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C.C.S.M. c. C170

The Condominium Act

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

Definitions

1           In this Act,

"architect" means a person who under The Architects Act is authorized to practise as an architect in the province; (« architecte »)

"bare land unit" means a unit defined by delineation of its horizontal boundaries without reference to any buildings on a plan referred to in subsection 6(5); (« fraction de terrain nu »)

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

"buildings" means the buildings included in a property; (« bâtiments »)

"by-law" means a by-law of a corporation; (« règlement administratif »)

"claim" includes a right, title, interest, encumbrance, or demand of any kind affecting land, but does not include the interest of an owner in his unit and common interest; (« créance »)

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

"common expenses" means the expenses of a performance of the objects and duties of a corporation and any expenses specified as common expenses in a declaration or in section 16; (« dépenses communes »)

"common interest" means the interest in the common elements appurtenant to a unit; (« quote part »)

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

(a) a purchaser occupying a unit to be created, and

(b) a person occupying the building or any part of it for the sole purpose of marketing the units to be created; (« conversion en condominium »)

"corporation" means a corporation incorporated under this Act; (« corporation »)

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

"declaration" means a declaration to which reference is made in section 5, and includes any amendments thereto; (« déclaration de condominium »)

"director" means the Director of Residential Tenancies appointed under The Residential Tenancies Act; (« directeur »)

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

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

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

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

"encumbrance" means, subject to subsection 8(8), a claim that secures the payment of money or the performance of any other obligation and includes a charge, a mortgage and a lien; (« charge »)

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

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

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

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

"improvement" includes any building or structure constructed on or added to a bare land unit after the registration of the declaration and plan; (« amélioration »)

"land" means land, whether leasehold or in fee simple, under The Real Property Act; (« bien-fonds »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"new system" means the system of registration provided under The Real Property Act; (« nouveau système »)

"owner" means the owner of the freehold estate or estates or leasehold estate or estates in a unit and common interest, but does not include a mortgage unless the mortgagee is in possession; (« propriétaire »)

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

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

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

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

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

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

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

(b) creates a proposed phase,

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

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

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

"plan" means the plan to which reference is made in section 6, and includes any amendments thereto; (« plan »)

"property" means the land and interests appurtenant to the land described in the plan or subsequently added to the common elements; (« bien »)

"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 »)

"registered" means registered under The Real Property Act; (« enregistré »)

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

"reserve fund" means a reserve fund established under section 26; (« fonds de réserve »)

"residential complex" means a residential complex as defined in The Residential Tenancies Act; (« ensemble résidentiel »)

"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 »)

"surveyor" means a person authorized to practice, and registered, as a land surveyor under The Land Surveyors Act; (« arpenteur »)

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

"unit" means a part of the land included in the plan and designated as a unit by the plan, and comprises the space enclosed by its boundaries and all the material parts of the land within this space at the time the declaration and plan are registered. (« partie privative »)

R.S.M. 1987 Supp., c. 7, s. 1; S.M. 1990-91, c. 11, s. 200; S.M. 2010, c. 32, s. 2; S.M. 2011, c. 30, Sch. C, s. 2; S.M. 2013, c. 11, s. 67.

Meaning of other expressions

2(1)        Words and expressions used in this Act, and not defined in section 1, have the same meanings as assigned to them under The Real Property Act.

Ownership of space

2(2)        For the purposes of this Act, the ownership of, or leasehold interest in, land includes the ownership of, or leasehold interest in, space.

Boundaries of bare land units

2(3)        Unless otherwise shown on a plan referred to in subsection 6(5), the boundaries of a bare land unit shall be deemed to extend vertically upward and downward without limit.

Objects

3           The objects of this Act are to facilitate the division of land into parts that are to be owned or leased individually, and parts that are to be owned or leased in common, and to provide for the use and management of such properties and to expedite dealings therewith; and the Act shall be construed in a manner to give the greatest effect to these objects.

New system land only

4(1)        A property shall comprise only new system land, and interests, if any, appurtenant to that land; and all the land affected thereby shall be within the same land titles district.

Who may register declaration

4(2)        A declaration and plan may be registered by or on behalf of the owner in fee simple, or the lessee, of the land described in the plan.

Limitation — registration of declaration and plan

4(2.1)      A declaration and plan shall not be registered in respect of

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

(b) land that includes or has included, within the previous 365 days, one or more rental units, unless the district registrar is satisfied that no tenancy of any of the units was terminated by the landlord for any reason, other than a breach of the tenant's obligations under the tenancy agreement or The Residential Tenancies Act, after the later of

(i) the day this clause comes into force, and

(ii) the day that is 365 days before the declaration and plan were submitted for registration.

Additional requirement — condominium conversion

4(2.2)      Subject to subsection (2.3), a declaration in respect of a condominium conversion that includes or has included one or more rental units shall not be registered unless it is accompanied by a certificate of approval for a condominium conversion issued by the municipality in which the land that is the subject of the declaration is situated.

Limited application

4(2.3)      Subsection (2.2) applies only if

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

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

Effect of registration

4(3)        Upon registration of a declaration and plan, the land and the interest appurtenant to the land described in the plan are governed by this Act; and the district registrar shall

(a) issue a certificate of title in the name of the corporation as hereinafter provided, which shall set forth that the certificate of title is issued pursuant to The Condominium Act;

(b) issue a separate certificate of title in the name of each owner for each unit described in the plan which shall set forth the proportion of the common interest appurtenant to the unit, and that the certificate of title is issued pursuant to The Condominium Act;

(c) keep an index to be known as: "Condominium Corporations Index";

(d) keep a register to be known as: "Condominium Register" in which declarations, plans, by-laws, notices of termination and other instruments respecting land governed by this Act shall be registered, and the registration recorded.

Notice on title about phased development

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

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

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

giving notice that the property is a phased development.

Notice to be removed

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

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

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

S.M. 2010, c. 32, s. 3; S.M. 2011, c. 30, Sch. C, s. 3.

Contents of declaration

5(1)        A declaration shall not be registered unless

(a) title to the land described therein is registered under The Real Property Act;

(b) it is executed by the owner or lessee of the property;

(c) it has been approved as to form by the district registrar;

(d) it contains the legal description of the land that is the subject of the declaration;

(e) it contains the statement of intention that the land or the leasehold interest therein, and interests appurtenant to the land described in the plan be governed by this Act;

(f) it contains the consent of all persons having registered encumbrances against the land or interests appurtenant to the land described in the plan or interests or estates in the land in respect of which caveats, other than caveats claiming an interest or estate in the land by virtue of a residential tenancy, have been filed;

(g) it contains a statement indicating whether or not the property to which the declaration relates contains rental units that are occupied by tenants on the date the declaration is submitted to the registrar for registration;

(h) it contains a statement expressed in percentages allocated to the units of the proportions in which the owners are to contribute to the common expenses and to share in the common interests;

(i) it contains a statement expressed in percentages allocated to the units, of the proportions in which the owners are to have voting rights in the corporation;

(j) it contains an address for service; and

(k) where the units are delineated on a plan referred to in subsection 6(5), it contains a description of the manner of determining values in the event that the property ceases to be governed by this Act.

Statutory declarations to accompany declaration

5(1.1)      A declaration shall not be registered unless it is accompanied by

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

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

(c) one or more statutory declarations set out in subsection (1.2).

Declaration — condominium conversion

5(1.2)      A declaration in respect of a condominium conversion of land that includes or has included one or more rental units shall not be registered unless it is accompanied by one or more of the following statutory declarations, whichever applies:

(a) where the land that is the subject of the declaration includes or has included, within the previous 365 days, one or more rental units, a statutory declaration from the landlord that no tenancy has been terminated by the landlord for any reason, other than a breach of the tenant's obligations under the tenancy agreement or The Residential Tenancies Act, after the later of

(i) the day this clause comes into force, and

(ii) the day that is 365 days before the declaration and plan were submitted for registration;

(b) where the land that is the subject of a declaration includes one or more existing tenured rental units, a statutory declaration from the owner of the estate in fee simple or the lessee, as the case may be, that, at the time of submitting the declaration, the notice requirements under subsections (2.3) and (2.5) have been met;

(c) a statutory declaration that approval for the condominium conversion is required under a by-law referred to in subsection 4(2.3) or that no such approval is required.

Application

5(2)        Subsections (2.1) to (2.16) apply despite any provision to the contrary in a tenancy agreement or The Residential Tenancies Act.

Limitation

5(2.1)      Subsections (2.2) to (2.16) do not apply in respect of

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

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

Rights and duties not affected by registration

5(2.2)      Subject to subsections (2.8) to (2.12), the registration of a declaration and plan does not affect the rights and duties under The Residential Tenancies Act of

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

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

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

Notice of proposed registration

5(2.3)      At least six months before a declaration for a property that includes one or more existing tenured rental units is submitted for registration, the owner of the land that is the subject of the declaration, or a person acting on his or her behalf, must give a written notice of the proposed registration to

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

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

Content of notice

5(2.4)      The notice must contain prescribed information.

