The declaration can be thought of as the constitution of the corporation. It is one of the two legal documents along with the description that create a corporation when builders or landowners file them at the Land Registry Office. Declarations must be consistent with the Condo Act.
Contents of the Declaration
The Condo Act has specific requirements about what must go into the declaration, including:
- Addresses for the corporation
- Proportions of common expenses’ fees allocated to each unit
- Identification of elements not for common use, such as balconies, private terraces, etc
- Unit boundaries
The Condo Act also allows for other optional provisions to be included:
- Restrictions on owner behaviour, such as a no smoking provision, restrictions on rentals, etc
- Allocation of the responsibilities of owners and the corporation to repair and maintain units and common elements
Owners can request a copy of the declaration from their corporation by submitting a records request.
Amending the Declaration
Declarations can only be amended at an owners’ meeting. Boards must call the meeting through a notice that includes the proposed amendment and at least 80 or 90 per cent of the units must consent to the change.
- The 90 per cent threshold applies if the change is about:
- The proportions of the common expenses’ fees allocated to each unit
- Changing access to common elements
- Who is responsible for maintenance and repair of common elements
- 80 per cent of the units must consent if the change is about any other provisions within the declaration.
Condo boards must send notices listing any approved changes to all mortgagees listed in the corporation’s record of owners and mortgagees.
Amendments must also be registered with the Land Registry Office. A change made to the declaration will not be effective until the copy of the declaration has been registered.
Differences between the declaration and the rules
Both the declaration and the rules can restrict what owners can do. For example, they can both restrict pets or smoking.
Here are two key differences:
- Rules are held to a standard of reasonableness under the Condo Act. The declaration is not held to this same standard.
- Rules can be changed through an owner’s meeting if most voting units participating in the meeting want the change. Declarations changes require the approval of 80 per cent or 90 per cent of the voting units.
Enforcing the Declaration
All members of condo communities must comply with the Condo Act and governing documents.
Boards can follow these steps to resolve any issues:
- Notify residents who are not complying to make them aware of the issue and follow up as required.
- If necessary, send a letter from legal counsel
- Refer the issue to the Condo Authority Tribunal if it is within the CAT’s jurisdiction.
- Refer the issue to mediation, arbitration or the Superior Court if it is not within the CAT’s jurisdiction.
For more information on the most common types of condo disputes, read about Solving Common Issues.