Bill 81 - Condominium Property Act

BILL 81

Condominium Property Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

DEFINITIONS AND INTERPRETATION

Definitions and interpretation

1(1) The following definitions apply in this Act.

“board” means the board of directors of a corporation. (conseil)

“buildings” means the buildings included in a condominium property. (bâtiments)

“by-law” means a by-law of a corporation. (règlement administratif)

“claim” includes a right, title, interest, encumbrance or demand of any kind affecting land, but does not include the interest of an owner in the owner’s unit and common interest. (créance)

“common elements” means all the condominium property except the units. (parties communes)

“common expenses” means the expenses related to the performance of the objects and duties of a corporation and any expenses specified as common expenses in a declaration. (dépenses communes)

“common interest” means the interest in the common elements appurtenant to a unit. (intérêt commun)

“condominium property” means the freehold land and interests appurtenant to the land described in a description, and includes any freehold land and interests appurtenant to land that are added to the common elements. (propriété condominiale)

“corporation” means a corporation incorporated under this Act. (association)

“Court” means The Court of Queen’s Bench of New Brunswick. (cour)

“declarant” means a person who or on whose behalf a declaration and description are submitted for approval for registration. (déclarant)

“Director” means the Director of Condominiums appointed under subsection 2(2). (directeur)

“encumbrance” means a claim that secures the payment of money and includes a mortgage and a lien. (charge)

“land” includes an air space parcel as defined in the Air Space Act. (bien-fonds)

“occupant” means a person, other than an owner, who is lawfully in possession of a unit under an agreement including a lease. (occupant)

“owner” means the owner or owners of the freehold estate in a unit and common interest, but does not include a mortgagee unless he or she is in possession. (propriétaire)

“phase” means the additional units and common elements in a phased-development condominium property that are created on the registration of an amendment to a declaration and description. (étape)

“registered” means registered under the Land Titles Act or under the Registry Act. (enregistré)

“registrar of land titles” means the registrar of land titles, District of New Brunswick, appointed under the Land Titles Act. (registrateur des titres de biens-fonds)

“reserve fund study” means a study undertaken to determine a funding plan that adequately offsets expenditures for substantial repair and replacement of common elements. (étude du fonds de réserve)

“surveyor” means a land surveyor registered under the New Brunswick Land Surveyors Act, 1986. (arpenteur-géomètre)

“unit” means any part of a condominium property included in the property’s description and designated as a unit by the description, and includes the space enclosed by its boundaries and all the material parts of the condominium property within this space in accordance with the declaration and description. (partie privative)

1(2) For the purposes of this Act, the ownership of an estate in land includes the ownership of space.

GENERAL

Administration

2(1) Service New Brunswick is responsible for the administration of this Act.

2(2) Service New Brunswick shall appoint a Director of Condominiums to carry out the purposes of this Act.

2(3) Service New Brunswick may appoint one or more Deputy Directors who may perform any of the duties and exercise any of the powers of the Director.

Director of Condominiums

3(1) The Director shall have the powers and duties that are set out in this Act and the regulations.

3(2) The Director may require any person to provide the information that is necessary for the administration of this Act with respect to any document that is required to be filed or registered under this Act.

3(3) No action lies for damages or otherwise against the Director, a Deputy Director, or any person acting under the authority of any of them in relation to anything done or purported to be done in good faith, or in relation to anything omitted in good faith while acting under the authority of this or any other Act or regulation.

Classification of condominium properties

4 Condominium properties are classified as follows:

(a) commercial condominium property is condominium property that

(i) contains a building that is intended to be divided into units for commercial use, or

(ii) contains more than one single detached building that is intended for commercial use;

(b) residential condominium property is condominium property that

(i) contains a building that is intended to be divided into units to be used for residential premises, or

(ii) contains more than one single detached building that is intended to be used for residential premises;

(c) bare-land condominium property is condominium property that contains units that consist of land on which buildings may be located or constructed after purchase;

(d) mixed-use condominium property is condominium property that contains more than one of the classes of condominium property described in this section; and

(e) phased-development condominium property is condominium property in relation to which the declarant may create additional units or common elements by amending the registered declaration and description.

DECLARATION AND DESCRIPTION

Requirements for approval

5(1) The owner of the freehold estate in land described in the description, or someone on the owner’s behalf, shall submit a declaration and description to the Director for approval.

5(2) Before approving a declaration and description, the Director may determine what is required to be included in the common elements of a condominium property, and the declarant shall amend the declaration and description to reflect this determination.

5(3) A declarant shall submit the following documents and information to the Director:

(a) the declaration;

(b) the description;

(c) a certificate of registered ownership issued under the Land Titles Act showing the declarant to be the owner of the freehold estate in the land described in the description;

(d) the proposed by-laws of the corporation that will be created if the declaration and description are registered, which shall include the matters prescribed in subsection 32(2);

(e) subject to paragraph (f), a copy of the building permit or development and building permit issued by a building inspector or a development officer for the jurisdiction where the proposed development is to be undertaken or a letter from the building inspector or the development officer stating that no building permit is required and that the development is in compliance with the applicable zoning requirements;

(f) in the case of a condominium property located in a municipality or rural community that has not passed a building by-law or a zoning by-law, a letter from the municipality or rural community stating that there is no building permit requirement or that there are no zoning requirements to be met by the development, as the case may be;

(g) in the case of a condominium property that will consist of more than 10 units, a reserve fund study;

(h) in the case of an existing building of not more than 10 units that has not been governed by this Act or by the Condominium Property Act, chapter C-16 of the Revised Statutes, 1973, a building inspection report by a person who meets the qualifications prescribed by regulation; and

(i) any information that in the opinion of the Director is necessary for the purposes of the submission.

5(4) The documents and information in subsection (3) shall be accompanied by the prescribed fees for examining and approving a declaration and description.

Declaration - contents

6(1) A declaration shall be executed by the owner or owners of the land and interests appurtenant to the land described in the description.

6(2) A declaration shall be in a form prescribed by regulation and shall contain the following information:

(a) a statement of intention that the land and interests appurtenant to the land described in the description be governed by this Act;

(b) a statement of the interest of the owner in the land and interests appurtenant to the land described in the description;

(c) the consent of all persons having registered encumbrances against the land or interests appurtenant to the land described in the description;

(d) the proportions of the common interests, expressed in percentages;

(e) the proportions in which the owners are to contribute to the common expenses, expressed in percentages allocated to the units;

(f) an address for service for the corporation, and the mailing address of the corporation if it differs from its address for service;

(g) the proportions in which the owners are to have voting rights in the corporation, expressed in percentages allocated to the units;

(h) a statement of the common expenses;

(i) a statement respecting any parts of the common elements that are for the exclusive use of the owners of one or more designated units;

(j) provisions respecting the occupation and use of the units and common elements;

(k) any restrictions on gifting, leasing or selling the units and common interests;

(l) the duties of the corporation, which shall be consistent with its objects;

(m) the duties of the corporation and the rights of the owners if all or part of the condominium property is expropriated;

(n) the majority required to make by-laws of the corporation;

(o) the manner of regulating the assessment and collection of contributions toward the common expenses;

(p) any allocation of the obligations to repair and to maintain the units and common elements;

(q) the majority required to permit the corporation to lease part of the common elements under paragraph 19(7)(e);

(r) the majority required to make a substantial addition, alteration, improvement or renovation to the common elements of the corporation under subsection 42(1);

(s) what constitutes a substantial addition, alteration, improvement or renovation to the common elements under subsection 42(1);

(t) the majority required to make a substantial change in the assets of the corporation under subsection 42(1);

(u) what constitutes a substantial change in the assets of the corporation under subsection 42(1);

(v) the majority required for a sale of part of the common elements under section 47;

(w) what constitutes substantial damage to a building under section 49;

(x) the majority required to authorize repairs under section 49;

(y) the majority required under section 54 to terminate the governance of the condominium property by this Act; and

(z) any other matters concerning the condominium property.

6(3) A declaration may contain a provision that divides the units into 2 or more classes.

6(4) If a declaration divides the units into classes, it may contain more than one provision under any paragraph in subsection (2) and may limit the application of each of the provisions to one or more of the classes.

