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Photo Credit: iStock Photo AntonioGuillem
It
comes like a bolt out of the blue; the municipality wants to purchase your
property so that they can widen the highway. Often times they intend to seize just
part of your property: that front yard you so carefully nurtured to provide a
fragile barrier between your home and the busy street is destined to become
another traffic lane. Many owners have received this type of letter, more will
receive similar letters in the future (if not from the municipality then the
province, federal government or any organisation with expropriation powers such
as a water authority, power utility, Crown Corporation). Sometimes the purpose
of the exercise may not be clear, other than the fact that your property, or
part of it, is required for the public good. During our early days in business
in the 1970s some provinces, such as Nova Scotia, did not always inform owners
that they had taken title to their property… the unfortunate owner only
discovered such was the case when they enquired why they were no longer getting
a property tax bill! Often times, municipalities such as the City of Halifax,
did not advise the owner that they required the property, or part of it,
content to leave it to the appraisal firm to break the news when they arrived
on site to conduct their inspection. (We fired the City of Halifax as a client
after arriving on site to find the property owner had not been informed about
the expropriation; his wife was dying of cancer in the bedroom). Legally this
is still the case in many provinces in Atlantic Canada; the acquiring authority
does not have to inform you that you no longer own your property for several
months after they have filed the expropriation document (Nova Scotia 90 days,
Prince Edward Island 60 days). Thankfully in practice, that at least has
changed, but the unfortunate reality is that property owners rarely have legal
grounds to prevent the authority from purchasing their property. In other countries,
property owners have to be notified that their property is to be expropriated
and have the right to object that the acquisition is not really required for
the road widening, or other scheme that is its raison d’etre, or that the
scheme itself is not required to serve the public good. But this avenue is
rarely available in Canada, or indeed in North America. (In this Region,
proposed expropriations under the Federal and New Brunswick Expropriation Acts
are the exception that prove the rule. Each require the acquiring authority to
notify the property owner before they expropriate and provide a public enquiry to
hear objections. However the Federal Act is really window dressing, the public
hearing a mechanism to “vent”; the New Brunswick Act however does require the Expropriation
Advisory Officer to issue a decision as to the necessity for the expropriation
and whether the scheme is consistent with the public interest. If your property
is located in Nova Scotia, Newfoundland or Prince Edward Island you have no say
in the matter at all!. Even if subsequent events disprove the “valid public
use” test, owners have no right to recover their property (the ill-fated
Mirabel Airport in Quebec is an example… the original owners, or their
descendants, were eventually offered 300 hectares of the 38,800 hectares originally
expropriated, but only after a long, bitter and very public fight). So what do
you do when you receive “the letter”, particularly if it does not mention
“expropriation” and is instead a civilised attempt to negotiate compensation before
the municipality seizes your property by force?
We
live in an age when most of us have lost faith in our institutions, the civil
service, politicians and the private sector. That trust has been eroded over
the past two decades by greed, politicians who no longer adhere to acceptable
forms of behaviour, the shrill cacophony of social media seamlessly blending
fact with fiction, and an emancipated Fourth Estate no longer able to defend
the “little guy”. The adage “you can’t fight city hall” too often engenders a
feeling of helplessness, particularly if the acquisition involves your family
home, the sanctuary you hold inviolate; or your business, a livelihood born of
blood, sweat and tears. Cheer up, not all is bad, the press and electronic media
may no longer have the heft they once did, but you do have the protection of an
excellent and independent judicial system. Why is that important? The letter
you received from the acquiring authority may not have mentioned “expropriation”,
and the words “judicial system” may raise the spectre of long and expensive
litigation in which you, the little guy, are pitted against an acquiring
authority with much deeper pockets. But bear with us. Even if your property has
not yet been expropriated the negotiations will be framed by the Expropriation
Act because the acquiring authority has to rely on it if they cannot reach a
settlement with you by negotiation. Now, it has to be said, the Expropriation
Acts do not represent the legal community’s finest hour. The Nova Scotia and
New Brunswick Expropriation Acts, each appear to have been written in a hurry
by somebody suffering from a hangover. The Newfoundland and Prince Edward
Island Expropriation Acts have a distinct feudal flavour, drafted in the days
when peasants lived in huts of mud and wattle, addressed their betters with a
touch of forelock, eyes downcast and a mumbled “zur” (or that, at least,
appears to have been the assumption of the persons drafting them). In fact the
PEI Act doesn’t even attempt to lay out the framework for compensation, happily
delegating it to the court system, undoubtedly in the pious hope that the judge
would have a clue what it was all about, because the person drafting the
legislation sure as hell didn’t! Only the Federal Expropriation Act can claim
lucidity, and even it overlooks the fact that businesses occasionally occupy
real estate and are adversely impacted if it is whipped away from under their
feet. But, and this is the good news, none of this really matters very much
because there are some good Expropriation Acts elsewhere and a body of case law
and appraisal practice that have established well proven methodologies for
identifying and calculating compensation. The courts have embraced the
principle that, since expropriation is the exercise of police power by the
state (or its surrogate), the benefit of the doubt lies with the unfortunate
property owner and they have not been shy in ensuring that the latter does not
suffer financial loss as a result.
Expropriation
So
what is “Expropriation” and why should you care? Expropriation is the seizure
of your property, or a part of it, by the government, or a body authorised by
them, for public use or benefit. The bad news, as we have already mentioned, is
that you cannot object to it unless you live in New Brunswick or the property
is being acquired under the Federal Expropriation Act… the good news is that
you are entitled to be fairly compensated for your loss. The initial approach
from the acquiring authority advising you that they want to purchase part or
all of your property will rarely mention the word “expropriation”. Whilst this
may be an attempt to spare your feelings by appearing to be non-threatening you
should be cautious. We no longer have a strong media but, as mentioned, we do
have an excellent court system… and they are on your side. While you will
probably never need to go to court you should avail yourself of the protection
afforded by our judicial system. Your rights to fair and proper compensation
are codified in the relevant Expropriation Act (sort of) but you will not be so
protected unless (1) your property has been officially expropriated or (2) the
acquiring authority has agreed in writing to proceed as though you had been
expropriated i.e. that they will afford you all of the compensation you would
have been entitled to under the Expropriation Act had your property been
expropriated. So this is Step One, make sure that the acquiring authority is
prepared to offer you all of the rights and privileges afforded by the
Expropriation Act and get that commitment in writing. If they will not provide
it, refuse to negotiate until they expropriate your property.
Compensation
It
is a fundamental principle of Expropriation that the acquiring authority is
required, as far as monetarily possible, to put you in the same position after
the acquisition as you were before it. Most court decisions have interpreted
that principle as giving you the benefit of the doubt, short of plundering the
public purse. The federal and some provincial Expropriation Acts acknowledge
that the negotiations are unevenly balanced in that the property owner faces an
acquiring authority with much deeper pockets and resources. Some Expropriation
Acts attempt to level that playing field by requiring that the acquiring
authority be transparent in their calculations of compensation, and some give
the property owner access to their own professional advice if they desire it,
at the acquiring authority’s cost. The Federal Act unambiguously provides that
the property owner is entitled to professional advice at the Fed’s cost, the
Atlantic provinces are more parsimonious, sometimes offering it if the property
owner wins in court (Nova Scotia, New Brunswick, Newfoundland), or not considering
it worthy of mention (Prince Edward Island). Nova Scotia limits the amount they
will pay in legal costs and appraisal fees, something they are now allowed to
do in their Act, so the unfortunate property owner has to pick up the rest of
the cost, or find a cheap lawyer or appraiser. A word of caution: the devil is
in the details and some acquiring authorities do not play by the rules
established by the relevant Expropriation Act, case law or appraisal practice.
It is essential to have an understanding of your rights under the Act, the type
of compensation and how it is calculated. Each province in Atlantic Canada has
its own Expropriation Act and each municipality, or other body with
expropriation powers, is governed by that Act. The federal government also has
its own Expropriation Act. Broadly speaking the Acts are similar, in practice
if not content, and the methodology for calculating compensation is identical
even when it is not specified in the legislation.
Negotiations
The
acquiring authority may employ their own staff to negotiate, or will contract
it out to a firm such as ourselves (we also negotiate on behalf of property
owners). Our article “Land Agency… a respectable profession” elsewhere in this Blog
details our approach when we are representing the acquiring authority: you
should expect nothing less. The act of expropriation, or its anticipation,
obligates the acquiring authority to fairly compensate you for your loss and
