Archive for the ‘Condominiums’ Category
Amy H. Bray, Esq., partner at Andersen, Tate & Carr, P.C., has been granted membership in the College of Community Association Lawyers (CCAL)—of fewer than 150 attorneys nationwide to be admitted to the prestigious organization. Members of the College are among the most respected community association attorneys in the country.
CCAL was established in 1993 by Community Associations Institute (CAI), with membership consisting of attorneys who have distinguished themselves through contributions to the evolution and practice of community association law. CCAL members are also recognized for committing themselves to high standards of professional and ethical conduct.
Ms. Bray’s practice focuses on real estate, encompassing both commercial and residential closings and extensive experience in community association law. She is also an experienced mediator, who applies her knowledge to the practical and efficient settlement of real estate-related disputes.
Celebrating its 25th anniversary, Andersen, Tate & Carr, P.C. was founded in 1988. In that time the firm has grown from two to almost thirty attorneys and over sixty employees, making it the largest business law firm in Gwinnett County. The firm’s roots in Gwinnett County reach back much further; however, as some of its attorneys have practiced here since the mid-1970s. Andersen, Tate & Carr has become one of the preeminent law firms in suburban Atlanta by offering unparalleled legal representation in a wide variety of practice areas, such as real estate and banking, corporate and business transactions, civil litigation, land use and development, estate planning, criminal defense, and family law.
CCAL provides a forum for the exchange of information among experienced legal professionals working for the advancement of community association governance. Its goals include promoting high standards of professional and ethical responsibility, improving and advancing community association law and practice, and facilitating the development of educational materials and programming pertaining to legal issues.
CAI is a national membership organization dedicated to helping homeowner and condominium associations meet the expectations of their residents. The organization accomplishes this mission by providing information, tools and resources to homeowner volunteer leaders and community managers who govern and manage common-interest communities. By helping its members learn, excel and achieve, CAI strengthens the governance and management of community associations throughout the country, making them better places to live.
More than 62 million Americans live in an estimated 325,000 homeowner and condominium associations, cooperatives and other planned communities.
English: Symbol of Georgia State Senate . (Photo credit: Wikipedia)
The Senate Banking and Financial Institutions Committee is poised to consider Georgia Senate Bill 56 and a priority lien for community associations this Friday, February 22, 2013.
Georgia ranks in the top of the nation for the number of foreclosures, and communities across our state continue to feel the devastating economic impact of foreclosures. A priority lien would help community associations by requiring that a foreclosing bank satisfy up to six months worth of homeowners or condominium owners’ association fees that are due at the time of foreclosure.
For more information regarding how to contact your legislators regarding the bill, go to https://www.facebook.com/#!/cai.georgia provided by the legislative action committee of the Georgia chapter of the Community Associations Institute for a more extensive discussion and contact information for the legislators.
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The Georgia legislature has a bill pending for the next legislative session (SB 136) which, if passed into law, may help owners in condominium associations where the developer/declarant remains in control of the condominium association.
Essentially, the bill amends O.C.G.A. 44-3-101 to provide that certain failures to act, by the declarant, would allow owners a way to gain control of the condominium association via petition to the superior court of the county in which the condominium is located.
For condominium unit owners, particularly those in condominiums that “stalled out” due to the economic downturn, this bill is worth watching. Note though, that it is ONLY applicable to Georgia condominiums, and not other types of homeowner or property owner associations. If you are unsure if you are dealing with a condominium or another type of association, you should seek knowledgeable legal advice.
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In Mortgagee Letter 2011-22 dated June 30, 2011, the U.S. Department of Housing and Urban Development (“HUD”) consolidated and updated the requirements and procedures for its condominium approval process. The new requirements clarify, expand, consolidate, and update the preexisting guidelines and replaces exisitng mortgagee letters (2009-46a, 2009-46b, and 2011-03).
The new requirements will take effect 60 days after ML 2011-22 was issued for all project approval packages submitted to HUD for review.
New and existing condominiums ( meaning association board of directors as well as condominium developers) should take heed of these new guidelines. The status of a condominium as approved (or not approved) can have an impact on the ability of unit owners to sell units, as qualification for FHA conventional loans hinge upon whether the condominium is approved.
If you have questions or uncertainty about how this affects you, as a condominium unit owner, developer, or lender, we urge you to contact your legal counsel for further discussion.
Georgia may soon be the newest state to adopt legislation regarding transfer fees that are payable to third parties (such as developers, community associations, and nonprofit foundations). HB 129 has been adopted by the Georgia House of Representatives and has crossed over to the Georgia Senate for consideration.
This particular iteration, as approved by the Georgia House of Representatives, permits transfer fees payable to condominium associations, associations that are subject to the Georgia Property Owners Association Act, and associations formed for the purpose of acting as a property owners’ association (as described in the bill), but otherwise prohibits all other transfer fees.
Today FHA announced extension of condominium project approvals with an expiration date of December 7, 2010.
