Georgia Condominium and Community Association Law: A Research Guide  

 

Edited and published by Atlanta attorney Jed Morton. Contact Jed by visiting his firm's site at www.mortonlawfirm.com.

 

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Introduction

A.   Scope

B.   Background

Primary Sources

A.   Statutes

B.   Cases

Secondary Sources

A.   Books and Treatises

B. American Law Reports

C. Legal Encyclopedia

D. Uniform Laws

E. Law Review, Journal, and other Articles

F. Loose Leaf Services

Legislative Information

A.   The Georgia Condominium Act

B.   The Georgia Property Owners’ Association Act

Computerized Research

A.   Lexis/Nexis

B.   Westlaw

Miscellaneous Resources

A.   Interest Groups and Associations

B.   Authors

 

 

 

        

Section I:  Introduction

 

A.  Scope

 

This purpose of this website is to compile multiple sources of information which would be of use to anyone interested in Georgia Condominium and Homeowners’ Association Law.  Although primarily devoted to Georgia law, reference material from all jurisdictions is included where it proves useful for general or background information. 

 

This Guide is intended for use by attorneys, condominium and homeowners’ association members, and association leadership as a tool or a starting point for researching issues of law related to the rapidly growing and increasingly important field of structured community ownership of property.

 

B.  Background

 

The predecessors of modern incarcerations of community living and common ownership of property have been variously traced to ancient cave dwellers, nomads, the pre-Caesarian Roman Empire, and 5th Century B.C. Hebrews.  While their historical genesis is widely disputed, scholars agree that condominiums were first afforded statutory recognition under the Napoleonic Code of 1804.  The first “state” statute in this country was enacted by Puerto Rico in 1958; most states soon followed that example by adopting variations of either the Puerto Rico statute or the 1962 Federal Housing Administration Model Condominium Statute.  These statutes answered an increasing need for regulation of community owned property but soon lost pace with changes in this rapidly growing field.  More comprehensive “second generation” community property laws followed in the late 1970’s.  It was in that context, in 1980, that the National Conference of Commissioners on Uniform State Laws drafted the Uniform Condominium Act (UCA).  Many states subsequently incorporated substantial portions of the UCA in their statutes. 

 

The Primary Source information in Section II of this Guide is devoted to current Georgia statutes (the Georgia Condominium Act and the Georgia Property Owners’ Association Act) and their interpretation through Georgia case law.  Georgia has adopted only portions of The Uniform Act.  It is linked under the Secondary Source list, infra, so that the interested researcher may compare and contrast it with Georgia law.   

 

 

Section II:  Primary Sources

 

A.  Statutes

                  

The Georgia Condominium Act, O.C.G.A. § 44-3-70 to § 44-3-117 and the Georgia Property Owners’ Association Act, O.C.G.A. § 44-3-220 to § 44-3-235 (2004) are the primary statutory authority.  The two areas of law are similar and often merge (for a discussion of the similarities and differences, see 1 Ga. Jur. Property § 6:78).

 

When I first created this site back in 2004, the following table linked directly to the specific code sections at the Georgia General Assembly’s web index of un-annotated Georgia code. However, that is no longer the case, and users will now find that clicking on any of the code section links will bring up the free Lexis index page for the Georgia code. The good news is, Lexis will keep up with changes the General Assembly may make to the code sections perhaps better than the General Assembly could be counted on to do. The bad news is, users will now need to navigate from the Lexis main page to the particular code section needed. The names of the respective code sections are included in this Research Guide to facilitate locating a particular area of interest. To use the Lexis site, first click "OK" on the opening page to get to the index. On the left side of the Index (next to the Title Numbers on that first page) you will see small circles around + signs. I call these "expand" symbols. If you click on them, that section will expand to show the subsections.

 

Note: If you want to keep this site open while you search the code on the Lexis site, instead of normally clicking the link, right click and select either "Open in new tab" or "Open in new window." This will make it easier to go back and forth between my site and the code sections. If you simply click on a link, you will navigate away from this site completely and be taken to the Lexis site.

 

To get to the Georgia Condo Act and the Property Owners' Association Act, first click on the expand symbol next to Title 44; then click on the expand symbol next to "Chapter 3: Regulation of Specialized Land Transactions." The Georgia Condo Act is Article 3 of this Chapter, and the Property Owners' Association Act is Article 6. You can click on the expand symbols next to those Articles to see the code sections, which should reflect the names as I have listed them in the table below.

 

The table highlights the similarities and differences between the condominium and property owners' association law by showing that almost every section of the Property Owners’ Association Act is mirrored in a section of the Condominium Act, but the reverse is not true.  There are many sections of the Condominium Act that are inapplicable to Homeowners’ Associations.  Thus the Georgia Condominium Act contains 47 sections of code, while the Property Owners’ Association Act is comprised of only 15.  

 

The section titles are the official titles as listed in the Official Code of Georgia.  The information enclosed in brackets [] is information I have added in an attempt to clarify the subject matter in that code section.

