Declaration
FILED IN OFFICE
Return to: CLARKE COUNTY, GEORGIA CLERK SUPERIOR COURT
Joseph B. Hutchison 02 JUN -6 PM 12: 13
3394 Lynnray Drive
Doraville, GA 30340-4418
a Yarbie Hemlice
Papati DECLARATION OF COVENANTS, CONDITIONS,
AND RESTRICTIONS FOR ST. CHARLES (SC)
THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS is made as of the date set forth on the signature page hereof by Joseph. B. Hutchison (the "Declarant").
Declarant is the owner of the real property described on Exhibit "A". This Declaration imposes upon the Properties mutually beneficial restrictions under a general plan of improvement for the benefit of the owners of each portion of the Properties and establishes a flexible and reasonable procedure for the overall development, administration, maintenance and preservation of the Properties. In furtherance of such plan, this Declaration provides for the creation of St. Charles Homeowners Association, Inc., (SCHA) to own, operate and maintain Common Areas, to administer and enforce the provisions of this Declaration and the By-Laws, and to avail the SCHA of the provisions and benefits of the Georgia Property Owners' Association Act codified at O.C.G.A. §44-3-220, et seq.
Declarant hereby declares that all of the property known as "St. Charles Phase I, described on Exhibit "A,' shall be held, sold, used and conveyed subject to the following easements, restrictions, covenants, and conditions, which shall run with the title to the real property subjected to this Declaration. This Declaration shall be binding upon all parties having any right, title, or interest in any portion of the Properties, their heirs, successors, successors-in-title, and assigns, and shall inure to the benefit of each owner of any portion of the Properties.
Declarant desires to reserve the option to subject all or part of additional property, which shall be known as St. Charles Phase II, as well as any other real property hereinafter acquired that is adjacent to the real property described in Exhibit "A" to the provisions of this Declaration.
ARTICLE 1: DEFINITIONS
The terms in this Declaration and the exhibits to this Declaration shall generally be given their natural, commonly accepted definitions except as otherwise specified. Capitalized terms shall be defined as set forth below.
1.1. "ARB": the Architectural Review Board, as described in Article 8.
1.2. "Area of Common Responsibility": The Common Area, together with those areas for which the Association has or assumes responsibility pursuant to the terms of this Declaration or other applicable covenant, contract, or agreement.
009379
E00K 2200 PAGE 008
1.3. "Articles of Incorporation" or "Articles": The Articles of Incorporation of St. Charles Homeowners Association, Inc. (SCHA), as filed with the Secretary of State of the State of Georgia.
1.4. "Association": St. Charles Homeowners Association, Inc. (SCHA), a non-profit Georgia corporation, its successors or assigns.
"Board of Directors' or "Board': The body responsible for administration of the Association, selected as provided in the By-Laws and serving as the board of directors under corporate law.
"Builder": Any Person who purchases one (1) or more Lots for the purpose of constructing improvements for later sale to consumers. Any Person occupying or leasing a Lot for residential purposes shall cease to be considered a Builder with respect to such Lot immediately upon occupancy of the Lot for residential purposes, notwithstanding that such Person originally purchased the Lot for the purpose of constructing improvements for later
1.7. "By-Laws": The By-Laws of St. Charles Homeowners Association, Inc., as they may be amended.
1.8. "Class "B'ontrol Period": The period of time during which the Class "B% Member is entitled to appoint a Majority of the members of the Board of Directors as provided in Section 3.2.
1.9. "Common Area": All real and personal property, including casements, which the Association owns, leases, or holds possessor or use rights in for the common use and enjoyment of the Owners.
1.10. "Common. Expenses": The actual and estimated expenses incurred, or anticipated to be incurred, by the Association for the general benefit of all Owners, including any reasonable reserve, as the Board may find necessary and appropriate. Common Expenses shall apply to, include those outlined in, but are not limited to those items listed in Section 5.1. Common Expenses shall not include any expenses incurred during the Class "B" Control Period for initial development, original construction, installation of infrastructure, original capital improvements, or other original construction costs unless approved by a Majority of the total Class "A" votes of the Association.
1.11. "Community-Wide Standard": The standard of conduct, maintenance, or other activity generally prevailing throughout the Properties. Such standard shall initially be established by the Declarant and may be more specifically determined by the Board of
1.12. "Days": Calendar days; provided however, if the time period by which any action required hereunder must be performed expires on a Saturday, Sunday or legal holiday, then such time period automatically shall be extended to the close of business on the next regular business day.
1.13. "Declarant": Joseph B. Hutchison, his successors, successors-in-title, or assigns.
BOOK 2200 PAGE 009
1.14. "Family": A group of natural persons related to each other by blood or legally related to each other by marriage or adoption, or a group of not more than two persons not all so related, who maintain a common household on a Lot.
1.15. "General Assessment": Assessments levied on all Lots subject to assessment under Article 7 to fund Common Expenses for the general benefit of all Lots.
1.16. "Governing Documents": The Declaration, By-Laws, Articles of Incorporation, the rules of the Association, and all additional covenants governing any portion of the Properties or any of the above, as each may be amended from time to time.
1.17. "Improvement": All structures and appurtenances thereto of every type and kind, including, but not limited to buildings, outbuildings, walkways, garages, driveways, parking areas, fences, screening walls, retaining walls, stairs, decks, landscaping, hedges, windbreaks, plantings, planted trees and shrubs, poles, signs, and exterior air conditioning
1.18. "Lot": Shall mean any plot of land located within St Charles which constitutes a single dwelling site designated on any plat of survey recorded in the Office of the Clerk of Superior Court of Athens-Clarke County, Georgia, as well as any building or any portion of any building located thereon which is intended for independent residential use.
1.19. "Majority": Those votes, Owners, Members, or other group, as the context may indicate, totaling more than fifty percent (50%) of the total eligible number.
