Facts to Know About Georgia Homeowners Associations

A Georgia association’s authority comes from its declaration of covenants, articles of incorporation and bylaws — and, only if the community elected into it, from the Property Owners’ Association Act. A declaration works as a contract among all community members: owners agree to comply with the covenants and to pay assessments. By buying a home in the community an owner is deemed to have accepted those obligations.

Read this before anything else on the page. The Georgia Property Owners’ Association Act (the “POAA”, O.C.G.A. §§ 44-3-220 to 44-3-235) is opt-in, and it reaches no community that has not expressly elected into it. A declaration or amendment intending to take its benefits “shall state an affirmative election to be so governed” (Ga. Code § 44-3-222), and its benefits “may only be claimed by developments submitted to this article” (§ 44-3-235(c)). A community that never elected in is governed by its own recorded covenants and by Ga. Code § 44-5-60.

So the first question is not “what does Georgia law say?” but “which of these regimes is my community in?” Check the declaration for an express election. Answers below are marked POAA where they depend on that election, and the non-POAA position is given where it differs. Condominiums are a third regime under the Georgia Condominium Act, and a condominium created before October 1, 1975 that never amended in is a fourth — see the related laws page.

Georgia associations are run by a board of directors, initially appointed by the declarant (usually the developer) and afterwards elected by owners under the declaration. The board appoints officers, and — except where this article, Chapter 2 or 3 of Title 14, the instrument, the articles or the bylaws expressly require otherwise — the association’s powers “may be exercised by the board of directors, acting through the officers, without any further consent or action on the part of the lot owners” (Ga. Code § 44-3-231(f)).

Duties and powers include enforcing covenants, assessing and collecting fees, maintaining common areas, and acting for the association in legal matters. The articles of incorporation govern corporate structure. Eligibility rules for directors and officers are usually in the declaration, articles or bylaws.

The declaration is recorded with the land records of the county where the development lies and sets out the covenants, the powers of the board and officers, how voting and elections work, how assessments are calculated and collected, and any restrictions on the board’s powers.

Owners and occupants must comply with the instrument, with reasonable rules adopted under it and provided to owners, and with the bylaws. Non-compliance grounds an action to recover sums due, for damages, for injunctive relief or for any other remedy at law or in equity — brought by the association or, in any proper case, by one or more aggrieved lot owners on their own behalf or as a class action (Ga. Code § 44-3-223). The association may seek an injunction without first pursuing any other remedy, after notice under the instrument or, if the instrument is silent, ten days’ written notice — and no notice at all where the violation presents a clear and imminent danger to life, person or property, or where an injunction would become moot before the notice period expired.

Meetings and quorum (POAA). Members’ meetings run under the bylaws and “shall be called not less frequently than annually”, with at least 21 days’ notice of an annual or regularly scheduled meeting and at least seven days’ notice of any other (Ga. Code § 44-3-230(a)). Unless the instrument or bylaws provide otherwise, a quorum is present if persons entitled to cast more than one-third of all the votes are present at the beginning of the meeting, and it is then deemed present throughout; for the board it is one-half, unless the documents specify a larger percentage (Ga. Code § 44-3-228).

How many votes you have is set by your documents, not by statute. The POAA does not allocate votes; it deals with who may cast the votes attached to a lot. Where a lot has more than one owner and only one is present or votes, that act binds all; if more than one acts, the vote must be cast in accordance with their unanimous agreement unless the instrument expressly provides otherwise (Ga. Code § 44-3-224(a)). In an association incorporated as a nonprofit, the default is one vote per member unless the articles or bylaws provide otherwise (Ga. Code § 14-3-721(a)) — and there, members have no voting rights other than to elect directors except as the articles or bylaws specifically provide (§ 14-3-610).

The board can generally act for the association without a member vote on matters within its inherent or expressly granted powers (Ga. Code § 44-3-231(f)). But those powers are held “[e]xcept to the extent prohibited by the instrument and subject to any restrictions and limitations specified therein” (§ 44-3-231(a)), and the section does not prohibit the instrument granting further powers and responsibilities (§ 44-3-231(e)). So a declaration can take away powers the board would otherwise have, or add ones the statute does not mention.

