Condo Declarations Are Not Carved In Stone

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One of our first posts of the year was on the requirements for making, amending, or repealing by-laws. In response to that post we were asked about the requirements for making, amending, or repealing rules. This lead to our third post of the year. If you haven’t read both posts make sure you go back and read them. Today, we will briefly describe the options for changing a condominium’s declaration or description (sometimes called the “survey” or “plans”).

The Condominium Act, 1998 (the “Act”) describes three methods for amending a declaration and/or description: 1) with consent; 2) with an order of the Director of Titles; and 3) with a court order. It is important to note that the Act allows a condominium to update its address for service or mailing address without amending the declaration. For more information, see section 108 of the Act.

With Consent

The most popular method of amending the declaration and/or description is to do so with the consent of the owners. If the amendment includes a change to the proportions of ownership or contributions to the common expenses, the exclusive use common elements, or maintenance and repair obligations, it requires the consent of the owners of 90% of the units. All other changes require 80% of the units. Ask your lawyer for a definition of “units” for the purposes of a declaration or description amendment.

I should note that this method may also require the consent of the declarant if the declarant has not transferred all of the units (except telecommunications units) and less than three years has elapsed from the later of the registration of the condominium and the date the declarant first entered into an agreement of purchase and sale for a unit.

Once the board of directors are satisfied with the proposed amendment they must call a meeting of owners to present the proposed amendment to the owners. The normal process for calling a meeting is used, including the use of the prescribed forms and the normal timeline. The notice of meeting must include a copy of the proposed amendment. The board must collect the written consent of the owners, but the consent does not need to be collected at the meeting. The amendment must be registered in the land registry office before it becomes effective.

With an Order from the Director of Titles

The Act also permits condominiums to amend the declaration or description without the approval of the owners in certain circumstances. Section 110 of the Act states that a condominium (or another interested person) may apply to the Director of Titles appointed under the Land Titles Act for an order amending the declaration or description to “correct an error or inconsistency that is apparent on the face of the declaration or descriptions, as the case may be.” The amendment is not effective until a certified copy of the order is registered on title to the units.

Our office has seen this process used where there was a minor typo found in the declaration, such as where it referred to the wrong instrument number for a document or it referred to levels that did not exist. The Director of Titles has refused requests where the error or inconsistency appeared to be obvious to us, such as where there was an inconsistency between the unit boundaries in the declaration and those in the description.

With a Court Order

The Act also permits condominiums (or an owner) to seek an order from the Superior Court of Justice to amend the declaration or description without the approval of the owners. Notice of the application must be given to the condominium and every owner and mortgagee whose name appears in the condominium’s records. 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 amendment is not effective until a certified copy of the order is registered on title to the units.

The courts have also ordered declarations and descriptions (and other documents) to be amended in other circumstances. For instance, if the declaration is oppressive, unfairly disregards an owner’s interests, or unfairly prejudices them, it is possible that a court would order the condominium to amend the declaration if an application is brought by the owner under section 135 of the Act (oppression remedy). This is very rare. See an old post for further information: https://ontcondolaw.com/2014/06/06/owner-successfully-applies-to-court-for-amendment-to-declaration/

We previously wrote a single post summarizing the requirements for changing declarations, by-laws and rules. I encourage you to review it if you want a more succinct version of our last three posts. You can find it here: https://ontcondolaw.com/2018/08/29/amending-the-condo-documents/

Upcoming Amendments: January 1, 2021

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On January 1, 2021 further amendments under the Protecting Condominium Owners Act, 2015 will come into force. These amendments relate to the “Condominium Guide” that must be delivered by the declarant to purchasers of new condominiums. It will be provided with the disclosure statement and a purchaser will not be bound by an agreement of purchase and sale until the declarant has provided the Condominium Guide in addition to the other required documents.

The Condominium Authority of Ontario (CAO) has been delegated authority to create the Condominium Guide. It is now available on its website: https://www.condoauthorityontario.ca/resources/condo-buyers-guide/

Update on Previous Post – Fight Fire with Fire: Seeking Court Orders to Amend the Declaration

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Last year we posted about a case where a condominium commenced an application to the Superior Court of Justice for an order amending its declaration. The condominium wanted amendments to its declaration because of a repair and maintenance issue with the fireplaces in the building. A group of owners with fireplaces filed their own application seeking to have the chimney flues deemed part of the common elements, which the condominium was responsible for maintaining and repairing. They also sought an order requiring the condominium to maintain and repair the chimney flues.

To summarize, the court ordered the declaration amended to make the fireplaces exclusive use common elements, but refused to amend the declaration to require the owners to maintain and repair the fireplaces. As a result, the condominium would be responsible for the repair of the fireplaces while the owners and condominium will continue to share the obligation for maintenance of the fireplaces. Our previous post is available here:https://ontcondolaw.com/2019/08/02/fight-fire-with-fire-seeking-court-orders-to-amend-the-declaration/ Continue reading

Reminder: Feedback on Future Amendments to Act Due August 14, 2020

feedback

As you may have heard by now, the Ontario government is looking for feedback on its latest proposals for future amendments to the Condominium Act, 1998. Specifically, it appears that the government is planning to move forward with implementing a “Condo Guide” that would explain, in plain language, basic information for purchasers of new condominiums on such important matters such as the rights and responsibilities of owners, occupiers, and directors. The guide would be prepared by the Condominium Authority of Ontario (CAO) and developers would be required to provide a copy of the Condo Guide to purchasers with other disclosure documents.