1.20. "Master Plan": The land use plan or development plan for "St. Charles, " as such plan may be amended from time to time, which includes the property described on Exhibit "A"
1.21. "Member": A Person subject to membership in the Association pursuant to Section 3.1.
1.22. "Mortgage": A mortgage, a deed of trust, a deed to secure debt, or any other form of security instrument affecting title to any Lot.
1.23. "Mortgagee": A beneficiary or holder of a Mortgage.
1.24. "Owner": One (1) or more Persons who hold the record title to any Lot, including the Declarant and any Builders, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. If a Lot is owned by more than one (1) Person, all such Persons shall be jointly and severally obligated to perform the responsibilities of such Owner.
1.25. "Person": A natural person, a corporation, a partnership, a limited liability company, a fiduciary acting on behalf of another person or any other legal entity.
1.26. "Properties': The real property described or Exhibit "A".
1.27. "Public Records": The Clerk of the Superior Court of Athens-Clarke County, Georgia, or such other place which is designated as the official location for recording of deeds and similar documents affecting title to real estate.
BOOK 2200 PAGE 020
1.28. 'Special Assessment": Assessments levied in accordance with Section 7.4. 1.29. "Specific Assessment": Assessments levied in accordance with Section 7.5 1.30. "The Act" shall mean the Georgia Property Owners Association Act, O.C.G.A §44-3-220, et seq., as the same is or may be hereinafter amended.
ARTICLE 2: PROPERTY RIGHTS
2 Common Area. Every Owner shall have a right and non-exclusive easement of use, access, and enjoyment in and to the Common Area, which is appurtenant to and shall pass with the title to each Lot, subject to this Declaration and all other Governing Documents. Any Owner may extend his or her right of use and enjoyment to the members of his or her family, lessees, and social invitees, as applicable, subject to reasonable regulation by the Board. An Owner who leases his or her Lot shall be deemed to have assigned all such rights to the lessee of such Lot.
12.2 Condemnation. The Association shall be the sole representative with respect to condemnation proceedings concerning Common Area and shall act as attorney-in-fact for all Owner's in such matters. If any part of the Common Area shall be taken by any authority having the power of condemnation or eminent domain or shall be conveyed by the Board in lieu of and under threat of condemnation, each Owner shall be entitled to written notice of such taking or conveyance prior to disbursement of any condemnation award or proceeds of such conveyance. The award made for such taking or proceeds of such conveyance shall be payable to the Association and shall be disbursed to the Association and used for such purposes as the Board shall determine. Any distribution by the Association of an award or net funds shall be made proportionately to each Lot Owner.
I ARTICLE 3: MEMBERSHIP AND VOTING RIGHTS
3. Membership. Every Owner shall be a Member of the Association. There shall be only one (1) membership per Lot. If a Lot is owned by more than one (1) Person, all coOwners shall share the privileges of such membership, subject to reasonable Board regulation and the By-Laws. All co-Owners shall be jointly and severally obligated to perform the responsibilities of Owners. The membership rights of an Owner which is not a natural person may be exercised by any officer, director, member, manager, partner or trustee of such Owner, or by any individual designated from time to time by the Owner in a written instrument provided to the secretary of the Association.
3.2 Voting. The Association shall have two (2) classes of membership, Class "A" and ClassiỊẠạB
(a) Class "A% Class "A' embers shall be all Owners except the Class "B" Member, if any. Class "A" Members shall have one (1) equal vote for each Lot in which they hold the interest required for membership under Section 3.1; provided however, there shall be only one (1) vote per Lot and no vote shall be exercised for any property which is exempt from assessment under Section 7.9. In any situation where there is more than one (1) Owner of such Lot, the vote for such Lot shall be exercised as the co-Owners determine among themselves and advise the secretary of the Association in writing prior to the vote being taken. Absent such advice, the Lot's vote shall be suspended if more than one (1) Person seeks to exercise it.
BOOK 2209 PAGE 011
Class "B". The sole Class "B" Member shall be the Declarant. The rights of the Class "B" Member, including the right to approve, or withhold approval of actions proposed under this Declaration, the By-Laws and the Articles, are specified in the relevant sections of this Declaration, the By-Laws and the Articles. The Class "B" Member may appoint a Majority of the members of the Board of Directors during the Class "B" Control Period which shall continue until the first to occur of the following:
(i) When eighty percent (80%) of the total number of Lots permitted by the Master Plan for the Properties have certificates of occupancy issued thereon and have been conveyed to Persons other than Builders;
(ii) December 31, 2015; or
(iii) when, in its discretion, the Class "B" Member so determines and voluntarily relinquishes such right.
(c) Termination of Class "B" Membership. The Class "B" membership shall expire two (2) years after termination of the Class "B" Control Period. Upon termination of the Class "B% embership, the Declarant shall be a Class "A'% ember entitled to Class "A" votes for each Lot, if any, which it owns. Such Lots shall include the home at 300 Morton Road, Athens, Georgia 30605, and its surrounding property, if and when such real property is added to these Covenants and provided herein.
ARTICLE 4: RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
4.1. Functions of Association. The Association shall be the entity responsible for management, maintenance, operation and control of the Area of Common Responsibility and all improvements thereon. The Association shall be the primary entity responsible for enforcement of this Declaration and such reasonable rules regulating use of the Properties as the Board may adopt pursuant to Article 9. The Association shall also be responsible for administering and enforcing the architectural standards and controls set forth in this Declaration. The Association shall perform its functions in accordance with the Governing Documents and the laws of the State of Georgia.
4.2. Personal Property and Real Property for Common Use. The Association may acquire, hold, and dispose of tangible and intangible personal property and real property. The Declarant and its designees, with the Declarant's prior written consent, may convey to the Association improved or unimproved real estate, or interests in real estate, located within the property described in Exhibit "A", personal property and leasehold and other property interests. Such property shall be accepted by the Association and thereafter shall be maintained by the Association at its expense for the benefit of its Members. Declarant shall not be required to make any improvements whatsoever to property to be conveyed and accepted pursuant to this Section. Upon written request of Declarant, the Association shall re-convey to Declarant any unimproved portions of the Properties originally conveyed by Declarant to the Association for no consideration, to the extent the Properties were conveyed by Declarant in error or the Properties are needed by Declarant to make adjustments in property lines.
