BILL NO. 64

1st Session, 57th General Assembly
Nova Scotia
47 Elizabeth II, 1998

Government Bill

Condominium Act
(amended)

The Honourable Keith Colwell
Minister of Business and Consumer Services

First Reading: November 3, 1998

(Explanatory Notes)

Second Reading: November 16, 1998

Third Reading: December 3, 1998 (NO AMENDMENTS)

Clause 1

(a) amends the definition of "common expenses" in the Condominium Act to make it clear that common expenses are the expenses incurred in carrying out the objects of a condominium corporation;

(b) removes the definition of "consolidated index", as this definition is unnecessary;

(c) updates the definition of "Court";

(d) amends the definition of "declarant" to mean the owner of the freehold estate in the land described in the description of the condominium required by the Act, including the owner's successor or assignee, rather that the owner in fee simple, which is now the case, and also amends the definition to remove any reference to a mortgagee in possession, which is unnecessary as a result of the change in the reference from the owner in fee simple to the owner of the freehold interest;

(e) amends the definition of "description" to allow for amendments to a description;

(f) removes the definition of "filed", as this definition is unnecessary;

(g) amends the definition of "unit" to allow for amendments to the declaration and description; and

(h) adds to the Act a definition of "occupant of a unit".

Subclause 2(1) replaces the requirement that a declaration and description be submitted for registration by or on behalf of the owner in fee simple of the land described in the description with a requirement that the declaration and description be submitted by or on behalf of the owner of the freehold estate in the land.

Subclause 2(2) replaces the requirement that the report on title must show the owner by whom the declaration and description are submitted as the owner in fee simple of the land with a requirement that the report must show the owner by whom the declaration and description are submitted as the owner of the freehold estate in the land.

Subclause 2(3) adds to the list of items that must be submitted to the Registrar of Condominiums a plan of survey of the property, a set of proposed by-laws and any other information the Registrar thinks necessary for the purposes of the submission.

Subclause 2(4) replaces a provision that requires that the appointment of the recognized agent of a condominium corporation be in a form prescribed by the regulations with a provision that requires the appointment to be in a form satisfactory to the Registrar.

Subclause 2(5) removes a provision that states that the acceptance for registration of a declaration and description is conclusive evidence of compliance with all requirements of the Act in respect of acceptance for registration and of matters precedent and incidental thereto.

Clause 3 combines in one Section the duties that must be carried out by the Registrar when the Registrar accepts for registration all documents that must be submitted to the Registrar for registration. These duties are now split between the duties that must be performed when the declaration and description are accepted for registration and the duties that must be performed when the other required documents are submitted for registration. This Clause also adds the condominium corporation to the list of persons who are to receive copies of the documents that are accepted for registration.

Clause 4 repeals a Section that has become unnecessary as a result of the amendments made by Clause 3.

Clause 5 removes the requirement that by-laws of a condominium corporation be registered in the registry of deeds.

Subclause 6(1)

(a) requires a declarant to include in the declaration information that at present a declarant may or may not include in the declaration;

(b) repeals a provision that is unnecessary as a result of the amendment made by subclause 21(2); and

(c) makes it clear that the declaration must include a specification of the voting majority that is required to permit the lease of a part of the common elements.

Subclause 6(2)

(a) permits a declaration to divide units into classes and provides for different provisions in a declaration that apply to different classes of units and for different sets of by-laws for different classes of units;

(b) removes the requirement that an amendment to a declaration be consented to by all the owners and all persons having registered encumbrances against the units and replaces it with a requirement that the amendment be consented to by the owners of at least 80% of the common elements; and

(c) permits the Registrar to amend a declaration in order to correct a grammatical, clerical, typographical or printing error or an error in mathematics.

Subclause 6(3) removes the requirement that a report on title be submitted with an amendment and replaces it with a requirement that the amendment be in a form acceptable to the Registrar.

Subclause 6(4) expands the prohibition against discriminatory provisions in a declaration from discrimination based on those grounds set out in the former Human Rights Act to discrimination based on the grounds set out in the current Human Rights Act.

Subclause 7(1)

(a) corrects a typographical error; and

(b) replaces a provision that requires a description to include a certificate of a surveyor that the buildings have been constructed and that the diagrams of the units are substantially accurate with a provision that requires a description to include a certificate of an architect that all buildings have been constructed substantially in accordance with the architectural plans and a certificate of an engineer that all buildings have been constructed substantially in accordance with the structural plans.

Subclause 7(2)

(a) permits the description to be amended with the consent of the owners of at least 51% of the common elements; and

(b) permits the Registrar to amend a description in order to correct a grammatical, clerical, typographical or printing error or an error in mathematics.

Clause 8

(a) provides for bare-land condominiums and mixed-use condominiums; and

(b) enables the Registrar to require information that is necessary for the administration of the Act.

Clause 9 provides that a proposed by-law that is submitted to the Registrar with the declaration and description becomes a by-law of the condominium corporation that is created by the acceptance of the declaration and description for registration until it is replaced, repealed or amended at a meeting of the members held pursuant to the Act.

Clause 10 gives additional powers to a condominium corporation.

