GA Code § 44-3-93 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 3 - Regulation of Specialized Land Transactions|Article 3 - Condominiums|§ 44-3-93. Amendment of Condominium Instruments

    Except to the extent expressly permitted or required by other provisions of this article, the condominium instruments shall be amended only by the agreement of unit owners of units to which two-thirds of the votes in the association pertain or such larger majority as the condominium instruments may specify; provided, however, that, during any such time as there shall exist an unexpired option to add any additional property to the condominium or during any such time as the declarant has the right to control the association pursuant to Code Section 44-3-101, the agreement shall be that of the declarant and the unit owners of units to which two-thirds of the votes in the association pertain, exclusive of any vote or votes appurtenant to any unit or units then owned by the declarant, or a larger majority as the condominium instruments may specify.   Except to the extent expressly permitted or required by other provisions of this article, from and after July 1, 1990, no amendment of a condominium instrument shall require approval of unit ownersto which more than 80 percent of the association vote pertains and the mortgagees holding 80 percent of the voting interest of mortgaged units; provided, however, that the provisions of any condominium instruments in effect on July 1, 1990, which provide for a majority in excess of 80 percent shall not be affected or modified by the provisions of this paragraph if by July 1, 1991, the association and those mortgagees permitted to vote on amendments voted by the majority required for an amendment as specified in the condominium instrument to retain the existing requirements for amendments; and provided, further, if no such vote by the required majority occurred, those provisions requiring more than 80 percent shall be deemed to require only 80 percent of the voting interest.The approval of any proposed amendment by a mortgagee shall be deemed implied and consented to if the mortgagee fails to submit a response to any written proposal for an amendment within 30 days after the mortgagee receives notice of the proposed amendment sent by certified or registered mail or statutory overnight delivery, return receipt requested.This paragraph shall not be deemed to eliminate or modify any right of the declarant provided for in the condominium instruments to approve amendments to the condominium instruments so long as the declarant owns any unit primarily for the purpose of sale and, furthermore, this paragraph shall not be construed as modifying or altering the rights of a mortgagee set forth elsewhere in this article.     If none of the units in the condominium is restricted exclusively to residential use, the condominium instruments may specify a majority smaller than the minimum specified by subsection (a) of this Code section.   Except to the extent expressly permitted or required by other provisions of this article or agreed upon by all unit owners and the mortgagees of all condominium units, no amendment to the condominium instruments shall change the boundaries of any unit, the undivided interest in the common elements pertaining thereto, the number of votes in the association pertaining thereto, or the liability for common expenses pertaining thereto.   Agreement of the required majority of unit owners to any amendment of the condominium instruments shall be evidenced by their execution of the amendment. In the alternative, provided that the declarant does not then have the right to control the association pursuant to Code Section 44-3-101, the sworn statement of the president, of any vice-president, or of the secretary of the association attached to or incorporated in an amendment executed by the association, which sworn statement states unequivocally that agreement of the required majority was otherwise lawfully obtained and that any notices required under this article were properly given, shall be sufficient to evidence the required agreement.Any such amendment of the condominium instruments shall become effective only when recorded or at such later date as may be specified in the amendment itself.   In any court suit or action where the validity of the adoption of an amendment to a condominium instrument is in issue, the adoption of the amendment shall be presumed valid if the suit is commenced more than one year after the recording of the amendment on the public record.In such cases, the burden of proof shall be upon the party challenging the validity of the adoption of the amendment.    (Ga. L. 1975, p. 609, § 29; Ga. L. 1982, p. 3, § 44; Ga. L. 1990, p. 227, § 7; Ga. L. 1991, p. 94, § 44; Ga. L. 1994, p. 1943, §§ 6, 7; Ga. L. 2000, p. 1589, § 4.)   Editor's notes.   - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.   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).   JUDICIAL DECISIONS   Effect of recording condominium declaration.    - Condominium declaration does not become an "instrument" until the declaration is recorded; before the declaration is recorded, O.C.G.A. § 44-3-111, which sets forth the information that sellers are required to furnish buyers as well as the rights of buyers generally, applies to the transaction, not O.C.G.A. § 44-3-93(c). Park Regency Ptnrs., L.P. v. Gruber, 271 Ga. App. 66, 608 S.E.2d 667 (2004).   Rooftop terrace declared common element versus limited common element.    - Trial court properly granted a condominium association and the association's board summary judgment and properly declared a tenth-floor rooftop terrace a common element for all unit owners in a suit involving a dispute over the terrace because the express terms of the original declaration designated the terrace as a common element. Further, an amendment stating otherwise that was signed by a former managing member, and not the association, no longer controlled since the former managing member's control ended by the time the declarant sought to amend the declaration to assign the entire fenced area of the tenth-floor rooftop terrace as a limited common element benefitting only the penthouse unit. Walker v. 90 Fairlie Condo. Ass'n, 290 Ga. App. 171, 659 S.E.2d 412 (2008).   RESEARCH REFERENCES   Am. Jur. 2d.   - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 5 et seq.   C.J.S.   - 51C C.J.S., Landlord and Tenant, § 232.   ALR.   - Validity and construction of condominium association's regulations governing members' use of common facilities, 72 A.L.R.3d 308.