Amending Restrictive Covenants to Include Fines - GA Common Law POA

Certain Members of our Association (as well as the Developer/Declarant) are interested in amending our Declaration and Restrictive Covenants to include the right to fine Members for Use Restriction violations. According to the terms of the current Declaration, the only remedy available is to take them to court, get a judgement and then use the power of the court to enforce. This is because the developer of our 40 year community refuses to submit the covenants to the GA Uniform POA Act because of the sweet deal they have in the current documents (No obligation to pay HOAs on unsold lots after 40 years, 15.6% Management Fees, No Budget Controls for Ownwers, declarant voting control because of 40% unsold lots, 51% vote to Amend instead of 66%, the list goes on and on.)

In light of the 2009 GA Case "Walker vs Charter on the River HOA", would an amendment to our commonlaw POA for fines be considered an "increased use restriction" which would require 100% Homeowner approval to be effective against all Homeowners, or would the stated Amendment approval percentage in the existing Covenants (51%) be effective against all Homeowners if reached?

Tony,

I am not an attorney and I do not work in the legal profession. I offer advise based on the information contained in your post, research, personal experiences and, hopefully, some common sense.

The case you refer to is centered around an Association creating additional land use restrictions, in this case renting, that was not there at the time the property was purchased. The homeowner identified a GA law, OCGA § 44-5-60(d)(4), which protects the owner from additional restrictions to the land.

Your Associations enforcement policies would, in my opinion, nor be an additional restriction to how you use your land. It would just be adding a method for enforcement of the land use restrictions already agreed to.

Therefore, without knowing any other specifics, in my layman's opinion, a simple amendment is all that would be required.

Tim

1,300 existing home or lot owners. 700 + unsold lots still retained by Declarant Developer.

This is a good article written by an attorney wirh the firm best known in Atlanta for it's expertise in this area. It is well written and accurate. The problem is our Developer will never agree to submit itself or support a movement to the Uniform Act because of the benefits and control they enjoy outside the Act.

Our fees and other revenues annually exceed $2.5 mm. They cover CAM, a golf course,swim and tennis, roads, Mgt. fees, admin, insurance on the common areas, security.

At this time only ~ 10% of these revenues make it to R&M, which is a ridiculously low figure.

This is an extremely one sided relationship and one where history has shown us that the only way to get the Declarant to treat us fairly and according to the Covenants is to sue them, which we have successfully done on 2 occasions. The problem with doing that is that is: (1) they use our fees to defend the lawsuits and (2) lawsuits are divisive and very hard on community morale.

Interestingly, the biggest eyesores in the community are typically created by variances to the Covenants granted by the Declarant or decisions made by the Declarant with respect to their own development activities.

Sigh ... sorry for the typo:

Which in your HOA potentially would be good due to all the nice amenities which takes money for maintaining.

While in theory we have the numbers, in reality this is an absentee owner project and we are lucky to get 10% of the owners to even respond and vote. It will never happen here.

This community has a long history of apathy. We would never have a quorum for our annual meeting without the Declarants votes. Even with proxies we have never had grater than 15% Owner turnout. It is a very unusual. community. The only time there is any interest at all. Is when Declarant threatens to raise HOAs. There is too. Much history here to ignore.