HB 403: Property; enhance protections for homeowners and tenants by revising or repealing certain provisions inhibiting housing stability

House Bill 403

By: Representatives Bell of the 75th, Olaleye of the 59th, Davis of the 87th, Scott of the 76th, Frye of the 122nd, and others

A BILL TO BE ENTITLED

AN ACT

To amend Title 44 of the Official Code of Georgia Annotated, relating to property, so as to enhance protections for homeowners and tenants by revising or repealing certain provisions inhibiting housing stability; to repeal certain provisions allowing for liens on condominiums and lots in relation to collection of property association fees and assessments; to make conforming changes related to certain liens; to void certain conveyances of single-family dwellings, including town homes, to real estate investment trusts; to repeal the prohibition on local governments regulating the amount of rent to be charged for privately owned, single-family or multiple-unit residential rental property; to prohibit certain nonjudicial foreclosures on mortgages on real estate; to provide for definitions; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Title 44 of the Official Code of Georgia Annotated, relating to property, is amended by revising subsections (e) and (f) of Code Section 44-3-80, relating to allocation of and liability for common expenses and how assessments are made relative to condominiums, as follows: "(e) Unless otherwise provided in the condominium instruments and except as provided in subsection (f) of this Code section, the grantee in a conveyance of a condominium unit shall be jointly and severally liable with the grantor thereof for all unpaid assessments against the latter up to the time of the conveyance without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantee therefor; provided, however, that, if the grantor or grantee shall request a statement from the association as provided in Code Section 44-3-109, such grantee and his or her successors, successors-in-title, and assigns shall not be liable for nor shall the condominium unit conveyed be subject to a lien for any unpaid assessments against such grantor in excess of any amount set forth in the statement.

(f) In the event that the holder of a first priority mortgage or a secondary purchase money mortgage of record, provided that neither the grantee nor any successor grantee on the secondary purchase money mortgage is the seller of the unit, or any other person acquires title to any condominium unit as a result of foreclosure of any such mortgage, such holder or other person and successors, successors-in-title, and assigns shall not be liable for nor shall the condominium unit be subject to a lien for any assessment under this Code section or under any condominium instrument chargeable to the condominium unit on account of any period prior to the acquisition of title; provided, however, that the unpaid share of an assessment or assessments shall be deemed to be common expenses collectable from all of the unit owners, including such holder or other person and successors, successors-in-title, and assigns."

SECTION 2.

Said title is further amended by revising Code Section 44-3-109, relating to lien for assessments, personal obligation of unit owner, notice and foreclosure, lapse, right to statement of assessments, and effect of failure to furnish statement relative to condominiums, as follows:

"44-3-109.

(a) 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.

(a.1) The superiority of liens on a condominium unit shall be in the following order:

(1) Liens for ad valorem taxes on the condominium unit;

(2) The lien of any first priority mortgage covering the unit and the lien of any mortgage recorded prior to the recording of the declaration;

(3) The lessor's lien provided for in Code Section 44-3-86; and

(4) 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.

(b) To the extent that the condominium instruments provide, the personal obligation of the unit owner and the lien for assessments shall also include:

(1) 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;

(2) 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;

(3) 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

(4) 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.

(c) 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 a 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.

(d) 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.

(e) 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."

SECTION 3.

Said title is further amended by revising subsections (e), (f), and (h) of Code Section 44-3-117, relating to application to subcondominiums, creation of subcondominium, subassociation, insurance, effect of certain liens, eminent domain, description of certain units, and assessments, as follows:

"(e) All sums lawfully assessed by a master association against a subassociation shall have the same effect as provided in subsection (a) of Code Section 44-3-109. The recording of the declaration for a subcondominium 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.

