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S.M. 2011, c. 30

Bill 40, 5th Session, 39th Legislature

The Condominium Act and Amendments Respecting Condominium Conversions (Various Acts Amended)

(Assented to June 16, 2011)

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

Condominium Act

1           The Condominium Act set out in Schedule A is hereby enacted.

Residential Tenancies Amendment Act

2           The Residential Tenancies Amendment Act set out in Schedule B is hereby enacted.

Condominium Amendment Act

3           The Condominium Amendment Act set out in Schedule C is hereby enacted.

Municipal Amendment Act

4           The Municipal Amendment Act set out in Schedule D is hereby enacted.

City of Winnipeg Charter Amendment Act

5           The City of Winnipeg Charter Amendment Act set out in Schedule E is hereby enacted.

Coming into force

6(1)        Subject to subsection (2), this Act comes into force on the day it receives royal assent.

Coming into force of Schedules

6(2)        The Schedules to this Act come into force as provided in the coming into force section at the end of each Schedule.


SCHEDULE A

THE CONDOMINIUM ACT

TABLE OF CONTENTS

Section

PART 1

INTERPRETATION AND APPLICATION

1

Definitions

2

Effect of reader's aid

3

Act prevails, application

PART 2

CONDOMINIUM REGISTRATIONS

4

Overview

5

Definitions

REGISTRATION

6

Condominium Register

7

Limitations

8

Who may register

9

Place of registration

10

Declaration, plan and initial by-law to be registered together

11

Effect of registration

12

Declaration

13

Content of declaration

14

Act prevails over declaration

15

Content of plan

16

Bare land unit plan requirements

17

Certain plans must comply with section 117 of Real Property Act

18

Plan requirements, approval

19

Initial by-law

20

Titles to be issued

21

Notice on title about phased development

AMENDING A DECLARATION OR PLAN

22

No application to phasing amendment

23

Amending a declaration or plan

24

Meeting, consent and registration requirements

25

Minor amendments

PROTECTIONS FOR TENANTS OF EXISTING TENURED RENTAL UNITS

26

Application

27

Rights and duties not affected by registration

28

Condominium conversions

29

Notice of registration

30

Occupancy rights

31

Restrictions on sale

PART 3

GENERAL PROPERTY MATTERS

32

Ownership of land includes space

33

Type of real property

34

Ownership and use of owner's unit

35

Ownership of common elements

36

No separation

37

No division of common elements

38

Reference to unit includes interest in common elements

39

Bare land unit boundaries

40

Right to reasonable use of common elements

41

Easements

42

Discharge of encumbrance

43

Assessed value

44

Unit owners share in common assets

PART 4

SALES OF UNITS

45

Overview

46

Application of Part

47

Definitions and interpretation

SALE OF UNIT

48

Multiple buyers

49

Financial projections statement

50

Reserve fund study

51

Disclosure to buyer

52

Seller to disclose material change

53

Condominium corporation to provide documents and information

54

Buyer's cancellation rights

55

Seller may apply for court order

56

Refund after cancellation

57

Registration of transfer

58

Seller's deemed covenants

59

Termination of agreements

60

Interim occupancy of proposed unit

STATUS CERTIFICATE

61

Status certificate

PART 5

THE DECLARANT AND THE DECLARANT'S BOARD

62

Overview

THE DECLARANT

63

Application to Act to declarant's successor

64

Proposed rules

65

Declarant accountable for budget deficit

THE DECLARANT'S BOARD

66

Appointment of directors by declarant

67

Membership — declarant's board

68

Removing and replacing appointed directors

69

Electing two directors to declarant's board

70

Term of office — elected directors

71

Conduct of business by declarant's board before directors elected

72

First general meeting of unit owners

73

Appointing an auditor

74

Special general meeting

75

Turn-over meeting

76

Election of directors at turn-over meeting

77

Documents and items to be turned over

78

Construction and other documents to be turned over

79

Financial statements to be turned over

80

Declarant does not comply

81

Terminating property management agreements

82

Terminating other agreements

83

Terminating mutual use agreements

PART 6

THE CONDOMINIUM CORPORATION

84

Overview

MANDATE, DUTIES AND POWERS

85

Mandate, duties, capacities and powers

86

Governing a condominium corporation

87

Authority to enter into agreements

88

Dealing with real and personal property

89

Dealing with common elements, easements

90

Right to enter limited

91

Condominium corporation may sue

92

Condominium corporation may be sued

93

Occupier's liability

DIRECTORS AND OFFICERS

94

Duty of board, directors and officers

95

Board elected by unit owners

96

Eligibility of directors

97

Unit owned by more than one person

98

Officers

99

Validity of acts

100

Conducting business, quorum

101

Removal and replacement

102

Vacancy

103

Meetings of the board

104

Meaning of "agreement or transaction"

105

Disclosure of interest by director

106

Consequences of failing to disclose

107

Disclosure of interest by officer

108

Reliance on statements, reports

109

Indemnification

MEETINGS

110

Annual general meetings

111

Election of directors at annual general meeting

112

Right to raise matters for discussion

113

Special general meetings

114

Special general meetings requested by unit owners

115

Board receives request for special general meeting

116

Required content for meeting notice

117

Quorum

118

Adjournment

119

Attendance by teleconference

VOTING AND GIVING AND WITHHOLDING CONSENT

120

Method of voting

121

Request for recorded vote

122

Majority voting

123

Vote must take place at properly called meeting

124

Voting only on matters on notice

125

Voting rights in condominium corporation

126

Voting, giving or withholding consent by unit mortgagee, unit owner

127

Voting right to be ignored

128

Proxy

129

Authorization to consent

130

Consent when title transferred

RECORDS

131

Condominium corporation must keep records

132

Condominium corporation must provide copies

OTHER MATTERS

133

Condominium corporation must provide information

134

Property management agreements

135

Prohibition — pets

136

All units in property owned by same person

PART 7

CONDOMINIUM CORPORATION FINANCIAL MATTERS

137

Overview

COMMON EXPENSES

138

Paying common expenses

139

Assessing, collecting contributions to common expenses

140

Credited to common expenses fund

141

Contributions of unit owners, declarant

142

Board may authorize special assessment

RESERVE FUND

143

Reserve fund

144

Total annual contribution to be specified in budget

145

Contributions of unit owners, declarant

146

Unit owner not exempt from obligation to contribute

147

Investment

148

Reserve fund study

BUDGET AND FINANCIAL STATEMENTS

149

Board to notify unit owners — change in contribution to common expenses

150

Contents of financial statements

HANDLING MONEY

151

Condominium corporation's accounts

152

Investment

153

Money held in trust, deposited

154

Records

155

Common surplus

THE AUDITOR

156

Appointing an auditor

157

Auditor unable to complete term

158

No interest in agreement or transaction

159

Auditor's report

160

Right of access

161

Meetings

LIENS

162

Lien upon default, registration

163

Discharging lien

164

Lien priority

UNIT MORTGAGEES

165

Unit mortgagee's rights

166

Statement of common expenses, reserve fund

PART 8

CONDOMINIUM CORPORATION BY-LAWS AND RULES

167

Power to make by-laws

168

When by-law effective

169

Power to make rules

170

Notice, when rule effective

PART 9

CHANGES TO COMMON ELEMENTS AND COMMON ASSETS AND THE MAINTENANCE AND REPAIR OF UNITS AND COMMON ELEMENTS

171

Overview

172

Definitions

CHANGES MADE BY CONDOMINIUM CORPORATION

173

Non-application

174

Cost of change is common expense

175

Changes made without notice, approval

176

Approval requirements for substantial and non-substantial changes

177

Unit owner dissents to substantial change

CHANGES TO COMMON ELEMENTS MADE BY UNIT OWNERS

178

Unit owners may change common elements

179

Registration of change agreement

MAINTENANCE

180

Duty to maintain

181

Unit owner's failure to perform duty

REPAIR AFTER DAMAGE

182

Duty to repair after damage

183

Unit owner's failure to perform duty

184

Board must determine whether substantial damage has occurred

PART 10

INSURANCE AND WARRANTIES

INSURANCE

185

Property insurance

186

Named insureds

187

Liability insurance

188

Primary or first loss, excess insurance

189

Waiver of subrogation

190

Insurance certificate to be provided

191

Disclosure by insurer

192

Cancellation or non-renewal

193

Portion of loss excluded from coverage

194

No restriction on capacity to insure

195

Annual review and report on insurance

196

Act prevails

197

Property insurance

198

Liability insurance

WARRANTIES

199

Warranties — unit

200

Warranties — common elements

PART 11

RESIDENTIAL TENANCY AGREEMENTS AND COMMERCIAL LEASES

RESIDENTIAL TENANCIES

201

Reference to unit owner, tenant

202

Notifying condominium corporation — tenancy agreement

203

Tenant's right of access to by-laws, rules

204

Tenant's rent may be redirected

205

Written notice — contravention by tenant

206

Giving notice, documents to tenants

207

Landlord and tenant relationship

COMMERCIAL LEASES

208

Reference to unit owner, commercial lessee

209

Notifying condominium corporation — commercial lease

210

Commercial lessee's rent may be redirected

OTHER MATTERS

211

Levy

212

Condominium corporation must not prohibit renting

PART 12

COMPLIANCE AND DISPUTE RESOLUTION

COMPLIANCE

213

Compliance

214

Compliance before registration of declaration

215

Condominium corporation may remedy contravention

216

Denying use of recreational facility

217

Application to proposed unit

218

Unit owner may be fined

219

Matter involves director

MEDIATION AND ARBITRATION

220

Dispute resolution by mediation or arbitration

221

Mediation by agreement

222

Arbitration

COURT ORDERS

223

Order — compliance or contravention

224

Declaratory order

225

Order — improper conduct

226

Order — investigator

227

Variation

228

Other remedies

PART 13

PHASING AMENDMENTS

229

Overview

230

Interpretation

231

Consent of existing owners to phasing amendment

232

Additional consent required for amendment to create new phase

233

Content of phasing amendment

234

Restriction — no change to shares in common elements without consent

235

Notice of proposed phasing amendment

236

Condominium corporation's response to proposed phasing amendment

237

Registration of phasing amendment

238

Application to court

239

Effect of registration — implementation of phase

240

Removal of notice on title after registration

FAILURE TO COMPLETE PHASE

241

Notice of phasing amendment

242

Application to court

243

Condominium corporation may act on owner-developer's behalf

244

Registration of phasing amendment

OTHER MATTERS

245

Non-application

246

Owner-developer to deliver documents, etc.

PART 14

AMALGAMATION

247

Overview

248

Definitions

249

Non-application

250

Amalgamation permitted, proposal

251

Meeting of unit owners

252

Notice to prospective unit owners

253

Approval of unit owners required

254

Documents to be filed for registration

255

Effect of declaration's registration

256

Notice of amalgamation

PART 15

WITHDRAWAL

257

Overview

258

How property may be withdrawn

WITHDRAWAL OF ENTIRE PROPERTY WITH CONSENT

259

Withdrawal — unit owners' consent

260

Withdrawal — substantial damage

261

Effect of registration

WITHDRAWAL TO EFFECT SALE

262

Withdrawal to effect sale

263

Effect of registration

264

Share of sale proceeds

265

Determining value by arbitration

WITHDRAWAL RESULTING FROM EXPROPRIATION

266

Effect of expropriation

267

Share of expropriation proceeds

WITHDRAWAL BY COURT ORDER

268

Withdrawal — court order

ADDITIONAL ACTIONS REQUIRED

269

Action by district registrar on withdrawal

270

Common assets to be distributed

PART 16

LEASEHOLD PROPERTY

271

Overview

272

Definitions of "unit", "unit owner"

273

Application of Residential Tenancies Act

274

Consent of property lessor not required to deal with unit

275

No transfer of part of leasehold estate

276

Leasehold condominium corporation's responsibilities under property lease

277

Mediation of dispute

RENEWAL OF PROPERTY LEASE

278

Renewal of property lease

279

Notice about renewal

280

Statutory right of renewal

281

Renewal, non-renewal

TERMINATION OR EXPIRY OF PROPERTY LEASE

282

No termination except by or under court order

283

Effect of termination or expiry of property lease

284

Common assets to be distributed

PART 17

GENERAL

285

Giving notices and other documents

286

Request for names and addresses of unit owners, mortgagees

287

False, misleading statements

288

Dangerous activities

289

Offence and penalty

290

Time limit for prosecution

291

Court order dispensing with consent

292

Person who may vote, consent or execute document on behalf of another

PART 18

REGULATIONS

293

Regulations

PART 19

TRANSITIONAL PROVISIONS

294

Definition of "former Act"

295

Declaration and plan deemed to be registered

296

Corporations continued

297

Sales of units

298

Election of two directors to board

299

Terminating certain property management agreements

300

Judgment against condominium corporation

301

Liens continued

302

Regulations

PART 20

RELATED AND CONSEQUENTIAL AMENDMENTS

303

C.C.S.M. c. M226 amended

304

C.C.S.M. c. M257 amended

305

C.C.S.M. c. P80 amended

306

C.C.S.M. c. R30 amended

307

C.C.S.M. c. R119 amended

308

S.M. 2002, c. 39 amended

PART 21

REPEAL, C.C.S.M. REFERENCE, AND COMING INTO FORCE

309

Repeal

310

C.C.S.M. reference

311

Coming into force


THE CONDOMINIUM ACT

PART 1

INTERPRETATION AND APPLICATION

Definitions

1(1)        The following definitions apply in this Act.

"agreement of purchase and sale", in relation to a unit or proposed unit, means an agreement under which the seller agrees to sell the unit to the buyer, and the buyer agrees to buy the unit from the seller. (« convention d'achat-vente »)

"annual general meeting" means an annual general meeting of unit owners referred to in subsection 110(1). (« assemblée générale annuelle »)

"auditor" means a person who is appointed as an auditor of a condominium corporation under section 73, 156 or 157. (« vérificateur »)

"bare land unit" means a unit defined by the delineation of its horizontal boundaries on a plan and without reference to any buildings, structures or fixtures on the plan. (« fraction de terrain nu »)

"board" means the board of directors of a condominium corporation. (« conseil »)

"by-law" means a by-law of a condominium corporation including any amendments to it. (« règlements administratifs »)

"common assets" means

(a) personal property held by or on behalf of a condominium corporation;

(b) real property held in the name of or on behalf of a condominium corporation that is not included in the corporation's plan; and

(c) any other property specified as a common asset by this Act. (« éléments d'actif communs »)

"common elements" means all the property except for the units. (« parties communes »)

"common expense" means

(a) an expense related to the performance of a condominium corporation's mandate, duties and powers; and

(b) an expense specified as a common expense by this Act or a condominium corporation's declaration. (« dépenses communes »)

"condominium conversion" means the creation of one or more units that include or form part of a building that, at any time before the registration of the declaration or amendment that created the units, was occupied in whole or in part by any person, including a tenant, other than a person

(a) occupying a proposed unit under an interim occupancy; or

(b) occupying the building or any part of it for the sole purpose of marketing the proposed units. (« conversion en condominium »)

"condominium corporation" means a condominium corporation created or continued under this Act. (« corporation condominiale »)

"condominium corporation's declaration" means the declaration that, upon registration under Part 2 (Condominium Registrations), created the corporation or, in the case of a proposed declaration, will create the corporation. (« déclaration de la corporation condominiale »)

"condominium corporation's lien" means a lien registered under section 162. (« privilège de condominium »)

"court" means the Court of Queen's Bench of Manitoba. (« tribunal »)

"declarant" means a person who owns the estate in fee simple in land, or the leasehold estate in land, in respect of which a declaration is registered under Part 2 (Condominium Registrations). (« déclarant »)

"declarant's board" means the board of a condominium corporation at any time before the election of directors at the turn-over meeting. (« conseil du déclarant »)

"declaration" means a declaration registered under Part 2 (Condominium Registrations), as amended from time to time, and includes a proposed declaration. (« déclaration »)

"Director of Residential Tenancies" means the Director of Residential Tenancies appointed under The Residential Tenancies Act. (« directeur de la Location à usage d'habitation »)

"district registrar" means a district registrar appointed under The Real Property Act. (« registraire de district »)

"Examiner of Surveys" means the Examiner of Surveys appointed under The Real Property Act. (« vérificateur des levées »)

"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 phasing amendment. (« partie privative existante »)

"land" means land as defined in The Real Property Act. (« bien-fonds »)

"landlord" means a landlord as defined in The Residential Tenancies Act. (« locateur »)

"leasehold condominium corporation" means the condominium corporation for a leasehold property. (« corporation condominiale de tenure à bail »)

"leasehold property" means property that is the subject of a property lease. (« tenure à bail »)

"mutual use agreement" means an agreement entered into by two or more condominium corporations for the mutual use, provision, maintenance or cost-sharing of facilities, services or amenities by or for those corporations or their unit owners. (« convention d'utilisation en commum »)

"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 or common elements or both in two or more phases. (« aménagement par phases »)

"phasing amendment" means an amendment to a declaration that, upon the 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 »)

"plan" means a plan, and any amendments to it, registered in accordance with Part 2 (Condominium Registrations). (« plan »)

"prescribed" means prescribed by the regulations under this Act.

"property" means the land that is the subject of a declaration, except in the terms "real property", "personal property", "property insurance" and "property taxation". (« bien »)

"property lease" means a lease that creates a leasehold estate in land that becomes the subject of a declaration such that, upon the registration of the declaration, the leasehold estate is divided into units and common elements, and includes a renewal of such a lease. (« bail »)

"property lessor" means the lessor under a property lease. (« bailleur »)

"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 »)

"proposed unit" means the land described as a unit or proposed unit in an agreement of purchase and sale that provides for delivery to the buyer of a registrable transfer of land for that unit after the registration of the declaration or the amendment that creates the unit. (« partie privative projetée »)

"registered instrument" means an instrument as defined in The Real Property Act that is registered under that Act. (« instrument enregistré »)

"rental unit" means a rental unit as defined in The Residential Tenancies Act. (« unité locative »)

"reserve fund" means a reserve fund established and maintained under section 143. (« fonds de réserve »)

"reserve fund study" means a reserve fund study referred to in section 148. (« évaluation du fonds de réserve »)

"rule" means a rule of a condominium corporation including any amendments to it. (« règles »)

"specified percentage",

(a) in relation to a requirement in this Act for the written consent of unit owners for any matter, means 80% or, if a greater percentage is specified in the declaration for that matter, that percentage specified in the declaration; and

(b) in relation to a requirement in this Act for a vote in favour of a matter by unit owners, means 75%, or if a greater percentage is specified in the declaration for that matter, that percentage specified in the declaration. (« pourcentage prévu »)

"status certificate" means the information certified by a condominium corporation under section 61. (« certificat d'information »)

"tenancy agreement" means a tenancy agreement as defined in The Residential Tenancies Act. (« convention de location »)

"tenant" means a tenant as defined in The Residential Tenancies Act. (« locataire »)

"turn-over meeting" means a meeting described in section 75. (« assemblée de transfert »)

"unit" means a part of the land designated as a unit on a plan and includes the space enclosed by its boundaries and all the land, buildings, structures and fixtures within that space. (« partie privative »)

"unit owner"

(a) in relation to a unit in a property other than a leasehold property, means a person who

(i) alone or together with others, owns the estate in fee simple in the unit and its share in the common elements, and

(ii) is shown as an owner of the unit in the records of the district land titles office in which the declaration is registered,

and includes a mortgagee in possession of the unit; and

(b) in relation to a unit in a leasehold property, means a person who

(i) alone or together with others, owns the leasehold estate in the unit and its share in the common elements, and

(ii) is shown as an owner of the unit in the records of the district land titles office in which the declaration is registered,

and includes a mortgagee in possession of the unit, but does not include a tenant or lessee of the unit who rents or leases the unit from its owner or owners. (« propriétaire d'une partie privative » ou « propriétaire »)

Reference to board

1(2)        Unless otherwise specifically provided for in this Act, a reference to a board includes a declarant's board.

Reference to district registrar

1(3)        In this Act, a reference to a district registrar is a reference to the district registrar of the land titles district in which the land that is the subject of the declaration is registered under The Real Property Act.

Reference to proposed unit or property

1(4)        In this Act,

(a) a reference to a unit that is not yet in existence is a reference to it as a proposed unit; and

(b) a reference to property in relation to a proposed unit is a reference to the proposed property in which the proposed unit is to be located.

Included reference

1(5)        In this Act, a reference to "this Act" includes the regulations under this Act.

Reference to unit mortgagee entitled to notice

1(6)        In this Act, a reference to a unit mortgagee entitled to notice is a reference to a unit mortgagee described in clause 116(4)(b).

Interpretation — unit and its share in common elements

1(7)        In this Act, "unit and its share in the common elements" means a unit and the interest in the common elements that is appurtenant to that unit.

Definitions in Real Property Act apply

1(8)        Terms and expressions defined in The Real Property Act have the same meaning in this Act as they have in that Act, unless they are otherwise defined in this Act.

Effect of reader's aid

2           Provisions in this Act with the section heading "Reader's aid" are included for convenience of reference only and do not form part of this Act.

Act prevails

3(1)        This Act applies despite any agreement to the contrary.

Application

3(2)        Subject to Part 19 (Transitional Provisions), this Act applies to a declaration and plan registered, and a corporation created, under The Condominium Act, R.S.M. 1987, c. C170.

PART 2

CONDOMINIUM REGISTRATIONS

Overview

4           This Part provides for

(a) the creation and registration of condominium corporations and the registration of their declarations, plans and by-laws;

(b) the registration of amendments to declarations and plans, other than phasing amendments which are dealt with in Part 13 (Phasing Amendments); and

(c) the protection of the rights of tenants of existing tenured rental units on land that, by the registration of a declaration, is divided into units and common elements.

Definitions

5           The following definitions apply in this Part.

"architect" means a person who is authorized to practise as an architect and is registered under The Architects Act. (« architecte »)

"bare land unit plan" means a plan in which the only units shown on the plan are bare land units. (« plan des fractions de terrain nu »)

"existing tenured rental unit" means a rental unit that becomes or will become a unit under this Act upon the registration of a declaration and is or will be, at the time of the registration of the declaration,

(a) occupied by a tenant under a tenancy agreement; or

(b) the subject of a right of first refusal. (« unité locative existante occupée »)

"land surveyor" means a person who is authorized to practise as a surveyor of lands and is registered under The Land Surveyors Act. (« arpenteur-géomètre »)

"right of first refusal" means a right of first refusal under section 99 of The Residential Tenancies Act to rent a rental unit upon the completion of a renovation. (« droit de premier refus »)

REGISTRATION

Condominium Register

6           The district registrar of a land titles district must keep a register, to be known as the "Condominium Register", for the registration of

(a) declarations and plans in respect of land within the district;

(b) the names and by-laws of condominium corporations created by the registration of declarations and plans in that district; and

(c) notices of withdrawal under Part 15 in respect of properties that lie within the district.

Registration limited to new system land

7(1)        A declaration and plan may be registered only in respect of

(a) an estate in fee simple in land that is registered under The Real Property Act; or

(b) a leasehold estate in land that

(i) is registered under The Real Property Act, and

(ii) is granted under a lease that, at the time the declaration is registered, has an unexpired term of at least 50 years.

Limitation

7(2)        A declaration and plan may not be registered in respect of

(a) land that is the subject of another declaration and plan, except as permitted by Part 14 (Amalgamation);

(b) land that is the subject of a notice registered under section 135.1 (notice of rehabilitation scheme order) of The Residential Tenancies Act that has not lapsed or been discharged; or

(c) land that includes or has included, within the previous 12-month period, one or more rental units, unless the district registrar is satisfied that no tenancy of any of the units was terminated by the landlord within that 12-month period for any reason, other than a breach of the tenant's obligations under The Residential Tenancies Act or the tenancy agreement.

Reader's aid

7(3)        For other provisions in Part 2 relating to the process for registration of declarations and plans, see

(a) sections 8 to 10 (declaration and plans);

(b) sections 12 and 13 (declarations);

(c) sections 15 to 18 (plans); and

(d) subsections 28(4) to (6) (statutory declarations for condominium conversions and municipal approval).

Who may register — fee simple

8(1)        Only the registered owner of an estate in fee simple in land, or a person acting on behalf of the owner, may submit for registration a declaration and plan in respect of that land. The registered owner is referred to in this Act as the declarant.

Who may register — leasehold estate

8(2)        Despite subsection (1), only the registered owner of a leasehold estate in land, or a person acting on behalf of the owner, may submit for registration a declaration and plan in respect of that estate. The registered owner of the leasehold estate is referred to in this Act as the declarant.

Place of registration

9           A declaration and plan must be submitted for registration in the land titles district in which the land is situated.

Declaration, plan and initial by-law to be registered together

10          When submitting a declaration and plan for registration, the declarant must also submit for registration a copy of the by-law proposed by the declarant as the condominium corporation's initial by-law. The copy of the by-law must be signed by the declarant.

Effect of registration

11(1)       Upon the registration of a declaration, plan and by-law,

(a) this Act governs the land described in the declaration and shown on the plan;

(b) the estate in fee simple or leasehold estate in land, as the case may be, is divided into units and common elements as described in the declaration and shown on the plan;

(c) a condominium corporation without share capital is created

(i) with a name consisting of

(A) the name of the land titles district in which the registration occurs,

(B) the words "Condominium Corporation", and

(C) the abbreviation "No." together with the next available consecutive number for a condominium corporation registered in that land titles district, and

(ii) with a membership consisting of the unit owners from time to time;

(d) the by-law becomes the initial by-law of the condominium corporation;

(e) a registered instrument is no longer enforceable against the common elements, but is enforceable against all the units and their shares in the common elements; and

(f) if the declaration is in respect of a leasehold estate in land,

(i) the units and their shares in the common elements are leasehold estates having the same term as the property lease, and

(ii) the rights and obligations of the owner of the leasehold estate under the lease before the registration become the rights and obligations of the unit owners.

No merger of leasehold and freehold interests

11(2)       If a unit in a leasehold condominium corporation is owned by the owner of the estate in fee simple in the land that includes that unit, the owner's interests as owner of the leasehold estate and as owner in fee simple are deemed not to merge.

Non-application

11(3)       Subsection (1) does not apply to the registration of a declaration for an amalgamated corporation under section 255.

Reader's aid

11(4)       For provisions relating to

(a) the governance of a condominium corporation, see Part 6;

(b) a condominium corporation's finances, see Part 7; and

(c) a condominium corporation's by-laws and rules, see section 19 and Part 8.

Declaration

Declaration must meet all requirements of this Act

12(1)       A declaration may not be registered unless it meets all the requirements of this Act.

Declaration to be signed by owner in fee simple

12(2)       A declaration, other than a declaration in respect of a leasehold estate in land, may not be registered unless it is signed by the registered owner of the estate in fee simple in the land described in the declaration.

Declaration — leasehold estate in land

12(3)       A declaration in respect of a leasehold estate in land may not be registered unless it is

(a) signed by the registered owner of the leasehold estate in the land described in the declaration; and

(b) accompanied by the written consent of the property lessor of that land.

Consent of holder of registered instrument

12(4)       A declaration may not be registered unless it is accompanied by the written consent of each person holding a registered instrument against the land, other than

(a) an instrument registered under section 111 of The Real Property Act (rights analogous to easements); or

(b) a caveat that claims an interest or estate in the land by virtue of a tenancy.

Consent to be given or withheld in good faith

12(5)       A person described in subsection (4) must act in good faith in giving or withholding consent.

Statutory declaration

12(6)       The declaration must be accompanied by

(a) a statutory declaration that the declaration is not in respect of a condominium conversion;

(b) a statutory declaration that the declaration is in respect of a condominium conversion and that no building on the proposed property includes or has included one or more rental units at any time before the declaration is submitted for registration; or

(c) one or more statutory declarations set out in subsection 28(4).

Content of declaration

13(1)       A condominium corporation's declaration must contain the following information:

(a) the legal description of the land that is the subject of the declaration and, if available, the address of the land;

(b) a statement of intention that the land and the interests appurtenant to the land, as described in the declaration and shown on the plan, are to be governed by this Act;

(c) the total number of units to be created upon registration;

(d) the types of units and the approximate area of each type of unit and, for each type of unit, the number of units, the proposed use and any restrictions or qualifications that will apply;

(e) a description of the common elements to be created upon registration, their proposed uses and any restrictions or qualifications that will apply to them;

(f) the number of buildings and structures to be included in the property and, for each building, its dimensions, number of levels and number of units;

(g) a statement of the proportions in which the unit owners are to share in the common elements, expressed in percentages allocated to each unit;

(h) a statement of the proportions in which the unit owners are to contribute to the common expenses, expressed in percentages allocated to each unit;

(i) a statement of the proportions in which the unit owners are required to contribute to the reserve fund, expressed in percentages allocated to each unit;

(j) a description of the common expenses of the corporation;

(k) a description of any common elements or parts of them that are to be used by owners of one or more designated units and not by all owners;

(l) a statement of the proportions in which the unit owners are to have voting rights in the corporation, expressed in percentages allocated to each unit;

(m) if the declarant intends to retain one or more units, a statement of its intention, the number of units it intends to retain and the percentage of voting rights attached to those units;

(n) a description of a standard unit for each type of unit (other than a bare land unit in respect of which the corporation is not required to obtain and maintain insurance);

(o) an address for giving notices and other documents to the corporation;

(p) any additional information required by the regulations.

Additional content

13(2)       In addition to the information required under subsection (1), a condominium corporation's declaration must contain the following information, if applicable:

(a) a description of each matter for which a greater level of approval by unit owners is required than would otherwise be required by this Act;

(b) for each matter referred to in clause (a) that requires approval by a vote at a general meeting of unit owners, the percentage of the voting rights in the corporation that, in order to meet the required level of approval, must be held by those unit owners who vote in favour of the matter;

(c) for each matter referred to in clause (a) that requires the written consent of unit owners other than the declarant or an owner-developer, the percentage of the voting rights in the corporation held by those unit owners that, in order to meet the required level of approval, must be held by those who give their written consent;

(d) for each matter referred to in clause (a) that requires the written consent of unit owners, including any declarant who is a unit owner or any owner-developer, the percentage of the voting rights in the corporation that, in order to meet the required level of approval, must be held by those who give their written consent;

(e) a description of any allocation of the obligations to maintain the units or common elements and to repair them after damage that differs from the allocation of those obligations under sections 180 and 182;

(f) a statement that a levy will or may be imposed by the corporation on unit owners who rent or lease their units, and that the levy is subject to the requirements of this Act and the corporation's by-laws;

(g) a statement that the corporation is obligated to purchase the unit and its share in the common elements of any unit owner who dissents to a substantial change to the common elements, common assets or a service or amenity that the corporation provides.

Additional content — bare land units

13(3)       If the property of a condominium corporation is to include a bare land unit, the condominium corporation's declaration must include a description of the method to be used in determining the value of each unit and its share in the common elements if the property is withdrawn from governance by this Act.

Additional content — bare land units other than phasing units

13(4)       If the property of a condominium corporation is to include a bare land unit other than a phasing unit, the condominium corporation's declaration must comply with subsections (1) to (3) and must include the following:

(a) if a unit is to include a building or structure to be constructed after the registration of the declaration and plan, any restrictions with respect to

(i) the size, location, construction standards, quality of materials and appearance of the building or structure,

(ii) architectural standards and construction design standards of the building or structure,

(iii) the time of commencement and completion of construction of the building or structure, and

(iv) the minimum maintenance requirements for the building or structure;

(b) any additional information required by the regulations.

Additional content — leasehold estate

13(5)       If a condominium corporation's declaration is in respect of a leasehold estate in land, the declaration must comply with subsections (1) and (2), and, if applicable, subsections (3) and (4) and must include the following:

(a) a statement that the interest in land to be divided into units and common elements is a leasehold estate in land;

(b) a statement setting out the term of the property lease and the date it will terminate unless it is renewed;

(c) a statement that the lessee's rights and obligations under the lease become the rights and obligations of the unit owners;

(d) if applicable, a summary of the terms and conditions of any option to renew the property lease;

(e) any additional information required by the regulations.

Additional content — phased development

13(6)       A condominium corporation's declaration for a phased development must comply in relation to the initial phase with subsections (1) to (4), and, if applicable, with subsection (5) 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 levels 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 of proposed units and the approximate area of each type of unit and, for each type of unit, the number of units, the proposed use and any restrictions or qualifications that will apply,

(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 elements, the contributions to common expenses and the reserve fund, 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) 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,

(viii) a description of the conceptual design of the entire development identifying the approximate location, area 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.

