Appley Mews Covenants

3/10/84 DECLARATION OF CONDOMINIUM

FOR

APPLEBY MEWS CONDOMINIUM

TABLE OF CONTENTS

I. DEFINITIONS 2 II. SUBMITTED PROPERTY

2.1 Name .

2.2 Submitted Property 4 2.3 Additional Improvements

III. EXPANSION OF CONDOMINIUM

3.1 Reservation of Option

3.2 Exercise of Option. .

3.3 Expiration of Option

3.4 Improvements on Additional Property

3.5 Reallocations

3.6 Obligation to Expand.

IV. PROPERTY RIGHTS

4.1 Units

4.2 Boundaries of Units

4.3 Common Elements

4.4 Easements

4.5 Encroachments

4.6 Rights of Declarant

4.7 Rights of the Association

4.8 Rights of the Unit Owners

4.9 Maintenance and Repair.

4.10 Utilities

4.11 Support.

V. ADMINISTRATION

5.1 General Provisions. 10 5.2 Meetings.

5.3 Enforcement of Director's Duties • 0I 5.4 Control by Declarant . .

5.5 Rules and Regulations

5.6 Management Hired; Other Contracts

5.7 Information Available. . ...

VI. ASSESSMENTS

6.1 Creation of Personal Liability

and Priority of Lien..

6.2 Effect of Transfer of Unit

6.3 General Assessments .

6.4 Special Assessments

6.5 Nonpayment of Assessment

VII. INSURANCE

7.1 Purchase of Insurance 18 7.2 Types of Insurance . 18 7.3 Unit Owners' Policies 19 VIII. MAINTENANCE AND REPAIR

B.1 Units 19 8.2 Common Elements 20 8.3 Liability of the Association 20 8.4 General Provisions. 20 IX. DAMAGE OR DESTRUCTION

9.1 Determination to Repair or Rebuild . 21 9.2 Repair and Rebuilding 22 9.3 Common Elements and Units Not Rebuiit 23 9.4 Rights of Mortgagees 24 RESTRICTIONS

10.1 Residential Use .. 24 10.2 Exterior Appearances 25 10.3 Leasing . . 25 10.4 Signs . : 25 10.5 Use of Common Elements 26 10.6 Offensive or Unlawful Activities

10.7 Exterior Lighting; Antennas 26 10.8 Trash • 26 10.9 Parking Plan 26 10.10 Insurance . 26 10.1l Rules and Regulations 27

27 XI. GENERAL PROVISIONS

11.1 Amendment. 28 11.2 Eminent Domain 28 11.3 Termination and Withdrawal of Submitted

Property 29 11.4 Duration of Covenants

11.5 Terminology • •

11.6 Severability . .

11.7 Rights of First Mortgagees

11.8 Rights of Lenders .

11.9 Author. . ...

EXHIBIT A - Legal Description of Submitted Property EXHIBIT B - Legal Description of Additional Property EXHIBIT C - Undivided Interests in Common Elements

EXHIBIT D - Unit Boundaries

EXHIBIT E - Assignment of Limited Common Elements

DECLARATION OF CONDOMINIUM FOR

APFLEEY MEWS CONDOMINIUM

Athens, Clarke County, Georgia

to as the "Declaration") made this THIS DECLARATION OF CONDOMINIUM (hereinafter referred 1984 by Benchmark/Atlantic Co., Inc., a South Carolina day of March, corporation, (hereinafter referred to as "Declarant").

WIINESSETH:

certain real property and the improvements constructed WHEREAS, Declarant is the owner of fee simple title to property is more fully described on Exhibit "A", attached thereon located in Clarke County, Georgia, which real hereto and made a part hereof; and

ty and said improvements to the provisions of the Georgia Condominium Act, Official Code of Ga. Ann. Section 44-3 ‹hereinafter referred to as the 'Act"), and to the provisions of this Declaration pursuant to the Act; and Declarant has retained and reserved the right and option WHEREAS, as hereinafter provided in this Declaration, property described on Exhibit "B," attached hereto and to submit at a later time all or any portion of the real made a part hereof, and the improvements constructed thereon, to the provisions of the Act and this Declaration; real property described on Exhibit 'A", together with the NOW, THEREFORE, Declarant hereby declares that the improvements constructed thereon, are hereby submitted to the Act and made subject to this Declaration. The terms me Act and in covenants running with the land. and provisions of this Declaration shall constitute

ARTICLE I

DEFINITIONS

of the Act shall be deemed to have the same meanings as As used herein, the terms defined in Section 44-3-71 quire or unless any of such terms is specifically defined set forth therein, unless the context shall otherwise re-

herein in a manner inconsistent with said section, in which event the definition contained herein shall control to the extent of such inconsistency. In addition, as used herein, the following terms shall have the meanings set forth in this Article I: Official Code of Ga. Ann., Section 44-3. "Act" shall mean the Georgia Condominium Act, erty described on Exhibit "B" attached hereto and the 1.2 "Additional Property" shall mean the real propimprovements constructed thereon.

tion of the Association as the same may be extended, 1.3 "Articles" shall mean the Articles of Incorporaamended or renewed from time to time.

"Association" shall mean APPLEBY MEWS CONDOMINIUM ASSOCIATION, INC., a Georgia nonprofit corporation, its successors and assigns. 1.5 "Bylaws" shall mean the bylaws of the Associatime to time. tion as the same may be extended, amended or renewed from tion Code. 1.6 "Code" shall mean the Georgia Nonprofit Corpora1.7 "Condominium"' shall mean the Submitted Property known as Appleby Mews Condominium.

I.8 "Declarant" shall mean Benchmark/Atlantic Co., title, who comes to stand in the same relation to the Inc., a South Carolina corporation, or any successor-inCondominium as Declarant, including, without limitation, any party that acquires ownership of all of Declarant's then remaining interests in the Condominium.

- it of forever from tine to theone may Directors of the Association. 1.10 "Director" shall mean a member of the Board of 1.11 "First Mortgagee" shall mean the holder of a instrument conveying a lien upon or security title to any first-in-priority mortgage, deed to secure debt or other Unit.

deed to secure debt or other instrument conveying a lien 1.12 "Lender" shall mean the holder of any mortgage, Mortgagee), and any insuror or guarantor of any such upon or security title to any Unit (including a First instrument.

of more than fifty percent (50%) of the persons entitled 1.13 "Majority Vote" shall mean the affirmative vote Association or the Board of Directors, as specified, at to vote represented at a meeting of the members of the which a quorum shall be present.

without limitation, any guest, invitee, tenant, lessee or 1.14 "Occupant" shall mean any person, including, using or visiting in a Unit. family member of a Unit Owner, occupying or otherwise 1.15 "Plans" shall mean those certain Plans for Appleby Mews Condominium, prepared by Comprehensive Architects, and filed for record with the Clerk of the Superior Court of Clarke County, Georgia, as the same may e revised or amended from time to time, together with. any Additional Property that is hereafter submitted to the und all architectural plans of any portion of the this Declaration, which are filed for record with the provisions of the Act and this Declaration as provided in Clerk of the Superior Court of Clarke County, Georgia. for Appleby Mews Condominium" prepared by Ben McLeroy, 1.16 "Plat" shall mean that certain "Phase One Survey Georgia Registered Land Surveyor, and filed for record, with the Clerk of the Superior Court of Clarke County, Georgia, as the same may be revised or amended, from time to time, together with any and all as-built surveys of any mitted to the provisions of the Act and this Declaration portion of the Additional Property that is hereafter subas provided in this Declaration, which are filed for record with the Clerk of the Superior Court of Clarke which is submitted to the provisions of the Act by this 1.17 "Submitted Property" shall mean the property Additional Property that is hereafter submitted to the Declaration, and shall also mean all or any portion of the provisions of the Act and this Declaration as provided in this Declaration. intended for independent ownership and use, being a resi1.18 "Unit" shall mean a portion of the Condominiun having the boundaries described in Section 4.2 hereof, dential dwelling depicted on the Plat and the Plans and together with the undivided interest in the common elements appurtenant thereto.

including Declarant, who owns fee simple title to any 1.19 "Unit Owner" shall mean one or more persons. Unit, except, however, those persons having such an interest under a mortgage or deed to secure debt prior to foreclosure.

