Georgia Condo Act vs HOA Act: Which Law Governs Your Community

Georgia Condo Act vs HOA Act: Which Law Governs Your Community

Georgia does not have a single comprehensive homeowners association act that covers all communities. Instead, your association may be governed by the Georgia Condominium Act found in Title 44, Chapter 3, Article 3 of the Official Code of Georgia Annotated, the Georgia Property Owners' Association Act found in Title 44, Chapter 3, Article 4, or neither statute at all. The most common mistake Georgia boards make is assuming their community falls under one of these laws when it does not, or applying the wrong set of rules to their governance and enforcement actions.

The Georgia Secretary of State's Corporations Division registers condominium and HOA entities, but registration alone does not determine which statute applies. The Attorney General's Consumer Protection Division investigates complaints about deceptive practices by associations, but it does not issue advisory opinions on which law governs a specific community. You must examine your declaration of covenants, articles of incorporation, and the physical structure of your property to know which framework controls your board's authority.

The Georgia Condominium Act

The Georgia Condominium Act applies when your community is organized as a condominium under a declaration that creates individual units and common elements. A condominium in Georgia means you own the airspace inside your unit boundaries and hold an undivided interest in the common areas as a tenant in common with other unit owners. The declaration must describe the property, allocate percentage interests to each unit, and establish the association as the governing body.

Under the Condominium Act, your board has statutory authority to adopt budgets, levy assessments, and record liens for unpaid assessments without a separate court judgment. The act requires the association to maintain fidelity insurance and directors and officers liability insurance in amounts the declaration specifies. Your declaration controls the voting threshold for amendments, but the act establishes a default rule that amendments require approval by at least 67 percent of unit owners unless the declaration sets a different percentage.

The act also governs what information you must disclose when a unit owner sells. The seller or the seller's agent must provide the buyer with a resale certificate that includes the current budget, the amount of any unpaid assessments against the unit, the amount held in reserve, and any pending special assessments. The association has 10 business days to provide the certificate after receiving a written request and the required fee. If your board fails to deliver the certificate within that window, the buyer may cancel the contract, and your association may lose the right to collect assessments that accrued before the sale closed.

A common mistake is assuming the Condominium Act applies to any multifamily property. If your declaration does not create individual units with defined boundaries and common elements held as tenants in common, you are not a condominium under Georgia law. A townhome community where each owner holds fee simple title to the land under the unit is not a condominium. In that case, the Condominium Act does not apply, and you must look to the Property Owners' Association Act or common law.

The Georgia Property Owners' Association Act

The Georgia Property Owners' Association Act applies to associations created after July 1, 1994, that govern communities of separately owned lots or homes. The act defines a property owners' association as an organization that owns or maintains common property or levies assessments that may become a lien on a member's property. If your declaration was recorded before July 1, 1994, the act does not apply unless your members voted to adopt it by amendment.

The act requires your association to maintain financial records, meeting minutes, and governing documents and to make those records available for inspection by any member during normal business hours. A member must submit a written request to inspect records, and your board has 10 business days to allow access or provide copies. If your board denies a request without a valid reason, the member may file a complaint with the court, and the association may be liable for the member's attorney fees if the court orders disclosure.

The act also establishes rules for meetings. Your board must give at least 14 days' notice of any meeting at which the board will consider a dues increase or a special assessment. The notice must state the date, time, location, and purpose of the meeting. Members have the right to attend board meetings unless the board votes to enter executive session to discuss personnel matters, pending litigation, or other matters the bylaws designate as confidential. A common mistake is holding a meeting to approve a special assessment without the required 14 days' notice. That vote is void, and the association cannot enforce the assessment until it holds a properly noticed meeting.

Another frequent error is believing the act grants the board automatic lien rights. The act does not create a statutory lien process the way the Condominium Act does. Your declaration must include a lien provision that allows the association to record a lien for unpaid assessments. If your declaration is silent on liens, you must file a lawsuit and obtain a judgment before you can place a lien on a member's property. Many boards assume they can record a lien immediately after an assessment becomes delinquent, then face legal challenges when a homeowner disputes the lien.

