CAI of Georgia

Transcription

CAI of Georgia

C
First Quarter 2010
g e o r g i a
ommons
A Publication of Community Associations Institute of Georgia, Inc.
Inside:
Nothing in
Common:
SELLING
COMMON
AREAS
Stormwater Retention
and Detention —
What’s the Difference?
URGENT LEGAL
UPDATE:
New Case Affects
HOA Covenants
© istockphoto.com
...and more!
Congratulations!
To Beverly Malone-Harrison of Georgia Community Management, Inc. for
receiving her Broker’s License
Quarterly Quote
“Life is not how many breaths you take,
but how many moments that
take your breath away!”
To Jane Beasley, CMCA, AMS, PCAM, of Sentry Management for receiving Sentry Management’s Community Association Manager of the Year
Award
— From the movie Hitch
To R.S. Griffin Security Locksmiths for receiving the Key to the City of
Woodstock to honor them for their community service where they offer a
free child lock-out service where if a person locks their child in a vehicle they
will open it for free.
To Lisa Simmons of Community One Associates for her promotion to Executive
Staff at Community One Associates.
2 0 1 0
Magazine
Ashley Miller Lanier, Esq., Chair
Gaddis Vath Lanier LLC
John Lueder , Esq., Board Liaison
Lueder Larkin & Hunter, LLC
Christy Borden, CMCA, AMS
Community Management Associates/Fairfield
Plantation General Manager
Elina Brim, Esq.
Gary Caruso, PE, RS
Criterium-Caruso Engineers
Derry Duncan
Unlimited Landscaping
Elizabeth Frey, Esq.
Weinstock & Scavo, P.C.
Mark Greer
Tower Roofing
David Hill, CMCA, AMS, PCAM
Access Management/Peachtree Lofts On-site Manager
Travis Jinright
Russell Landscape Group
Joe Larkin
Michael Leavey, Esq.
Dorough & Dorough, LLC
Lee Mason, Esq. PCAM
Community Association Management, LLC
Mike Mewbourne
Pritchard & Jerden
John Mitchell, CPA
Owens & Mitchell, P.C.
Robin Phillips, Esq.
Weissman, Nowack, Curry & Wilco, P.C.
Marilyn Ratzel, Esq.
Lazega & Johanson, LLC
Michael Rome, Esq.
Rome & Goldin, P.C.
RC Shanks, CMCA, AMS, PCAM
GW & Associates
Lisa Turner, CMCA, AMS
Silverleaf Management Group
Fundraising
Jeff Creecy, Chair
Greenwood Group
Laura Lazar, CMCA, AMS, PCAM, Board Liaison
Eagle Management
Ken Baggs, CMCA, AMS
Heritage Property Management Services, Inc.
Ashlie Bisig
SERVPRO of North Fulton
Rich Cannon
Cannon Construction Group
Nancy Cooper
Ray Engineering
Dana Davis
Alicia Fortner
Rome & Goldin, P.C.
Erica Guinn
Meridian Restoration
Jessica Hartmann
Valley Crest
Sara Hicks
Parker Young Construction
Scott Kuperberg
Traci Lettsome, Esq.
Lipshutz, Greenblatt & King, P.C.
Mary Masi
Community Management Associates
Davis Morgan
Greenwood Group
Ian Stone
Mary Ellen Sullivan
Sentry Management
Chris Taylor
Sutter, McLellan & Gilbreath, Inc.
Jamal Williams, Esq.
Lazega & Johanson LLC
Golf
Jay Fraiser, Esq., Chair
Education
Teddy Russell, Board Liaison
Tamera Rodeman, Chair
Neal Bach, CPA
Sandy Depa, CMCA, AMS, PCAM, Board Liaison Bach, James, Mansour & Co.
Homeowner Management Services
Ashlie Bisig
Joan Archer, CMCA
Kevin Carnes
Jane Beasley, CMCA, AMS, PCAM
Arborguard Tree Specialists
Sentry Management
Nancy Cooper
Ashlie Bisig
Ray Engineering
Kim Gaddis, Esq.
Keith Brumbelow
Meridian Restoration
Gary Kart
Thomas Cardone, Esq.
Kart’s Landscape
Ginny Krueger, PCAM
Lanier Coulter, Esq.
Today Management Inc.
Mary Masi
Lisa Fuerst, Esq.
Kelley Moon
Brendan Hunter, Esq.
EPIC Response
Lueder, Larkin & Hunter, LLC
Mark Moore, Esq.
Noelle Larson
Dale Pendergraft
Kevon Oliver
P3 Painting & Renovations
Sean Ruthven, CMCA
Olen Robinson, CMCA
Access Management
Donnie Taylor
Colby Shear, CMCA, AMS, PCAM
A Tow Atlanta
Shaben & Associates
Mindy Waitsman, Esq.
Robin Steinkritz, CMCA, AMS, PCAM
Stephen A. Winter, Esq.
Beth Todd
Steven M. Winter, Esq.
2
CO M M ITTEES
Marc Wise
Sweetwater Pool Service
Membership
Robin Steinkritz, CMCA, AMS, PCAM, Chair
Teddy Russell, Board Liaison
Rhonda Beasley
Jonathan Benator
Skip Breeden
Cheryl Bryant
Community Club Cleaning
Lawson Burnat
Pritchard & Jerden
Kevin Carnes
Blair Dean
ASAP Mold
Tanya Fairclough-James, Esq.
Kerrie Napoli
Taylor Commercial
Chuck Negas
Northwest Exterminating
Ben Rosenquist
Talley Custom Painting
Benjamin Sessions
Orange Concierge
Dawn Shaddix
Jenny Shepherd
Full Circle Restoration
Mike Stanley
Sabrina Williams
Southern Perfection Painting, Inc.
Programs
Mike Crew, CMCA, AMS, PCAM, Chair
Nancy Allen
Nature Scapes
Jeff Creecy
Greenwood Group
Karen Focia, Esq.
Beryl Grall-Petty
Bradley Griffin
Dan Henning, CMCA, AMS, PCAM
Brendan Hunter
Derek Johanson, Esq.
Clarence Lau, Esq.
Jody Peskin, Esq.
Lipshutz Greenblatt, LLC
Rob Stein, Esq.
Maggie Vath, Esq.
Public Relations
Randi Anderson, Chair
Scott Douglas, Board Liaison
National Cooperative Bank
Marian Adeimy
Amy Bray, Esq.
Andersen, Tate & Carr, P.C.
Mary Beth Sierra
Kate Cunningham
Access Management Group
Shandron Forte, CMCA
Professional Office Solutions
Laura Guilmette
Unique Environmental
Pat Hillen, CMCA, PCAM
Community Association Banc
Ron Jockers, CMCA, AMS, PCAM
Gary Kennedy
Perimeter Landscape
Barbara Miciul, Esq.
Darren Thurmond, CMCA, AMS, PCAM
Atlanta Community Services
David Tishey
Greenwood Group
Chantell Welch
Horizonz Property Management
Bekke White, CMCA
Union Bank
Miye Yi, Esq.
Tennis
Judy Dreher, Co-Chair
Dreher Insurance
Marisol Reyes, CMCA, AMS, Co-Chair
Sentry Management
Sandy Depa, CMCA, AMS, PCAM, Board Liaison
Marian Adeimy, Esq.
Ken Baggs, CMCA, AMS
Zach Beck
Apex Billing
Andrew Bennett
PDQ Services
Cindy Carson, Esq.
Blair Dean
ASAP Mold
Floyd Dickens, Esq.
Derry Duncan
Unlimited Landscaping
Laura Guilmette
Unique Environmental
Julia Johnson
North Ridge Restoration
Jami Kohn, Esq.
Mark Lind
Kerrie Napoli
Taylor Commercial
Page Porter
A Tow Atlanta
Green Committee
Leslie Fellows, CMCA, Chair
Today Management, Inc.
Laura Lazar, CMCA, AMS, PCAM, Board Liaison
Eagle Management
Nancy Allen
Nature Scapes
Scott Boring
AAA Painting
Amy Bray, Esq.
Erin Byers
GW & Associates
Cindy Carson, Esq.
Emily Croft
Mark Greer
Tower Roofing
Jessica Hartmann
ValleyCrest
Mark Lind
Chuck Negas
Kelvin Pipe
Contracting Concepts, Inc.
Don Price
Team Pest USA
Bekke White, CMCA
Union Bank
Robert Zappulla
Miller Dodson Associates
Legislative Action
Mike Zenner, Esq., Chair
Kathy Dorough, Esq., Board Liaison
Caroline Bell, PCAM
Today Management Inc.
Sally Butler-Lewis
Insurance Marketing Group, LLC
Celia Ebert, CPM
Parkside Management
Wayne Forrester
Timbers of Vinings
Dennis Hoffman, CMCA, PCAM
Julie McGhee Howard, Esq.
Doyle Jones, CMCA, PCAM
Capitol Community Management
Randy Lipshutz, Esq.