Description - contents

7(1) Subject to subsection (2), a description shall contain the following documents and information prepared in accordance with the regulations:

(a) a plan of survey showing the perimeter of the horizontal surface of the land and the perimeter of any buildings;

(b) a specification of the boundaries of each unit by reference to the buildings;

(c) diagrams showing the shape and dimensions of each unit and the approximate location of each unit in relation to the other units and the buildings;

(d) a certificate of a surveyor stating that the buildings have been constructed and that the diagrams of the units are substantially accurate;

(e) construction plans;

(f) a description of any interests appurtenant to the land that are included in the condominium property; and

(g) a description of any other interest to which the land is subject.

7(2) A description of a bare-land condominium property shall contain the following documents and information prepared in accordance with the regulations:

(a) a plan of survey showing the perimeter of the horizontal surface of the land;

(b) a specification of the boundaries of each unit by reference to the appropriate coordinate monument;

(c) diagrams showing the shape and dimensions of each unit and the approximate location of each unit in relation to the other units;

(d) a certificate of a surveyor that the horizontal boundaries of the units have been monumented on the ground in the prescribed manner and that the diagrams of the units are substantially in accordance with the monuments;

(e) a description of any interests appurtenant to the land that are included in the condominium property; and

(f) a description of any other interest to which the land is subject.

Description - approval requirements

8(1) If the land in a description is affected by a subdivision by-law or subdivision regulation under the Community Planning Act, the description shall not be approved unless the land is certified as meeting the requirements of section 47 or paragraph 77(8)(c) of the Community Planning Act by a development officer appointed under that Act.

8(2) If the land in a description is an air space parcel as defined in the Air Space Act, the description shall not be registered unless a development officer appointed under the Community Planning Act certifies that the air space meets the requirements of the Air Space Act.

8(3) A phased-development condominium property that meets the requirements prescribed by regulation is exempt from the following:

(a) subdivision by-laws and regulations under the Community Planning Act;

(b) the requirements of the Air Space Act referred to in subsection (2); and

APPROVAL AND REGISTRATION

Approval for registration

9(1) On approving a declaration and description and the other documents required to be registered, the Director shall do the following:

(a) assign a name to the corporation in accordance with the regulations;

(b) endorse on each document a certificate of approval for registration in the form prescribed by regulation; and

9(2) The registrar of land titles shall register the declaration, description and other documents under the Land Titles Act.

9(3) The registrar of land titles shall only register a declaration, description or other document required to be registered if it has been approved and submitted for registration by the Director and accompanied by the certificate of approval for registration.

9(4) Documents submitted to the Director for registration with the registrar of land titles shall be accompanied by the fees prescribed by regulation under the Land Titles Act.

Effects of registration - general

10(1) On the registration of a declaration and description, the land and the interests appurtenant to the land described in the description are governed by this Act.

10(2) The registration of a declaration and description creates a corporation without share capital whose members are the owners.

Approval for registration - additional requirements

11 In addition to the requirements in sections 5, 6, 7 and 8, the following classes of condominium properties shall meet the requirements prescribed by regulation for approval of a declaration and description:

(a) a commercial condominium property;

(b) a residential condominium property;

(d) a mixed-use condominium property; and

(e) a phased-development condominium property.

Effects of approval - phased-development condominium properties

12(1) The registration of a phase of a phased-development condominium property constitutes a subdivision of land and creates a lot as described in the description of that phase.

12(2) On the registration of a subsequent phase of a phased-development condominium property, that phase is consolidated into one lot with the previously registered phases of the phased-development condominium property.

12(3) A declarant with phased-development rights in a condominium property on the commencement of this section has 10 years from the date of commencement to exercise his or her phased-development rights, after which the rights will be void and the corporation will have unrestricted ownership of the condominium property.

Approval for registration - amalgamating corporations

13(1) Two or more corporations may amalgamate by registering a declaration and description.

13(2) The corporations referred to in subsection (1) may submit a declaration and description to the Director for approval if

(a) the owners of at least 60% of the common elements of each corporation vote in favour of approving the declaration and description, and

(b) the corporations

(i) occupy adjoining parcels of land, and

(ii) comply with the requirements of this section and the regulations.

13(3) The board of an amalgamating corporation shall call a meeting of its owners for the purpose of approving the declaration and description.

13(4) The board of an amalgamating corporation shall give its owners notice of the meeting in subsection (3), which notice shall include the following:

(a) a copy of the proposed declaration and description of the amalgamated corporation;

(b) a copy of the proposed budget for the first year of operations of the amalgamated corporation;

(d) a status certificate for each amalgamating corporation in a form prescribed by regulation;

(e) if the condominium property of the amalgamating corporation consists of more than 10 units, the report of the person who reviewed the last financial statements of the corporation in accordance with section 36, if it is not included the status certificate; and

(f) any additional statements or information prescribed by regulation.

13(5) The Director shall not approve for registration the declaration of a proposed amalgamated corporation unless it is executed by the officers of the amalgamating corporations.

13(6) The Director shall not approve for registration a declaration and description if the condominium property of one of the corporations is registered under the Registry Act and one is registered under the Land Titles Act.

13(7) In the case of amalgamating corporations with condominium properties registered under the Land Titles Act, on the approval of the declaration, description and other documents required to be registered, section 9 applies with the necessary modifications to the documents.

13(8) Despite subsection 9(2), in the case of amalgamating corporations with condominium properties registered under the Registry Act, on approval of the declaration, description and other documents required to be registered, the declaration and description shall be registered under the Registry Act and the applicable fees for registration under that Act apply, and section 9 applies with the necessary modifications to the documents.

Effects of approval - amalgamating corporations

14(1) On the registration of a declaration and description for an amalgamated corporation,

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

(b) the land parcels occupied by the amalgamating corporations are amalgamated into one parcel,

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

(d) all claims that affected the common elements of the amalgamating corporations are continued as claims that affect the common elements of the amalgamated corporation,

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

(f) the owners of the amalgamating corporations are the owners of the amalgamated corporation,

(g) the directors of the amalgamating corporations are the first directors of the amalgamated corporation,

(h) 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

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

14(2) If the condominium property of the amalgamated corporation consists of more than 10 units, on the registration of the declaration and description, the first directors shall appoint a person who is qualified to review the financial statements of the corporation in accordance with section 36, who shall hold office until the meeting referred to in subsection (3).

14(3) Within 60 days after the registration of the declaration and description of an amalgamated corporation, the first directors of the corporation shall hold a meeting for the following purposes:

(a) for owners to elect successors to the first directors; and

(b) for owners to appoint a successor to the person appointed under subsection (2).

OWNERSHIP

Units

15(1) Units and common interests are real property for all purposes.

15(2) Subject to this Act, the declaration and the by-laws, an owner is entitled to exclusive ownership and use of his or her unit.

15(3) No condition shall be permitted to exist and no activity shall be carried on in a unit or the common elements that is likely to damage the condominium property.

15(4) On 48 hours’ notice, the corporation or a person authorized by the corporation may enter a unit between the hours of 8 a.m. and 8 p.m to perform the objects and fulfil the duties of the corporation.

15(5) The corporation or a person authorized by the corporation may enter a unit without prior notice in order to gain immediate access in the case of an emergency.

Common elements

16(1) The owners are tenants in common of the common elements.

16(2) An undivided interest in the common elements is appurtenant to each unit.

16(3) The proportions of the common interests are those expressed in the declaration.

16(4) Subject to this Act, the declaration, the by-laws and the rules, an owner may make reasonable use of the common elements.

16(5) The ownership of a unit shall not be separated from the ownership of the common interest, and an instrument that purports to separate the ownership of a unit from a common interest is void.

16(6) Except as provided by this Act, the common elements shall not be partitioned or divided.

16(7) For the purposes of assessment and taxation, each unit and common interest constitute a parcel, and the common elements do not constitute a parcel.

Encumbrances

17(1) No encumbrance is enforceable against the common elements after the declaration and description are registered.

17(2) An encumbrance that would be enforceable against the common elements if not for subsection (1), is enforceable against all the units and common interests.

17(3) A unit and common interest may be discharged from an encumbrance under subsection (1) by payment to the claimant of a portion of the sum claimed as determined by the proportions specified in the declaration for sharing the common expenses.

