Condo By-laws: What's the Deal with Voting?
With many condominiums passing by-laws to allow for virtual meetings and electronic voting, one of the most frequently asked questions right now is: how many owners need to approve the by-law? This became a common question after the Condominium Act, 1998, was amended in 2017 to create two different voting thresholds for by-laws. Prior to the amendments there was only one answer: a majority of the units in the corporation. (*Excluding units used for parking, storage, or services/facilities/mechanical installations unless all units are used for these purposes). There are now two answers: a majority of the units in the corporation or a majority of units represented at the meeting.
Confusion increased in 2019 when a court applied the wrong voting threshold to a borrowing by-law. We previously wrote about the case here: https://ontcondolaw.com/2019/05/01/the-controversiality-of-the-voting-threshold-borrowing-by-laws/
What is the level of support required to pass a by-law?
Most by-laws still require a majority of the units in the corporation to approve them at an owners' meeting. This list includes:
- Directors: the number, qualifications/disqualifications, elections, removal, term of office, and the regulation of board meetings
- Borrowing: to authorize the condominium borrowing money to carry out its duties
- Standard Unit: to define the standard unit for each class of unit for the purposes of determining obligations for insurance and repair after damage of improvements
- Deductible: to shift responsibility for deductibles under the condominium's insurance policies to owners in certain circumstances
- Property: to lease a part of the common elements, grant or transfer an easement or licence through the common elements, or release an easement that is part of the common elements.
The by-laws that may be approved by the lower threshold, majority of the units represented at the meeting, are by-laws about requirements that were created by the amendments in 2017, such as:
- Candidate Disclosures: Adding candidate disclosure requirements for elections to the board or requiring them to be in writing or provided within a certain time period
- Information Certificates: Adding required content or increasing the frequency of them
- Meetings: Adding material for meetings and notices of meetings, permitting virtual meetings and electronic or telephonic voting, and permitting a portion of the proxy or ballot identifying the unit or owner to be disclosed in record requests
- Records: defining additional core records and other records the condominium is required to maintain, and setting retention periods for the additional records.
The lists above are not exhaustive.
Process for Making, Amending or Repealing By-laws
The process for having owners approve by-laws is the same for all by-laws, except for the voting thresholds described above. The board of directors must, by resolution, approve the by-law at a board meeting. The condominium must then call a meeting of owners to present the by-law to the owners. The preliminary notice of meeting must indicate that proposed changes to the by-laws will be presented at the meeting and the notice of meeting must include a copy of the proposed by-law. At the meeting, voting is typically conducted by recorded vote (ballot) and proxies casting votes. If approved by the required number of units, the by-law certificate must be signed by the board and sent to the lawyer for registration. The by-law is not effective until registered on title. Once registered, the by-law must be included in status certificates.