The Ontario Court of Appeal recently quoted with approval a decision of the House of Lords (Melluish). In this case, a company leased plant and machinery (including central heating equipment) to a housing authority for installation in its subsidized townhouses which were then leased to tenants.
The Court of Appeal considered this case when making its decision in the City of Mississauga v. GTAA.
The equipment leases between the company and the owner/landlord provided that the leased equipment would remain personal or moveable property that the company would continue to own it, notwithstanding that the equipment might have become affixed to any land or building. Apparently, the purpose of this specific statement was to ensure that the company could depreciate the equipment for tax purposes and could repossess the equipment, if required.
The House of Lords confirmed that the equipment had indeed become a fixture, and that the taxpayer company could not claim depreciation, because the equipment had become attached to the land and was therefore, in law, owned by the housing authority, notwithstanding any agreement between the parties to the contrary.
Lord Browne-Wilkinson held as follows:
• The equipment in these cases was attached to the land in such a manner that, to all outward appearance, it formed part of the land and was intended to do so.
• Such fixtures are, in law, owned by the owner of the land. It was suggested in argument that this result did not follow if it could be demonstrated that, as between the owner of the land and the person fixing the chattel to it, there was a common intention that the chattel should not belong to the owner of the land.
It was said that clause 3.10 of the master lease disclosed such an intention in the present cases…
• ….. the intention of the parties as to the ownership of the chattels fixed to the land is only material so far as such intention can be presumed from the degree and object of annexation.
• The terms expressly or implicitly agreed between the fixer of the chattel and the owner of the land cannot affect the determination of the question whether, in law, the chattel has become a fixture and therefore in law belongs to the owner of the soil….
• The terms of such agreement will regulate the contractual rights to sever the chattel from the land as between the parties to the contract and, where an equitable right is conferred by the contract, as against certain third parties.
• But such agreement cannot prevent the chattel, once fixed, becoming in law part of the land and as such owned by the owner of the land so long as it remains fixed.
The Courts in Canada have followed these same common law principles. If a chattel becomes a fixture by reason of its affixation or annexation to the lands, then it is to be treated by all third parties as a fixture. The third parties have no notice of the private deal between the landlord and tenant, and they don’t have to follow it.
As far as taxation, by-laws, bankruptcy and priorities, the law of real property will prevail. The lease is interesting but not relevant.
Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Coldwell Banker Innovators Realty
The Honourable Diane Finley, Minister of Human Resources and Skills Development Canada and Minister Responsible for Canada Mortgage and Housing Corporation (CMHC), today announced 17 new grants that will improve housing affordability for Canadians. The grants, totalling more than $84,000, are being awarded under CMHC’s Affordability and Choice Today (ACT) Initiative.
“The Government of Canada recognizes that streamlining approvals enables housing projects to avoid costly delays,” said Minister Finley. “By reducing red-tape and eliminating hurdles in planning and building regulations, these ACT grants will result in changes that will make housing more affordable and provide more housing options for Canadians.”
Operating since 1990, ACT provides grants up to $5,000, to local teams made up of municipalities, builders and housing stakeholders who promote the improvement of planning and building regulations in their communities to lower the cost of housing. ACT also offers a wealth of proven best practices and lessons learned so that communities can benefit from the innovations of others.
ACT is funded by CMHC and administered and delivered by the Federation of Canadian Municipalities (FCM), with the participation of the Canadian Home Builders’ Association (CHBA) and the Canadian Housing and Renewal Association (CHRA).
“ACT enables municipalities, home builders and housing groups to work together on regulatory reforms that support innovation. This results in tangible actions that improve housing affordability and choice,” stated FCM President Basil Stewart.
“Non-profit housing groups can benefit from the experiences of ACT project teams in addressing housing needs in their communities,” added CHRA President David Eddy.
“ACT grants support solutions that the home building industry and municipalities across Canada can use to expand housing affordability and choice, such as secondary suites.” said CHBA President Gary Friend. “ACT shares these regulatory reform solutions across the country so that others can benefit from them.”
