Since 2016, HOAs in the core metro counties of Clayton, Cobb, DeKalb, Fulton and Gwinnett have filed at least 1,100 foreclosure lawsuits, according to a records search on courthousenews.com, which tracks court cases. Industry advocates such as Tom Skiba, executive director of HOA trade group Community Associations Institute (CAI), say the power to foreclose is necessary to protect neighborhoods and dues-paying residents.
“If one person or a percentage of owners are delinquent, why should all the other owners who pay their bills on time be penalized for that,” Skiba said.
Alexa McDonald feared she would lose her home during a dispute with her HOA as she struggled to make ends meet during the pandemic. In 2021, she fell $500 behind on her HOA dues in her Duluth neighborhood.
State law placed few limits on the legal fees that the HOA could add to McDonald’s debt. Over the next few months, the HOA board threatened the single mother of two with foreclosure. Over the next year, the HOA charged more than $4,000 in legal fees and court costs to her.
“They’re telling me I owe the HOA, but all the money is going to the attorneys,” McDonald said.
The HOA’s law firm, Lazega & Johanson, declined to comment on the case, but days after the AJC contacted the firm, it refunded $1,400 to McDonald, telling her it had miscalculated what she owed, according to records. An official who oversees management of McDonald’s HOA said “every effort was made” to work with her.
In other states, elected officials from both parties have taken steps to curb some of the power held by HOAs. In June, Colorado adopted a new law limiting the impact of attorney’s fees and prohibiting those in the HOA from profiting off foreclosures the HOA initiated. Similar legislation to curb HOA powers have been considered or adopted in Arizona, Florida and South Carolina.
“I saw that HOAs have unlimited power in Colorado, taking advantage of homeowners who were paying their mortgages for years and foreclosed because of covenant violations,” said Colorado state representative Naquetta Ricks, a co-sponsor of the bill.
Georgia State Sen. Donzella James, D-Atlanta, has heard similar complaints from her constituents about abuses by their HOAs. While her HOA reform efforts over the years have so far been unsuccessful, James is leading a renewed effort to tackle the issue in the upcoming legislative session in January.
“I’m a thorn in their side,” James said. “I don’t give up.”
HOAs are nonprofit associations recognized by state law, which grants them enforcement authority over a neighborhood’s bylaws and property standards. The law allows them to manage community funds that are earmarked for common expenses such as roof repair, pool maintenance and common grounds upkeep.
Homebuyers typically become members of an HOA when they purchase property in a neighborhood, and are required to adhere to its bylaws and pay dues that can run from a few hundred to a few thousand dollars each year.
When homeowners are fined for violating the covenants or missing dues payments, state law allows HOAs to pursue debts by various means, including foreclosure, wage garnishment or cutting off water access.
Skiba’s group, based outside Washington, recommends that foreclosures be a last resort.
“There’s an enormous number of things that should be done and undertaken before you get to foreclosure, whether that’s payment plans or whether that’s forgoing the interest or whatever it might be,” Skiba said. “The last thing you want to do is foreclose.”
Still, there’s nothing in the law that requires HOAs to take these additional steps to collect debt before pursuing foreclosure, and HOAs don’t always seek these other remedies. Skiba said he advised CAI’s members to not file foreclosure actions during the federal government’s foreclosure moratorium, which ran from March 2020 to July 2021.
Yet several Georgia HOAs went ahead with foreclosures during the moratorium anyways. An AJC analysis of court records in the five core metro counties found that HOAs filed at least 94 foreclosure lawsuits during the moratorium.
Similarly, while many HOAs see foreclosures as a powerful tool not to be used lightly, many do not, homeowners and critics say.
Georgia law allows HOAs to begin the foreclosure process on a resident’s home when association fines and assessments reach $2,000. The debt can be accrued various ways, including missing dues payments to the HOA, legal fees or, as was the case with a disabled Gwinnett County veteran, trash can placement that ran afoul of the neighborhood’s bylaws.
Corro’ll Driskell, a former HOA board member and co-founder of the the South Fulton HOA Alliance, says that missing one quarterly HOA payment of less than $300 can push a homeowner beyond the legal limit for foreclosure. That’s because the attorney fees to collect that amount will likely exceed the $2,000 threshold, meaning any missed payment can lead to a legal foreclosure by an HOA, he said.