4.3. Enforcement. The Board or any committee established by the Board, with the Board's approval, may impose sanctions for violation of the Governing Documents after compliance with the notice and hearing procedures set forth in the By-Laws. Such sanctions may include, without limitation:
S
BOOK 22 UNPACE 022
| (a) imposing monetary fines which shall constitute a lien upon the Lot of the violator (in the event that any occupant, guest or invitee of a Lot violates the Governing Documents and a fine is imposed, the fine shall first be assessed against the occupant; provided however, if the fine is not paid by the occupant within the time period set by the Board, the Owner shall pay the fine upon notice from the board.):
(b) filing notices of violations in the Public Records providing record notice of any violation of the Governing Documents.
(c) suspending an Owner's right to votes:
(d) suspending any services provided by the Association to an Owner or the Owner's Lot if the Owner is more than thirty (30) Days delinquent in paying any assessment or other charge owed to the Association: and
¡(e): levying Specific Assessments to cover costs incurred in bringing a Lot into compliance
In addition, the Board may elect to enforce any provision of the Governing Documents by entering the Lot and exercising self-help (specifically including, but not limited to, the towing of vehicles that are in violation of parking rules, the removal of pets that are in violation of pet rules, or of any other violation of the Governing Documents) or by suit at law or in equity to enjoin any violation or to recover monetary damages or both without the necessity of compliance with the procedures set forth in the By-Laws.
All remedies set forth in this Declaration and the By-Laws shall be cumulative of any remedies available at law or in equity. In any action to enforce the provisions of the Governing Documents, if the Association prevails, it shall be entitled to recover all costs, including without limitation, attorneys fees and court costs, reasonably incurred in such action.
The Association shall not be obligated to take action to enforce any covenant, restriction, or rule which the Board in the exercise of its business judgment determines is, or is likely to be construed as, inconsistent with applicable law, or in any case in which the Board reasonably determines that the Association's position is not strong enough to justify taking enforcement action. Any such determination shall not be construed a waiver of the right of the Association to enforce such provision under any circumstances or prevent the Association from enforcing any other covenant, restriction or rule.
The Association, by contract or other agreement, may enforce county, city, state and federal ordinances, if applicable, and permit local and other governments to enforce ordinances on the Properties for the benefit of the Association and its Members.
4.4. Implied Rights: Board Authority. The Association may exercise any right or privilege given to it expressly by this Declaration or the By-Laws, or reasonably implied from or reasonably necessary to effectuate any such right or privilege. Except as otherwise specifically provided in this Declaration, the By-Laws, the Articles, or by law, all rights and powers of the Association may be exercised by the Board without a vote of the membership.
4.5. Indemnification. The Association shall indemnify every officer, director, ARB member and committee member against all damages, liabilities, and expenses, including attorneys fees, reasonably incurred in connection with any action, suit, or other proceeding
BOOK 2200PAGE 013
(including settlement of any suit or proceeding, if approved by the then Board of Directors) to which he or she may be a party by reason of being or having been an officer, director, or ARB or other committee member, except that such obligation to indemnify shall be limited to those actions for which liability is limited under this Section, the Articles of Incorporation and Georgia law.
The officers, directors, and ARB and other committee members shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct, or bad faith. The officers, directors and ARB and other committee members shall have no personal liability with respect to any contract or other commitment made or action taken in good faith on behalf of the Association (except to the extent that such officers, directors or ARB or other committee members may also be Members of the Association). The Association shall indemnify and forever hold each such officer, director and ARB and other committee member harmless from any and all liability to others on account of any such contract, commitment or action.
indemnification shall not be exclusive of any other rights to which any present or former officer, director, or ARB or other committee member may be entitled. The Association shall, as a Common Expense, maintain adequate general liability and officers' and directors' liability insurance to fund this obligation, if such insurance is reasonably available.
4.6. Dedication of or Grant of Easement on Common Area. The Association may dedicate or grant easements across portions of the Common Area to Athens/Clarke County, Georgia, or to any other local, state, or federal governmental or quasi-governmental entity.
4.7. Security. The Association may, but shall not be obligated to maintain or support certain activities within the Properties designed to make the Properties safer than they otherwise might be. Neither the Association, the original Declarant, nor any successor Declarant shall in any way be considered insurers or guarantors of security within the Properties, nor shall any of them be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of security measures undertaken. No representation or warranty is made that any security system or measures cannot be compromised or circumvented, nor that any such systemsior security measures undertaken will in all cases prevent loss or provide the detection or protection for which the system is designed or intended. Each Owner acknowledges, understands and covenants to inform its tenants and all occupants of its Lot that the Association, its Board of Directors and committees, Declarant, and any successor Declarant are not insurers and that each Person using the Properties assumes all risks of personal injury and loss or damage to property,
ARTICLE 5: MAINTENANCE
5.1. Association's Responsibility.
(a) The Association shall maintain and keep in good condition, order and repair the Area of Common Responsibility, which shall include, but need not be limited to:
(i) all Common Areas;
(ii) all landscaping, lighting, grass, and other flora situated upon the Common Area and Entryway structures and fences;
800K 22 06 PACE U14
* (1i1) all sidewalks installed in road right-of-ways by the Buyer/Builder of the Properties;
(iv) all walking trails, bridges, and other structures installed by the Declarant; (v) the lake known as Lake Charles and its support structure, if and when such is added to the Properties as provided for herein.
The Association may, as a Common Expense, maintain other property and improvements which it does not own, including, without limitation, property dedicated to the public, or provide maintenance or services related to such property over and above the level being provided by the property owner, if the Board of Directors determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard.
