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Revised Statutes of Newfoundland 1990


CHAPTER C-29

AN ACT TO PROVIDE FOR OWNERSHIP OF INDIVIDUAL UNITS IN BUILDINGS

Analysis

1. Short title

2. Definitions

3. Condominium

4. Declaration

5. Notification to encumbrances

6. Amendment of declaration

7. Withdrawal from condominium

8. Condominiums register

9. Deed of conveyance to be registered

10. Common elements

11. Taxation

12. Condominium corporation

13. By-laws

14. Easements

15. Obligations of unit owners

16. Agreement re prior encumbrances

17. Effect of registration

18. Order re performance of duty

19. Limitation

20. Regulations


Short title

1. This Act may be cited as the Condominium Act.

RSN1970 c57 s1

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Definitions

2. In this Act

(a) "buildings" means buildings and structures included in a property;

(b) "by-laws" means the by-laws made under section 13;

(c) "common elements" means the whole property with the exception of the units;

(d) "corporation" means the corporation created upon the registration of a declaration;

(e) "declaration" means the declaration specified in section 3, and includes amendments to the declaration;

(f) "encumbrance" includes a mortgage or lien registered or capable of being registered in the registry and a seizure or levy under attachment or execution of the property or a unit entered by the sheriff in his or her office books, but does not include a lien conferred upon an authority or body under an Act for rates, assessments or taxes imposed on or in respect of a property;

(g) "minister" means the Minister of Municipal and Provincial Affairs or another minister of the Crown appointed by the Lieutenant-Governor in Council to administer this Act;

(h) "owner" means the owner of the freehold estate in the property or a unit, but does not include a mortgagee unless in possession;

(i) "plan" means the plan that is registered in the registry at the time of presentation for registration of the declaration;

(j) "property" means the land with the buildings described in the declaration, and includes all interests annexed to the land and buildings;

(k) "registrar" means the Registrar of Deeds;

(l) "registry" means the Registry of Deeds; and

(m) "unit" means a part or individual parts of the property designed and constructed for independent use or enjoyment and designated as a unit in the declaration.

RSN1970 c57 s2; 1973 No28 Sch B; 1974 No62 s3; 1981 c4 Sch A; 1984 c40 Sch B; 1989 c30 Sch B

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Condominium

3. (1) The owner of property may subdivide that property into units with common elements pertaining to each unit by registering at the registry a declaration and plan and by filing with them a certificate, all prepared in accordance with this Act.

(2) Upon the registration of a declaration and plan, each unit, together with the common elements specified in the declaration as pertaining to that unit, shall be a chattel real and may be held, conveyed, mortgaged, leased or otherwise disposed of in the same manner as another chattel real but subject to this Act.

RSN1970 c57 s4

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Declaration

4. (1) A declaration shall be executed by the owner of the property and shall contain

(a) a full description of the property and buildings;

(b) a description of each unit, and a reference to the unit number on the plan;

(c) a description of or reference to each common element and the percentage that

(i) each common element is to relate to each unit,

(ii) all the common elements are, for the purposes of subsection 17(1), to relate to each unit, and

(iii) the owner of a unit is required to pay for the maintenance, repair and renewal of each common element;

(d) 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;

(e) a statement of intention that the property described under paragraph (a) be governed by this Act; and

(f) the other matters or things that may be specified in the regulations.

(2) A plan to be registered at the registry with the declaration shall

(a) delineate the property and outline the buildings;

(b) show the location and the boundaries of each unit in the buildings, and specify a number by which each unit may be identified;

(c) show the location of each common element;

(d) contain a statement by

(i) a member of the Newfoundland Association of Architects,

(ii) a member of the Association of Professional Engineers of the province or an engineer licensed to practise under the Engineers and Geoscientists Act, or

(iii) a person entitled to practise as a land surveyor under the Land Surveyors Act

that the contents of the plan are accurate; and

(e) contain the other matters or things that may be specified in the regulations.

(3) A certificate to be filed in the registry at the time of presentation for registration of the declaration and plan shall be the certificate of a member of the law society of the province and shall contain statements

(a) that the person whose name appears in and executes the declaration as owner is the owner of the freehold estate in the property;

(b) that a person who holds an encumbrance over the property has received the notification with copy declaration and plan required by section 5; and

(c) 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.

