08 LC
36 0961S
The
Senate Special Judiciary Committee offered the following substitute to SB
217:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 6 of Chapter 3 of Title 44 of the Official Code of Georgia
Annotated, relating to property owners´ associations, so as to provide that
certain property owners´ associations and similar organizations shall have
standing as a party and a party in interest to bring a legal action to enforce
certain covenants, ordinances, and codes; to provide for procedures; to provide
for related matters; to provide an effective date; to repeal conflicting laws;
and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
6 of Chapter 3 of Title 44 of the Official Code of Georgia Annotated, relating
to property owners´ associations, is amended by designating the existing
text of the article as Part 1 and adding a new Part 2 to read as
follows:
"Part
2
44-3-250.
As
used in this part, the term 'homeowners´ association' includes but is not
limited to a property owners´ association subject to Part 1 of this
article. The term also includes any homeowners´ association, community
association, or other similar organization which has as one of its principal
purposes the preservation or promotion of its member homeowners´ enjoyment
of their property in any residential neighborhood or community. The term shall
include any such organization without regard to whether it consists of a
corporation, an association, or some other form of organization. The term shall
include any such organization without regard to whether membership in the
organization is voluntary or mandatory and without regard to the number of
eligible homeowners who are members.
44-3-251.
(a)
To the extent that a homeowners´ association does not have the required
legal standing under any other provision of law, any homeowners´
association shall have legal standing as a party and a real party in interest to
bring or intervene in a legal action to enforce any covenant or county or
municipal ordinance or code where a violation of the covenant or ordinance or
code diminishes one or more member homeowners´ enjoyment of their property.
The violation at issue may be one occurring on a member´s property or one
occurring on nearby property not that of a member. The homeowners´
association shall have standing to bring suit or intervene when:
(1)
One or more of its members would otherwise have standing to sue or intervene in
their own right;
(2)
The interests it seeks to protect are germane to the homeowners´
association´s purpose; and
(3)(A)
Neither the claim asserted nor the relief requested requires the participation
as parties of individual members; or
(B)
Any individual member whose participation is required joins as a
party.
(b)
The final disposition of an action subject to this Code section shall be res
judicata with respect to the association.
(c)
Nothing in this Code section shall be construed to modify or limit any rights
given to a homeowners´ association under any of the provisions of Article 6
of Chapter 3 of Title 44, the 'Georgia Property Owners´ Association Act,'
Article 3 of Chapter 3 of Title 44, the 'Georgia Condominium Act,' or Chapter 3
of Title 14, the 'Georgia Nonprofit Corporation Code.'
44-3-252.
(a)
Except as provided for in subsection (b) of this Code section, no less than 30
days prior to a homeowners´ association bringing or intervening in a legal
action, as authorized by subsection (a) of Code Section 44-3-251, the
homeowners´ association shall make a good faith effort to notify its
members of its intention to bring or intervene in such legal action by providing
a written notice meeting the requirements of paragraph (1) of subsection (c) of
this Code section by hand delivery or any form of United States Postal Service
mail or by posting signs meeting the requirements of paragraph (2) of subsection
(c) of this Code section for three consecutive days in no less than three
conspicuous places in the property owner´s development, community center,
clubhouse, or other gathering or recreational site.
(b)
As soon as practicable, but in any event no later than when efforts are made to
give notice to an adverse party of an ex parte hearing in the homeowners´
association´s application for a temporary restraining order, as authorized
by subsection (a) of Code Section 44-3-251, or no later than 24 hours after the
conclusion of such ex parte hearing, whichever first occurs, the
homeowners´ association shall make a good faith effort to notify its
members of its bringing of or intervention in such application for a temporary
restraining order by providing a written notice meeting the requirements of
paragraph (1) of subsection (d) of this Code section by hand delivery or any
form of United States Postal Service mail or by posting signs meeting the
requirements of paragraph (2) of subsection (d) of this Code section for three
consecutive days in no less than three conspicuous places in the property
owner´s development, community center, clubhouse, or other gathering or
recreational site.
(c)(1)
Any written notice as provided for in subsection (a) of this Code section shall
be substantially as follows, with the paragraph immediately preceding the
complimentary close in boldface type:
'[Salutation]
Within
30 days of the hand delivery or mailing of this notice to you, [name of
homeowners´ association] plans to initiate or intervene in a legal action
against [address of property and, if notice of an intervention, the case style].
This legal action involves allegations of a violation of a covenant of this
residential neighborhood or of a county or municipal ordinance or code, and
[name of homeowners´ association´s] plan to initiate or intervene in
this legal action will be on behalf of one or more of our homeowners. For more
information, please contact [name of homeowners´ association] at [address
and phone number of the contact for homeowners´ association].