Clause 11 defines what constitutes a quorum at a meeting of the members of a condominium corporation.

Clause 12 permits a declarant to appoint a portion of the board of directors of a condominium corporation where the declarant has not sold all the units, sets out the percentage of the directors that may be appointed by the declarant and the minimum percentage of units that must be unsold in order to permit the declarant to make appointments to the board.

Clause 13 adds provisions respecting the directors of a condominium corporation.

Clause 14 removes a requirement that a declarant, when ceasing to own a majority of the units to turn over to the corporation any as-built architectural, structural, engineering mechanical, electrical or plumbing plans, original specifications indicating material changes or any plans for underground site service, site grading, drainage and landscaping or cable-television drawings or any other plans relevant to the future repair and maintenance of the property only if such plans and specifications are available and replaces it with a requirement that any such plans and specifications be turned over.

Subclause 15(1) adds new provisions respecting the records of a condominium corporation.

Subclause 15(2) repeals a provision that enables a declaration or by-laws to specify duties of a condominium corporation consistent with its objects.

Clause 16 repeals a provision that is unnecessary as a result of the amendments made by Clause 10.

Subclause 17(1) reduces the vote required to make a by-law from the affirmative vote of the members who own sixty-six and two-thirds per cent of the common elements or such greater percentage as is specified in the declaration to the affirmative vote of the members who own at least fifty-one per cent of the common elements.

Subclause 17(2) requires that the by-laws of a condominium corporation not conflict with the Human Rights Act.

Subclause 17(3) enables the Governor in Council to prescribe standard by-laws that apply to all or any class of corporations, notwithstanding any agreement, declaration or by-law to the contrary.

Clause 18 requires every condominium corporation to prepare annual financial statements and make them available to its members.

Clause 19 permits the amalgamation of two or more condominium corporations.

Subclause 20(1)

(a) designates the fund for the payment of common expenses as an operating fund;

(b) repeals the provisions respecting reserve funds since new provisions respecting reserve funds are being added by subclause 20(2);

(c) permits a condominium corporation to make levies on owners for contributions to any contingency fund it may establish; and

(d) designates as an estoppel certificate the certificate that contains items that must be certified to a purchaser or an owner and adds further items to the list of items that must be included in the certificate.

Subclause 20(2) adds new provisions respecting reserve funds.

Subclause 20(3) changes a cross-reference that is necessary as a result of subclause 20(2).

Subclause 20(4) permits a condominium corporation to establish a contingency fund.

Subclause 20(5) permits a condominium corporation to levy assessments for any contingency fund.

Subclause 20(6) adds a provision with respect to the treatment of a surplus.

Subclause 21(1) removes a provision that requires the vote of members who own 80%, or such greater percentage as is specified in the declaration, of the common elements to make a substantial change to, or renovation of the common elements or to the assets of the corporation and that requires any other such change to be approved by the majority of the members and replaces it with a provision that requires any such change to be consented to by the owners of at least 51% of the common elements.

Subclause 21(2) repeals provisions that obligate a corporation to buy the unit of an owner who dissents from a change in the common elements or assets of the corporation.

Clause 22 removes a provision that enables a dispute between an owner and the corporation or between two owners to be settled by arbitration only when all parties to the dispute agree to arbitration and replaces it with a provision that permits any party to a dispute to have the dispute settled by arbitration even if the other party or parties to the dispute do not agree to arbitration.

Subclause 23(1) adds to the provision that deals with the proportion of voting rights a reference to voting rights as specified in the Act. At present, the provision only refers to voting rights as specified in the declaration.

Subclause 23(2) repeals a provision that permits a mortgagee to vote at a meeting of the members of a condominium corporation and replaces it with a provision that prohibits voting by a mortgagee at a meeting of the members.

Clause 24 replaces the heading entitled "Termination" that now appears before provisions that deal with the sale of the property and the common elements and replaces it with the heading "Sale of the Property and the Common Elements".

Clause 25 removes a provision that permits a declaration to increase beyond 80% the ownership of the common elements that is required to authorize the sale of the condominium property.

Clause 26 adds the heading "TERMINATION" immediately before those provisions of the Act dealing with the termination of the government of a condominium property.

Clause 27 increases from 80% to 100% the percentage of ownership of the common elements that is required to authorize the termination of the government of a condominium property.

Clause 28 provides that every lease or other agreement whereby the right to possession of a condominium unit is granted is deemed to include a covenant whereby the occupier agrees to comply with the Act, the regulations and declaration and by-laws.

Clause 29 provides for a penalty for the failure to file financial statements and reserve-fund studies with the Registrar.

Clause 30

(a) amends the regulation-making powers of the Governor in Council to permit bare-land condominiums and mixed-use condominiums; and

(b) adds to the regulation-making powers.

Clause 31 provides that the Act comes into force on proclamation.

