Top Ten Things To Ask

If you are a buyer, or a realtor representing buyers, you may be wondering about the right questions to ask about Gryffin Bluffs.  The important thing is to find out what is right for you and your family – something important to someone else may not matter to you. For example, if you are only looking for a summer cottage, the fact that reliable access is limited to three-seasons access may not matter.  On the other hand, if you might need to re-sell before the roads are fully accessible year-round, or you might be planning to live in your property year-round yourself, winter road access might still be important for you.

If you are a seller, or a realtor representing sellers, these questions are important because sellers and their agents in Ontario are under a legal obligation to disclose defects that may affect a buyer’s use or enjoyment of the property.  For example, it might be very costly if a failure to disclose that there is effectively no fire service were to invalidate your buyer’s home insurance.  Similarly, a failure to disclose to elderly purchasers that there were no winter ambulance service might also give rise to liability.  You’ll want to have the answers to these questions that buyers might ask – but you may want to obtain legal advice to find out how much you must disclose even if purchasers don’t know enough to ask them directly.

1. Can fire trucks reach my home?

No, not as they could on municipal road.  Gryffin Bluffs roads do not meet District of Muskoka requirements for fire service.  They are too narrow (4m instead of 8m) and too steep (up to 18% grade instead of 8%).  Fire services always do whatever it takes to reach a property – even on an island. But given the road construction and maintenance standards in Gryffin Bluffs, the District of Muskoka expects fire trucks could have to park on Gryffin Lodge Road, and access as best they could from there.  As some properties are more than a 2km walk from this point, fire services are likely to be both limited in equipment and delayed in arrival.

Fire sprinklers are required in Gryffin Bluffs as an alternative.  However, systems built to the required standard NFPA 13D are designed primarily to reduce risk to life. They are not designed to extinguish a fire.  Sprinklers in Gryffin Bluffs cannot use municipal water pressure as in town, and must instead rely on water stored in a well or tank, and on fire pumps to supply the sprinkler.  If, for example, a candle used during a power interruption tips over, and there is no functional backup generator, sprinklers cannot operate and the extra time to safely exit the building is eliminated.

Sprinklers are designed to provide water for ten minutes to increase the chances of able-bodied occupants safely exiting.  Once the water runs out, fire suppression ends and there nothing to prevent the fire spreading to the rest of the structure.  Any fire may therefore result in the total loss of the home.  Some insurance companies consider fire sprinklers themselves to pose a risk to the building, as a malfunction can leak more water much faster.

Home insurance companies typically want to understand the fire response times, and applications may ask questions such as how far a property is from the nearest fire station.  There may be an obligation for home owners to disclose to their property insurers the fact that fire trucks may be unlikely to reach the home at all, and to disclose the presence of fire sprinklers.  These factors may affect the insurability of the home, and, if insurable, the rates that are charged.

2. Can ambulances reach my home?

No, at least not generally in the winter.  As a matter of policy, the condo association only maintains roads to permit use by 4WD vehicles. Note that this restriction is not part of the condo declaration, so would not routinely be disclosed to prospective purchasers. District of Muskoka ambulances are RWD, and do not meet the standards set by the condo association.  Condo roads are frequently impassable for 2WD vehicles.  Ambulance personnel would do their best to reach the scene of accident or illness, but could be obliged to park on Gryffin Lodge Road, and walk up to 2km from there.

The District of Muskoka is aware of the danger, but regards the maintenance standards for private roads as outside its jurisdiction even where conditions may pose a risk to life.  That is not as crazy as it sounds, since there is never an obligation to maintain private driveways or paths, and people have the choice to put themselves, their families or their visitors at risk.  The landowner may face legal liabilities in the event of loss or injury. However, that is the landowner’s choice and it is not the District’s or the Town of Huntsville’s responsibility to police what private land owners do with their land. For these purposes, the condo corporation is considered to be the private land owner that can choose to leave its roads impassable if it so chooses. 

