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Statutes of Newfoundland and Labrador 2009 1. Short title 2. Interpretation PART
I 3. Registrar of condominiums 4. Deputy registrar of condominiums 5. Protection of the registrar 6. Duties of the registrar 7. Condominium registry PART
II 8. Requirements for registration 9. Contents of the declaration 10. Amendment of declaration 11. Contents of description 12. Amendment of description 13. Notification of encumbrancers 14. Agreement on prior encumbrances 15. Effect of registration of an encumbrance agreement PART
16. Ownership of property PART
IV 17. Condominium corporation 18. Objects and powers 19. Duties and powers of the corporation 20. Quorum 21. Voting 22. Declarant no longer owning majority of units 23. Duties of the corporation to maintain records 24. Sharing in assets of corporation 25. Corporation may bring action 26. Judgment against corporation 27. Board of directors 28. Qualifications of directors 29. Designate 30. Removal of director 31. Effect of defect in election or appointment 32. Duties of directors 33. Indemnification of directors and officers 34. Duty to disclose 35. By-laws 36. Rules for use of common elements 37. Annual financial statements 38. Duties of the owners respecting an audit 39. Duties and powers of auditors PART
V 40. Agreements of purchase and sale 41. Disclosure statement 42. Estoppel certificate 43. Cancellation of agreement of purchase and sale 44. Budget statement 45. Accountability for budget statement PART
VI 46. Taxation 47. Easements 48. Common expenses fund 49. Reserve fund and reserve fund study 50. Contingency fund 51. Lien 52. Changes in common elements and assets 53. Considered covenant 54. Repair after damage 55. Maintenance 56. Insurance 57. Capacity to maintain insurance 58. Deductible 59. Where property destroyed 60. Expropriation of property 61.
62. Substantial damage 63. Withdrawal from this Act 64. Resolution of disputes PART
65. Amalgamation 66. Registration of amalgamation documents 67. Effect of registration PART
VIII 68. Common elements condominium corporation 69. Owners' land 70. Contents of declaration 71. Contents of description 72. Disclosure statement 73. Repair after damage and insurance PART
IX 74. Phased-development condominium 75. Disclosure statement 76. Contents of the declaration 77. Amendments to declaration and description 78. Disclosure of documents PART X 79. Vacant land condominium corporation 80. Contents of declaration 81. Contents of description 82. Status of buildings in corporation 83. By-laws 84. Disclosure statement 85. Repair and maintenance 86. Substantial damage 87. Limitation PART
XI 88. Regulations 89. Fees and forms PART
XII 90. Offence PART
XIII 91. Transitional 92. RSNL1990 cC-29 Rep. 93. Commencement Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows: Short title 1. This
Act may be cited as the Condominium Act,
2009. Interpretation 2. (1) In
this Act (a) "board" means the board of directors
of a corporation; (b) "buildings" means buildings and
structures included in a property; (c) "by-laws" means the by-laws of a
corporation; (d) "claim" includes a right, title,
interest, encumbrance or demand affecting land but does not include the
interest of an owner in the owner's unit or common interest; (e) "common elements" means the whole
property with the exception of the units; (f) "common elements condominium corporation"
means a common elements condominium corporation to which Part VIII applies; (g) "common expenses" means the expenses
related to the performance of the objects and duties of a corporation and all
expenses specified as common expenses in this Act or in a declaration; (h) "common
interest" means the interest in the common elements appurtenant to (i) a unit, in the
case of all corporations except a common elements condominium corporation, or (ii) an owner's parcel of land to which the common
interest is attached and which is described in the declaration, in the case of
a common elements condominium corporation; (i) "corporation" means a corporation
created or continued under this Act; (j) "court" means the Trial Division of the
Supreme Court of Newfoundland and (k) "declarant" means a person who owns
the freehold estate in the land described in the description and who submits
for registration under this Act a declaration and description that are
registered under this Act, and includes a successor or assignee of that person,
but does not include a purchaser in good faith of a unit who pays fair market
value or a successor or assignee of the purchaser; (l) "declaration" means a declaration
specified in section 9, and includes amendments
to the declaration; (m) "deputy registrar" means the Deputy
Registrar of Condominiums referred to in section 4; (n) "description" means a description as
specified in section 11 and includes all
amendments to the description that comply with section 12; (o) "disclosure statement" means a
disclosure statement as specified in section 41; (p) "encumbrance" means a claim that
secures the payment of money or the performance of another obligation, and includes
a mortgage and a lien; (q) "estoppel certificate" means an
estoppel certificate as specified in section 42; (r) "law society" means the Law Society
of Newfoundland and (s) "minister" means the minister appointed
under the Executive Council Act to
administer this Act; (t) "owner" means in relation to (i) a corporation, other than a common elements
condominium corporation, a person who owns a freehold interest in a unit and
its appurtenant common interest and who is shown as the owner in the Registry
of Deeds, and includes a mortgagee in possession and a declarant with respect
to a unit that the declarant has not transferred to another person, or (ii) a common elements condominium corporation, a
person, including the declarant, who owns a common interest in the common
elements and a freehold interest in the parcel of land to which the common interest
is attached as described in the declaration and who is shown as the owner in
the Registry of Deeds; (u) "phased-development condominium
corporation" means a phased-development condominium corporation to which Part IX applies; (v) "property" means the land, including
the buildings on it, and interests appurtenant to the land, as the land and
interests are described in the description and includes all land and interests
appurtenant to land that are added to the common elements; (w) "registrar" means the Registrar of Condominiums
referred to in section 3; (x) "registry" means the Registry of Condominiums
referred to in section 7; (y) "reserve fund" means a fund
established under section 49; (z) "reserve fund study" means a periodic
study to determine whether the amount of money in the reserve fund and the
amount of contributions collected by the corporation are adequate to provide
for the projected costs of major repair and replacement of the common elements
and assets of the corporation; (aa) "surveyor" means a person registered
as a surveyor under the Land Surveyors
Act, 1991; (bb) "unit" means a part of the property
designated as a unit by the description and includes the space enclosed by its
boundaries and all of the land, structures and fixtures within this space in
accordance with the declaration and description; and (cc) "vacant land condominium corporation"
means a vacant land condominium corporation to which Part X applies. (2) In this Act, the ownership of land includes
the ownership of space. PART I Registrar of condominiums 3. (1) The
Registrar of Deeds, appointed under the authority of the Registration of Deeds Act, shall be the Registrar of Condominiums
and shall perform the duties and functions and exercise the powers that are imposed
or conferred under this Act or prescribed by the regulations. (2) The registrar may assign those officers and
employees appointed or employed under the Registration
of Deeds Act to perform the duties or exercise the powers imposed on the
registrar under this Act. Deputy registrar
of condominiums 4. The Deputy Registrar of Deeds shall be the Deputy Registrar of Condominiums and shall (a) when the registrar is absent or unable to act, (b) when the registrar considers it necessary to delegate his or her authority, or (c) when the office of the registrar is vacant perform the functions of and have all the
powers and authority of the registrar. Protection of the
registrar 5. The
registrar or the deputy registrar is not, nor is a person acting under his or
her authority, personally liable in an action or proceeding for or in respect
of an act or a matter done or omitted to be done in good faith in the exercise
or purported exercise of the powers conferred upon the registrar or the deputy
registrar in the performance of duties under this Act or a regulation made
under this Act, or for the costs in connection with an action or proceeding. Duties of the
registrar 6. The
registrar shall examine all documents, plans and
other materials submitted to the registrar in accordance with this Act or the
regulations. 7. (1) The
registrar shall maintain a Registry of Condominiums where all declarations, amended declarations, descriptions, amended descriptions, court orders, by-laws,
notices of liens and other documents presented for registration under this Act
shall be registered in the manner provided by this section. (2) The registrar shall maintain in the registry a
record of the time when the documents referred to in subsection (1) are
presented for registration, the location of the property, the number of units,
the name of the corporation, the type of document, the date of the declaration
and description, an amendment to the declaration or description or withdrawal
of the declaration, and those other matters or things that may be prescribed by
the regulations. (3) Upon the registration of a declaration and description
in the registry, the registrar shall (a) maintain in the registry the declaration and description
and all other documents related to the declaration and description that are registered
under this Act; and (b) issue in the name of the corporation a
certificate of registration signed by the registrar showing the date of
registration, the location of the property, the registration number and those
other matters that may be prescribed by the regulations. PART II Requirements for
registration 8. (1) A
property shall comprise only freehold land and interests appurtenant to that
land. (2) A
declaration and description may be submitted for registration by or on behalf
of the declarant. (3) Upon submitting the declaration and
description for registration, the declarant shall submit (a) a survey of the property; (b) a statutory declaration from a practicing
member of the law society which states (i) that the person whose name appears in and who executes
the declaration as owner is the owner of the freehold estate in the property, (ii) that a person who holds an encumbrance over
the property has received the notification with a copy of the declaration and description
required by section 13, and (iii) that all rates, real property taxes,
assessments, charges and taxes levied or imposed upon the owner and occupier of
the property, or in respect of the property have been paid; (c) a copy of the proposed by-laws of the
corporation; (d) a notice of the registered office of the
corporation and a notice of directors in accordance with subsection 17(3); and (e) other information the registrar considers
necessary. (4) Upon acceptance of a declaration and
description for registration, the land and the interests appurtenant to the
land described in the description are governed by this Act. Contents of the
declaration 9. (1) A
declaration shall be executed by the declarant and shall contain (a) a statement of intention that the land and
interests appurtenant to the land described in the description be governed by
this Act; (b) the consent of all persons having registered encumbrances against the land or interests appurtenant to the land described in the description or proof that 30 days has elapsed since notification was given under section 13; (c) the number of units; (d) a statement, expressed in percentages
allocated to the units, of the proportions of the common interests; (e) a statement, expressed in percentages
allocated to the units, of the proportions in which the owners are to
contribute to the common expenses; (f) provisions relating to limitations on use or
special restrictions or obligations to be imposed on the owner of a unit or
with respect to the unit or common elements; (g) a specification of common expenses; (h) a specification of the parts of the common
elements that are to be used by the owners of one or more designated units and
not by all the owners; (i) provisions respecting the occupation and use of the units and common
elements; (j) provisions restricting gifts, leases and sales of the units and common
interests; (k) an address for service of all documents served
or to be served on the corporation; (l) a specification of the voting majority
required to make substantial changes in the common elements and the assets of
the corporation; (m) a specification of an allocation of the
obligations to repair and to maintain the units and common elements; (n) a
specification of the percentage of the value of the building that constitutes substantial
damage to the building under section 62; (o) a specification of the majority required to
