Declaration
Also see: Amendments
Short Answer
The key governing document
of an Ontario condominium corporation; sometimes called its
"constitution". Registration of a declaration (along with the description)
brings the condominium corporation into existence and establishes many of its
most fundamental characteristics.
Definition
The declaration is (with the description) one of the two constitutional documents of the condominium corporation.
To create a condominium under the Condominium Act, 1998 (the “Act”), the owner of the freehold or leasehold interest in the land on which the condominium is to exist must register a declaration and a description against title to that land at the applicable Land Registry Office. Once registered, the condominium plan and condominium corporation come into legal existence, causing the land to be governed by the Act and allowing units to then be sold and mortgaged as individual pieces of property.
The Declaration sets out key information about such matters as a legal description of the overall property, the extent of unit ownership (unit boundaries and common interests), identification of exclusive use common element areas (if any) appurtenant to each unit, responsibilities for maintenance and repair of the units and common elements, the obligations of each unit owner to contribute to the common expenses, and so forth. Certain of this information is required by the Act to be included in the declaration. Other information is able to be included in the declaration at the discretion of the declarant at the time the declaration is first made or the board and owners of the condominium corporation itself if after registration amendments are duly enacted. See the Condopædia article on "Amendments" for information about amending the declaration after registration.
It has been noted that of all condominium governing documents only the declaration is not required to be reasonable. While it is not permitted to include provisions that are effectively contrary to human rights legislation applicable in Ontario, and would also not be permitted to include effectively criminal provisions, in other respects the provisions of a declaration are not held to a standard of reasonableness in order to be considered enforceable at law.
To create a condominium under the Condominium Act, 1998 (the “Act”), the owner of the freehold or leasehold interest in the land on which the condominium is to exist must register a declaration and a description against title to that land at the applicable Land Registry Office. Once registered, the condominium plan and condominium corporation come into legal existence, causing the land to be governed by the Act and allowing units to then be sold and mortgaged as individual pieces of property.
The Declaration sets out key information about such matters as a legal description of the overall property, the extent of unit ownership (unit boundaries and common interests), identification of exclusive use common element areas (if any) appurtenant to each unit, responsibilities for maintenance and repair of the units and common elements, the obligations of each unit owner to contribute to the common expenses, and so forth. Certain of this information is required by the Act to be included in the declaration. Other information is able to be included in the declaration at the discretion of the declarant at the time the declaration is first made or the board and owners of the condominium corporation itself if after registration amendments are duly enacted. See the Condopædia article on "Amendments" for information about amending the declaration after registration.
It has been noted that of all condominium governing documents only the declaration is not required to be reasonable. While it is not permitted to include provisions that are effectively contrary to human rights legislation applicable in Ontario, and would also not be permitted to include effectively criminal provisions, in other respects the provisions of a declaration are not held to a standard of reasonableness in order to be considered enforceable at law.
Amongst other things, the Protecting Condominium Owners Act, 2015, proposes that the government can, by regulation, set out required contents and/or format for a declaration and may even include specific provisions a declaration must include. This Act is not yet in force. This article may be updated as the new legislation and its regulations are completed and brought into force.
What you need to know…
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…as a Unit Owner
Owners are bound by and must rely on the declaration. It is also the unit owner’s duty to take all reasonable steps to ensure all occupants of the owner’s unit (including invitees and employees as well as the owner's tenants and/or household members) comply with the declaration. Since the law presumes the validity of a declaration, challenging its terms can be difficult and generally requires owners to gather evidence that demonstrates contravention of superior laws, such as inconsistency with the Condominium Act, 1998 or the Ontario Human Rights Code; however, owners should note that any ambiguity in the terms of the declaration will not necessarily be interpreted against the declarant or the condominium corporation. |
…as a Board Member
There are many provisions in the declaration of the condominium that are essential to the effective operation of the condominium in accordance with the Act. It is a fundamental responsibility of the board of directors and property manager to learn and ensure they understand the provisions of the declaration and their application. They should not hesitate to seek the assistance of legal counsel, surveyors or engineers to help ensure they have a correct understanding of its provisions. The board is under the same obligation as unit owners (even if the directors are not unit owners) to comply with the declaration. The board also bears the responsibility to carry out the corporation's duty to take all reasonable steps to ensure that unit owners and occupants and all agents and employees of the corporation comply with the declaration. |
…as a Manager
A typical clause in a condominium management agreement is a requirement that the property manager take steps on behalf of the corporation to ensure compliance with the provisions of a declaration by the unit owners and occupants. As employees or agents of the condominium corporation, the manager is also required to comply with the declaration. Managers should not assume that one condominium’s declaration is the same as any other's and should pay careful attention to the differences. A failure to correctly understand the provisions of the declaration can significantly undermine effective property management and even could result in breaches of the manager's obligations under its contract with the corporation. |
…as a Declarant
Declarants are responsible for the initial creation of the declaration. The important of contributions by lawyers and surveyors in particular to this document cannot be understated and, given the importance of this document to the effective and legal operation of the condominium, any declarant should ensure that the professionals it hires for this purpose have demonstrated competence in this area of condominium law practice. It is not responsible or competent legal practice to simply copy provisions from a declaration of an existing condominium corporation. Attention must be turned to the features of the specific condominium being created and the nature of the community that the declarant desires to make. Although typically a declaration includes provisions which are specifically exempted from application in regard to the declarant, the default rule is that the declaration applies to the declarant to the same extent as to every other person or entity associated with the condominium corporation. |