The Area of Common Responsibility shall not be reduced by amendment of this Declaration or any other means during the Class "B" Control Period except with the written consent of the Declarant.
... 1
(b) Except as otherwise specifically provided herein, all costs associated with maintenance, repair and replacement of the Area of Common Responsibility shall be a Common Expense to be allocated among all Lots as part of the General Assessment, without prejudice to the right of the Association to seek reimbursement from the owner (s) of, or other Persons responsible for, cértain portions of the Area of common Responsibility pursuant to this Declaration, any recorded covenants, or any agreements with the owners) thereof.
5.2. Owner's Responsibility. Each Owner shall maintain his or her Lot, and all structures, parking areas, sprinkler and irrigation systems, landscaping and other flora, and other improvements comprising the Lot in a manner consistent with the Community-Wide Standard and all Governing Documents, unless such maintenance responsibility is otherwise assumed by or assigned to the Association. Each Owner shall maintain the driveway and mailbox serving his or her Lot and all landscaping located in the right-of-way immediately adjacent to the Owner's Lot. In addition to any other enforcement rights, if an Owner fails properly to perform his or her maintenance responsibility, the Association may perform such maintenance responsibilities and assess all costs incurred by the Association against the Lot and the Owner in accordance with Section 8.7. The Association shall afford the Owner reasonable notice and an opportunity to cure the problem prior to entry, except when entry is required due to an emergency situation.
5.3. Standard of Performance. Unless otherwise specifically provided herein or in other instruments creating and assigning such maintenance responsibility, responsibility for maintenance shall include responsibility for repair and replacement, as necessary. All maintenance shall be performed in a manner consistent with the Community-Wide Standard and all Governing Documents. Neither the Association nor any Owner shall be liable for any damage or injury occurring on, or arising out of the condition of, property which such Person does not own except to the extent that it has been negligent in the performance of its maintenance responsibilities.
ARTICLE 6: INSURANCE AND CASUALTY LOSSES
6.1 Association Insurance.
BOOK 22 CO PAGE 013îŚ
(a) Required Coverages. The Association, acting through its Board or its duly authorized agent, shall obtain and continue in effect the following types of insurance, if reasonably available, or if not reasonably available, the most nearly equivalent coverages as are reasonably available:
(1) Blanket property insurance covering "all risks" on a "special form" basis (or comparable coverage by whatever name denominated) for all insurable improvements on the Common Area, if any, and on other portions of the Area of Common Responsibility to the extent that it has assumed responsibility for maintenance, repair and/or replacement in the event of a casualty. If such coverage is not generally available at reasonable cost, then "broad form" coverage may be substituted. The Association shall have the authority to and interest in insuring any property for which it has maintenance or repair responsibility, regardless of ownership. All property insurance policies obtained by the Association shall have policy limits sufficient to cover the full replacement cost of the insured improvements and shall have a maximum deductible of the lessor of $5,000.00 or ten percent (10%) of the face amount of the policy;
(ii) Commercial general liability insurance on all public ways located within the Properties and on the Area of Common Responsibility, insuring the Association and its Members for damage or injury caused by the negligence of the Association or any of its Members, employees, agents or contractors while acting on its behalf. If generally available at reasonable cost, the commercial general liability coverage (including primary and any umbrella coverage) shall have a limit of at least $1,000,000.00 per occurrence with respect to bodily injury, personal injury, and property damage, provided should additional coverage and higher limits be available at reasonable cost which a reasonably prudent person would obtain, the Association shall obtain such additional coverages or limits:
(iii) Workers compensation insurance and employers liability insurance, if and to the extent required by law:
(iv) Directors and officers liability coverage;
(v) Fidelity insurance covering all Persons responsible for handling Association funds in an amount determined in the Board's best business judgment but not less than an amount equal to one-sixth (1/6th) of the annual General Assessments on all Lots plus reserves on hand. Fidelity insurance policies shall contain a waiver of all defenses based upon the exclusion of Persons serving without compensation; and
(vi) Such additional insurance as the Board, in its best business judgment, determines advisable, which may include, without limitation, flood insurance. In the event that any portion of the Common Area is or shall become located in an area identified by the Federal Emergency Management Agency ('FEMA") as an area having special flood hazards, a "blanket" policy of flood insurance on the Common Area must be maintained in the amount of one hundred percent (100%) of current "replacement cost" of all effected improvements and other insurance property or the maximum limit of coverage
BOOK 2209 PAGE 016
Premiums for all insurance on the Area of Common Responsibility shall be Common Expenses and shall be included in the General Assessment. In the event of an insured loss, the deductible shall be treated as a Common Expense and assessed in the same manner as the premiums for the applicable insurance coverage. However, if the Board reasonably determines, after notice and an opportunity to be heard in accordance with the By-Laws, that the loss is the result of the negligence or willful misconduct of one (1) or more Owners, their guests, invitees, or lessees, then the Board may specifically assess the full amount of such deductible against such Owner(s) and their Lots pursuant to Section 7.5.
¡(b) Policy Requirements. The Association shall arrange for periodic reviews of the sufficiency of insurance coverage by qualified Persons.
All Association policies shall provide for a certificate of insurance to be furnished to the Association and to each Member upon request. The policies may contain a reasonable deductible and the amount thereof shall not be subtracted from the face amount of the policy in determining whether the policy limits satisfy the requirements of Section 6. 1(a).
Ại) All insurance coverage obtained by the Board shall:
(1) be written with a company authorized to do business in the State of Georgia which satisfies the requirements of the Federal National Mortgage Association, or such other secondary mortgage marker agencies or federal agencies as the Board deems appropriate; (2) be written in the name of the Association as trustee for the benefitted parties. Policies on the Common Areas shall be for the benefit of the Association and its Members;
(3) not be brought into contribution with insurance purchased by Owners, occupants, or their Mortgagees individually;
(4) include an agreed amount endorsement, if the policy contains a coinsurance clause;
(5) contain an endorsement requiring at least thirty (30) days prior written notice to the Association of any cancellation, substantial modification, or non-renewal.