Georgia courts give substantial deference to the declaration and articles in interpreting an association’s powers. In general a board’s exercise of its powers must be procedurally fair and reasonable, and its decisions made in good faith, reasonable and not arbitrary and capricious. Saunders v. Thorn Woode Partnership, L.P., 265 Ga. 703, 462 S.E.2d 135 (1995).

A board may adopt supplementary rules and regulations, but the statute only requires owners to comply with rules that are “reasonable”, adopted pursuant to the instrument, and provided to the lot owners (Ga. Code § 44-3-223) — three separate conditions, each of which can fail. Rules also cannot conflict with the governing documents or with state or federal law, including the federal Fair Housing Act and Georgia’s Fair Housing Law.

Where the association is a nonprofit corporation, its directors carry a statutory standard of conduct: a director must act in good faith and with the degree of care an ordinarily prudent person in a like position would exercise under similar circumstances (Ga. Code § 14-3-830(a)). There is a presumption that the process a director followed was in good faith and with ordinary care, rebuttable only by evidence that the process “constitutes gross negligence by being a gross deviation from the standard of care of a director in a like position” (§ 14-3-830(c)), and the section preserves both the business judgment rule and the volunteer immunity in Ga. Code § 51-1-20 (§ 14-3-830(d)(4), (5)).

The practical restraint is electoral: directors answer to owners at meetings that must be held at least annually, on at least 21 days’ notice for an annual or regularly scheduled meeting and at least seven days’ for any other (Ga. Code § 44-3-230(a)).

POAA. The instrument is amended by the agreement of lot owners holding two-thirds of the votes, or a larger majority if the instrument specifies (Ga. Code § 44-3-226(a)(1)). There is also a ceiling: no amendment may require the approval of owners holding more than 80 percent of the association vote, together with mortgagees holding 80 percent of the voting interest of mortgaged lots (§ 44-3-226(b)).

When the developer’s consent is required depends on where the community is in its life. During any time there is an unexpired option to add property, or the declarant has the right to control the association, the agreement required is the declarant’s plus two-thirds of the votes excluding the declarant’s own — a veto over every amendment (§ 44-3-226(a)(1)). After that period, while the declarant still owns at least one lot primarily for sale, its written agreement is needed for an amendment that would impose a greater restriction on the use or development by the declarant of the lots the declarant owns (§ 44-3-226(a)(2)(A)), and § 44-3-226(b) preserves any right to approve amendments the instrument itself gives the declarant for as long as it owns such a lot. A second limit protects existing rentals: no amendment may prohibit or restrict a nonowner occupied lot from continuing to be leased for an initial term of six months or longer under the pre-amended instrument, though the lot must conform on a conveyance for value (§ 44-3-226(a)(2)(B)).

Some amendments need no member vote at all: the association may amend the instrument, articles and bylaws as required to conform to mandatory provisions of the article or of any other applicable law without a vote of the lot owners (Ga. Code § 44-3-231(c)). So a covenant that violates fair housing law can be struck without a ballot.

Non-POAA communities are the opposite case, and this is the sharpest difference in Georgia community law. Under Ga. Code § 44-5-60(d)(4), “no change in the covenants which imposes a greater restriction on the use or development of the land will be enforced unless agreed to in writing by the owner of the affected property at the time such change is made.” That protection is expressly switched off for covenants in a condominium instrument (§ 44-3-116) and for covenants in an instrument created under or submitted to the POAA (§ 44-3-234). So a properly adopted amendment binds an objecting owner in a POAA community and generally does not in a subdivision that elected into neither Act.

An amendment becomes effective only when recorded, or at a later date the amendment specifies (§ 44-3-226(d)), and its adoption is presumed valid if suit is commenced more than one year after recording, with the burden on the challenger (§ 44-3-226(f)).

In most cases buyers learn of an association before or at closing and receive the declaration and bylaws. Because the declaration is recorded in the county land records, purchasers are also on constructive notice of the covenants, so the obligation to comply can bind an owner who never received a copy and never signed anything. Castle Point Homeowners Ass’n v. Simmons, 333 Ga. App. 501, 505–506, 773 S.E.2d 806 (2015).

