Weissman Nowack Curry & Wilco, P.C

CharlesW1 - what gives you, and or your board the right to provide the attorney anything to re-write regarding your documents? you are 1 out of 275. did the request to amend come from a percentage of the community petitioning the board? if not, you may be overstepping your bounds, check your by-laws.

JoeW1

Excuse me! Maybe I’m not following you here. You say I’m only 1 of 275, and you would be correct, but I have volunteered to be on the board and with this voluntary obligation, it’s my “fiduciary duty” to the homeowners of this community. These suggestions, although they may be beneficial to all who live in our community, they may not even get approved. I can see this will be a long process.

From what I understand the attorney had asked the board “if we would like to make any changes, (now would be the best time) to purpose them to the community” (for the community to vote). We had made some suggestions and we will be mailing this “draft copy” to all homeowners eligible to vote or not eligible. I was told we must, in case the homeowner decides to pay the account off in full in order to be eligible to vote.

If there is a better way of doing this, please do tell. I going by the information provided to me (documents) and the advice of our MC and attorney. Since this is their full time job and my expertise isn’t as an attorney or a property manager! That’s why we have hired them both. They are the “experts”

I apologize “if” I had unintentionally misdirected you or any other readers.

As always I appreciate your posts,

Thank you
Chuck W.

Charlesw1 - you are not excused Charles. you have volunteered to serve the community to uphold the by-laws as they exist. that is your fiduciary duty!! you will either grasp this concept, or ignore it.

the better way to do it is to do nothing as a board member until the community requests a change. a fiduciary is a relationship of trust. the only thing you are trusting in this case is the agenda to change something. how, and from whom did this agenda originate?

if you wish to spearhead a project such as a conversion from an HOA to a POA, that's all fine and good. do it as a resident, not as a board member. there is a difference. you will either grasp this concept, or ignore it.

board members have an advantage. they have a captive audience of trustees at times when other residents do not. therefore, any agenda has a certain privaledge. a true fiduciary will grasp this concept and be cautious about amendments that don't come from a quorum of the community.

amendments should stand some muster, and come from more than one, or 5 board members. you don't need expertise as an attorney or a property manager, just use some common sense.

CharlesW1 - too late for what? is the community going to crumble if it's not a POA? please explain how becoming a POA will make your community better? if you can't, you are not acting in good faith by furthering the change. as I stated, you will either grasp the concept, or ignore it. you state you are doing what WE feel the majority of this community would want. seems you've lumped this whole fiduciary responsibility thing as a reason to further the agenda which is very far reaching. i am a traditionalist and think that some changes, yours included, should not come before the community unless a large majority of the community brings them before the board.

why not use the money you're paying the attorney for the amendment and uphold your fiduciary duty to maintain adequate reserves and the common element pool?

JosephW,

I appreciate your posting. You said exactly what needed to be said, just better put than I could have written it. Well put, you saved me a tremendous amount of typing (to defend, what I think is best for my community)

You brought up some very good points. I’m sure (as you said) this can be seen from sides, mine and the “traditionalist” point of view.

This statement said it best “If he's right, the amendments will pass. If wrong, they won't. Part of fiduciary responsibility is using your own (and hopefully best) judgment”

Well worded, before being elected to the board (by the people of this community). I didn’t have a clue of what a POA was or even why our community was any HOA instead of a POA all along.

It was this discussion forum and the advice given by many. ( board members like me, with their knowledge of HOA and POA) from all different parts of the county.

As always I appreciate the advice, this discussion forum is the BEST.

Chuck W.

CharlesW1:
Please explain your statement in going from a HOA to POA:
'One of the biggest things from what I understand is that it will help with our collection process and our documents will never expire!'

- How will a POA help with your collection process? can a POA allow you to get unpaid dues NOW? and you don't have to wait for property to be sold so lien can be paid as in HOA
- How do your documents not expire?

I was not aware that documents do 'expire' and have to be re-recorded to make them valid?

Could you or anyone else explain these 2 issues that require legal
(attorney fees) in order to change to POA?