Lipshutz Greenblatt LLC
Social Committee
Bob Russell, Chair
Scott Douglas, Board Liaison
David Boy
Dean Donald, CMCA, AMS, PCAM
Bayview Community Services
Laura Fomby
PDQ Services
Bill Gourley, Esq.
Gary Griffin, CMCA, AMS, PCAM
GW & Associates
Eric Henning, AMS, PCAM
Ken Koushel, CMCA, AMS, PCAM
Homeside Properties
Lindsey Malone, CMCA
Access Management
Tammy Parker
Crabapple Landscape
Jody Peskin, Esq.
Tammy Quinn, CMCA
Dawn Sanford
Dawn Shaddix
Terrence Spires
Team Pest USA
Mary Ellen Sullivan
Sentry Management
Darren Thurmond, CMCA, AMS, PCAM
Atlanta Community Services, Inc.
Community Associations Institute—Georgia Chapter • www.cai-georgia.org
A Letter from the Chapter President
Georgia Chapter of CAI
2 0 1 0
precious metals sponsors
“While you all were
enjoying the luncheon, I was
in Tucson, Arizona for CAI’s
annual Law Seminar.”
Kathy K. Dorough, Esq.
L
et me start off my year as President by apologizing! I am so sorry
I missed the first 2010 CAI-Georgia luncheon. But thanks to our
Executive Director Julie Jackson, President-Elect Sandy Depa, and
Program Chair Mike Crew who clearly managed just fine without me! I
heard the luncheon was a great success. While you all were enjoying the
luncheon, I was in Tucson, Arizona for CAI’s annual Law Seminar. We
attended sessions on assessment collection, preventing fraud in community
associations, the unauthorized practice of law, and many other issues which
we deal with here and across the country. Judging from the comments
of the attendees, we can be very proud of our Atlanta law firms who are
definitely “ahead of the curve” in knowledge, and expertise in Community
Association Law.
I am very excited about the year ahead: Our Legislative Action
Committee headed by Mike Zenner of Weinstock & Scavo, P.C. is hosting
CAI-Georgia’s first meet and greet under the Capitol Dome this year. They
are hoping to generate some support for a “super lien” law for Georgia
to help our communities through the foreclosure crisis. The Fundraising
Committee, chaired by Jeff Creecy of Greenwood Group is off and running,
literally, having proposed another event for us in 2010 designed to get us into
shape! Casino Night is right around the corner and I hear it is already in the
black. Judy Dreher of Dreher Insurance and Marisol Reyes, CMCA, AMS
of Sentry Management, along with their Tennis Committee, are hoping to
“ace” the Tennis Tournament again. This marks the first issue of our Georgia
Commons magazine with Ashley Lanier of Gaddis Vath & Lanier, LLC at the
helm. We look forward to many informative and helpful articles. But watch
out: Leslie Fellows, CMCA of Today Management, Inc. and the members
of the Green Committee will be watching to make sure that you either save
this issue or re-cycle it! Tamera Rodeman of Heritage Property Management
Services and the Education Committee have many programs planned and
Randi Anderson, CMCA, of Community Management Associates and the
PR Committee is going to work hard to promote awareness of CAI in the
community. Robin Steinkritz, CMCA, AMS, PCAM of Heritage Property
Management Services and the Membership Committee has plans to target
homeowner members to help our chapter keep focused on the sector most
of us are here to serve. And finally, Jay Fraiser of Lazega & Johanson LLC
and the Golf Committee continue to weigh their options this year with regard
to location, as this event continues to be a tremendous success as a fundraiser
and as an all around fun time for everyone.
As our fundraising efforts continue to pay enormous dividends, it is my
personal goal this year to identify one or more housing-related charities to
support in addition to our continuing support of Lekotek. Your 2010 Board
is comprised of dedicated and energetic professionals raring to work hard to
make 2010 a wonderful year for CAI! I look forward to seeing all of my old
friends and meeting those of you I do not know. I want to hear how CAI can
help you, and you can help CAI. See you at Casino Night!!
Kathy K. Dorough, Esq.
2010 CAI-Georgia President
PLATINUM
Community Association Management
Community Association Underwriters
Community Club Management
Elite Association Management
EPIC Response
GW & Associates, Inc.
Heritage Property Mgt. Services, Inc.
Nature Scapes
Unlimited Landscape & Turf Mgmt., Inc.
GOLD
Allsouth Renovations, Inc.
Homeowner Management Services, Inc.
Parker Young Construction
Ray Engineering, Inc.
Talley Custom Painting & Renovations, LLC
Taylor Commercial
TMI/Associa
Union Bank
SILVER
AAA Painting & Staining
Access Management Group
Advantage Pool Management Services, Inc.
Atlanta Community Services
Bayview Community Services, Inc.
Colonial Bank
Exclusive Association Management
G4S Wackenhut
Georgia Community
Management
Homeside Properties, Inc.
Owens & Mitchell, PC
P3 Painting & Renovations
Perimeter Landscape
Shaben & Associates
Sweetwater Pool Service
Tower Roofing
BRONZE
Abacus Property Management, Inc.
Alexander Termite & Pest Control
American Painting & Renovations, Inc.
Any Gutter Cleaned, Inc.
Bach, James, Mansour & Co., P.C.
Cannon Construction
Community Club Cleaning
Community One Associates
Contracting Concepts, Inc.
Elan Management
Full Circle Restoration
Gaddis Vath Lanier, LLC
Gold Leaf Landscape Management
Greenwood Group
Horizonz Property Management
Insurance Marketing Group, LLC
Jowers & Company
Meridian Restoration, Inc.
Northwest Exterminating Co. Inc.
Preventive Maintenance and
Contracting Services
Rolyn & Companies
Rome & Goldin, P.C.
Rooter Plus
Sears Pool Management
Sentry Management Inc.
SmartStreet
Southern Perfection Painting, Inc.
Team Pest USA
Zumbrunnen
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Effective Volunteers — Actions for Growing Boards & Committees
By David Hill, CMCA, AMS, PCAM
Access Management, Peachtree Lofts On-site Manager
T
G e o r g i a C h a p t e r o f C AI
2010 Board of Directors
he annual meeting has concluded with one or more new faces on the
Board, and now looms the uncomfortable situation of officer selection. Before letting the Directors make that decision, the manager may want to
set the stage for everyone to have an opportunity to gauge each other’s capabilities and lay the groundwork for an environment of trust. You want to establish a
team that will grow together and be effective. One idea to accomplish this is to set
a future date for officer selection and hand each director a sealed envelope that
you prepared in advance (see below) for that person’s eyes only.
Besides raising eyebrows, this envelope sets the precedent of preparing before
each meeting – a habit you want your directors to have. Inside the envelope is
information about a challenging task for the Board to tackle at the next meeting,
and each envelope contains only a portion of the data for success.
Challenging tasks help demonstrate the practical benefits of working
together. When the group meets for officer selection, begin the event on
time (another habit-setter) with the challenging task you have created first
on the agenda. This task could be anything from a murder-mystery resolution, learning how to program old electronics, or successfully researching a
topic on the Internet – but not something directly related to the Association.
Ten minutes with other Directors under these circumstances helps everyone
quickly appreciate what each brings to the table: Who displays good leadership? Who appears the most analytical? Who is systematic? A side note on officers: Many Boards have more individuals than officer
positions, resulting in some with no defined duty. While some directors
would be happy to sit in the wings, it is ideal that every person have some
function other than “Member-at-Large.” For example, one five-member
board creatively came up with “VP of Communications” and “VP of Capital
Planning” (focused on Reserve-Study items) to compliment the standard
President / Secretary / Treasurer roles. The Board can then use the knowledge that they obtained through the challenge task to better determine which
person fits into the open officer positions.
Now on to teamwork. The best groups tap into the knowledge each person
brings to the table, are confident and undivided, and allocate their time and
efforts effectively without being overwhelmed. Those in the group should back
each other up when needed. The following are tips for creating a strong team:
1. Boards (and committees) that are able to learn together will perform better. President.......................................Kathy Dorough, Esq.
President Elect.......Sandy Depa, CMCA, AMS, PCAM
Past President ............................................... Teddy Russell
Vice President.........................................John Lueder, Esq.
Secretary................. Laura Lazar, CMCA, AMS, PCAM
Eagle Management
Treasurer..........................................................Scott Douglas
Board Director.......................................................Dan Ross
Sutton Pines Condominium Association
Executive Director.......................................... Julie Jackson
Education is key during the entire tenure of the group. If you cannot convince members to attend off-site functions, bring in guest speakers during
Board meetings. A group that collectively lacks knowledge and skills to
address its duties will fail. Educate your Board.
2.Make sure that the group understands its prime mission. Include this
mission with the monthly reports or printed on each agenda to maintain
focus. 3.Encourage Directors to hold frequent social events outside of the meeting. Informal interactions lead to a greater frequency of consensus rather than
strife during meetings. It’s hard to hold a grudge with the person you often
break bread with.