17(4) On the request of an owner who makes a payment under subsection (3), the claimant shall give the owner a discharge of the unit and common interest in accordance with the regulations.

Easements

18(1) The following easements are appurtenant to a unit:

(a) in accordance with the Act, the declaration and the by-laws, an easement for exclusive use and occupation over the space of the other units and common elements that would be space included in the unit if the boundaries of the unit were determined by the position of the buildings after registration, if the building or any part of the building

(i) is moved after registration of the declaration and description, or

(ii) after having been damaged and repaired, is not restored to the position occupied at the time of registration of the declaration and description;

(b) an easement for the provision of any service through an installation in the common elements or another unit; and

(c) an easement for support and shelter by the common elements and any other unit capable of providing support and shelter.

18(2) The following easements are appurtenant to the common elements:

(a) an easement for the provision of any service through an installation in a unit; and

(b) an easement for support and shelter by any unit capable of providing support and shelter.

18(3) All ancillary rights and obligations reasonably necessary to make easements effective apply in respect of easements implied or created by this Act.

THE CORPORATION

Objects and powers of a corporation

19(1) The objects of a corporation are to manage the property and assets of the corporation.

19(2) The Companies Act and the Business Corporations Act do not apply to a corporation created under this Act.

19(3) A corporation has all the corporate powers and capacities necessary to enable it to do all the acts and things that are incidental or conducive to or consequential on the attainment of its objects.

19(4) A corporation has a duty to take all reasonable steps to ensure that the owners comply with this Act, the declaration and the by-laws.

19(5) Each owner, and each person having a claim against a unit and common interest, has the right to the performance of a duty of the corporation specified by this Act, the declaration and the by-laws.

19(6) An action with respect to the common elements may be brought by a corporation, and a judgment for the payment of money in favour of the corporation in the action is an asset of the corporation.

19(7) A corporation may do any of the following with the consent of the owners of at least 60% of the common elements:

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

(b) borrow money;

(c) mortgage, hypothecate or pledge its property or rights, including any future right to be paid money as a result of a levy made under 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; and

(g) levy special assessments for extraordinary common expenses.

19(8) An easement or a lease granted under paragraph (7)(d) or (e) 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.

Assets of the corporation

20 The owners share the assets of a corporation in the same proportions as the proportions of their common interests in accordance with this Act, the declaration and the by-laws.

Corporate records

21(1) A corporation shall keep adequate records, including the following:

(a) financial records;

(b) minutes of the meetings of the owners and meetings of the board;

(d) a copy of the description;

(e) the by-laws and rules;

(f) all items provided to the corporation by the declarant under section 22;

(g) reserve fund studies;

(h) all agreements entered into by the corporation;

(i) all insurance policies held by the corporation;

(j) disclosures of conflicts of interest; and

(k) all other records that are specified in the by-laws.

21(2) A corporation shall keep all financial records for at least 6 years after the last fiscal period to which they relate.

21(3) An owner or an agent of an owner may inspect the records of a corporation on reasonable notice and at any reasonable time.

21(4) If a person examining the records requests a copy of a record, the corporation shall provide it within a reasonable time and may charge a reasonable fee for labour and copying.

Information provided by the declarant

22 When a declarant ceases to own a majority of the units in a condominium property, the declarant shall provide the following to the corporation, without charge:

(a) the seal of the corporation;

(b) the minute book for the corporation, containing the most current copies of the declaration, by-laws and rules, including any amendments;

(c) a copy of any agreement entered into by the corporation, or the declarant or the representative of the declarant on behalf of the corporation, including any management contract, deed, lease, licence or easement;

(d) any existing warranty or guarantee for any equipment, fixture or chattel included in the sale of either of the units or common elements that is not protected by a warranty or guarantee given directly to a unit purchaser;

(e) any architectural, structural, construction, mechanical, electrical or plumbing plans;

(f) the original specifications indicating any substantive changes;

(g) any plans for underground site service, site grading, drainage, landscaping, or television, radio or other communications services;

(h) any other plans and information relevant to the future repair or maintenance of the condominium property;

(i) the bank, credit union or trust company account information for the reserve fund or any other fund of the corporation;

(j) copies of all financial statements prepared respecting the reserve fund or any other fund of the corporation;

(k) a listing of all the units sold in the property, with the names and addresses of the owners;

(l) a listing of all the units that remain unsold or remain as rental units; and

(m) any other information or material prescribed by regulation.

OWNERS’ RIGHTS AND OBLIGATIONS

Duties of owners

23(1) An owner is bound by and shall comply with this Act, the declaration, the by-laws and the rules.

23(2) An owner has a right to the compliance by the other owners with this Act, the declaration, the by-laws and the rules.

23(3) A corporation and a person having a claim against a unit and common interest has a right to the compliance by the owners with this Act, the declaration, the by-laws and the rules.

23(4) An owner’s obligation to contribute towards the common expenses, the reserve fund and any contingency fund shall not be avoided by a waiver of the right to use the common elements or by abandonment.

Judgments against a corporation

24(1) A judgment for the payment of money against a corporation is also a judgment against each owner at the time the cause of action arose for a portion of the judgment determined by the proportions specified in the declaration for sharing the common expenses.

24(2) An owner may be discharged from a judgment by payment to the claimant of a portion of the judgment debt and costs determined by the proportions specified in the declaration for sharing the common expenses, and on the payment being made, the holder of the judgment shall give the owner a discharge in accordance with the regulations.

Voting rights and consent

25(1) An owner has voting rights in the corporation in the proportions specified in this Act and in the declaration.

25(2) The holder of a mortgage or a charge on a unit may not exercise any right that the owner of the unit has to vote or consent, unless the holder is a mortgagee in possession.

25(3) Subsection (2) applies despite any authorization, including any provision in an agreement, mortgage or charge, that has been given to the contrary regardless of when given.

25(4) Subsection (2) does not invalidate a vote that was cast or consent that was given before the commencement of that subsection.

25(5) A person may exercise the powers conferred on an owner under this Act if the person is authorized by law to control the owner’s property.

25(6) On application of a corporation or an owner and if the Court is satisfied that there is no person capable, willing or reasonably available to exercise the powers conferred on an owner under this Act, the declaration or the by-laws, the Court

(a) shall authorize some other person to exercise the power if a unanimous vote or unanimous consent is required, and

(b) may authorize some other person to exercise the power in all other cases.

Quorum

26(1) The owners of 30% of the common elements constitute a quorum for an owners’ meeting.

26(2) No business shall be transacted at an owners’ meeting unless a quorum is present at the beginning of business.

BOARD OF DIRECTORS AND OFFICERS

Elections and appointments to a board

27(1) The affairs of a corporation shall be managed by a board of directors consisting of 3 persons, or more if provided for in the declaration or by-laws.

27(2) Despite subsection (1), a corporation that consists of 2 or 3 units may have a board consisting of 2 or more persons.

27(3) A majority of the directors of a board, or a greater proportion if specified in the declaration or by-laws, constitutes a quorum for the transaction of business.

27(4) Subject to subsection (5), a board shall be elected by the owners.

27(5) If a declarant owns at least one unit, he or she shall appoint to the board the proportion of the total number of directors that the number of units he or she owns bears to the total number of units in the condominium property, and the other owners shall elect the remaining directors.

27(6) If the number arrived at under subsection (5) is not a whole number, the declarant shall appoint the number of directors that is equal to the lesser of the nearest 2 whole numbers.

27(7) Despite subsection (5), a declarant shall not appoint directors to a board if, at the owners’ meeting at which the board is chosen, the owners of at least 60% of the common elements vote to pass a resolution that the entire board be elected by the owners.

27(8) The term of a director is 3 years, or a lesser period if provided for in the declaration or by-laws.

27(9) Despite subsection (8), a director shall continue to act until a successor is elected.

27(10) A director is eligible for re-election.

27(11) Subject to subsection (12), if a vacancy occurs on a board, the owners shall elect a new director.

27(12) If a declarant owns at least one unit at the time a vacancy occurs on a board, the vacancy shall be filled so that the proportion of the directors appointed by the declarant remains the same as the proportion of the directors appointed by the declarant if a new board were chosen at the time of the vacancy.