Notice to prospective tenant of proposed registration

5(2.5)      If, after giving the notice required by subsection (2.3) and before the declaration is registered, the owner of the land that is the subject of the proposed declaration wishes to enter into a tenancy agreement for the occupancy of a unit to be created on the registration of the declaration as a rental unit, the prospective tenant must be given a copy of that notice before the prospective tenant enters into the agreement.

Notice of registration of declaration

5(2.6)      As soon as practicable after the declaration is registered, the owner of an existing tenured rental unit must give a written notice containing prescribed information about the registration to each person entitled to notice under subsections (2.3) and (2.5).

Time for giving notice to holder of first refusal

5(2.7)      The notice under subsection (2.6) to a holder of a right of first refusal must be given before that right is exercised.

Tenant's right to continue in occupancy

5(2.8)      A tenant of an existing tenured rental unit who occupies the unit at the time of registration of the declaration has a right, subject only to the rights of termination referred to in subsection (2.10), to continue to occupy the rental unit for at least

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

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

whichever is longer.

Occupancy right of holder of a right of first refusal

5(2.9)      If the holder of a right of first refusal in relation to an existing tenured rental unit exercises that right, he or she has a right, subject only to the rights of termination referred to in subsection (2.10), to occupy the rental unit for at least

(a) two years; or

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

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

Limitation

5(2.10)     Subsections (2.8) and (2.9) do not limit the right of an owner to terminate a tenancy for a breach of the tenant's obligations under a tenancy agreement or The Residential Tenancies Act.

Right may not be assigned

5(2.11)     The occupancy right under subsection (2.8) or (2.9) may not be assigned.

Meaning of "continuous occupancy"

5(2.12)     For the purposes of determining a period of continuous occupancy under subsection (2.8) or (2.9),

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

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

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

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

Restriction on sale of unit before declaration is registered

5(2.13)     Before an existing tenured rental unit that is a unit in a property that is the subject of a proposed declaration is sold to any person other than

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

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

the owner of the land that is the subject of the declaration in respect of that unit must offer it for sale to the tenant or holder of the right of first refusal at the same price and on terms that are not less favourable to the purchaser.

Restriction on sale of unit after declaration is registered

5(2.14)     Before selling a unit that is an existing tenured rental unit to any person other than

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

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

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

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

the owner of the land that is the subject of the declaration in respect of that unit must offer it for sale to the tenant or holder of the right of first refusal at the same price and on terms that are not less favourable to the purchaser.

Time for acceptance of offer

5(2.15)     An offer to the tenant or holder of a right of first refusal under subsection (2.13) or (2.14) must remain open for acceptance for at least 30 days.

Giving notice to tenant

5(2.16)     A notice or other document that is required to be given to a tenant or a holder of a right of first refusal under this Act must be given in accordance with section 184 of The Residential Tenancies Act.

Further contents of declaration

5(3)        In addition to the matters mentioned in subsection (1), a declaration may contain

(a) a specification of common expenses;

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

(c) subject to subsection (4), provisions respecting the occupation and use of the units and common elements;

(d) subject to subsections (4) and (5.1), provisions restricting gifts, leases and sales of the units and common interests; or

(e) subject to the regulations, a specification of the number, qualification, nomination, election, term of office, compensation and removal of members of the board, and the meetings, quorum, functions and officers of the board; or

(f) a specification of duties of the corporation consistent with its objects;

(g) [repealed] S.M. 1997, c. 35, s. 2;

(h) provisions regulating the assessment and collection of contributions towards the common expenses;

(i) provisions respecting the priority of a lien for unpaid assessment;

(j) a specification of the majority required to make substantial changes in the common elements and the assets of the corporation;

(k) a specification of any provision requiring the corporation to purchase the units and common interests of any owners who dissented after a substantial addition, alteration or improvement to, or renovation of, the common elements has been made or after the assets of the corporation have been substantially changed;

(l) a specification of any allocation of the obligations to repair and to maintain the units and common elements;

(m) a specification of the percentage of substantial damage to the buildings and a specification of the majority required to authorize repairs under section 19;

(n) a specification of the majority required for a sale of the property or a part of the common elements;

(o) a specification of the majority required for the termination of the government of the property under this Act; and

(p) provisions respecting voting by proxy; or

(q) any other matters concerning the property.

Additional contents in declaration for phased development

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

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

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

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

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

(e) the following information for each proposed phase:

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

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

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

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

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

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

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

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

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

(f) any additional information required by the regulations.

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

Transitional — phasing amendment for existing phased development

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

1.

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

2.

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

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

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

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

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

3.

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

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

and either

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

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

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

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

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

4.

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

5.

Until the phasing amendment required by this subsection is registered,

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

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

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

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

Limitation on certain provisions

5(4)        No provision contained in a declaration pursuant to clause (3)(c) or (d) or subclause (3.1)(e)(iv) or (v) shall discriminate because of the race, nationality, religion, colour, sex, age, marital status, physical or mental handicap, family status, ethnic or national origin, political belief or source of income of any person.

Exception re elderly persons

5(5)        Nothing in subsection (4) prohibits a declaration from restricting the use, occupancy, possession or ownership of a unit, common element or common interest in a property in a manner consistent with the maintenance of the property primarily or exclusively for elderly persons.

Restrictions on leases of units

5(5.1)      Without restricting the generality of clause (3)(d), the declaration of a corporation may contain a provision

(a) requiring an owner who leases a unit to a tenant to remit to the corporation a leasing levy in such amount and to be held and used by the corporation for such purposes and subject to such conditions as the declaration, or the by-laws of the corporation, may specify; and

(b) providing that the leasing levy remitted under clause (a) shall be refunded to the owner at the termination of the lease, less any portion thereof used by the corporation or that the corporation may be authorized to retain, and plus such interest as the declaration or by-laws may specify.

Amendment of declaration

5(6)        All matters contained in a declaration, except the address for service, may be amended only with the written consent of the persons holding 80%, or such greater percentage as may be specified in the declaration, of the voting rights in the corporation.

Registration of amendment

5(7)        Where a declaration is amended, the corporation shall register a copy of the amendment accompanied by a certificate under the seal of the corporation certifying that the persons whose consent is required under subsection (6) have consented in writing to the amendment, and the amendment is ineffective until the copy is so registered.

Dispensing with consent

5(8)        Where, upon application, a judge of the court finds

(a) that a consent of any person required under clause (1)(f) is unreasonably withheld; or

(b) that the encumbrance, interest or estate of any person whose consent is required under clause (1)(f) would not be diminished or adversely affected by the registration of the declaration and plan;

he may dispense with the requirement of the consent of the person and thereupon the consent of that person is not required for the registration of the declaration and plan.

R.S.M. 1987 Supp., c. 7, s. 2 to 10; S.M. 1990-91, c. 11, s. 200; S.M. 1995, c. 33, s. 3; S.M. 1997, c. 35, s. 2; S.M. 2010, c. 32, s. 4; S.M. 2011, c. 30, Sch. C, s. 4.

Other consent requirements do not apply to phasing amendments

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

Consent of existing owners to phasing amendment

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

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

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

Consent not required — phase implemented as described in declaration

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

Consent not required — registration with court approval

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

Owner's consent may be provided or negated by mortgagee

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

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

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

Additional consent required for amendment to create new phase

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

Interpretation — implementation or completion of phase

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

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

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

Deemed not to be material difference

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

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

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

S.M. 2010, c. 32, s. 5.

Content of amendment — implementing a phase

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

Content of amendment — creating a proposed phase

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

S.M. 2010, c. 32, s. 5.

Restriction — no change to shares in common interests without consent

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

S.M. 2010, c. 32, s. 5.

Notice of proposed phasing amendment

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

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

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

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

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

(i) the proposed amendment, and

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

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

(i) a copy of the notice,

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

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

Corporation may give notice

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

District registrar to register notice on title

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

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

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

giving notice of the proposed amendment.

S.M. 2010, c. 32, s. 5.

Corporation's response to proposed amendment

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

(a) if the corporation is satisfied that

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

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

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

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

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

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

Corporation must act reasonably

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

S.M. 2010, c. 32, s. 5.

Overview

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

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

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

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

Registration requirements — implementation of proposed phase

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

Phase not materially different — no court application

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

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

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

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

Phase not materially different — confirmed by court

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

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

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

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

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

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

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

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

together with either

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

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

Registration requirements — amendment to create or amend proposed phase

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

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

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

Additional requirement — amendment to create new phase

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

(a) the documents required by

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

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

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

S.M. 2010, c. 32, s. 5.

Application to court

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

Time for making application

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

Notice of application

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

Court order

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

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

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

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

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

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

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

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

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

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

(h) any other order the court considers appropriate.

S.M. 2010, c. 32, s. 5.

Effect of registration — implementation of phase

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

S.M. 2010, c. 32, s. 5.

Removal of notice on title after registration

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

S.M. 2010, c. 32, s. 5.