authorize repairs under section 62; (p) a
specification of the voting majority required to permit the corporation to
lease part of the common elements; (q) a
definition of a standard unit; and (r) those other matters or things that may be required
by the regulations. (2) A declaration may contain a provision that
divides the units into 2 or more classes and, where the declaration divides the
units into 2 or more classes, (a) the declaration may contain more than one
provision under one or more of paragraphs (1)(a) to (r) and limit the application of each of the provisions to one or more
of the classes; and (b) the
corporation may make more than one set of by-laws and limit the application of
each set of by-laws to one or more of the classes. Amendment of declaration 10. (1) The
declaration may be amended with the consent of the owners of at least 80% of
the common elements. (2) When a declaration is amended, the corporation
shall (a) provide
proof to the satisfaction of the registrar, that 80% of the owners of the
common elements consented to the amendment; and (b) submit
for registration a copy of the amendment in a form acceptable to the registrar. (3) Notwithstanding subsection (1), the declarant
or the board may amend the declaration without the consent referred to in that
subsection in order to correct a grammatical, clerical, typographical or
printing error or an error in mathematics and shall file that amendment in the
registry. (4) Where an amendment is made
under subsection (3), it is considered to have been accepted for registration
at the time of registration of the original documentation. (5) The amendment referred to in subsection (3) is
not effective until it has been registered in the registry. Contents of
description 11. (1) A
description shall contain the following: (a) a
written description and plan showing the perimeter of the horizontal surface of
the land and the perimeter of the buildings; (b) architectural
or structural plans of the buildings; (c) a
specification of the boundaries of each unit by reference to the buildings, or
if there are no buildings, by reference to the appropriate co-ordinate
monument; (d) diagrams
showing the shape and dimensions of each unit and the approximate location of
each unit in relation to the other units and the buildings; (e) a
certificate of a person who is authorized to practise architecture in the province
that all buildings have been constructed in accordance with the architectural
plans and, if there are structural plans, a certificate of a person who is authorized
to practise engineering, as defined in the Engineers
and Geoscientists Act, 2008, that all buildings have been constructed in
accordance with the structural plans; (f) if no buildings are included in a property, a certificate of a
surveyor that the horizontal boundaries of the units have been monumented on
the ground in the required manner and that the diagrams of the units are
accurate and in accordance with the monuments so placed; (g) a description of interests appurtenant to the land that are included in the property; and (h) those other matters or things that may be
required by the regulations. (2) Notwithstanding paragraph (1)(b), the
registrar may, upon proof satisfactory to the registrar, waive the requirement
for architectural or structural plans. Amendment of
description 12. (1) The description may be amended with the consent of the owners of at least 80% of the common elements. (2) When a description is amended, the corporation shall (a) provide proof to the satisfaction of the registrar that 80% of the owners of the common elements consented to the amendment; and (b) submit for registration a copy of the
amendment in a form acceptable to the registrar. (3) Notwithstanding subsection (1), the declarant or the board may amend a description that is registered without the consent referred to in that subsection in order to correct a grammatical, clerical, typographical or printing error or an error in mathematics and shall file that amendment in the registry. (4) Where an amendment is made under subsection (3),
it is considered to have been accepted for registration at the time of registration
of the original documentation. (5) An amendment is not effective until it has
been registered in the registry. Notification of
encumbrancers 13. (1) Not
less than 30 days before the presentation for registration of the declaration
and description, the owner shall notify in writing the holder of an encumbrance
over the property of his or her intention to present the declaration and
description for registration and send to the holder at the time of notification
a copy of the declaration and description. (2) Where a holder of an encumbrance to whom
notice is required to be given under subsection (1) objects to the registration
of the declaration and description by filing in the registry a written notice
of objection before registration is effected, the declaration and description
shall not be accepted for registration until the objection has been withdrawn. (3) Upon presentation for registration of a
declaration and description, a certified copy of the notification required to
be given under subsection (1) shall be filed with the registrar. (4) The registrar shall not register a declaration
and description until the expiry of 30 days from the date of the notification
required to be given under subsection (1) unless the holder of the encumbrance
provides written consent to an earlier registration. Agreement on
prior encumbrances 14. (1) Before
the registration of a declaration and description under this Act, the owner of
the property and the holder of an encumbrance affecting the property may enter
into an agreement as to how the encumbrance is to be divided among the units
and common elements or is otherwise to be dealt with, and following the
registration of the declaration and description, the holder of the encumbrance
may register the agreement. (2) An agreement shall not be registered under
subsection (1) unless it is presented for registration within 30 days after the
registration of the declaration and description. (3) Upon the registration of an agreement under
subsection (1), the encumbrance against the property shall be released and the
encumbrances created by the agreement over the individual units and common elements
or otherwise shall take effect. (4) An agreement registered under subsection (1)
may provide that an encumbrance created by the agreement shall be considered to
have been registered at a time not earlier than the time when the encumbrance
in respect of the property was registered and, notwithstanding the Registration of Deeds Act, the
encumbrances created by the agreement shall be considered to have been
registered at the time specified in the agreement.
15. (1) In
the absence of the registration of an agreement under section 14 an encumbrance affecting the property before the
registration of the declaration and description shall, without the necessity of
registration of an instrument giving effect to it, be considered to attach
proportionately to each unit and the common elements pertaining to each unit in
the proportion that is specified, in the declaration by virtue of the requirement
of paragraph 9(1)(d), as being the percentage
which all the common elements relate to the unit. (2) The encumbrances considered to attach
proportionately to each unit under this section shall release the encumbrance
existing over the property before the registration of the declaration and
description and, notwithstanding the
Registration of Deeds Act, the encumbrances shall be considered to have
been registered at the time when the encumbrance over the property was
registered. PART Ownership of
property 16. (1) Units
and common interests are real property for the purpose of this Act. (2) Subject to this Act, the declaration and the
by-laws, each owner is entitled to exclusive ownership and use of the owner's
unit. (3) The owners are tenants in common of the common
elements and own an undivided interest in the common elements appurtenant to
each owner's unit. (4) The proportions of the common interests are
those expressed in the declaration. (5) The ownership of a unit shall not be separated
from the ownership of the common interest and an instrument that purports to
separate the ownership of a unit from a common interest is void. (6) Except as provided by this Act, the common
elements shall not be partitioned or divided. PART IV Condominium
corporation 17. (1) The
registration of a declaration and description under this Act creates a
corporation without share capital the members of which are the owners of the
units. (2) A corporation shall have a name which (a) shall end with the words "condominium corporation";
and (b) is approved by the registrar. (3) The corporation shall, at the time of filing
the declaration and, where there is a change in the registered office or a
change in the directors, file at the registry a notice of the registered office
of the corporation and a notice of directors listing the directors of the
corporation. Objects and
powers 18. (1) The
objects of the corporation are to manage the property and assets of the
corporation. (2) The corporation shall have all corporate powers and all corporate capacities necessary to enable it to do all acts and things that are incidental or conducive to or consequential upon the attainment of its objects. (3) A corporation may, with the consent of the
owners of at least 66% of the common elements, (a) acquire
by purchase, gift, devise, bequest or another means, real or personal property
and sell, mortgage, convey or otherwise deal with the property; (c) mortgage
or pledge its property or rights, including a future right to be paid money as
a result of a levy made under this Act, in order to secure repayment of money
borrowed by it or the payment or performance of obligations; (d) grant
easements affecting the common elements; (e) grant
leases of the common elements; (f) make capital expenditures; (g) consolidate
into one unit 2 or more adjacent units that are included in the property that
is managed by the corporation; and (h) levy
special assessments for extraordinary common element expenses. (4) An easement or lease granted under paragraph
(3)(d) or (e) has the same effect as if it were granted by all the owners of
the common elements to which the grant of easement or lease relates. (5) Where
units are consolidated under paragraph (3)(g), (a) the proportions of the common interests with respect to the
consolidated unit is equal to the proportions of the common interest with
respect to all the units that were consolidated; and (b) the
proportion in which the owner of the consolidated unit is to contribute to the
common expenses is equal to the proportion in which all the owners of the units
that were consolidated were to contribute to the common expenses and the consolidation takes effect when the amended declaration is filed with and accepted by the registrar. (6) Subject to the terms of the by-laws, the
affairs of the corporation shall be administered and managed by the board, with
power to appoint agents, solicitors and other persons to help it in the
administration and management of the property and the assets. (7) The
Corporations Act, paragraph 19(c) of the
Interpretation Act and, where consistent with the by-laws, paragraph 19(b)
of the Interpretation Act, shall not
apply to a corporation created under this Act. Duties and powers
of the corporation 19. (1) The corporation has the duty to (a) control, manage and administer the common elements
and the assets of the corporation; (b) maintain, repair and where necessary renew the common elements; and (c) take all reasonable steps to ensure that the owners, the occupiers of units, the lessees of common elements and the agents and employees of the corporation comply with this Act, the regulations, the declaration, the bylaws and the rules. (2) On giving reasonable notice, the corporation or a person authorized by the corporation may enter a part of the common elements including those of which an owner has exclusive use at any reasonable time to perform the objects and duties of the corporation or to exercise the powers of the corporation. (3) Reasonable notice that is required to be given
under subsection (2) may be dispensed with if the situation is considered by
the corporation, or a person authorized by the corporation, to be an emergency. (4) Upon entering under subsection (2) or (3) a part
of the common elements including those of which the owner has exclusive use,
the corporation has the power to inspect and to carry out repairs or make the
replacements to or within the common elements that are, in the opinion of the
corporation, necessary to keep the property or common elements in a good state
of repair. 20. (1) A
quorum for the transaction of business at a meeting of the members of the
corporation is the presence, either in person or by proxy, of the owners of at
least 30% of the common elements. (2) Where a quorum is not present at the opening
of, or during, a meeting of members, the owners present shall adjourn the
meeting to a fixed time and place. Voting 21. (1) All voting by owners shall be on the basis of one vote per unit and voting may be done by proxy. (2) Where units are consolidated under paragraph 18(3)(g) the owners of the consolidated unit are only
