification report describes the development as having “ been shaped by a comprehensive landscape strategy that integrates high quality public realm improvements across the site.
“A significant area of privately owned, publically accessible open space is provided on the west side of the development, adjacent to the proposed tower. The 19.3 metre wide space facilitates an important view corridor down to Lake Ontario from Lakeshore Road. The open space draws people towards Burlington’s waterfront serving as a connection point, while also providing an active meeting and gathering space where the whole community can interact, relax and play.
“The open space will provide a diverse and attractive green contribution to the proposed development that softens and balances the paving and the building massing. It has been designed to allow for the future expansion of the open space when the property to the west ultimately redevelops.
“Significant public realm improvements will also be integrated along the north and south sides of the site, through significant streetscape improvements. The widening of sidewalks and new paving and tree planting will bring life to both Lakeshore Road and Old Lakeshore Road, and significantly improve the setting of the heritage building.
This rendering shows the POPS looking north from Old Lakeshore Road
“The integration of these public realm improvements will create a strong sense of place, foster social interaction and support a positive pedestrian experience. The benefits will be experienced by both the residents of the development, and Burlington’s existing residents, and contribute towards the building of healthier communities for a more sustainable future.”
All well and god but the fact of the matter is that the condominium owners are responsible for that property and all the liability that entails.
We will be writing about this in more detail going forward.
There are eight high rise developments in this photograph. Not all of them have POPS as part of the development. We have identified the eight properties; some are almost complete other are at the OLT appeal stage.
Caveat emptor a.k.a. “Buyer Beware” only applies where all the cards are on the table and the rules of the game are understood and know by all. The caveat emptor principle arises primarily from the asymmetry of information between a purchaser and a seller. The information is asymmetric because the seller tends to possess more information regarding the product than the buyer. Therefore, the buyer assumes the risks or in the case of POPS hidden or the yet to be determined true cost of ownership.
For a number of reasons Condo purchasers in the true sense of the word simply do not have access to the required information at the time of purchase.
Many would be home buyers can barely get into the housing market. POPS in the context of not-for-profit condo homeownership is discriminatory indirect taxation that penalizes a class of home-owners FULL STOP.
The Gazette says
“The developer selling you the property will not have told you this but it will be included in the title document you get once the condominium is registered.
What sort of broad unsubstantiated fear mongering statement is that?
The lawyer you hired to handle the paper work may not know all that much about POPS.”
Another sweepingly broad statement with no factual basis. When choosing a lawyer to act on one’s behalf in a condominium purchase one would likely choose a lawyer that advertises as a real estate lawyer, rather than say one who advertises as a family law lawyer, or an employment lawyer.
A couple of points for the Gazette and Ms Hersh to consider. These are born out of personal experience.
My first property here in Canada back in 1984 was a freehold condominium townhouse. I owned the townhouse from halfway through the exterior walls inwards. The townhouses were situated in a development with privately owned, publicly accessible roads. The condominium corporation (and so its members) was responsible for the maintenance and upkeep of all common and publicly accessible areas. The condominium corporation maintained liability insurance to protect it against claims emanating from a third party.
There are many similar condo corp situations here in Burlington where roads are not assumed by the City but are fully accessible by the public.
In the circumstances existing here in Burlington the City would likely reqyire it to be added to the condo corp’s liability insurance as an “additional insured”. Similarly the condo corp would seek to be added as an “additional insured” to the City’s liability insurance. Thus each is protected by the other’s insurance for claims brought by third parties due to the negligence of the other.
A couple of years ago I severed my property. As a part of the severance process the City is entitled to take 5% of the severed land area as parkland. Obviously it makes no sense for the City to accumulate small pieces of parkland scattered around the city. So it accepts 5% of the land value as cash in lieu. In my case about $40,000. The cash in lieu solution is not, as the out of touch retired planner said, only used in rare occasions. It is commonly used in land severance situations.
Now questions for both the Gazette and Ms Hersh. Has either had sight of the material that will be provided by the developer to any potential “unsuspecting” condo purchaser? Has either the Gazette or Ms Hersh reviewed the potential condo corp’s incorporation documents?
Editor’s comments:
Welcome back David: If you want an example of where people who bought property without being made aware of the prob;ems, in this case,quarry that was in their back yard you need look no further than the Meridian brick works in the Tyandaga community. Do your homework please.
Editor, thank you for the welcome back.
I’m sure there are examples of unscrupulous developers. Similarly though and I believe more prevalent are examples of developers making clear disclosure of POPs, such as at Kingston Court
As respects “homework” that was a point I was trying to make through my comment. So I’ll just say “ditto”.
POPS ( Privately Owned Public Spaces) have become the “darling” of the developers and the Municipalities. Unfortunately, the losers are those purchasing units in Condominium Developments that have incorporated these into their application in exchange for changes to zoning laws etc.
Presently there is one large POPS associated with the Core Development on Old Lakeshore Road/Lakeshore Road and Martha Street. In the proposed Molinaro Condominium development on Brant/Ghent there are presently 5 POPS included. There is also a very large POPS incorporated in the proposed Waterfront Hotel Property. If I am not mistaken this POPS will be a walkway the public can use to access Spencer Smith Park.
Imagine purchasing a unit in a building and then finding out that the condominium corporation which you are a member of is totally responsible for the upkeep and liability as well as the public having access to 24/7.
I asked a retired planner to comment on his experience with POPS and below are his comments.
”
Some background: Section 42 of the Planning Act allows a municipality to require land for parks as part of the approval of a development application. It can be land conveyance or payment-in-lieu. The City’s Parkland Dedication By-laws (By-law 57-2005 and By-law 147-1993) provide the tools to ” allow Burlington to address growth by requiring all new developments to contribute to the expansion and expansion of the park system”
The purpose is clear. New growth requires more public open space. The standards vary,but Burlington has used 1 ha for every 500 units. In my opinion, only use payment-in-lieu in rare cases. It can defeat the intent of the Planning Act. If this standard is reduced,by allowing a reduction in true public space through POPS, does the site specific by-law still conform to the Planning Act? Does the use of POPS conform with the PPS and the OP? Was the OP amended to permit it?
POPS appears to favour the developer by using private land to meet a public requirement. Is the result increased density and less public open space?
What happens if the cdm corp closes access to the open space? Does the site specific by-law prevent this?
Who is responsible for maintenance,etc? Do the new owners realize their fees may be used for public purposes?
The Zoning By-law has provisions for both public open space and Amenity Areas, or private space. Does using POPS reduce the requiement for amenity areas?
What was the process, whereby POPS was introduced? Did the public get an opportunity to discuss the implications for the City and not hidden in a specific application?
My understanding is that as a result of the changes to the legislation, Burlington is in the process of amending the Dedication By-law resulting from Bill 197,COVID Economic Recovery Act to allow for “Alternative Requirements” . On July 7th, staff submitted a report proposing changes to By-law 57-2005. ”
POPS needs to be a campaign issue that all running for council should discuss with residents when they go door to door.
To think that those selling units to unsuspecting buyers will be totally forthcoming with regard to POPS is extremely naive. Developers will include or should I say hide this information in the condominium documents that you get when purchasing a unit. Unless the potential buyer is dealing with a lawyer who practices condominium law this could not be discovered until it is too late.
The only way to stop this “disaster waiting to happen” is for council to mandate that this practice is not an acceptable one in Burlington.
As they say Buyer Beware.