27(13) A person may be removed as a director by a vote of at least 60% of the owners, on the basis of one vote per owner, and the declarant, as an owner, is entitled to one vote.

Officers of the corporation

28(1) A corporation shall have a president, a secretary and any other officers provided for in the by-laws.

28(2) Subject to the by-laws, the directors

(a) shall elect a president from among themselves,

(b) shall appoint or elect a secretary, and

28(3) The same person may hold 2 or more offices of the corporation.

28(4) No act of a person is invalid by reason only of a defect in the election or appointment of that person as an officer or the lack of any qualification for that office.

Qualifications of directors

29(1) A director shall be an owner and shall have attained the age of majority.

29(2) Despite subsection (1), a director appointed by a declarant is not required to be an owner.

29(3) 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 the lack of any qualification for that office.

Duties, liability and indemnification

30(1) A director or officer of a corporation shall, in exercising the powers and discharging the duties of that 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.

30(2) A director does not contravene subsection (1) if the director relies in good faith on the following:

(a) financial statements of the corporation that have been represented to the director by any of the following as fairly presenting the financial position of the corporation in accordance with generally accepted accounting principles:

(i) a person qualified to review the financial statements in accordance with section 36;

(ii) an officer of the corporation; or

(iii) a manager under an agreement for the management of the property; or

(b) a report of a person whose profession lends credibility to a statement made by that person.

30(3) The by-laws may provide that a director or an officer of a corporation, and that person’s heirs, executors, administrators and other legal personal representatives, may be indemnified and saved harmless by the corporation from and against the following:

(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 that the person has done, omitted to do or permitted 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 corporation.

Disclosure of Interest

31(1) A director shall disclose in writing to the corporation the nature and extent of any material interest he or she has, directly or indirectly, in a contract, transaction or proposed contract or transaction to which the corporation is or will be a party if the contract or transaction is material to the corporation.

31(2) Disclosure of an interest is sufficient if the notice states that the director

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

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

31(3) Despite subsection (2), if the contract or transaction involves the purchase of real or personal property by the corporation that the seller acquired within 5 years before the date of the contract, transaction or proposed contract or transaction, the director shall disclose to the corporation the amount the seller paid for the property, if that information is within the director’s knowledge or control.

31(4) The disclosure required by this section shall be made at the board meeting at which the director becomes aware of having an interest in the contract, transaction or proposed contract or transaction, or at the first board meeting held after the director becomes aware of having an interest.

31(5) The board shall enter the disclosure made by a director under this section in the minutes of the board meeting at which the disclosure is made.

31(6) A director shall not vote with respect to a contract, transaction or proposed contract or transaction to which subsection (1) applies unless the director’s interest

(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 board by the declarant.

31(7) A director who complies with this section and who acts 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.

31(8) A contract or transaction to which subsection (1) applies is not voidable by reason only of the interest of the director if

(a) the contract or transaction is confirmed or approved by at least 60% 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.

BY-LAWS AND RULES

By-laws

32(1) Each proposed by-law that is submitted with a declaration and description to the Director under paragraph 5(3)(d) is a by-law of the corporation that is created by the registration of the declaration and description, until it is replaced or amended under this section.

32(2) A corporation shall have by-laws with respect to the following:

(a) the management of the condominium property;

(b) 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;

(d) the maintenance of the units and common elements;

(e) the use and management of the assets of the corporation;

(f) the board of directors and the officers of the corporation;

(g) the duties of the corporation;

(h) the assessment and collection of contributions towards the common expenses; and

(i) the conduct generally of the affairs of the corporation.

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.

32(4) If a declaration divides the units into classes, 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.

32(5) The by-laws shall be consistent with this Act and the declaration.

32(6) If a provision in a by-law or proposed by-law is inconsistent with this Act or the regulations, this Act and the regulations shall prevail, and the by-law or proposed by-law, as the case may be, is deemed to be amended accordingly.

32(7) A corporation shall submit for approval a copy of a by-law together with a certificate in prescribed form, executed by the officers of the corporation, stating that the by-law was made in accordance with this Act, the declaration and the by-laws, and the Director shall approve for registration the by-law and certificate.

32(8) On approval for registration, section 9 applies with the necessary modifications to the documents in subsection (7).

32(9) Despite subsection 9(2), a by-law of a condominium property that was registered under the Registry Act on the commencement of this section and that continues under that Act shall be registered under the Registry Act and the applicable fees for registration under that Act apply.

32(10) A registrar of deeds shall only register the documents referred to in subsection (7) if they are approved and submitted by the Director.

32(11) A by-law is not effective until the documents referred to in subsection (7) are registered.

32(12) A by-law or the repeal of a by-law shall not operate

(a) to prohibit or restrict the devolution of a unit,

(b) to prohibit or restrict the transfer, lease, mortgage or other dealing with a unit,

(d) to destroy or modify an easement implied or created under this Act.

Rules governing use of common elements

33(1) The by-laws shall provide for the making of rules by the owners respecting the use of the common elements for the purpose of preventing unreasonable interference with the use and enjoyment of the units and common elements.

33(2) The rules shall be consistent with this Act, the declaration and the by-laws.

33(3) The rules shall be complied with and enforced in the same manner as the by-laws.

FINANCIAL STATEMENTS

Financial statements

34(1) A corporation shall have annual financial statements prepared in accordance with generally accepted accounting principles showing its assets and liabilities, its income and expenses and any other information prescribed by regulation.

34(2) At least 10 days before the annual owners’ meeting, a corporation shall do the following:

(a) file a copy of the financial statements with the Director; and

(b) mail or deliver a copy of the financial statements to each owner.

34(3) Before filing financial statements with the Director and before providing them to the owners, the financial statements shall be approved by the board, as evidenced by the signature at the foot of the balance sheet by 2 of the directors duly authorized to sign.

34(4) At the annual owners’ meeting the board shall present the following:

(a) a financial statement prepared in accordance with generally accepted accounting principles; and

(b) any information respecting the financial position of the corporation that the by-laws of the corporation require.

Fiscal year

35(1) Subject to subsection (2), at an annual owners’ meeting, the owners shall set the fiscal year of the corporation.

35(2) If the owners do not set the fiscal year of the corporation at an annual owners’ meeting, the board may do so.

Review of the financial statements - condominium properties of more than 10 units

36(1) If a condominium property consists of more than 10 units, a review of the financial statements shall be attached to the financial statements referred to in section 34.

36(2) Subject to subsection (3), at an annual owners’ meeting, the owners shall appoint a qualified person to review the financial statements of the corporation and prepare a report.

36(3) If the owners do not appoint a qualified person to review the financial statements at the annual owners’ meeting the board may do so.

36(4) The regulations shall prescribe the persons who are qualified to review financial statements.

36(5) The person reviewing the financial statements shall have access at all times to all the records, documents, accounts and vouchers of the corporation and may require from the directors, officers and employees of the corporation the information and explanations that, in the opinion of that person, are necessary to enable him or her to conduct the review.

36(6) No person shall be appointed to review the financial statements of a corporation if he or she

(a) is an owner or a director, officer, employee or manager of the corporation;

(b) is a partner, employer or employee of an owner or a director, officer, employee or manager of the corporation; or

36(7) A person appointed under subsection (2) or (3) may be removed in accordance with a contract of employment made between the corporation and the person or in accordance with any law respecting employment by the following:

(a) if appointed under subsection (2),

(i) by the owners, or

(ii) if authorized to do so by the owners, by the board; and

(b) if appointed under subsection (3), by the board.

36(8) The remuneration of the person appointed under subsection (2) shall be fixed by the owners or by the board if it is authorized to do so by the owners, and the remuneration of a person appointed by the board under subsection (3) shall be fixed by the board.

FUNDS HELD BY A CORPORATION

Operating fund - common expenses

37(1) A corporation shall establish an operating fund for the payment of the common expenses to which the owners shall contribute in proportions specified in the declaration.

37(2) A corporation shall assess and collect the owners’ contributions towards the common expenses as specified in the declaration and the by-laws.

37(3) A corporation shall pay the common expenses.