entitled to one vote. (2) Notwithstanding
an authorization, including a provision in an agreement, mortgage or charge
that is made on, before or after the commencement of this subsection, the
holder of a mortgage or charge on a unit may not exercise a right that another
person has, by reason of being the owner of a unit, to vote or consent, unless
the holder of the mortgage or charge is a mortgagee in possession. (3) Nothing
in subsection (1) or (2) invalidates a vote that was cast or consent that was
given before the commencement of this subsection. (4) Powers
of voting conferred by, or consent required to be given or document required to
be executed under this Act, the declaration or the by-laws by an owner may be
exercised, given or executed (a) in
the case of an owner who is under 19 years of age by that owner's guardian; (b) in the case of an owner who has named a
designate under section 29, by that designate;
or (c) in
another case, by the person who for the time being is authorized by law to
control the owner's property. (5) Where
the court, upon application of the corporation or of an owner, is satisfied
that there is no person capable or willing or reasonably available to exercise
the power of voting, giving consent or executing a document, in respect of a
unit, the court, (a) in cases where unanimous vote or unanimous consent is
required by this Act, the declaration or the by-laws, shall; and authorize another
proper person to exercise the power of voting, to give the consent or to
execute the document, in respect of the unit. Declarant no
longer owning majority of units 22. (1) Within
30 days of the declarant no longer owning a majority of the units in the
property, the declarant shall provide to the corporation without charge, and
for the purposes of paragraphs (e),(f),(g) and (j) where available, (a) the
seal of the corporation; (b) the
minute book for the corporation, containing the most current copies of the
declaration, by-laws, rules, regulations and amendments; (c) a
copy of agreements entered into by the corporation or the declarant or the
representatives of the declarant on behalf of the corporation, including a
management contract, deed, service agreement, lease or licence; (d) existing
warranties or guarantees for equipment, fixtures or chattels included in the
sale of either the units or common elements that is not protected by a warranty
or guarantee given directly to a unit purchaser; (e) as-built
architectural, structural, engineering, mechanical, electrical and plumbing
plans; (f) original specifications indicating all material changes; (g) plans
for underground site service, site grading, drainage and landscaping, together
with cable-television drawings; (h) copies of all policies of insurance and the
related certificates or memoranda of insurance and all insurance trust agreements; (i) all records that it has related to the units
or to employees of the corporation; (j) plans and information not mentioned in paragraphs (e), (f) and (g)
but relevant to the future repair or maintenance of the property; (k) all financial records of the corporation and
of the declarant relating to the operation of the corporation from the date of
registration of the declaration and the description; (l) a copy of the reserve fund study; and (m) other items that may be prescribed by regulation. (2) Where the declarant no
longer owns a majority of the units in the phase, the corporation may, upon
providing 60 days notice, terminate management agreements entered into by the
declarant in relation to the phase. Duties of the
corporation to maintain records 23. (1) The
corporation shall keep adequate records, and a member of the corporation may,
upon giving reasonable notice, inspect the records at any reasonable time. (2) In
this section, "records" includes (a) financial records; (b) minutes of meetings of the members of the
corporation and its board; (c) the declaration, by-laws and rules; (d) all items referred to in section 22; (e) all agreements entered into by the corporation; (f) disclosures of conflicts of interest; and (g) all other records that are specified in the by-laws
of the corporation. (3) The
corporation shall keep all financial records for at least 7 years from the end
of the last fiscal period to which they relate. (4) The corporation shall, within a reasonable
time, provide, when requested, a copy of a record to a person upon the person paying
a reasonable fee to compensate the corporation for the labour and copying
charges. Sharing in assets
of corporation 24. The
members of the corporation share the assets of the corporation in the same
proportions as the proportions of their common interests in accordance with
this Act, the declaration and the by-laws. Corporation may
bring action 25. An
action with respect to, arising from, or relating to a common element shall be
brought by or against the corporation in its own name. Judgment against
corporation 26. (1) A
judgment for the payment of money against the corporation is also a judgment
against each owner at the time the cause of action arose for a portion of the
judgment determined by the proportions specified in the declaration for sharing
the common expenses. (2) An
owner may be discharged from that judgment by paying to the claimant a portion
of the judgment debt and costs determined by the proportions specified in the
declaration for sharing the common expenses, and upon that payment being made,
the holder of the judgment shall give to the owner a discharge in accordance
with the regulations. Board of
directors 27. (1) The
affairs of the corporation shall be managed by a board of directors, consisting
of 3 persons or a greater number as the declaration or by-laws may provide,
elected by the members of the corporation. (2) Notwithstanding
subsection (1), where the declarant has not ceased to own all the units, the
board of directors shall be chosen in the following manner: (a) the
declarant shall appoint that proportion of the total number of directors that
the number of units still owned by the declarant bears to the total number of
units in the property, but where the number so arrived at is not a whole
number, the declarant shall appoint that number of directors that is equal to
the lower of the nearest 2 whole numbers; and (b) the
members of the corporation, other than the declarant, shall elect the remaining
directors. (3) Subsection
(2) does not apply where (a) at
a meeting of the members of the corporation at which a board of directors is
chosen, a resolution is passed by the affirmative vote of at least 66% of the
members present in person or by proxy, that the entire board be elected by the
members of the corporation; or (b) the
number arrived at by multiplying the total number of directors by the
percentage of the units that the declarant has not ceased to own is less than
one half. (4) The
term of the members of the board shall be 3 years or a lesser period as the
declaration or by-laws may provide, but the members of the board may continue
to act until their successors are elected, and members are eligible for re-election.
(5) Where a vacancy in the membership of the board occurs, the board may appoint a person to serve on the board until the next meeting of members when a confirmation of that member or an election for a new member shall take place. (6) Notwithstanding subsection (5), where a
vacancy in the membership of the board occurs and, at the time the vacancy is
filled, subsection (2) applies, the vacancy shall be filled in a manner that
would result in the proportion of the members of the board who are appointed by
the declarant being the same as the proportion of members of the board who would
have been appointed by the declarant where a new board had been chosen in
accordance with subsection (2) at the time the vacancy was filled. (7) A
quorum for the transaction of business is a majority of the members of the
board or a greater number as the declaration or by-laws may provide. (8) The declaration or the by-laws may specify and
regulate the qualifications, nomination, election, compensation and removal of
members of the board, and the meetings, functions and officers of the board. Qualifications of
directors 28. (1) A
person shall not be elected or hold office as a director where that person (a) has
not attained 19 years of age; or (2) Where
the declarant is entitled to appoint a person as a director, paragraph (1)(b)
does not apply with respect to that appointment. Designate 29. (1) A
unit owner may name a person as designate for that person to act on his or her behalf
in matters relating to the functioning of the condominium corporation. (2) The designate shall be at least 19 years of
age at the time of appointment. (3) Notwithstanding paragraph 28(1)(b), the designate is eligible to be nominated
for election to the office of director. (4) Where the unit owner ceases to own the unit, the rights of the designate to act on behalf of that owner in matters relating to the functioning of the corporation are terminated. (5) Where a designate has been elected to the
office of director and the unit owner ceases to own the unit, the designate's
tenure as a director is terminated. Removal of
director 30. (1) A
person may be removed from the office of director by a majority of the votes
cast in favour of the removal at a meeting of the members. (2) Where
a vote is being taken under subsection (1), the declarant as a member has one
vote. Effect of defect
in election or appointment 31. An
act of a person is not invalid by reason only of a defect in the election or
appointment of that person as a director or officer or the lack of a
qualification for that office. Duties of
directors 32. (1) Every
director and officer of the corporation shall, in exercising the powers and
discharging the duties of office, (a) act
honestly and in good faith; and (b) exercise
the care, diligence and skill that a reasonably prudent person would exercise
in comparable circumstances. (2) A
director is not liable when exercising the powers and discharging the duties of
office if the director relies in good faith upon (a) financial
statements of the corporation that the auditor, in a written report, an officer
of the corporation or a manager under an agreement for the management of the
property, represents to the director as presenting fairly the financial
position of the corporation in accordance with generally accepted accounting principles;
or (b) the
report or opinion of a person whose profession lends credibility to the report
or opinion. Indemnification
of directors and officers 33. The
by-laws of the corporation may provide that every director and officer of the
corporation and that person's heirs, executors, administrators and other legal
personal representatives may be indemnified by the corporation from and against
(a) liability
and all costs, charges and expenses that the director or officer sustains or
incurs in respect of an action, suit or proceeding that is proposed or
commenced against that person for or in respect of anything done or permitted
by that person in respect of the execution of the duties of office; and (b) all
other costs, charges and expenses that person sustains or incurs in respect of
the affairs of the corporation. Duty to disclose 34. (1) A
director of the corporation who has, directly or indirectly, an interest in a
contract or transaction to which the corporation is a party or a proposed contract
or transaction to which the corporation may be a party, shall disclose in
writing to the corporation the nature and extent of the interest. (2) A
disclosure of an interest in a contract or transaction or a proposed contract
or transaction is sufficient if it is a general notice disclosing that the
director (a) is
also a director or officer of a party to a contract or transaction or a
proposed contract or transaction with the corporation; or (b) has
a material interest in a party to a contract or transaction or a proposed
contract or transaction with the corporation. (3) Subsection
(1) does not apply to a contract or transaction unless both it and the director's
interest are material. (4) Notwithstanding
subsection (2), if the contract or transaction or proposed contract or
transaction to which subsection (1) applies involves the purchase or sale of
real or personal property by or to the corporation, the director shall disclose
(a) the
cost of the property to the purchaser; and (b) if
acquired by the seller within 5 years before the date of the contract or
transaction or the proposed contract or transaction, the cost of the property
to the seller, to the extent to which the interest or information is within the
director's knowledge or control. (5) The
disclosure required by this section shall be made (a) at
the meeting of the directors at which the contract or transaction or the
proposed contract or transaction is first considered; (b) where
the director is not, at the date of the meeting, interested in the contract or
transaction or the proposed contract or transaction, at the next meeting of the
directors held after the director became interested; (c) where
the director becomes interested in the contract or transaction after it is entered
into, at the first meeting of the directors held after the director becomes so
interested; or (d) where
the contract or transaction or the proposed contract or transaction is one
