Applicability.

- As an assignee of a condominium association's interest in unpaid condominium assessments and liens in a unit presented no evidence that the declaration of condominium, recorded before enactment of the Georgia Condominium Act, O.C.G.A. § 44-3-70 et seq., was amended to submit the condominium to the Act, the assignee failed to show that the lien priority provisions of O.C.G.A. § 44-3-109 of the Act applied. Therefore, upon a creditor's foreclosure of the creditor's deed to secure debt, the provisions of the declaration operated to extinguish the assignee's lien for condominium assessments. Denhardt v. 7 Bay Traders LLC, 296 Ga. App. 122, 673 S.E.2d 621 (2009).

Provision added by 1990 amendment inapplicable.

- The 1990 amendment of subsection (a) of O.C.G.A. § 44-3-109, adding the proviso at the end of the provision that all assessments due and payable from the unit owner constitutes a lien against the unit superior to all other liens, except the lien of any secondary purchase money mortgage covering the unit, provided that neither the grantee nor any successor grantee on the mortgage is the seller of the unit, did not apply when a secondary purchase money mortgage was made prior to the effective date of the amendment, but was not recorded until after that date. North Decatur Courtyards Condominium Ass'n v. Casey, 217 Ga. App. 716, 458 S.E.2d 676 (1995).

Foreclosure proceedings.

- Sole requirements for creation of the lien for assessments are contained in this statute, and it is only the actual foreclosure proceedings which must be in the same manner as other liens for the improvement of real property. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135, 253 S.E.2d 813 (1979) (see O.C.G.A. § 44-3-109).

Ga. L. 1975, p. 609, § 41 (see O.C.G.A. § 44-3-109) does not require procedural compliance with former Code 1933, § 67-2301 (see O.C.G.A. § 44-14-530) which provided for the enforcement of mechanics liens. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135, 253 S.E.2d 813 (1979).

Plaintiff condominium association could not assess against the defendant owner's unit, as common expenses under O.C.G.A. § 44-3-80(b)(2), legal fees and interest in connection with enforcing restraining orders against a former occupant since the occupant had moved before those expenses were incurred; those assessments were not lawfully assessed under O.C.G.A. § 44-3-109(a) and thus could not form the basis for a lien, and since the notice of foreclosure included those amounts, the notice did not comply with § 44-3-109(c). One Buckhead Loop Condo. Ass'n v. Pew, F.3d (11th Cir. July 5, 2012)(Unpublished).

Trial court properly allowed a condominium association to foreclose a lien against a debtor's condominium unit and awarded the association damages because O.C.G.A. § 44-3-109 and the condominium documents created a lien in the association's favor and the debtor's bankruptcy discharge had no impact on the association's right to enforce the association's lien since discharges in bankruptcy did not affect liability in rem. Casas-Rodriguez v. Cosmopolitan on Lindbergh Condo. Ass'n, 325 Ga. App. 253, 749 S.E.2d 371 (2013).

Condominium unit owner's claim for constructive eviction was not barred by the owner's failure to plead the eviction in an earlier action by the condominium association for assessments and foreclosure of its lien on the owner's units because the constructive eviction claim did not mature until after the conclusion of the association's suit and was therefore a permissive, not compulsory counterclaim. Elekima v. Abbey Rd. Condo. Ass'n., 331 Ga. App. 357, 771 S.E.2d 63 (2015).

Liability of secondary purchase-money mortgagee.

- Even though a secondary purchase-money mortgagee did not sell the condominium unit directly to the debtor who eventually failed to pay the mortgage or condominium fees and assessments, the association's lien was superior to the mortgage, and the mortgagee, as the seller of the unit, was liable for preforeclosure fees and assessments. Dunhill Condominium Ass'n v. Gregory, 228 Ga. App. 494, 492 S.E.2d 242 (1997).