(f) In the event any lien becomes effective against a subunit as provided in subsection (e) of this Code section, the subassociation may remove that lien from the subunits by:

(1) The payment of the amount attributable to the subunits, or

(2) Bonding of the amount assessed against the subassociation or any subunit owner may remove that lien from his or her subunit by the payment of the amount attributable to his or her subunit. The amount shall be computed by reference to the liability for common expenses pertaining to that condominium unit pursuant to subsection (c) of Code Section 44-3-80. Subsequent to the payment, discharge, or other satisfaction of such amount, the subunit owner of that subunit shall be entitled to have that lien released as to his or her subunit in accordance with applicable provisions of law, and notwithstanding anything to the contrary in Code Sections 44-3-80 and 44-3-109, the master association shall not assess or have a valid lien against that subunit for any portion of the common expenses incurred by the master association in connection with that lien. Reserved."

"(h) Any subunit owner, mortgagee of a subunit, person having executed a contract for the purchase of a subunit, or lender considering the loan of funds to be secured by a subunit shall be entitled upon request to a statement from the subassociation or its management agent setting forth the amount of assessments past due and unpaid together with late charges and interest applicable owed by the subassociation to the master association. If the subassociation or its management agent states an amount less than the amount actually owed by the subassociation to the master association, the lien created by Code Section 44-3-109 for any amounts in excess of the stated amount shall be subordinate to the lien of any first priority mortgage covering the subunit."

SECTION 4.

Said title is further amended by revising Code Section 44-3-206, relating to foreclosure by owner's association, procedure, and effect of sale relative to time-share projects and programs, as follows:

"44-3-206.

(a) An owners' association may foreclose its lien upon a time-share estate in accordance with subsection (c) of Code Section 44-3-109 or with Code Section 44-3-207 or may foreclose its lien under a power of sale that such owners' association shall have under this Code section in order to sell a time-share estate for the purpose of paying any or all unpaid assessments and other charges owed by the owner of such time-share estate. (b)(1) In order for an owners' association to foreclose its lien upon a time-share estate under a power of sale, a notice of sale shall be:

(A) Accomplished in writing sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address of the owner most recently provided to the owners' association no later than 30 days prior to the date of the proposed sale and shall be deemed given on the official postmark day or the day on which it is received for delivery by a commercial delivery firm;

(B) Provided in writing to any lien holder, sent by registered or certified mail or statutory overnight delivery, return receipt requested; and

(C) Provided by advertising the time, place, and terms of said sale in a newspaper in which sheriff's advertisements are published in the county where the development is located, once a week during the four calendar weeks immediately preceding the calendar week of the date of such sale.

(2) Any sale pursuant to this subsection shall occur on a legal sale day within the legal hours of sale at the legal place of sale in the county where the development is located.

(c) A sale undertaken as authorized by this Code section shall divest the owner of all right, title, interest, and equity that such owner has in or to the time-share estate and shall vest fee simple title to the time-share estate in the purchaser or purchasers at said sale. The proceeds of said sale shall be applied first in accordance with the lien priorities set forth in paragraphs (1) through (4) of subsection (a) (a.1) of Code Section 44-3-109, after which any remaining proceeds shall be applied to the payment in full of such unpaid assessments and other charges and next to the payment of all expenses actually incurred by the owners' association in connection with said proceedings, including attorneys' fees, and any remaining proceeds shall be paid to the owner. The owners' association may bid at said sale and purchase the time-share estate.

(d) For the purpose of carrying out and effectuating the power of sale authorized by this Code section, the owners' association shall be constituted the true and lawful attorney-in-fact of such owner to sell such time-share estate, as provided in this Code section, and convey the same to the purchaser or purchasers at said sale in as full and ample a manner as such owner could do in person. The power and agency hereby granted are coupled with an interest and are irrevocable by death or otherwise."

SECTION 5.

