Schedule G Part 3: Schedule G – Municipality

Post by: Craig Robson

With respect to phased condominiums, a “Schedule G- Municipality” is required for each phase with the exception of the final phase. The legislation does not specifically exempt the last phase from having a Schedule G – Municipality but the Registry Office has accepted that because this Schedule G is speaking about future phases it makes no sense to require the Schedule on the last phase of a phased condominium.

The Initial Registration of a phased condominium is not considered a “phase” and does not require a “Schedule G- Municipality”.  There is no explanation for this omission other than it was an oversight.

The drafters of the legislation seem to have had some lapses in this part of the Act.

Regardless of the legislation’s failure to require Schedule G – Municipality for the Initial Registration of a phased condominium, it is important to be aware that knowledgeable approval authorities require engineer certification for the Initial Registration as a condition of the registration (where the issue is perhaps most likely to arise) to address the same issues noted in a Schedule G – Municipality.

The purpose of the Schedule G – Municipality is to ensure that each phase being registered is “self-sufficient” with respect to services and street access if the balance of the phases in the project do not proceed.   The legislation wants to ensure the registered phases are not cut off from required street access and services if future phases do not proceed.

The following excerpt from O. Reg. 48/01, s. 52 addresses this need for a “Schedule G- Municipality”:

 (5) The material to be added to Schedule G to the declaration is,

(a) the certificates, with respect to the land included in the phase, that subsections 5 (8) and (9) and section 6 require; and

(b) a statement from any of the municipalities in which the land included in the phase is situated, or from the Minister of Municipal Affairs and Housing if the land is not situated in a municipality, that,

(i) all facilities and services have been installed or provided as the person making the statement determines are necessary to ensure the independent operation of the corporation if no subsequent phases are created, or

(ii) a bond or other security has been posted that is sufficient to ensure the independent operation of the corporation if no subsequent phases are created. O. Reg. 48/01, s. 52 (5).

(6) The statement described in clause (5) (b) shall be signed by a person authorized to bind the municipality or the Minister making the statement. O. Reg. 48/01, s. 52 (6).

(7) For the purposes of clause 146 (11) (a) of the Act, the facilities and services covered by the bond or the security mentioned in that clause have been installed or provided when there are no facilities and services remaining to be installed or provided that the person making the statement described in clause (5) (b) determines are necessary to ensure the independent operation of the corporation if no subsequent phases are created. O. Reg. 48/01, s. 52 (7).

In our opinion, the required facilities and services in 52(5)(b)(i) above should include the obvious pipes, wires etc. for electricity, telecommunications, sanitary and storm sewers, gas (if available) and water as well as access to a municipal street/road either directly through the common elements or by way of good and sufficient easements in favour of the condominium corporation.

The Schedule G – Municipality does not have a prescribed form.

A major issue with Schedule G – Municipality is that the Condominium Act does not obligate any municipality to sign the schedule which is a consistent issue and problem with the legislation in general.  Therefore a developer of a phased condominium could be stymied in its ability to complete the phases of a phased condominium if the municipality will not cooperate.  There would appear to be nothing the developer could do about this in the absence of a prior written commitment from the municipality to provide the Schedule G at the appropriate time.   This is a serious issue.

We have found most municipalities to be cooperative in providing the schedules when needed.   However, a usual and legitimate request that is made by municipalities before they will sign Schedule G – Municipality is to have the project engineer certify:

  • that the requisite services and facilities are in place; or,
  • the costs to install the same in support of a request to permit registration to proceed on the basis of a bond or letter of credit for incomplete services and facilities.

While the legislation does not specifically address this, it is not unreasonable for the municipality to require the project lawyer to provide his or her written opinion (based on and subject to the information received from the project engineer as to location and extent of services and facilities), that following the registration of the phase in question:

  • the required services and facilities needed by the phase (including access to a municipal street/road) will either be part of or through the common elements of the condominium plan; or,
  • by way of good and sufficient easements in favour of the condominium corporation.

Hopefully, the forthcoming amendments to the Condominium Act will obligate municipalities to provide required schedules such as Schedule G – Municipality provided proper certifications and opinions are provided to the municipality or provide for certifications from the project engineers and lawyer in lieu of the municipality signing the required schedule.

