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The Condominium Amendment Act (Phased Condominium Development)

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S.M. 2010, c. 32

Bill 35, 4th Session, 39th Legislature

The Condominium Amendment Act (Phased Condominium Development)

(Assented to June 17, 2010)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. C170 amended

1           The Condominium Act is amended by this Act.

2           Section 1 is amended by adding the following definitions:

"due date", in relation to the completion of a phase, means

(a) the date specified in the declaration as the date by which the phase is to be completed,

(b) if the declaration does not specify a date by which the phase is to be completed, the sixth anniversary date of the registration date of the declaration, or

(c) the date to which the due date for completing the phase has been extended by an amendment registered under section 5.13; (« date d'achèvement »)

"existing unit" of a phased development means a unit, other than a phasing unit, that has been created by the registration of a declaration or a phasing amendment; (« partie privative existante »)

"owner-developer" means the owner of a phasing unit; (« propriétaire-promoteur »)

"phase" means the development and creation of units or common elements, or both, that are created by the registration of

(a) a declaration and plan for a phased development, or

(b) an amendment to a declaration to convert a unit into additional units or common elements, or both; (« phase »)

"phased development" means a property being developed, or to be developed, in a manner that involves the development and creation of units and common elements in two or more phases; (« aménagement par phases »)

"phasing amendment" means an amendment to a declaration that, upon registration of the amendment,

(a) implements a proposed phase by converting a phasing unit into additional units or common elements, or both,

(b) creates a proposed phase,

(c) amends the description of a proposed phase described in the declaration, or

(d) removes a proposed phase from the declaration; (« modification d'aménagement par phases »)

"phasing unit" means a unit described in a declaration, or in an amendment or proposed amendment to a declaration, as a unit to be converted into additional units or common elements, or both; (« partie divisible »)

"proposed phase" means a phase, other than the initial phase to be implemented by the registration of a declaration, that

(a) is proposed in a declaration, or in an amendment or proposed amendment to a declaration, and

(b) has not yet been implemented by the registration of an amendment to the declaration; (« phase projetée »)

3           The following is added after subsection 4(3):

Notice on title about phased development

4(4)        If the declaration is for a phased development, the district registrar must make an entry on

(a) the title in the name of the corporation; and

(b) the title for each unit created by the registration of the declaration or an amendment to the declaration, other than the amendment implementing the last phase;

giving notice that the property is a phased development.

Notice to be removed

4(5)        If, upon the registration of an amendment to a declaration for a phased development, there are no more proposed phases,

(a) the property ceases to be a phased development; and

(b) the district registrar must remove the entries made under subsection (4) in relation to that development.

4(1)        The following is added after subsection 5(3):

Additional contents in declaration for phased development

5(3.1)      A declaration for a phased development must comply with subsection (1) in relation to the initial phase, and must include the following:

(a) a statement that the declaration is for a phased development;

(b) a description of each proposed phase of the development;

(c) a statement that each proposed phase may be implemented as described in the declaration without the consent of the owner or mortgagee of any unit;

(d) the approximate number of units that the property will comprise when each of the proposed phases has been implemented by the registration of an amendment to the declaration;

(e) the following information for each proposed phase:

(i) the number of buildings to be included in that phase and, for each building, its approximate dimensions, number of storeys and approximate number of proposed units,

(ii) the approximate location of the buildings and structures,

(iii) the approximate total number of units to be created in that phase,

(iv) the types and approximate sizes of the proposed units, the approximate number of units of each size and type, their proposed uses, and any restrictions or qualifications that will apply to them,

(v) a description of any common elements to be created in that phase, their proposed uses, and any restrictions or qualifications that will apply to them,

(vi) a description of how the shares in the common interests, the contributions to common expenses and the voting rights in the corporation are to be allocated to the units to be created in that phase, expressed in percentages allocated to each unit,

(vii) if the declaration for the initial phase provides for contributions to the reserve fund, a description of how the contributions to the reserve fund are to be allocated to the units to be created in that phase, expressed in percentages allocated to each unit,

(viii) a specification of any parts of the proposed common elements that are to be used by the owners of one or more designated units or proposed units and not by all the owners,

(ix) a description of the conceptual design of the entire development identifying the approximate location, size and number of the units and common elements when the phase is completed and their general style;

(f) any additional information required by the regulations.