that means they must engage in “principled negotiation” rather than attempt to
settle the compensation claim for the lowest amount. If you find that you are
not comfortable negotiating, insist that the acquiring authority pay for your
professional representation. Whether the Act specifically allows for it or not,
it has been our experience that acquiring authorities want to reach agreement
without the adverse publicity of a formal expropriation, much less the agony
and expense of a court action. They recognise that some property owners need
professional assistance and that this may facilitate an agreement. If the acquiring
authority is attempting to negotiate compensation before they formally expropriate, particularly if your property
comprises woodland or agricultural land, the acquiring authority may attempt to
negotiate without commissioning an appraisal, using instead their knowledge of
property values. There is nothing wrong with them so doing provided they are
open and transparent about their compensation calculations and are able to
validate them by reference to other property sales. However you can require
that the acquiring authority provide you with a formal appraisal (they have to
anyway if they formally expropriate) and you should insist on this if your
property has buildings on it, is in an urban area, or if only part of your
property is being acquired and the remainder is likely to be adversely
impacted. Many Expropriation Acts (Federal, Nova Scotia, New Brunswick) require
that the formal offer after expropriation has
to be accompanied by an appraisal. The formal appraisal should meet, at a
minimum, the Canadian Uniform Standards of Professional Appraisal Practice
(CUSPAP) www.aicanada.ca/about-aic/cuspap/
. Frankly CUSPAP is not the most rigorous standard in the world, it is not specifically
directed at expropriation, and most appraisers (like most lawyers) are not
sufficiently familiar or skilled in recognising and computing the various Heads
of Claim. Do not accept any appraisal tendered
by the acquiring authority at face value. Research the author of the appraisal
report on the internet and check his/her reputation with a trusted professional
advisor to verify that they are experienced in expropriation work. At a minimum
they should be an Accredited Appraiser of the Appraisal Institute of Canada or
a Member of the Royal Institution of Chartered Surveyors (Valuation) but
neither qualification guarantees that they are experienced and knowledgeable in
expropriation. Do not assume that the acquiring authority has already done the
research and has chosen their appraiser on the basis of merit; the Federal
Government and some provinces do so, but other provinces and many
municipalities, Halifax Regional Municipality for example, simply select an
accredited appraiser on the basis of cheapest cost. Some acquiring authorities will instruct the appraiser to limit the
types of compensation (Heads of Claim) they consider in the appraisal and
although the omissions may be listed in the appraisal report their significance
can easily be overlooked. The Province of New Brunswick Department of
Transportation and Infrastructure, for example, instruct their appraisers to
ignore Injurious Affection and Special Economic Advantage, items which often
constitute the bulk of the loss suffered by the property owner.
Heads of Claim – A Hitch Hiker’s Guide
A governing spirit of expropriation, or the
negotiations which preclude it, should be that the property owner (and tenant
if the property is rented) will not suffer financial
loss as the result of losing all, or part, of their property. You will not be
compensated for emotional loss
arising, for example, from the upheaval in your life. If you are a property
owner the types of loss and accompanying compensation will fall under some, or
all, of the following Heads of Claim: (1) Market
Value of the interest
acquired in the property. (a) “Market Value” is defined differently
in the various Expropriation Acts but essentially is the amount of money you
would get for your interest in the property if it was sold on the open market. For
example, if you occupy and own the freehold (fee simple) interest in a residence
which is acquired in its entirety by the municipality, your compensation will
equal the sale price you would have achieved had you sold the property of your
own free will through a real estate agent. This can cause a problem if the
Market Value of your property is lower than that of other properties in the
neighbourhood since the cash you receive will not be adequate to purchase a
similar home. In that instance you are entitled to additional compensation
under the “Home for a Home” head of claim (see below). Unfortunately you will
not be compensated for any “special” value your property may have to the
acquiring authority over and above its Market Value. (b) If the municipality only takes part of
your property (typically part of your front yard in the case of a road widening),
you are entitled to the Market Value of that portion of your property.
Obviously calculating Market Value is somewhat problematic since bits of front
yards are not typically sold on the open market. Its value will therefore be
based on the sale prices of comparable vacant lots expressed on a square foot
or other unit basis. You are also entitled to the value of any improvements
such as lawns, flower beds, bushes, etc. … but not the emotional value you may
have invested in nurturing them. If fences and steps have to be demolished the
acquiring authority has to replace them. Sometimes the loss of a front yard is
so extreme it renders the home unsuitable for continued owner occupation; it
may be uninhabitable or suitable only as transient accommodation such as short
term rental. In that event the owner should be able to substantiate the
acquiring authority purchasing the entire property. The “Home for a Home”
provision may then be relevant. (2) Home
for a Home (a) If the property is occupied by the
owner, as opposed to being rented, as a family home, you will be entitled to
additional compensation if the Market Value of the property is inadequate to
purchase a similar home in the neighbourhood. In this event your compensation
will be based on the Market Value of similar homes for sale in the
neighbourhood. What happens if there are none for sale? Whilst the compensation
does not require that you remain in the neighbourhood it does get a little tricky
if you do not have that choice. In the unhappy event that substitutes are not
available you would be entitled to be compensated for the Market Value of the
next best alternative.
(b) If the property is rented, a cottage,
or anything other than an owner occupied family home, your compensation is
restricted to Market Value even if you cannot purchase a similar property with
it. The acquisition will also trigger tax liabilities which you did not
contemplate until you intended to sell the property. It is our view that the impact
of paying those taxes now, rather than deferring them for the future, is a
valid compensable item.
(3) Disturbance
(a) When a property owner is forced to move
out of their home there will be moving expenses, as well as items such as
drapes for the new home. The acquiring authority is required to compensate the
owner for these items. If it is not practical to estimate these costs some
Expropriation Acts (Federal and Nova Scotia) provide an allowance instead of up
to 15% of the Market Value. The New Brunswick Expropriation Act allows, in
addition to moving expenses, 5% of the market value of the residential portion
expropriated, to compensate for the cost and inconvenience of finding another
residence. The other Acts do not place any value on the unfortunate property
owner’s time.
(b) If the property contains a business the
occupant will suffer a variety of losses. If the business has to relocate it
will incur a number of costs: new stationery, informing customers, staff
overtime packing and unpacking, new signage, etc. as well as the cost of the
move itself. Whether the business moves or not, profits will usually be
adversely impacted by the road widening scheme and/or the relocation. Trade
once lost to competitors may takes years to recapture, may even be lost
forever. Whilst all of the foregoing is compensable some Acts provide that compensation
for loss of goodwill, where the business has relocated, can be deferred for the
earlier of a year (Nova Scotia) or nine months (New Brunswick) after the relocation,
or for three years (Nova Scotia) or two years (New Brunswick) after the
expropriation. It is not clear when the business can expect to be paid if it
does not relocate, but given that it has to prove its loss one imagines that
this would be twelve months (Nova Scotia), or nine months (New Brunswick) after
the road widening scheme is complete. Thus a business can struggle to survive
during and after the road widening but cannot claim for its loss until later.
Whilst the acquiring authority can agree with the business owner to waive the
deferment it is our experience that such is not normally the practice. Business
loss (goodwill) is not specifically mentioned in the Federal, Newfoundland or
Prince Edward Island Acts but is a compensable item.
(4) Injurious
Affection
(a) Where only a portion of the property is
acquired, a common situation with road widening schemes, the balance of the
land may be reduced in value because (1) the remaining property is less useful
since it is smaller, a more awkward shape, or is severed from the main parcel
and/or (2) the construction or use of the road on the land acquired adversely
impacts the value of the remaining property. For example, it may no longer be
possible to park a vehicle on the land remaining because it is now too small or
of the wrong configuration. A residential property without parking is less valuable
than a house with a driveway. The construction of the widened highway may
render access to the property more difficult if traffic increases. The
increased noise and loss of privacy in the home which results from it being
closer to the highway will reduce its value. Or take a farm cut in two by a new
highway. The farmland on the other side of the new road, particularly if it is
limited access highway, will be considerably less valuable because it is no
longer as accessible from the farm buildings. Farm fields impacted by the new
highway may no longer be of optimum size and shape; drainage may be adversely
affected too. In our experience Injurious
Affection usually represents the vast majority of the loss sustained by the
property owner, especially in residential properties impacted by road widening.
The accepted method of calculating Injurious Affection is the “Before and
After” method. This methodology is codified in the Federal and Nova Scotia