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

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

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

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

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

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

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

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

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

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

(i) a copy of the notice, and

(ii) a copy of the proposed amendment.

District registrar to register notice on title

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

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

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

giving notice of the proposed amendment.

S.M. 2010, c. 32, s. 5.

Application to court

5.11(1)     If

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

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

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

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

Notice of application

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

Application by others

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

Court order

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

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

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

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

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

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

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

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

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

(g) any other order the court considers appropriate.

Content of order to remove unit

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

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

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

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

S.M. 2010, c. 32, s. 5.

Corporation may act on owner-developer's behalf

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

S.M. 2010, c. 32, s. 5.

Registration of amendment

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

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

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

Registration requirements

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

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

(b) either

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

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

Removal of notice after registration

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

S.M. 2010, c. 32, s. 5.

Giving notice to owners and mortgagees

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

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

(i) by leaving it with the owner,

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

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

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

(v) by a prescribed manner;

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

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

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

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

(iv) by a prescribed manner.

Giving notice to the corporation

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

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

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

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

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

(e) by a prescribed manner.

Notice deemed to be given

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

District registrar may permit other manner of notice

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

Actual notice sufficient

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

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

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

Corporation must comply with request

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

S.M. 2010, c. 32, s. 5.

Phasing provisions prevail

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

S.M. 2010, c. 32, s. 5.

Notice and consent not required if only one owner

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

S.M. 2010, c. 32, s. 5.

Contents of plan

6(1)        A plan shall delineate the perimeter of the horizontal surface of the land, and the perimeter of the buildings in relation thereto, and shall contain

(a) structural plans of the buildings;

(b) a specification of the boundaries of each unit by reference to the buildings;

(c) diagrams showing the shape and dimensions of each unit and the approximate location of each unit in relation to the other units and the buildings;

(d) a certificate of an architect certifying that the buildings have been constructed and that the diagrams of the units are substantially accurate, and substantially in accordance with the structural plans; and

(e) a description of any interest appurtenant to the land that is included in the property.

Approval of plan

6(2)        A plan and any amending plan shall not be registered unless

(a) it contains the certificate of a land surveyor certifying that he was present at and personally superintended the survey represented by the plan or amending plan and that the survey and the plan or amending plan are correct; and

(b) it has been approved by the examiner of surveys.

Amendment of plan

6(3)        A plan may be amended only with the written consent of the persons holding 80%, or such greater percentage as may be specified in the declaration, of the voting rights in the corporation.

Registration of amendment

6(4)        Where a plan is amended, the corporation shall register a copy of the amended plan accompanied by a certificate under the seal of the corporation certifying that the persons whose consent is required under subsection (3) have consented in writing to the amendment, and the amendment is ineffective until the copy is so registered.

Approval for bare land units

6(5)        A plan upon which one or more units are defined by delineation of the horizontal boundaries of the unit without reference to any buildings shall not be registered unless it is approved in accordance with section 117 of The Real Property Act.

Approval for other plans

6(6)        A plan upon which one or more of the horizontal boundaries at ground level of one or more of the units is defined by a line in whole or in part outside the limits at ground level of a building located upon the unit shall not be registered unless it is approved in accordance with section 112 of The Real Property Act.

Application of subsection (1)

6(7)        Subsection (1) does not apply to a plan upon which one or more units are defined by delineation of horizontal boundaries thereof without reference to any buildings but, if any building is shown on the plan, the Examiner of Surveys may require compliance with any part of subsection (1) which he deems necessary in respect of the building.

R.S.M. 1987 Supp., c. 7, s. 11; S.M. 2004, c. 42, s. 18.

Nature of units and common interests

7(1)        Units and common interests are real property for all purposes; and the unit and common interest appurtenant thereto provided therein may devolve or be transferred, leased, mortgaged, or otherwise dealt with in the same manner and form as any land the title to which is registered under The Real Property Act.

Ownership of units

7(2)        Subject to this Act, the declaration and the by-laws, each owner is entitled to exclusive ownership and use of his unit.

Dangerous activities

7(3)        No condition shall be permitted to exist, and no activity shall be carried on, in any unit or the common elements that is likely to damage the property.

Right to enter

7(4)        The corporation, or any person authorized by the corporation, may enter any unit at any reasonable time to perform the objects and duties of the corporation.

Cooling-off period

8(1)        A prospective purchaser who has signed an agreement to purchase a unit may cancel the agreement, in the manner provided for in subsection (1.0.1), within 48 hours after

(a) a legally binding agreement to purchase is formed between the vendor and purchaser; or

(b) the purchaser receives the information required to be given under subsection (1.1);

whichever is later.

Giving notice of cancellation

8(1.0.1)    The prospective purchaser may cancel the agreement by

(a) personally giving a written notice of the cancellation to the vendor or the vendor's agent; or

(b) sending a written notice of the cancellation by registered mail, fax or any other method, except e-mail, that provides proof that it was sent, to the address or fax number given by the vendor or the vendor's agent for this purpose.

No transfer until end of cooling-off period

8(1.0.2)    No person shall present a transfer of land for a unit for registration under The Real Property Act until the cooling-off period under subsection (1) has expired.

Declaration from purchaser

8(1.0.3)    No district registrar shall accept for registration a transfer of land for a unit unless it is accompanied by a statutory declaration from the purchaser stating that

(a) the information required to be given under subsection (1.1) has been given; and

(b) the cooling-off period under subsection (1) has expired.

Information to be received by purchaser

8(1.1)      The following information shall be given to a prospective purchaser under clause (1)(b):

(a) the most recent financial statements of the corporation, as approved by the board, and the budget for the current financial year, including any amendments, setting out

(i) the common expenses,

(ii) the amount of each expense,

(iii) the monthly common expense contribution for each type of unit,

(iv) the portion of the common expense to be paid into a reserve fund, and

(v) the amounts in all reserve funds at the start of the current financial year;

(a.1) a copy of the by-laws and rules of the corporation, including any amendments;

(a.2) any current management agreement, including any amendments, or a proposed management agreement;

(b) any services not included in the budget that the vendor provides or expenses that he pays and that might reasonably be expected to become, at any subsequent time, a common expense and the projected common expense attributable to each of those services or expenses for each type of unit;

(c) a statement from the corporation in a form prescribed by the regulations, made no earlier than 90 days before the purchaser receives the statement, which states the following:

(i) the parking arrangements that apply,

(ii) whether or not the corporation has authorized any major expenditure or made any decision that may materially affect the ongoing expenses of the corporation,

(iii) whether or not the corporation has approved any increase in assessment,

(iv) whether or not the corporation is a party to any legal proceeding,

(v) whether or not there are any outstanding insurance claims concerning the corporation,

(vi) the balance in the reserve fund, and the matters set out in clauses 30(1)(a) and (b),

(vii) whether or not the corporation is proposing any substantial addition, alteration or improvement to or renovation of the common elements or any additions to the assets of the corporation and the approximate cost,

(viii) any proposed amendments to the declaration, plan, by-laws or rules that are being proposed by the board,

(ix) the name and address of the property manager and the person to be contacted for service,

(x) the names and addresses of the directors and officers of the corporation,

(xi) a summary of charges that a purchaser may reasonably be expected to pay upon purchase of a unit,

(xii) whether or not termination of the government of the property has been authorized or proposed under this Act,

(xiii) the name and address of the auditor or accountant of the corporation and a statement as to whether or not the financial records of the corporation are audited.

(d) a statement indicating whether or not the unit, or the unit to be created by the registration of the declaration, is occupied by a tenant under a tenancy agreement or is the subject of a right of first refusal and, if so, the length of time the tenant or holder of the right of first refusal is entitled to occupy the unit under subsection 5(2.8) or (2.9), as the case may be, together with a copy of any existing tenancy agreement;

(e) a statement specifying any parts of the common elements that the owner of the unit is not entitled to use;

(f) a copy of the proposed declaration or, if already registered, a copy of the declaration;

(g) a notice that the purchaser should obtain a certificate in accordance with clause 14(1)(g);

(h) [repealed] S.M. 1997, c. 35, s. 3; and

(i) such additional information as may be prescribed by regulation.

Computation of 48 hours

8(1.2)      The 48 hours to which reference is made in subsection (1) shall be computed exclusive of Saturdays, Sundays and holidays.

Return of deposit

8(1.3)      Where an agreement to purchase a unit is cancelled under subsection (1), the vendor or agent of the vendor who received a deposit from the prospective purchaser or agent of the prospective purchaser shall return the deposit to the prospective purchaser or agent of the prospective purchaser, as the case may require.

Reserve fund study

8(1.4)      Where the statement required under clause (1.1)(c) states that a reserve fund study has been done, the corporation shall provide a copy of the most recent study to a prospective purchaser upon request.

Ownership of common elements

8(2)        The owners are tenants in common of the common elements and an undivided interest in the common elements is appurtenant to each unit.

Use of common elements

8(3)        Subject to this Act, the declaration and the by-laws, each owner may make reasonable use of the common elements.