The declaration may also specify a percentage greater than 80% for the purpose of subsection 5.1(2).

Transitional — phasing amendment for existing phased development

5(3.2)      If a declaration for a phased development that was registered before the day that subsection (3.1) came into force does not meet the requirements of that subsection, the following rules apply:

1. The declaration must be amended as necessary to meet the requirements of subsection (3.1) before any proposed phase described or referred to in the declaration is implemented.

2. Subsections 5.1(2) and 5.6(3) do not apply to the registration of the phasing amendment required by this subsection if

(a) the phasing amendment is registered within one year after this subsection comes into force; and

(b) the notice under subsection 5.4(1) of the proposed phasing amendment

(i) describes the material differences, if any, between the phase described in the amendment and the phase as described in the declaration and the marketing materials used to sell the existing units, and

(ii) describes the recipient's right to apply to the court for an order under section 5.7 within 30 days after receiving the notice.

3. The phasing amendment required by this subsection must not be accepted for registration unless it is accompanied by

(a) a statutory declaration of the owner-developer or the corporation stating each person to be given information under subsection 5.4(1) and this subsection was given that information;

and either

(b) a statutory declaration of the owner-developer or the corporation stating no person entitled to the information applied to the court, within 30 days after receiving the information, for an order under section 5.7; or

(c) a certified copy of an order of the court

(i) confirming that there is no material difference between the phase described in the amendment and the phase as described in the declaration and in the marketing materials, or

(ii) confirming that there is a material difference and permitting the amendment to be registered as proposed, or with changes as specified in the order or subject to conditions as specified in the order,

and, if the order permitting the amendment to be registered is made subject to conditions, evidence sufficient to satisfy the district registrar that the conditions have been satisfied.

4. If an application is made to the court under section 5.7 in respect of the proposed phasing amendment, any references in that section to the description of the phase in the declaration shall be read as references to the phase as described in the declaration and in the marketing materials used to sell the existing units.

5. Until the phasing amendment required by this subsection is registered,

(a) subsection 4(4) does not apply to the declaration; and

(b) for the purposes of this Act, other than this subsection and the registration of the phasing amendment,

(i) the property that is the subject of the declaration is deemed not to be a phased development, and

(ii) each proposed phase described or referred to in the declaration is deemed not to be a proposed phase.

4(2)        Subsection 5(4) is amended by adding "or subclause (3.1)(e)(iv) or (v)" after "or (d)".

5           The following is added after section 5:

Other consent requirements do not apply to phasing amendments

5.1(1)      Subsections 5(6) and (7) do not apply to the registration of a phasing amendment and subsections 6(3) and (4) do not apply to the registration of a plan amendment that is required for the registration of a phasing amendment.

Consent of existing owners to phasing amendment

5.1(2)      Subject to subsections (3) and (4), a phasing amendment — and any plan amendment required for a phasing amendment — may be registered only with the written consent of

(a) in the case of a corporation for which a new board of directors has been elected under subsection 11(4), owners of the existing units who hold at least 80% — or the percentage specified in the declaration, if a percentage greater than 80% is specified — of the voting rights in the corporation; or

(b) in the case of a corporation for which a new board of directors has not yet been elected under subsection 11(4), owners of the existing units who hold 80% — or the percentage specified in the declaration, if a percentage greater than 80% is specified — of the voting rights in the corporation, other than the voting rights held by the owner-developer.

Consent not required — phase implemented as described in declaration

5.1(3)      If the phase to be implemented by a phasing amendment is not materially different from the description of it in the declaration, the amendment — and any plan amendment required for the phasing amendment — may be registered without the consent of the owners of the existing units.

Consent not required — registration with court approval

5.1(4)      A phasing amendment — and any plan amendment required for the phasing amendment — may be registered without the required consent of the owners of the existing units if the court has made an order permitting or requiring it to be registered.

