Canada's Condominium Magazine
A reader asks: “Hello, I am a first time home buyer. There are 40 units in 5 buildings. We all pay the same amount of maintenance fees. Why am I paying $454 for 602 sq/footage which brings me 0.75 cent per sq/footage while others who live in a bigger unit pay the same amount and only pay 0.35 per sq/footage. The condo fees are not calculated by sq/footage. Is it legal to charge the same for all units regardless of size? I would like to amend the declaration and change it.”
Richard Hoffman answers: “In order to determine your maintenance fees, you must look to Schedule “D” of the Declaration which contains your common element percentages. That percentage determines how much your monthly fees will be. While many developers determine the percentage based on the square footage of the unit, there is no requirement at law that it has to be done this way. The only requirement when drafting or creating these percentages is that they must add up to 100%. Therefore, you may see common area percentages that do not match the square footage of the unit.
“In order to change Schedule “D” and the percentages, you have to amend your declaration and that will require the consent of 90% of the owners. I doubt any owner would consent to a change that would see their common expenses increase. If you can establish that the Schedule “D” was incorrectly done then you can attempt to get a court order changing the declaration. That will be expensive and difficult. You would have to establish that the Declarant made an error when creating the Schedule “D”. Although this owner may feel this is unfair, I will point out that when at the time they entered into their agreement of purchase and sale for their condo, they would have received the Declaration as part of the Status Certificate or the Disclosure package and they would have known right from the beginning that their condo fees were the same regardless of the size of their unit and yet they still decided to go ahead with their purchase.”
RICHARD P. HOFFMAN
Richard Hoffman has been a member of DelZotto, Zorzi LLP since 1992, practicing in the area of condominium law. He has represented condominium corporations and unit owners through all stages of the litigation process and at all levels of Ontario Courts (Superior Court of Justice, Divisional Court and Court of Appeal). He is well experienced in handling all types of condominium litigation, from applications to enforcing compliance with declarations, by-laws or rules, to handling multi-million dollar claims for budget misrepresentation. He has also advised condominium corporations of various sizes on all facets of condominium law.
Richard is presently a member of the Canadian Condominium Institute and regularly lectures on contract and agency law in the condominium context at Humber College, as well, he is a regular contributor to various condominium magazines and has contributed to the condominium section of the Toronto Star.