While limited maintenance may be acceptable for the purposes of the Town or District, the condo corporation may have other obligations, including those outlined in the condo declaration documents.  These state that road maintenance in Gryffin Bluffs is to be ‘reasonable’.  As of 2018, the developers and the board consider winter maintenance that is incompatible with ambulance access to be ‘reasonable’.  Were a majority of unit owners to become aware of the limitations to ambulance service, they could vote to direct the board to increase maintenance to a level necessary for emergency access, so this may change at some future time.

Note that the lack of ambulance service may need to be disclosed to property insurers if it could affect the liability portion of a policy.

3. Can I get road maintenance if I’m stuck at night?

No, there is no after-hours service.  As a matter of policy, the condo board does not make any provision for road service outside business/social hours.  The condo board requires that all maintenance requests be directed through the board, and prohibits any direct contact with the maintenance contractor.  Board members are volunteers, and will always do their best to help, but can be contacted only when they happen to be available.

Even when board members can be contacted, and an emergency request for maintenance is made, the board may decide not to act on it.  They may do so without looking to see first-hand the conditions requiring maintenance. If the board refuses to authorize maintenance, the board may allow an individual unit owner to perform maintenance at the unit owner’s expense, provided that the unit owner uses only the board’s authorized contractor.  However, the board maintains the right – and has exercised its right – to refuse to authorize additional maintenance even if the unit owner is willing to pay.

In practical terms, volunteer board members do their best to be available, but do not expect to be called at unsocial hours unless there is an immediate life-threatening emergency.  The expectation is that you walk home from where you are stuck, and then deal with the situation when board members become available, usually some time the next day.  But quite often the conditions will have changed before it is possible to contact anyone, and you (or a tow truck) may be able to get your vehicle back on the road.  In the event of a immediate life-threatening emergency, such as a fire, the board may choose to provide telephone numbers of board members who could authorize maintenance, but the board cannot commit to anyone being available at those numbers.  There is no property manager or any other backup system.

4. Could my home be completely cut off?

Yes, some or all of Gryffin Bluffs can be cut off with no vehicle access.  This has in fact happened repeatedly during the winters of 2016/17 and again in 2017/18. Pedestrian access is usually still possible, though when roads have been too icy for vehicles they also pose an increased danger to pedestrians.

Single track roads are easily blocked.  There is only one entrance/exit for Gryffin Bluffs, and it includes a steep hill that is frequently treacherous in winter. When owners, visitors, or delivery trucks go off the road, often as a result of sliding backwards down the hill, vehicles frequently block the entire road until a tow truck or rescue vehicle arrives.  During the day, this can take one or two hours, and during the evening ten or twelve hours.  Residents sometimes keep a vehicle near Gryffin Lodge Road so they can at least walk out, but there is only parking there for three or four vehicles, and there will be 26 to 40 households.  In summer, the combination of narrow roads and scarce passing areas means that construction delivery trucks often block roads.  This is usually for shorter periods of time, 15 to 30 minutes.

5. Must I buy a 4WD vehicle?

Yes, and you need to ensure that all your visitors, deliveries and tradespeople also have only 4WD vehicles.

The developers, through the condo board, had the AGM in the fall of 2017 declare that 4WD vehicles were required in the development.  For at least some unit owners, this was never mentioned as a requirement or possible requirement at the time of purchase. The late change just before winter gave families only a few weeks to replace all their vehicles with 4WD.  The developers and condo board make no allowance for friends, visitors, deliveries or trades that may not have 4WD vehicles.

Though this is now an official requirement of the condo corporation, there is no sign posted to that effect at the entrance, so road users would never know until after they get stuck.  Purchasers would not know because the policy is not part of the declaration or by-laws, and potentially would only discover the restriction the first winter after their purchase.

Many people have pickup trucks, small SUVs or all-wheel drive cars in Muskoka. However, the developers do not consider regular 4×4 pickups or AWD vehicles such as Subarus as meeting the Gryffin Bluffs standard. Indeed, with current maintenance levels, such vehicles cannot always make it safely up and down the hills in Gryffin Bluffs.