ARTICLE II

SUBMITTED PROPERTY

Mews Condominium." 2.1 Name. The name of the Condominium is "Appleby the Declaration, the Submitted Property consists of the Submitted Property. At the time of filing of the four (4) buildings located thereon, containing a total the property, more particularly described on Exhibit "A", of forty-five (45) Units, certain common elements, certain limited common elements and other improvements. The. locaon the Submitted Property are shown on the Plat and the tions and dimensions of the Units and other improvements Plans, which Plat and Plans are incorporated herein by reference. 2.3 Additional Improvements. Declarant reserves the tional improvements or changes to any part of the common right, but shall not have the obligation, to make addichanges to the location of Unit boundaries, except as elements, or to any Unit owned by Declarant (other than expressly permitted herein), so long as the option to add any portion of the Additional Property to the Condominium owns any Unit in the Condominium primarily for the purpose pursuant to Article III hereof, is unexpired or Declarant of sale.

ARTICLE III

EXPANSION OF CONDOMINIUM

pressly retains and reserves the right and option (here3.1 Reservation of Option. Declarant hereby exdominium by submitting all or any portion of the Addiinafter referred to as the "Option") to expand the Conas Exhibit "B", to the provisions of the Act and this tional Property, a description of which is attached hereto Declaration in the manner provided in Section 44-3-89 of the Act. cifically set forth in this Declaration, there shall be no 3.2. Exercise of Option. Except as otherwise spelimitations on the Option or the exercise thereof. The Option may be exercised to add all or any portion of the

Additional Property to the Condominium at one time or at different times. boundaries of any portion of the Additional Property added There shall be no limitations to the contiguous to the Submitted Property at the time of such to the Condominium; however, any such portion shall be addition. The exercise of the Option as to a portion of the Additional Property shall not prohibit Declarant from, as to any other portion of the Additional Property. or obligate Declarant to, further exercise of the Option cised by Declarant at any time and from time to time for a 3.3 Expiration of Option. The Option may be exerperiod of five (5) years from the date this Declaration is recorded by the Clerk of the Superior Court of Clarke County, Georgia. Upon the expiration of said five (5) year period, to the extent not exercised or previously terminated by Declarant by express amendment to this Declaration, the Option shall expire and terminate; provided, however, that Declarant may extend said period for Owners of Units to which two-thirds (2/3) of the votes in the exercise of the Option with the consent of the Unit appurtenant to any Unit or Units then owned by Declarant, the Association appertain, exclusive of any vote or votes Option would otherwise have expired. within one (1) year prior to the date upon which the all structures erected on any portion of the Additional 3.4 Improvements on Additional Property. Any and the structures on the Submitted Property in terms of Property added to the Condominium will be compatible with physical appearance, quality of construction, the principal materials to be used and architectural style. The maximum number of Units that may be created on the Additional Property added to the Condominium is sixty (60) Units, and the maximum average number of Units per acre that may be created on any portion of the Additional Property added to the Condominium is twenty (20) Units. Any and all Units constructed on the Additional Property the Units on the Submitted Property and shall be added to the Condominium shall be substantially similar to with the terms of Article X of this Declaration, subject restricted exclusively to residential use in accordance to Declarant's right reserved therein to use any Unit promotional activities relating to the Condominium. There owned by it in connection with the development, sales and improvements that may be made on any portion of the are no limitations as to the particular location of any Additional Property added to the Condominium. Declarant shall construct on any portion of the Additional Property Declarant shall deem necessary to provide access to the added to the Condominium, such roads and drives as Units within the Additional Froperty. Declarant shall

have the right, but not the obligatich, to constiuct such other improvenents on the Additional Propelty. or uny portion thereof added to the Condominium a: I«« laim:.! Unit Owners. No limitations are placed on the right of deem advisable for the common use and enjoyment of the Declarant reserved hereby to create limited common elements within any portion of the Additional Property or to designate common elements therein which may subsequently be assigned as limited common elements.

of the Additional Property to the Condominium, the percen3.5 Reallocations. Upon the addition of any portion tage of undivided interest in the common elements and the percentage of liability for common expenses allocable to all Units then included in the Condominium shall be reallocated in accordance with the method provided on Exhibit "C" attached hereto. Each Unit located upon any portion of the Additional Property added to the Condominium shall be allocated one (1) vote in the Association, cated to each other Unit in the Condominium. Upon the which shall be of equal voting power with the vote alloCondominium, Declarant shall execute and record an amendaddition of any portion of the Additional Property to the ment to this Declaration reallocating the undivided interests in the common elements, the liabilities for common expenses and the votes in the Association. Declaration to the contrary notwithstanding, Declarant Obligation to Expand. Any provision in this reserved, Declarant may terminate the Option at any time shall be under no obligation to exercise the Option herein this Declaration executed and recorded by Declarant and, prior to the expiration thereof by an express amendment to Additional Property shall be subject to any of the terms, prior to being added to the Condominium, no portion of the provisions or restrictions of this Declaration.

ARTICLE IV

PROPERTY RIGHTS

Units. Each Unit, including the undivided intute a separate parcel of real property, which may be owned, held, transferred, sold, conveyed, used, occupied, mortgaged or otherwise encumbered in the same manner as terms, provisions and restrictions of the Act and this any other separate parcel of real property, subject to the Declaration. The undivided interest in the common elements appurtenant to each Unit shall not be separated from such Unit and shall be deemed to be transferred, conveyed

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and encumbered with such Unit even if such interest is not stated or referred to in the document or instrument addition, the undivided interest in the common elements effecting such transfer, conveyance or encumbrance. In shall remain undivided, and unless the Condominium is withdrawn from the Condominium pursuant to Section 11.3 terminated or a portion of the Submitted Property is herein, no Unit Owner nor any other person shall bring any action for partition or division of the whole or any part of any Unit or the common elements. Each Unit shall be allocated an equal vote in the Association, which vote shall be appurtenant to such Unit. 4.2 Boundaries of Units. Each Unit shall include and improvements, including, without limitation, all all of the space, interior partitions and other fixtures boundaries of a Unit shall be as set forth on Exhibit "D" The boundaries between adjoining Units may be relocated attached hereto and by this reference made a part hereof. from time to time, provided that any such relocation is accomplished in strict accordance with the provisions of Section 44-3-90 of the Act and with the consent of Declartional Property to the Condominium pursuant to Article III ant, so long as the Option to add any portion of the Addihereof is unexpired or Declarant owns any Unit primarily for the purpose of sale. minium that are not Units are common elements. Those 4.3 Common Elements. All portions of the Condocertain Unit or Units, as set forth on Exhibit "E" portions of the common elements that are assigned to a are hereby designated limited common elements and reserved attached hereto and by this reference made a part hereof, for the exclusive use of said Unit or Units. Such limited common elements may be reassigned at any time and from shall be made in accordance with the provisions of time to time, provided that any and all such reassignments Section 44-3-82 of the Act. A common element not previously assigned as a limited common element may be so assigned upon written application to the Association by the Unit Owner or Unit Owners for whose exclusive use such Owners to which at least two-thirds (2/3) of the votes of limited common element is requested, the approval of Unit the Association are allocated and the consent of DeclaAdditional Property to the Condominium pursuant to Article rant, so long as the Option to add any portion of the Ill hereof, is unexpired or Declarant owns any Unit primarily for the purpose of sale.. Upon such application, execute an amendment to the Declaration assigning the approval and consent, the Association shall prepare and

element. Such amendment shall be delivered and become rights and obligations with respect to such limited common 44-3-82 of the Act. effective in accordance with the provisions of Rection 4.4 Easements. In addition to the easements created hereby reserved from and established by each Unit Owner by the Act, the easements set forth in this Article IV are ciation and Declarant. To the extent that any damage is for the benefit of each other Unit Owner, the Assoinflicted on the common elements including, without limitation, the limited common elements, or any Unit in conreserved and established, the Association, Unit Owner or nection with the exercise of any of the rights herein Declarant causing said damage shall be liable for the prompt repair thereof. If none of the aforesaid shall have caused such damage, such common elements shall be repaired pursuant to the provisions of Article IX herein. common element encroaches on any other Unit or common ele4.5 Encroachments. To the extent that any Unit or Plans in the construction, reconstruction, repair, renovament, whether by reason of any deviation from the Plat or the settling or shifting of any land or improvement, an tion, or restoration of any improvement, or by reason of repair and repiacement thereof shall exist so long as the easement for such encroachment and for the maintenance, encroachment exists.