Expropriation Acts. The property is valued as it existed prior to the
acquisition and commencement of the road widening (Before Value); and then
valued again on the assumption that the road scheme is complete (After Value).
The difference between the Before and After values, minus the Market Value of
the land acquired, is the Injurious Affection. The New Brunswick Expropriation
Act provides that a claim for Injurious Affection has to be made within one
year after the damage was sustained, otherwise
it is barred.
(b) For housekeeping purposes some
Expropriation Acts include Disturbance under Injurious Affection. This has no
impact, other than to confuse matters, unless the acquiring authority has
directed their appraiser to ignore Injurious Affection (a common practice with the
New Brunswick Department of Transportation and Infrastructure).
(5) Special
Economic Advantage
(a) If the property is owner occupied i.e.
not rented, the owner may be able to claim for any special economic advantage
arising out of, or incidental to, their occupation of the property to the
extent that they have not been compensated under the other Heads of Claim. For
example, if you or a member of your family is disabled, and the home has been
adapted to meet their requirements with ramps, grab bars, wider doorways and
hallways, stair lifts etc. you will be able to claim for the cost of these
improvements.
(b) The same conditions apply with
commercial property that has been adapted to suite the unique requirements of
the business. It applies as well to property that has additional value because
of its location, such as a woodlot proximate to the owner’s mill.
(c) Special Economic Advantage is
specifically mentioned in the Federal, Nova Scotia and New Brunswick Act.
(6) Special
Purpose Properties
(a) Some properties do not normally sell on
the open market; churches, schools, hospitals, religious and charitable
institutions are examples. If the property being acquired falls into this
category and the owner has to relocate, they can base their compensation claim
on the reasonable cost of creating a similar property (technically known as “the
cost of equivalent reinstatement”). Even though the buildings on the property
they are vacating may be old, the claim for compensation can be based on the
cost of building a new, otherwise identical structure, plus the cost of
acquiring a replacement site…. though some Acts (Federal, New Brunswick) attempt
to claw back some of the compensation if the owner has improved their position.
(b) The Federal Act, cognisant no doubt
that we are meant to be a secular society and less fearful for their immortal
soul than the Provinces, do not restrict the qualifying properties to religious
institutions and instead embrace all properties that do not normally sell on
the open market.
(7) Professional
Fees
(a) The Federal Act provides that the
acquiring authority pay the legal, appraisal and other costs reasonably
incurred in ascertaining a claim for compensation. The onus is on the property
owner to ensure that the costs are reasonably incurred, not that they are
reasonable.
(b) The Nova Scotia Act provides that the
owner is entitled to be paid the reasonable costs necessarily incurred in
ascertaining a claim for compensation but this is only triggered by an
application to the Nova Scotia Utility and Review Board after negotiations have
failed. However in practice they are compensable up to the date the acquiring
authority makes their Offer to Settle (just before the start of the Board
hearing) and are not conditional on the property owner winning their case.
Reimbursement of costs incurred after the Offer to Settle are conditional on
the outcome of the hearing. The province has recently placed a limit on the
fees it will reimburse for legal and appraisal advice. The property owner will
now have to fund the difference, or find a cheap lawyer and appraiser.
(c) The New Brunswick Act makes no
provision for the reimbursement of professional fees unless the matter proceeds
to Court. Reimbursement may be dependent on the compensation award.
(d) The Newfoundland Act provides that
professional fees are only paid for proceedings before the Board and they are conditional
on the outcome of the hearing.
(e) The Prince Edward Island Act has yet to
acknowledge the necessity for professional advice or its role in protecting
property owners.
(8) Betterment
(a) Where only part of the property is
being acquired, the remaining property may increase in value as a result of the
scheme for which the property was purchased. For example, land may be purchased
for a highway intersection, with the result that the land remaining after the
acquisition increases in value because it has development potential for a
service station, hotel, shopping centre or other commercial use. This increase
in value, known as “Betterment”, has to be offset against the compensation.
Depending on the Expropriation Act, Betterment may be offset against the (1)
total compensation [Newfoundland and Prince Edward Island] or (2) the land
remaining after the expropriation [Federal, Nova Scotia, New Brunswick].
(9) Factors
Not To Be Taken Into Account
(a) Anticipated use by the scheme for which
the property was expropriated.
(b) A value established by reference to a
transaction which occurred after publication of the intention to expropriate,
or the actual expropriation if there was no published intention to expropriate.
(c) Any increase or decrease in value
resulting from anticipation of the expropriation.
(d) Any increase in value resulting from
the property being utilised for an illegal use.
(10) Heads
of Claim Have To Be Consistent
(a) The Market Value of the land acquired
has to be based on its existing use value if the costs of relocating are to be
allowed. For example, a property owner cannot claim for removal costs if he/she
is basing the value of their property on the assumption that it could be
redeveloped.
(11) Payment of Compensation
(a) Federal,
Nova Scotia, New Brunswick, Acts - A “without prejudice” offer has to be made
by the acquiring authority within 90 days of registration of the Notice of
Expropriation. If the parties do not agree the compensation the Federal Act
provides for payment of 100% of the offer of compensation; the Nova Scotia Act
for 75% of the compensation (excluding business disturbance) and the New
Brunswick Act 100% of the “Market Value” (other Heads of Claim such as
Injurious Affection are excluded). This payment is “without prejudice” and the
property owner is free to pursue his/her claim for additional compensation.
(b) Newfoundland – the property owner has
to file a claim for compensation within the time limit specified in the Notice
of Expropriation and where the parties do not agree on the amount the matter is
sent to the Board to be “fixed”. Compensation is paid out within six months of
the Board’s decision.
(c) Prince Edward Island – the property
owner has to file a claim for compensation within six months of registration of
the Notice of Expropriation “or in the
case of land injuriously affected within six months of the injury”. Payment
is only made after the parties agree on the amount. 
Mike Turner is Chairman of
Turner Drake & Partners Ltd. A fifty year veteran of expropriation on two
continents he is still shocked at the cavalier attitude some acquiring
authorities adopt when dealing with property owners. If you'd like more
information about our expropriation services, feel free to contact Mike at
(902) 429-1811 Ext. 312 or mturner@turnerdrake.com
What is building efficiency? and
why is it becoming increasingly important for landlords, purchasers and tenants
alike?
Building efficiency stems from a
variety of factors, some of which are tied to the building envelope or overall operating
systems (HVAC, lighting, etc.), while others are tied to design and
layout. Our Lasercad® team focuses on
the latter and partners with building owners and managers to help analyse and optimise
their building efficiency using the BOMA Standard Methods of Measurement.
Using a typical office building as
an example, the ratio of a building’s Occupant Area to its Rentable Area will
yield a gross-up or efficiency factor, where higher factors equal lower
efficiency. In other words—the larger the percentage of common area to
tenant occupied area, the larger the gross-up, and thus less efficient the
building.
Since common areas are proportionately
allocated (“grossed up”) back to each tenant, they are a primary contributor to
determining building efficiency. Large common
areas in a multi-tenant office or industrial building increase a tenant’s
overall rent as a result of higher gross-up factors. It’s a double whammy because tenants are also
subjected to higher Common Area Maintenance (CAM) charges which are needed to
service those common areas. The results
manifest themselves in a variety of ways—higher vacancy rates, lower net rents,
reduced marketability. The list goes
on. An inefficient building is less attractive
to potential tenants as well as to buyers.
Optimising building efficiency is becoming
more crucial as development restrictions evolve and building owners, managers and
shareholders look to maximise their returns.
Whether it’s new construction, or the renovation of an existing
building, the BOMA Standard Methods of Measurement have become an increasingly important
input of the initial design phase, and more and more developers are seeking guidance
and expertise from our knowledgeable staff.
Below is an overview of two
buildings we recently measured with common areas highlighted in blue. 123 Jones Drive has an excessive amount of common
area, including a large lobby, washrooms and extensive hallways. By contrast, 125 Jones Drive has approximately
twice the footprint, yet has far less space taken up by common areas. Our BOMA analysis revealed the impact of the
vastly different layouts: 123 Jones Drive has a gross-up of approximately 30%,
meaning their rent is based on 30% more space than they physically occupy (i.e.
Floor Allocation Ratio: 1.30). By
contrast, 125 Jones Drive has a gross-up of only 9% (i.e. Floor Allocation
Ratio: 1.09) therefore staking claim as the more efficient building. 
If you’re interested in optimising your building’s efficiency using BOMA standards, please don’t hesitate to contact one of our analysts to discuss a few of our key strategies. Whether you’re in the preliminary design stages of new construction, or renovating an older building, optimising your space to yield the most efficient solution is our primary focus. [1].jpg)
Patrick Mitchell is the Senior Manager of our Lasercad® Division and also highly involved in our Valuation Division. For further information on how to maximise your property’s value through space certification please don’t hesitate to reach out. Patrick can be reached at pmitchell@turnerdrake.comor by phone at 902-429-1811.

