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The Condominium Act
This is an unofficial archived version of The Condominium Act
as enacted by SM 1987-88, c. 9 on July 17, 1987.

R.S.M. 1987, 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" )

"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")

"district registrar" means a district registrar appointed under The Real Property Act; ("registraire de district")

"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")

"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" )

"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")

"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")

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

"Registrar General" means the registrar general under The Real Property Act; ("registraire général" )

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

"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")

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.

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.

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 rented residential premises 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.

Special requirements for tenants.

5(2)

Where the property to which a declaration relates contains rented residential premises that are occupied by tenants on the date the declaration is submitted to the registrar for registration, the declaration shall not be registered unless

(a) it is accompanied by a statutory declaration that each tenant in occupancy on the date the declaration is registered has received written notice from the owner of his intention to file a declaration, that the notice

(i) was given at least three months before the declaration is submitted to the registrar for registration to each tenant who has been in occupancy more than three months, and

(ii) was given at the time the tenant agreed to occupy the premises to each tenant who has been in occupancy for three months or less before the date the declaration is submitted to the registrar for registration;

and that a notice of the registration of the declaration will be given to each tenant who enters into occupancy after the date the declaration is registered at the time he agrees to occupy the premises;

(b) it contains a statement that each residential tenant who, on the date of the registration is in occupancy under a lease of any kind and who is still in occupancy on the date of the giving of the option, has been given or will be given an option, exercisable at any time within 30 days after the date of receipt of the option, to purchase as a unit the premises that are the subject of the lease at a price not exceeding the price at which the unit will be offered to the public and on terms that are not less favourable;

(c) it contains a statement that the rights and duties of each tenant who, on the date of registration, is in occupancy under a lease of any kind are continued in accordance with The Landlord and Tenant Act; and

(d) 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 which provides, in addition to the rights under clause (c),

(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 number of full years the tenant has been in occupancy of any premises in the property as of the date of registration of the declaration,

(ii) that where a landlord gives notice of an increase in rent to the tenant, the notice shall be given in accordance with, and the rent increase shall be subject to, the provisions of The Residential Rent Regulation Act,

(iii) that the tenancy may not be terminated by the landlord except for cause provided in The Landlord and Tenant Act but the tenancy may be terminated at any time by the tenant on giving three months notice to the landlord or one month notice if the tenancy is terminated under subsection 99(20) of The Landlord and Tenant Act, and (iv) that the agreement is binding on the heirs, successors and assigns of the landlord, but is not assignable by the tenant.

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 subsection (4), provisions restricting gifts, leases and sales of the units and common interests;

(e) 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;

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

(g) a specification of the majority required to make by-laws of the corporation;

(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) any other matters concerning the property.

Limitation on certain provisions.

5(4)

No provision contained in a declaration pursuant to clause (3)(c) or (d) 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.

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 all owners, and all persons having registered encumbrances against the units and common interests.

Registration of amendment.

5(7)

Where a declaration is amended, the corporation shall register a copy of the amendment either

(a) executed by all the owners and all persons having registered encumbrances against the units and common interests; or

(b) accompanied by a certificate under the seal of the corporation certifying that all the owners and all persons having registered encumbrances against the units and common interests had consented in writing to the amendment;

and until the copy is registered, the amendment is ineffective.

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.

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)

The plan may be amended only with the written consent of all owners and all persons having registered encumbrances against the units and common interests.

Registration of amendment.

6(4)

Where a plan is amended, the corporation shall register a copy of the amended plan either

(a) executed by all the owners and all persons having registered encumbrances against the units and common interests; or

(b) accompanied by a certificate under the seal of the corporation certifying that all the owners and all persons having registered encumbrances against the units and common interests have consented in writing to the amendments;

and until the copy is registered, the amendment is ineffective.

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 112 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 subsec. (1) respecting bare land units.

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.

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.

Requirements of agreement to purchase.

8(1)

No agreement to purchase a unit is enforceable against the purchaser unless the purchaser has had in his possession for at least 48 hours before he executed the agreement, and he has acknowledged receipt of,

(a) a statement indicating the amount of the share of the common expenses of the corporation that the vendor expects will be allocated to the unit during the period of 12 months after the date on which the purchase under the agreement is to take effect, and a statement showing the amount of the share of the common expenses that has been allocated to the unit during the period of 12 months before the date of the agreement, or, if the corporation has not been in actual operation for 12 months before that date, from the date that the common expenses were first allocated to any units;

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

(c) a statement indicating the amount that has been, or is expected by the vendor will be during the 12 months after the date of the agreement, allocated to the unit for repair and maintenance of the unit and common elements;

(d) a copy of, and a statement of any fees or expenses payable by the owner of the unit under, any contract in force on the date of the agreement under which a person agrees with the corporation to manage the common elements or the business and affairs of the corporation, or both, but not including a contract of employment of an individual by the corporation;

(e) a statement specifying any fee or expense in relation to the use and occupation of the unit that is not indicated under the statements required under clause (a), (b), (c) or (d) and that the vendor expects the owner of the unit to be called upon to pay during the period of 12 months after the date on which the purchase under the agreement is to take effect; and

(f) a copy of the declaration or the proposed declaration.

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 subsecs. (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.

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 subsecs. (1) and (2).

9(4)

Notwithstanding subsections (1) and (2)

(a) clause (l)(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 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.

By-laws.

12(1)

The corporation, by a vote of members who own 66 2/3%, or such greater percentage as is specified in the declaration, of the common elements, may make or amend by-laws

(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.

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 bylaw 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 bylaws.

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 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 bylaws.

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;

(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 subsection (2), a right of lien for the unpaid amount of any assessment or account that the corporation has the right to recover from the owner under clause (d);

(f) has the right 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 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 and accounts are payable; and

(iii) the extent to which the assessment 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.

Registration of lien.

14(2)

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

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 (2), and upon demand, the corporation shall give a discharge of the lien.

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 Trustee in his capacity as official guardian; or

(b) in the case of an owner who is a mentally disordered person, by the committee of his estate or, if no committee has been appointed, by the Public Trustee; 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 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.

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 or renovation of the common elements, or may make any substantial change in the assets of the corporation; and the corporation may, by a vote of a majority of the members, make any other addition, alteration or improvement to or renovation of the common elements, or make any other change in the assets of the corporation.

Costs.

16(2)

The cost of any addition, alteration or improvement to or renovation of 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, or renovation of, 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.

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 by this Act, the declaration or the by-laws is not performed, the corporation, 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.

Order.

24(2)

The court may by order direct performance of the duty 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 and duties 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 any duty imposed by this Act.

Regulations.

25

For the purposes of carrying out the provisions of this Act according to their intent, the Registrar-General, with the approval of 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 selection has the force of law; and, without restricting the generality of the foregoing, the Registrar-General may make regulations

(a) prescribing forms for use under this Act;

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