Beninger v. Municipal Property Assessment Corporation Region 31, 2024 CanLII 124422

Tribunals Ontario / Tribunaux décisionnels Ontario

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: December 10, 2024

FILE NO.: WR 187151

Assessed Person(s): Nolan Robert Beninger; Leah Elizabeth Simms-Karp

Appellant(s): Nolan Beninger; Leah Simms-Karp

Respondent(s): Municipal Property Assessment Corporation Region 31

Respondent(s): City of Peterborough

Property Location(s): 31 Edgewater Blvd.

Municipality(ies): City of Peterborough

Roll Number(s): 1514-040-110-10200-0000

Appeal Number(s): 3522956

Taxation Year(s): 2024

Hearing Event No.: 784876

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

APPEARANCES:

Parties	Counsel/Representative
Nolan Beninger; Leah Simms-Karp	Self-represented
Municipal Property Assessment Corporation	Charmaine Siddle
City of Peterborough	No one appeared

HEARD: November 19, 2024 by video conference

ADJUDICATOR(S): Subuola Awoleri, Member

DECISION

OVERVIEW

1Nolan Beninger and Leah Simms-Karp, (the “Appellants”) owners of 31 Edgewater Blvd. (the “Subject Property”), appealed the 2024 assessment of the Subject Property to the Assessment Review Board (the “Board”) under s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) on the ground that the assessment is too high.

2The Appellants argued that the current value of the Subject Property should be $188,840.

3The Subject Property was assessed by the Municipal Property Assessment Corporation (“MPAC”) at $239,000 for the 2024 taxation year. MPAC submitted that based on market sales the current value of the Subject Property should be confirmed as returned at $239,000, without a further reduction to make the current value equitable with the assessments of similar properties in the vicinity.

4A representative for the City of Peterborough attended the hearing only as an observer.

Issues for the Hearing

5The issues to be determined are:

1. What is the correct current value of the Subject Property, as of the January 1, 2016 valuation day?

2. Is the current value as determined by the Board equitable in reference to the assessments of similar lands in the vicinity?

Result

6The Board finds that the correct current value of the Subject Property, as of January 1, 2016, valuation day, is $211,000 (rounded).

7The Board finds that the evidence does not support a conclusion that the Subject Property requires a reduction in its determined current value in order to make it equitable with the assessments of similar properties in the vicinity.

PRELIMINARY MATTERS

8The Appellants questioned the appearance of MPAC’s witness and MPAC’s Valuation Manager at the hearing. They submitted that MPAC should have notified them that MPAC’s witness would be at the hearing. The Appellants also submitted that some of MPAC’s evidence was inaccurate.

9MPAC’s advocate submitted that she advised the Appellants before the hearing that she would only be acting as an advocate.

10Pursuant to Rule 37 of the Board’s Rules of Practice and Procedure (the “Rules”), this appeal has been designated by the Board as a summary proceeding. Accordingly, the Board provides a Schedule of Events (“SOE”), which provides a detailed timely process for an appeal from its commencement date to the date of the hearing. Rule 39 of the Board’s Rules along with Schedule B of the Rules, provides the SOE for a summary proceeding.

11In the SOE, for a summary proceeding as provided in Schedule B, MPAC is not mandated to provide the Appellants with a witness statement. MPAC served the Appellants with its evidence, MPAC’s Valuation Report and Equity Analysis, which was authored by MPAC’s witness. The witness is present at the hearing to give his testimony based on these reports. In line with the principles of procedural fairness, the Appellants have the right to receive copies of the documents filed by MPAC, which they received and also filed a reply to the documents. MPAC also has a right to present its evidence through its witness and the Appellants have a right to cross-examine MPAC’s witness. The Board finds that there is no basis for the Appellants’ objection to the appearance of MPAC’s witness at the hearing.

12Furthermore, MPAC’s advocate advised the Board that MPAC’s Valuation Manager was only at the hearing with the authority to settle the appeal, if the Appellants were willing to settle the appeal before the hearing proceeded and if it did not settle, she would only be an observer. An MPAC employee can be present at the hearing as an observer.

13Regarding the Appellants’ objection about the inaccuracy of MPAC’s evidence, the Board allowed MPAC to present its evidence and the Appellants can cross-examine MPAC on it and further prove the inaccuracy with their evidence during the hearing.