“How much? Get out!” (followed by the noise of a slamming door). Another day in the life of the hapless land agent, doing his level best to get the most for the least. At least that’s the common perception, but here at Turner Drake we approach things a little differently. Our team of Land Agents follow the concept of “principled negotiation”, not positional bargaining. And it works. We are routinely retained to provide Land Agency services under contract to governments and corporations, who are increasingly out-sourcing this type of work to the private sector. The projects we work on are large and small, involving anywhere from half a dozen to several hundred different property owners, and our mandate is simple: negotiate fair deals for the purchase of land interests to support infrastructure projects. Without upsetting anyone. Roads and transmission lines are especially popular these days. Seems we just can’t live without them. These are corridor acquisitions: mile after mile of trees and fields with the occasional home or business. All neighbours. All savvy negotiators. And all deeply suspicious of strangers who turn up on the doorstep bearing gifts. So our approach must respect that and we have developed a simple formula built around three principles: Consistency We can’t divulge offers and settlements to neighbours. It’s a privacy thing. But we expect that neighbours will talk as soon as we leave. In fact we encourage it. They can compare figures if they like, essentially testing our integrity to see if anyone got a better or worse deal than the others. And therein lies the challenge with corridor acquisitions. Those at the end of the line must be treated the same as those at the beginning; those who settle quickly must be treated the same as those who hold out for more; those who shout must be treated the same as those who whisper. Sure, there are perfectly valid reasons for paying different amounts, but it can’t be arbitrary. It must be explainable. It must be credible. And it must be fair. Transparency We go to great lengths to make sure landowners understand what is happening and what is going to happen. Large infrastructure projects will already have gone through a very public process by the time we get involved and many landowners will have attended open houses …. and perhaps already made their views known. But the regulatory framework for compensation and landowner’s rights under the law are usually a mystery. We explain them. Fully. Our team of Land Agents are trained negotiators with the support of an entire team of in-house professionals to draw on. So we don’t present take-it-or-leave-it offers. We explain how they are calculated, usually by reference to a base-line appraisal or a third party site-specific appraisal. All of which is revealed to the landowners so they too can see how the calculations are made. Respect It goes without saying but we’ll say it anyway. Every landowner has a story to tell and it is our job to listen. Respectfully and with an open mind. Of course we don’t believe everything we hear, but invariably we will learn something from everyone just sitting around their kitchen table. Eating the free cookies. Most people just want their voice to be heard, and anyone who is being asked to give up their land against their wishes deserves to be heard. We call it respect. It builds trust and it leads to mutually agreeable results. And that’s all we’re looking to achieve. Without drama. Without the slamming of doors. .jpg)
Lee Weatherby is the Vice President of our Counselling Division. If you'd like more information about our counselling services, feel free to contact Lee at (902) 429-1811 or lweatherby@turnerdrake.com
Who’s Going
to Live In All Those Houses? – A common refrain when there’s a lot of
residential development, whether houses, apartments, or condos. Demographic trends can help to answer the
question after the fact, but more importantly, attention to demographic
patterns ahead of developing can ensure that housing supply meets demand. After all, once it’s built, housing supply is
here for the long haul. At the recent
NSPDA and LPPANS conference, Turner Drake led a workshop examining how
individual decisions feed into patterns in housing supply and demand. Here’s a brief recap (granted, a Nova Scotia‑oriented
recap, but many of the principles apply across Atlantic Canada). The Life
Cycle of Housing A typical person will move around a bit in their
lives, starting out in their parents’ house (or houses: if we can infer Canadian behaviours from American stats,
the average person owns 4.5 to 5.5 houses in their lifetime), moving to a
rental apartment before buying their own home(s). Later in life, they may downsize back to an
apartment (possibly a more luxurious one this time) or condo, and finally make
their way to a seniors’ residence. In-demand housing stock is heavily dependent on the
dominant age groups in any given area.
The primary drivers of rental apartment demand are 20-29 year-olds, and the
65-and-older cohort, though the latter is increasingly shifting to a
75-year-plus bracket, and the former arguably extends to above age 35.