Additional provisions in declaration

13(7)       A declaration may contain additional provisions that are not inconsistent with this Act.

Act prevails over declaration

14          If a declaration, including a declaration registered before this Part came into force, conflicts with a provision of this Act, the provision of this Act prevails.

Plan

Content of plan

15(1)       A plan (other than a bare land unit plan) must include the following:

(a) a plan of survey (in three parts) showing

(i) in the first part, the horizontal boundaries of the land and the buildings and survey monuments,

(ii) in the second part, the boundaries of

(A) each unit by reference to the buildings, and

(B) any common elements or parts of them that are described in the declaration for the use of the owner of a designated unit,

(iii) in the third part, plans, exterior elevations and building sections required to convey the general building assemblies for each building;

(b) a description of any interests appurtenant to the land that is to be governed by this Act;

(c) any additional information or materials required by the regulations.

Certificate of land surveyor

15(2)       The plans referred to in subclauses (1)(a)(i) and (ii) must be accompanied by a land surveyor's certificate confirming that those plans are correct and that they do not conflict with the plans referred to in subclause (iii).

Certificate of architect

15(3)       The plans, exterior elevations and building sections referred to in subclause (1)(a)(iii) must be accompanied by an architect's certificate confirming that

(a) the buildings have been constructed substantially in accordance with those plans, exterior elevations and building sections; and

(b) those plans, exterior elevations and building sections are substantially accurate.

Bare land unit plan requirements

16          A bare land unit plan must include the following:

(a) a plan of survey showing

(i) the horizontal boundaries of the land, and

(ii) the boundaries of each unit and any common elements or parts of them that are described in the declaration as for the use of the owner of a designated unit;

(b) a description of any interests appurtenant to the land that is to be governed by this Act;

(c) any other additional information or materials required by the regulations.

Certain plans must comply with section 117 of Real Property Act

17          If the property is to include a bare land unit, the plan may be registered only if it also meets the requirements of section 117 of The Real Property Act (plans of subdivision).

Plan must meet all requirements of this Act

18(1)       A plan may not be registered unless it meets all the requirements of this Act.

Plan requires approval of Examiner of Surveys

18(2)       The district registrar may register a plan only if the Examiner of Surveys has approved it for registration.

Initial By-law

Content of initial by-law

19(1)       The initial by-law may contain only those provisions that may be contained in a by-law made under Part 8 (Condominium Corporation By-laws and Rules) by a condominium corporation.

Application of Part 8 provisions

19(2)       Section 167 (condominium corporation's by-laws) applies with necessary changes to the initial by-law.

Titles To Be Issued

Title in name of condominium corporation

20(1)       Upon the registration of a declaration and plan, the district registrar must issue a title for the property in the name of the condominium corporation created by the registration.

Title in name of unit owner

20(2)       For each unit created by the registration of a declaration or an amendment to a declaration, the district registrar must issue a title for the unit, in the name of its owner, that identifies the unit and its share in the common elements.

Notice on title about phased development

21(1)       If the declaration is for a phased development, the district registrar must make an entry on

(a) the title in the name of the condominium corporation created by the registration of the declaration; 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

21(2)       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 (1) in relation to that development.

AMENDING A DECLARATION OR PLAN

No application to phasing amendment

22          Sections 23 to 25 do not apply to a phasing amendment, which is governed by Part 13.

Amending a declaration or plan

23          An amendment to a declaration or plan is effective only if it is made and registered in accordance with this Part.

Amendment to declaration requires meeting, consent

24(1)       Subject to section 25, if the board of a condominium corporation wishes to amend the corporation's declaration or plan, the board must present the proposed amendment to a general meeting of unit owners before seeking their written consent to the amendment.

Meeting notice

24(2)       The meeting notice must include a copy of the proposed amendment or a summary of it.

Registration requires consent or court order

24(3)       Subject to section 25, a district registrar must not register an amendment to a declaration or plan unless

(a) the amendment is consented to, in writing, at the meeting referred to in subsection (1) or within 180 days after that meeting by unit owners holding not less than the specified percentage of the voting rights in the condominium corporation; or

(b) the registration of it is required or permitted by a court order.

Statutory declaration required

24(4)       When the amendment is submitted for registration, it must be accompanied by

(a) a statutory declaration of an authorized director or officer of the condominium corporation that the consent of unit owners to the registration has been obtained as required by clause (3)(a); or

(b) a certified copy of the court order referred to in clause 3(b).

Consent of property lessor

24(5)       In the case of an amendment affecting the declaration or plan for a leasehold property, the district registrar must not register the amendment without the written consent of the property lessor.

Amendment requires approval of Examiner of Surveys

24(6)       The district registrar may register a plan amendment only if the Examiner of Surveys has approved it for registration.

Reader's aid

24(7)       For provisions relating to giving notices of meetings and conducting meetings, see sections 116 to 124.

Minor amendments

25(1)       Section 24 does not apply to the following amendments:

(a) an amendment to the declaration that does not affect any person's rights, interests or obligations and corrects a minor mathematical error or a grammatical, clerical, typographical or printing error;

(b) an amendment to change the address for giving notices and other documents to the condominium corporation.

Registration of minor amendment

25(2)       To give effect to an amendment under clause (1)(a), the condominium corporation must submit a copy of the amendment for registration and satisfy the district registrar that it is an amendment described in that clause.

Change of address

25(3)       To give effect to an amendment under clause (1)(b), the condominium corporation must submit for registration a notice of the change of address in a form acceptable to the district registrar.

Unit owners and mortgagees to be given copy of amendment

25(4)       As soon as practicable after an amendment under this section is registered, the condominium corporation must give a copy of the amendment to each unit owner and each unit mortgagee entitled to notice.

PROTECTIONS FOR TENANTS OF EXISTING TENURED RENTAL UNITS

Application

26(1)       Sections 27 to 31 apply despite any provision to the contrary in The Residential Tenancies Act or a tenancy agreement.

Limitation

26(2)       Sections 27 to 31 do not apply in respect of

(a) an existing tenured rental unit occupied under a life lease as defined in The Life Leases Act;

(b) an existing tenured rental unit occupied under a temporary tenancy as defined in subsection 102(1) of The Residential Tenancies Act; or

(c) the interim occupancy of a proposed unit by the person who will become the owner of the unit on the registration of the declaration.

Rights and duties not affected by registration

27          The registration of a declaration and plan does not, subject to section 30, affect the rights and duties under The Residential Tenancies Act of

(a) the tenant of an existing tenured rental unit;

(b) the holder of a right of first refusal in relation to an existing tenured rental unit; or

(c) the landlord of an existing tenured rental unit.

Notice of proposed registration

28(1)       At least six months before submitting for registration a declaration for a property that includes one or more existing tenured rental units, the declarant must give a written notice of the proposed registration to

(a) each tenant who, on the day the notice is given, occupies such a rental unit or has entered into a tenancy agreement to occupy such a rental unit; and

(b) each person who, on the day the notice is given, holds a right of first refusal in respect of such a rental unit.

Content of notice

28(2)       The notice must contain prescribed information.

Notice to prospective tenant of proposed registration

28(3)       If, after giving the notice required by subsection (1) and before the declaration is registered, the declarant wishes to enter into a tenancy agreement for the occupancy of a proposed unit as a rental unit, the declarant must give a copy of that notice to the prospective tenant before the prospective tenant enters into the agreement.

Statutory declaration — condominium conversions

28(4)       The declarant must submit, with a proposed declaration in respect of a condominium conversion of land that includes or has included one or more rental units, one or more of the following statutory declarations, whichever applies:

(a) if the proposed property includes or has included, within the previous 12-month period, one or more rental units, a statutory declaration from the landlord that no tenancy has been terminated by the landlord within that 12-month period for any reason, other than a breach of the tenant's obligations under The Residential Tenancies Act or the tenancy agreement;

(b) if the proposed property includes one or more existing tenured rental units, a statutory declaration that at the time of submitting the declaration the declarant is in compliance with the notice requirements of this section;

(c) a statutory declaration that approval for the condominium conversion is required under a by-law referred to in subsection 28(6) or that no such approval is required.

Additional requirement — condominium conversions

28(5)       Subject to subsection (6), a declaration and plan in respect of a condominium conversion that includes or has included one or more rental units may not be registered unless it is accompanied by a certificate of approval for a condominium conversion issued by the municipality in which the land that is the subject of the declaration is situated.

Limited application

28(6)       Subsection (5) applies only if

(a) in the case of land that is situated in the City of Winnipeg, the council of the city has passed an applicable by-law under section 157.2 of The City of Winnipeg Charter; or

(b) in the case of land that is situated in any other municipality, the council of the municipality has passed an applicable by-law under clause 232(1)(c.2) of The Municipal Act.

Notice of registration of declaration

29(1)       As soon as practicable after the declaration is registered, the owner of an existing tenured rental unit must give a written notice containing prescribed information about the registration of the declaration to each person entitled to notice under section 28.

Time for giving notice to holder of right of first refusal

29(2)       The notice under subsection (1) to a holder of a right of first refusal must be given before that right is exercised.

Tenant's right to continue in occupancy

30(1)       A tenant of an existing tenured rental unit who occupies the unit at the time of registration of the declaration has a right, subject only to the rights of termination referred to in subsection (3), to continue to occupy the rental unit for at least

(a) two years after the date the tenant receives the notice of the declaration's registration; or

(b) the length of time that the tenant has been in continuous occupancy of a rental unit as of the date the tenant receives the notice;

whichever is longer.

Occupancy right of holder of right of first refusal

30(2)       If the holder of a right of first refusal in relation to an existing tenured rental unit exercises that right, he or she has a right, subject only to the rights of termination referred to in subsection (3), to occupy the rental unit for at least

(a) two years; or

(b) the length of time that the holder has been in continuous occupancy of a rental unit as of the date the holder receives the notice;

whichever is longer, beginning on the date the holder is entitled to occupy the unit under the tenancy agreement entered into pursuant to the exercise of that right.

Limitation

30(3)       Subsections (1) and (2) do not limit the right of a unit owner to terminate a tenancy for a breach of the tenant's obligations under The Residential Tenancies Act or the tenancy agreement.

Right may not be assigned

30(4)       The occupancy right under subsection (1) or (2) may not be assigned.

Meaning of "continuous occupancy"

30(5)       For the purposes of determining a period of continuous occupancy under subsection (1) or (2),

(a) a person is considered to continuously occupy a rental unit throughout the following periods:

(i) any period during which he or she sublets (within the meaning of "subletting" under subsection 42(1) of The Residential Tenancies Act) the unit to another person, if he or she resumes occupancy of the unit at the end of that period,

(ii) the period from a termination of his or her tenancy to the date the person receives notice of the registration of the declaration, if the termination gave rise to a right of first refusal and the new tenancy resulted from the exercise of that right; and

(b) a person is considered to continuously occupy a rental unit if he or she occupies, for any number of consecutive periods, any of the rental units owned by the same owner and located on the same property.

Restriction on sale of proposed unit

31(1)       Before selling a proposed unit that is an existing tenured rental unit to any person other than

(a) the tenant of that rental unit who has continuously occupied the unit since before receiving notice of the proposed registration of the declaration; or

(b) the holder of a right of first refusal in respect of that unit who has continuously, since before receiving notice of the proposed registration of the declaration, occupied the unit or been the holder of that right of first refusal;

the declarant must offer it for sale to the tenant or holder of the right of first refusal at the same price and on terms that are not less favourable to the buyer.

Restriction on sale of unit

31(2)       Before selling a unit that is an existing tenured rental unit to any person other than

(a) the tenant of that rental unit who has continuously occupied the unit since

(i) the date of registration of the declaration, or

(ii) the date of the exercise of the right of first refusal in relation to the rental unit that he or she held on the date of registration of the declaration; or

(b) the holder of a right of first refusal in respect of that rental unit who has continuously, since the date of registration of the declaration, occupied the unit or been the holder of that right of first refusal;

the declarant must offer it for sale to the tenant or the holder of the right of first refusal at the same price and on terms that are not less favourable to the buyer.

Time for acceptance of offer

31(3)       An offer to the tenant or holder of a right of first refusal under subsection (1) or (2) must remain open for acceptance for at least 30 days.

PART 3

GENERAL PROPERTY MATTERS

Ownership of land includes space

32          For the purposes of this Act, the ownership of land or of a leasehold estate in land includes the ownership of space or of a leasehold estate in space respectively.

Type of real property

33(1)       Units and common elements are real property for all purposes.

Dealing with units and shares in common elements

33(2)       A unit and its share in the common elements may be dealt with in the same manner and form as any land the title to which is issued under The Real Property Act.

Further subdivision of unit

33(3)       A unit may not be further subdivided except in accordance with Part 13 (Phasing Amendments).

Ownership and use of owner's unit

34          Subject to this Act and a condominium corporation's declaration and by-laws, each unit owner is entitled to exclusive ownership and exclusive use of his or her unit.

Ownership of common elements

35          The unit owners are tenants in common of the common elements, and each of them owns an undivided share in the common elements in the proportions specified in the declaration.

No separation

36(1)       The ownership of a unit may not be separated from the ownership of the share in the common elements.

Instrument of separation void

36(2)       Any instrument, agreement, document or transaction that purports to separate the ownership of a unit from its share in the common elements is void.

No division of common elements

37          Except as provided for by this Act, the common elements may not be divided.

Reference to unit includes interest in common elements

38          A reference in an instrument, agreement or document to a unit is to be considered a reference to the unit and the interest in the common elements that is appurtenant to that unit, unless the document otherwise provides.

Bare land unit boundaries

39          Unless otherwise shown on a plan, the boundaries of a bare land unit are deemed to extend vertically upward and downward without limit.

Right to reasonable use of common elements

40          Subject to this Act and a condominium corporation's declaration, by-laws and rules, each unit owner has a right to make reasonable use of the common elements.

Easements — units

41(1)       Upon the registration of a declaration and plan, the following easements are created, are appurtenant to each unit and are for the benefit of the unit owner and the condominium corporation:

(a) an easement for the provision of a service through an installation in the common elements or in any other unit;

(b) an easement for support and shelter by the common elements and by any other unit capable of providing support or shelter;

(c) when a building or part of a building,

(i) moves after the registration of the declaration and plan, or

(ii) is not restored, after having been damaged and repaired, to the position occupied at the time of the registration of the declaration and plan,

an easement for exclusive use and occupation over the space of the other units and common elements that would be space included in the unit if its boundaries were determined by the new position of the building and not the position at the time of registration.

Easements — common elements

41(2)       Upon the registration of a declaration and plan, the following easements are created, are appurtenant to the common elements and are for the benefit of all unit owners and the condominium corporation:

(a) an easement for the provision of a service through an installation in a unit or through a part of the common elements of which a unit owner has exclusive use;

(b) an easement for support and shelter by the common elements and any other unit capable of providing support or shelter;

(c) when a building or part of a building,

(i) moves after the registration of the declaration and plan, or

(ii) is not restored, after having been damaged and repaired, to the position occupied at the time of the registration of the declaration and plan,

an easement for exclusive use and occupation over the space of the other units and common elements that would be space included in the common elements if its boundaries were determined by the new position of the building and not the position at the time of registration.

Ancillary rights

41(3)       All ancillary rights and obligations reasonably necessary to make easements effective apply in respect of easements implied or created by this Act.

Benefit restricted for owners of bare land units

41(4)       Despite subsections (1) and (2), an owner of a bare land unit does not benefit from

(a) an easement referred to in clause (1)(a) or (2)(a), unless the installation was in existence at the time the person became the owner of the bare land unit;

(b) an easement referred to in clause (1)(b) or (2)(b) insofar as it provides for an easement of shelter; or

(c) an easement referred to in clause (1)(c) or (2)(c).

Reader's aid

41(5)       For provisions relating to easements granted or otherwise dealt with by a condominium corporation, see section 89.

Definition

42(1)       In this section, "encumbrance" means an encumbrance that is, or at one time was, enforceable against all the units and their shares in the common elements, but does not include a mortgage.

Unit owner entitled to discharge of encumbrance

42(2)       If a unit owner pays the holder of an encumbrance the amount determined under subsection (3), the unit owner is entitled to receive a discharge of that encumbrance insofar as it affects the owner's unit and its share in the common elements.

Determining amount to be paid

42(3)       The amount to be paid is a portion of the sum claimed by the holder of the encumbrance as determined by the proportion allocated to the owner's unit in the declaration for contributions to the common expenses.

Discharge

42(4)       Upon payment of the amount determined under subsection (3), the holder of the encumbrance must give to the unit owner a discharge of that encumbrance insofar as it affects the owner's unit and its share in the common elements. The unit owner may submit the discharge to the district registrar for registration.

Assessed value

43          For property taxation purposes, the assessed value of a unit is the value of the unit and its share in the common elements.

Unit owners share in common assets

44          As members of a condominium corporation, the unit owners share in the common assets in the same proportions as the proportions of their shares in the common elements as set out in the declaration.

PART 4

SALES OF UNITS

Overview

45          This Part governs the sales of units and proposed units, including

(a) imposing an obligation on a declarant to provide a statement of financial projections;

(b) requiring a reserve fund study to be conducted on a condominium conversion or delayed sale of a unit;

(c) requiring sellers to provide certain information to buyers;

(d) providing for the cancellation of an agreement of purchase and sale within a certain time period or because of a material change in the information provided to the buyer;

(e) setting out the requirements for the registration of a transfer of land for a unit;

(f) imposing additional obligations on a seller of a proposed unit; and

(g) setting out the seller's rights and obligations during interim occupancy of a proposed unit.

Application of Part

46          Except for section 61 (status certificate), this Part does not apply to the following:

(a) the sale or transfer of a unit under a power of sale provided for in a mortgage;

(b) the transmission of a unit under an order of foreclosure;

(c) a tax sale;

(d) a sale authorized or required by the court;

(e) any other prescribed sale or transfer.

Definitions

47(1)       The following definitions apply in this Part.

"cooling-off period", in relation to an agreement of purchase and sale, means the period that begins when the agreement is entered into and ends at midnight on the prescribed day or, if no day is prescribed, on the seventh day after the later of

(a) the day that the agreement is entered into; and

(b) the day that the seller has complied with section 51 (disclosure to buyer). (« délai de réflexion »)

"disclosure document" means a document given or required to be given by a seller to a buyer under section 51. (« document d'information »)

Interpretation — "material change"

47(2)       For the purposes of this Part, a material change occurs in relation to an agreement of purchase and sale of a unit when

(a) one or more differences arise between the information contained in the disclosure documents given under section 51 and the information that would be required to be included in those documents if the change had occurred before they were given; and

(b) those differences, considered collectively, are so important to a decision to purchase the unit that it would be reasonable for a buyer to cancel the agreement because of them.

SALE OF UNIT

Multiple buyers

48          If a unit is to be sold to two or more buyers under an agreement of purchase and sale, the buyers must designate, in the agreement or in a document that accompanies the agreement, one of themselves as the buyer

(a) to whom the seller is to give the disclosure documents to be given under section 51 and any notice of a material change to be given under section 52;

(b) who is authorized to exercise, on behalf of all the buyers, a right under section 54 to cancel the agreement during the cooling-off period or because of a material change; and

(c) who is authorized to make a statutory declaration under section 57 (registration of transfer).

Declarant to prepare financial projections statement

49(1)       A declarant who wishes to sell one or more units or proposed units must prepare a statement of financial projections for the 12-month period beginning with the first month for which all unit owners will be required to make monthly contributions to the common expenses.

Content of financial projections statement

49(2)       The statement of financial projections must set out for that 12-month period

(a) for each type of unit, the projected contributions to be made by each unit owner to the common expenses and to the reserve fund;

(b) the projected total common expenses of the condominium corporation;

(c) for each type of common expense,

(i) a description of the service or amenity to which it relates, and

(ii) the projected total expenses;

(d) the projected revenue of the condominium corporation;

(e) the projected opening and closing balances of the reserve fund;

(f) the estimated cost of any reserve fund study to be made during that period; and

(g) any additional information required by the regulations.

Reserve fund study required — condominium conversion

50(1)       Before entering into the first agreement of purchase and sale for any unit created or to be created on a condominium conversion,

(a) the declarant, if the condominium conversion occurs on the registration of a declaration; or

(b) the owner-developer of a phasing unit, if the condominium conversion occurs on the registration of a phasing amendment for that unit;

must ensure that a reserve fund study has been conducted and, if required, updated in accordance with the regulations.

Reserve fund study required — delayed sale of unit

50(2)       If, after the registration of the declaration,

(a) none of the units is sold by the declarant, but instead every unit is rented, leased or otherwise occupied; and

(b) the declarant or a subsequent owner of all the units in the property later wishes to sell the units;

then the declarant or the subsequent owner of all the units, as the case may be, must ensure that a reserve fund study is conducted and, if required, updated in accordance with the regulations before entering into the first agreement of purchase and sale for any of the units.

Non-application

50(3)       Subsection (2) does not apply to a sale or transfer of all the units in a property to the same person.

Cost of reserve fund study

50(4)       The declarant, owner-developer or subsequent owner described in subsection (2), as the case may be, is responsible for the cost of conducting or updating the reserve fund study.

Reader's aid

50(5)       For other provisions governing a reserve fund study, see section 148.

Disclosure to Buyer

Disclosure to buyer — sale of proposed unit

51(1)       If an agreement of purchase and sale for a proposed unit is entered into before the declaration and plan for the land that includes the unit are registered, the seller must give the buyer

(a) a disclosure statement that is signed by the declarant and meets prescribed requirements;

(b) a copy of the statement of financial projections prepared by the declarant in accordance with section 49;

(c) if a reserve fund study or update has been conducted as required under subsection 50(1), a copy of the reserve fund study or a summary of it done in accordance with the regulations;

(d) a copy of the proposed declaration;

(e) a copy of the proposed initial by-law and any proposed rules;

(f) a copy of any proposed property management agreement relating to the condominium corporation created by the registration;

(g) a statement containing prescribed information about the cooling-off period and the buyer's right to cancel the agreement of purchase and sale within that period;

(h) a statement containing prescribed information about the buyer's right to cancel the agreement of purchase and sale in the event of a material change; and

(i) any other document or part of a document specified in the regulations.

Disclosure to buyer — sale of unit after registration

51(2)       If an agreement of purchase and sale for a unit is entered into after the declaration and plan for the land that includes the unit are registered, the seller must give the buyer

(a) a current disclosure statement that is signed by the seller and meets prescribed requirements;

(b) a disclosure statement that meets prescribed requirements and is signed by or on behalf of the condominium corporation not more than 90 days before the seller gives it to the buyer;

(c) a copy of the condominium corporation's budget for the current fiscal period, as approved by the board, and a copy of its budget for the ensuing fiscal period, if it has been distributed to the unit owners;

(d) a copy of the condominium corporation's most recent financial statements, together with the auditor's report on the financial statements if they were audited;

(e) if the agreement of purchase and sale is entered into before the end of the 12-month period referred to in section 49, a copy of the statement of financial projections prepared by the declarant under that section;

(f) a copy of the condominium corporation's current by-laws and rules, if any, and any proposed by-laws or rules or amendments to them that have been approved by the board but are not yet in effect;

(g) a copy of any property management agreement currently in effect or to come into effect at a later date;

(h) a statement containing prescribed information about the cooling-off period and the buyer's right to cancel the agreement within that period;

(i) a statement containing prescribed information about the buyer's right to cancel the agreement in the event of a material change;

(j) if the condominium corporation is proposing to participate in an amalgamation, a copy of the meeting notice given to the seller under subsection 251(3);

(k) a copy of any notice or other document received by the seller about a proposal under Part 15 to withdraw the property or a part of the common elements from governance by this Act, unless the condominium corporation has not received the required level of consent and the time for obtaining that consent has expired;

(l) a statement containing prescribed information about the giving or withholding of consents if the period for obtaining consents has not expired;

(m) a copy of any notice given to the seller for any general meeting of unit owners that is to be held after the date of possession for the unit;

(n) if a reserve fund study or update has been conducted as required under subsection 50(2), a copy of the reserve fund study or a summary of it done in accordance with the regulations; and

(o) any other document or part of a document specified in the regulations.

Disclosure to subsequent buyer

51(3)       If, before a unit is transferred under an agreement of purchase and sale, a buyer (the "first buyer") sells or enters into an agreement to sell that unit to another buyer (the "subsequent buyer"),

(a) the first buyer must

(i) give each disclosure document received under this section to the subsequent buyer,

(ii) notify the seller of the unit in writing about the sale to the subsequent buyer, and

(iii) give the subsequent buyer's contact information to the seller of the unit; and

(b) the subsequent buyer becomes the buyer of the unit for the purposes of this Part and the seller of the unit must give to that buyer any disclosure documents not yet given to the first buyer.

Table of contents

51(4)       The set of disclosure documents to be given under subsection (1) or (2) must be accompanied by a table of contents that

(a) meets prescribed requirements;

(b) is placed at the front of the set of documents; and

(c) clearly identifies any required document that is not included in the set of documents and states when it will be given, or that it cannot be given and why.

Compliance with this section

51(5)       For the purpose of the definition "cooling-off period" in subsection 47(1), when a seller gives all the disclosure documents under subsection (1) or (2) that can be given and complies with subsection (4), the seller is considered to have complied with this section.

Seller to disclose material change

52(1)       If a seller under an agreement of purchase and sale becomes aware of a material change in relation to that agreement, the seller must give to the buyer, as soon as practicable after becoming aware of the change,

(a) a written notice setting out

(i) a description of the change, and

(ii) prescribed information about the buyer's right under section 54 to cancel the agreement because of a material change; and

(b) any additional disclosure documents that the seller would have been required to give to the buyer under section 51 if the change had occurred before the seller gave documents to the buyer under that section.

Court may award damages for non-disclosure of material change

52(2)       The court may, on application by the buyer, order the seller to pay an amount to the buyer as damages resulting from a material change, if the court is satisfied that the seller failed to disclose the change to the buyer as required by subsection (1).

Condominium corporation to provide documents to seller

53(1)       Upon the written request of the seller of a unit, or of a person authorized by the seller of a unit, the condominium corporation must give to the seller

(a) the disclosure statement referred to in clause 51(2)(b); and

(b) a copy of every other document in its possession or control that the seller is required by section 51 or 52 to give to the buyer.

Condominium corporation to provide additional documents

53(2)       Upon the written request of the seller or buyer of a unit, or by a person authorized by the seller or buyer, the condominium corporation must

(a) confirm whether the information in the documents provided to the seller in accordance with subsection (1) is still current as of the date of the request; and

(b) if it is no longer current, provide details of any material change in that information.

Condominium corporation may charge fees

53(3)       A condominium corporation may charge reasonable fees for providing documents or information under this section.

Buyer's Cancellation Rights

Right to cancel within cooling-off period

54(1)       The buyer under an agreement of purchase and sale may cancel it for any reason before the end of the cooling-off period for that agreement.

Right to cancel because of material change

54(2)       Subject to subsection (3), if a material change occurs in relation to an agreement of purchase and sale, the buyer may cancel the agreement at any time after the end of the cooling-off period and before being given possession of the unit.

Limitation

54(3)       The cancellation right under subsection (2) may not be exercised after midnight on the prescribed day or, if no day is prescribed, on the seventh day after the day on which the seller gives the buyer notice of the change in accordance with subsection 52(1).

Time period not extended for holidays

54(4)       If the last day on which a cancellation right may be exercised expires on a holiday other than Remembrance Day, the period during which the cancellation right may be exercised is not extended to include the next day that is not a holiday.

How to cancel

54(5)       To cancel an agreement of purchase and sale under this section, the buyer must do one of the following within the period allowed for cancelling the agreement:

(a) give the seller a written notice of the cancellation;

(b) send a written notice of the cancellation by registered mail, e-mail or fax — or any other method that provides proof of the date and time it was sent — to the address or fax number given by the seller or the seller's agent to the buyer for this purpose.

Adequacy of wording

54(6)       Subject to subsection (7), a cancellation notice under this section is effective if, however expressed, it indicates the buyer's intention to cancel the agreement of purchase and sale.

Statement about material change

54(7)       If the buyer is cancelling the agreement of purchase and sale because of a material change and the seller did not notify the buyer of that change, the notice of cancellation must

(a) state that the buyer is cancelling the agreement because of a material change; and

(b) identify the change and explain why it is a material change.

Effect of cancellation notice

54(8)       A cancellation notice given or sent in accordance with this section is effective to cancel the agreement of purchase and sale.

Seller may apply for court order

55          If the buyer under an agreement of purchase and sale cancels the agreement under section 54 after the end of the cooling-off period because of a material change, and the seller did not notify the buyer of that change, the seller may, within 10 days after receiving the notice of cancellation, apply to the court for

(a) a determination that the buyer did not have a right to cancel the agreement; and

(b) any remedy that the court considers just, including one or more of the following:

(i) an order relieving the seller of all or any part of the seller's obligation under section 56 to refund money paid under the agreement of purchase and sale or to pay interest on that money,

(ii) an order requiring the buyer to pay damages suffered by the seller because of the cancellation.

Refund after cancellation

56(1)       Subject to any court order made under section 55, if an agreement of purchase and sale is cancelled under section 54, the seller or the seller's agent, as the case may be, must refund to the buyer all amounts paid by the buyer under that agreement, together with the interest, if any, earned on those amounts.

Time for payment

56(2)       All amounts payable to a buyer under this section must be paid

(a) within 10 days after the seller receives the cancellation notice; or

(b) if the seller applies to the court for an order under section 55, within 10 days after the court makes an order under that section.

Registration of Transfer

Registration requirements

57(1)       No person shall submit for registration under The Real Property Act, and no district registrar shall accept for registration under that Act, a transfer of land for a unit to be transferred under an agreement of purchase and sale unless the transfer of land is accompanied by

(a) a statutory declaration made by the transferor stating

(i) that the registered owner, or the person entitled to be the registered owner, has sold the unit under an agreement of purchase and sale to which this Part applies,

(ii) that the seller, in compliance with section 51, gave to the buyer all the specified documents that could be given and, for each document that could not be given, a statement identifying the document and explaining why it could not be given, and

(iii) that the cooling-off period for the agreement of purchase and sale has expired; and

(b) a statutory declaration made by the buyer, or one of the buyers if there are two or more of them,

(i) that he or she is the buyer under the agreement of purchase and sale or, if there are two or more buyers, that he or she is one of the buyers under the agreement and has been authorized by the other buyer or buyers to make the statutory declaration,

(ii) that the agreement of purchase and sale has not been cancelled under section 54 (cancellation within cooling-off period or because of material change), and

(iii) if the buyer is not the transferee named in the transfer, that the buyer consents to the title for the unit being issued in the transferee's name.

Other evidence

57(2)       The district registrar may accept, in lieu of a statutory declaration, other evidence of the facts to be stated in the statutory declaration.

Seller's Additional Obligations on Sale of Proposed Unit

Covenants by declarant or owner-developer

58(1)       Every agreement of purchase and sale for a proposed unit to be sold by a declarant or owner-developer is deemed to include the following covenants by the seller:

(a) a covenant to take all reasonable steps to submit to the district registrar for registration

(i) a registrable declaration and plan, if the unit is to be created on the registration of a declaration, or

(ii) a registrable phasing amendment, if the unit is to be created by the registration of a phasing amendment;

(b) a covenant to hold in trust for the condominium corporation the money, if any, that the seller collects from the buyer on the corporation's behalf;

(c) if the proposed unit is to be used as a residence, a covenant to take all reasonable steps, taking into account prevailing market conditions, to sell the other units that are also to be used as residences, except those that, according to the disclosure documents, the seller intends to rent under residential tenancy agreements;

(d) a covenant to take all reasonable steps to complete the work that must be done, before and after registration of the declaration and plan or the phasing amendment, as the case may be, in accordance with the agreement of purchase and sale and the disclosure documents.

No merger of covenants

58(2)       The covenants in this section do not merge by operation of law on delivery to the buyer of a registrable transfer of land for the unit, or on the registration of that transfer.

Definition

59(1)       In this section, "required registration" in relation to a proposed unit means

(a) the registration of the proposed declaration and plan that, upon registration, will create the unit; or

(b) the registration of the proposed amendment to the declaration that, upon registration, will create the unit.