that, in the ordinary course of the business of the corporation, would not
require approval by the directors or owners, at the first meeting of the
directors held after the director becomes aware of the contract or transaction
or the proposed contract or transaction. (6) The
board shall enter the disclosure made by a director under this section in the
minutes of the meeting of the board at which the disclosure was made. (7) The
director shall not vote or be counted in the quorum on a vote with respect to a
contract or transaction or a proposed contract or transaction to which
subsection (1) applies unless the interest of the director in it (a) is
or would be limited solely to liability insurance against liability incurred as
a result of acting as a director or officer of the corporation or remuneration
as a director, officer or employee of the corporation; or (b) arises
or would arise solely because the director is a director, officer or employee
of the corporation, if the director has been appointed to the first board by
the declarant. (8) A
director who complies with this section and who is acting honestly and in good
faith at the time the contract or transaction is entered into is not
accountable to the corporation or the owners for profit or gain realized from
the contract or transaction by reason only of holding the office of director
and the contract or transaction is not voidable by reason only of the interest
of the director in it if (a) the
contract or transaction is confirmed or approved by at least 66% of the votes
cast at a meeting of the owners called for that purpose; and (b) the
nature and extent of the interest of the director in the contract or
transaction are declared and disclosed in reasonable detail in the notice
calling the meeting. By-laws 35. (1) The
corporation may, on a resolution of not less than 66% of its members, make by-laws
not inconsistent with this Act, the regulations or the declaration (a) governing the use, maintenance, management and
administration of the property and assets of the corporation; (b) respecting the use of units for the purposes
of preventing unreasonable interference with the use and enjoyment of the
common elements and other units; (c) respecting the composition and appointment of
a board of directors, fixing the quorum, the terms of appointment and
establishing rules of procedure and other matters considered necessary for the
proper functioning of the board; (d) respecting the voting rights of the members of
the corporation; (e) specifying the functions and duties of the
corporation and the board of directors; (f) providing for the assessment, collection and
disbursement of contributions from owners of the units relating to the common
elements; (g) to establish what constitutes a standard unit for each class of unit specified in the declaration for the purpose of determining the responsibility for repairing improvements after damage and insuring them; (h) respecting the use of the contingency fund; (i) respecting mutual insurance coverage on the
property, units and common elements and the application of the proceeds of
insurance; and (j) covering other matters respecting the conduct
and affairs of the corporation. (2) When the by-laws are made by the corporation,
they shall be registered with the registrar together with a certificate signed
by not less than 66% of the members of the corporation (a) stating that the resolution referred to in
subsection (1) has been made and that the persons signing the certificate
concur with the by-laws as filed; and (b) specifying members of the corporation. (3) The by-laws
shall, upon receipt of the approval of members, be immediately forwarded to the
registrar and shall take effect immediately upon receipt of the approval by the
registrar unless the by-laws state a later date from which the by-laws are to
have effect. (4) By-laws made under this section may be amended
or revoked by the corporation on a resolution of not less than 66% of its
members and subsection (3) shall apply to the amendment or revocation of the by-laws
as it applies to the by-laws. Rules for use of
common elements 36. (1) The
by-laws may provide for the making of rules by the corporation respecting the
use of the common elements for the purpose of preventing unreasonable
interference with the use and enjoyment of the units and common elements. (2) The
rules shall be reasonable and consistent with this Act, the declaration and the
by-laws and shall be approved by 66% of the members of the corporation. (3) The rules shall be complied with and enforced in the same manner as the by-laws. (4) The rules made under this section may be
amended or revoked by the corporation on a resolution of not less that 66% of
its members. Annual financial
statements 37. (1) The corporation shall prepare annual financial statements showing its assets and liabilities and its income and expenses and containing other information that may be prescribed. (2) The financial statements shall be in the required form and shall, upon request, be made available to the registrar. (3) In the case of a corporation that has as one
of its objects, the management of a property consisting of less than 10 units,
the corporation shall, 10 days or more before the annual meeting of owners,
send by prepaid mail or deliver to each owner at that owner's latest address as
shown on the records of the corporation, a copy of the financial statement. Duties of the
owners respecting an audit 38. (1) This
section does not apply with respect to a corporation that has, as one of its
objects, the management of a property consisting of less than 10 units. (2) At
each annual meeting held after this section comes into force, the owners shall (a) set
the fiscal year of the corporation; and (b) appoint
an auditor of the corporation to hold office until the close of the next annual
meeting. (3) Where
the owners do not set the fiscal year or appoint an auditor, the
board may do so. (4) A
person shall not be appointed or act as auditor of a corporation who is a
director, officer, employee or manager of the corporation, has an interest in
contracts of the corporation, or is a partner, employer or employee of a
director, officer, employee or manager of the corporation. (5) A
person shall not be appointed or hold office as auditor of a corporation unless
that person is licensed as a public accountant under the Public Accountancy Act. (6) Where
an auditor is not appointed at an annual meeting, the auditor in office
continues in office until a successor is appointed. (7) Notwithstanding
anything contained in this section, the owners may remove an auditor in
accordance with a contract of employment made between the corporation and the
auditor or a provision of law respecting the employment. (8) The
remuneration of an auditor appointed by the owners shall be fixed by the
owners, or by the board if it is authorized to do so by the owners, and the
remuneration of an auditor appointed by the board shall be fixed by the board. (9) Where
an auditor is not appointed, the court may, on the application of an owner,
appoint an auditor to hold office until the close of the next annual meeting
and may fix the remuneration to be paid by the corporation for the services of
that auditor. (10) The
corporation shall give a person appointed as auditor notice in writing of the
appointment immediately after the appointment is made. Duties and powers
of auditors 39. (1) The
auditor shall make those examinations that enable a report to the owners as required
by subsection (2). (2) The
auditor shall make a report to the owners on the comparative financial
statements, including a balance sheet, statement of retained earnings, income
statement, statement of changes in financial position and additional statements
or information that may be required, to be laid before the corporation at each
annual meeting during the term of office of the auditor, and shall state in the
report whether, in the opinion of that auditor, the financial statements
referred to present fairly the financial position of the corporation and the
results of its operations for the period under review in accordance with
generally accepted accounting principles applied on a basis consistent with
that of the preceding period, if there was a preceding period. (3) Where
a report prepared under subsection (2) does not contain the unqualified opinion
required, the auditor shall state in the report the reasons there is no
unqualified opinion provided. (4) The
auditor of a corporation shall have access at all times to all records,
documents, accounts and vouchers of the corporation and may require from the
directors, officers and employees of the corporation the information and
explanations that, in the opinion of that auditor, are necessary to enable that
auditor to report under subsection (2). (5) The
auditor of a corporation may attend a meeting of owners and receive all notices
and other communications related to a meeting that an owner is entitled to
receive and be heard at a meeting that the auditor attends with respect to
business of the meeting that concerns him or her as auditor. (6) At
a meeting of the owners, the auditor, if present, shall answer inquiries
concerning the basis upon which that auditor formed the opinion given in the
report made under subsection (2). (7) The
financial statement shall be approved by the board and the approval shall be
evidenced by the signature at the foot of the balance sheet by 2 of the
directors authorized to sign, and the auditor's report shall be attached to or
accompany the financial statement. (8) The
corporation shall, 10 days or more before the annual meeting of owners, send by
prepaid mail or deliver to each owner at that owner's latest address as shown
on the records of the corporation a copy of the financial statement and a copy
of the auditor's report. (9) The
board shall provide at each annual meeting of owners (a) a
financial statement made in accordance with generally accepted accounting
principles; (b) the
report of the auditor to the owners; and (c) further
information respecting the financial position of the corporation that the by-laws
of the corporation require. PART V Agreements of
purchase and sale 40. (1) Where
a declarant enters into an agreement of purchase and sale with a purchaser, the
declarant shall, where possible, attach a disclosure statement to that
agreement of purchase and sale. (2) Where an existing unit owner enters into an
agreement of purchase and sale with a purchaser, the existing unit owner shall,
where possible, attach an estoppel certificate that is dated within 60 days of
the agreement of purchase and sale. (3) Where the disclosure statement or estoppel certificate is not available at the time of entering into the agreement of purchase and sale, the declarant or unit owner shall provide it to the purchaser as soon as it is available and, at the latest, it shall be provided to the purchaser within 5 days of its receipt by the declarant or the unit owner. Disclosure statement 41. (1) A
disclosure statement shall specify the date on which it was made and shall
contain (a) a statement of the name and municipal address
of the declarant and the municipal address of the property; (b) a general description of the property
including the types and the number of buildings, units and recreational and
other amenities, together with all conditions that apply to the provision of
amenities; (c) a statement whether a building on the property
or a unit has been converted from a previous use; (d) a statement whether one or more units may be
used for commercial or other purposes not ancillary to residential purposes; (e) a statement of the portion or number of units
that the declarant intends to lease; (f) a schedule of the proposed commencement and
completion dates for amenities, if the construction is not completed; (g) a copy of the existing or proposed declaration, by-laws or rules; (h) a statement as to whether the by-laws of the corporation have been registered; (i) a statement as to whether the common property
of the condominium corporation has been mortgaged or transferred; (j) a statement of all outstanding judgments
against the corporation and the status of legal actions to which the
corporation is a party; (k) a statement of whether, to the knowledge of
the declarant, the corporation intends to amalgamate with another corporation
or whether the declarant intends to cause the corporation to amalgamate with
another corporation within 60 days of the date of registration of the
declaration and description for the corporation; (l) if an amalgamation is intended under paragraph
(k), a copy of the proposed declaration, description, by-laws and rules for the
amalgamated corporation, if available; (m) a copy of the budget statement described in section
44; (n) a copy of the budget of the corporation for
the current fiscal year if more than one year has passed since the conveyance
of the first unit; (o) a copy of the reserve fund study; and (p) all other information that may be required by the regulations. (2) The corporation may charge a reasonable fee
for providing the disclosure statement. (3) Where a disclosure statement that a corporation
has given under subsection (1) omits material information that it is required
to contain, it shall be considered to include a statement that there is no information.
