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

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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