The extension dates based on five-year time frames (with the exception of those condominium projects with original approval dates from 1972 -1985) are as follows:
Initial Project Approval Dates Current Expiration Date New Expiration Date
1972 – 1980 December 7, 2010 December 31, 2010
1981 – 1985 December 7, 2010 December 31, 2010
1986 – 1990 December 7, 2010 May 31, 2011
1991 – 1995 December 7, 2010 July 31, 2011
1996 – 2000 December 7, 2010 August 31, 2011
2001 – 2005 December 7, 2010 September 30, 2011
2006 – 2008 (Sept) December 7, 2010 March 31, 2011
FHA encourages lenders and/or other interested parties to begin the re-approval or recertification process as early as possible as it is not anticipated that any further extensions of project approvals will be issued.
The Condominium look-up page and the FHA Connection databases were updated on December 7, 2010 and now reflect the extended expiration dates. The links to the sites are:
Condominium look-up page: https://entp.hud.gov/idapp/html/condlook.cfm
FHA Connection: https://entp.hud.gov/clas/index.cfm
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By: Amy H. Bray
There are a number of things a Georgia community association needs to do each year, regardless of whether it is a condominium association, a homeowners’ association, or even a commercial owners’ association. However, one of the more important tasks is commonly overlooked.
Each year a community association, as a nonprofit corporation, must file its annual registration with the Georgia Secretary of State, pursuant to Section 14-3-1622 of the Official Code of Georgia. Failure to file the annual registration (and pay the administrative fee) puts the association at risk of being administratively dissolved.
If the association is administratively dissolved, it continues to have a “corporate existence” but (and here’s the kicker) it can not “carry on any business except that necessary to wind up and liquidate its business and affairs.” (See Section 14-3-1421(c) of the Official Code of Georgia.) Such a dissolution becomes permanent if the association is not reinstated before five years after the administrative dissolution.
If the association is reinstated during that time period, though, the reinstatement relates back to the administrative dissolution. The association would then be able to carry on as if the dissolution had not occurred. However, it is very important to understand that if there are actions pending, particularly lawsuits, that the status of the association matters and timing issues, in addition to the ones discussed here, matter too.
This past fall, the Georgia Secretary of State administratively dissolved a number of nonprofit corporations for failure to file registrations.
Many associations are unaware that their association was administratively dissolved, for a variety of reasons. The most common reasons are that the old registration sends notices to a person who is no longer on the board of directors, no longer lives in the community, or just is focusing on other things going on in his or her life.
Regardless, it is a good idea to check the status of your association and bring it up to date, if necessary. The process to reinstate is fairly easy and can be accomplished via the instructions on the Georgia Secretary of State’s website. Keep in mind that there are limitations on who can accomplish a reinstatement, though. If you think you need assistance, be sure to seek competent legal counsel.
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Amy H. Bray is a Georgia attorney, focusing her practice in community association and real estate law matters.
Her firm, Andersen, Tate & Carr, P.C., works with all manner of clients in business and personal matters, providing “big firm” sophistication with suburban law firm attention and service.
Copyright © 2009 & 2010, Amy H. Bray & Andersen, Tate & Carr, P.C.
Recently, the Court of Appeals of Georgia visited a matter of first impression in Georgia: the determination of proper venue for a suit to foreclose on a condominium association’s lien. In the case of Foster v. Wilmington Plantation Owners Association, Inc., 2010 WL 2163926 (Ga.App.), decided on May 28th, 2010, the Court of Appeals held that a condominium association’s action to foreclose on its assessment lien is not an action respecting land for the purpose of determining venue.
In Foster, the association brought two actions in an effort to collect condominium assessments arising from four different units. At the point at which the suit was filed, the units had been owned by one party, who had conveyed two of the four units to one person and then conveyed the remaining two units to someone else. This “original owner” no longer actually owned a unit, but had taken back a mortgage in connection with one of the conveyances. The actions were brought against the original owner of the units and against the subsequent owners of the units. The trial court dismissed the original owner’s improper venue motion and the original owner filed an interlocutory appeal.
The Court of Appeals relied on the language of the O.C.G.A. Section 44-3-109 (a portion of the Georgia Condominium Act) to determine the manner for interpreting the association’s lien rights to determine which venue rules apply. It relied heavily, in particular, on the statement in O.C.G.A. Section 44-3-109(c) that the association’s lien for assessments may be foreclosed in the same manner as other liens for the improvement of real property under O.C.G.A. Section 44-14-360, et seq. O.C.G.A. Section 44-14-360, et seq. deals with mechanic’s and materialman’s liens (liens for the improvement of real property).
According to O.C.G.A. 44-14-361.1(a)(2), while a claim of lien may be filed in the county where the property is located, an action to foreclose the lien must be filed in the county where the defendant resides.
Further, the Appellate Court pointed out that the original owner, by taking back a mortgage on some of the units, did not become a “joint obligor”. If the original owner had been a joint obligor, it would have allowed application of the rules regarding proper venue for such parties, allowing the case to be tried in a county of proper venue for any one of the joint obligors. See O.C.G.A. Section 9-10-31(a). However, the Court of Appeals focused in on the wording of the Georgia Condominium Act in determining that the original owner’s rights as a mortgage holder did not qualify it to also be considered a unit owner, as defined in O.C.G.A. Section 44-3-71(29).
It is important to note that the entire venue argument would be different if the suit was not an action to foreclose the association’s lien, but an action for the assessments (money damages).
By: Amy H. Bray, a partner in our Commercial Real Estate Department.