Owner's consent may be provided or negated by mortgagee

5.1(5)      For the purpose of this section, if the consent of the owner of an existing unit is required for the registration of a phasing amendment, the consent may be provided by the owner or by the mortgagee of that unit if the mortgagee has given notice to the corporation that it holds an assignment of the owner's voting rights in the corporation and has complied with subsection 15(2). But if either of them gives written notice to the person seeking the consent that the consent is being refused, the consent of the owner is deemed to have been refused.

Consent on owner's behalf void if given by owner-developer

5.1(6)      For the purpose of this section, the consent of an owner of an existing unit cannot be given on the owner's behalf by the owner-developer, an employee or agent of the owner-developer or a person who is not dealing with the owner-developer at arm's length.  Any consent so given is void.

Additional consent required for amendment to create new phase

5.1(7)      If the phasing amendment creates a proposed phase by identifying an existing unit as a phasing unit to be converted into additional units or common elements, or both, upon the registration of a future amendment, the amendment must not be registered without the consent of each holder of a lease, memorandum of lease, mortgage or prescribed instrument that is registered against the title to that existing unit.

Interpretation — implementation or completion of phase

5.1(8)      For the purposes of this section and sections 1 and 5.2 to 5.13,

(a) a proposed phase is implemented when the amendment to create the units or common elements to be created in that phase is registered; and

(b) a phase is completed when it has been implemented and the units and common elements created in that phase are completed and available for use by the owners entitled to use them.

Deemed not to be material difference

5.1(9)      For the purposes of this section and sections 5.2 to 5.13, a difference between a phase as described in a proposed amendment to a declaration and the description of that phase in the declaration is deemed not to be material if

(a) the difference results from making the minimum changes necessary for the phase to be implemented in accordance with changes to the zoning and any other legal requirements that occurred after the registration of the declaration and that will apply at the time of registration of the amendment; and

(b) the changes in the zoning or other legal requirements that necessitated the minimum changes necessary for the phase to be so implemented were not initiated by, or made in response to anything done by, the owner-developer.

Content of amendment — implementing a phase

5.2(1)      A phasing amendment that implements a phase must contain all the information about the units or common elements to be created by the registration of the amendment that would be required in a declaration if those units or common elements were created by the registration of a declaration.

Content of amendment — creating a proposed phase

5.2(2)      A phasing amendment that creates a proposed phase must contain all the information about that phase that would be required in a declaration if the proposed phase were described in that declaration.

Restriction — no change to shares in common interests without consent

5.3         A phasing amendment must not be registered if it purports to change the percentage share in the common interests that was previously allocated to an existing unit, unless the owner of that unit consents in writing to the change.

Notice of proposed phasing amendment

5.4(1)      Before a phasing amendment is submitted to the district registrar for registration, the owner-developer must

(a) prepare a notice, in a form acceptable to the district registrar for registration, that

(i) identifies the purpose of the phasing amendment, and

(ii) in the case of an amendment to implement a phase identified in the declaration, describes the differences, if any, between the phase described in the amendment and the description of that phase in the declaration;

(b) submit the notice to the district registrar for registration, accompanied by a copy of

(i) the proposed amendment, and

(ii) any amendments to the plan that will be necessitated by the amendment to the declaration; and

(c) give the corporation, each owner of an existing unit, and each mortgagee who has a mortgage registered against the title to an existing unit and has complied with subsection 15(2),

(i) a copy of the notice,

(ii) a copy of the proposed amendments to the declaration and a description of the proposed amendments to the plan, and

(iii) if the notice describes any differences referred to in subclause (a)(ii), a description of the recipient's right to apply to the court for an order under section 5.7 within 30 days after receiving the notice.

Corporation may give notice

5.4(2)      If the owner-developer fails or refuses to prepare, submit or give a notice as required by subsection (1) after being requested in writing by the corporation to do so, the corporation may prepare, submit, or give the notice on the owner-developer's behalf.

District registrar to register notice on title

5.4(3)      If the notice submitted to the district registrar is acceptable for registration, the district registrar must make an entry on

(a) the title for the affected property in the name of the corporation; and

(b) the title for each unit forming part of the affected property;

giving notice of the proposed amendment.