ANALYSIS

Description of the Subject Property

14The Subject Property is a one-storey single-family detached (not on water) residential dwelling built in 1941, with an effective year build of 1952 located in the City of Peterborough. It has a lot with 38 square feet (“sq. ft.”) of effective frontage and 103 sq. ft. of effective depth for an effective lot area of 3,517 sq. ft. (0.09 acres). It has a total building area (“TBA”) of 696 sq. ft., with construction quality of 5.0 and a basement area of 696 sq. ft. of which 216 sq. ft. is finished.

Issue 1 - What is the correct current value of the Subject Property, as of the January 1, 2016 valuation day?

15In accordance with s. 44(3)(a) of the Act, the first mandate of the Board is to determine “the current value of the land.” Section 1 of the Act defines current value as “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.” That is, the Board must determine what the Subject Property would have sold for in an arm’s length transaction on the January 1, 2016 valuation day set by the Act.

16The best evidence the Board can receive of current value is an arm’s length and market-tested sale of the Subject Property on the valuation day or close to it. If no such transaction took place, the next best measure of current value is arm’s length and market-tested sales of comparable properties located nearby, as close as possible to the legislated valuation day of January 1, 2016.

MPAC’s Proposed Comparable Properties

17MPAC presented the Board with six proposed comparable property sales. These six proposed comparable property sales were improved with residences built between 1939 and 1948, with effective year build from 1945 and 1960. Their effective site areas range from 0.09 to 0.17 acres and building sizes from 560 to 825 sq. ft. The quality of construction of the residences is between 5.0 and 5.5. These proposed comparable property sales sold within the shoulder years of the valuation day of January 1, 2016, which are 2015 and 2016. The details of MPAC’s proposed comparable property sales are in Table 1 below:

Table 1

Address	Assessment ($)	Sale Date & Sale Amt. ($)	Time-Adjusted Sale ($)	Building/ Size (sq. ft.)	Lot Size (Acres)	Year Built/ Effective year built	Quality of Construction
Subject Property 31 Edgewater Blvd.	239,000	N/A	N/A	696	0.09	1941/1952	5.0
Sale 1 10 Edgewater Blvd.	240,000	September 2016 (235,000)	213,273	704	0.09	1941/1952	5.0
Sale 2 173 Dufferin Street	195,000	March 2016 (200,000)	194,181	825	0.11	1947/1953	5.0
Sale 3 685 Ross Street	204,000	October 2015 (210,000)	216,486	792	0.17	1947/1956	5.5
Sale 4 174 Clifton Street	188,000	July 2016 (215,000)	199,461	560	0.11	1940/1945	5.5
Sale 5 586 Armour Road	201,000	October 2015 (178,000)	183,498	768	0.12	1948/1954	5.5
Sale 6 691 Ross Street	219,000	October 2015 (234,000)	241,227	776	0.17	1939/1960	5.5

18MPAC argued that comparable property Sale 1 is comparable with the Subject Property since it is in the same homogenous neighbourhood as the Subject Property, which MPAC identified as “E36-127”. MPAC testified that this neighbourhood is called “Burnham Point”. MPAC provides in its valuation report that Burnham Point was one of many Wartime Housing Projects in Peterborough with the land originally being owned by the Canadian Pacific Railway.

19MPAC added that all the other five proposed comparable properties are inferior to the Subject Property due to their location, and they are not within the same homogenous neighbourhood as the Subject Property which MPAC identified as “E38-128”.

20MPAC testified that the Time Adjusted Assessment to Sales Ratios (TASR) of the six comparable properties range from 0.90 to 1.12 with a median TASR of 0.97, while their ASR’s (non-time adjusted) fall within a range of 0.87 to 1.13, with a median ASR of 0.97. MPAC submitted that the median in both instances is 0.97, which suggests that no adjustment is required in reference to the International Association of Assessing Officers (IAAO) acceptable standards for ASR’s (between .90 and 1.10) and past court decisions.

21MPAC further testified that proposed comparable Sale 1 being the most comparable property closest to the Subject Property has an ASR of 1.02, which is also well within the standards set out by the IAAO.

22Furthermore, MPAC presented into evidence a Burnham Point Inventory, which is an inventory of similar properties directly located on Burnham Point. MPAC testified that this consists of properties similar to the Subject Property in terms of quality of construction, square footage, structure (one storey) and year built, and they were all valued like the Subject Property. MPAC excluded properties not similar to the Subject Property or which benefited from a downward adjustment due to Urea Formaldehyde Foam Insulation (UFFI). MPAC testified that the assessments in this inventory range from $234,000 to $281,000, with the median assessment being $246,000, while the Subject Property is assessed at $239,000, therefore the Subject Property is equitably assessed and based on the sales of the most similar properties MPAC concludes that the current value of the Subject Property is $239,000.

