GA Code § 44-3-109 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 3 - Regulation of Specialized Land Transactions|Article 3 - Condominiums|§ 44-3-109. Lien for Assessments; Personal Obligation of Unit Owner; Notice and Foreclosure; Lapse; Right to Statement of Assessments; Effect of Failure to Furnish Statement

  All sums lawfully assessed by the association against any unit owner or condominium unit, whether for the share of the common expenses pertaining to that condominium unit, for fines, or otherwise, and all reasonable charges made to any unit owner or condominium unit for materials furnished or services rendered by the association at the owner's request to or on behalf of the unit owner or condominium unit, shall, from the time the same become due and payable, be the personal obligation of the unit owner and constitute a lien in favor of the association on the condominium unit prior and superior to all other liens whatsoever except:   Liens for ad valorem taxes on the condominium unit;   The lien of any first priority mortgage covering the unit and the lien of any mortgage recorded prior to the recording of the declaration;   The lessor's lien provided for in Code Section 44-3-86; and   The lien of any secondary purchase money mortgage covering the unit, provided that neither the grantee nor any successor grantee on the mortgage is the seller of the unit.  The recording of the declaration pursuant to this article shall constitute record notice of the existence of the lien, and no further recordation of any claim of lien for assessments shall be required.      To the extent that the condominium instruments provide, the personal obligation of the unit owner and the lien for assessments shall also include:   A late or delinquency charge not in excess of the greater of $10.00 or 10 percent of the amount of each assessment or installment thereof not paid when due;   At a rate not in excess of 10 percent per annum, interest on each assessment or installment thereof and any delinquency or late charge pertaining thereto from the date the same was first due and payable;   The costs of collection, including court costs, the expenses of sale, any expenses required for the protection and preservation of the unit, and reasonable attorney's fees actually incurred; and   The fair rental value of the condominium unit from the time of the institution of an action until the sale of the condominium at foreclosure or until the judgment rendered in the action is otherwise satisfied.     Not less than 30 days after notice is sent by certified mail or statutory overnight delivery, return receipt requested, to the unit owner both at the address of the unit and at any other address or addresses which the unit owner may have designated to the association in writing, the lien may be foreclosed by the association by an action, judgment, and foreclosure in the same manner as other liens for the improvement of real property, subject to superior liens or encumbrances, but any such court order for judicial foreclosure shall not affect the rights of holders of superior liens or encumbrances to exercise any rights or powers afforded to them under their security instruments. The notice provided for in this subsection shall specify the amount of the assessments then due and payable together with authorized late charges and the rate of interest accruing thereon. No foreclosure action against a lien arising out of this subsection shall be permitted unless the amount of the lien is at least $2,000.00. Unless prohibited by the condominium instruments, the association shall have the power to bid on the unit at any foreclosure sale and to acquire, hold, lease, encumber, and convey the same. The lien for assessments shall lapse and be of no further effect, as to assessments or installments thereof, together with late charges and interest applicable thereto, four years after the assessment or installment first became due and payable.   Any unit owner, mortgagee of a unit, person having executed a contract for the purchase of a condominium unit, or lender considering the loan of funds to be secured by a condominium unit shall be entitled upon request to a statement from the association or its management agent setting forth the amount of assessments past due and unpaid together with late charges and interest applicable thereto against that condominium unit. Such request shall be in writing, shall be delivered to the registered office of the association, and shall state an address to which the statement is to be directed. Failure on the part of the association to mail or otherwise furnish such statement regarding amounts due and payable at the expiration of such five-day period with respect to the condominium unit involved to such address as may be specified in the written request therefor within five business days from the receipt of such request shall cause the lien for assessments created by this Code section to be extinguished and of no further force or effect as to the title or interest acquired by the purchaser or lender, if any, as the case may be, and their respective successors and assigns, in the transaction contemplated in connection with such request. The information specified in such statement shall be binding upon the association and upon every unit owner. Payment of a fee not exceeding $10.00 may be required as a prerequisite to the issuance of such a statement if the condominium instruments so provided.   