(4) The disclosure statement binds the corporation,
as of the date it is given or is considered to be given under subsection (3),
with respect to the information that it contains or is considered to contain
under subsection (3) against a purchaser or mortgagee of a unit who relies on
the certificate. Estoppel
certificate 42. (1) On
the request of an owner of a unit the corporation shall issue an estoppel
certificate with respect to a unit in the corporation that specifies the date
on which it was made and that contains the following: (a) a statement of the common expenses for the
unit and the default in the payment of the common expenses where there is a
default; (b) a statement of the increase in the common
expenses, where there is an increase, for the unit that the board has declared
since the date of the budget of the corporation for the current fiscal year and
the reason for the increase; (c) a statement of the assessments that the board
has levied, if there have been assessments, against the unit since the date of
the budget of the corporation for the current fiscal year, to increase the
contribution to the reserve fund and the reason for the assessments; (d) a statement of the address for service for the
corporation; (e) a statement of the names and addresses for
service of the directors and officers of the corporation; (f) a statement of the name and address of the corporation's management company or manager; (g) a copy of the management agreements; (h) a copy of the current declaration, by-laws and
rules; (i) a copy of the certificate of registration of the corporation from the registry; (j) a statement as to whether the by-laws of the corporation have been registered; (k) a statement as to whether the common property
of the condominium corporation has been mortgaged or transferred; (l) a statement of all
outstanding judgments against the corporation and the status of legal actions
to which the corporation is a party; (m) a copy of the budget
of the corporation for the current fiscal year, the last annual financial
statement and the auditor's report on the statements; (n) a copy of the most recent reserve fund study and updates to it; (o) a statement with
respect to (i) the amount in the reserve fund no earlier than
at the end of a month within 90 days of the date of the estoppel certificate,
and (ii) current plans to increase the reserve fund where
there are plans; (p) a statement of those additions, alterations or
improvements to the common elements, changes in the assets of the corporation
and changes in a service of the corporation that are substantial, where there
have been additions, alterations, improvements or changes, that the board has
proposed but has not implemented, together with a statement of the purpose of
them; (q) a certificate or
memorandum of insurance for each of the current insurance policies; and (r) all other information
that may be required by the regulations. (2) The corporation may charge a reasonable fee
for providing the estoppel certificate. (3) Where an estoppel certificate that a
corporation has given under subsection (1) omits material information that it
is required to contain, it shall be considered to include a statement that
there is no information. (4) The estoppel certificate binds the corporation, as of the date it is given or is considered to be given under subsection (3), with respect to the information that it contains or is considered to contain under subsection (3) against a purchaser or mortgagee of a unit who relies on the certificate. Cancellation of
agreement of purchase and sale 43. (1) A
purchaser may, in accordance with this section, rescind the agreement of purchase
and sale. (2) To rescind an agreement of purchase and sale
under this section a purchaser shall give a written notice of rescission to the
declarant or the declarant's solicitor where subsection 40(1) applies, or to the existing unit owner or the
existing unit owner's solicitor where subsection 40(2)
applies, within 10 days of the later
of, (a) the date that the purchaser receives the
disclosure statement or estoppel certificate required under section 40; and (b) the date that the agreement of purchase and
sale is executed by both parties. (3) Where a notice of rescission is received from
the purchaser under subsection (2), the declarant, where subsection 40(1) applies, or the existing unit owner, where subsection
40(2) applies, shall promptly refund, without
penalty or charge, to the purchaser, all money received from the purchaser
under the agreement. Budget statement 44. (1) The
declarant shall prepare a budget statement for the corporation for the 12 month
period beginning the first day of the month following the month in which the
first conveyance of a unit to a purchaser occurs. (2) The budget statement shall contain (a) a statement of the common expenses of the
corporation; (b) a statement of the proposed amount of each
expense of the corporation, including the cost of the reserve fund study required
for the year and the cost of preparing audited financial statements; (c) a statement of the projected monthly common
expense contribution for each unit; (d) a statement of the projected monthly reserve
fund contribution for each unit; (e) a statement of the amount of all current or
expected fees, charges, rents or other revenue to be paid to or by the corporation
or by the owners for the use of the common elements or other facilities related
to the property; (f) a statement of the projected amount of the
reserve fund at the end of the current fiscal year; and (g) all other information that may be required by
the regulations. (3) During the 12 month period referred to in subsection
(1), the owners shall pay to the corporation, each month, their estimated
monthly share of the common expenses and their contribution to the reserve fund
that are set out in the budget statement. (4) The declarant shall pay the monthly share of
the common expenses and contributions to the reserve fund for unsold units. Accountability
for budget statement 45. (1) The declarant is
accountable to the corporation as set out in this section for the budget
statement prepared in accordance with section 44
that covers the one-year period immediately following the conveyance of the
first unit. (2) Immediately following the conveyance of the
first unit, the solicitor for the declarant shall hold in trust from the
proceeds of the sale of the first unit, or subsequent units if the required
amount cannot be achieved from the sale of the first unit, an amount equal to
at least 10% of the budget statement referred to in section 44. (3) The declarant shall pay to the corporation the
amount by which the total actual amount of common expenses incurred for the
period covered by the budget statement exceeds the total budgeted amount. (4) The declarant shall pay to the corporation the
amount by which the total actual amount of fees, charges, rents and other
revenue paid or to be paid to the corporation, during the period covered by the
budget statement, for the use of part of the common elements or assets or of other
facilities related to the property, is less than the total budgeted amount. (5) Where the total actual amount of revenue
described in subsection (4) exceeds the total budgeted amount, the declarant
may deduct the excess from the amount payable under subsection (3). (6) After receiving the financial statements for
the period covered by the budget statement, the board shall compare the actual
amount of common expenses and revenue described in subsections (3) and (4) for
the period covered by the budget statement with the budgeted amounts and shall,
within 30 days of receiving the financial statements, give written notice to
the declarant's solicitor of the amount that the declarant is required to pay
to the corporation under this section. (7) Where a notice is not given to the solicitor for
the declarant within 30 days of the board's receipt of the financial statement,
the solicitor may release the funds held in trust under subsection (2) to the
declarant. PART VI Taxation 46. (1) All
rates, real property taxes, assessments, charges and taxes which may be levied
or imposed by a body or authority under an Act upon the owner or occupier of,
or in respect of property which has been subdivided into separate units with
common elements under this Act, shall, from the date of registration of a
declaration under this Act and during the time the property is subject to this
Act, be levied and imposed upon the owner or occupier of or in respect of a
unit in the property. (2) An assessment or levy which is based upon the
value of real property shall be assessed and levied on the basis of the value
of a unit together with the value of the percentage which the common elements
relate to that unit. Easements 47. (1) Upon
the registration of a declaration and description there shall be implied by way
of covenant in respect of each unit in favour of and against the owner of the
unit (a) an easement of shelter and support by or of
the common elements and by or of every unit capable of enjoying or providing
shelter and support; (b) an easement for the provision and passage of
wires, cables, pipes or ducts relating to water, drainage, sewage, electricity,
heating, lighting and other services including telephone, radio and television
services; and (c) a right in favour of the owner of the benefit or
advantage of the easement referred to in paragraphs (a) and (b) to enter and to
permit a person acting for and on his or her behalf to enter upon the property
upon which the easements referred to in paragraphs (a) and (b) are located, for
the purposes of repairing, replacing, renewing or restoring a part of the property
or services affecting or interfering with the easements referred to in paragraphs
(a) and (b). (2) An easement of restrictive covenant in the
declaration or by-laws shall not defeat or be construed to defeat the covenants
contained in subsection (1) or to affect the rights of a person or body
entitled by law to enter the property or a unit for the purpose of inspection,
maintenance, repair or renewal of a part of the property or services affecting
the property, the units or the common elements, and a provision in the
declaration or by-laws which purports to provide otherwise is void. Common expenses
fund 48. The
corporation (a) shall establish an operating fund for the
payment of the common expenses and the owners shall contribute to that fund in
proportions specified in the declaration; (b) shall assess and collect the owner's
contributions towards the common expenses; (c) shall pay the common expenses; and (d) has the right to recover from an owner by an
action for debt (i) the unpaid amount of an assessment, (ii) a sum of money expended by it for repairs to,
or work done by it or at its direction in complying with a notice or order by a
competent public or local authority in respect of that portion of the building
comprising the unit of that owner, and (iii) the legal fees and costs incurred in the
collection of the debt. Reserve fund and reserve fund study 49. (1) The
corporation shall establish and maintain a reserve fund for major repair and
replacement of the common elements and assets of the corporation including,
where applicable, roofs, exteriors of buildings, roads, sidewalks, sewers,
heating, electrical and plumbing systems, elevators, laundry, recreational and
parking facilities. (2) Where
a corporation has, as one of its objects, the management of a property
consisting of less than 10 units, the corporation shall assess and collect the
owners' contributions to the reserve fund in an amount that would result in the
amount of the reserve fund becoming, and continuing to be, within 5 years after
this subsection comes into force or, where the corporation is created after the
commencement of this subsection, within 5 years after the corporation is
created, 100% of the annual operating budget of the corporation. (3) Where
a corporation was created under the Condominium
Act in force immediately before the commencement of this Act and has as one
of its objects, the management of a property consisting of 10 or more units,
the corporation shall, upon the commencement of this Act, complete a reserve-fund
study respecting the corporation within 2 years of the coming into force of
this Act in accordance with subsection (4) and provide it to the registrar upon
request. (4) A reserve-fund study respecting a corporation
that is required by this Act shall be completed in accordance with the regulations,
contain the information, opinions and recommendations and be prepared by the
person or a member of the class of persons as prescribed by the regulations. (5) Where
this section requires that a reserve fund study respecting a corporation be completed,
that corporation shall, within each 10-year period after the expiry of the time
limit for filing a reserve fund study, complete a reserve-fund study in
accordance with subsection (4) and provide it to the registrar upon request. (6) Where
a reserve-fund study respecting a corporation is completed in accordance with
this section and the amount of the reserve fund of the corporation is less than
the minimum amount that the reserve-fund study recommends that the fund ought
to be, the corporation shall assess and collect contributions from the owners
in an amount that shall result in the reserve-fund amount recommended by the
study being achieved within the period of time recommended in the study and
continuing to be at least the minimum amount recommended in the reserve-fund
study. (7) The cost of conducting a reserve fund study shall
be a common expense that the board may charge to the common expense fund. (8) All
contributions collected for a reserve fund shall be paid into the reserve fund
and used only for those purposes referred to in subsection (1) and the reserve
fund shall be deposited and maintained in a chartered bank or a credit union in
the province or invested in securities in which trustees are permitted by law
to invest trust funds. (9) The declarant shall contribute to the reserve fund in the amount set out in the declaration for all units he or she holds and for all units that are not sold. (10) A fund set up for a purpose mentioned in
subsection (1) is and is considered to be a reserve fund notwithstanding that
it may not be so designated and shall only be used for the purpose for which
the fund was established. (11) The reserve fund constitutes an asset of the
corporation and shall not be distributed to an owner except upon withdrawal of
the property from this Act. (12) The obligation of an owner to contribute
towards the common expenses, the reserve fund and a contingency fund shall not
be avoided by waiver of the right to use the common elements or by abandonment.
