Georgia HOA and COA Foreclosures

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 a homeowners’ association (HOA) or condominium owners’ association (COA). If you fall behind in the assessments, the association will likely first try to collect the debt using traditional methods. For instance, the HOA will probably call you and send letters. But if those tactics don’t get you to pay up, the association will probably try other ways to collect from you. The association might take away your privileges to use the common facilities or file a lawsuit to get a money judgment against you. Most HOAs and COAs also have the power to get a lien on your property if you become delinquent in assessments. Not only will an assessments lien cloud the title to the property, which hinders your ability to sell or refinance the home, but the property can also be foreclosed to force a sale to a new owner—even if the property has a mortgage.

Different sets of state laws often govern HOAs in subdivision communities and COAs. In Georgia, the Georgia Condominium Act (Ga. Code Ann. §§ 44-3-70 to 44-3-117) and the Georgia Property Owners’ Association Act (Ga. Code Ann. §§ 44-3-220 to 44-3-235) cover association liens in the state. The two sets of laws are very similar.

In Virginia, if your home is part of an HOA or COA and you fall behind in assessments:

• The HOA or COA can usually get a lien on your home if you become delinquent in paying the assessments.
• If you request it, the association must provide you with a statement setting forth the amount of past-due assessments, plus late charges and interest.
• After you default on the assessments, the HOA or COA may foreclose but not unless the amount of the lien is at least $2,000.
• The association must give you notice before it starts a foreclosure.
• Lien priority determines what happens to other liens, like a mortgage lien, if an HOA or COA lien is foreclosed.

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.

How HOA and COA Liens Work, Generally

Based on the association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and state law, an HOA or COA can usually get a lien on a parcel of real estate if the homeowner is delinquent in paying the assessments. In some cases, 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.

HOA and COA Liens in Georgia

In Georgia, the recording of the CC&Rs or the Declaration of Condominium constitutes record notice of the existence of the lien. No further recordation for any claim of lien is required. (Ga. Code Ann. § 44-3-109(a), 44-3-232(a)).

Charges the HOA or COA May Include in the Lien

Georgia law sets out the types of charges that the HOA or COA may include in an assessments lien. (Ga. Code Ann. § 44-3-109(b), 44-3-232(b)).

• Assessments. The HOA or COA can include amounts for unpaid assessments in the lien.
• Late charges. Late charges of the greater of $10 or 10% of the amount of each assessment or installment due may be included in the lien.
• Collection Costs. The association may also include court costs, reasonable attorneys’ fees actually incurred, the expenses of sale, and any expenses required for the protection and preservation of the unit or lot.
• Interest. The HOA or COA may charge interest on unpaid assessments from the time the assessment became due at a rate not to exceed 10% per year.
• Fines. The lien may include fines from the time they become due.
• Rental value. The lien can also include the fair rental value of the unit or lot from the time the action is initiated until the foreclosure sale or until the judgment is otherwise satisfied.

How to Get a Statement of Assessments Due

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. § 44-3-109(d), 44-3-232(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. § 44-3-109(d), 44-3-232(d)).

HOA and COA Lien Foreclosures in Georgia

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. § 44-3-109(c), 44-3-232(c)).

Restriction on Foreclosures

In Georgia, an HOA or COA lien foreclosure isn’t permitted unless the lien amount is at least $2,000. (Ga. Code Ann. § 44-3-109(c), 44-3-232(c)).

Statute of Limitations

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. § 44-3-109(c), 44-3-232(c)).

HOA and COA Liens and Your Mortgage

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.

What Is Lien Priority?

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 other liens 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.

HOA and COA Lien Priority in Georgia

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:

• property taxes
• a first mortgage recorded before the recording of the declaration, and
• a secondary purchase money mortgage, so long as neither the grantee nor any successor grantee on the mortgage is the seller of the lot. (Ga. Code Ann. § 44-3-109(a), 44-3-232(a)).

Talk to a Lawyer If You're Facing an HOA or COA Foreclosure

If you're facing an HOA or COA foreclosure in Georgia, consider consulting with a foreclosure attorney to discuss all legal options available in your particular circumstances.