4. Emphasize the importance of frequent face-to-face communication and the
fostering of transactive memory: a knowledge network between directors,
where each holds specialized knowledge in certain areas for the others to
refer to. By everyone directing new information on particular subjects to the
“expert,” Board members are effectively relying on each other as external
memory aids. This is more efficient and reduces the load (and burn-out) on
individual members. Directors need familiarity with each other, shared experiences in facing challenges, and frequent face-to-face time for this to develop: Reliance upon e-mails and teleconferences should be limited.
Learning the ropes as the Director of an association can be a social
process. The various concepts of HOA ownership and responsibility, collections restrictions, or even the history of past community experiences, is all
absorbed vicariously in group settings, and it can be overwhelming unless
steps are taken to moderate the flow of knowledge. A newly-constituted
Board should address only a few less-challenging issues in the first few meetings. This will help the group to build confidence in its effectiveness. During
these initial sessions, set a timed agenda, and then beat it. Psychologically,
when people believe that a meeting or task has taken less time than it actually has, they associate the event with positive feelings. The adage “Time
flies when you’re having fun” becomes true. So set a 60 minute agenda and
conclude in 50! Your directors will approach future meetings more enthusiastically if they feel successful, effective, and efficient. n
PO Box 2943
Peachtree City, GA 30269
Tel (770) 736-7233
Fax (770) 736-7232
E-mail: [email protected]
Our Mission:
The Georgia Chapter of CAI is the voice of the community association industry in the state. Our purpose is to facilitate the professional
creation and operation of community associations through the delivery of high quality education for our multidisciplinary membership.
We are committed to building cohesion, integrity and respect.
■■■
The materials contained in this publication are designed to provide accurate, timely and authoritative information with regard to
the subject matter covered. The opinions reflected herein are the
opinion of the author and not necessarily that of CAI. Acceptance of
an advertisement in Georgia Commons does not constitute approval or
endorsement of the product or service by CAI. CAI-Georgia reserves
the right to reject or edit any advertisements, articles, or items appearing in this publication.
■■■
To submit an article for publication in Georgia Commons, contact
Julie Jackson at (770) 736-7233.
5
Georgia Commons • First Quarter 2010
In These Tough Economic Times,
Is Your Association’s Insurance Adequate?
By Allen Lumpkin
Pritchard & Jerden, Inc
D
o you belong to a homeowners or a condominium association? If
so, do you pay monthly or annual dues that go toward the maintenance of the common areas, which include, but are not limited
to, recreational facilities, outside property, weekly garbage service, private
security, neighborhood parties, management fees and, last but not least, the
association’s insurance program? Do you know what you, as a unit owner,
are responsible for insuring and what your association is responsible for insuring? Do you know if your associations’ insurance policy will cover the best
interest of the association? In the event of an uncovered loss, would you and
the other members of your association be able to pay a sizable special assessment in today’s uncertain economic times? Determining adequate insurance
coverage involves answering these questions as well as working through the
issues below.
Let us look at insurance coverage from a home or condominium owners’ perspective. Before you purchase a condominium, townhome, or home
(“unit”) that is part of an association, you should obtain a copy of the association’s governing documents to determine what you, as the unit owner, will
be responsible for insuring. More than likely, each owner will be responsible
for their own respective unit and should carry a homeowner’s policy to cover
their liability and personal property. For condominium owners, this responsibility differs slightly due to Section 44-2-107 of the Georgia Condominium
Act (which is a whole article in itself) that was revised through House Bill
1121, effective July 1, 2008.
It is crucial that you, as a unit owner, understand what property
coverage is included in the association policy. Property coverage is the
most likely policy area to be
inadequate at the time of
a loss. Property values
used to calculate coverage amounts should
It is crucial
include, but are not limited
to, the club house, common areas, recreationthat you, as
al facilities, outdoor property, contents, and
a unit owner,
improvements and betterments of the common
areas. (As a side note, your association insurunderstand what
ance policy may not be responsible for the
property coverage
improvements and betterments that are made
is included in the
inside of your unit.). Property policies contain
many complex provisions. One such provision
association policy.
is co-insurance, which could limit the insurance proceeds if the property is underinsured at the time of
a loss. Your insurance advisor will assist you in determining appropriate
limits, explain what limits you have for each exposure, and detail how the
policy will respond at the time of a loss.
Your association insurance program should be designed by an insurance
advisor with the help of at least one representative of the board of directors.
Please be advised that there is no such thing as a “cookie cutter” insurance
policy for your association. Some insurance policies will limit or exclude
coverage’s that are a necessity for most associations such as Backup of Sewer
& Drains, Ordinance & Law, Debris Removal, and Landscaping. Therefore,
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each policy should be planned after a thorough analysis of the association’s
uniqueness. From the common areas to the recreational facilities to the board
of director’s liability exposure, an insurance professional will guide you to
the appropriate coverage and policy limits based on the characteristics and
risks of your particular association. At a minimum, your trusted insurance
advisor should ask questions in regards to the following exposures: Property,
General Liability, Inland Marine (accounts receivables, lawn equipment, and
computers), Crime; Directors & Officers Liability (D&O); Automobile; and
Workers Compensation.
If you serve on or plan on serving on the association’s board of directors,
your first order of business should be to make sure that your interests are
covered by implementing a D & O policy if one does not already exist. D
& O insurance provides defense coverage for the board members (directors
and officers) in the event that they are personally sued in for performing their
association duties. This coverage may also extend to committee members
and other agents of the association, and, therefore, if the board is not willing
to implement a D & O policy, one should seriously consider whether or not
they want to represent their association.
It is also recommended that an association obtain insurance coverage that
will indemnify the association in the event of loss of association funds, theft
or embezzlement. This policy exists to recover the theft of funds in the event
that someone with access to the association’s finances uses them for their
own personal endeavors. The policy limit should be determined based on the
fund’s reserves and the dues collected during the policy year.
Lastly, make sure your HOA insurance policy is reviewed every year with
your insurance professional. The purpose of the annual review is to update
the policy due to the changes in exposures from year to year. Whether the
association constructs new buildings, improves older buildings, or the property value increases because of inflation, your exposures will change and your
insurance limits should change accordingly. If your association is not updating the exposures on an annual basis, an assessment from the association due
to an uncovered loss could be on the horizon. Get to know your insurance
professional and do not be afraid to ask questions addressing your concerns
regarding the associations’ insurance policy. n
Dorough & Dorough
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160 Clairemont Avenue, Suite 650
Decatur, GA 30030-2534
Phone: 404-687-9977/Fax: 404-687-0011
www.dorough.com
Atlanta’s source for Association Community Management
Creating a Sense of Community for more than 25 years
Services tailored to the needs of your homeowner or condominium
association. Full service management, accounting and maintenance
1100 Northmeadow Pkwy., Suite 114, Roswell, GA 30076
Voice: 770-777-6890 ext. 127, Fax: 770-777-6916
Visit our web site at : www.accessmgt.com
7
Nothing in Common:
Selling Common Areas
By Michael E. Leavey, Esq.
A
spiration Heights Condominium is located on one of the most
desirable blocks in the city. Part of the condominium is an undeveloped and largely unused field adjacent to the condominium
building. The condominium has received several inquiries from
prospective purchasers about selling the field for use in future development.
On the other side of town, the Arid Flats Homeowners Association owns a
storm water detention pond that collects water off of the public streets in
the community. The board of directors is concerned about the association’s
on-going obligation to maintain the pond and its exposure to liability arising
from ownership of a pond that does not appear to provide a direct benefit
to the members. An adjacent homeowner expressed interest in purchasing
the pond area to include as part of his lot. In still another part of town,
the Slender Lane Townhome Community was laid out with narrow swaths
of common area located between the fenced backyards of homes, located
back-to-back on the same block. The board would like to convey the narrow
strip to the adjoining homeowners and let each of them take over the maintenance. There are many reasons why a community association may want to
sell its common areas to a third-party. When making a determination about
whether to pursue the sale of its common area, there are several issues an
association’s board of directors should consider.
Whether an association’s common area has value to someone other than
the association is a fact-specific question. Common areas of homeowners and
condominium associations are usually subject to a declaration of restrictive
covenants or a declaration of condominium for the community and are designated as common areas or elements on the recorded plats for the community.
In some instances, owners within the community want to purchase the property and retain it as undeveloped open space so the fact that it is subject to
restrictive covenants might not be of paramount importance. A prospective
purchaser from outside the community who wants to purchase the common
area for future development will probably require removal of the restrictive
covenants from the property in connection with the sale. As discussed in
more detail below, in the context of a condominium, the association will
need unanimous approval of all of the unit owners and their mortgagees to
withdraw the property from the condominium and to facilitate a sale. For
associations other
than condominiums, unanimous
approval of the
owners will also be
necessary to remove
Sidewalk
the property from
the coverage of the
covenants unless the
community’s governing documents specifically contemplate removal of a portion of the community from the coverage of the covenants or generally allow amendments to
the governing documents that have non-uniform effect.
