Georgia statute reference · O.C.G.A. § 44-3-222
§ 44-3-222 - Creation of a Development; Affirmative Election
Section 44-3-222 is the gateway to the entire Property Owners' Association Act. The article's tools - the assessment lien, judicial foreclosure, fining and enforcement authority - are available only to a development that has affirmatively elected to be governed by the article. For any Georgia HOA, the first question is whether its recorded declaration made that election.
Statute text reproduced from the Official Code of Georgia Annotated (O.C.G.A.); editorial summaries by the Common Elements editorial team. Not legal advice; not a substitute for Georgia counsel.
Current as of 2026-05-29.
What boards need to know
Georgia did not make the POAA apply to every HOA by operation of law. Under § 44-3-222, a property owners' development comes into existence on the recordation of a declaration pursuant to the article, or on the amendment of a recorded declaration in accordance with § 44-3-235. The article then conditions its benefits on an explicit step: any declaration or amendment intending to bring or avail a development of the article's benefits and provisions must state an affirmative election to be so governed.
That election is the dividing line. A development whose recorded declaration contains the affirmative election is submitted to the article and draws on its statutory framework. A development whose declaration is silent has not been submitted, and the article's statutory tools are not supplied to it. The practical consequence is significant, because the assessment lien and judicial foreclosure in § 44-3-232 and the fining and enforcement authority in § 44-3-223 are framed as benefits of the article.
Execution requirements differ between an original declaration and an opt-in amendment. Section 44-3-222 requires an original declaration to be executed by or on behalf of all of the owners of the submitted property. An amendment to an existing declaration must be executed in accordance with the terms of the recorded declaration being amended, so the amendment threshold for opting in is set by the existing declaration, not by the statute.
Whether a specific declaration contains a sufficient affirmative election is a text question, decided by reading the recorded instrument and any amendments. The statute states the requirement but does not prescribe exact wording, and confirming the recorded chain of documents is work for Georgia counsel.
Key requirements
How a development is created
O.C.G.A. § 44-3-222- Recordation of a declaration pursuant to the article
- Or amendment of a recorded declaration under § 44-3-235
- Development comes into existence at that point
The affirmative election
O.C.G.A. § 44-3-222- Any declaration or amendment claiming the article's benefits must state it
- Election is to be governed by the Property Owners' Association Act
- No election means the article does not apply
Execution
O.C.G.A. § 44-3-222- Original declaration executed by or on behalf of all owners
- Amendment executed per the terms of the declaration being amended
- Opt-in amendment threshold set by the existing declaration
Opting in after recording
O.C.G.A. §§ 44-3-222, 44-3-235- A conforming amendment under § 44-3-235 can submit a development
- Amendment must conform the instrument to the article
- Execution follows the existing declaration's amendment terms
Key statutory text
Reproduced verbatim from the Official Code of Georgia Annotated. Confirm the current text at the Georgia General Assembly O.C.G.A. portal.
O.C.G.A. § 44-3-222 - creation and election
A property owners’ development shall come into existence upon either the recordation of the declaration pursuant to this article or the amendment of a recorded declaration in accordance with Code Section 44-3-235. Any declaration or amendment intending to bring or avail a development of the benefits and provisions of this article shall state an affirmative election to be so governed. Any original declaration shall be duly executed by or on behalf of all of the owners of the submitted property. Any such amendment to an existing declaration shall be executed in accordance with the terms of the recorded declaration being amended thereby.
Common questions about § 44-3-222
- What does O.C.G.A. § 44-3-222 require for the POAA to apply?
- Section 44-3-222 provides that a property owners' development comes into existence upon either the recordation of a declaration pursuant to the article or the amendment of a recorded declaration in accordance with § 44-3-235. It then requires that any declaration or amendment intending to bring or avail a development of the benefits and provisions of the article state an affirmative election to be so governed. Without that affirmative election, the article does not apply.
- What is the affirmative election under § 44-3-222?
- The statute requires that any declaration or amendment intending to claim the article's benefits state an affirmative election to be governed by the Property Owners' Association Act. The section sets out the requirement but does not prescribe exact wording. Whether a particular recorded declaration contains a sufficient affirmative election is a question for the declaration's text and for Georgia counsel reviewing the recorded chain of documents.
- Who must execute the declaration under § 44-3-222?
- Section 44-3-222 provides that any original declaration shall be duly executed by or on behalf of all of the owners of the submitted property, and that any amendment to an existing declaration shall be executed in accordance with the terms of the recorded declaration being amended. The execution requirement for an opt-in amendment is therefore set by the existing declaration's own amendment provisions.
- What happens if a Georgia declaration does not elect the POAA?
- Section 44-3-222 conditions the article's benefits on an affirmative election. A development whose declaration contains no such election has not been submitted to the article, so the POAA's statutory tools - including the assessment lien and judicial foreclosure under § 44-3-232 and the fining and enforcement authority under § 44-3-223 - are not supplied by the article to that development. Its rights instead depend on its recorded covenants and on Georgia law generally.
- Can a Georgia HOA opt into the POAA after recording its declaration?
- Section 44-3-222 contemplates a development coming into existence on the amendment of a recorded declaration in accordance with § 44-3-235. Section 44-3-235(a) provides that the article applies to a mandatory-membership association whose declaration is amended in accordance with § 44-3-222 to submit the association to the article, provided the amendment conforms the instrument to the article. The amendment must be executed in accordance with the existing declaration's terms.
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This is not legal advice. Consult Georgia community-association counsel for your specific situation.