Be it enacted by the Governor and Assembly as follows:

1 (1) Subsection 3(1) of Chapter 85 of the Revised Statutes, 1989, the Condominium Act, is amended by

(a) striking out "of" the first time it appears in the second line of clause (g) and substituting "incurred in";

(b) striking out clause (i);

(c) striking out clause (k) and substituting the following clause:

(k) "Court" means the Supreme Court of Nova Scotia;

(l) "declarant" means a person who owns the freehold estate in the land described in the description and who submits for registration pursuant to this Act a declaration and description that are registered pursuant to this Act, and includes a successor or assignee of that person, but does not include a purchaser in good faith of a unit who pays fair market value or a successor or assignee of the purchaser;

(f) striking out clause (p); and

(g) striking out "at the time the declaration and description are registered" in the fifth, sixth and seventh lines of clause (x) and substituting "in accordance with the declaration and description ".

(2) Section 3 of Chapter 85 is further amended by adding immediately after subsection (2) the following subsection:

(3) In this Act, a person is the occupant of a unit if that person is, pursuant to an agreement, including a lease or a sub-lease, lawfully in possession of the unit but is not an owner of the unit.

2 (1) Subsection 6(2) of Chapter 85 is amended by striking out "in fee simple of" in the second and third lines and substituting "of the freehold estate in".

(2) Subsection 6(3) of Chapter 85 is amended by striking out "in fee simple of" in the fourth line and substituting "of the freehold interest in".

(3) Section 6 of Chapter 85 is further amended by adding immediately after subsection (3) the following subsection:

(3A) There shall also be submitted with the declaration and description

(a) a plan of survey of the property, prepared by a surveyor in accordance with the regulations;

(b) proposed by-laws, of the corporation that would be created if the declaration and description are accepted for registration,

(i) governing the management of the property,

(ii) governing the use of units or any of them for the purpose of preventing unreasonable interference with the use and enjoyment of the common elements and other units,

(iii) governing the use of the common elements,

(iv) regulating the maintenance of the units and common elements,

(v) governing the use and management of the assets of the corporation,

(vi) respecting the board,

(vii) specifying the duties of the corporation,

(viii) regulating the assessment and collection of contributions towards the common expenses, and

(ix) respecting the conduct generally of the affairs of the corporation; and

(c) any information that the Registrar thinks is necessary for the purpose of the submission.

(5) Subsection 6(5) of Chapter 85 is amended by striking out that part of the subsection immediately after "Act" in the fourth line to the end of the subsection and substituting a period.

3 Section 7 of Chapter 85 is amended by

(a) striking out " a declaration and description for registration" in the first and second lines and substituting "all documents, including the declaration and description, required by this Act to be submitted for registration";

(b) striking out "the declaration and description" in the first line of clause (b) and substituting "each document";

(c) striking out "the declaration and description" in the first and second lines of clause (c) and substituting "each of the documents";

(d) striking out "the declaration and description" in the first and second lines of clause (d) and substituting "each of the documents";

(e) striking out "and" at the end of subclause (d)(ii);

(f) striking out "declaration and description" in the first and second lines of subclause (d)(iii) and substituting "documents";

(g) striking out the period at the end of subclause (d)(iii) and substituting ", and"; and

(h) adding immediately after subclause (d)(iii) the following subclause:

(iv) the corporation.

4 Section 8 of Chapter 85 is repealed.

5 Subsection 9(1) of Chapter 85 is amended by striking out ", by-laws" in the fifth and sixth lines.

6 (1) Subsection 11(2) of Chapter 85 is amended by

(a) striking out "may" in the second line and substituting "shall";

(b) striking out clause (k); and

(c) adding "voting" immediately after "the" in the first line of clause (o).

(2) Subsection 11(3) of Chapter 85 is repealed and the following subsections substituted:

(3) A declaration may contain a provision that divides the units into two or more classes.

(3A) Where a declaration divides the units into classes pursuant to subsection (3),

(a) the declaration may contain more than one provision pursuant to any one or more of clauses (a) to (e) of subsection (1) and (a) to (q) of subsection (2) and limit the application of each of the provisions to one or more of the classes;

(b) the corporation may make more than one set of by-laws and limit the application of each set of by-laws to one or more of the classes.

(3B) The declaration may be amended only with the consent of the owners of at least eighty per cent of the common elements.

(3C) Notwithstanding subsection (3B), the Registrar may amend the declaration without the consent referred to in that subsection in order to correct a grammatical, clerical, typographical or printing error or an error in mathematics.

(3D) Where an amendment is made pursuant to subsection (3C), it is deemed to have been accepted for registration, the Registrar shall deal with the amendment as provided in Section 7 and subsection (4) does not apply to the amendment.

(4) When a declaration is amended, the corporation shall

(a) provide the Registrar with proof, satisfactory to the Registrar, as to which persons are the owners of eighty per cent of the common elements; and

(b) submit for registration a copy of the amendment, executed by those persons, in a form acceptable to the Registrar.

(4A) Until a copy of the amendment is registered, the amendment is ineffective.

7 (1) Subsection 12(1) of Chapter 85 is amended by

(a) striking out "or" in the first line of clause (a) and substituting "of"; and

(b) striking out clause (e) and substituting the following clause:

(e) a certificate of a person who is authorized to practise architecture in the Province that all buildings have been constructed substantially in accordance with the architectural plans and, if there are structural plans, a certificate of a person who is authorized to practise engineering, as defined in the Engineering Profession Act, that all buildings have been constructed substantially in accordance with the structural plans;

(3) The description may be amended only with the consent of the owners of at least fifty-one per cent of the common elements.