Source: Statistics Canada 2016
Census
The inverse is demand for owned housing, and the primary buyers are
ages 25 through 45. The 25-29/34
year-old age bracket falls into each of the renter and buyer categories: this
is the first-time homebuyer age range, where we see the steepest increase in
home-ownership rates. The inference is
that by age 45, buyers have bought their first home, possibly sold it and
upsized to a larger family home, and here they stay for a prolonged period of
time.
 Age distribution in Nova Scotia
(Source: Statistics Canada Population Estimates)
The graph above shows shrinkage in the brackets
that include ages 20 through 45, but growth in the 65+ brackets. Growth in the 55-64 year old bracket means
that the latter will continue to expand as Baby Boomers age. A 2018 Royal LePage survey of home buying
intentions found that 42% of Atlantic Canadian Baby Boomers plan to downsize in
retirement, with 23% intending to sell their homes and move to their secondary
properties, i.e. to the cottage.
Thirty-two percent would consider buying a cottage in which to live in
retirement. The answer is probably no,
but all this moving to the cottage raises the question of whether the province
will see population ruralisation over
the next few censuses, or whether the urbanisation of younger generations will
continue in numbers sufficient to offset it?
The map below shows population change at the Dissemination Area level in
Nova Scotia between the last two censuses: the concentration of purple (growth)
in urban areas, in contrast with the pink and red (shrinkage) of the rural
areas, indicates urbanisation. 
Population change 2011-2016, Statistics
Canada 2016 Census
Just 29% of Atlantic Canadian Baby Boomers would consider purchasing a
condo, the lowest rate in the county.
Recall that the stat comes from a survey of home buying intentions…and recent trends have been for downsizers to opt
for rental apartments over condominium apartments. There is certainly incoming supply of
apartment units: CMHC statistics on housing starts over the past few decades
show a distinct shift from single-family construction to apartments: 