If the common area has value to a prospective purchaser, as a first step,
the board must determine whether the association has the authority to sell
its common areas. Homeowners and condominium associations in Georgia
are usually established as nonprofit corporations pursuant to the Georgia
Nonprofit Corporation Code (“Nonprofit Code”). The Nonprofit Code
authorizes an association’s board of directors to sell, convey, exchange, and
otherwise dispose of all or any part of the association’s property unless a community’s governing documents say otherwise. See Nonprofit Code Section
14-3-302(5) and Section 14-3-801(b). In non-condominium communities, the
association usually holds title to the common areas. Most declarations of
restrictive covenants for these communities contain a provision authorizing
the board of directors to sell a portion of the common area under certain circumstances, most often upon receiving approval to do so from the membership. The board may sell the common area so long as the voting procedure
outlined in the governing documents is properly followed and documented
in the association’s records.
Selling the common area of a community established as condominium
pursuant to the Georgia Condominium Act, O.C.G.A. § 44-3-70, et seq. (the
“Condominium Act”) is more difficult to accomplish. In condominiums,
the common areas, referred to as “common elements,” are generally owned
by all of the unit owners as tenants-in-common. In order to sell off a por-
Cai-georgia calendar of events
*Tentative Calendar for the Georgia Chapter of the Community Associations Institute
January
Networking Luncheon – 01/22/10
Aja Restaurant
11:30 AM – 1:30 PM
February
Community Association Volunteer
Leadership Class – 02/11/10
Doubletree Hotel - Roswell
3:00 PM – 9:00 PM
Casino Night – 02/26/10
Parker Young Offices
3:00 PM – 8:00 PM
March
Speaker Luncheon – 03/19/10
Maggiano’s Buckhead
11:30 AM – 1:30 PM
8
Social – 03/31/10
Location TBD
5:00-7:00 PM
September
Annual CAI-Georgia Golf Tournament
Date TBD
April
Homeowner Education Class – 04/22/10
Sheraton Galleria
6:30 PM – 9:00 PM
October
Speaker Luncheon
Location & Date TBD
May
Networking Luncheon – 05/14/10
Divine Events
11:30 AM – 1:30 PM
July
Professional Luncheon – 07/16/10
Location TBD
11:30 AM – 1:30 PM
December
Annual Awards Banquet
Location & Date TBD
tion of the common elements, the property must be “withdrawn” from the
condominium in accordance with a procedure set out in the Condominium
Act. Withdrawal of property from the condominium requires the approval
of unit owners holding at least four-fifths of the votes in the association and
their mortgagees. Once the property is withdrawn from the condominium,
however, it is still owned by all of the unit owners as tenants-in-common,
and all of the unit owners and all of their mortgagees must consent to a sale
of the property.
Once the board determines whether their association can sell its common
area, the board should consider whether the Association should proceed with
the sale. As noted above, many declarations of restrictive covenants authorize the board of directors to sell common area under certain circumstances,
such as receiving approval to do so from the membership; however, whether
the board pursues such a sale is usually discretionary. If proceeding with
such a sale, Georgia case law generally requires that the board’s actions be
procedurally fair and reasonable and that the board’s decision to proceed be
made in good faith, and be reasonable and not arbitrary and capricious. In
addition to following whatever procedural requirements are necessary under
the community’s governing documents, the Board should examine why it is
pursuing conveyance of a portion of the common area and should record its
reasoning in well- documented minutes.
Several issues can impact the determination of whether the association should sell
its common area. The association should
There are many
obtain assurances from the prospective purreasons why a
chaser that any use of or rights associated
with the property that are necessary to the
community
association will be preserved. For example,
association may
if there are improvements on the property
that require on-going maintenance, such as
want to sell its
a storm water detention pond, the associacommon areas to tion will probably want the new owner to
assume the appropriate maintenance obligaa third-party.
tions. Similarly, if the association benefits
from use of the property in some way, for example, if other property owned
by the association drains storm water over the property or if utility lines
serving the community run under or through the property, the association
should establish appropriate easements or other rights over the property to
ensure continuation of these benefits. Further, the original zoning conditions
for some communities may require a certain amount of open space or may
specify a certain use for association common area. The association may want
to get assurances from the new owner that they will not use or develop the
property in such a way that will expose the association to liability due to a
zoning violation.
The association should also be aware of any potential uses for the property
that could affect the community in the future. For example, current zoning
regulations would control the uses to which the property could be put; however, a new owner may be able to obtain a variance from the current zoning
for a special use or may attempt to rezone the property altogether. Any future
use may result in more traffic, noise or other disturbances in or around the
community. Structures built on the property may be visible from the community and further affect the community. There may be other governmental
requirements or encumbrances on the property which influence the use and
activities allowed on the property. The association may be able to negotiate
agreements with the prospective purchaser to establish reasonable guidelines
on the use of the property and construction activities on the property. If
the association wants such an agreement to be binding on future owners of
the property, it should be in the appropriate form and recorded in the land
records.
As noted above, there are many reasons why a community association
may want to sell its common areas. In connection with the prospective sale
of an association’s common areas, members of the board of directors should
become aware of potential obstacles to selling the association’s property and
the potential impact on the community of doing so. By understanding some
of the issues up front, the board will be in a better position to fulfill its duties
and protect the association’s best interests. Because of the complexity of
these transactions, it would not be advisable to “try this at home” without
contacting the association’s legal counsel! n
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Stormwater Retention and Detention
What is the Difference?
By Gary J. Caruso, P.E., R.S.
• Sufficient drainage area and dry weather base flow to maintain volume and
quality of the pond. This is particularly important at lakes or other ponds
that have a recreational or aesthetic function.
• Safety ledges when the permanent pool is deeper than three feet.
• Regular maintenance is needed to prevent clogging, debris, vegetation
growth and sediment accumulation.
“Where’s the new pond...”
S
tormwater management is getting more and more sophisticated.
Those holes in the ground that fill with water during rains are
critical components of the stormwater management system.
Maintenance is needed to ensure that the facility will operate as
originally designed. In most cases, this means that the facility is
constructed in conformance with the original site plan and hydrology study. Specifically, this includes detention/retention pond volume, elevations of earthen dams or the tops of wall, and size/elevation of weir openings.
As you are probably beginning to realize, this can be a daunting task at older
facilities and properties where information about the original design is not
readily available.
Most properties, subdivisions and developments built in the last 20
years have provisions for the retention or detention of stormwater on their
property. In short, detention basins and structures hold water temporarily
and then drain at a controlled rate to a normally dry condition. Retention
structures (wet ponds) are designed to retain water and allow excess water
to be discharged at a controlled rate. Retention basins provide both permanent and temporary storage of stormwater runoff. The current emphasis on
stormwater management is not only on the quantity of stormwater but also
on stormwater quality.
The stormwater structures may be ground depressions to contain water,
lakes, underground vaults and/or underground pipes. The facilities generally
are designed to retain or detain water so that the flow from the developed
facility nearly matches the estimated runoff flow that the property would have
had in its undeveloped state. The overall stormwater system includes outlet
and inlet structures, pipes, water quality filters, dams, spillways and swales.
In most cases, these facilities on private property are the responsibility of the
owner. For common interest realty groups, that means the homeowners.
Depending on the facilities, maintenance responsibility can range from
simple periodic vegetation removal to extensive sediment dredging of lakes.
The responsibility for stormwater maintenance is usually covered in the plats,
deeds, easements, covenants, or by city/county regulations. Maintenance
generally involves removing obstacles such as vegetation and sediment
buildup that would hinder the controlled release of water or affect the storage
capacity of the facility. Regular cleaning and maintenance of any water quality or BMP (best management practices) structures would also be needed.
Additional information can be obtained from your local municipality or from
www.georgiastormwater.com.
Piping, drain inlets, area drains, culverts and manholes should be inspected periodically to ensure that they are operating properly and drain freely.
Debris and sediment should be cleaned out of drainage structures to prevent
blockage and flooding. Drainage swales should be maintained free of debris,
weeds, and blockages. Any erosion should be addressed immediately by
providing ground cover vegetation or stone (riprap) cover.
Some considerations for retention ponds impacting maintenance include
the following:
• Depth of the permanent pool
• Surface area of the retention area
10
• Outlet structures, weirs, trash racks and orifices should be accessible for
cleaning, maintenance and inspection.
In detention basins, similar maintenance to that noted for retention ponds
is required. Since the detention basin is meant to drain to a dry state after
temporary stormwater storage, it is important that the basin is designed for
complete evacuation of runoff. A poor bottom slope will result in low areas
and ponding water. Lack of a low flow channel or erosion of the low flow
channel will prevent the basin from emptying. Ponds, low lying areas and
standing water will promote mosquito growth and potential accumulation of
pollutants.
Retention ponds and detention ponds also pose safety concerns. They are
attractive nuisances, and sometimes have steep slopes and high water levels
and depths. Outlet structures may have unprotected openings. If not used
recreationally, the basin/pond areas should be fenced and secured. All outlet
openings should have safety grates.
