Coins in a guitar case in a street

Delineating where private property rights end

Toronto city staff to investigate use of visual aids on major commercial thoroughfares
Thursday, October 2, 2014
By Michelle Ervin

The City of Toronto is investigating the use of visual aids to delineate where private property rights end and public property begins. The move follows a widely reported incident, in which a security guard at a Yonge and Bloor area property cut a bike off a post later determined to be city infrastructure located on a public right of way.

Coun. Kristyn Wong-Tam, who represents the ward where the incident occurred, passed a successful motion at Toronto City Council’s late August meeting to have staff report back with a recommended process and implementation guidelines for the use of visual aids. Her motion specifically focused on major commercial thoroughfares.

In the case of the bike-cutting incident — and a subsequent concern about buskers — Wong-Tam consulted with the city’s Transportation Services division to determine the location of the property line. The bike owner believed the post was public property and the security guards believed the property owner’s authority extended to the edge of the curb.

“Because there was a continuous surface treatment, in terms of material and design of the plaza directly in front of the Brookfield property and that of the public sidewalk, it was very unclear for those who were involved in the disputes on what was public and what was private,” said the councillor.

In New York, visual markers show property boundaries with bronze plates or thin bronze and granite bands. Visual markers denoting property lines do exist in Toronto, but they’re rare.

Whatever staff may recommend, Wong-Tam’s goal is to provide greater clarity for property owners, the public, Municipal Licensing and Standards bylaw enforcement staff and even Toronto police.

“Whoever’s on the property, we just point to the line that’s demarcated in the roadway and say, ‘This is public, this is private. You may stand over here, not over there’,” she said.

Wong-Tam added that the intent isn’t to “over-police” roadways. She envisioned the potential use of visual aids as a tool reserved for when an activity was causing a nuisance or unsafe conditions.

Security expert David Hyde, owner of David Hyde & Associates, said a range of activities occurring on or adjacent to a property may cause concerns for its owner.

Bikes, for example, may pose a tripping hazard for both building visitors and the public, and especially for anyone who has mobility issues or visual impairment. Aggressive panhandlers may be another cause for concern, while buskers, or “street performers,” may be viewed as desirable.

When Hyde does a security audit, the first question he asks is: Where is the property line? It’s important for property owners to know where their property ends, on all sides, he said. Ownership is where the legal rights to regulate access to and behaviour on a property flow from.

In Ontario, the Trespass to Property Act enables property owners to remove trespassers using escalating measures all the way up to a physical arrest.

However, Hyde cautioned, property owners need to consider the risks associated with exerting the full force of their legal rights in the age of social media, especially in the more public areas of their properties.

“Security people need to be, often, better trained in balancing their legal obligations with the best interests of not only the property owner, but the best interests of the public, through a corporate social responsibility lens,” he said.

While Hyde saw the potential benefits of having clearly defined property lines, he characterized public easements and rights of way as “hybrid” spaces.

“We’re seeing more and more of this, and they become grey areas where property owners have to allow the public onto them,” he said. “But if misbehaviour occurs, or safety issues occur, who has the right to enforce the rules, and is it the property owner’s rules or the city’s rules?”

Ideally, Hyde added, neighbouring public and private property owners would collaborate on shared security concerns.

Wong-Tam offered the same advice she offered to the property owner that overstepped its purview in the bike-cutting incident to all property owners: Where private property owners have concerns about activities occurring on public property, they can call the city’s 311 line or Toronto police.

Toronto city staff are expected to report back to the public works and infrastructure committee in early 2015 with recommendations for the potential use of visual aids on major commercial thoroughfares.

Michelle Ervin is the editor of Canadian Facility Management & Design.