The only vehicles the developers consider adequate for accessing Gryffin Bluffs are 4WD vehicles with a locking center (front-back) differential, and dual locking front and back differentials. Such vehicles are normally intended for serious off-road use, as this article explains. Among the very few vehicles come standard with such equipment are the Mercedes G-wagon and the Jeep Wrangler Rubicon. While not available on most vehicles commonly used in Muskoka, the required ‘off-road’ equipment is often available as a specialized extra-cost option on large SUVs and pickup trucks. The developers have also suggested that in addition to off-road capabilities, chains may be required.

Note it is considered dangerous to engage these off-road systems on normal roads, as the locked wheels can contribute to a loss of control. Remember to stop and engage these systems each time when entering Gryffin Bluffs, and disengage them again when exiting onto regular roads. Similarly, chains are designed only for low-speed applications off regular pavement. The adjacent municipal road, Gryffin Lodge Road, is well-maintained and even in the winter clear pavement is usually exposed. Chains should therefore be installed when entering the development, and removed before leaving.

There are few vehicles meeting the standard that have used Gryffin Bluffs roads. Even tow trucks cannot always access Gryffin Bluffs roads in the winter, so it is not known whether off-road 4×4 vehicles would be able to access Gryffin Bluffs. However, this is the standard that currently applies, and the developers will not entertain requests for road maintenance unless such off-road vehicles are unable to access the development.

6. What if someone uses a 2WD vehicle?

The board recommends against using any 2WD vehicle in Gryffin Bluffs at any time when freezing conditions might be present.  The board has advised at least some unit owners that any such use is at the owner’s sole risk. Note that while the board recommends against 2WD vehicles, the developers recommend against any non-off-road vehicle, including AWD and normal 4x4s.

As the condo maintenance standard allows only for 4WD, if a hill is impassable for a 2WD vehicle, according to policy the hill will not receive maintenance provided that a 4WD vehicle ‘taking a run’ at the hill can make it up. Vehicle owners are expected to make their own arrangements for towing or vehicle recovery at their own risk and cost.

The longest continuous period of time that 2WD vehicles were unable to access parts of Gryffin Bluffs in the winter of 2017/18 was 12 days.  Note that in the District of Muskoka, ambulances are 2WD vehicles.  Courier and other delivery vehicles, such as for propane, are also frequently 2WD, and have also had trouble accessing Gryffin Bluffs.

7. How much lakefront is there?

Advertising claims lake frontage of 890 feet.  However, less than 10% of this is easily usable by residents.  Most of the lake frontage is accessible only by swimming a one kilometer round trip, as paths and stairways discussed by developers with some owners prior to purchase were apparently never intended to be built.

8. How good are the walking trails?

There is only one short trail – High Park – that has been built to the point where it is suitable for everyday use.  It is the only trail that is frequently used, and the only trail that is feasible to use in the winter.

The other routes shown as trails consist of what appear to be overgrown sections of old logging roads.  None of them resemble a recreation trail as might normally be found in a development.  None of the other routes are routinely used during the winter. The developers did not install signage on the trails, and there are few different intersecting routes, so checking with a knowledgeable trail user or taking a GPS may be a good idea. The condo corporation has plans to install signage on the trails.

Note that Gryffin Bluffs Lane is actually the main walking trail.  There is no walking route parallel to Gryffin Bluffs Lane, so all pedestrians must be on the road. Drivers and pedestrians both need be cautious as this road is narrow, steep in sections, and icy in winter.  Some families judge the danger to be too great to allow schoolchildren to walk to or from the bus stop (schoolbuses cannot come into Gryffin Bluffs as the road is too narrow and steep).  Drivers should be aware the road is also frequently used as an off-leash area by dog walkers who do not live in Gryffin Bluffs.

Caution should be used on the trails, as maintenance is minimal. Structures such as bridges, that might have been expected in a new development to be newly built, were already very old when handed over by the developers. One such bridge was unsafe with decking disintegrating, and the main support trees rotting through. The bridge itself collapsed in the spring of 2018. While the questionable bridge was provided by the developers, it is in the process of being replaced at the expense of the condo association.

