Robert Driscoll and Margaret Craig Driscoll v. Municipal Property Assessment Corporation, 2015 CanLII 37187

Assessment Review Board Commission de révision de l’évaluation foncière

ISSUE DATE: June 23, 2015 FILE NO.: WR 124567 Assessed Person(s): Robert Driscoll and Margaret Craig Driscoll Appellant(s): Robert Driscoll and Margaret Craig Driscoll Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 02 Respondent(s): Township of Tay Valley Property Location(s): 760 McLaren Road Municipality(ies): Township of Tay Valley Roll Number(s): 0911-911-010-27051-0000 Appeal Number(s): 2993142, 3003072 and 3070482 (deemed 2015) Taxation Year(s): 2013, 2014 (and deemed 2015) Hearing Event No. 557996 Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended Heard: March 7, 2014 in Perth, Ontario

APPEARANCES:

Parties	Counsel+/Representative
Robert Driscoll and Margaret Craig Driscoll	Self-represented
MPAC	Roxanne Poulain and Walter Fleming
Township of Tay Valley	No one appeared

DECISION OF THE BOARD DELIVERED BY TERRY DENISON

BACKGROUND

1The Appellants, Margaret and Robert Driscoll, are the owners of property known municipally as 760 McLaren Road, in Tay Valley Township. The property is their residence and is located in Burgess Wood, a 70 lot rural subdivision on the north shore of Otty Lake and south of the Town of Perth. Their property is not located on water but shares a deeded access to Otty Lake in common with the other lots in the subdivision.

2MPAC assessed the property for the January 2012 valuation day with a current value of $420,000. During the Request for Reconsideration (“RFR”) process MPAC offered to reduce the assessment to $373,000, which was not acceptable to the Appellants. MPAC proposes in this hearing that the correct current value of the property is $373,000. The Appellants suggest that a further reduction is required to achieve equity with the assessment of similar properties in the vicinity.

ISSUES

3The issues in this hearing are:

• Is $373,000 the correct current value for the subject property on a January 12, 2012 valuation day?
• Should the assessment be reduced to make it equitable to the assessments of similar properties in the vicinity?

DECISION

4The correct current value of the subject property on a January 12, 2012 valuation day is $373,000. There is insufficient evidence to reduce the assessment further to achieve equity with the assessments of similar properties in the vicinity.

Evidence of MPAC

5Walter Fleming is a Property Valuation Analyst with MPAC. He has the designation A.I.M.A., and is an experienced valuator whose evidence has been accepted previously by the Assessment Review Board (“Board”). He prepared a Valuation Report of the subject property which presented to the Board in evidence.

6Mr. Fleming’s Valuation Report, filed as Exhibit 1, provided a physical description of the subject property and the vicinity. He relied on an examination of four sales of comparable properties, using time adjusted sales prices to arrive at his opinion of the current value of the subject property.

7Appendix A of the Valuation Report is a Market Analysis utilizing sales information of four comparable properties to estimate the current value of the subject property on the statutory valuation day. The four properties are within the Burgess Wood subdivision, and sold close to the valuation day. Mr. Fleming views the properties as relatively comparable to the subject, except Sale A which it viewed as inferior. The sales prices, time adjusted to the statutory valuation day of January 1, 2012 are the following:

Sale A	469 Lakewood Road	$288,468
Sale B	1049 McLaren Road	$412,190
Sale C	856 McLaren Road	$343,012
Sale D	869 McLaren Road	$369,374

8Sale A was viewed as inferior to the subject because it had a smaller lot, an older structure, and a smaller building size than the subject. Mr. Fleming’s conclusion was that because this property was inferior and sold for a time adjusted price of $288,468 the subject would sell for a greater amount.

9Sale B was considered to be relatively comparable to the subject although it had a slightly smaller lot, smaller building size but similar quality and was four years newer. It had one full bath and one half bath compared to three full baths in the subject. Both have detached garages, fireplaces and decks, but B also has a carport. It has a time adjusted sales price of $412,000.

10Sale C has a smaller lot and is four year older than the subject. The home is slightly smaller but of similar quality. Unlike the subject it does not have a finished basement and it has two full baths, not three like the subject. It has a detached garage like the subject, but a smaller one. It had a time adjusted sale price of $343,000 and is considered to be relatively comparable to the subject.

11Sale D, which Mr. Fleming considered as most comparable to the subject, has a smaller lot size and slightly smaller building size. It has one full bath and one half bath compared to three full baths in the subject. It does not have a fireplace, and it has an attached garage compared to a detached garage with the subject. It had a time adjusted sale price of $369,000.

12Mr. Fleming estimated that the subject property would have a market value on the valuation day of $373,000 based on his review of the four comparables. He views this to be a reasonable current value and one that is correct within the context of s. 40 of the Assessment Act (“Act”).

13Mr. Fleming also considered his conclusion of the current value to be equitable within the meaning of the Act and provided an Equity Analysis attached to his Valuation Report to support his conclusion.

14Mr. Fleming was cross-examined by Mr. Driscoll. During the cross-examination Mr. Driscoll acknowledged Mr. Fleming’s Valuation Report as “excellent” and did not challenge the four comparables used in the report.

15Mr. Driscoll asked if Mr. Fleming had taken into account the application of Ontario Regulation 341/12 which deals with the assessment of a shared comment element in a subdivision such as the deeded water access that is shared by the lots in the Burgess Wood subdivision and Mr. Fleming assured him that he had done so. He also sought details of Mr. Fleming’s equity analysis and asked Mr. Fleming to update the calculation of the Assessment Sales Ratio (“ASR”) for properties in Burgess Wood, which Mr. Fleming did.

