By Aglaia Pikounis

Nearly two years ago, residents of a South End condominium development squabbling over fees filed a lawsuit to have their assessments reduced.

Owners of the units that were deemed affordable want their fees cut to reflect their condo's value instead of size.

The case is just one of several that have spurred affordable housing advocates and attorneys to support a bill that would give developers more flexibility in how they set condo fees at mixed-income developments.

The proposed legislation would enable developers to charge the same fee to market-rate and affordable unit owners or to charge the affordable unit owner a lower fee based on its value. Under the bill, if the affordable condo owners are charged the same fee, the selling price would be reduced so the owner isn't paying more than 30 percent of their income on housing costs.

Supporters say the bill would help clear up some confusion and disputes that arise when market-rate unit owners protest having to pay higher fees or when affordable condo owners complain that they're forced to pay the same fees as market-rate unit owners.

'Lack of Direction' By law, condo fees are based on the percentage interest that owners have in a development's common areas, and an owners' percentage interest is based on the relative fair value of the unit.

Some developers take into account deed restrictions that prohibit units from being sold at market-rate prices in determining the relative fair value of a unit and as a result charge lower condo fees.

But some developers ignore the restriction when determining the value and the condo fees are similar for market-rate and affordable unit owners. The state's condominium statute doesn't give guidance on how to set the value and fees.

"There's no direction or authorization to do 'X' or prohibition to do 'X.' There's a lack of direction on how to set relative fair value in these circumstances," said Thomas Moriarty, an attorney and chairman of the Community Associations Institute Massachusetts Legislative Action Committee.

The ambiguity has resulted in disputes at some condo projects. In the case involving the South End condos, which are located at the corner of Clarendon Street and Warren Avenue, the owners of the affordable units think it's unfair that their units' restricted values aren't being taken into account.

They want the court to order the condo trustees to amend the master deed so their fees can be reduced. The case is still pending in Land Court.

"The plaintiffs, as owners of the affordable units, have been damaged and will be damaged in the future by the assessment of condominium fees and special charges in accordance with their percentage undivided interest in the condominium. Such charges substantially exceed the amounts that would be due if the percentage undivided interest of each unit were properly fixed in accordance with its fair-market value," the complaint reads.

"The idea behind this piece of legislation is 'lets give the developers the discretion to do it' - to take into consideration or not" the relative fair value, explained Moriarty, who is a partner at Marcus Errico Emmer & Brooks in Braintree.

Aaron Gornstein, executive director of the Citizens' Housing and Planning Association, said in some urban areas where developments have a larger percentage of affordable units, market-rate condo owners are burdened with a bigger share of the condo fees.

Developers have complained that in such projects it's difficult to sell market-rate units because buyers are concerned about picking up a disproportionate share of the condo fees, Gornstein said.

Owners who are paying lower fees also may have diminished voting rights within a condo association, said Gornstein.

The bill received a favorable recommendation for the Joint Committee on Housing. Supporters say there hasn't been any opposition to the legislation.

"There really isn't a lot of pushback. It isn't the kind of bill that is going to probably be met with much concern from the marketplace," Moriarity said. "We're hopeful that it's going to move [forward]."