(4) Notwithstanding subsection (3), the Registrar may amend a description that is registered without the consent referred to in that subsection in order to correct a grammatical, clerical, typographical or printing error or an error in mathematics and shall deal with the amendment as provided in Section 7.

8 Chapter 85 is further amended by adding immediately after Section 12A the following Sections:

12B (1) Notwithstanding Sections 11 and 12, the Registrar shall accept for registration a declaration and description of a bare-land condominium or a mixed-use condominium if the declaration and description contain the information prescribed by regulation.

(2) Subsection (1) does not apply in respect of a condominium accepted for registration before this Section comes into force.

12C The Registrar may require from any person such information that is necessary for the administration of the Act respecting any document that is required to be filed or registered under this Act.

9 Section 13 of Chapter 85 is amended by adding immediately after subsection (1) the following subsection:

(1A) When a declaration and description are accepted for registration, each proposed by-law that was submitted to the Registrar with the description and declaration is a by-law of the corporation that is created by the acceptance of the declaration and description for registration, until it is repealed, replaced or amended pursuant to Section 23.

10 Section 14 of Chapter 85 is amended by adding immediately after subsection (2) the following subsections:

(3) Without restricting the generality of the foregoing and for greater certainty, a corporation may, with the consent of the owners of at least fifty one per cent of the common elements,

(a) acquire by purchase, gift, devise, bequest or any other means, real or personal property and sell, mortgage, convey or otherwise deal with the property;

(b) borrow money;

(c) mortgage, hypothecate or pledge any of its property or rights, including any future right to be paid money as a result of a levy made pursuant to this Act, in order to secure repayment of money borrowed by it or the payment or performance of any of its obligations;

(d) grant easements affecting the common elements;

(e) grant leases of the common elements;

(f) make capital expenditures;

(g) subject to the regulations, consolidate into one unit two or more adjacent units that are included in the property that is managed by the corporation;

(h) levy special assessments for extraordinary common element expenses.

(4) An easement or lease granted pursuant to clause (d) or (e) of subsection (3) has the same effect as if it were granted by all the owners of the common elements to which the grant of easement or lease relates.

(5) Where units are consolidated pursuant to clause (g) of subsection (3),

(a) the proportions of the common interests with respect to the consolidated unit is equal to the proportions of the common interest with respect to all the units that were consolidated;

(b) the proportion in which the owner of the consolidated unit is to contribute to the common expenses is equal to the proportion in which all the owners of the units that were consolidated were to contribute to the common expenses; and

(c) the proportion in which the owner of the consolidated unit is to have voting rights in the corporation is equal to the proportion in which all the owners of the units that were consolidated had voting rights in the corporation,

and the consolidation takes effect when the certificate of consolidation, as prescribed by the regulations, is filed with and accepted by the Registrar.

14A (1) A quorum for the transaction of business at a meeting of the members of the corporation is the presence, either in person or by proxy, of the owners of at least thirty per cent of the common elements.

(2) No business shall be transacted at a meeting of the members of the corporation unless a quorum is present at the commencement of business.

(1A) Notwithstanding subsection (1), where the declarant has not ceased to own all the units, the board of directors shall be chosen in the following manner:

(a) the declarant shall appoint as directors that number of persons that is equal to the number, rounded to the nearest whole number, that is arrived at by multiplying the total number of directors by the percentage of the units that the declarant has not ceased to own, except that where the number arrived at by multiplying the total number of directors by the percentage of the units that the declarant has not ceased to own is equidistant from two whole numbers, the declarant shall appoint as directors that number of persons that is equal to the higher of those two numbers;

(b) the members of the corporation, other than the declarant, shall elect the remaining directors.

(1B) Notwithstanding subsection (1A), that subsection does not apply where

(a) at a meeting of the members of the corporation at which a board of directors is chosen, a resolution is passed by the affirmative vote of at least fifty-one per cent of the members present in person or by proxy, that the entire board be elected by the members of the corporation; or

(b) the number arrived at by multiplying the total number of directors by the percentage of the units that the declarant has not ceased to own is less than one half.

(3A) Notwithstanding subsection (3), if a vacancy in the membership of the board occurs and, at the time the vacancy is filled, subsection (1A) applies, the vacancy shall be filled in a manner that would result in the proportion of the members of the board who are appointed by the declarant being the same as the proportion of members of the board who would have been appointed by the declarant if a new board had been chosen in accordance with subsection (1A) at the time the vacancy was filled.

13 Chapter 85 is further amended by adding immediately after Section 15 the following Sections:

15A (1) No person shall be elected to the office of director or hold office as a director if that person

(a) has not attained the age of majority; or

(b) is not an owner.

(2) Where the declarant is entitled to appoint a person as a director, clause (b) of subsection (1) does not apply with respect to that appointment.

15B A person may be removed from the office of director by a majority of the votes cast in favour of the removal at a meeting of the members at which the voting is on the basis of one vote per member.

