Could a Maryland court fix an error in a condominium's declaration or plat, like a wrong percentage share of common expenses, without every owner's consent?

Plain-English summary

On behalf of the Governor's Commission on Condominiums, Cooperatives, and Homeowners Associations, a state senator asked the Attorney General whether Maryland courts could already correct errors in a condominium's declaration or plat, the recorded title documents that create a condominium and set each unit's percentage share of common expenses. The Commission was considering legislation to let a unit owner or the council of unit owners petition a court to fix such errors directly. The opinion concluded that, while Maryland courts generally have equity jurisdiction to reform written instruments that do not reflect the parties' true agreement, condominium declarations and plats posed unusual problems: the Condominium Act required unanimous written consent of all unit owners and mortgagees to amend a declaration or plat, a later-purchasing unit owner was never a party to those documents and might lack standing to sue for reformation, and it was unclear whether one owner could seek to reform a document that affected everyone in the building. Because relying on general equity principles by analogy was less reliable than clear statutory authority, the Attorney General recommended the General Assembly pass legislation expressly authorizing courts to correct declaration or plat errors in limited circumstances, and suggested the legislation specify the burden of proof a petitioning owner would need to meet. As an editor's note to the opinion later confirmed, the General Assembly did exactly that in 1983 and 1984, amending the Condominium Act to lower the consent threshold to 80 percent and to let the council of unit owners petition courts to correct specific description and percentage-interest errors.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a Maryland condominium owner sue in 1983 to fix a mistake in the building's declaration, like a wrong percentage share of expenses?
It was uncertain. The opinion found that while courts generally have equity power to reform written instruments that don't reflect the parties' true intent, an individual unit owner faced real obstacles: they typically weren't a party to the original declaration, may have lacked standing, and the Condominium Act required unanimous consent from every owner and mortgagee to amend the document, which courts might be reluctant to bypass.

Why did the developer's own error create a problem years later?
The opinion explained that a developer might modify unit sizes or layouts during construction in a way that made the declaration's stated percentage shares of common expenses inaccurate, but once units were sold, the developer had little incentive to fix its own error or pay for the unanimous consent process needed to amend the declaration.

Did the Attorney General recommend the legislature do anything specific?
Yes. Beyond simply confirming the legal uncertainty, the opinion recommended the General Assembly write clear correction legislation and specify, in the statute itself, what standard of proof (such as the "clear and convincing evidence" standard used in ordinary contract reformation suits) a court should require before amending a declaration or plat.

Did the legislature actually act on this recommendation?
Yes, according to the opinion's own editor's note. The General Assembly amended the Condominium Act in 1983 and 1984 to lower the unanimous-consent requirement to 80 percent of unit owners and to let the council of unit owners petition a court to correct an "improper description of the units or common elements" or an "improper assignment of percentage interests."

Background and statutory framework

The Maryland Condominium Act, Title 11 of the Real Property Article, required the unanimous written consent of all unit owners and mortgagees before a condominium declaration or plat could be amended (RP §§11-103(c) and 11-105(e)), a stricter rule than the two-thirds consensus needed to amend condominium bylaws (RP §11-104(e)). The declaration specifies each unit's percentage interest in the condominium's common expenses (RP §11-103(a)(5)), and the opinion explained that a later change to a unit's size or features during construction could leave that stated percentage inaccurate relative to the finished building, an error the developer who caused it had little incentive to fix after selling the units.

The opinion reviewed general Maryland equity principles allowing courts to reform written instruments that do not reflect the parties' true agreement (citing Hoffman v. Chapman and Flester v. Ohio Casualty Insurance Co.), but found the condominium context different in important ways: an individual unit owner was typically not a party to, or in privity with the developer regarding, the recorded declaration and plat, raising doubt about standing to sue for reformation; it was unclear whether a single owner could seek to reform a document affecting all other owners in the complex (citing Andrews v. City of Greenbelt); and Maryland courts might hesitate to grant equitable relief that would circumvent the Condominium Act's express unanimous-consent requirement (citing Smith v. Bowes and Wise). The opinion noted the Act's legislative history showed the General Assembly had deliberately required unanimity because of the importance of these recorded title documents, and had recently rejected a proposal to lower that threshold to 75 percent (Chapter 246, Laws of Maryland 1981). Given that uncertainty, the opinion recommended clear legislation authorizing court-ordered correction in limited circumstances, and suggested borrowing the "clear and convincing evidence" standard used in ordinary contract reformation suits (citing Painter v. Delea and Lazenby v. F. P. Asher Jr. & Sons) so that courts would not alter a recorded declaration merely because an owner had become dissatisfied with one of its provisions (citing Ray v. Eunice). An editor's note appended to the opinion confirms the General Assembly acted on this recommendation, amending RP §§11-103 and 11-105 in 1983 and 1984 to permit amendment by 80 percent consent and to authorize the council of unit owners to petition a court to correct an improper unit or common-element description or an improper percentage-interest assignment.

