ABSTRACT
This paper offers the concept of embedded property as a way of thinking about and understanding condominium property, and of explaining how ownership of land within condominium is changing the character of ownership. It does so by describing property within condominium as spatially embedded, politically embedded, and temporally embedded, and then by demonstrating how these different, albeit overlapping, modes by which condominium embeds property are forcing courts and legislatures to reconsider long-accepted and well-understood incidents or attributes of land ownership. In identifying the spatial embedding of condominium property and its impact on understandings of ownership, the paper reviews the judicial responses in the Canadian provinces of Ontario and British Columbia to the chronic anti-social behaviour of individual owners. To consider the political embedding, it turns to the legislative framework and judicial decisions from several Australian states and Canadian provinces involving disputes over the capacity of condominium corporations to restrict rentals, particularly short-term rentals. Finally, it describes and considers the temporal embedding of condominium property through a discussion of the shift in many statutory condominium jurisdictions away from a presumption that the dissolution of condominium requires the unanimous consent of owners, to a presumption that dissolution, and thus the termination of private property interests within condominium, may proceed on the basis of a supermajority vote. The analysis reveals that the spatial, political, and temporal embedding of property is straining accepted understandings of land ownership, and judges and legislators are responding to this pressure by changing the character of ownership in land.
Harris, Douglas C, Embedded Property (December 1, 2020) in Randy K Lippert and Stefan Treffers, editors, Condominium Governance and Law in Global Urban Contexts (Abingdon: Routledge, 2021) 29.
First posted 2021-02-15 06:06:23
Leave a Reply