Member Resignation per Bylaws

Hi Luane:

Thank you for not opening a 3 year thread. That way we all would not have to read items which may not actually pertain to your question.

I just want to clarify what you stated:

Are the letters of resignation just homeowners or are they Board/Officers?

The members section you quoted would just pertain to homeowners; otherwise, you would need to state the other article regarding Board/Officers.

Can you describe your POA?

I am curious as to why resignation is allowed, based on 'right or interest."

Are you a mobile home or camp park?

Have you had mandatory membership or voluntary?

Daniel,

It is indeed an odd clause, but since it is in the Bylaws I don't think it can be ignored legally. I can see how the HOA covenants could still be enforced since they run with the land. What I'm not clear on is if or how fees could be imposed on a non member of an organization. The issue is in the hands of a lawyer, but he's been sitting on it for two months.

Luckily, there are no common areas and the fees are generally used for a yearly community picnic and flowers for the sick.

Luane:

I am not sure if I can help much due to you are not covered under the Georgia Statutes. If you were we could review statutes and make suggestions or post statute information. The only way I can think of to help would be if you post alot of verbage from your document, but it would need to be exact verbage. You might double check the amendments and make sure at some point if they did opt-in pursuant to:

Georgia State Code:
http://www.lexisnexis.com/hottopics/gacode/Default.asp

§ 44-3-222. Creation of property owners' development; affirmative election to be governed by article

A property owners' development shall come into existence upon either the recordation of the declaration pursuant to this article or the amendment of a recorded declaration in accordance with Code Section 44-3-235. Any declaration or amendment intending to bring or avail a development of the benefits and provisions of this article shall state an affirmative election to be so governed. Any original declaration shall be duly executed by or on behalf of all of the owners of the submitted property. Any such amendment to an existing declaration shall be executed in accordance with the terms of the recorded declaration being amended thereby.

§ 44-3-235. Applicability of article

(a) This article shall apply to all property which is submitted to this article. This article shall also apply to any association of owners subject to a recorded declaration of covenants upon property, which covenants are administered by an owners' association in which membership is mandatory for all owners of lots in the development, which declaration is amended in accordance with Code Section 44-3-222 in order to submit the property owners' association to this article; provided, however, that any amendment must conform the instrument creating the property owners' association to this article, and the property owners' development shall thereafter be deemed to be submitted to this article.

(b) This article shall not apply to associations created pursuant to Article 3 of this chapter, the "Georgia Condominium Act," except to the extent that a property owners' development created under this article includes a condominium, together with other real property, as provided in paragraph (9) of Code Section 44-3-221.

(c) This article shall not be construed to affect the validity of any instrument recorded before or after July 1, 1994, but benefits derived from or based upon this article may only be claimed by developments submitted to this article.

HISTORY: Code 1981, § 44-3-235, enacted by Ga. L. 1994, p. 1879, § 1; Ga. L. 2004, p. 560, § 15.

Otherwise you could post sections of your CCR and we can give suggestions on possible interpretations.

Janet,

I am absolutely certain that the association has never opted into the GA law.

Our CCR are very short and strange in parts. I'll post parts to get your input since you've kindly offered and you'll see what I mean. It's been a very loosely organized and governed body since inception. It has gone for long periods without a BoD and although there are and have been numerous covenant violations no enforcement actions have ever been taken to include recovering dues arrearage.

Thanks so much for your help and input.

Luana,

Since your documents do not specify that the Association is mandatory and your bylaws allow for members to resign, I would suspect that membership is purely voluntary.

The covenants would still exist on those lots for anyone who resigns. Those lots would still be required to follow them. Depending on the wording within the CC&R's it's possible that the Association could still enforce those covenants but might have to go through legal actions, like any other property owner, to force compliance. The members who resigned would have no obligation to pay any assessments or to follow any rules other then what is within the CC&Rs.

If the Association is voluntary, I believe that it can not be made mandatory to those who resigned without their consent.

All of this advise is going to depend on the exact wording of all your governing documents.

Tim

Hi Luane:

I might have ran across an answer to part of your question, due to another similar post which gave me a heads up regarding a different area of the statutes. While a POA must opt-in to be covered under CHAPTER 3. REGULATION OF SPECIALIZED LAND TRANSACTIONS - ARTICLE 6. PROPERTY OWNERS' ASSOCIATIONS, I figured there must be a statute that at least covered regarding Covenants for those who do not opt-in and it could be the following statute. It is at least something for you to check out and see if it applies.

Georgia State Statutes:
http://www.lexisnexis.com/hottopics/gacode/layout.htm

CHAPTER 5. ACQUISITION AND LOSS OF PROPERTY

§ 44-5-60. Covenants running with land; effect of zoning laws; covenants and scenic easements for use of public; renewal of certain covenants; costs

(a) The purchaser of lands obtains with the title, whether conveyed to him at public or private sale, all the rights which any former owner of the land under whom he claims may have had by virtue of any covenants of warranty of title, of quiet enjoyment, or of freedom from encumbrances contained in the conveyance from any former grantor unless the transmission of such covenants with the land is expressly prohibited in the covenant itself.

(b) Notwithstanding subsection (a) of this Code section, covenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws nor in those areas in counties for which zoning laws have been adopted.

(c) The limitation provided in subsection (b) of this Code section shall not apply with respect to any covenant or scenic easement in favor of or for the benefit of the United States or any department, bureau, or agency thereof; this state or any political subdivision thereof; or any corporation, trust, or other organization holding land for the use of the public, but only with respect to such covenants and scenic easements running in favor of or for the benefit of the land so held for the use of the public. Such covenants and scenic easements shall run in perpetuity.

(d)(1) Notwithstanding the limitation provided in subsection (b) of this Code section, covenants restricting lands to certain uses affecting planned subdivisions containing no fewer than 15 individual plots shall automatically be renewed beyond the period provided for in subsection (b) of this Code section unless terminated as provided in this subsection. Each such renewal shall be for an additional 20 year period, and there shall be no limit on the number of times such covenants shall be renewed.

(2) To terminate a covenant as provided in paragraph (1) of this subsection, at least 51 percent of the persons owning plots affected by such covenant shall execute a document containing a legal description of the entire area affected by the covenant, a list of the names of all record owners of plots affected by the covenant, and a description of the covenant to be terminated, which may be incorporated by reference to another recorded document. By signing such document, each such person shall verify that he or she is a record owner of property affected by the covenant. Such document shall be recorded in the office of the clerk of the superior court of the county where the land is located no sooner than but within two years prior to the expiration of the initial 20 year period or any subsequent 20 year period. The clerk of the superior court shall index the document under the name of each record owner appearing in the document.

(3) No covenant that prohibits the use or ownership of property within the subdivision may discriminate based on race, creed, color, age, sex, or national origin.

(4) Notwithstanding any other provision of this Code section or of any covenants with respect to the land, no change in the covenants which imposes a greater restriction on the use or development of the land will be enforced unless agreed to in writing by the owner of the affected property at the time such change is made.

(e) To the extent provided in the covenants, the obligation for the payment of assessments and fees arising from covenants shall include the costs of collection, including reasonable attorney's fees actually incurred.