No right to terminate

59(2)       Despite any provision to the contrary in the agreement of purchase and sale for a proposed unit, a seller is not entitled to terminate the agreement by reason only of the failure to complete the required registration, unless the buyer consents to the termination in writing.

Application to court for termination of agreements

59(3)       Despite subsection (2), if the required registration for a proposed unit has not been completed, the seller may, upon 15 days' written notice to each buyer, apply to the court for an order terminating each agreement of purchase and sale for a proposed unit that would be created by that registration.

Considerations

59(4)       The court must consider

(a) whether the seller has complied with the covenant in clause 58(1)(a);

(b) whether the registration has not been completed because of circumstances beyond the seller's control; and

(c) whether the required registration can be completed within a reasonable period of time.

Court order

59(5)       The court may make one or more of the following orders:

(a) an order terminating the agreements of purchase and sale;

(b) an order awarding damages to the buyers under the agreements of purchase and sale;

(c) an order requiring the completion of construction of units, the common elements or amenities;

(d) any other order the court considers appropriate.

Additional order

59(6)       If the court orders the termination of the agreements of purchase and sale for proposed units, the court may make an order specifying a period during which

(a) no declaration and plan may be registered in respect of the land that includes any of the proposed units under those agreements; or

(b) in the case of a proposed unit to be created by an amendment, no phasing amendment may be registered in respect of land that includes any of the proposed units under those agreements.

Registration of order

59(7)       An order under subsection (5) or (6) is not effective until a certified copy of it is registered against title to the affected land.

Interim Occupancy of Proposed Unit

Definitions

60(1)       The following definitions apply in this section.

"interim occupancy" means the occupancy of a proposed unit by the buyer before a registrable transfer of land for the unit is delivered to the buyer. (« occupation provisoire »)

"seller" means a declarant or owner-developer who enters into an agreement to sell a proposed unit. (« vendeur »)

Contribution to reserve fund during interim occupancy

60(2)       Subject to subsection (3), the seller of a proposed unit may charge and collect during a buyer's interim occupancy, on behalf of the condominium corporation, one or more contributions to the corporation's reserve fund as set out in the disclosure documents given to the buyer.

Exception

60(3)       The seller may charge and collect a reserve fund contribution in respect of a proposed unit during an interim occupancy only if a comparable reserve fund contribution is charged and collected, or contributed by the seller, in respect of each other proposed unit.

Right to cancel not affected

60(4)       The buyer's rights under this Part to cancel the agreement of purchase and sale are not affected by the buyer assuming occupancy of the proposed unit.

Seller's rights and obligations

60(5)       During an interim occupancy, the seller has

(a) the same duty to provide services and amenities;

(b) the same duty to repair and maintain the proposed unit and the proposed property; and

(c) the same rights of entry into the proposed unit;

as the condominium corporation will have in relation to the unit and its owner after the end of the interim occupancy.

Non-application of Residential Tenancies Act

60(6)       The Residential Tenancies Act does not apply to an interim occupancy or to a monthly occupancy fee charged to a buyer.

STATUS CERTIFICATE

Status certificate

61(1)       Upon request by a buyer of a unit in a condominium corporation or a unit owner, the corporation must certify, on the form prescribed for this purpose, the following information:

(a) the particulars of any amount that the unit owner owes the corporation;

(b) whether, to the corporation's knowledge, there is any breach of this Act or its declaration, by-laws or rules for which a subsequent unit owner may be held responsible or that a subsequent unit owner may be required to remedy.

Effect of status certificate

61(2)       The status certificate is binding on the condominium corporation in favour of a buyer or unit mortgagee, who may rely on the certificate as conclusive proof of its contents as of the date of the certificate.

PART 5

THE DECLARANT AND THE DECLARANT'S BOARD

Overview

62          This Part provides for certain obligations of the declarant, the membership of the declarant's board, the requirements for the first general meeting of unit owners and the turn-over meeting, and the termination of certain agreements by the condominium corporation after the turn-over meeting.

THE DECLARANT

Application of Act to declarant's successor

63(1)       The rights and obligations of a declarant under this Act also apply to the declarant's successor in title except as otherwise provided for in this Act.

Meaning of "successor in title"

63(2)       In this section,"successor in title" means a person who

(a) becomes the registered owner of one or more units previously owned by the declarant; and

(b) assumes by agreement, or is required by a court order to fulfill, any of the declarant's obligations under this Act as a declarant.

Proposed rules

64(1)       A declarant may prepare proposed rules.

Effect of registration

64(2)       Upon the registration of the declaration, the proposed rules become the initial rules of the condominium corporation.

Content of initial rules

64(3)       The initial rules may contain only provisions that may be contained in a rule made under Part 8 by the board.

Application of Part 8 provisions

64(4)       Sections 169 (power to make reasonable rules) and 170 (notice to unit owners) apply with necessary changes to the initial rules.

Declarant accountable for budget deficit

65(1)       After the end of the year covered by the statement of financial projections prepared by a declarant under section 49 and provided to a buyer under section 51, the declarant must pay to the condominium corporation the amount determined by the following formula, if it is a positive amount:

A = (Ea − Ep) + (Rp − Ra)

In this formula,

A

is the amount payable by the declarant to the corporation;

Ea

is the total of the corporation's actual common expenses for the year;

Ep

is the total of the corporation's projected common expenses for the year;

Rp

is the corporation's projected revenue for the year;

Ra

is the corporation's actual revenue for the year.

Condominium corporation to prepare financial statement

65(2)       The condominium corporation must prepare a financial statement that compares the projected amounts for the period covered by the statement of financial projections to the actual results for that period.

Condominium corporation to notify declarant, unit owners

65(3)       Within 30 days after preparing the financial statement, the condominium corporation must give to the declarant and the unit owners

(a) a written notice setting out the amount that the declarant is required to pay under this section, or that no amount is payable under it; and

(b) a copy of the financial statement.

Declarant, unit owners may request audit

65(4)       The condominium corporation must have the financial statement and the determination of any amount payable under subsection (1) reviewed by an auditor, if requested to do so by the declarant or by a majority of the other unit owners.

Cost is common expense

65(5)       The cost of the audit is a common expense.

Time for payment

65(6)       If the declarant is required to pay an amount under subsection (1), the declarant must pay it

(a) if no audit has been requested, within 30 days after receiving the notice under subsection (3); or

(b) if an audit has been requested, within 30 days after receiving the auditor's report on the financial statement and the amount determined under subsection (1).

Declarant does not pay required amount

65(7)       If the declarant does not pay the required amount to the condominium corporation, the corporation has a lien against each unit and its share in the common elements that is owned by the declarant for

(a) the unpaid amount;

(b) the interest owing on the unpaid amount; and

(c) the reasonable legal costs and expenses incurred by the condominium corporation in collecting or attempting to collect the unpaid amount, including the costs of preparing and registering the lien and its discharge.

Sections 162 to 164 (lien registration, priority and discharge) apply with necessary changes to such a lien.

THE DECLARANT'S BOARD

Appointment of directors by declarant

66(1)       Upon the registration of a declaration, the declarant must appoint one or more directors to the declarant's board. The declarant may also appoint directors at any time before the turn-over meeting is held.

Reader's aid

66(2)       For provisions relating to the governance of a condominium corporation and its board, including the declarant's board, see Part 6.

Membership — declarant's board

67          A declarant's board is composed of

(a) the directors appointed by the declarant under subsection 66(1); and

(b) any directors elected under section 69 by the unit owners other than the declarant.

Removing and replacing appointed directors

68(1)       A declarant may revoke the appointment of a director appointed by the declarant and appoint another director in his or her place.

Term of office — appointed directors

68(2)       A director appointed by the declarant holds office until his or her appointment is revoked or until the new board is elected at the turn-over meeting.

Electing two directors to the declarant's board

69(1)       At the first general meeting and at each annual general meeting before the turn-over meeting is held, the unit owners — other than the declarant — are entitled to elect two directors to the declarant's board.

More directors than declaration provides

69(2)       An elected director of the declarant's board holds office in addition to the directors appointed by the declarant even if the addition of an elected director results in more directors on the board than are provided for by the declaration or by-laws.

Term of office — elected directors

70(1)       An elected director of a declarant's board holds office until the earlier of

(a) the first annual general meeting following the meeting at which the director was elected; and

(b) the turn-over meeting.

Removing elected directors

70(2)       Despite subsection (1), an elected director may be removed at a general meeting at any time before his or her term expires, if the removal is approved by unit owners, other than the declarant, who hold a majority of the voting rights voted by those unit owners present in person or by proxy at the meeting. Another director may be elected in his or her place.

Conduct of business by declarant's board before directors elected

71          Despite subsection 100(1), a written resolution that

(a) is adopted by a declarant's board before unit owners elect a director to the board under section 69; and

(b) is signed by all the appointed directors;

is valid even though no meeting is held to vote on the resolution.

First General Meeting

First general meeting of unit owners

72(1)       Subject to subsections (2) and (3), a declarant's board must call and hold the first general meeting of unit owners no later than one year after the first transfer of ownership of any unit by the declarant.

Non-application

72(2)       Subsection (1) does not apply to the sale or transfer of all units in a property by a declarant to the same person.

When first general meeting not required

72(3)       The declarant's board is not required to call or hold the first general meeting if, by the day the meeting is required to be held,

(a) the declarant no longer owns the majority of the existing units; and

(b) the declarant advises the declarant's board in writing of that fact.

Meeting may not be waived

72(4)       To avoid doubt, despite subsection 110(2), the first general meeting may not be waived.

Reader's aid

72(5)       Subsection 75(2) requires that the turn-over meeting be called no later than six months after the declarant ceases to be the owner of a majority of the existing units.

Appointing an auditor

73(1)       At the first general meeting, unit owners must appoint an auditor who meets the requirements in subsection 156(2) and the regulations.

Board to act if unit owners do not

73(2)       If unit owners do not appoint an auditor, the declarant's board must do so without delay.

Report

73(3)       The auditor must report to the unit owners on the financial statements prepared by the condominium corporation. The report must meet prescribed requirements.

Term of appointment

73(4)       An auditor is appointed until the close of the next annual general meeting held after the turn-over meeting or until his or her appointment is revoked.

Revoking the appointment

73(5)       Unit owners may revoke the appointment of the auditor at a general meeting and appoint another one in his or her place at the same meeting.

Application

73(6)       Subsection 156(3) and sections 157 to 161 apply to an auditor appointed under this section.

Exception

73(7)       This section does not apply to a general meeting of unit owners of a condominium corporation with fewer than 10 units if all the unit owners consent in writing to dispense with the appointment of an auditor until the next annual general meeting. If they dispense with the appointment of an auditor, this section applies to the next annual general meeting as if it were the first general meeting.

Special General Meeting

Special general meeting requested by unit owner before turn-over meeting

74(1)       Before the turn-over meeting is held, a unit owner may request a special general meeting by giving the condominium corporation a written request signed by those unit owners entitled to vote who, at the time of the request, own at least 25% of the units not owned by the declarant.

Non-application

74(2)       Subsection 114(1) does not apply to a special general meeting requested by a unit owner before the turn-over meeting has taken place.

Turn-over Meeting

Purpose of turn-over meeting

75(1)       The purpose of a turn-over meeting is

(a) to replace the declarant's board with a new board of the condominium corporation elected by unit owners; and

(b) to turn over records, documents and items to the new board.

Turn-over meeting

75(2)       The turn-over meeting must be called by the declarant's board no later than six months after the declarant ceases to be the owner of a majority of the existing units.

Unit owner, mortgagee may act if board does not

75(3)       If the declarant's board does not call the turn-over meeting within the required time period, a unit owner or a unit mortgagee entitled to notice may call the meeting.

Holding the turn-over meeting

75(4)       The turn-over meeting must be held within 21 days after it is called.

Reimbursing costs

75(5)       Upon request, the declarant must reimburse a unit owner who calls the turn-over meeting for the reasonable costs incurred in calling and holding the meeting.

Election of directors at turn-over meeting

76(1)       At a turn-over meeting, the directors are to be elected by the unit owners entitled to vote who are present in person or by proxy at the meeting.

Term of office

76(2)       Unless otherwise provided for in the by-laws, the directors who are elected at the turn-over meeting hold office until the next annual general meeting held after the turn-over meeting.

Reader's aid

76(3)       For provisions relating to the eligibility of elected directors, see sections 96 and 97.

Documents and items to be turned over

77(1)       At a turn-over meeting, the declarant must deliver to the new board the following:

(a) the condominium corporation's minute book referred to in clause 131(1)(a);

(b) a copy of the registered declaration;

(c) a copy of the registered by-laws and a copy of the rules;

(d) a copy of every agreement entered into by the condominium corporation or the declarant or the declarant's representatives on the corporation's behalf, including every property management agreement;

(e) a copy of every deed, lease, licence or easement agreement;

(f) a copy of every current and expired insurance policy and its related certificate or memorandum of insurance and a copy of each insurance trust agreement, if any;

(g) a list of all common assets;

(h) every record or document in the possession of the declarant or the declarant's board related to the units, including the list of unit owners and unit mortgagees entitled to notice;

(i) every record or document in the possession of the declarant or the declarant's board related to the condominium corporation's agents or employees;

(j) a copy of all disclosure statements referred to in clause 51(2)(b) that have been issued;

(k) the condominium corporation's seal, if any;

(l) any master or duplicate keys, garage door openers or other means of access to the property in the possession of the declarant or the declarant's board;

(m) the additional records, documents, items or information required by the regulations.

Costs borne by declarant

77(2)       The declarant is responsible for the costs related to preparing the records, documents, information or items to be delivered at the meeting.

Construction and other documents to be turned over

78(1)       At or within 30 days after a turn-over meeting, the declarant must deliver to the new board the original or a copy of the following records, documents and information that it possesses or controls:

(a) every warranty or guarantee in respect of the common assets and the common elements;

(b) the structural, electrical, mechanical and architectural working drawings and specifications of the property, and the as-built drawings, if any;

(c) any existing plans showing the location of underground utility services, sewer pipes, cables and wires located on the property;

(d) every approval, permit, order and certificate issued by the government, a government agency or a municipal government relating to the property and the common assets;

(e) any documents and information related to the repair or maintenance of the property;

(f) the reserve fund study, and any updates to it, completed before the date of the turn-over meeting;

(g) every financial record of the declarant and condominium corporation relating to the corporation's operation from the date of the declaration's registration and every document related to the corporation's general and reserve fund accounts;

(h) every record relating to insurance claims by the condominium corporation and insurance actions by and against the corporation;

(i) every record relating to claims, actions or proceedings involving the condominium corporation and any orders against it;

(j) the additional records, documents items or information required by the regulations.

Costs borne by declarant

78(2)       The declarant is responsible for the costs related to preparing the records, documents and information to be delivered under this section, other than the reserve fund study and any updates to it.

Cost of certain reserve fund studies

78(3)       Despite subsection (2), the declarant is responsible for the cost of a reserve fund study or update required under section 50 (condominium conversion, delayed sale of unit).

Financial statements to be turned over

79          Within 90 days after a turn-over meeting, the declarant must deliver to the new board the condominium corporation's financial statements as of the date of the turn-over meeting, together with the auditor's report on the financial statements if they were audited.

Declarant does not comply

80(1)       If a declarant does not comply with section 77, 78 or 79, the condominium corporation may apply to the court for an order under subsection (2).

Court order

80(2)       If it is satisfied that the declarant has — without reasonable excuse — failed to comply with section 77, 78 or 79, the court may make one or more of the following orders:

(a) an order requiring the declarant to comply with that section;

(b) an order requiring the declarant to pay damages to the condominium corporation for any loss it incurred as a result of the declarant's failure to comply with that section;

(c) an order requiring the declarant to pay the condominium corporation's application costs;

(d) any other order the court considers appropriate.

Terminating Agreements After the Turn-over Meeting

Terminating property management agreements

81(1)       Despite any term to the contrary in a property management agreement, a condominium corporation may, within 12 months after the turn-over meeting, terminate that agreement, without penalty, if it was entered into before the date of that meeting.

Written notice

81(2)       To terminate a property management agreement, the condominium corporation must give written notice of the termination date to the property manager at least 30 days, or any shorter period specified in the agreement, before that date.

Return of records, etc.

81(3)       Within 30 days after the termination date, the property manager must deliver to the board all records and documents, including correspondence, related to the condominium corporation, and any common assets, that are in the property manager's possession or control.

Terminating other agreements

82(1)        A condominium corporation may, within 12 months after the turn-over meeting, terminate, without penalty, any of the following agreements entered into by the corporation before the turn-over meeting:

(a) an agreement to provide goods and services to the condominium corporation on a continuing basis;

(b) an agreement to provide facilities to the condominium corporation on a for-profit basis;

(c) a commercial lease for parts of the common elements;

(d) an insurance trust agreement.

Application

82(2)       Subsection (1) applies despite any term to the contrary in the agreement to be terminated.

Written notice

82(3)       To terminate an agreement referred to in subsection (1), the condominium corporation must give written notice of the termination date to the other party to the agreement at least 30 days, or any shorter period specified in the agreement, before that date.

Exception — easements

82(4)       Nothing in this section permits the termination of an easement created by an agreement except in accordance with that agreement.

Non-application

82(5)       This section does not apply to a mutual use agreement.

Terminating mutual use agreements

83(1)       If two or more condominium corporations entered into a mutual use agreement before the turn-over meeting, any of them may apply to the court, within 12 months after its turn-over meeting, for an order under this section.

Application

83(2)       Subsection (1) applies despite any term to the contrary in the mutual use agreement.

Court order

83(3)       If the court determines that the mutual use agreement or any provision of it is or may be oppressive or unfairly prejudicial to the condominium corporation that made the application or its unit owners, the court may make one or more of the following orders:

(a) an order terminating the mutual use agreement;

(b) an order amending the mutual use agreement;

(c) any other order the court considers appropriate.

PART 6

THE CONDOMINIUM CORPORATION

Overview

84(1)       This Part sets out

(a) the mandate, duties, capacity and general powers of a condominium corporation, including its rights of entry into units and common elements; and

(b) various provisions relating to the governance and operation of a condominium corporation, including provisions relating to

(i) directors and officers of the corporation,

(ii) meetings of the board,

(iii) meetings of unit owners,

(iv) voting rights and proxies.

Reader's aid

84(2)       For additional provisions relating to the governance of a condominium corporation before the date of its turn-over meeting, see Part 5 (The Declarant and The Declarant's Board).

MANDATE, DUTIES AND POWERS

Mandate

85(1)       The mandate of a condominium corporation is to manage the property and the common assets on behalf of the unit owners in accordance with this Act.

Duty

85(2)       A condominium corporation has a duty to control, manage and administer the common elements and common assets of the corporation.

Capacity and powers

85(3)       Subject to this Act, a condominium corporation has the capacity and powers of a natural person for the purpose of carrying out its mandate and duties.

Governing a condominium corporation

86(1)       A condominium corporation is to be governed in accordance with this Act, the corporation's declaration and by-laws and, to the extent that the regulations so provide, The Corporations Act.

Limited application of Corporations Act

86(2)       Except as otherwise provided for in the regulations, The Corporations Act does not apply to a condominium corporation.

Authority to enter into agreements

87          Without limiting subsection 85(3), a condominium corporation may enter into any agreement in order to carry out its mandate or perform any duty under this Act or its declaration or by-laws, including any of the following types of agreements:

(a) a property management agreement;

(b) an agreement to provide goods and services to the condominium corporation;

(c) an agreement to obtain facilities for the condominium corporation or the unit owners;

(d) a commercial lease for parts of the common elements;

(e) a mutual use agreement.

Dealing with real and personal property

88(1)       A condominium corporation may own, acquire, encumber, dispose of or otherwise deal with real and personal property, but only for purposes consistent with its mandate, duties and powers.

Consent required to deal with real property

88(2)       Unless this Act provides otherwise, a condominium corporation may acquire, encumber or dispose of real property only with the written consent of unit owners holding the specified percentage of voting rights in the corporation.

Unit owned by condominium corporation

88(3)       A unit in respect of which a condominium corporation is the registered owner is a common asset.

Dealing with common elements, easements

89(1)       A condominium corporation may

(a) lease a part of the common elements, except those parts specified in the corporation's declaration as common elements for the exclusive use of a unit owner;

(b) grant an easement or licence through the common elements; or

(c) surrender an easement that is appurtenant to a part of the common elements;

but only if specifically authorized by its by-laws to do so.

Binding on each unit owner

89(2)       A lease, grant or surrender mentioned in subsection (1) that is signed by an authorized director or officer of the condominium corporation affects the interest of each unit owner in the common elements as if the lease, grant or surrender had been executed by the unit owner.

Validity of easement

89(3)       A grant of an easement to the condominium corporation is valid even though the corporation does not own land capable of being benefited by the easement.

Effect of easement granted to condominium corporation

89(4)       A grant of an easement to the condominium corporation has the same force and effect as a grant of an easement to the unit owners, and is for their benefit and may be exercised by them.

Right to enter limited

90(1)       A condominium corporation, or a person authorized by it, may enter a unit, or a part of the common elements of which a unit owner has exclusive use, to perform the corporation's mandate and duties and exercise its powers, but only if

(a) an emergency exists and entry without consent or notice is necessary to deal with it;

(b) a person occupying the unit consents to the entry; or

(c) a notice of entry is given to the person occupying the unit in accordance with subsection (2).

Notice requirements for entry

90(2)       The notice of entry must

(a) be written;

(b) specify the purpose of entry;

(c) specify the time or times of entry, which must be reasonable; and

(d) be given to the person occupying the unit at least 24 hours but not more than two weeks before

(i) the specified time of entry, or

(ii) if more than one time is specified, the first specified time.

Alternative time may be proposed

90(3)       The recipient of the notice of entry may propose in writing a reasonable alternative to the specified time. The condominium corporation or its authorized representative may enter the unit only at that alternative time.

Condominium corporation may sue

91(1)       Subject to subsection (2), a condominium corporation may, on its own behalf or on a unit owner's behalf,

(a) commence, maintain or settle an action for damages and costs in respect of any damage to the common elements, the common assets or a unit; and

(b) commence, maintain or settle an action with respect to an agreement involving the common elements, the common assets or a unit, even though the corporation is not a party to that agreement.

This is in addition to any other remedies that the corporation may have.

Notice to unit owners

91(2)       The condominium corporation must promptly give the unit owners and the unit mortgagees entitled to notice written notice of the general nature of any action to be commenced by the corporation other than

(a) an action commenced in accordance with The Court of Queen's Bench Small Claims Practices Act; or

(b) an action of which the purpose is to enforce a condominium corporation's lien under this Act.

Costs

91(3)       Unless the board determines otherwise, the legal and court costs in an action that the condominium corporation commences, maintains or settles in whole or in part on behalf of any unit owners in respect of their units is to be borne by those unit owners in proportion to their shares in the common elements as specified in the declaration.

Judgment is common asset

91(4)       A judgment for payment in favour of the condominium corporation in an action that the corporation commences or maintains on its own behalf is a common asset.

Condominium corporation may be sued

92(1)       A condominium corporation, as representative of the unit owners, may be sued in respect of any matter relating to the common elements or common assets.

Judgment against condominium corporation

92(2)       A judgment for payment of money against the condominium corporation is also a judgment against each unit owner at the time of judgment for a portion of the judgment determined by the proportions specified in the declaration for their share in the common elements.

Occupier's liability

93          For the purpose of determining liability resulting from a breach of the duties of an occupier of land,

(a) a condominium corporation is deemed to be the occupier of the common elements; and

(b) the unit owners are deemed not to be the occupiers of the common elements.

DIRECTORS AND OFFICERS

The Board, Directors and Officers

Duty of board

94(1)       A board is responsible for performing the duties and exercising the powers of the condominium corporation in accordance with the corporation's mandate, duties and powers under this Act and the corporation's declaration and by-laws.

Duty of directors and officers

94(2)       In performing the duties of the condominium corporation and exercising its powers, each director and officer of the board must

(a) act honestly and in good faith with a view to the best interests of the corporation; and

(b) exercise the care, diligence and skill that a reasonable and prudent person should exercise in comparable circumstances.

Board elected by unit owners

95          Unit owners must elect the directors of the board in accordance with this Act and the condominium corporation's by-laws.

Eligibility

96(1)       Subject to a condominium corporation's by-laws, only unit owners and individuals representing unit owners that are corporations may be elected as directors.

Non-application

96(2)       This section does not apply to the appointed directors of the declarant's board.

Unit owned by more than one person

97(1)       If a unit is owned by more than one person, only one of them may be a director at any one time, unless the condominium corporation's by-laws provide that all unit owners are directors of the board.

Unit owned by corporation

97(2)       If a unit is owned by a corporation, only one representative of the corporation may be a director at any one time unless the condominium corporation's by-laws provide otherwise.

More than one unit owned by corporation

97(3)       If more than one unit is owned by a corporation, only one representative of the corporation may be a director at any one time unless the condominium corporation's by-laws provide otherwise.

Non-application

97(4)       This section does not apply to the appointed directors of the declarant's board.

Officers

98          A condominium corporation may have officers if provided for in its by-laws or by resolution of the board.

Validity of acts

99          No act of a board or of a director or officer is invalid by reason only of a defect in the election or qualifications of a director or in the appointment or qualifications of an officer.

Conducting business

100(1)      A board may transact business only at a meeting at which a quorum of the board is present.

Quorum

100(2)      A quorum of the board is a majority of the directors, counting as a director any vacancy in the position of a director.

Removal and replacement

101(1)      A director may be removed before the end of the director's term of office by a vote at a general meeting of unit owners. Another director may be elected for the remainder of the term.

Non-application

101(2)      This section does not apply to the appointed directors of the declarant's board.

Vacancy

102(1)      If a vacancy arises on a board, the remaining directors may exercise all the powers of the board as long as a quorum remains in office.

Replacement made by the directors

102(2)      If a vacancy arises on the board and a quorum remains in office, the majority of the remaining directors may appoint any person qualified to be a director to fill the vacancy until the next general meeting of unit owners.

Unit owners may elect replacement or decrease number of directors

102(3)      At that meeting, the unit owners who are present in person or by proxy must either

(a) elect a person to fill the vacancy; or

(b) vote to decrease the number of directors, but only if the decrease does not result in fewer directors than are required by the declaration or by-laws.

Replacement's term of office

102(4)      The person elected to fill the vacancy holds office for the remainder of the term of the director whose position became vacant.

Vacancy results in loss of quorum

102(5)      If a vacancy arises on the board and there are not enough directors remaining in office to constitute a quorum, the remaining directors must, within 30 days after losing quorum, call a general meeting of unit owners to fill all vacancies as soon as practicable.

Unit owner or mortgagee may call meeting

102(6)      If

(a) the directors do not call the meeting within the 30-day time period; or

(b) there are no directors then in office;

a unit owner or a unit mortgagee entitled to notice may call the meeting.

Reimbursing costs

102(7)      Upon request, a condominium corporation must reimburse a unit owner or unit mortgagee who calls the meeting for the reasonable meeting costs incurred.

Meetings of the Board

Meeting by teleconference

103(1)      A board may provide for attendance at a meeting by telephone or another form of communications system that allows concurrent participation if

(a) authorized by the condominium corporation's by-laws to do so; or

(b) all the directors consent to doing so.

Present in person

103(2)      A person who attends a meeting as described in subsection (1) is present in person at that meeting.

Disclosing Conflict of Interest

Meaning of "agreement or transaction"

104         In sections 105 to 107, "agreement or transaction" includes a proposed agreement or transaction to which a condominium corporation may be a party.

Disclosure of interest by director

105(1)      A director who has a direct or indirect interest in

(a) an agreement or transaction to which the condominium corporation is a party; or

(b) a matter that is or may be the subject of consideration by the board, if that interest could materially conflict with that director's duty or interest as a director;

must disclose the nature and extent of that interest to the board in writing.

Exception

105(2)      Subsection (1) does not apply if

(a) the director's interest in the agreement or transaction is not material to the agreement or transaction;

(b) the agreement or transaction is not material to the condominium corporation;

(c) the director's interest

(i) exists only because the director owns a unit,

(ii) is or would be limited solely to his or her remuneration as a director, officer or employee of the condominium corporation, or

(iii) is or would be limited solely to any directors' and officers' insurance obtained and maintained by the condominium corporation; or

(d) the director is appointed to the declarant's board and his or her interest arises or would arise solely because he or she is a director, officer or employee of the declarant.

Director sells property to condominium corporation

105(3)      If a director

(a) agrees to sell real or personal property to the condominium corporation or enters into such a transaction; and

(b) first acquired the real or personal property within five years before the date of the transfer of ownership of the property to the condominium corporation;

he or she must disclose to the board the actual price he or she paid for the real or personal property.

Director has indirect interest in sale

105(4)      If a director

(a) has an indirect interest in a sale of real or personal property to the condominium corporation; and

(b) first acquired that indirect interest within five years before the sale to the condominium corporation;

he or she must disclose to the board the nature and extent of the interest and the actual cost of the real or personal property to the extent to which that information is within the director's knowledge or control.

Time of disclosure

105(5)      A disclosure required by this section must be made

(a) at the board meeting at which the agreement, transaction or matter is first considered;

(b) at the first board meeting held after the director becomes aware of his or her interest in the agreement, transaction or matter; or

(c) if the director acquires an interest in the agreement, transaction or matter after it is entered into, at the first board meeting held after the director acquires that interest.

Entry in minutes

105(6)      The director's disclosure must be entered in the minutes of the board meeting at which the disclosure is made.

Director not to be present

105(7)      A director who has made a disclosure must leave a board meeting in the following circumstances:

(a) while the agreement, transaction or matter is being discussed unless asked by the board to be present to provide information;

(b) while the board votes on the agreement, transaction or matter.

Director not to vote

105(8)      A director who has made a disclosure must abstain from voting on the agreement, transaction or matter.

Consequences of failing to disclose

106(1)      If a director does not make the required disclosure,

(a) the director is accountable to the condominium corporation for any profit or gain realized from the agreement or transaction; and

(b) the agreement or transaction is voidable at the option of the condominium corporation.

Confirmation of agreement or transaction by owners

106(2)      Despite subsection (1), the director is not accountable to the condominium corporation for any profit or gain realized from the agreement or transaction and the agreement or transaction is not voidable by reason only of the director's interest in it if

(a) the director acted honestly and in good faith with a view to the corporation's best interests when the agreement or transaction was entered into;

(b) the agreement or transaction is confirmed or approved at a general meeting of unit owners by a vote of the unit owners who hold the specified percentage of voting rights in the corporation voted by those unit owners present in person or by proxy at the meeting; and

(c) the nature and extent of the director's interest in the agreement or transaction are disclosed in reasonable detail in the notice of the meeting to vote on the agreement or transaction.

Disclosure of interest by officer

107(1)      An officer who is not also a director but who has a direct or indirect interest in an agreement or transaction or a matter described in clause 105(1)(b) must disclose in writing to the corporation the nature and extent of that interest.

Application to officer

107(2)      Sections 105 and 106 apply to an officer who is not a director as if each reference to a director were a reference to an officer.

Reliance and Indemnification

Reliance on statements and reports

108         If a director or officer relies in good faith on

(a) the condominium corporation's financial statements that

(i) an auditor in a written report,

(ii) a financial officer of the corporation, or

(iii) a manager under a property management agreement,

represents to the director or officer as presenting fairly the corporation's financial position in accordance with generally accepted accounting principles; or

(b) a report or opinion of a lawyer, accountant, engineer, appraiser or other person whose profession lends credibility to the report or opinion;

the director or officer is not in breach of his or her duty to act honestly and in good faith with a view to the best interests of the corporation.

Indemnification

109(1)      A condominium corporation must indemnify its directors or officers and their heirs and legal representatives for any liability and costs incurred by the director or officer as a result of any action or proceeding brought against him or her in respect of anything that he or she has done, omitted to do or permitted in carrying out his or her duties or performing his or her functions.

No indemnification for breach of duty

109(2)      Despite subsection (1), the condominium corporation must not indemnify a director or officer who is found to be in breach of his or her duty to act honestly and in good faith with a view to the best interests of the corporation.

Reader's aid

109(3)      For provisions relating to liability insurance for directors and officers, see subsection 187(2).

MEETINGS

Annual General Meetings

Annual general meeting

110(1)      Within six months after the end of each fiscal year of a condominium corporation, the board must hold a general meeting of unit owners.