As Canada’s national housing agency, CMHC draws on more than 60 years of experience to help Canadians access a variety of quality, environmentally sustainable, and affordable homes — homes that will continue to create vibrant, healthy communities and cities across the country.
For further information please contact:
Michelle Bakos
Press Secretary
Office of Minister Finley
Tel.: 819-994-2482
Kristen Scheel,
Senior Media Relations Officer
CMHC-SCHL
Tel.: 613-748-2799
ACT Grant Recipients — June 2009
Affordable Housing Now — Designing Secondary Suites: Safe N’Sound Residence, Owen Sound, Ontario
A $5,000 grant to host an information booth showcasing design options for secondary suites at a local Home Expo, followed by a seminar-style workshop specifically geared to help interested homeowners move forward with secondary-suite construction projects.
Flexible Housing Suites in Affordable Townhouses: City of Abbotsford, B.C.
A $5,000 grant to host two workshops where municipalities with recent experience and communities with an interest in promoting flexible housing will be invited to attend. The City of Abbotsford is partnering with CMHC and Habitat for Humanity to build a flexible housing pilot project consisting of 12 to 14 townhouses, six of which would be designed and built with a secondary suite. This pilot project will look at the feasibility of more widely permitting secondary suites in townhouse units and at relaxing parking requirements. It will also introduce agreements to protect both the use and long-term affordability of the housing units.
Secondary Suites — Public Education Program: City of Victoria, B.C.
A $5,000 grant to offer a one-day open house at City Hall where residents can bring in their plans for secondary suites and be briefed on the regulatory process. It is intended that one-on-one discussions will provide greater clarity on what it takes to create secondary suites. The ACT grant will be used to plan and promote the open house, to communicate the regulatory changes and the financial incentive program to residents.
Workshop on Sustainable Communities and Housing: Town of Calmar, Alberta
A $5,000 grant to host a two-day workshop on affordable housing and community revitalization to discuss new ideas and rethink current policies and bylaws to develop more sustainably, and create more affordable housing.
Secondary Suites as an Affordable Housing Option: City of Prince Albert, Saskatchewan
A $5,000 grant to amend the zoning bylaw to allow secondary suites in all neighbourhoods of Prince Albert. The grant will be used to hold public consultation meetings on rezoning to permit secondary suites. It will also be used to do a city-wide education campaign to promote the value of secondary suites and inform residents of the building and fire requirements.
Water on the Ground: Water Efficiency Planning Workshop: POLIS Project on Ecological Governance, University of Victoria, B.C.
A $4,860 grant to develop and deliver a workshop for municipal staff to discuss water conservation planning and the regulatory barriers the building industry faces in implementing water efficiency technologies, including development charges and permit processes. Removing these barriers will potentially defer or avoid increased water infrastructure capital costs and reduce housing costs.
Legalizing Secondary Suites: City of Dawson Creek, B.C.
A $4,900 grant to hold a workshop with developers and community organizations to explore different regulatory options for enhancing affordability through legalization of basement suites and/or laneway housing. The project also aims to develop a secondary-suite bylaw that would be tailored to Dawson Creek.
Development Information Manual: City of Temiskaming Shores, Ontario
A $5,000 grant to prepare a Development Manual consolidating development application requirements and user-friendly guides for development within the City of Temiskaming Shores. This project will streamline the development application process within the City.
Kaslo and Area Affordable Housing Strategy: North Kootenay Lake Community Services Society, Kaslo, B.C. A $5,000 grant to hold a workshop and a forum to explore options for creating policies to increase the affordable housing stock in Kaslo where the demand for vacation homes inflates housing prices and reduces housing availability for year-long residents. The project will look at how village-owned property can be utilized to improve housing affordability and availability.
Downtown Revitalization: Georgian Triangle Housing Resource Centre, Collingwood, Ontario
A $5,000 grant to hold a series of three workshops to encourage the creation of affordable rental housing in the unused space above commercial units within the downtown core of Collingwood. The project will examine the implications of the restrictive zoning bylaw regarding residential use above commercial space and solutions to regulatory barriers.