 

 

Georgia Condominium Act Section

Title of Georgia Condominium Act Section

Title of Georgia Property Owners’ Association Act Section

Georgia Property Owners’ Association Act Section

§ 44-3-70

Short Title

Short Title

§ 44-3-220

§ 44-3-71

Definitions

[includes definition of “unit owner”]

Definitions

§ 44-3-221

Persons deemed to be “lot owner” [expands § 221 definition for purposes of officers and board members]

§ 44-3-229

§ 44-3-72

Creation of condominium

Creation of property owners’ development; affirmative election to be governed by article

§ 44-3-222

§ 44-3-73

Sufficiency of descriptions of condominium units; description of undivided interest in common elements

N/A

N/A

§ 44-3-74

Recording condominium instruments, plats, plans, and encumberances; record books

N/A

N/A

§ 44-3-75

Construction and validity of condominium instruments; conflicts and inconsistencies; severability

N/A

N/A

§ 44-3-76

Compliance with condominium instruments, rules, and regulations; means of enforcement

Compliance with provisions of instrument and with rules and regulations; penalties for noncompliance

§ 44-3-223

§ 44-3-77

Contents of declaration

N/A

N/A

§ 44-3-78

Allocation—Interests in common elements

N/A

N/A

§ 44-3-79

Allocation—votes in association; how votes cast; majority vote requirements

Voting at association meetings

§ 44-3-224

§ 44-3-80

Liability for common expenses; how assessments made

Assessment of expenses; exemption from liability; liability for unpaid assessments

§ 44-3-225

§ 44-3-81

Reallocation of interests in common elements, votes, and liability for common expenses

N/A

N/A

§ 44-3-82

Assignments and reassignments of limited common elements

N/A

N/A

§ 44-3-83

Recording of plats and plans; contents; completion of structural improvements; certification by registered architect or engineer

N/A

N/A

§ 44-3-84

Use of previously recorded plans in lieu of new plans

N/A

N/A

§ 44-3-85

Liability for failure to follow plats or plans; easements; liability for damage

N/A

N/A

§ 44-3-86

Leasehold condominiums; lessor’s rights and powers; owner’s rights and powers; liens; performance of covenants

N/A

N/A

§ 44-3-87

Conversion condominiums; notice; offer to convey; time periods; rights of tenants

N/A

N/A

§ 44-3-88

Conversion of convertible spaces; amendment to the declaration effecting conversion; reallocation of sums assessed prior to conversion; treatment of convertible spaces not converted

N/A

N/A

§ 44-3-89

Expansion of condominium; amendment to declaration

N/A

N/A

§ 44-3-90

Alterations within units; combining two or more units

N/A

N/A

§ 44-3-91

Relocation of boundaries between units; application for relocation; amendment to declaration; plans and plats; recording

N/A

N/A

§ 44-3-92

Subdivision of units; application for subdivision; amendment to declaration; plans and plats; recording

N/A

N/A

§ 44-3-93

Amendment of condominium instruments

Amendment of instrument; presumption of validity in court action

§ 44-3-226

§ 44-3-94

Damage or destruction of units; restoration; vote not to restore; allocation of insurance deductible

N/A

N/A

§ 44-3-95

Effect of mortgages and liens; foreclosure; release

N/A

N/A

§ 44-3-96

Separate titles and taxation

N/A

N/A

§ 44-3-97

Eminent domain; compensation; reallocation of interests; court determination; amendment to declaration

N/A

N/A

§ 44-3-98

Termination of condominium; creation of tenancy in common; distribution of assets; transfer of mortgages and liens

N/A

N/A

§ 44-3-99

Withdrawal of submitted property; reallocation tremaining units of undivided interest in common elements; contents of amendment; transfer of mortgages and liens

N/A

N/A

§ 44-3-100

Incorporation of association; name; articles and bylaws; membership; organization

Incorporation as prerequisite to submission of article; requirements as to corporate documents; board of directors

§ 44-3-227

§ 44-3-101

Control of association by declarant; surrender of control to unit owners; liability for books and records; cancellation of leases and contracts

N/A

N/A

§ 44-3-102

Meetings of the association; notice; reports

Frequency of meetings; notice

§ 44-3-230

§ 44-3-103

Quorums at meetings of association or board

Presence of quorums at meetings

§ 44-3-228

§ 44-3-104

Directors and officers; eligibility

N/A

N/A

§ 44-3-105

Powers and duties as to upkeep of the condominium; access; liability for damage

N/A

N/A

§ 44-3-106

Powers and responsibilities of association; tort actions

Powers and duties of association; legal actions against agent or employee of association

§ 44-3-231

§ 44-3-107

Insurance Coverage

N/A

N/A

§ 44-3-108

Common profits; application to expenses; surplus

N/A

N/A

§ 44-3-109

Lien for assessments; personal obligation of unit owners; notice and foreclosure; lapse; right to statement of assessments; effect of failure to furnish statement

Assessments against lot owners as constituting lien in favor of association; additional charges against lot owners; procedure for foreclosing lien; obligation to provide statement for amounts due

§ 44-3-232

§ 44-3-110

Restraints on alienation and rights of first refusal; statement of waiver or failure to exercise rights or restraints; effect of failure to furnish statement

N/A

N/A

§ 44-3-111

Sales of residential condominium units for residential occupancy; information required to be furnished by seller; buyer’s right to void contract; limitations periods; attorney’s fees; penalty for willful violation

N/A

N/A

§ 44-3-112

Escrow of deposits or other payments made prior to closing

N/A

N/A

§ 44-3-113

Applicability of this article; effect on existing condominiums

Applicability of article

§ 44-3-235

Application of article

§ 44-3-234

§ 44-3-114

Effect of article upon land use, zoning, building, and subdivision laws; effect of Code Section 44-3-92