Citations

Statutes:

• RP §11-103(c) and §11-105(e) of the Real Property Article (unanimous consent requirement to amend a condominium declaration or plat)
• RP §11-103(a)(5) (declaration must state each unit's percentage interest in common expenses)
• RP §11-104(e) (two-thirds consensus to amend condominium bylaws)
• RP §11-107 (unit owner's share of common expenses)
• RP §11-124(c) and §11-124(e) (declaration supersedes bylaws in case of conflict)
• Chapter 246, Laws of Maryland 1981 (rejected proposal to lower consent threshold to 75%)
• Chapter 525, Laws of Maryland 1983, and Chapters 266 and 580, Laws of Maryland 1984 (subsequent amendments implementing the opinion's recommendation, per the editor's note)

Cases:

• Hoffman v. Chapman, 182 Md. 208, 213-14 (1943)
• Flester v. Ohio Casualty Insurance Co., 269 Md. 544, 556 (1973)
• Andrews v. City of Greenbelt, 293 Md. 69, 81 (1982)
• Smith v. Bowes and Wise, 38 Md. 463, 466 (1873)
• Ray v. Eunice, 201 Md. 115, 125, 127 (1952)
• Painter v. Delea, 229 Md. 558, 564 (1962)
• Lazenby v. F. P. Asher Jr. & Sons, Inc., 266 Md. 679 (1972)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CONDOMINIUMS

Declarations, Plats, Bylaws, Real Property, Title Documents, Correction Or Reformation, Courts, Equity Jurisdiction, Need For Legislation To Permit Correction Of Condominium Documents.

February 17, 1983

The Honorable Jerome F. Connell, Sr.
Senate of Maryland

On behalf of the Governor's Commission on Condominiums, Cooperatives, and Homeowners Associations, you have asked for our views on the present ability of the Maryland courts to amend condominium declarations, plats, or bylaws. We understand that the Governor's Commission is considering legislation designed to expressly authorize a unit owner or council of unit owners to petition a court for correction of errors or omissions in a condominium declaration or plat.

As discussed below, we believe that legislation of this sort would be a useful addition to the Maryland Condominium Act. The specific legislation in question would amend portions of the Condominium Act, Title 11 of the Real Property Article ("RP" Article), to provide, in certain circumstances, a feasible alternative to a rather rigorous statutory requirement: RP §§11-103(c) and 11-105(e) now require the unanimous written consent of all unit owners and mortgagees before amendments may be made to a condominium declaration or plat. (As introduced, Senate Bill 114/House Bill 322 would provide for judicial correction of a condominium declaration; Senate Bill 258/House Bill 637, in turn, would provide for judicial correction of either a declaration or a plat.)

I
Background

As a general rule, the Maryland courts may entertain petitions for the correction or reformation of written instruments in cases of inaccuracy or erroneous omissions or insertions. See Hoffman v. Chapman, 182 Md. 208, 213-14 (1943). For example, when a document imperfectly reflects the mutual intention of the parties, e.g., by erroneously describing property to be conveyed, the court, exercising its equity jurisdiction, may change the instrument to conform to the original agreement. 182 Md. at 211-12. Similarly, where one party has reason to know that the written document does not conform to the original intention of the parties, but the other party is ignorant of the discrepancy, the court may equitably reform the instrument. See Flester v. Ohio Casualty Insurance Co., 269 Md. 544, 556 (1973).

However, errors or ambiguities in condominium declarations or plats present unique problems. For example, a condominium plat may inaccurately describe the finished structure, or, as has recently come to our attention, the declaration may incorrectly reflect a unit owner's percentage interest in the condominium's common expenses, i.e., the owner's proportionate share of water, property tax, maintenance, repair, and similar expenses. See RP §11-107. (Unlike an erroneous plat description, these latter discrepancies might not be readily cured by reference to other recorded documents [cf. §11-124(c)] or, even, by reference to the existing finished structure itself.)

A condominium's declaration and plat are title documents, drafted by the developer and its agents, in order to create and define the condominium regime. For development, construction, and financing purposes, the declaration and plat are recorded in the land records, often before actual construction has begun. The declaration itself specifies the percentage interest of each unit in the common expenses. RP §11-103(a)(5). In practice, however, a later modification of a unit's size or accoutrements by the developer might result in inequity as to the proportion of common expenses assessed in the declaration to each unit. This apparently is the kind of error that the proposed legislation is designed to redress.

