Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: January 31, 2019

FILE NO.: WR 157542

Assessed Person(s)/Appellant(s): Richard Joseph Tyndorf and Irene Christine Tyndorf

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 15

Respondent(s): Town of Oakville

Property Location(s): 165 Westdale Road

Municipality(ies): Town of Oakville

Roll Number(s): 2401-020-010-12600-0000

Appeal Number(s): 3262474 and 3306456

Taxation Year(s): 2017 and 2018

Hearing Event No.: 705465

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: November 7, 2018 in the Town of Oakville

APPEARANCES:

Parties Representative

Richard Tyndorf and Christine Tyndorf Richard Tyndorf

MPAC Curtis Nielsen Valerie Lamothe

Town of Oakville Susan Price

DECISION OF THE BOARD DELIVERED BY ANTHONY LaREGINA

Background

1Richard Tyndorf (the “Appellant”) is the owner of 165 Westdale Road (the “subject property”), which is a 0.36 acre parcel of land containing a single-family detached bungalow. The subject property has an effective frontage of 100 feet and an effective depth of 155 feet for a total land area of 15,500 square feet.

2The bungalow has an actual year built of 1957 then had a B renovation in 1989 resulting in an effective year built of 1973 and a quality of construction of 6.5. The total building area is 2,094 square feet on the main level and 2,094 square feet in the basement of which 910 square feet is finished space. The bungalow has three bedrooms, three bathrooms, and one fireplace. The subject property has an attached garage with 480 square feet of building area also built in 1957 and an outdoor pool built in 1985 with an area of 576 square feet.

3Pursuant to the provisions of the Assessment Act, R.S.O. 1990, c. A.31, (the “Act”), the assessment of land shall be based on its current value. The Act also provides that, for the 2017 to 2020 taxation years, MPAC is required to assess this value as of the valuation date, January 1, 2016 (“current value”).

4MPAC has assessed the current value of the subject property at $1,413,000.

5The Appellants filed appeals for taxation years 2017 and 2018 with the Assessment Review Board (the “Board”), pursuant to s. 40 of the Act. It is their position that MPAC’s assessment of current value is too high and that the correct assessment is $1,271,000. At this hearing, MPAC and the Town of Oakville take the position that its assessed value is correct.

6Section 44.(3)(b) of the Act directs the Board to reduce the current value of the subject property if similar lands in the vicinity have been assessed at a lower value (“equitable reduction”). The purpose of this provision is to fairly distribute the municipal tax burden according to the value of the property possessed by each ratepayer.

7MPAC takes the position that an equitable reduction is not required. The Appellant has taken the position that a reduction in assessment is justified based on the assessment of similar homes on the same street as the subject property.

8At the completion of the hearing, the Board reserved its decision. For the reasons that follow, the Board finds that the current value assessment for the 2017 and 2018 taxation years is $1,413,000. Pursuant to s. 44.(3)(b) of the Act, an equitable reduction of this value is not required.

Relevant Legislation

9The Act states:

1. “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.

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

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

4. For the period consisting of the four taxation years from 2017 to 2020, land is valued as of January 1, 2016.

40.(17) 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.

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.

Issue

10The issue to be determined on this appeal is the correct current value of the subject property for the taxation years 2017 and 2018.

MPAC’s Evidence

11Valerie Lamothe, representing MPAC, prepared both a Valuation and an Equity Report respecting the subject property, dated March 26, 2018, which she submitted into evidence.

12Ms. Lamothe identified five comparable property sales which sold in 2015 and 2016 in the vicinity of the subject property. These properties are illustrated in the following table.

Subject Property

Property 1

Property 2

Property 3

Property 4

Property 5

Address

165 Westdale Road

231 Westdale Road

1021 Westdale Road

235 Tilford Road

232 Tilford Road

55 Birch Hill Lane

Distance from Sub km’s

0

0.949

0.145

0.165

0.217

0.782

Current Value Assessment

$1,413,000

$1,409,000

$1,532,000

$1,137,000

$1,146,000

$1,667,000

Sale Date

September 2015

August 2015

April 2016

November 2016

November 2016

Sale Value $

1,500,000

1,605,000

1,252,000

1,680,000

1,900,000

TAS Value $

1,548,563

1,678,702

1,213,930

1,535,535

1,736,617

Effective Site Area - Acres

0.34

0.35

0.49

0.35

0.35

0.35

Effective Frontage (F)

100

100

100

74

100

125

Effective Depth (F)

155

155.8

184

169

150

121

Abuts Variable(s)

Green Space

Green Space

Green Space

Year Built

1957

1957

1956

1956

1956

1954

Eff Yr. Built

1973

1976

1956

1956

1956

2007

Modifications

B, Year 2009

Quality

6.5

6.5

6.5

6.5

6.5

7.0

Total Building Area S.F.