Ownership not to be separated

8(4)        Except as provided by this Act, no share in the common elements shall be dealt with except with the unit of the owner; and any instrument dealing with a unit shall operate to deal with the share of the owner in the common elements without express reference thereto.

No partition

8(5)        Except as provided in this Act, the common elements shall not be partitioned or divided.

Encumbrances not enforceable

8(6)        No encumbrance is enforceable against the common elements after the declaration and plan are registered.

Saving

8(7)        Where, except for subsection (6), an encumbrance would be enforceable against the common elements, the encumbrance is enforceable against all the units and common interests.

"Encumbrance" in subsections (9) and (10)

8(8)        In subsections (9) and (10), "encumbrance" means an encumbrance that is, or at one time was, enforceable against all the units and common interests, but does not include a mortgage.

Discharge

8(9)        Any unit and common interest may be discharged from an encumbrance by payment to the claimant of a portion of the sum claimed determined by the proportion allocated to that unit in the declaration for contributions to the common expenses.

Discharge on demand

8(10)       Upon payment of a portion of the encumbrance sufficient to discharge the encumbrance in so far as it affects a unit and common interest, and upon demand, the claimant shall give to the owner of that unit a discharge of the encumbrance in so far as it affects that unit and common interest.

Assessment for taxation

8(11)       For the purposes of municipal assessment and taxation, each unit and common interest constitute a parcel, and the common elements do not constitute a parcel.

Where corporation deemed to be occupier

8(12)       For the purpose of determining liability resulting from breach of the duties of an occupier of land, the corporation shall be deemed to be the occupier of the common elements and the owners shall be deemed not to be occupiers of the common elements.

R.S.M. 1987 Supp., c. 7, s. 12; S.M. 1988-89, c. 11, s. 4; S.M. 1997, c. 35, s. 3; S.M. 2005, c. 29, s. 2; S.M. 2011, c. 30, Sch. C, s. 5.

Easements appurtenant to units

9(1)         The following easements are created and are appurtenant to each unit:

(a) Where a building or any part of a building

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

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

an easement for exclusive use and occupation in accordance with this Act, the declaration and the by-laws, over the space of the other units and common elements that would be space included in the unit if the boundaries of the unit were determined by the position of the buildings from time to time after registration of the plan and not at the time of registration.

(b) An easement for the provision of any service through any installation in the common elements or any other unit.

(c) An easement for support and shelter by the common elements and any other unit capable of providing support or shelter.

Easements appurtenant to common elements

9(2)        The following easements are created and are appurtenant to the common elements:

(a) An easement for the provision of any service through any installation in any unit.

(b) An easement for support and shelter by any unit capable of providing support and shelter.

Ancillary rights

9(3)        All ancillary rights and obligations reasonably necessary to make easements effective apply in respect of easements implied or created by this Act.

Application of subsections (1) and (2)

9(4)        Notwithstanding subsections (1) and (2)

(a) clause (1)(a) does not apply to a bare land unit;

(b) the easements for shelter provided in clauses (1)(c) and (2)(b) do not apply to a bare land unit; and

(c) clauses (1)(b) and (2)(a) do not apply to a bare land unit unless the installation was in existence at the time the owner of the bare land unit became the owner thereof.

Creation of corporation

10(1)       Upon registration of a declaration and plan, there is created a corporation without share capital having a name comprised of the following components:

(a) The district name of the land titles district.

(b) The words "condominium corporation".

(c) The abbreviation "No." together with a number which shall be the next available consecutive number in the Condominium Corporation's Index in that land titles district.

Members

10(2)       The members of the corporation are the owners from time to time; and they shall share the assets of the corporation in proportions as provided in the declaration.

Corporations Act not to apply

10(3)       The Corporations Act does not apply to a corporation.

Objects of corporation

10(4)       The objects of the corporation are to manage the property of the owners, and any assets of the corporation.

Responsibilities of corporation

10(5)       The corporation is responsible for the control, management and administration of the common elements.

Control of corporation

10(6)       The corporation shall be regulated in accordance with the declaration and the by-laws.

Records of corporation

10(7)       The corporation shall keep adequate records and any member of the corporation may inspect the records at any reasonable time on reasonable notice.

Change of address

10(8)       Upon there being a change of address for service from that set out in the declaration as required by subsection 5(1), the corporation shall immediately register a notice of change of address for service, and the district registrar shall amend the declaration accordingly.

Real and personal property

10(9)       The corporation may own, acquire, encumber, and dispose of real and personal property for the use and enjoyment of the property.

Corporation may sue and be sued

10(10)      The corporation shall have a common seal and may sue and be sued; and in particular may bring an action with respect to the common elements and may be sued in respect of any matter connected with the property for which the owners are jointly liable.

Judgment against corporation

10(11)      A judgment for the payment of money against the corporation is also a judgment against each owner at the time the cause of action arose for a portion of the judgment determined by the proportions specified in the declaration for sharing the common expenses.

Effect of termination

10(12)      Where the owners and the property cease to be governed by this Act,

(a) the assets of the corporation shall be used to pay any claims for the payment of money against the corporation; and

(b) the remainder of the assets of the corporation shall be distributed among the members of the corporation in the same proportions as the proportions of their common interest.

Board of directors

11(1)       The affairs of the corporation shall be managed by a board of directors whose number, qualification, nomination, election, term of office, compensation and removal from the board shall be, subject to subsection (4), as provided in the declaration or by-laws.

Duties of board

11(2)       The board of directors shall hold meetings, perform functions, elect officers, and carry out duties as provided in the declaration or by-laws.

Defects in election, etc.

11(3)       The acts of a member of the board or an officer of the board done in good faith are valid notwithstanding any defect that may thereafter be discovered in his election or qualifications.

New board of directors

11(4)       The declaration or by-laws of every corporation shall require and shall provide for the election of a new board of directors within six months after the developer ceases to be the owner of a majority of the units in the corporation.

Delivery of construction documents

11(5)       Upon the election of a new board of directors under subsection (4), the developer or the previous board of directors shall deliver to the new board a copy of the following construction documents, including any amendments to those documents, that are in the possession or under the control of the developer or the previous board:

(a) documents used to construct a new building, to convert or renovate an existing building or to construct, install or provide utilities, services or other amenities on the land;

(b) if an existing building is being converted or renovated, any available documents used to construct the building, to renovate the building at a previous time, or to construct, install or provide utilities, services or other amenities on the land.

R.S.M. 1987 Supp., c. 7, s. 13 and 14; S.M. 2005, c. 29, s. 3.

By-laws

12(1)       The corporation may make or amend by-laws by a vote of 75% of the voting rights held by members, as set out in the declaration, who are in attendance or represented by proxy at a meeting of members convened for the purpose of making or amending by-laws with respect to

(a) governing the management of the property;

(b) governing the use of units or any of them for the purpose of preventing unreasonable interference with the use and enjoyment of the common elements and other units;

(c) governing the use of the common elements;

(d) regulating the maintenance of the units and common elements;

(e) governing the use and management of the assets of the corporation;

(f) respecting the board;

(g) specifying duties of the corporation consistent with its objects;

(h) regulating the assessment and collection of contributions towards the common expenses; and

(i) respecting the conduct generally of the affairs of the corporation.

Notice of meeting

12(1.1)     Notice of a meeting referred to in subsection (1) shall be given to members at least 30 days before the meeting and shall include the agenda for the meeting and the text of any proposed by-law or amendment.

Giving notice

12(1.2)     The notice of the meeting shall

(a) be given

(i) by handing the notice to the member, or

(ii) by mailing the notice by prepaid, first class mail to the address where the member resides or carries on business; and

(b) be posted in a conspicuous location in the residential complex 30 days before the meeting.

Notice by mail

12(1.3)     A notice sent by mail under subclause (1.2)(a)(ii) is deemed to be given on the fifth day after the day of mailing.

Actual notice is sufficient

12(1.4)     Notwithstanding the fact that a notice is not given in accordance with this section, it is sufficiently given if it actually came to the attention of the person to whom it was intended to be given within the time for giving it under this section.

Quorum

12(1.5)     A quorum of members is present at the meeting irrespective of the number of persons actually present at the meeting, if the holders of a majority of the voting rights are present in person or represented by proxy.

By-laws consistent with Act

12(2)       The by-laws shall be reasonable and consistent with this Act and the declaration.

Registration

12(3)       When a by-law is made, amended, or repealed by the corporation, the corporation shall register a copy of the by-law, amendment, or repeal together with a certificate executed by the corporation certifying that the by-law, amendment, or repeal was made in accordance with this Act, the declaration and the by-laws; and until the copy and certificate are registered, the by-law is ineffective.

Prohibition

12(4)       No by-law or amendment or repeal thereof is capable of operating to prohibit or restrict the devolution of a unit, or any transfer, lease, mortgage or other dealing therewith, or to destroy or modify any easement implied or created under this Act.

Rules for common elements

12(5)       The by-laws may provide for the owners making reasonable rules consistent with this Act, the declaration and the by-laws respecting the use of the common elements for the purpose of preventing unreasonable interference with the use and enjoyment of the units and the common elements; and the rules shall be complied with and enforced in the same manner as the by-laws.

