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An Act to amend The Condominium Act

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

An Act to amend The Condominium Act

Sec. 1 am.

1

Section 1 of The Condominium Act, being chapter C170 of the Re-enacted Statutes of Manitoba, 1987, is amended

(a) by adding thereto, immediately after the definition "land" the following definition:

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

(b) by adding thereto, immediately after the definition "Registrar General" the following definitions:

"rentalsman" means a person designated as a rentalsman under The Landlord and Tenant Act; ("médiateur des loyers")

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

Cl. 5(2)(d) am.

2

Subsection 5(2) of the Act is amended by striking out all the words in clause (d) thereof immediately preceding sub-clause (d)(i) thereof and substituting therefor the words "it is accompanied by a statutory declaration that each tenant in occupancy on the date on which the declaration is registered has been offered an agreement in duplicate, together with a copy of this subsection, providing, in addition to the rights under clause (c),".

Sub-cl. 5(2)(d)(i) rep. and sub.

3

Subsection 5(2) as amended is further amended by striking out sub-clause (d)(i) thereof and substituting therefor the following sub-clause:

(i) that, notwithstanding subsection 99(4) of The Landlord and Tenant Act, the tenant may continue in occupancy of the premises he occupies on the date of registration of the declaration for a period of at least two years after the date of registration of the declaration or, at the option of the tenant, for a period equal to the length of time the tenant has been in continuous occupancy of any premises in the property as of the date of registration of the declaration,.

Subsecs. 5(2.1) to (2.6) added.

4

Section 5 of the Act is amended by adding thereto, immediately after subsection (2) thereof as amended, the following subsections:

Service of agreement.

5(2.1)

An agreement mentioned in clause (2)(d) shall be served on or given to each tenant

(a) by personal service on the tenant; or

(b) by leaving it with an adult person on the premises; or

(c) by mailing it, postage prepaid, by registered or certified mail, to the tenant; or

(d) where the whereabouts of the tenant are unknown, by such substitutional service as a judge of the court may upon application order.

Objecting tenant to notify landlord.

5(2.2)

Where a tenant objects to the term of occupancy offered in an agreement mentioned in clause (2)(d) and served under subsection (2.1), the tenant shall notify the landlord of the objection within 14 days of the service, but if the tenant fails to so notify the landlord, the tenant shall be deemed to have accepted the agreement and its contents.

Reference to rentalsman.

5(2.3)

Where

(a) in accordance with subsection (2.2), a tenant notifies a landlord of an objection to the term of occupancy offered in an agreement but the landlord and tenant cannot resolve the objection between them; or

(b) any other dispute

(i) for the resolution of which provision is made in The Landlord and Tenant Act, or

(ii) respecting a requirement under The Landlord and Tenant Act, arises between the landlord and the tenant;

either party to the dispute may, subject to subsection (2.4), refer the dispute to the rentalsman for determination.

Rentalsman may not consider certain disputes.

5(2.4)

The rentalsman shall not consider a dispute referred under subsection (2.3) where

(a) the rentalsman is of the opinion that the dispute is of such a nature that it should be resolved by the court; or

(b) either party to the dispute had previously applied to the court for a resolution of the dispute and the dispute was previously resolved by the court or is currently before the court.

Appeal to court.

5(2.5)

Where the rentalsman considers and determines a dispute referred under subsection (2.3), either party to the dispute may within 10 days of the date of the determination appeal the determination to the court, and the appeal shall be heard by way of a trial de novo.

Stay of determination pending appeal.

5(2.6)

Where the rentalsman considers and determines a dispute referred under subsection (2.3), enforcement of the determination is stayed for the 10 day appeal period provided under subsection (2.5), and if the determination is appealed the stay continues until the final disposition of the appeal.

Cl. 5(3)(d) rep. and sub.

5

Subsection 5(3) of the Act is amended by striking out clause (d) thereof and substituting therefor the following clause:

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

Cl. 5(3)(e) rep. and sub.

6

Subsection 5(3) of the Act is further amended by striking out clause (e) thereof, and substituting therefor the following clause:

(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.

Cl. 5(3)(p) rep. and sub.

7

Subsection 5(3) of the Act is further amended by striking out clause (p) thereof and substituting therefor the following clauses:

(p) provisions respecting voting by proxy; or

(q) any other matters concerning the property;.

Subsec. 5(5.1) added.

8

Section 5 of the Act is further amended by adding thereto, immediately after subsection (5) thereof, the following subsection:

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.

Subsec. 5(6) rep. and sub.

9

Subsection 5(6) of the Act is repealed and the following subsection is substituted therefor:

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.

Subsec. 5(7) rep. and sub.

10

Subsection 5(7) of the Act is repealed and the following subsection is substituted therefor:

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.