Waiver of annual general meeting

110(2)      The board is not required to hold an annual general meeting if, before the date on which the meeting must be held, all unit owners entitled to vote

(a) waive, in writing, the requirement to hold the meeting; and

(b) give their written consent to resolutions that elect a new board by acclamation or deal with any other business.

Reader's aid

110(3)      For provisions relating to the requirement to hold the first general meeting, see section 72.

Election of directors at annual general meeting

111(1)      At each annual general meeting, the directors must be elected by the unit owners entitled to vote who are present in person or by proxy at the meeting.

By-laws may provide for longer terms

111(2)      Despite subsection (1), the condominium corporation's by-laws may provide for a longer term of office for some or all of the directors.

Exception

111(3)      This section does not apply to

(a) the first general meeting; and

(b) the election of two directors to the declarant's board under section 69.

Right to raise matters for discussion

112(1)      At an annual general meeting, a unit owner may raise for discussion any matter relevant to the business or affairs of the condominium corporation.

Reader's aid

112(2)      For provisions relating to votes held on matters on notice, see section 124.

Special General Meetings

Special general meeting called by board

113(1)      At any time, a board may call and hold a special general meeting of unit owners to deal with any business.

Special general meeting need not be called by board

113(2)      Despite subsection (1), the board may deal with any business in accordance with a resolution of the unit owners without calling and holding a special general meeting if all unit owners entitled to vote waive the requirement to hold the meeting and give their written consent to that resolution.

Validity and effectiveness of resolution

113(3)      The resolution referred to in subsection (2) is as valid as if it had been passed at a special general meeting and is effective from the date specified in the resolution as long as the date is not before the date on which the first unit owner signed the resolution.

Special general meeting requested by unit owners

114(1)      A unit owner may request that a special general meeting be held by giving the condominium corporation a written request signed by those unit owners entitled to vote who, at the time of the request, own at least 25% of the units.

Reader's aid

114(2)      For provisions relating to the request for a special general meeting by a unit owner before the turn-over meeting is held, see section 74.

Information to be included in meeting request

114(3)      The written request for a special general meeting

(a) must state the nature of the business to be dealt with in enough detail to allow a unit owner to determine whether he or she should attend the meeting or appoint a proxy; and

(b) if the business to be dealt with includes the removal of a director, must include the name of the director and the reason for the removal.

Board receives request for special general meeting

115(1)      Upon receiving a request for a special general meeting, a board must

(a) call and hold the special general meeting within 35 days; or

(b) if provided for in the request or consented to in writing by the unit owners who signed the request, add the business to be dealt with at the special general meeting to the agenda for the next annual general meeting.

Board does not comply

115(2)      If the board does not comply with subsection (1), any unit owner who signed the request may call a special general meeting, which must be held within 45 days after the day on which it is called.

Reimbursing costs

115(3)      Upon request, the condominium corporation must reimburse a unit owner who calls the special general meeting for the reasonable meeting costs incurred.

Notice of Meetings

Required content for meeting notice

116(1)      A notice of a general meeting of unit owners must

(a) be in writing;

(b) specify the meeting date, time and place;

(c) specify the business to be dealt with at the meeting in enough detail to allow a unit owner to determine whether he or she should attend or appoint a proxy;

(d) if applicable, be accompanied by a copy of each proposed change to the condominium corporation's declaration, by-laws, rules or agreements to be discussed at the meeting or a summary of those changes; and

(e) if applicable, be accompanied by the unit owner's request for a special general meeting.

Minimum time period for giving notice of meetings

116(2)      When this Act requires a meeting to be held to consider a matter that is to be determined by obtaining the written consent of unit owners, the minimum time period for giving notice of the meeting is 30 days.

By-laws may specify time period

116(3)      The by-laws of a condominium corporation may specify the time period for giving notice of a meeting, which may be no less than 30 days for a meeting described in subsection (2).

Notice to be given to unit owners and mortgagees

116(4)      The notice must be given within the required number of days to

(a) each unit owner who has notified the condominium corporation in writing of the owner's name and address for the giving of notices and other documents; and

(b) each unit mortgagee who

(i) under the terms of the mortgage is authorized to exercise the right of the unit owner to vote or give or withhold consent, and

(ii) has provided the condominium corporation with written notice of its name and address for the giving of notices and other documents.

Waiving right to object

116(5)      A unit owner or unit mortgagee who attends or is represented by proxy at a meeting is deemed to have waived the right to object to a failure to give the required notice, unless the unit owner or unit mortgagee expressly objects to the failure at the meeting.

Reader's aid

116(6)      For provisions relating to the manner of giving notices and other documents, see section 285.

Quorum and Attendance at Meetings

Quorum

117(1)      Subject to subsections (2) and 118(3), a quorum for dealing with business at a general meeting of unit owners consists of

(a) those unit owners who hold at least 33% or, if a greater percentage is specified in the declaration, that percentage, of the voting rights in the condominium corporation and are present in person or by proxy at the meeting; or

(b) if there are fewer than four units or four unit owners, those unit owners who hold at least 66% or, if a greater percentage is specified in the declaration, that percentage, of the voting rights in the condominium corporation and are present in person or by proxy at the meeting.

Determining quorum

117(2)      For the purpose of determining whether there is a quorum, a unit owner who is prevented by a by-law under clause 167(1)(y) from exercising his or her voting rights is deemed not to have voting rights, and the voting rights that he or she would otherwise hold are to be ignored.

Adjournment

118(1)      A board may adjourn a general meeting of unit owners to another date and time and, if necessary, place if a quorum is not present within 30 minutes after the time specified in the notice.

Condominium corporation must notify voters about adjournment

118(2)      If the meeting has been adjourned, the condominium corporation must take reasonable steps to notify the unit owners entitled to vote, the unit mortgagees entitled to notice and any proxies present at the meeting that it has been adjourned to another date, time and place.

Quorum at next meeting

118(3)      If, on the day to which the meeting is adjourned, a quorum is not present within 30 minutes after the time specified in the notice, the unit owners entitled to vote who are present in person or by proxy at the meeting constitute a quorum.

Attendance by teleconference

119(1)      A condominium corporation may, by by-law, provide for attendance at a general meeting of unit owners by telephone or any other communication system that allows concurrent participation.

Present in person

119(2)      A person who attends a meeting as described in subsection (1) is present in person at the meeting.

VOTING AND GIVING AND WITHHOLDING CONSENT

Method of voting

120         A right to vote may be exercised in person or by proxy at a general meeting of unit owners.

Request for recorded vote

121         A unit owner entitled to vote at a general meeting of unit owners may request that a recorded vote be held on any item scheduled for a vote either before or promptly after the vote.

Majority voting

122         Unless a greater percentage is specified in this Act or a condominium corporation's declaration, a question proposed for consideration by unit owners at a general meeting is determined by a majority of the voting rights in the corporation that are voted by those unit owners who are present in person or by proxy at the meeting and are entitled to vote.

Vote must take place at properly called meeting

123         A vote is valid only if it takes place at a properly called general meeting of unit owners at which a quorum is present.

Voting only on matters on notice

124(1)      A vote may not be taken at a general meeting of unit owners on any matter other than a routine matter or procedure unless that matter was clearly specified in the meeting notice.

Exception

124(2)      Subsection (1) does not apply if all unit owners who are entitled to vote are present in person or by proxy at the meeting and no unit owner, and no unit mortgagee entitled to notice who is present in person or by proxy at the meeting, objects to taking a vote on the matter.

Voting rights in condominium corporation

125         Unit owners have voting rights in a condominium corporation in the proportions allocated to each unit as set out in the corporation's declaration.

Voting, giving or withholding consent by unit mortgagee

126(1)      When

(a) this Act or a condominium corporation's declaration or by-law requires a matter to be determined by the exercise of a unit owner's right to vote or give or withhold consent; and

(b) the terms of a mortgage or other document authorize a unit mortgagee to exercise the right of the unit owner to vote or give or withhold consent;

the unit mortgagee may exercise the right to vote or give or withhold consent only if it has given written notice to the condominium corporation of the mortgage and the address for giving notices and other documents to the mortgagee.

More than one unit mortgagee

126(2)      If two or more unit mortgagees are authorized to exercise a unit owner's right to vote or give or withhold consent under the terms of a mortgage or other document and each has given notice as required under subsection (1), the right to vote or give or withhold consent is exercisable by the unit mortgagee who has priority.

Voting by unit owner

126(3)      If none of the unit mortgagees exercises the right to vote or give or withhold consent, the unit owner may exercise the right if he or she is otherwise entitled to do so.

Voting right to be ignored

127(1)      If, in accordance with a by-law made or amended under clause 167(1)(y), a right to vote or give or withhold consent may not be exercised, the right must be ignored for the purposes of determining whether a resolution requiring an affirmative vote of the unit owners has passed or whether the required consent of unit owners for an action under this Act has been obtained.

Limit to by-law

127(2)      Despite subsection (1), a unit owner who is prevented by a by-law under clause 167(1)(y) from exercising his or her voting rights may do so if the condominium corporation receives payment of the arrears in the contributions to the common expenses with respect to the owner's unit and any costs related to collecting or attempting to collect the amount in arrears before the meeting is held or before the period for obtaining consents has expired.

Proxy

128(1)      A person may appoint a proxy only by written authorization.

Requirement for signed document

128(2)      A condominium corporation's by-laws may require the document to be signed by the person appointing the proxy.

Requirements of proxy document

128(3)      A document appointing a proxy

(a) may be general or for a specific meeting or a specific resolution; and

(b) may be revoked at any time by the person who made the appointment.

Effect of proxy

128(4)      A proxy stands in the place of the person appointing the proxy, and can do anything that a person can do at a meeting, including vote, propose and second motions and participate in the discussion, unless limited by the proxy document.

Limit on who may be a proxy

128(5)      The following persons may not be a proxy of a unit owner who is not a declarant or owner-developer:

(a) an employee or agent of the condominium corporation;

(b) a declarant or an employee or agent of the declarant or a person who does not deal with the declarant at arm's length;

(c) an owner-developer or an employee or agent of the owner-developer or a person who does not deal with the owner-developer at arm's length;

(d) a person who provides management services to the condominium corporation under a property management agreement or that person's employee or agent.

Any proxy document appointing such a person is void.

Authorization to consent

129(1)      When a person's consent is required under this Act, the person may give written authorization for another person to consent on his or her behalf.

Requirement for signed document

129(2)      A condominium corporation's by-laws may require the authorization to be signed by the person giving it.

Document granting authorization to give consent

129(3)      A document granting authorization to give consent on a person's behalf

(a) must be only for a specific matter; and

(b) may be revoked by that person at any time.

Limit on who may be authorized

129(4)      Despite subsection (1), the following persons may not give consent on behalf of a unit owner who is not a declarant or owner-developer:

(a) an employee or agent of the condominium corporation;

(b) a declarant or an employee or agent of the declarant or a person who does not deal with the declarant at arm's length;

(c) an owner-developer or an employee or agent of the owner-developer or a person who does not deal with the owner-developer at arm's length;

(d) a person who provides management services to the condominium corporation under a property management agreement or that person's employee or agent.

Any consent given by such a person is void.

Consent when title transferred

130         If title to a unit is transferred before the end of a period for obtaining the consent of unit owners in relation to any matter under this Act, and the transferor's written consent was not provided before the date of the transfer, the transferee may provide his or her written consent in relation to that matter after the date of the transfer and before the end of that period.

RECORDS

Condominium corporation must keep records

131(1)      A condominium corporation must keep complete and accurate records of the business and affairs of the corporation in accordance with the regulations, including the following records:

(a) a minute book containing the minutes of the annual general meetings, special general meetings and board meetings, including the results of every vote, and every waiver and consent given and every resolution made by the board;

(b) a list of the directors and officers;

(c) a list of unit owners who have notified the corporation in writing of their name, unit address and address for giving notices and other documents;

(d) a list of the addresses for giving notices and other documents to those unit mortgagees who have provided that information to the corporation;

(e) a list of the notices received under section 202 (notification about tenancy agreements);

(f) a list of the notices received under section 209 (notification about commercial lease agreements);

(g) account books showing money received and spent;

(h) the corporation's declaration and plan;

(i) the condominium corporation's by-laws and rules;

(j) every agreement entered into by the corporation or the declarant or the declarant's representative on the corporation's behalf, including every property management agreement, and every deed, lease, licence or easement agreement;

(k) every current and previous insurance policy and the related certificate or memorandum of insurance and every insurance trust agreement;

(l) every decision or court order in an action or proceeding to which the corporation is or was a party;

(m) every record of settlement in a mediation to which the corporation is or was a party;

(n) every decision of an arbitrator in an arbitration to which the corporation is or was a party;

(o) every decision of the Director of Residential Tenancies, and every decision on an appeal, to which the corporation is or was a party;

(p) every legal opinion obtained by the corporation;

(q) the budget and financial statements for the current fiscal year and for the prescribed number of previous years;

(r) every auditor's report;

(s) every income tax return of the corporation and any other records filed or to be filed with the government, the government of Canada or a municipal government;

(t) all correspondence sent and received by the corporation or the board;

(u) all financial records, including bank statements, cancelled cheques and certificates of deposit;

(v) every disclosure statement issued under clause 51(2)(b);

(w) every status certificate issued under section 61;

(x) all other records and documents provided to the corporation by the declarant under sections 77 to 79 (turn-over meeting);

(y) the records specified in the by-laws;

(z) the records required by the regulations.

Maintaining records

131(2)      The condominium corporation must maintain the records referred to in subsection (1) for the prescribed time period and in the prescribed manner.

Change in address

131(3)      A person whose name is on the list of unit owners or unit mortgagees entitled to notice must promptly notify the condominium corporation in writing of each change to his or her address and, if applicable, his or her fax number or e-mail address for giving notices and other documents.

Condominium corporation must provide copies

132(1)      Upon request, a condominium corporation must, within a reasonable time, provide copies of its records to a unit owner, unit mortgagee, buyer or prospective buyer or an agent of any of them for examination. The corporation may charge a reasonable fee for labour and copying charges.

Exception

132(2)      Subsection (1) does not apply to the following records:

(a) records relating to the employees of the condominium corporation, other than records about an employee's job classification, salary range, benefits, responsibilities or expense accounts;

(b) records relating to any insurance investigation involving the condominium corporation;

(c) records relating to any court action or proceeding or contemplated court action or proceeding involving the condominium corporation;

(d) records relating to a specific unit or unit owner, unless the request is made by or on behalf of that owner or a mortgagee of that owner's unit;

(e) any prescribed records.

OTHER MATTERS

Condominium corporation must provide information

133(1)      Upon the request of any person, a condominium corporation must, without fee, provide the names and addresses for giving notices or other documents to

(a) the corporation's directors and officers;

(b) the person or persons responsible for the management of the property under a property management agreement;

(c) the person to whom the corporation has delegated the responsibility for issuing status certificates; and

(d) any other prescribed person.

Change of address

133(2)      A condominium corporation must amend its declaration when it changes the address for giving notices and other documents to it.

Reader's aid

133(3)      For provisions relating to the amendment of a condominium corporation's declaration, see subsections 25(3) and (4).

Property management agreements

134(1)      When a property management agreement is terminated, the property manager must promptly return to the condominium corporation all records and documents, including correspondence relating to the corporation, and any common assets, that are in the property manager's possession or control.

Change of address for service

134(2)      A property manager must promptly notify the condominium corporation of any change to its address for service.

Reader's aid

134(3)      For provisions relating to the termination of property management agreements entered into before the turn-over meeting, see section 81.

Prohibition — pets

135(1)      A prohibition in a declaration, by-law or rule against the keeping of a pet — other than a prohibition set out in a proposed declaration, proposed by-law or proposed rule — does not apply to a pet living with a unit owner or occupant of a unit, other than a tenant, at the time that the amendment to the declaration is registered in accordance with Part 2 or the by-law or rule takes effect.

Application to pets kept by tenants

135(2)      A prohibition in a declaration, by-law or rule against the keeping of a pet, including in a proposed declaration, proposed by-law or proposed rule, does not apply to a pet authorized by a landlord and living with a tenant at the time the prohibition first takes effect.

All units in property owned by same person

136(1)      If all the units in a property are owned by the same person, the following rules apply:

1.

A written resolution signed by that person is as effective as a resolution approved by a vote at a general meeting of unit owners.

2.

That person present in person or by proxy at a general meeting of unit owners constitutes the meeting.

3.

When that person's consent is required, it may be given without notice and without a meeting being held if one is required by this Act.

4.

The board is not required to hold an annual general meeting.

5.

Subject to the regulations, Part 7 (Condominium Corporation Financial Matters) does not apply.

6.

A declaration, by-law or rule of the condominium corporation does not apply to a tenant of a rental unit in that property.

7.

Subject to the regulations, Part 9 (Changes to Common Elements and Common Assets and the Maintenance and Repair of Units and Common Elements) does not apply.

8.

The condominium corporation is not required to obtain and maintain property and liability insurance under Part 10 (Insurance and Warranties).

9.

Subject to the regulations, Part 11 (Residential Tenancy Agreements and Commercial Leases) does not apply.

10.

Subject to the regulations, Part 12 (Compliance and Dispute Resolution) does not apply.

Additional rules may be prescribed

136(2)      In addition to the rules listed in subsection (1), the regulations may prescribe other rules that apply to a property in which all the units are owned by the same person.

PART 7

CONDOMINIUM CORPORATION FINANCIAL MATTERS

Overview

137         This Part governs various financial matters relating to the operation of a condominium corporation and its management of the property, including the following:

(a) the common expenses and the contributions of unit owners to them;

(b) the corporation's reserve fund and the contributions of unit owners to the fund;

(c) the corporation's budget and financial statements;

(d) the handling of money by others in trust for the corporation;

(e) the appointment and role of an auditor;

(f) the corporation's lien against an owner's unit;

(g) the rights of a unit mortgagee.

COMMON EXPENSES

Paying common expenses

138(1)      A condominium corporation must pay the common expenses.

Common expenses fund

138(2)      The condominium corporation must establish and maintain a fund for the payment of common expenses, referred to as the "common expenses fund".

Fund is common asset

138(3)      The common expenses fund is a common asset of the condominium corporation.

Assessing and collecting contributions to common expenses

139(1)      A condominium corporation must assess and collect the unit owners' contributions to the common expenses in accordance with this Act and the corporation's declaration and by-laws.

Contribution to common expenses

139(2)      For the purpose of subsection (1), the condominium corporation must, for each fiscal year,

(a) determine the amount required for the common expenses fund; and

(b) determine the contribution of each unit owner by apportioning the required amount among the unit owners in the proportions specified in the declaration.

Common expenses may be different

139(3)      If provided for in the condominium corporation's declaration, the types of common expenses in respect of which unit owners are obligated to contribute may be different for different units or types of units.

Credited to common expenses fund

140(1)      Each contribution to the common expenses of a condominium corporation must be credited to its common expenses fund.

Restricted use of common expenses fund

140(2)      Money in the common expenses fund may be used only to pay common expenses.

Unit owners must contribute

141(1)      A unit owner must contribute to the common expenses in the amount assessed by the condominium corporation under subsection 139(2).

When contributions payable

141(2)      A unit owner's contribution to the common expenses is payable in instalments at the frequency specified in the by-laws, or, if none is specified, at the frequency specified by the board.

Unit owner not exempt from obligation to contribute

141(3)      A unit owner is not exempt from the obligation to contribute to the common expenses payable in respect of his or her unit as specified in the declaration even if

(a) the unit owner has waived or abandoned the right to use all or part of the common elements; or

(b) the condominium corporation's declaration, by-laws or rules restrict the unit owner from using all or part of the common elements.

Unit owner not required to contribute in certain circumstances

141(4)      A declaration may provide that a unit owner is not obligated to contribute to the common expenses if the owner's unit is rendered uninhabitable because of an insured loss.

Contributions to common expenses by declarant

141(5)      Once unit owners are required to contribute to the common expenses of a condominium corporation, the declarant must also contribute to the common expenses in respect of the units that he or she owns unless otherwise provided for in the regulations.

Board may authorize special assessment

142(1)      If the by-laws of a condominium corporation so provide, and the board determines during a fiscal year that the common expenses fund will not be sufficient pay the common expenses for that year, the board may authorize a special assessment for additional contributions to the common expenses for that year.

Details of assessment

142(2)      When approving the special assessment, the board must specify the purpose of the assessment, the amount of it, whether it will be payable in instalments and, if so, the frequency of the instalments.

Apportionment of special assessment

142(3)      The amount of a special assessment must be apportioned among the unit owners in the same proportions as the annual assessment under subsection 139(2).

Notice of special assessment

142(4)      Within a reasonable time after the special assessment has been authorized by the board, the condominium corporation must give each unit owner a written notice setting out the following information:

(a) the purpose of the special assessment;

(b) the total amount of the special assessment;

(c) an explanation of the need for the special assessment;

(d) the total amount to be contributed by the unit owner and, if it is payable in instalments, the amount and frequency of the instalments;

(e) the date on which the unit owner's contribution is due or, if it is payable in instalments, the dates on which they are due;

(f) any other information required by the regulations.

RESERVE FUND

Reserve fund

143(1)      A condominium corporation must establish and maintain a reserve fund, the purpose of which is to provide a sufficient amount that may reasonably be expected to fund the corporation's obligations to maintain and repair as required by Part 9 and the corporation's declaration.

Interpretation — repairs and replacement

143(2)      The types of repairs and replacements that may be funded by the reserve fund are ones that may reasonably be expected to be necessary over time but that are not normally required on an annual basis. The following are examples of such repairs and replacements:

(a) major repairs to the roof or its replacement;

(b) major repairs to, or replacement of, the structure or exterior of a building on the property;

(c) major repairs to, or replacement of, the heating, air conditioning, electrical or plumbing systems;

(d) major repairs to, or replacement of, an elevator;

(e) major repairs to, or replacement of, the laundry, recreational or parking facilities;

(f) major repairs to, or replacement of, the sidewalks or roads;

(g) major repairs to, or replacement of, the sewer system or utility service connection to the property.

Use of reserve fund limited

143(3)      The reserve fund may be used only for the purpose for which it is established.

Exception

143(4)      Despite subsection (3), if the most recent reserve fund study indicates that there is more money in the reserve fund than is required for the purpose for which the fund was established, the reserve fund may be used for other purposes but only if all unit owners give their written consent to do so.

Unit owners' consent not required

143(5)      Subject to subsections (3) and (4), the board does not require the unit owners' consent to make a payment out of the reserve fund.

Payment into the fund

143(6)      The following are to be paid into the reserve fund:

(a) the contributions of the unit owners to the reserve fund;

(b) any other amounts designated in the condominium corporation's budget or by-laws to be paid into the reserve fund.

Reserve fund not to be distributed

143(7)      No part of the reserve fund is to be

(a) refunded or distributed to a unit owner

(i) except on a withdrawal in accordance with section 270 (distribution of common assets), and

(ii) in the case of a leasehold condominium corporation's reserve fund, except on the expiry or termination of the property lease in accordance with section 284 (distribution of common assets); or

(b) distributed to a unit mortgagee.

No return of contributions on sale of unit

143(8)      To avoid doubt, on the sale of a unit, the seller is not entitled to a return of his or her contributions to the reserve fund from the condominium corporation.

Reserve fund is common asset

143(9)      The reserve fund is a common asset.

Total annual contribution to be specified in budget

144(1)      For each fiscal year, a condominium corporation must

(a) determine the total contribution to be made to the reserve fund;

(b) specify that amount in the budget; and

(c) determine the amount of each unit owner's contribution by apportioning the amount among the unit owners

(i) in the proportions specified in the declaration, or

(ii) if no proportions are specified, in the proportions specified in the declaration for contributions to the common expenses.

Reserve fund balance recommendation

144(2)      For the purpose of determining the total contribution to the reserve fund, the condominium corporation must consider the reserve fund balance recommended in the most recent reserve fund study or update.

Condominium corporation must report to unit owners

144(3)      At least once a year at a general meeting of unit owners, the condominium corporation must

(a) report to the unit owners on the amount that is maintained in the reserve fund; and

(b) review the most recent reserve fund study or update with the unit owners.

Unit owners must contribute

145(1)      A unit owner must contribute to the reserve fund in the amount assessed by the condominium corporation under clause 144(1)(c).

Contributions to reserve fund by declarant

145(2)      A declarant who owns one or more units must contribute to the reserve fund in respect of each unit in the same way as any other unit owner is required to contribute.

Unit owner not exempt from obligation to contribute

146         A unit owner is not exempt from the obligation to contribute to the reserve fund even if

(a) the unit owner has waived or abandoned the right to use all or part of the common elements; or

(b) the condominium corporation's declaration, by-laws or rules restrict the unit owners from using all or part of the common elements.

Investment — reserve fund account

147(1)      The money in a reserve fund account may be invested only in accordance with the regulations.

Interest forms part of fund

147(2)      Any interest or income earned on the money in the reserve fund account becomes part of the fund.

Reserve fund study

148(1)      Subject to the regulations, a condominium corporation must ensure that a reserve fund study is conducted.

Purpose of study

148(2)      The purpose of the reserve fund study is to determine the appropriate amount required for the reserve fund based on the estimated cost of major repairs to or replacement of the common elements, such as those referred to in subsection 143(2), and the expected life span of the common elements.

Update

148(3)      Subject to the regulations, the condominium corporation must ensure that the reserve fund study is updated.

Cost of reserve fund study

148(4)      The cost of a reserve fund study or update is a common expense.

Non-application

148(5)      Subsection (4) does not apply to the cost of a reserve fund study or update required under section 50 (condominium conversion, delayed sale of unit).

BUDGET AND FINANCIAL STATEMENTS

Board to notify unit owners — change in contributions to common expenses

149(1)      Within 14 days after the board approves a budget, a condominium corporation must give each unit owner

(a) written notice of any change to the unit owner's contribution to the common expenses; and

(b) upon request, a copy of the approved budget.

Unit mortgagee may request notice, copy of budget

149(2)      A unit mortgagee may request that it be given written notice of the change and a copy of the approved budget.

Contents of financial statements

150(1)      A condominium corporation must prepare financial statements that include

(a) a balance sheet;

(b) a statement of general operations;

(c) a statement of reserve fund operations;

(d) the prescribed information relating to the reserve fund study and any update to it; and

(e) any additional statements and information required by the regulations or the corporation's by-laws.

Financial statements to be made available to unit owners

150(2)      The condominium corporation must make copies of the financial statements available to the unit owners as soon as practicable after the statements are prepared.

HANDLING MONEY

Condominium corporation's accounts

151(1)      A condominium corporation must maintain at a financial institution in Manitoba

(a) one or more accounts in the corporation's name that are designated as general accounts; and

(b) an account in the corporation's name that is designated as the reserve fund account.

Designated reserve fund account

151(2)      A fund used for the purpose mentioned in subsection 143(1) is a reserve fund even if the account in which it is held is not designated as a reserve fund.

Definition

151(3)      In this section, "financial institution" means

(a) a bank;

(b) a credit union; or

(c) a trust company or loan company authorized by law to accept money for deposit and carrying deposit insurance in accordance with the Canada Deposit Insurance Corporation Act.

Investment — general account

152(1)      Money in a general account may be invested only in accordance with the regulations.

Reader's aid

152(2)      For a provision relating to the investment of money in the reserve fund, see subsection 147(1).

Money held in trust

153(1)       A person who receives money on behalf of, or for the benefit of, a condominium corporation must hold the money and any earned interest in trust for the corporation.

Money deposited in general account

153(2)      A person who receives money on behalf of, or for the benefit of, a condominium corporation must pay the money and any earned interest into

(a) a general account of the corporation, unless the money was received as a contribution to its reserve fund; or

(b) the reserve fund account of the corporation, if the money was received as a contribution to its reserve fund.

Records

154(1)      A person who receives money on behalf of, or for the benefit of, a condominium corporation must keep accurate and complete records relating to its receipt and disposition.

Board may access records

154(2)      The board and any person authorized by it may examine and make copies of those records.

Examination by others

154(3)      A unit owner or unit mortgagee may, with reasonable notice, examine the records kept by a person who receives money on behalf of, or for the benefit of, a condominium corporation.

Common surplus

155(1)      If a condominium corporation has a common surplus, the surplus may be paid into or retained in the common expenses fund or paid into the reserve fund.

Definition

155(2)      In this section, "common surplus" means the amount by which money received or receivable by a condominium corporation, other than contributions to the reserve fund, exceeds money paid or payable by the corporation, other than payments out of the reserve fund.

THE AUDITOR

Appointing an auditor

156(1)      At the annual general meeting held after the turn-over meeting has taken place and at each subsequent annual general meeting, unit owners must appoint an auditor who meets the requirements in subsection (2) and the regulations.

Who may not be an auditor

156(2)      The following persons may not be appointed as the auditor:

(a) a director, officer or employee of the condominium corporation;

(b) a manager under a property management agreement with the condominium corporation;

(c) a partner, employer or employee of a person referred to in clause (a) or (b).

Term of appointment

156(3)      The term of the auditor's appointment ends

(a) at the close of the next annual general meeting; or

(b) if unit owners do not appoint an auditor at that annual general meeting, when the next auditor is appointed.

Exception

156(4)      This section does not apply if

(a) a condominium corporation consists of fewer than 10 units; and

(b) all the unit owners consent in writing to dispense with the audit until the next annual general meeting.

Reader's aid

156(5)      For provisions relating to the appointment of an auditor at the first general meeting, see section 73.

Auditor unable to complete term

157(1)      If an auditor is unable to complete his or her term, unit owners must, at a special general meeting called by the board, appoint another person as auditor who meets the requirements in subsection 156(2) and the regulations.

Term of replacement

157(2)      The term of the replacement auditor's appointment is until

(a) the close of the next annual general meeting; or

(b) a successor is appointed;

whichever is later.

Board to act if unit owners do not

157(3)      If unit owners do not appoint a replacement auditor, the board must do so without delay.

No interest in agreement or transaction allowed

158         An auditor must not have a direct or indirect interest in any agreement or transaction to which the condominium corporation is a party, other than in respect of the auditor's employment or engagement.

Auditor's report

159         An auditor must report to the unit owners on the financial statements prepared by the condominium corporation. The report must meet the prescribed requirements.

Right of access

160(1)      An auditor may

(a) access the condominium corporation's records or documents at any time; and

(b) request that the condominium corporation's directors, officers, employees and agents, and those persons who have contracted with the corporation to manage the property or the common assets, provide any information or give any explanations that the auditor considers necessary to make the report.

Person must comply with request

160(2)      If the auditor makes a request under clause (1)(b), the person must comply with the request.

Notice of meetings

161(1)      A condominium corporation must give the auditor written notice of each general meeting of unit owners and copies of any documents or information to be provided to unit owners at the meeting.

Right to attend meeting

161(2)      The auditor is entitled to attend a general meeting of unit owners and to be heard with respect to any business at that meeting that concerns the auditor's duties or the auditor's report.

LIENS

Lien upon default

162(1)      If a unit owner fails to contribute to the common expenses or reserve fund, the condominium corporation has a lien against the owner's unit and its share in the common elements for

(a) the unpaid amount;

(b) the interest owing on the unpaid amount; and

(c) the reasonable legal costs and expenses incurred by the corporation in collecting or attempting to collect the unpaid amount, including the costs of preparing and registering the lien and its discharge.

Lien expires unless registered

162(2)      A lien under this section expires three months after the default that gave rise to the lien occurred unless, within those three months, the condominium corporation submits a notice of the lien to the district registrar for registration, in a form approved by the district registrar.

Amounts covered by registered lien

162(3)      A registered lien secures the payment of

(a) each amount owing under all the condominium corporation's liens against the owner's unit that have not expired at the time of registration;

(b) each amount that the unit owner fails to contribute to the common expenses or reserve fund as it comes due after the lien is registered;

(c) all interest owing on the amounts described in clauses (a) and (b); and

(d) all reasonable legal costs and expenses incurred by the condominium corporation to collect or attempt to collect the amounts described in clauses (a) to (c) including the costs of preparing and registering the lien and its discharge.

Unit owner to be notified before registration

162(4)      At least seven days before a lien is registered, the condominium corporation must give the unit owner written notice of the lien.

Exception

162(5)      Despite subsection (4), the condominium corporation may register the lien without prior written notice to the unit owner if the corporation is aware that a sale of the unit is pending.

Enforcing lien

162(6)      The condominium corporation has the right to enforce the registered lien in the same manner as a mortgage is enforced under The Real Property Act.

