When you think of Winnipeg you really don't think of an "Urban Jungle" as you would think of New York or Toronto but with an increase of population, a focus on rapid public transit corridors, as well as the hope of downtown revitalization, there is definitely an increase of the appearance of cranes in our vast horizon. With that comes some interesting legal construction concerns which many of us may never even have turned our minds towards in Winnipeg.
Crane Swing Agreements
I will start off with this first as I mentioned cranes above. These are agreements between the land owner of the construction (the "Developer") and an applicable neighbour (the "Neighbour") to delineate the area which a crane being used for the construction may swing over the adjacent lands owned by the Neighbour. It will set out certain height and/or depth restrictions for such swing as well as the fact that any crane needs to be installed and operated by qualified professionals in accordance with all applicable laws, that there can be no live loads, and to address whether or not the Neighbour's lands may be used for crane installation.
Tie Down Agreements
In many cases cranes cannot fit solely on the Developer's lands and/or require the assistance of other buildings to be properly utilized and they therefor require to be tied town to the Neighbour's lands by the way of "tie-backs". Quite commonly these are used for shoring and foundation construction. These cranes are to be designed and installed by qualified professionals in accordance with all applicable laws and require peer review of plans prior to any installation.
Storage Agreements
In some cases the Developer requires the storage of construction goods, materials, and equipment on the Neighbour's lands. These agreements will delineate where the goods, materials, and equipment may be stored on the Neighbour's lands and as to when and how they can be accessed on those lands. They will also address what may be stored on those lands, for example, such things as hazardous substances and heavy equipment.
Snow Load Agreements
When you think of this, you can't help but think that they would be prevalent in Winnipeg but they are not. They are agreements to process how to determine the impacts of snow from a new building on the roof of an existing building and for the implementation of any necessary solutions in order to mitigate and address those impacts.
Summary
In many cases these agreements are combined in a combination applicable to address the situation at hand but in all cases it is the Developer which requires certain rights from the Neighbour to facilitate construction and there is no obligation on the Neighbour to agree. As would be expected, it will involve monetary compensation from the Developer to the Neighbour to see these matters through or even the requirement of some form of reciprocal rights to the Neighbour by the Developer. In all cases, these matters will require negotiation.
These granting of rights can be done by way of a license or an easement. Of course, the receiver of the rights would want to receive it by way of an easement as it is intended to run with the land but in either case, the term and transferability must be clearly established. It is recommended that there be registration on title to ensure no loss of rights if ownership changes. With that being said, these rights on title will typically be secondary to any pre-existing encumbrancer to the Neighbour's property or will be required to be postponed to the interests of any future encumbrancer to the Neighbour's property.
Other ancillary terms to be considered in any of these agreements are such matters as repair and clean-up requirements, notice of damage and the an obligation to stop work, stipulated insurance requirements including additional insureds, pre and post construction conditions, and any reports and monitoring (for example, vibration, movements, and sound) requirements.
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.