Schedule G Continued – Elaboration on Electrical Installations

Post by: Craig Robson

In our first Schedule G blog we included the following comments on electrical installations:

5. Paragraph 9 of Form 2 says all installations with respect to the provision of electricity are in place.

  • Does this mean only lateral lines to and including the electric meters, or do the unit service panels also have to be installed or is live electricity at the wall sockets required?

We think the lateral lines need to be to the electrical panels of the units and those panels have to be in place.  However, we do not think the lines have to run beyond that.

We have had some issues with respect to this provision of Schedule G since our last blog.  We think that it may be prudent to at least have the electricity lines in place that are needed to operate the unit furnace, ventilating equipment and if there is air conditioning, the unit air conditioner, subject to the comments below.

In passing, it is noted that the Schedule G provisions with respect to heating and ventilation state:

All installations with respect to the provision of heat and ventilation are in place and heat and ventilation can be provided

The Schedule G provisions with respect to air conditioning do not have the bolded provision set out above in relation to heating and ventilation.  The provisions with respect to air conditioning merely state:

All installations with respect to the provision of air conditioning are in place.

Does the omission of the statement “… and air conditioning can be provided” in this section of Schedule G mean that while heat and ventilation systems must be operable, the air conditioning equipment is not required to be operable at the time of the Schedule G signing?   We think that a good argument can be made that this omission allows for Schedule G to be signed even if the air conditioning is not then hooked up to the electrical system as long as the unit air conditioning (if there is to be any) is in place.

The more conservative approach is to have the electricity hooked up to the air conditioners at the time of the Schedule G inspection unless there is a reason this cannot be easily done at the time of the Schedule G inspection.

“Heads Up” to Architects, Engineers, Condominium Developers and Municipalities re: Schedule G in Ontario Condominium Declarations and Amendments

Post by: Greg Carpenter

The regulations to the Condominium Act of Ontario (the “Act”) prescribe two forms of Schedule G Certificates of an Architect or Engineer that are required in condominium declarations:

  1. Certificate of Architect or Engineer (Schedule G to Declaration for a Standard or Leasehold Condominium Corporation) (Under Clauses 5(8)(a) and (b) of O.Reg. 48/01 or clause 8(1)(e) or (h) of the Act) (formerly Form 2 and referred to in this blog as “Form 2”); and
  2. Certificate of Architect or Engineer (Schedule G to Declaration for a Common Elements or Vacant Land Condominium Corporation) (Under Subsections 40 (11) and 56 (7) of Ontario Regulation 48/01 and under Clauses 8 (1) (e) and (h) or Clauses 157 (1) (c) and (e) of the Act) (formerly Form 17 and referred to in this blog as “Form 17”).

Form 2 is required for standard condominium declarations and leasehold condominium declarations.  Form 2 is also required in all amendments to a declaration adding phases to a standard phased condominium.  Form 17 is required in the declaration of a common elements condominium or vacant land condominium.

There is also a Schedule G Statement of a municipality which is required for amendments to the declaration of a phased standard condominium.  This municipality Schedule G does not have a prescribed form.  Despite the fact the Act does not exempt the amendment for a final phase from including this municipality Schedule G, it is not required for such final phase.

We will not be examining the Form 17 Schedule G (common elements and vacant land condominiums) in detail in this blog post.  We intend to address that Form in a future post.

These Schedule G forms are “prescribed” by the Regulations under the Act and cannot be changed without Ministry approval.  In our experience, Ministry approval is not granted readily.  However, we have had success in obtaining approval for wording changes in cases where a situation was clearly not anticipated when the Regulations were drafted.

Some Registry/Land Titles Office examiners have rejected the Form 2 submitted with a declaration or amendment for technical review if the alternate choice in Paragraphs 4, 5, 8 or 10 has been deleted and not left in the Form without the box ticked off.  Other examiners accept the form with the alternate choices deleted.  This gives rise to a whole other discussion of the complete lack of uniform interpretation of legislation by the Land Registry offices.  Each office appears to operate in isolation of the others and one never knows if what is acceptable to Registry Office A will be accepted by Registry Office B.