PaulM

JoeW1

You have seriously confused me. You stated “believe some issues, CharlesW1's in particular, require the community to act first” I’m still a homeowner in this community like many of you. (I’m also a volunteered board member)

In theory bringing this or any situation to the attention of the homeowners is a great idea, but you and I both know that you can’t ask a question about something you know nothing about (POA) I have voluntary taken this opportunity to do what ever is necessary to improve property values, in turn improving my property values.

I and other board members felt that being a POA would do just that. If I’m wrong I’ll find out soon enough. I have contributed money to fund for these expenses as did the other board members. (Past 3-5 years) I have as much of a right to suggest this as any one else in this community has.

In stead of complaining or not saying anything at all, I’m making a difference in my community.

I feel that you shouldn’t “gripe” about what is or isn’t being done for the community if you aren’t going to do anything about it.

I feel that any volunteer shouldn’t have to be determined by the total eligible voters. Now that’s baloney, IMHO!

To vote in the President of the United States, they don’t just count all registered voters, they count votes of those that actually voted!
Votes shouldn’t be counted by taking all registered voters and “saying because only 2 billion people out of 10 billion voted you can not be elected!

I’m not certain on how many registered voters there are in the world, but I do know that only the votes that are counted are of those that actually voted, not the total number of registered voters. I know you have heard the saying “you don’t have the right to complain who was elected president if you don’t vote to make a difference” Same thing if you are not present to vote or you aren’t eligible to vote “your vote shouldn’t count” Period!

HMMMM Makes sense to me.

Apparently you haven’t read all my previously written posts because you would have also read that I don’t care to reduce quorum. I feel that the only votes that should count are of those eligible and present. Make is 85%, or keep it the same (per our documents) but it should be a percentage of members present.

I have never been told otherwise, so I would assume this makes as much sense to you as it does me.

If we can keep quorum at 25% that’s fine with me, but I feel it should be of people that are present and that are eligible to vote. Not a percentage of total eligible voters.

I can respect your views. I just don’t agree with them!

Chuck W.

CharlesW1 - on and on and on you go.

You will either grasp the concept of acting as a resident (separate from the board) or not.

Please answer the question how becoming a POA will make your community better, and if it's really worth the expense?

It's seems you and your board are going through all of this trouble and expense without the community providing input first. You've provided the docs to one attorney who's "dragging his feet". Now you and the Board are hiring a new attorney to do all of this work knowing your community has a problem with quorum. And not enough in reserves to cover the pool repair to boot!!! If you want to improve property values, repair the pool first, explore raising dues with the community to increase reserves, get owners involved to increase quorum, provide them an HOA vs. POA comparison and that it will be on the agenda for your next open meeting.

As for your posts, I've read enough of them to know that your community has a problem getting quorum, whether it's 25% of the total population or 25% of those in good standing doesn't matter, you can barely if at all achieve quorum. I've read enough to know you are frustrated by the lack of community participation.

If all members are in good standing, do you still feel that any volunteer shouldn’t have to be determined by the total eligible voters?

You contradict yourself. By your post above and feelings stated below regarding what constitutes quorum you absolutely do care to reduce it. You don't understand that quorum is a percentage of the total population of members in good standing. Instead you only want quorum to be a percentage of those who show up.

On 07/23/2006 under your post "Should your vote count?" you stated as follows:

"I am extremely mad! I am still a little upset about the whole thing. With the people that do show up and the proxies you do have, why can’t these only be the eligible votes? I understand that you can not vote if you have not paid your dues! I feel if you don’t make an effort to be there to vote or you don’t fill out and send in the proxy then YOU shouldn’t count!"

Introduced to POA just months ago???

I guess by just months you mean 7/14/2006 when you wrote, "Does anyone have data on the POA vs HOA? We are looking at making this change in our community due mostly to the fact that so many people feel that its okay not to pay their dues."

I guess by just months you mean 7/16/2006 when you wrote, "The current BOD was adviced to change to a POA. I believe that is their goal for this year."

Are you still going to claim you were introduced to POA just months ago? HMMMMM.

Seems to me you knew about the POA thing back in July of 2006. Therefore, how could it be a "surprise" as you wrote in your quote above?

See Charles, you drive around your community and see others washing their car, etc. They'll never understand that in many ways, their leisure time is possible because it's volunteer fiduciaries that make it all possible. If you're not happy with the role of being thankless, quit. Or spend all your efforts and the associations money on hiring attorneys so you don't need their input. Or, do the job without reinventing the wheel.