(4) Nothing in this section shall prevent an owner from incorporating within the declaration a matter or thing, or showing upon the plan the information, respecting the property, the units, or common elements or affecting the owners of the units, if the matter, thing or information is pertinent to the creation or proper use of the units or relates to the mutual interests in the common elements or use of them and does not conflict with this Act.

RSN1970 c57 s5

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Notification to encumbrances

5. (1) Not less than 30 days before the presentation for registration of the declaration and plan, the owner shall notify in writing the holder of an encumbrance over the property of his or her intention to present the declaration and plan for registration and send to the holder at the time of notification a copy of the declaration and plan.

(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 plan by filing in the registry a written notice of objection before registration is effected, the declaration and plan shall not be accepted for registration, and if accepted before the act of registration of the declaration and plan, shall be returned immediately to the owner or person who presented the declaration and plan for registration on his or her behalf.

(3) Upon presentation for registration of a declaration and plan, there shall be filed with the registrar a certified copy of the notification required to be given under subsection (1).

(4) The registrar shall not register a declaration and plan until the expiry of 30 days from the date of the notification required to be given under subsection (1) and not after 60 days from that date.

RSN1970 c57 s6

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Amendment of declaration

6. (1) A declaration may be amended by registering in the registry an amending instrument, with or without the registration of an amended plan or new plan, executed by the owners of every unit in the property, and the amendment shall bear the signature, as consentor, of every holder of an encumbrance over a unit and common element affected by the amendment.

(2) Where the owners of the units in a property are unable to agree to the terms or form of amendment to the declaration or plan, or a holder of an encumbrance over a unit or common element is unwilling to consent to the amendment, an application may be made to a judge of the Trial Division for an order to dispense with the execution of the amending instrument by all the owners of the units or all the holders of encumbrances, and where the judge is satisfied

(a) that the amendment proposed is fair and reasonable, and is not prejudicial to the holder of an encumbrance who is unwilling to consent; and

(b) that not less than 80% of the owners of the units concur with the proposed amendment,

the judge may make an order dispensing with the execution of the amending instrument by those owners of units or holders of encumbrances who do not concur with or consent to its terms.

(3) An order made under subsection (2) shall specify the names of all persons who are required to execute the instrument and all persons whose signatures to the instrument are to be dispensed with.

(4) An instrument amending the declaration may be registered if it is executed by not less than 80% of the owners of the units and does not bear the signature as consentor of every holder of an encumbrance over a unit and common element, if an order made under subsection (2) dispensing with the appropriate executions and signatures is registered in the registry at the same time as application for registration of the amending instrument is made.

(5) Upon registration of the amending instrument and the order of the judge, the amending instrument shall have full effect as if executed and consented to by all the persons required to execute or consent under subsection (1).

RSN1970 c57 s7; 1986 c42 Sch A

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Withdrawal from condominium

7. (1) Property that has been divided into separate units with common elements under this Act may be unified and withdrawn from the provisions of this Act where

(a) there is registered in the registry an instrument of withdrawal executed by all the owners of every unit and by the holder of every encumbrance over a unit and common element in the property; and

(b) there is filed with the instrument of withdrawal a certificate of a member of the law society of the province 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.

(2) Upon the registration of an instrument of withdrawal under subsection (1), this Act shall not apply to the property from the date of registration, and the property shall vest in the owners of the units as tenants in common in the proportions set out in the instrument, and an encumbrance over a unit and the common elements shall attach to the property or a part of it in the manner set out in the instrument.

(3) Subsections 6(2), (3) and (4) shall apply with the necessary changes to an instrument of withdrawal under this section as they apply to an amending instrument under that section.

RSN1970 c57 s8; 1986 c42 Sch A

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Condominiums register

8. (1) The registrar shall keep in the registry a book to be known as "the condominiums register" into which there shall be registered in the manner provided by this section all declarations, plans, amended plans, court orders, by-laws and other documents presented for registration under this Act.

(2) The condominiums register shall contain the time when the instruments referred to in subsection (1) are presented for registration, the situation of the property, the number of units, the name of the corporation, a description of the character of a document, the date of the declaration, amendment to 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 plan in the condominiums register, the registrar shall

(a) open a file that shall be identified by a cross-reference to the appropriate entry in the condominiums register and maintain in the file the declaration and plan and all other documents 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 number of units, the folio number of the appropriate entry in the condominiums register and those other matters that may be prescribed in the regulations.