Copy of by-laws and rules to owner

12(6)       Within 21 days after a by-law or a rule is made, amended or repealed, the corporation shall give a copy of the by-law or the rule to each owner by

(a) by handing it to the owner; or

(b) by sending it by prepaid, first class mail to the residential or business address of the owner.

S.M. 1997, c. 35, s. 4.

Compliance by owners

13(1)       Each owner is bound by, shall comply with, and has a right to the compliance by the other owners with, this Act, the declaration and the by-laws; and the corporation has a duty to effect such compliance.

Compliance by tenants

13(1.1)     Each tenant renting a unit from an owner is bound by and shall comply with this Act, the declaration and the by-laws and the owner and the corporation have a duty to effect such compliance.

Compliance by others

13(2)       The corporation and each person having an encumbrance against a unit and common interest has a right to the compliance by the owners with this Act, the declaration and the by-laws.

Performance of duty of corporation

13(3)       Each member of the corporation and each person having an encumbrance against a unit and common interest has the right to the performance of any duty of the corporation specified by this Act, the declaration or the by-laws.

S.M. 1997, c. 35, s. 5.

Termination of tenancy

13.1(1)     The corporation may give a tenant renting a unit from an owner a notice of termination if the tenant fails to remedy, within a reasonable time after having received written notice to do so from the corporation, a contravention or breach of the declaration, by-laws or rules of the corporation.

Notice to owner

13.1(2)     When a corporation gives a tenant notice of a contravention or breach under subsection (1), the corporation shall also give notice to the owner of the unit rented by the tenant and allow the owner reasonable time after receiving the notice to remedy the contravention or breach.

Copy of notice of termination to owner

13.1(3)     When a corporation gives notice of termination to a tenant under subsection (1), the corporation shall also give a copy of the notice of termination to the owner of the unit rented by the tenant.

Giving notice

13.1(4)     A notice given under subsection (1), (2) or (3) shall be given

(a) to the tenant by handing it to the tenant or to an apparently adult person in the residence of the tenant; and

(b) to the owner by handing it to the owner or a landlord or an agent of the owner.

Other notice provisions may apply

13.1(5)     Notwithstanding subsection (4),

(a) the director or the commission under The Residential Tenancies Act may direct that a notice be given in a manner not described in subsection (4); and

(b) a notice is sufficiently given if it came to the attention of the person to whom it was intended to be given.

Length of notice re termination

13.1(6)     The following applies with respect to the length of notice required to be given by the corporation to the tenant with respect to a notice of termination under this section:

(a) except as provided in clause (b), a notice of termination shall not be less than one rental payment period effective on the last day of a rental payment period;

(b) a notice of termination may be given not earlier than five days after the notice is given if the contravention or breach

(i) poses an immediate risk to the health or safety of any person in the condominium complex,

(ii) results in extraordinary damage, or

(iii) results in an unreasonable disturbance of any person in the condominium complex.

Mediation by director

13.1(7)     The tenant or the corporation may make an application under The Residential Tenancies Act to have the director investigate, endeavour to mediate a settlement and determine a matter arising from an alleged breach by a tenant under subsection (1) and sections 152 and 153 of that Act apply with such modifications as the circumstances require.

Order of possession

13.1(8)     The provisions of The Residential Tenancies Act providing for an order of possession apply with such modifications as the circumstances require to the corporation and the tenant renting a unit from the owner.

S.M. 1997, c. 35, s. 6.

Common expenses

14(1)       The corporation

(a) shall establish a fund for the payment of the common expenses to which fund the owners shall contribute in proportions specified in the declaration;

(b) shall assess and collect the owner's contributions towards the common expenses as regulated by the declaration and the by-laws;

(c) shall pay the common expenses;

(d) has the right to recover from any owner by an action for debt

(i) the unpaid amount of any assessment, together with such additional amount by way of penalty as may be specified in the by-laws of the corporation,

(ii) any sum of money expended by it for repairs to, or work done by it or at its direction in complying with any notice or order by a competent public or local authority in respect of that portion of the building comprising the unit of that owner, and

(iii) any sum of money expended by it for repairs done by it under subsection 18(6) for the owner;

(e) has, subject to subsections (1.1) and (2), a right of lien for the unpaid amount of any assessment, penalty or account that the corporation has the right to recover from the owner under clause (d);

(f) has the right, subject to subsections (1.1) and (2), to enforce the lien in the same manner as a mortgage is enforced under The Real Property Act; and

(g) on the application of an owner or a purchaser of a unit and common interest, shall certify, on a form prescribed by the regulations, the following and any other matters that may be prescribed in the regulations:

(i) the amount of any assessment, penalty and accounts owing by the owner to the corporation, including those for which the corporation has a lien or right of lien against the unit and common interest of the owner,

(ii) the manner in which the assessment, penalty and accounts are payable,

(iii) the extent to which the assessment, penalty and accounts have been paid by the owner,

(iv) whether or not the declaration of the corporation contains a provision referred to in subsection 5(5.1) respecting a leasing levy, and if so, the amount of the leasing levy,

(v) whether or not, to the knowledge of the corporation, the owner is in breach of any provision of the declaration, by-laws or rules, and

(vi) whether or not a prospective purchaser shall be responsible for a breach referred to in subclause (v);

and, in favour of any person dealing with that owner, the certificate is conclusive proof of the matters certified therein.

Registration of lien

14(1.1)     A notice of a lien arising under subsection (1), in a form prescribed by regulation, may be registered in the proper land titles office at any time after the date of default.

Registration of lien

14(2)       A right of lien to which reference is made in clause (1)(e) is, upon registration of a notice of lien, a lien against the unit and common interest of the defaulting owner, and has priority over all encumbrances unless otherwise provided in the declaration.

Payment by encumbrancer

14(2.1)     An encumbrancer may pay the amount of any default giving rise to a lien under subsection (1) and may

(a) where the encumbrance is a money encumbrance, at the option of the encumbrancer, either add the amount to the encumbrance and collect it from the defaulting owner as money in default under the encumbrance or collect the amount from the defaulting owner as a debt due and owing by action in a court of competent jurisdiction; or

(b) where the encumbrance is not a money encumbrance, collect the amount from the defaulting owner, as a debt due and owing, by action in a court of competent jurisdiction.

No avoidance of expenses

14(3)       The obligation of an owner to contribute towards the common expenses shall not be avoided by waiver of the right to use the common elements or by abandonment.

Discharge of lien

14(4)       Upon payment of the unpaid amount in respect of which a lien has been registered as provided in subsection (1.1), and upon demand, the corporation shall give a discharge of the lien.

R.S.M. 1987 Supp., c. 7, s. 15 to 18; S.M. 1997, c. 35, s. 7.

Voting

15(1)       The owners have voting rights in the corporation in the proportions provided in the declaration.

Voting by mortgagee

15(2)       Where a registered mortgage of a unit and common interest contains a provision that authorizes the mortgagee to exercise the right of the owner to vote or to consent, the mortgagee may exercise the right, if he has given written notice of his mortgage to the corporation and the address for services of notices on him; and where two or more mortgages contain such a provision, the right to vote or consent is exercisable by the mortgagee who has priority.

Voting by minors, etc.

15(3)       Any powers of voting conferred by this Act, the declaration, or the by-laws may be exercised, or any consent required to be given under this Act, the declaration or the by-laws may be given, or any document required to be executed under this Act, the declaration or the by-laws may be executed,

(a) in the case of an owner who is an infant, by the guardian of his estate or, if no guardian has been appointed, by the Public Guardian and Trustee in his capacity as official guardian; or

(b) in the case of an owner for whom a committee has been appointed under The Mental Health Act, by that committee; or

(c) in the case of an owner who is incapacitated for any other reason, by the person who, for the time being, is authorized by law to control his property.

Order of court

15(4)       Where the court, upon application of the corporation or of any owner, is satisfied that there is no person capable or willing or reasonably available to exercise the power of voting, giving consent, or executing a document, in respect of a unit, the court

(a) in cases where unanimous vote or unanimous consent is required by this Act, the declaration or the by-laws, shall; and

(b) in any other case, may in its discretion;

authorize the Public Guardian and Trustee, or some other fit and proper person, to exercise the power of voting, to give the consent, or to execute the document, in respect of the unit.

Order of authorization

15(5)       On giving authority under subsection (4), the court may make such order as it considers necessary or expedient to give effect to the authorization.

S.M. 1998, c. 36, s. 127; S.M. 2013, c. 46, s. 46.

Substantial alterations

16(1)       The corporation may, by a vote of members who own 80%, or such greater percentage as is specified in the declaration, of the common elements make any substantial addition, alteration or improvement to the common elements, or may make any substantial change in the assets of the corporation.

Meaning of "substantial"

16(1.1)     An addition, alteration or improvement to the common elements or a change to the assets of the corporation is substantial if

(a) it materially changes the manner in which the common elements are used or enjoyed; or

(b) it increases the operating expenses of the corporation.

