Despite being reviewed by a number of people during the development phase, sometimes a declaration or description is registered with an error or inconsistency in it. For instance, where two condominiums are mirror images of each other and the documents prepared from the first are used for the second. When the declaration for the second is registered they forget to switch the proportions to account for the reversed layout, which leads to the smallest units paying the largest share and the largest units paying the smallest. Unfortunately, the error is not discovered until after the second condominium is registered and the owners of the largest units (paying the smallest amount) will not consent to an amendment. What can be done?
The consent option is the most common and least costly, but it can be difficult to use to correct errors because of the threshold required, namely the written consent of 80% or 90% of the owners (and sometimes the declarant). It is usually impossible if a group of the owners will lose a benefit (i.e. extra parking spaces) or have a new burden imposed on them (i.e. higher monthly fees). Fortunately, the Condominium Act, 1998 contains two other methods for amending a declaration or description: 1) by court order; or 2) by order of the Director of Land Titles.
If an error or inconsistency is “apparent on the face of the declaration or description”, the amendment may be done by applying to the Director of Land Titles. The process is normally determined by the Director, but it will include notice to the condominium (if the condominium is not the applicant), as well as the owners. If satisfied, the Director will make an order amending the declaration or description. This method is a good choice for clear errors, such as transposed numbers (i.e. 14 instead of 41) or other typing errors (i.e. unit 30, level 30 for a townhouse complex with only 1 level).
If an error or inconsistency is not apparent on the face of the declaration or description, the condominium or an owner may apply to the Superior Court of Justice for an order amending it. The judge must be satisfied that the amendment is “necessary or desirable to correct an error or inconsistency that appears in the declaration or description or that arises out of the carrying out of the intent and purpose of the declaration or description.” The process is governed by the Rules of Civil Procedure, but the Act requires the applicant to give at least 15 days notice of the application to the condominium and the owners.
The court application method is a good choice for the error described in the opening paragraph where the owners of the largest units would not consent because their fees would increase significantly. This method cannot be used to change the proportions simply because an owner is not happy with them; there must be evidence of an error or inconsistency. A court application is usually a last resort because of the costs involved in the process.
Regardless of the method used to amend the declaration or description, it is not effective until it is registered in the Land Registry Office where the condominium is located.
Finally, I should note that an amendment to the description will require the involvement of a surveyor, and possibly the approval of the municipality and the examiner of surveys. The costs of a description amendment are normally much greater than an amendment to a declaration because of the extra people that must be involved. Luckily, amendments to the description are rare. Given the additional layers of complexity involved in a description amendment, it is wise to discuss the process with a lawyer.