I am using a builder to design and build two townhouses at the rear of my block with car access to them from a ROW at the rear. My plan is to subdivide and initially sell one of the new properties, while retaining the existing house and one of the new properties. I have to provide a pathway to the front of the block from the townhouses so that they have street access for mail etc. The proposed path runs along the side of the existing house, which will remain my home. It is about 1.3 M wide and uses up all the space between my home and the fence on that side.
In order to comply with R60 open space requirements, the designer has allocated 50% of this common pathway to each of the new rear lots, as that calculation uses exclusive area plus share of common areas. Allocating just 1/3 to each of the new lots, with 1/3 to the existing house, would not meet the open space requirement.
When I asked the builder what impact that would have on me, the owner of the exiting front property, he said no impact. I can use the pathway to do maintenance or whatever I need to do at that side of the house and that I can also temporarily dig up the pathway to run plumbing to my sewer connection, which will be under that pathway, if I wanted to add a bathroom or do something like that.
I haven’t signed any contracts yet, but I am a bit worried that he may be glossing over potential issues. I intend to keep one of the new properties, but that would still only give me 50% say on what is allowed to be done on or with the path. I also want to be able to sell the other new property some time in the future without incurring the risk of preventing access for anything I might want to do on that side of the house.
Are my fears well founded and should I insist in 1/3 ownership, meeting R60 open space requirements in other ways? However, that would still only give me minority say should I sell both houses. Are there other ways of ensuring access, such as including access to the pathway in some covenant or other that potential buyers of the rear properties must sign?
Special by-law granting you exclusive access to the path. Discuss with your lawyer & surveyor prior to signing the building contract. (Have your solicitor review your construction contract if it isn't a standard form approved by either the Master Builders Assoc or RAIA.
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