Un-permitted floor in condo is costing condo money. Do I have a case? Small Claims court advice needed. - Michael McVinney
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Un-permitted floor in condo is costing condo money. Do I have a case? Small Claims court advice needed.

Location: Boston, MA

Situation: 3 unit condo (Unit B, 1, 2). I bought Unit 1 about 1.5 years ago. Was really busy the first year (doing home renovations, wedding etc.) and the second year, when I had a chance to look into condo finances, I realized that Unit 2 was playing the same condo fee as me, even though she has an entire extra floor 700 sq ft (with kitchen, living space, bathroom, laundry) that she rents out to her nephew.

On looking into it further, here's what is happening:

a. the extra floor is un-permitted, Unit 2 doesn't pay any tax for it

b. Unit 2 is refusing to pay condo fee for the extra floor, and claims "it is exclusive use common area". The Master Deed doesn't state it is exclusive use. The Master Deed says it belongs to Unit 2. (But cleverly, something I didn't catch while signing it, the square footage does not include the un-permitted space even though the description says it belongs to Unit 2)
c. Unit 2 neither pays tax for this extra 700 sq ft, nor pays condo fees for it
d. The existence of the un-permitted space is costing the condo association extra money — the person living there uses condo water, and also our Master Insurance is higher because of the existence of this extra floor (it has only one egress, and hence we are paying extra)
I don't understand how she is can it is 'exclusive use'. She rents it out. There is electrical and heat and a whole kitchen. It's cordoned off with a door and I can't access it. If it is 'exclusive use', then it means the HOA owns it right? We can tell her to evict her nephew and use that space only as storage, right?
I don't want to do all these nasty things. I just would like her to pay her fair share of condo fee, which she is refusing to do. What kind of case should I file in a small claims court? — She is not paying condo fee for extra un-permitted 700 sq ft (But do I have a case? As far as the city is concerned, this 700 sq ft doesn't exist.)

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