Neither
the claim asserted in this proposed lawsuit nor the relief requested requires
your participation. This does not necessarily mean that you would not have to
be involved in some aspect of the legal action, such as, by way of examples
only, being deposed before trial or being called as a witness to trial. Whether
or not you choose to participate or are not required to be involved, you are
hereby advised that the final disposition of the case will preclude any
homeowner from taking any further action or seeking any further
relief.
[Complimentary
close]
[Name
of homeowners´ association]'
(2)
Any sign posted as provided for in subsection (a) of this Code section shall be
substantially as follows:
(A)
The sign shall be at least 36 inches in height and 36 inches in width with a
white background; and
(B)
The sign shall contain the following language in black lettering with the last
sentence in boldface type:
'Within
30 days, [name of homeowners´ association] plans to initiate or intervene
in a legal action against [address of property]. This legal action involves
allegations of a violation of a covenant of this residential neighborhood or of
a county or municipal ordinance or code, and [name of homeowners´
association´s] plan to initiate or intervene in this legal action will be
on behalf of one or more of our homeowners. For more information, please
contact [name of homeowners´ association] at [address and phone number of
the contact for homeowners´ association].
You are hereby advised
that the final disposition of the case will preclude any homeowner from taking
any further action or seeking any further
relief.'
(d)(1)
Any written notice as provided for in subsection (b) of this Code section shall
be substantially as follows, with the paragraph immediately preceding the
complimentary close in boldface type:
'[Salutation]
[Name
of homeowners´ association] has, within the past couple of days, initiated
or intervened in or, within the next couple of days, plans to initiate or
intervene in a legal application for a temporary restraining order against
[address of property and, if notice of an intervention, the case style]. This
application involves allegations of a violation of a covenant of this
residential neighborhood or of a county or municipal ordinance or code, and
[name of homeowners´ association´s] plan to initiate or intervene in
this legal action will be on behalf of one or more of our homeowners. For more
information, please contact [name of homeowners´ association] at [address
and phone number of the contact for the homeowners´
association].
Neither
the claim asserted in this proposed lawsuit nor the relief requested requires
your participation. This does not necessarily mean that you would not have to
be involved in some aspect of the legal action, such as, by way of examples
only, being deposed before a hearing or trial or being called as a witness to a
hearing or trial. Whether or not you choose to participate or are not required
to be involved, you are hereby advised that the final disposition of the case
will preclude any homeowner from taking any further action or seeking any
further relief.
[Complimentary
close]
[Name
of homeowners´ association]'
(2)
Any sign posted as provided for in subsection (b) of this Code section shall be
substantially as follows:
(A)
The sign shall be at least 36 inches in height and 36 inches in width with a
white background; and
(B)
The sign shall contain the following language in black lettering with the last
sentence in boldface type:
'[Name
of homeowners´ association] has, within the past couple of days, initiated
or intervened in or, within the next couple of days, plans to initiate or
intervene in a legal application for a temporary restraining order. This
application involves allegations of a violation of a covenant of this
residential neighborhood or of a county or municipal ordinance or code, and
[name of homeowners´ association´s] plan to initiate or intervene in
this legal action will be on behalf of one or more of our homeowners. For more
information, please contact [name of homeowners´ association] at [address
and phone number of the contact for homeowners´ association].
You are hereby advised
that the final disposition of the case will preclude any homeowner from taking
any further action or seeking any further
relief.'
(e)
No documentation of actual receipt of notice shall be required for any good
faith effort required under this Code section.
(f)
This Code section shall not apply to a property owners´ association subject
to Part 1 of this article for a particular development or an owners´
association referenced in the recorded real estate records for a particular
development.
44-3-253.
Where
there exists a property owners´ association subject to Part 1 of this
article for a particular development or an owners´ association referenced
in the recorded real estate records for a particular development, in covenants
that have not expired, no other homeowners´ association may act under this
part with respect to the enforcement of covenants running with land within that
development.
44-3-254.
(a)
This part shall have no application to the determination of standing with
respect to any action involving:
(1)
The adoption of a zoning ordinance;
(2)
The adoption of an amendment to a zoning ordinance which changes the text of the
zoning ordinance;
(3)
The adoption of an amendment to a zoning ordinance which rezones property from
one zoning classification to another;
(4)
The adoption of an amendment to a zoning ordinance by a municipal local
government which zones property to be annexed into the
municipality;
(5)
The grant of a governmental permit relating to the use of property;
or
(6)
Other similar government decisions relating to the development or use of
property.
(b)
Standing in actions described in this Code section shall be determined as
otherwise provided by law."
SECTION
2.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.