Amendments
Short Answer
The Condominium Act, 1998, (the "Act") sets out only six different processes by which the declaration and/or description of an existing condominium corporation may be amended. The declaration and description cannot be amended in any other ways.
Definition
The declaration is sometimes described as the 'constitution' of the condominium community. The description sets out the boundaries between units and common elements, defines exclusive use areas and indicates other rights and interests in or appurtenant to the condominium property. Accordingly, amending a declaration or a description will generally have a significant impact on fundamental facts, principles and/or priorities of the condominium corporation in question. It is the only way that such things as unit boundaries, allocations of maintenance and repair obligations, definition of exclusive use common elements, and obligations for common expense payments, can be altered. Therefore, the Act sets out high standards for making such amendments.
The six ways that the Act allows for amendments to declarations and descriptions are the following:
No amendments can be made to the declaration or description by any mechanisms other than those set out in the Act; no by-law, rule or resolution of a condominium corporation can be contrary to the provisions of the decelaration or overrule the unit boundaries, rights and interests that are illustrated in the description.
Some years ago, Clifton Kok LLP published an About Condo memo dealing with the four basic types of amendment (leaving out amalgamation and amendments made by a declarant to create new phases in a phased condominium). This memo provides a more detailed explanation than would be appropriate for Condopædia and can be accessed here. You can also visit the Condopædia pages dealing with Amalgamation and Phased Condominiums to better understand those processes.
The six ways that the Act allows for amendments to declarations and descriptions are the following:
- by a declarant, to create a new phase of a Phased Condominium; (per Part XI of the Act)
- by the Director of Land Titles to correct an error or inconsistency that is apparent on the face of the document; (per s.110 of the Act)
- by the Ontario Superior Court of Justice to make changes the court is satisfied is necessary or desirable to correct an error or inconsistency that appears in the document or arises out of the carrying out of its intent and purpose; (per s.109 of the Act)
- by the Board of Directors of a condominium corporation, to correct the mailing address and/or address for service of the corporation; (per s.108 of the Act)
- by the corporation (i.e., the unit owners), to make whatever changes the owners of at least 80% or 90% of the units (the applicable percentage depends on the amendment being proposed) agree should be made; (per s.107 of the Act) and
- by default through the process of amalgamation (although certain changes, such as to unit boundaries, are not permitted to be made through the amalgamation process). (See Part VII of the Act and Part V of Ont.Reg. 48/01.)
No amendments can be made to the declaration or description by any mechanisms other than those set out in the Act; no by-law, rule or resolution of a condominium corporation can be contrary to the provisions of the decelaration or overrule the unit boundaries, rights and interests that are illustrated in the description.
Some years ago, Clifton Kok LLP published an About Condo memo dealing with the four basic types of amendment (leaving out amalgamation and amendments made by a declarant to create new phases in a phased condominium). This memo provides a more detailed explanation than would be appropriate for Condopædia and can be accessed here. You can also visit the Condopædia pages dealing with Amalgamation and Phased Condominiums to better understand those processes.
What you need to know…
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…as a Unit Owner
Many of the fundamental rights and obligations of condominium ownership are set out in the declaration, and the accurate definition of the property you own or to which you have rights of exclusive use can only be known by reference to the description. It is not a light thing to propose changes to these documents and it behooves every unit owner to take any such proposal very seriously. It should be noted that since the percentages of owners required to approve such amendments is less than 100%, and since some changes can be made by the court and therefore do not technically require any percentage of owner support, your fundamental rights, including the definition of the property you now own, can be changed without your consent. If amendments are proposed which appear to have this kind of effect, you should consult legal counsel immediately. |
…as a Board Member
Some boards of some condominium corporations seem to believe they have the right to change or disregard what is in the declaration by simple resolution, or by passing a by-law or enacting a rule. No such right, authority or power exists. Boards proposing anything that does or appears to contradict the declaration should take no steps before consulting with legal counsel and determining the correct procedure required to accomplish what is wanted. |
…as a Declarant
Declarants are in the same positions as unit owners and boards of directors and must not presume they can disregard the declarations they themselves have put into place. It should be noted that no changes can be made to the declaration or description under section 107 of the Act within the first three years since their registration without the declarant's approval if, at the time, the declarant still owns any units (other than units that are designed and designated to control, facilitate or provide telecommunications to, from or within the property). |