add any portion of the Additional Property to the Condo4.6 Rights of Declarant. So long as the Option to Declarant owns any Unit primarily for the purpose of sale, minium pursuant to Article III hereof, is unexpired or Declarant and its duly authorized contractors, representatives, agents, and employees shall have an easement for office, promotional facilities and model Units on the Subthe maintenance of signs, a sales office, a business the opinion of Declarant may be reasonably required, conmitted Property, together with such other facilities as in improvement, development, marketing and sale of the venient or incidental to the completion, renovation, on, over, through, under and across the common elements Units. Declarant shall also have a transferable easement purposes of (i) vehicular ingress and egress over and within any portion of the Submitted Property for the Property; (ii) parking vehicles upon the Submitted Propacross the Submitted Property to and from the Additional erty; (iii) the installation, replacement, repair and maintenance of all utilities and other common services portion of the Additional Property; and (iv) doing all over, across and under the Submitted Property to serve any

making improvements on any portion of the Additional things reasonably necessary and proper in connection with property.

its Directors, Officers, contractors, agents and 4.7 Rights of the Association. The Association, and employed by the Association shall have a general easeemployees, including, without limitation, any manager ment for access, ingress and egress to and from all Units and the common elements for the purpose of performing gencies, such easements are to be exercised only during their respective duties. Except in the event of emernormal business hours and then, whenever practicable, only upon advance notice to the Unit Owner or Occupant of Unit directly affected thereby. The Association shall a 'have the power to grant and accept easements on, over, through, under and across the Submitted Property for the onsistent with the intended we of the com

Occupant shall have a right and easement of use and enjoy4.8 Rights of the Unit Owners. Each Unit Owner and ment in and to the common elements (including the right of access, ingress and egress to and from his Unit over those purpose), and such easement shall be appurtenant to and portions of the Submitted Property designated for such rights of Unit Owners to the exclusive use of the limited shall pass with the title to such Unit, subject to the common elements assigned to their respective Units and to the right of the Association to control the use and enjoyment of the common elements as provided by the terms Association, and the Unit Owners shall have a general 4.9 Maintenance and Repair. The Declarant, the common elements for the purpose of installing, replacing, easement on, over, across and through every Unit and the maintaining and repairing any Unit or the common elements. Except in the event of emergencies, such easehours and then, whenever practicable, only upon advance ments are to be exercised only during normal business affected thereby. notice to the Unit Owner or Occupant of a Unit directly 4.10 Utilities.

line, pipe, wire or conduit serving any Unit, Units or the common elements shall lie wholly or partially within the boundaries of another Unit or the common elements, such other Unit, Units or the common elements shall be burdened vith an easement for the use, maintenance, repair and replacement of such utility line; pipe, wire or conduit, elements served by the same. such easement to be in favor of the Unit, Units or common

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elements, which contributes to the structural support of Support. Every portion of a Unit or the common with an easement of structural support and no Unit Owner another Unit or the common elements, shall be burdened nor the Association shall make any change in any such portion of any Unit or the common elements without the. Association for whose benefit such easement exists. prior written consent of each Unit Owner and the

ARTICLE V

ADMINISTRATION

the Association shall be governed by the Board of DirecGeneral Provisions. The business and affairs of tors and administered by the Officers of the Association, and each shall have the respective duties and powers set forth herein, in the Articles, the Bylaws, the Act and the Code, and shall have such other duties and powers as may be reasonably implied to effect the purposes of the Association. Association and of its Board of Directors shall be held, 5.2 Meetings. Meetings of the members of the with the provisions of their respective Bylaws. A quorum and notice of such meetings shall be given, in accordance members of the Association and throughout any meeting of shall be deemed present throughout any meeting of the its Board of Directors until adjourned if persons entitled to cast more than fifty percent (50%) of the votes in the are present at the beginning of such meeting. Association or the Board of Directors, as the case may be, that the Board of Directors shall fail to perform any duty Enforcement of Director's Duties. In the event Declaration, the Articles, the Bylaws or the Act are to be or duties, which under the terms and provisions of this aggrieved by such failure shall have the right to proceed performed by it, any Unit Owner or First Mortgagee who is in equity to compel such Board of Directors to perform such duty or duties. In no event, however, shall any Director or Directors have any liability to any Unit Owner or First Mortgagee for any failure by such Board of Directors to perform any such duty or duties, except to the extent specifically provided in the Act. provision to the contrary contained in this Declaration, 5.4 Control by Declarant. Notwithstanding any other the Articles or the Bylaws, Declarant shall have the right to control the Association in accordance with the provisions of Section 44-3-101 of the Act and is hereby authorized to appoint or remove any Director or Directors

or any Officer or Officers until the first of the following to occur:

(i) Unless the Option to add the Additional Property or any portion thereof to the Condominium as proVided by Article Ill hereof is unexpired at that time, four (4) months after the date as of which threefourths (3;4) of the Units shall have been conveyed by Declarant to Unit Owners other than persons or entities constituting or owned by Declarant; or

(ii) The expiration of five (5) years after the date of the recording of this Declaration: or (iii) The surrender by Declarant of the authority to appoint and remove Directors and Officers by an express amendment to this Declaration executed and recorded by Declarant.

Upon the expiration of the period of Declarant's right to appoint and remove Directors and Officers, such right shall automatically pass to the Unit Owners, including Declarant if Declarant then owns one or more Units. Thereafter, Directors and Officers shall be elected pursuant to the terms and provisions of this Declaration, the Articles, the Bylaws, the Act and the Code.

5.5 Rules and Regulations. The powers of the Board of Directors shall include, without limitation, the power to make, adopt, revoke and amend rules and regulations, in addition to the restrictions set forth in Article X of this Declaration governing the use and enjoyment of the Submitted Property by the Unit Owners and Occupants. Written copies of all such rules and regulations shall be furnished to the Unit Owners prior to the effective date thereof. Such rules and regulations, as well as all provisions of this Declaration, including, without limitation, the restrictions set forth in Article X, hereof, shall be binding upon all Unit Owners and Occupants, and any failure to abide by such shall be grounds for an action or suit by the Association or, in any proper case, by any one or more aggrieved Unit Owners to recover sums due or damages, or to obtain injunctive or equitable relief, or both. The Association shall be entitled to all other remedies provided by this Declaration, the Act or other laws, including, without limitation, the right and power to impose and assess fines and to suspend temporarily the right of use of certain of the common elements: provided, however, that no such suspension shall deny any such Unit Owner or Occupant access to the Unit owned or occupied nor cause any hazardous or unsanitary condition to exist.

Directors may in its discretion, employ a professional Management Hired; Other Contracts. The Board of Such management firm shall, by the terms of a written management firm to manage the operation of the Association.

Except as may be prohibited by the Act the Board of Directors and of management firm such of the duties and powers of the or the Code, the Board of Directors may delegate to such Association, the Board of Directors and the Officers, as the Boards of Directors shall determine. Any management Association is a party, executed by or on behalf of the agreement and any other contract or lease to which the control the Association, shall be subject to cancellation Association during the period of Declarant's right to ninety (90) days notice, and as set forth in Section and termination without cause and without penalty upon for Declarant, or any firm affiliated with Declarant, to 44-3-101 of the Act. It shall be expressly permissible be employed as a professional management firm pursuant to this Section 5.6. have available for inspection by Owners and Lenders during Information Available. The Association shall normal business hours (or under other reasonable circumstances) at its principal place of business, current regulations concerning the Condominium and the books, copies of this Declaration, the Bylaws, other rules and records and financial statements of the Association.

ARTICLE VI

ASSESSMENTS

Lien. 6.1 Creation of Personal Liability and Priority of conveyance of a Unit, covenants and agrees to pay to the Each Unit Owner, by acceptance of a deed or other Association (through the Association) the assessments or charges, together with interest thereon, as shall be fixed by the Association in accordance with the terms and or assessed against his Unit during his ownership thereof provisions of this Declaration, the Articles, the Bylaws and the Act. All such assessments and charges, whether thereon and the costs of collection thereof as hereinafter tor common expenses or otherwise, together with interest provided, shall, from the time the same become due and payable, be a charge against and continuing lien in favor prior and superior to all other liens whatsoever except of the Association upon such Unit. Such lien shall be first-in-priority mortgage, if any, or secondary only (a) a lien for ad valorem taxes, (b) the lien of a

purchase-money mortgage, if any, to which such Unit is subject, and (c) the lien of any mortgage recorded prior to the recording of this Declaration.

