Strata Plan Types, Styles and Uses
There are two types of strata plan: one subdivides buildings and the other subdivides land.
Building Strata Plans
Strata developments often involve buildings. Developers create these projects by constructing a new building or converting an old one (often called a conversion) into strata ownership. 1 In each case, the strata plan divides the building into two or more strata lots with common property. Unless the strata plan shows something to the contrary, the boundary of a strata lot in a building is the midway point inside each wall, floor or ceiling that separates that strata lot from the rest of the development. 2
One might think this strata plan would be called a building strata plan, but that is not the case. The formal name for this document is a strata plan. Informally, however, some persons call this type of strata plan a building strata plan.
Bare Land Strata Plans
Strata plans that subdivide land are called bare land strata plans. In addition to the Strata Property Act, the Bare Land Strata Regulations regulate the circumstances where land may be subdivided into strata lots and common property. 3
The boundaries of a bare land strata lot exist in the horizontal plane by reference to survey markers, as shown in the strata plan, 4 in the same way a standard subdivided lot is identified. An important difference between a standard subdivision of land into lots and the subdivision of the land into bare land strata lots is the presence of common property in the bare land strata plan.
Buildings may be constructed on a bare land strata development after the strata plan is filed, or the land being divided may include buildings. Despite the presence of buildings, the development remains a bare land strata development. When looking at a strata development from the sidewalk, it can be difficult to tell if it was created with a building strata plan or a bare land strata plan. The only sure way to know is to look at the strata plan filed in the Land Title Office. The regulations require that a plan clearly state if it is a bare land strata plan. This statement must appear adjacent to the signature of the approving officer who approves the plan. 5 This signature typically appears on the first page of the strata plan.
Some developers use the bare land strata concept very creatively. For instance, the author has heard of a marina development where the developer proposes to stratify the dock to create boat slips as bare land strata lots.
Strata developments exist in a wide assortment of sizes and styles. The variety is endless. For example, one stratified building may exist as 30-story high-rise apartment building while another is a two unit strata duplex. One bare land strata development may be a recreational development with 300 bare land strata lots while another is an industrial park with ten bare land strata lots.
Strata lots within buildings and bare land strata lots are developed for every purpose for which buildings or land can be used. Strata developments may be used exclusively for residential purposes, or they may be used exclusively for a commercial, industrial or recreational purpose. In some cases, a development may include both residential and commercial units. Such a development is commonly called a mixed-use development.
Whether a strata lot is characterized in a strata plan as residential or non-residential does not necessarily determine the permissible use of the strata lot. A zoning bylaw, or a building scheme or other feature registered against title to a strata lot, may conflict with a strata plan description of residential or non-residential, as the case may be. For example, in Winchester Resorts Inc. v. Strata Plan KAS2188, the strata plan said that it was entirely for residential use. 6 The strata development’s bylaws prohibited the use of a strata lot for commercial purposes, excepting agricultural uses. An owner wished to build fishing lodges for paying guests on the owner’s several strata lots. Both the zoning bylaw and a building scheme registered against title to the strata lots permitted their use as a fishing lodge. Although a fishing lodge was not a residential use, the court permitted the owner to build fishing lodges because the building scheme prevailed. 7 If the permissible use of strata lots in a strata plan is important to the buyer of a strata lot, then he or she should obtain legal advice on the matter before committing to the purchase.
Land can be developed as a bare land strata plan for a variety of purposes. For example, suppose a developer owns a large piece of recreational land. The developer may subdivide the land into bare land strata lots and common property. The developer will likely provide various facilities in the common property, such as roads, tennis courts, barbecue sites and so on. The purchaser of a bare land strata lot may build a cottage on his or her lot. There may be requirements in the bylaws, or a building scheme, to ensure uniform standards of construction among the cottages. The owners 8 of the bare land strata lots will share the use of the common property and the expense of maintaining it.
A manufactured home park may be another good example of a bare land strata plan. Some manufactured home parks are bare land strata developments where strata lots serve as pads for manufactured homes. Ownership of a pad entitles the owner to put his or her manufactured home on it. An owner owns his or her pad and shares in the ownership and maintenance of common property areas, such as roads and recreational facilities in the park.
Air Space Strata Plans
At common law, a landowner has the right to control the air space above his or her land to the extent the owner may reasonably use it. The owner’s right to control the air space is subject to statutory restrictions for zoning, aviation and the like. A landowner may create one or more air space parcels above his or her land by depositing a survey of that air space (called an air space plan) at the Land Title Office. 9 The title to each air space parcel may then be dealt with separately from other parcels of land.
Since an air space parcel is treated as land, a building may be constructed within the air space parcel, and then a strata plan deposited in respect of it. The strata plan subdivides the building in the air space parcel into strata lots with common property. 10 The stratified air space building sits over top of the supporting property below.
If the landowner keeps the underlying land but permits someone else to occupy the air space parcel, he or she is sometimes called the “remainderman.”
Developers have used the air space parcel concept very creatively. 11
Virtually every air space development involves construction of a strata building over top of land or buildings owned by the developer as remainderman. It is very important to ensure there are appropriate arrangements to compel the remainderman to maintain the necessary physical support and related services to the air space parcel, even if the remainderman’s property suffers damage.
In each air space strata development, there should be one or more written agreements between the strata corporation, as the occupier of the air space, and the remainderman, who is likely the developer. These agreements deal with obligations of support, access, provision of utilities, insurance and other important matters. 12
The owner of an air space strata lot must be familiar with the relevant agreements between the strata corporation and the remainderman. Since these agreements are usually complex, an owner should obtain legal advice when reviewing such agreements.
- In the case of a conversion, the building must be previously occupied before the authorities may approve the building strata plan: Burton et al. v. Harris et al., 2003 BCSC 523. ↩
- Strata Property Act, s. 68. ↩
- Bare Land Strata Regulations, B.C. Reg. 75/78. ↩
- Strata Property Act, s. 68. ↩
- Strata Property Act, s. 243; Bare Land Strata Regulations, s. 18. ↩
- Winchester Resorts Inc. v. Strata Plan KAS 2188, 2002 BCSC 1165. ↩
- See also Kornfeld v. Intrawest Corporation et al., 2005 BCSC 1187. ↩
- The Strata Property Act, s. 1(1) defines the term owner to mean a person who is the registered owner of the fee simple interest in a strata lot in a Land Title Office or, in the case of a leasehold strata plan, a person who is registered as the leasehold tenant of the strata lot. For more information about an owner, see Chapter 8, Members. ↩
- Land Title Act, R.S.B.C. 1996, c. 250, Part 9. ↩
- Land Title Act, ss. 3 and 141; Strata Property Act, s. 240. ↩
- See, for example, Christine S. K. Elliott and Eleanor M. Hart, “Mixed-Use Condominium Developments & Parking in a Strata Development” Real Estate–1998 Update (Vancouver: Continuing Legal Education Society of British Columbia, 1998). ↩
- For information about the insurance considerations in such agreements, see Chapter 16, Insurance. ↩