2,094

2,071

2,150

1,713

1,599

2,154

1st Floor Area S.F.

2,094

2,071

2,150

1,713

1,599

2,154

Basement S.F.

2,099

2,071

2,212

1,654

1,519

2,154

Finished Basement S.F.

910

1,810

1,750

600

0

1,000

Secondary Structure

Attach Garage

Attach Garage

Attach Garage

Attach Garage

Attach Garage

Attach Garage

Building Area S.F.

574

489

480

480

480

480

Secondary Structure

Outdoor Pool

Carport

Outdoor Pool

Outdoor Pool

Building Area S.F.

576

400

512

648

Similar/Superior/Inferior

Similar

Inferior - Demolished

Inferior

Inferior - Demolished

Superior

TAS value per sq. Ft.

$747

$780

$708

$960

$806

13Ms. Lamothe points out during her oral testimony that comparable Property 1, 231 Westdale Road, is similar to the subject property in that it abuts the same green space which is part of the Appleby College property. The homes in the area have unrestricted access to the green space which has walking paths leading to the Lake Ontario shoreline. The subject property is situated four homes from the lake. Ms. Lamothe further explains that the area is in the process of rejuvenation resulting in the old homes being purchased for their very desirable large lots and new homes are being erected. Ms. Lamothe points out that comparable Properties 2 and 4 are in this category.

14Ms. Lamothe demonstrated that the median time adjusted sale value per square foot of the five comparable properties is $780 which is substantially above the assessed value per square foot of the subject property at $674. Ms. Lamothe calculated the market value of the subject property based on $780 per square foot resulting in $1,634,977.

15Ms. Lamothe’s final opinion of current value for the subject property is $1,550,000 which she concludes is based on the $1,558,563 time adjusted sale value of 231 Westdale Road. Ms. Lamothe considers this property to be the best comparable property with an almost identical size lot, building areas, age, and quality of construction. Both are located on the same side of the street and both abut the same green space. If anything, 231 Westdale Road has a slightly inferior lot location situated 12 homes from the lake while the subject property is only four homes from the lake. In fact, 231 Westdale Road is 0.95 kilometres further away from the lake than the subject property.

MPAC’s Submissions

16Relying on its evidence, MPAC submits that the correct current value for the taxation years 2017 and 2018 is $1,550,000.

17Curtis Nielsen, also representing MPAC, submits that Mr. Tyndorf has disputed the effective year built of 1973 arguing that it should be 1964. MPAC requested an inspection of the subject property in an attempt to confirm the internal details of the property so that it could refine the final assessed value, and if required, correct the effective year built. Mr. Tyndorf denied the inspection.

18Mr. Nielsen further argues that these are prime properties located on green space very close to Lake Ontario and it is clear from the sales of neighbouring properties that the time adjusted sale value in many cases represents land value as demonstrated in the sales of comparable Properties 2 and 4. Mr. Nielsen argues that Mr. Tyndorf refuses to accept that his property is a valuable property as demonstrated by the sale of 231 Westdale Road which is identical to the subject property.

19Mr. Nielsen concludes his summation by requesting that the Board find the current value of the subject property to be $1,550,000 as of January 1, 2016 based on the time adjusted sale value of 231 Westdale Road.

20Mr. Nielsen points out that MPAC is not seeking an increase in assessment and therefore requests that the Board confirm the assessment of the subject property at $1,413,000 for the 2017 and 2018 taxation years.

21Mr. Nielsen also points out that Mr. Tyndorf has refused to accept that his property abuts green space arguing that it abuts Appleby College and that the college conducts activities in the green space from time to time creating noise and disturbing the residents. Mr. Nielsen submits that the Board decided on this point in its oral decision of the appeal for 223 Westdale Road and concluded that the green space owned by Appleby College can never be developed and must remain in its current state. The written decision, Lore v Municipal Property Assessment Corporation (“MPAC”), Region 15, [2018] O.A.R.B.D. No. 339, was released after this hearing.

