Condominiums and its owners are governed by the Condominium Act but also by the condominium’s governing documents. These governing documents (the declaration, the by-laws and the rules) are part of hierarchy of internal governing documents, with the declaration on top of the pyramid, followed by the by-laws and with the rules at the bottom. Because of this hierarchy of internal documents, by-laws must be consistent with the declaration and rules must be consistent with the declaration and the by-laws.
Because of this hierarchy of governing documents, and because of the vital importance of a declaration (it sets out the fundamental rules by which a condominium corporation is governed), the Condominium Act specifically provides the limited methods to amend the declaration. There are essentially two ways to amend a declaration: You can either do it with the consent of the owners or you need to apply to court to get a judge to modify it.
The first way to amend a declaration is with the support of the owners. Section 107 of the Condominium Act, 1998 provides that a corporation may amend its declaration if the owners of at least 80 or 90% of the units have consented to the proposed amendment in writing. The required level of support depends on what is being changed in the declaration. In practice, obtaining such a high level of support will be difficult for any board of directors.
The second way to amend a declaration is via a court order. Section 109 of the Act provides that a corporation or an owner may make an application to the courts for an order amending the declaration. A judge can order that a declaration be amended only if he or she is satisfied that there is an error or inconsistency in the declaration and that the amendment is necessary or desirable. Once again, even with the assistance of the court, the bar to amend the declaration is quite high.
Sections 107 and 109 each have a very specific purpose: section 107 exists to accommodate a change of preference amongst the owners while section 109 exists to correct an error or inconsistency. Courts have held that these sections are mutually exclusive, which means that the failure of a corporation to amend a declaration through one procedure does not preclude the corporation to try to use the other method to subsequently try to amend the declaration.
Amending a condominium’s declaration is not an easy task, and the high threshold before an amendment is granted is required to maintain the stability and to protect the interest of all owners. A board should always consult legal counsel before embarking in such a process.