The Combine Lots Amendment…Is It Necessary…or Just a Waste of Our Dues?
In May 2023, a new Tolomato owner engaged at his own expense, an attorney with over 30+ years of expertise in Georgia Homeowner, Property and Commercial Property Association law, to specifically review the Tolomato Declaration of Covenants and provide an expert opinion in regards to a Tolomato property owner's right to combine lots for the purpose of building a home across owned adjacent lot lines.
The attorney's legal opinion concluded that the Tolomato covenants, as written, affirms and does NOT deny a Tolomato property owner's right to combine their lots for the purposes of constructing a home across property lines. The opinion was factually detailed and specifically outlined the legal process that the individual property owner should follow with McIntosh County and the Tolomato Architectural Review Board (ARB).
It further concluded and made clear that the combination of lots by an owner does NOT impact the inherit rights of the Tolomato Island Property Owners Association (TIPOA) relative to dues assessment or voting rights. These inherit rights of the Association remain unchanged and governed by the Tolomato Declaration of Covenants. It also made clear that only if the Association wanted the power to subdivide lots for the purposes of the Declaration, i.e. for dues assessment modifications and/or voting rights modifications, an "amendment" approved by 2/3rds vote would be required.
The Tolomato property owner graciously provided this written legal opinion, at no cost, to the TIPOA Board and its legal counsel (George Nowack) in May 2023, long before the Board's recent actions to solicit votes on a formal amendment that in all reality, is questionably necessary at best. There was no response from the TIPOA Board, nor from its attorney George Nowack.
Based on the attorney's findings, it is the owner's opinion that the proposed amendment overreaches further to actually transfer power from the ARB to any current elected Board by removing the ABR's current power to be flexible with property line setbacks when considering optimal home placement on a lot. In the current Tolomato covenants, the Board was never to have such unilateral power over the ARB. This cloaked transfer of power would be accomplished by the proposed amendment (if adopted by 2/3rds vote) and will set in the "stone of the covenants" very specific property setback limitations which can never be adjusted by the ARB for individual lot circumstances and/or for the preservation of trees, marshland, or historic places.
Furthermore, the amendment takes away the power and inherit right of an individual property owner to recombine their lots and further requires the owner to actually seek the TIPOA Board's approval to recombine their lots. In the original covenants, the Board was never to have such power over individual property owner's rights.
And finally, the amendment could potentially be weaponized in the future against property owners who have a structure on one lot and now desires to use or build on their adjoining empty lot. The amendment could potentially be used to deny a property owner this ability.
Is the amendment legally really necessary? In all likelihood, No.
Is the Board seeking overreaching power that the original covenants never intended to grant? Yes based upon the actual verbiage in the proposed amendment.
Are the Association funds, which are "our" funds, being wastefully and irresponsibly used by the Board in an effort to solve a Board manufactured problem which intentionally and covertly acquires additional Board power? Again, yes, it would certainly appear so.
A copy of the legal opinion from the highly qualified expert attorney in Georgia POA law is available below.