¡(c) Damage and Destruction. Immediately after damage or destruction to all or any part of the property covered by insurance written in the name of the Association, the Board or its duly authorized agent shall file and adjust all insurance claims and obtain reliable and detailed estimates of the cost of repair or reconstruction. Repair or reconstruction, as used in this subsection, means repairing or restoring the property to substantially the condition in which it existed prior to the damage, allowing for changes or improvements necessitated by changes in applicable building codes.
Any damage to or destruction of the Common Area shall be repaired or reconstructed unless at least sixty-seven percent (67%) of the total Class "A" votes in the Association, and during the Class "B" Control Period the Declarant decide within sixty (60) days after the loss not to repair or reconstruct.
10
BOOK 2200 PAGE 017
If either the insurance proceeds or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not available to the Association within such sixty (60) day period, then the period shall be extended until such funds or information are available. However, such extension shall not exceed sixty (60) additional days.
No Mortgagee shall have the right to participate in the determination of whether the damage or destruction to the Common Area shall be repaired or reconstructed.
If determined in the manner described above that the damage or destruction to the Common Area shall not be repaired or reconstructed and no alternative improvements are authorized, the effected property shall be cleared of all debris and ruins and thereafter shall be maintained by the Association in a neat and attractive, landscaped condition consistent with the Community-Wide Standard.
Any insurance proceeds remaining after paying the costs of repair or reconstruction, or after such settlement as is necessary and appropriate, shall be retained by and for the benefit of the Association, as appropriate, and placed in a capital improvements account. This is a covenant for the benefit of Mortgagees and may be enforced by the Mortgagee of any effected Lot.
If insurance proceeds are insufficient to cover the costs of repair or reconstruction, the Board of Directors may, without a vote of the Members, levy special Assessments to cover the shortfall against those Owners responsible for the premiums for the applicable insurance coverage under Section 6.1(a).
6.2. Owners' Insurance. By virtue of taking a title to a Lot, each Owner covenants and agrees with all other Owners and with the Association to carry property insurance for the full replacement cost of all insurable improvements on his or her Lot, less a reasonable deductible, unless the Association carries such insurance (which they may, but are not obligated to do hereunder). If the Association assumes responsibility for obtaining any insurance coverage on behalf of Owners, the premiums for such insurance shall be levied as a Specific Assessment against the benefitted Lot and the Owner thereof pursuant to Section 7.5.
Each owner further covenants and agrees that in the event of damage to or destruction of structures on or comprising his or her Lot, the Owner shall proceed promptly to repair or to reconstruct in a manner consistent with the original construction or such other plans and specifications as are approved in accordance with Article 8. Alternatively, the Owner shall clear the Lot of all debris and ruins and maintain the Lot in a neat and attractive, landscaped condition consistent with the Community-Wide Standard. The Owner shall pay any costs which are not covered by insurance proceeds.
ARTICLE 7: ASSESSMENTS
7.1. Creation of Assessments. There are hereby created assessments for Association expenses as the Board may specifically authorize from time to time. There shall be three (3) types of assessments: (a) General Assessments to fund Common Expenses for the general benefit of all Lots; (b) Special Assessments as described in Section 7.4; and (c) Specific Assessments as described in Section 7.5. Each Owner, by accepting a deed or entering into a contract of sale for any portion of the Properties, is deemed to covenant and agree to pay these assessments.
11
BOOK 2209 PACE 018
All assessments and other charges, together with interest, late charges, costs of collection, and reasonable attorneys fees, shall be a charge and continuing lien upon each Lot against which the assessment or charge is made until paid, as more particularly provided in Section 7.6. Each such assessment or charge, together with interest, late charges, costs, and reasonable attorneys fees, also shall be the personal obligation of the Person who was the Owner of such Lot at the time the assessment arose. Upon a transfer of title to a Lot, the grantee shall be jointly and severally liable for any assessments and other charges due at the time of conveyance. However, no first Mortgagee who obtains title to a Lot by exercising the remedies provided in its Mortgage shall be liable for unpaid assessments which accrued prior to such acquisition of title.
The Association shall, upon request, furnish to any Owner liable for any type of assessment a written statement signed by an Association officer setting forth whether such assessment has been paid. Such statement shall be conclusive evidence of payment. The Association may require the advance payment of a reasonable processing fee for the issuance of such statement.
Assessments shall be paid in such manner and on such dates as the Board may establish, which may include discounts for early payment or similar time/price differentials, provided that no Mortgagee shall be required to collect assessments on behalf of the Association. The Board may require advance payment of assessments at closing of the transfer of title to a Lot and impose special requirements for Owners with a history of delinquent payment. If any Owner is delinquent in paying any assessments or other charges levied on his Lot, the Board may require any unpaid installments of all outstanding assessments to be paid in full immediately. Any assessment or installment thereof shall be considered delinquent on the fifteenth (15th) day following the due date unless otherwise specified by Board resolution.
No Owner may exempt himself or herself from liability for assessments by non-use of Common Area, abandonment of his or her Lot, or any other means. The obligation to pay assessments is a separate and independent covenant on the part of each Owner. No diminution or abatement of assessments or set-off shall be claimed or allowed for any alleged failure of the Association or Board to take some action or perform some function required of it, or for inconvenience or discomfort arising from the making of repairs or improvements, or from any other action it takes.