Municipality’s Evidence

22Susan Price, representing the Town of Oakville, demonstrates in an aerial photograph that the subject property is located four properties away from Lake Ontario on a lot which abuts a forested area with a path to Lake Ontario. Ms. Price expanded her description of the subject lot stating its location south of Lakeshore Road West is considered a very desirable area in transition with half the old homes being redeveloped into new homes.

23Ms. Price entered into evidence four comparable sales in support of current value. They are 231 Westdale Road, 1021 Westdale Road, 1013 Westdale Road, and 235 Tilford Road.

24Ms. Price pointed out that both 1021 Westdale Road and 1013 Westdale Road were purchased and demolished to build new homes. Furthermore, the green space that abuts these two properties is not the same green space that abuts the subject property and therefore does not consider these to be the best comparables to establish the current value of the subject property.

25Ms. Price agrees with MPAC that 235 Tilford Road is inferior to the subject property in that it is a corner lot with a much smaller building area.

26Ms. Price also agrees with MPAC that the best comparable is 231 Westdale Road with an almost identical lot size, building area, quality of construction, and abuts the same green space of Appleby College as does the subject property.

Municipality’s Submissions

27Ms. Price submits that the Current Value of the subject property should be set at $1,550,000 based on the adjusted sale value of 231 Westdale Road.

Appellant’s Evidence

28The Appellant, Richard Tyndorf, claims that he did his renovation in 1989 adding the family room and an extension to the original kitchen as well as replacing the windows. At the completion of the work the building inspector and MPAC performed their inspections resulting in the building area increasing from 1,660 to 2,094 square feet and the effective year built being revised to 1964. Mr. Tyndorf claims that he has no knowledge how MPAC currently arrived at a 1973 year built.

29Mr. Tyndorf also argues that his property does not abut a green space but rather Appleby College, requesting that MPAC reduce the 4% additional assessment it is adding for the abut to green space variable and further reduce 1% to 2% for the fact that the subject property abuts an educational institution.

30Mr. Tyndorf also points out that his property is in a deteriorating state as the last time the property was updated was 1989, 30 years ago. He claims that the windows once again need replacement, interior and exterior work needs to be done including replacing the fence and repairing the concrete on the pool deck and structure. Mr. Tyndorf questions the $65,000 additional value MPAC attributed to the value of the pool. He believes it should be far less based on its condition. Mr. Tyndorf estimates that the repairs on the home are worth between $45,000 and $55,000 as demonstrated in the estimates and photos provided in his evidence package.

31Mr. Tyndorf relies on two sales in support of the current value of the subject property, 170 Wilder Drive and 145 Wolfdale Avenue.

32170 Wilder Drive was built in 1973, has a lot size of 0.34 acres with an actual frontage of 108 feet and an actual depth of 145 feet. The structure has a building area of 2,093 square feet and is listed as a quality 7. The home sold in February 2015 for $1,360,000 time adjusted to January 1, 2016 to $1,501,000. This property is assessed at $1,237,000 resulting in an assessment to sale ratio (“ASR”) of 0.82.

33145 Wolfdale Avenue was built in 1963, has a 0.35 acre lot with 103 feet of actual frontage and 145 feet of actual depth. The structure has 2,941 square feet of building area. The property sold in October 2016 for $1,638,000 time adjusted to January 1, 2016 at $1,497,000. This property is assessed at $1,228,000 resulting in an ASR of 0.815.

Appellant’s Submissions

34The Appellant submits that his home should have a current value of $1,450,000 closer to the adjusted sale value of 170 Wilder Drive of $1,501,237 with an adjustment of $50,000 for the repair work required on his home. Mr. Tyndorf believes his current value should be no more than $1,450,000.

Board’s Findings

35The Board has reviewed and analysed the five comparable property sales submitted by MPAC, four comparable sales submitted by the municipality and the two comparable sales submitted by the Appellant in support of current value and makes the following observations.

36The Board prefers to use sales of comparable properties which transacted as close as possible to the valuation date of January 1, 2016 to establish the current value of the subject property. In this case, all of the comparable property sales occurred in either 2015 or 2016.

37The Board is in agreement with both MPAC and the Municipality that the most similar, and therefore the best comparable property to establish the current value of the subject property, is 231 Westdale Road. This property has an identical lot size, the building area is within 23 square feet of the subject property and the building ages are virtually identical, both have the identical green space behind each property and both have attached garages of similar sizes. The subject property has a dated outdoor pool while 231 Westdale Road has a carport in addition to the garage.