Discharging lien

163(1)      Upon receiving payment in full of the amounts covered by a registered lien, a condominium corporation must

(a) prepare a lien discharge in a form approved by the district registrar and submit it to the district registrar for registration;

(b) give written notice to the unit owner affected by the lien that the lien has been discharged; and

(c) give the unit owner a copy of the status of title document issued after the discharge is registered.

Paying to discharge lien

163(2)      A holder of an encumbrance — other than a unit mortgagee — may pay the amount necessary to discharge the condominium corporation's registered lien and may

(a) in the case of a money encumbrance, add the amount it has paid to discharge the lien to its encumbrance and collect that amount from the unit owner

(i) as money in default under the encumbrance, or

(ii) by an action for debt; or

(b) in the case of any other encumbrance, collect the amount from the unit owner by an action for debt.

Lien priority

164(1)      A condominium corporation's registered lien has priority over every registered and unregistered encumbrance even though the encumbrance existed before the lien arose. But the lien does not have priority over

(a) a claim of the Crown (other than by way of a mortgage);

(b) a claim for taxes, charges, rates or assessments levied or recoverable under The Municipal Act or The City of Winnipeg Charter; or

(c) a prescribed lien or claim.

Notice — lien to encumbrancers

164(2)      On or before the day the lien is submitted for registration, the condominium corporation must give written notice of the lien to each encumbrancer whose encumbrance is registered against the title of that unit.

Effect of no notice

164(3)      Subject to subsection (4), the lien loses its priority over an encumbrance unless the condominium corporation gives the required notice to the encumbrancer.

Priority if notice is late

164(4)      If the condominium corporation gives notice of a lien to an encumbrancer after the day the lien is registered, the lien has priority over the encumbrance only to the extent of

(a) the arrears of common expenses or reserve fund contributions that accrued during the three months before the day notice is given and that continue to accrue after that day;

(b) the interest owing on the arrears; and

(c) the reasonable legal costs and expenses incurred by the corporation to collect or attempt to collect the arrears.

Definition

164(5)      In this section, "encumbrance" means a claim affecting land that secures the payment of money or the performance of any other obligation and includes a charge, mortgage or lien.

UNIT MORTGAGEES

Unit mortgagee's rights

165         Every mortgage of a unit is deemed to contain the following provisions:

1.

The unit mortgagee has the right to collect the unit owner's contribution to the common expenses or reserve fund from the unit owner. It must promptly pay the amount collected to the condominium corporation on the unit owner's behalf.

2.

If the unit mortgagee does not exercise its right under paragraph 1, the unit owner's default on the obligation to contribute to the common expenses or reserve fund constitutes a default under the mortgage.

3.

If the unit owner defaults on the obligation to contribute to the common expenses or reserve fund, the unit mortgagee has the right to pay to the condominium corporation

(a) the amounts of the unit owner's contribution to the common expenses or reserve fund that from time to time fall due and are unpaid in respect of the unit;

(b) all interest owing on the unpaid amount and all reasonable legal costs and reasonable expenses that the condominium corporation incurs to collect or attempt to collect the amount described in clause (a), including the costs of preparing and registering a lien and its discharge.

4.

If the unit mortgagee makes payments under paragraph 3, those payments are to be added to the debt secured by the mortgage and are payable with interest at the rate payable on the mortgage.

5.

If, after receiving a demand for reimbursement, the unit owner fails to fully reimburse the unit mortgagee, the mortgage immediately becomes due and payable at the unit mortgagee's option.

Statement of common expenses, reserve fund

166          A condominium corporation must, on request and free of charge, provide to a unit mortgagee

(a) a written statement setting out the amount of the unit owner's contributions to the common expenses and the reserve fund;

(b) if there is a default in either of those payments, a written statement of the amount in default; and

(c) the amount of any lien registered by the corporation in respect of that unit.

PART 8

CONDOMINIUM CORPORATION BY-LAWS AND RULES

BY-LAWS

Power to make by-laws

167(1)      A condominium corporation may, by resolution of the board, make, amend or repeal by-laws

(a) respecting the governance of the corporation and the management and conduct of its affairs;

(b) specifying duties of the corporation in addition to the duties set out in this Act and the corporation's declaration;

(c) governing the number, eligibility, qualification, nomination, election, resignation, removal and remuneration of the directors;

(d) governing the appointment, hiring, remuneration, functions, duties, resignation and removal of officers, employees and agents of the corporation;

(e) establishing board committees and governing their operation;

(f) providing for the reimbursement of expenses incurred by directors, officers, agents and employees of the corporation in attending to its business;

(g) respecting the calling and conduct of board meetings and specifying the meetings that the board is required to hold;

(h) respecting the calling and conduct of general meetings of unit owners, including specifying the time period for giving notice of a meeting;

(i) respecting the holding of a vote at a general meeting of unit owners;

(j) authorizing the corporation to lease a part of the common elements, other than those parts of the common elements of which a unit owner has exclusive use;

(k) authorizing the corporation to grant an easement or licence in respect of the common elements or to surrender such an easement or licence;

(l) specifying records to be prepared, maintained and retained by the corporation;

(m) specifying additional information about the corporation's financial position that is to be provided to unit owners at an annual general meeting;

(n) governing the management of the property;

(o) governing the use and management of the common assets;

(p) regulating the maintenance of the units and common elements;

(q) restricting the use that persons — other than occupants of the units — may make of the common elements and the common assets, which may be subject to a mutual use agreement;

(r) regulating the assessment and collection of contributions to the common expenses;

(s) providing for the assessment and collection of additional contributions to the common expenses as a special assessment referred to in section 142;

(t) if permitted to do so by the corporation's declaration, specifying the amount of a levy to be imposed on unit owners who rent or lease their units, the account in which it is to be kept, the time by which the levy must be paid and the rate, or a method of determining the rate, at which interest is payable on overdue amounts;

(u) fixing the rate at which interest is payable on unpaid contributions to the common expenses and the reserve fund;

(v) governing the handling of complaints related to the property;

(w) placing reasonable restrictions on activities relating to the sale of a unit, including locations for the posting of signs and times for the showing of the property and the holding of open houses;

(x) placing reasonable restrictions on activities relating to renting or commercially leasing a unit;

(y) respecting the exercise of a unit owner's right to vote or give or withhold consent if any contributions to the common elements or reserve fund payable in respect of his or her unit are in arrears for at least 30 days, including preventing the unit owner from exercising the right;

(z) setting the maximum amount for a fine, the maximum number of times a fine may be imposed and the maximum frequency at which a fine may be imposed for a continuing contravention.

By-laws to be reasonable and consistent with Act, declaration

167(2)      A by-law, including a by-law made before the coming into force of this section,

(a) must be reasonable; and

(b) is not effective to the extent that it conflicts with this Act or the condominium corporation's declaration.

Additional by-law power for certain condominium corporations

167(3)      A condominium corporation created before the day this section came into force may, by board resolution, make, amend or repeal a by-law specifying types of units and describing a standard unit for each type in order to determine responsibility for repairing improvements after damage and insuring them.

When by-law effective

168(1)      A by-law does not take effect until

(a) it is confirmed, with or without amendment, by a vote of the unit owners who hold the specified percentage of the voting rights in the condominium corporation voted by those unit owners present in person or by proxy at the meeting to consider the by-law; and

(b) a copy of the by-law is registered by the district registrar.

Registration with district registrar

168(2)      When a by-law is made, amended or repealed, the condominium corporation must submit to the district registrar for registration a copy of the by-law or amendment or a copy of either the resolution repealing the by-law or an extract of the meeting minutes respecting the vote on the repeal, certified by an authorized director or officer of the corporation as a true copy. It must be accompanied by a statutory declaration of an authorized director or officer of the corporation that the by-law or amendment was made, or the repeal was done, in accordance with this Act and the corporation's declaration and by-laws.

Copy of by-laws to unit owners

168(3)      As soon as reasonably practicable after registration, the condominium corporation must give a copy of the by-law, amendment, resolution or extract of the meeting minutes to each unit owner and each unit mortgagee entitled to notice.

RULES

Power to make rules

169(1)      A condominium corporation may, by resolution of the board, make, amend or repeal rules respecting the use of the common elements and units to

(a) promote the safety, security or welfare of the unit owners, tenants and other occupants;

(b) promote the security of the common elements, units and common assets;

(c) prevent unreasonable interference with the use of the common elements, units or common assets;

(d) maintain the aesthetic appeal of the property; and

(e) promote the fair distribution of services and amenities and the use of facilities.

Rules to be reasonable and consistent with Act, etc.

169(2)      A rule, including a rule made before the coming into force of this section,

(a) must be reasonable; and

(b) is not effective to the extent that it conflicts with this Act or the condominium corporation's declaration or by-laws.

What is a reasonable rule?

169(3)      A rule is reasonable if

(a) it is reasonably related to the purpose under subsection (1) for which it is intended;

(b) it applies to all unit owners, tenants and other occupants in a fair manner; and

(c) it is clearly expressed so as to inform a person of what he or she must or must not do to comply with it.

Notice

170(1)      Before a rule or its amendment or repeal may take effect, a board must give each unit owner notice of the proposed rule, amendment or repeal.

Content of notice

170(2)      The notice must include

(a) a copy of the proposed rule or amendment or a copy of the rule to be repealed;

(b) a statement that unit owners have the right to request a special general meeting under section 114 within 30 days after the notice is given; and

(c) a statement that the rule becomes effective on the date determined under subsection (3).

When rule effective

170(3)      A rule, amendment or repeal takes effect as follows:

(a) if unit owners request a special general meeting within the 30-day period, the rule takes effect only if it is confirmed or approved, with or without amendment, by a vote of unit owners who hold a majority of the voting rights in the condominium corporation voted by those unit owners present in person or by proxy at the meeting;

(b) if unit owners do not request a special general meeting, the rule takes effect 31 days after the notice is given under subsection (1).

Amendments by unit owners

170(4)      After a rule takes effect, unit owners may vote to amend or repeal it at a general meeting of unit owners.

PART 9

CHANGES TO COMMON ELEMENTS AND COMMON ASSETS AND THE MAINTENANCE AND REPAIR OF UNITS AND COMMON ELEMENTS

Overview

171         This Part sets out

(a) the requirements for making a change to the common elements, the common assets or the services and amenities that a condominium corporation provides to unit owners;

(b) the duty to maintain the common elements and the units; and

(c) the duty to repair the common elements and units after damage.

Definitions

172(1)      The following definitions apply in this Part.

"change" means

(a) an addition, alteration or improvement to the common elements;

(b) a change to a common asset; or

(c) a change to a service or amenity that a condominium corporation provides to unit owners. (« modification »)

"change agreement" means the agreement entered into between a unit owner and a condominium corporation under clause 178(1)(b). (« convention de modification »)

Substantial change

172(2)      For the purpose of this Part, a change is substantial if

(a) upon completion, it will materially alter the manner in which the common elements or common assets are used or enjoyed;

(b) it will result in the termination or material alteration of a service or amenity provided by the condominium corporation;

(c) it will result in an increase of the condominium corporation's annual operating expenses by more than 10%; or

(d) the board decides to treat the change as substantial.

CHANGES MADE BY CONDOMINIUM CORPORATION

Non-application

173         Sections 174 to 179 do not apply to the following changes:

(a) a change resulting from work done by a condominium corporation to carry out its duty to maintain units or common elements or to repair them after damage, if that work is done using materials that are as reasonably close to the original materials as is appropriate under current construction standards;

(b) a change made for the purpose of, or as a result of, implementing a phase under Part 13.

Cost of change is common expense

174         The cost of a change made by a condominium corporation is a common expense.

Changes made without notice, approval

175(1)      A condominium corporation may, if authorized by a resolution of the board, make a change without notice to the unit owners and without their approval if

(a) the change is required by an Act, regulation or municipal by-law or to give effect to an order of a court or tribunal; or

(b) in the board's opinion, it is necessary to make the change to ensure the safety or security of persons on the property or who are using the common assets, or to prevent imminent damage to the property or common assets.

Notice required for all other changes

175(2)      Before making any other change, the condominium corporation must give each unit owner a written notice that

(a) describes the proposed change;

(b) contains a statement of the estimated cost of the proposed change and the source of the funds to pay for it; and

(c) describes the right of unit owners to request a special general meeting under section 114 within 30 days after receiving the notice.

Approval required for substantial change

176(1)      If the change proposed in a notice under subsection 175(2) is substantial, the change may be made only with the written consent of unit owners who hold the specified percentage of voting rights in the corporation.

Approval required for non-substantial change if meeting requested

176(2)      If the change proposed in a notice under subsection 175(2) is not substantial and a special general meeting is requested by a unit owner within 30 days after receiving the notice, the change may be made only if it is approved by unit owners who hold a majority of the voting rights in the corporation voted by those unit owners who are present in person or by proxy at the meeting.

Unit owner dissents to substantial change

177(1)      If provided for in the declaration, a condominium corporation must, upon receiving a written demand of a unit owner who did not consent to the substantial change proposed by the corporation, purchase that owner's unit

(a) at a price agreed to by the corporation and the unit owner; or

(b) subject to the declaration, at the fair market value of the unit as determined by arbitration at the request of the unit owner.

Arbitration Act applies

177(2)      The Arbitration Act applies to an arbitration under this section and, despite section 32 of that Act, the law to be applied to any matter in dispute is the law of Manitoba.

CHANGES TO COMMON ELEMENTS MADE BY UNIT OWNERS

Unit owner may change common elements

178(1)      A unit owner may make a change to the common elements that is not contrary to this Act or the condominium corporation's declaration or by-laws if

(a) the board has approved the change;

(b) the unit owner and the corporation have entered into an agreement that

(i) allocates the cost of the proposed change to the unit owner or the corporation or to both of them,

(ii) sets out the duties and responsibilities of the corporation and the unit owner in relation to the change, including

(A) any responsibilities for indemnification and insurance, and

(B) their duty to maintain, and their duty to repair after damage, any addition, alteration or improvement resulting from the change, and

(iii) sets out any other prescribed matters; and

(c) in the case of a change that will affect common elements other than a part of the common elements of which the unit owner has exclusive use, notice of the change has been given under subsection (2) and,

(i) if the change is substantial, the written consent of unit owners who hold the specified percentage of the voting rights in the corporation has been obtained, or

(ii) if the change is not substantial and a special general meeting has been requested in response to the notice, the change is approved by unit owners who hold a majority of the voting rights in the condominium corporation voted by those unit owners who are present in person or by proxy at the meeting.

Notice to unit owners

178(2)      If the change will affect common elements other than a part of the common elements of which the unit owner has exclusive use, the condominium corporation must give each unit owner

(a) a written notice that

(i) describes the proposed change,

(ii) contains a statement of the estimated cost of the proposed change and the source of funds to pay for it, and

(iii) describes the right of unit owners to request a special general meeting under section 114 within 30 days after receiving the notice; and

(b) a copy of the change agreement.

Change agreement submitted to district registrar

179(1)      A condominium corporation must submit a change agreement to the district registrar for registration against the title to the owner's unit.

When change agreement effective

179(2)      A change agreement does not take effect until

(a) the requirements in clause 178(1)(a) and, if applicable, clause 178(1)(c) have been met; and

(b) the district registrar has registered the agreement.

Registered agreement binds unit owner

179(3)      After it is registered against the owner's title to the unit, the change agreement binds that unit owner and is enforceable against his or her successors in title.

Unit owner's failure to comply with agreement

179(4)      If a unit owner fails to comply with the registered change agreement, the condominium corporation may add any costs, charges, interest and expenses resulting from that failure to the common expenses payable in respect of that owner's unit.

Discharge

179(5)      The condominium corporation may submit for registration a discharge of a change agreement registered under this section but only if it is accompanied by the written consent of the owner of the affected unit.

MAINTENANCE

Condominium corporation's duty to maintain

180(1)      Subject to the declaration or a change agreement, a condominium corporation has a duty to maintain the common elements.

Unit owner's duty to maintain

180(2)      Subject to the declaration, each unit owner has a duty to maintain his or her unit and any improvements made to it.

Extent of duty

180(3)      The duty to maintain the common elements or a unit includes the duty to repair or replace after normal wear and tear, but does not include the duty to repair or replace after damage.

Declaration may vary duties

180(4)      A declaration may vary the duties set out in subsections (1) and (2) by doing one or more of the following:

(a) requiring the unit owners to maintain the common elements or any part of them;

(b) requiring each unit owner to maintain those parts of the common elements of which the unit owner has exclusive use;

(c) requiring the condominium corporation to maintain the units or any part of them.

Unit owner's failure to perform duty

181(1)      Subject to subsection (2), if a unit owner fails to carry out his or her duty under subsection 180(2) or the declaration, the condominium corporation may do the work required to carry out that duty.

Unit owner to be given opportunity to comply

181(2)      Before doing any work under this section, the condominium corporation must give the unit owner a written notice that

(a) describes the owner's duty and the work to be done;

(b) specifies a date by which the work must be done, which must allow the unit owner a reasonable opportunity to complete the work; and

(c) describes the consequences of not completing the work by the specified date.

Deemed consent of unit owner

181(3)      The unit owner is deemed to have consented to any work done by the condominium corporation under this section.

Recovery of costs

181(4)      The cost of the work done by the condominium corporation under this section is to be added to the common expenses payable in respect of that owner's unit.

REPAIR AFTER DAMAGE

Condominium corporation's duty to repair after damage

182(1)      Subject to the declaration, a change agreement and sections 184 and 260 (withdrawal — substantial damage), a condominium corporation has a duty to repair after damage the units and common elements.

Extent of duty

182(2)      The duty to repair after damage includes the duty to repair or replace after damage, but does not include the duty to repair after damage any improvements made to a unit.

Unit owner's duty to repair after damage

182(3)      Subject to the declaration, a unit owner has a duty to repair after damage any improvements made to his or her unit and, if provided for in a change agreement, a duty to repair after damage improvements to the common elements.

Declaration may vary duty

182(4)      A declaration may vary a condominium corporation's duty under subsection (1) by doing one or more of the following:

(a) requiring the corporation to repair after damage any improvements to a unit;

(b) requiring each unit owner to repair after damage those common elements of which the unit owner has exclusive use;

(c) in the case of substantial damage to a unit (other than a bare land unit), requiring the unit owner to repair the unit unless the property is withdrawn under section 260;

(d) in the case of substantial damage to a bare land unit or any improvements to it, requiring the unit owner to repair the unit and improvements unless the property is withdrawn under section 260;

(e) in the case of damage caused by a unit owner to any unit or common elements, requiring the unit owner to repair the unit or common elements.

Determining what an improvement to a unit is

182(5)      An improvement to a unit is to be determined by reference to a standard unit for the type of unit to which the unit belongs.

Standard unit

182(6)      A standard unit for the type of unit to which the unit belongs is

(a) the standard unit described in the declaration;

(b) if there is no such description in the declaration, the standard unit described in a by-law made by the condominium corporation under subsection 167(3); or

(c) if there is no such description in the declaration and no such by-law, the standard unit as determined by the board.

Exception

182(7)      Despite subsection (1), a condominium corporation that

(a) was created before the day this section came into force; and

(b) had the duty to repair after damage improvements made to a unit before the registration of the declaration and plan;

continues to have that duty, unless the corporation has, by by-law, established a standard unit for that type of unit.

Unit owner's failure to perform duty

183(1)      If a unit owner fails to carry out his or her duty to repair after damage, the condominium corporation may do the work required to carry out that duty.

Unit owner to be given opportunity to comply

183(2)      Before doing any work under this section, the condominium corporation must give the unit owner a written notice that

(a) describes the owner's duty and the work to be done;

(b) specifies a date by which the work must be done, which must allow the unit owner a reasonable opportunity to complete the work; and

(c) describes the consequences of not completing the work by the specified date.

Deemed consent of unit owner

183(3)      The unit owner is deemed to have consented to the work done by the condominium corporation under this section.

Recovery of costs

183(4)      The cost of the work done by the condominium corporation under this section is to be added to the common expenses payable in respect of that owner's unit.

Board must determine whether substantial damage has occurred

184(1)      When damage to the units or common elements or both occurs, a board must determine, within 30 days after the occurrence, whether that damage is substantial.

Substantial damage

184(2)      For the purpose of this section and section 260 (withdrawal), damage is substantial if the cost of repair will be at least 25%, or any lower percentage specified in the declaration, of the value of the entire property immediately before the damage occurred.

Repairs required if damage is non-substantial

184(3)      If the board determines that the damage is not substantial, the condominium corporation must repair the damage within a reasonable time.

Notice of substantial damage

184(4)      If the board determines that the damage is substantial, it must hold a general meeting of unit owners to consider a proposal to withdraw the entire property from governance by this Act.

Content of notice

184(5)      The notice of the general meeting of unit owners to consider the proposal must include

(a) a statement that substantial damage has occurred;

(b) a statement that a notice of withdrawal is required to be registered if unit owners who hold the specified percentage of voting rights in the condominium corporation give their written consent to the withdrawal; and

(c) any additional information required by the regulations.

Consent of unit owners required

184(6)      If unit owners who hold the specified percentage of voting rights in the condominium corporation give their written consent to the withdrawal proposal at the meeting referred to in subsection (4) or within 30 days after that meeting, the corporation must submit a notice of withdrawal to the district registrar for registration in accordance with section 260.

Repairs required if property not withdrawn

184(7)      If the required level of consent for the withdrawal of the property is not obtained, the condominium corporation must repair the damage within a reasonable time.

Exception

184(8)      This section does not apply to a property in which all the units are bare land units.

PART 10

INSURANCE AND WARRANTIES

INSURANCE

Property Insurance

Property insurance

185(1)      A condominium corporation must obtain and maintain property insurance, on its own behalf and on behalf of all unit owners, for damage to the units and common elements that is caused by major perils or any other perils that may be specified in the corporation's declaration or by-laws.

Meaning of "major perils"

185(2)      In subsection (1), "major perils" means the perils of fire, lightning, smoke, windstorm, hail, explosion, water escape, strikes, riots or civil commotion, impact by aircraft or vehicles, vandalism or malicious acts.

Amount of coverage

185(3)      The insurance required under this section must cover

(a) the replacement cost of the property damaged by perils to which the insurance applies; and

(b) any additional costs resulting from zoning and other legal requirements related to current construction standards, including coverage for the loss of value of any undamaged portion of the property, demolition and debris removal and any increase in the costs of construction, to the extent that the coverage is available at a reasonable cost.

Deductible limit clause

185(4)      To avoid doubt, an insurance policy obtained and maintained by a condominium corporation may contain a deductible clause that limits the amount payable by the insurer.

Insurable interest

185(5)      For the purpose of an insurance policy obtained under this section, the condominium corporation is deemed to have an insurable interest in the units and common elements.

Improvements not included

185(6)      The obligation to insure under subsection (1) does not include an obligation to insure for damage to improvements made to a unit.

Determining what improvement is

185(7)      For the purpose of this section, the question of what constitutes an improvement to a unit is to be determined in accordance with subsections 182(5) to (7).

Breach of policy

185(8)      Despite any provision to the contrary in the condominium corporation's property insurance policy, no act of any person is deemed to be a breach of the conditions of the policy if the act is prejudicial to the interests of the corporation or the interests of all the unit owners.

Appraisal required

185(9)      Subject to its declaration and by-laws, the condominium corporation must obtain, before the first unit is occupied and at least every five years after that, an appraisal that meets prescribed requirements for the purpose of calculating the replacement cost under clause (3)(a).

Property insurance for bare land units

185(10)     Despite subsection (1), the condominium corporation is not obligated to obtain and maintain property insurance on a bare land unit or any improvements to it. However, the declaration may require that the condominium corporation obtain and maintain such insurance.

Named insureds

186         Despite any term of a condominium corporation's property insurance policy, named insureds in that policy include

(a) the corporation; and

(b) the unit owners from time to time.

Liability Insurance

Liability insurance

187(1)      A condominium corporation must obtain and maintain insurance to insure the corporation

(a) against liability for third party claims arising out of property damage or bodily injury and death; and

(b) against liability arising from a breach of its duty as an occupier of the common elements or land that the corporation holds as a common asset.

Directors' and officers' liability insurance

187(2)      A condominium corporation must obtain and maintain insurance for

(a) any liability incurred by a director or officer arising out of any act or omission by him or her with respect to carrying out his or her functions and duties, except liability that results from a breach of his or her duty to act honestly and in good faith with a view to the best interests of the corporation; and

(b) any liability incurred by the corporation arising out of any act or omission of a director or officer with respect to carrying out his or her functions and duties.

Amount of coverage

187(3)      The amount of liability insurance required may be specified in the condominium corporation's declaration or by-laws.

Additional insureds

187(4)      Despite any term in the condominium corporation's liability insurance policy, the unit owners from time to time and the directors, officers, agents or employees of the corporation are included as additional insureds.

Insurable interest

187(5)      For the purpose of an insurance policy obtained under this section, the condominium corporation is deemed to have an insurable interest in the units and common elements.

Other Insurance Matters

Primary or first loss, excess insurance

188(1)      If property or liability insurance is placed by both a condominium corporation and a unit owner

(a) the insurance placed by the corporation is deemed to be primary or first loss insurance; and

(b) the insurance placed by the unit owner in respect of the same property that is insured by the corporation is deemed to be excess insurance.

Application

188(2)      Subsection (1) applies despite any provision to the contrary in The Insurance Act or the insurance policy obtained by the condominium corporation.

Waiver of subrogation

189         Despite any provision to the contrary in the insurance policy, the property or liability insurance obtained or maintained by a condominium corporation is deemed to contain a waiver of the insurer's right of subrogation with respect to a claim against

(a) the directors, officers, agents or employees of the corporation;

(b) the unit owners and those persons who reside with a unit owner; and

(c) any occupant of a unit other than a tenant;

unless the claim arises from arson or fraud.

Insurance certificate to be provided

190         Upon request, a condominium corporation must provide a unit owner with a copy of each current certificate of insurance.

Disclosure by insurer

191         An insurer under an insurance policy required to be obtained or maintained under this Part must provide the condominium corporation with a certificate of insurance declaring the coverage carried by the corporation.

Cancellation or non-renewal of insurance

192(1)      An insurance policy obtained or maintained by a condominium corporation is deemed to include a provision that the insurer must not cancel the policy or fail to renew it unless the insurer gives the corporation and the insurance trustee, if any, at least 60 days' notice by registered mail.

Notifying unit owners about cancelled insurance

192(2)      If the condominium corporation receives a cancellation notice for its insurance policy, it must notify the unit owners in writing about the cancellation no later than 15 days after the corporation receives the notice.

Portion of loss excluded from coverage is common expense

193(1)      Subject to subsection (2), if an insurance policy obtained or maintained by a condominium corporation contains a deductible clause that limits the amount payable by the insurer, the portion of a loss that is excluded from coverage is a common expense.

Unit owner's responsibility

193(2)      If

(a) damage to a unit or the common elements results from an act or omission of a unit owner or by

(i) a tenant or other occupant of his or her unit, or

(ii) a person permitted to be on the property by the unit owner or by a tenant or other occupant of his or her unit; and

(b) the unit owner has the duty under section 182 to repair after damage;

the cost of repairing the damage, to the extent of the deductible limit under the condominium corporation's insurance policy, may be added to the common expenses payable in respect of the owner's unit.

Unit owner's insurable interest

193(3)      The amount payable by a unit owner under this section constitutes an insurable interest of that unit owner.

No restriction on capacity to insure

194         Nothing in this Act restricts the capacity of a person to obtain and maintain insurance in respect of an insurable interest.

Annual review and report on insurance

195         Each year, a condominium corporation must

(a) review the adequacy of its insurance; and

(b) report on the insurance coverage at the annual general meeting.

Act prevails

196         Despite any provision to the contrary in The Insurance Act or an insurance policy required by this Act, this Act prevails.

Insurance Obtained by Unit Owner

Property insurance

197         A unit owner may obtain and maintain property insurance in respect of loss or damage to

(a) the owner's unit and its share in the common elements to the extent that the loss or damage is not insured by the condominium corporation or to the extent that the insurance placed by the corporation is ineffective or inadequate; and

(b) improvements to the owner's unit and the parts of the common elements of which the owner has exclusive use to the extent that the improvements are not insured by the condominium corporation or to the extent that the insurance placed by the corporation is ineffective or inadequate.

Liability insurance

198         A unit owner

(a) may obtain and maintain insurance against liability incurred by the owner arising from the ownership of a unit and its share in the common elements or the use or occupation of that unit; and

(b) must obtain and maintain the insurance described in clause (a) if the requirement to do so is set out in the declaration.

WARRANTIES

Warranty — unit

199(1)      A warranty given for any work performed, or materials furnished, in respect of a unit or improvement to a part of the common elements of which a unit owner has exclusive use is for the benefit of the unit owner.

Condominium corporation may enforce warranty

199(2)      Despite any agreement to the contrary, a condominium corporation may, on a unit owner's behalf, enforce a warranty for work performed, or materials furnished, in respect of a unit under section 181, 183 or 215 or in respect of an improvement referred to in subsection (1).

Warranty — common elements

200(1)      Subject to subsection 199(1), a warranty given for any work performed, or materials furnished, in respect of the common elements is for the benefit of a condominium corporation.

Obligation of board

200(2)      A board must make reasonable efforts to pursue any remedies under a warranty given for any work performed, or materials furnished, in respect of the common elements.

PART 11

RESIDENTIAL TENANCY AGREEMENTS AND COMMERCIAL LEASES

RESIDENTIAL TENANCIES

Reference to unit owner, tenant

201         In sections 202 to 207,

(a) a reference to a unit owner means the owner of a unit that is rented under a tenancy agreement; and

(b) a reference to a tenant means a tenant of a unit in a property.

Notifying condominium corporation about tenancy agreement

202(1)      Within 30 days after entering into a tenancy agreement in respect of his or her unit, a unit owner must give the condominium corporation a written notice stating that the unit is rented and indicating the tenant's name, the unit owner's address and the name of the unit owner's designated representative for tenancy matters, if any.

Terminating a tenancy agreement

202(2)      If the tenancy agreement is terminated by the landlord or the tenant, the unit owner must promptly notify the condominium corporation.

Tenants' right of access to by-laws and rules

203(1)      Within seven days after receiving a request from

(a) a tenant; or

(b) a person authorized in writing by a tenant;

a condominium corporation must make the provisions of the corporation's declaration with which the tenant must comply and its by-laws and rules available for inspection and provide copies of them to the tenant or authorized person. The condominium corporation may require payment of a reasonable fee to compensate it for labour and copying charges.

Reader's aid

203(2)      Section 56.1 of The Residential Tenancies Act requires the landlord to provide the tenant with copies of the provisions of the condominium corporation's declaration with which the tenant must comply and copies of the corporation's by-laws and rules.

Tenant's rent may be redirected

204(1)      If

(a) a unit owner defaults on his or her obligation to contribute to the common expenses or reserve fund; and

(b) the condominium corporation makes a written request to the tenant in the prescribed form to pay to the corporation the lesser of the amount in default and the amount of rent due or coming due under the tenancy agreement;

the tenant must promptly pay that amount to the corporation at the time the rent is due.

Application

204(2)      Subsection (1) applies despite any agreement or arrangement to the contrary.

Notice to unit owner

204(3)      The condominium corporation must promptly notify the unit owner in writing that it has requested that the tenant pay the amount referred to in clause (1)(b) to the corporation.

Payment required even if unit is encumbered

204(4)      The tenant must make the payment to the condominium corporation even if a holder of a registered instrument in respect of that unit has acquired the right of the unit owner to receive rent under the tenancy agreement.

Payment made is payment toward rent

204(5)      Despite any term of the tenancy agreement, a payment made by the tenant under this section is a payment towards rent under the agreement. The tenant is not in default of any obligations under that agreement only because of a payment made under this section.

Receipt required

204(6)      Upon receiving a payment under this section, the condominium corporation must give a receipt to the tenant and a copy of the receipt to the unit owner or his or her designated representative for tenancy matters.

Written notice — contravention by tenant

205(1)      If a tenant contravenes

(a) the condominium corporation's declaration, by-laws or rules;

(b) section 70 (obligation — cleanliness) of The Residential Tenancies Act insofar as the common elements are affected;

(c) subsection 72(1) (obligation to take care and repair damage) of The Residential Tenancies Act insofar as the common elements are damaged; or

(d) section 73 (duty not to disturb others) or 74 (impairment of safety by tenant) of The Residential Tenancies Act;

the condominium corporation may give the tenant a written notice, in accordance with subsection (2), to remedy the contravention or not repeat it.