Evidence of the Appellants

16Mr. Driscoll presented evidence for his wife and himself. He filed a document styled as a Factum with materials he relied on during the RFR process, including 10 pages of Registry Office abstracts and maps. Although these were filed in the hearing they were not elaborated on or explained during Mr. Driscoll’s oral evidence.

17In essence his evidence was that he felt that his property was most like MPAC’s Sale D, 869 McLaren Road, which had a time adjusted sale price of $369,000. He said it had an assessment of $354,000. Accordingly he felt the assessment of the subject should be the same.

18During cross-examination by MPAC Mr. Driscoll acknowledged that his property had a larger lot than 869 McLaren Road, a slightly large building size, and had additional features such as an additional full bathroom and a fireplace. He also acknowledged that his references to sales had not been time adjusted.

Relevant Legislation

19For the 2013 and 2014 taxation years, the Act requires that the value at which land shall be assessed shall be based on its current value on the valuation day, which is January 1, 2012 for this appeal.

20Section 19.(1) of the Act states:

19.(1) Assessment based on current value. - The assessment of land shall be based on its current value.

21Section 1 of the Act defines current value:

"current value" means, in relation to land, the amount of money the fee simple, if unencumbered, would realize if sold at arm's length by a willing seller to a willing buyer.

22Section 19.2(1) 3 of the Act defines valuation days:

19.2(1) Valuation days. – Subject to subsection (5)¹, the day as of which land is valued for a taxation year is determined as follows:

2. For the period consisting of the four taxation years from 2009 to 2012, land is valued as of January 1, 2008.

3. For each subsequent period consisting of four consecutive taxation years, land is valued as of January 1 of the year preceding the first of those four taxation years.

23The Act sets out the task that the Board has on an appeal, that is, to determine the current value and, if necessary make an adjustment to achieve equity:

44.(3) Same, 2009 and subsequent years. – For 2009 and subsequent taxation years, in determining the value at which any land shall be assessed, the Board shall,

(a) determine the current value of the land; and

(b) have reference to the value at which similar lands in the vicinity are assessed and adjust the assessment of the land to make it equitable with that of similar lands in the vicinity if such an adjustment would result in a reduction of the assessment of the land.

24The Act places the burden of proof of the current value on MPAC:

40.(17) Burden of proof. - For 2009 and subsequent taxation years, where value is a ground of appeal, the burden of proof as to the correctness of the current value of the land rests with the assessment corporation.

25The Act requires the Board to make its decision based on the evidence and submissions made to it during a hearing:

40.(19) Board to make determination. - After hearing the evidence and the submissions of the parties, the Board shall determine the matter.

26In this proceeding the parties referred to Ontario Regulation 341/12 made under the Act. This amends the General Regulation that is Ontario Regulation 282/98, under the Act by adding s. 45.4 regarding “Residential Communities. This provision is to set out the assessment treatment when residential lots in a plan of subdivision share other land in common with the community for uses such as parkland, pathways or other common amenities. It reads as follows:

Residential Communities

45.4 (1) For the purposes of this section, a residential community is composed of the following parcels of land located in the same immediate vicinity:

1. Residential lots, which are parcels of land in the community that are used for residential purposes and that are owned by persons who also own common land in the community.

2. Common land, which are parcels of land,

i. that are parkland, pathways or other common amenities intended for the use of the owners of residential lots in the community,

ii. that are owned by two or more persons, each of whom also owns a residential lot in the community, and

iii. that are not subject to a condominium plan. O. Reg. 341/12, s. 1.

(2) The following rules apply to a residential community for the 2013 and subsequent taxation years:

1. The current value of a residential lot shall reflect the value that the common land in the community adds to the value of the residential lot.

2. The current value of common land is deemed to be zero.

3. No notice need be given under subsections 31 (1) or 35 (1) of the Act with respect to common land. O. Reg. 341/12, s. 1.

Findings and Analysis

27MPAC presented evidence of sales of comparable properties in the Burgess Wood subdivision in the time frame of the statutory valuation day. The comparability of the properties was not contested by the Appellants.

28MPAC also provided evidence to show that the assessment of similar properties in the vicinity of the subject was equitable.

29The Appellants did not present evidence that contradicted MPAC’s evidence, but sought to have their assessment be the same as 869 McLaren Road. While this property is very similar to the subject it has some differences which would make it slightly less valuable than the subject and the conclusion of MPAC that the current value of the subject is $373,000 is reasonable and supported by the sales evidence presented.

30Based on the evidence and submissions of the parties the Board finds that the correct current value of the property is $373,000 and that there is not sufficient evidence to require a reduction of the assessment to achieve equity with the assessment of other properties in the vicinity.

31Therefore, the assessment returned on the roll at $420,000 is reduced to $373,000 for taxation years 2013, subject to any phase in provision applicable.

2015 DEEMED APPEAL

32An appeal for the 2014 taxation year is presently before the Board. Section 40.(26) provides that the appellant is deemed to have made the same appeal for the subsequent taxation year if the appeal is not finally disposed of before March 31 of the subsequent taxation year. The Board has not disposed of the 2014 appeal before March 31, 2015. For that reason, this decision also applies to the 2015 taxation year.

33Section 40.(26) of the Act directs:

Deemed appeals, 2009 and subsequent years

For 2009 and subsequent taxation years, an appellant shall be deemed to have brought the same appeal in respect of a property,

(a) in relation to the assessments under sections 32, 33 and 34 for the year; and

(b) in relation to the assessment, including assessments under sections 32, 33 and 34, for a subsequent taxation year to which the same general reassessment applies, if the appeal is not finally disposed of before March 31 of the subsequent taxation year or, if an assessment has been made under section 32, 33 or 34, before the 90th day after the notice of assessment was mailed.

Footnotes

1. 1Subsection 5 permits the Minister to prescribe a different valuation day. A different day has not been prescribed.