By their very nature, retention ponds have embankments which may be
considered dams and should comply with dam safety standards. Dam maintenance typically consists of two types of inspections, a periodic engineering
inspection and an operational inspection. The engineering inspection is
typically a thorough evaluation of the structural and hydraulic condition of
the dam. These inspections should be conducted by a licensed professional
engineer experienced in dam construction and design. Engineering inspections are required every three, four, or five years, depending upon the hazard
potential of the dam.
Regular operational inspections are typically conducted by the owner or
the operator of a dam. These inspections should involve visual inspection of
the dam. Earthen dams are susceptible to deterioration by weathering and the
erosive forces of wind, water, ice, and temperature change. Owner inspection
of earth embankments should include observation for seepage, cracks, settlement, slumps, erosion, scour, vegetative growth, and animal burrows.
Municipalities are recognizing the need to increase the scope of stormwater services. Regulations are being developed to maintain the existing public
infrastructure and to meet new regulatory requirements for environmental
protection and stream habitat improvement. Educating yourself on these
regulations will prevent surprises in the future. n
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11
Urgent Legal Update:
New Case Affects HOA Covenants
By Angie Hitch,
Despite its very recent decision, by now, many of you
have heard about the case, Charter Club on the River
Home Owners Association v. Walker, 2009 WL 4351908,
at *1 (Ga. Ct. App., Dec. 3, 2009). News of the case has
spread fast, due to its potential damaging impact on
Georgia homeowner associations. This case, despite
some initial reports, is serious and significant to our
industry. If you have not already done so, it is important to consider the impact this case may have on your
association and those you represent or manage.
T
he case involves the construction of Georgia statute O.C.G.A. §
44-5-60 which provides, in part, that “no change in the covenants
which imposes a greater restriction on the use or development of the
land will be enforced unless agreed to in writing by the owner of the affected
property at the time such change is made.”
In this case, the Charter Club community adopted an amendment to its
Declaration of Covenants restricting the leasing of homes within the community. Prior to the amendment, leasing was permitted. The community
followed the correct procedure for passing the amendment, as outlined in its
governing documents.
An owner within the Charter Club community, Constance Walker,
argued that the leasing restriction adopted by the Association was subject
to O.C.G.A. § 44-5-60, thereby rendering the leasing restriction invalid as it
applied to her lot because she did not agree to, and did not vote in favor of,
the restriction. She continued to lease her home in violation of the amendment. After Charter Club assessed fines against her, Ms. Walker filed suit.
The trial court ruled that the statute made the amendment inapplicable to
Ms. Walker, because it imposed a greater restriction on Ms. Walker’s use of
the land, and she did not consent. The Georgia Court of Appeals agreed with
the trial court and clarified that the statute does not condemn all amendments
to restrictive covenants, but it does apply to all amendments that “further
restrict the use” of a homeowners property. The implication of the ruling is
that, essentially, any use restriction amendment adopted by a common law
homeowners association must be approved by 100% of the owners to be
binding on all owners.
So, what is the impact of this case on your association? In order to make
this determination, it’s important to identify what is NOT impacted:
• Condominiums: This case does not apply to condominiums that were
created under the Georgia Condominium Act (“Act”). The Act covers all
condominiums created after 1975 or those that adopted the Act after 1975.
The reason is that the Act specifically states that O.C.G.A. § 44-5-60 does
not apply.
• POA’s: Similarly, this decision does not affect communities that are subject to the Georgia Property Owners Association Act (“POA”), which also
provides that O.C.G.A. § 44-5-60 does not apply to communities which
have adopted the POA. • Use restrictions contained in an original Declaration of Covenants:
This case only applies to amendments. Any use restrictions provided for
in the original restrictive covenants are not affected.
• Affirmative vs. negative covenants: This case specifically states that it
does not apply to all covenants, but only those that further restrict the use
or development of the property. Such covenants are commonly referred
to as “negative covenants” and include, for example, leasing restrictions,
architectural control regulations, parking regulations and pet restrictions.
The case does not apply to “affirmative covenants,” which are covenants
which require an owner to perform a specific activity, such as paying
assessments.
Obviously, most of us in this industry are extremely disappointed in the
Walker case, as it has a substantial detrimental impact on associations that
have not yet adopted the POA and even on many that adopted important
amendments before adopting the POA. We encourage all communities that
may be impacted by this ruling to discuss your situations with experienced
community association attorneys and thoroughly consider how it might affect
the legality of prior amendments to your community legal documents and the
procedure for adopting amendments in the future. n
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DON’T LET THE “VOCAL MINORITY”
RUIN YOUR MEETING
By Robin S. Phillips, Esq.
Weissman, Nowack, Curry and Wilco, P.C.
The board of directors of a community association is
entrusted with doing what is best for the members of
the Association. As such, the directors should always
conduct the meetings of the association in a professional manner. However, there are usually so many
different personalities and perspectives the directors
must deal with, that sometimes this seems impossible.
One of the most trying personalities are those members known as the “vocal minority.”
Y
ou know a member of the “vocal minority.” The homeowner who’s
called you as Board President for the last three months to complain
about the association throwing its money away on the landscape
service. “My cousin Vinny has a lawn service and he can do a
much better job. I’m going to get the members to vote on a change
at the next meeting.” Or the homeowner who complains how the board violated
its powers when it failed to fix the units’ roofs after the last heavy rain even
though the Declaration clearly provides that the repair and maintenance of all
roofs are the responsibility of the Unit Owners. “Oh and by the way, I’m calling
for a special meeting to discuss why the association failed to maintain the roofs
around here!” Or the member who stood up at the last annual meeting and asked
for a financial audit because he didn’t think the budget was handled properly by
the board. “I think someone on the board might be stealing and we need to find
out; we need an audit right now.”
At any meeting, the “vocal minority” can turn up ready for a fight. How do
you, as a director, let the “vocal minority” have their say, without the meeting
going awry? What actions can you as a director take to control the meeting
and still allow those with different perspectives to speak?
Here are a few tips:
Always Have A Meeting Agenda:
Whether it is the annual or special meeting of an association, or a board of
directors meeting, a director should always plan a meeting agenda. The agenda
should include the purpose of the meeting, the topics to be covered and a specific
and realistic amount of time allotted to each topic. Agendas help formalize and
organize the meeting. Agendas should be distributed at the beginning of every
meeting and discussions on a matter should not exceed the allotted time limit
unless approved by a majority of the people present at the meeting.
Meetings of the association are not for individual homeowner issues and
staying on task and sticking to a clear, concise and timed agenda prepared in
advance of the meeting will help ensure a successful meeting.
Create Rules of Conduct to Use at all Meetings:
Whether it is the annual meeting of the association with many members in
attendance or a board meeting with three people in attendance, establishing
rules of conduct for the board of directors and all homeowners to adhere
to can be a great way to ensure meetings run smoothly, and everyone is
heard. Rules of Conduct should be based in part on the association’s bylaws,
Robert’s Rules of Order, and basic tenets of common courtesy.
The association’s bylaws outline how a board may conduct its annual, special, and board meetings, when those meetings can or should be held, and for
what purposes, how to notify members, and by what method, how quorums
are established and who is eligible to vote. The bylaws, in most cases, will
also define whether the board can adopt rules and regulations to govern the
association, so the board can establish rules of conduct through those powers
prescribed in the bylaws.
14
Most directors are familiar with Robert’s Rules of Order, the manual on
parliamentary procedure that has been around since 1876. Because Robert’s
Rules deals with parliamentary procedure, it often comes across as intimidating. But today, Robert’s Rules for Dummies, Robert’s Rules Made Easy,
and Robert’s Rules, the Simplified Version to name a few, are some of the
many other titles that can be found at any local bookstore. Its publishers
have trimmed away some of its stuffiness and made parliamentary procedure
much easier to understand so that more people will embrace it. Many governing documents already provide that Robert’s Rules shall be the standard
procedure by which the board governs its meetings. For those associations
whose governing documents do not include such language, a statement providing that Robert’s Rules shall be used for all procedural matters where not
in conflict with the governing documents, rules or regulations of the association should be included in the Rules of Conduct.
The basic tenets of common courtesy seem so simple, but sometimes are
forgotten when people get into the heat of the moment and are passionate
about certain matters. Directors must remember that they are the leaders of
the association and should set an example for all members to follow. Having
a written set of Rules of Conduct based on common courtesy and good
conduct reminds everyone that while differences of opinions will exist, they
should always be expressed in a respectful manner. Rules of Conduct will
help avoid personal attacks against homeowners and Board members. Rules
such as raising one’s hand to be recognized, no “cross talking,” no yelling, no
vulgarities, and being courteous when addressing someone are some of the
basic tenets to include.
Rules of Conduct will help keep a member of the “vocal minority” in
check while still respecting his or her right to get his or her views across.