N/A

N/A

§ 44-3-115

Construction of this article; substantial compliance; procedure for curing defects in recorded instruments

Liberal construction of article; substantial compliance; curing of defects by amendment

§ 44-3-233

§ 44-3-116

Limitations in certain restrictive covenants inapplicable

N/A

N/A

§ 44-3-117

(code section added in 2007)

Application of subcondominiums; creation of subcondominium; subassociation; insurance; effect of certain liens; imminent domain; description of certain units; assessments. N/A N/A

§ 44-3-71

Definitions

[includes definition of “unit owner”]

Persons deemed to be “lot owner”

§ 44-3-229

 

 

 

                  

 

B.  Cases

 

A few Georgia cases are available at the Georgia Appellate Courts website, http://www.appeals.courts.state.ga.us/opinions/.  The index is searchable by keyword only.  Thus, the user must count on her creative use of keywords, as well as a bit of luck, in order to retrieve any specific case.

 

I saw an interesting case argued at the Georgia Supreme Court in November of 2007. The issue was whether a purchaser of a condominium tax lien becomes responsible for the condo dues going forward from the date of the tax lien purchase, or whether the later foreclosure of the lien triggers that obligation. The Supreme Court decided the case on a technicality, so the issue is still unresolved. Lessons? Purchasers of condominium tax liens should do so with a healthy dose of caveat emptor, as they may be on the hook for the condo assessments during the entire statutory redemption period--even though they have no right to occupy or do anything else with the property. Another potential pitfall is that some condominium associations may, as a matter of strategy, simply sit back, relax, and allow the late fees and interest pile up without notifying anyone. Lesson for condo associations: pay attention to who's buying tax liens. You may acquire another pocket to reach into to satisfy unpaid assessments.

 

It probably won't be long before this issue comes up again in the lower courts. Maybe next time proper discretionary appeal procedures will be followed. That of course will force the Court to make a decision on a very thorny issue, and one for which very good arguments exist on both sides. My opinion is that the tax lien purchaser should not be liable for any condominium assessments until he could have acted to extinguish the lien and perfect title. If he continues to delay beyond that point and fails to follow the proper procedures to extinguish the right of redemption and then quiet the title, he does so at his own peril with respect to the condo assessments.

 

                 1. Cases involving owners’ failure to pay assessments:

 

                  

Citation

Summary and Holding

Frantz v. Piccadilly Place Condo. Ass’n, 278 Ga. 103, 597 S.E.2d 354 (2004)

Georgia Supreme Court upheld Condominium Association’s right under O.C.G.A. 44-3-76 to suspend delinquent owner’s access to utilities paid from common funds, after Association obtained monetary judgment against unit owner for non-payment of assessments.

Slaton v. Vill. Oaks Condo. Ass’n, 259 Ga. App. 186, 576 S.E. 2d 587 (Ga. Ct. App. 2003).

Unit owner failed to state a claim upon which relief could be granted in action to force Association to amend governing documents to provide a remedy for allegations of untimely repairs to his condominium unit.  Owner refused to pay his monthly assessments in protest, and Association filed a lien on his unit.  Court upheld trial court grant of summary judgment to Association.

McCarter v. La Hacienda Condo. Ass’n, 255 Ga. App. 68, 564 S.E.2d 483 (Ga. Ct. App. 2002)

Unit owner sued Association for slander and to recoup alleged overpayment of assessments.  Association countersued for delinquent assessments.  Basis for owner’s slander claim was a wage garnishment Association had filed with owner’s employer.  The Court of Appeals affirmed the trial court’s grant of summary judgment for the Association as to owner’s claim and its counterclaim.

Atlanta Georgetown Condo. Ass’n v. Chaplin, 255 Ga. App. 460, 509 S.E.2d 729 (Ga. Ct. App. 1998)

Resident owner of a condominium unit stopped paying assessments, claiming the assessments benefited some, but not all, unit owners.  Owner argued that an issue of fact existed under O.C.G.A. § 44-3-80 (b) (1).  The Court of Appeals reversed the trial court and granted summary judgment for the Association, holding that § 44-3-80 did not require special assessments when the condominium documents did not expressly provide for them.

Fontaine Condo. Ass’n v. Schnacke, 230 Ga. App. 469, 496 S.E.2d 553 (Ga. Ct. App. 1998)

Association obtained a judgment against unit owner for nonpayment of assessments, and suspended utility service to owner’s unit pursuant to O.C.G.A. § 44-3-76.  The Court of Appeals reversed a trial court decision for the unit owner, holding that the owner’s responsibility to pay assessments is “an absolute and unequivocal obligation,” and Association was not required to exhaust other remedies before suspending owner’s utility service under that code section.

Heard v. Whitehall Forest E. Homeowner’s Ass’n, 230 Ga. App. 261 (Ga. Ct. App. 1997)

In action by Association against Unit owner to recover unpaid assessments, the Court of Appeals held that obligations to pay assessments, while contractual in nature, are more properly classified as covenants running with the land, for statute of limitations purposes.

Chattahoochee Chase Condo. Ass’n, Inc. v. Ruben, 221 Ga. App. 724, 472 S.E.2d 420 (Ga. Ct. App. 1996)

A condominium unit owner sold 99% of his interest in a unit, and claimed that he was then only liable for 1% of the assessments.  The Court of Appeals reversed a trial court judgment for owner, holding that he was jointly and severally liable for all assessments due while he was a co-owner.