Sustainable Community Design for Subdivisions: Association of Municipal Administrators of New Brunswick, Fredericton, N.B.
A $5,000 grant to make on-line training modules available on conservation subdivision design. This project will expand audience outreach and help promote the implementation of conservation design where development is clustered in 50 per cent of the buildable area, protecting open space and reducing infrastructure and housing costs.
Capturing Condo Units for Affordable Housing: Kehilla Residential Program, Toronto, Ontario
A $5,000 grant to document, hold a workshop and present a recommendation for regulatory reform using the success of a project in Toronto. In this project, a developer received permission for extra density by transferring four condo units to a non-profit corporation, which will retain ownership of the units and keep the rents affordable in perpetuity.
Cortes Housing Initiative: Friends of Cortes Island, Cortes Island, B.C.
A $5,000 grant to hold a community workshop to look at changing the zoning to allow multi-family dwellings, cluster housing and land trusts. The changes aim to help over 30 families and 15 individuals who have housing during the winter months of September through May, but are camping from June to August when summer cottage owners return to the island.
Housing in Accessible Communities: SPARC BC Society, Burnaby, B.C.
A $5,000 grant to host a workshop for municipal staff and elected officials to provide a set of tools to build more accessible and inclusive communities. The workshop will present model bylaws, policy position and standards of adaptability and of universal design that municipalities can adopt to provide a regulatory framework to support accessible communities.
Farm Worker Housing Policy Review: Community Council, Victoria, B.C.
A $5,000 grant to undertake a review of farm worker housing policies and draft recommendations for the establishment of clear criteria to evaluate proposals for farm worker housing. The project aims to expand affordable housing choice for farm workers in the District of Central Saanich.
Development Services Workshop for Industry: Greater Vancouver Home Builders’ Association, Vancouver, B.C.
A $4,450 grant to host a forum on municipal planning processes and procedures to improve the working relationship between the residential construction industry and municipal staff. The goal is to have faster project approvals and subsequent project cost-savings for the consumer.
Renovation and Redevelopment: Get Ready Homeowners: City of Vancouver, B.C.
A $5,000 grant to hold two day-long information workshops aimed at homeowners who are planning a renovation or redevelopment. The workshops will focus on new land-use options emerging as part of the City’s EcoDensity strategy, such as laneway rental housing and use of basements for housing.
Backgrounder
Affordability and Choice Today (ACT)
Regulatory reform is a major concern to home builders and non-profit organizations looking for new ways to make housing more affordable. Municipalities also want to modify their regulations and update their procedures to make service delivery more efficient, while enhancing their community’s quality of life.
The Affordability and Choice Today (ACT) Initiative was created in 1990 to address these issues by funding and promoting practical solutions at the local level that overcome planning and building regulatory barriers to the development of affordable housing. ACT has documented these ideas in case studies and information sheets that can be downloaded from ACT’s website. This information is promoted at workshops, conferences and other events.
ACT provides grants of up to $5,000 to local teams made up of municipalities, private and non-profit home builders and other housing stakeholders. These teams use the grants to promote or initiate regulatory reform in their communities, aimed at increasing housing affordability and offering housing options that meet the community’s needs. Eligible projects must include a specific activity or product, such as a stakeholder consultation, survey, background research, workshop, open house or promotional material.
The initiative is funded by Canada Mortgage and Housing Corporation (CMHC) and administered and delivered by the Federation of Canadian Municipalities (FCM) with the participation of the Canadian Home Builders’ Association (CHBA), and the Canadian Housing and Renewal Association (CHRA).
Grant applications are selected by ACT’s National Management Committee, which represents the four partners. Applications can be submitted at any time.
