In addition to the Condominium Act, 1998 (the “Condo Act”), condominium corporations are governed by the declaration, by-laws, and rules. It is important to be familiar with these documents, often collectively referred to as the “governing documents”. When you buy a condo, regardless of whether you decide to live in it or lease it out, you become part of a larger community of owners who all have a collective interest in the condo corporation and its operations. These documents are instrumental in establishing how the condo corporation must conduct its business and manage its affairs.

The governing documents contain important information regarding the powers and responsibilities of the condo corporation, an owner’s rights and obligations, as well as what is permitted in the condo corporation and restrictions that must be observed.

Every condominium unit owner and occupant (e.g., tenants or guests) is required to comply with the Condo Act, and with the condo corporation’s governing documents. Condominium corporations are required to take steps to enforce their governing documents when non-compliance issues occur.

The Hierarchy

Taken together with the Condo Act, the declaration, by-laws, and rules are the main sources of condo governance and they exist in a hierarchy in the following order:

1. The Condominium Act, 1998;
2. The declaration;
3. The by-laws; and
4. The rules.

The Condo Act is at the top of the hierarchy and it applies to and regulates all condo corporations in the province of Ontario. The Condo Act lays out the requirements for each of the governing documents, how they are created and amended, and the requirement that they be consistent with the Condo Act. Not only do the governing documents need to be consistent and in compliance with the Condo Act, but also with any document higher in the hierarchy. For example, a condo rule cannot contradict the condo corporation’s by-laws, declaration, or the Condo Act.

Each governing document type has a different purpose and the requirements to amend each document also differ. Click on the link for each document for more information.

• The Declaration
  The declaration is one of the two legal documents that create a condo corporation when registered with the Land Registry Office. The declaration is often considered the constitution of the condo corporation and contains many important provisions.

• The By-laws
  The by-laws set out various key aspects of how the condo corporation will govern itself such as the number of directors on the board, board meeting procedures, and how the affairs of the condo corporation are generally conducted. The by-laws can be considered the administrative guide for the condo corporation.

• The Rules 
  Condo rules are designed to promote the safety of owners and prevent unreasonable interference to the use and enjoyment of the units as well as common elements. The condo rules will dictate what individuals on the condo corporation property can and cannot do.

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.

How can the declaration be amended?

From time to time, owners may wish to propose amendments to their condominium corporation’s declaration. The requirements for altering, repealing, or adding a provision in the declaration are as follows:

• The condominium board calls and holds an owners’ meeting for the purpose of discussing the change to the declaration. When calling the owners’ meeting, the condominium board must include a copy of the proposed change in the notice of meeting.
• Making amendments to the declaration requires a high threshold of owner consent; as such, owners of at least 80% or 90% of the units must consent to the change in writing:
  • The 90% threshold applies if the change is regarding:
    • The proportion of common expenses paid per unit;
    • The specification of what is an exclusive use common element; and
    • The obligation to maintain the units and common elements and repair after damage.
  • The 80% threshold applies if the change is regarding any of the other provisions within the declaration.
• Once the change has received the consent of the owners and condominium board approval, the condominium board must send a notice, delivered personally, via prepaid mail, or electronically (if permitted) to all mortgagees listed, or are required to be listed, in the record of owners and mortgages under section 46.1 of the Condo Act.

It is important to note that the change must be registered with the Land Registry Office for the change to take effect as per section 107 (5) of the Condo Act. A change made to the declaration will not be effective until the copy of the declaration has been registered.

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.

Every condominium owner and occupant is required to comply with the Condominium Act, 1998 (the “Condo Act”), and with the condominium corporation’s governing documents.

Under section 17 (3) of the Condo Act, condominium corporations are required to take all reasonable steps to ensure that everyone complies with the Condo Act and the condominium corporation’s governing documents.

For more information on how condo corporations can enforce the governing documents, click here to access the Declaration, By-Laws, and Rules webpage.

THE-BY LAWS:

The Condo Act outlines the wide range of matters that by-laws can address. Common examples may include:

1. Methods of voting,
2. How common expense fees are collected,
3. Allowing the condo corporation to borrow money,
4. A description of what a standard unit consists of for the purposes of repair and insurance responsibilities, and
5. The management of the condo corporation property.

A full list of the types of matters that can be addressed through a by-law can be found in section 56 of the Condo Act and section 14 (0.1) of Ontario Regulation 48/01.

