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CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10238
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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Im in Georgia. own lakefront property in subdivision years.

Customer Question

im in Georgia. own lakefront property in subdivision for 30 years. have dock that's been there for 20 years. the dock gives me access to water because I am on the shallow end of the lake. hoa just acquired title to lake and is now telling me to remove dock it is a trespass on their property. have paid my dues but they are not mandatory. there are no rules or covenants. before it was recently titled to them it was still owned by the builder for over 30 years, he had never deeded it to them. can they now make there own rules. this is a 85 home neighborhood with 10 homes surrounding this lake.
Submitted: 10 months ago.
Category: Real Estate Law
Expert:  WiseOwl58 replied 10 months ago.

Under Georgia law, your dock is grandfathered in and the HOA cannot tell you to remove it. If they do, you have the right to sue them for damages. You are set on your dock, and I would suggest you place a name plate on the dock saying that this is the private property of you and no trespassing is permitted.

Please rate 4 or 5 and close out the question. Good luck to you. I wish you all the best.

Customer: replied 10 months ago.
you say Georgia has a grandfather law. please quote it so I can look it up
Customer: replied 10 months ago.
wise owl are you still there
Customer: replied 10 months ago.
what Georgia law are you quoting, and what kind of damages can I sue them for...I need a Georgia law reference number for what you are quoting to me
Customer: replied 10 months ago.
your answer will not help if cannot give me a reference number for the Georgia law that would apply to my situation
Expert:  CalAttorney2 replied 10 months ago.

Dear Customer,

My name is***** am a different expert on the forum, your previous expert "opted out."

I disagree with their assessment of your situation for a couple of reasons, and while I am not going to be able to give you a "neat and clean" answer to your issue here, I do believe that I can give you some more nuanced information to help you search out the information you actually need to find out your rights associated with your dock and access to the lake.

A "grandfather" clause exists only if and when it is specifically provided. For example, if a building code requires heaters to be double strapped, but contains a "grandfather clause" so that any heaters installed before the date of the code are exempt - that is a grandfather clause.

Grandfather clauses and rights do not exist in a vacuum or a void.

HOAs (or any form of Common Interest Development - "CID") exist as a matter of reciprocal easements - meaning that your property is either a part of the CID or it is not. You say that the assessments are not mandatory - this means that either you do not have an actual CID or you are not a part of the CID that incorporates your neighbor's homes.

The best way to determine whether or not your home is a member of the CID is to get a complete title history for your home, if you don't have one from when you purchased the property, you can get one for a small fee from any of the national title companies (First American, Old Republic, or Chicago Title). They can also get you copies of the recorded governing documents for the CID.

It is important to determine whether or not you are a member of the CID not only to determine whether or not you have to pay assessments, but also because being a member gives you a right to participate in the governance of the CID - meaning you can vote, and be a member of the board of directors, and review the CID's papers (including past meeting minutes, enforcement actions, accountings, and any other documents).

You then need to identify the ownership of the lake. I take it from the above information that your lake is probably private (but I don't want to assume this). Again, a title company can tell you this for certain if you are unsure. If the lake is in fact owned by the CID, and you are a member, check what the governing documents say about access to the lake (the governing documents can include by-laws, articles of incorporation, CC&Rs, and any number of other documents - sometimes they use slight variations on the name, but the bot***** *****ne is that they must be written down in order to be enforceable).

If the lake belongs to the CID, and you are not a member for whatever reason, then you need to check to see if there is any right of access for neighboring owners - this would be in recorded paperwork filed by the owners with the county recorder's office (once again, a title company will have this information for you).

Given the scope of information and document review that you have to go through, it may make the most sense to hire a property law attorney to help you with this (I have also had customers in GA that have run into problems getting title documents without an attorney, even if they are willing to pay, you can always get this directly by going to the County Recorder's Office, but be aware, this is not as easy as it appears - document research for title documents is a somewhat nuanced task and if you overlook or miss something it is just as damaging to your final analysis as it is critical to finding documents (you might miss something key to your easement rights, etc.), so I do recommend using a professional here).

Customer: replied 10 months ago.
can you give me a ballpark figure as to what this might cost to hire an attorney to research this
Customer: replied 10 months ago.
how long does this kind of thing take. they have already sent e a letter from an attorney stated I must remove my dock within 60 days
Expert:  CalAttorney2 replied 10 months ago.

Unfortunately, this really depends on how complicated the deeds are, and what the actual status of your rights are with regard to water access.

Attorneys bill on an hourly rate, so if it is a simple matter, your fees should be relatively small (I would hope that your matter would fall into this category as your rights and access should be relatively simple to establish).

However, if it is a complex and disputed issue, your fees would be higher.

The best way to get an idea of what you will be looking at for fees is to actually contact local attorneys and get a fee estimate from them (understand that they are only giving you an estimate, they won't know until they start getting into your title search, but a local attorney will both be able to give you their actual hourly rate, and a much better idea of what you are looking at with regard to the complexity of your deal - local real estate attorneys will have a better idea of what you are working with as they are often familiar with particular subdivision issues and developer problems, even if they may not have intimate knowledge of your particular parcel at the outset).

You can find local real property law attorneys using the State and local Bar Association directories, or private directories such as www.AVVO.com; www.FindLaw.com; or www.Martindale.com (I personally find www.AVVO.com to be the most user friendly).

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