Archive for the ‘Condominiums’ Category

Bray Admitted to College of Community Association Lawyers   Leave a comment

3259734_1 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.

More News on the Proposed Community Association “Superlien” in Georgia

English: Symbol of Georgia State Senate .

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.

 

Georgia Community Association “Priority Lien” Bill – A New Year, Another Chance

For years now, there has been an ongoing push to try to pass a bill in the Georgia legislature that would give community associations that are subject to the Georgia Property Owners Association Act (as opposed to “common law associations”) and condominium associations a special “Priority Lien.”  In 2013, the push continues.  The proposed legislation would allow Georgia associations to collect up to 6 months of past due assessments at a foreclosure sale, if any assessments were due at the time of foreclosure. In 2013 expect this push to continue.  Similar bills have been adopted in 18 states and the District of Columbia in the wake of the home foreclosure crisis.
This would be a huge help to associations. Often assessments are one of the first bills to go unpaid when a homeowner gets into financial trouble and at the time of a foreclosure there may be significant amounts overdue. As the law currently stands the lien of the association for the past due assessments is wiped out in condominiums and associations subject to the Georgia Property Owners Association Act (and generally in common law associations too). Associations typically have no other income stream and so this can really hurt the association’s ability to fund its obligations, often to the detriment of the other property owners that are members of the association.
However, bank lobbyists have lobbied extensively against the passage of such a bill and stand strongly opposed to its adoption.
Also, if such a bill were passed, the distinction between “common law associations” and Georgia Property Owners Association Act associations (aka “POA Act associations” or “statutory associations”) would continue to grow.

This is a situation that bears watching, especially if you are a member of an association that would be affected by such a change in the law.

By: Amy H. Bray, a partner in our Commercial Real Estate Department

Possible Amendment to Georgia Condo Act   Leave a comment

Georgia State Capitol

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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.

HUD Issues Update of FHA Condominium Approval Requirements   1 comment

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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 Poised to Gain Transfer Fee Prohibition   Leave a comment

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. 

FHA has Extended Condominium Project Approval Deadlines   3 comments

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

Annual Registrations for Community Associations   2 comments

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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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You may, as long as you include this complete bio with it:

 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.

Website: www.atclawfirm.com

Blog: www.andersentatecarr.wordpress.com

 Copyright © 2009 & 2010, Amy H. Bray & Andersen, Tate & Carr, P.C.

Committees in Associations: Sharing the Workload   Leave a comment

Committees are fairly common in community associations and help to spread out the burdens of community tasks to more volunteers. With the limitations on the time of the volunteers already serving the community, plus the opportunity to get other residents invested in the community, committees can do even more than merely ensure that someone is watching over the pool and there’s someone to greet new neighbors when they move in. However, sometimes little thought is given to the formation of committees beyond identifying the need to get a task done.

Unfortunately, as a lawyer, I am often called upon to assist “after the horse is out of the barn” to rein in a, supposedly, wayward committee. Many times, in these situations there was either a miscommunication over the expectations for what the committee was intended (and authorized) to do or an enterprising committee member choose to take their job to the next logical step. Sometimes this happens as the committee or its members suspect that a board will not take the steps that the committee believes are necessary.

Regardless of the reasons, in many of these instances the problem of authority could have been resolved in the beginning.

Generally, the by-laws for a community association will permit the creation of committees. The by-laws will likely go on to state that members of the committees serve at the discretion of the board of directors, who can appoint and remove committee members at will. Besides that, there is often precious little additional guidance.

The first step to forming a committee is to determine exactly what you want the committee to do and how long you want the committee to last. In figuring this out, you must go beyond merely stating that you are forming a committee to “take care of the pool” or “for social events.”

Consider the actual tasks that the committee will need to perform, decide if they will only report back to the board, if they will report to the board on a routine basis while performing other tasks, or something similar. Establish whether the committee will have the right to get bids for services for the association. Will they also have the right to enter into contracts? Should they meet routinely? How many people should be on the committee?

Setting parameters for the tasks that the committee is authorized to perform can significantly help to prevent major miscommunications later on. Of course, having a community association attorney assist with drafting the resolution creating a committee is also very helpful, as you can get the benefit of the attorney’s experiences in other communities with similar committees.

By: Amy H. Bray, a partner in the Commercial Real Estate department.

Case Update: Venue in GA Condo Lien Foreclosure   1 comment

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.

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