Recording is what does that work. Under Ga. Code § 44-2-2(c), deeds, mortgages and liens of all kinds required by law to be recorded take effect, as against third parties who have acquired a transfer or lien binding the same property in good faith and without notice, only from the time they are filed for record.

POAA. The association must keep true and correct copies of the articles of incorporation and bylaws and all amendments at the principal and the registered offices of the association — and at the declarant’s sales office for as long as the declarant has the right to control the association. Copies must be furnished to any lot owner on request on payment of a reasonable charge (Ga. Code § 44-3-227(c)).

The association must also keep detailed minutes of all meetings of the members and of the board; detailed and accurate financial records, including itemized records of all receipts and expenditures; and any books and records required by law or necessary to reflect its affairs accurately (Ga. Code § 44-3-231(d)). At the annual meeting, “comprehensive reports of the affairs, finances, and budget projections of the association shall be made to the lot owners” (Ga. Code § 44-3-230(a)).

If your association is a nonprofit corporation you have a second, separate set of rights, and they are stronger in places. Ga. Code § 14-3-1602(a) and (b) give a member eight categories of record on five business days’ written notice with no reason required — among them the articles and bylaws currently in effect, the minutes of all members’ meetings for the past three years, all communications to members generally for the past three years, and a list of the names and business or home addresses of current directors and officers. Board-meeting minutes, accounting records and the membership list come on the same notice but only on a proper purpose reasonably relevant to your interest as a member, described with reasonable particularity (§ 14-3-1602(c), (d)). If the association refuses, the superior court may order inspection — at the association’s expense for the tier-one categories (§ 14-3-1604(a)) — and shall award your costs and reasonable attorney’s fees unless the association proves it refused in good faith on a reasonable basis for doubt (§ 14-3-1604). See the Nonprofit Corporation Code.

An association must keep “[d]etailed and accurate financial records, including itemized records of all receipts and expenditures” (Ga. Code § 44-3-231(d)(2)), and at the annual meeting “comprehensive reports of the affairs, finances, and budget projections of the association shall be made to the lot owners” (Ga. Code § 44-3-230(a)).

Beyond that, the method for adopting budgets and calculating assessments is set by the declaration, articles or bylaws, and the board must follow it. Owners can act against a non-compliant board by removing directors, at the next election, or in court on whatever cause of action the facts give them — § 44-3-231(g) itself routes negligence and wilful-misconduct claims to the association rather than creating one.

In a nonprofit association a member may also request the latest annual financial statements in writing and the corporation shall furnish them — a balance sheet as at the year end and a statement of operations, prepared on a GAAP basis if the corporation’s statements are, and accompanied either by the accountant’s report or by a statement from the chief executive officer about the basis of preparation (Ga. Code § 14-3-1620).

The POAA does not require member approval for a rate increase. Any increase must follow the declaration — so if the declaration requires a member vote, the board must obtain one.

Special assessments are gated on the instrument, and the page you may have read elsewhere usually omits that gate. The whole of Ga. Code § 44-3-225(a) operates only “[t]o the extent that the instrument expressly so provides”. Where it does: common expenses benefiting fewer than all lots are specially assessed “equitably among all of the lots so benefited, as determined by the board”; expenses occasioned by the conduct of fewer than all occupants, or their licensees or invitees, are specially assessed against the lots whose occupants caused them; and expenses significantly disproportionately benefiting all lots are assessed equitably among all lots as the board determines.

The carve-out is narrower than it is often described. Section 44-3-225(a)(4) prevents an association from specially or disproportionately allocating the cost of periodic maintenance, repair and replacement of common area or of lots the association is obliged to maintain — but it expressly does not apply to limited common areas designated as such in the instrument and assigned to fewer than all lots. It is not a blanket ban on special assessments for maintenance.

POAA. All sums lawfully assessed — the lot’s share of common expenses, fines, and reasonable charges for materials or services furnished at the owner’s request — are the personal obligation of the lot owner from the time they fall due, and constitute a lien on the lot (Ga. Code § 44-3-232(a)).