6.2 Effect of Transfer of Unit. The sale or transSection 6.1 above, and any grantee shall be jointly and fer of any Unit shall not affect the lien set forth in charge assessed against such Unit as may be due and payseverally liable for the portion of any assessment or able at the time of conveyance, but without prejudice to the rights of the grantee to recover from the grantor the that if such grantor or grantee shall request and receive amounts paid by the grantee therefor; provided, however, a statement from the Association as provided in Subsection 44-3-109 of the Act, such grantee, his successors, successors-in-title and assigns, shall not be liable for, nor shall the Unit conveyed be subject to a lien for, any unpaid assessments against such Unit in excess of the tion may charge a fee, not to exceed Ten and No/100 amount set forth in such statement, if any. The AssociaDollars ($10.00). for the issuance of any such statement, the payment of which fee shall be a condition precedent to of such lien. Anything in this Declaration to the conthe nonliability of such grantee and the inapplicability trary notwithstanding, in the event any First Mortgagee or any secondary purchase-money mortgagee shall come into in lieu of foreclosure of a first mortgage or a secondary possession of any Unit by virtue of any deed or assignment liable for, nor shall such Unit be subject to a lien for, purchase-money mortgage, such mortgagee shall not be period prior to the time such mortgagee shall so come into assessment chargeable to such Unit on account of any unpaid assessment or assessments shall be deemed to be possession of such Unit; provided, however, that such including such mortgagee. common expenses collectible from all Unit Owners, expenses of the Association not specially assessed pur-. 6.3 General Assessments. The amount of all common amount of any common profits applied to the payment theresuant to the provisions of this Declaration, less the of, shall be assessed against each Unit, and the Unit Owners thereof shall be personally liable therefor, in the same proportion as is specified on Exhibit "c" as the undivided percentage interest in the common elements appurtenant to such Unit. the Association shall be all of the expenditures which are Common Expenses. The common expenses of made or incurred by or on behalf of the Association in connection with the exercise of their respective powers

and responsibilities, and shall include, but shall not be limited to, the following:

(1) Management fees and expenses of administration, including legal and accounting fees;

(ii) Charges for utilities serving the common elements and charges for other common services; (iii) The cost of any master, blanket or other insurance policies purchased for the benefit of all Unit Owners and the Association as permitted or required by this Declaration;

The expense of maintenance, operation and reArticle VIll hereot, bility of the Association under the provisions of a special assessment; if such expense is not covered by (v) Charges for utilities or other common services provided to the Units and not separately metered; (vi) Such other expenses as may be determined from time to time by the Board of Directors of the Association to be common expenses, including, without limitation, taxes and governmental charges such as sanitary taxes not separately assessed against each (vii) The establishment and maintenance of a reasonable reserve fund or funds for maintenance, repair and replacement of those common elements that. must be replaced on a periodic basis and of a reserve 027007 to cover operating contingencies or deficiencies arising from unpaid assessments or liens, emergency expenditures and other matters, as may be authorized from time to time by the Board of Directors; and (viii) The costs of any capital improvement to be made upon the common elements, provided that such capital improvements, other than the repairing, rebuilding or reconstructing of any portion of the common elements damaged or destroyed by casualty, has been the Unit Owners entitled to vote represented at a approved by a vote of more than two-thirds (2/3) of meeting of the members of the Association at which a quorum was present and with respect to which notice was given that consideration of such capital improvement was a purpose of such meeting and by Declarant,

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tional Property pursuant to Article Ill hereof, is so long as the Option to add any portion of the Addiunexpired or Declarant owns any Unit primarily for the purpose of sale. thirty 30) days prior to the commencement of each fiscal 5.3.2 Annual Budget and Assessment. At least prepare an annual budget for the succeeding fiscal year, year of the Association, the Board of Directors shall which budget shall estimate the amount of common expenses that are anticipated during such year, including, without Said annual budget shall be submitted in writing to the limitation, the items set forth in Section 6.3.l above. annual assessment payable by each Unit Owner during such Unit Owners and contain a notice of the amount of the fiscal year. Said annual budget and the amount of the annual assessment shall be subject to. Unit Owners as set forth in the Bylaws. If the annual the approval of the budget approved by the Unit Owners proves insufficient for any reason during the course of the fiscal year to which amendment to such budget, which shall be submitted to the it applies, the Board of Directors shall prepare an manner as the annual budget, except as specifically Unit Owners and be subject to their approval in the same by the Board of Directors, each Unit Owner shall pay the provided in this Declaration. Unless otherwise determined installments on or before the first day of each month. In annual assessment to the Association in equal monthly be payable by any Unit Owner to the Association, whether addition, any fees, charges, and other amounts which shall by special assessment or otherwise, shall be added to and shall, unless paid at the time the same are incurred or at due and payable as part of the installment of the some other time determined by the Board of Directors, be assessment next coming due.

received and all properties acquired by the Association 6.3.3 Application of Common Funds. All funds any excess of assessments, shall be held for the benefit and the proceeds thereof, including, without limitation, of the Unit Owners to be applied as common funds to the Units in proportion to the undivided percentage interests remaining after such application shall appertain to the of Directors, by resolution and without the necessity of a in the common elements appurtenant thereto, and the Board vote of the Unit Owners, shall determine to apply such excess or any portion thereof in reduction of the one or more reserve accounts of the Association described subsequent year's assessments, or to allocate the same to above, or to distribute sid surplus to the Unit Owners.

may, but shall not be obligated to, make special assessa cane to time during The Board of Directors below: Association in the amounts and for the purposes set forth benefiting less than all of the Units shall be Any common expenses of the Association assessed equitably among the Units so benefited; (11) Any common expenses of the Association Owners or Occupants shall be specially assessed occasioned by the conduct of less than all of the Unit against the Unit or Units, the conduct of any Unit Owner or Occupant of which occasioned any such common expense;

(111) Any common expenses of the Association for any benefit significantly disproportionately benefiting a portion of the Units over the remainder of the Units proportion of benefit to each Unit; and shall be assessed among all of the Units based on the (IV) Any common expenses of the Association associated with the maintenance, repair or replacement which maintenance, repair or replacement is that of of any limited common elements, the responsibility of the Unit Owner of the Unit to which that limited common element was assigned at the time such expenses were made or incurred, shall be specially assessed element was assigned at that time to more than one against such Unit; however, if any such limited common Unit, such common expenses shall be specifically assessed against each such Unit equally (so that the total of such special assessments equals the total of deemed to limit the responsibility of the Unit Owners This provision shall in no way be 5632 for the performance of the general maintenance, repair assigned to their Unit as herein stated. and replacement of the limited common elements other remedies provided by law, the Association may 6.5. Non-Payment of Assessment. In addition to all enforce collection of all delinquent general and special owing the Association, as provided in this Section 6.5. assessments, together with such other amounts as may be Any assessment, or portion thereof, not paid when due shall be deemed delinquent. quent assessment or installment not paid within five (5) 6.5.1 Late Charges and Interest. Any delindays after the due date shall bear a late charge in the

amount of the greater of Ten Doilars and No/100 ($10.00) or ten percent (10%) of the amount of installment not paid when due. each assessment or quent assessment or portion thereof, together with authoin addition, any delinrized late charges, shall bear interest from the date of delinquency until paid at eight percent (8%) per annum.