Limitation on fees found in O.C.G.A. § 13-1-11(a)(2) is inapplicable to an action enforcing a condominium association's right to a lien for assessments. Wehunt v. Wren's Cross of Atlanta Condominium Ass'n, 175 Ga. App. 70, 332 S.E.2d 368 (1985).

Foreclosing mortgagee not entitled to pro rata share of lien elements.

- While a foreclosing mortgagee is clearly not liable nor is its property interest subject to a lien for any assessment, it is obligated to pay a pro rata amount of that "unpaid share" which becomes a part of the common expenses, but the condominium association would not be entitled to recover from the foreclosing mortgagee a pro rata share of the elements enumerated in subsection (b) of O.C.G.A. § 44-3-109 because those elements arise only from the lien which results from the failure to make a timely payment of assessments. First Fed. Sav. Bank v. Eaglewood Court Condominium Ass'n, 186 Ga. App. 605, 367 S.E.2d 876, cert. denied, 186 Ga. App. 918, 367 S.E.2d 876 (1988).

Impact of bankruptcy on lien enforcement.

- Bankruptcy discharge has no impact on a condominium association's right to enforce the association's lien as a bankruptcy discharge extinguishes only one mode of enforcing a claim, namely, an action against the debtor in personam, while leaving intact another, namely, an action against the debtor in rem. Casas-Rodriguez v. Cosmopolitan on Lindbergh Condo. Ass'n, 325 Ga. App. 253, 749 S.E.2d 371 (2013).

Attorney fees.

- Evidence showing no more than the amount billed by plaintiff's attorney was insufficient to establish the reasonableness of the claimed attorney fees. Hershiser v. Yorkshire Condominium Ass'n, 201 Ga. App. 185, 410 S.E.2d 455 (1991).

Court costs and attorney fees were appropriately awarded to a condominium association pursuant to O.C.G.A. § 44-3-109 and condominium documents. Atlanta Georgetown Condominium Ass'n v. Chaplin, 235 Ga. App. 460, 509 S.E.2d 729 (1998).

Condominium association was not entitled to all of the fees requested under O.C.G.A. § 44-3-109(b)(3) in the association's attempt to collect a default judgment entered against the debtor because the association incurred far more fees and expenses than necessary in an ill-considered and ineffective effort to collect through garnishment when the debtor, although failing to communicate with the association, acknowledged the debt and had made attempts to pay the past due assessments; the association was entitled to the fees in the association's attempt to obtain the default judgment as established by the state court and for fees for pre-bankruptcy legal services and private investigator expenses, but the other expenses and fees were thus not reasonable. Jacobs v. Vineyards Condo. Ass'n, Inc. (In re Jacobs), 324 Bankr. 402 (Bankr. N.D. Ga. 2005).

Because attorney fees incurred on appeal were contemplated by O.C.G.A. § 44-3-109(b)(3) and a homeowners association's bylaws, the trial court erred by failing to hold a hearing as to the reasonable amount of attorney fees incurred by the association. Springside Condo. Ass'n, Inc. v. Harpagon Co., 298 Ga. App. 39, 679 S.E.2d 85 (2009).

Condominium association's property manager's affidavit, in which the manager testified that the manager was familiar with the billing processes of the association and the association's records and that the manager's affidavit was on personal knowledge, was sufficient to support summary judgment for the association in the association's action against an owner for assessments and fees. Because the declaration provided for attorney's fees, an award of attorney's fees was mandated under O.C.G.A. § 44-3-109(b)(3), although the association did not ask for the fees. Ellington v. Gallery Condo. Ass'n, 313 Ga. App. 424, 721 S.E.2d 631 (2011).

Cited in Casey v. North Decatur Courtyards Condominium Ass'n, 213 Ga. App. 190, 444 S.E.2d 361 (1994).

Am. Jur. 2d.

- 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, §§ 35, 36, 45 et seq.

C.J.S.

- 53 C.J.S., Liens, §§ 1 et seq. 44.