23The Appellants did not present their own proposed comparable properties but used two of MPAC’s proposed comparable properties to derive the current value of the Subject Property, which they submitted should be $188,840.

24The Appellants argued that MPAC’s proposed comparable Sale 1 is superior to the Subject Property since it does not have any property backing it and its backyard is larger than the Subject Property. They further argued that there is a laneway at the rear of this property, which the houses of the westside of Edgewater Blvd. use as their own which is not captured by MPAC. They also alluded to the fact that it may be an easement, but they did not present anything into evidence to prove it.

25The Appellants testified that comparable property Sale 1 was listed for sale in 2022 for $629,000 but it did not sell. The Appellants further presented interior photographs of comparable property Sale 1 and the Subject Property which reveals that comparable property Sale 1 was renovated, with newer home appliances at the time it was listed for sale in 2022. During cross-examination, the Appellants admitted that they did not personally take these photographs, but they were taken from a real estate listing and were staged by the realtor.

26The Appellants further disagreed with MPAC that comparable property Sales 2, 3 and 6 are inferior to the Subject Property. They argued that Sale 3 is invalid due to the inaccurate assessment provided by MPAC. The Board finds that the Appellants did not present anything as evidence to prove that this sale, which sold on October 30, 2015, was a non-arm’s length sale to make it an invalid sale.

27The Appellants argued that comparable property Sale 2 was recently renovated in 1990, it has a masonry exterior, its building is larger than Subject Property and its six years newer than the Subject Property, therefore it is superior to the Subject Property. The Appellants further argued that comparable property Sale 6 is also superior to the Subject Property since it backs a green space, has an attached garage and has been extensively renovated and its lot size is almost double that of the Subject Property at 0.17 acres.

28The Appellants agree with MPAC that comparable property Sales 4 and 5 are inferior due to their location and more specifically that Sale 5 is on a busy street.

29The Appellants used the Time Adjusted Sales Price (“TASP”) of comparable property Sales 2 and 5, (submitting that Sale 2 is superior, and Sale 5 is inferior) at $194,181 and $183,498 respectively to derive a current value of the Subject Property at $188,840 (rounded). They submitted that this is the correct current value of the Subject Property.

Findings on Issue 1 – Correct Current Value

30The Board finds that the best comparable property to the Subject Property is MPAC’s comparable property Sale 1 (10 Edgewater Blvd.) This property is the closest to the Subject Property, within the same homogenous neighbourhood. They are both located in Burnham Point, on the same street. MPAC testified that at Burnham Point, the land juts out where the Otonabee River meets Little Lake and Little Lake also provides direct access to The Trent Severn Waterway. MPAC added that the main access is a wooden bridge, although there is also a fire access, which can be used if there is a problem with the wooden bridge.

31MPAC testified that many houses in Burnham Point have a view of the lake, fountain, Little Lake Cemetery and two beaches and properties that do not have this view still benefit from being near Little Lake and the abutting parkland. MPAC further added that Burnham Point is almost like a gated community with no traffic, and it is accessible to those who live there and their visitors. MPAC also testified that it is not a feeder street, and it is within walking distance of two municipal beaches.

32The Board finds that the Subject Property’s location in Burnham Point is superior to the location of comparable property Sales 2 to 6 as it benefits from being in an area that is enclosed from other neighbourhoods, such that it is not a feeder street and has no traffic. In fact, MPAC submitted that this benefit “gives the neighbourhood a sense of being a community on to itself”. In addition, it is also close to municipal beaches and parks. The Appellants did not object to this. Their argument was based on the fact that some of MPAC’s comparable properties are also close to large parks and some have larger lot sizes and buildings and are newer than the Subject Property. These other proposed comparable properties do not enjoy this same benefit of being enclosed as properties located in Burnham Point. Therefore, the Subject Property should only be compared with other similar properties within Burnham Point that sold within the shoulder years of the valuation day of January 1, 2016, since they benefit from exposure to the same market force. Accordingly, the Board finds that comparable property Sales 2 to 6 are not comparable to the Subject Property due to their location.