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

By-laws are passed, amended, or repealed by the condo board but require approval from the owners. The process is as follows:

• A new, proposed change, or repeal of a by-law will be adopted by the condo board at a board meeting.
• The condo board will then submit the new by-law to approval of the owners by calling a meeting of owners. In the Notice of Meeting they will include information on the by-law.
• At the meeting of owners, the proposed by-law will be put to a vote. Depending on the by-law, either the consent from the owners of the majority of the units in the condo corporation or the majority of owners present at the meeting is required for approval.
• A copy of the by-law must then be registered with the Land Registry Office to become enforceable.

Most by-laws require approval from the owners of a majority of the units in the condo corporation to be adopted and enforceable. However, a few specified by-laws only require approval from a majority of the owners present or represented by proxy at the meeting.

These specified by-laws include:

• A by-law which governs the use of telephonic or electronic voting at meetings of owners;
• A by-law which specifies which additional records that will be maintained by the corporation and their retention times; and
• The types of by-laws specified under section 14 (0.1) of Ontario Regulation 48/01.

Every condominium owner and occupant is required to comply with the Condominium Act, 1998 (the “Condo Act”), and with the condominium corporation’s governing documents.

Under section 17 (3) of the Condo Act, condominium corporations are required to take all reasonable steps to ensure that everyone complies with the Condo Act and the condominium corporation’s governing documents.

For more information on how condo corporations can enforce the governing documents, click here to access the Declaration, By-Laws, and Rules webpage.

THE RULES:

Rules can be passed, amended, or repealed by the condo board of directors (the “condo board”) but require consent from the owners.

First, a new rule, amendment to a rule or repeal to an existing rule will be approved by the board of directors at a board meeting. The condo board must then provide a notice to the owners with the following information:

• A copy of the new rule or amended or repealed rule;
• The date the board proposes the rule will become effective;
• A statement that the owners have the right to requisition a meeting about the rule, and that the rule will become effective 30 days after the notice is given unless a meeting is requisitioned; and
• A copy of section 46 and section 58 of the Condo Act.

This means owners who do not like the rule can act to change it or stop it from becoming effective by requisitioning an owners’ meeting. If a meeting is not requisitioned within the 30 days from when the notice is given, the rule will become effective. If a meeting is requisitioned, the condo board must call and hold a meeting within 35 days. In this case the rule will become effective unless the owners of a majority of the voting units participating in the meeting vote against it.

Owners do not need board action or consent to requisition a meeting for the purpose of amending or repealing a rule. According to section 58 (5) of the Condo Act, the owners may amend or repeal a rule at a meeting called for this purpose (e.g., an owner requisitioned meeting). During the meeting, support from the owners of a majority of the voting units participating in the meeting is necessary for the change to the rule to take place.

As both the declaration and the rules can 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 provisions 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 Act states, all condo owners, directors, officers, employees, and occupants are obliged to follow them.

Every condominium owner and occupant is required to comply with the Condominium Act, 1998 (the “Condo Act”), and with the condominium corporation’s governing documents.

Under section 17 (3) of the Condo Act, condominium corporations are required to take all reasonable steps to ensure that everyone complies with the Condo Act and the condominium corporation’s governing documents.

For more information on how condo corporations can enforce the governing documents, click here to access the Declaration, By-Laws, and Rules webpage.

Enforcing The Governing Documents

Every condominium owner and occupant is required to comply with the Condominium Act, 1998 (the “Condo Act”), and with the condominium corporation’s governing documents.

Under section 17 (3) of the Condo Act, condominium corporations are required to take all reasonable steps to ensure that everyone in the condominium corporation complies with the Condo Act and the condominium corporation’s governing documents.

If a condominium corporation has an issue regarding compliance with the governing documents, the board must determine how to resolve the issue. In most cases, condo corporations will need to:

1. Determine who is causing the issue
2. Notify the unit owner and / or occupant causing the issue that they must comply with the governing documents; and
3. Follow up with the individual(s) causing the issue to determine if the issue has been resolved.

If the issue continues, the board may need to take additional steps to enforce the governing documents. This can include:

• Sending the unit owner and / or occupant causing the issue a letter from the condo corporation’s legal counsel.
• If the issue falls within the Condominium Authority Tribunal’s (CAT) jurisdiction, condo corporations can file an application with the CAT to resolve the dispute.
  • You can learn more about filing an application with the CAT here.
• If the issue is not within the CAT’s jurisdiction, condo corporations can resolve the dispute in private mediation and / or arbitration in accordance with section 132 (4) of the Condo Act; or in some cases, apply to the Superior Court of Justice for a compliance order in accordance with section 134 of the Condo Act.