37(4) At the end of the fiscal year, any surplus in the operating fund of a corporation shall be applied against future common expenses or shall be paid into the reserve fund or the contingency fund, and shall only be distributed to the owners when the governance of the condominium property by this Act is terminated.

37(5) A corporation has a right to recover the following from an owner by an action for debt:

(a) the unpaid amount of an assessment;

(b) a sum of money expended by the corporation for repairs to or work done by the corporation or at its direction to comply with a notice or order by a competent public or local authority in respect of that portion of the building comprising the unit of that owner; and

Reserve fund - substantial repair and replacement

38(1) In this section, “eligible security” means a bond, debenture, guaranteed investment certificate, deposit receipt, deposit note, certificate of deposit, term deposit or other similar instrument that (valeur mobilière admissible)

(a) is issued or guaranteed by the Government of Canada or the government of a province of Canada, or

(b) is issued by an institution located in the Province insured by either the Canada Deposit Insurance Corporation or the New Brunswick Credit Union Deposit Insurance Corporation.

38(2) A corporation shall establish and maintain a reserve fund for the purposes referred to in subsection 42(1).

38(3) All contributions collected for a reserve fund shall be paid into the reserve fund and deposited and maintained in a bank, credit union or trust company in the Province or invested in an eligible security.

38(4) A fund set up for any of the purposes referred to in subsection 42(1) is deemed to be a reserve fund even if it is not designated as a reserve fund.

38(5) A reserve fund shall only be used for the purposes referred to in subsection 42(1).

38(6) A reserve fund constitutes an asset of the corporation and shall only be distributed to an owner when the governance of the condominium property by this Act is terminated.

Reserve fund - condominium properties of not more than 10 units

39(1) Subject to section (2), if a condominium property consists of not more than 10 units, the amount in the reserve fund for the corporation shall be equal to 100% of the annual operating budget of the corporation, or a greater percentage if specified in the by-laws.

39(2) A corporation referred to in subsection (1) shall assess and collect the owners’ contributions to the reserve fund in an amount that results in the fund meeting the requirements of that subsection within 5 years after the registration of the declaration and description.

Reserve fund study - condominium properties of more than 10 units

40(1) If a condominium property consists of more than 10 units, the corporation shall complete a reserve fund study every 10 years and shall submit it to the Director no later than 30 days after it is completed.

40(2) A corporation referred to in subsection (1) shall complete an update of a reserve fund study every 3 years or any time there is a significant change in the assets of the corporation and shall submit it to the Director no later than 30 days after it is completed.

40(3) A reserve fund status certificate, prescribed by regulation, shall be completed by the person who prepares the reserve fund study.

40(4) A corporation referred to in subsection (1) shall maintain a reserve fund in an amount that meets the minimum amount recommended in the reserve fund study.

40(5) If the amount in the reserve fund of a corporation referred to in subsection (1) is less than the amount required within the period of time recommended in the study, the corporation shall assess and collect the owners’ contributions to the reserve fund in an amount that would result in the fund meeting the minimum funding recommendations of the reserve fund study.

40(6) The form and contents of a reserve fund study and the persons authorized to prepare it shall be prescribed by regulation.

Contingency fund

41 A corporation may establish a contingency fund to be used for the purposes specified in the by-laws.

OPERATION

Modifications to common elements and assets

42(1) By a vote of the owners of at least 60% of the common elements, or a greater percentage if specified in the declaration, a corporation may do the following:

(a) make a substantial addition, alteration or improvement to or renovation of the common elements; and

(b) make a substantial change in the assets of the corporation.

42(2) By a vote of the owners of a majority of the common elements, a corporation may do the following:

(a) make any other addition, alteration or improvement to or renovation of the common elements; and

(b) make any other change in the assets of the corporation.

42(3) The cost of a substantial addition, alteration or improvement to or renovation of the common elements or the cost of a substantial change in the assets of the corporation is a common expense and shall be paid out of the corporation’s reserve fund.

42(4) The cost of any other addition, alteration or improvement to or renovation of the common elements or any other change in the assets of the corporation is a common expense and shall be paid out of the corporation’s operating fund or contingency fund, as determined by the corporation.

Amendments to declarations

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.

43(2) Despite subsection (1), the Director may amend a declaration without the consent of the owners in order to correct a grammatical, mathematical, clerical, typographical or printing error.

43(3) If the Director amends a declaration under subsection (2), the amendment is deemed to have been approved for registration and subsection (4) does not apply.

43(4) When a declaration is amended, the corporation shall submit the following to the Director for approval:

(a) proof of the consent referred to in subsection (1) satisfactory to the Director; and

(b) a copy of the amendment executed by the officers in a form acceptable to the Director.

43(5) On approval, section 9 applies with the necessary modifications to the documents referred to in subsection (4).

43(6) Despite subsection 9(2), an amendment to a declaration of a condominium property that was registered under the Registry Act on the commencement of this section and continues under that Act shall be registered under the Registry Act, and the applicable fees for registration under that Act apply.

43(7) A registrar of deeds shall register an amendment referred to in subsection (6) only if it is approved and submitted by the Director.

43(8) An amendment is not effective until it is registered.

Amendments to descriptions

44(1) Once registered, a description may be amended only with the consent of the owners of at least 60% of the common elements, or a greater percentage if specified in the declaration.

44(2) Despite subsection (1), the Director may amend a description without the consent of the board in order to correct a grammatical, mathematical, clerical, typographical or printing error.

44(3) If the Director amends a description under subsection (2), the amendment is deemed to have been approved for registration and subsection (4) does not apply.

44(4) When a description is amended, the corporation shall submit the following to the Director for approval:

(a) proof of the consent referred to in subsection (1) satisfactory to the Director; and

(b) a copy of the amendment executed by the officers in a form acceptable to the Director.

44(5) On approval, section 9 applies with the necessary modifications to the documents referred to in subsection (4).

44(6) Despite subsection 9(2), an amendment to a description of a condominium property that was registered under the Registry Act on the commencement of this section and continues under that Act shall be registered under the Registry Act, and the applicable fees for registration under that Act apply.

44(7) A registrar of deeds shall register an amendment referred to in subsection (6) only if it is approved and submitted by the Director.

44(8) An amendment is not effective until it is registered.

Consolidation of units

45(1) A corporation may consolidate into one parcel the parcels of 2 or more adjacent units if the corporation has the consent of the owners of at least 60% of the common elements and complies with any requirement prescribed by regulation.

45(2) The parcels of 2 or more adjacent units may be consolidated despite being separated by a common element.

45(3) Despite subsection 10.4(1) of the Land Titles Act, parcels consolidated under subsection (1) shall be assigned one parcel identification number despite that the parcels are not adjoining.

45(4) The following applies to a consolidated unit:

(a) the proportions of the common interests with respect to the consolidated unit are equal to the proportions of the common interest with respect to all the units that are 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 are consolidated contributed 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 are consolidated had voting rights in the corporation.

Common expenses - lien

46(1) If an owner defaults in his or her obligation to pay to a corporation an amount the corporation has a right to recover under subsection 37(5), the corporation has a lien against the unit and common interest of that owner for the unpaid amount together with the interest owing and the reasonable legal costs and reasonable expenses incurred by the corporation in connection with the collection or attempted collection of the unpaid amount.

46(2) A lien under subsection (1) expires 90 days after the default that gave rise to the lien occurred, unless the corporation registers the lien in accordance with this section.

46(3) A lien under subsection (1) is not a charge against the unit and the common interest of a unit until it is registered.

46(4) Subject to any other Act, a lien under subsection (1) is payable in priority to a registered or unregistered encumbrance in respect of the unit and the common interest.

46(5) A corporation shall give written notice of a lien under subsection (1) to the owner whose unit is affected by the lien at least 10 days before the day a notice of lien will be registered.

46(6) Written notice under subsection (5) may be given by personal service, registered mail or substituted service as may be prescribed by the regulations.

46(7) A corporation shall register a notice of the lien in the prescribed form under the Land Titles Act or the Registry Act, as the case may be, against any unit to which the lien applies and shall then serve the owner of the unit with a copy of the lien and recording particulars.

46(8) On or before the day a notice of lien is registered under subsection (7), a corporation shall give written notice to the persons with registered encumbrances in respect of the unit and the common interest subject to the lien.