33Comparable property Sale 2, which is not located in Burnham Point, sold at a lower TASP of $194,181, with a larger lot size of 0.11, an original year built of 1947, larger building of 825 sq. ft. compared to Sale 1 which is located in Burnham Point. Comparable property Sale 1, sold at a TASP of $213,273, with a smaller lot size of 0.09, a smaller building of 704 sq. ft., an older original year built of 1941. Also, comparable property Sale 3, sold at a TASP of $216,486, with a larger lot size of 0.17 acres, original year built of 1947, higher quality of construction of 5.5, larger building with a detached garage, compared to Sale 1. The difference in TASP of Sale 1 and 3 is only $3,213. This also reveals that properties on Burnham Point are more valuable.

34The Board notes that the Appellants argued that the current value of the Subject Property should be $188,840. This puts the current value of the Subject Property within the range of the TASP of comparable Sales 4 and 5, which the Appellants admitted are inferior to the Subject Property as they both sold at TASP’s of $183,498 and $199,461 respectively.

35The Board further finds that comparable property Sale 1 is similar to the Subject Property. They are both located on the same street. Comparable Property Sale 1 has the same structure (one-storey), year built, effective year built, similar building size as the Subject Property. It also has the same effective site area of 0.09 acres. Although the Appellants testified that its lot size is larger. To prove this, the Appellants presented into evidence an aerial photograph of Sale 1, which showed its delineated lot size, however, the Appellants argued that this property utilizes more land than it shows due to the presence of a shed outside the delineated line. The Board finds that this does not prove that it has a larger lot size than the Subject Property, as MPAC records and the aerial photographs show the lot size assigned to Sale 1. The Appellants further alluded to the fact that there may be an easement on this property, but they did not present any evidence to prove it.

36Comparable property Sale 1 sold at a TASP of $213,273. Its TASP per sq. ft. is $302.94. Multiplying this rate with the total building area of the Subject Property at 696 sq. ft. provides a value of $210,846.24.

37The Board finds that the correct current value of the Subject Property is $211,000 (rounded).

Issue 2 - Whether there should be an equitable reduction of the current value pursuant to s. 44(3)(b) of the Act, and, if so, what the amount of this reduction should be?

38Section 44(3)(b) of the Act directs that after determining current value,

… the Board shall,

(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.

39MPAC presented an equity analysis of 26 single-family detached (not on water) residential properties with sales that occurred from January 1, 2015 to December 31, 2016, within 5.0 kilometers of the Subject Property. MPAC further used the following search criteria: one-storey single-family homes, age range between 1930 – 1950 and of average condition.

40MPAC submitted that the median Assessment to Sales Ratio (“ASR”) of the sales is 0.99. MPAC submitted that the International Association of Assessing Officers standards states that the level of appraisal for all properties should fall between 0.90 and 1.10. MPAC takes the position that equity is achieved if the median ASR falls between 0.95 and 1.05.

41MPAC submitted that with a median ASR of 0.99, based on its equity analysis, equity has been achieved, therefore, the Board should confirm the assessment as returned.

42The Appellants did not present any evidence to prove that there should be an equity adjustment to the determined current value.

Findings on Issue 2 - Equity

43The Act requires that if the Board determines that the current value of the Subject Property is inequitable when comparing it to the assessed values of similar properties in the vicinity, the Board can reduce the assessment to a value that is lower than the Subject Property’s current value.

44MPAC’s equity study reveals that similar lands within 5.0 kilometers of the Subject Properties are assessed at or very close to their sale value (current value). In Re Empire Realty Co. Ltd. and Assessment Commissioner for Metropolitan Toronto et al., 1968 CanLII 183 (ON CA) ("Empire Realty") the Ontario Court of Appeal provides the main objective of municipal taxation as:

... 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.

45The Court further addressed equity in assessment by stating that:

... an assessment made at the actual value of lands and buildings in compliance with the provisions of s. 35(1) 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 ... (Emphasis added.)

46MPAC’s median ASR of 0.99, is not substantially below 1.00, in fact it is close to 1.00. Consequently, the evidence does not lead the Board to make an adjustment for equity to the determined correct current value of $211,000.

47For these reasons, the Board finds that MPAC’s equity analysis is reliable and reveals that MPAC is assessing similar properties within the vicinity at or near their sale price.

CONCLUSION

48The Board finds that the correct current value of the Subject Property for the 2024 taxation year is $211,000 with no adjustment for equity.

ORDER

49The Board orders that the current value of the Subject Property be reduced from $239,000 to $211,000 for the 2024 taxation year.

“Subuola Awoleri”

SUBUOLA AWOLERI MEMBER Assessment Review Board Website: www.tribunalsontario.ca/arb