Rules of Conduct will provide order to the meeting and allow everybody who
wants to say something get a chance to be heard until the majority is ready
to make a decision. Generally, boards only think of using Rules of Conduct
at larger association meetings; however, a process is helpful in hearings on
covenant violations, or matters in executive session, especially if there is a
need to keep detailed minutes that may be reviewed at a later date. It is a
sign of good business for a board to adopt such Rules of Conduct and then
once adopted for all directors, not just the Parliamentarian or President, to
become familiar with them.
Rules of Conduct strive for harmonious meetings which run on time and
which reflect the attitude that all opinions are welcome and heard. We all
know those individuals who tend to interrupt meetings and wreak havoc
with their own agendas. It is important, however, to hear divergent opinions. Most individuals truly believe they are acting in the best interest of the
association. Rules of Conduct, based on bylaws, parliamentary procedure
and common courtesy, along with a thorough agenda, can turn a decent
meeting into a successful one, where all association members feel heard and
respected, and the Board of Directors can congratulate themselves for a job
well done. n
0UBC8104COM_WalshHOA_7.5x4.875_4C.indd
Walsh-HOA ad / Pub:CAI Georgia Commons Newsletter / Run Date: 3-1-10 / Size: 7.5 X 4.85/ 4C
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15
Who Is Responsible For Maintenance
of Foreclosed Property?
By Michael Rome, Esq.
Rome & Goldin, PC
I
t is springtime and driving through the subdivision you see the nicely
manicured lawns. On the horizon, an out of place lot appears; an island
unto itself of tall grass, weeds and overgrown bushes. There are no blinds
or curtains over the windows. It’s obviously vacant. The word automatically
springs into your head…foreclosure.
One of the purposes of a community association is to enforce the maintenance obligations of the homeowners. Proper upkeep of the homes and
yards sustains the general aesthetics of the neighborhood and also helps preserve the property values. It all boils down to what realtors like to call “curb
appeal.” Maintaining the curb appeal can become problematic when a vacant
property is in the foreclosure process. What should an association do when
the Board’s not sure who presently owns the lot or how to contact them?
The first question to answer is whether the foreclosure sale has actually
taken place. Prior to the foreclosure sale, an ad must appear over a four week
period in the legal notices section of the local newspaper. Rather than having
to page through the legal notices, you can use a free website that provides all
the foreclosure ads in one place: georgiapublicnotice.com. By going to this
site, you can find the scheduled date for the foreclosure sale, along with the
name of the mortgage company and the contact information for the foreclosing attorney.
Next, you should ask the association’s legal counsel to determine if a foreclosure deed (also known as a deed under power) has been recorded with the
county. If a deed under power has not yet been recorded, it means either that
the foreclosure sale did not take place, or it has not yet been filed with the
county. Deeds under power are required by Georgia statute to be recorded
within 90 days of the sale, but this does not always happen (See O.C.G.A.
“It’s
obviously
vacant.”
44-14-160). So the question remains, who is
responsible for maintenance of the lot?
It is the mortgage company who is legally obligated to maintain the lot from the date of foreclosure
forward, but this does not necessarily mean maintenance is being promptly
addressed and pursued. On the positive side, mortgage companies are more
frequently using local servicing agents to oversee maintenance of the property, payment of assessments, and even correction of violations. The major
servicing agent for HUD in the Atlanta area is Prommis Solutions at (678)
277-5000. Unfortunately, even with the existence of a servicing agent, there
can be some delays in taking over the distressed property.
If a delay does occur, most governing documents allow the association
to maintain the property and assess the owner for expenses. This usually
requires a ten day prior written notice. You will want to confirm the exact
requirements with the association’s attorney since specific procedures will be
based upon your governing documents. In addition, most governing documents provide that the maintenance expenses will be considered a specific
assessment on the lot.
Sooner or later, the costs incurred by the association after the foreclosure
date will be reimbursed by the mortgage company, but what if the sale is still
pending. This means that the property is still owned by the individual homeowner, and certainly makes it less likely the association will be reimbursed
for maintenance expenses. Even so, it is often in the best interests of the association to maintain the yard. Besides the obvious effect on curb appeal, tall
grass and weeds can eventually invite rodents and other pests. Of course, the
association’s budget will also have to be taken into consideration.
Finally, if a substantial amount of maintenance expenses and delinquent
assessments were incurred by the association before foreclosure, the Board
should evaluate the possibility of bringing a personal suit against the prior
owner. The decision to sue will involve weighing factors such as the out-ofpocket costs and attorney fees versus the amount due. Although the foreclosure sale affects the association’s lien, it does not alter the personal obligation
of the prior owner. n
Jeff Hope
President/Owner
P.O Box 1656
Dallas, GA 30132
(O) 770-443-2391
(C) 404-583-6734
www.ActionCommunityMgmt.com
[email protected]
16
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g
n
i
s
a
e
L
o
.
N
g
n
i
m
m
i
w
No S
And Other Practices That Might
Cost Your Association.
W
By William H. Gourley III, Esq.
www.luederlaw.com
e have all heard it time and time again: “Ignorance of the law is no excuse.” This maxim
is true even when a person acts with good intentions. The unfortunate reality is that many
community associations violate federal and local anti-discrimination laws on a regular
basis without realizing it.
The federal Fair Housing Act and the Georgia Fair Housing Act protect individuals from housing
discrimination on the basis of race, color, religion, sex, familial status, disability, and national origin.
Because the Georgia law is substantially similar to the federal law, I will refer to the federal Fair Housing
Act and the Georgia Fair Housing Act collectively throughout this article as the Acts.
Generally speaking, it is a violation of the Acts to discriminate against a member of a protected class
in a residential real estate transaction. Community associations have been deemed subject to the Acts
because they provide housing related services. Thus, although community associations are generally
not directly involved in residential real estate transactions, community associations can run afoul of the
Acts based on incidental or indirect involvement in the sale or rental of
“Generally speaking,
a dwelling.
For example, when a property is marketed for either sale or lease, it is a violation of the
many community associations would like the authority to approve or dis- Acts to discriminate
approve of the owner’s prospective buyer or tenant. Although it is techni- against a member of
cally not illegal to screen prospective buyers or tenants for poor credit,
criminal history, or employment, this could be potentially dangerous for a protected class in a
the association. The prospective buyer or tenant may believe that the residential real estate
association’s decision is actually based on his or her status in a protected transaction.”
class, not his or her income eligibility or criminal background.
Furthermore, a community association may violate the Acts based on the services or facilities it provides in the community. As mentioned above, disability is a protected class. The definition of handicap
under the Acts is very broad and therefore has far-reaching implications. Generally, the Acts require
community associations to make reasonable accommodations in rules, policies, practices and services
when such accommodations are necessary to give a disabled person an equal opportunity to use and
enjoy a dwelling.
For example, it is a violation of the Acts to refuse to allow a handicapped individual to make a reasonable modification to the premises at his or her own expense if such a modification is necessary for
such person’s full enjoyment of the premises. A common example of such discrimination is when a
community association refuses to permit a handicapped individual to install a handicapped accessible
ramp to his or her dwelling at no expense to the association.
Additionally, a community association can violate the Acts by passing certain restrictions regarding
the use of recreational facilities in the community. For example, a swimming pool rule that designates
an adult only swim time is a direct violation of the Acts.
It is important to be aware of the Acts because, if a community association is found to be in violation
of the Acts, the penalties can be rather steep. In fact, a community association can be fined upwards
of $10,000.00 for its first offense. Moreover, the Association’s directors and officers may be found personally liable for discrimination under the Acts. And, generally speaking, many directors and officers
liability policies do not provide coverage for violations under the Acts.
If you have any questions or concerns regarding the federal Fair Housing Act or the Georgia Fair
Housing Act, please consult with your community association attorney. n
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Act Now to Save Money on Your 2010 Property Tax Bill!
By Kimberly C. Gaddis, Esq.
Gaddis Vath Lanier, LLC
A
s most of us know, the economic and housing crisis that the nation has
experienced over the course of the past couple of years has caused
many homeowners’ property values to plummet. However, many
local tax assessors’ offices have not re-assessed the value of every home to
adjust the lower fair market values that likely exist compared to a few years
ago. As such, unless you act early in 2010 and file a Real Property Tax Return
(“Return”) to declare what you believe to be the fair market value of your real
property, you may lose the right to appeal later in the year, and you may end
up paying more in property taxes than necessary.
All real property in Georgia is assessed an ad valorem property tax. In
each county, there is a Board of Tax Assessors (“BOA”) which is charged with
the responsibility of reviewing all tax returns, seeking out unreturned property, and determining the assessed value of all property within the county.
While the county Tax Commissioner collects the taxes, Georgia law requires
every county to appoint a BOA to determine the fair market value and assess
all property in the county.