9. Will my condo fees go up?

Condo fees are determined by taking the necessary operating budget, and dividing by the number of units.  Condo legislation requires the purchase of insurance, the maintenance of common elements, and the establishment of reserve funds.  If the overall condo expenses increase, the fees will rise.

The original budgets in a condo are set by the developer as part of the declaration so that prospective purchasers know what expenses they may face.  If a developer’s budget truly reflects the expenses legitimately required, budgets don’t have to go up.  If a developer underestimates expenses, for example depends on assumptions that reflect an unrealistically low level of road maintenance, the condominium corporation is still obliged to provide the required services, even if it means the condo budget must be increased.  In such a case, the fees for unit holders would rise correspondingly. 

Condo fees have been raised once so far, to $1200 per year per unit as of F2018.

Though condominium fees went up for F2018, actual levels of winter road maintenance went down. While some consider winter road maintenance for F2017 to have been inadequate, even maintaining that level of maintenance would have required an even bigger increase.

By one informal estimate, meeting the legal obligations of the condominium corporation will require a Gryffin Bluffs budget that is double the current budget.  If that estimate is correct, condo fees will need to rise to $2400 per year.  This increase still does not allow for additional expenses the condo corporation will be obliged to take on in the future, such as garbage collection, so further increases are possible.

Operating expenses are only one aspect of a condominium.  There are also capital projects. Where there are major expenses required that cannot be covered by the reserve fund, condo corporations are still obliged by law to undertake the necessary work.  The corporation then levies an extra charge against each unit owner.  Unit owners must pay, or the condo corporation borrows the money, and then places a lien against the property for the amount borrowed plus interest and legal expenses.  This is a fairly common scenario for structural repairs to a high-rise condo.  In Gryffin Bluffs, the most costly asset is the roads.  They are also the element most likely to require significant capital expenditures.

According to some standards(1)(2), the design and construction of the existing roads appears suitable for a maximum of 15 seasonal cottages, or 6 year-round homes.  The road design and construction does not meet standards that would normally apply to a development of this size that have been set by the District of Muskoka, the Town of Huntsville, or the Institute of Highway Engineers.  Traffic jams, delays and accidents are some possible consequences of roads being used above their capacity.

Some combination of widening the roads, reducing the grades, and paving the hills would be needed to alleviate the problem, with an estimated cost range of $450,000 to $900,000.  This would result in a one-time capital levy of around $20,000 to $40,000 per property owner.   However, no commitment to any such work has been made and no formal estimates have been obtained.  The eventual amount could be significantly higher or lower. Note that because of the structure being created by the developers, only condo lots would have to pay these exceptional amounts were they to be levied – the independent lots will get the use of the improved roads without having to contribute anything extra.

This extra levy amount might be enough to making to and from your home a little easier, and avoid some of the times you might have to park at Gryffin Lodge Road and walk home.  But roads would still likely not be good enough to allow for full fire service, or for the Town to take over maintenance. There are currently no estimates on what it would take to bring the Gryffin Bluffs roads up to full municipal standard that would normally apply in new developments.

10. How is the condo governed?

Normally once a condo is registered, the developer backs away and the new unit owners take over.  That has technically happened in Gryffin Bluffs, and owners or their proxies elected a board. The volunteer board is responsible for day-to-day management.  The developers did not budget for a property manager at the time the initial pro-forma budgets were prepared, and there are currently no plans for professional property management.

The board is elected by the unit owners at the AGM, and the board consists of unit owners. As of spring 2018, the position of board President is filled by one the developers, and a majority of other board positions are filled by what some owners consider to be close associates of the developers.  Another developer, who is not a unit owner, acts as an elected non-voting consultant to the Roads Committee. In practice, the Roads Committee has no role in the maintenance of the roads and the developers appear to effectively control the maintenance policies and contractor selection.

Board members that are also developers have committed to not vote on matters where they consider there to be possible conflicts of interest.  Developers may still participate in deliberations, and their associates are still entitled to vote.  Some owners believe the board appears to have been very receptive to developer needs, such as for additional complex rights-of-way that appear to have the potential to benefit the developer and potentially disadvantage unit owners, while imposing costly and onerous processes on residents seeking much more minor changes.