The act applies only to associations formed under a declaration of covenants that creates a duty to pay assessments and establishes common property or services. If your neighborhood was developed as individual lots without a recorded declaration, you are not a property owners' association under the act. In that case, your only legal authority comes from any voluntary covenants the homeowners have recorded and from common law principles of contract and property.

Communities Not Governed by Either Statute

Many Georgia communities do not fall under the Condominium Act or the Property Owners' Association Act. If your neighborhood was established before 1994 and never amended its declaration to adopt the Property Owners' Association Act, and if your community is not structured as a condominium, you operate under common law. That means your board's authority flows entirely from your declaration, bylaws, and articles of incorporation. You do not have the statutory protections or procedures that the acts provide, and you must rely on general contract law and fiduciary duty principles to enforce covenants and collect assessments.

A real example illustrates the confusion. The Preserve at Grayton Homeowners Association in Sandy Springs was formed in 2003 to govern a community of single family homes on separately deeded lots. The declaration created mandatory membership and annual assessments but did not reference the Property Owners' Association Act. In 2019, the board attempted to foreclose on a homeowner who owed three years of unpaid assessments. The homeowner challenged the foreclosure, arguing that the declaration did not grant the association a lien right and that the board had not obtained a court judgment. The trial court agreed and dismissed the foreclosure action. The association spent over 24,000 dollars in legal fees and had to refile the case as a breach of contract claim to recover the unpaid assessments.

The mistake in that case was assuming the association had automatic lien and foreclosure rights. Because the declaration did not incorporate the Property Owners' Association Act and did not include a lien provision, the board had no authority to record a lien or foreclose without a judgment. The board should have reviewed the declaration, confirmed the absence of a statutory lien right, and filed a lawsuit for breach of contract before attempting foreclosure.

How to Determine Which Law Applies to Your Community

Start by reading your declaration of covenants. Look for language that describes the property as a condominium, references individual units and common elements, or allocates percentage interests in the common areas. If you see that language, your community is likely governed by the Condominium Act. Check the date the declaration was recorded. If the declaration was recorded after the Condominium Act took effect and uses condominium terminology, the act applies.

Next, check whether your declaration states that the association is subject to the Georgia Property Owners' Association Act. Some declarations recorded after 1994 include a clause that explicitly adopts the act. If your declaration was recorded before July 1, 1994, look for an amendment that adopted the act. If you find no such reference, the act does not apply unless your members voted to adopt it later.

If your declaration does not create a condominium and does not reference the Property Owners' Association Act, you are operating under common law. In that case, your authority comes entirely from the declaration, bylaws, and articles of incorporation. You must read those documents carefully to understand what powers the board has, how the board may enforce covenants, and what procedures the board must follow for assessments and amendments.

Consult your attorney for your specific situation. An attorney can review your declaration, identify which statute applies, and advise you on the procedures your board must follow. Many disputes arise because boards assume they have powers they do not have or follow procedures that do not match their governing documents. An hour of legal advice at the beginning of a project can save thousands of dollars in litigation later.

What You Should Do Now

Pull your declaration, bylaws, and articles of incorporation. Read the declaration from the first page to the last. Highlight any reference to condominiums, units, common elements, the Condominium Act, or the Property Owners' Association Act. Note the date the declaration was recorded and the date of any amendments.

Create a one page summary that states which statute applies to your community and lists the key requirements that statute imposes. For example, if the Condominium Act applies, note the insurance requirements, the resale certificate deadline, and the amendment voting threshold. If the Property Owners' Association Act applies, note the meeting notice requirements, the records inspection deadline, and any lien provisions in your declaration. If neither statute applies, note that your board operates under common law and must rely on the declaration and bylaws for all authority.

Share this summary with your board members. Make sure every board member knows which law governs the association and what that law requires. Many boards operate for years without understanding their legal framework, then face liability when they violate a statute or exceed their authority.

Manorway's AI assisted platform helps you store your governing documents, track which statute applies to your community, and set reminders for compliance deadlines. When your board uses a centralized system to manage legal requirements, you reduce the risk of applying the wrong law or missing a statutory deadline. Manorway does not replace legal advice, but it gives you a clear place to document your legal framework and keep your board informed.