J.G. from Windham County, Connecticut writes:
Dear Mister Condo,
This question may best be addressed by our Condo Attorney but you may be able to provide some insight. We have a condo association of almost 100 single family units for “55 and older” owners. Our condo project has completed first two phases and 3rd & 4th stage buildout is now on hold pending improvements in the economy. We have had 3 Declarants: the first two subsequently went bankrupt after the first 37 units were completed; the third declarant had stronger financial resources and development skills and he is still planning to complete project for a total of more than 200 units. Here’s the issue. Owners’ condo fee, Allocation of Interest, is based on sq. ft. of living space. There are a three dozen or so early units where the original declarant made an error in listing the square footage of living space in the Schedule A-2, i.e., omitted sunrooms and staircases or stated too much sq. ft. As per our declaration, to correct the Schedule A-2 we would need to get a super majority vote of approval of Unit owners and this is not going to happen with owners looking at a fee increase.
My question is, we have seen that the current declarant has been able to make correction in subsequent amendments to the Schedule A-2 for error/omissions that he made for units he built. Can this 3rd declarant also make corrections to the Schedule A-2 for errors made for units built by the first two declarants? I do not know what commitments were transferred between the original, new declarants and bankers during the negotiations to buy out the bankruptcy.
Mister Condo replies:
J.G., developer transition periods as you have described here are often when associations require outside assistance. There is no more important a period of time for developers and the association to “get it right” to avoid all sorts of problems in the future. Welcome to your first bump in the road! You hit it right on the head in your opening sentence. You will need an attorney and a legal filing to amend the misstated documents. Of course, no one is going to be happy or voluntarily agree to pay more in common fees so expect pushback from disgruntled owners and a potential lawsuit from them as well. After all, it wasn’t their fault the declarant got it wrong. They purchased under an agreed set of terms, errant as they may be, and they will want the association to stick to those terms. An attorney will guide the Board through the proper methods of amending the Declaration. That isn’t a guarantee that it will go smoothly but going it alone would be disastrous on the part of the Board. Good luck!