If your home is part of a homeowners' association (HOA) or condominium owners' association (COA) in Georgia and you fall behind in assessments:
If the HOA or COA initiates a foreclosure, you might have a defense to the action, or you might be able to negotiate a way to get caught up on the overdue amounts and save your home.
When you buy a single-family home, townhome, or condominium that's part of a planned community with covenants, you'll most likely pay fees and assessments, often collectively called "assessments," to an HOA or COA. If you fall behind in the assessments, the association will likely first try to collect the debt using traditional methods. For instance, the association will probably call you and send letters.
But if those tactics don't get you to pay up, the association could try other ways to collect from you. The association might take away your privileges to use the common facilities or file a lawsuit for a money judgment against you.
Based on the association's Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and state law, most HOAs and COAs also have the power to get a lien on your property if you become delinquent in assessments. An assessments lien clouds the title to the property, hindering your ability to sell or refinance the home. The property can also be foreclosed to force a sale to a new owner—even if the property has a mortgage on it.
Sometimes, the association will record its lien with the county recorder to provide public notice that the lien exists, regardless of whether state law requires recording.
In Georgia, the recording of the CC&Rs or the Declaration of Condominium constitutes record notice of the lien's existence. No further recordation for any claim of lien is required. (Ga. Code Ann. § 44-3-232(a), § 44-3-109(a)).
Georgia law sets out the types of charges that the HOA or COA may include in an assessments lien. (Ga. Code Ann. § 44-3-232(b), § 44-3-109(b)).
Upon request, the association must provide you with a statement setting forth the amount of assessments that are past due, plus late charges and interest. You must make the request in writing and deliver it to the registered office of the association. Be sure to tell the association where you want the statement sent. The association may charge a fee, not exceeding $10, for issuing the statement if the declaration allows it. (Ga. Code Ann. § 44-3-232(d), § 44-3-109(d)).
If the association doesn't mail or otherwise furnish you with the statement within five business days after receiving your request, the lien is extinguished. (Ga. Code Ann. § 44-3-232(d), § 44-3-109(d)).
At least 30 days before starting a foreclosure, the HOA or COA must provide notice to the owner by certified mail or statutory overnight delivery, return receipt requested, at both at the address of the unit or lot and at any other address or addresses which the unit or lot owner may have designated to the association in writing. (Ga. Code Ann. § 44-3-232(c), § 44-3-109(c)).
In Georgia, an HOA or COA lien foreclosure isn't permitted unless the lien amount is at least $2,000. (Ga. Code Ann. § 44-3-232(c), § 44-3-109(c)).
The HOA or COA must initiate an action to enforce the lien within four years after the assessment or installment first became due. Otherwise, the lien will lapse and won't be effective. (Ga. Code Ann. § 44-3-232(c), § 44-3-109(c)).
A common misconception is that the association can't foreclose if you're current with your mortgage payments. But an association's right to foreclose isn't dependent on whether you're up to date on your mortgage. Instead, lien priority determines what happens in a foreclosure.
The priority of liens establishes who gets paid first following a foreclosure sale and often determines whether a lienholder will get paid at all. Liens generally follow the "first in time, first in right" rule, which says that whichever lien is recorded first in the land records has higher priority than later recorded liens. A first lien has a higher priority than others and gets the first crack at the foreclosure sale proceeds.
If any proceeds are left after the first lien is paid in full, the excess proceeds go to the second lienholder until that lien is paid off, and so on. A lien with a low priority might get nothing from a foreclosure sale.
But state law or an association's governing documents can adjust lien priority.
In Georgia, an HOA or COA lien for unpaid assessments has priority over other liens on a unit or lot subject to a few exceptions, like:
If you're facing an HOA or COA foreclosure in Georgia, consider consulting with a foreclosure attorney to discuss all legal options available.