Forest Villas Condo. Ass’n, Inc. v. Camerio, 205 Ga. App. 617, 422 S.E.2d 884 (Ga. Ct. App. 1992)

Association sued unit owner for unpaid assessments.  Owner countersued, claiming Association had failed to perform its obligation to perform maintenance and repairs on owner’s units.  The Court of Appeals, in holding for the Association as to both issues, found that “there is no legal justification for a condominium owner to fail to pay valid assessments,” and that the unit owner’s obligation to pay assessments is independent of the Association’s obligation to provided services.  

 

 

                 2. Cases involving foreclosures on condominium units and unpaid assessments:

 

 

Citation

Summary and Holding

Dunhill Condo. Ass’n v. Gregory, 228 Ga. App. 494, 492 S.E.2d 242 (1997)

This case is too complicated to be adequately summarized here.  The Appeals Court thoroughly explained and interpreted O.C.G.A. §§ 44-3-80 (f) and 44-3-109(a)(4), as to when a second purchase-money mortgage takes priority, in a foreclosure, over unpaid assessments.  The issue hinges on whether the mortgagee is defined as a “seller” within the meaning of the Georgia Condominium Act.  

N. Decatur Courtyards Condo. Ass’n, Inc. v. Casey, 217 Ga. App. 617, 458 S.E.2d 676 (1995)

This is another case in which the dispute involves unpaid assessments and foreclosure of a second purchase money mortgage.  The issue here is more about whether the sale transaction took place before or after the addition of language to O.C.G.A. 44-3-109(a)(4) which renders owners who are also foreclosing mortgagees liable for unpaid assessments.  But the discussion of the two applicable statutes is helpful.

Casey v. N. Decatur Courtyards Condo. Ass’n, Inc., 213 Ga. App. 190, 444 S.E.2d 361 (1994)

Owner/seller sold his condominium unit but failed to record the deed for 19 months.  Association sued owner/seller for unpaid assessments from the date of sale through the date of recordation.  The Association’s by-laws provided that the unit “owner” was responsible for paying assessments, and defined “owner” as the record title holder of the unit.  Owner/seller argued that this definition was in conflict with the definition of “unit owner” in O.C.G.A. § 44-3-71.  The trial court granted partial summary judgment to the Association, holding owner/seller responsible for assessments for the time period between sale and recordation.  The Court of Appeals, in rejecting owner/seller’s claim that the Association by-laws definition of “owner” conflicted with the Act, affirmed the grant of summary judgment to the Association with respect to the assessments, but remanded for a determination of the amount in arrears.

Kingsmill Village Condo. Ass’n, Inc. v. Homebanc Fed. Sav. Bank, 204 Ga. App. 900, 420 S.E.2d 771 (1992)

Association filed unjust enrichment claim against foreclosing bank for assessments prior to foreclosure, which Association had paid.  The trial court granted the Bank’s motion to dismiss, and the Court of Appeals affirmed, holding that O.C.G.A. § 44-3-80(f), which provides that a foreclosing mortgagee is not liable for nor is the unit subject to a lien for any pre-foreclosure assessments, pre-empted the Association’s unjust enrichment claim. 

First Fed. Sav. Bank of Ga. v. Eaglewood Court Condo. Ass’n, Inc., 186 Ga. App. 605, 367 S.E.2d 876 (1988)

Association billed foreclosing bank for a pro rata share of unpaid assessments, per O.C.G.A. § 44-3-80(f).  Association’s claim included attorney’s fees and late payment penalties.  A divided Court of Appeals reversed, holding that the attorney’s fees and penalties were not “assessments” within § 44-3-80(f).  A four-judge dissent argued that the attorney’s fees and penalties were “assessments,” within the Act.

Finch v. Summertree Condo. Ass’n, Inc., 157 Ga. App. 686, 278 S.E.2d 123 (1981)

Owner appealed trial court grant of directed verdict to Association, which sued owner for unpaid assessments of previous owner.  Owner claimed that he acquired title pursuant to an action in lieu of foreclosure and was thus not liable for any pre-sale assessments.  The Court of Appeals affirmed the trial court, holding the owner and the previous owner jointly liable for all unpaid assessments prior to the sale.

 

 

                 3. Cases involving liability of Associations for injuries sustained on their premises:

 

                                     

Citation

Summary and Holding

Bradford Square Condo. Ass’n, Inc. v. Miller, 258 Ga. App. 240, 573 S.E.2d 405 (2002)

Plaintiff unit owner filed wrongful death action against Association in connection with the murder of her husband in the Condominium parking lot during a robbery.  The Association denied liability and moved the trial court for summary judgment.  Appeal followed denial of Association’s motion.  The Court of Appeals reversed, holding that the Association’s documents define the Association’s duties as to common areas such as parking lots.  The Declaration of Condominium provided that, “the Association is not a provider of security and shall have no duty to provide any security on the condominium property.  The obligation to provide security lies solely with each unit owner individually.”  Thus, the Association had no duty to owner in this regard and could not be held liable for owner’s husband’s death.