This practice can push residents into foreclosure when they say they otherwise would have been able to afford to pay the debt.
“It has become a weapon against homeowners,” Driskell said.
Saddled with thousands of dollars in attorney’s fees, Patricia Quigley struggled to keep her Cherokee County home of 17 years after missing a HOA dues payment of roughly $700 in 2010.
The HOA filed a lien on her home and turned her case over to its law firm, Lazega & Johanson, which charged her attorney’s fees that helped push the debt to $2,700 — putting her home at risk of foreclosure.
Quigley paid the original lien, records show. But the debt continued to grow over the next several years. She struggled to catch up and paid her HOA and Lazega lawyers a total of $9,000, she said, but that wasn’t enough to prevent foreclosure in 2017.
“They just showed up and threw all my stuff onto the lawn,” she said.
Lazega did not respond to a request for comment.
This was all perfectly legal.
Georgia law has no prohibition for HOA board members or others linked to the association’s actions from profiting off association-initiated foreclosures, a practice that critics say is a clear conflict of interest.
In 2017, 68-year-old Selma Calaman fought the Columbia Square HOA in court over alleged missed dues payment. In researching her lawsuit, she noticed that the association’s treasurer at the time, Jerry Sewell, was purchasing condos throughout the neighborhood.
Sewell, a real estate investor and property manager, had joined the board a few years prior when he purchased a condo in the neighborhood — although he never lived in the community. Between 2014 and 2017, Sewell purchased at least 16 condos in Columbia Square that were in the foreclosure process. Many of Sewell’s purchases were properties that had been foreclosed on due to liens filed by the HOA board, which he served on at the time, court records and budget documents show.
“I sat there and watched him take properties over the years,” said Calaman, a retiree who has owned her townhome since 1999.
Credit: Natrice Miller / Natrice.Miller@ajc.com
Credit: Natrice Miller / Natrice.Miller@ajc.com
By 2019, Sewell had purchased 25 properties for $261,000 — a nearly third of the condos in the neighborhood — which he then sold for $1.2 million, according to property records.
It is unclear from the public record how much Sewell personally made off of the sale. He told the AJC that renovating the condos to ready them for sale was costly.
“We spent so much money that when we sold out we sold out for little to no profit,” Sewell told the AJC.
He said that the board filed the foreclosures to help pull Columbia Square out of imminent bankruptcy as few were paying their dues, adding that many of these foreclosed units were occupied by “vagrants” and “drug dealers” which were bringing property values down throughout the neighborhood.
This isn’t happening just in Georgia
As Georgia lawmakers ponder the right balance of power between HOAs and homeowners, other states have taken steps to curb HOA powers.
Deborah Goonan, an HOA expert who tracks disputes throughout the United States and documents them on her blog, notes that several states including Colorado, Arizona, Florida, South Carolina and Missouri have recently considered or passed legislation addressing HOA power.
“This isn’t happening just in Georgia. It’s happening all over the United States,” Goonan said
In June, Colorado adopted a bill that codified greater protections for HOA residents. The new law prohibits foreclosures based solely on debts accrued due to the cost of collection, such as attorney’s fees, as well as prohibiting HOA board members and their families from purchasing homes in foreclosure, among other changes.
Colorado state representative Ricks, a co-sponsor of the bill, said the practice disproportionately affected homeowners of color. It is akin, she said, to modern-day redlining. She said the effort was an uphill battle and faced tough resistance from HOA interests such as CAI — whose lobbyists have been key players in passing HOA friendly laws in Georgia and across the United States.
Some provisions, such as a cap on attorney’s fees, had to be jettisoned due to stiff opposition.
“CAI is very, very prevalent and are the big kahunas when it comes to protecting HOAs and their rights,” Ricks said, noting that the organization brought six lawyers to one of the bill’s hearings.
Sen. James said she has similarly run up against powerful lobbying forces at the Gold Dome. Over the past few years, she has sponsored several bills which try to limit HOA powers — with little success.
This past year, James was able form a study committee in the Georgia Senate to explore potential HOA reform legislation for the upcoming session. How that can be translated to a law that has a chance to pass will be the committee’s purpose, she said.
“I intend to continue to work until the law is fair and equitable,” James said, adding that “We need someone on the side of fairness.”