TITLE 44 PROPERTY

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

ARTICLE 3 CONDOMINIUMS

44-3-80. Allocation - Liability for common expenses; how assessments made.

Except to the extent that the condominium instruments provide otherwise, any common expenses associated with the maintenance, repair, renovation, restoration, or replacement of any limited common element shall be specially assessed against the condominium unit to which that limited common element was assigned at the time the expenses were made or incurred; however, if any limited common element was assigned at that time to more than one unit, the common expenses shall be specifically assessed against each condominium unit equally so that the total of the special assessments equals the total of the expenses.
To the extent that the condominium instruments expressly so provide:
1. Any other common expenses benefiting less than all of the units shall be specially assessed equitably among all of the condominium units so benefited;
2. Any other common expenses occasioned by the conduct of less than all of those entitled to occupy all of the units or by the licensees or invitees of any such unit or units shall be specially assessed against the condominium unit or units, the conduct of any occupant, licensee, or invitee of which occasioned any such common expenses;
3. Any other common expenses significantly disproportionately benefiting all of the units shall be assessed equitably among all of the condominium units; and
4. Other than for limited common elements expressly designated as such in the condominium instruments and assigned to fewer than all units, nothing contained in paragraph (1) or (3) of this subsection shall permit an association to specially or disproportionately allocate common expenses for periodic maintenance, repair, and replacement of any portion of the common elements or the units which the association has the obligation to maintain, repair, or replace.
The amount of all common expenses not specially assessed pursuant to subsection (a) or (b) of this Code section, less the amount of all undistributed and unreserved common profits, shall be assessed against the condominium units in accordance with the allocation of liability for common expenses set forth in the declaration. The allocation may be by percentage, fraction, formula, or any other method which indicates the relative liabilities for common expenses. If an equal liability for common expenses is allocated to each unit, the declaration may merely so state. The entire liability for common expenses shall be allocated among the units depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83 and shall be subject to reallocation as provided in this article. Except to the extent otherwise expressly provided or permitted by this article, the allocations of the liability shall not be altered; provided, however, that no reallocation shall affect any assessment or installation thereof becoming due and payable prior to reallocation. The assessments shall be made by the association annually or more often if the condominium instruments so provide and shall be payable in the manner determined by the association. Notwithstanding any unequal allocation of liabilities for common expenses pursuant to this subsection, this provision shall not preclude the association from levying charges equally among units for services or items provided to owners upon request, or which provide proportionate or uniform benefit to the units, including, but not limited to, uniform charges for pool keys or other common element entry devices.
1. The declarant shall pay for all common expenses until the first common expense assessment is due from any unit owner. Thereafter, no unit owner other than the association shall be exempted from any liability for any assessment under this Code section or under any condominium instrument for any reason whatsoever, including, without limitation, abandonment, nonuse, or waiver of the use or enjoyment of his or her unit or any part of the common elements.
2. Notwithstanding paragraph (1) of this subsection, if authorized by the declaration, a declarant who is offering units for sale may elect to be excused from payment of assessments assessed pursuant to subsection (c) of this Code section against those unsold and unoccupied units for a stated period of time after the original declaration is recorded, not to exceed 24 months after the date the original declaration is recorded; provided, however, that as to assessments assessed pursuant to subsection (c) of this Code section, the declarant must pay common expenses incurred during such period which exceed the amounts assessed against other unit owners in the same condominium. During any period in which the declarant is excused from payment of assessments assessed pursuant to subsection (c) of this Code section:
