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Can a HOA change the annual fee for dues without bylaws?

Jefferson, GA |

My home was the first to be sold in the subdivision and our Exhibit B at closing showed $50 as annual dues. When the other homes (24) were sold, the amount was shown as $100. At the first HOA meeting when dues were discussed stating $100, I stated that my paperwork showed $50. The officers said that regardless dues are $100. I paid $100 until at our HOA in March, it was stated that dues could not be changed from what was stated on Exhibit B because we have no bylaws. I sent my check for $50 in March and it was not returned until Oct. stating I owed $100 because a precedence had been set by paying $100 in previous years. They are stating that a lien will be put on my property if I do not pay the $100. Can they legally put a lien on my property without bylaws?

Also, the only covenants are from the builder. These have not been changed and have no mention of annual dues and who can change them. All the convenants cover is what is premissable on the lot.

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Attorney answers 1


This question is more complex than just whether the association has adopted by-laws. Your Exhibit B, I assume, is probably to the declarations or restrictive covenants. What do the restrictive covenants say about the HOA and their right to charge dues (and their right to raise them). It would be unusual for covenants NOT to grant the power to the HOA board to raise dues to deal with increasing costs. The issue with the by-laws is that the HOA board may be required to have them to act lawfully, i.e. they may not be able to "act" to determine, pursuant to the power granted by the covenants, that they need to raise the dues. I am not as concerned about the "precedence" but the argument they are really making is "waiver" i.e. there is a defect in the board's exercise of power and you waived your rights to assert the defect. Waiver is a legal argument and there would have to be more analysis of this before you could conclude there was waiver. Whether they can put a lien on your property LEGALLY or not depends again on the covenants, but assume that they will and that the $100 is far cheaper than any action to clear the lien. Assuming your covenants align with what I have described, I probably would pay the $100 "under protest" with a written letter stating that for purposes of resolving a disputed matter you are paying this $100 under protest but that you are not waiving the argument that the Board does not have the right to act without lawfully adopting by-laws.

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