Do GA nonprofit rules trump HOA bylaws?

My understanding is that Homeowner Associations (HOA) are also non-profit corporations. As such, HOA's are also subject to GA State code governing non-profit corporations. I have 3 questions:
1) Our HOA bylaws have a provision for special meetings. Georgia non profit rules have the same stipulation for a special meeting (25% of members request meeting). Homeowners submitted a petition with required number of signatures requesting a special meeting to remove existing HOA Board (Declarant selected). Neither our HOA bylaws nor GA non profit code gives Board of Directors authority to reject request for a special meeting. Is the BOD legally able to refuse a special meeting request?

2) Can homeowners during Declarant control, vote to remove the existing HOA Board? GA non profit code gives members the right to remove Directors for any reason. Our HOA bylaws say only the Board of Directors can remove a Director. Which takes precedence - Georgia non profit code or the HOA bylaws? If homeowners have the votes, can they remove Declarant' HOA Board?

3) Most HOA bylaws say that the Declarant must approve a Board member. Isn't that a civil rights violation? What if the Declarant refuses to sit someone due to their race, religion or sexual preference? I would think the Declarant would have to show a substantive reason why they are refusing to sit someone on the Board. In other words, Declarant can't refuse to sit someone because they wear a red tie.

Another one who thinks they know and understand the law... Hate to tell you but if you look, the declarant/Developer has 2 times the voting power until they turn over the HOA to the owners. There is a 2 class voting system usually involved with class A and Class B votes. Class A has 2 times the voting powers.

No. Developers/Declarants don't typically turn over the HOA to owners for those reasons. That's the reason your assigning it. At around 90% it's no longer profitable endeavor. Plus it's usually written in that is the % of turn over to owners. A developer makes their money during development not long term maintenance. Long term maintenance is on the owners. Hence why the HOA is a non-profit. It's to collect as much as it's spends on operational costs.

So it sounds like your just unhappy with your HOA/Developer overall and looking for straws to grasp onto. My recommendation? Go back to your documents, read them, understand them, and form a committee for turn over. That way when the developer turns over, you and your neighbors are ready for the transition.

That's not a professional conversation. That's some legal mumbojumbo you want repeated to you to make you sound like the you got the answers. A "professional" conversation doesn't provide their own answers with the own questions just to hear themselves speak... If you want a DEBATE the issue, then present as a DEBATE.

Fernando,

HOAs are "not for profit," not, "non-profit." (language may vary?)

Does Georgia have specific HOA statutes - as differentiated from corporate not-for-profit statutes?

Your declarant controls the development while it is being developed - so, that said declarant can maintain the standards, approve variances to sell properties - in general, to maintain control to make more money.

Declarants don't usually want to be in the business of running HOAs.

The voting rights are called out clearly in governing docs ... as are the percentages (usually) for declarant turnover. In most cases the declarant can do as they wish because their voting rights are so much greater per property.

When you start talking about civil rights violations, you are going a bit off topic for HOA discussions.

If there are enough votes, given your specific docs, it is likely the membership can remove an entire board, specific board members, etc - of course, the declarant may be able to block this by having enough votes.

Melissa is apparently exempt from this and from facts in general.

Typically during the period of developer control, the developer has more than one vote per lot. This is what gives them control even when over 50% of lots are sold. Generally turnover occurs at the point where the rest of the owners have more than 50% of the vote. If the developer only has one vote per lot, then you do have the possibility removing the developer appointed board. What do your CCRs and/or bylaws say about developer votes, and turnover in general?

As far as the title question, state laws would override HOA governing documents. The problem is that most states do not have any agency or department to enforce corporate or association laws, the primary recourse is via the courts (suing).


It would be unusual for bylaws to allow directors to be able to remove a director, typically they can just remove an officer title, but the person would still be a director. Many governing docs provide a provision to allow members to recall a director, and since GA law apparently allows it, you should be able to go through that process.


It would also be unusual for governing docs to say the declarant must approve directors after declarant control is over. During declarant control, they have enough voting power to essentially just assign directors, using any criteria they want to use.

FernandoH, can you post a copy of your HOA's Bylaws and Declaration? I agree with others that, when the Declarant is still in control, and as a matter of law, change is particularly hard. After all, the business that established the HOA and is still lawfully in control has legal rights, too. Else barring further information, here are my impressions:

The hierarchy of relevant documents is generally going to be as follows:
Georgia Property Owners' Association Act, O.C.G.A. 44-3-220, et seq. See https://www.hoa-usa.com/files/documents/GeorgiaPropertyOwnersAssociationAct_082410.pdf

Georgia Non-Profit Corporation Statute

HOA's Declaration

HOA's Bylaws

To respond to your questions.

1) No. See Georgia State 44-3-230.

2) I want to see what your Declaration and Bylaws say.

3) Federal and state civil rights violations occur only if it can be proven that the reason the Declarant refuses to seat a person as a director is on account of the person's race, sex, religion and a number of other protected categories. Suspicions of unlawful discrimination like the latter are not enough. One needs cold hard evidence that the Declarant is being either, racist, sexist, et cetera when it refuses to seat, say, African Americans or, say, women. If no discrimination based on membership in a protected class is present, then it is unlikely anything provably unlawful is going on when it comes to seating board members. The Declarant does not have to show anything. It's the person or group that complains of unlawful discrimination that will have to demonstrate (at least initially) that the alleged discrimination is unlawful. If you elaborate a bit on what the Declarant is doing, this would probably help people here give more substantive suggestions.