6.5.2 Additional Remedies. If any delinquent assessment or portion thereof is not paid within ten (10) days after written notice is given to the Unit Owner to make such payment, the Board of Directors may invoke the following remedies:

(i) The entire unpaid balance of the assessment may be accelerated at the option of the Board of Directors and may be declared due and payable in full, and foreclosure proceedings may be instituted to enforce the lien of the Association;

(ii) The voting rights appurtenant to the Unit may be suspended until full payment of all outstanding assessments and penalties or interest due thereon; (lii) The Association may bring an action at law against the Unit Owner personally obligated to pay the same; and (iv) The Association may foreclose its lien against such Unit Owner's Unit, in which event late charges, interest and costs of collection shall be included in such lien, with such costs of collection to include court costs, the expenses of sale, any expenses Unit, and reasonable attorneys' fees actually incurred. required for the protection and preservation of the Any such notice shall be sent by certified mail, return receipt requested, to the Unit Owner both at the address of the Unit and at any other address or addresses the Unit Owner may have designated to the Association in writing, specifying the amount of the assessments then due and payable, including any authorized late charges and interest accrued thereon. shall be applied first to the aforesaid costs of collec6.5.3 Collection. All payments on account tion, then to late charges, then to interest, and then to the assessment lien first due. All late charges and interest collected shall be credited to the common fund of the Association to be applied against the common

expenses. Each Unit Owner vests in the Board of Directors the right and power to bring all actions against him personally for the collection of such assessments as a

forth in Section 44-3-109 of the Act. debt and to foreclose the aforesaid lien in the manner set

ARTICLE VII

INSURANCE

obtain and maintain at all times the types of insurance 7.1 Purchase of Insurance. The Association shall policies set forth in this Article VII containing the provisions and in the amounts set forth herein. The premiums for such insurance policies shall be a common expense of the Association. The Boards of Directors, at with any institutional trustee to supervise the their respective discretion, may enter into an agreement of insurance maintained by the Association. distribution of any insurance proceeds paid under policies icies required are: 7.2 Types of Insurance. The types of insurance polaffording fire and extended coverage insurance for, A casualty insurance policy or policies value of, all structures and other insurable improveand in an amount consonant with the full replacement ments within the Condominium: provided, however, that the Association may exclude from such coverage Owners, and/or (b) structures covered by builder's (a) improvements and betterments made by the Unit risk insurance in an amount consistent with the full full force and effect and only on the condition that s risk insurance remains in the Association is named as an additional insured; amounts determined by the respective Boards of (ii) A liability insurance policy or policies, in Directors, but not less than $500,000 for injury, including death, to a single person, $1,000,000 for single occurrence, injury or injuries, including death, arising out of a and $50,000 property damage, the Officers of Association, all agents and employees covering the Association, the Board of Directors and of the Association and all Unit Owners and Occupants without limitation, fidelity insurance policies, a (iii) Such other insurance policies, including, blanket flood insurance policy, if required as a condition to institutional lenders making first mortgage loans on the Units, and such other insurance policies

as may be permitted or required under the Bylaws, in the amounts of coverage as may be required by law or authorized by the Eoard of Directors from time to time. 7.3 Unit Owners' Policies. The Unit Owners and mortgagees may purchase and carry at their own expense any type of insurance policy or policies as they may desire from time to time; provided, however, that in no event shall any recovery or payment under any insurance policy obtained by the Association be affected or diminished by any such policy and no such policy shall provide for contribution by any insurance policy obtained by the Association nor shall it decrease in any other way the amount which the Association may realize under any insurance policy which it may have in force on any portion of the Submitted Property at any particular time.

ARTICLE VIII

MAINTENANCE AND REPAIR

Except as specifically provided in Article IX below, with respect to damage or destruction, the general mainformed as follows: tenance and repair of the Submitted Property shall be per8.1 Units. Each Unit Owner shall be responsible, at his sole cost and expense, for the maintenance, repair and replacement of all portions of his Unit and the limited Section 8.4 below. common elements assigned thereto, except as provided in The responsibility of the Unit Owner shall include, without limitation, the maintenance, repair and replacement of all fixtures, equipment, appliances and heating and air-conditioning systems, together with all chutes, flues, ducts, conduits, wires, pipes or other apparatus serving the Unit, whether such shall be located within the boundaries of the Unit or shall be a limited common element assigned thereto. In addition, each Unit Owner shall be responsible for the maintenance, repair and replacement of the exterior doors (including garage doors), glass surfaces, window and porch screens, and exterior lighting serving his Unit, irrespective of whether the same shall be located within or without the boundaries of such Unit. No Unit Owner shall paint or his Unit, or of any other portion of the Submitted Propotherwise change in any respect the exterior appearance of erty, including, without limitation, any of the limited common areas assigned to his Unit, without the prior written consent of the Association's Board of Directors.

8.2 Common Elements. The Association shall be maintenance, repair and replacement of all of the common responsible at its sole cost and expense, for the provided in Section 8.4 below. elements, except the limited common elements and except as Association shall include, without limitation, the mainteThe responsibility of the nance, repair and replacement of all exterior walls and surfaces bounding the Units and all utility lines, chutes, flues, ducts, pipes, wires, conduits and other apparatus located outside the boundaries of any Unit which do not constitute limited common elements. 8_3 Liability of the Association. Except as may be otherwise provided by the Act, the Association shall not be liable for injury or damage to a person or property caused by the elements, by any Unit Owner or by any other person, or resulting from any utility, rain, snow or ice which may leak or flow from any portion of the common elements or from any pipe, drain, conduit, appliance or equipment, including those the responsibility for the maintenance of which is that of the Asscciation nor shall the Association be liable to any Unit Owner for loss or be stored in or upon any of the common elements. No damage, by theft or otherwise, of any property which may diminution or abatement of assessments shall be claimed or allowed by reason of any alleged failure of the Association to take some action or perform some function required to be taken or performed by the Association under this Declaration, or for inconvenience or discomfort arising from the making of repairs or improvements which are the responsibility of the Association or from any action taken by the Association to comply with any law, ordinance, order or directive of any municipal or other governmental authority.

8.4 #General Provisions. Each Unit Owner and the Association shall be responsible to each other to repair any incidental damage done to a portion of the Submitted performance of its duties set forth in this Article VIII. Property, which is the responsibility of the other, in the Otherwise, neither any Unit Owner nor the Association Submitted Property which is the responsibility of another shall alter or change in any manner that portion of the without the prior written consent of the other. Each Unit Owner and the Association shall perform their respective responsibilities under this Article VIII in such a manner as not to unreasonably disturb any Unit Owner or Occupant. Each Unit Owner shall promptly report to the Association Submitted Property which is the responsibility of the any defect in or need for repairs to any portion of the Association. Anything herein to the contrary notwithstanding, in the event a Unit Owner fails or refuses to

periorm any work required under this Article VIII upon notice from the Association to do so, the Association shall have the right, but not the responsibility, to perform or have performed such work, the cost of which shall be added and become a part of the monthly assessment installment of such Unit Owner next due. In the event the Board of Directors shall determine that the need for any maintenance or repair work to be performed by the Association as provided in this Article VIII is caused through the willful or negligent act of a Unit Owner or Occupant, the cost of performing such maintenance or repair work shall be added to and become a part of the monthly assessment installment of such Unit Owner next due.

ARTICLE IX

DAMAGE OR DESTRUCTION

9.1 Determination to Repair or Rebuild. As soon as practicable following any damage to or destruction of any portion of the Submitted Property covered by any insurance maintained by the Association, the Board of Directors shall proceed with the filing and adjustment of all claims arising under such insurance as a result of such damage or destruction and shall obtain reliable and detailed estimates of the cost of repairing or restoring such portion of the Submitted Property to substantially the same condition in which it existed prior to the occurrence of such damage or destruction, excluding improvements and betterments made by a Unit Owner or Occupant.

9.1.2 Common Elements. Each Unit Owner and each mortgagee of a Unit, by acceptance of a deed or other conveyance of a Unit, agrees that any damage to or destruction of any portion of the common elements, excluding any limited common elements, shall be repaired or rebuilt unless the Unit Owners, and their First Mortgagees, to which at least two-thirds (2/3) of the votes in the Association are allocated, shall determine, within sixty (60) days after the occurrence of such damage or destruction, not to repair or rebuild the same; provided, however, that during such time as Declarant owns a Unit or Units primarily for the purpose of sale, any such determination not to repair or rebuild shall require the agreeạẠỊ ment of Declarant and of the Unit Owners, and their First Mortgagees, to which at least two-thirds (2/3) of the votes in the Association are allocated exclusive of the votes appertaining to Units owned by Declarant.