(4) The Registration of Deeds Act shall apply with the necessary modifications to the condominiums register and to an instrument presented for registration under this Act.

(5) Sections 13 to 21 of the Registration of Deeds Act shall apply only to the declaration and to the instruments referred to in subsection 6(1) and paragraph 7(1)(a).

(6) The obligations imposed by section 25 to 29 inclusive of the Registration of Deeds Act shall not apply where they are at variance with this section.

(7) All instruments referred to in subsection (1) are considered to be included among the deeds and other documents to which reference is made in subsection 7(1) of the Registration of Deeds Act, and may be registered in the condominiums register in accordance with this section and the regulations, and if so registered, nothing contained in section 10 of the Registration of Deeds Act shall make them fraudulent or void for noncompliance with the Registration of Deeds Act.

RSN1970 c57 s9

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Deed of conveyance to be registered

9. (1) Ownership of a unit shall not pass to a person unless there is registered in the registry the deed, conveyance, order or other instrument of conveyance or confirmation of title conveying or confirming the title of ownership to the person.

(2) Where the deed, conveyance, order or other instrument referred to in subsection (1) is presented for registration in the registry, it shall be accompanied by a copy executed or certified by the maker, and upon registration of the deed, conveyance, order or other instrument, the registrar shall maintain the copy in the file opened under subsection 8(3).

RSN1970 c57 s10

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Common elements

10. (1) The owner of a unit in a property shall hold each common element as a tenant in common with the owners of the other units in the property in the proportion which is specified in the declaration as the percentage which the common element is to relate to that unit.

(2) The ownership of a unit with its common elements are inseparable and an instrument or order purporting to separate or divide a unit from its common elements is void.

(3) Subject to a limitation or restriction contained in the declaration, a unit with its common elements may be divided into smaller units with corresponding subdivisions of the common elements pertaining to that unit by the registration of an instrument amending the declaration in the manner provided for in section 6.

RSN1970 c57 s11

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Taxation

11. (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.

RSN1970 c57 s12

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Condominium corporation

12. (1) The registration of a declaration and plan under this Act creates a corporation without share capital the members of which are the owners of the units and the object of which is to manage and maintain the property and the assets of the corporation.

(2) A corporation shall have a name which

(a) is indicative of the location of the property;

(b) shall end with the words "condominium corporation"; and

(c) is approved by the registrar.

(3) The assets of the corporation shall be the common elements and the sums of money and other things that may be held by the corporation with respect to the common elements, and the members of the corporation shall share in the assets and liabilities in the proportion which is specified in the declaration as the percentage which each common element relates to the unit owned by the member.

(4) It shall be the duty of the corporation to maintain, repair and where necessary renew the common elements and for these purposes it shall have power to

(a) effect compliance by the owner of a unit with this Act, the regulations, the declaration and the by-laws; and

(b) make repairs or do a matter or thing which the owner of a unit is obliged to do with respect to the common elements and to recover from the owner as a debt due by him or her all costs incurred by it in effecting the obligation of the owner.

(5) The corporation shall have power to do all matters or things necessary for or incidental to the achievement or carrying out of the objects and duties of the corporation, and, to enter into a unit or part of it to inspect and to carry out the repairs or make the replacements to or within that unit that are, in the opinion of the corporation, necessary to keep the property or common elements in a good state of repair, with power to recover from the owner of the unit as a debt due by him or her the cost of those replacements and repairs in respect of which the obligation to maintain falls upon the owner.

(6) 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, and a judgment against the corporation is also a judgment against the owner of a unit at the time when the action against the corporation was raised for a portion of the judgment debt corresponding to the proportion which is specified in the declaration as the percentage which that common element relates to the unit.

(7) Subject to the terms of the by-laws, the affairs of the corporation shall be administered and managed by its members, with power to appoint factors, agents, solicitors and other persons to help it in the administration and management of the property and the assets.

(8) The Corporations Act, paragraph 20(c) of the Interpretation Act and, where consistent with the by-laws, paragraph 20(b) of the Interpretation Act, shall not apply to a corporation created under this Act.