Many homeowners do not realize it, but Georgia law requires each taxpayer to file a Real Property Tax Return (“Return”) for all taxable property
owned on January 1 each year. If a taxpayer fails to file a Return by the
deadline (see below box for filing deadlines), then the taxpayer is deemed to
have returned for taxation the same property as the preceding year and at the
final value determined for that property in the preceding year. It is this provision that allows most taxpayers to file a Return for the initial year in which a
homeowner purchases property, and then file no further Returns.
However, it is advisable to file a Return for real property if you disagree
with the previous year’s value because the tax savings could be considerable.
For example, if your home was assessed in 2009 by the county as having a
fair market value of $275,000, but the housing market has caused the sales
prices of homes in your neighborhood to decrease over the course of the past
year, the current fair market value of your home may now be only $225,000.
If you fail to file a Return by the deadline established for your county and
declare that the fair market value of your home is now $225,000, and if the
BOA does not re-assess the property and keeps it at the same value as 2009,
then you do not have any appeal rights to the BOA later in the year. You
will be required to pay taxes on the property as assessed at $275,000. Thus,
filing a Real Property Tax Return is your first opportunity to alert the county
of a decreased value in 2010.
The only recourse a homeowner has to appeal the fair market value assessment if the homeowner fails to file a Real Property Tax Return at the beginning of the year is in the event the county were to increase the fair market
value assessment in 2010. Using the example above, for property that was
assessed in 2009 at $275,000, if the county were to increase that assessment to
$295,000 in 2010 then the homeowner would receive a Notice of Assessment
Change in the spring of 2010 advising the homeowner of this increase in
assessed value. At that time, the homeowner would have 30 or 45 days
(depending on the county) to appeal the newly increased assessed value.
Once a Real Property Tax Return is filed between January 1 and April
DG
F
REAL PROPERTY TAX RETURN
FILING DEADLINES 2010
1, the BOA must then
March 1: DeKalb
make a written decision
Gwinnett
as to whether or not to
accept the declared value.
April 1: Clayton
Coweta
Douglas
If the BOA accepts the
Cobb
Fayette
Fulton
valuation claimed by the
Forsyth
Henry
Paulding
owner on the Return, the
BOA will send a Notice of
Assessment Change to the homeowner in the spring, advising the owner of
the acceptance of the new value and the matter is concluded.
Alternatively, the BOA may seek additional documentation from the taxpayer
as evidence of the taxpayer’s claim for fair market value, or the BOA may deny
the new value as declared by the homeowner and state the reasons for the denial
in a letter. Upon denial by the BOA, the taxpayer must then file a letter of appeal
of the BOA’s value and must include evidence of the taxpayer’s basis for fair
market value in said appeal. The BOA will thereafter either accept or deny the
taxpayer’s appeal. A denial at this stage by the BOA automatically results in an
automatic right of appeal by the taxpayer to the Board of Equalization (“BOE”)
without any further action required by the taxpayer.
The owner may alternatively refer the appeal to arbitration in lieu of the
BOE hearing. Upon a decision being rendered by the BOE, both the owner
and the county may thereafter appeal the decision of the BOE to the Superior
Court within 30 days from the issuance of the BOE’s decision. This appeal
constitutes a de novo action, meaning the Superior Court will conduct a new
trial and not just review the evidence considered by the BOE or arbitrator.
Tax appeal deadlines are absolute. Unfortunately, DeKalb and Gwinnett
residents who have not filed a Return as of the publication of this article have
missed this opportunity for 2010. However, for residents of other counties
there may be only a few crucial days left to file a Return so act now by seeking legal help to protect your appeal rights! n
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21
DON’T SACRIFICE YOUR SECURITY
TIPS FOR A TOUGH ECONOMY
By John Brown, CEO
Southern Protection Agency
W
hile in these economic times, each property manager or
comptroller reluctantly has a level of acceptable expenditures for their respective properties. However, over
and over here lately, we are finding that every expense has to be a
calculated cost. From the cutting of staff to ordering simple office
supplies, we are all playing the price game like a crime scene technician processing a fingerprint as we deal with the latest numbers in
this recession.
No one wants to deal with security in markets such as this as they
are always an expense. But, just as landscaping maintains the right
look for your property to attract new owners, for some communities,
security is a necessary expense to keep the property safe and secure.
In many cases, security can also attract potential clients looking
for added measures to keep their loved ones or business safe. The
marketing of your security measures is always a plus when trying to
attract a family to buy in your association. Many people check your
amenities list to see what security is in place.
Although security is often needed and, depending on the property,
mandated, it does not mean that you should have to pay the highest
price or have multiple tiers of security for every property. A simple
property evaluation by any security professional can lead you in the
right direction as to what security measure is best for you. These
professionals may recommend one or more of the five basic operations for your security.
• Security Officer
• CCTV Program
• Access Control
• Mobile Patrol
“Implement more
cameras and
recording devices.”
• If you have more than one entrance to the property, install a bar or gate
that can be closed after hours or during the night which will channel your
traffic through your most travelled entrance. The open entrance would be
a good place for cameras as well. Most thefts include the use of a vehicle
and if they can’t get close to the building, they will move on to the next
vulnerable property. Patrolling police also become accustomed to the
gate and when it is open after hours, they will stop in to check on the
property.
• Implement a concierge/security officer if staffing is an issue. You get two
for the price of one. The contract person is usually cheaper than your own
staff. When trained, they can prove to be an extension of your business
and can also handle multiple situations in the event of a security breach.
Contract services in most situations are better than in-house staff for multiple reasons.
If these simple measures do not apply to your particular situation,
then check with your local law enforcement department. Many
departments have crime statisticians or other units who will come to
your business for free and provide advice and assistance to you.
In our next edition, more on tips on what to look for when hiring
a security provider. n
apartment/condominium repaint specialists
• Concierge
In addition to the recommendations of the security professional,
there are many simple and efficient ways you can change or improve
on your security, depending on your particular building or community. These measures are inexpensive and some can even drop your
monthly overhead. Some of the common ways are simply:
• Set your exterior lighting to motion detection instead of dusk until dawn.
This keeps your electric bill down and gives anyone wanting to do the
property harm a sense of caution as instant lighting draws attention.
• Implement more cameras and recording devices. This is cheap and effective if it is applied appropriately and the right camera with the right view
is used. It helps from an investigative approach of “what happened,” but is
not good in some applications. Don’t buy a proprietary system…you want
your system compatible with other providers. In the event you change in
the future, there will not be a need to change out the whole new system.
• Implement an access control system. This controls your entrance and exits
in areas such as building access, parking garages, and employee access. It
can be further enhanced in many directions depending on what information you are looking for. Who entered and when they entered are just
the basics of what these systems can do for you. You can also link these
systems to financial software, which comes in handy for those who don’t
pay their monthly or yearly fees.
• Cleaning up your landscaping can make the property more visible from
all angles. Thieves don’t like to be seen. Cut back your overgrown trees
and bushes, eliminating those hiding spots and allowing everyone to see
throughout the property.
• In some cases, affordable fencing of a parking lot or area may help. A
simple motion detector can be applied to these fences and you know when
your sector has been breached, and the unauthorized person now knows
that someone is on the way and looking.
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As One Door Closes Another One Opens
By R.C. Shanks, PCAM
GW & Associates, Inc.
This year will prove to be an interesting
and challenging year for residential home
builders and community associations.
H
ome builders, home owners and association managers all cling to
words of encouragement regarding the local economy. We look
for the silver linings or the pot of gold at the end of the rainbow.
We despair at the news of more cutbacks and layoffs and rejoice
when new job opportunities are announced. Many of the issues are far too
complex for most to fully understand. It’s a national problem far beyond the
scope of state and local governments.
Home sales rose slightly in 2009 primarily due to low interest rates and the
first-time home buyer tax credits. This has led some economists to forecast a
turnaround in the housing market. I feel this is far too optimistic a projection.
The commercial segment of the real estate market is still in decline and surely
will have a trickle down effect on both jobs and residential housing. It appears
there will most likely be additional bank failures, with several here in Georgia. In
addition, credit tightening will make qualifying for a home more difficult. Fanny
Mae recently changed the allowable debt-to-income ratio from 45 percent to 64
percent. This means the housing cost plus all other debt can’t exceed 45% of the
borrower’s income, making it more difficult for a person to qualify for a home.
However, those who are able to purchase a home should be able not only to
make their mortgage payments but also to pay their association assessments.
Much has been written and shown on TV about the number of home
foreclosures and the effect it has had on the banking industry. Very little has
made the news about the devastating effect job losses and home foreclosures
have had on community associations. Most community associations are faced
with ever dwindling income from assessments due to delinquent owners.
Many homes stand vacant. The homeowners who are still able to pay their
assessments are upset when they realize that their assessment dollars just
won’t stretch to cover all of the association obligations and expenses. Often,
common area landscaping is not being done, amenities are not maintained
and worse yet insurance may have lapsed.
I expect there will be some improvement in home sales in 2010 in some
niche areas but not overall. Recovery locally will be up and down in 2010,
slowly improving in 2011 and hopefully leveling out in 2012.
