TITLE 44 PROPERTY

Section 3. Regulation of Specialized Land Transactions, 44-3-1 through 44-3-250.

ARTICLE 6 PROPERTY OWNERS' ASSOCIATIONS

44-3-231. Powers and duties of association; legal actions against agent or employee of association.

Except to the extent prohibited by the instrument and subject to any restrictions and limitations specified therein, the association shall have the power to:
1. Employ, retain, dismiss, and replace agents and employees to exercise and discharge the powers and responsibilities of the association;
2. Make or cause to be made additional improvements on and as a part of the common area; and
3. Grant or withhold approval of any action by one or more lot owners or other persons entitled to occupancy of any lot if such action would change the exterior appearance of any lot, or any structure thereon, or of any other portion of the development or elect or provide for the appointment of an architectural control committee to grant or withhold such approval.
Except to the extent prohibited by the instrument and subject to any restrictions and limitations specified therein, the association shall have the power to grant easements, leases, and licenses through or over the common area, to accept easements, leases, and licenses benefiting the development or any portion thereof, and to acquire or lease property in the name of the association.Property so acquired by the association upon the recordation of the deed thereto or other instrument granting the same and designating property as common area shall, for all purposes including without limitation taxation, be a part of the common area.The association shall also have the power to acquire, lease, and own in its own name property of any nature, real, personal, or mixed, tangible or intangible; to borrow money; and to pledge, mortgage, or hypothecate all or any portion of the property of the association for any lawful purpose within the association's inherent or expressly granted powers. Any third party dealing with the association shall be entitled to rely in good faith upon a certified resolution of the board of directors of the association authorizing any such act or transaction as conclusive evidence of the authority and power of the association so to act and of full compliance with all restraints, conditions, and limitations, if any, upon the exercise of such authority and power.
The association shall have the power to amend the instrument, the articles of incorporation, and the bylaws of the association in such respects as may be required to conform to mandatory provisions of this article or of any other applicable law without a vote of the lot owners.
In addition to any other duties and responsibilities as this article or the instrument may impose, the association shall keep:
1. Detailed minutes of all meetings of the members of the association and of the board of directors;
2. Detailed and accurate financial records, including itemized records of all receipts and expenditures; and
3. Any books and records as may be required by law or be necessary to reflect accurately the affairs and activities of the association.
This Code section shall not be construed to prohibit the grant or imposition of other powers and responsibilities to or upon the association by the instrument.
Except to the extent otherwise expressly required by this article, by Chapter 2 or 3 of Title 14, by the instrument, by the articles of incorporation, or by the bylaws of the association, the powers inherent in or expressly granted to the association may be exercised by the board of directors, acting through the officers, without any further consent or action on the part of the lot owners.
A tort action alleging or founded upon negligence or willful misconduct by any agent or employee of the association or in connection with the conditions of any portion of the instrument which the association has the responsibility to maintain shall be brought against the association.No lot owner shall be precluded from bringing such an action by virtue of his membership in the association.A judgment against the association arising from a tort action shall be a lien against the assets of the association.
The association shall have the capacity, power, and standing to institute, intervene, prosecute, represent, or defend in its own name litigation or administrative or other proceedings of any kind concerning claims or other matters relating to any portion of the lots or common area which the association has the responsibility to administer, repair, or maintain.

(Code 1981, §44-3-231, enacted by Ga. L. 1994, p. 1879, § 1.)

JUDICIAL DECISIONS

Actions against owners' associations.

- In a personal injury action filed by owners of a parcel of land in a community against the community owners' association, a restrictive covenant which shifted the duty to inspect the community's common areas from the association to owners of parcels in the community was not void as against public policy on the ground that O.C.G.A. § 44-3-231(g) of the Georgia Property Owners' Association Act (Act) pronounced a public policy against precluding owners from bringing tort actions against owners' associations; § 44-3-231(g) concededly did not apply to the action because the covenant was recorded before the Act became effective, the Act reflected a policy of deference toward parties' freedom to contract by making § 44-3-231(g) applicable only where a recorded declaration affirmatively stated such an intention, and the covenant at issue did not violate § 44-3-231(g), which simply identified the proper defendant in certain tort claims against owners' associations. Hayes v. Lakeside Vill. Owners Ass'n, 282 Ga. App. 866, 640 S.E.2d 373 (2006).

Property association had standing to intervene.

- Property owners' association ("POA") was a "party in interest" under 11 U.S.C. § 1109 and had standing to intervene in a contested matter that was brought by an LLC that purchased property from a developer's ("debtor's") Chapter 11 bankruptcy estate, to determine ownership of common areas in a subdivision the debtor developed, because a ruling in favor of a trustee who was appointed under the debtor's bankruptcy plan that title to the common areas did not pass to the POA could have affected the POA's right to exist; even in the absence of injury to the POA itself, the POA had organizational standing to intervene on behalf of the POA's members. Sea Island Acquisition, LLC v. Barnett (In re Sea Island Co.), Bankr. (Bankr. S.D. Ga. July 30, 2014).

Authority of association to enter into agreement for recreational facilities.

- In a suit challenging a homeowners association's declaration amendment allowing it to enter into an agreement with a nearby private swim and tennis club, the trial court erred by not granting the association's summary judgment because even without the amendment, the association was authorized, for the common benefit of all homeowners, to accept an easement granting the homeowners access to recreational facilities, and to assess them their pro rata share of the ongoing cost of the easement. Amberfield Homeowners Ass'n v. Young, 346 Ga. App. 29, 813 S.E.2d 618 (2018).

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