Adding Value to your Community Through Governing Document Amendments
By Kathryn Roberts, Esq.
Community Associations Institute – Georgia Chapter
Third Quarter Magazine 2020
A community’s governing legal documents form the foundation for the community, establish community values, and create the covenants and restrictions by which all members are bound. We all know this. But what can be easily overlooked is the significant value these governing documents possess. The declaration, bylaws, and rules and regulations for a community association can work to be one of the Association’s most valuable assets. Of course, just like any other asset of a community association, these governing legal documents need to be “maintained and repaired” from time to time.
When it comes to community associations, things are rarely static. Community association law and practices are constantly changing, often in response to the realities of today’s economy and environment. Case in point: the Covid-19 pandemic. The pandemic has, for many communities, significantly altered the trajectory of how communities operate, gather, and utilize shared facilities.
As many have experienced, one of the consequences of this pandemic is that people are staying closer to home, and some have more downtime than pre-Covid times allowed. As a result, some community boards are using this extra time to their advantage to review their community’s governing documents, pinpoint weaknesses, and seek to amend the documents in a way that ultimately adds real value to one of the community’s greatest assets.
The recommended changes for an association’s governing documents can vary greatly based on the actual documents and the needs of the association. There are some basic amendments almost every community should consider, such as an HOA submitting to the Georgia Property Owners’ Association Act, leasing regulations, or updating/adding strong enforcement powers for violations and delinquencies. There are, however, a few specific amendments that, while not commonly considered, are of equal importance and will add real value to your community. I will briefly discuss these provisions below.
A very key provision all governing documents should include is one that provides for security disclaimers. Generally, the issue of security arises when someone raises a claim that he or she was damaged or injured because of an incident that occurred due to the Association’s alleged failure to provide security in the community. Georgia courts have specifically provided that provisions in community’s governing documents that explicitly state community associations are not providers of security and that all owners and their occupants, guests, invitees, etc. are responsible for ensuring their own safety in the community are effective in insulating associations from liability for damages sustained on common property. This type of security provision has recently gained quite a bit of traction in amendment discussions due to the pandemic because these provisions can be drafted to include liability limitations as to communicable diseases. We still need to see how courts would view these communicable diseases exclusions, but it is certainly something to consider and discuss with your association’s attorney if you are considering a security disclaimer amendment.
No matter your connection to the community association world, its likely you have been involved in a neighbor-to-neighbor dispute in some form or another. Generally, these neighbor disputes involve issues and conduct that falls within the nuisance provisions of an association’s governing documents. From the association’s perspective, noise and other nuisance or disturbance related issues can be tricky to address as they are typically subjective matters, and often put the Board in a position of having to rely on the owners’ claims, without witness accounts, to determine which owner is the most believable. Even then, if the Association can make that determination to a reasonable degree, the enforcement measures available are not always sufficient to effectively address the problems, short of legal action. Ultimately, in most cases, the local authorities are going to be in the best position to address nuisance issues like noise complaints. For these reasons, communities are looking to revise their general nuisance provisions to give associations discretion in enforcing these nuisance provisions, effectively removing the obligation to do so. As amended, the provision provides that the association retains the authority to get involved if the board, in its discretion, determines the matter warrants the association’s involvement, but it allows the Association to tell the owners, generally, that the board will not, and is not required to, get involved in their neighbor disputes.
One thing to keep in mind is that even with these nuisance disclaimer provisions, the Department of Housing and Urban Development (HUD) provides for regulations as to hostile conduct that consider it to be the association’s obligation to get involved if neighbors report that some harassment is occurring based on some status as a protected class. Even with these nuisance disclaimer provisions, associations will still probably need to address these harassment claims in some form.
Personal Injury Liability Limitations
Associations, as owners or managers of property, are going to bear some risk of exposure to liability for injuries that occur while a person is utilizing the common property areas or facilities. Georgia Courts have specially provided that provisions in community governing documents which place a specific duty upon the owners, their guests, etc., to inspect the property prior to and during use for any defects or perils or other unsafe conditions, and that such use is at his or her own risk, are effective in limiting association liability. While incidents that cause damages or injuries on common property may not occur that often, when they do, they can be significant. Having a liability limiting provisions such as this in your community’s governing documents can serve to help not only insulate the association from liability, but also avoid potential protracted disputes and litigation. Although many of the more recently drafted declarations include these liability provisions, many older documents do not. So, it is important to check your community’s documents and, if you find that this provision is missing, consider an amendment.