Corporation's response to proposed amendment

5.5(1)      When the owner-developer requests the corporation to submit for registration an amendment to implement a proposed phase, the corporation must do one of the following:

(a) if the corporation is satisfied that

(i) there are no material differences between the phase as described in the amendment and the phase as described in the declaration, and

(ii) no owner has applied to the court for an order under section 5.7 in relation to the amendment,

the corporation must promptly submit the amendment to the district registrar for registration, together with the other documents that are required for registration;

(b) if the corporation considers the phase described in the amendment to be materially different from the phase as described in the declaration, the corporation may

(i) request the owner-developer to revise the proposed amendment to eliminate or minimize the difference, or

(ii) require the owner-developer to seek the approval of the court or the consent of the owners of the existing units as required under clause 5.1(2)(a) or (b), as the case may be, to the registration of the amendment.

Corporation must act reasonably

5.5(2)      For greater certainty, a corporation must act reasonably in determining whether it is satisfied as described in clause (1)(a) and whether it considers the phase described in the amendment to be materially different from the phase as described in the declaration.

Overview

5.6(1)      There are different registration requirements depending on whether the phasing amendment

(a) implements a proposed phase and whether or not the phase is materially different (subsection (2));

(b) amends a proposed phase (subsection (3)); or

(c) creates a new phase (subsection (2) or (3) and subsection (4)).

Registration requirements — implementation of proposed phase

5.6(2)      The district registrar must not accept for registration a phasing amendment to implement a proposed phase unless it is accompanied by any amendment to the plan necessitated by the amendment to the declaration and the following:

Phase not materially different — no court application

(a) a statutory declaration by the owner-developer or the corporation stating that

(i) the phase to be implemented by the amendment is not materially different from the description of it in the declaration,

(ii) each person to be given information under clause 5.4(1)(c) was given that information, and

(iii) no person entitled to information under clause 5.4(1)(c) applied to the court, within 30 days after receiving the information, for an order under section 5.7;

Phase not materially different — confirmed by court

(b) a statutory declaration by the owner-developer or the corporation stating that

(i) the phase to be implemented by the amendment is not materially different from the description of it in the declaration, and

(ii) each person to be given information under clause 5.4(1)(c) was given that information,

together with a certified copy of an order of the court confirming that the phase to be implemented is not materially different from the description of it in the declaration;

Phase new or materially different — registration with consent or court order

(c) a statutory declaration by the owner-developer or the corporation stating that

(i) the phase to be implemented is a new phase or is materially different from the description of it in the declaration, and

(ii) each person to be given information under clause 5.4(1)(c) was given that information,

together with either

(iii) a statutory declaration by the owner-developer or the corporation stating that, after receiving the information given under clause 5.4(1)(c), the required number of owners of the existing units referred to in clause 5.1(2)(a) or (b), as the case may be, gave their written consent to the registration of the amendment, or

(iv) a certified copy of an order of the court permitting or requiring the amendment to be registered as permitted by section 5.7.

Registration requirements — amendment to create or amend proposed phase

5.6(3)      The district registrar must not accept for registration a phasing amendment to create a proposed phase or amend the description of a proposed phase unless it is accompanied by

(a) a statutory declaration of the owner-developer or the corporation stating that, after being given a copy of the proposed amendment, the required number of owners of the existing units referred to in clause 5.1(2)(a) or (b), as the case may be, have consented in writing to the registration of it; or

(b) a certified copy of an order of the court permitting or requiring the amendment to be registered.

Additional requirement — amendment to create new phase

5.6(4)      In the case of an amendment described in subsection 5.1(7) (amendment to create new phase), the district registrar must not accept it for registration unless the amendment is accompanied by

(a) the documents required by

(i) subsection (2), if the amendment also implements the new phase, or

(ii) subsection (3), if the amendment creates the phase as a proposed phase; and

(b) a statutory declaration of the owner-developer or the corporation stating that the consents required by subsection 5.1(7) have been given.