With 158 projects complete, ACT has a rich database of solutions that local partners can benefit from in their future housing projects. Solution sheets and case studies from previously completed ACT grants are available on the website www.actprogram.com. Recently completed projects include:
New Plan Reflects Northern City’s Unique Character: City of Iqaluit, Nunavut Territory
A Plan to Regulate Residential Construction and Renovation: Atlantic Home Building and Renovation Sector Council, Nova Scotia
Developing Laneway Housing: Terence Van Elslander and Jeffery Stinson, Architects, Toronto, ON
Flex-Plex Housing: Industry-Municipal Partnership for Innovation: CHBA, Victoria, BC
Task Force Charts New Path to Affordable Housing: City of Kelowna, BC
Financing Conversion of an Institutional Building to Affordable, Accessible Apartments: Regional Municipality of York, Ontario
Sustainable Aboriginal Demonstration Project Challenges Traditional Practices: Julia Bourke Architecture Inc., Montreal, Quebec
Neighbourhood Infill Housing for Whistler’s Resident Workforce: Resort Municipality of Whistler, BC
Building Code Options Reduce Renovation Costs for Inner-City Housing: New Life Ministries, Winnipeg, Manitoba
CFC CEO Moishe Alexander reports: Low-income urban singles and families will have greater access to affordable housing with the official opening of a 23-unit development on Jackson Avenue and Cordova Street thanks to help from residents and funding from the Government of Canada, Province of B.C. and City of Vancouver.
“The Government of Canada is committed to making affordable housing available in British Columbia and across Canada for those who need it most,” said Diane Finley, Minister of Human Resources and Skills Development Canada and Minister responsible for Canada Mortgage and Housing Corporation. “The creation of these homes will provide low-income singles and families with access to quality, affordable housing, and help them move forward in their lives.”
The Government of Canada, through the Canada Mortgage and Housing Corporation (CMHC), provided $400,000 under the Residential Rehabilitation Assistance Program, which offers financial assistance to low-income homeowners for mandatory home repairs that preserve the quality of affordable housing.
“Secure and affordable housing is a fundamental part of a healthy community,” said Rich Coleman, Minister of Housing and Social Development. “The residents here at Jackson Avenue knew we needed affordable housing for low-income people in their community and they stepped up to provide it by partnering with various organizations. It really is a great achievement.”
The Province provided a one-time grant of close to $522,000 and 35-year mortgage financing of approximately $308,000 through Community Partnership Initiatives (CPI). Through CPI, the Province partners with municipalities, non-profit societies and other community groups to implement innovative strategies that create more affordable housing for people in need.
The City of Vancouver provided a $200,000 land write-down and a $200,000 grant through a private donation to the City for the development.
“We are committed to finding partnerships to help provide safe, affordable housing in our City,” said Vancouver Mayor Gregor Robertson. “By working together to provide stable housing solutions for low-income residents, we are part of an innovative partnership that is making sure everyone has a place to live.”
The Jackson Avenue Housing Co-operative renovated the four two-storey buildings, which include 19 housekeeping/sleeping units, three two-bedroom units and one five-bedroom unit. The co-op has for the past 12 years regularly provided meals to 30 to 40 people, both residents of the co-op and from the surrounding community. The renovations to the new community kitchen have greatly improved their efforts, Moishe Alexander says.
“Our society has been working to provide affordable, safe and supportive housing, helping families to remain in this community,” said Kathy Walker, one of the founding members of the Jackson Avenue Housing Co-operative. “The opening of these four houses is a real milestone in our mission to create and operate non-profit housing for families in the Vancouver Downtown Eastside. We hope that our work and vision will challenge and encourage our government to fulfil its role to alleviate homelessness and also to improve the quality of housing that exists.”
In 2009/10, the Province’s budget for affordable housing and shelters is $469 million, more than four times as much as in 2001. A comprehensive overview of provincial housing programs and services to address homelessness can be viewed at www.bchousing.org/breakingthecycle.
Canada Mortgage and Housing Corporation has been Canada’s national housing agency for more than 60 years. CMHC is committed to helping Canadians access a wide choice of quality, affordable homes, while making vibrant, healthy communities and cities a reality across the country.
Last fall, the Government of Canada committed more than $1.9 billion over the next five years to improve and build new affordable housing and to help the homeless. Canada’s Economic Action Plan builds on this with an additional one-time investment of more than $2 billion over two years in new and existing social housing and lending of up to $2 billion for housing-related infrastructure.