  1. No capital contributions, start-up funds, initiation fees, or contributions to capital reserve accounts which are receivable from unit purchasers or unit owners and payable to the association at closing may be used for payment of common expenses;
  2. No portion of the payment of assessments collected from owners intended to be utilized for reserves for deferred maintenance, reserves for depreciation, or other reserves, as shown on the operating budget for the condominium, may be used for payment of common expenses; and
  3. No prepayments of assessments made by owners shall be used for the payment of common expenses prior to the time the assessments would otherwise be due.
3. If during the period that the declarant is excused from payment of assessments as provided in paragraph (2) of this subsection common expenses are incurred resulting from a casualty which is not covered by proceeds from insurance maintained by the association, such common expenses shall be assessed against all unit owners owning units on the date of such casualty, and their respective successors and assigns, including the declarant with respect to units owned by the declarant. In the event of such an assessment, all units shall be assessed in accordance with the allocation of the liability for common expenses set forth in the declaration as provided in subsection (c) of this Code section.
4. During any such time as the declarant has the right to control the association pursuant to Code Section 44-3-101, any capital contributions, start-up funds, initiation fees, or contributions to capital reserve accounts which are receivable from unit purchasers or unit owners and payable to the association at closing and any portion of the payment of assessments collected from owners intended to be utilized for reserves for deferred maintenance, reserves for depreciation, or other reserves, as shown on the operating budget for the condominium, shall be deposited into one or more separate reserve accounts and shall not be used to pay for any common expenses, without the agreement of the unit owners of units to which two-thirds of the votes in the association pertain, exclusive of any vote or votes appurtenant to any unit or units then owned by the declarant. No waiver of the right of any unit owner to grant or withhold consent to such agreement shall be valid.
Unless otherwise provided in the condominium instruments and except as provided in subsection (f) of this Code section, the grantee in a conveyance of a condominium unit shall be jointly and severally liable with the grantor thereof for all unpaid assessments against the latter up to the time of the conveyance without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantee therefor; provided, however, that, if the grantor or grantee shall request a statement from the association as provided in Code Section 44-3-109, such grantee and his successors, successors-in-title, and assigns shall not be liable for nor shall the condominium unit conveyed be subject to a lien for any unpaid assessments against such grantor in excess of any amount set forth in the statement.
In the event that the holder of a first priority mortgage or a secondary purchase money mortgage of record, provided that neither the grantee nor any successor grantee on the secondary purchase money mortgage is the seller of the unit, or any other person acquires title to any condominium unit as a result of foreclosure of any such mortgage, such holder or other person and successors, successors-in-title, and assigns shall not be liable for nor shall the condominium unit be subject to a lien for any assessment under this Code section or under any condominium instrument chargeable to the condominium unit on account of any period prior to the acquisition of title; provided, however, that the unpaid share of an assessment or assessments shall be deemed to be common expenses collectable from all of the unit owners, including such holder or other person and successors, successors-in-title, and assigns.
A condominium instrument recorded on or after July 1, 2015, shall not authorize the board of directors to impose:
1. Except as provided in subsections (a) and (b) of this Code section and subsections (a) and (b) of Code Section 44-3-109, a special assessment fee per unit in excess of one-sixth of the annual common expense assessment for the unit levied pursuant to subsection (c) of this Code section per fiscal year without the approval of a majority of the unit owners; or
2. A monthly maintenance fee increase in excess of the percentage equal to the annual rate of inflation as measured by the Consumer Price Index for All Urban Consumers for the immediately preceding 12 month period may be disapproved by unit owners holding a majority of the association vote.