17.2. Declarant's Obligation for Assessments. During the Class "B" Control Period the Declarant mäy annually elect to pay either (a) an amount equal to the assessments on all of its unsold Lots, notwithstanding the commencement date set forth in Section 7.7; or (b) the difference between the amount of assessments levied on all other Lots subject to assessment and the amount of actual expenditures by the Association during the fiscal year Unless the Declarant otherwise notifies the Board in writing prior to the beginning of each fiscal year, the Declarant shall be deemed to have elected to continue paying on the same basis as during the immediately preceding fiscal year. The Declarant's obligation hereunder may be satisfied in the form of cash or by "in kind" contributions of services or materials, or by a combination of these. After termination of the Class "B" Control Period, the Declarant shall pay assessments on any unsold Lots in the same manner as any other Owner.
7.3 Compensation of General Assessments. Before the beginning of each fiscal year, the Board shall prepare a budget covering the estimated Common Expenses during the coming year, including a contribution to establish a reserve fund, shall be levied equally against all Lots subject to assessment, and the assessment rate shall be set at a level which
BOOK 2 2 0 9 PAGE 0119
is reasonably expected to produce total income for the Association equal to the total budgeted Common Expenses, including reserves. In determining the total funds to be generated through the levy of General Assessments, the Board, in its discretion, may consider other sources of funds available to the Association, including any surplus from prior years, any assessment income expected to be generated from any additional Lots reasonably anticipated to become subject to assessment during the fiscal year.
The Board shall send a copy of the budget and notice of the amount of the General Assessment to each Owner. Such budget and assessment shall become effective unless disapproved at a meeting by at least sixty-seven percent (67%) of the total Class "A" votes in the Association and, during the Class "B" Control Period, by the Declarant. There shall be no obligation to call a meeting for the purpose of considering the budget except on petition of the Members as provided for special meetings in the By-Laws, which petition must be presented to the Board within twenty (20) days after delivery of the notice of assessments. If a meeting is requested, assessments pursuant to such proposed budget shall not become effective until after such meeting is held, provided such assessments shall be retroactive to the original effective date of the budget if the budget is not disapproved at such
7.4 Special Assessments. In addition to other authorized assessments, the Association may levy Special Assessments from time to time to cover unbudgeted expenses or expenses in excess of those budgeted. Any such Special Assessment may be levied against all Lots, if such Special Assessment is for Common Expenses. Special Assessments shall be allocated equally among all Lots, subject to such Special Assessment. Any Special Assessment shall become effective upon the approval of a Majority of Members who are subject to such Special Assessment and are present, in person or by proxy, at a special meeting called for such purposes, and during the Class "B" control period, by the Declarant. During the Class "B" control period any Special Assessment shall require the written consent of the Declarant. Special Assessments shall be payable in such manner and at such times as determined by the Board, and may be payable in installments extending beyond the fiscal year in which the Special Assessment is approved.
Specific Assessments. The Association shall have the power to levy Specific Assessments against a particular Lot or Lots as follows:
to cover the costs, including overhead and administrative costs, of providing benefits, items, or services to the Lots) or occupants thereof upon request of the Owner pursuant to a menu of special services which the Board may from time to time authorize to be offered to Owners and occupants (which might include, without limitation, landscape maintenance, janitorial service, pest control, etc.), which assessments may be levied in advance of the provision of the requested benefit, item or service as a deposit against charges to be incurred by the Owner; and
(0) to cover costs incurred in bringing the Lots) into compliance with the terms of the Governing Documents, or costs incurred as a consequence of the conduct of the Owner or occupants of the Lot, their agents, contractors, employees, licensees, invitees, or guests; provided however, the Board shall give the Lot Owner prior written notice and an opportunity for a hearing, in accordance with the By-Laws, before levying any specific Assessment under this subsection (b).
7.6. Lien for Assessments. The Association shall have a lien against each Lot to secure payment of delinquent assessments and other charges, as well as interest at a rate to
13
800K 2 2 0 2 PADL 6.00
Pete
be set by the Board (subject to the maximum interest rate limitations of Georgia law), late charges in such amount as the Board may establish (subject to the limitations of Georgia law), costs of collection and reasonable attorneys fees. Such lien shall be superior to all other liens, except (a) the liens of all taxes, bonds, assessments, and other levies which by law would be superior, and (b) the lien or charge of any first Mortgage of record (meaning any recorded Mortgage with first priority over the other Mortgages) made in good faith and for value. Such lien, when delinquent, may be enforced by suit, judgment, and judicial or non-judicial foreclosure.
The Association may bid for the Lot at the foreclosure sale and acquire, hold, lease, mortgage, and convey the Lot. While a Lot is owned by the Association following foreclosure: (a) no right to vote shall be exercised on its behalf, (b) no assessment shall be levied on it; and (c) each other Lot shall be charged, in addition to its usual assessment, its pro rata share of the assessment allocated to the Lot owned by the Association. The Association may sue for unpaid assessments and other charges authorized hereunder without foreclosing or waiving the lien securing the same.
The sale or transfer of any Lot shall not effect the assessment lien or relieve such Lot from the lien for any subsequent assessments. However, the sale or transfer of any Lot pursuant to foreclosure of the first Mortgage shall extinguish the lien as to any installments of such assessments due prior to such sale or transfer. A Mortgagee or other purchaser of a Lot who obtains title pursuant to foreclosure of the Mortgage shall not be personally liable for assessments on such Lot due prior to such acquisition of title. Such unpaid assessments shall be deemed to be Common Expenses collectible from Owners of all Lots subject to assessment, including such acquirer, its successors and assigns.
All other Persons acquiring liens or encumbrances on any Lot after this Declaration has been recorded shall be deemed to consent that such liens or encumbrances shall be inferior to future liens for assessments, as provided herein, whether or not prior consent is specifically set forth in the instruments creating such liens or encumbrances.
7.7 Collection. In addition to all other remedies provided by law, the Association may enforce collection of the assessments for which a Lot Owner is liable, together with all other amounts as may be owed by such Lot Owner to the Association, as hereinafter provided
(a) In the event that any Lot Owner shall fail to pay within fifteen (15) days after the same shall be due, any amounts due and payable to the Association, such Lot Owner shall be liable for the payment of, and shall pay, in addition to the amounts so due the Association:
(i) A late charge equal to Ten ($10.00) Dollars or ten (10%) percent of the amount so due, whichever is the greater;
(ii) interest on the amount so due, and the aforesaid late charge appertaining thereto, from the date same were due and payable, at the rate of ten (10%) : percent per annum, until paid; and
(iii) the cost of collection, including court costs, the expenses of sale, any expenses required for the protection and preservation of the Lot, and reasonable attorney's fees actually incurred; and
14
BOOK 2209 PAGE 021
(iv) in the event the Association shall seek to foreclose its lien on the Lot of such owner, the fair rental value of the Lot from the time of the institution of suit until sale of the Lot at foreclosure (or until the judgment rendered in such suit is otherwise satisfied).
(b) All sums lawfully assessed by the Association against any Lot Owner, whether tor the share of the common expenses pertaining to that Lot, fines, or otherwise and all reasonable charges made to any Lot Owner or Lot for material furnished or services rendered by the Association at the Owner's request to or on behalf of the Lot Owner or Lot, shall, from the time the sums become due and payable, be the personal obligation of the Lot Owner and constitute a lien in favor
of the Association on the Lot prior and superior to all other liens whatsoever except:
(i) Liens for ad valorem taxes on the Lot;
(ii) The lien of any first priority mortgage covering the Lot and the lien of any mortgage recorded prior to the recording of the Declaration; or
(i11) The lien of any secondary purchase money mortgage covering the Lot, provided that neither the grantee nor any successor grantee of the mortgage is the seller of the Lot.
The recording of this Declaration shall constitute record notice of the existence of the lien and no further recordation of any claim of lien for assessment shall be required
(c) The rights of a Lot Owner and all persons entitled to occupy the Lot of such owner to use the Common Area shall be suspended for the period of time any amount due and owing to the Association in regard to any Lot owned by such owner shall remain unpaid; provided, however, that no such suspension shall deny any Lot Owner, or the occupants of any Lot, access to the Lot owned or occupied, nor cause any hazardous or unsanitary condition to exist.
7.8. Date of Commencement of Assessments. The obligation to pay assessments shall commence as to each Lot on the earlier of the date which the Lot is conveyed to a Person other than a Builder or Declarant or occupied by any Person. The first annual General Assessment levied on each Lot shall be paid, as applicable (i) at the closing of the sale to a Person other than a Builder or Declarant, or (ii) immediately upon demand by the Association based on the date of occupancy of the Lot for residential purposes. Notwithstanding anything contained herein to the contrary, a Builder holding any Lot for one (1) year after purchase shall be obligated to pay the annual assessment for such Lot, commencing with the first day of the month after the first anniversary of the Builder's
The first annual General Assessment shall be adjusted according to the number of months remaining in the fiscal year at the time assessments commence on the Lot.
7.9. Failure to Assess. If a proposed budget is disapproved or if the Board fails to establish assessment amounts or rates or to deliver or mail each Owner an assessment notice shall not be deemed a waiver, modification, or a release of any Owner from the obligation to pay assessments. In such event, each Owner shall continue to pay General Assessments on the same basis as during the last year for which an assessment was made, if any, until a
15
BOOK 2203 PAGE 022
new assessment is levied, at which time the Association may retroactively assess any shortfalls in collections.
7.10. Exempt Property. The following property shall be exempt from payment of General Assessments and Special Assessments:
|(a) All Common Area to include Lake Charles; and
¡(b) Any property dedicated to and accepted by any governmental authority or public utility
7.11. Fee for Statements of Amounts Due. The Association may require the payment of a fee, not to exceed Ten ($10.00) Dollars as a prerequisite to its issuance of any statement pursuant to the Act or this Declaration.
17.12. Capitalization of Association. Upon acquisition of record title to a Lot by the first Owner thereof other than the Declarant or a Builder or upon occupancy of a Lot, a contribution shall be made by the purchaser or occupant to the working capital of the Association. The amount of such contribution shall be equal to Two Hundred and 00/100 Dollars ($200.00). This amount shall be in addition to, not in lieu of, the annual General Assessment and shall not be considered an advance payment of such assessment. This amount shall be collected and disbursed to the Association at closing of the purchase and sale of the Lot to the first Owner, or if the obligation to make the capital contribution arises by virtue of occupancy of a Lot by a Person, the capital contribution shall be paid immediately upon demand by the Association. Capital contributions shall be used by the Association in covering operating expenses and other expenses incurred by the Association pursuant to the Goveming Documents. Dues in the amount of fifteen dollars ($15.00) a month shall be paid to the Association by the first Lot Owner thereof, other than the Declarant or Builder, or upon occupancy of a Lot. This amount may be changed as deemed necessary by the Declarant or Association.
ARTICLE 8: ARCHITECTURAL RESTRICTIONS AND STANDARDS 8.1 General. No exterior structure or improvement shall be placed, erected installed or made upon any Lot or adjacent to any Lot where the purpose of the structure is to service such Lot except in compliance with this Article, and with the prior written approval of the Declarant or the ARB.
(a) Refusal or approval of plans, specifications, builder, or location may be based upon any grounds including purely aesthetic considerations, which in the sole and uncontrolled discretion of the Declarant or his designated representative shall be deemed sufficient.
(b) Any Builder, prior to performing any work on the Property, must be approved by the Declarant or the ARB. No person, firm, or entity shall be approved as a Builder unless such person, firm or entity obtains his income primarily from construction of the type which Builder is to perform upon the Property. Unless approved by Declarant or the ARB, no Owner will be permitted to act as his own Builder or contractor, for the exterior of any structure.
This Article shall not apply to the activities of the Declarant, nor to improvements to the Common Area by or on behalf of the Association. This Article may not be amended during the Class "B" Control Period without the Declarant's written consent.
