HOA and Condominium Association Liability in Georgia

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An injury in a condominium’s stairwell, pool area, parking lot, or walkway puts the association’s duties at the center of the claim. Georgia’s Condominium Act assigns upkeep of the common elements to the association by default, the premises statute reaches the association’s common areas, and a 2025 Court of Appeals decision held that a declaration’s “no security” clause could not be used against a tenant who never received it. The maintenance and insurance statutes discussed below are written for condominium associations, while the premises statute and the negligent security article turn on who owns, occupies, maintains, or manages the property, which can bring a homeowners’ association within them as well.

Who Maintains What

Under OCGA 44-3-105, “[e]xcept to the extent otherwise provided by the condominium instruments, all powers and responsibilities with regard to maintenance, repair, renovation, restoration, and replacement shall pertain to the association in the case of the common elements other than limited common elements and to the individual unit owner in the case of any unit and the limited common elements, if any, appurtenant thereto.” The default places upkeep of the shared stairs, halls, and grounds with the association and upkeep of the unit, and of any limited common element attached to it, with the owner, and the condominium instruments can move the line.

The Association’s Duty in the Common Areas

An owner or occupier of land owes invitees ordinary care in keeping the premises and approaches safe (OCGA 51-3-1), and the Court of Appeals has applied that duty to a condominium association. In Tuscany Condominium Association, Inc. v. C.P., No. A25A0145 (Ga. Ct. App. July 2, 2025), it wrote that “a condominium association generally ‘ha[s] a duty to exercise ordinary care to protect [invitees] from unreasonable risks of which it ha[s] superior knowledge,'” quoting Sacker v. Perry Realty Services, Inc., 217 Ga. App. 300 (1995), and it held that the association “has a duty, under OCGA § 51-3-1, to exercise ordinary care in preventing unreasonable risks related to the physical maintenance of the common elements.”

“No Security” Clauses: Owners and Tenants

The members of a condominium association can take the duty to provide security off the association. In Bradford Square Condominium Association v. Miller, 258 Ga. App. 240 (2002), as Tuscany describes it, the Court of Appeals held that members may “elect to relieve the association of the duty to provide security and opt for such obligation to remain with each individual unit owner,” and that such an agreement was enforceable and not against public policy.

Tuscany drew the line at tenants. On June 7, 2020, an assailant came in through an unlocked pedestrian gate and attacked a tenant in a vacant unit, and the association relied on the “no security” provision in its declaration. The court treated the provision as an exculpatory clause, which, quoting an earlier decision, must be “explicit, prominent, clear and unambiguous” because such an agreement “amounts to a waiver of substantial rights.” The tenant’s lease did not mention the provision, and the tenant was never given the declaration, so the provision was “not enforceable as to C. P.” The court added that the tenant’s claims rested on the tenant’s own status as an invitee, not on any right of the unit owner, and it affirmed the denial of summary judgment.

Crime in a Common Area After April 21, 2025

Tuscany arose from a 2020 incident. For causes of action arising on or after April 21, 2025, Georgia’s negligent security article is the exclusive remedy for negligent security against an owner or occupier, a term that reaches any person that maintains or manages real property (OCGA 51-3-50(2); OCGA 51-3-53(a); OCGA 51-3-57). The article excludes injuries on premises used as a single-family residence, conditions an invitee’s claim on, among other things, the third person’s exploitation of a specific physical condition known to the owner or occupier, and requires the trier of fact to apportion fault to a third person whose wrongful conduct was a cause of the injury (OCGA 51-3-54(6); OCGA 51-3-51(3); OCGA 51-3-56(1)). Damages apportioned among those at fault are not a joint liability (OCGA 51-12-33(b)).

For example, imagine a factfinder that sets a resident’s damages at $300,000 and assigns 10 percent of the fault to the resident, 30 percent to the association, and 60 percent to an intruder who is never found. The resident’s own share reduces the recovery to $270,000, the association’s share is $90,000, and the intruder’s $180,000 is not collected from the association.

Who Insures the Claim

A condominium association must obtain “[a] commercial general liability insurance policy or policies affording coverage for bodily injury and property damage in an amount not less than $1 million for a single occurrence and $2 million aggregate,” covering the association, its board and officers, its agents and employees, and “all unit owners and other persons entitled to occupy any unit or other portion of the condominium for occurrences commonly insured against arising out of or in connection with the use, ownership, or maintenance of the common elements or other portion of the condominium which the association has the responsibility to maintain” (OCGA 44-3-107(a)(2)).

Frequently Asked Questions

Does recording the declaration bind a tenant to its “no security” clause?
Not by itself. Recording is constructive notice to purchasers, but in Tuscany the court declined “to hold that such notice, alone, is sufficient to enforce an exculpatory clause contained within that document against individuals who are not owners of the subject property.”

Can an association require leases to include the clause?
Tuscany noted that the association, which had to approve the form of each lease, “could choose to approve only leases that clearly and unambiguously incorporate the ‘no security’ provision,” while citing a physical-precedent decision holding an exculpatory clause in an apartment lease invalid under OCGA 13-8-2(b) because it waived liability even for the owner’s sole negligence.

Who pays for damage done while reaching a unit or the common elements?
The association or unit owner that causes damage to the common elements, or to a unit through which access is taken, “shall be liable for the prompt repair thereof,” whether it acts itself or through agents, employees, or others (OCGA 44-3-105).

Can litigation expenses under OCGA 13-6-11 be sought in a tort case against an association?
Yes. In Tuscany, the court rejected the association’s argument that 2021 amendments to the Code limited those awards to contract cases, holding that the amendments did not “upend our longstanding precedent regarding the availability of OCGA § 13-6-11 awards in tort cases.”

Can the association carry more coverage than the statute requires?
Yes. The condominium instruments can call for additional types and amounts of insurance, and the board of directors can authorize more on its own (OCGA 44-3-107(a)(3), (b)).

  • OCGA 44-3-105; OCGA 44-3-107(a)(2), (3), (b)
  • OCGA 51-3-1; Tuscany Condominium Association, Inc. v. C.P., No. A25A0145 (Ga. Ct. App. July 2, 2025); Sacker v. Perry Realty Services, Inc., 217 Ga. App. 300 (1995) and Bradford Square Condominium Association v. Miller, 258 Ga. App. 240 (2002) (both as described in Tuscany)
  • OCGA 51-3-50(2); OCGA 51-3-51(3); OCGA 51-3-53(a); OCGA 51-3-54(6); OCGA 51-3-56(1); OCGA 51-3-57 (history note); OCGA 51-12-33(b)
  • OCGA 13-6-11; OCGA 13-8-2(b) (as discussed in Tuscany)

Disclaimer

This article provides general information about association liability under Georgia law. It is not legal advice and does not create an attorney-client relationship. Liability depends on the association’s governing documents, who maintained the space, what the association knew, and the specific facts. A person injured in a condominium or a planned community should consult a licensed Georgia attorney promptly about the particular situation.

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