…though the rest of Nova Scotia is a different story:

The breakdown of the same housing start data shows a distinct rental
intention:

…which again is driven almost entirely by the Halifax pattern:

...while the rest of the province still shows a clear preference for
offering options for home ownership, with very little constructed for either
the rental or the condominium market:

On the demand side, the province appears largely influenced by the
statistics for Halifax, with vacancy mirroring the same ups and downs over the
past three decades, though vacancy is a bit tighter in the city (overall 2% in
NS and 1.6% in Halifax in October 2018).
Demand is strong: vacancy rates have been falling since 2014, even as
the inventory of rental units has been steadily increasing.

In the years ahead, expect continued growth in demand for higher
density residential forms, especially of the rental variety. This trend is driven by the Halifax market,
and offers an appealing lifestyle (low maintenance, low commitment), combined
with the option to live off the equity unlocked from the sale of the family
home. It is not far-fetched to
extrapolate that demand for multi-unit rental apartments may also exist in
smaller municipalities in the province, but that rural housing economics (lower
housing prices but similar construction costs) have thus far constrained the
supply side of the equation.
Turner Drake & Partners’
Economic Intelligence Unit follows closely trends in real estate and the
factors that can impact its value, from demographic patterns and preferences,
to climate change. Custom reports
translate data into conclusions. For
more information on how we can assist you, please call or email Alexandra Baird
Allen: 902-429-1811 x323 or abairdallen@turnerdrake.com.
Turner Drake started in 1976 with the mission to “provide solutions to real estate problems”. Initially we focused on valuation practice, but as real estate and its challenges have become more diverse, so too have we. Over the decades we’ve added complementary practice areas, expanding our perspective and deepening the expertise we could bring to the aid of our clients. Not long ago we once again ventured into new territory, adding a Planning Division. Rooted in the economic perspective that all our divisions share, our planning practice is unlike any other in Atlantic Canada. Often we are called in to lend
a hand on other Turner Drake assignments; bolstering property tax appeals,
identifying implications for property valuation, or accurately reviewing
development potential for brokerage clients. But we work most closely with our
Economic Intelligence Unit, where our combination of GIS resources and
expertise in the analysis of demographic, economic, and real estate market data
have led us to some truly interesting planning assignments. Working with a variety of both private and
public sector clients, we’ve been involved in some of the largest planning and
development projects in the Region. And some of the smallest. We’ve even picked
up a few awards along the way. The challenges and outcomes are varied, but one
thing is always common; an approach grounded in real estate economics. Now, having just crossed the
five-year milestone, we celebrate another; our first staff expansion. We put
out the call shortly before the New Year: thanks to the many that applied, we
are humbled by your interest in what we are trying to bring to the planning
profession. So who is the new recruit ready to help us continue our success?
Say
Hello to the Newbie – Andrew Scanlan Dickie [1][2].jpg)
Hello world, I’m Andrew –
Turner Drake’s self-declared Newbie – here to share the story that is me; a
story of adventure, intrigue, and spreadsheets. Yes, I’m that guy – the one who
likes numbers just a little too much. I’m no mathematician, just a fanboy
hoping to put my interests to use. I suppose that’s how I ended up here, but
that will come. My last names may throw you
off, but I’m a born and bred Montrealer (I can feel the maritime Bruins and
Leafs fans cringing). I decided to stay local for my first university degree,
receiving a Bachelor of Commerce from McGill. I was young, inspired, and ready
to take on the world. What does the mean? You got it – I went back to school,
but this time away from home (sorry mom). In Spring 2017, I graduated
from Dalhousie University with a Masters of Planning degree. My short two years
in Nova Scotia were nothing short of amazing; I met my soon to be wife, made
amazing friends, and embraced the culture and lifestyle. But like many before
me, I left to seek opportunities elsewhere. Over the last two years I
worked for a small-town municipal government in Ontario, wearing the many hats
allotted to me and expanding my knowledge of planning policy. Don’t get me
wrong, I loved it – but two things kept nagging at me: (1) Ontario’s got
nothing on the Maritimes (there’s just something about the air here) and (2) my
professional life was number deficient (ahem, nerd). At the time, my partner and I
were nestled in the suburbs. We had adopted a dog and enlisted the help of a
real estate agent – we were getting pretty darn serious about putting down
roots. So, one might say it was an 11th hour moment when the Planning
Division opportunity for Turner Drake came up. I would say it was more an
aligning of the stars; a chance to return to the place my partner and I hoped
to call home and the lifestyle that comes with it, and an opportunity for me to
develop both my business and planning expertise. So here I am, ready to take on
the world yet again and use my skills to contribute to the well-oiled machine
that is Turner Drake. I’m chomping at the bit, so if you or your organisation
are wondering how our expertise in development economics and real estate market
analysis can enhance your planning process, just give us a call! Hint, hint,
nudge, nudge – mandatory municipal planning strategies as part of the Nova
Scotia Municipal Government Act are becoming a thing, so feel free to reach out
about how that may affect you or how to explore that process. Alternatively, if
you’re in Ontario and require some help navigating Ontario’s Planning Act, let
me know!
To
see how your project can benefit from our unique planning expertise, call
Senior Manager Neil Lovitt at (902) 429-1811 or nlovitt@turnerdrake.com. We’ve
got more horsepower than ever.

