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The Community Counsel - Our Blog for Your Association

homesIt’s not often that you see a homeowners association compared with an indestructible fictional character.   However, you may be surprised to learn terminating a homeowners association may be just about as difficult as terminating the Terminator.   One of the reasons for this is that abolishment of a homeowners association involves two steps, each of which is fairly complex on its own: 1) termination of the Declaration of Covenants; and 2) dissolution of the corporation. 

As you may know, the Declaration of Covenants (“Declaration”) contains the restrictions and obligations, or “covenants”, binding both the community association and the individual owners.  These covenants provide for the obligation to pay assessments and for architectural controls that restrict changes to the lots.  

treedamageFor many community associations, the wet and stormy summer we’ve been experiencing here in Georgia means an uptick in damages from falling water-logged trees and branches.  Given that association-owned common area and individually-owned units and lots often lie in close proximity to one another, these falling branches and trees give rise to the inevitable question:  who pays for the damage? 

Under basic Georgia common law, ownership of a tree is determined by the property upon which the tree’s trunk is located.  If the tree’s trunk is located entirely on one piece of property, then that tree belongs to the owner of the property on which it sits.  If the tree trunk stands on two or more pieces of property, then each property owner owns that portion of the  tree that is located on his or her property and has an easement of support from the other landowners who share the tree.  That means that each landowner has the right to require that the other landowner not use his part of the tree in such a way as to unreasonably damage or destroy the whole tree. 

playgroundBoard members often ask me about potential liability to the Association stemming from maintaining or adding a playground on Common Property.  Frequently, they assume that the Association will automatically be held liable if anyone gets hurt on the playground equipment. Fortunately, that is not the case.  Georgia Code Section 51-3-23 protects the owners of property used for recreational purposes from liability.  That Section provides that the owner of land who permits the use of the property for recreational purposes does not guarantee the premises are safe for any purpose or create any duty of care for the landowner.  In other words, a person uses recreational facilities at their own risk.

aerial view of suburban Austin Texas

There are two types of homeowners associations (generally subdivisions) in Georgia—- those that are subject to the Property Owners Association Act (POAA) and those that are not.  Associations not subject to the POAA are known as common law homeowners associations.  The members of a common law association can vote to amend their declaration to submit to the terms of the POAA.

Common law associations who do not adopt the POAA are subject to O.C.G.A. 44-5-60 (d) (4). That statute provides that covenants imposing greater restrictions on the use of land cannot be enforced against a property owner without that owner’s consent.  That means that if an amendment is adopted by the vote of the number of members required by a declaration, the amendment can be enforced only against the owners who consented to the adoption of the use restriction. That is not the situation with the POAA.  Amendments approved by the required number of members apply to all owners, not just those that voted in favor of the use restriction.

filminginneighborhoodWith the number of feature films and television shows filmed in the Atlanta metropolitan area in the recent past, Atlanta is quickly earning the nickname the “Hollywood of the South.”  And, as movie and television producers look for new Atlanta area locations in which to film, they are increasingly turning to local condominium and homeowner associations to provide an authentic backdrop to their productions.

While the prospect of having your association featured on the big (or little) screen is an exciting one, as any Hollywood star knows, having a solid contract in place before filming begins is key to making sure that your association gets the most out of its “star” turn.  Here are a few key pointers to keep in mind if Hollywood comes calling for your association: