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Attorney 1
Attorney 1, Attorney
Category: Real Estate Law
Satisfied Customers: 2500
Experience:  Knowledgable and Experienced Attorney
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Our current HOA, which submitted to the Georgia POAA

Customer Question

Our current HOA, which submitted to the Georgia POAA currently has no covenants in effect as the old ones expired. They are currently in the process of drafting a new set of covenants.If an existing structure or condition becomes a violation of the new covenants, can the HOA cause you to remove the structure or condition i.e. building, gate, wall or boat trailer etc. Under the old, expired covenants, this would have been acceptable.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Attorney 1 replied 1 year ago.

Hello, and welcome. I am a licensed attorney and happy to assist.

What is the structure at issue?

Customer: replied 1 year ago.
According to the copy of the rough draft of the new covenants, I would be in violation for the following:1. Sewer vent pipe on roof
2. Furnace exhaust on front of house
2. Driveway gate
3. Boat trailer on property (Not visible from street)
4. Concrete parking slab off driveway will be in violation.Those are the main ones, there may well be many more small and frivolous items, my neighbor two houses down makes reporting HOA violations a sport.
Expert:  Attorney 1 replied 1 year ago.

Thank you for the additional information. hile the H away can freely change its rules, prohibitions against structures or permanent pictures already in place is another story and don't usually apply to homes already existing with these features. Therefore, the concrete parking slab off the driveway would be grandfathered, particularly if it existed prior to the purchase of the property, because that is a permanent element that runs with the land. The gate is also quite likely to be grandfathered because it is a permanent fixture. The sewer vent pipe and furnace exhaust are also fixtures and, also likely to be grandfathered. No luck on the boat trailer, though, even though it is not visible from the street, as that is not a fixture permanently attached to the property. Any fixture (something permanently attached to the property) present at the time of purchase should be grandfathered, because it was specifically transferred by deed when you purchased or acquired the property, and any fixture installed pursuant to existing rules should also be grandfathered. Taking away existing rights to the physical property and its fixtures is grounds for a lawsuit. Note that any grandfathering provisions (either positive or negative) addressed in the prior covenants will govern.

You can head potential discrepancies off at the pass by weighing in on the drafting of the new covenant, preferably with your neighbors strongly in support of specifying the grandfathering within the new documents. Handling things on the front end could avoid costly litigation on the back end. Chances are the Board will be supportive of grandfathering clarification, as all most of your neighbors may have something that's no longer permitted, and they want to be clear that expensive structural alterations are unreasonable.

I hope this helps. If you need additional information or clarification, just let me know and I'll be happy to continue providing assistance. If I have addressed your issue, please remember to leave a positive rating when prompted.

Good luck!

Best,

Attorney 1

Expert:  Attorney 1 replied 1 year ago.

Please let me know if there's anything else I can do for you.

If I have clarified your issue or helped point you in a positive direction, please remember to leave a positive rating when prompted, as that is the only way attorneys on this site are credited for the information provided.

Best,

Attorney 1

Expert:  Attorney 1 replied 1 year ago.

Just checking in to find out how your situation is progressing. Please let me know if there's anything else I can do for you. If I have helped clarify the situation for you, please let me know that, as well. Thank you.

Best,

Attorney 1