Georgia POA

Started by ChrisW10 • 4 replies • 2015 views

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ChrisW10 (Georgia)
Posts: 5

Posted:

Apparently, there are different rules regarding the ability to add more restrictions to land use for current members of an HOA. In particular, if an HOA is a common law HOA, it can add restrictions according to the bylaws for adding amendments. However, if the HOA submits to the Property Owner's Assocation Act, then 100% have to agree to an amendment restricting land use, such as leasing. Thus, a new restriction does not apply to a current member. All that to ask, how can I find out what type of HOA I am a member of? I don't see a reference to the POA act in the covenants. However, the HOA refers to itself as an HOA in some places and a POA in others. Thanks for any insight!

LawrenceC1 (Georgia)
Posts: 480

Posted:

Chris,

I think you may have been given bad information.

If you are a common law HOA, then any amendment that is made to the governing documents that add restrictions can be made according to the provisions for amendments in those documents (2/3, 3/4, or whatever votes to approve is mandated). However, the amendment only applies to *new* owners that purchase property after the amendment is in force. This means it could be many years before the amendment is applicable to all members, as houses sell and new owners take possession.

If you submit your Covenants to the POAA, then the same rules apply to making amendments that are written in the governing documents, but these changes affect all members of the POA immediately upon being approved.

This is one of the key benefits in adopting the POAA.

If your covenants are subject to the POAA then there will be a clause in them that say something like, "All of the Properties [...] shall be owned in fee simple and subject to the provisions of this Declaration and the Georgia Property Owners' Association Act, O.C.G.A., Section 44-3-220, et seq. The Properties subjected to this Declaration constitutes a residential property owners' development which hereby submits to the Georgia Property Owners' Association Act, O.C.G.A. Section 44-3-220, et seq. (Michie, 1982), as such act may be amended from time to time."

ChrisW10 (Georgia)
Posts: 5

Posted:

Thanks Lawrence. I found the provision in the declaration that submits to the POA Act. If the HOA amends the declaration to submit to the POA after you have moved in, then I take it you are still subject to it, rather than being grandfathered in to any previous rules? In a single amendment, our HOA submitted to the POA Act and added leasing restrictions.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By ChrisW10 on 02/05/2012 12:38 PM
In a single amendment, our HOA submitted to the POA Act and added leasing restrictions.

Our lawyer counseled us that any amendment that we wanted to apply to all homeowners had to be done after the association was submitted to the POAA.

So even if the separation was 5 minutes between the two amendments, they had to be two separate filings.

If the leasing amendment and the POAA were really rolled together, my understanding is that the leasing amendment would not apply to homeowners in place at the time of the amendment.

ChrisW10 (Georgia)
Posts: 5

Posted:

Ours is clearly in the same amendment. In the amendment that includes the lease restrictions, it states that this amendment submits the property to the POA Act. So, maybe I am not subject to the leasing restrictions, for now. My guess would be that the HOA would simply retry the amendment if the issue was raised.

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