15C No act of a person is invalid by reason only of a defect in the election or appointment of that person as a director or officer or the lack of any qualification for that office.

15D (1) Every director and officer of the corporation shall, in exercising the powers and discharging the duties of office,

(a) act honestly and in good faith; and

(b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.

(2) A director is not liable under subsection (1) if the director relies in good faith upon

(a) financial statements of the corporation that the auditor, in a written report, an officer of the corporation or a manager under an agreement for the management of the property represents to the director as presenting fairly the financial position of the corporation in accordance with generally accepted accounting principles; or

(b) the report or opinion of a person whose profession lends credibility to the report or opinion.

15E The by-laws of the corporation may provide that every director and officer of the corporation and that person's heirs, executors, administrators and other legal personal representatives may from time to time be indemnified and saved harmless by the corporation from and against

(a) any liability and all costs, charges and expenses that the director or officer sustains or incurs in respect of any action, suit or proceeding that is proposed or commenced against that person for or in respect of anything done or permitted by that person in respect of the execution of the duties of office; and

(b) all other costs, charges and expenses that person sustains or incurs in respect of the affairs of the corporation.

15F (1) A director of the corporation who has, directly or indirectly, an interest in a contract or transaction to which the corporation is a party or a proposed contract or transaction to which the corporation will be a party, shall disclose in writing to the corporation the nature and extent of the interest.

(2) A disclosure of an interest in a contract or transaction or a proposed contract or transaction is sufficient if it is a general notice disclosing that the director

(a) is also a director or officer of a party to a contract or transaction or a proposed contract or transaction with the corporation; or

(b) has a material interest in a party to a contract or transaction or a proposed contract or transaction with the corporation.

(3) Subsection (1) does not apply to a contract or transaction unless both it and the director's interest are material.

(4) Notwithstanding subsection (2), if the contract or transaction or proposed contract or transaction to which subsection (1) applies involves the purchase or sale of real or personal property by or to the corporation, the director shall disclose

(a) the cost of the property to the purchaser; and

(b) if acquired by the seller within five years before the date of the contract or transaction or the proposed contract or transaction, the cost of the property to the seller, to the extent to which the interest or information is within the director's knowledge or control.

(5) The disclosure required by this Section shall be made

(a) at the meeting of the directors at which the contract or transaction or the proposed contract or transaction is first considered;

(b) where the director is not, at the date of the meeting, interested in the contract or transaction or the proposed contract or transaction, at the next meeting of the directors held after the director became interested;

(c) where the director becomes interested in the contract or transaction after it is entered into, at the first meeting of the directors held after the director becomes so interested; or

(d) where the contract or transaction or the proposed contract or transaction is one that, in the ordinary course of the business of the corporation, would not require approval by the directors or owners, at the first meeting of the directors held after the director becomes aware of the contract or transaction or the proposed contract or transaction.

(6) The board shall enter the disclosure made by a director pursuant to this Section in the minutes of the meeting of the board at which the disclosure was made.

(7) The director shall not vote or be counted in the quorum on a vote with respect to a contract or transaction or a proposed contract or transaction to which subsection (1) applies unless the interest of the director in it

(a) is or would be limited solely to liability insurance against liability incurred as a result of acting as a director or officer of the corporation or remuneration as a director, officer or employee of the corporation; or

(b) arises or would arise solely because the director is a director, officer or employee of the corporation, if the director has been appointed to the first board by the declarant.

(8) A director who complies with this Section and who is acting honestly and in good faith at the time the contract or transaction is entered into is not accountable to the corporation or the owners for any profit or gain realized from the contract or transaction by reason only of holding the office of director and the contract or transaction is not voidable by reason only of the interest of the director in it if

(a) the contract or transaction is confirmed or approved by at least two thirds of the votes cast at a meeting of the owners duly called for that purpose; and

(b) the nature and extent of the interest of the director in the contract or transaction are declared and disclosed in reasonable detail in the notice calling the meeting.

15 (1) Section 18 of Chapter 85 is amended by adding immediately after subsection (1) the following subsections:

(1A) In this Section, "records" includes financial records, minutes of meetings of the members of the corporation and its board, the declaration, by-laws and rules, all items referred to in Section 17, any reserve fund study, all agreements entered into by the corporation, disclosures of conflicts of interest and all other records that are specified in the by-laws of the corporation.

(1B) The corporation shall keep all financial records for at least six years from the end of the last fiscal period to which they relate, in addition to satisfying the requirements of any taxing authority of the Province, Canada or any other jurisdiction to which the corporation is subject.

(1C) Upon receiving a written request and reasonable notice, the corporation shall permit any owner or an agent of an owner, duly authorized in writing, to examine the records of the corporation at any reasonable time.

(1D) The corporation shall, within a reasonable time, provide a copy of any record to a person examining the records, if the person so requests and pays a reasonable fee to compensate the corporation for the labour and copying charges.

16 Subsection 19(1) of Chapter 85 is repealed.

17 (1) Subsection 23(1) of Chapter 85 is amended by striking out "sixty-six and two-thirds per cent, or such greater percentage as is specified in the declaration," in the second and third lines and substituting "at least fifty-one per cent".