Content of written notice

205(2)      The written notice must

(a) if applicable, specify the date by which the tenant must remedy the contravention, which must allow the tenant a reasonable opportunity to remedy it; and

(b) describe the consequences of failing to remedy the contravention by the specified date or repeating it.

Copy of notice to unit owner

205(3)      When the condominium corporation gives the tenant the written notice, the corporation must also give the unit owner or his or her designated representative for tenancy matters

(a) a copy of the notice; and

(b) a reasonable opportunity to remedy the contravention or cause it to be remedied.

Failure to remedy contravention

205(4)      If, after receiving the notice, the tenant or unit owner fails to remedy the contravention or cause it to be remedied, the condominium corporation may give the tenant a written notice of termination.

Notice may be in any form

205(5)      The written notice of termination need not be in any particular form, but may be in the prescribed form.

Content of notice

205(6)      The notice of termination must

(a) identify the unit to which the notice applies;

(b) state the date on which the tenancy is to terminate;

(c) specify

(i) the reason for the termination, and

(ii) the entitlement of the tenant to dispute the lawful right of the condominium corporation to give notice; and

(d) be signed by or on behalf of the condominium corporation.

Copy of notice of termination given to unit owner

205(7)      When the condominium corporation gives the notice of termination to the tenant, the corporation must also give a copy of it to the unit owner or his or her designated representative for tenancy matters.

Length of notice

205(8)      The notice of termination must be given to the tenant at least one month before the termination date specified in the notice.

Early termination for cause

205(9)      Despite subsection (8), the notice of termination may be given less than one month before the termination date, but no less than five days before that date, if the contravention

(a) results in an extraordinary disturbance of any person to the property;

(b) poses an immediate risk to the health and safety of any person on the property; or

(c) results in extraordinary damage to the common elements.

Notice to remedy not required

205(10)     The condominium corporation may give the tenant a notice of termination arising from a contravention as described in subsection (9) without first giving the written notice under subsections (1) and (3).

Application of Residential Tenancies Act

205(11)     Part 11 (procedures) of The Residential Tenancies Act applies to the granting of an order of possession in respect of a unit upon application by the condominium corporation.

Reader's aid

205(12)     For provisions relating to the landlord's right to terminate a tenancy agreement, see Part 6 of The Residential Tenancies Act.

Giving notice or other document to tenant

206         A notice or other document that is required to be given to a tenant or holder of a right of first refusal under this Act must be given in accordance with section 184 (giving of notices) of The Residential Tenancies Act.

Landlord and tenant relationship

207(1)      The relationship between a landlord and a tenant is governed by The Residential Tenancies Act. That Act sets out the rights, obligations and duties of a landlord and tenant of a rental unit, even though the property in which the rental unit is located is governed by this Act.

Reader's aid

207(2)      For provisions relating to the protection of the occupancy rights for tenants of existing tenured rental units, see sections 27 to 31.

COMMERCIAL LEASES

Reference to unit owner, commercial lessee

208         In sections 209 and 210,

(a) a reference to a unit owner means the owner of a unit that is leased under a commercial lease; and

(b) a reference to a commercial lessee means a lessee of a unit that is rented under a commercial lease.

Notifying condominium corporation about commercial lease

209(1)      Within 30 days after entering into or renewing a commercial lease of his or her unit, a unit owner must

(a) give the condominium corporation a written notice stating that the unit is leased and indicating the commercial lessee's name, the unit owner's address and the name of the unit owner's designated representative for commercial leasing matters, if any; and

(b) give the commercial lessee a copy of each provision of the declaration with which the commercial lessee must comply and the condominium corporation's by-laws and rules.

Terminating a commercial lease

209(2)      If the commercial lease is terminated, the unit owner must promptly notify the condominium corporation about the termination.

Commercial lessee's rent may be redirected

210(1)      If

(a) the owner of a leased unit defaults on his or her obligation to contribute to the common expenses or reserve fund; and

(b) the condominium corporation makes a written request to the commercial lessee in the prescribed form to pay to the corporation the lesser of the amount in default and the amount of rent due or coming due under the commercial lease;

the commercial lessee must promptly pay that amount to the corporation at the time the rent is due under the commercial lease.

Application

210(2)      Subsection (1) applies despite any agreement or arrangement to the contrary.

Notice to unit owner

210(3)      The condominium corporation must promptly notify the unit owner in writing that it has requested that the commercial lessee pay the amount referred to in clause (1)(b) to the corporation.

Payment required even if unit is encumbered

210(4)      A commercial lessee must make the payment to the condominium corporation even if a holder of a registered instrument in respect of that unit has acquired the right of the unit owner to receive rent under the commercial lease.

Payment made is payment toward rent

210(5)      Despite any term of the commercial lease, a payment made by the commercial lessee under this section is a payment towards rent under the lease. The lessee is not in default of any obligations under that lease only because of a payment made under this section.

Receipt required

210(6)      Upon receiving a payment under this section, the condominium corporation must give a receipt to the commercial lessee and a copy of the receipt to the unit owner or his or her designated representative for commercial leasing matters.

OTHER MATTERS

Levy may be imposed

211(1)      If permitted to do so by its declaration, a condominium corporation may impose a levy on a unit owner who rents or leases the owner's unit.

Levy amount

211(2)      The amount of the levy

(a) must not exceed the prescribed maximum; and

(b) must be specified in the by-laws.

Unit owner must remit levy

211(3)      A unit owner must remit the levy to the condominium corporation

(a) at the time specified in the by-laws; or

(b) if no time is specified, at the time agreed to by the corporation and that unit owner.

Restricted use of levy

211(4)      The amount remitted for the levy may be used by the condominium corporation only to pay for

(a) the repair of damage to the common elements caused by the tenant or commercial lessee;

(b) any extraordinary cleaning of the common elements that occurs during the tenancy or commercial lease and that is attributable to the tenancy or lease; and

(c) the reasonable costs associated with ensuring compliance by the tenant or commercial lessee with this Act and the condominium corporation's declaration, by-laws and rules.

Unit owner entitled to refund

211(5)      Upon the termination of the tenancy agreement or commercial lease, the unit owner is entitled to

(a) a refund of any amount remitted for the levy that was not used as permitted under subsection (4); and

(b) the payment of any interest on the unused remitted amount at the rate specified in the condominium corporation's by-laws.

Condominium corporation must not prohibit renting

212         A condominium corporation, or its declaration or by-laws, must not prohibit the rental of a unit by a unit owner.

PART 12

COMPLIANCE AND DISPUTE RESOLUTION

COMPLIANCE

Obligation to comply with Act, etc.

213(1)      A condominium corporation, the directors, officers, employees and agents of a condominium corporation, a declarant, an owner-developer, a unit owner, a commercial lessee, any person occupying a unit, other than a tenant, and a holder of a registered instrument who is in possession of a unit must comply with this Act and a condominium corporation's declaration, by-laws and rules.

Right to require compliance

213(2)      A condominium corporation, unit owner or unit mortgagee has the right to require the unit owners and other persons occupying the units to comply with this Act and the corporation's declaration, by-laws and rules.

Condominium corporation's responsibility for compliance by others

213(3)      A condominium corporation has the duty to take all reasonable steps to ensure that the unit owners and the corporation's commercial lessees, employees and agents comply with this Act and the corporation's declaration, by-laws and rules.

Performance of condominium corporation's duty

213(4)      Each unit owner and unit mortgagee has the right to the performance of any duty of the condominium corporation set out in this Act or the corporation's declaration or by-laws.

Unit owner's responsibility for compliance by others

213(5)      A unit owner has the duty to take all reasonable steps to ensure that the following persons comply with this Act and the condominium corporation's declaration, by-laws and rules:

(a) an occupant of the owner's unit;

(b) a tenant of the owner's unit;

(c) a commercial lessee of the owner's unit;

(d) an employee or agent of the unit owner;

(e) any other person permitted to be on the property by the unit owner.

Unit owner to give certain documents to tenants

213(6)      For the purpose of clause (5)(b), a unit owner who is a landlord must give his or her tenant a copy of the provisions of the condominium corporation's declaration with which the tenant must comply and the by-laws and rules as required by section 56.1 of The Residential Tenancies Act.

Occupant's responsibility for compliance by others

213(7)      An occupant or commercial lessee of a unit must take all reasonable steps to ensure that any person that he or she permits to be on the property complies with this Act and the condominium corporation's declaration, by-laws and rules.

Reader's aid

213(8)      See section 75.1 of The Residential Tenancies Act for provisions relating to the obligation of a tenant to comply with this Act and a condominium corporation's declaration, by-laws and rules.

Compliance before registration of declaration

214         If one or more proposed units are occupied by the buyers of those units before the registration of the declaration,

(a) the declarant and the occupants have the duty to comply with this Act, the proposed declaration and the proposed by-law and rules;

(b) the declarant must take all reasonable steps to ensure that the occupants comply with this Act, the proposed declaration and the proposed by-law and rules; and

(c) each occupant has the right to require the declarant and the occupants of the other units to comply with this Act, the proposed declaration and the proposed by-law and rules.

Condominium corporation may remedy contravention

215(1)      A condominium corporation may do what is reasonably necessary to remedy a contravention of this Act or its declaration, by-laws or rules including

(a) doing work to or in a unit or the common elements; and

(b) removing items from the common elements.

Written notice required to be given

215(2)      Before remedying the contravention, the condominium corporation must give the unit owner

(a) a written notice setting out the details of the contravention that it intends to remedy; and

(b) a reasonable amount of time to remedy the contravention or cause it to be remedied.

Deemed consent of unit owner

215(3)      A unit owner is deemed to have consented to work done by the condominium corporation under subsection (1).

Cost of work to be added to unit owner's contribution

215(4)      The cost of work done under subsection (1) may be added to the common expenses payable in respect of that owner's unit.

Denying use of recreational facility

216(1)      A condominium corporation may, for a reasonable length of time, deny a unit owner, tenant or other occupant of a unit or any other person permitted to be on the property by any of them the use of a recreational facility that is a common element if the person contravenes a by-law or rule relating to the facility.

Written notice required

216(2)      Before denying the use of a recreational facility, the condominium corporation must give the person

(a) a written notice setting out the details of the contravention; and

(b) if applicable, a reasonable opportunity to remedy it or cause it to be remedied.

Person may request opportunity to be heard

216(3)      Upon the request of the person who has been denied use of the recreational facility, the condominium corporation must give that person a reasonable opportunity to be heard about the denial of use, which may include the opportunity to be heard at a board meeting.

Application to proposed unit

217(1)      Sections 215 and 216 apply, with necessary changes, to a declarant and buyer of a proposed unit during a period of interim occupancy.

Reader's aid

217(2)      For provisions relating to interim occupancy, see section 60.

Unit owner may be fined

218(1)      Subject to the requirements of this section, the board of a condominium corporation may impose a fine on a unit owner if a by-law or rule of the corporation is contravened by

(a) the unit owner;

(b) a tenant or other occupant of his or her unit; or

(c) a person permitted to be on the property by the unit owner or by a tenant or other occupant of his or her unit.

By-law — amount of fine

218(2)      A board may impose a fine only if the condominium corporation's by-laws set out, subject to subsection (4), the maximum amount that a unit owner may be fined for a contravention of a by-law or rule, which may be different for different by-laws and rules.

By-law may set out additional requirements

218(3)      A board may impose a fine for a continuing contravention of a by-law or rule only if the condominium corporation's by-laws set out, subject to subsection (4), the number of times the fine may be imposed and the frequency at which fines may be imposed for a continuing contravention.

Maximum amount, times and frequency set out in regulations

218(4)      The amount of a fine, number of times a fine may be imposed and frequency for imposing a fine for a continuing contravention must not exceed the prescribed maximum.

Fine must be reasonable

218(5)      A fine imposed under this section must be reasonable in the circumstances for which it is imposed.

Written notice must be given

218(6)      Before deciding to impose a fine, the board must give the unit owner

(a) a written notice setting out the particulars of the contravention and the amount of the fine and, if applicable, the number of times and the frequency at which the fine may be imposed for a continuing contravention; and

(b) a reasonable opportunity to answer the particulars, including an opportunity to be heard in person at a board meeting, and to remedy the contravention or cause it to be remedied.

Written decision must be given to the unit owner

218(7)      If, after providing the unit owner with a reasonable opportunity to answer the particulars of the contravention and to remedy it or cause it to be remedied, the board decides to impose the fine, the board must give the unit owner written notice of the decision. The notice must include information about the unit owner's right of appeal under subsection (8).

Right to appeal decision to impose fine

218(8)      The unit owner may appeal the board's decision to impose the fine by filing a written notice of appeal with the Director of Residential Tenancies (referred to in this section as the "appeals commissioner") within 30 days after receiving the written notice of the decision.

Power to delegate

218(9)      The Director of Residential Tenancies may authorize one or more persons employed by the government to also exercise the powers of the appeals commissioner. Every reference in this section to the "appeals commissioner" also applies to such a person.

Regulations about appeals

218(10)     The Lieutenant Governor in Council may make regulations respecting appeals made under this section, including regulations

(a) respecting practice and procedure;

(b) prescribing fees and charges for any matter or thing done or service provided under this section and the manner in which payment of fees and charges may be enforced;

(c) respecting the payment of costs of an appeal.

Powers of inquiry

218(11)     The appeals commissioner has all the powers and protections of a commissioner under Part V of The Manitoba Evidence Act when conducting an appeal under this section.

Board's findings are not binding

218(12)     The findings of the board in respect of the matter under appeal are not binding on the appeals commissioner.

Dispute resolution

218(13)     The appeals commissioner may, as part of an appeal, endeavour to mediate a resolution of the dispute between the board and the unit owner.

Power to make decisions

218(14)     After hearing the appeal, the appeals commissioner may confirm, vary or rescind the board's decision or substitute his or her own decision for that of the board.

Decision is final

218(15)     The decision of the appeals commissioner is final and is not subject to appeal.

Fine for continuing contravention may not be imposed

218(16)     While the board's decision to impose a fine is under appeal, the board may not impose an additional fine for a continuing contravention relating to the matter under appeal.

Failure to pay fine

218(17)     If the unit owner fails to pay a fine, the amount of the fine may be added to the common expenses payable in respect of that owner's unit,

(a) if no appeal has been made, after the time for filing an appeal under subsection (8) has expired; or

(b) if an appeal has been made,

(i) after the date that the appeal commissioner made the decision imposing or confirming the imposition of the fine, or

(i) in the case of a mediated resolution that includes a date for the payment of the fine, after that date.

Matter involves director

219(1)      If a condominium corporation intends to act under section 215, 216 or 218 and the matter involves a director, the director must not participate in any decision made in respect of the matter.

Exception

219(2)      Subsection (1) does not apply if all unit owners are directors of the board.

MEDIATION AND ARBITRATION

Dispute resolution by mediation or arbitration

220         A dispute in respect of a matter under this Act or a condominium corporation's declaration, by-laws or rules between

(a) a unit owner and the condominium corporation;

(b) two or more unit owners;

(c) the declarant and the condominium corporation; or

(d) a unit owner and an occupant of another unit (other than a tenant);

may be resolved by mediation under section 221 or arbitration under section 222.

Mediation by agreement

221(1)      If each party to a dispute described in section 220 agrees, the dispute may be resolved by mediation.

Selecting a mediator

221(2)      The mediator is to be selected by the parties to the dispute.

Role of mediator

221(3)      The mediator must confer with the parties and encourage settlement of the dispute submitted to mediation.

Record of settlement

221(4)      If the parties settle their dispute, the mediator must make a written record of the settlement, which forms part of the agreement or matter that was the subject of the dispute.

Information is confidential

221(5)      Information provided by the parties during mediation must be kept confidential.

Sharing mediation fees and expenses

221(6)      Each party to the dispute must pay the share of the mediator's fees and expenses that

(a) the parties agree to pay;

(b) the settlement specifies, if a settlement is reached; or

(c) the mediator specifies, if the mediation fails to settle the dispute.

Other legal remedies available

221(7)      Nothing in this section restricts the legal remedies otherwise available to resolve a dispute described in section 220.

Arbitration

222(1)      The parties to a dispute described in section 220 may agree to resolve the dispute by arbitration.

Selecting an arbitrator

222(2)      The arbitrator is to be selected by the parties to the dispute.

Arbitration Act applies

222(3)      The Arbitration Act applies to an arbitration under this section and, despite section 32 of that Act, the law to be applied to any matter in dispute is the law of Manitoba.

Sharing arbitration fees and expenses

222(4)      Each party must pay the share of the arbitration fees and expenses that the parties agree to pay or that the award specifies.

Other legal remedies

222(5)      If the arbitrator is unable to make an award and states so in writing, the parties are not prohibited from pursuing any applicable legal remedy under this Act or otherwise available at law.

COURT ORDERS

Order — compliance or contravention

223(1)      A unit owner, a condominium corporation, a declarant, an owner-developer, an occupant of a proposed unit or a holder of a registered instrument in respect of a unit may apply to the court for an order under this section to remedy a contravention of any provision of this Act or the corporation's declaration, by-laws or rules.

Contents of orders

223(2)      The court may make one or more of the following orders:

(a) an order requiring compliance with any applicable provision of this Act or the condominium corporation's declaration, by-laws or rules;

(b) an order requiring the amendment of the condominium corporation's declaration or plan as specified in the order;

(c) an order requiring damages to be paid if the applicant has suffered a loss or damage because of a contravention of this Act or the condominium corporation's declaration, by-laws or rules;

(d) an order requiring performance of a duty that is required to be performed under this Act or the condominium corporation's declaration or by-laws;

(e) an order directing that a contravention cease;

(f) an order appointing an administrator;

(g) an order requiring the payment of costs;

(h) any other order the court considers appropriate.

Content of order — administrator

223(3)      An order under clause (2)(f) appointing an administrator may include one or more of the following matters:

(a) the time period for which the administrator is appointed;

(b) the terms and conditions of the appointment;

(c) the powers and duties of the administrator, including the powers and duties of the condominium corporation's directors or officers that are to be transferred to the administrator.

Powers of administrator

223(4)      An administrator appointed by the court may

(a) apply to the court for its direction on any question regarding the management or administration of the condominium corporation; and

(b) may delegate any of his or her powers.

Condominium corporation to pay for administrator

223(5)      If an administrator is appointed by the court, the condominium corporation must pay for the services of the administrator. The payment is a common expense of the condominium corporation.

Award to be added to common expenses

223(6)      If the condominium corporation obtains an award of damages or costs in an order made against a unit owner, tenant, commercial lessee or other occupant of that unit or any other person permitted to be on the property by any of them, the damages or costs are to be added to the common expenses payable for that unit.

Award to be set off against common expenses

223(7)      If a unit owner obtains an award of damages or costs in an order made against a condominium corporation, the damages or costs may be set off against the common expenses payable for that owner's unit.

Declaratory order

224         A unit owner, a condominium corporation, or any other person affected or likely to be affected by this Act or the corporation's declaration or by-laws may apply to the court for an order declaring the rights and obligations of the owner, corporation or affected person.

Order — improper conduct

225(1)      A unit owner, condominium corporation, buyer of a proposed unit, holder of a registered instrument in respect of a unit, declarant or owner-developer who reasonably believes that improper conduct has taken place may apply to the court for an order under this section.

Meaning of "improper conduct"

225(2)      In this section, "improper conduct" means

(a) the conduct of the condominium corporation's business affairs in a manner that is oppressive or unfairly prejudicial to the applicant or that unfairly disregards the applicant's interests;

(b) the exercise of the board's power in a manner that is oppressive or unfairly prejudicial to the applicant or that unfairly disregards the applicant's interests; or

(c) the conduct of the declarant or owner-developer with respect to the applicant or a purchaser or prospective purchaser in a manner that is oppressive or unfairly prejudicial or that unfairly disregards the interests of any of them.

Contents of orders

225(3)      If the court is satisfied that improper conduct has taken place, the court may make one or more of the following orders:

(a) an order prohibiting the conduct referred to in the application;

(b) an order requiring the amendment of the condominium corporation's declaration or plan as specified in the order;

(c) an order giving directions as to how matters are to be carried out so that the improper conduct will not continue or re-occur;

(d) an order requiring the payment of compensation to the applicant, if he or she suffered a loss or damage due to the conduct;

(e) an order requiring the payment of costs;

(f) any other order the court considers appropriate.

Order — investigator

226(1)      A unit owner, condominium corporation, buyer of a proposed unit, holder of a registered instrument in respect of a unit, or declarant may apply to the court for an order appointing an investigator.

Contents of order

226(2)      The court may make one or more of the following orders:

(a) an order appointing an investigator who may

(i) investigate the documents, records and information that the declarant is required to give to the board at or after the turn-over meeting,

(ii) investigate the records required to be kept by the condominium corporation under this Act,

(iii) investigate the affairs of a person who receives money on the condominium corporation's behalf, and

(iv) conduct an audit of the condominium corporation's accounts and records;

(b) an order requiring the investigator to make a written report about the investigator's activities to the applicant and the condominium corporation within a specified time period;

(c) an order for the payment of the investigation or audit costs;

(d) an order for the payment of the application costs;

(e) any other order that the court considers appropriate.

Report summary to be given to unit owners

226(3)      If the court makes an order under clause (2)(b), the board must give a summary of the investigator's written report to the unit owners.

Powers of investigator

226(4)      An investigator appointed by the court has the powers given under sections 88, 89 and 93 of The Manitoba Evidence Act.

Variation

227         The court may vary an order made under this Part.

Other remedies

228         Unless this Act specifically provides to the contrary, nothing in this Act restricts the remedies available to a person for the failure of another person to perform a duty imposed by this Act.

PART 13

PHASING AMENDMENTS

Overview

229         This Part supplements the registration requirements in Part 2 (Condominium Registrations), and enables the creation of units and common elements in phases by the registration of amendments to a declaration and plan.

Definition

230(1)      In this Part, "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; or

(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.

Interpretation — implementation or completion of phase

230(2)      For the purposes of this Part,

(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 unit owners entitled to use them.

Interpretation — material difference

230(3)      For the purposes of this Part, 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.

Consent of existing owners to phasing amendment

231(1)      Subject to subsections (2) and (3), a phasing amendment — and any plan amendment required for a phasing amendment — may be registered only if it is consented to in writing at a general meeting of unit owners at which the proposed phasing amendment is presented or within 180 days after that meeting,

(a) if the meeting is held

(i) before the condominium corporation's turn-over meeting, or

(ii) while the declarant, the owner-developer or both own a majority of the voting rights in the condominium corporation,

by owners of existing units, other than the declarant or owner-developer, who hold the specified percentage of the voting rights held by such unit owners; or

(b) in any other case, by owners of existing units who hold the specified percentage of the voting rights in the condominium corporation.

Consent not required — phase implemented as described in declaration

231(2)      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

231(3)      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.

Unit owner's consent may be given or negated by mortgagee

231(4)      For the purpose of this section, the mortgagee of an existing unit who is entitled to notice may exercise the unit owner's right to give or withhold consent to the registration of a phasing amendment if permitted to do so by the terms of the mortgage or another document. But if either of them gives written notice to the person seeking the consent that the consent is being refused, the consent of the unit owner is deemed to have been refused.

Additional consent required for amendment to create new phase

232(1)      Subject to subsection (2), if a phasing amendment creates a new 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 that amendment or a future amendment, the amendment may 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.

Consent not required — registration with court approval

232(2)      A phasing amendment to create a new phase may be registered without the consents required by subsection (1) if the court has made an order permitting or requiring it to be registered.

Additional consent of property lessor required

232(3)      If a phasing amendment creates a new phase by identifying an existing unit in a leasehold property to be converted into additional units or common elements, or both, upon the registration of that amendment or a future amendment, the amendment may not be registered without the consent of the property lessor.

Content of amendment — creating a proposed phase

233(1)      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.

Content of amendment — implementing a phase

233(2)      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.

Transitional — phasing amendment for existing development

233(3)      If a declaration registered before this Act came into force describes the creation of additional units or common elements in a future phase or phases, but does not meet the requirements of subsection 13(6) (additional content about phased development), the following rules apply:

1.

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

2.

Until the phasing amendment required by this subsection is registered,

(a) subsection 21(1) (notice on title about phased development) 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.

Restriction — no change to shares in common elements without consent

234         A phasing amendment may not be registered if it purports to change the percentage share in the common elements 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

235(1)      Before a phasing amendment is submitted to the district registrar for registration, an 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 to the condominium corporation, each owner of an existing unit and each unit mortgagee entitled to notice and, if the amendment creates a new phase, to each person whose consent is required under subsection 232(1) or (3),

(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 238 within 30 days after receiving the notice.

Condominium corporation may give notice

235(2)      If the owner-developer fails or refuses to prepare, submit or give a notice as required by subsection (1) after being requested to do so in writing by the condominium corporation, the corporation may prepare, submit or give the notice on the owner-developer's behalf.

District registrar to register notice on title

235(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 condominium corporation; and

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

giving notice of the proposed amendment.

Condominium corporation's response to proposed amendment

236(1)      When an owner-developer requests a condominium 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 unit owner and no person entitled to notice of the amendment under clause 235(1)(c) has applied to the court for an order under section 238 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 by section 237 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 must

(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 231(1)(a) or (b), as the case may be, to the registration of the amendment.

Condominium corporation must act reasonably

236(2)      A condominium 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

237(1)      This section sets out different registration requirements for different types of phasing amendments.

1.

For one that creates a proposed phase but does not implement it, see subsection (3).

2.

For one that amends the description of a proposed phase already described in the declaration, see subsection (4).

3.

For one that implements a phase, see subsection (5).

Statutory declaration

237(2)      A statutory declaration required under this section must be made by an owner-developer or by a director or officer of a condominium corporation authorized by the board.

Registration requirements — amendment to create proposed phase

237(3)      The district registrar may accept for registration a phasing amendment to create a proposed phase only if it is accompanied by

(a) a statutory declaration that each person to be given information under clause 235(1)(c) was given that information;

(b) either

(i) a statutory declaration that the applicable consent requirement in subsection 231(1) was met after the unit owners received the information given under clause 235(1)(c), or

(ii) a certified copy of a court order permitting or requiring the amendment to be registered without meeting that requirement; and

(c) either

(i) a statutory declaration that the consent requirement in subsection 232(1) or (3) or both, as the case may be, has been met, or

(ii) a certified copy of a court order permitting or requiring the amendment to be registered without meeting that requirement.

Registration requirement — amendment to amend description of proposed phase

237(4)      The district registrar may accept for registration a phasing amendment to amend the description of a proposed phase only if it is accompanied by

(a) a statutory declaration that each person to be given information under clause 235(1)(c) was given that information; and

(b) either

(i) a statutory declaration that the applicable consent requirement in subsection 231(1) was met after the unit owners received the information given under clause 235(1)(c), or

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

Registration requirements — implementation of phase

237(5)      The district registrar may accept for registration a phasing amendment to implement a phase only if it is accompanied by any amendment to the plan necessitated by the amendment to the declaration and by

Phase not materially different — no court application

(a) a statutory declaration 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 235(1)(c) was given that information, and

(iii) no person entitled to information under clause 235(1)(c) applied to the court, within 30 days after receiving the information, for an order under section 238;

Phase not materially different — confirmed by court

(b) a statutory declaration 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 235(1)(c) was given that information,

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

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

(c) the following:

(i) a statutory declaration that

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

(B) each person to be given information under clause 235(1)(c) was given that information,

(ii) either

(A) a statutory declaration that the applicable consent requirement in subsection 231(1) was met after the unit owners received the information given under clause 235(1)(c), or

(B) a certified copy of a court order permitting or requiring the amendment to be registered without meeting that requirement,

(iii) if the amendment implements a new phase, either

(A) a statutory declaration that the consent requirement in subsection 232(1) or (3) or both, as the case may be, has been met, or

(B) a certified copy of a court order permitting or requiring the amendment to be registered without meeting that requirement.

Application to court

238(1)      After information about a proposed amendment has been given as required by clause 235(1)(c), an 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

238(2)      If the applicant is a person referred to in clause 235(1)(c), the application must be made within 30 days after the applicant receives the information to be given under that clause.

Notice of application

238(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

238(4)      The court 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 meeting the applicable consent requirement in subsection 231(1);

(c) if the phasing amendment creates a proposed phase, an order

(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 meeting the consent requirement in subsection 232(1) or (3);

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

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

(f) an order

(i) requiring the owner-developer to compensate the condominium corporation or one or more owners of existing units, or both, for any detrimental effect to the corporation or to the use 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, and

(ii) determining the amount to be paid as compensation;

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

(h) any other order the court considers appropriate.

Effect of registration — implementation of phase

239         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 elements after the registration are the same as the percentage shares held by them in the common elements that were created before the registration, or

(B) if an owner of an existing unit has consented as permitted by section 234 to a change in his or her percentage share in the common elements, the percentage share held by him or her after the registration is as set out in the amendment, and

(ii) the owners of the new units created by the registration according to the percentage shares in the common elements 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 clause 11(1)(e);

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

(i) continues to affect each new unit created by the registration and its share in the 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 to a change in his or her percentage share in the common elements, any registered instrument that, before registration, affected the unit

(i) continues to affect the unit and its increased share in the 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

240         After registering a phasing amendment, the district registrar must remove the entries made under subsection 235(3) in respect of that amendment.

FAILURE TO COMPLETE PHASE

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

241(1)      If a proposed phase will not be completed by the relevant due date, an 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 subsection 231(1) or an order 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 condominium corporation, each owner of an existing unit and each unit mortgagee entitled to notice

(i) a copy of the notice, and

(ii) a copy of the proposed amendment.

District registrar to register notice on title

241(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 condominium corporation; and

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

giving notice of the proposed amendment.

Application to court

242(1)      If

(a) notice of a proposed amendment about a proposed phase is given under section 241;

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

(c) the consents required by subsection 231(1) have not been obtained;

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

Notice of application

242(2)      The owner-developer must give written notice of the application under subsection (1) to each person entitled to notice under clause 241(1)(c).

Application by others

242(3)      Any person entitled to notice under clause 241(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

242(4)      The court 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

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

(ii) a plan of survey for the land comprising the unit or the part of a unit to be removed from the property;

(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

(i) requiring the owner-developer to compensate the condominium corporation or one or more owners of existing units, or both, for any detrimental effect to the corporation or to the use of the property by unit owners resulting from the owner-developer's failure to complete the phase as described in the declaration, and

(ii) determining the amount to be paid as compensation;

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

(g) any other order the court considers appropriate.

Grounds for order to remove unit

242(5)      The court may make an order under clause 4(c) if the court is of the opinion that the removal would be just, having regard to

(a) the scheme and intent of this Act;

(b) the probability of unfairness to the unit owners if the court does not order the removal;

(c) the probability of confusion and uncertainty in the affairs of the condominium corporation or the unit owners if the court does not order the removal; and

(d) the best interests of the unit owners.

Additional order — removal of unit

242(6)      An order for the removal of all or part of a phasing unit must specify the effect of the removal on

(a) the percentage shares held by the remaining unit owners in the common elements;

(b) the proportions in which the remaining unit owners hold voting rights in the condominium corporation; and

(c) the proportions in which the remaining unit owners are required to contribute to the common expenses and the reserve fund.

Effect of order to remove unit

242(7)      If the court order requires all or part of a phasing unit to be removed from the property, the unit or part of the unit to be removed ceases to be governed by this Act and no longer includes an interest in the common elements.

Vesting of interest in increased share in common elements

242(8)      If the removal of all or part of the phasing unit results in an increase in the remaining existing unit owners' percentage shares in the common elements, the interests in the increased shares are vested in those owners.

Effect of increased share in common elements on registered instrument

242(9)      If the removal of the phasing unit or part of the unit results in an increase in a unit owner's percentage share in the common elements, any instrument registered against that unit and its share in the common elements continues to affect that unit and its increased share in the common elements.