(13) Surplus in the operating budget of a corporation at the end of the fiscal year of the corporation shall be applied either against future common expenses or be paid into the reserve fund, but shall not, other than on withdrawal of the property from this Act, be distributed to the owners. Contingency fund 50. The
corporation may establish a contingency fund to be used for the purpose
provided in the by-laws. Lien 51. (1) Where
the owner of a unit fails to pay the share imposed on him or her by the
declaration or the by-laws in respect of the maintenance, repair and renewal of
a common element or a sum that he or she is required to pay under the declaration
or by-laws or is considered by this Act as a debt due by him or her, the amount
unpaid together with all interest owing and all reasonable legal costs and
reasonable costs incurred by the corporation in connection with the collection
or attempted collection of the unpaid amount, shall constitute a lien on the
interest of the owner, and the lien may be registered by the corporation as an
encumbrance over the unit of the owner by the registration in the Registry of
Deeds of an instrument in the required form and in the manner required by the
registrar. (2) The lien referred to in subsection (1) shall
be payable in priority to all other liens, charges or mortgages in respect of
the unit and the common interest, other than a lien for taxes. (3) The lien referred to in subsection (1) is not
a charge against the unit and the common interest of a unit registered under
the Registration of Deeds Act until a
certificate evidencing the lien has been recorded in the Registry of Deeds. (4) Every mortgagee, judgment creditor or other
person having a lien, charge or encumbrance upon or against a unit and the common
interest subject to the lien mentioned in subsection (1) may, after the lien
arises, pay to the corporation the amount of the lien, together with all interest
and expenses and add the amount so paid to that person's mortgage, judgment or
other security, and shall have in that respect the same rights, remedies and
privileges against the unit and the common interest as the mortgagee, judgment
creditor or other person has by virtue of or under the security held by the
mortgagee, judgment creditor or other person and the mortgagee, judgment
creditor or other person may also sue for and recover in an action for debt the
amount so paid, together with interest, and
expenses incurred in the collection of the debt, against the person primarily
liable to pay the amount. (5) The
lien may be enforced in the same manner as a mortgage and those provisions of
the Conveyancing Act respecting power
of sale shall apply with the necessary changes. (6) Upon
payment of the unpaid amount, the corporation shall give the owner a discharge
in the required form. Changes in common
elements and assets 52. (1) The
corporation, by a vote of members who own 80%, or a greater percentage that is
specified in the declaration, of the common elements, may make a substantial
addition, alteration or improvement to or renovation of the common elements or
may make a substantial change in the assets of the corporation. (2) The
cost of an addition, alteration or improvement to or renovation of the common
elements and the cost of a substantial change in the assets of the corporation
are common expenses. Considered covenant 53. Notwithstanding
an agreement, waiver, declaration or other statement to the contrary, every
agreement under which the occupant of a unit is in possession of the unit is considered
to include a covenant that the occupant agrees with the owner that the occupant
shall comply with this Act, the regulations, declaration, by-laws and rules. Repair after
damage 54. (1) The
corporation shall repair the units and common elements after damage other than
substantial damage dealt with under section 62.
(2) The obligation to repair after damage includes
the obligation to repair and replace after damage but does not include the
obligation to repair after damage improvements made to a unit, or wilful damage
caused to a unit by the unit owner. (3) For the purpose of this section, the question
of what constitutes an improvement to a unit shall be determined by reference
to a standard unit for the class of unit to which the unit belongs. (4) Notwithstanding subsection (2), a standard
unit for the class of unit to which the unit belongs shall be the standard unit
described in the declaration or a by-law made under paragraph 35(1)(g). (5) Notwithstanding subsection (2), a corporation
that was created before the day this section comes into force and that had the
obligation of repairing after damage improvements made to a unit before the registration
of the declaration and description shall continue to have the obligation unless
it has, by by-law, established what constitutes a standard unit for the class
of unit to which the unit belongs. Maintenance 55. (1) The corporation shall maintain the common elements and each owner shall maintain the owner's unit. (2) The obligation to maintain includes the obligation to repair after normal wear and tear but does not include the obligation to repair after damage. (3) A condition shall not be permitted to exist
and an activity shall not be carried on in a unit or the common elements that is
likely to damage the property. Insurance 56. (1) The
corporation shall obtain and maintain insurance, on its own behalf and on
behalf of the owners, for damage to the units and common elements that is
caused by major perils or the other perils that the declaration or the by-laws
specify. (2) In subsection (1), "major perils"
means the perils of fire, lightning, smoke, windstorm, hail, explosion, water escape,
strikes, riots or civil disturbance, impact by aircraft or vehicles, vandalism
or malicious acts. (3) The
obligation to insure under subsection (1) does not include insurance for damage
to improvements made to a unit. (4) For the purpose of this section, the question
of what constitutes an improvement to a unit shall be determined by reference
to a standard unit for the class of unit to which the unit belongs. (5) A standard unit for the class of unit to which
the unit belongs shall be described in the declaration or a by-law made under paragraph
35(1)(g), however, for
a corporation created under the Condominium
Act in force immediately before the commencement of this Act, where there
is no by-law, in place the by-law shall be passed within 6 months of the commencement
of this Act. (6) Subject to a reasonable deductible, the
insurance required under this section shall cover the replacement cost of the
property damaged by the perils to which the insurance applies. Capacity to maintain
insurance 57. (1) Nothing
in this Act shall be construed to restrict the capacity of a corporation, an
owner or another person to obtain and maintain insurance in respect of an
insurable interest. (2) For the purposes of section 56, the corporation shall be considered to have an
insurable interest in the units and common elements. Deductible 58. (1) Where
an insurance policy obtained by the corporation in accordance with this Act
contains a deductible clause that limits the amount payable by the insurer, the
portion of a loss that is excluded from coverage shall be a common expense. (2) Notwithstanding subsection (1), where an
owner, a lessee of an owner or a person residing in the owner's unit with the
permission or knowledge of the owner through an act or omission causes damage
to the owner's unit, the amount that is the lesser of the cost of repairing the
damage and the deductible limit of the insurance policy obtained by the corporation
shall be added to the common expenses payable for the owner's unit. (3) Notwithstanding subsection (1), the
corporation may pass a by-law to extend the circumstances in subsection (2)
under which an amount shall be added to the common expenses payable for an
owner's unit where the damage to the unit was not caused by an act or omission
of the corporation or its directors, officers, agents or employees. (4) The amount payable by an owner under this
section or as a result of a by-law passed under this section constitutes an
insurable interest of the owner. Where property
destroyed 59. (1) Where a property is destroyed and the
corporation decides under section 62 that it
shall not rebuild, each owner shall provide the board with a certificate of
title certified by a practicing member of the law society outlining the amount
of all encumbrances on his or her unit and shall attach payout statements for
encumbrances that shall be paid. (2) The board shall provide, in trust for the
owner, to the member of the law society who has certified the title, a cheque
for the amount of the encumbrances that shall be made payable to the holders of
the encumbrances and a cheque for the remaining amount to be paid to the owner.
Expropriation of
property 60. (1) Upon
expropriation of the property or a part of the common elements under the Expropriations
Act, this Act ceases to govern the property or the part of the common
elements expropriated. (2) Where part of the common elements is expropriated
under the Expropriations Act, the owners shall share the proceeds in the
same proportions as their common interests. (3) Notwithstanding subsection (2), the portion of
the proceeds received on expropriation under the Expropriations Act that
is attributable to a portion of the common elements that is for the use of the
owners of certain designated units, and not all the owners, shall be divided
among the owners of the designated units in the proportions in which their interests
are affected. 61. (1) (a) 80%
of the owners of the common elements; and (b) the
persons having registered claims against the property or the part of the common
elements created after the acceptance for registration of the declaration and description.
(2) Where
the sale is authorized under subsection (1), a conveyance shall be executed by
all the owners and a release or discharge shall be given by all the persons
having registered claims against the property or the part of the common
elements created after the acceptance for registration of the declaration and
description, and shall be submitted for registration together with a statutory
declaration from a practicing member of the law society showing that the
persons signing are all the owners and persons having registered claims. (3) A conveyance referred to in subsection (2)
shall be registered in the Registry of Deeds and a copy shall be filed in the
registry. (4) Upon
the acceptance for registration of the instruments mentioned in subsection (2),
(a) the
property or the part of the common elements sold are no longer governed by this
Act; (b) claims
against the land and interests appurtenant to the land created before the
acceptance for registration of the declaration and description are as effective
as if the declaration and description had not been accepted for registration;
and (c) claims
against the property or the part of the common elements created after the
acceptance for registration of the declaration and description are
extinguished. (5) The
owners share the proceeds of the sale in the same proportions as their common
interests. (6) Notwithstanding subsection (5), the portion of
the proceeds of the sale that is attributable to a portion of the common elements
that is for the use of the owners of certain designated units, and not all the
owners, shall be divided among the owners of the designated units in the proportions
in which their interests are affected. (7) A
corporation that has made a sale under this section and every owner in the
corporation shall be considered to have made an agreement that an owner who has
dissented on the vote authorizing the sale may, within 15 days of the vote,
submit to mediation or arbitration a dispute over the fair market value of the
property or the part of the common elements that has been sold, determined as
of the time of the sale. (8) Where an owner submits a dispute to mediation
or arbitration, subsections 64(2) and (5) apply
to the dispute. (9) An owner who submits a dispute to mediation or arbitration shall give the corporation notice of the submission within 24 hours of submitting the matter to mediation or arbitration. (10) A dissenting owner who refers a matter to
mediation or arbitration is entitled to receive from the proceeds of the sale
the amount the owner would have received if the sale price had been the fair market
value as agreed to in the mediation settlement or as determined by the arbitration
and shall not be entitled to a further amount. (11) The corporation shall pay to each of the
owners who served a notice under subsection (9) the deficiency in the amount to
which the owner is entitled where the proceeds of the sale are inadequate to
pay the amount. (12) The owners other than those who dissented on
the vote authorizing the sale are liable for the amount of the deficiency
payments determined by the proportions of their common interests. (13) The corporation shall add the amount of the
liability of each of the owners who voted in favour of the sale to the common expenses
appurtenant to the units of those owners and may specify a time for payment by
each of those owners. Substantial damage 62. (1) Where
damage to the buildings occurs, the board shall determine within 30 days of the
occurrence whether there has been substantial damage to the extent that the
cost of repair would be 25%, or the greater percentage as specified in the declaration,
of the value of the buildings immediately before the occurrence. (2) Where
there has been a determination that there has been substantial damage as
provided in subsection (1) and owners who own 80% of the common elements, or
the greater percentage as specified in the declaration, vote for repair within
60 days of the determination, the corporation shall repair. (3) Where
on a vote the owners do not vote for repair, the corporation shall, within 10
days of the vote, submit for registration a notice of withdrawal in the
required form and the registrar shall accept the notice for registration. (4) Where
there has not been a vote within 60 days of the determination that there has
been substantial damage under subsection (1), the corporation shall, within 10
days after the expiry of the 60 day period, submit for registration a notice of
withdrawal in the required form and the registrar shall accept the notice for registration.