(2) Subsection 23(2) of Chapter 85 is amended by adding ", the Human Rights Act" immediately after "Act" in the second line.

(3) Section 23 is further amended by adding immediately after subsection (2) the following subsections:

(2A) The Governor in Council may prescribe standard sets of by-laws for corporations and, where there are no by-laws made by a corporation pursuant to this Act that are in effect for that corporation, the standard set of by-laws so prescribed for that corporation are the by-laws of that corporation.

(2B) The Governor in Council may prescribe standard by-laws pursuant to subsection (2A) for different classes of corporations and prescribe different standard by-laws for different classes of corporations.

PART 1VA
FINANCIAL REPORTING AND AUDITOR

24A The corporation shall cause annual financial statements to be prepared showing its assets and liabilities and its income and expenses and containing such other information, and being in such form, as prescribed by the regulations and shall furnish such statements to the Registrar and make such statements available to each of its members.

29A In Sections 29B and 29C,

(a) "amalgamated corporation" means a corporation that is formed as a result of an amalgamation pursuant to Sections 29B and 29C;

(b) "amalgamating corporation" means a corporation that is amalgamated with one or more other corporations pursuant to Sections 29B and 29C.

29B (1) Subject to the regulations, two or more corporations may amalgamate by registering a declaration and description if

(a) they have complied with subsections (2) and (3) and all requirements prescribed by the regulations; and

(b) the owners of at least eighty per cent of the units of each corporation vote in favour of approving the declaration and description.

(2) The board of each amalgamating corporation shall call a meeting of the owners for the purpose of approving the declaration and description.

(3) The board shall give the owners a notice of the meeting which shall include

(a) a copy of the proposed declaration and description of the amalgamated corporation and a copy of the proposed budget for the first year of operations of the amalgamated corporation;

(b) a copy of all proposed by-laws and rules of the amalgamated corporation;

(c) a status certificate for each amalgamating corporation in a form approved by the Registrar;

(d) the report of the auditor of each of the amalgamating corporations on the last annual financial statements of that corporation, if it is not included in the status certificate; and

(e) such additional statements or information prescribed by the regulations.

(4) The declaration of an amalgamated corporation shall not be registered unless it is executed by the officers of each of the amalgamating corporations duly authorized to sign on behalf of the amalgamating corporation.

(5) Part VIA does not apply to an amalgamation carried out pursuant to this Section but does apply to an amalgamated corporation.

29C (1) On registration of a declaration and description for an amalgamated corporation,

(a) the amalgamating corporations are amalgamated and continue as one corporation;

(b) the units and common interests of the amalgamating corporations are continued as units and common interests in the amalgamated corporation;

(c) all encumbrances that affected the common elements of the amalgamating corporations are continued as encumbrances that affect the common elements of the amalgamated corporation;

(d) all declarations, descriptions, by-laws and rules of the amalgamating corporations cease to apply;

(e) the members of the amalgamating corporations are the first members of the amalgamated corporation;

(f) the directors of the amalgamating corporations are the first directors of the amalgamated corporation;

(g) all the property and rights of the amalgamating corporations are the property and rights of the amalgamated corporation and all the obligations and liabilities of the amalgamating corporations are the obligations and liabilities of the amalgamated corporation; and

(h) the amalgamated corporation replaces the amalgamating corporations as a party in any action or proceeding to which the amalgamating corporation is a party.

(2) Where the amalgamated corporation has, as one of its objects, the management of a property consisting of ten or more units, the directors shall, immediately following the registration and description for the corporation, appoint one or more auditors to hold office until the close of the meeting of owners held pursuant to subsection (3).

(3) The first directors of an amalgamated corporation hold office until the members elect their successors at a meeting which the first directors shall call and hold within sixty days following the registration of the declaration and description for the corporation and such election shall be held on the basis of one vote per member.

(4) At the meeting referred to in subsection (3) the owners shall appoint successors to the auditors mentioned in subsection (2) and Sections 25 and 26 apply to the successors.

(a) striking out "a" in the first line of clause (a) and substituting "an operating";

(b) striking out clause (b);

(c) adding "established by the corporation pursuant to subsection (1A) and any contingency fund established by the corporation pursuant to subsection (4A)" immediately after "fund" in the third line of clause (c);

(d) adding "issue an estoppel certificate to which is attached copies of the declaration and by-laws of the corporation in which it shall" immediately after "shall" in the second line of clause (f);

(e) striking out "and" at the end of subclause (f)(iii);

(f) adding immediately after subclause (f)(iii) the following subclauses:

(iv) the unit identified by unit number, level number, condominium corporation number and any applicable civic and suite numbers,

(v) the name, address and telephone number of the condominium management company or manager,

(vi) the names and addresses of the officers of the corporation,

(vii) the current amount of common expenses, and whether they are prepaid or collected in default,

(viii) how the reserve fund is collected and, if collected as a percentage of common expenses, what that percentage is,

(ix) the balance of the reserve fund,

(x) any specific assessments that are forthcoming in the then current fiscal year,

(xi) any major capital expenditures that are planned by the corporation,

(xii) any lawsuits that have been instituted or are pending by the corporation or against the corporation,

(xiii) the debt carried by the corporation from previous expenditures,

(xiv) fire insurance, public liability and directors' liability insurance coverage and the amount or value of each policy,

(xv) the content of any proposed by-laws, proposed amendments to existing by-laws or proposed amendments to the declaration; and

(g) renumbering subclause (f)(iv) as (xvi).