Subsecs. 6(3) and (4) rep. and sub.

11

Subsections 6(3) and (4) of the Act are repealed and the following subsections are substituted therefor:

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.

Sec. 8 rep. and sub.

12

Section 8 of the Act is repealed and the following section is substituted therefor:

Cooling off period.

8(1)

Where a prospective purchaser signs an agreement to purchase a unit, the purchaser may cancel the agreement at any time within 48 hours thereafter

(a) by personally giving the vendor a written notice of the cancellation within the 48 hours; or

(b) by mailing to the vendor a notice of cancellation within the 48 hours, by registered or certified mail.

Information to be received by purchaser.

8(2)

No agreement to purchase a unit is enforceable against the purchaser unless the purchaser has received, before or at the time of executing the agreement,

(a) the most recent financial statement of the corporation and a budget statement for the current financial year 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;

(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 copy of any management agreement or proposed management agreement;

(d) a statement indicating whether or not the unit is tenant occupied and, if so occupied, the length of time the tenant is entitled to remain in occupancy in accordance with sub-clause 5(2)(d)(i), 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) a statement specifying the number and type of parking stalls that are included in the purchase price and whether there is to be any additional monthly charge for the use of the stall; and

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

Computation of 48 hours.

8(3)

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

Return of deposit.

8(4)

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.

Subsec. 11(1) rep. and sub.

13

Subsection 11(1) of the Act is repealed and the following subsection is substituted therefor:

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.

Subsec. 11(4) added.

14

Section 11 of the Act is amended by adding thereto, immediately after subsection (3) thereof, the following subsection:

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.

Cls. 14(1)(d), (e), (f) and (g) rep. and sub.

15

Subsection 14(1) of the Act is amended by striking out clauses (d), (e), (f) and (g) thereof and substituting therefor the following clauses:

(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

(i) the amount of any assessment, penalty and accounts owing by the owner to the corporation, and 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, and

(iii) the extent to which the assessment, penalty and accounts have been paid by the owner, and, in favour of any person dealing with that owner, the certificate is conclusive proof of the matters certified therein.

Subsec. 14(1.1) added.

16

Section 14 of the Act is amended by adding thereto, immediately after subsection (1) thereof as amended, the following subsection:

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.

Subsec. 14(2.1) added.

17

Section 14 of the Act is further amended by adding thereto, immediately after subsection (2) thereof, the following subsection:

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.

Subsec. 14(4) rep. and sub.

18

Subsection 14(4) of the Act is repealed and the following subsection is substituted therefor:

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.

Sec. 24 rep. and sub.

19

Section 24 of the Act is repealed and the following section is substituted therefor:

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.

Sec. 25 rep. and sub.

20

Section 25 of the Act is repealed and the following sections are substituted therefor:

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 arbitrator 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.

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.l4(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.

Reserve funds to be held in trust.

27(1)

The money in the reserve fund of a corporation shall be kept in a special account and shall be held in trust by the corporation for the purposes set out in and subject to the provisions of 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 unforeseen common expenditures or 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.

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.

Cessation of contributions.

28(3)

The contributions required to be made to a reserve fund under subsections (1) and (2) shall cease as soon as the reserve fund reaches the level required under section 30, but shall re-commence whenever the balance of the reserve fund falls below that level.

Investment.

29

The money in the reserve fund of a corporation shall be kept invested in such bank, trust company or credit union as the majority of the owners of the units in the corporation may agree, and any interest earnings resulting from such investment shall be added to and shall form part of the reserve fund.

Level of reserve funds.

30(1)

The total amount to be accumulated and maintained in the reserve fund of a corporation, or the total aggregate amount to be accumulated and maintained in the combined reserve funds of a corporation, as the case may be, shall be determined annually by a simple majority vote of the owners of the units in the corporation.

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 and that the amount has been determined in accordance with the provisions of subsection (1).

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).

Level of aggregate contributions.

31(1)

The aggregate amount of the contributions that shall be made from time to time to the reserve fund of a corporation by all the owners of the units in the corporation shall be such as will be sufficient to enable the corporation to comply with section 30.

Level of individual contributions.

31(2)

The proportion of the aggregate contributions to the reserve fund of a corporation required under subsection (1) 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.

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.

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 to individual units.

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 to individual units.

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.

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(2)(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).

Adjustment of reserve fund accounts upon sale or transfer.

33(3)

Upon the sale or transfer of a unit, the balance, as at the date of adjustments of the transaction, shown under subsection (1) in the reserve fund account kept in respect of that unit shall be adjusted as between the owner and transferee and paid as an adjustment by the transferee to the owner.

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;

(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(2)(i);

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

Commencement of Act.

21

This Act comes into force on a day fixed by proclamation.