Interestingly, the CAO has already developed a Condo Buyer’s Guide, which is available on its website: https://www.condoauthorityontario.ca/resources/condo-buyers-guide.pdf That said, the proposed table of contents suggests that the new Condo Guide will be more comprehensive, including topics such as purchasing a unit (new and resale), moving into a pre-construction condominium, condominium living, troubleshooting, and a glossary of key terms.

The government intends to implement the changes on December 1, 2020. Comments are due by August 14, 2020. Comments can be made on the government website at: https://www.ontariocanada.com/registry/view.do?postingId=33587&language=en

 

Amendments to the Condominium Act, 1998: A Recap of 2017 to 2020

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As you may recall, on November 1, 2017, parts of the Protecting Condominium Owners Act, 2015 (“PCOA”), came into force. The PCOA amended the Condominium Act, 1998, and other legislation to protect owners and provide them with more information about their condominiums. Original estimates suggested that the remaining amendments from the PCOA would be rolled out in phases with the first phase as early as the Spring of 2018 and all amendments within a year or two. This did not happen. Most of the PCOA still has not come into force. Continue reading

Section 109: Court Amendments of the Declaration & Description

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I appreciate that many of you might be feeling overwhelmed by all of the posts about COVID-19 lately. It is all we hear about and it is hard not to feel anxious about it sometimes. Today, we go back to normal. This post is about a recent court decision.

A recent case discusses when the court will order an amendment to the declaration or description under section 109 of the Condominium Act, 1998.  According to section 109 of the Act a condominium or an owner may make an application to the Superior Court of Justice for an order amending a declaration or description. The court may make an order where:

Grounds for order

(3) The court may make an order to amend the declaration or description if 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. 1998, c. 19, s. 109 (3).

Continue reading

Is Phase Two of the Amendments on Its Way?

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Unless you are new to condo living, you likely know that the Condominium Act, 1998 was amended in 2017. At the time, many believed that the rest of the amendments would be phased in over the following 18 to 24 months. It has been two years and very few of the remaining amendments have come into force. [Note: if you review the Act you will see large portions of it in grey indicating that it has not yet come into force]. Continue reading

Fight Fire with Fire: Seeking Court Orders to Amend the Declaration

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A condominium corporation recently brought an application to the court for an order amending its declaration. The application was brought under section 109 of the Condominium Act, 1998, which allows the court to amend the declaration for a condominium where it is “necessary or desirable to correct an error or inconsistency that appears in the declaration….or that arises out of the carrying out of the intent and purpose of the declaration.” The case is most interesting because of the alleged errors or inconsistencies. The case is available on CanLii for those interested in reading it in its entirety.  Continue reading

Condo Chat: What do you want to see for future amendments?

stencil.default (3)Today I thought I would write about something a little different – it’s my wish list for the next round of amendments and changes to the regulations. Here they are in no specific order:

  1. Amalgamation for condominiums that are not standard. The amendments to the Act that have come into force make me believe this might be on the horizon, but the regulations still require the condominiums to be standard ones.  I understand the rationale for not combining different types of condominiums, but why restrict the ability only to standard condominiums? Six common elements condominiums should be able to amalgamate without much difficulty.
  2. Public database for managers. Many professional organizations, like the Law Society of Ontario, have a public database that people can search for  information on the licensees. It would be nice if the CMRAO had the same for managers. This would make it easier for people to search for information, such as their licences, about their managers without calling the CMRAO.
  3. Director training in formats other than online. This one is already possible as the authority has been delegated to the CAO. There are condominiums losing knowledgeable and experienced directors because they do not want to (or cannot) complete the training online. Why not allow a organization like CCI to offer training? The CAO could require accreditation of all programs just like the Law Society of Ontario does for the program to count toward our a lawyer’s continuing education requirement. ACMO still plays a role for managers. CCI has been a pivotal organization in educating directors for decades across the country. Why not allow them to continue to do what they do?
  4. More time to call a requisition meeting. The amendments to the Act make it very difficult for a condominium that receives a requisition to hold the meeting within the 35 day period required by the Act. While there is a provision that allows the condominium to send the preliminary notice out to owners 15 days before the notice of meeting, instead of 20 days, this still isn’t enough time in many cases. Currently, the Board only has a few days to review the requisition with its lawyer, find a location for the meeting, confirm the availability of everyone who needs to be there, and have the manager to prepare and distribute the preliminary notice to all of the owners. This is a transitional period issue as the timeline will change once further amendments are in place, but the transition period is taking much longer than expected so it would be nice if this amendment was prioritized for the next round.

These are just a few of the issues I’d like to see prioritized for the next round of amendments. Only time will tell when the next phase of amendments will come into force as there has been no press release from the new government with respect to its plans for the condominium industry. I’d love to hear from you. What do you want to see in the next round?