(2) Section 31 of Chapter 85 is further amended by adding immediately after subsection (1) the following subsections:

(1A) The corporation shall establish and maintain a reserve fund for major repair and replacement of the common elements and assets of the corporation including, where applicable and without limiting the generality of the foregoing, roofs, exteriors of buildings, roads, sidewalks, sewers, heating, electrical and plumbing systems, elevators, laundry, recreational and parking facilities.

(1B) Where a corporation has, as one of its objects, the management of a property consisting of less than ten units and the amount of its reserve fund is less than ten per cent, or such greater percentage as is provided in its by-laws, of the total amount assessed to the owners for common expenses, the corporation shall assess and collect the owners' contributions to the reserve fund in an amount that would result in the amount of the reserve fund becoming, within five years after this subsection comes into force or, where the corporation is created on or after the coming into force of this subsection, within five years after the corporation is created, and continuing to be, at least ten per cent, or such greater percentage as is provided in the by-laws, of the total amount assessed to the owners for common expenses.

(1C) Where a corporation was created pursuant to this Act before the coming into force of this subsection and has, as one of its objects, the management of a property consisting of ten or more units, the corporation shall, within two years after the coming into force of this subsection, cause a reserve-fund study respecting the corporation to be completed in accordance with subsection (1E) and to be filed with the Registrar no later than thirty days after it is completed.

(1D) Where a declaration and description are submitted for registration after the coming into force of this subsection, and the corporation that would be created as a result of the registration of the declaration and description would have, as one of its objects, the management of a property consisting of ten or more units, the person submitting the declaration and description shall file with the Registrar a reserve-fund study respecting the corporation, completed in accordance with subsection (1E) and, notwithstanding any other provision of this Act, the Registrar shall not accept the declaration and description for registration until the reserve-fund study is filed.

(1E) A reserve-fund study respecting a corporation that is required by this Act to be filed shall be completed in the manner and form, contain such information, opinions and recommendations and be prepared by such person or a member of such class of persons as prescribed by the regulations.

(1F) Where this Section requires that a reserve fund study respecting a corporation be filed, that corporation shall, within each ten-year period after the expiry of the time limited for filing a reserve fund study, cause a reserve-fund study to be completed in accordance with subsection (1E) and to be filed with the Registrar no later than thirty days after it is completed.

(1G) Where a reserve-fund study respecting a corporation is filed in accordance with this Section and the amount of the reserve fund of the corporation is less than the minimum amount that the reserve-fund study recommends that the fund ought to be, the corporation shall assess and collect contributions from the owners in an amount that will result in the reserve-fund amount recommended by the study being achieved within such period of time as is recommended in the study and continuing to be at least the minimum amount recommended in the reserve-fund study.

(1H) All contributions collected for a reserve fund shall be paid into the reserve fund and used only for those purposes referred to in subsection (1A) and the reserve fund shall be deposited and maintained in a chartered bank in the Province or invested in securities in which trustees are permitted by law to invest trust funds.

(4) Section 31 of Chapter 85 is further amended by adding immediately after subsection (4) the following subsection:

(4A) The corporation may establish a contingency fund to be used for such purposes as provided in the by-laws.

(6) Section 31 of Chapter 85 is further amended by adding immediately after subsection (5) the following subsection:

(5A) A surplus in a corporation shall be applied either against future common expenses or be paid into the reserve fund, but shall not, other than on termination, be distributed to the owners.

(1) The corporation, with the consent of the owners of at least fifty-one per cent of the common elements, may make any addition, alteration, improvement to or renovation of the common elements and may make any other change in the assets of the corporation.

22 Section 33 of Chapter 85 is repealed and the following Section substituted:

33 (1) Except as provided by this Section, the Arbitration Act applies to every arbitration carried out pursuant to this Section.

(2) Notwithstanding the Arbitration Act, where

(a) the corporation and an owner of a unit that is part of the property managed by the corporation;

(b) the corporation and any person who has agreed with the corporation to manage the property;

(c) the corporation and any other corporation created pursuant to this Act;

(d) the corporation and the occupier of a unit that is part of the property managed by the corporation;

(e) an owner of a unit and the occupier of any other unit that is part of the same property that includes the unit of the owner; or

(f) two or more owners of units that are part of the property managed by the corporation,

are parties to a dispute on any matter to which this Act applies, other than termination of the property, but also including a dispute between a board of directors of a corporation and an owner of a unit that is part of the property managed by the corporation, as to whether or not a decision or any proposed action by the board is prejudicial to the property or the corporation, any of the parties may give to the other party or parties and to the Registrar notice that the party giving the notice intends to have the dispute arbitrated by a single arbitrator appointed by the Registrar and, when the notice is given, the parties are deemed, for the purpose of the Arbitration Act, to have entered into a written agreement to submit the differences between or among them arising from the dispute to arbitration by a single arbitrator appointed by the Registrar pursuant to this Act.

