🔧Double Standards? When HOA Rules Only Apply to Some

This section gives homeowners a legal pathway to take control of the HOA if the people in charge aren’t doing what they’re supposed to do.

📌 What Is Subsection (d)(5)?

In Georgia, Subsection (d)(5) of the Georgia Property Owners' Association Act requires HOA boards to enforce rules and restrictions in a fair, uniform, and non-discriminatory manner. If your HOA picks and chooses which rules to enforce—or who they enforce them on—they may be violating state law. This provision is designed to protect homeowners from selective enforcement, favoritism, or targeted harassment.

Subjective Enforcement in Action:

In some communities, enforcement seems to depend less on the rules and more on who the board favors—or targets. A common example includes issuing fines for cosmetic issues like fading shutters, even when other homes (including those owned by board members) have similar or worse violations that go unaddressed.

For instance, a homeowner might be fined for the color or condition of their shutters because the board “doesn’t like the look.” Meanwhile, a board member’s garage may have non-conforming paint colors or other covenant violations that get ignored entirely.

This kind of cherry-picking not only erodes trust but opens the door to legal challenges. If enhancements or improvements are allowed for some but penalized for others, that’s not governance—it’s bias. Honestly, I would never paint my garage door like this (its a clear violation), and in my opinon it is not aesthetically pleasing and its tacky. This once again proves how boards overreach and abuse their powers.

Hypothetical Garage Door Painting

Shutters

⚠️ What Triggers It?

If your HOA (or the entity enforcing your subdivision's covenants) fails to do ANY of the following, homeowners can take legal action:

1. ❌ Not incorporating or keeping up annual registration (as required by the covenants)

2. ❌ No functioning board — directors aren’t appointed or officers aren’t elected

3. ❌ Won’t share a list of current directors/officers when asked

4. ❌ Doesn’t call meetings as required

5. ❌ Fails to prepare or share an annual budget and dues notice

6. ❌ Fails to pay property taxes on common areas for 2+ years

   
   

📬 What Can Homeowners Do?

If even one of those things is happening, a homeowner (or group of them) can:

1. Send written notice to the HOA describing the failure

   • Must be sent by certified mail or overnight delivery

   • Must give the HOA 30 days to fix the issue

2. If the HOA doesn’t fix it within 30 days, homeowners can:

   • File a case in Superior Court

   • Ask the judge to:

     • Order an election to replace the board

     • Transfer control of the HOA to the homeowners

     • Force the HOA to turn over common areas if applicable

       
       

⚖️ Court Process

• A judge can fast-track the hearing (within 20 days)

• No lengthy discovery process unless the judge specifically allows it

• If the homeowners win:

  • The court grants control

  • The HOA may be forced to hand over common property

  • Homeowners get their attorney’s fees reimbursed

    
    

🛑 Important Limits

• This process only applies to planned subdivisions with 15+ lots

• It’s not an automatic power grab — there’s a required notice and cure period

• This doesn’t create personal liability for board members or their agents — it’s only about transferring control

  
  

✅ Bottom Line:

If your HOA is not functioning — you have the right to take control.

This law is meant to protect homeowners from being trapped in dysfunctional or corrupt HOA boards. It gives YOU the power to:

• Organize your neighbors

• Document the failures

• Send a proper legal notice

• Go to court to fix it — and win control

  
  

  Step-by-Step: How to Take Control When Your HOA Isn't Functioning

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  1. Identify Violations: Check if your HOA has failed to do any of the following: - Maintain incorporation or annual registration - Appoint board members or elect officers - Provide names/addresses of directors and officers when asked - Hold meetings per governing documents - Send annual budget & assessment notice within 30 days of new fiscal year - Pay taxes on common property for 2+ years

  2. Draft a Written Notice: Create a letter stating: - The specific failures (cite documents or missed deadlines) - That you're giving the HOA 30 days to cure the issues

  3. Send the Notice: - Use Certified Mail or Statutory Overnight Delivery - Send to the HOA's principal office

  4. Wait 30 Days: If the HOA fails to correct the issues, you now have legal standing.

  5. File in Superior Court: Ask for: - Declaratory judgment to transfer control - An election or court orders to replace board - Attorney fees (if you win)

  6. Be Prepared: - The court can fast-track the hearing (within 20 days) - Limited discovery unless approved - You can do this alone or with neighbors

  7. Win Control & Restore Accountability

Sample Notice Letter to HOA

[Your Name] [Your Address]

[City, State ZIP]

[Phone Number]

[Email Address]

[Today's Date]

[HOA Name]

[HOA Principal Office Address]

[City, State ZIP]

RE: Notice of HOA Failure to Comply - Demand to Cure per O.C.G.A. § 44-5-60(d)(5)

Dear Board Members:

I am a homeowner in [Subdivision Name] and a plot owner within the community. This letter is to formally notify you of multiple failures on the part of the [HOA Name], which violate the governing documents and Georgia law under O.C.G.A. § 44-5-60(d)(5). Specifically, the HOA has failed to:

[List each applicable failure here.

For example:] - Provide a list of current directors and officers upon request - Send an annual budget and notice of assessments within the statutory timeframe

Per the statute, the HOA is granted 30 days from receipt of this notice to cure these deficiencies. If these failures are not remedied within 30 days, I will have standing to petition the Superior Court for relief, including the transfer of control of the HOA entity to the property owners, pursuant to Georgia law. This notice is being sent via certified mail to ensure proper documentation of delivery and legal compliance. Sincerely,

[Your Name] [

Your Signature]

⚠️ Important Disclaimer for Homeowners:

Standing up to your HOA may come with pushback. Sending a formal notice like the one below can trigger retaliation, intimidation, or selective enforcement by a board that is used to being unchallenged.

But someone has to take a stand. Change doesn't happen when we stay quiet — it happens when we're informed, organized, and brave enough to demand better.

If you’re ready to act, just know: you’re not alone, and you’re not powerless.