HB 220 Signed by Governor Kemp on April 22, 2024
HB 220, also known as Act 388, was signed by Governor Brian Kemp on April 22, 2024, and will become effective on July 1, 2024. HB 220 allows condominium and homeowners associations to choose any remedy available under their governing documents to cure violations of their covenants and restrictions instead of having to first pursue any self-help option.
HB 220 will become law on July 1, 2024
This bill was initiated in response to a Georgia Court of Appeals case, Deerlake Homeowners Association, Inc. v. Brown, that requires condominium and homeowners associations to pursue their self-help powers to remedy a violation before seeking injunctive relief that may be available.
HB 220 counters the Deerlake decision
In 2021, the Georgia Court of Appeals affirmed the trial court’s decision in Deerlake Homeowners Association, Inc. v. Brown, finding that it was unreasonable for the Deerlake Homeowners Association to fine a homeowner over $80,000 for failure to make repairs to his mailbox, rather than first use its abatement powers (self-help) to cure the violation and assess the homeowner back the cost of the repairs.
The Deerlake decision required HOAs to seek self-help to correct violations in their communities, thus potentially engaging in dangerous actions and confrontations with homeowners over the violating conditions and access of their property. Under Deerlake, associations cannot pursue other remedies that may be available under their governing documents or law until first attempting self-help.
Condominium and homeowners associations will no longer need to attempt self-help to correct a violation before proceeding to court
HB 220 makes changes to OCGA §44-3-76 in the Georgia Condominium Act and OCGA § 44-3-223 in the Georgia Property Owners’ Association Act (“POAA”) by adding to these statutes authority for associations to pursue injunctive relief after 10 days’ written notice without the need to first pursue or utilize any other available remedies, including self-help.
OCGA §44-5-60, which governs common law homeowner associations, also was modified to provide that in every planned subdivision containing no fewer than 15 lots, the governing homeowners association may pursue injunctive relief without the need to first pursue or utilize any other available remedies. The language for common law associations does not have the 10-day notice requirement, and the enforcement process of the underlying governing documents for the community will control.
In addition, HB 220 modifies the Georgia Condominium Act at OCGA §44-3-106(a) and the Georgia Property Owners’ Association Act at OCGA §44-3-231(a) by adding that except to the extent prohibited by the condominium or property owners’ association instruments, associations shall have the power to pursue injunctive relief without regard to whether other remedies may be available, conditioned on compliance with OCGA §44-3-76 and OCGA §44-3-223.
Additional provisions of HB 220 pertaining to property owner associations’ suspension of voting rights and calling of an annual meeting
In a compromise related to various legislators’ constituent complaints, HB 220 also includes language added to OCGA §44-3-223 of the POAA providing that while a property owners’ association may impose fines against owners for violations of the governing documents, the fines shall not impact an owner’s association voting rights. Further, the bill provides that an owner’s voting rights may be suspended only for the failure to pay regular and special assessments, and the suspension of an owner’s voting rights or their access to common areas shall not deny the owner the right to vote in board elections based on failure to pay outstanding fines.
Similarly, language was added to OCGA §44-5-60, governing common law associations, that “[t]o the extent provided in the instrument, such association shall be empowered to impose and assess fines and temporarily suspend voting rights and the right of use of certain common areas and services paid for as a common expense in order to enforce such compliance; provided, however, that no such suspension shall deny any property owner or occupants access to the property owned or occupied.”
Finally, a provision was added to the POAA at OCGA §44-3-230 that if a property owners’ association fails to hold an annual meeting on or before the last day of the association’s fiscal year, a meeting can be called by 5% of the voting power of the association or such other amount specified in the governing documents up to 25% of the voting power.
Associations may proceed directly to seeking injunctive relief for violations without first exercising self-help to remedy the violation
We are happy to report that condominium and homeowners associations will no longer be required to utilize their self-help remedies before proceeding to court to seek an injunction against owners violating association governing documents. After satisfying any notice requirements, an association may choose any remedy available under its governing documents it deems best to correct a violation. Notably, fines imposed by associations remain subject to the court’s opinion of the reasonableness of the fine amount.
Please contact NowackHoward and our team of experienced Georgia HOA attorneys for your legal needs and any questions you may have about HB 220.