Application to court

5.7(1)      After information about a proposed amendment has been given as required by clause 5.4(1)(c), the owner-developer or any person entitled to receive that information may apply to the court for an order under this section.

Time for making application

5.7(2)      If the applicant is a person referred to in clause 5.4(1)(c), the application must be made within 30 days after receiving the information to be given under that clause.

Notice of application

5.7(3)      The applicant must give written notice of the application to each other person who is entitled to make an application under this section.

Court order

5.7(4)      The court hearing the application may make one or more of the following orders:

(a) an order confirming that there is no material difference between the phase described in the proposed amendment and the phase as described in the declaration;

(b) an order confirming that there is a material difference between the phase described in the proposed amendment and the phase as described in the declaration, and either

(i) permitting or requiring the amendment to be registered as proposed, or with changes as specified in the order, or

(ii) prohibiting the registration of the amendment without the consent of the required number of owners of the existing units referred to in clause 5.1(2)(a) or (b), as the case may be;

(b.1) if the phasing amendment creates a proposed phase, an order permitting or requiring the amendment to be registered as proposed, or with changes as specified in the order;

(c) an order requiring the phase to be implemented as described in the declaration;

(d) an order requiring the owner-developer to complete any work necessary for the use and enjoyment of the units or common elements to be created on the registration of the amendment;

(e) an order requiring the owner-developer to pay damages to the corporation or to one or more owners of existing units, or both, for any detrimental effect to the corporation or to the use or enjoyment of the property by unit owners resulting from a material difference between the phase to be implemented and the description of that phase in the declaration;

(f) an order vesting title for any unit owned by the owner-developer in the phased development in the name of the corporation;

(g) any other order the court considers appropriate.

Effect of registration — implementation of phase

5.8         Upon the registration of an amendment to implement a phase,

(a) the declaration and plan for the phased-development property are amended in accordance with the amendment;

(b) the phasing unit that is the subject of the amendment is converted into additional units or common elements, or both, in accordance with the amendment;

(c) any common elements created by the registration and the common elements previously created are consolidated and become the common elements;

(d) interests in the consolidated common elements are vested in

(i) the owners of the existing units and the owners of any other phasing units, such that

(A) the percentage shares held by them in the common interests after the registration are the same as the percentage shares held by them in the common interests that were created before the registration, or

(B) if an owner of an existing unit has consented as permitted by section 5.3 to a change in his or her percentage share in the common interests, the percentage share held by him or her after the registration is as set out in the amendment,

(ii) the owners of the new units created by the registration according to the percentage shares in the common interests set out in the amendment;

(e) the undivided interest of each owner in the consolidated common elements is subject to any subsisting registered instrument to which his or her interest in the common elements was subject before the registration, despite subsections 8(6) and (7);

(f) any registered instrument that, before the registration, affected the phasing unit

(i) continues to affect each new unit created by the registration and any appurtenant common elements, and

(ii) in the case of a lease, memorandum of lease, mortgage or other prescribed instrument, is discharged from — and ceases to apply to — any interest in the common elements that, under clause (d), vests in the owner of an existing unit or the owner of any other phasing unit, unless the instrument affected that owner's interest before the registration; and

(g) if an owner has consented as permitted by section 5.3 to a change in his or her percentage share in the common interests, any registered instrument that, before registration, affected the unit

(i) continues to affect the unit and the appurtenant common elements, including any additional appurtenant common elements, if the percentage share increases, and

(ii) is discharged from — and ceases to apply to — any interest in the common elements that, under paragraph (d)(i)(B), is no longer vested in the owner, if the percentage share decreases.

Removal of notice on title after registration

5.9         After registering a phasing amendment, the district registrar must remove the entries made under subsection 5.4(3) in respect of that amendment.