Non-substantial alterations

16(1.2)     The corporation may make any addition, alteration or improvement to the common elements, or change in the assets of the corporation, that is not substantial, provided that the corporation holds a meeting of members convened for the purpose of considering the matter and

(a) gives notice of the meeting at least 30 days before the meeting

(i) to members, in accordance with subsection (1.3), including the agenda for the meeting and the text of any proposed motion to be presented by the corporation, and

(ii) by posting a notice in a conspicuous location in the residential complex;

(b) there is a quorum present at the meeting as determined under subsection (1.6); and

(c) at the meeting there is a vote in favour of the matter by the holders of a majority of the voting rights, as set out in the declaration, who are present in person or represented by proxy.

Giving notice

16(1.3)     Notice of a meeting referred to in subsection (1.2) may be given

(a) by handing the notice to the member; or

(b) by sending the notice by prepaid, first class mail to the address where the member resides or carries on business.

Notice by mail

16(1.4)     A notice sent by mail under clause (1.3)(b) is deemed to be given on the fifth day after the day of mailing.

Actual notice is sufficient

16(1.5)     Despite the fact that a notice is not given in accordance with this section, it is sufficiently given if it actually came to the attention of the person to whom it was intended to be given within the time for giving it under this section.

Quorum

16(1.6)     A quorum of members is present at the meeting, irrespective of the number of persons actually present at the meeting, if the holders of a majority of the voting rights are present in person or represented by proxy.

Costs

16(2)       The cost of any addition, alteration or improvement to the common elements, and the cost of any substantial change in the assets of the corporation, are common expenses.

Dissenters

16(3)       The declaration may provide that, if any substantial addition, alteration or improvement to the common elements is made, or if any substantial change in the assets of the corporation is made, the corporation shall, on demand of any owner who dissented, purchase his unit and common interest.

Arbitration

16(4)       Where the corporation and the owner who dissented do not agree as to the purchase price of the unit and common interest, the owner who dissented may elect to have the fair market value of his unit and common interest determined by arbitration by serving a notice to that effect on the corporation; and the purchase price of his unit and common interest is the fair market value determined by the arbitration; and the arbitration shall be a submission to two arbitrators and The Arbitration Act applies.

Alterations etc. required by law

16(5)       Notwithstanding anything in this section, the corporation may, without a vote of members, make any addition, alteration or improvement to the common elements or any change in the assets of the corporation that is necessary to maintain the common elements in a state that complies with health, building, and maintenance and occupancy standards required by law, and the cost of doing so is a common expense.

Non-application re phase

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

S.M. 1997, c. 35, s. 8; S.M. 2010, c. 32, c. 6.

Corporation to insure against fire and other perils

17(1)       The corporation shall obtain and maintain insurance on the units and common elements excluding improvements and betterments made or acquired by the unit owner against fire, to the replacement value thereof, and against such other perils as may be specified by the declaration or by-laws to the amount required by the declaration or by-laws, and for this purpose the corporation shall be deemed to have an insurable interest in the units and the common elements.

Where insurance not required

17(2)       Notwithstanding subsection (1), except as may be required by a contrary provision contained in the declaration, the corporation is not obliged to obtain and maintain insurance on bare land units or on buildings or improvements placed on the bare land units.

Payment of insurance moneys

17(3)       Any payment by an insurer under a policy of insurance entered into under subsection (1) shall, notwithstanding the terms of the policy, be paid to the order of the insurance trustees if any, or as may be otherwise designated by the declaration or by-laws of the corporation, otherwise shall be paid to or to the order of the corporation; and, subject to sections 19 and 20, the corporation shall forthwith use the proceeds for the repair or replacement of the damaged units and common elements so far as the same may lawfully be effected.

Insurance not to be considered as other insurance

17(4)       Insurance obtained and maintained by a corporation under subsection (1) shall be deemed not to be other insurance for the purpose of any prohibition of or condition against other insurance in a policy of an owner insuring against loss of or damage to his unit or his interest in the common elements by fire or other peril and covering to the extent only that the insurance placed by the corporation is inapplicable, inadequate or ineffective.

Contribution with other policies

17(5)       Notwithstanding The Insurance Act or the provisions of the policy, a policy of insurance issued to a corporation under subsection (1) is not liable to be brought into contribution with any other policy of insurance except another policy issued on the same property under subsection (1).

Owner may insure

17(6)       Notwithstanding subsection (1), The Insurance Act or any other law relating to insurance, a unit owner may obtain and maintain insurance in respect of loss or damage to

(a) his unit and his interest in the common elements against fire and other perils to the extent that it is not so insured by the corporation under subsection (1), or to the extent that the insurance placed by the corporation is not effective or is inadequate;

(b) improvements to his unit, to the extent the improvements are not so insured by the corporation under subsection (1);

(c) rental value of his unit to the extent it is not so insured by the corporation under subsection (1).

Contribution with other policy

17(7)       Notwithstanding The Insurance Act or the provisions of the policy, a policy of insurance issued to a unit owner under subsection (6) is not liable to be brought into contribution with any other policy of insurance except another policy issued on the same property under subsection (6).

Corporation to insure against liability

17(8)       The corporation shall obtain and maintain insurance against liability imposed by law upon the corporation and upon the unit owners in so far as it relates to the unit owners' liability arising out of the common elements, as may be specified in the declaration or by-laws for an amount required by the declaration or by-laws; for loss or damage arising from the ownership, use or operation of the units and common elements and resulting from bodily injury to or death of any person and damage to property; and for this purpose the corporation shall be deemed to have an insurable interest.

Contributions with other policies

17(9)       Notwithstanding The Insurance Act or the provisions of the policy, a policy of insurance issued to a corporation under subsection (8) is not liable to be brought into contribution with any other policy of insurance except another policy issued on the same property under subsection (8).

Owner may insure against liability

17(10)      Notwithstanding subsection (8), The Insurance Act or any other law relating to insurance, a unit owner may obtain insurance against liability imposed by law for loss or damage arising from the ownership, use or operation of his unit and his interest in the common elements and resulting from bodily injury to or death of any person and damage to property.

Contribution with other policies

17(11)      Notwithstanding The Insurance Act, or the provisions of the policy, a policy of insurance issued to a unit owner under subsection (10) is not liable to be brought into contribution with any other policy of insurance except another policy issued on the same property under subsection (10).

Section not restriction on capacity to insure

17(12)      Nothing in this section restricts the capacity of any person to obtain and maintain insurance otherwise than as provided herein.

Obligations to repair and to maintain

18(1)       For the purposes of this Act, the obligation to repair after damage and the obligation to maintain are mutually exclusive; and the obligation to repair after damage does not include any obligation to repair improvements made to units after registration of the declaration and plan.

Duty to repair

18(2)       Subject to section 19, the corporation shall repair the units and common elements after damage.

Maintenance of common elements

18(3)       The corporation shall maintain the common elements.

Maintenance of units

18(4)       Each owner shall maintain his unit.

Declaration of obligations in declaration

18(5)       Notwithstanding subsections (2), (3) and (4), the declaration may provide that

(a) each owner shall, subject to section 19, repair his unit after damage and each owner of a bare land unit shall repair his unit and improvements on the unit after damage unless a notice of termination is registered under section 20; or

(b) the owners shall maintain the common elements or any part of the common elements; or

(c) the corporation shall maintain the units or any part of the units.

Permission to repair

18(6)       The corporation shall make any repairs that an owner is obligated to make and that he does not make, within a reasonable time.

Consent by owner

18(7)       An owner shall be deemed to have consented to have repairs done to his unit by the corporation under this section.

Determination of damage

19(1)       Where damage to the units or the common elements or both occurs, the board shall determine within 30 days of the occurrence whether there has been substantial damage to the extent that the cost of repair would be 25%, or such greater percentage as is specified in the declaration, of the value of the units other than bare land units and improvements thereon and common elements immediately prior to the occurrence.

Vote for repair

19(2)       Where there has been a determination that there has been substantial damage as provided in subsection (1), and the owners who own 80% of the units and common elements, or such greater percentage as is specified in the declaration, vote for repairs within 60 days of the determination, the corporation shall repair.

Termination by notice after substantial damage

20(1)       Where, on a vote, the owners do not vote for repair, the corporation shall, within 10 days of the vote, register a notice of termination.

Termination where no vote taken

20(2)       Where there has been no vote within 60 days of the determination that there has been substantial damage under subsection 19(1), the corporation shall, within 10 days after the expiry of the 60 day period, register a notice of termination.