46(9) Written notice under subsection (8) may be given by personal service, registered mail or substituted service as may be prescribed by the regulations.

46(10) A lien under subsection (1) may be enforced in the same manner as a mortgage.

46(11) A person who has a registered encumbrance against a unit and the common interest that is subject to a lien under subsection (1) may, at any time after that lien arises,

(a) pay to the corporation the amount of the lien, and

(b) add the amount paid to that person’s mortgage, judgment or other security.

46(12) A person who makes a payment under subsection (11) shall have the same rights, remedies and privileges against the unit and the common interest as the person has by virtue of or under the security held by that person.

46(13) On payment of the unpaid amount of an owner’s obligation, a corporation shall give the owner a discharge of lien in the prescribed form.

46(14) A corporation shall register a discharge of lien in the prescribed form under the Land Titles Act or Registry Act, as the case may be, on the satisfaction of the lien.

Sale of part of the common elements

47(1) The sale of any part of the common elements of a condominium property shall be authorized by

(a) a vote of the owners of at least 60% of the common elements, and

(b) the consent of any non-owners who would be affected by the sale and who have registered encumbrances that were created after the approval for registration of the declaration and description.

47(2) The following documents with respect to a sale referred to in subsection (1) shall be submitted to the Director for approval:

(a) a deed or transfer executed by the officers of the corporation; and

(b) a release or discharge given by all the persons referred to in paragraph (1)(b).

47(3) A deed or transfer referred to in paragraph (2)(a) has the same effect as if it were granted by all the owners of the common elements to which the deed or transfer relates.

47(4) On approval of the documents referred to in subsection (2), the Director shall do the following:

(a) endorse the documents with a certificate of approval for registration in the form prescribed by regulation;

(b) deliver a copy of the endorsed documents to the corporation; and

(c) submit the endorsed documents for registration to the registrar of land titles or the registrar of deeds, as the case may be, along with any fee prescribed under the Land Titles Act or the Registry Act.

47(5) On the registration of the documents referred to in subsection (2),

(a) the Act ceases to govern the part of the common elements that has been sold,

(b) registered encumbrances against the part of the common elements that has been sold that were created before the registration of the declaration and description are as effective as if the declaration and description had not been registered, and

(c) registered encumbrances against the part of the common elements that has been sold that were created after the registration of the declaration and description are extinguished.

47(6) When a sale is authorized under this section, an owner who dissented may elect to have the fair market value of the part of the common elements at the time of the sale determined by arbitration by serving notice on the corporation under subsection 59(1) to that effect within 10 days after the vote, and the owner who served the notice is entitled to receive from the proceeds of the sale the amount the owner would have received if the sale price had been the fair market value as determined by arbitration.

47(7) If the proceeds of the sale are inadequate to pay the amount determined under subsection (6), each owner who voted for the sale is liable for a portion of the deficiency determined by the owner’s proportion of the common interests.

MAINTENANCE AND REPAIRS

Maintenance and repairs

48(1) For the purposes of this Act, the obligations to repair after damage and to maintain are mutually exclusive, and the obligation to repair after damage does not include the repair of improvements made to the units after the registration of the declaration and description.

48(2) Subject to section 49, a corporation shall repair the units and common elements after damage.

48(3) A corporation shall maintain the common elements.

48(4) An owner shall maintain his or her unit.

48(5) Despite subsections (2), (3) and (4), a declaration may specify any of the following:

(a) subject to section 49, an owner shall repair his or her unit after damage;

(b) the owners shall maintain the common elements or any part of the common elements; and

48(6) A corporation shall make any repairs that an owner is obligated to make that he or she does not make within a reasonable time.

48(7) If a corporation has made repairs under subsection (6), an owner is deemed to have consented to the repairs.

Substantial damage

49(1) In this section, “substantial damage” means damage to a building for which the cost of repairs would equal at least 25% of the value of the building immediately prior to the damage occurring, or a greater percentage if specified in the declaration.

49(2) If a building sustains damage, the board shall determine if the damage is substantial within 30 days after it has been sustained.

49(3) Within 60 days after determining that there is substantial damage, a vote shall be taken by the owners and if the owners of at least 60% of the common elements, or a greater percentage if specified in the declaration, vote to repair the damage, the corporation shall do so.

49(4) A corporation shall submit a notice of termination under section 55, if

(a) the owners do not vote to repair the damage, or

(b) the owners do not vote within 60 days after it has been determined that there has been substantial damage.

Insurance

50(1) A corporation shall insure its liability to repair the units and common elements after damage resulting from fire and such other risks as may be specified by the declaration or the by-laws to the extent required by the declaration or by-laws and, for that purpose, the corporation has an insurable interest to the replacement value of the units and common elements.

50(2) The corporation shall submit proof of the insurance referred to in subsection (1) to the Director each year in accordance with the regulations.

50(3) Despite subsection (1), the Insurance Act and any other law relating to insurance, an owner may insure his or her unit in respect of any damage in an amount equal to the amount owing on a mortgage of the owner’s unit at the date of any loss referred to in the policy.

50(4) A payment by an insurer under a policy of insurance entered into under subsection (3) shall be made to the mortgagees in order of their priorities if the mortgagees, or any of them, require it, and the insurer is then entitled to an assignment of the mortgage or a partial interest in the mortgage to secure the amount paid.

50(5) A policy of insurance issued to a corporation under subsection (1) is not liable to be brought into contribution with any other policy of insurance except another policy issued on the same building under subsection (1).

50(6) A policy of insurance issued to an owner under subsection (3) is not liable to be brought into contribution with any other policy of insurance except another policy issued on the same unit under subsection (3).

50(7) Subsections (1) and (3) do not restrict the capacity of a person to insure other than as provided for in those subsections.

SALE AND LEASE OF UNITS

Estoppel certificate

51(1) On the application of an owner or a purchaser of a unit and common interest, a corporation shall issue an estoppel certificate in a form prescribed by regulation with copies of the declaration, by-laws and reserve fund study, if applicable, attached.

51(2) A corporation shall certify the following in an estoppel certificate:

(a) the amount of any assessment and accounts owing by the owner to the corporation for which the corporation has a lien or right of lien against the unit and common interest of the owner;

(b) the manner in which the assessment and accounts are payable;

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

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

(f) the names and addresses of the officers of the corporation;

(g) the current amount of the common expenses and whether they are prepaid or collected as they become due;

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

(i) the balance of the reserve fund;

(j) any assessments that are due in the current fiscal year;

(k) any major capital expenditures that are planned by the corporation;

(l) any lawsuits that have been instituted or are pending by or against the corporation;

(m) the debt carried by the corporation from previous expenditures;

(n) any insurance coverage and the amount or value of each policy;

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

(p) the name of each person who owns 10% or more of the common elements; and

(q) any other information prescribed by regulation.

51(3) An estoppel certificate is conclusive proof of the matters it certifies in favour of any person dealing with the owner of the unit that is the subject of the certificate.

51(4) When an owner or purchaser applies for an estoppel certificate, a corporation may charge a reasonable fee for labour and copying.

51(5) A corporation shall issue an estoppel certificate within 10 days after receiving an application or the payment of the fee charged by the corporation, whichever is later.

51(6) If an estoppel certificate omits material information that it is required to contain, it shall be deemed to include a statement that there is no such information.

51(7) If a corporation does not issue an estoppel certificate within the required time, it shall be deemed to have issued a certificate on the day immediately after the required time has expired stating the following:

(a) there has been no default in payment of the common expenses for the unit;

(b) the board has not declared an increase in the common expenses for the unit since the date the budget of the corporation for the current fiscal year was approved; and

(c) the board has not levied an assessment against the unit to increase its contribution to the reserve fund since the date the budget of the corporation for the current fiscal year was approved.

Agreements of purchase and sale

52(1) An agreement of purchase and sale respecting a unit or a proposed unit shall contain the provisions prescribed by regulation if the declarant is the vendor.

