Wednesday, August 21, 2013

Trouble Magnet

A property owner’s liability for guests’ injuries may be impacted by something known as the “attractive nuisance doctrine.” Examples of items that might be considered an attractive nuisance are: A piece of equipment, a wood pile, pile of sand, and a swimming pool.  

In these instances, the owner is required to take additional steps to protect children who naturally gravitate to these items.  On the other hand, a natural lake would not be considered an attractive nuisance. Georgia courts have stated that lakes are open and obvious hazards. Because of this, a person (including children) is considered to have actual knowledge of the dangerous condition and can avoid it by exercising ordinary care.

Specific circumstances create exceptions to natural hazards.  If a person is injured due to improper maintenance, the property owner could be held liable.  Example: A lake pier is in poor condition, and someone walking on it falls through and drowns.   The person’s injuries were caused by the failure to maintain the deck, which creates a distinct hazardous condition from the lake’s inherent hazards. 

Under Georgia law, an owner of land is liable if: 
  1. the place where the condition exists is one upon which the owner knows or has reason to know that children are likely to trespass, and 
  2. the condition is one of which the owner knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily injury to such children, and 
  3. the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and 
  4. the utility to the owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and 
  5. the owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. 

There must be evidence to support all five of these conditions.

When in doubt, the best policy is to take additional steps beyond the basic requirements in order to secure spaces in your community that may result in injury.  Besides regular inspections by the management company, you should have an insurance agent tour the neighborhood to identify needs.   Any life saved is worth your vigilance.

Tuesday, August 13, 2013

You've Been Served

On occasion, we get questions from clients about denying entry to a person serving legal notice to a resident. This post will hopefully provide you with a little information, as well as some ideas to ponder and take back to your community. 

Whether the community is a high rise or a gated suburban association, the State of Georgia requires that access be granted, per the following

Georgia Statute section 9-11-4(f) (4) Service upon persons residing in gated and secured communities.

      (A) As used in this paragraph, the term "gated and secured communities" means multiple residential or commercial properties, such as houses, condominiums, offices, or apartments, where access to the multiple residential or commercial properties is restricted by a gate, security device, or security attendant that restricts public entrance onto the property; provided, however, that a single residence, farm, or commercial property with its own fence or gate shall not be included in this definition.
   (B) Any person authorized to serve process shall be granted access to gated and secured communities for a reasonable period of time during reasonable hours for the purpose of performing lawful service of process upon:
         (i) Identifying to the guard or managing agent the person, persons, entity, or entities to be served;          (ii) Displaying a current driver's license or other government issued identification which contains a photograph; and          (iii) Displaying evidence of current appointment as a process server pursuant to this Code section.
      (C) Any person authorized to serve process shall promptly leave gated and secured communities upon perfecting service of process or upon a determination that process cannot be effected at that time.

In instances where the gated community is not being monitored, the process server may consult the Association’s annual listing with the Georgia Secretary of State to determine who to contact for entry.  If you are the person being contacted, be mindful of the following: 
  • You are not required to permit entry to a limited common element, such as allowing use of a private elevator leading into a home. 
  • If the community policy is to normally announce the arrival of guests to homeowners, doing so in this instance may be considered an obstruction of justice.The Federal penalty for obstructing entry is $300 and up to a year imprisonment.  In some states (not Georgia), this is instead classified as a misdemeanor even with private process servers. 
  • Obstructing a law enforcement officer attempting service in Georgia may lead up to a $1,000 fine plus a year imprisonment.  
It is always a good idea for the Board to establish and post a formal resolution detailing procedures for handling entries such as process servers, federal agents, and emergency responders.

Tuesday, August 6, 2013

Is Your Community On Board?

Earlier this year, the Georgia Court of Appeals issued a decision for a community where the declarant had not appointed a Board of Directors.  Unfortunately, this situation is more common because of the impact of the recent recession.  Many developments that were started several years ago ground to a halt, with some developers going out of business, and declarant rights turned over to bank control.  In such instances, many banks found themselves both unprepared and unwilling to address homeowner association needs.

What is the difference between a declarant and a developer?  Often these are one and the same, but a developer could choose to deed its powers as declarant to another party (i.e. another developer, a bank, or even an individual).  The power of the declarant is immense, able to set up and remove rules in a community development as it sees fit, with only government zoning as a restriction.  The length of time these declarant powers remain in effect is governed by state law, and varies based on the type of development being overseen:  5 or 10 years is not uncommon.

If your community is under developer or bank control without the existence of a Board, had a Board appointed years ago which no longer exists, or the authority has disappeared completely - your Association is in dire straits.

In the case of Hall v. Town Creek Neighborhood Association, the court determined that an assessment levied by a declarant, not a Board of Directors, was unenforceable.  The homeowners were not required to make payments in this situation.  Just because a declarant has the ability to appoint a Board, it does not automatically have the powers a Board would have.  In Georgia, a community’s Declaration is handled as a contract. If an item isn’t in writing, it doesn’t exist for this contract.   Normally a Declaration does not explicitly assign Board powers to the declarant.  Because of this, the court determined that it was intended that a Board had to be appointed.

The impact of this court decision extends to any decisions rendered by a Board of Directors.  Any rule or regulation issued, any vendor service hired, is invalid without a Board.  What should you do if your community finds itself in this situation?  If the declarant (determined by what is filed in the courthouse records) exists, a letter should be sent to it, asking for the immediate appointment of a Board.  If the declarant refuses, or a declarant no longer exists, the homeowners (with legal counsel) should conduct an election to bring the community in compliance:  The Association is a corporation, and under state law must have a Board.  Once this Board is installed, it has the option of retroactively affirming past decisions/actions taken.  More importantly, it needs to establish good governance to carry the community to a positive place.

For fledgling Board members, obtaining training and counseling are a must.  Whether this is obtained through a community association management company or an attorney versed in homeowner association law, the Board should be patient with itself during the initial years, recognizing the time and money is a good investment that will benefit the community in the long run.