[Nhhoa] Commons Area

Sat May 24 14:37:31 CDT 2008

I agree that the issue needs to be addressed.  Kimberly and I have an
"Invisible Fence" that keeps out pets in our yard, and I would never even
think about taking them to the pool.

The board can institute a rule that states, as recommended, "No pets in the
Common Areas."  Unfortunately, that will not fix the problem.  This is one
example of the issue with the current governing documents, and why it is
important that they get updated, and we have a 2/3rds affirmative vote to
accept them.

It is my understanding in talking with the HOA attorneys, that the board can
suspend the rights  of any member for such period it considers appropriate
for any infraction of its published rules and regulations. (Article 4,
Section 2(d) of the covenants).

The problem comes in with Article 7, Section 20 - Enforcement; which
basically says that to enforce the covenants, it will be by proceedings at
law or in equity.  Simply stated, that means the only enforcement vehicle is
to bring a lawsuit against the offender. 

Bartow County Sheriff's department made it very clear that they had very
little authority to enforce anything in the common areas, as it is private
property, with the exception of criminal behavior.  So that is not of much
help either.

Currently, we can't fine a violator of the rules, we can't place a Lien on
their property, and the Sherriff is not going to help.  We can bring a
lawsuit - and that gets expensive.

Under the Property Owners Act, which is going to be a large part of the
restated governing documents that we will all have the opportunity to vote
on, this situation will change.  See sections 3 and 4 below:

The Georgia Property Owners' Association Act ("POA") was adopted in 1994 to
expand the powers of homeowners associations . The POA does not, however,
apply automatically. Instead, the developer of a community or the members of
a community's homeowners association must "opt in" to be governed by the
POA. The "opt in" process generally takes place either by the developer when
the developer initially creates the declaration of covenants for the
community, or by the members of the homeowners association through an
amendment to the declaration. 

Unfortunately, developers of most communities do not submit their
communities' covenants to the POA. Thus, it is usually after the developer
finishes development of a community, or is close to finishing, that the
members of the homeowners association are able to submit the community to
the POA. 

While many homeowner associations have already submitted to the POA, many
still have not. We strongly encourage communities to do so. The process is
relatively simple and inexpensive but the benefits are great. To submit to
the POA, the association must follow the specific amendment process set
forth in its declaration of covenants. For example, if the declaration
states that the amendments require approval of two-thirds of the association
members, then approval of such two-thirds would be needed to submit to the
POA. Some of the benefits of the POA include the following:

1. Automatic Statutory Liens

After submitting to the POA, the association will no longer be required to
file liens at the county courthouse for unpaid assessments or other charges.
Instead, the POA creates an automatic statutory lien against a delinquent
owner's lot for any sums owed to the association. The POA provides that the
declaration of covenants itself serves as notice that there is a lien on
every lot in the community for any unpaid assessment or other charges. As a
result, closing attorneys, title examiners, purchasers or owners must
contact the association for a statement of any amounts owed to the
association prior to concluding a sale or refinance of the lot, or risk the
existence of a lien. If the association is not paid out of the proceeds of
the sale or refinance, the lien continues against the lot and will generally
have priority over subsequent liens and mortgages.

An additional tremendous benefit of the POA's automatic lien is that it
protects the association even if the association's records have incorrect or
misspelled owner names. Recorded liens are only effective if filed under the
correct owner names. If the association's records have an owner's name
misspelled the recorded lien may be ineffective. The POA makes the lien
effective, even if you have incorrect or no information about an owner.

2. Buyers and Sellers are Jointly and Severally Liable to Pay Assessments

The POA includes another provision that generally strengthens an
association's assessment collection powers. The POA makes buyers and sellers
jointly and severally liable for all unpaid assessments. This means that, if
the automatic statutory lien is not paid at the closing, the association can
proceed against the new owner, who will be personally liable for all amounts
owed prior to the closing. 

3. Tenants are Obligated to Comply With Association Regulations

The POA also clarifies that all owners and tenants must comply with all the
provisions of the declaration of covenants and the association's rules and
regulations. 

4. Fines and Suspension of Privileges

The POA gives the association a statutory power to assess fines against
violators and to suspend the common area use rights of violators, if
specified in the declaration. Fines constitute a lien against the violator's
lot, and the ability to fine significantly strengthens the association's
powers to enforce the covenants and the rules and regulations.

5. Late Fees and Interest

Submission to the POA allows the association to charge a late fee of the
greater of $10.00 or ten percent (10%) of the amount due, and interest at a
rate of ten percent (10%) per annum on unpaid assessments and charges, if
specified in the declaration. 

6. Recovery of Attorney's Fees from Owners

The POA authorizes the recovery of the association's costs of collection of
the delinquent assessments, including reasonable attorney's fees actually
incurred. This provision is extremely helpful with judges who otherwise are
reluctant to grant the association is attorneys fees, when it sues
delinquent or violating owners. 

7.  Protection of Homeowners from Liability

A tort action alleging or founded upon negligence or willful misconduct by
any agent or employee of the association or in connection with the
conditions of any portion of the instrument which the association has the
responsibility to maintain shall be brought against the association. No lot
owner shall be precluded from bringing such an action by virtue of his
membership in the association. A judgment against the association arising
from a tort action shall be a lien against the assets of the association.

Perpetual Duration

Prior to 1993, Georgia law at Code Section 44-5-60(d)(1) generally provided
that covenants expire after twenty years. That statute was amended in 1993
to permit covenants to automatically renew, but the Georgia courts have held
that covenants in communities that were recorded prior to 1994 do not
receive the benefit of the new 1994 law. One of the extremely important
benefits of the POA is that it has a provision that states Code Section
44-5-60(d)(1) shall not apply to any covenants contained in any instrument
submitted to the POA. That means that if a community's covenants were
recorded prior to 1994, submission to the POA now will eliminate the
possibility that the covenants will expire after twenty years. 

Please, take a few minutes to look this over.  I believe it is imperative to
the continued wellbeing of our neighborhood and will go a long way in
allowing the board to protect all of our property values.

Roger Hackler

From: nhhoa-bounces at nhhoa.org [mailto:nhhoa-bounces at nhhoa.org] On Behalf Of
Mel & Ginger Parish
Sent: Saturday, May 24, 2008 10:08 AM
To: 'North Hampton Homeowners Association'
Subject: Re: [Nhhoa] Commons Area

Don't the streets belong to the county?  If so, they wouldn't be considered
'common areas'.  They are public.

From: nhhoa-bounces at nhhoa.org [mailto:nhhoa-bounces at nhhoa.org] On Behalf Of
susanstaylor at bellsouth.net
Sent: Saturday, May 24, 2008 9:18 AM
To: North Hampton Homeowners Association
Subject: Re: [Nhhoa] Commons Area

Do the common areas include the streets? If so, this rule cannot be applied
since pretty much everybody with a dog is going to walk said dog.

-------------- Original message from cdhan at bellsouth.net: -------------- 

I believe the original rule was "No pets in common areas." which would cover
all problems. Currently the only posted rule regarding pets is on the tennis
court. 

-------------- Original message from treasurer at nhhoa.org: -------------- 

> How would you have the rule read? 
> Sent via BlackBerry by AT&T 
> 
> -----Original Message----- 
> From: cdhan at bellsouth.net 
> 
> Date: Fri, 23 May 2008 21:13:15 
> To:North Hampton Homeowners Association , nhhoa at nhhoa.org 
> Subject: Re: [Nhhoa] Commons Area 
> 
> 
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