A condo unit owner discovers he/she is paying greater monthly maintenance fees than their neighbour even though their unit is smaller. What can the unit owner do?

An amendment to the provisions of the registered condominium declaration, which specifies the proportion of maintenance fee contribution applicable to an owner’s unit, is necessary to solve this matter.

To amend the declaration, it is important to determine further information.

If the unit owner lives in a highrise condo, he/she should look at the floor plates (white print plans available at the local registry office) for the floors above and below their unit to see if their situation is unique or the same as other floors. If unique, the unit owner may have a better chance of establishing an error was made by the declarant (the developer who registered the declaration).

The unit owner may also want to check to see if the common expense contribution percentages listed in Schedule D of the declaration for of all the condo units add up to 100 per cent. If it does not, there is good evidence of an error and grounds for a court application to correct.

While Section 110 of the Condominium Act permits an error apparent on the face of the declaration to be corrected by application to the director of titles, there are additional complications with amending percentage contributions, not the least of which is that if a unit owner’s common expense contribution percentage goes down, their neighbours’ must go up, even if only slightly.

If the unit owner’s declaration was registered recently, the owner may be able to obtain information and, possibly, a sworn affidavit from the declarant that an error was made.

Some condominium corporations have helped correct such an error on a going forward basis; others take the position that it is not up to the condominium corporation to correct an error which, it may argue, arises from carelessness in a unit purchaser’s title search. After all, the percentage and contribution amount are clearly disclosed in the status certificate received before closing.

With or without the condominium corporation’s support, the unit owner has a right to apply to the director of titles or the Ontario Superior Court. If the unit owner can establish error, the owner has the right to an order amending the declaration.

However, the unit owner will likely not be successful in claiming reimbursement for past payments due to the negative impact on the condominium corporation’s finances, and the title search and status certificate circumstances (referred to above).

Along with the unit owner’s further investigation, the owner should make a reasonable assessment of the likely benefit of correcting the error compared to the anticipated cost of the court application.

John Deacon is a senior partner at the condominium law firm of Deacon Spears Fedson & Montizambert (DSFM) Barristers and Solicitors. Together with his three partners and three associate lawyers, John provides expertise in resolving condominium legal issues on behalf of unit owners and more than 500 condominium corporation clients in Ontario.