I am occasionally asked by directors if a condominium can change the declaration, by-laws and rules (“documents”) that govern their condominium. Others know they can change their documents, but do not understand the proper procedure. This article is intended to provide a quick reference guide for those seeking to create new documents, or amend or repeal existing documents.
Amending a Declaration or Description
Content: Sections 7 and 8 of the Condominium Act, 1998 (the “Act”) contain lists of mandatory and permitted content for a declaration or description. A declaration must include, amongst other things, a description of any exclusive-use common elements, and the proportions of ownership interests and contributions toward the common expenses. In addition, most declarations include conditions and restrictions on the use of the units and common elements, such as those relating to single-family use, pets, and parking. They may also modify the default maintenance and repair obligations set out in the Act.
Difficulty: High – only undertake if necessary or the approval of the owners is likely.
Process: Most amendments will follow the process set out in s.107 of the Act:
- The board approves of the amendment by resolution.
- If applicable, the declarant consents in writing.
- A notice of meeting and a copy of the proposed amendment are sent to the owners and mortgagees that have provided their names and addresses for service.
- An owners’ meeting is held.
- The owners, as they were at the time the board approved of the amendment, must consent in writing to the proposed amendment (not via a proxy). There is no requirement for the consents to be received at the meeting.
- The amendment is only effective once it is registered on title.
Ninety per cent (90%) of the owners in the condominium are required to consent to changes to: exclusive-use common elements, maintenance or repair obligations, the proportions of ownership interests, or the proportions of contributions toward the common expenses. All other changes require the consent of eighty per cent (80%) of the owners in the condominium.
There are two other procedures for amending a declaration or description in the Act. Section 110 authorizes an application to the Director of Titles where a declaration or description contains an error or inconsistency that is apparent on its face. Section 109 is broader, permitting an application to the Superior Court of Justice where an error or inconsistency appears in a declaration or description or arises in carrying out its intent and purpose.
It should be noted that some amendments to the declaration or description, such as a change in the unit boundaries or the number of units within the condominium, will require the involvement of a land surveyor and possibly the local approval authority.
To view the entire article please click the pdf link below.