The add-ons are available “[t]o the extent that the instrument provides”, and each is a ceiling rather than a rate (§ 44-3-232(b)):

• a late or delinquency charge not in excess of the greater of $10.00 or 10 percent of the assessment or installment not paid when due;
• interest at a rate not in excess of 10 percent per annum;
• the costs of collection, including court costs, the expenses required for the protection and preservation of the lot, and reasonable attorney’s fees actually incurred; and
• the fair rental value of the lot from the institution of an action until the foreclosure sale or until the judgment is otherwise satisfied.

Fines may be imposed only if and to the extent provided in the instrument (Ga. Code § 44-3-223). Except where emergency conditions involving public safety or the preservation of property require otherwise, before an association can collect or be awarded attorney’s fees it must send written notice by certified mail or statutory overnight delivery identifying the outstanding fines or delinquent fees, allow 30 days from receipt to pay, and provide an itemised list of the fees claimed — and in a bench trial the judge shall review the fees for reasonableness and enter an order before they can be awarded (Ga. Code § 44-3-235(d), (e)).

For associations not subject to the POAA, a Georgia court has held that interest is capped at 7 percent a year unless the declaration expressly authorises a higher rate. Northside Bank v. Mountainbrook of Bartow Homeowners Ass’n, Inc. (Ga. Ct. App. 2016). Separately, to the extent provided in the covenants, § 44-5-60(e) makes the obligation to pay assessments and fees include the costs of collection, including reasonable attorney’s fees actually incurred.

Assessments are generally owed per lot, so a lot owned by two people is assessed once. Under the POAA, unless the instrument provides otherwise, the grantee is jointly and severally liable with the grantor for unpaid assessments up to the time of conveyance, without prejudice to recovering them from the grantor — but if either party requests the payoff statement described below, the grantee and successors are not liable beyond the amount stated in it (Ga. Code § 44-3-225(c)).

An owner cannot escape assessments by not using anything. No lot owner other than the association is exempt from liability for an assessment “for any reason whatsoever, including, without limitation, abandonment, nonuse, or waiver of the use or enjoyment” of the lot or the common area. There is one exception: on the owner’s request a lot may expressly be made exempt under the instrument until a certificate of occupancy is issued for a dwelling on it — and the lot is denied its voting rights meanwhile (§ 44-3-225(b)).

The POAA does not require an annual statement of assessments, though declarations often do. It does give a right to a payoff statement: a lot owner, a mortgagee, a person under contract to purchase, or a lender considering a loan may request in writing, delivered to the registered office of the association, a statement of past-due assessments with late charges and interest. If the association fails to furnish it within five business days of receipt, the lien is extinguished as to the title or interest that purchaser or lender acquires. The statement binds the association and every lot owner, and a fee of up to $10.00 may be required only if the instrument so provides (Ga. Code § 44-3-232(d)).

POAA. The lien arises automatically when sums fall due, and “[t]he recording of the declaration… shall constitute record notice of the existence of the lien, and no further recordation of any claim of lien for assessments shall be required” (Ga. Code § 44-3-232(a)). Associations often record one anyway to avoid argument.

The lien is prior and superior to all other liens except three: ad valorem taxes on the lot; a first priority mortgage or any mortgage recorded before the declaration; and a secondary purchase money mortgage, provided neither the grantee nor a successor grantee is the seller of the lot (§ 44-3-232(a)(1)–(3)). The condominium lien in § 44-3-109 is near-parallel but not identical — it has four exceptions rather than three, the extra one being a lessor’s lien at § 44-3-109(a)(3). Do not read one for the other.

What the lien may include — late charges, interest, costs of collection and the fair rental value during an action — is governed by § 44-3-232(b) and depends on the instrument providing for it.

Outside the POAA the statutory lien does not exist. A non-POAA association’s remedies come from its covenants and from general law, and it should take advice on what it must record to secure a claim; § 44-5-60 does not create an automatic lien or a recording rule of its own.

POAA. A lien may be foreclosed not less than 30 days after notice is sent by certified mail or statutory overnight delivery, return receipt requested, to the owner both at the lot and at any other address the owner has designated to the association in writing. The notice must specify the amount of assessments then due together with authorised late charges and the rate of interest accruing (Ga. Code § 44-3-232(c)).

