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The Community Counsel - Our Blog for Your Association

help0ing-handsFred Rogers of the PBS television show “Mr. Rogers Neighborhood” often related a quote his mother told him when he encountered scary news as a young boy: “Look for the helpers.  You will always find people who are helping.”   

Most members of community association Boards of Directors are helpers by nature.  That is why they volunteer to serve their communities.  So, it is not surprising that some of the most frequent questions we at NowackHoward are receiving from our clients relate to how the Board can help community members in this time of crisis due to the COVID-19 coronavirus.  

Importantly, a community association Board of Directors does not have a duty under the law to protect its members from the COVID-19 coronavirus or to otherwise protect the health or safety of its members.  However, under Georgia law, if an owner of property or a person in control of property voluntarily undertakes an action which gives people who use the property a feeling of safety or an impression that the possibility of bodily injury is reduced, the person/entity is held to the same standard of care that Georgia law imposes for mandatory duties.  So, if a Board, on behalf of its association, takes on such a duty, it exposes the association to potential liability if it is negligent in performing the voluntarily assumed duty.  In other words, a good deed could punish an association if personal injury lawyers start advertising for clients who want to blame someone for causing a person’s contamination.  

nowackhoward-ga-community-association-covid-19-coronavirus-questionsWith the rapidly evolving COVID-19 pandemic, homeowners association lawyers are already seeing many condominium and homeowner associations ask difficult questions and seek advice on how to handle certain decisions during this time.  High-rise condominiums, particularly, are struggling to navigate necessary social distancing practices; however, every community association with common areas is faced with the issue of curtailing avoidable social interaction. Boards and community managers are asking homeowners association lawyers what actions should or can be implemented to address these day-to-day interactions and limit the spread of COVID-19.

What follows are questions and answers the homeowners association lawyers at NowackHoward are now fielding daily from more than 500 community association clients located throughout Georgia. These community associations include high-rise buildings, vertically attached units, single-family homes and 55+ communities.

coronavirus-150x114Over the past few days, every glance at an online news source or e-mail inbox seems to bring fresh news of more cancellations of gatherings due to COVID-19 (commonly known as the coronavirus), ranging from entire sports seasons to schools, concerts and other events. Given the constant stream of cancellations and guidance from public health officials concerning social distancing, many community association boards of directors are struggling with how to conduct association business without in-person meetings. Luckily, Georgia law provides options for boards to keep community association operations going even when in-person meetings are not possible or advisable.

Membership Meetings

For those associations with annual membership meetings planned for this spring, Georgia law allows for postponement of the annual membership meeting should the board deem it advisable.   The Georgia Nonprofit Corporation Code (the Code) provides at O.C.G.A. Section 14-3-701(f) that “failure to hold an annual or regular meeting at a time stated in or fixed in accordance with a corporation’s bylaws does not affect the validity of any corporate action.” In other words, even if an association’s bylaws provide for the annual membership meeting to occur this spring, the board can postpone the annual meeting without adversely affecting any corporate action taken by the board or by the membership at the postponed annual meeting.

nowackhoward condominium lawyers

The name, condominium owner associations (COA), is often conflated with a homeowners association (HOA), when they actually have very different roles to play. Condominium lawyers discuss the intricacies involved with being a COA board member, and how to protect your organization from the unique risks posed to it.

While it’s always necessary to review your association’s bylaws, being aware of the shortlist of essential duties you must perform will help you avoid legal trouble down the line.

NowackHoward hoa attorney georgia

If you’re a Homeowner’s Association Board Member, understanding the intricacies of your responsibilities can feel overwhelming – especially so if you’ve just joined or have never served on an HOA board before. If you want to avoid the need for an hoa attorney in Georgia, take care to adhere to your roles and responsibilities as laid out by the state.

As we all know, mistakes happen. Understanding the top five common mistakes HOA board members make will help you avoid legal issues in the future and build a stable board for your condominium or neighborhood.

picIn August, the US Department of Housing and Urban Development (“HUD”) released new Federal Housing Administration (“FHA”) guidelines specifically for condominium units. Starting October 15, 2019, condominiums will be eligible for single unit approval for FHA-insured loans (“spot approval”). Before this relaxed approach, only 6.5% of condominium projects in the United States were eligible for FHA loans. By enacting this spot approval for FHA loans and making it easier to obtain FHA backed financing on condominium units, HUD will increase the number of eligible condominium buyers on the market.

What does this mean for condominium associations? Previously, HUD approved only entire condominium projects for FHA loans, not individual units. If a condominium project was not approved for FHA loans, then a potential buyer could not obtain FHA-backed financing on a unit in the project. The new law enables FHA loans to be available even if the condominium project in which the unit was located was not previously approved.

shutterstock_379140319Condominiums and townhomes within the city of Atlanta will see higher solid waste fees in their July 1st bills. This stems from the Atlanta City Council’s June 3, 2019 approval of an amendment to the solid waste fee schedule ordinance that changes the way that certain multi-family residential categories are billed.   Under the amended ordinance, multi-family dwellings such as condominiums and townhouses will be charged a $63.39 per dwelling unit annual fee, plus an additional charge based upon the development’s square footage of street frontage and type (i.e. commercial, mixed-use, residential). In contrast, single-family detached homes are charged $454 per year.

While the June 3rd ordinance amendment will increase rates for condominiums and townhomes, it does represent a significantly lower increase than that originally adopted by the Council in November 2018. The November 2018 increase would have raised solid waste fees to $400 per parcel, with each individual condominium or townhouse unit being considered a separate parcel.

shutterstock_190754174Have you had your pool rules reviewed by legal counsel?

With pool season underway, it is important to make sure that your community pool rules do not expose your association to liability.

The Fair Housing Act (FHA) prohibits housing providers from discriminating based on a protected class, including “familial status.” The purpose of the law is to protect every American’s fundamental right to fair housing, including families with children. That includes the use of amenities.

Community associations (including HOAs, POAAs and Condominiums) are subject to the FHA and must be careful not to run afoul of its protections. One of the most common ways that associations—and their board members and managers—find themselves in hot water under the FHA is by denying families with children equal use of the common areas through a rule or restriction, including pool rules that target children.

shutterstock_516771484For most of us, Spring is a time of renewal.   However, for community association boards of directors, Spring can be a hectic time of negotiating and implementing landscape contracts, making sure that the community pool is set to open on time, and handling the lawn maintenance violations that weren’t obvious during the winter, among many other tasks. With such a lengthy to-do list, board members can lose sight of the commitment to community that inspired them to volunteer in the first place.  

If that is happening to your board, a good means of harnessing the Spring spirit of renewal and reaffirming board members’ commitment to the association is for the board to vote to adopt and abide by the international Community Associations Institute’s Model Code of Ethics for Community Association Board Members. The link to this Model Code can be found here.

shutterstock_276537854With Super Bowl LIII right around the corner, now is a great time to plan for the impact on your community and to make a game plan.

Tens of thousands of fans, workers and volunteers will descend on Atlanta for the “Big Game” in just over two weeks, and most of those people need a place to stay and park. That will certainly pose challenges for many communities.

With the increasing popularity of Airbnb, VRBO and other home-sharing platforms, many homeowners will be looking to cash-in on the fandom. Thus, we recommend reviewing your governing documents to confirm the scope of any leasing restrictions, the association’s enforcement powers and the due process requirements. It’s also a good time to speak with your general counsel about short-term rentals and other leasing issues. Remember, our retainer includes complimentary telephone consultations with Board members and community managers concerning association operations and governance issues.

Parking is also going to be in high demand in Atlanta in the days leading up to February 3, 2019. Thus, we also recommend reviewing any parking restrictions in your governing documents and discussing parking enforcement—including towing and booting—with your general counsel. Check-in with your attorney and have a conversation about what is permitted and how to handle violations.