(5) Upon
the acceptance for registration of a notice of withdrawal under subsection (3)
or (4), section 59 applies. (6) The obligation to repair after damage does not
include the obligation to repair improvements made to a standard unit as
defined in the declaration or the by-laws. Withdrawal from this
Act 63. (1) Withdrawal of the government of the property by this Act may be authorized by the consent of (a) all the owners of the common elements; and (b) the persons having registered claims against
the property or the part of the common elements created after the acceptance
for registration of the declaration and description. (2) Where the withdrawal of the property from this
Act is authorized under subsection (1), the corporation shall submit for
registration a notice of withdrawal in the required form, executed by all the
owners and all the persons having registered claims against the property
created after the acceptance for registration of the declaration and
description together with a statutory declaration from a practicing member of
the law society showing the persons signing the notice to be all the owners and
persons having registered claims and that all rates, real property taxes,
assessments, charges and other taxes levied or imposed upon the owner and
occupier of every unit or in respect of every unit have been paid. (3) Upon acceptance for registration of a notice
of withdrawal under subsection (2), or subsection (3) or (4) of section 62, (a) the
property is no longer governed by this Act; (b) the
owners are tenants in common of the land and interests appurtenant to the land
described in the description in the same proportions as their common interests;
(c) claims
against the land and the interests appurtenant to the land described in the
description created before the acceptance for registration of the declaration
and description are as effective as if the declaration and description had not
been accepted for registration; (d) encumbrances
against each unit and common interest created after the acceptance for
registration of the declaration and description are claims against the interest
of the owner in the land and interests appurtenant to the land described in the
description and have the same priority as they had before the acceptance for
registration of the notice of withdrawal; and (e) all
claims against the property created after the acceptance for registration of
the declaration and description, other than the encumbrances mentioned in paragraph
(d), are extinguished. Resolution of
disputes 64. (1) Where
a dispute arises between (a) an owner and the corporation; (b) 2 or more owners; (c) the declarant and the corporation; (d) the declarant and the owner; or (e) the owner of a unit and the occupier of another
unit and both parties consent, the dispute may
be submitted to a certified mediator selected by the parties. (2) Each party shall pay the share of the mediator's
fees and expenses that, (a) the settlement specifies, where a settlement
is obtained; or (b) the mediator specifies where the mediation
fails. (3) Where the parties referred to in subsection
(1) (a) do not agree to refer the matter to mediation; (b) cannot agree on the appointment of a mediator;
or (c) referred the matter to mediation and the
mediation was unsuccessful the dispute may either be referred to an
arbitrator under the Arbitration Act
or the parties may make application to the court. (4) A dispute under this section may only be
referred to an arbitrator with the consent of both parties. (5) When a matter is referred to arbitration under
this section, each party shall pay the share of the arbitrator's fees and
expenses that the award specifies. (6) Nothing in this section restricts the legal remedies
otherwise available for failure to perform a duty imposed by this Act. PART Amalgamation 65. In
sections 66 and 67,
(a) "amalgamated
corporation" means a corporation that is formed as a result of an
amalgamation under sections 66 and 67; and (b) "amalgamating
corporation" means a corporation that is amalgamated with one or more
other corporations under sections 66 and 67. Registration of amalgamation documents 66. (1) Two or more corporations may
amalgamate by registering a declaration and description where (a) they
have complied with subsections (2) and (3) and all requirements prescribed by
the regulations; and (b) the
owners of at least 80% of the units of each corporation vote in favour of
approving the declaration and description. (2) The
board of each amalgamating corporation shall call a meeting of the owners for
the purpose of approving the declaration and description of the amalgamated
corporation. (3) The
board shall give the owners a notice of the meeting which shall include (a) a
copy of the proposed declaration and description of the amalgamated corporation
and a copy of the proposed budget for the first year of operations of the
amalgamated corporation; (b) a
copy of all proposed by-laws and rules of the amalgamated corporation; (c) a
status certificate for each amalgamating corporation in the required form; (d) the report of the accountant or accounting firm of each of the amalgamating corporations on the last annual financial statements of that corporation, where it is not included in the status certificate; (e) reserve fund study; and (f) additional statements or information prescribed by the regulations.
(4) The declaration and description of an
amalgamated corporation shall not be registered unless there is attached a statutory
declaration of a director or an officer of each amalgamating corporation that
establishes to the satisfaction of the registrar that (a) there are reasonable grounds for believing
that (i) each amalgamating corporation is and the
amalgamated corporation shall be able to pay their liabilities as they become
due, and (ii) the realizable value of the amalgamated
corporation's assets shall not be less than the aggregate of its liabilities
and stated capital of all classes; and (b) there are reasonable grounds for believing
that (i) a creditor shall not be prejudiced by the
amalgamation, or (ii) adequate notice has been given to all known
creditors of the amalgamating corporations and a creditor does not object to
the amalgamation otherwise than on grounds that are frivolous or vexatious. (5) For the purposes of subsection (4), adequate
notice is given where (a) a written notice is sent to each known
creditor having a claim against the corporation that exceeds $1,000; (b) a notice is published once in a newspaper
published or distributed in the place where the corporation has its registered
office; and (c) each notice states that the corporation
intends to amalgamate with one or more specified corporations in accordance
with this Act and that a creditor of the corporation may object to the
amalgamation within 30 days from the date of the notice. (6) The
declaration of an amalgamated corporation shall not be registered unless it is
executed by the officers of each of the amalgamating corporations authorized to
sign on behalf of the amalgamating corporation. (7) Section
63 does not apply to an amalgamation carried
out under this section but does apply to an amalgamated corporation. 67. (1) On registration of a declaration and
description for an amalgamated corporation, (a) the
amalgamating corporations are amalgamated and continue as one corporation; (b) the
units and common interests of the amalgamating corporations are continued as
units and common interests in the amalgamated corporation; (c) all
encumbrances that affected the common elements of the amalgamating corporations
are continued as encumbrances that affect the common elements of the
amalgamated corporation; (d) all
declarations, descriptions, by-laws and rules of the amalgamating corporations
cease to apply; (e) the
members of the amalgamating corporations are the first members of the
amalgamated corporation; (f) the directors of the amalgamating corporations are the first
directors of the amalgamated corporation; (g) all
the property and rights of the amalgamating corporations are the property and
rights of the amalgamated corporation and all the obligations and liabilities
of the amalgamating corporations are the obligations and liabilities of the amalgamated
corporation; and (h) the
amalgamated corporation replaces the amalgamating corporations as a party in an
action or proceeding to which the amalgamating corporation is a party. (2) Where the amalgamated corporation has, as one of its objects, the management of a property consisting of 10 or more units, the directors shall, immediately following the registration of the declaration and description for the corporation, appoint one or more auditors to hold office until the close of the meeting of owners held under subsection (4). (3) An amalgamated corporation that has, as one of
its objects, the management of a property consisting of 10 or more units, shall
complete a reserve fund study within 2 years of the date of the amalgamation. (4) The
first directors of an amalgamated corporation hold office until the members
elect their successors at a meeting which the first directors shall call and
hold within 60 days following the registration of the declaration and
description for the corporation. (5) At
the meeting referred to in subsection (2) the owners shall appoint successors
to the auditors mentioned in subsection (2) and sections 38 and 39 apply to the successors. PART VIII Common elements
condominium corporation 68. (1) A
declarant may register a declaration and description that create common
elements but do not divide the land into units. (2) The
type of corporation created by the registration of a declaration and
description under subsection (1) shall be known as a common elements
condominium corporation. (3) A declaration and description for a common
elements condominium corporation shall not be registered unless the
registration would create a condominium corporation that is not a vacant land
condominium corporation or a phased development condominium corporation. (4) Subject to this Part, Parts I to (a) references to a unit shall be considered to be
references to a common interest in the corporation; (b) references to a mortgagee of a unit shall be considered
to be references to a mortgagee of a common interest appurtenant to an owner's
parcel of land mentioned in section 69; and (c) references to a common interest appurtenant to
a unit shall be considered to be references to a common interest appurtenant to
an owner's parcel of land mentioned in section 69. (5) This Part does not apply to a corporation that
is not a common elements condominium corporation. Owners' land 69. (1) A declaration for a common elements condominium corporation shall
not be registered unless each of the owners of a common interest in the
corporation, (a) also owns the freehold estate in a parcel of
land, (i) that is not included in the land described in
the description, and (ii) which has been registered in the Registry of
Deeds; and (b) has signed a certificate in the required form stating
the owner consents to the registration of the declaration and the filing of the
notice described in subparagraph (2)(b)(i). (2) Upon the registration of a declaration and
description for a common elements condominium corporation, (a) the common interest of an owner in the corporation
attaches to the owner's parcel of land; and (b) the declarant shall register against each
owner's parcel of land, (i) a notice in the form required by the minister,
and (ii) a copy of the certificate described in paragraph
(1)(b). (3) Where an owner's parcel of land is divided
into 2 or more new parcels, the owners of the new parcels are joint owners of
the common interest attached to the original parcel. (4) Notwithstanding another Act, upon the sale of
the parcel of land of an owner in a common elements condominium corporation or
the enforcement of an encumbrance registered against the parcel, the common
interest of the owner in the corporation is not terminated or severed from the
parcel, but continues to be attached to the parcel. (5) Where an owner defaults in the obligation to
contribute to the common expenses of a common elements condominium corporation,
the corporation has a lien against the owner's parcel of land. (6) The lien is a lien for the purposes of section
51. (7) Notwithstanding subsection 51(2), the lien does not have priority over an
encumbrance registered against an owner's parcel of land before the common
interest of the owner attached to it unless the encumbrancer otherwise agrees
in writing. Contents of
declaration 70. In addition to the
requirements of subsection 9(1), a declaration
for a common elements condominium corporation shall contain, (a) a statement that the common elements are intended
for the use and enjoyment of the owners; (b) a legal description of the parcels of land
mentioned in subsection 69(1); and (c) all other material that the regulations
require.