That notice is a precondition to foreclosure. Nothing in the section prohibits an ordinary action to recover the sums for which the lien exists — § 44-3-232(e) says so expressly — so an association may sue for a personal judgment without the 30-day foreclosure notice.

POAA foreclosure is judicial. The lien “may be foreclosed by the association by an action, judgment, and court order for foreclosure in the same manner as other liens for the improvement of real property, subject to superior liens or encumbrances” — and such an order shall not affect the rights of holders of superior liens to exercise their own powers (Ga. Code § 44-3-232(c)). There is no non-judicial power of sale for an assessment lien.

Three hard numbers sit in the same subsection. No foreclosure action is permitted unless the lien is at least $2,000.00. The 30 days’ notice above must have run. And the lien lapses four years after the assessment or installment first became due and payable — so the four-year clock runs per assessment, not from the association’s decision to act.

Unless prohibited by the instrument, the association may bid on the lot at any foreclosure sale, and may acquire, hold, lease, encumber and convey it (§ 44-3-232(c)).

A superior mortgage survives the sale, because the foreclosure is expressly subject to superior liens. The former owner remains personally obligated on the mortgage and on assessments that came due while they owned the lot. A purchaser at the sale takes no personal obligation on the old mortgage, but the lender may foreclose if it is not paid. Where a sale produces more than the superior debt, the surplus goes to the association’s lien and then to the former owner. The POAA contains no post-sale redemption right; in practice an owner avoids the sale by paying what is due, with costs, before it happens.

Assessments are the personal obligation of the lot owner from the time they became due (Ga. Code § 44-3-232(a)), so an owner remains liable for assessments falling due until title transfers.

On a sale, the grantee is jointly and severally liable with the grantor for unpaid assessments up to the conveyance unless the instrument provides otherwise, and is not liable beyond the amount shown in a requested payoff statement (Ga. Code § 44-3-225(c)) — which is why that five-business-day statement matters so much at closing.

Foreclosure by a mortgage lender is treated differently. Where the holder of a first priority mortgage or a qualifying secondary purchase money mortgage — or any other person — acquires title as a result of foreclosure of that mortgage, that person and its successors are not liable for, and the lot is not subject to a lien for, assessments chargeable on account of any period before they acquired title. The unpaid share instead becomes a common expense collectable from all lot owners (§ 44-3-225(d)).

Georgia has no agency that regulates homeowners associations. No department licenses them, inspects them, audits them or hears owner complaints about covenant enforcement, and no provision of the POAA creates one. That is the single most important thing to know before looking for help: in Georgia the enforcement mechanism for most association disputes is a court, not a regulator. Within the POA Act, “court” is defined as the superior court of the county where the development or any part of it is located (Ga. Code § 44-3-221(4)) — a definition of the term used inside Article 6, not a general venue rule.

Three bodies do have relevant but limited roles. The Secretary of State maintains the corporate registry in which every incorporated association appears — its status, registered agent and annual registration — and may administratively dissolve a nonprofit corporation that fails to deliver its annual registration within 60 days of the due date, or that lacks a registered agent or office for 60 days or more (Ga. Code § 14-3-1420). The Georgia Commission on Equal Opportunity investigates housing discrimination complaints under Georgia’s Fair Housing Law. And the Georgia Real Estate Commission licenses real estate professionals, a category that can include community association managers.

The precise scope of real estate and contractor licensing is set by rules outside the statutes hosted on this site; check directly with the relevant board before relying on it.

An owner who believes they have been discriminated against in housing because of race, color, religion, sex, disability, familial status or national origin has rights under both the federal Fair Housing Act and Georgia’s Fair Housing Law (Ga. Code § 8-3-202(a)). Note the Georgia statute’s word is “disability”, and that “familial status” reaches not only a parent or custodian of a child under 18 but also a person who is pregnant or in the process of securing legal custody (§ 8-3-201(10)).