You are a tenant looking for commercial
space to lease. You start your search by checking the local Kijiji ads and
maybe check with a few colleagues when you realise that perhaps you are in over
your head. One ad is asking for $14/ft.² net plus operating and taxes, while another
is asking $3,500 per month gross. How do you compare these two rents?
Or perhaps you are a new landlord, eager to
fill up your new investment property and start making a return. You are not
sure what to charge for rent, but you want to ensure that all of your operating
expenses are recovered at the end of each operating year and you are not out of
pocket for any expenses.
First, let’s summarise the rental
terminology:
Net
Rent: Often
called “Base Rent”. This is what you pay
for the right to occupy a given space
Additional
Rent: Often
called “Common Area Maintenance (CAM) and Realty Taxes” or “Service Rent”: This is the cost of operating a given space
or property. It includes such things as
electricity, heat, garbage removal, snow clearing, etc. It is typically paid for by the landlord and
then recharged to the tenant on a per square foot basis.
Gross Rent: This
is the sum of all rent paid (Net and Additional Rent).
In order to compare a net and gross lease,
the rents must be converted to the same basis (ie: both must be compared on a
per square foot basis, or both on a monthly rental basis). For example: let’s say that a particular unit is
1,500 ft.2 and it is being offered at a Net Rent of $14/ft.² and CAM
and Taxes of $11/ft.². Converting this
to a monthly rent is as follows:
($14/ft.² +
$11/ft.²) X 1,500 ft.² = $37,500 annual or $3,125 per month.
Alternatively, if you are provided with a
rental rate of $3,500 per month gross for a 1,500 ft.² space, converting this
to a per square foot rent is as follows:
$3,500 per month X
12 = $42,000 per annum / 1,500 ft.² = $28.00/ft.²
Now that you know how to calculate and
compare net and gross rental rates…which one is better? A net lease or a gross lease?...well it
depends which side of the lease you are standing on. The main difference between a net and gross
lease, comes down to who shoulders the risk of increasing operating costs. Under a gross lease, a tenant has committed
to a set amount of rent for the lease term.
If the operating costs increase during the term of that lease term, the
landlord “eats” those costs, thereby cutting into his/her effective rent. Under a net lease however, the Additional
Rent charged for operating costs fluctuates throughout the term of the
lease. Since landlords are recharging
the tenants for common area costs, any increases are simply passed on to the
tenant. Tenants may prefer a gross lease
since it represents a steady and guaranteed rent, and no risk of increasing
common area costs during the length of the lease. Landlords on the other hand tend to prefer a
net lease where there is a steady and guaranteed base rent, and any risk of
increased expenses is simply passed along to the tenant.

Ashley Urquhart is the Senior Manager of our Brokerage Division. She has a vast network of contacts and would be happy to assist you with all your leasing needs. Feel free to contact Ashley at (902) 429-1811 or aurquhart@turnerdrake.com.

Now is the time of year where many companies are cleaning
house. Auditing departments are analysing and assessing inventory, and looking for
ways to minimise losses – kicking off the New Year in stride! Unfortunately, during this process many building
owners and managers overlook the main driver of their revenue – the very square
footage upon which leases are based.
It has become increasingly common for building owners and
managers to rely on historical figures when selling or purchasing a property. Many put their trust in building and unit
sizes that have been carried forward for years, or even decades. Considering building revenues and overall property
values are directly correlated to building size, wouldn’t you want all of your
ducks in a row before purchasing or selling a property? In other words, when making an investment
decision, why rely on areas that have not been certified?
Space certification is more than just an independent, third
party confirmation of the size of an existing space. It can also be a crucial vehicle for
unlocking additional property value.
Recently one of our clients was in the process of negotiating
the purchase of a large multi-tenant industrial building. The owner provided our client with the
overall building area together with segregated unit areas. The owner had openly stated the areas had not
been measured in at least ten years and so prior to making his final investment
decision, he engaged our Lasercad® team to verify the areas with a space
certification of the building. Once the
tenant spaces were measured and the rentable areas calculated in accordance with
the appropriate standard method of measurement, we came to an astounding
conclusion. Our space certification
rendered a total rentable area which was more than 10% higher than the owner-provided
areas! The building area had been
understated for the past 10 years (or more). From an investment standpoint our client was
floored. Based on the current market
rates for the area, the owner had been losing out on approximately $35,000 per
year of additional revenue. The
potential revenues which could be realised from the previously understated
building size played a major role in determining the overall value of this multi-tenant
industrial building.
Although some building owners and managers may overlook the
source of their building and unit sizes, many others have been pro-active in
implementing space certification as a standard procedure - especially when
making investment decisions. Regardless
of whether you are buying, selling, or leasing, it is essential to know where
the underlying areas originate from. The
square footage of your building is typically the core revenue driver and often
times, these areas are understated. Now
is the time to get a grip on your inventory and ensure you’re maximising its
value. [1].jpg)
Patrick Mitchell is the Senior Manager of our Lasercad® Division and also highly involved in our Valuation Division. For further information on how to maximise your property’s value through space certification please don’t hesitate to reach out. Patrick can be reached at pmitchell@turnerdrake.comor by phone at 902-429-1811.

Specific Claims are launched by a First Nation band against the
Government of Canada for historic grievances, typically over issues like
unfulfilled treaty obligations, loss of reserve lands and mishandled First
Nation funds. The most common cases that cross our desk involve the sale of
reserve lands by the government of the day without the Band’s consent, either
because it was never surrendered by them or because it was invalidly surrendered.
The events are always historic and quite often pre-date Confederation
– a time when settlers were actively seeking to establish themselves in the new
world and the government of the day was eagerly trying to accommodate them
through grants and leases of land. And
sometimes that happened to be unsurrendered reserve land.
Those readers with a penchant for all things historical will find
interesting reading on the origins of these claims by researching King George III’s
“Proclamation of 1763”, issued in those turbulent times of squabbling between
the French and the British. It imposed a fiduciary duty of care on the Crown
which endures to this day, and is enshrined in the Constitution Act of
1982. Heady stuff.
Our involvement in these files begins when the historical research has
been done and the claim has been accepted by the government for negotiation.
The stage is then set for negotiations to begin over the amount of compensation
that the FN should receive from the Government of Canada.
The structure within which these negotiations take place is laid out
in federal government guidelines. The first, released in 1982, set out the
policy on specific claims and established guidelines for the assessment of
claims and negotiations. These were tweaked under successive governments but
the fundamentals remain the same. They
can currently be found in the document entitled “Specific Claims Policy and
Process Guide”, available online and currently (still) under review.
We have been actively engaged on claim files in the Maritime provinces
since the company began over 40 years ago – impressive, but a mere blink of the
eye within the context of the time periods actually covered by these types of
claims. Our involvement occurs in one of two ways. 1.
As an independent Consultant, hired under a
joint terms of reference to calculate the ingredients of the claim, which then
forms the platform for negotiations between the parties. 2.
As a Technical Expert on behalf of the First
Nation, advising their negotiation and legal team on the technical aspects of
the claim, ensuring that the process follows the guidelines and that the FN
receives the compensation it is due.
We have represented (or continue to represent in currently active
claims) over half a dozen First Nations throughout NS and NB, usually in the role
of Technical Expert.
The structure of a claim is set out in the guideline and usually there
are two components, calculated separately but intrinsically linked through the
historical record. (1) Current Unimproved Market Value - Where a
claimant band can establish that certain of its reserve lands were never
lawfully surrendered, or otherwise taken under legal authority, the band shall
be compensated either by the return of the lands or by the current unimproved
value of the lands. A relatively straight forward process….. (2) Historical Loss of Use -
Compensation will include an amount based on the loss of use of the lands in
question, where it can be established that the claimants did in fact suffer
such a loss. This can include losses from timber, agriculture, minerals and
aggregates, fishing rights, land rental losses and a myriad of other
components. A far from simple process,
often involving experts from different fields … and forests. The claim clock
begins when the lands where first taken – usually 100 years or more in the
past.
The process is not a quick one.
Reconstructing historical events – and placing a value on them - takes time and
diligence. This is no splash-and-dash
appraisal job. And rightly so because
there is much at stake here. Claims typically run into the millions of dollars
and the calculations behind them must withstand robust scrutiny by both
sides. The cost of righting past wrongs
does not come cheaply – or quickly. .jpg)
Lee Weatherby is the Vice President of our Counselling Division. If you'd like more information about our counselling services, feel free to contact Lee at (902) 429-1811 or lweatherby@turnerdrake.com