JoeW1,

You are correct. Apparently I was introduced to POA “some time ago” how’s that? Not a couple months ago! Rather some time ago. I had quoted a previously written post on 07/14/2007 at 2:26pm to be exact, but I was quoting a previously written post-
JeffreyC1
Posts:2 Posted:04/26/2006 12:55 PM Quote Reply

Does anyone have data on the POA vs HOA? We are looking at making this change in our community due mostly to the fact that so many people feel that its okay not to pay their dues.

Jeff
HOA VP Georgia

Obviously you had made a typo when you were quoting me! “I guess by just months you mean 7/14/2006 when you wrote, "Does anyone have data on the POA vs HOA? We are looking at making this change in our community due mostly to the fact that so many people feel that its okay not to pay their dues."I was quoting

I will admit when I am wrong, especially when you can correctly quote me. You might want to re-read what you thought I had written before trying to make a point of proven me wrong.

I would appreciate it if you’re going to quote me, please “quote” what I had written, and not what others had written “ a couple of months prior”

However, I did indeed post this around the same time.

Posted:07/14/2006 2:26 PM Quote Reply

I’m new to the forum. I have been reading old posts about HOA’s. I want to be on the board. I came across this post obliviously written some time ago. I was interested in knowing myself, why a HOA would want to be an POA?

"Does anyone have data on the POA vs HOA? We are looking at making this change in our community due mostly to the fact that so many people feel that its okay not to pay their dues.

Jeff
HOA VP Georgia"

I too live in Georgia. I have been to many board meetings and have heard discussions about delinquent dues.

Thank you all so much
Chuck W.

I was simply stating that homeowners would be as surprised as I was to find out what a POA is, that is all.

You are correct here thought “They'll never understand that in many ways, their leisure time is possible because it's volunteer (like me and other board members) fiduciaries that make it all possible”

Thanks, but no thanks your suggestions are not what I prefer to do while I’m still living here." quit,or spend all your efforts and the associations money on hiring attorneys so you don't need their input. Or, do the job without reinventing the wheel"

I don’t believe those are my only options. If I was looking to take you up on your suggestion, I would be no different than the majority of the homeowners residing in my community today.

Thanks, but no thanks
Chuck W.

Below is a link to Wiesman Nowak Curry and Wilco which states the benefits of becoming a POA in GA. I have also copied the article for review. Keep in mind that these are some of the reasons, and not all, for changing to a POA in GA. The one thing it does not state is that when you are a POA, your lien is placed higher than if you were an HOA, thus making the possibility of foreclosure better. Additionally, when a home is foreclosed by the bank, we are unable to collect any HOA assessment for that year from either the past owner or new owner, under a POA, you can collect from the person who buys the home.

http://www.wncwlaw.com/services/community_associations/poa.cfm?criteria=poa&criteriatext=poa

Georgia Property Owners' Association Act

Submit Your Subdivision to the Georgia Property Owners’ Association Act

The Georgia Property Owners’ Association Act (“POA”) was adopted in 1994 to expand the powers of homeowners associations. Weissman, Nowack, Curry & Wilco was instrumental in the adoption of the POA. 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.

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.

Check your documents. This is crucial because your documents may otherwise expire under the law.

Fortunately, the amendment process to obtain the consent of the association members can often be done by mail or by going door to door, depending upon the specific amendment provisions within a community’s governing documents. While owners rarely oppose submitting to the POA, associations often face the problem of overcoming owner apathy. Developing a strategy to adopt the POA can therefore be the key to obtaining the necessary approval of the owners needed to amend the community’s declaration of covenants.

JulieS - your post was very informative. you hit upon a key factor which is developing a strategy to adopt the POA to obtain the necessary approval of the owners needed to amend the community’s declaration of covenants. that's what i mean about working within the framework to bring about change. what concerns me about Charles' situation is that there seems to be a lot of work that's going on behind the scenes to revise gov. docs PRIOR to community input. if you couple a scenario such as this with a board member that doesn't unappreciate the need to get a quorum of the entire community in good standing (rather than those that just showup), it's a dangerous cocktail. the ends to me don't justify the means.