52(2) In addition to any prescribed provisions, an agreement referred to in subsection (1) shall include the following provision:

“The purchaser shall have 10 days on receipt of any documents prescribed by regulation to review and determine whether anything included in the documents materially affects the purchaser’s enjoyment of the property and if, within that period, the purchaser makes an objection to the vendor in writing that the vendor is unable or unwilling to remove and the purchaser is unwilling to waive, the agreement shall be void and the deposit shall be returned to the purchaser, without interest and without liability by the vendor for any expenses incurred or damages sustained by the purchaser.”

52(3) A prescribed provision, including the provision in subsection (2), is deemed to be part of every agreement of purchase and sale for which the provision is prescribed, despite any agreement, waiver or statement or declaration to the contrary.

Tenancy agreements

53(1) In this section, “rentalsman” means a rentalsman appointed under The Residential Tenancies Act. (médiateur des loyers)

53(2) The Residential Tenancies Act applies to a tenancy agreement between an owner and an occupant.

53(3) A tenancy agreement referred to in subsection (2), shall be made in the Standard Form of Lease prescribed by regulation under The Residential Tenancies Act and shall include a schedule to section 10 of the Lease containing the by-laws and rules of the corporation.

53(4) Despite a failure to comply with subsection (3) and despite any agreement, waiver, declaration or statement to the contrary, an agreement that entitles the occupant of a unit to be in possession of a unit is deemed to include a covenant that the occupant shall comply with this Act, the regulations, the declaration, the by-laws and the rules of the corporation.

53(5) An owner referred to in subsection (2) has a duty to take all reasonable steps to ensure that an occupant complies with this Act, the regulations, the declaration, the by-laws and the rules of the corporation.

53(6) If an owner fails to comply with his or her obligations under this section, the corporation may serve notice on the owner of the unit under subsection 59(1) that the corporation intends to submit the dispute to arbitration.

TERMINATION

Termination by consent

54(1) The governance of a condominium property by this Act may be terminated when it is authorized

(a) by a vote of the owners of 100% of the common elements, and

(b) the consent of all non-owners having registered encumbrances against the condominium property created after the registration of the declaration and description.

54(2) If termination is authorized, the corporation shall submit the following documents to the Director for approval:

(a) a notice of termination in the prescribed form executed by,

(i) all the owners, and

(ii) all the non-owners having registered encumbrances against the condominium property created after the registration of the declaration and description; and

(b) a certificate of registered ownership showing the persons signing the notice to be all of the owners and persons having registered encumbrances.

54(3) If a corporation meets the requirements of this section, the Director shall approve the notice of termination for registration.

Termination after substantial damage

55(1) If the owners do not vote to repair under subsection 49(3), the corporation shall submit a notice of termination in the prescribed form to the Director within 10 days after the vote, and the Director shall approve the notice for registration.

55(2) If the owners do not vote within the time limit in subsection 49(3), the corporation shall submit a notice of termination in the prescribed form to the Director within 10 days after the expiry of the time limit, and the Director shall approve the notice for registration.

Termination by court order

56(1) A corporation, an owner or a person having a registered encumbrance against a unit and common interest may apply to the Court for an order terminating the governance of the condominium property by this Act.

56(2) The Court may order that the governance of the condominium property by this Act be terminated if the Court is of the opinion that the termination would be just and equitable, and, in determining whether the termination would be just and equitable, the Court shall have regard to the following:

(a) the scheme and intent of this Act;

(b) the probability of unfairness to one or more owners if termination is not ordered; and

(c) the probability of confusion and uncertainty in the affairs of the corporation or the owners if termination is not ordered.

56(3) The Court may include in an order any provisions that the Court considers appropriate in the circumstances.

56(4) A copy of an order granted shall be submitted to the Director and, subject to subsection (5), the Director shall approve the order for registration.

56(5) When an order for termination is submitted, the Director shall not approve the order unless the conditions contained in the order as to its acceptance for registration have been complied with or until proof of compliance is provided to the Director.

56(6) Section 57 applies with the necessary modifications to an order for termination.

56(7) An order for termination is not effective until it is registered.

Termination - registration of notice

57 On approving for registration a notice of termination, the Director shall do the following:

(a) endorse the notice with a certificate of approval for registration in the form prescribed by regulation; and

(b) submit the endorsed notice for registration to the registrar of land titles or registrar of deeds, as the case may be, along with any fee prescribed under the Land Titles Act or the Registry Act.

Effect of registration of notice

58 On registration of a notice of termination,

(a) the Act ceases to govern the condominium property;

(b) the owners are tenants in common of the land and interests appurtenant to the land described in the description in the same proportions as their common interests;

(c) encumbrances registered against the land and interests appurtenant to the land that were created before the registration of the declaration and description are as effective as if the declaration and description had not been registered;

(d) encumbrances registered against a unit and common interest that were created after the registration of the declaration and description are encumbrances against the interest of the owner in the land and interests appurtenant to the land described in the description and have the same priority as they had before the registration of the notice of termination;

(e) all other registered encumbrances against the condominium property that were created after the registration of the declaration and description are extinguished;

(f) the assets of the corporation shall be used to pay any claims against the corporation for the payment of money; and

(g) the remainder of the assets of the corporation shall be distributed among the owners in the same proportions as the proportions of their common interests.

ARBITRATION

Arbitration

59(1) A party to a dispute may give notice to the other party and to the Director that the party giving notice intends to have the dispute arbitrated by a single arbitrator appointed by the Director and, when notice is given, the parties are deemed for the purposes of the Arbitration Act to have entered into an arbitration agreement.

59(2) Subject to subsection (3), subsection (1) applies to a dispute under this Act between any of the following:

(a) the corporation and an owner;

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

(d) two or more owners.

59(3) Subsection (1) does not apply to a dispute with respect to the governance of the condominium property by this Act being terminated.

59(4) Subsection (1) applies to a dispute between a board and an owner as to whether a decision or a proposed action by the board is prejudicial to the condominium property or the corporation.

59(5) Notice under subsection (1) may be given by personal service, registered mail or substituted service as may be prescribed by the regulations.

59(6) A notice that is mailed is deemed to be received on the seventh day after it is mailed, unless the contrary is proven.

59(7) When notice is given to the Director, he or she shall appoint an arbitrator in accordance with the regulations.

59(8) The regulations shall prescribe

(a) the requirements for an arbitrator, and

(b) the maximum fees that may be charged by an arbitrator.

ENFORCEMENT

Order for performance

60(1) If a duty imposed by this Act, the declaration or the by-laws is not performed, the corporation, an owner, or a person having a registered encumbrance against a unit and common interest may apply to the Court for an order that the duty be performed.

60(2) The Court may order that the duty be performed and may appoint an administrator for the period of time and with the terms and conditions that it considers necessary.

60(3) An administrator appointed under subsection (2)

(a) has the powers and duties of the corporation that the Court shall order, to the exclusion of the corporation, and

(b) has the right to delegate any of the powers vested in the administrator.

60(4) An administrator shall be paid for the administrator’s services by the corporation, which payments are common expenses.

60(5) Nothing in this section restricts the remedies otherwise available for failure to perform any duty imposed by this Act.

Administrative penalties

61(1) A corporation shall be liable to pay an administrative penalty of not less than $1,000 and not more than $10,000, as provided for in the regulations, if within 30 days after receiving a notice from the Director requiring it to comply, the corporation fails to

(a) file a financial statement with the Director under section 34,

(b) submit a reserve fund study to the Director under section 40, or

61(2) A notice given under subsection (1) shall be given in the manner provided for in the regulations.

61(3) An administrative penalty shall be paid to Service New Brunswick.

61(4) Service New Brunswick may sue for and recover the administrative penalty in an action in any court as if the amount were a debt.

61(5) The Director may waive an administrative penalty that a corporation would otherwise be liable to pay under this section in the circumstances prescribed by regulation.

Administrative penalties - review

62(1) In this section, “President” means the President of Service New Brunswick appointed under the Service New Brunswick Act. (président)

62(2) A corporation that receives a notice under subsection 61(1) may request that the President review the Director’s decision to issue the notice by applying to the President within 10 days after receiving the notice.

62(3) The President shall conduct the review requested in subsection (1) in accordance with the regulations.

62(4) Following the review of a decision of the Director under this section, the President may uphold, vary or rescind the decision of the Director.

62(5) A decision of the President under this section is final.

MISCELLANEOUS

Expropriation of property

63(1) The expropriation of part of the common elements shall not terminate the governance of the condominium property by this Act.

