Mixed use developments are steadily increasing. The main
challenge remains ensuring enhanced residential occupants'
experience, with a good tenant mix, while allowing developer's
overall project. Lawyers working in multi-use development will need
to foresee and take into account all different interests at play,
and provide for flexibility for the long-term development vision of
their clients, yet ensuring stability and balanced rights for
commercial tenants and residential co-owners.
From a lifestyle point of view, residential occupants will want
to be close to the action, with readily accessible amenities and
interesting retail offers while maintaining a quality of life, with
reduced noise, adequate safety and limited nuisance: how to strike
the right balance? Both the legal and physical components of the
project will be paramount in the balancing act required from the
developer and its lawyer. Not only will care and long-term focus
will be required in drafting the co-ownership agreement and related
regulations, but also in the physical and structural planning of
the project, such as sharing of infrastructure and common areas.
Residential owners will have issues if their access to parking
spaces are blocked by incoming delivery trucks, if loading docks
for truck deliveries and commercial garbage disposal sites are
located adjacent to exclusive residential areas, or if residential
lobbies and entrances are not segregated from the commercial
component...and not to mention odours coming from restaurants using
common ventilation shafts.
On the other hand, to ensure interesting experience to
residential occupants, developer will need to attract a good tenant
mix, with commercial tenants allowed to operate their business
without undue restrictions on use of their premises (hours of
operation, noise, waste etc.) so that commercial tenants'
operations would not be unduly impacted. The developer (and its
lawyer!) will need to keep focus on the long-term and life of the
project, especially where a tenant will negotiate to include
clauses where the residential component could not impose
restrictions on noise and odours resulting from the tenants'
business in the commercial component, in accordance with intended
use and as would normally be expected.
Striking the right balance between the uses of the commercial
condo and the expectations of residential condo owners will be the
true balancing act, and for durable co-existence, chose experienced
developers, and call your lawyer to assist!
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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