Nothing in this Code section shall be construed to prohibit actions maintainable pursuant to Code Section 44-3-76 to recover sums for which subsection (a) of this Code section creates a lien.    (Ga. L. 1975, p. 609, § 41; Ga. L. 1982, p. 3, § 44; Ga. L. 1990, p. 227, §§ 13, 14; Ga. L. 1994, p. 1943, § 10; Ga. L. 2000, p. 1589, § 3; Ga. L. 2004, p. 560, § 7; Ga. L. 2008, p. 1135, § 1/HB 422.)    The 2008 amendment,  effective July 1, 2008, added the third sentence in subsection (c).   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 surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). 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 wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).   JUDICIAL DECISIONS   Applicability.    - As an assignee of a condominium association's interest in unpaid condominium assessments and liens in a unit presented no evidence that the declaration of condominium, recorded before enactment of the Georgia Condominium Act, O.C.G.A. § 44-3-70 et seq., was amended to submit the condominium to the Act, the assignee failed to show that the lien priority provisions of O.C.G.A. § 44-3-109 of the Act applied. Therefore, upon a creditor's foreclosure of the creditor's deed to secure debt, the provisions of the declaration operated to extinguish the assignee's lien for condominium assessments. Denhardt v. 7 Bay Traders LLC, 296 Ga. App. 122, 673 S.E.2d 621 (2009).   Provision added by 1990 amendment inapplicable.    - The 1990 amendment of subsection (a) of O.C.G.A. § 44-3-109, adding the proviso at the end of the provision that all assessments due and payable from the unit owner constitutes a lien against the unit superior to all other liens, except the lien of any secondary purchase money mortgage covering the unit, provided that neither the grantee nor any successor grantee on the mortgage is the seller of the unit, did not apply when a secondary purchase money mortgage was made prior to the effective date of the amendment, but was not recorded until after that date. North Decatur Courtyards Condominium Ass'n v. Casey, 217 Ga. App. 716, 458 S.E.2d 676 (1995).   Foreclosure proceedings.    - Sole requirements for creation of the lien for assessments are contained in this statute, and it is only the actual foreclosure proceedings which must be in the same manner as other liens for the improvement of real property. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135, 253 S.E.2d 813 (1979) (see O.C.G.A. § 44-3-109).    Ga. L. 1975, p. 609, § 41 (see O.C.G.A. § 44-3-109) does not require procedural compliance with former Code 1933, § 67-2301 (see O.C.G.A. § 44-14-530) which provided for the enforcement of mechanics liens. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135, 253 S.E.2d 813 (1979).    Plaintiff condominium association could not assess against the defendant owner's unit, as common expenses under O.C.G.A. § 44-3-80(b)(2), legal fees and interest in connection with enforcing restraining orders against a former occupant since the occupant had moved before those expenses were incurred; those assessments were not lawfully assessed under O.C.G.A. § 44-3-109(a) and thus could not form the basis for a lien, and since the notice of foreclosure included those amounts, the notice did not comply with § 44-3-109(c). One Buckhead Loop Condo. Ass'n v. Pew, 484 Fed. Appx. 331 (11th Cir. 2012)(Unpublished).    Trial court properly allowed a condominium association to foreclose a lien against a debtor's condominium unit and awarded the association damages because O.C.G.A. § 44-3-109 and the condominium documents created a lien in the association's favor and the debtor's bankruptcy discharge had no impact on the association's right to enforce the association's lien since discharges in bankruptcy did not affect liability in rem. Casas-Rodriguez v. Cosmopolitan on Lindbergh Condo. Ass'n, 325 Ga. App. 253, 749 S.E.2d 371 (2013).    