9.1.3 Units. Each Unit Owner and each

mortgagee of a Unit, by acceptance of a deed or other couveyance to a Unit, hereby agrees that any damage to or

destruction of any Unit or the limited common elements assigned thereto shall be repaired, reconstructed or rebuilt unless:

(i) the cost of such repair or reconstruction shall be more than fifty percent (50%) of the full replacement cost of such Unit and/or limited common elements, or such Unit and/or limited common elements or more of which is damaged or destroyed; and are located in a building, seventy-five percent (75%) such damage or destruction the Unit Owner and First (ii) within sixty (60) days after the occurrence of Mortgagee of such damaged or destroyed Unit or limited First Mortgagees of all of the other Units contained common elements, together with the Unit Owners and within the building in which such Unit is located, and to which at least two-thirds (2/3) of the votes in the together with Unit Owners, and their First Mortgagees, Association are allocated, shall all determine not to repair, reconstruct or rebuild such damaged or however, that during such time as Declarant owns a destroyed Unit or limited common elements; provided, Unit or Units primarily for the purpose of sale, any build shall also require the agreement of Declarant. such determination not to repair, reconstruct or re9.2 Repair and Rebuilding. All of the work of repairing or rebuilding any portion of the Submitted in the payment of any insurance proceeds under any insurProperty, the damage to or destruction of which resulted ance policy maintained by the Association shall be the under the supervision of the Board of Directors. In responsibility of the Association and shall be performed Directors shall be authorized, but shall not be obligated, discharging such supervisory responsibility, the Board of to employ as their agent or consultant such building supervisors or architects as the Board of Directors shall determine. Any tees which shall be payable to any such building supervisor or architect as shall be employed by the Boards of Director shall be a common expense of the Association.

tion or rebuilding of any portion of the common elements, 9.2.1 Common Elements. Any repair, reconstrucexcluding any limited common element, shall be substantially in accordance with the plans and specifications for the damaged or destroyed property prior to the occurrence of such damage or destruction, or in accordance with such different plans and specifications as may be approved by the Board of Directors and the Unit Owners, and their First Mortgagees, to which at least two-thirds (2/3) of

the votes of the Association are allocated. The cost of repairing, reconstructing or rebuilding such portion of the common elements shall be paid with any insurance proceeds which shall be paid to the Association on account of such damage or destruction. If such insurance proceeds, together with any amounts as may be available from any reserve funds maintained by the Association for such purposes, are not sufficient to defray such costs of such repairing, reconstructing or rebuilding, then the Board of Directors shall levy a general assessment against all of the Units to raise the excess funds necessary to defray approval by the Unit owners. such costs, which assessment shall not be subject to rebuilding of any Unit or the limited common elements Units. Any repair, reconstruction or assigned thereto, shall be substantially in accordance with the plans and specifications for the damaged or destroyed Unit prior to the occurrence of such damage or destruction, or in accordance with such different plans and specifications as may be approved by the Board of Directors and the Unit Owner and First Mortgagee of such Unit. The cost of repairing, reconstructing or rebuilding such Unit and the limited common elements assigned thereto, shall be paid with the insurance proceeds which shall be paid to the Association on account of such damage or destruction to such Unit or such limited common elements. If any amounts shall remain after all of the costs and expenses of repairing, reconstructing or rebuilding the Unit or such limited common elements are paid, such amounts shall be paid to the Unit Owner. If the amount held by the Association for such Unit or such limited common elements is not sufficient to pay the cost of such repair or reconstruction, then the Board of Directors shall levy a special assessment against the Unit Owner of such Unit to raise the excess funds necessary to pay such 9.3 Common Elements and Units Not Rebuilt. In the event it is determined, in accordance with the provisions of this Article IX, that any damaged or destroyed common elements, excluding any limited common elements, shall not proceeds paid to the Association and/or the Master be repaired, reconstructed or rebuilt, then any insurance Association on account of such damage or destruction shall be applied as common profits as set forth in Section 6.3.3 above. In the event it is determined in accordance with the provisions of this Article IX that any damaged or destroyed Unit shall not be repaired, reconstructed or rebuilt, then the following provision shall control:

(i) The entire undivided interest in the common elements appertaining to such Unit shall thereafter appertain to the remaining Units, being allocated in proportion to their undivided interests in the common elements immediately prior to such allocation, and any remaining portion of such damaged or destroyed Unit shall thereafter be a part of the common elements. Liability for assessments appertaining to such Unit shall thereafter also appertain to the remaining Units, being allocated in proportion to their relative liability for assessments immediately prior to such allocation, the vote in the Association appertaining to such Unit shall be null and void and the total number of votes in the Association shall be correspondingly reduced; and

(ii) The Association shall deduct from any insurance proceeds paid to the Association on account of the damage or destruction of such Unit, such amount as is necessary to cover the expense of removal of debris from and landscaping of the area where the damaged or destroyed Unit was located, and any remaining proceeds shall be paid to the Unit Owner of such damaged or destroyed Unit in proportion to the total damage for which proceeds are received, and thereupon such Unit in the Condominium. Owner shall have no further right, title or interest 9.4 Rights of Mortgagees. Anything herein to the contrary notwithstanding, and in addition to the rights of mortgagees elsewhere set forth in this Declaration, in all cases in which there is a mortgagee endorsement with respect to an insurance policy for a Unit, any insurance proceeds provided to be disbursed to the Unit Owner of such Unit shall be disbursed jointly to such Unit Owner alone may determine. and such mortgagee, who shall use such proceeds as they

This is a covenant for the benefit of any such mortgagee and may be enforced by any such mortgagee.

ARTICLE X

RESTRICTIONS

10.1 Residential Use. All Units shall be restricted exclusively to residential use and no greater than six (6) unrelated persons may live in any given Unit at any given time. No Unit or any limited common element, or any portion thereoi, shall at any time be used for any commercial, business or professional purpose. Nothing set forth in this Section 10.1 shall prohibit Declarant from conducting such development, sales and promotional activities on the Submitted Preperty as it shall determine or

Nothing set forth in this Section shall be construed as from using any Units owned by it in connection therewith. prohibiting the use of Units for residential rental purposes.

Exterior Appearances. No construction, painting or other changes or additions of any nature whatsoever shall be made by any Unit Owner (except Declarant. so long as the Option to add any portion of the Additional Property to the Condominium pursuant to Article III, hereof, is unexpired or Declarant owns a Unit primarily for the purpose of sale) with respect to the exterior of any Unit or any portion of the common elements, including the limited common elements, without the prior written consent of the Board of Directors. 10.3 Leasing. All leases shall be in writing and shall specifically provide that they are made subject to Bylaws and the Act. Each Unit Owner shall have the all provisions of this Declaration, the Articles, the responsibility of causing his lessees, and such other Occupants of his Unit, to comply with and abide by all such provisions, and their failure.to do so may be the Unit Owner. basis for the imposition of a charge or fine against such notwithstanding: Anything herein to the contrary

(i) Any Unit Owner may share the occupancy of his Unit with another person;

(11) Declarant may use any Unit for the temporary or permanent housing of any of its agents or employees so long as the Option to add any portion of the Additional Property pursuant to Article Ill, hereof, is unexpired or Declarant owns a Unit primarily for the purpose of sale: and (iii) Any First Mortgagee in possession of a Unit following a default in the first mortgage on such Unit or following its acquisition of title by foreclosure or a deed in lieu of foreclosure, shall have the right to lease such Unit subject to all provisions of this Declaration, except this Section 10.3, and subject to the Articles, the Bylaws and the Act.

10.4 Signs. No sign or billboard of any kind shall be displayed on the common elements or so as to be visible rom the common elements, except project signs or directories installed by the Association. Declarant, however. may erect and maintain such signs and other advertising devices or structure as it may deem necessary or proper in

connection with the conduct of its operations for the Additional Property. development, improvement and sale of the Submitted and

10.5 Use of Common Elements. The common elements shall be used for the furnishing of services and facilities for which the same are reasonably intended and for the enjoyment of the Units. naintenance of the common elements shall not be obstructThe use, operation anc ed, damaged or unreasonably interfered with by any Owner.

10.6 Offensive or Unlawful Activities. No noxious or offensive activities shall be carried on in any Unit nor shall anything be done or placed therein which interferes with or jeopardizes the enjoyment of other Units or the common elements or which is a source of annoyance to occupants. No unlawful use shall be made of the Condominium nor any part thereof, and all valid laws, zoning ordinances bodies having jurisdiction thereof shall be observed. and regulations of all governmental 10.7 Exterior Lighting; Antennas. Except with the any Unit and no antennas or transmitting towers shall be affixed to the common elements. common elements shall be used or maintained as a dumping Trash. No part of any Unit or any part of the ground for rubbish, trash, garbage or other waste. No garbage, trash or other waste shall be kept or maintained in sanitary containers in the areas designated by the on any part of the Submitted or Additional Property except Board of Directors.