Sacker v. Perry Realty Services, Inc., 217 Ga. App. 300, 457 S.E.2d 408 (1995)

Sacker, a resident of a condominium, sued her Association and Perry, their management company, after she fell in their poorly lit parking lot, over a railroad tie used to mark parking spaces, but which was out of place.  The trial court granted Defendant summary judgment.  The Court of Appeals reversed, holding that, (1) as an invitee on the Association common areas, she was owed a duty by the Association to protect her from unreasonable risks of which it had superior knowledge; (2) the management company was on notice of the condition that caused the invitee to trip and fall; (3) the Association could not evade its liability by claiming that the management company was an independent contractor; and (4) the evidence of negligence presented issues that were proper for a jury to resolve.  The Appeals Court also noted that the homeowner was not precluded from bringing a negligence action against the Association by virtue of her ownership of an interest in the common areas or her membership in the Association [O.C.G.A. § 44-3-106(g)].  

Powell v. Woodridge Condo. Ass’n, Inc., 206 Ga. App. 176, 424 S.E.2d 855 (1992)

Condominium unit owner was injured when she fell on the stairs connecting her unit to the parking lot.  She sued the Association for negligence.  The trial court granted summary for the Association, and the Court of Appeals affirmed, holding that the Association was not liable for Plaintiff’s injuries because Plaintiff’s knowledge of the hazardous condition presented by the steps was equal to the Association’s knowledge.

 

 

                 4. Cases involving disputes with developers:

 

 

Citation

Summary and Holding

Salinas v. Skelton, 249 Ga. App. 217, 547 S.E.2d 289 (2001)

Purchaser sued condominium developer after purchaser discovered that asbestos was present in the insulation near a boiler adjacent to her unit.  Evidence indicated that developer knew about the asbestos and had constructed a wall over it, but had failed to inform purchaser of the existence of the asbestos.  The Court of Appeals reversed a summary judgment for developer and remanded the case to proceed on purchaser’s claims against developer.

 

 

 

                 5. Procedural Cases

 

                                     

Citation

Summary and Holding

Piedmont Arbors Condo. Ass’n, Inc. v. BPI Constr. Co., 197 Ga. App. 141, 397 S.E.2d 611 (1990)

Condominium Association and several individual owner plaintiffs sued Defendant construction company over alleged construction defects in common areas and individual units.  The Superior Court dismissed the Association from the action, holding that the Declaration of Condominium stated that, “Association shall not be entitled to initiate any legal action against anyone on behalf of any or all of the Unit owners which is based on any alleged defect in any Unit or the common elements....”  The Association argued that the provision was void as against public policy.  The Court of Appeals affirmed.

Country Greens Village One Owner’s Ass’n, Inc. v. Meyers, 158 Ga. App. 609, 281 S.E.2d 346 (1981)

Homeowner’s Association sought to foreclose on a lien for non-payment of assessments.  Association brought suit in Clayton County State Court.  After concluding that Association’s relief sought was equitable in nature, the Court of Appeals held that the State Court had no jurisdiction in equity, and reversed.

 

 

 

                 6. Other cases

 

                                     

Citation

Summary and Holding

Hill v. Paluzzi, 261 Ga. App. 123, 581 S.E.2d 730 (2003)

Developer who owned several units in a condominium leased those units without obtaining prior approval from the Association Board of Directors, as required in the Associations By-Laws.  A settlement was reached in the trial court, but developer/owner Hill violated terms of that settlement. 

Licker v. Harkleroad, 252 Ga. App. 872, 558 S.E.2d 31 (2001)

Lot owners owned property in a development whose covenants stated an intention to create a single family residence development.  Owners of an adjacent office park acquired three lots in the development and sought to use them to expand its parking lot.  The covenants could be amended by a 90% vote of the Association members, and at least 90% voted to allow the amendment for the parking lot.  The trial court held the amendment valid, but the Appeals Court reversed, holding that the minority owners opposed to the amendment had a right to rely on the covenant’s intention to create single family residences only.  Because there was no notice that such changes could be made to the covenants, such changes required consent of all the members of the Association.

Spratt v. Henderson Mill Condo. Ass’n, Inc., 224 Ga. App. 761, 481 S.E.2d 879 (1997)

Association filed an action against unit owner who leased her unit after the Board of Directors had denied her hardship request to lease the unit.  The trial court granted summary judgment to the Association and the Court of Appeals affirmed. 

Fleetwood v. Wieuca North Condo. Ass’n, 182 Ga. App. 15, 354 S.E.2d 623 (1987)

Condominium unit owner sued Association and its Board of Directors after it failed to repair a settlement crack in the exterior wall of her unit.  The trial court found that the Association was under no obligation to repair individual units because the by-laws required only that common funds be expended to repair and maintain common areas, and individual unit exterior walls were not common areas.  Court of Appeals affirmed.

 

                            

Section III:  Secondary Sources

 

A.  Books and Treatises

 

1.     Books

Note: Books which I found to be widely commercially available on the internet have their titles hyperlinked to a site where they may be purchased.

 

 

Citation

Description

Wayne S. Hyatt & Susan F. French, Community Association Law (Carolina Academic Press, 1998)

Tailored to provide a thorough introduction to the substantive law of common interest communities and community associations.  Mr. Hyatt is a principal of the law firm of Hyatt and Stubblefield, P.C., in Atlanta, Georgia.

Call Number KF576.A7 F74

Wayne S. Hyatt, Gary A. Poliakoff, & D.R. Sloan, Jr., Condominium Law (Professional Education Systems, Inc., 1984)

Currently out of print.  Provides an overview of substantive condominium law with references to selected cases.  Topics include representing condominium unit purchasers, board member liability, litigation, and forms.  GSU Law Library has a copy in its collection.