Condominium unit owner's claim for constructive eviction was not barred by the owner's failure to plead the eviction in an earlier action by the condominium association for assessments and foreclosure of its lien on the owner's units because the constructive eviction claim did not mature until after the conclusion of the association's suit and was therefore a permissive, not compulsory counterclaim. Elekima v. Abbey Rd. Condo. Ass'n., 331 Ga. App. 357, 771 S.E.2d 63 (2015).   Liability of secondary purchase-money mortgagee.    - Even though a secondary purchase-money mortgagee did not sell the condominium unit directly to the debtor who eventually failed to pay the mortgage or condominium fees and assessments, the association's lien was superior to the mortgage, and the mortgagee, as the seller of the unit, was liable for preforeclosure fees and assessments. Dunhill Condominium Ass'n v. Gregory, 228 Ga. App. 494, 492 S.E.2d 242 (1997).    Limitation on fees found in O.C.G.A. § 13-1-11(a)(2) is inapplicable to an action enforcing a condominium association's right to a lien for assessments. Wehunt v. Wren's Cross of Atlanta Condominium Ass'n, 175 Ga. App. 70, 332 S.E.2d 368 (1985).   Foreclosing mortgagee not entitled to pro rata share of lien elements.    - While a foreclosing mortgagee is clearly not liable nor is its property interest subject to a lien for any assessment, it is obligated to pay a pro rata amount of that "unpaid share" which becomes a part of the common expenses, but the condominium association would not be entitled to recover from the foreclosing mortgagee a pro rata share of the elements enumerated in subsection (b) of O.C.G.A. § 44-3-109 because those elements arise only from the lien which results from the failure to make a timely payment of assessments. First Fed. Sav. Bank v. Eaglewood Court Condominium Ass'n, 186 Ga. App. 605, 367 S.E.2d 876, cert. denied, 186 Ga. App. 918, 367 S.E.2d 876 (1988).   Impact of bankruptcy on lien enforcement.    - Bankruptcy discharge has no impact on a condominium association's right to enforce the association's lien as a bankruptcy discharge extinguishes only one mode of enforcing a claim, namely, an action against the debtor in personam, while leaving intact another, namely, an action against the debtor in rem. Casas-Rodriguez v. Cosmopolitan on Lindbergh Condo. Ass'n, 325 Ga. App. 253, 749 S.E.2d 371 (2013).   Attorney fees.    - Evidence showing no more than the amount billed by plaintiff's attorney was insufficient to establish the reasonableness of the claimed attorney fees. Hershiser v. Yorkshire Condominium Ass'n, 201 Ga. App. 185, 410 S.E.2d 455 (1991).    Court costs and attorney fees were appropriately awarded to a condominium association pursuant to O.C.G.A. § 44-3-109 and condominium documents. Atlanta Georgetown Condominium Ass'n v. Chaplin, 235 Ga. App. 460, 509 S.E.2d 729 (1998).    Condominium association was not entitled to all of the fees requested under O.C.G.A. § 44-3-109(b)(3) in the association's attempt to collect a default judgment entered against the debtor because the association incurred far more fees and expenses than necessary in an ill-considered and ineffective effort to collect through garnishment when the debtor, although failing to communicate with the association, acknowledged the debt and had made attempts to pay the past due assessments; the association was entitled to the fees in the association's attempt to obtain the default judgment as established by the state court and for fees for pre-bankruptcy legal services and private investigator expenses, but the other expenses and fees were thus not reasonable. Jacobs v. Vineyards Condo. Ass'n, Inc. (In re Jacobs), 324 Bankr. 402 (Bankr. N.D. Ga. 2005).    Because attorney fees incurred on appeal were contemplated by O.C.G.A. § 44-3-109(b)(3) and a homeowners association's bylaws, the trial court erred by failing to hold a hearing as to the reasonable amount of attorney fees incurred by the association. Springside Condo. Ass'n, Inc. v. Harpagon Co., 298 Ga. App. 39, 679 S.E.2d 85 (2009).    Condominium association's property manager's affidavit, in which the manager testified that the manager was familiar with the billing processes of the association and the association's records and that the manager's affidavit was on personal knowledge, was sufficient to support summary judgment for the association in the association's action against an owner for assessments and fees. Because the declaration provided for attorney's fees, an award of attorney's fees was mandated under O.C.G.A. § 44-3-109(b)(3), although the association did not ask for the fees. Ellington v. Gallery Condo. Ass'n, 313 Ga. App. 424, 721 S.E.2d 631 (2011).    Cited in Casey v. North Decatur Courtyards Condominium Ass'n, 213 Ga. App. 190, 444 S.E.2d 361 (1994).   RESEARCH REFERENCES   Am. Jur. 2d.   - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, §§ 35, 36, 45 et seq.   C.J.S.   - 53 C.J.S., Liens, §§ 1 et seq. 44.