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NowackHoward HOA attorney community swimming pools reopen in Georgia

Please Note: This blog is designed for general information only. The information presented at this site is not intended to provide legal advice or a legal opinion and should not be construed as the formation of an attorney-client relationship. Specific questions should be directed to an attorney at NowackHoward, LLC or to another lawyer.

By Executive Order entered May 12, 2020, Governor Brian Kemp removed outdoor swimming pools from the list of facilities prohibited from operating under his April 23, 2020 Executive Order. More recently, Governor Kemp issued a new Executive Order on May 28, subjecting community swimming pools to 21 mandatory measures imposed on all business establishments, non-profit corporations and organizations considered non-Critical Infrastructure with in-person operations.

Although swimming pools may now open in Georgia, the May 12 and May 28 Orders have left HOA and condominium association boards scrambling to know whether and how to open their community’s pool. Directors are in the position of a diver looking into murky and choppy waters and deciding whether to jump. HOA attorneys offer a response: Yes, you can jump, but should you?

NowackHoward HOA lawyers Georgia Kemp Swimming Pool Executive Order

Please Note: This blog is designed for general information only. The information presented at this site is not intended to provide legal advice or a legal opinion and should not be construed as the formation of an attorney-client relationship. Specific questions should be directed to an attorney at NowackHoward, LLC or to another lawyer.

Community swimming pools are subject to 21 mandatory measures in Governor Kemp’s May 28 Executive Orderimposed on all business establishments, corporations, non-profit corporations, and organizations that are not Critical Infrastructure that have in-person operations. These requirements can be found on pages 12-13 here. HOA and condominium associations, as the owner or operator of community pools, are responsible for implementing, adhering to, and enforcing these requirements. Of these measures, there are two that our HOA lawyers believe associations will have the most difficulty following:    

  1. Prohibiting Gatherings during hours of operation;
  2. Enforcing Social Distancing of non-cohabitating persons while present on such entity’s leased or owned property;

nowackhoward hoa collections georgia lawyers

Please Note: This blog is designed for general information only. The information presented at this site is not intended to provide legal advice or a legal opinion and should not be construed as the formation of an attorney-client relationship. Specific questions should be directed to an attorney at NowackHoward, LLC or to another lawyer.

When owners in HOAs and condominium associations become delinquent paying their assessments, associations must have secure liens to protect their interest in HOA collections on past due amounts. Liens take HOA collections one step further by helping to ensure the association is entitled to collect the past due principal, late fees, interest and costs of collection, including reasonable attorney fees actually incurred. Liens also give associations secured status in the event a delinquent owner files for bankruptcy.

NowackHoward Georgia Community Association AttorneyDuring times of uncertainty, when you and your homeowners are both navigating new waters, it may seem like there is nothing your community association can do to help put people at ease. With swimming pools closed and clubhouse access restricted during the pandemic, there may not seem like much left for community associations to offer residents in the way of amenities… or is there? Coming from a community association attorney, there may be more resources at your disposal than you realize that can help ease your owners’ minds in difficult times.

While they may seem like small things, offering your homeowners a few treats and activities will help take their minds off the current situation. It may also contribute to a healthy, happier community during the pandemic.

NowackHoward Community Association Attorney AtlantaThe evening of April 23, 2020, Governor Kemp issued an Executive Order authorizing nonprofit corporations, including condominium and homeowners’ associations, to hold membership meetings by means of remote communication, such as telephone conference or virtual meeting platform.

Prior to the April 23, 2020 Order, while Georgia law permitted community association Board of Directors’ meetings to be held via remote communication in which all Directors present could hear and speak to one another, Georgia law did not permit membership meetings held via remote communication.  The April 23, 2020 Order extends a prior March 20, 2020 Governor’s Executive Order providing such remote membership meeting rights to for-profit corporations to non-profit corporations. The text of the April 23, 2020 Order can be found here and the March 20, 2020 Order here. After reviewing the orders, contact a professional community association attorney to clarify any questions.

Associations Should Not Waive AssessmentsNowackHoward HOA Collections

Homeowner and condominium associations should continue to address delinquent accounts even during the COVID-19 pandemic to avoid significant harm to association finances. The associations that successfully come out of this crisis will be those in which the members understand the payment of assessments is a “must pay” bill and where the Board is flexible in working with the members to enable payments to continue

In times of financial distress, homeowners in condominiums and homeowners’ associations facing personal hardship may ask their community association to consider stopping assessment collections.  However, assessments are the lifeblood of community associations, and the community could crumble without that financial support. Unlike many businesses that potentially have additional assets that can keep it afloat for a time, community associations only have one revenue stream: assessments.

Most governing documents, as well as state laws, do not allow for HOA and condominium assessments to be waived and doing so could also inadvertently harm the association in the process. For this reason, Boards should not waive assessments even during times of crisis.

NowackHoward Community Association Attorney GeorgiaWith the arrival of spring, any community association attorney will tell you there is often an uptick in the observation of covenant violations throughout residential communities. As lawns come back to life and properties require more frequent attention, HOA Boards should prepare to properly deal with violation complaints.

Why the Sudden Onset of Complaints?

With more homeowners working remotely and sheltering in place, familiarity will breed contempt (as observed by Aesop thousands of years ago). Boards should expect to receive more complaints of covenant violations as residents notice issues during their walks, bike rides and increased time in the community.

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.