Call Number KF581.H9

Wayne S. Hyatt, Condominium and Homeowners Association Practice: Community Association Law (American Law Institute 3d.ed. 2000)

Specific topics on the practice of community association practice.  2nd Edition (1988) is in GSU Law Library collection.  New 3rd Edition available online.

Call Number KF576.H92

Wayne S. Hyatt & Philip S. Downer, Condominium and Homeowners Association Litigation: Community Association Law (Wiley 1987)

Currently out of print. Part of the Trial Practice Series.  Community association law with emphasis on litigation.  The GSU Law Library has a copy in its collection.

Call Number KF576.C66

Robert G. Natelson, Law of Property Owners Associations (Little, Brown & Co. 1989)

May be out of print, but a copy is available in the GSU Law Library.

Call Number KF576.N37

C. James Dowden, Creating a Community Association: the Developer’s Role in Condominium and Homeowner Associations (Urban Land Inst. 1986)

May be out of print, but a copy is available in GSU Law Library.

 

Call Number BL795.G57 D69

 

 

2. Treatises

 

                            

Citation

Title

Daniel F. Hinkel, Pindar’s Ga. Real Estate Law & Procedure with Forms, § 7-14.1 (6th ed. 2004)

Condominiums.

 

Call Number KFG112.P54

Daniel F. Hinkel, Pindar’s Ga. Real Estate Law & Procedure with Forms, § 18-23.1 (6th ed. 2004)

Sale of Condominiums.

 

Call Number KFG112.P54

Daniel F. Hinkel, Abraham Ga. Real Estate Sales Contracts, § 1-3.2 (5th ed. 2000)

Sales of Condominium Units.

Call Number KFG126.A95

Daniel F. Hinkel, Abraham Ga. Real Estate Sales Contracts, § 1-3.3 (5th ed. 2000)

Sale of Condominium Unit—checklist.

Call Number KFG126.A95

Daniel F. Hinkel, Abraham Ga. Real Estate Sales Contracts, § 1-3.5 (5th ed. 2000)

Condominium Units and “shared equities.”

Call Number KFG126.A95

Daniel F. Hinkel, Ga. Construction Mechanics’ and Materialmen’s Liens, § 2-7 (3d.ed. 1998)

Condominiums.

 

Call Number KFG155.5.H56

Jerome L. Kaplan, Kaplan’s Nadler Ga. Corporations, Limited Partnerships, and Limited Liability Corporations, § 15-6 (1993)

Cooperative apartments and condominiums.

 

Call Number KFG210.N295

Frank S. Alexander, Ga. Real Estate and Foreclosure Law, § 10-5 (4th ed. 2004)

Foreclosures and Condominium Assessments

Call Number KFG130.5.F6 A95

Michael J. Gorby, Premises Liability in Ga. With Forms, § 3-18 (1998)

Condominiums.

Call Number KFG196.3.L3 G67

 

 

B.  American Law Reports (ALR)

 

1.      Constance L. Hall, Annotation, Validity and Construction of Regulations of Governing Body of Condominium or Cooperative Apartment Pertaining to Parking, 60 A.L.R. 5th 647 (1998).

 

2.      Alois V. Gross, Validity and Construction of Condominium By-Laws or Regulations Placing Special Regulations, Burdens, or Restrictions on Non-resident Unit Owners, 74 A.L.R. 4th 295 (1990).

 

3.      Thomas G. Fisher, Standing to Bring Action Relating to Real Property of Condominium, 74 A.L.R. 4th 165 (1989).

 

4.      Eric Hollowell, Condominium Association’s Liability to Unit Owners for Injuries Caused by Third Person’s Criminal Conduct, 59 A.L.R. 4th 489 (1988).

 

5.      Janet B. Jones, Right of Condominium Association’s Management or Governing Body to Inspect Individual Units, 41 A.L.R. 4th 730 (1985).

 

6.      John E. Theuman, Validity, Construction, and Application of Statutes, or of Condominium Association’s Bylaws or Regulations, Restricting Number of Units that May Be Owned By Single Individual or Entity, 39 A.L.R. 4th 881 (1985).

 

7.      Andrea G. Nadel, Personal Liability of Owner of Condominium Unit to One Sustaining Personal Injuries or Property Damage by Condition of Common Areas, 39 A.L.R. 4th 98 (1985).

 

8.      Francis M. Dougherty, Liability of Owner of Unit in Condominium, Recreational Development, Time-Share Property, or the Like, for Assessment in Support of Common Facilities Levied Against and Unpaid By Prior Owner, 39 A.L.R. 4th 114 (1985).

 

9.      John E. Theuman, Validity and Enforceability of Condominium Owner’s Covenant to Pay Dues or Fees to Sports or Recreational Facility, 39 A.L.R. 4th 129 (1985).

 

10.  Sara L. Johnson, Adequacy and Application of Guidelines Relating to Condominium Association’s Requisite Approval of Individual Unit Owner’s Improvements or Decoration, 25 A.L.R. 4th 1059 (1983).

 

11.  Janet B. Jones, Validity and Construction of Law Regulating Conversion of Rental Housing to Condominiums,   21 A.L.R. 4th 1083 (1983).

 

12.  Vitauts M. Gulbis, Validity, Construction, and Application of Statutes, or of Condominium Association’s Bylaws or Regulations, Restricting Sale, Transfer, or Lease of Condominium Units, 17 A.L.R. 4th 1247 (1982).

