Real Estate Law

Have real estate law questions? Ask a real estate lawyer.

Ask a Lawyer,
Get an Answer ASAP!

This answer was rated:

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?
Show More
Show Less
Ask Your Own Real Estate Law Question
Answered in 9 hours by:
3/8/2018
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 8,329
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
Verified
Welcome to JA and thank you for your question. Do you have a copy of the applicable language that you can attach?
Ask Your Own Real Estate Law Question
Customer reply replied 1 month 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.

Ask Your Own Real Estate Law Question
Customer reply replied 1 month 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.

Ask Your Own Real Estate Law Question

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."

Ask Your Own Real Estate Law Question

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.

Ask Your Own Real Estate Law Question

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.

Ask Your Own Real Estate Law Question
Customer reply replied 1 month 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.

Ask Your Own Real Estate Law Question

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

Ask Your Own Real Estate Law Question
Customer reply replied 1 month 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?

Ask Your Own Real Estate Law Question

Are you online with me?

Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 8,329
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
Verified
Attyadvisor and 87 other Real Estate Law Specialists are ready to help you
Ask your own question now
Customer reply replied 1 month 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.
Was this answer helpful?
Ask Attyadvisor Your Own Question
Attyadvisor
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 8,329
8,329 Satisfied Customers
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.

Attyadvisor is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

5,436 satisfied customers

17 years of legal experience including real estate law.

Barrister

Barrister

Lawyer

11,126 satisfied customers

17 years real estate, Realtor. Landlord 26 years

Infolawyer

Infolawyer

Lawyer

7,785 satisfied customers

Experienced lawyer

Ray

Ray

Lawyer

7,559 satisfied customers

Texas Attorney for 30 years dealing in real estate

LawTalk

LawTalk

Attorney

6,207 satisfied customers

I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.

Dimitry Esquire

Dimitry Esquire

Attorney

5,526 satisfied customers

JA Mentor, multiple jurisdictions, specialize in business/contract disputes, estate creation & admin

Ely

Ely

Counselor at Law

4,925 satisfied customers

Qualified attorney in private practice including business, family, criminal, and real estate issues.

< Previous | Next >

Related Real Estate Law Questions
Can an HOA association not have a ARC? If there is no ARC
If there is no ARC how can a homeowner appeal a covenant violation … read more
P. Simmons
P. Simmons
Attorney
Doctoral Degree
36,208 satisfied customers
Does an HOA have jurisdiction over a homeowner when they did
Does an HOA have jurisdiction over a homeowner when they did not exist at the time of the sale of the property and thus were not party to that sale. If the existence of an HOA was not disclosed to the… read more
socrateaser
socrateaser
1,031 satisfied customers
Can an HOA for a townhome association demand a specific
can an HOA for a townhome association demand a specific amount of replacement cost insurance? … read more
Alex Esquire
Alex Esquire
Managing Attorney
Doctoral Degree
153 satisfied customers
DO an HOA have the right to have homeowners paint the
DO an HOA have the right to have homeowners paint the exterior of their home just due to fading of paint … read more
Phillips Esq.
Phillips Esq.
Attorney
JD
19,276 satisfied customers
My question is in regards to master associations, HOA Board
My question is in regards ***** ***** associations, HOA Board elections, and individuals who resign, after they announce their run for the board, and before the annual meeting. … read more
Attorney Wendy
Attorney Wendy
Member
Juris Doctorate
523 satisfied customers
Is it illegal for a condominium association HOA (or counsel
Is it illegal for a condominium association HOA (or counsel hired by the HOA) to threaten to a homeowner's mortgage bank to foreclose on that homeowner's condo in pursuit of an assessment charged by t… read more
Attyadvisor
Attyadvisor
Attorney
8,329 satisfied customers
I have a homeowners association from. currently they say i
i have a homeowners association from hell. currently they say i have to have green growing things in an area that they say i cannot cut down trees from so it will not grow. jasmine, ivy, and vinca maj… read more
DanLegal
DanLegal
Law Partner
Juris Doctor
314 satisfied customers
I am a homeowner in an HOA in CA. My roof leaked and the HOA
I am a homeowner in an HOA in CA. My roof leaked and the HOA say that the leak is my fault and I have to pay for the repair. The HOA invited me to a meeting where I was given five minutes to defend my… read more
LegalGems
LegalGems
Juris Doctorate
11,587 satisfied customers
My question is in regards to homeowners associations for a
My question is in regards ***** ***** associations for a maintenance provided community. There are by-laws and covenants and then there are rules and regulations. In the community in which I live, the… read more
Attyadvisor
Attyadvisor
Attorney
8,329 satisfied customers
If a new development Homeowners association was established
If a new development Homeowners association was established with restriction prohibiting open RV, or boat storage (no driveways, and street view), can the association following the CC&R amendment prov… read more
WiseOwl58
WiseOwl58
JD Honors Graduate
4,050 satisfied customers
My homeowners association needs to finance a large
My homeowners association needs to finance a large renovation of our community buildings and amenities totaling about 20 million $. Can we raise the dollars through the issuing of investment bonds. … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
7,785 satisfied customers
Need a calif lawyer specializing in homeowners association
need a calif lawyer specializing in homeowners association problems. my association has determined that my condo unit was the result of flooding the adjacent unit. they have charged me $650 for the re… read more
Attyadvisor
Attyadvisor
Attorney
8,329 satisfied customers
Can a homeowner in an HOA community ask for the status, not
Can a homeowner in an HOA community ask for the status, not detailed information, on a violation that has been turned in? … read more
LegalKnowledge
LegalKnowledge
Juris Doctor
29,388 satisfied customers
We have a tree that is on the homeowners association land.
We have a tree that is on the homeowners association land. Due to the hurricane it is leaning away from our property, however the "uprooted", root system, has uprooted my fence. The association voted … read more
socrateaser
socrateaser
1,031 satisfied customers
Can a HOA make homeowner insurance required for a unit
Can a HOA make homeowner insurance required for a unit owner? Can the HOA make insurance required for tenants who rent a unit in HOA? … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
10,187 satisfied customers
Can a homeowners association deny a homeowner's application
Can a homeowners association deny a homeowner's application to plant trees within his property borders because it has a drainage easement where the trees will be planted? … read more
Barrister
Barrister
Lawyer
Doctoral Degree
11,126 satisfied customers
Homeowner (me) in dispute with HOA. A tree owned by the HOA
Homeowner (me) in dispute with HOA. A tree owned by the HOA has caused significant damage to my driveway. They acknowledge ownership, but have set a cap on reimbursement for driveway replacement of $5… read more
Attyadvisor
Attyadvisor
Attorney
8,329 satisfied customers
I have lived in a homeowners association in Florida. The HOA
I have lived in a homeowners association in Florida. The HOA has both long term or residential and short term sections clearly defined. I live in the short term section, we pay more than 3 times the r… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x