Condominium Management Law Blog

Back to Basics: Changes to the Declaration, By-laws, and Rules

byMichelle Kelly

Did you know that condominium structures have exist for thousands of years? Some even believe the Colosseum in Rome was a condominium at one point in time. In Ontario, condominiums were authorized with the passage of legislation in 1967 and the first condominium was registered in 1968.  A lot can change in almost fifty years! As such, it is important for condominiums, especially older ones, to review their governing documents and see if any changes are desirable to tackle new issues that did not exist (or were unfathomable in some cases) when the condominium was registered, like privacy concerns from personal drones or security cameras, or to address changes in commonly held views, like the decreased acceptance of exposure to cigarette smoke. This post will explain the basic processes that must be used to change the documents according to the Condominium Act, 1998 (the “Act”).

Declaration & Description

There are several ways to amend the declaration and description, but one method is the most common so we will focus on that option – with consent of the owners. Section 107 of the Act sets out the requirements for amending the declaration and/or description with the consent of owners. Briefly, the process is:

  1. The board approves the amendment at a properly constituted board meeting.
  2. The board calls a meeting of owners to present the amendment to them. The Notice of Meeting sent to the owners and any mortgagees of record must include a copy of the proposed amendment.
  3. The owners are not required to vote at the meeting. Instead, they provide their written consent, which may be collected after the meeting. Most amendments require the consent of 80% of the units, but changes to the following require 90%: the contributions to the common expenses, the common interests, maintenance and repair obligations, or exclusive use common elements.
  4. The declarant may also be required to consent if the declarant has not transferred all units in the condominium and it has been less than three years since the later of registration of the condominium and the first agreement of purchase and sale for a unit in the condominium.
  5. Once approved by the owners, the lawyer will work on securing the necessary approvals of the municipality and land registry office to get the document registered. If the description is amended the surveyor who prepare it will also be involved. This part of the process can take several months.  

The declaration and description must be consistent with the Act. An amendment that is inconsistent with the Act is deemed amended accordingly. Sections 7 and 8 of the Act, as well as the regulations made under the Act, set out various mandatory and permitted content for the declaration and description.   

The other methods to amend the declaration and/or description including by application to the Director of Titles or the Superior Court of Justice. These are used to correct errors or inconsistencies only. Sections 109 and 110 of the Act describe these processes.


By-laws

The process to create, amend, or repeal a by-law is similar to the process used to amend the declaration or description. The process is set out in section 56 of the Act. Briefly, the process is:

  1. The board approves the by-law at a properly constituted board meeting.
  2. The board calls a meeting of owners to vote on the by-law. The Notice of Meeting must include a copy of the proposed by-law.
  3. At the meeting of owners, the owners must vote in favour of the by-law with or without amendment. There are now two different voting thresholds for the approval of by-laws. Most by-laws still require a majority of the voting units to vote in favour, but some may be approved with the lower threshold of a majority of the votes cast at the meeting. The condominium’s lawyer can help you determine the appropriate voting threshold.
  4. Once approved by the owners, the board signs the by-law and the lawyer will register it on title to the units.

By-laws must be reasonable and consistent with the Act and the declaration. A by-law must also cover one of the permitted subjects in the Act, which are primarily set out in section 56 of the Act but there are other sections in the Act and regulations that authorize by-laws. A by-law that does not meet these requirements may be declared invalid and unenforceable.

Rules

The process to amend the rules is the easiest as it only requires the approval of the owners if they want to be involved in the process. The same process is used to make, amend, or repeal a rule. It is described in section 58 of the Act. Briefly, the process is:

  1. The board approves the rule at a properly constituted board meeting.
  2. The board sends a notice to the owners that includes a copy of the rule, a statement of the date the rule will become effective, a statement that the owners may requisition a meeting to vote on the rules, and a copy of sections 46 and 58 of the Act.
  3. The rule will become effective if the board does not receive a requisition within 30 days of the notice. If a requisition is received within 30 days of the board sending the notice, the rule will become effective if there is no quorum at the meeting, or if there is quorum at the meeting, the owners do not vote against the rule at the meeting.
  4. Rules are not registered on title to the units.

It is important to note that rules must be reasonable and consistent with the Act, the declaration, and the by-laws. A rule must also be aimed at promoting the safety, security or welfare of the owners or property, or preventing unreasonable interference with the use and enjoyment of the property. A rule that does not meet these requirements may be declared invalid and unenforceable. 

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