Notice of amendment to cancel proposed phase or extend time for completion

5.10(1)     If a proposed phase will not be completed by the relevant due date, the owner-developer responsible for completing the phase must, at least 30 days before that due date,

(a) prepare a notice, in a form acceptable to the district registrar for registration, that

(i) identifies the proposed phase and the due date for its completion,

(ii) states that the proposed phase will not be completed by the due date, and

(iii) states that the owner-developer will be seeking the consent of the owners of the existing units as required by clause 5.1(2)(a) or (b), as the case may be, or of the court, to register

(A) an amendment to the declaration and plan to cancel the proposed phase, or

(B) an amendment to the declaration that extends the due date for the completion of the proposed phase;

(b) submit the notice to the district registrar for registration, accompanied by a copy of the proposed amendment; and

(c) give to the corporation, each owner of an existing unit, and each mortgagee who has a mortgage registered against the title to an existing unit and has complied with subsection 15(2),

(i) a copy of the notice, and

(ii) a copy of the proposed amendment.

District registrar to register notice on title

5.10(2)     If the notice submitted to the district registrar is acceptable for registration, the district registrar must make an entry on

(a) the title for the affected property in the name of the corporation; and

(b) the title for each unit forming part of the affected property;

giving notice of the proposed amendment.

Application to court

5.11(1)     If

(a) notice of a proposed amendment about a proposed phase is given under section 5.10;

(b) at least 30 days have elapsed since the due date for completion of the phase; and

(c) the consents required by clause 5.1(2)(a) or (b), as the case may be, have not been obtained;

the owner-developer must apply to the court for an order permitting it to be registered.

Notice of application

5.11(2)     The owner-developer must give written notice of the application under subsection (1) to each person entitled to notice under clause 5.10(1)(c).

Application by others

5.11(3)     Any person entitled to notice under clause 5.10(1)(c) may, within 30 days after receiving the notice, apply to the court for an order under this section.  The applicant must give written notice of the application to the owner-developer and each other person entitled to notice under that clause.

Court order

5.11(4)     The court hearing the application may make one or more of the following orders:

(a) an order requiring the phase to be completed as described in the declaration;

(b) an order permitting or requiring the proposed amendment to be registered, with any changes specified in the order;

(c) an order requiring the registration of an amendment to the declaration and plan to

(i) remove all or part of a phasing unit from the property, and

(ii) if necessary, re-allocate the percentage shares in the common interests and the proportions in which existing owners are required to contribute to common expenses and the reserve fund;

(d) an order giving a direction or making a determination in relation to any matter arising out of the cancellation of a proposed phase;

(e) an order requiring the owner-developer to pay damages to the corporation or to one or more owners of existing units, or both, for any detrimental effect to the corporation or to the use or enjoyment of the property by unit owners resulting from the owner-developer's failure to complete the phase as described in the declaration;

(f) an order vesting title for any unit owned by the owner-developer in the phased development in the name of the corporation;

(g) any other order the court considers appropriate.

Content of order to remove unit

5.11(5)     An order under clause (4)(c) requiring the removal of all or part of a phasing unit from the property may include one or more of the following:

(a) a statement that the unit or part to be removed no longer includes an interest in the common elements;

(b) a statement specifying that the unit or part to be removed is no longer governed by this Act;

(c) a requirement that a plan of survey be registered for land that is no longer governed by this Act.

Corporation may act on owner-developer's behalf

5.12        If an owner-developer fails or refuses to do anything as required by section 5.10 or 5.11, the corporation may do it on behalf of the owner-developer, and may recover its cost of doing so from the owner-developer.

Registration of amendment

5.13(1)     The corporation must submit the proposed amendment referred to in section 5.10 to the district registrar for registration, along with the documents required by subsection (2), within 30 days after

(a) the required number of owners of the existing units referred to in clause 5.1(2)(a) or (b), as the case may be, have consented in writing to the registration; or

(b) the date of the court order permitting or requiring the amendment to be registered.

Registration requirements

5.13(2)     When submitting the amendment for registration, the corporation must also provide to the district registrar

(a) a statutory declaration by the owner-developer or the corporation stating that each person to be given information under clause 5.10(1)(c) was given that information; and

(b) either

(i) a statutory declaration by the owner-developer or the corporation stating that, after receiving the information about the amendment, the required number of owners of the existing units referred to in clause 5.1(2)(a) or (b), as the case may be, consented in writing to the registration of the amendment, or

(ii) a certified copy of the court order permitting or requiring the amendment to be registered.