(Ga. L. 1975, p. 609, § 17; Ga. L. 1990, p. 227, § 3; Ga. L. 1994, p. 1943, §§ 3, 4; Ga. L. 2004, p. 560, § 3; Ga. L. 2007, p. 611, § 2/HB 383; Ga. L. 2015, p. 889, § 1/HB 245.)

The 2015 amendment, effective July 1, 2015, substituted "July 1, 2015" for "July 1, 1990" in subsection (g); and substituted "one sixth of the annual common expense assessment for the unit levied pursuant to subsection (c) of this Code section" for "an average of $200.00" in the middle of paragraph (g)(1).

Law reviews.

- For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985).

JUDICIAL DECISIONS

Liability of unit owner for assessment.

- Language of subsection (d) of O.C.G.A. § 44-3-80 is plain and susceptible of only one interpretation, that there is no legal justification for a condominium owner to fail to pay valid condominium assessments; this reflects a clear choice by the legislature that the owner's obligation to pay assessments be absolute and a condominium unit owner involved in a dispute with the condominium association about the association's services and operations may not exert leverage in that controversy by withholding payment but must seek another remedy. Forest Villas Condominium Ass'n v. Camerio, 205 Ga. App. 617, 422 S.E.2d 884 (1992).

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).

Tax deed purchaser obligated to pay condominium assocation assessments.

- Trial court erred in denying the condominium association's motion for summary judgment finding that the association was not entitled to collect unpaid condominium association assessments from the tax deed purchaser that had accrued during the pendency of the litigation because, under O.C.G.A. § 44-3-80, the purchaser was obligated to pay condominium association assessments that accrued after the tax sale, even during the period before it could foreclose on the right of redemption, and even if it was involved in an ongoing dispute with the association. Northlake Manor Condo. Ass'n v. Harvest Assets, LLC, 345 Ga. App. 575, 812 S.E.2d 658 (2018).

Common expenses.

- Plaintiff condominium association could not assess against 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. One Buckhead Loop Condo. Ass'n v. Pew, F.3d (11th Cir. July 5, 2012)(Unpublished).

Collective owners of a condominium unit are liable for the unit's portion of the total assessment levied on all units, not just to the extent of their individual ownership; thus, an owner of a one percent interest in a unit was jointly and severally liable for all assessments levied while the person was a co-owner. Chattahoochee Chase Condominium Ass'n v. Ruben, 221 Ga. App. 724, 472 S.E.2d 520 (1996).

While O.C.G.A. § 44-3-80 provides a mechanism to impose a special assessment to the extent that the condominium instruments expressly so provide, when none of the condominium instruments provided for a special assessment against some but not all of the unit owners, general assessments were not invalid, and the trial court erred in denying the condominium association's motion for summary judgment. Atlanta Georgetown Condominium Ass'n v. Chaplin, 235 Ga. App. 460, 509 S.E.2d 729 (1998).

Liability of foreclosing mortgagee.

- 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 O.C.G.A. § 44-3-109(b) 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).

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).

Characterization of payments as other than assessments.

- Condominium association may not sidestep the clear dictates of O.C.G.A. § 44-3-80 by merely characterizing payments asked for as something other than condominium assessments. The expenditures, whatever called, are the type of payments covered by the statute. Accordingly, the trial court concluded that the association's complaint was preempted by O.C.G.A. § 44-3-80 and granted defendant's motion to dismiss with prejudice. Kingsmill Village Condominium Ass'n v. Homebanc Fed. Sav. Bank, 204 Ga. App. 900, 420 S.E.2d 771 (1992).

Procedural fairness.

- When a condominium's board of directors determined that owners received a benefit from the services of a contractor in attempting to maintain certain occupancy rates, and no evidence was submitted showing the board's decision was procedurally unfair, unreasonable, or made in bad faith, the trial court erred in denying the condominium association's motion for summary judgment. Atlanta Georgetown Condominium Ass'n v. Chaplin, 235 Ga. App. 460, 509 S.E.2d 729 (1998).

Assessment of litigation fees and costs.

- Trial court did not err in dismissing the condominium association's counterclaim seeking to collect on an assessment of litigation fees and costs against two former association members who had unsuccessfully sued the association as the former members' lawsuit did not result solely from the former members' conduct without reference also to the conduct of the association because the former members' claims were based on the conduct of the association with respect to its response to and management of various mold and moisture issues. City Heights Condo. Ass'n v. Bombara, 337 Ga. App. 679, 788 S.E.2d 563 (2016).

Trial court did not err in dismissing the condominium association's counterclaim seeking to collect on an assessment of litigation fees and costs against two former association members who had unsuccessfully sued the association because the association had already obtained a judgment for the money to which the assoication was entitled to as a result of having to defend against a claim the trial court determined lacked substantial justification; and the former members' remaining claims, while not ultimately successful, were sufficiently justified that the trial court did not penalize the former members for bringing the claims. City Heights Condo. Ass'n v. Bombara, 337 Ga. App. 679, 788 S.E.2d 563 (2016).

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

RESEARCH REFERENCES

Am. Jur. 2d.

- 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 29 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S.

- 51C C.J.S., Landlord and Tenant, § 232.

ALR.

- Proper party plaintiff in action for injury to common areas of condominium development, 69 A.L.R.3d 1148.

Expenses for which condominium association may assess unit owners, 77 A.L.R.3d 1290.

Syfert Injury Law Firm

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