There are a number of situations where completion of the Form 2 Schedule G is not straight forward:

1. Paragraph 1 of Form 2 says the exterior building envelope is weather resistant if required by the construction documents and has been completed in general conformity with the construction documents.

How does one certify in special situations such as:

  • on a conversion when there are no original construction documents available;
  • if the building was built using draftsman’s drawings without any inspection by an architect.  To what extent will an architect or engineer  need to open walls and make other intrusive investigations, etc. to verify conformity with construction documents?

2. Paragraph 2 of Form 2 says that except as otherwise specified in the Regulations, floor assemblies are constructed to the sub-floor.

  • What happens in the case of a non-residential condominium where floors are not required to be in place until after registration of the condominium?  In our view the architect or engineer can still sign Schedule G in such circumstances even though there is no floor in place as the Regulations to the Act provide the lowermost floor does not have to be in place with respect to non-residential condominiums.

 3. Paragraph 6 of Form 2 says all installations with respect to the provision of water and sewage services are in place.

  • Does this mean, in the case of sewage services, installed just to the unit boundary?  Or does it mean hooked up so that toilets can flush?
  • In the case of water services, does this mean only laterals from the street to and including the municipal water meter for the unit?  Or does it mean hooked up so the taps will work?

 In our view the services need to be at least installed to the unit boundary or meter, as the case may be.  The Regulations to the Act do not require units to be finished to the point where all the internal plumbing is completed.

 4. Paragraph 8 of Form 2 says all installations with respect to the provision of air conditioning are in place or, alternately, there are no installations with respect to the provision of air conditioning.

If there is an obligation to have air conditioning for each unit or if the project specifications indicate air conditioning is a “standard feature”, there is little doubt the architect or engineer must confirm each unit is served by an operational air conditioning unit.

 However, it is not unusual for air conditioning to be an optional extra.  Therefore, at the time of condominium registration it is quite possible some of the units may not have air conditioning, either because the buyers of those units did not choose the air conditioning option or because the units are not sold.

 In our view, the architect or engineer needs a clear, unequivocal written statement from the builder as to which of the units are required to have air conditioning, either because air conditioning is a standard feature, is required by the municipality (in case of noisy sites) or because the air conditioning “option” has been chosen.  The architect or engineer then needs to inspect each of the units that is to have air conditioning and ensure the air conditioning equipment is in place and operational.

 5. Paragraph 9 of Form 2 says all installations with respect to the provision of electricity are in place.

  • Does this mean only lateral lines to and including the electric meters, or do the unit service panels also have to be installed or is live electricity at the wall sockets required?

We think the lateral lines need to be to the electrical panels of the units and those panels have to be in place.  However, we do not think the lines have to run beyond that.

 6. Paragraph 11 of Form 2 says except as otherwise specified in the Regulations, the boundaries of the units are completed to the drywall (not including taping and sanding), plaster or other final covering, and perimeter doors are in place.

  • What does this mean where unit boundaries are not in whole or in part dry walled or have other final coverings?  Many unit boundaries have nothing to do with walls or other features that might be dry walled.  In addition, some condominium units’ walls are not dry walled but are covered with plaster or brick or other substance.  Based on our discussions with the Ministry it’s clear the drafter of this paragraph simply screwed up and made a bunch of erroneous assumptions  (welcome to the Condominium Act).  This paragraph can be interpreted to say that whatever features are monumenting unit boundaries must be in place.  This has been confirmed during discussions with Ministry staff.

There is nothing on Schedule G that indicates what property the Schedule is intended to cover.  This is a significant concern.  How does the signatory know which property the Schedule he or she signs is going to be used for?  It would be very possible (although completely inappropriate) for a builder to keep extra copies of signed Schedule G from Project A and use them for Project B.

We suggest the signatory add a short description of the property in the vicinity of her or his signature.  We have not had any issues in being able to register declarations with Schedule G’s that have been altered to add a description of the property to which it is intended to apply.  This description can either be a short legal description, an address or a combination thereof.

Watch for our upcoming blogs addressing additional issues and points about Forms 2, 17 and other Schedule G issues matters on our website www.rcllp.ca.