Percentage of Unit Ownership and Size of Condo Questioned

C.J. from Hartford County writes:

Dear Mister Condo,

The condo I just purchased isn’t as many square feet as the developer said it was. Some units in my building are larger or on a higher floor and have lower assessments. The declarations and by-laws have stated a percentage of floor space that my association manager doesn’t want to change. The square footage reported (therefore my assessment) are 12% higher than I’d expect. What is the proper course of action? Do I hire an attorney? Can I demand money back? Get it lowered for future? Sit out on monthly payments until its square?

Mister Condo replies:

C.J., I am sorry for your problems. I am not an attorney and you will clearly need an attorney to assist you if what you say is true. Let me share with you some of the basics that I am aware of and then you can decide what course of action suits you best.

Since your condo is brand new you made a purchase and sale agreement with the developer. You may or may not have had a realtor involved as well. You should have had an attorney review all of the documents with you before you signed the purchase and sales agreement. If you didn’t this could be an expensive lesson in why you should.

The condo’s declaration generally describes the entire community, all buildings, all amenities, exact property lines, so on and so forth. Somewhere in the package is the percentage of unit ownership formula that is used to determine the amount of common fee contribution each unit is responsible for. The formula is based upon relative square feet of your unit which may include garages, sun rooms, storage areas, utility rooms, etc. that are for the specific use of the unit owner and/or relative fair market value of the unit. For instance, shore front communities may assess a higher value to those units with water views than those units without even though the square footage of each is identical.

That formula is the law of the land and it is very unusual for the formula to be changed. For a change just to your unit, all units would be affected as they would need an increase to make up for any decrease in your fee. As you can imagine, other unit owners are not likely to agree to this and unless I am mistaken a change to the percentage of unit ownership formula would likely require a unanimous vote of the membership, which is highly unlikely. Rules about such changes are likely documented in your condo’s by-laws. Your association manager does not have the power to change the percentage of unit ownership.

If you can demonstrate that the unit was not built to the specifications that you purchased in the sales agreement, you may be able to demonstrate a defect on the part of the developer which may entitle you to some money back. However, as I suspect, you more than likely signed an agreement that sold you the unit as is. Once again, in theory, you had inspected the unit BEFORE signing the agreement and had a chance to walk away from the deal if you were not happy at that time.

Sitting out on monthly payments until you are satisfied is not an option for you, in my opinion. If you become delinquent in your common fee payments, the association or developer if developer is still in control at this point, will likely take action against you which can include foreclosure. Your purchase of the unit binds you to the rules of the association, of which timely payments of common fees is a provision. You will incur late fees and legal expenses on top of the common fees. Choosing not to pay will be a costly decision and could cost you your unit.

My advice is to hire an attorney and discuss your options. You can always decide to sell your unit and let this be someone else’s problem. If the developer truly did something underhanded and sold you a defective unit an attorney can best advise you as to what legal remedies are available to you. Sitting out on monthly common fee payments could be disastrous for you. I wish you good luck in getting this sorted out.