 

13.  Charles C. Marvel, Construction of Contractual or State Regulatory Provisions Respecting Formation, Composition, and Powers of Governing Body of Condominium Association, 13 A.L.R. 4th 598 (1982).

 

14.  Cordier Karnezis, Enforceability of Bylaws or Other Rule of Condominium or Co-operative Association Restricting Occupancy by Children, 100 A.L.R. 3d 241 (1980).

 

15.  Timothy E. Travers, Expenses for which Condominium Association May Assess Unit Owners, 77 A.L.R. 3d 1290 (1977).

 

16.  W.E. Shipley, Self-Dealing by Developers of Condominium Project as Affecting Contracts or Leases with Condominium Association, 73 A.L.R. 3d 613 (1976).

 

17.  W.E. Shipley, Validity and Construction of Condominium Association’s Regulations Governing Members’ Use of Common Facilities, 72 A.L.R. 3d 108 (1976).

 

18.  W.E. Shipley, Zoning or Building Regulations As Applied to Condominiums, 71 A.L.R. 3d 866 (1976).

 

19.  W.E. Shipley, Real Estate Taxation of Condominiums, 71 A.L.R. 3d 952 (1976).

 

20.  John D. Perovich, Proper Party Plaintiff in Action for Injury to Common Areas of Condominium Development, 69 A.L.R. 3d 1148 (1976).

 

21.  Allan E. Korpela, Liability of Condominium Association or Corporation for Injury Allegedly Caused By Condition of Premises, 45 A.L.R. 3d 1171 (1972).

 

 

C.  Legal Encyclopedia

                  

1.      1 Ga. Jur. Property §§ 6:1-6:121 (2004). 

 

Chapter 6 of the Georgia Jurisprudence discusses Georgia Condominium and Homeowners’ Association Law.  §§ 1-77 concern Condominiums, while §§ 78-121 concern Homeowners’ Associations.  Georgia Jurisprudence is available online for Westlaw subscribers.

 

2.      2 Ga. Jur. Property § 22-40 (2004).

 

This section deals with mechanics’ and materialmen’s liens with respect to condominiums.

 

3.      3 Ga. Jur. Property § 28:81 (2004).

 

This section discusses determination of common areas in residential condominiums, for the purpose of defining landlord’s duties and liabilities for injuries to persons injured in those common areas.

 

4.      15A Am. Jur. 2d Condominiums and Cooperative Apartments §§ 1-61 (2004). 

 

Discussing generally condominium law in the United States.

 

D.  Uniform Laws

 

The Uniform Common Interest Ownership Act was adopted in 1982 by the National Conference of Commissioners on Uniform State Laws.  It incorporates the Uniform Condominium Act (1980), the Uniform Planned Community Act (1980), and the Model Real Estate Cooperative Act (1981).  According to the prefatory note, the Uniform Condominium Act, or a substantially similar law, is in effect in 21 states.  The Georgia Condominium Act incorporates only portions of the UCA. 

 

 

 

E.   Law Review, Journal, and Other Articles

                  

 

1.     Seth G. Weissman & Clara L. Fryer, Recommended Changes in the Law Affecting Condominiums and Homeowner Associations in Georgia, 1 Ga. St. U. L. Rev. 185 (1985).

 

The authors point to perceived weaknesses or inconsistencies in the Georgia Condominium Act and suggest reforms.  Most of the proposed changes involve incorporating more of the Uniform Condominium Act.  Subsequent amendments to the Georgia Condominium Act have addressed only a few of their concerns.

 

2.     James J. Scavo, Dispute Resolution in a Community Association, 17 Urb. L. Ann. 295 (1979).

 

Scavo emphasizes the advantage of dispute resolution over litigation in a community association setting, arguing that the expense of litigating disputes often outweighs the advantage.  Most of the examples cited involve associations versus a recalcitrant homeowner.  The author is a principal of Weinstock & Scavo, P.C., in Atlanta.

 

3.     Michael R. Fierro, Note: Condominium Association Remedies Against a Recalcitrant Unit Owner, 73 St. John’s L. Rev. 247 (1999)

 

Since the unit owner of a condominium is a title holder in fee, dealing with the recalcitrant owner can pose particular problems.  The article discusses remedies and means of enforcement against a homeowner who does not abide by community rules.

 

4.     Jeffrey E. Young, The Georgia Condominium Act of 1975: A Sound Basis for Innovative Condominium Practice, 24 Emory L.J. 891 (1975).

 

This article discusses the then new Georgia Condominium Act.  A good legislative history is found in the footnotes to this article.

 

5.     Wayne S. Hyatt, Condominium and Home Owner Associations: Formation and Development, 24 Emory L.J. 977 (1975).

 

This is an interesting article from the early development period of this area of law.  The author seeks to define the true function of the association and comment on a methodology and procedure for solving potential problems        and avoiding pitfalls.  Wayne S. Hyatt is a leading authority on property association law (see Section VI, infra).

 

6.     Christa A. Kearney, Condominiums: No Longer the Ugly Step Sister, Now the Cinderella of Real Estate, 26th Annual Real Property Law Institute Concurrent Sessions, vol. 2, ch. 10 (2004).

 

This is a great overview of current Georgia condominium law.  The author, an attorney with Weissman, Nowack, Curry & Wilco, P.C., discusses the history of the statute, defines “condominium,” and proceeds to highlight the statute itself.  The Editor highly recommends this article as a starting point for basic concepts in Georgia condominium law.  The volume is located in the Georgia section of the GSU Law Library, call number KFG112.A75 R4.