Condominium corporation may act on owner-developer's behalf

243         If an owner-developer fails or refuses to do anything as required by section 241 or 242, the condominium 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

244(1)      A condominium corporation must submit the proposed amendment referred to in section 241 to the district registrar for registration, along with the documents required by subsection (2), within 30 days after

(a) the applicable requirement under subsection 231(1) for unit owners' consent has been met; or

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

Registration requirements

244(2)      When submitting the amendment for registration, the condominium corporation must also provide to the district registrar

(a) a statutory declaration that each person to be given information under clause 241(1)(c) was given that information; and

(b) either

(i) a statutory declaration that the applicable consent requirement in subsection 231(1) was met after the unit owners received the information given under clause 241(1)(c), or

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

Statutory declaration

244(3)      A statutory declaration required under this section must be made by the owner-developer or by a director or officer of the condominium corporation authorized by the board.

Removal of notice after registration

244(4)      After registering an amendment under this section, the district registrar must remove the entries made under subsection 241(2) in respect of that amendment.

OTHER MATTERS

Non-application

245         Section 222 (arbitration) does not apply to a dispute about the creation or implementation of a phasing amendment.

Duty of owner-developer

246(1)      An owner-developer must deliver to the board prescribed records, documents, items and information within the prescribed time period.

Costs borne by owner-developer

246(2)      The owner-developer is responsible for the costs related to preparing the records, documents, items and information to be delivered under this section.

PART 14

AMALGAMATION

Overview

247         This Part

(a) provides for the creation and registration of a condominium corporation formed by the amalgamation of two or more condominium corporations; and

(b) establishes the legal effects of that amalgamation.

Definitions

248         The following definitions apply in this Part.

"amalgamated corporation" means the condominium corporation formed by the amalgamation of two or more condominium corporations. (« corporation issue de la fusion »)

"amalgamating corporation" means a condominium corporation that amalgamates with, or intends to amalgamate with, one or more other condominium corporations to form an amalgamated corporation. (« corporation fusionnante »)

"amalgamation proposal" means the proposal described in subsection 250(2). (« proposition de fusion »)

Non-application

249         This Part does not apply to the following:

(a) a leasehold condominium corporation;

(b) the condominium corporation for a property in a phased development.

Amalgamation permitted

250(1)      Two or more condominium corporations registered in the same land titles district may amalgamate and continue as one condominium corporation in accordance with this Part.

Proposal to amalgamate

250(2)      Two or more condominium corporations that wish to amalgamate must prepare an amalgamation proposal that includes

(a) the proposed declaration for the amalgamated corporation;

(b) a statement of financial projections for the amalgamated corporation, for the 12-month period beginning with the first month for which all unit owners will be required to make monthly contributions to the common expenses, that meets the requirements of subsection 49(2);

(c) the proposed by-laws and rules of the amalgamated corporation;

(d) the terms and conditions of the proposed amalgamation;

(e) the names and addresses of the first directors of the amalgamated corporation; and

(f) any additional information required by the regulations.

Meeting of unit owners to consider proposal

251(1)      After an amalgamation proposal is approved by the boards of the amalgamating corporations, the board of each amalgamating corporation must hold a general meeting of each corporation's unit owners to consider the proposal.

Meetings may be held jointly

251(2)      If the boards of the amalgamating corporations agree, the meetings of unit owners to consider the proposal may be held as a joint general meeting of unit owners of all the amalgamating corporations.

Content of notice

251(3)      The notice of a general meeting of unit owners to consider the proposal must include

(a) a copy of the amalgamation proposal;

(b) a copy of each amalgamating corporation's most recent budget and financial statements, together with the auditor's report on the financial statements, if they were audited;

(c) a copy of the reserve fund study for each amalgamating corporation, conducted or last updated no earlier than one year before the meeting date, or a summary of it done in accordance with the regulations;

(d) a copy of this Part; and

(e) any additional information required by the regulations.

Notice to prospective unit owners

252         A unit owner who

(a) before receiving the notice, has entered into an agreement to sell his or her unit; or

(b) after receiving the notice and before the date of registration of the amalgamation, enters into an agreement to sell his or her unit;

must promptly give a copy of the notice to the buyer of the unit.

Approval of unit owners required

253         An amalgamating corporation may proceed with the amalgamation only if the amalgamation proposal is consented to in writing at the meeting referred to in section 251 or within 180 days after that meeting,

(a) if the meeting is held

(i) before the condominium corporation's turn-over meeting, or

(ii) while the declarant in relation to that amalgamating corporation owns a majority of the voting rights in that corporation,

by unit owners, other than the declarant, who hold the specified percentage of the voting rights in the amalgamating corporation held by such unit owners; or

(b) in any other case, by unit owners who hold the specified percentage of the voting rights in the amalgamating corporation.

Documents to be filed for registration

254(1)      To effect an amalgamation, the proposed declaration and by-laws for an amalgamated corporation must be submitted to the district registrar for registration.

Additional requirements

254(2)      The proposed declaration must

(a) meet all the requirements of subsections 13(1) and (2) and, if applicable, subsections 13(3) and (4);

(b) be signed on behalf of each amalgamating corporation by a director or officer of the corporation authorized to sign the declaration on its behalf; and

(c) be accompanied by a statutory declaration for each amalgamating corporation, signed by one of its directors or officers, that

(i) a meeting of the amalgamating corporation's unit owners to consider the amalgamation proposal has been held in accordance with this Part, and

(ii) the required written consents of unit owners have been obtained.

Plan

254(3)      A plan for the property of an amalgamated corporation may be submitted to the district registrar for registration. If no such plan is submitted, the individual plans for the properties of the amalgamating corporations collectively are deemed to become the plan for the property of the amalgamated corporation.

Effect of declaration's registration

255(1)      Upon the registration of the declaration for an amalgamated corporation,

(a) that declaration replaces the declarations for each of the amalgamating corporations and this Act continues to govern the land described in the declaration and shown on the plan;

(b) the amalgamating corporations are amalgamated and continue as the amalgamated corporation;

(c) the amalgamated corporation has a name consisting of

(i) the name of the land titles district in which the registration occurs,

(ii) the words "Condominium Corporation", and

(iii) the abbreviation "No." together with a number which is to be, at the option of the amalgamating corporations,

(A) the next available consecutive number for a condominium corporation to be registered in that land titles district, or

(B) the number assigned to one of the amalgamating corporations;

(d) the members of each amalgamating corporation become members of the amalgamated corporation;

(e) the units in the property of each amalgamating corporation become the units in the property of the amalgamated corporation;

(f) the common elements in the property of each amalgamating corporation are consolidated and become the common elements in the property of the amalgamated corporation and the interests in those common elements are vested in the unit owners in accordance with the declaration;

(g) the titles for the properties issued in the names of the amalgamating corporations must be re-issued as one title in the name of the amalgamated corporation;

(h) the title for each unit affected by the amalgamation must be re-issued to reflect the changes resulting from the amalgamation;

(i) the common assets of each amalgamating corporation become the common assets of the amalgamated corporation;

(j) any registered instrument that, before the registration, affected a unit in one of the amalgamating corporations

(i) continues to affect the unit and its share in the consolidated common elements, and

(ii) in the case of a lease, memorandum of lease, mortgage or prescribed instrument, is discharged from — and ceases to apply to — any interest in the common elements that, after the amalgamation, is no longer included in the share in the common elements appurtenant to the unit;

(k) the amalgamated corporation is liable for the obligations of each amalgamating corporation;

(l) an existing cause of action, claim or proceeding is unaffected by the amalgamation;

(m) a claim, action or proceeding pending by or against an amalgamating corporation may continue to be brought by or against the amalgamated corporation;

(n) a conviction against, or ruling, order or judgment in favour of or against an amalgamating corporation may be enforced by or against the amalgamated corporation;

(o) each person named in the amalgamation proposal as a first director of the amalgamated corporation becomes a director of that corporation unless, at the time of the registration, he or she

(i) is no longer eligible to be a director of that corporation, or

(ii) has, by written notice to the amalgamating corporations, withdrawn his or her consent to act as a director;

(p) the proposed by-laws and rules set out in the amalgamation proposal become the by-laws and rules of the amalgamated corporation and replace the by-laws and rules of the amalgamating corporations;

(q) the terms and conditions applicable to the amalgamated corporation as set out in the amalgamation proposal apply to that corporation.

First directors

255(2)      A first director of the amalgamated corporation holds office until the first annual general meeting of unit owners of the corporation, unless he or she

(a) is removed and replaced earlier at a special general meeting; or

(b) resigns or ceases to be eligible to act as a director.

Notice of amalgamation

256         As soon as practicable after the registration of an amalgamation, the amalgamated corporation must notify the following persons that the corporation's declaration has been registered and that the amalgamating corporations have been amalgamated and are continued as the amalgamated corporation:

(a) each unit owner of the amalgamated corporation;

(b) each holder of a registered instrument against the title of a unit, other than an instrument referred to in section 141 of The Real Property Act;

(c) each insurer who provided insurance to one or more of the amalgamating corporations;

(d) each known creditor of each amalgamating corporation;

(e) any other person or class of persons specified in the regulations.

PART 15

WITHDRAWAL

Overview

257         This Part

(a) specifies the circumstances and manner in which a property or part of a property may be withdrawn from governance by this Act; and

(b) establishes the legal effects of the withdrawal.

How property may be withdrawn

258         A property or part of a property may be withdrawn from governance by this Act only by

(a) the registration of a notice of withdrawal under this Part with the consent of unit owners;

(b) the registration of a court order under this Part;

(c) the registration of an amendment to the declaration and plan to remove all or part of a phasing unit from the property as required by a court order made under section 242; or

(d) the registration under The Expropriation Act of a declaration of expropriation and the order confirming it, or the filing of a plan referred to in subsection 13(4) (filing plan of lands for highways, etc) of that Act, with the district registrar.

WITHDRAWAL OF ENTIRE PROPERTY WITH CONSENT

Withdrawal — unit owners' consent

259(1)      A condominium corporation may submit to the district registrar for registration a notice of withdrawal for the entire property if

(a) the proposed withdrawal is consented to in writing by each unit owner; or

(b) the proposed withdrawal is presented at a general meeting of unit owners and is consented to in writing, at that meeting or within 180 days after that meeting,

(i) if the meeting is held

(A) before the corporation's turn-over meeting, or

(B) while the declarant owns a majority of the voting rights in the condominium corporation,

by unit owners, other than the declarant, who hold the specified percentage of the voting rights in the corporation held by such unit owners, or

(ii) in any other case, by unit owners who hold the specified percentage of the voting rights in the corporation.

Notice of withdrawal

259(2)      The notice of withdrawal must

(a) be in the prescribed form;

(b) be signed by a director or officer authorized by the board to sign the notice; and

(c) include or be accompanied by a statutory declaration of the authorized director or officer that the consent requirement in subsection (1) has been met.

Consent of property lessor

259(3)      If the notice of withdrawal relates to a leasehold property, the notice of withdrawal must also include or be accompanied by the written consent of the property lessor.

Withdrawal — substantial damage

260(1)      A condominium corporation must submit a notice of withdrawal to the district registrar for registration if, in response to a notice of substantial damage given to the unit owners under section 184, the withdrawal is consented to in writing at a general meeting of unit owners, or within 30 days after that meeting, by unit owners who hold the specified percentage of the voting rights in the corporation.

Notice of withdrawal

260(2)      The notice of withdrawal must

(a) be in the prescribed form;

(b) be signed by a director or officer authorized by the board to sign the notice; and

(c) include or be accompanied by a statutory declaration of the authorized director or officer that

(i) the property has been substantially damaged, and

(ii) the consent requirement described in subsection (1) has been met.

Effect of registration

261         Upon the registration of a notice of withdrawal submitted under section 259 (consent of unit owners) or 260 (substantial damage),

(a) the property ceases to be divided into units and common elements and is no longer governed by this Act;

(b) the condominium corporation is dissolved and the plan is cancelled;

(c) the unit owners become tenants in common of the estate in fee simple or leasehold estate, as the case may be, of the land described in the declaration, in the following proportions:

(i) if the property included one or more bare land units, in proportion to the value of each owner's unit and its share in the common elements determined in accordance with the declaration,

(ii) in any other case, in proportion to their percentage shares in the common elements immediately before the registration of the notice of withdrawal;

(d) an instrument that was registered against the property before the declaration and plan were registered, and that has not been discharged or otherwise extinguished, is as effective as if the declaration and plan had not been registered;

(e) an instrument that was registered against a unit and its share in the common elements and that secures the payment of money or the performance of any other obligation becomes a claim against the unit owner's interest in the land immediately after the registration of the notice of withdrawal and has the same priority as it had immediately before that registration;

(f) an instrument registered against all the units affected by the notice of withdrawal continues in effect as an instrument registered against the land that was the subject of the declaration immediately before the notice of withdrawal was registered; and

(g) all other instruments that were registered against the property or any part of it after the declaration and plan were registered are extinguished.

WITHDRAWAL TO EFFECT SALE

Withdrawal — sale of entire property or part of common elements

262(1)      A condominium corporation may submit a notice of withdrawal for registration in respect of a sale of an entire property, or of a part of a property's common elements, only if

(a) information about the proposed sale is presented to the unit owners at a general meeting of unit owners along with an explanation that the sale will require the withdrawal of the property or the common elements to be sold from governance by this Act;

(b) the proposed sale is consented to in writing, at that meeting or within 180 days after that meeting,

(i) if the meeting is held

(A) before the condominium corporation's turn-over meeting, or

(B) while the declarant owns a majority of the voting rights in the condominium corporation,

by unit owners, other than the declarant, who hold the specified percentage of the voting rights in the corporation held by such unit owners, or

(ii) in any other case, by unit owners who hold the specified percentage of the voting rights in the condominium corporation;

(c) the proposed sale is consented to by each person who, at the date of the meeting, is the holder of an instrument, other than an instrument mentioned in section 141 of The Real Property Act, that was registered against the property or any part of it after the declaration and plan were registered;

(d) in the case of a part of the common elements being sold and withdrawn that includes common elements of which a unit owner has exclusive use, the proposed sale is consented to in writing by that owner; and

(e) in the case of a leasehold property, the property lessor has consented in writing to the proposed sale.

Consent to be given or withheld in good faith

262(2)      A person described in clause (1)(c) must act in good faith in giving or withholding consent.

Notice of withdrawal

262(3)      The notice of withdrawal must

(a) be in the prescribed form;

(b) be signed by an officer or director authorized by the board to sign the notice;

(c) include or be accompanied by

(i) a statutory declaration by the authorized director or officer that all applicable consent requirements in clauses (1)(b), (c) and (d) have been met, and

(ii) if the property is a leasehold property, the property lessor's written consent to the sale; and

(d) be accompanied by

(i) a registrable transfer of land for the property or the part of the common elements being sold, and

(ii) in the case of a transfer of land for a part of the common elements,

(A) an amendment to the declaration to remove, from the legal description of the property, the land comprising that part of the common elements, and

(B) amendments to the plan acceptable to the Examiner of Surveys.

Consent to amendments

262(4)      If amendments to the declaration and plan are required under subclause (3)(d)(ii), a person who consents to the withdrawal is deemed to have consented to the registration of those amendments.

Effect of registration

263         Upon the registration of a notice of withdrawal and transfer submitted for registration under section 262 (sale of entire property or part of common elements),

(a) if the entire property is transferred,

(i) it ceases to be divided into units and common elements and is no longer governed by this Act, and

(ii) the condominium corporation is dissolved and the plan is cancelled;

(b) if only a part of the common elements is transferred, that part ceases to be part of the common elements and is no longer governed by this Act;

(c) an instrument that was registered against the property before the declaration and plan were registered and that has not been discharged or otherwise extinguished is as effective as if the declaration and plan had not been registered;

(d) if the entire property is transferred, all instruments that were registered against the property or any part of it after the declaration and plan were registered are extinguished; and

(e) if only a part of the common elements is transferred, all instruments registered against the property or any part of it after the declaration and plan were registered are extinguished only as to that part of the common elements.

Share of sale proceeds

264(1)      Subject to subsection (2) and any arbitration award made under section 265, if an entire property or a part of the common elements is withdrawn to effect a sale, the unit owners immediately before the date of closing are entitled to share in the proceeds of sale in proportion to their percentage shares in the common elements.

Exception — sale of exclusive use common elements

264(2)      If only a part of the common elements is sold and that part includes common elements of which a unit owner has exclusive use, the portion of the sale proceeds attributable to those common elements is to be divided, subject to the declaration and as determined by the board, among the unit owners.

Exception — sale of property including bare land unit

264(3)      Despite subsections (1) and (2), if the property that is sold includes one or more bare land units, the unit owners immediately before the date of closing are entitled to share in the sale proceeds in proportion to the value of each owner's unit and its share in the common elements determined in accordance with the declaration.

Determination of value by arbitration

265(1)      A unit owner who did not consent to a sale under section 262 may, by written notice to the condominium corporation within 10 days after registration of the notice of withdrawal, require the fair market value of the property or the part of the common elements that was sold to be determined, as of the date of closing, by arbitration.

Arbitration Act applies

265(2)      The Arbitration Act applies to the arbitration and, despite section 32 of that Act, the law to be applied to any matter in dispute is the law of Manitoba.

Entitlement to amount

265(3)      The unit owner who gave a notice under subsection (1) is entitled to receive from the sale proceeds the amount the unit owner would have received if the sale price had been the fair market value as determined by the arbitration.

Insufficient proceeds

265(4)      If the sale proceeds are not sufficient to pay the amount under subsection (3), the unit owners who consented to the sale are liable for the deficiency in proportion to their percentage shares in the common elements.

WITHDRAWAL RESULTING FROM EXPROPRIATION

Effect of expropriation

266          Upon the registration of a declaration of expropriation and an order confirming it submitted to the district registrar under The Expropriation Act, or upon the filing of a plan referred to in subsection 13(4) of that Act with the district registrar,

(a) if the entire property is expropriated,

(i) it ceases to be divided into units and common elements and is no longer governed by this Act, and

(ii) the condominium corporation is dissolved and the plan is cancelled; and

(b) if only a part of the property is expropriated,

(i) that part ceases to comprise units, common elements or both, as the case may be, and is no longer governed by this Act, and

(ii) the declaration and plan are deemed to be amended as necessary to reflect the withdrawal of that part.

Share of expropriation proceeds

267(1)      Subject to subsections (2) to (4), if a property or a part of a property is expropriated, the unit owners as of the date of the expropriation are entitled to share in the expropriation proceeds in proportion to their percentage shares in the common elements.

Exception — expropriation of exclusive use common elements

267(2)      If only a part of the property is expropriated, and that part includes common elements of which a unit owner has exclusive use, the portion of the expropriation proceeds attributable to those common elements is to be divided, subject to the declaration and as determined by the board, among the unit owners.

Exception — expropriation of unit or part of unit

267(3)      If only part of the property is expropriated and that part includes a unit or part of a unit, the owner of that unit as at the date of expropriation is entitled to the portion of the expropriation proceeds attributable to that unit.

Exception — expropriation of property including bare land unit

267(4)      If the property that is expropriated includes one or more bare land units, the unit owners as at the date of the expropriation are entitled to share in the expropriation proceeds in proportion to the value of each owner's unit and its share in the common elements determined in accordance with the declaration.

WITHDRAWAL BY COURT ORDER

Withdrawal — court order

268(1)      A condominium corporation, a unit owner or a holder of a registered instrument against a unit and its share in the common elements may apply to the court for an order withdrawing all or part of the property from governance by this Act.

Grounds for order

268(2)      The court may order the withdrawal of the property or part of the property if it is of the opinion that the withdrawal would be just, having regard to

(a) the scheme and intent of this Act;

(b) the probability of unfairness to the unit owners if the court does not order the withdrawal;

(c) the probability of confusion and uncertainty in the affairs of the condominium corporation or unit owners if the court does not order the withdrawal; and

(d) the best interests of the unit owners.

Content of order

268(3)      If the court orders the withdrawal of the property or a part of the property, the order

(a) must specify the effect of the withdrawal on any registered instruments affected by the withdrawal;

(b) may

(i) require the applicant to compensate the condominium corporation or one or more unit owners, or both, for any detrimental effect to the corporation or to the use of the property by unit owners resulting from the withdrawal, and

(ii) determine the amount to be paid as compensation; and

(c) subject to subsection (4), may include any other provision the court considers appropriate.

Content of order — withdrawal of part of property

268(4)      If the order provides for the withdrawal of part of the property, the order must

(a) specify the effect of the withdrawal on

(i) the percentage shares of the remaining unit owners in the common elements,

(ii) the proportions in which the remaining unit owners hold voting rights in the condominium corporation, and

(iii) the proportions in which the remaining unit owners are required to contribute to the common expenses and the reserve fund; and

(b) require the applicant or condominium corporation to submit to the district registrar for registration a plan of survey for the land to be withdrawn.

Variation

268(5)      The court may vary an order made under this section.

Registration of order

268(6)      If the court orders the withdrawal of the property or a part of the property, the applicant must submit a certified copy of the order to the district registrar for registration.

Effect of registration

268(7)      Upon the registration of the order

(a) if the entire property is withdrawn,

(i) it ceases to be divided into units and common elements and is no longer governed by this Act, and

(ii) the condominium corporation is dissolved and the plan is cancelled;

(b) if one or more units or parts of units or parts of the common elements are withdrawn,

(i) they cease to be units, parts of units or common elements, as the case may be, and are no longer governed by this Act, and

(ii) the declaration and plan are deemed to be amended as necessary to reflect the withdrawal of that part;

(c) the registered instruments against the property or any part of the property are affected, or to be dealt with, as set out in the order; and

(d) if only part of the property is withdrawn, and that part includes a unit or part of a unit, the unit's share in the common elements or a part of that share is transferred to, and vests in, the other unit owners in accordance with the order.

Effect of increased share in common elements

268(8)      If the withdrawal of all or part of one or more units results in an increase in a unit owner's percentage share in the common elements, any instrument registered against that unit and its share in common elements continues to affect that unit and its increased share in the common elements.

ADDITIONAL ACTIONS REQUIRED

Action by district registrar on withdrawal

269         When registering a notice or other document to give effect to a withdrawal of a property or part of it under this Part, the district registrar must

(a) record on the title issued to the condominium corporation an entry that the property, or the withdrawn part of the property, as the case may be, is no longer governed by this Act;

(b) for any unit affected by the withdrawal of a part of the property, reissue a title to reflect the changes resulting from the withdrawal; and

(c) if any land is to be transferred in connection with the withdrawal, take all other steps as required under The Real Property Act to give effect to the transfer;

and may, if necessary, dispense with the production of the duplicate title without complying with section 26 of The Real Property Act.

Common assets to be distributed

270         When a property ceases to be governed by this Act,

(a) the condominium corporation's common assets must be used to pay all claims for the payment of money against the corporation; and

(b) the remainder of the common assets must be distributed among the former unit owners

(i) in proportion to their percentage shares in the common elements immediately before the property was withdrawn from governance by this Act, or

(ii) if the property included one or more bare land units, in proportion to the value of each unit and its share in the common elements determined in accordance with the declaration.

PART 16

LEASEHOLD PROPERTY

Overview

271         Under Part 2 (Condominium Registrations), a leasehold estate in land may be divided into units and common elements. This Part supplements the other provisions in this Act that deal with the leasehold condominium corporation and its unit owners in relation to the leasehold property.

Definitions

272         In this Part, "unit" means a unit in the leasehold property of a leasehold condominium corporation and "unit owner" means the owner of such a unit.

Application of Residential Tenancies Act

273         The Residential Tenancies Act does not apply to the leasehold estate of a unit owner in his or her unit and its share in the common elements, but does apply to the rental of that unit to a tenant if the unit is a residential unit.

Consent of property lessor not required to deal with unit

274         A unit owner may mortgage, sell or transfer his or her unit and its share in the common elements without the consent of the property lessor.

No transfer of part of leasehold estate

275         When a unit and its share in the common elements, or an undivided interest in a unit and its share in the common elements, are transferred, the term of the leasehold estate being transferred may not be for less than the unexpired term of the property lease.

Leasehold condominium corporation's responsibilities under property lease

276         A leasehold condominium corporation must, on behalf of all the unit owners, exercise the rights and perform the obligations of the lessee under the property lease.

Mediation of dispute

277         In the event of a dispute regarding the interpretation of a property lease, the property lessor and the leasehold condominium corporation may, by agreement, submit the matter to mediation. Section 221 applies, with necessary changes, to such a mediation.

RENEWAL OF PROPERTY LEASE

Renewal of property lease

278(1)      Subject to this Part, a property lease may be renewed only

(a) in accordance with a provision of the property lease governing its renewal; or

(b) by an agreement between the property lessor and the leasehold condominium corporation that extends the term of the property lease and does not otherwise vary the terms of the lease except for the amount payable as rent under the lease.

Minimum term of renewal

278(2)      Every renewal of a property lease must be for a term of at least 10 years.

Notice about renewal

279(1)      At least five years before the term of a property lease expires, the property lessor must give the leasehold condominium corporation

(a) if the corporation has an option to renew the lease, written notice of

(i) the corporation's right to exercise that option, including the time for exercising it and the manner in which it may be exercised, and

(ii) the term of the renewal and the rental rate or rates payable during the term, or a method or criteria for determining the rental rate or rates; or

(b) if the corporation does not have an option to renew the lease, written notice of either of the following:

(i) the property lessor's offer to renew the lease, including

(A) the term of the renewal,

(B) the rental rate or rates payable during the term, or a method or criteria for determining the rental rate or rates, and

(C) a statement that the renewal requires the agreement of the leasehold condominium corporation,

(ii) the property lessor's intention not to renew the lease.

Copy of notice to unit owners

279(2)      As soon as practicable after receiving notice under subsection (1), the leasehold condominium corporation must give a copy of it to the unit owners.

Unit owners to be notified of failure

279(3)      If the leasehold condominium corporation does not receive notice under subsection (1), it must, as soon as practicable after the deadline for giving the notice, notify the unit owners of the property lessor's failure to give notice and of the corporation's statutory option to renew the lease under section 280.

Statutory right of renewal

280         If the property lessor under a property lease fails to give notice as required by section 279, the lease is renewable, at the option of the leasehold condominium corporation, for a renewal term of 10 years at the following rental rate or rates:

(a) if the corporation has a contractual option to renew the lease, at the rental rate or rates specified in that option or determined in accordance with the method or criteria specified in that option;

(b) in any other case, at the last rental rate payable under the lease.

Unit owners to consider property lease renewal

281(1)      The board of a leasehold condominium corporation must hold a general meeting of unit owners to consider the renewal of the property lease at least four years before the term of the lease expires.

Renewal requires consent of unit owners

281(2)      The leasehold condominium corporation may exercise its option to renew the lease, or accept the property lessor's offer to renew the lease, only if the renewal is consented to in writing, at the meeting held under subsection (1) or within 180 days after that meeting, by unit owners who hold the specified percentage of the voting rights in the corporation.

Renewal and notice

281(3)      As soon as practicable after the required level of consent to the renewal of the lease has been obtained, the leasehold condominium corporation must

(a) take the necessary steps to renew the lease;

(b) submit to the district registrar for registration under subsection 91(3) of The Real Property Act a notice confirming that the lease has been renewed; and

(c) give a copy of the notice to the property lessor and to the unit owners.

Notice of non-renewal

281(4)      If the time for consenting to the renewal has expired and the required level of consent was not obtained, the leasehold condominium corporation must promptly notify the property lessor and the unit owners, in writing, that

(a) the required level of consent was not obtained; and

(b) the lease has not been renewed.

TERMINATION OR EXPIRY OF PROPERTY LEASE

No termination except by or under court order

282(1)      A property lease may be terminated only by or in accordance with an order of the court under this section.

Application to court

282(2)      The property lessor may apply to the court for an order terminating, or permitting the lessor to terminate, the property lease if the leasehold condominium corporation

(a) has failed to pay to the property lessor the rent or other amounts payable under the property lease; or

(b) has failed to comply with a court order.

Court order

282(3)      On an application under this section, the court may make any order it considers to be just having regard to the scheme and intent of this Act and the interests of all persons who would be affected by the order.

Registration of order with district registrar

282(4)      If the property lease is terminated by the court order, the property lessor must submit a certified copy of the order to the district registrar for registration promptly after the termination date.

Registration of notice of termination with district registrar

282(5)      If the lease is terminated by the property lessor in accordance with the court order permitting the lessor to do so, the lessor must submit a notice of termination to the district registrar for registration promptly after the termination date. The notice must be in a form acceptable to the district registrar and must be accompanied by

(a) a certified copy of the order; and

(b) a statutory declaration that the lease has been terminated in accordance with the order.

Effect of termination or expiry of property lease

283(1)      If a property lease is terminated by or in accordance with an order under section 282 or expires,

(a) the interests of the unit owners and the leasehold condominium corporation in the leasehold property cease to exist;

(b) the leasehold condominium corporation is dissolved and the plan is cancelled;

(c) the land that was the subject of the leasehold estate is no longer governed by this Act;

(d) a claim that does not secure the payment of money and was registered against the leasehold estate of a unit owner is extinguished, unless the property lessor consented to its registration, in which case, the claim continues against the land and the lessor; and

(e) any claim that secures the payment of money and was registered against the leasehold estate of a unit owner before it ceased to exist continues as a claim against that former owner but is extinguished as a claim against the land.

Court order prevails

283(2)      If there is a conflict between subsection (1) and an order made under section 282, the order prevails.

Common assets to be distributed

284         When a property lease is terminated by or in accordance with an order under section 282 or expires

(a) the leasehold condominium corporation's common assets must be used to pay all claims for the payment of money against the corporation; and

(b) the remainder of the common assets must be distributed among the former unit owners

(i) in proportion to their percentage shares in the common elements immediately before the termination or expiry of the lease, or

(ii) if the property included one or more bare land units, in proportion to the value of each unit and its share in the common elements determined in accordance with the declaration.

PART 17

GENERAL

Giving notices and other documents

285(1)      A notice or other document that is required or permitted to be given under this Act or a condominium corporation's declaration, by-laws or rules must be given in one of the following manners:

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

(i) by leaving it with the unit owner,

(ii) by mailing it by ordinary mail to the address given to the corporation by the unit owner,

(iii) by faxing it to a fax number given to the corporation by the unit owner, but only if he or she agrees in writing that notices may be given in this manner,

(iv) by sending it by e-mail or other method of electronic communication that provides confirmation that it was sent, but only if he or she agrees in writing that notices may be given in this manner, or

(v) by a prescribed manner;

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

(i) by delivering it or mailing it by ordinary mail to the address provided by the unit mortgagee,

(ii) by faxing it to a fax number provided by the unit mortgagee,

(iii) by sending it by e-mail, or other method of electronic communication that provides confirmation that it was sent, to the address provided by the unit mortgagee, or

(iv) by a prescribed manner;

(c) in the case of a notice or other document to be given to a holder of a registered instrument other than a unit mortgagee,

(i) by delivering it or mailing it by ordinary mail to the address for service set out in the registered instrument, or

(ii) by a prescribed manner.

Notice to be addressed

285(2)      The notice or other document required or permitted to be given to a unit owner may be addressed to the person by name or to the person as unit owner.

Person deemed to be required recipient

285(3)      A person whose name appeared on the list of unit owners or unit mortgagees referred to in clause 131(1)(c) or (d) (records of condominium corporation) on the day that the notice or other document is given is deemed to be the person to whom it is required to be given for the purposes of this Act.

Giving notice to condominium corporation

285(4)      A notice or other document that is required or permitted to be given to a condominium corporation under this Act or a declaration, by-law or rule must be given in one of the following manners:

(a) by leaving it with a director;

(b) by mailing it by ordinary mail to the corporation at its most recent mailing address in the records of the district 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, if any, used by the corporation for receiving such notices;

(e) by a prescribed manner.

When notice mailed

285(5)      A notice or other document that is given by ordinary mail under this section is deemed to be received on the fifth day after it is mailed.

When notice sent by fax or electronically

285(6)      A notice or other document that is given by fax or e-mail or other method of electronic communication is deemed to be received on the day after it was sent unless there are reasonable grounds to believe that the person did not receive the notice or document.

Actual notice sufficient

285(7)      If a notice or document 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 the applicable provision.

District registrar may direct otherwise

285(8)      In the case of a notice or document in respect of which a statutory declaration must be made, the district registrar may direct that the notice or document be given in a manner other than as described in subsection (1) or (4) or to a person other than the unit owner, unit mortgagee, other holder of a registered instrument or condominium corporation, as the case may be.

Non-application

285(9)      This section does not apply to a notice of an application to court.