It seems as one door closes another one opens. We are a resilient people,
and, as the old saying goes “Where there is a will there is a way.”
Lenders are now more open to approving
short sales, which should help slow foreclosures.
“I expect there
Banks and mortgage companies have or are
now learning how to deal with community assowill be some
ciations and their responsibilities. We are seeing
improvement in
new home starts in communities where lot prices
have dropped.
home sales in 2010
New companies have emerged from the ashes
of those left in the wake when the housing bubble
in some niche
burst. Several developers have started companies to
areas but not
manage bank and FDIC assets. In many instances,
they are handling erosion issues and addressing code
overall.”
compliance as well as handling most, if not all, of the
things left undone in a community when the previous
builder or developer folded.
We are starting to see some price stabilization of lots that were foreclosed
on in numerous subdivisions at as much as 75% off of the peak price. With a
new lower lot price, a home builder can now build a home that will sell and
still make a gross profit of about 15%.
The FDIC and the banks have so tightened the lending restrictions that
most home builders have found it impossible to obtain a loan to purchase the
24
discounted lots
or obtain a construction loan. This has
opened the door for investment groups. These investment groups purchase lots from
the bank after foreclosure. The investment group then forms a new company in
partnership with a home builder to build homes on the lots they own.
There are many indications that over the next few years we will see many
changes in the design of homes, the way homes are constructed, the way
homes are financed and the way the covenants for community associations
are drafted.
We are all on the door step to opening the door on a new way of managing community associations. People’s expectations are changing, and they are
now concerned with things they might not have been concerned with in the
past. We are seeing more and more homeowners association Boards asking
for more economical solutions and looking deeper into how things are being
handled in their communities. n
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CAI-Georgia LAC Committee at their first ever
Meet and Greet at the Georgia State Capitol
(L to R) Dan Ross of Sutton Pines Condo Assoc.; Wayne Forester of Timbers of Vinings; Julie Jackson of CAI-Georgia; Kathy Dorough of Dorough
& Dorough, LLC and 2010 Chapter President; Randy Lipshutz of Lipshutz Greenblatt LLC; Elizabeth Johnston; Julie McGhee Howard of Weissman,
Nowack, Curry & Wilco, P.C.; Celia Ebert of Parkside Management; Mike Zenner of Weinstock & Scavo, P.C. & LAC Committee Chair; and
Sally Lewis-Butler of Insurance Marketing Group
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29
The Impact Of Unpaid Taxes
On Your Community
By Elina V. Brim, Esq.
www.luederlaw.com
Imagine driving by your community’s tennis court
and seeing a county sign that the tennis court will be
auctioned off for unpaid taxes. Some boards have
had to deal with this unfortunate situation. Creating a
workable solution requires understanding the problem
and available legal options. This article will address the
most frequent situations in which common area taxes are
not paid and describe the consequences of a tax sale.
O
ne of the most common reasons taxes on the common areas
remain unpaid is because the association does not hold
title to the property and does not receive county invoices
for taxes. In fact, the board may not even be aware that
the association does not hold title to the common areas
until faced with a sheriffSection 0 s seizure of the common
property. Typically, the problem occurs prior to the turnover when the
developer does not properly transfer title to the association and stops paying
taxes. Therefore, every association board should (1) ascertain ownership of
all the common area parcels; (2) ensure that the tax commissioner has the
correct address to mail the tax invoices to the association, and (3) effectuate
transfer of ownership to the association if the common areas are not owned
by the association.
When taxes on the common areas are not paid, the sheriff may initiate
a tax lien (fi.fa.) sale. After the initial delinquency notice to the owner, the
property is advertised for a tax sale by the tax commissioner, tax collector,
or the sheriff for four consecutive weeks in the county newspaper. In addition, the law requires that the owner of the property receive ten days written
notice of the sale by certified mail. If the owner of the common areas pays
taxes and any accrued interest before the sale, the property is not auctioned
off. However, if the owner does not pay, the tax lien is sold to the highest
bidder at the courthouse steps. Keep in mind that the owner might still be
the developer who simply ignores the notices.
Many board members wonder why anyone other than the owner would
purchase a tax lien on the property burdened by a security deed or other
liens. Georgia law provides that if the owner or creditor of the owner wants
to buy back (or redeem) the property after the sale, the purchaser of the tax
lien is entitled to recover all amounts paid for the lien, plus any additional
taxes paid by the purchaser, plus a premium of 20% of the amount paid at
the sale for the first year, and 10% for each subsequent year. In addition, if
the property is not redeemed (or repurchased) within 12 months from the
date of the sale by the owner or any creditor, the purchaser may obtain a free
and clear title to the property, unencumbered by the mortgage and any other
liens. Therefore, purchasing tax liens can be a good investment. The purchaser either receives at least a 20% premium on top of what the purchaser
paid at the tax sale and conveys the title back to the owne, or obtains a free
and clear title to the property after 12 months1.
The last step in the process is for the tax lien purchaser to file a quiet title
action to ensure that the title to the property is free and clear of any liens.
This petition may be filed only after the expiration of the 12-month period
during which the owner or the owner’s creditors may redeem (repurchase)
the property and after proper notice to all interested parties. After the court
determines that the tax purchaser complied with all the requirements, the tax
lien purchaser holds a free and clear title to the common areas.
Fortunately for the association, tax lien sales do not affect easements across
the common property burdened by the lien. As long as the easements granted by the declaration of the community were recorded prior to the recording
of the tax lien, those easements are unaffected by a tax lien sale
The longer the association does not pay taxes, the more penalties it will
ultimately have to pay to preserve its ownership interest in the common property. Losing ownership presents a whole set of new problems. Therefore, it
is in the best interests of the association to pay taxes on time. If your community is faced with the prospect of a tax sale, it is advisable for the board to
contact the association’s legal counsel. n
1. The purchaser must provide notice to all interested parties, including the owner, that the time for repurchasing (redeeming) the property is about to expire. Unless and until such notice is provided,
the association or other interested parties may still redeem.
30
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GEORGIA LIGHT
COMPANY TROPHY
BEST IN SHOW
ROBINSON WHIMSICAL
TROPHY
33
Swimming Pool Management
for Community Associations
Customized Weekly Service • Chemicals
Repair and Renovation
Pool Supplies • Safety Equipment
Leak Detection
Phone: 770-992-4322 Fax: 770-650-0078
[email protected]
34
CAI-Georgia Awards...
Doyle Jones, CMCA, PCAM & Tom Saunders of
Julie Jackson of CAI-Georgia & Elizabeth Kennedy
Julia Phillips, Kent Atzinger, Kate Cunningham & Sam Waleski of
Access Management
(right) Mickel
Graham, PCAM
of Union Bank
shares his
memories of Rita
Kennedy.
Bill Russell, Sherry Russell, Courtney Russell
and Teddy Russell of Russell Landscape Group
& 2009 Chapter President
Julie Jackson of CAI-Georgia, Teddy Russell of Russell
Landscape Group (2009 Chapter President), & Ken
Koushel, CMCA, AMS, PCAM of Homeside Properties –
2009 Educator of the Year Award Winner
Caroline Bell, PCAM; Leslie Fellows, CMCA, & Kelley
Brewster, CMCA, AMS of Today Management, Inc.
(right) Jay Lazega
of Lazega &
Johanson LLC &
Mike Zenner of
Weinstock & Scavo,
P.C. and LAC
Committee Chair
Teddy Russell of Russell Landscape Group (2009
Chapter President), Julie Jackson of CAI-Georgia,
& Chuck Negas of Northwest Exterminating (2008
Chapter President)
(left) Laura Lazar, CMCA, AMS, PCAM of
Eagle Management Services (2009 Rita
Kennedy Award Winner) & Elizabeth Kennedy
Ashlie Bisig of SERVPRO of North
Fulton (2008 Rita Kennedy Award
Winner) congratulates 2009 Rita
Kennedy Award Winner, Laura
Lazar, CMCA, AMS, PCAM of Eagle
Management Services.
Laura Lazar, CMCA, AMS, PCAM of
Eagle Management Services – 2009 Rita
Kennedy Award Winner
Former Rita Kennedy award winners, including
Noelle Larson of Lazega & Johanson LLC and
Doyle Jones, CMCA, PCAM of Capitol Community
Management congratulate Laura Lazar, CMCA,
AMS, PCAM of Eagle Management Services.
(left) Helene Prokesch
of Lekotek of Georgia
& Jay Fraiser of Lazega
& Johanson LLC & Golf
Committee Chair
Mike Crew, CMCA, PCAM of
Homeowner Management Services –
2009 Leadership Award Winner
35
PRSRT STANDARD
US POSTAGE
PAID
BRAINERD
PO Box 2943
Peachtree City, GA 30269
770-643-6029
www.aaapaint.com
AAA Painting & Staining is one of Metro Atlanta's leading
painting and renovation contractors. Our business began
in 1984 and we have been assisting customers by providing
quality service and excellent product selection.

CAI of Georgia

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