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 transfer of power shall 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 upon request.

There is a rift developing among the property owners of Tolomato and the governing HOA board and newly appointed ARB. Rather than focusing on how Tolomato arrived at this unfortunate juncture, concerned Tolomato owners have organized an effort to genuinely provide reasonable and productive suggestions that can ultimately harmonize the Tolomato community for the common good and restore a bright future of our beautiful community.

This genuine effort should focus on open communications. Sometimes open communications opens vulnerability and work on all sides will be required in order to come together for the common good of the Tolomato community. Below are suggested topics and action items for which we believe need solutions. 

Using informal "Community Meetings" where residents come together to propose ideas, discuss them and plan in order to find solutions may be the best format. The Board should know that there is already a structure in place for informal community meetings where residents have come to together to propose ideas, discuss them and find solutions for pressing issues. The format does not follow ridged rules. Progress that is made in these sessions can be acted upon, or where appropriate could be brought to a Board meeting.

We encourage the current HOA Board and future Boards to not only accept these member efforts but encourage community participation in work sessions and board meetings. Ideas should be exchanged, considered and surveys can be done on how best to administer and plan for the future. These meetings should produce long term benefits to everyone in the community as we have a respectful dialog to work through issues which impact us all. 

As a necessary and prudent business practice, the current Board and all future Boards should retain an independent CPA firm to conduct regular financial and operational audits. This could be done once every three years with an independent annual review by the CPA firm currently retained to prepare and file HOA annual tax returns.

The audit would:
1. Determine compliance with GA Law, the Georgia Properties Association Act (ACT), the Covenants and the Articles of Incorporation, and the By-laws;
2. Conduct a comprehensive financial audit with emphasis on dues revenues and collection integrity.
3. Research and develop the basis for capital funding of major projects and facility expansions and maintenance.
4. Evaluate and re-establish internal controls; and, identify opportunities to improve efficiency and effectiveness.

The end result would be a report that identifies corrective actions and makes recommendations that can be used to develop a policy and procedures manual.

The audit also needs to identify ways to improve the operational effectiveness and community outreach and communications within the TIPOA. Simply put, an operational audit could be used to develop a set of policies and procedures that would inspire confidence in our governance and promote cohesiveness in our community. 

Committees need the ability to self-establish operational protocols and procedures for their respective committee. Existing charters for each committee should be reviewed and revised as necessary. All charters and operational methods and procedures should be published.

The elected TIPOA Boards of Tolomato have historically taken a custodial approach, as outlined by the by-laws, to managing the community. While this has been adequate in the past, it is becoming more important for HOA leadership of the community to focus on the future. As Tolomato continues to grow, a Master Plan for the future development and associated capital improvements and reserve accounts for the community is becoming critical.

There are a number of compelling reasons to have a Master Plan:

1. Provide direction and focus on objectives and results; and
2. Anticipate issues and work to address them; and
3. Establish a basis for teamwork and the use of committees, thereby broadening support on issues facing all of us; and,
4. Provides guidelines for decision making.

Tolomato's Master Plan should be both physical and procedural. The physical plan might address, but not be limited to, the following issues:
1. Infrastructure such as water, sewer, power, health of community wells and perhaps wider roads in some places.
2. Amenities such as expansion and/or cleanup of the storage yard; expanding the club house to have a meeting/social room; expanding the pool and tennis/pickle ball courts; building a playground for kids and grandkids; and a maintenance plan for existing amenities (i.e., pool, amenity center, Savannah Square, Highland Square, community dock, historical ruins, mounds and other common areas).
3. A plan for the health and beauty of the community pond and its resident wildlife.

Procedural aspects of the master plan might include, but not be limited to:
1. Periodic audit of the communities' books.
2. Management company. Criteria and thresholds triggering the hiring of same.
3. Capital accounts and reserve study. The health of the communities' investments and mechanics for funding capital accounts for specific events.
4. Updating the Tolomato governing documents to be more community focused rather than developer focused.

Our community already has a master plan for landscaping and historical preservation.