63(2) The expropriation of all of a condominium property shall terminate the governance of the condominium property by this Act.

63(3) The expropriation of all of a condominium property shall not make the expropriating authority a member of the corporation.

Application of Community Planning Act

64 Except for a certification under subsection 8(1) and for a sale of part of the common elements under section 47, a subdivision by-law or subdivision regulation under the Community Planning Act does not apply to dealings under this Act.

REGULATIONS

Regulations

65(1) The Lieutenant-Governor in Council may make regulations

(a) prescribing the qualifications of persons who may prepare building inspection reports for the purpose of paragraph 5(3)(h);

(b) prescribing the fees for examining and approving a declaration and description;

(d) respecting the registration and recording of declarations, descriptions, by-laws, notices of termination and other instruments;

(e) governing the method of describing land or any interest in land in instruments affecting a condominium property or part of a condominium property;

(f) governing plans of surveys, construction plans, descriptions and diagrams, and prescribing procedures for their registration and amendment;

(g) prescribing the form of a plan of survey;

(h) authorizing the Director to examine a survey on the ground and to request additional information from surveyors;

(i) respecting monumentation;

(j) authorizing the Director to vary the monumentation for the purposes of survey plans;

(k) respecting the names of corporations;

(l) prescribing the form and contents of a certificate of approval for registration;

(m) prescribing the duties of officers appointed under the Registry Act or Land Titles Act for the purposes of this Act;

(n) prescribing the information to be contained in the declaration and description for a commercial condominium property, residential condominium property, bare-land condominium property, mixed-use condominium property and a phased-development condominium property;

(o) respecting the disclosure of information with respect to a commercial condominium property, residential condominium property, bare-land condominium property, mixed-use condominium property and a phased-development condominium property;

(p) exempting a commercial condominium property, residential condominium property, bare-land condominium property, mixed-use condominium property and a phased-development condominium property from provisions of this Act;

(q) prescribing the requirements for a phased-development condominium property for the purposes of subsection 8(3);

(r) prescribing the requirements for registering amalgamating corporations;

(s) prescribing the form and contents of a status certificate for amalgamating corporations;

(t) prescribing statements and information required under paragraph 13(4)(f);

(u) prescribing the form and contents of a discharge of encumbrance;

(v) respecting additions to the common elements;

(w) respecting information or material to be provided to the corporation by the declarant;

(x) prescribing the form and contents of a discharge of judgment;

(y) prescribing the form and contents of a certificate required under subsection 32(7);

(z) respecting the contents of financial statements;

(aa) prescribing the qualifications of persons who may review financial statements;

(bb) prescribing the form and contents of a reserve fund status certificate;

(cc) prescribing the form and contents of a reserve fund study and the information, opinions and recommendations to be contained in the study;

(dd) prescribing the qualifications of persons who may prepare a reserve fund study;

(ee) prescribing the requirements for consolidating units under section 45;

(ff) prescribing the form and contents of a certificate of consolidation;

(gg) prescribing the form and contents of a discharge of lien;

(hh) prescribing the requirements for proof of insurance under subsection 50(2);

(ii) prescribing the form of an estoppel certificate issued under section 51;

(jj) respecting matters to be certified in an estoppel certificate issued under section 51;

(kk) prescribing provisions that are required to be included in agreements of purchase and sale;

(ll) prescribing the form and contents of a notice of termination;

(mm) prescribing the qualifications of persons who may be selected as arbitrators for the purpose of section 59;

(nn) prescribing the maximum fees that may be charged by arbitrators appointed under section 59;

(oo) prescribing the method by which an administrative penalty is calculated for the purpose of section 61;

(pp) prescribing the manner in which a notice shall be given under section 61;

(qq) prescribing the circumstances in which the Director may waive an administrative penalty imposed under section 61;

(rr) prescribing the requirements for a review under section 62;

(ss) prescribing forms of substituted service for the purposes of subsections 46(6), (9) and 59(5);

(tt) authorizing the Director to vary the requirements of the regulations in special circumstances, with the exception of the content of prescribed forms;

(uu) prescribing forms and providing for their use;

(vv) defining any word or expression used but not defined in this Act;

(ww) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act.

65(2) Any provision of any regulation may be made applicable to all condominium properties or to any class of condominium property.

TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS,
REPEAL AND COMMENCEMENT

Transitional provisions

Corporations created under the Condominium Property Act

66 A corporation created under the Condominium Property Act, chapter C-16 of the Revised Statutes, 1973 is continued as a corporation under this Act.

Building permits issued before the commencement of this section

67(1) The requirement to submit a reserve fund study under paragraph 5(3)(g) does not apply to a declarant who submits to the Director, with respect to the proposed condominium property, a valid building permit issued on or before December 31, 2009.

67(2) The fees for examining and approving a declaration and description under subsection 5(4) do not apply to a declarant referred to in subsection (1).

Lien created under the Condominium Property Act

68 A lien created under subsection 13(4) the Condominium Property Act, chapter C-16 of the Revised Statutes, 1973, is continued as a lien under subsection 46(1) of this Act.

Reserve fund

69 A corporation continued under section 66 to which subsection 39(1) applies shall meet the reserve fund requirements in subsection 39(1) within 5 years after the commencement of that subsection.

Reserve fund study

70(1) A corporation continued under section 66 to which section 40 applies shall prepare and file a reserve fund study under section 40 within 5 years after the commencement of that section.

70(2) A corporation created on the registration of a declaration and description by a declarant referred to in subsection 67(1), and to which section 40 applies, shall prepare and file a reserve fund study under section 40 within 5 years after the registration of the declaration and description.

Insurance policy under the Condominium Property Act

71(1) Subsections 50(1) and (5) do not apply to an unexpired insurance policy entered into, on or before the commencement of those subsections, under section 15 of the Condominium Property Act, chapter C-16 of the Revised Statutes, 1973, by a corporation continued under section 66, and section 15 of that Act as it existed immediately before the commencement of those subsections continues to apply.

71(2) If a corporation renews a policy of insurance referred to in subsection (1) after the commencement of subsections 50(1) and (5), those subsections apply.

Agreements of purchase and sale

72 Section 52 does not apply to an agreement of purchase and sale entered into on or before the commencement of that section.

Tenancy agreements

73(1) Subsections 53(3) and (4) do not apply to a tenancy agreement between an owner and an occupant entered into on or before the commencement of those subsections.

73(2) If a tenancy agreement referred to in subsection (1) is renewed after the commencement of subsections 53(3) and (4), those subsections apply to the agreement.

Consequential amendments

Amendments to the Land Titles Act

74 Subsection 14.1(1) of the French version of the Land Titles Act, chapter L-1.1 of the Acts of New Brunswick, 1981, is amended by striking out “Loi sur les condominiums” and substituting “Loi sur la propriété condominiale”.

Amendments to the Residential Property Tax Relief Act

75(1) Section 1 of the French version of the Residential Property Tax Relief Act, chapter R-10 of the Revised Statutes, 1973 is amended

(a) by repealing the definition of «association condominiale» and substituting the following:

« association condominiale » s’entend d’une association selon la définition que donne de ce mot la Loi sur la propriété condominiale; (condominium corporation)

(b) in the definition «partie privative d’un condominium» by striking out “Loi sur les condominiums” and substituting “Loi sur la propriété condominiale”;

(d) by adding the following definition in alphabetical order:

« intérêt commun » s’entend d’un intérêt commun selon la définition que donne de ce terme la Loi sur la propriété condominiale; (common interest)

75(2) Subparagraph 2.1(4)b)(ii) of the French version of Act is amended by striking out “la quote-part afférente” and substituting “l’intérêt commun afférent”.

Repeals

Repeal of Condominium Property Act

76(1) The Condominium Property Act, chapter C-16 of the Revised Statutes of New Brunswick, 1973, is repealed.

76(2) New Brunswick Regulation 84-149 under the Condominium Property Act is repealed.

Commencement

77 This Act comes into force on January 1, 2010.

Chapter Outline Update

75 Residential Property Tax Relief Act

In section 1 strike out “common interest — quote-part” and substitute the following: “common interest — l’intérêt commun”.