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An Air Space Parcel
When I say that you can own air, you might think I have been re-watching a 2009 Pixar movie of a house tied to balloons but there is indeed such a thing. An "air space parcel" is a 3D portion of space above a piece of land that can be subsequently owned, sold, or leased.
Section 133 of The Real Property Act, CCSM c R30 allows for the creation on an air space parcel.
Interpretation
133(1) In this section "air space parcel" means a volumetric parcel, whether or not occupied in whole or in part by a building or other structure, shown as such in an air space plan.
Creation of air space parcels
133(2) The registered owner may, with the consent of all persons appearing on the register and general register to have a charge, claim or interest in the land, create air space parcels separated by surfaces and obtain title to them by the registration of an air space plan.
Requirements of the plan
133(3) An air space plan shall not be registered unless
(a) the title to the land of which the air space parcels are part is registered under this Act;
(b) the land of which the air space parcels are part is at least a whole lot or parcel shown on a subdivision or explanatory plan registered under this Act;
(c) the plan contains the certificate of a land surveyor that he was present at and personally superintended the survey represented by the plan and that the survey and plan are correct; and
(d) the plan has been approved by the Examiner of Surveys.
Parcel may be subdivided
133(4) An air space parcel created by the plan constitutes land and may be transferred, leased, mortgaged, charged or otherwise dealt with in the same manner as other land registered under this Act and may be subdivided in accordance with The Condominium Act.
The key to this Section is that you must own an existing parcel of land in order to create an air space parcel above that parcel of land. When Portage Place Mall was being developed, it was intended that there would be two high rises at either end, so two air space parcels were created for those purposes. It has only taken a mere 60 years or so but they are finally intended to be built.
Having an air space parcel is a very clever way of obtained multiple uses out of a singular building with multiple ownership structures as allowed for in subsection 133(4). A common example is a large skyscraper that has a commercial use, a parkade use, an office use, an apartment use, a condominium use and any combination thereof. There currently are a few properties in Winnipeg that have buildings built within an air space parcel and as the city starts to become more urbanized, air space parcels may indeed become more prevalent. A recent example is the apartments of 300 Main Street which have been built above Winnipeg Square.
Because air space parcels are intertwined with the parcel of land below them and in some cases, other air space parcels as well, the creation of air space parcels are paired with title based arrangements such as easements for access, structural support, and cost-sharing/shared servicing agreements that can run with the land and air space parcel(s) to bind any respective future owners.
If you have a parcel of land, creating an air space parcel might be a solution to your development plans.
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.