 

7.     Seth G. Weissman, Drafting Updated Community Association Legal Documents, Real Property Law Institute Symposium Materials (1989).

 

The 40-page article provides attorneys with practical advice on specific drafting recommendations for community association legal documents.  The author expresses that, since there has been tremendous growth in this form of property law, there was an opportunity to learn from the track record of experience which existed at the time of this symposium.  This article is more technical and detailed, emphasizing important information for attorneys to consider when drafting legal documents for condominiums and homeowners’ associations.  It is located in the Georgia section of the GSU Law Library, call number KFG112.A75 P77.

 

 

F.   Loose Leaf Services

 

1. Douglas Scott MacGregor, Georgia Condominium Law (William S. Julia ed. 1985).  Call Number KFG114.C6 M33

 

This loose leaf service, formulated like a treatise, is updated annually and is available in the Georgia State College of Law Library in the non-circulating material.

 

 

 

 

Section IV:  Legislative Information

 

A.  Georgia Condominium Act

 

1963: Apartment Ownership Act.  See 1963 Ga. Laws 561, §1 and Ga. Code Ann. §§ 85-1601(b)—1625(b) (Harrison 1971).

 

1975: The Georgia Condominium Act.  See 1975 Ga. Laws 609, § 1 and Ga. Code Ann. §§ 85-1601(e)—1645(e) (Harrison 1978).  The Apartment Ownership Act was not abolished and still applied to any condominium created prior to 10/01/75 unless that condominium opted to bind itself under the Georgia Condominium Act.

 

2004: The Georgia Condominium Act, O.C.G.A. § 44-3-72—44-3-116 (2004).

 

B.  Georgia Property Owners’ Association Act

 

1994: Georgia Property Owners’ Association Act.  See 1994 Ga. Laws 1879, § 1 and O.C.G.A. §§ 44-3-220—44-3-235 (2004). 

 

Section V: Computerized Research

 

A.  Lexis/Nexis

 

For a Lexis keyword search:

 

      1. click on “Research System”

      2. Under “States Legal-US” click “Georgia

      3. Keyword search ideas:

 

                                    ATLEAST10(condominium) and not divorce

 

This search will bring up most of the Georgia condominium cases without burdening you with cases where a condominium was part of a divorcing couple’s marital dispute.  Specific search terms, such as “Board of Directors,” or “assessment” may be added to further narrow the search.

 

4. Official Code of Georgia, Annotated may be accessed using “Get A Document.”  Use format “O.C.G.A. xx-x-xx”

 

B.  Westlaw

 

On Westlaw, setting up a “Georgia” tab will allow the researcher to access all Georgia research templates on one page.

 

 The “Georgia Statutes Annotated” tab is self-explanatory and is often-used.  Georgia Jurisprudence is available on Westlaw only (see above table summary in Section III.C., supra)

 

1. Keyword search on Westlaw:

Using “SY(condominium) searches for all cases where the word “condominium” was used in the West prepared case synopsis, and seemed to retrieve most of the generally applicable cases.  Add other keywords as necessary to narrow the search.

 

2. West Key Number Digest Search using Key Number 89A (Condominium).

 

3. For a more general search, go to Keysearch and click on      “Property—Real.”  Then select “Condominium,” and you will have a tailored search to which you may add terms and connectors as appropriate.  You may also select appropriate databases, from Georgia state cases only, to Federal and state cases combined.

 

                        4. Access annotated Georgia statutes on Westlaw using the database identifier GA ST.  Thus, use “GA ST xx-x-xx”.  

 

 

Section VI:  Miscellaneous Resources

 

A.  Interest Groups, Associations, and other information on the World Wide Web

 

1.     megalaw.com

 

This is a link to MegaLaw’s condominium law home page.  This page provides a wealth of information in terms of state links, links to other websites, and condominium articles and publications.

 

2.     Condolawyers.com

 

This site provides a collection of links to various states’ condominium laws.

 

3.     Community Association Resource Center

 

This site provides state links as well as general information for homeowners, managers, developers, and governing bodies.

 

4.     American Homeowners Resource Center

 

This site sells itself as “a national and international grassroots network of homeowners working together to protect homes.”  It is slanted toward the sensationalized cliché story of the innocent homeowner who has his home taken by a militant Association for non-payment of some insubstantial fine or assessment.

 

 

 

B.  Authors

 

1. Wayne S. Hyatt is the author or contributing author of 12 leading books on planned communities, condominium association law, and community associations (many are listed in Section III.A.1 above).  He is chairman of Hyatt & Stubblefield, P.C. in Atlanta.  Mr. Hyatt received his Juris Doctor from the Vanderbilt University Law School in 1968 and was recently honored as a distinguished alumnus.

 

                    

                                                          Wayne S. Hyatt

                    

 

 


 

                       

Editor: Jed Morton

  Jed Morton in the Law Library of the Supreme Court of Georgia, Fall 2007

Jed Morton holds a Bachelor of Science degree in Applied Mathematics from the United States Air Force Academy and a Juris Doctor, magna cum laude, from the Georgia State University School of Law. Jed is a former Air Force jet fighter pilot and a decorated combat veteran of over 60 missions in Southwest Asia in the single-seat, single-engine Lockheed F-16 Fighting Falcon. Jed's bio and resume are available at his firm's website, www.mortonlawfirm.com.