Protecting Your Covenants

One Board member asks, “In your Board training class, you mentioned that a benefit of converting our community from a common law homeowners association (HOA) to a statute Property Owners Association (POA) permits us to rely on automatic statutory liens, rather than having to file paper liens on delinquent homeowners.  What if our Declaration of Covenants (CC&Rs) already says that we don’t have to file paper liens, even though we are not a POA?”

Great Question!  If your community is not submitted to the POA, then a paper lien is still required to protect the Association’s debt claims, regardless of what is written in your Declaration.  Your Declaration doesn’t overwrite the law regarding property lien notification.

There are certainly a lot of reasons to convert communities over to Georgia’s Property Owners Association Act (POAA), and we encourage all of our clients to take steps to gain such protection.  Here are some of its benefits:

• Creates certainty – HOA authority is constantly changing under court challenges, but more of your regulations are locked if you are operating under the POAA
• Explicitly states homeowner protection from being sued individually against claims others may make against the Association
• Provides 21 days notice - rather than the normal minimum 10 day notice - required for upcoming meetings
• Clearly allows you to hold renters liable for their actions
• Places prospective owners on constructive notice about assessments
• Shifts the burden of collection expenses onto the delinquent homeowner
• Automatic statutory liens established, so you no longer have to pay $200+ in legal fees filing paper liens
• Avoids lien invalidation due to accidental misspellings
• Buyer and seller jointly liable until all funds collected at closing
• Association may foreclose on HOA debt while leaving the home loan bank note in place
• Blocks a judge’s arbitrary waiver of late charges, fines and attorney fees
• Amendments to the governing documents can be applied equally to everyone, not just those that voted to approve an amendment
• Creates a one year time limit for challenges against amendments
• Establishes a range of 66% to 80% required approval for future amendments
• Any regulations that are a violation of federal/state law may be amended automatically without a community-wide vote (such as removing rules that are now considered Fair Housing Act violations)

If your community is currently operating under a common law HOA regime, get with your property manager and legal counsel to explore how you can enact the above protections!