The escape hatch, and why most communities do not have it

The statute contains its own opt-out, in four words: “Unless specified to the contrary in any recorded instrument or declaration.”

A Georgia declaration that requires a membership vote before common property may be conveyed to the Department of Transportation specifically, or that restricts the board's authority to convey common property at all, displaces the default.

The difficulty is that most Georgia declarations do not address this. They were drafted to govern assessments, architectural control and use restrictions. Where they touch conveyance of common property, they typically do so in general terms — and whether a general supermajority requirement for “disposition of common area” is enough to “specif[y] to the contrary” under § 32-3-2.1 is untested.

There is no Georgia case construing this section. It is fifteen months old.

Why this matters more than it sounds

Three reasons it is serious for a Georgia board, not road-building trivia.

Common property is often the community's most valuable asset. An entrance parcel with monument signage, a detention pond, a strip of private street — these are not marginal. Losing frontage can change access, sightlines and the character of a subdivision permanently.

The compensation is allocated to owners, not retained by the association. Subsection (c) directs consideration to each owner according to their ownership interest under the declaration. That is fair in principle, and it means the association may end up with less common property and no corresponding fund to deal with the consequences — the relocated entrance, the reconfigured drainage, the replacement landscaping.

The board is negotiating alone. The Department deals with “officers of the authorized board.” Volunteer directors, typically without condemnation counsel, are negotiating against a state agency that does this professionally.

The stormwater problem this creates

Worth spelling out, because it is where the real cost usually lands.

Georgia associations commonly own and must maintain detention and retention ponds the county has never adopted. A road widening that takes part of a buffer, alters grade or changes the discharge point does not extinguish that maintenance obligation — it complicates it.

And a Georgia association is not without recourse against upstream changes: in Rainbow Real Investors, LP v. Red Oak Village Condominium Association, Inc., No. A25A0811 (Ga. Ct. App. 4 Aug. 2025), an Athens-Clarke County condominium association recovered $98,650 from an uphill neighbour whose runoff was “concentrated, increased by artificial means, and diverted onto the common areas.”² Against a state department exercising eminent domain, that route is not available in the same way.

What a Georgia board can do now

• Read the declaration's conveyance clause. Does it require a membership vote to dispose of common property? Does it name condemnation? If not, § 32-3-2.1's default applies to your community.
• Consider amending it. This is the rare case where a declaration amendment has a clear, identifiable purpose. Note that from 1 January 2027, an association submitting to the POA Act under the new 80% route has its amendment threshold capped at 80% by the amended § 44-3-226(b).
• Watch the Georgia DOT project pipeline for your corridor. Pre-acquisition is a phase, not an event, and the statute authorises the Department to conduct “all phases” with board officers. By the time owners hear about it, the negotiation may be advanced.
• Tell the membership. Nothing in § 32-3-2.1 requires the board to notify owners at all. A volunteer board that conveyed common property in silence would be the first to test what a Georgia court thinks about such a fiduciary.
• Get counsel who does condemnation. Association counsel is not necessarily eminent-domain counsel.

How the new association statute intersects

Two provisions of Chapter 43-17A, effective 1 January 2027, bear on this.³

Section 43-17A-7(9) gives owners the right to expect a director to act “in good faith and with the degree of care an ordinary, prudent person in a like position would exercise under similar circumstances” — the standard against which a conveyance decision would be measured. Section 43-17A-7(5) gives owners a right of “[a]ccess to common areas, amenities, and common elements subject to the terms contained in the governing documents,” which is a right in the very asset being conveyed.

And § 43-17A-5 gives any person residing in the development 180 days to complain to the Secretary of State about the association's “action or inaction.” Conveying common property without telling anyone is an action.

What to watch next

The first dispute. Fifteen months in, we could find no reported Georgia case, no Attorney General opinion and no community-association guidance on § 32-3-2.1. Given Georgia's transport programme and the number of associations sitting on corridors due for widening, that will not last.