10.9 Parking. Any parking spaces in the Condominium which are not specifically designated parking spaces for Bylaws, or the Plat or Plans shall be for the use and certain individuals by virtue of this Declaration, the enjoyment of each Unit Owner. No trailers of any kind, the Submitted or the Additional Property, except when campers, boats or similar equipment may remain parked on being used for delivery, service, loading or unloading or similar temporary use, unless the Board of Directors has Declarant may maintain a sales trailer on the Submitted or given prior written permission; provided, however, that the Additional Property until such time as all of the available Units on the Property are sold. Any disputes

-2c-

Directors for review and disposition. with respect to parking may be referred to the board of 10.10 Insurance. event any use shall lead to an increase in fire or other insurance premiums otherwise payable on the insurance obtained by the Board of Directors, or insurance procured by an individual Owner, the Unit causing such increase shall be liable for payment of the same to the Board of Directors or individual Owner, as the case may be. The party so charged with increasing premium cost shall have the right to contest the validity of such increase. A levy made against such Owner for such increase in premiums may be enforced by the Board of Directors by adding the same to the common charges allocable to such Owner. 10.11 Rules and Regulations. In addition to the restrictions set forth in this Article X, the use and enjoyment of the Submitted Property shall also be subject to the rules and regulations adopted by the respective Boards of Directors from time to time or provided in the Bylaws. The Association and the Board of Directors shall have the rights and powers to enforce said rules and regulations as provided by this Declaration, the Bylaws or the Act. Anything in such rules and regulations, this Declaration or the Bylaws to the contrary notwithstanding, as long as the Option to add any portion of the Additional Property pursuant to Article III hereof is unexpired or Declarant owns a Unit primarily for the purpose of sale, it shall be expressly permissible for Declarant, its contractors, agents, employees, assigns and representatives, to maintain and carry on, upon such portion of the Submitted Property and the Additional Property as Declarant may deem necessary, such facilities and activities as in the sole opinion of Declarant may be reasonably required, convenient or incidental to the development, sales and promotional activities of Declarant, including without limitation, business offices, signs, model units. and sales offices. such facilities and activities shall include the right to The right to maintain and carry on use the parking facilities on the Submitted Property and the Additional Property for such purposes and to use the Units owned by Declarant as model Units and as offices for the sale of the Units and related activities.

ARTICLE XI

CENERAL PROVISIONS

Amendment. Except to the extent expressly permitted or required by other provisions of this Declaration, the Act or any other applicable statute, this Declaration may be amended at any time and from time to time only upon the agreement of Unit Owners to which at least two-thirds (2/3) of the votes of the Association are allocated; provided however that during such time as the Option to add any portion of the Additional Property to the Condominium pursuant to Article III hereof, is unexpired or Declarant has the right to control the Association pursuant to Section 5.4 herein, any amendment to this Declaration shall require the agreement of Declarant and of the Unit Owners to which at least two-thirds (2/3) of the votes in the Association are allocated, exclusive of the votes appertaining to Units owned by Declarant. Except as expressly permitted or required by the Act and this Declaration, any amendment to this Declaration which would change the boundaries of any Unit or the undivided interest in the common elements, the number of votes in the Association or the liability for common expenses appertaining to any Unit, shall be subject to the approval of all Unit Owners and the First Mortgagees of all Units. Anything herein to the contrary notwithstanding, any amendment to this Declaration, which would change, alter, modity or rescind any right, title, interest or privilege herein expressly granted to any First Mortgagee of a Unit, shall require the prior written approval of such

mortgagee. Agreement of the required majority of Unit Owners to any amendment of this Declaration shall be evidenced by their execution of the amendment, or, in the alternative, and provided that Declarant does not then have the right to appoint and remove members of the Board of Directors or Officers, the sworn statement of the President, any Vice President or Secretary of the Association, attached to or incorporated in an amendment executed by the Association, in which sworn statement it is stated unequivocally that agreement of the required majority of Unit Owners was otherwise lawfully obtained. Any such amendment of this Declaration, shall become effective only when recorded or at such later date as may be specified in the amendment itself. The approval and agreement of any mortgagee required with respect to such amendment shall be in writing and shall also be recorded with such amendment.

11.2 Eminent Domain. In the event that all or any part of the Submitted Property shall be taken by any

authority having the power of eminent domain, the allocation of the award for such condemnation and all related matters, such as the reallocation of undivided interests in the common elements, liabilities for assessments and votes, shall be handled pursuant to and in accordance with Section 44-3-97 of the Act. If any Unit or portion thereof or the common elements or any portion thereof is made the subject matter of any condemnation or eminent domain proceeding or is otherwise sought to be acquired by a condemning authority, the first mortgagee of any Unit will be entitled to written notice of any such proceeding or proposed acquisition, and no provision of this Declaration or of any other condominium instrument establishing the Condominium will entitle the Unit Owner or other person to priority over any such mortgagee with respect to the distribution of the proceeds of any award or settlement relating to such Unit.

11.3 Termination and Withdrawal of Submitted

The Condominium may be terminated or abandoned only by the agreement of (a) the Unit Owners to which fourfifths (4/5) of the votes in the Association are allocated, exclusive of any vote or votes appurtenant to any Unit or Units then owned by the Declarant, (b) all mortgagees of any Unit or Units within the Condominium, and (c) the Declarant, if at that time the Option to add any portion of the Additional Property to the Condominium pursuant to Article Ill hereof, is unexpired or Declarant has the right to control the Association pursuant to Section 5.4 hereof. A portion of the Submitted Property may be with the Act. withdrawn from the Condominium only in strict accordance is terminated as herein provided, the provisions of this Unless the Condominium Declaration shall run with and bind the land, shall be binding upon and inure to the benefit of all Unit Owners and mortgagees, their heirs, executors, legal representatives, successors and assigns, and shall be and remain in effect perpetually to the extent permitted by Georgia law; provided, however, that so long as Georgia law limits the period during which covenants restricting lands to certain uses may run, any provisions of this Declaration affected thereby shall run with and bind the land only so long as permitted by such law, and it shall be the duty of the Board of Directors to cause this Declaration to be amended of record when necessary by filing a document bearing the signatures of Unit Owners having a majority of the votes in the Association reaffirming and newly adopting such provisions in order that the same may continue to be covenants running with the land of the Condominium. Such

adoption by a majority shall be binding on all Unit Owners. Every Unit Owner, by acceptance of a deed or other conveyance of a Unit, irrevocably agrees that such provisions of this Declaration may be renewed and extended as provided in this Section.

11.5 Terminology. All personal pronouns used in this Declaration whether used in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural, and vice versa. Titles of articles and sections are for convenience only and neither limit nor amplify the provisions of this Declaration, and all references herein to articles, sections or subsections shall refer to the corresponding articles, sections or subsections of this Declaration unless spetions of another document or instrument. cific reference is made to articles, sections or subsec-

11.6 Severability. If any provisions of this Declaration or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Declaration and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law.

11.7 Rights of First Mortgagees. All First

Mortgagees shall be entitled, upon written request to the Association, to receive the financial statement of the Association for the immediately preceding fiscal year.

Rights of Lenders: Upon written request to the Association, identifying the name and address of the Lender and the Unit number or address for which information is required, any Lender will be entitled to receive timely written notice of:

i) Any condemnation or casualty loss that affects either a material portion of the individual Lender's security interest condominium or the Unit securing any such (including, but not limited to, a deed to secure debt or a mortgage) in such Unit. ii) Any sixty (60) day delinquency in the payment of assessments or charges owed by the Owner of any Unit securing such individual Lender's security interest (including, but not limited to, a deed to secure debt or a mortgage) in such Unit.

iii) A lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association.

iv) Any proposed action which requires the consent of a specified percentage of Lenders. 11.9 Author. The author of this Declaration is Alexander W. Suto, Esg. 1500 Candler Building, Atlanta, Georgia 30043.

IN WITNESS WHEREOF, Declarant has caused this Declaraabove written. tion to be executed, under seal, on the day and year first

Signed, sealed and BENCHMARK/ATLANTIC CO. INC.. delivered in the a South Carolina corporation presence of:

Unofficial Witness ( SEAL)

Its:

Notary Public Attest: _ (SEAL)

Its:

My Commission Expires:

(NOTARIAL SEAL) [CORPORATE SEAL]

EXHIBIT 'A"

SUBMITTED PROPERTY

ALL THAT TRACT or parcel of land lying and being in GMD 216, Clarke County, Georgia, being more particularly described as follows: BEGINNING at an iron pin found at the point formed by the (being a 40 foot right-of-way) and the easterly right-of-way intersection of the easterly right-of-way line of Appleby Drive line of Carr Street (being a 40 foot right-of-way) and running thence North 36 degrees 50 minutes 24 seconds East along said 525.25 feet to an iron pin; thence leaving said easterly easterly right-of-way line of Carr Street a distance of 09 minutes 36 seconds East a distance of 198.61 feet to an iron right-of-way line of Carr Street and running South 53 degrees pin; running thence South 08 degrees 09 minutes 36 seconds East a distance of 86.82 feet to an iron pin; running thence South 36 degrees 50 minutes 24 seconds West a distance of 409.41 feet to an iron pin; running thence South 56 degrees 19 minutes 34 seconds East a distance of 20.00 feet to a point; running thence South 33 degrees 33 minutes 33 seconds West a distance Appleby Drive; running thence North 56 degrees 19 minutes of 40.00 feet to a point on said easterly right-of-way line of 34 seconds West along said easterly right-of-way line of Appleby Drive a distance of 282.69 feet to the TRUE POINT OF BEGINNING; all as more particularly shown as Phase One of plat of survey to which reference is made for all purposes, Appleby Mews Condominium, Athens, containing 3.068 acres on 1184, dated December 15, 1983, last revised March 6, 1984. prepared by Ben McLeroy, Georgia Registered Land Surveyor No.

