“My husband is a great talker and a great planner,” says Cathie Cowie, explaining how her late spouse Art Cowie managed to build Vancouver’s first fee simple demonstration project.
Even though the former politician, landscape architect and housing advocate died last November at 75, it seems natural to use the present tense when describing him. After all, what may turn out to be his most enduring legacy is just now nearing completion and ready for market.
Although a few zero-lot-line row houses have been built in the suburbs of Vancouver, the Cowie row-house complex at Cambie and 33rd is the first high-profile experiment designed specifically to showcase fee simple as a viable building type, and could thus prove to be a revolutionary experiment.
For decades, the former MLA and city councillor had thought about and fought for the establishment of row houses that you own outright rather than communally – the kind you see throughout Montreal, Toronto, Europe and much of the rest of the world.
But in British Columbia, the legal framework makes fee-simple construction of row houses all but impossible. It’s because the provincial Land Title Act is missing a crucial provision to deal with the “party wall” – the wall you share with your next-door neighbour.
Without a party-wall provision to facilitate individual row-house ownership, the strata system – in which home buyers in effect purchase a portion of the whole complex rather than a single, discrete row house – has become entrenched as the norm in Vancouver since the late 1970s.
It allows, and forces, owners to pool resources for repairs and landscaping, and many decisions from pet accommodation to flower choices have to be approved by the strata council.
The strata concept is off-putting to owners who like to manage their own home maintenance. It can also be a psychological barrier to those who like to feel they truly “own” their properties from ground to rooftop, rather than buying abstract communal rights or airspace.
“The market does prefer fee simple,” says Vancouver chief planner Brent Toderian, who has worked on fee-simple projects in Alberta and Ontario.
The City of Vancouver has been “very, very interested” in establishing fee-simple row houses as a new housing type for several years, Mr. Toderian says. “This is a housing type that resonates,” he says – especially in smaller-scale neighbourhoods that are wary of the density accommodated by high-rise towers.
In 2008, the city put in a formal request to the province to address the party-wall provision, but that request seems to be straggling in a labyrinthine queue of other legislative matters.
For a fee-simple row-house project to be viable, the legal agreement for maintaining and repairing party walls must be legally clear. But under the current Land Title Act, there is no way to ensure that any such agreement would “run with the land” – in other words, carry on in perpetuity after the home is sold by the original owners. According to the City of Vancouver’s legal department, “negative” covenants can run with the land – for instance, an edict forbidding the slaughter of chickens on the front stoops – but “positive” covenants – such as a provision enforcing repair of the party wall – cannot.
In order to work within the existing legal framework, Mr. Cowie had to construct his complex as a kind of demonstration model. The row houses’ party walls are actually two concrete walls separated by one inch of air space. That structurally unnecessary but legally crucial airspace means that these units are technically detached houses.
Mr. Cowie’s team did have to argue to procure what is effectively a zero-lot-line project, with units built so close together that they are in almost every sense of the word like a regular row house.