Happy
GIS Week! We were working recently on an assignment in the
Annapolis Valley, the land of orchards and sloping vineyards…and that got us
thinking about the impact of elevation on land area. Ultimately, the question is one of land
value: inherent in the value of agricultural land is potential crop yield. More land area equals more growing potential equals
more value. Where slopes are acceptable
or even advantageous, they may serve double duty in that sloped land is larger
than it seems. Our Valuation Division’s MO is to maximise your property
value…this is an Economic Intelligence Unit blog post, and this is GIS Week, so
we’re going to geek out on how to ensure you’re counting all your land, using a GIS, a little high school math, and a fair
bit of Pythagoras[i]. Pythagoras’ Theorem defines the relationship between the
sides of a right triangle with the equation a² + b² = c². Side “c” is the hypotenuse, and is always the
longest of the three sides.
For illustrative
purposes, we created a convenient, perfectly rectangular, parcel. It measures 500 x 1,150 m, for a total area
of 575,000 m² (57.5 hectares).

That is:
 But the land comprising
this parcel is sloped. The contour lines
added to the image below demonstrate the degree of the slope; on average, there
is an elevation differential between the highest and lowest elevations of 140
m.

Thus, the 500 m parcel dimension is effectively 519.2 m: 
and
the effective land area is 597,080 m²
(59.7 ha.), a difference of 22,080 m²
– over 2 hectares of extra space for crops!
This
is a highly simplified example of the impact of slope on land area. There are many other factors to take into
account, such as the tipping point between beneficial slopes and unusable
inclines. But in a world where “land:
they’re not making any more of it,” holds true, the most informed decisions are
the best ones. Where a precise figure is
required, you’ll need to call in a professional land surveyor. But when an area scaled from a map is fit for
purpose, using a GIS and a little high school math can yield a more useful
number than you’d get from a regular map.
P.S.
a related fun fact was shared at Wednesday night’s Geomatics on the Town event (part
of the 2018 Geomatics Atlantic Conference): tree planters space their seedlings
at a certain distance from each other.
For one tree planter, this was the equivalent of 3 steps on flat ground,
but on sloped terrain, it was 12 steps in order to leave sufficient room
between trees!
[i]
Mainly for defining the relationship between the sides of a right triangle, but
a little bit for first floating the idea that the Earth is a sphere...it comes
into play in measuring distance. There
are two methods of measurement in a GIS, Cartesian and Spherical. The Cartesian method calculates distance and
areas based on data as projected onto a flat surface (like scaling from a paper
map), while the Spherical method accounts for the curved surface of the Earth
(like scaling on a globe). The distances
in this example were measured in MapInfo using the Spherical method.

Alex Baird Allen is the Manager of Turner Drake's Economic Intelligence Unit, and has a high level of expertise and interest in GIS. If you'd like to reach Alex, call 902-429-1811 Ext.323 (HRM), 1-800-567-3033 (toll free), or email ABairdAllen@turnerdrake.com

Why Hire a Commercial Broker? How a Commercial Broker Adds Value in Real
Estate Transactions
There are ample online and
offline resources available at your fingertips to help you purchase or sell a
commercial property on your own – so why hire a broker? If you have the time,
negotiating skills, real estate market information, and understand your target
market and how to reach them, you don’t!
However, unless you can say
yes to all of the above, here is how a commercial Broker adds value to your
transaction:
1. Your time is valuable. Letting a Broker do the heavy lifting and
deal with “tire kickers” allows you to focus on your business.
2. Brokers have the contacts
and resources to market your listing or find you a suitable property, ensuring
all opportunities are uncovered.
3. Brokers understand your
target market and how to reach them.
4. Brokers do not have an
emotional attachment to the property or transaction.
5. Brokers are often members
of local real estate associations, which can provide you with access/exposure
to the MLS system in addition to their own websites, social media platforms,
and databases.
6. Brokers have the inside
track on market data, sales transactions, planning considerations and players
in the market who are looking to purchase or sell commercial properties. They can
help you determine a reasonable price and can help maximise market exposure.
7. Brokers know how to
properly measure a building and collect the property information required, such
as any material latent defects that must be disclosed in a transaction, which
can avoid future lawsuits.
8. Brokers prepare Purchase
& Sale Agreements, Counter Offers, etc. on your behalf, saving you from hiring
a lawyer to assist with these items.
So, once you’ve decided to
hire a commercial broker, how do you choose which broker/brokerage to represent
you? The short answer is to simply hire the broker with whom you feel most
comfortable. There are many excellent commercial brokers locally, so meet with
a few, ask them questions, and choose the broker you feel will best represent
you, and who understands your wants and needs. Each commercial broker has their
own strengths; it is up to you to determine which one is the best fit for your
organisation.
As Senior Manager of our Brokerage Division, Ashley Urquhart assists
both landlords and tenants meet their space requirements, and vendors and
purchasers optimise their property portfolios. For more real estate brokerage advice, you can reach her at
aurquhart@turnerdrake.com or 1 (800) 567-3033.
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