EXHIBIT "B'

ADDITIONAL PROPERTY

ALL THAT TRACT or parcel of land lying and being in GMD 216, Clarke County, Georgia, being more particularly described as follows:

Appleby Drive (being a 40 foot right-of-way) and the easterly formed by the intersection of the easterly right-of-way line of way) and running thence South 56 degrees 19 minutes 34 seconds right-of-way line of Carr Street (being a 40 foot right-ofEast along said easterly right-of-way line of Appleby Drive a distance of 280.40 feet to the TRUE POINT OF BEGINNING; FROM THE TRUE POINT OF BEGINNING AS THUS ESTABLISHED, thence leaving said easterly right-of-way line of Appleby Drive and running of 40.066 feet to a point; running thence South 56 degrees thence North 36 degrees 50 minutes 24 seconds East a distance point; running thence North 34 degrees 50 minutes 55 seconds 19 minutes 34 seconds East a distance of 391.88 feet to a East a distance of 382.67 feet to a point; running thence South 54 degrees 53 minutes 50 seconds East a distance of 245.00 feet to a point; running thence South 30 degrees 19 minutes 0 seconds West a distance of 417.20 feet to a point on said North 56 degrees 19 minutes 34 seconds West along said easterly easterly right-of-way line of Appleby Drive; running thence the TRUE POINT OF BEGINNING; being shown as Phase I1, conright-of-way line of Appleby Drive a distance of 671.27 feet to made for all purposes prepared by Robert Burgin of taining 2.878 acres, on plat of survey to which reference is Johnny T. Johnson & Associates, Inc., for Benchmark Atlantic, which survey was based upon and derived from that certain survey for Benchmark/Atlantic by Ben McLeroy & Associates, Inc., dated February 8, 1983.

EXHIBIT "C"

UNDIVIDED INTEREST IN COMMON ELEMENTS

A one-forty-fifth (1/45th) undivided interest in the common elements, and a one-forty-fifth (1/45th) share of the common expenses, shall be allocated to each Unit made a part of the Condominium by this Declaration of Condominium.

EXHIBIT "D'

DECLARATION OF CONDOMINIUM FOR

APPLEBY MEWS CONDOMINIUM

Description of Boundaries of Units

The perimetrical or vertical boundaries of each Unit are the vertical planes of the interior surfaces of the wood framing of the walls of the Unit, whether such walls are exterior walls or walls separating the Unit from other Units or the common elements, and the vertical planes of the exterior surfaces of windows, screens and entry doors, including sliding glass doors. Such perimetrical Unit boundaries include all sheet rock, lath, wallboard, molding, tiles, wallpaper, paint, and any other material constituting any part of the interior, finished surfaces of the walis enclosing such unit, on the Unit side of said walls, with such framing being a part of the common elements, and are extended to their intersections with each other and the upper and lower horizontal boundaries. The lower horizontal boundary of each Unit is the horizontal plane of the upper surface of the concrete sub-floor (floor slab) of such Unit (in the case of a two-story Unit, the upper surface of the concrete sub-floor (floor-slab) of the first floor of such Unit), and the upper horizontal boundary of each Unit is the horizontal plane of the lower surfaces of the ceiling joists of the Unit (in the case of a two-story Unit, the lower surface of the joists which serve as ceiling joists for the upper floor of such Unit and as joists for the roof of the building), with such sub-floor and framing being a part of the common elements. The upper and lower boundaries of each Unit include the wood, dry-wall, plaster or other material forming the ceiling or floor, as may be

applicable, on the Unit side of such concrete sub-floor or framing, as the case may be, and extend to their intersections with the perimetrical boundaries of the Units. Window screens, screens on any screened porch, and all fixtures, equipment and appliances located within the boundaries of each Unit, including, without limitation, portions of the heating and air-conditioning system located without the boundaries of each Unit are deemed to be a part of each Unit; and hot water heater serving a Unit, but located outside the boundaries thereof and any portions of the heating and air-conditioning systems located without the boundaries of each Unit are deemed to be a part of each Unit; any screened porch or sunroom shown or depicted on the Plans is a part of the Unit; the

balcony, deck, patio or terrace serving a Unit is a limited common element. If any chutes, flues, ducts, conduits, wires, pipes or any other apparatus lies partially within and partially outside of the designated. boundaries of a Unit, any portions thereof which serve only that Unit shall be deemed a part of that Unit, while any portions thereof which serve more than one Unit or any portion of the common elements shall be deemed a part of the common elements. In interpreting deeds and plans, the existing physical boundaries of a Unit as originally constructed or of a Unit reconstructed in substantial accordance with the original plans thereof shall be conclusively presumed to be its boundaries rather than the metes and bounds expressed in any deed or plan, regardless of settling or lateral movement of the building in which the Unit was located, and regardless of minor variance between the boundaries shown on the plans or in a deed and those of the Unit..

EXHIBII "E" TO DECLARATION OF CONDOMINIUM

OF

AFPLEBY MEWS CONDOMINIUM

Description of Limited Common Elements

The limited common elements which are located on the Submitted Property are as follows:

1. The patio which is appurtenant to each Unit having a patio shall be a limited common element assigned to the Unit having direct access thereto; provided, however, that any fence which separates one patio from another patio shall be a limited common element assigned to both of the Units to which the patios which are separated by such fence are assigned. All of the patios located on the Submitted Property are shown and depicted on the Plans prepared by Comprehensive Architects, which Plans are more specifically identified in the Declaration.

The balcony which is appurtenant to each Unit having a balcony shall be a limited common element assigned to the Unit having direct access thereto; provided, however, that any portion of a balcony which separates one balcony from another balcony shall be a limited common element assigned to both of the Units, the balconies assigned to which are separated by such portion of such balcony. All of the balconies located on the Submitted Property are shown and depicted on the Plans prepared by Comprehensive Architects, which Plans are more specifically identified in the Declaration.

All portions of the common elements on which there is located any portion of the heating and airconditioning system exclusively serving a particular Unit or Units shall be a limited common element assigned to the Unit or Units which is or are exclusively served by such heating and air-conditioning system.

STATE OF GEORGIA

COUNTY OF CLARKE

CERTIFICATION

BEFORE me came in person, • of Comprehensive Architects who, having been duly sworn, on oath says as follows:

THAT he has visited the site at the corner of Carr Street and Appleby Drive, Athens, Clarke County'"Appleby Georgia, and viewed the property known or to be known s

Mews Condominium" and that, to the best of his knowledge, information and belief: (a) the foundation, structural members, exterior walls and roof of each structure which contain or constitute all or any part of said property are substantially complete and in place as shown on plans therefor entitled "Plans for Appleby Mews Condominium (hereinafter referred to as the "Plans"), which Plans are to be filed in the Office of the Clerk of the Superior Court of Clarke County, Georgia simultaneously with the filing of the Declaration for Appleby Mews Condominium to which this Certification shall be attached and, by reference, made a part thereof: (b) the walls, partitions, floors and ceilings, to the extent shown on said Plans as constituting or coinciding with the vertical and/or horizontal boundaries of each Unit within each such structure, are sufficiently complete and in place to clearly establish the physical boundaries of each such Unit, and that such physical boundaries are substantially as shown on said Plans, and (c) each such structure is constructed substantially in accordance with such Plans.

Sworn to and subscribed before me this day of March, 1984.

COMPREHENSIVE ARCHITECTS

Unofficial Witness

Notary Public

Commission Expiration Date:

(Notarial Seal)