Said title is further amended by revising subparagraph (a)(1)(A), paragraph (2) of subsection (c), paragraph (1) of subsection (d), and paragraphs (2), (4), and (5) of subsection (e) of Code Section 44-3-207, relating to time-share estates, trustee foreclosures, and requirements, as follows:

"(a)(1)(A) In order to sell a time-share estate for the purpose of paying any or all unpaid assessments and other charges owed by the owner of such time-share estate, an owners' association, or its managing agent on behalf of the owner's association, may foreclose its lien for all assessments and other charges assessed by the owners' association upon a time-share estate pursuant to the time-share instrument or subsections (a) and (b) of Code Section 44-3-109, in accordance with:

(i) The judicial foreclosure procedure of subsection (c) of Code Section 44-3-109 or 44-3-232, as applicable;

(ii)(i) The trustee foreclosure procedure under this Code section; or (iii)(ii) The nonjudicial foreclosure procedure under Code Section 44-3-206." "(2) In any trustee foreclosure proceeding, the trustee shall first deliver to the owner of the time-share estate a written notice of default sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the owner's property address that was most recently provided to the owners' association or mortgagee and no later than 30 days prior to the initiation of the trustee foreclosure procedure. The notice of default shall be deemed delivered on the official postmark day or the day on which it is received for delivery by a commercial delivery firm. The notice of default shall state:

(A) The intent of the owners' association or mortgagee to commence foreclosing on the assessment lien or mortgage, after the end of the 30 day period, using the trustee foreclosure procedure set forth in this Code section;

(B) The address and telephone number of the trustee and owners' association, its managing agent, or the mortgagee, as applicable;

(C) The legal description of the time-share estate;

(D) The nature of the default;

(E) The outstanding amounts secured by the assessment lien or mortgage and a per diem amount to account for further accrual of such amounts; and

(F) The method by which the owner of the time-share estate may cure the default; and

(G) The right of the owner of the time-share estate to object to the use of the trustee foreclosure procedure and require the owners' association or mortgagee to proceed thereafter only with a judicial foreclosure action as to that specified default by delivering a written objection to the trustee within 20 days after the delivery date of the notice."

"(d)(1) In order for a trustee to sell an encumbered time-share estate foreclosed under this Code section:

(A) The trustee must have provided the written notice of default as required under paragraph (2) of subsection (c) of this Code section, and a period of at least 30 calendar days must have elapsed after such notice of default is deemed delivered;

(B) The trustee must not have received from the owner of the time-share estate a written objection to the use of the trustee foreclosure procedure prior to the end of the 20 day period provided for in the notice of default and the time-share estate was not redeemed under paragraph (3) of subsection (c) of this Code section Reserved;

(C) The trustee must have delivered a notice of sale meeting the requirements of paragraph (4) of this subsection to the owner of the time-share estate, by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address of the owner of the time-share estate most recently provided to the owners' association or mortgagee no later than 30 days prior to the date of the proposed sale and the notice of sale shall be deemed delivered on the official postmark day or the day on which it is received for delivery by a commercial delivery firm;

(D) The trustee must have delivered a copy of the notice of sale to any junior lien holder of record by registered or certified mail or statutory overnight delivery, return receipt requested, no later than 30 days prior to the date of the proposed sale. The notice of sale shall be deemed delivered on the official postmark day or the day on which it is received for delivery by a commercial delivery firm;

(E) The trustee must have recorded a copy of the notice of sale in the official records of the county in which the time-share estate is located not less than 30 days prior to the date of the proposed sale; and

(F) The trustee must have published a notice in the legal organ for the county in which the time-share estate is located, or if there is no newspaper designated as such, then in the nearest newspaper having the largest general circulation in such county, once a week during the four calendar weeks immediately preceding the calendar week of the date of such sale. The last of such notices shall be published at least seven calendar days prior to the date of the sale."

"(2) Within ten calendar days after a sale, absent the prior filing and service on the trustee of a judicial action to enjoin issuance of the trustee foreclosure deed to the time-share estate, the trustee shall issue a trustee foreclosure deed to the purchaser and deliver the trustee foreclosure deed to the clerk of the superior court for recording in the official records of the county in which the time-share estate is located. The trustee foreclosure deed shall include the name and address of the trustee, the name and address of the purchaser or purchasers, the name and address of the former owner of the time-share estate, and a legal description of the time-share estate. The trustee foreclosure deed shall contain no warranties of title from the trustee. A certificate of compliance confirming that the notice and publication requirements of this Code section were met, that the default was not cured, that the trustee did not timely receive any written objection to the trustee foreclosure procedure from the owner of the time-share estate, and that the time-share estate was not timely redeemed shall be executed by the trustee and attached as an exhibit to the trustee foreclosure deed."