Effect of registration of notice

20(3)       Upon the registration of a notice of termination under subsection (1) or (2),

(a) the government of the property by this Act is terminated;

(b) except where the plan defines one or more bare land units, the owners are tenants in common or lessees, as the case may be, of the land and interests appurtenant to the land described in the plan in the same proportions as their common interests;

(c) where the plan defines one or more bare land units, the owners are tenants in common or lessees, as the case may be, of the land described in the plan and any interests appurtenant thereto in proportion to the value of each unit and the appurtenant common interest determined in accordance with the manner described in the declaration for determining value in the event that the property ceases to be governed by this Act;

(d) claims against the land and interests appurtenant to the land created before the registration of the declaration and plan are as effective as if the declaration and plan had not been registered;

(e) encumbrances against each unit and common interest created after the registration of the declaration and plan are claims against the interest of the owner in the land and interests appurtenant to the land described in the plan, and have the same priority they had before the registration of the notice of termination; and

(f) all claims against the property created after the registration of the declaration and plan, other than the encumbrances mentioned in clause (e), are extinguished.

Termination by sale

21(1)       Sale of the property or any part of the common elements may be authorized

(a) by a vote of owners who own 80%, or such greater percentage as is specified in the declaration, of the common elements; and

(b) by the consent of the persons having registered claims against the property or the parts of the common elements, as the case may be, created after the registration of the declaration and plan.

Execution of documents

21(2)       Where a sale of the property or any part of the common elements is authorized under subsection (1), the corporation shall

(a) register a notice of termination which shall describe the property or the part of the common elements being sold and shall affect only such property; and

(b) transfer the property or the part of the common elements being sold;

both of which shall either

(c) be executed by all the owners and all the persons having registered claims against the property or the part of the common elements being sold; or

(d) be executed by the corporation and be accompanied by a certificate under the seal of the corporation certifying that the required percentage of owners as stipulated in the Act or the declaration have voted in favour of the sale, and that all persons having registered claims against the property or the part of the common elements being sold have consented in writing to the sale.

Conclusiveness

21(3)       A certificate made under clause (2)(d) is conclusive proof of the facts stated therein

(a) in favour of a purchaser of the parcel; and

(b) in favour of the district registrar.

Action by district registrar

21(4)       Upon registration of the transfer, the district registrar shall

(a) record upon the certificate of title in the name of the corporation an entry that the property or a part of the common elements, as the case may be, is no longer governed by this Act;

(b) in the case of the transfer of all of the property, cancel the certificate of title of each unit and where necessary, dispense with the production of the duplicate title without complying with section 26 of The Real Property Act; and

(c) in the case of a transfer of part of the common elements, cancel the certificate of title for that part of the common elements being transferred.

Effect of registration on claims

21(5)       Upon the registration of the transfer

(a) registered claims against the land and interests appurtenant to the land created before the registration of the declaration and plan are as effective in respect of the property transferred as if the declaration and plan had not been registered; and

(b) registered claims against the property or the part of the common elements created after the registration of the declaration and plan are extinguished in respect of the property transferred, and the district registrar shall issue the certificates of title in respect of the property transferred clear of such registered claims.

Proceeds

21(6)       Subject to subsection (7), the owners share the proceeds of the sale in the same proportions as their common interest.

Rights of dissenters

21(7)       Where a sale is made under this section, any owner who dissented may elect to have the fair market value of the property at the time of the sale determined by arbitration by serving notice to that effect on the corporation within 10 days after the vote, and the arbitration shall be a submission to two arbitrators and The Arbitration Act shall apply; and the owner who served the notice is entitled to receive from the proceeds of the sale the amount he would have received if the sale price had been the fair market value as determined by arbitration.

Where proceeds inadequate

21(8)       Where the proceeds of the sale are inadequate to pay the amount determined under subsection (7), each of the owners who voted for the sale is liable for a portion of the deficiency determined by the proportions of their common interests.

Termination by notice without sale

22(1)       Termination of the government of the property under this Act may be authorized

(a) by a vote of the owners who own 80%, or such greater percentage as is specified in the declaration, of the common elements; and

(b) by the consent of the persons having registered claims against the property created after the registration of the declaration and plan.

Notice of termination

22(2)       Where termination of the government of the property under this Act is authorized under subsection (1), the corporation shall register a notice of termination which shall either

(a) be executed by all the owners and all the persons having registered claims against the property created after the registration of the declaration and plan; or

(b) be executed by the corporation and accompanied by a certificate under the seal of the corporation certifying that the required percentage of owners as stipulated in the Act or the declaration and all the persons having registered claims against the property created after the registration of the declaration and plan had voted in favour of the termination of the government of the property.

Effect of registration

22(3)       Upon registration of a notice of termination under subsection (2),

(a) the government of the property under this Act is terminated;

(b) except where the plan defines one or more bare land units, the owners are tenants in common, or lessees as the case may be, of the land and interests appurtenant to the land described in the plan in the same proportions as their common interests;

(c) where the plan defines one or more bare land units, the owners are tenants in common or lessees, as the case may be, of the land described in the plan and the interests appurtenant thereto in proportion to the value of each unit and the appurtenant common interest determined in accordance with the manner described in the declaration for determining values in the event that the property ceases to be governed by this Act;

(d) claims against the land and the interests appurtenant to the land described in the plan created before the registration of the declaration and plan are as effective as if the declaration and plan had not been registered;

(e) encumbrances against each unit and common interest created after the registration of the declaration and plan are claims against the interest of the owner in the land and interests appurtenant to the land described in the plan, and have the same priority as they had before the registration of the notice of termination; and

(f) all other claims against the property created after the registration of the declaration and plan are extinguished.

Application to court

23(1)       Where

(a) damage to units and common elements occurs; or

(b) all or part of the property is expropriated; or

(c) the corporation or any owner, or any person having an encumbrance against a unit and common interest deems it advisable;

any interested party may apply to the court for an order terminating the government of the property under this Act, or amending the declaration or the plan.

Considerations

23(2)       In determining whether to terminate the government of the property under this Act or to amend the declaration or the plan, the court shall consider

(a) the scheme and intent of this Act;

(b) the rights and interests of the owners individually and as a whole;

(c) what course of action would be most just and equitable; and

(d) the probability of confusion and uncertainty in the affairs of the corporation or the owners if the court does not make an order under subsection (1).

Order

23(3)       Where an order is made under subsection (1), the court may include in the order any provisions that the court considers appropriate in the circumstances including

(a) directions for the payment of money by the corporation or by the owners or by some one or more of them; or

(b) directions to adjust the effect of the order as between the corporation and the owners and as amongst the owners themselves; or

(c) the application of insurance moneys or proceeds of the expropriation of common elements; or

(d) the transfer of the interests of owners of units which have been wholly or partially damaged or expropriated to the other owners.

Appearance by insurer

23(4)       On any application to the court under this section, any insurer who has effected insurance on the units and the common elements under subsection 17(1) may appear in person or by agent or counsel.

Variation

23(5)       The court may vary any order made by it under this section.

Application to require performance of duties

24(1)       Where a duty imposed or a right conferred by this Act, or by the declaration or by-laws of a corporation, is not performed or satisfied, the corporation or any owner or any person having an encumbrance against a unit and common interest may apply to the court for an order directing the performance of the duty or satisfaction of the right, as the case may be.

Order

24(2)       The court may by order direct performance of the duty or satisfaction of the right and may include in the order any provisions that the court considers appropriate in the circumstances including

(a) the appointment of an administrator for such time, and on such terms and conditions, as it deems necessary; and

(b) the payment of costs.

Administrator

24(3)       An administrator appointed under subsection (2)

(a) to the exclusion of the corporation, has such of the powers, duties and rights of the corporation as the court shall order;

(b) has the right to delegate any of the powers so vested in him; and

(c) shall be paid for his services by the corporation, which payments are common expenses.

Saving clause

24(4)       Nothing in this section restricts the remedies otherwise available for failure to perform or satisfy any duty imposed or right conferred by this Act.

Application for relief

24(5)       Any owner of a unit in a corporation who feels aggrieved

(a) by a provision contained in the declaration or by-laws of the corporation; or

(b) by anything done or omitted to be done by another owner of a unit in the corporation or by the corporation;

may apply to the court for relief, and upon hearing the application the court may grant such relief and make such order as it deems proper.

Application for declaratory order

24(6)       Any corporation and any owner or other person affected or likely to be affected by a provision of this Act, or a provision contained in the declaration or by-laws of a corporation, may apply to the court for a declaratory order setting out the rights or obligations or both of the corporation, owner or person, as the case may be, under the provision.

R.S.M. 1987 Supp., c. 7, s. 19.

Arbitration

25(1)       Where there is a dispute respecting any matter for the resolution of which an application to the court may be made under section 24, the parties to the dispute may, instead of proceeding as in that section provided or as may be otherwise provided by law, agree in writing to submit the dispute to arbitration in accordance with the provisions of this section and the regulations.

Appointment of arbitrator

25(2)       An arbitration under subsection (1) shall be heard by a single arbitrator appointed with the consent of both parties to the dispute, and where the parties are unable to agree on the appointment of such an arbitrator, the arbitrator shall be a person appointed by the minister for the purpose.

Award final and binding

25(3)       An award made by the arbitrator upon an arbitration under this section is final and binding on the parties and not subject to any review or appeal.

