Airspace strata plans

At common law, a property owner has the right to control the airspace over the land they own, subject to zoning, aviation, and similar legal restrictions.. As such, owners can create one or more parcels of airspace on top of their land. Once this is done, the title of each airspace parcel can be treated separately from the other titles. Since a parcel of airspace is treated as land, it can be subdivided into strata lots with common property.

The vertical division of real estate is based on the legal conception of land as a volume of space with unlimited height and depth. As construction density increases in urban areas, fewer sites are available for new construction and land values ​​rise. This trend has produced a growing interest in developing air rights. The concept of land as a three-dimensional entity underlies the land title scheme virtually everywhere in North America, allowing parcels of airspace to be created, transferred, mortgaged, leased, and subdivided.

Since airspace parcels still have a physical relationship to land because airspace rights are part of the land and land ownership, the Land Titling Law (in British Columbia), as well as other statutes, allow landowners to treat their airspace as if it were land by filing a survey of the airspace over their land with the Land Title Office. Such a survey is called an ‘Airspace Plan’. If the owner keeps the underlying land but allows someone else to occupy the airspace parcel, it becomes what is commonly known as a ‘remnant’.

Developers have used the airspace parcel concept to build mixed-use strata projects. This method is typically used when the same structure contains different uses. In effect, developers create different parcels of airspace to contain single-use strata development. In this way, the same complex may contain one or more separate strata planes, each with a different use. For example, one strata development may be residential while another is commercial. Although they share the same complex, each strata corporation controls a separate portion of the structure.

Virtually all airspace developments involve the construction of a strata building on land or buildings owned by the developer as remnant. It is very important to ensure that appropriate arrangements are in place to oblige the remainder to maintain the necessary physical support and services related to the parcel of airspace, even if the property of the remainder is damaged. The primary concern is that the unregulated creation and sale of such vacant airspace strata lots, at a future date, through fraud or financial hardship by a developer, will result in buyers of such lots being left behind. with lots of vacant airspace strata that have little value. , since the contracted building will not be built or completed.

In each airspace strata development, moreover, there must be one or more written agreements between the strata corporation as occupant of the airspace and the rest, which is likely to be the developer. These agreements deal with obligations of support, access, provision of public services, insurance and other important matters. Finally, the owner of a strata lot of airspace must be familiar with the relevant agreements between the strata corporation and the rest. Since these agreements are often complex, the owner should obtain legal advice when reviewing such agreements.

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