"(4) The proceeds of the trustee foreclosure sale shall be applied first in accordance with the lien priorities set forth in paragraphs (1) through (4) of subsection (a) (a.1) of Code Section 44-3-109, after which any remaining proceeds shall be applied to the payment in full of such unpaid assessments and other charges or mortgage obligations, as applicable, and next to the payment of all expenses actually incurred by the owners' association in connection with the trustee foreclosure proceedings, including attorneys' fees. Any remaining proceeds shall be paid to the prior owner of the time-share estate. The owners' association or mortgagee, as applicable, may bid at the sale and purchase the time-share estate and receive a credit up to the amount of unpaid assessments and other charges or mortgage obligations, as applicable, and all expenses actually incurred by the owners' association or mortgagee, as applicable, in connection with the trustee foreclosure proceedings, including attorney's fees.

(5) A trustee foreclosure sale releases the prior owner of the time-share estate of liability for any and all amounts secured by the assessment a lien or a mortgage, as applicable. The owners' association or mortgagee, as applicable, has no right to any deficiency judgment against the prior owner of the time-share estate after the completion of the trustee foreclosure sale of the time-share estate under this Code section."

SECTION 6.

Said title is further amended by revising subsections (c) and (d) of Code Section 44-3-225, relating to assessment of expenses, exemption from liability, and liability for unpaid assessments relative to property owners' associations, as follows: "(c) Unless otherwise provided in the instrument and except as provided in subsection (d) of this Code section, the grantee in a conveyance of a lot shall be jointly and severally liable with the grantor thereof for all unpaid assessments against the latter up to the time of the conveyance without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantee; provided, however, that if the grantor or grantee shall request a statement from the association as provided in subsection (d) of Code Section 44-3-232, such grantee and his or her successors, successors-in-title, and assigns shall not be liable for nor shall the property owners' association lot conveyed be subject to a lien for any unpaid assessments against such grantor in excess of any amount set forth in the statement.

(d) In the event that the holder of a first priority mortgage or secondary purchase money mortgage of record, provided that neither the grantee nor any successor grantee on the secondary purchase money mortgage is the seller of the lot, or in the event that any other person acquires title to any lot as a result of foreclosure of any such mortgage, such holder or other person and his or her successors, successors-in-title, and assigns shall not be liable for nor shall the lot be subject to any lien for assessments under this Code section or under any instrument chargeable to the lot on account of any period prior to the acquisition of title; provided, however, that the unpaid share of an assessment or assessments shall be deemed to be a common expense collectable from all of the lot owners, including such holder or other person and his or her successors, successors-in-title, and assigns."

SECTION 7.

Said title is further amended by revising Code Section 44-3-232, relating to assessments against lot owners as constituting lien in favor of association, additional charges against lot owners, procedure for foreclosing lien, and obligation to provide statement of amounts due relating to property owners' associations, as follows:

"44-3-232.

(a) All sums lawfully assessed by the association against any lot owner or property owners' association lot, whether for the share of the common expenses pertaining to that lot, fines, or otherwise, and all reasonable charges made to any lot owner or lot for materials furnished or services rendered by the association at the owner's request to or on behalf of the lot owner or lot, shall, from the time the sums became due and payable, be the personal obligation of the lot owner and constitute a lien in favor of the association on the lot prior and superior to all other liens whatsoever except.

(a.1) The superiority of liens on a lot owner shall be in the following order:

(1) Liens for ad valorem taxes on the lot;

(2) The lien of any first priority mortgage covering the lot and the lien of any mortgage recorded prior to the recording of the declaration; or

(3) The lien of any secondary purchase money mortgage covering the lot, provided that neither the grantee nor any successor grantee on the mortgage is the seller of the lot. 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.