Some unit owners feel there has been a lack of information provided to unit owners on matters relating to the developers, and feel that this has prevented unit owners from accessing or understanding various agreements and liabilities that may have been entered into by their condo board.  This includes a 999-year lease of road access which is mentioned as a future possibility in the condominium declaration, but which some owners have been given to understand was subsequently granted to an unnamed company that is owned or controlled by the developers without any opportunity for all unit owners to vote on the agreement, be made aware its contents, or be assured that the board obtained legal advice independent of the developers.

Some owners also feel that the corporation’s largest expenditures, such as for road maintenance, should have multiple bidders and written contracts as per normal business practices for critical services such as snow removal, where some owners have found the developers and board reluctant to consider any competitive bidding, written agreements, or published service standards, preferring instead what are apparently verbal agreements with pre-selected suppliers that are not available for unit owner review or comparison with outside services.

In general terms, and not necessarily with any application to any specific condominium development, developer influence on a board would be regarded by some as having the potential to limit board independence.  This could, for example, make it less likely that a board would hold developers accountable for any deficiencies.  Such arrangements would be considered by some as not reflecting best practices for corporate governance.

 


(1) Trip Generation, 7th Edition, Institute of Transportation Engineers, 2003    Average trip generation rate as established by the ITE for year-round single family housing on unpaved roads is 9.57 traverses/unit/day.  For the 26 currently approved units, that translates to a projected volume of 249 AADT, about five times the capacity of the road according to some measures.  With an additional 14 properties, plus some units having second homes such as the one currently approved, the traffic volume would be over eight times the road capacity.  Though most properties are intended for year-round residence, for comparison, even if all 26 properties were only for seasonal recreation use and no additional properties were allowed to use condo roads, as the ITE rate for recreational properties is 3.16, the resulting AADT of 82 means roads in Gryffin Bluffs still would not meet minimum ITE standards even only for recreational usage of the existing 26 approved units.

(2)  The Gravenhurst Development Bylaw, outlines standards Gravenhurst considers suitable for private roads in Muskoka.  As far as has been determined, these appear to be consistent with those District of Muskoka and Town of Huntsville . The standards laid out in Sections 3.4, 3.5 and 3.6 appear directly applicable.  Section 3.5 specifically covers private roads, and sets out the minimum standard for a road right-of-way. This requires a road width of 6.5 meters, and a maximum grade of 12%. It also requires proper ditches, drainage and culverts. However, this is only for areas with very low traffic volumes (under 50 A.A.D.T., which is a standardized measure of annual average vehicles per day traversing a road section). The fully-developed traffic volumes in Gryffin Bluffs, even before adding the contemplated rights-of-way to additional properties outside the condo assocation, are such that section 3.4 applies instead. Section 3.4 applies to any ‘rural roads’ or rights-of-way with more than 50 vehicles per day. It requires a minimum width of 6.5 meters, plus 1.5 meter shoulders on both sides, for a total width of 9.0 meters. The grade is limited to 10% maximum, with no exception for hilly or rocky areas. Section 3.6 covers cul-de-sacs, and the considerations would apply to dead-end roads such as in Gryffin Bluffs. It states that cul-de-sacs are specifically discouraged “because of the life safety risks involved”.  Presumably even if exceptions were sometimes made to the requirements in 3.4 or 3.5, exceptions to the 3.4 and 3.5 standards would much less likely for dead-end roads where danger to life is explicitly recognized to be higher.  Note that in addition to not meeting these standards for width and grade, a major problem with Gryffin Bluffs roads appears to be that they also do not meet the 100mm minimum standard to the bottom of ditches.  While this may seem an insignificant detail, some owners have found it greatly affects winter road usage.  Few areas in Gryffin Bluffs have ditches that meet the standard, and many stretches of Gryffin Bluffs roads do not have ditches at all, with some stretches of road level with or even below the adjacent grade.  This means any freeze/thaw in the winter results in ponding and freezing on the road surface, increasing risk to road users and further driving up maintenance costs.