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The Declaration

The declaration is one of the two legal documents that create a condo corporation. The declaration is prepared by the declarant and is filed with the Land Registry Office along with the description. This process is called registering the condo, which brings the condo corporation into legal existence.

As such, the declaration contains fundamental information about the condo corporation and must be consistent with the Condominium Act, 1998 (the “Condo Act”).

The Declaration

The Condo Act requires that certain provisions must always be included in the declaration. Some of the more important provisions are:

  1. Addresses for the corporation,
  2. Proportions of common interests and common expense fees allocated to each unit,
  3. An identification of the exclusive use common elements,
  4. An identification of the boundaries for each unit, and
  5. A statement which declares that the Condo Act governs the condo corporation property.

The Condo Act also allows for certain optional provisions that may be included such as:

  1. Restrictions placed on owners regarding their own behaviour within the units and common elements (e.g., a no smoking provision),
  2. Restrictions placed on the leasing of units,
  3. An allocation of the responsibility to repair and maintain the units or common elements, and
  4. A list of the condo corporation’s responsibilities, objectives, and duties.

If an owner does not have a copy of their declaration, they can request one from their condo corporation using the Request for Records form.

The Declaration

From time to time, condo owners may wish to propose changes/ amendments to their condo corporation’s declaration. The process of changing, repealing, or adding a provision in the declaration is as follows:

  • The board of directors (the “condo board”) will first approve a proposed change to the declaration at a board meeting.
  • Next, the condo board must seek owner approval of the proposed change at a meeting of owners. The board must call the meeting of owners and, in the notice of meeting, include a copy of the proposed change.
  • At the meeting of owners, the proposed change will be held to a vote. Owners can vote by attending the meeting in-person or by proxy.

Making amendments to the declaration requires a high threshold of owner consent. Depending on the proposed change, the owners of 80-90% of the units are required to approve any amendments through a vote.

In some instances, 90% of the units in the condo corporation must agree to a change in the declaration. The 90% threshold applies if the change is regarding:

  • The proportion of common interests or common expenses paid per unit;
  • The specification of what is an exclusive use common element; and
  • The obligations to maintain the units and common elements and repair after damage.

Only 80% of units in the condo corporation must agree in writing to a change regarding any of the other provisions within the declaration.

Once the amendment has been approved, it must be registered with the Land Registry Office for the amendment to take effect as per section 107 (5) of the Condo Act.

The Declaration

As both the declaration and the rules can both restrict what owners can and cannot do in the units and common elements, there can seem to be an overlap between these two documents. For example, a condo may not allow pets or prohibit smoking in the units, which could be established through either the declaration or the rules.

However, even with these similarities there are two key differences between the two documents:

  1. Restriction of reasonableness: Rules must be reasonable for the purposes set out in section 58 of the Condo Act (i.e., for reasons to promote safety, security, welfare and prevent unreasonable interference with use and enjoyment of the units and common elements). Alternatively, a condo corporation’s declaration is not required to be held to the same standard of reasonableness. This means restrictions or prohibitions that do not quite meet the requirement of being reasonable under section 58 of the Condo Act, could be included in the declaration.

 

  1. Flexibility to amend: Rules are more flexible because they are much easier to pass and change as they only require the owners of a majority of voting units participating in the meeting (in person or by proxy) to consent. A declaration is less flexible and more difficult to change because it requires the owners of 80-90% of the voting units to vote in favour of the amendment. Often restrictions and prohibitions that are intended to be more permanent will be written into the declaration when the condo is created.

While provisions within a declaration are more entrenched than rules, both are equally enforceable and, as section 119 of the Condo Act states, all condo owners, directors, officers, employees, and occupants are obliged to follow them.