(3) Where a notice is given to the Registrar pursuant to subsection (2), the Registrar shall appoint the arbitrator from a list of persons prescribed by the regulations.

(4) Service of a notice pursuant to this Section may be made by personal service, registered mail or substituted service as prescribed by the regulations.

(5) Where a notice is mailed pursuant to subsection (4), it is deemed to be given within seven days after it is mailed, unless the contrary is proved.

(6) Notwithstanding Section 17 of the Arbitration Act, an award made pursuant to this Section may be filed with the Court and, thereupon, shall be enforced in a like manner as an order or judgment of the Court.

(7) To file an award with the Court, the arbitrator who made the award shall endorse a copy of the award certified by the arbitrator as follows:

File the within with the Supreme Court of Nova Scotia.





Dated this _______ day of ______________, 19____



___________________
Arbitrator


(8) To the extent that an application pursuant to Section 16 of the Arbitration Act applies to an arbitrator appointed pursuant to this Section, subsection (2) of that Section shall be read as if it were amended by striking out "sixty" in the second line and substituting "thirty".

23 (1) Subsection 37(1) of Chapter 85 is amended by adding "in this Act and" immediately after "specified" in the second line.

(2) Subsection 37(2) of Chapter 85 is repealed and the following subsections substituted:

(2) Notwithstanding any authorization, including a provision in any agreement, mortgage or charge that is made on, before or after the coming into force of this subsection, the holder of a mortgage or charge on a unit may not exercise any right that another person has, by reason of being the owner of a unit, to vote or consent, unless the holder of the mortgage or charge is a mortgagee in possession.

(2A) For greater certainty, nothing in subsection (2) invalidates any vote that was cast or any consent that was given before the coming into force of this subsection.

PART VI
SALE OF THE PROPERTY AND THE COMMON ELEMENTS

26 Chapter 85 is further amended by adding immediately before Section 41 the following heading:

PART VIA
TERMINATION

(a) by a vote of owners who own one hundred per cent of the common elements;

44A Notwithstanding any agreement, waiver, declaration or other statement to the contrary, every agreement under which the occupant of a unit is in possession of the unit is deemed to include a covenant whereby the occupant agrees with the person who grants the right to possess the unit that the occupant shall comply with this Act, the regulations, the declaration that applies to the unit and the by-laws and rules of the corporation that has the management of the property that includes the unit.

45A (1) A corporation that fails to file with the Registrar a financial statement pursuant to Section 24A or a reserve-fund study pursuant to Section 31, and that does not do so within ten days after receiving a notice from the Registrar requiring that corporation to do so, is liable to a penalty in such amount, not less than one thousand dollars or more than ten thousand dollars as provided in the regulations, to be recovered on behalf of Her Majesty in right of the Province for the use of the Province.

(2) A notice given pursuant to subsection (1) shall be given in the manner provided in the regulations.

(3) A penalty due to Her Majesty under subsection (1) shall be paid to the Minister of Finance and the Minister of Finance may sue for and recover the penalty in the name of Her Majesty in right of the Province in an action in any court as if the amount were a debt.

(4) The Registrar may waive a penalty that a corporation would otherwise be liable to pay under this Section under such circumstances as are prescribed by the regulations.

(a) adding ", bare-land condominiums and mixed-use condominiums" immediately after "condominiums" in the first and second lines of clause (ba);

(b) adding ", a bare-land condominium or a mixed-use condominium" immediately after "condominium" in the third line of clause (bb);

(c) adding ", bare-land condominium or mixed-use condominium" immediately after "condominium" in the second and third lines of clause (bc);

(d) adding ", bare-land condominium or mixed-use condominium" immediately after "condominium" in the first and second lines of clause (bd); and

(e) adding immediately after clause (l) the following clauses:

(la) prescribing the form of a plan of survey to be submitted pursuant to subsection (3A) of Section 6;

(lb) prescribing the manner and form of a reserve-fund study required by Section 31, the information and opinions and recommendations to be contained in such study and the person or class of persons who is to prepare such study;

(lc) prescribing who may be arbitrators for the purpose of Section 33;

(ld) respecting the consolidation of units pursuant to clause (g) of subsection (3) of Section 14;

(le) setting the amount of the penalty for the purpose of Section 45A, with power to prescribe different penalties for different classes of corporations, prescribing the manner in which a notice shall be given pursuant to that Section and prescribing the circumstances under which the Registrar may waive the penalty;

(lf) prescribing the form and content of financial statements for the purpose of Section 24A, with power to prescribe different forms and requirements for different classes of condominium corporations;

(lg) prescribing the form and contents of a certificate of consolidation for the purpose of subsection (5) of Section 14;

(lh) prescribing forms of substituted service for the purpose of subsection (4) of Section 33;

(li) for the purpose of subsections (2A) and (2B) of Section 23, prescribing standard by-laws for corporations with power to prescribe different classes of corporations and to prescribe different standard by-laws for each class of corporation;

31 This Act comes into force on such day as the Governor in Council orders and declares by proclamation.