A group of Alpharetta lakefront homeowners who were ordered by the city to fund more than $1.9 million in repairs to the lake and dam again came up short in their effort to pass the expense along to more than 500 members of their homeowners' association. 

Upholding a trial judge, the Georgia Court of Appeals said 16 lakefront homeowners in the upscale Glen Abbey subdivision, along with the HOA, were all obliged to equally divide the cost for the repairs and that expecting the rest of the 535 members to shoulder the burden would be "patently unfair."

The appellate panel agreed that the lakefront owners' efforts to amend the subdivison's declaration of covenants and "cancel" their obligations to pay for the lake's maintenance and repair was done without approval of the HOA.

As detailed in the opinion and other filings, Glen Abbey's HOA was established and its covenants recorded. Alpharetta annexed the subdivision in 2005. 

The dispute began in 2015 when Alpharetta notified the HOA that it would need to make repairs to the lake and dam estimated at $1,979,554.

In 2018, the HOA informed the lake lot owners that, under the covenants and restrictions governing the subdivision, they were responsible for the cost.

Under the terms of that declaration, the HOA has "no liability or duty whatsoever with respect to the Lake" except for the single parcel it owned as part of a common area for members.  

A separate agreement, the Lake Covenant, specified that the lakefront property owners "shall "be responsible for and shall perform all maintenance and repair of the Lake or the Dam" and "for an equal share of all costs incurred in connection with the maintenance and repair of the Lake."

The Lake Covenant allowed it to be amended by a vote of "a majority of the owners of lake lots and the Association."  

When the HOA demanded they cover the cost, 12 of the 16 lakefront property owners voted to amend the Lake Covenant, declaring that the association was responsible for the lake's maintenance and repair and "shall have the right … to assess the Association's full membership for the costs" of that upkeep.

The lakefront owners also voted to invalidate the Lake Declaration.  

The HOA deemed the amendment invalid and demanded the lakefront owners pay their share of the expense.

In 2019, the lakefront owners filed suit in Fulton County Superior Court seeking declaratory relief on a number of claims, including the meaning of the Lake Declaration, the validity of their amendment and that of the HOA's disapproval. 

The HOA filed counterclaims asking the court to rule the amendment illegal and order that the plaintiffs pay their unpaid assessments. 

Last October Judge Thomas Cox Jr. agreed with the HOA.

"The fundamental dispute between the parties is whether the Lake Amendment and/or the Lake Cancellation were properly adopted by the plaintiffs without the approval of the Defendant Association and whether the Lake Declaration, as originally recorded,is still in full force and effect," Cox wrote.

The plaintiffs had argued that the Lake Declarations language gave them the power to amend or cancel the declaration by a majority vote among themselves, but Cox said that ignored the language of both the Glen Abbey and Lake declarations making any such amendment contingent on a vote by the entire HOA membership.

The amendment "is clearly non-uniform with regard to maintenance responsibility and clearly shifts that burden from all 17 owners to just the Association," wrote Cox. "In the same way, by purporting to change the lake expense allocation from being equally shared by all 17 property owners (16 owners plus the Association), to just the Association, the Amendment is non-uniform and also unfairly shifts the assessment burdens."

Appeals Court Judge Verda Colvin wrote the opinion upholding Cox's order, with the concurrence of Judges Clyde Reese and Todd Markle. 

Taken together, both declarations make clear that the lake lot owners and the HOA were to be responsible for the lake's maintenance and repair, she wrote, and share in those costs and assessments equally. 

"Given the plain meaning of these provisions, the trial court did not err when it concluded that the lake lot owners and the Association are each responsible for 1/17 share of the cost of the repairs," Colvin wrote. 

The Lake Amendment "purports to shift liability for the maintenance and repair of the lake to all the Glen Abbey homeowners, even though … these homeowners have no independent right of access to the lake," she said. 

It "would be patently unfair to require a purchaser of a non-lake lot to read the Lake Declaration as notice that the purchaser might face liability for assessments to the Lake in the future," Covin said.

The lawyer for the HOA, NowackHoward partner Jason LoMonaco, said he anticipated further appellate efforts by the plaintiffs.

"After that winds up and the case goes back to the trial court, then the only issues remaining will be how the Court will deal with the invalidity of the attempted amendment and termination and collecting the assessments owed (which do not reflect the full costs of the work needed on the lake and dam since that will be handled over a period of years)," said LoMonaco via email. 

The plaintiffs' lawyer, Lewis Brisbois Bisgaard & Smith partner Martin Shelton said his clients were reviewing their legal options and that, "given the basis of the decision, further appellate litigation has not been ruled out."