Amendments to a Condominum Corporation’s Declaration and By-Laws

Background

In New Brunswick, each condominium corporation is first approved by the Director of Condominiums. The Director approves the Declaration and description, assigns a legal name to the corporation (ie. York County Condominium Corporation No. 250 or Condominium Corporation No. 669991), prepares a certificate of approval, and delivers a copy of the documents to the registrar of Land Titles. The registrar of Land Titles registers the Declaration, description and other documents under the Land Titles Act. The registration of a Declaration and description creates the corporation whose members are the unit owners. This includes the developer, who may own all or most of the units.

Can these documents be amended?

The Declaration can be amended. In this case, the original Declaration remains intact and each amendment is a supplement to the Declaration, which is numbered and registered in the Land Titles office.  This makes the amendment legal and enforceable. The first amendment is “Amendment Number 1 to the Declaration”. Once registered, the amendment to the Declaration replaces specific sections of the original Declaration or becomes an addition.

For example:

The original Declaration may state that, “The Corporation may, by a vote of owners who own eighty (80) percent of the common elements, make by-laws.”

The Amendment to the Declaration may state that, “The Corporation may, by a vote of owners who own sixty percent of the common elements, make by-laws:”

In this case, the amendment replaces this specific section requiring a vote of owners who own eighty percent with a lower requirement of sixty percent.

A By-Law can be amended or repealed and replaced with a new By-Law. So, it is possible to make amendments to the By-Law or to completely replace the By-Law with a new one. For example By-Law Number 1 can be repealed and replaced with By-Law Number 2.

For the changes to be legal and enforceable, there is a process to follow:

1. The Condominium Corporation would need to determine what useful changes are needed.
2. Determine whether an amendment or a replacement of the By-Law works best.
3. Seek pre-approval from the Director of Condominiums to ensure the proposed changes are acceptable, legal and enforceable.
4. A general meeting must be held to vote on accepting the amendments. An agenda and copies of the proposed changes must be circulated among the owners in advance of the meeting.
5. In New Brunswick, voting to amend a declaration requires that the owners of at least 60% of the common elements must vote in favour of accepting the changes. (see Act reference below)
6. In New Brunswick, voting to amend or repeal & replace a By-Law requires that the owners of at least 60% of the common elements be represented in the vote. The vote is determined by majority rule (more than 50%). A tie vote is not a majority vote. A tie vote would result in defeat of the changes. (see Act reference below)
7. Once the changes have been voted in, the Board of Directors sign the appropriate forms for registration. These forms also require the signature of someone who has been appointed as a Commissioner of Oaths.
8. There is a fee to register the changes in the Land Titles office. The fee applies to each document submitted for change.
9. The amendments are legal once registered in the Land Titles office and file numbers are assigned to each document.
10. Copies of the amended documents must be distributed to each owner and must be included with all Estoppel Certificates.

This can be a complex task and Condominium Corporations are wise to consult with a condominium industry professional to make the changes to their documents. Condo-Link Services has amended and repealed & replaced the governing documents for many condominium corporations in the province.

For advise, information on the process and a quote, please contact us anytime – email   judy.orr@condo-link.ca or telephone  506-206-2080.

REFERENCES in the New Brunswick Condominium Property Act.

43(1) Once registered, a declaration may only be amended with the consent of the owners of at least 60% of the common elements, or a greater percentage if specified in the declaration.

Note: if there are 40 units – then 60% of 40 units MUST vote in favour = 24 unit owners must vote in favour of the changes at a properly held General Meeting. If fewer than 24 unit owners are represented at the General Meeting (in person or by proxy), the motion cannot be voted on. The requirement is 60% or 24 must vote in favour. If less than 60% attend (in person or by proxy), there are not enough unit owners to vote in favour, therefore conducting the vote is useless.

32(3) A corporation may make, amend or repeal by-laws by a vote of the owners of at least 60% of the common elements, or a greater percentage if specified in the declaration.

Note: if there are 42 units – then 60% of 42 units MUST vote in person or by proxy at a properly held General Meeting. The vote is decided by majority rule, which means more than 50% of those voting must vote in favour. For example:

1. If 26 unit owners were represented in the vote (in person or by proxy), there are enough unit owners to conduct the vote (26/42 = 62%). The motion to accept the By-Law changes would pass if more than 50% of those voting voted in favour. If 14 or more of the 26 unit owners vote in favour, the changes will pass. If 13 or fewer unit owners voted in favour, the changes will NOT pass.
2. If 25 or fewer unit owners are represented in the vote, the motion cannot be voted on. There is not a high enough representation to carry out the vote. 25/42 = 59.52% which is below the required 60%.
3. if 38 unit owners were represented in the vote (in person or by proxy), there are enough unit owners to conduct the vote (38/42 = 90%). The motion to accept the By-Law changes would pass if more than 50% of those voting voted in favour. If 20 or more of the 38 unit owners voted in favour, the changes will pass. If 19 or fewer unit owners vote in favour, the changes will NOT pass.