The concept of privately owned, publicly accessible spaces (POPS) received some attention recently when workers at Sweet Jesus, a local chain of popular soft-serve ice cream shops, enclosed the area outside of its John Street location to create a patio for customers. Although owner Andrew Richmond said that he obtained a permit from the City of Toronto, this was not the issue for many people. Rather, their concern was that the area in question was designated as a POPS when the building next to the patio area was developed.
As it explains on its website, the City of Toronto uses the POPS designation “to create new parks and open spaces.” It does so as part of its powers under the Planning Act to obtain community benefits in exchange for providing development approval for a project. Let’s say that a developer wants to construct a new condominium building, which will typically require a site-specific zoning by-law to allow the height and density of construction that the developer is proposing. The City will often, as a condition of approving the proposed development, require the developer to provide something that benefits the community. This could include things like public artwork, a park area or a POPS.
When a POPS is included in a condominium development, the land in question will typically be part of the condominium property, but access to the public will often be secured by easements or other agreements that are registered on title to the property. The result of this is that members of the public will have the right to use the space regardless of whether they live in, or are visiting anyone who lives in, the condominium building (subject to conditions on hours of access and compliance with municipal by-laws). The condominium corporation will typically have the responsibility for maintaining the area.
This can carry some implications for a condominium corporation that has a POPS on its property. First, that responsibility to undertake any repairs for the area could mean increased costs, as these areas would likely see more wear and tear given that they are accessible to the public. Some projects include funding from the developer to help defray the cost of maintaining these areas. If such funding is not provided, or if the funding runs out, the cost would generally be borne by the condominium corporation alone.
Secondly, a condominium corporation that has a POPS on its property could have increased exposure to liability for personal injury. At law, the occupier of property (typically the owner and/or the person with care and control of the property) has a duty to take all reasonable steps to see that people who come onto the property are kept reasonably safe. The Condominium Act provides that a condo corporation is the occupier of the common elements, which would include the building’s POPS. This means the corporation could be exposed to claims from members of the public who use the area and are injured while doing so, particularly if the injury is caused or contributed to by a failure to maintain or repair it. Although condo corporations carry occupier’s liability insurance coverage, the increased exposure to potential claims could lead to higher insurance premiums for the condominium. As with the cost of maintaining and repairing the POPS, in the absence of funding from another source, the cost of these higher insurance premiums would generally be borne by the condominium corporation alone.
Third, a condominium corporation that has a POPS on its property may have responsibilities for its day-to-day management. This could include, for example, having the corporation’s security personnel include patrolling the area in their regular responsibilities. This, too, could lead to increased costs for the condominium corporation.
To be clear, POPS are good things. They are a useful tool to allow condominium developments to better fit into the fabric of the city, and to make the city more walkable. That said, if you are considering purchasing a unit in a condominium building that has a POPS, be sure that you know what you are getting yourself into.
Timothy Duggan is a condominium lawyer and civil litigator with Horlick Levitt Di Lella LLP. Reasonable Doubt appears on Mondays. You can contact him on Twitter at @timmyd_ and tell him what you would like to read about in future columns.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Horlick Levitt Di Lella LLP or the lawyers of Horlick Levitt Di Lella LLP.
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