Request for names and addresses of unit owners, mortgagees

286(1)      For the purpose of giving a notice or other document in accordance with section 285, a declarant, owner-developer, unit owner or unit mortgagee may request that the condominium corporation provide the names and addresses and, if applicable, fax numbers and e-mail addresses of the unit owners and the unit mortgagees who are entitled to notice. The recipient may not use that information for any other purpose.

Condominium corporation must comply with request

286(2)      A condominium corporation must provide the information referred to in subsection (1) in a timely manner and without charge.

False, misleading statements

287(1)      A declarant or owner-developer must not, in a statement or information that he or she is required to provide under this Act,

(a) make a material statement or provide material information that is false, deceptive or misleading; or

(b) omit a material statement or material information that the declarant or owner-developer is required to provide.

Right of action

287(2)      A condominium corporation or unit owner may apply to the court to recover damages from a declarant or owner-developer, as the case may be, for any loss sustained as a result of relying on a statement or on information that the declarant or owner-developer is required to provide under this Act if the statement or information

(a) contains a material statement or material information that is false, deceptive or misleading; or

(b) does not contain a material statement or material information that the declarant or owner-developer is required to provide.

Dangerous activities

288         No person shall permit a condition to exist — or carry out an activity — in a unit or with respect to the common elements if the condition or activity is likely to damage real or personal property of any kind or cause injury to an individual.

Offence and penalty — condominium corporation, other persons

289(1)      Every condominium corporation and every other person (including a declarant) who contravenes one or more of the following provisions is guilty of an offence and is liable on summary conviction to a fine up to the amount set out in subsection (4):

(a) subsection 75(2) or (4) (turn-over meeting);

(b) section 131 (records kept and maintained);

(c) subsection 147(1) (investment — reserve fund account);

(d) subsection 152(1) (investment — general account);

(e) section 153 (money held in trust and deposited in general account);

(f) section 154 (keeping, accessing and examining records).

Offence and penalty — declarant

289(2)      A declarant who contravenes one or more of the following provisions is guilty of an offence and is liable on summary conviction to a fine up to the amount set out in subsection (4):

(a) section 51 (disclosure to buyer);

(b) subsection 77(1) (documents and items to be turned over at meeting);

(c) subsection 78(1) (construction and other documents to be turned over);

(d) section 79 (financial statements to be turned over);

(e) subsection 287(1) (false, misleading statement).

Offence and penalty — owner-developer

289(3)      An owner-developer who contravenes subsection 246(1) (documents and items to be delivered) or subsection 287(1) (false, misleading statement) is guilty of an offence and is liable on summary conviction to a fine up to the amount set out in subsection (4).

Fine amounts

289(4)      For the purpose of subsections (1), (2) and (3), the following is the amount of the fine for which a person is liable:

(a) in the case of an individual, a fine of not more than $25,000; and

(b) in the case of a corporation, a fine of not more than $100,000.

Offence and penalty — director or officer

289(5)      If a condominium corporation commits an offence under this Act, a director or officer of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of an offence and is liable on summary conviction to a fine of not more than $25,000, whether or not the corporation has been prosecuted or convicted.

Compliance order

289(6)      The court may make an order requiring a person convicted of an offence to comply with the provisions of this Act with which the person has failed to comply.

Time limit for prosecution

290         A prosecution under this Act may not be commenced later than two years after the day the alleged offence was committed.

Court order dispensing with consent

291         Upon application, the court may, on any terms it considers appropriate, dispense with a requirement under subsection 12(4) or clause 262(1)(c) for the consent of any person.

Person who may vote, consent or execute document on another's behalf

292(1)      A voting right may be exercised, a consent may be given or withheld or a document may be executed under this Act or a condominium corporation's declaration or by-laws,

(a) in the case of a unit owner who is a child,

(i) by the guardian of the child's estate, or

(ii) if no guardian has been appointed, by a person authorized by the court;

(b) in the case of a unit owner for whom a committee has been appointed under The Mental Health Act, by that committee;

(c) in the case of a unit owner for whom a substitute decision maker for real and personal property has been appointed under The Vulnerable Persons Living with a Mental Disability Act, by the substitute decision maker if he or she has the authority to exercise a voting right, give or withhold consent or execute a document; or

(d) in the case of a unit owner who is incapacitated for any other reason or is deceased, by the person who, at the applicable time, is authorized by law to control the owner's real and personal property.

Court order

292(2)      Upon application of a condominium corporation or unit owner, the court may, if satisfied that no authorized person is willing and reasonably available to vote, give or withhold consent or execute a document under this Act or the corporation's declaration or by-laws,

(a) authorize a person who has legal capacity to vote, give or withhold consent or execute the document; and

(b) make any other order that it considers necessary to give effect to that authorization.

PART 18

REGULATIONS

Regulations

293(1)      The Lieutenant Governor in Council may make regulations

(a) respecting interim occupancy fees;

(b) respecting the extent to which The Corporations Act applies to a class or classes of condominium corporations;

(c) respecting recordkeeping;

(d) respecting the classes of investments in which money in a general account or a reserve fund account may be invested and governing the making of such investments;

(e) respecting reserve fund studies and updates of those studies, including

(i) specifying classes of reserve fund studies, updates and condominium corporations,

(ii) exempting a class or classes of condominium corporations from the requirement to ensure a reserve fund study is conducted or updated,

(iii) prescribing the persons who may conduct any or all classes of reserve fund studies and updates and specifying their qualifications,

(iv) governing the content of any or all classes of reserve fund studies and updates, the standards that must be observed in conducting them and the time at which they are to be conducted,

(v) requiring condominium corporations created before section 148 came into force to ensure a reserve fund study is conducted or updated, and

(vi) providing for transitional matters respecting reserve fund studies and updates;

(f) respecting the appointment and qualifications of an auditor;

(g) respecting insurance;

(h) governing the use of insurance trustees;

(i) respecting the application of Parts 7, 9, 11 and 12 to a property in which all units are owned by the same person;

(j) respecting the application of The Residential Tenancies Act to the termination of a tenancy, including, in the case of the termination of a tenancy by a condominium corporation, disapplying or varying any provision of that Act;

(k) fixing the maximum amount that may be imposed by a condominium corporation as a levy on a unit owner who rents or leases his or her unit, or establishing a rate, formula or tariff for determining that maximum amount;

(l) respecting the manner in which notices or other documents may be given under this Act;

(m) respecting performance audits of the common elements for the purpose of making a claim under a warranty, including

(i) prescribing the persons who may conduct performance audits and specifying their qualifications and governing the obligations and powers of the person who conducts the audit,

(ii) governing the purpose and content of performance audits, the standards that must be observed in conducting them and the time at which they are to be conducted, and

(iii) specifying material to be included in a performance audit;

(n) respecting the application of this Act to rental units that are not units under this Act but that are situated on property governed by this Act and to tenants and holders of rights of first refusal in respect of such rental units;

(o) classifying condominium corporations and persons;

(p) exempting any class of condominium corporations or persons from any provision of this Act;

(q) defining any word or phrase used but not defined in this Act;

(r) prescribing forms;

(s) prescribing or specifying anything that is referred to in this Act as being prescribed or specified;

(t) respecting any matter required or authorized to be dealt with in the regulations;

(u) respecting any other matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the intent and purpose of this Act.

Application of regulations

293(2)      A regulation may be general or particular in its application and may apply to all condominium corporations or persons or any class of condominium corporations or persons.

Incorporation by reference

293(3)      A regulation that prescribes the following matters may adopt by reference any principle, standard, code or formula:

(a) the manner in which financial statements of a condominium corporation are to be prepared or generally accepted accounting principles for the purpose of those statements;

(b) the manner in which the auditor's report is to be prepared or generally accepted auditing standards for the purpose of that report.

The adoption may be with changes that the Lieutenant Governor in Council considers necessary or advisable and may be as the principle, standard, code or formula read at the time the regulation was made or as amended from time to time, including after the time at which the regulation is made.

PART 19

TRANSITIONAL PROVISIONS

Definition of "former Act"

294         In this Part, "former Act" means The Condominium Act, R.S.M. 1987, c. C170.

Declaration and plan deemed to be registered

295         A declaration or plan registered under the former Act is deemed to be registered under this Act.

Corporations continued

296         A corporation created and governed under the former Act on the day that this section came into force is continued as a condominium corporation under this Act.

Sales of units

297         Part 4 (Sales of Units) does not apply to an agreement of purchase and sale entered into before the day that Part came into force. Subsections 8(1) to (1.3) of the former Act as they existed immediately before the repeal of that Act continue to apply.

Election of two directors to board

298         To avoid doubt, section 69 applies to a board of a condominium corporation that was created before the day that section came into force if that board has not been replaced by a new board of directors referred to in subsection 11(4) of the former Act.

Terminating certain property management agreements

299(1)      A property management agreement

(a) that was entered into before the election of the new board of directors referred to in subsection 11(4) of the former Act and before the day this section came into force; and

(b) that provides for an automatic renewal of the agreement or a term of five years or more, or both;

may be terminated by the condominium corporation, without penalty and despite any term to the contrary in the agreement, with 90 days' written notice.

Expiry

299(2)      Subsection (1) expires and is no longer in force on the second anniversary date of the coming into force of that subsection.

Judgment against condominium corporation

300         Subsection 92(2) does not apply to a cause of action that arose before the day that section came into force. Subsection 10(11) of the former Act as it existed immediately before the repeal of that Act continues to apply.

Liens continued

301         A right of lien for the unpaid amount of any assessment, penalty or account that a condominium corporation has the right to recover from an owner under clause 14(1)(e) of the former Act is continued as a lien under section 162 of this Act.

Regulations

302         The Lieutenant Governor in Council may make regulations to remedy any difficulty, inconsistency or impossibility resulting from the transition to this Act from the former Act, including disapplying or varying any provision of this Act.

PART 20

RELATED AND CONSEQUENTIAL AMENDMENTS

Consequential amendment, C.C.S.M. c. M226

303         The definition "registered owner" in subsection 1(1) of The Municipal Assessment Act is amended by replacing clause (c) with the following:

(c) is the registered owner of a unit under The Condominium Act;

Consequential amendment, C.C.S.M. c. M257

304         The definition "registered owner of land" in section 1 of The Municipal Councils and School Boards Elections Act is amended by replacing subclause (b)(ii) with the following:

(ii) a person who is the registered owner of a unit under The Condominium Act.

Consequential amendment, C.C.S.M. c. P80

305         The definition "owner" in subsection 1(1) of The Planning Act is amended by replacing clause (b) with the following:

(b) a person who is the registered owner of a unit under The Condominium Act; and

Consequential amendment, C.C.S.M. c. R30

306(1)      The Real Property Act is amended by this section.

306(2)      Subsection 45(5) is amended by adding "any change agreement registered under subsection 179(1) of The Condominium Act," after "expropriation,".

306(3)      Section 141 is amended by adding "any change agreement registered under subsection 179(1) of The Condominium Act," after "expropriation,".

C.C.S.M. c. R119 amended

307(1)      The Residential Tenancies Act is amended by this section.

307(2)      Section 4 is amended by striking out "subsections 5(2) to (2.16)" and substituting "sections 26 to 31".

307(3)      Clauses 11(1)(a) and 11(1.1)(a) are amended by striking out "subsections 5(2) to (2.16)" and substituting "sections 26 to 31".

307(4)      Subsection 42(3) of The Residential Tenancies Act is amended by striking out "subsection 5(2.8) or (2.9)" and substituting "subsection 30(1) or (2)".

307(5)      Subsection 56.1(3) is amended by adding "condominium" before "corporation" wherever it occurs.

307(6)       Subsections 75.1(1) and (2) are amended by adding "condominium" before "corporation".

307(7)      Subsection 154(1) is amended

(a) by adding the following after item 8:

8.0.1.

When termination of a tenancy is authorized under section 205 of The Condominium Act, terminating the tenancy on a specified date.

(b) in item 9, by adding "or, if applicable, The Condominium Act" at the end; and

(c) by adding the following after item 9.1:

9.2.

Requiring a person against whom the director has granted an order of possession in respect of a rental unit that is a unit under The Condominium Act, or the owner of that unit, to compensate the condominium corporation for its reasonable costs incurred in obtaining and enforcing a writ of possession under subsection 157(2).

Consequential amendment, S.M. 2002, c. 39

308         Section 1 of The City of Winnipeg Charter is amended

(a) in the definition "owner", by replacing clause (b) with the following:

(b) a person who is the registered owner of a unit under The Condominium Act, and

(b) in the definition "registered owner", by replacing clause (c) with the following:

(c) is the registered owner of a unit under The Condominium Act;

PART 21

REPEAL, C.C.S.M. REFERENCE, AND COMING INTO FORCE

Repeal

309         The Condominium Act, R.S.M. 1987, c. C170, is repealed.

C.C.S.M. reference

310         This Act may be referred to as chapter C170 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

311         This Act comes into force on a day to be fixed by proclamation.


SCHEDULE B

THE RESIDENTIAL TENANCIES AMENDMENT ACT

C.C.S.M. c. R119 amended

1           The Residential Tenancies Act is amended by this Act.

2           Section 4 is replaced with the following:

Conflict with other Acts

4           If this Act conflicts with the provisions of another Act, other than subsections 5(2) to (2.16) of The Condominium Act, this Act prevails.

3(1)        Clause 11(1)(a) is replaced with the following:

(a) the provisions are not inconsistent with the prescribed form, this Act or subsections 5(2) to (2.16) of The Condominium Act; and

3(2)        Clause 11(1.1)(a) is replaced with the following:

(a) is inconsistent with this Act, The Life Leases Act or subsections 5(2) to (2.16) of The Condominium Act; or

3(3)         Subsection 11(4) is amended by striking out "subsection 56.1(1)" and substituting "subsection 56.1(3), unless section 75.1 applies".

4            Subsection 42(3) is replaced with the following:

Prohibition

42(3)       Despite subsection (1), the occupancy right under subsection 5(2.8) or (2.9) of The Condominium Act may not be assigned.

5           Section 56.1 is replaced with the following:

Notice that rental unit is unit under Condominium Act

56.1(1)     Before a prospective tenant enters into a tenancy agreement for a rental unit that is a unit under The Condominium Act, the landlord must give the tenant written notice that the rental unit is a unit in a property governed by that Act.

Consequence if notice not given

56.1(2)     If a landlord fails to comply with subsection (1), the tenant is entitled to continue to occupy the rental unit for at least two years from the date that the landlord gives the tenant the required notice.

Obligation — condominium documents

56.1(3)     When the rental unit is a unit under The Condominium Act, the landlord must give the tenant

(a) at the time the tenancy agreement is entered into, a copy of each provision of the declaration with which the tenant must comply and a copy of the by-laws and the rules, if any, of the corporation; and

(b) within 21 days after the landlord receives these documents from the corporation, a copy of any amendment to a provision of the declaration with which the tenant must comply, a by-law or a rule.

Exception

56.1(4)     Subsection (3) does not apply when the landlord is the owner of all the units in the condominium complex where the rental unit referred to in subsection (1) is located.

6           The following is added after section 75:

Additional obligations under Condominium Act

75.1(1)     A tenant of a rental unit that is a unit under The Condominium Act shall comply with that Act, and the declaration, by-laws and rules of the corporation that are referred to in that Act.

Additional obligation to ensure compliance

75.1(2)     A tenant of a rental unit that is a unit under The Condominium Act shall take all reasonable steps to ensure that any person that he or she permits in the condominium complex complies with that Act, and the declaration, by-laws and rules of the corporation that are referred to in that Act.

Exception

75.1(3)     Subsections (1) and (2) do not apply when the landlord is the owner of all the units in the condominium complex where the rental unit referred to in subsection (1) is located.

7            Subsection 99(6) is amended by adding ", if the tenant has provided written notice to the landlord of any change in address during the period that the tenant does not occupy the rental unit" at the end.

8            Subsection 133(1) is amended by striking out "and 135" and substituting ", 135 and 135.1".

9            The following is added after section 135:

Application

135.1(1)    This section applies to an application to the director that is made under section 133 after the day this section came into force for an order approving a rehabilitation scheme.

Registered notice in L.T.O. — rehabilitation scheme order

135.1(2)    The director may submit for registration in the appropriate land titles office a notice that the land on which a residential complex is located is the subject of an order under section 134 approving a rehabilitation scheme.

Contents of notice

135.1(3)    The notice must be in a form acceptable to the district registrar and must include the legal description of the land affected and the date upon which the order approving the scheme was made.

Effect of registration

135.1(4)    When a notice is registered under subsection (2), the district registrar must

(a) make an entry on the title of the land affected; and

(b) notify the registered owner of that land about the notice.

Registration lapses after four years

135.1(5)    The registration of a notice lapses four years after the date on which the order under section 134 was made. The district registrar may remove the entry made on the title under clause (4)(a).

Registered notice may be discharged

135.1(6)    The director may, in accordance with the regulations, submit to the district registrar of the appropriate land titles office a discharge of the registered notice before the end of the four-year period if the director considers it appropriate.

Removal of entry

135.1(7)    When a discharge is submitted under subsection (6), the district registrar must remove the entry on the title made under clause (4)(a).

10          Subsection 152(1) is amended by striking out "or" at the end of clause (b), adding "or" at the end of clause (c) and adding the following after clause (c):

(d) the length of time a tenant is entitled to continue to occupy a rental unit that is a unit under The Condominium Act after the declaration is registered under that Act.

11           Subsection 194(1) is amended by adding the following after clause (k):

(k.1) respecting the discharge of a notice registered under section 135.1;

(k.2) respecting the application of this Act to tenants and holders of rights of first refusal in respect of rental units that are not units under The Condominium Act but that are situated on land in respect of which a declaration and plan have been registered under that Act;

Conditional amendment, S.M. 2009, c. 10 (unproclaimed)

12(1)        If subsection 62(3) of The Residential Tenancies Amendment Act, S.M. 2009, c. 10, comes into force before section 7 of this Act comes into force, then on the coming into force of subsection 62(3), section 7 is replaced with following:

7 Subsection 99(6) is amended by striking out "and" at the end of clause (a), adding "and" at the end of clause (b) and adding the following after clause (b):

(b.1) informs the landlord in writing of any change of address during the period that the tenant is not in occupancy of the rental unit;

12(2)       If subsection 62(3) of The Residential Tenancies Amendment Act, S.M. 2009, c. 10, comes into force after section 7 of this Act comes into force, then on the coming into force of subsection 62(3), subsection 99(6) of The Residential Tenancies Act is amended by striking out "and" at the end of clause (a), adding "and" at the end of clause (b) and adding the following after clause (b):

(b.1) informs the landlord in writing of any change of address during the period that the tenant is not in occupancy of the rental unit;

Coming into force

13(1)       This Act, except sections 2 to 5 and 7 to 10, comes into force on the day it receives royal assent.

13(2)       Sections 2 to 5 and 7 to 10 come into force on a day to be fixed by proclamation.


SCHEDULE C

THE CONDOMINIUM AMENDMENT ACT

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:

"condominium conversion" means the creation of one or more units that include or form part of a building that, at any time before the registration of the declaration, was occupied in whole or in part by any person, including a tenant, other than

(a) a purchaser occupying a unit to be created, and

(b) a person occupying the building or any part of it for the sole purpose of marketing the units to be created; (« conversion en condominium »)

"existing tenured rental unit" means a rental unit that becomes or will become a unit under this Act upon the registration of a declaration and is or will be, at the time of registration of the declaration,

(a) occupied by a tenant under a tenancy agreement, or

(b) the subject of a right of first refusal; (« unité locative existante occupée »)

"right of first refusal" means a right of first refusal under section 99 of The Residential Tenancies Act to rent a rental unit upon the completion of a renovation; (« droit de premier refus »)

"tenancy agreement" means a tenancy agreement as defined in The Residential Tenancies Act; (« convention de location »)

3           The following is added after subsection 4(2):

Limitation — registration of declaration and plan

4(2.1)      A declaration and plan shall not be registered in respect of

(a) land that is the subject of a notice under section 135.1 (notice registered in L.T.O. — rehabilitation scheme order) of The Residential Tenancies Act that has not lapsed or been discharged; or

(b) land that includes or has included, within the previous 365 days, one or more rental units, unless the district registrar is satisfied that no tenancy of any of the units was terminated by the landlord for any reason, other than a breach of the tenant's obligations under the tenancy agreement or The Residential Tenancies Act, after the later of

(i) the day this clause comes into force, and

(ii) the day that is 365 days before the declaration and plan were submitted for registration.

Additional requirement — condominium conversion

4(2.2)      Subject to subsection (2.3), a declaration in respect of a condominium conversion that includes or has included one or more rental units shall not be registered unless it is accompanied by a certificate of approval for a condominium conversion issued by the municipality in which the land that is the subject of the declaration is situated.

Limited application

4(2.3)      Subsection (2.2) applies only if

(a) in the case of land that is situated in the City of Winnipeg, the council of the city has passed an applicable by-law under section 157.2 of The City of Winnipeg Charter; or

(b) in the case of land that is situated in any other municipality, the council of the municipality has passed an applicable by-law under clause 232(1)(c.2) of The Municipal Act.

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

Statutory declarations to accompany declaration

5(1.1)      A declaration shall not be registered unless it is accompanied by

(a) a statutory declaration that the declaration is not in respect of a condominium conversion;

(b) a statutory declaration that the declaration is in respect of a condominium conversion and that no building on the land that is the subject of the declaration includes or has included one or more rental units at any time before the declaration is submitted for registration; or

(c) one or more statutory declarations set out in subsection (1.2).

Declaration — condominium conversion

5(1.2)      A declaration in respect of a condominium conversion of land that includes or has included one or more rental units shall not be registered unless it is accompanied by one or more of the following statutory declarations, whichever applies:

(a) where the land that is the subject of the declaration includes or has included, within the previous 365 days, one or more rental units, a statutory declaration from the landlord that no tenancy has been terminated by the landlord for any reason, other than a breach of the tenant's obligations under the tenancy agreement or The Residential Tenancies Act, after the later of

(i) the day this clause comes into force, and

(ii) the day that is 365 days before the declaration and plan were submitted for registration;

(b) where the land that is the subject of a declaration includes one or more existing tenured rental units, a statutory declaration from the owner of the estate in fee simple or the lessee, as the case may be, that, at the time of submitting the declaration, the notice requirements under subsections (2.3) and (2.5) have been met;

(c) a statutory declaration that approval for the condominium conversion is required under a by-law referred to in subsection 4(2.3) or that no such approval is required.

4(2)        Subsections 5(2) to (2.5) are replaced with the following:

Application

5(2)        Subsections (2.1) to (2.16) apply despite any provision to the contrary in a tenancy agreement or The Residential Tenancies Act.

Limitation

5(2.1)      Subsections (2.2) to (2.16) do not apply in respect of

(a) an existing tenured rental unit occupied under a life lease as defined in The Life Leases Act; or

(b) an existing tenured rental unit occupied under a temporary tenancy as defined in subsection 102(1) of The Residential Tenancies Act.

Rights and duties not affected by registration

5(2.2)      Subject to subsections (2.8) to (2.12), the registration of a declaration and plan does not affect the rights and duties under The Residential Tenancies Act of

(a) the tenant of an existing tenured rental unit;

(b) the holder of a right of first refusal in relation to an existing tenured rental unit; or

(c) the landlord of an existing tenured rental unit.

Notice of proposed registration

5(2.3)      At least six months before a declaration for a property that includes one or more existing tenured rental units is submitted for registration, the owner of the land that is the subject of the declaration, or a person acting on his or her behalf, must give a written notice of the proposed registration to

(a) each tenant who, on the day the notice is given, occupies such a rental unit or has entered into a tenancy agreement to occupy such a rental unit; and

(b) each person who, on the day the notice is given, holds a right of first refusal in respect of such a rental unit.

Content of notice

5(2.4)      The notice must contain prescribed information.

Notice to prospective tenant of proposed registration

5(2.5)      If, after giving the notice required by subsection (2.3) and before the declaration is registered, the owner of the land that is the subject of the proposed declaration wishes to enter into a tenancy agreement for the occupancy of a unit to be created on the registration of the declaration as a rental unit, the prospective tenant must be given a copy of that notice before the prospective tenant enters into the agreement.

Notice of registration of declaration

5(2.6)      As soon as practicable after the declaration is registered, the owner of an existing tenured rental unit must give a written notice containing prescribed information about the registration to each person entitled to notice under subsections (2.3) and (2.5).

Time for giving notice to holder of first refusal

5(2.7)      The notice under subsection (2.6) to a holder of a right of first refusal must be given before that right is exercised.

Tenant's right to continue in occupancy

5(2.8)      A tenant of an existing tenured rental unit who occupies the unit at the time of registration of the declaration has a right, subject only to the rights of termination referred to in subsection (2.10), to continue to occupy the rental unit for at least

(a) two years after the date the tenant receives the notice of registration of the declaration; or

(b) the length of time that the tenant has been in continuous occupancy of a rental unit as of the date the tenant receives the notice;

whichever is longer.

Occupancy right of holder of a right of first refusal

5(2.9)      If the holder of a right of first refusal in relation to an existing tenured rental unit exercises that right, he or she has a right, subject only to the rights of termination referred to in subsection (2.10), to occupy the rental unit for at least

(a) two years; or

(b) the length of time that the holder has been in continuous occupancy of a rental unit as of the date the holder receives the notice;

whichever is longer, beginning on the date the holder is entitled to occupy the unit under the tenancy agreement entered into pursuant to the exercise of that right.

Limitation

5(2.10)     Subsections (2.8) and (2.9) do not limit the right of an owner to terminate a tenancy for a breach of the tenant's obligations under a tenancy agreement or The Residential Tenancies Act.

Right may not be assigned

5(2.11)     The occupancy right under subsection (2.8) or (2.9) may not be assigned.

Meaning of "continuous occupancy"

5(2.12)     For the purposes of determining a period of continuous occupancy under subsection (2.8) or (2.9),

(a) a person is considered to continuously occupy a rental unit throughout the following periods:

(i) any period during which he or she sublets (within the meaning of "subletting" under subsection 42(1) of The Residential Tenancies Act) the unit to another person, if he or she resumes occupancy of the unit at the end of that period,

(ii) the period from a termination of his or her tenancy to the date the person receives notice of the registration of the declaration, if the termination gave rise to a right of first refusal and the new tenancy resulted from the exercise of that right; and

(b) a tenant is considered to continuously occupy a rental unit if he or she occupies, for any number of consecutive periods, any rental units owned by the same owner and located on the same land that is the subject of the declaration.

Restriction on sale of unit before declaration is registered

5(2.13)     Before an existing tenured rental unit that is a unit in a property that is the subject of a proposed declaration is sold to any person other than

(a) the tenant of that rental unit who has continuously occupied the unit since before receiving notice of the proposed registration of the declaration; or

(b) the holder of a right of first refusal in respect of that unit who has continuously, since before receiving notice of the proposed registration of the declaration, occupied the unit or been the holder of that right of first refusal;

the owner of the land that is the subject of the declaration in respect of that unit must offer it for sale to the tenant or holder of the right of first refusal at the same price and on terms that are not less favourable to the purchaser.

Restriction on sale of unit after declaration is registered

5(2.14)     Before selling a unit that is an existing tenured rental unit to any person other than

(a) the tenant of that rental unit who has continuously occupied the unit since

(i) the date of the registration of the declaration, or

(ii) the date of the exercise of the right of first refusal in relation to the rental unit that he or she held on the date of the registration of the declaration; or

(b) the holder of a right of first refusal in respect of that rental unit who has continuously, since the date of registration of the declaration, occupied the unit or been the holder of that right of first refusal;

the owner of the land that is the subject of the declaration in respect of that unit must offer it for sale to the tenant or holder of the right of first refusal at the same price and on terms that are not less favourable to the purchaser.

Time for acceptance of offer

5(2.15)     An offer to the tenant or holder of a right of first refusal under subsection (2.13) or (2.14) must remain open for acceptance for at least 30 days.

Giving notice to tenant

5(2.16)     A notice or other document that is required to be given to a tenant or a holder of a right of first refusal under this Act must be given in accordance with section 184 of The Residential Tenancies Act.

5           Clause 8(1.1)(d) is replaced with the following:

(d) a statement indicating whether or not the unit, or the unit to be created by the registration of the declaration, is occupied by a tenant under a tenancy agreement or is the subject of a right of first refusal and, if so, the length of time the tenant or holder of the right of first refusal is entitled to occupy the unit under subsection 5(2.8) or (2.9), as the case may be, together with a copy of any existing tenancy agreement;

6           Section 34 is amended by adding the following after clause (h):

(i) respecting the application of this Act to rental units that are not units under this Act but that are situated on land that is the subject of a declaration registered under this Act, and to tenants and holders of rights of first refusal in respect of such rental units;

(j) providing for transitional matters respecting condominium conversions.

Coming into force

7           This Act comes into force on a day to be fixed by proclamation.


SCHEDULE D

THE MUNICIPAL AMENDMENT ACT

C.C.S.M. c. M225 amended

1           The Municipal Act is amended by this Act.

2           The following is added after clause 232(1)(c.1):

(c.2) subject to section 233.2, the conversion of rental units into units under The Condominium Act;

3           The following is added after section 233.1:

Content of by-laws under clause 232(1)(c.2)

233.2(1)    A by-law under clause 232(1)(c.2) (condominium conversions) may require a person who proposes to engage in a condominium conversion in respect of land that contains, or has contained within the prescribed time period, one or more rental units to obtain the approval of the municipality before submitting a declaration in respect of that land to the appropriate land titles office.

Application of Condominium Act definitions

233.2(2)    In subsection (1), the terms "condominium conversion", "declaration" and "rental unit" have the same meaning as in The Condominium Act.

Content of by-law

233.2(3)    A by-law under clause 232(1)(c.2) must

(a) authorize the body, which must be a council committee composed entirely of members of council, to consider and decide applications for the approval of proposed condominium conversions; and

(b) establish the form and content of certificates of approval that must be issued by the municipality when such applications are approved.

Additional content

233.2(4)    A by-law under clause 232(1)(c.2) may

(a) provide that approvals of proposed condominium conversions are time-limited, and establish such a time limit;

(b) establish criteria, in addition to the criteria under clause (5)(a), that are to be considered when deciding if a proposed condominium conversion is to be approved; and

(c) prescribe a time period within which the land must have contained one or more rental units in order for the proposed condominium conversion to be subject to the approval of the municipality.

Considerations

233.2(5)    The council committee may approve a proposed condominium conversion if it is satisfied that the conversion

(a) will not

(i) significantly reduce the availability of rental units in the area, or

(ii) create significant hardship for any of the occupants of the land that is the subject of the proposed condominium conversion; and

(b) will comply with any other criteria established by by-law.

Coming into force

4           This Act comes into force on a day to be fixed by proclamation.


SCHEDULE E

THE CITY OF WINNIPEG CHARTER AMENDMENT ACT

S.M. 2002, c. 39 amended

1           The City of Winnipeg Charter is amended by this Act.

2           The following is added before the centred heading before section 158:

CONDOMINIUM CONVERSIONS

Approval of condominium conversions

157.2(1)    Council may by by-law require a person who proposes to engage in a condominium conversion in respect of land that contains, or has contained within the prescribed time period, one or more rental units to obtain the approval of the city before submitting a declaration in respect of that land to the land titles office.

Application of Condominium Act definitions

157.2(2)    In subsection (1), the terms "condominium conversion", "declaration" and "rental unit" have the same meaning as in The Condominium Act.

Content of condominium conversion by-law

157.2(3)    A by-law under subsection (1) must

(a) authorize the body, which must be a committee of council, to consider and decide applications for the approval of proposed condominium conversions; and

(b) establish the form and content of certificates of approval that must be issued by the city when such applications are approved.

Additional content

157.2(4)    A by-law under subsection (1) may

(a) provide that approvals of proposed condominium conversions are time-limited, and establish such a time limit;

(b) establish criteria, in addition to the criteria under clause (5)(a), that are to be considered when deciding if a proposed condominium conversion is to be approved; and

(c) prescribe a time period within which the land must have contained one or more rental units in order for the proposed condominium conversion to be subject to the approval of the city.

Considerations

157.2(5)    The committee of council may approve a proposed condominium conversion if it is satisfied that the conversion

(a) will not

(i) significantly reduce the availability of rental units in the area, or

(ii) create significant hardship for any of the occupants of the land that is the subject of the proposed condominium conversion; and

(b) will comply with any other criteria established by by-law.

Coming into force

3           This Act comes into force on a day to be fixed by proclamation.

 

 


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