38Based on the almost identical characteristics of 231 Westdale Road, the Board believes that 165 Westdale Road would likely have sold for a value similar to the actual sale price of 231 Westdale Road at $1,500,000. The Board will therefore rely on the actual sale price of 231 Westdale Road as the basis for establishing the current value of the subject property. The Board will not use the time adjusted sale of 231 Westdale Road as the sale occurred in September 2015 only four months prior to the January 1, 2016 valuation day.

39The Board will not rely on the sales presented by Mr. Tyndorf to establish the current value because they are located further from the lake and are not situated on the same green space as the subject property. The Board believes that 231 Westdale Road is by far the best comparable to establish market value of the subject property.

40Based on the evidence of the condition of the subject property, the Board agrees with Mr. Tyndorf on the required repairs. It is likely that a purchaser would either demand that those repairs be made, or require the cost of those repairs to be deducted from the purchase price. The Board therefore accepts that a $50,000 negative adjustment to the current value of the subject property is required and finds that the market value of $1,500,000 should be reduced to $1,450,000 to reflect the condition of the property.

41The Board therefore finds the current value of 165 Westdale Road to be $1,450,000 as of January 1, 2016 based on the best available evidence.

42With regards to the issue of whether the subject property abuts a green space, it is clear from Lore v. Municipal Property Assessment Corp., Region 15, [2018] O.A.R.B.D. No. 339, that the ownership of the property is not a criterion for establishing if the forested area backing onto the subject property is green space. The panel clearly decided that the forest abutting 223 Westdale Road, the same green space abutting the subject property, is under the jurisdiction of the Halton Region Conservation Authority designated as Green Space under Municipal Zoning and permitted uses are limited to Conservation, Private and Public Park etc. I fully support the decision of the panel that the abutting forest is green space. Finally, in this case it is not determinative because the best comparable, 231 Westdale Road, abuts the same green space and therefore the green space factor is built into the sale value of 231 Westdale Road and therefore into the current value of the subject property.

WHETHER THERE SHOULD BE AN EQUITABLE REDUCTION OF THE CURRENT VALUE PURSUANT TO S. 44.(3)(b) OF THE ACT, AND, IF SO, WHAT SHOULD THE AMOUNT OF THIS REDUCTION BE

MPAC’s Evidence

43Ms. Lamothe relies on her Equity Study showing a median ASR of 0.972 based on the arm’s length sales of 30 properties within the same homogenous area as the subject property which sold between January 1, 2015 and December 31, 2016. Her positon is that the ASR is within the reasonable range of 0.95 to 1.05 and therefore an equity adjustment is not required.

44She concludes that MPAC is not requesting an increase in assessment and therefore the assessment of $1,413,000 as returned should be confirmed for the 2017 and 2018 taxation years.

Municipality’s Evidence

45The Municipality presents no evidence and takes no position on equity.

Appellant’s Evidence

46The Appellant is of the opinion that the subject property is assessed too high. He proposes a lower assessed value of $1,271,000. He references two neighbouring properties, 175 Westdale Road and 198 Tilford Road, with assessments of $1,282,999 and $1,384,000 respectively, which are lower than the assessment of the subject property at $1,413,000.

47The Appellant points out that 175 Westdale Road is located on the same street with the same green space, was built in 1956, and added a family room in 1972. This property has a lot size of 100 feet frontage by 155 feet of depth, building area of 2,131 square feet, and a refurbished pool, all very similar to the subject property. Mr. Tyndorf points out that 175 Westdale Road is assessed at $131,000 less than the subject property.

48The Appellant also enters 198 Tilford Road asserting that while this property has no green space, it has a much larger building area of 3,273 square feet, and 2,412 square feet of finished basement area. This home was built in 1958 and has an assessment of $1,384,000, which is $29,000 less than the subject property at $1,413,000.

49Mr. Tyndorf reiterates that the ASR of the two comparable properties he submitted for current value, 170 Wilder Drive and 145 Wolfdale Avenue, both have an ASR of 0.82.

50The Appellant concludes that the assessment of his property should be in the same range as 175 Westdale Road at $1,282,000 which reflects a home that is similar to his, on the same street, with the same characteristics.

51Mr. Tyndorf is prepared to accept the current value of the subject property as recommended by MPAC of $1,550,000 as long as this value is adjusted for equity based on the ASR of 0.82 resulting in an assessment of $1,271,000 very much in line with the assessment of 175 Westdale Road.

