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Seeking opinion on HOA covenants. Have an question about our…

Seeking opinion on HOA covenants.Have...
Seeking opinion on HOA covenants.Have an question about our weather a sub-division converting from public to private roads constitutes a change in the covenants of the subdivision.Our sub-division is governed by ByLaws and Covenants. Special assessments need majority vote of the quorum for approval. Whereas change to the by-laws or covenants needs 2/3 approval vote from the association (not the quorum).At present the road in subdivision is public and there is no gate on the entrance (only one entrance to the subdivision).The board has sent a special assessment notice to put a gate on the entrance of the subdivision, stating only half of the quorum needs to approve the gate.When our sub-division becomes gated the street in the sub-division will become private, which is a public street right now.The question I have is, can this change of making a public street in the subdivision private be passed as a special assessment OR will this be considered a change to the by-laws / covenants of the sub-division?
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Answered in 9 hours by:
3/8/2018
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 9,008
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
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Welcome to JA and thank you for your question. Do you have a copy of the applicable language that you can attach?
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Customer reply replied 5 months ago
Thank you for responding. Attaching a copy of the Special assessment notice for the gate.Please let me know if you need any more documents.

You are welcome. I am not looking for the actual voting material. I am looking for the language in the governing documents that sets out how many votes are needed and what they define as a special assessment.

Let me provide the state law, however, your governing are considered a contract and the state law has impact if when the governing documents are silent. That being said, the document you attached is helpful.

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Customer reply replied 5 months ago
Attaching the governing documents. Thanks for reviewing this.

"While all homeowners are entitled to a vote, the act gives authority to HOA boards to act independently on behalf of an association’s membership, unless the association’s legal instruments provide otherwise. A certified resolution approved by the board for an action affirms the authority of the board. The board may amend legal instrument, articles of incorporation and bylaws. Boards may assess and require payment of homeowner fees, including fees for special assessments related to limited or disproportionate benefit to some homeowners. Boards may not assess different fee amounts for common expenses that affect all homeowners equally. The act requires HOA boards to maintain accurate books and records, including itemized financial records.

Board Meetings

The Georgia act does not provide rules for the number and frequency of board meetings. However, the HOA’s articles of incorporation or bylaws might include board meeting rules. A HOA may determine what constitutes a majority for purposes of voting at a board of directors meeting. However, in the absence of such determination, Georgia's HOA act considers a quorum reached if at least half of the possible voters are in attendance at the meeting.

Member Meetings

Georgia’s HOA act requires HOAs to hold member meetings as directed by the association's bylaws. The HOA must hold member meetings at least annually. The HOA must provide at least 21-day notice for regular meetings and seven-day notice for special meetings. Meeting notices must include the place, purpose and time of the meeting and be delivered to all members through the U.S. mail. The board must provide reports on all activities, including finances, to the membership at annual meetings. The act also requires HOA boards to produce and maintain detailed minutes for all meetings." http://smallbusiness.chron.com/rules-apply-hoa-board-members-georgia-38296.html

As you can see Georgia Law allows the board to levy special assessments on their own unless the governing documents state otherwise.

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Your governing document language gives the HOA broad authority.

"Section 4. Special Assessments. If for any reason, including non-payment of any assessments to the Association by the persons liable therefor, the budget adopted by the Board of Directors for any fiscal year shall prove to be inadequate to defray the Annual Expenses for such fiscal year, or if the Board of Directors shall determine that it is in the best interests of the Association to levy a special assessment to pay the costs of any capital improvements or capital repairs, the Board of Directors shall have the authority to levy a special assessment against the Lots and the Owners thereof to raise such needed funds. Any special assessment levied by the Board of Directors pursuant to the provisions of this section shall be payable at such times and such installments as the Board of Directors shall determine. Each Improved Lot shall be liable for the payment of an equal share of every special assessment which shall be levied by the Association pursuant to the provisions of this section."

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The must receive a minimum of half the votes of those that vote. Unfortunately, all you can do is object to the special assessments and hope they are not enough votes to pass the special assessment. You can certainly take the position that this is an unnecessary expense. Make sure they provide proper notice of the meeting and voice your objections.

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Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you.

If you would be kind enough to rate my service positively so I will receive credit for my work from the site I would appreciate it. A positive rating will not impact your ability to obtain a refund.

You may not be familiar with how the site works. The Attorneys to not receive credit from the site for their time or with customers unless the customer provides a positive rating. We answer your questions in good faith, hoping for a good faith response regardless of whether the law is in your favor or not. If you were unhappy with my service please let me know that you would prefer to work with another Attorney and I will opt out.

Can you see the rating scale on your end, 5 stars?

Thank you for your consideration.

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Customer reply replied 5 months ago
Hello, thank you for the response.I understand that they only need half the votes for special assessment.My question is different. The special assessment is for a gate, it does not say anything about making roads private. Can the board make the public road in the subdivision private without amending the covenants?Thanks.

All of the roads within the subdivision are considered private. I do not see where they were voting on roads.

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Unless the roads were accepted by the municipality they should be private and considered a common area element to be maintained by the HOA.

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Customer reply replied 5 months ago
You are right, we are not voting on road. We are voting on a gate, but the consequence is the road is becoming private.The roads in the subdivision are maintained by the county today.Here is an URL to the right of way division of our county.
http://www.forsythco.com/Departments-Offices/Engineering/Right-of-Way-Division/Right-of-Way-Information

If there is no issue with the municipality the HOA can gate their private roads. What do you want me to look at with regard to a right of way?

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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 9,008
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
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Customer reply replied 5 months ago
Hello,I think what you are saying is the roads are common area and HOA has the rights to make the road private without seeking associations approval.On the same lines can HOA decide to build something on the common area or sell off the common area without t seeking associations approval?Thanks.
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