Where arbitration unsuccessful

25(4)       Where upon an arbitration under this section the arbritrator is unable to make an award and so declares in writing, the parties to the arbitration or either of them may apply to the court under section 24 or pursue any other remedy available at law for a resolution of the dispute.

Money issue

25(5)       Where the issue to be submitted to arbitration under this section is a claim by one party for the payment of an amount of money by the other party, the party from whom the payment is claimed shall deposit the amount with the arbitrator before the commencement of the arbitration.

Disposition of money

25(6)       The arbitrator receiving money under subsection (5) shall hold it in trust pending completion of the arbitration and shall, at the conclusion of the arbitration, disburse the money in accordance with any award made, and in the event of a declaration that the arbitrator is unable to make an award, the arbitrator shall return the money to the party from whom it was received.

Costs of arbitration

25(7)       The costs of any arbitration under this section shall be shared equally between the parties to the arbitration.

Rules of procedure

25(8)       The appointment of an arbitrator and the proceedings in an arbitration under this section shall be governed by rules prescribed in the regulations.

Arbitration Act not to apply

25(9)       The Arbitration Act does not apply to an arbitration under this section.

R.S.M. 1987 Supp., c. 7, s. 20.

Establishment of reserve funds

26(1)       Every corporation shall establish and maintain a reserve fund, and may establish and maintain one or more additional reserve funds.

Reserve fund an asset of corporation

26(2)       The money in the reserve fund of a corporation is an asset of the corporation and no part thereof shall be refunded or distributed to any owner of a unit in the corporation except where the owners and the property cease to be governed by this Act.

Funds under cl.14(1)(a)

26(3)       A fund established under and for the purpose set out in clause 14(1)(a) is not a reserve fund within the meaning of this section.

R.S.M. 1987 Supp., c. 7, s. 20.

Reserve fund to be held by corporation in trust

27(1)       The money in a reserve fund shall be held in trust by and in the name of the corporation in one or more special accounts and is subject to this section and sections 28 to 33.

Purposes of reserve funds

27(2)       The reserve fund of a corporation shall be used, subject to this Act, for any major repair or replacement of common elements or assets of the corporation including, without limiting the generality of the foregoing, roofs, exteriors of buildings, roads, sidewalks, sewers, heating, electrical and plumbing systems, elevators and laundry, recreational and parking facilities, and shall not be used for any other purpose except where a majority of the owners of the units in the corporation agree.

R.S.M. 1987 Supp., c. 7, s. 20; S.M. 1994, c. 11, s. 2; S.M. 1997, c. 35, s. 9.

Contributions to reserve fund by owners

28(1)       The money necessary for the establishment and maintenance of a reserve fund shall be collected by each corporation from the owners of the units in the corporation in accordance with section 31.

Contributions to reserve fund by developer

28(2)       The developer of a corporation who owns one or more units in the corporation is an owner of each unit for all the purposes of sections 26 to 33 and shall contribute to the reserve fund in respect of each unit in the same way as any other owner is required to contribute under those sections.

28(3)       [Repealed] S.M. 1997, c. 35, s. 10.

R.S.M. 1987 Supp., c. 7, s. 20; S.M. 1997, c. 35, s. 10.

Deposit of reserve fund money

29(1)       Subject to subsection (2), the money in a reserve fund of a corporation shall be deposited in a bank, trust company, credit union or caisse populaire, as shall be determined by a majority of the owners of the units, and any interest earned shall be added to and form part of the reserve fund.

Investment of reserve fund money

29(2)       Money in a reserve fund may be invested in accordance with the regulations, and any money earned from an investment shall be added to and form part of the reserve fund.

R.S.M. 1987 Supp., c. 7, s. 20; S.M. 1994, c. 11, s. 3.

Reserve fund

30(1)       The following matters with respect to the reserve fund of a corporation shall be determined at least annually by a majority vote of the voting rights held by owners, as set out in the declaration, who are in attendance or represented by proxy at a meeting of owners convened for the purpose of considering such a matter:

(a) the contributions to the reserve fund as specified in the current budget of the corporation or an amendment to the budget; and

(b) the maximum increase in reserve fund contributions which the board may approve.

Notice of meeting

30(1.1)     Notice of a meeting referred to in subsection (1) shall be given at least 30 days before the meeting and shall include the agenda for the meeting and the text of any proposed motion to be presented by the corporation.

Subsections 12(1.2) to (1.5) apply

30(1.2)     Subsections 12(1.2) to (1.5) apply with necessary modifications to the notice and quorum requirements of the meeting.

Filing of reserve fund statement

30(2)       In each year, every corporation shall file with the minister, in a form prescribed by regulation, a statement certifying that the corporation has a reserve fund in an amount specified in the statement.

Time limit

30(3)       Every corporation has two years from the date this section comes into force to commence filing the annual statements required under subsection (2).

R.S.M. 1987 Supp., c. 7, s. 20; S.M. 1997, c. 35, s. 11.

31(1)       [Repealed] S.M. 1997, c. 35, s. 12.

Level of individual contributions

31(2)       The proportion of the aggregate contributions to the reserve fund of a corporation that shall be payable by each owner of a unit shall be as specified in the declaration or by-laws of the corporation and shall be payable at such times as may be specified in the declaration or by-laws.

If level of contributions not specified

31(2.1)     If the declaration or by-laws do not specify the proportion of the aggregate contributions to the reserve fund, an owner shall contribute to the reserve fund in the same proportion as specified in the declaration for contributions to the common expenses.

Late payment of contributions

31(3)       Any contribution required to be made by an owner to the reserve fund of a corporation that remains unpaid on its due date shall bear interest calculated from that date to the date of payment at such rate as may be fixed in the by-laws of the corporation from time to time, and such interest is a debt due and owing from the owner to the corporation and, upon the receipt thereof, shall be dealt with for all purposes as investment interest earned under section 29.

R.S.M. 1987 Supp., c. 7, s. 20; S.M. 1997, c. 35, s. 12.

Credit of contributions to individual units

32(1)       The contributions to a reserve fund made by an owner of a unit shall be credited to the unit in the reserve fund account for that unit required to be kept under section 33.

Credit of investment interest

32(2)       Interest earnings resulting from the investment of money in the reserve fund of a corporation, or received under section 31 from owners upon the late payment of contributions, shall be credited to each unit of the corporation in the reserve fund account required to be kept for the unit under section 33, in such proportions as may be specified in the declaration or by-laws of the corporation.

Allocation of reserve fund expenditures

32(3)       Where an expenditure is made out of the money in the reserve fund of a corporation, the reserve fund account required to be kept under section 33 for each unit shall be debited with such proportion of the expenditure as may be specified in the declaration or by-laws of the corporation.

R.S.M. 1987 Supp., c. 7, s. 20.

Reserve fund accounts

33(1)       Every corporation shall keep a reserve fund account in a form and manner prescribed by regulation.

Certified copies of reserve fund accounts

33(2)       In addition to complying with the requirement of sub-clause 8(1.1)(a)(v), every corporation shall provide each owner of a unit in the corporation, within three months after the close of each fiscal year of the corporation and at other reasonable times upon the request of the owner, with a certified copy of the reserve fund account kept in respect of that unit under subsection (1).

Purchase price includes reserve fund account

33(3)       Upon the sale or transfer of a unit, the purchase price for the unit is deemed to include the balance shown in the reserve fund account in respect of that unit, as at the date of adjustments of the transaction, unless the agreement respecting the purchase or transfer of the unit provides that the transferee shall make an additional payment to the owner respecting that balance.

R.S.M. 1987 Supp., c. 7, s. 20; S.M. 1989-90, c. 90, s. 4; S.M. 2005, c. 29, s. 4.

Regulations

34          For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations as are ancillary thereto and are not inconsistent therewith; and every regulation made under, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make such regulations

(a) prescribing forms for use under this Act and the information required to be contained in any form so prescribed;

(b) prescribing provisions that the declaration of every corporation shall contain respecting the nomination and election of the board of directors of the corporation;

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

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

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

(c) prescribing rules respecting arbitrations under section 25;

(d) prescribing rules to cover cases for which no provision is made under this Act;

(e) prescribing the additional information, if any, that a purchaser is required to receive under clause 8(1.1)(i);

(f) prescribing the form and manner in which reserve fund accounts are to be kept;

(g) respecting the classes of investments in which money from reserve funds may be invested, and governing the making of such investments;

(h) prescribing matters to be certified by the corporation for the purpose of clause 14(1)(g);

(i) respecting the application of this Act to rental units that are not units under this Act but that are situated on land that is the subject of a declaration registered under this Act, and to tenants and holders of rights of first refusal in respect of such rental units;

(j) providing for transitional matters respecting condominium conversions.

R.S.M. 1987 Supp., c. 7, s. 20; S.M. 1994, c. 11, s. 4; S.M. 1997, c. 35, s. 13; S.M. 1999, c. 18, s. 5; S.M. 2005, c. 29, s. 5; S.M. 2010, c. 32, s. 7; S.M. 2011, c. 30, Sch. C, s. 6.

 

 
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