Removal of notice after registration

5.13(3)     After registering an amendment under this section, the district registrar must remove the entries made under subsection 5.10(2) in respect of that amendment.

Giving notice to owners and mortgagees

5.14(1)     A notice or other document that is required to be given under sections 5.1 to 5.13 to an owner or mortgagee — other than a notice of an application to court — must be given in one of the following manners:

(a) in the case of a notice or other document to be given to an owner,

(i) by leaving it with the owner,

(ii) by mailing it by ordinary mail to the address where the owner resides,

(iii) by faxing it to a fax number provided by the owner, but only if the owner agrees in writing that notices may be given in this manner and an acknowledgment of receipt is provided,

(iv) by sending it by e-mail or other method of electronic communication, but only if the owner agrees in writing that notices may be given in this manner and an acknowledgment of receipt is provided, or

(v) by a prescribed manner;

(b) in the case of a notice or other document to be given to a mortgagee,

(i) by delivering or mailing it to the address given to the corporation in accordance with subsection 15(2),

(ii) by faxing it to a fax number provided by the mortgagee, but only if the mortgagee agrees in writing that notices may be given in this manner and an acknowledgement of receipt is provided,

(iii) by sending it by e-mail or other method of electronic communication, but only if the mortgagee agrees in writing that notices may be given in this manner and an acknowledgement of receipt is provided, or

(iv) by a prescribed manner.

Giving notice to the corporation

5.14(2)     A notice or other document that is required to be given under sections 5.1 to 5.13 to a corporation — other than a notice of an application to court — must be given in one of the following manners:

(a) by leaving it with a director of the board;

(b) by mailing it by ordinary mail to the corporation at its most recent mailing address on file at the land titles office in which the declaration is registered;

(c) by faxing it to the corporation at the fax number provided by the corporation for receiving such notices;

(d) by putting it through the mail slot, or in the mailbox, used by the corporation for receiving such notices;

(e) by a prescribed manner.

Notice deemed to be given

5.14(3)     A notice that is given by ordinary mail under this section is deemed to be given on the fifth day after it is mailed unless there are reasonable grounds to believe that the person did not receive the notice.

District registrar may permit other manner of notice

5.14(4)     If notice cannot be given as set out in subsection (1) or (2), the district registrar may direct that notice be given in a manner or to a person not described in subsection (1) or (2).

Actual notice sufficient

5.14(5)     If a notice is not given in accordance with this section, it is sufficiently given if it actually came to the attention of the person to whom it was intended to be given within the time for giving it under sections 5.1 to 5.13.

Owner-developer may request names and addresses of owners and mortgagees

5.14(6)     For the purpose of giving notice under sections 5.1 to 5.13, an owner-developer may request that the corporation provide to it the names and addresses and, if applicable, fax numbers and e-mail addresses of the owners of existing units and mortgagees who are entitled to notice. The owner-developer must not use that information for any other purpose.

Corporation must comply with request

5.14(7)     A corporation must provide the information referred to in subsection (6) in a timely manner and without charge.

Phasing provisions prevail

5.15        If there is a conflict between sections 5.1 to 5.14 and any other provisions in this Act, those sections prevail.

Notice and consent not required if only one owner

5.16        Despite subsections 5(6) and (7) and 6(3) and (4) and sections 5.1 to 5.15, an amendment to a declaration may be registered without notice and without consent if, at the time of the registration, the entire property that is the subject of the declaration is owned by the same person.

6           The following is added after subsection 16(5):

Non-application re phase

16(6)       This section does not apply to an addition, alteration or improvement to the common elements, or a change to the corporation's assets, that is made when a proposed phase is implemented.

7           Section 34 is amended by adding the following after clause (b):

(b.1) prescribing the additional information, if any, to be included under subsection 5(3.1) in a declaration for a phased development;

(b.2) prescribing instruments for the purposes of subsection 5.1(7) and subclause 5.8(f)(ii);

(b.3) prescribing other manners in which notice may be given for the purpose of section 5.14;

Coming into force

8           This Act comes into force on the day it receives royal assent.