(b) To the extent that the instrument provides, the personal obligation of the lot owner and the lien for assessments shall also include:

(1) 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;

(2) 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;

(3) The costs of collection, including court costs, the expenses required for the protection and preservation of the lot, and reasonable attorney's fees actually incurred; and

(4) The fair rental value of the lot from the time of the institution of an action until the sale of the lot at foreclosure or until judgment rendered in the action is otherwise satisfied.

(c) Not less than 30 days after notice is sent by certified mail or statutory overnight delivery, return receipt requested, to the lot owner both at the address of the lot and at any other address or addresses which the lot owner may have designated to the association in writing, the lien may be foreclosed by the association by an action, judgment, and court order for 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 instrument, the association shall have the power to bid on the a lot 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.

(d) Any lot owner, mortgagee of a lot, person having executed a contract for the purchase of a lot, or lender considering the loan of funds to be secured by a lot 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 lot. 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, within five business days from the receipt of such request, to mail or otherwise furnish such statement regarding amounts due and payable at the expiration of such five-day period with respect to the lot involved to such address as may be specified in the written request therefor 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 lot owner. Payment of a fee not exceeding $10.00 may be required as a prerequisite to the issuance of such a statement if the instrument so provides.

(e) Nothing in this Code section shall be construed to prohibit actions maintainable pursuant to Code Section 44-3-223 to recover sums for which subsection (a) of this Code section creates a lien."

SECTION 8.

Said title is further amended in Article 2 of Chapter 5, relating to conveyances, by adding a new Code section to read as follows:

"44-5-49.

(a) As used in this Code section, the term:

(1) 'Real estate investment trust' means an entity in which property is held and managed for the benefit and profit of any person who may become a shareholder.

(2) 'Single-family dwelling' includes town homes.

(b) A deed, security deed, bill of sale to secure debt, or any other conveyance of a single-family dwelling or interest in a single-family dwelling to a real estate investment trust shall be void if such real estate investment trust holds a number of rental single-family dwellings worth a combined total of at least $30 million or at least 12,000 rental units of single-family dwellings in the State of Georgia."

SECTION 9.

Said title is further amended in Article 1 of Chapter 7, relating to landlord and tenant in general, by repealing Code Section 44-7-19, relating to restrictions on rent regulation by local governments, and designating said Code section as reserved.

SECTION 10.

Said title is further amended in Part 1 of Article 7 of Chapter 14, relating to foreclosure in general, by adding a new subsection to Code Section 44-14-162, relating to sales made on foreclosure under power of sale, manner of advertisement and conduct necessary for validity, and filing, to read as follows:

"(c) No sale of real estate under powers contained in mortgages, deeds, or other lien contracts shall be valid against a debtor who is:

(1) Sixty-five years of age or older; or

(2) A ward, as such term is defined in Code Section 29-1-1."

SECTION 11.

Said title is further amended by revising Code Section 44-14-162.1, relating to "debtor" defined, as follows:

"44-14-162.1.

As used in Code Sections 44-14-162 and 44-14-162.2 through 44-14-162.4, the term 'debtor' means the grantor of the mortgage, security deed, or other lien contract. In the event the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor, the term 'debtor' such term shall mean the current owner of the property encumbered by the debt, if the identity of such owner has been made known to and acknowledged by the secured creditor prior to the time the secured creditor is required to give notice pursuant to Code Section 44-14-162.2."

SECTION 12.

(a) This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

(b) Section 8 of this Act shall apply to any conveyance of a single-family dwelling or interest in a single-family dwelling made on or after such date.

(c) Sections 10 and 11 of this Act shall apply to mortgages, deeds, or other lien contracts entered into on or after the effective date of this Act and to any renewals, modifications, or extensions of such agreements entered into on or after such date.

SECTION 13.

All laws and parts of laws in conflict with this Act are repealed.