(9) On the registration of an instrument of withdrawal under subsection 7(1) the corporation shall stop existing, and

(a) money held by the corporation with respect to the common elements shall be used to pay valid claims for the payment of money against the corporation; and

(b) the remaining assets of the corporation, other than the common elements, shall be distributed among its members in the same proportion as the assets of the corporation are held.

RSN1970 c57 s13; 1986 c12 Sch

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By-laws

13. (1) The corporation may, on a resolution of not less than 2/3 of its members or other fraction that is specified in the declaration, 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 any of the 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) respecting mutual insurance coverage on the property, units and common elements and the application of the proceeds of insurance; and

(h) 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 2/3 of the members of the corporation, or other fraction that is specified in the declaration

(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) By-laws made under this section may be amended or revoked by the corporation on a resolution of not less than 2/3 of its members or other fraction that is specified in the declaration, and subsection (2) shall apply to the amendment or revocation of the by-laws as it applies to the by-laws.

RSN1970 c57 s14

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Easements

14. (1) Upon the registration of a declaration and plan 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 dominant tenement to enter and to permit a person acting for and on his or her behalf to enter upon the servient tenement 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) No easement of restrictive covenant in the declaration or by-laws shall defeat or be construed to defeat the covenants contained in subsection (1) or to affect the rights of a person or body entitled by a statute or 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.

RSN1970 c57 s15

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Obligations of unit owners

15. (1) The owner of a unit shall be bound by and shall comply with the terms, conditions, obligations and restrictions imposed on the owner by the declaration and by-laws.

(2) Where the owner of a unit fails to pay the share imposed on him or her by the declaration 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 him or her, the amount unpaid 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 an instrument in a form and in the manner prescribed by the regulations.

(3) On the registration of an encumbrance under subsection (2), it may be enforced by the corporation in the same manner as a mortgage, but only if action to enforce the encumbrance is initiated by the corporation within 30 days of the registration of the encumbrance, and a notice to that effect is filed with the registrar within 7 days after the date of the initiation.

RSN1970 c57 s16; 1974 No109 s3

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Agreement re prior encumbrances

16. (1) Before the registration of a declaration and plan 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, 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.

(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 anything in 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.

RSN1970 c57 s17

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Effect of registration

17. (1) In the absence of the registration of an agreement under section 16, an encumbrance affecting the property before the registration of the declaration 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 subparagraph 4(1)(c)(ii) 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 plan and notwithstanding anything in 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.

RSN1970 c57 s18

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Order re performance of duty

18. (1) Where a duty imposed by this Act, the regulations, the declaration or the by-laws is not performed, the corporation, an owner, or a person having an encumbrance against a unit and the common elements pertaining to that unit may apply to the Trial Division for an order directing the performance of the duty.

(2) The court may by order direct performance of the duty, and may include in the order provisions that the court considers appropriate in the circumstances.

(3) Nothing in this section restricts the remedies otherwise available for failure to perform a duty imposed by this Act.

RSN1970 c57 s19; 1986 c42 Sch A

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Limitation

19. Notwithstanding anything contained in this or another Act, no future encumbrance shall be created or be effective against the property during the period that it remains subdivided into separate units with common elements under this Act.

RSN1970 c57 s20

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Regulations

20. The Lieutenant-Governor in Council may make regulations

(a) classifying properties by size, number of units or use for the purposes of registration in the condominiums register and providing that properties so classified are the only properties to which the Act applies;

(b) respecting the declaration, its form, and for the purposes of paragraph 4(1)(f) specifying the contents of the declaration and matters or things to be included;

(c) prescribing requirements as to the quality, form, substance and layout of the plan, the number of plans to be filed and regulating the matters or things to be included;

(d) governing the condominiums register, the files to be opened by the registrar and the duties of the registrar and members of his or her staff;

(e) respecting the by-laws, their form and content or either form or content including the prescription of fees to be paid on the filing of by-laws;

(f) regulating the fees to be paid on registration of a declaration, instrument or other document presented and accepted for registration under this Act, which power shall include power to prescribe different fees for different documents and different fees for different classifications of property;

(g) for the purposes of section 8, prescribing the matters or things to be included in the condominiums register and in the certificate of registration issued under that section;

(h) prescribing the size and form of some or all documents presented for registration and regulating the manner of registration; and

(i) generally, to give effect to the purpose of this Act.

RSN1970 c57 s21; 1974 No109 s2

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