71. Paragraphs 11(1)(c), (d) and (f) do not apply to a description
for a common elements condominium corporation. Disclosure statement 72. In addition to the
requirements of section 41, a disclosure statement
for a common interest in a common elements condominium corporation shall
contain (a) a statement that the common interest attaches
to the owner's parcel of land described in the declaration of the corporation
and cannot be severed from the parcel upon the sale of the parcel or the
enforcement of an encumbrance registered against the parcel; and (b) all other material that the regulations
require. Repair after
damage and insurance 73. (1) Sections 54 and 55 do not
apply to a common elements condominium corporation. (2) The corporation shall repair and replace the
common elements after damage and shall maintain them, other than substantial
damage dealt with under section 62. (3) References to a unit in section 56 shall be considered not to apply to a common
elements condominium corporation. PART IX Phased-development
condominium 74. (1) A
building or land that is subject to a condominium plan or proposed condominium
plan, may in accordance with this Act and the regulations, be developed in
phases. (2) In the process of carrying out the development
of a building or land in phases, additional units and additional common
elements may, in accordance with this Act and the regulations, be created. (3) Upon the acceptance for registration of each
subsequent phase of a phased-development condominium, the subsequent phase is
consolidated into one lot with all phases of the phased-development condominium
previously accepted for registration. Disclosure statement 75. In
addition to the requirements in section 41, a
disclosure statement for a unit in a phased development condominium corporation
shall contain, (a) a statement whether the declarant intends to
create one or more phases after the creation of the unit; (b) a statement that the declarant is not required
to create a phase after the creation of the unit; (c) a statement that sets out the projected year
of registration of the amendments to the declaration and description required
for creating each phase that the declarant intends to create after the creation
of the unit; (d) a statement that sets out, for each phase that
the declarant intends to create after the creation of the unit, (i) the approximate number of the units included
in the phase and a legal description of the land included in the phase, (ii) the approximate location of the buildings and
structures to be contained in the phase and a description of the facilities and
services to be contained in the phase, (iii) proportions,
expressed in percentages, of the common interests and common expenses attributable
to the units after the creation of the phase, (iv) facilities and services
that the owners shall share after the creation of the phase, and (v) that there are no
representations with respect to the quality of materials or appearance of
buildings other than those specifically set out as representations in the
disclosure statement; and (e) all other information that is required by the
regulations. Contents of the
declaration 76. In
addition to the requirements set out in section 9,
a declaration for a phased-development property shall include (a) a
statement that the condominium corporation created is a phased-development
property; (b) a
description of each phase and the approximate number of units included in each
phase; (c) a
statement of the approximate location of the buildings and structures included
in each phase; (d) a
statement expressed in percentages of the proportions of the common interests
and common expenses attributable to the units after the creation of the phase
and after the addition of each subsequent phase; (e) a
list of the facilities and services that the owners shall share after the
creation of the phase; (f) a statement that the declarant is not required to create a phase
after the creation of the present phase; (g) a
statement that sets out the estimated registration dates of the amendments to
the declaration and description required for creating each phase that the
declarant intends to create after the creation of the present phase; (h) a
copy of the proposed or approved survey or design plans of the condominium
showing (i) the perimeter of the horizontal surface of the land and the perimeter
of the buildings, where applicable, (ii) the shape of the units, the boundaries of the units, the location
of the units in relation to each other, and the location of the units in reference
to the buildings and level numbers, where applicable, and (iii) the common elements, including those intended for the exclusive use
of the owners; (i) the by-laws and common element rules of the corporation; and (j) a conceptual design of the entire development identifying the
location, size, number and general style of the units or land in each phase. Amendments to declaration and description 77. (1) The declarant shall file with the registrar an amendment to
both the declaration and description and, where the amendment is different from
the documents filed with the initial declaration, proof of the approval of 80%
of the unit owners to create a phase, in a form satisfactory to the registrar. (2) A unit owner may not unreasonably withhold the
approval required by subsection (1). (3) The declarant shall give the corporation and
all owners of units at least 14 days' notice of the intention to register a
phase. (4) Where
the amendment to create the proposed phase is different from the documents
filed with the initial declaration, the declarant shall provide the corporation
and all owners of units at least 60 days' notice of the intention to register
the phase, along with (a) copies
of the amendments to the declaration, description and the by-laws that shall be
filed to register the new phase; and (b) the
location and times at which the plans for the new phase may be viewed. (5) Where
the statements required by paragraph 76(d) for any 2
phases are the same, the declarant may substitute one phase for the other in
the order in which they are created. (6) Notwithstanding
subsection (4), where the requirements of subsection (1) have been fulfilled,
the amendment to the declaration may be filed with the registrar before the 60-day
notice period has elapsed. (7) The
amendment to the description required to create a phase shall comply with section
11. (8) In
addition to the requirements in subsection (4), the amendment to the
declaration required to create a phase shall include (a) the
consent of every person having a registered mortgage against, or interest
appurtenant to, the land included in the phase, as the land and the interests
are described in the amendment to the description required to create a phase; (b) a
statement of the proportions of common interests, expressed in percentages,
attributable to the units in the corporation after the creation of the phase; (c) a
statement of the proportions of common expenses, expressed in percentages,
which shall be allocated to the units in the corporation after the creation of
a phase; and (d) a
specification of all parts of the common elements included in the phase that
are to be used by the owners of one or more designated units and not by all the
owners. Disclosure of documents 78. When the declarant ceases to own a majority of
the units in the phase, all documents relating to the phase shall be given to
the corporation and the phase shall be considered part of the corporation. PART X Vacant land condominium
corporation 79. (1) A
declarant may register a declaration and description that create a corporation
in which, at the time of the registration, (a) one or more units are not part of a building
or structure and do not include a part of a building or structure; and (b) none of the units are located above or below
another unit. (2) The type of corporation created by the
registration of a declaration and description under subsection (1) shall be
known as a vacant land condominium corporation. (3) A declaration and description for a vacant
land condominium corporation shall not be registered unless the registration
would create a condominium corporation that is not a common elements condominium
corporation or, except as provided in the regulations made under this Act, a
phased-development condominium corporation. (4) Parts I to (5) This Part does not apply to a corporation that
is not a vacant land condominium corporation. Contents of
declaration 80. Where a unit in a
vacant land condominium corporation is to include a building or structure
constructed after the registration of the declaration and description, the
declaration may contain restrictions with respect to, (a) the size, location, construction standards,
quality of materials and appearance of the building or structure; (b) architectural standards and construction design
standards of the building or structure; (c) the time of commencement and completion of
construction of the building or structure; and (d) the minimum maintenance requirements for the
building or structure. 81. (1) A description of a vacant land
condominium corporation shall contain, (a) a written description and plan showing the
perimeter of the horizontal surface of the land, the perimeter of the buildings
and structures on the common elements and the boundaries of each unit; (b) architectural and structural plans of the
buildings and structures included in the common elements; (c) a certificate of a person who is authorized to
practise architecture in the province that all buildings have been constructed
in accordance with the architectural plans and, if there are structural plans,
a certificate of a person who is authorized to practise engineering, as defined
in the Engineers and Geoscientists Act,
2008, that all buildings have been constructed in accordance with the
structural plans; (d) a description of all interests appurtenant to
the land that are included in the property; and (e) all other material that the regulations
require. (2) Notwithstanding subsection 79(4), section 11 does not apply to vacant land condominium corporations. (3) Notwithstanding paragraph (1)(b), the registrar
may, upon proof satisfactory to the registrar, waive the requirement for
architectural or structural plans. Status of
buildings in corporation 82. (1) The buildings and structures located on
a unit or on the common elements of a vacant land condominium corporation,
whether or not the buildings and structures had been constructed at the time of
the registration of the declaration and description, are real property and form
part of the unit or common elements respectively. (2) The corporation is exempt from the obligation
to obtain and maintain the insurance described in section 56 for buildings and structures located on a unit. (3) The owner of a unit shall obtain and maintain
the insurance for damage to the unit that, but for subsection (2), the corporation
would have had to obtain with respect to the unit. By-laws 83. In addition to the
power to make, amend or repeal by-laws under subsection 35(1), the board of a vacant land condominium corporation
may make, amend or repeal by-laws, not contrary to the declaration, specifying
minimum maintenance requirements for a unit or a building or structure located
on a unit. Disclosure statement 84. (1) In addition to the material required under section 41, a disclosure statement relating to the purchase of
a unit in a vacant land condominium corporation shall
include all other material that the regulations require. (2) Where the declarant has not received a
statement in response to a request within 30 days of making it, the disclosure
statement shall contain a statement that the declarant has requested a statement
under subsection (1) but has not received a statement in response to the request.
Repair and maintenance 85. (1) Sections 54 and 55 do not
apply to a vacant land condominium corporation. (2) For the purpose of this section, the
obligation to repair after damage includes the obligation to repair and replace
after damage or failure and the obligation to maintain includes the obligation
to repair after normal wear and tear but does not include the obligation to
repair after damage. (3) A vacant land condominium corporation shall
maintain the common elements and repair them after damage. (4) The owner of a unit in a vacant land
condominium corporation shall maintain his or her unit and repair it after damage.
(5) Where an owner of a unit in a vacant land
condominium corporation fails to maintain his or her unit within a reasonable
time or to repair it within a reasonable time after damage, the corporation may
maintain or repair the unit. (6) An owner shall be considered to have consented
to the repairs or maintenance carried out by the corporation and the cost of
the work shall be added to the owner's contribution to the common expenses. Substantial
damage 86. (1) Where the board of a vacant land
condominium corporation determines under section 62
that substantial damage has occurred to a building located on a unit and the
owners do not vote for termination under that section, the owner of the unit
may elect, (a) not to repair the damage; or (b) to replace the building with a different building,
subject to this Act, the declaration and the by-laws. (2) An owner of a unit who elects not to repair
the damage shall, as closely as is reasonably possible, restore the land on
which the building was located to the state that the land was in immediately before
the construction of the building. (3) Where the owner of the unit does not do the
restoration within a reasonable time, the corporation may do it. (4) The owner shall be considered to have consented
to the restoration done by the corporation and the cost of the restoration
shall be added to the owner's contribution to the common expenses. Limitation 87. Notwithstanding
anything contained in this or another Act, a future encumbrance shall not be
created or be effective against the property during the period that it remains
subdivided into separate units with common elements under this Act. PART XI Regulations 88. The
Lieutenant-Governor in Council may make regulations (a) prescribing duties, functions and powers of
the registrar; (b) respecting those matters or things that the registrar shall maintain in the registry; (c) respecting those matters that may be required on the certificate of registration issued under section 7; (d) prescribing contents of a declaration; (e) prescribing contents of a description; (f) prescribing items to be provided to the corporation when the declarant no longer owns a majority of the units in the property; (g) prescribing contents of a disclosure statement; (h) prescribing contents of an estoppel certificate; (i) prescribing contents of a budget statement; (j) prescribing the qualifications for persons or
classes of persons who can prepare a reserve fund study; (k) prescribing the form and manner of and the information, opinions and recommendations required in a reserve fund study; (l) prescribing requirements an amalgamating corporation must comply with; (m) prescribing statements or information required to be given by the board to owners in a notice of meeting under paragraph 66(3)(f); and (n) generally, to give effect to the purpose of
this Act. Fees and forms 89. The minister may set the
fees and approved forms for the purpose of this Act. PART XII Offence 90. An individual who (a) knowingly makes a false statement in a certificate; (b) sells as a condominium, individual units in a building that are not registered as a condominium under this Act; or (c) contravenes a provision of this Act or the
regulations; commits an offence and is liable on
summary conviction to a fine of not more than $10,000 or to imprisonment for
not more than 6 months or to both. PART XIII Transitional 91. (1) Corporations
created under the Condominium Act are
continued as corporations under this Act. (2) A corporation's lien that was created under the Condominium Act for the default of an owner in the obligation to contribute to the common expenses is continued as a lien under section 51. (3) Part V does not apply to an agreement of purchase and sale signed before this Act comes into force. (4) Section 56 does not apply if, at the time this Act comes into force, the corporation has entered into an insurance policy and that policy has not expired. (5) Notwithstanding subsection (4), if the
corporation renews an insurance policy described in section 56 after that section comes into force, section 56 applies. RSNL1990 cC-29
Rep. 92. The Condominium
Act is repealed. Commencement 93. This Act comes into force on a date to be proclaimed by the Lieutenant-Governor in Council. ©Earl G. Tucker, Queen's Printer |