II
Correction of Errors Under Current Law

Clearly, the developer and draftsmen would have reason to know of inaccuracies in the declaration resulting from modification of the initial unit plans. But, once the units are sold, the developer might have little incentive to raise the issue, let alone undertake the expense of obtaining the requisite unanimous consent needed to correct the developer's own error. And, absent express legislation of the type proposed, it is not certain that the eventual unit owner would always have standing to bring an equity suit to reform the instrument, as he or she was neither a party to the recorded documents nor, as to those documents, in privity with the developer. As such, the fact pattern here is somewhat different from the types of contract instruments that equity courts customarily are called on to reform. It is also uncertain whether an individual unit owner, by him- or herself, could petition for reformation of a document that significantly affects other unit owners in the condominium complex. See Andrews v. City of Greenbelt, 293 Md. 69, 81 (1982). Moreover, as indicated above, the law now expressly provides that amendments to a condominium declaration or plat may only be made by unanimous written consent of all unit owners and mortgagees. RP §§11-103(c) and 11-105(e). The Maryland courts might hesitate to entertain petitions that would circumvent this express statutory requirement. See Smith v. Bowes and Wise, 38 Md. 463, 466 (1873).

To be sure, notwithstanding these potential problems, there are analogies that may be looked to in support of the viability of such an equity suit. Nevertheless, analogies are obviously less reliable than express legislation such as that proposed.

According to the Condominium Act's legislative history, the apparent rationale behind requiring consent of all persons having a substantial interest in the condominium is based on the importance of these recorded title documents, which contain essential information about the condominium regime. Committee on Condominiums, Cooperatives and Homeowners Associations, Report and Analysis of S.B. 1028, at p. 4, 7 (March 6, 1981). In fact, a specific proposal to substitute a 75% consensus of unit owners (and first mortgagees) for the unanimity requirement was recently rejected. Chapter 246, Laws of Maryland 1981. (A bill introduced this year, S. B. 300, would substitute an 80%-requirement for the present unanimity rule.)

Nevertheless, in terms of practical condominium administration, achieving the necessary unanimity to reform an inaccurate declaration or plat is both expensive and inexpedient. By statutorily granting unit owners or the council express standing to petition for court-ordered reformation in limited circumstances, fundamental errors of the type mentioned above may be readily corrected. (Condominium bylaws, on the other hand, may be amended by a two-thirds consensus of the unit owners, unless a higher percentage is required in the bylaws. RP §11-104(e). We are aware of instances in which a condominium declaration has been effectively augmented by means of amending the bylaws. This, however, might not always be a workable alternative; in cases of conflict, the declaration will supersede the bylaws. RP §11-124(e). On the other hand, the bylaws of a condominium may be amended at any time by two-thirds, rather than all, of the unit owners. It may be unnecessary, therefore, to extend the proposed legislation to cover bylaws as well.)

III
Recommendations

Obviously, a court should not alter a recorded instrument merely because a unit owner has become dissatisfied with one of the declaration's provisions. Ray v. Eunice, 201 Md. 115, 125, 127 (1952). To this end, therefore, the proposed legislation might be amended to specify the burden of proof that must be sustained by a petitioner before a court will amend the instrument in question. For example, in a contract reformation suit before a court of equity, the petitioner must establish by "clear and convincing" evidence (i) that "the written agreement was not the agreement intended by the parties", and (ii) "what . . . agreement [had been] contemplated ... at the time [the instrument] was executed". Painter v. Delea, 229 Md. 558, 564 (1962). See also Lazenby v. F. P. Asher Jr. & Sons, Inc., 266 Md. 679 (1972). The petitioner must establish that the error or omission was common to all parties to the instrument.

Needless to say, these standards might prove burdensome for a unit owner who has purchased property subject to a pre-recorded declaration and plat with which the unit owner had no prior involvement. We suggest, therefore, that the General Assembly consider specifying, in the legislation itself, the particular standards that it believes a court should apply in a declaration or plat reformation proceeding.

Stephen H. Sachs, Attorney General
Avery Aisenstark, Chief Counsel, Opinions and Advice
Lynette M. Phillips, Staff Attorney, Opinions and Advice

Editor's Note: RP §§11-103 and 11-105 have since been amended by Chapter 525, Laws of Maryland 1983, and Chapters 266 and 580, Laws of Maryland 1984: (i) to permit amendment of a condominium declaration or plat with the "written consent of 80 percent of the unit owners"; and (ii) to authorize the council of unit owners, under certain conditions, to petition a court to correct "an improper description of the units or common elements" in a declaration or plat or to correct "an improper assignment of percentage interests" in a declaration.

The preceding Opinion was originally written as a letter of advice. Because it provides relevant background information for those interested in the history of the new legislation, it is published here in a slightly revised format.