Powers and Responsibilities of Association; Tort Actions

  1. Law
  2. Georgia Code
  3. Property
  4. Regulation of Specialized Land Transactions
  5. Condominiums
  6. Powers and Responsibilities of Association; Tort Actions

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  1. Except to the extent prohibited by the condominium instruments 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 elements; and
    3. Grant or withhold approval of any action by one or more unit owners or other persons entitled to occupancy of any unit if such action would change the exterior appearance of any unit or of any other portion of the condominium or elect or provide for the appointment of an architectural control committee to grant or withhold such approval.
  2. Except to the extent prohibited by the condominium instruments and subject to any restrictions and limitations specified therein, the association shall have the irrevocable power, as attorney in fact on behalf of all unit owners and their successors in title, to grant easements, leases, and licenses through or over the common elements, to accept easements, leases, and licenses benefiting the condominium or any portion thereof, and to acquire or lease property in the name of the association as nominee for all unit owners. Property so acquired by the association as nominee for the unit owners, upon the recordation of the deed thereto or other instrument granting the same, shall automatically and without more, and for all purposes, including, without limitation, taxation, be a part of the common elements. 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 provisions of Code Section 44-2-2 notwithstanding, any such actions taken by the association as attorney in fact on behalf of all unit owners and their successors in title shall be effective record notice to third parties if recorded in the name of the association as that name is reflected in the recorded declaration or any recorded amendments thereto.Such recorded document shall not require a listing of the names of the unit owners or their successors in title or assigns.
  3. The association shall have the power to amend the condominium instruments, the articles of incorporation, and the bylaws of the association or any of them 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 unit owners.
  4. In addition to any other duties and responsibilities as this article or the condominium instruments 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.
  5. 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 condominium instruments.
  6. Except to the extent otherwise expressly required by this article, by Chapter 2 or 3 of Title 14, by the condominium instruments, 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 unit owners.
  7. A tort action alleging or founded upon negligence or willful misconduct by any agent or employee of the association or in connection with the condition of any portion of the condominium which the association has the responsibility to maintain shall be brought against the association. No unit owner shall be precluded from bringing such an action by virtue of his ownership of an undivided interest in the common elements or by virtue of his membership in the association. A judgment against the association arising from a tort action shall be a lien against the property of the association.
  8. The association shall have the capacity, power, and standing to institute, intervene in, prosecute, represent in, or defend, in its own name, litigation, administrative or other proceedings of any kind concerning claims or other matters relating to any portions of the units or common elements which the association has the responsibility to administer, repair, or maintain; and such capacity, power, and standing shall not be waived, abridged, modified, or removed by any provision of any contract or document, including the condominium instruments, that were recorded, entered into, or established prior to the expiration of the period of the declarant's right to control the association as set forth in subsection (a) of Code Section 44-3-101.
  9. This Code section shall not alter, modify, or remove the association's obligation to comply with Part 2A of Article 1 of Chapter 2 of Title 8.

(Ga. L. 1975, p. 609, § 38; Ga. L. 1990, p. 227, § 11; Ga. L. 1994, p. 1943, § 9; Ga. L. 2014, p. 212, § 1/HB 820.)

The 2014 amendment, effective July 1, 2014, added the language beginning with "; and such capacity" and ending with "Code Section 44-3-101" at the end of subsection (h) and added subsection (i).

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). For annual survey on construction law, see 66 Mercer L. Rev. 27 (2014).

JUDICIAL DECISIONS

Upkeep didn't include security from third party criminal acts.

- Like other statutes which are in derogation of the common law, the Georgia Condominium Act (the Act), O.C.G.A. § 44-3-70 et seq., must be strictly construed and limited to its explicit terms, and, in that regard, the Act does not in any fashion speak to providing security from third party criminal acts as a part of a condominium's "upkeep," meaning maintenance, repair, renovation, restoration, and replacement. Bradford Square Condo. Ass'n v. Miller, 258 Ga. App. 240, 573 S.E.2d 405 (2002).

Approval of actions of owners.

- Paragraph (a)(3) of O.C.G.A. § 44-3-106 constitutes a delegation of authority to the condominium association and must be construed strictly against the party seeking to restrict the use of property. Piccadilly Place Condominium Ass'n v. Frantz, 210 Ga. App. 676, 436 S.E.2d 728 (1993).

Installation of burglar bars on the interior of the windows of a condominium unit did not constitute alteration of the exterior of the unit within the prohibition of paragraph (a)(3) of O.C.G.A. § 44-3-106. Piccadilly Place Condominium Ass'n v. Frantz, 210 Ga. App. 676, 436 S.E.2d 728 (1993).

Standing of association to sue.

- An amendment to a condominium declaration removing a prohibition against the condominium association's filing suits for damages based on condominium defects did not confer standing on the association to sue for damages based on alleged defects in the construction of the condominium's common areas since the amendment was made after the suit was filed. Phoenix on Peachtree Condo. Ass'n v. Phoenix on Peachtree, LLC, 294 Ga. App. 447, 669 S.E.2d 229 (2008).


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