Board’s Analysis and Findings

52Section 44.(3)(b) of the Act directs that after determining current value, the Board shall 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.”

53The purpose of equitable adjustment has been described as the equitable distribution of the tax burden according to the assessed value of property owned by taxpayers as follows by the Ontario Court of Appeal in Re Empire Realty Co. Ltd. and Assessment Commissioner for Metropolitan Toronto et al., 1968 CanLII 183 (ON CA) at page 2:

A prime objective of municipal taxation is the equitable distribution of the burden according to the value of the property possessed by each ratepayer; in the system prevailing in Ontario, the tax levied on the ratepayer is determined by the application of a uniform mill rate upon the assessed value of the ratepayer's taxable property set down in the assessment roll. If equity in taxation is to be achieved, it must result from equity in assessment.

54In addressing equity in assessment, the Court, at page 6, also noted that “an assessment made at the actual value of lands and buildings…would be an unequitable assessment if all similar lands in the vicinity were assessed at some percentage of actual value substantially less than one hundred.”

55The term “vicinity” is not defined in the Act, but refers to the appropriate geographical area that will yield a meaningful number of comparables (see Ontario Regional Assessment Commissioner, Region No. 3 v. Graham, 1993 CanLII 8621 (ON CA) at page 6).

56The test set out in s. 44.(3)(b) of the Act, requires that the Board refer to similar lands in the vicinity. Use as a point of similarity, may be, but is not necessarily determinative of similarity. In determining whether other lands are similar, the Ontario Divisional Court, in Municipal Property Assessment Corp. v. Loblaw Properties Ltd., 2017 ONSC 1299, applied the decision of the Ontario Divisional Court in Trizec Equities Ltd. v. Ontario (Regional Assessment Commissioner, Region No. 27), [1988] O.J. No. 182. The Court stated at paragraph 23:

…All points of comparison must be considered. The Board must make a factual finding based on such a consideration. One point of similarity such as use may be, but is not necessarily, determinative. Some similarities may be overridden by other characteristics and some differences may be subordinated.

57The ASR analysis of a reasonable sample of sold properties is one method used to determine if properties in the vicinity are assessed below their current value. If other properties are assessed substantially below their current value then a reduction is required to make the assessment of the subject property equitable with the assessments of similar lands in the vicinity. The ASR is determined by dividing the assessment as returned by the time adjusted sale price.

58Ms. Lamothe relies on a median ASR of 0.972 based on the sample of 30 arm’s length sales of properties in the vicinity of the subject property.

59The Board finds that the median ASR of 0.972 falls within MPAC’s generally acceptable standard of 0.95 and 1.05 required establishing that the level of current value assessments of similar properties is in line with the level of adjusted sale prices in the vicinity.

60On the other hand, the Appellant takes the position that the subject property is assessed too high. He proposes a lower assessed value of $1,271,000. He referenced the assessment of neighbouring property, 175 Westdale Road at $1,282,000 and the ASR of 0.82 based on the sales of 170 Wilder Drive and 145 Wolfdale Avenue from his evidence on current value.

61The Board prefers MPAC’s larger sample of 30 sales as opposed to the assessments of neighbouring properties or the ASR of only two properties as submitted by the Appellant in support of an equity argument. The Board also notes that the sales of both 170 Wilder Drive and 145 Wolfdale Avenue submitted by the Appellant are included in the evidence provided by MPAC in support of its case. The Board has also conducted a statistical analysis of the same 30 assessment to sales ratios. That analysis shows that the mean ASR is 1.02 with a confidence interval of 0.062. That means that the true mean is likely between 0.958 and 1.082. Any time the high end of the likely range is above 1.0, the Board cannot be confident that properties in the vicinity are under assessed. That statistical analysis further supports MPAC’s position that no equity adjustment is required.

62For these reasons, the Board finds that the evidence before it does not support the conclusion that an equity adjustment is required under s. 44.(3)(b) of the Act.

CONCLUSION

63The Board finds that the current value of the subject property, as of the January 1, 2016 valuation date, is $1,450,000. Furthermore, the Board finds that the evidence before it does not support the conclusion that an equitable adjustment is required under s. 44.(3)(b) of the Act.

64MPAC has not filed a notice of intention to seek a higher assessment, as required by Rule 40 of the Board’s Rules of Practice and Procedure. I therefore confirm the assessment at $1,413,000 for the 2017 and 2018 taxation years.