2021 Georgia Session: New Laws Impacting Community Associations
2021 Legislative Alert
of the new and revised bills that were passed during the 2021 Legislative Session.
The Georgia General Assembly convened on January 11, 2021 for its annual legislative session, ending on March 31, 2021.
Upon adjournment of the session, the governor has 40 days to sign or veto any legislation which passed both chambers – the Senate and the House of Representatives. Unless a passed bill is vetoed by the governor, it automatically becomes law after the 40-day period. Bills that failed to pass through either chamber in the 2021 session will be heard during the 2022 legislative session, since 2021 was year one of a biennial session.
FirstService Residential works with industry stakeholders on important legislative matters in the best interest of Georgia community associations, tending to the bills which may impact these associations and those who live and work in them. FirstService Residential partnered with Stephen A. Winter, Managing Partner of Winter Capriola Zenner for this 2021 Legislative Update.
Following are the main bills the Georgia legislature addressed this session:
Liability concerns for community associations created by COVID-19 are relatively the same as they have been since August 2020, when the “Georgia COVID-19 Pandemic Safety Act” (the “Act”) went into effect. The Act established a rebuttable presumption that anyone using an association’s common areas assumes the risk of contracting COVID-19, so long as there is no gross negligence, willful or wanton misconduct, reckless infliction of harm, or intentional infliction of harm by the entity. To benefit from this presumption, an association is required to post a sign at the entry to the premises stating: “WARNING UNDER GEORGIA LAW, THERE IS NO LIABILITY FOR AN INJURY OR DEATH OF AN INDIVIDUAL ENTERING THESE PREMISES IF SUCH INJURY OR DEATH RESULTS FROM THE INHERENT RISKS OF CONTRACTING COVID-19. YOU ARE ASSUMING THIS RISK BY ENTERING THESE PREMISES.” The sign must be in Arial font with letters at least 1” tall and must be placed away from other text. While the Act does not eliminate liability exposure, it should deter most potential lawsuits.
In 2020, many associations struggled with how best to hold their annual meetings and board elections given the COVID-19 pandemic, hoping to avoid conducting in-person meetings of members to prevent the spread of the virus and keep their members safe. Section 14-3-820 of the Georgia Nonprofit Corporation Code (the “Code”) provides that, unless the articles or bylaws provide otherwise, a board may permit any or all directors to participate in regular or special meetings or conduct the meeting using any means of communication by which all directors may simultaneously hear each other during the meeting.
This provision therefore allows for boards to conduct virtual and/or telephonic meetings through such means as Zoom, Ring, conference calls or other similar technological platforms. However, this only applies to board meetings. Section 14-3-701 of the Code, which governs membership meetings, does not include such a provision as it provides for nonprofit corporations to hold their meetings at “the place stated in or fixed in accordance with the bylaws.” Unfortunately, most bylaws do not expressly authorize membership meetings to be conducted in this manner.
Although the Georgia Secretary of State issued an opinion in 2020 that annual member meetings could be held virtually, since the Code did not specifically prohibit virtual or telephonic attendance at member meetings, it was believed that members could have potentially valid objections to conducting an annual meeting of the members in this manner. For that reason, the Georgia legislature recently adopted a bill permitting associations to hold their annual, regular and special member meetings by means of remote communications, unless the association’s articles or bylaws provide otherwise, and provided the members can read or hear the proceedings of the meeting substantially concurrently with such proceedings.
In such a case, when authorized by the association’s board, such meetings shall be subject to the guidelines and procedures as established by the Board of Directors. Specifically, members not physically present at a meeting of the association may, by means of remote communication, participate in a meeting of members, and be deemed present in person and vote at a meeting of the members, whether such meeting is held at a designated place or held wholly by means of remote communication. To take advantage of this initiative, the association is required to implement reasonable procedures to verify that each person deemed present at the meeting by means of remote communication is a member or holder of a proxy and, when any member or holder of a proxy votes at the meeting by means of remote communication, a record of such vote or such other action shall be maintained by the association. Since virtual and telephonic meetings were deemed by many to be better and more efficiently run, it is likely that more associations will take advantage of this opportunity moving forward into the future, especially since the code now expressly allows for such meetings to take place in such fashion.
Although the bill to allow for virtual member meetings was passed in both houses of the Georgia General Assembly and has been sent to the governor, that bill has not yet been signed into law. Please note that Governor Kem has 40 days to sign or veto from Sine Die.
Interestingly, for most associations, the only item of business at an annual meeting that requires a vote of the members is the board election. Under Georgia law, it may be possible to hold the election by written ballot (either by mail or by electronic means) outside of the annual meeting. Section 14-3-708 of the Non-Profit Code states that “Unless prohibited or limited by the articles or bylaws, any action that may be taken at any annual, regular or special meetings of members may be taken without a meeting if the corporation delivers a ballot in writing or by electronic transmission to every member entitled to vote on the matter.” This means that if the association’s articles of incorporation and/or bylaws do not limit or prohibit the use of written ballots for board elections, elections do not have to be held at the annual meeting.
If holding an election by written ballot is an option for your community, it will generally require a two-step process. The first step is to send a notice to all members for the purpose of soliciting candidates to run for the open board positions. Members who are interested in running for the open board positions should be asked to submit nomination forms, bios and other pertinent information by a specified deadline date. Members who submit the required information by the specified deadline date should be listed on the ballot form that is sent to the members to conduct the vote to fill the open board positions. Spaces should also be included on the ballot for write-in candidates.
Condominium Plans / Plats Required
As you may know, all condominiums, to be properly formed in Georgia, require the recordation of a Declaration, a Plat and Floor Plans in accordance with the Georgia Condominium Act (the “Act”). These 3 documents, together, allow for the proper establishment of a condominium regime and seek to properly identify each unit and their respective boundaries with the condominium. There has been a recent trend to establish more condominium regimes with parcels of land constituting the actual units rather than physical structures. For this reason, the Georgia legislature recently adopted an amendment to the Georgia Condominium Act to provide that no floor plans are required to be prepared and recorded when the units within the condominium are not designated by physical structures. This same bill also specifies that sub condominiums (i.e., a condominium within a master condominium) no longer require that a plat be prepared and recorded for the sub condominium as the plat for the master condominium will generally suffice in its place.
The following is a list of bills that were heard this year but not passed. They remain active and will be considered again in 2022. FirstService Residential will keep you informed of any further activity:
- HB79 - Fireworks
- HB260 - Commerce and Trade
- HB379 - Labor and Industrial Relations
- HB400 - Property
- HB467 - Revenue and Taxation
- HB483 - Property Owners’ Associations
- HB524 - Property
- HB550 - Professions and Businesses
- HB561 - Condominiums
- HB818 - Property
- HB844 - Local Government
- HR117 - House Study Committee on Homeowners’ Associations
- SB52 - Selling and Other Trade Practices
- SB94 - Rivers and River Basins
- SB154 - Property Owners’ Associations
FirstService Residential works diligently to inform policymakers of community association needs, to promote beneficial legislation and to offer key insight on how bills could potentially negatively impact community associations. Ideally, these insights will help make informed decisions about what is best for your community. It is important to seek appropriate guidance on how these laws affect your specific association from your association’s attorney.