Q. Can a condominium association charge all unit owners the same fees? MGL Chapter 183A Sections 5(a) and 6(a)(1) seem to require the association to determine the percentage of undivided interest for each unit and to access fees in accordance with these percentages. Our board has stated that they charge everyone the same fees because it is easier. Are they acting within the law? If not, what can be done about this?
— Looking for Fairness
A. “Your board is not acting within the law,” says Dean T. Lennon, a partner at the law firm of Marcus, Errico, Emmer & Brooks PC, in Braintree, Massachusetts. “As you note, section 6(a)(i) requires that fees be assessed to the owners based upon their respective percentages of undivided interest in the common area and facilities. These percentages will be set forth in the Master Deed, typically in Exhibit A.
“Thus, your board is legally required to assess fees pursuant to the stated percentages. If the board wishes to change to any other method of assessment, your condominium docs will have to be amended. Most docs will require the unanimous consent of all owners whose percentage is changed in order to amend for the purpose of changing percentages of interest. Thus, your board will have the impossible task of getting some owners to agree to increase their own fee while simultaneously, some of their neighbors see their fee reduced. While it is theoretically possible to amend to change percentages of interest, it is impossible on a practical level.
“As for what can be done with it, I suggest asking the board to attend their next meeting to discuss the issue. Hopefully, by pointing out the clear legal constraints that prohibit what the board is attempting to do, they will reconsider. If they don’t reconsider, please consult counsel to take action.”