The two routes have different deadlines and different forums. A complaint to the administrator — the Fair Housing Division of the Georgia Commission on Equal Opportunity — must be filed not later than one year after the discriminatory housing practice occurred or terminated (§ 8-3-208(a)). A civil action under the Georgia Act may be brought in an appropriate superior court not later than two years after the practice occurred or terminated (§ 8-3-217(a)(1)) — whether or not a complaint was filed, but barred by a conciliation agreement made with your consent, or once an administrative law judge has commenced a hearing on the record. A complaint may also be filed with HUD under the federal Act, which has its own deadlines and its own court route.

Disability requests are governed by more than one rule, and the order matters. Section 8-3-202(a)(7) carries three duties — reasonable modifications at the disabled person’s expense, reasonable accommodations in rules, policies, practices and services, and accessible design for covered multifamily dwellings first occupied after March 13, 1991. And § 8-3-223 provides that compliance with the federal Fair Housing Amendments Act of 1988 is deemed compliance with the disability definition in § 8-3-201(7) and with the whole of § 8-3-202(a)(7)(B), and that the federal Act prevails on any conflict about the treatment of persons with disabilities. Georgia’s separate disability chapter (§§ 30-4-1 to 30-4-5), whose service-dog definition excludes an animal that solely provides comfort or emotional support, does not answer the fair housing question.

The Americans with Disabilities Act is a different statute again: it applies to places of public accommodation, so whether it reaches any part of a particular community depends on how that part is used, not on the fact that an association exists.

Where harassment is criminal it should be reported to local law enforcement. Where it concerns collection of a debt by a debt collector, the federal Fair Debt Collection Practices Act allows a civil action and a complaint to the Consumer Financial Protection Bureau.

Most problems are best resolved through the association’s own processes: raise the issue at a meeting, elect different directors, or organise owners to amend the covenants. Keep written records of communications — they are what later demonstrates that an association acted arbitrarily.

An association is not the final arbiter of a dispute with its own members. A homeowner may bring suit; where the POA Act applies, the “court” it refers to throughout is the superior court of the county in which the development or any part of it is located (Ga. Code § 44-3-221(4)). Outside the Act, ordinary venue rules apply and are worth checking with a lawyer.

The POAA expressly routes tort claims to the association: an action “alleging or founded upon negligence or willful misconduct by any agent or employee of the association or in connection with the conditions of any portion of the instrument which the association has the responsibility to maintain… shall be brought against the association”, and no lot owner is precluded from bringing it by virtue of membership. A judgment is a lien against the association’s assets (Ga. Code § 44-3-231(g)). Separately, § 44-3-231(h) gives the association capacity and standing to sue and defend in its own name over the lots and common area it must administer, repair or maintain.

Owners may also sue other non-compliant owners: an action for non-compliance is maintainable by the association “or, in any proper case, by one or more aggrieved lot owners on their own behalf or as a class action” (Ga. Code § 44-3-223).

Where the association is a nonprofit corporation there is a further route. A derivative proceeding may be brought by any director, by members holding 5 percent or more of the voting power, or by 50 or more members regardless of voting power — after a written demand on the corporation and 90 days, unless it is rejected sooner or waiting would cause irreparable injury (Ga. Code §§ 14-3-741, 14-3-742).

And in a non-POAA subdivision of no fewer than 15 plots, owners can take control of a dormant association outright where it fails to incorporate or maintain an annual registration, appoint directors, hold meetings, produce a budget or pay taxes on common property — on 30 days’ notice, with individual standing and mandatory attorney’s fees if the owners prevail (§ 44-5-60(d)(5)). See the related laws page.

Litigation between neighbours is slow, expensive and corrosive, and it is usually worth exhausting the informal routes first. Often a conversation with a board member, or raising the point at a members’ meeting, resolves what a solicitor’s letter would only harden.

Where that fails, voluntary mediation is normally cheaper and faster than suit, and a neutral third party’s view is sometimes enough to move an entrenched position on either side. Georgia does not require mediation before an HOA suit, and the POAA contains no pre-suit dispute-resolution procedure. The Georgia hub lists the Georgia Office of Dispute Resolution and other referral services.

Before spending anything, it is worth re-reading the declaration with the question “which regime am I in?” in mind. A great deal of Georgia HOA advice circulating online states POAA rules as though they were general law, and the answer to many disputes turns on whether the community ever elected in. The Georgia HOA law guide sets out the four regimes.