16
BOOK 2209 PAGE 023
8.2 Architectural Review. Responsibility for review of all applications for construction and modifications under this Article shall be handled by the ARB, the members of which need not be Members of the Association or representatives of Members, and may, but need not, include architects, landscape architects, engineers or similar professionals, whose compensation, if any, shall be established from time to time by the ARB. The ARB
for review of applications hereunder and may require such fees to be paid in full prior to review of any application. Such fees may include the reasonable costs incurred by the ARB in having any application reviewed by architects, engineers or
other professionals. The number of members of the ARB shall be set by the Board.
The ARB shall have exclusive jurisdiction over all construction on any portion of the Properties. Until one hundred percent (100%) of the Lots have certificates of occupancy issued by the building department of Athens-Clarke County (ACC), Georgia, the Declarant shall have the right to appoint all members of the ARB. Thereafter the Board shall appoint the members of the ARB, who shall thereafter serve and may be removed in the Board's discretion.
8.3. Procedures. Plans and specifications showing the nature, kind, color, size, materials, and location of all proposed structures and improvements shall be submitted to the ARB for review. In addition, information concerning irrigation systems, drainage, lighting, landscaping and other features of proposed construction shall be submitted as applicable and as required by the ARB. In reviewing each submission, the ARB may consider the quality of workmanship and design, harmony of external design with existing structures, and location in relation to surrounding structures, topography, and finish grade clevation, among other considerations. Decisions may be based solely on aesthetic considerations. Each Owner acknowledges that opinions on aesthetic matters are subjective and may vary over time.
In the event that the ARB fails to approve or to disapprove any application within thirty (30) days after submission of all information and materials reasonably requested, the application shall be deemed approved.
8.4. Specific Guidelines and Restrictions.
(a) Exterior Structures and Improvements. Exterior structures and improvements shall include, but shall not be limited to, staking, clearing, excavation, grading and other site work; initial construction of any dwelling or accessory building; exterior alteration of existing improvements; installation or replacement of mailboxes; swing sets and similar sports and play equipment; garbage cans; wood piles; swimming pools; gazebos or playhouses; hot tubs; wells; hedges, walls, dog runs, animal pens, or fences of any kind, including invisible fences, artificial vegetation or sculpture; and planting or removal of landscaping materials. Notwithstanding the foregoing, the Declarant and the Association shall regulate antennas, satellite dishes, or any other apparatus for the transmission or reception of television, radio, satellite or other signals of any kind only in strict compliance with all federal laws and regulations.
(b) Compliance. In addition to the foregoing activities requiring prior approval, the following items are strictly regulated, and the Association shall have the right, in its sole discretion, to prohibit or restrict these items within the Properties. Each Owner must strictly comply with the terms of this Section unless approval or a waiver in writing is obtained.
BOOK 2 0 3 PAGE 024
(c) 'Antennas. No Owner shall erect, use, or maintain any outdoor antenna, satellite dishes, or any other device for the transmission or reception of television signals, radio signals, or any form of electromagnetic radiation, whether attached to a building or structure or otherwise without the prior written consent of the Declarant or the ARB. However, Declarant and the Association shall have the right to erect and maintain such devices or authorize the erection and maintenance of such devices. Each owner acknowledges that this provision benefits all Owners (d) Building Location. No building shall be located nearer to the street line than indicated by the building lines shown on the plat, nor nearer to a side Lot than twenty (20) feet. For the purpose of this covenant, eaves, steps and open porches not covered by a roof structure shall not be considered as a part of a building, provided, however, that this shall not be construed to permit any portion of the building or construction on any Lot to encroach upon another Lot. Nothing shall be erected, placed or altered on any Lot nearer to any street than any building set back line. However, nothing in this paragraph shall be interpreted to prevent a variance being granted by the appropriate governing authority, which might reduce the above building lines to a distance less than that referred to above. So long as any the above set back lines, then it will be held to be in compliance with the terms of these dwelling meets the lesser of any variance granted by any appropriate governing authority or protective covenants.
(e) Land Use and Building Type. No Lot shall be used except for single-family residential purposes. No temporary house, mobile home, recreational vehicle (R.V.), shack or tent shall be erected on said Lots; and no Lot may be used for a church, school or kindergarten unless prior approval by the Declarant or his designated representative has been
Neither the Declarant nor his successors and assigns will approve additional buildings for storage on said Lots. No building shall be erected, altered, placed or permitted to remain on any Lot other than one detached single family dwelling not to exceed three stories in height with a private attached garage, with garage doors installed and maintained,
Said garages shall not be enclosed by any owner for the purpose of creating additional floor space designated primarily for residential purposes as opposed to the parking of cars No garage may have its opening facing any street within the "Saint Charles" subdivision without Declarant's or ARB's approval.
Mailbox Standards. The Declarant or ARB shall have the right to approve the location of all mailboxes. All dwellings within the Properties shall have standard mailboxes of cast iron construction, which match in style and shape, and conform to postal regulations and the guidelines for such mailboxes adopted by the Declarant or ARB. By accepting a deed to a Lot, each Owner agrees that the Declarant or ARB may remove any non-approved mailbox and that all costs for same shall be paid by Owner of such Lot, and all claims for damages caused by the Declarant or ARB are waived. Declarant or ARB shall furnish a
(g) Sidewalks. Sidewalks shall be installed across the front of each Lot from property pin to property pin and shall be designed and constructed to interconnect with sidewalks on adjoining lots. Sidewalks shall be a minimum of five (5) feet wide and four (4) inches deep and shall comply with Athens-Clarke County (ACC) guidelines. It shall be placed two. (2) feet off of the back of the curb line, shall run the entire front width of each respective Lot, and shall smoothly transition into each Lot's driveway where placed. In order to assure compliance with this provision, the Lot owner shall deposit the sum of $1500 with the
18
BOOK 2203 PAGE 025
Declarant or Association at the time of closing the purchase of a Lot. Said $1500 shall be held in escrow until completion of the sidewalk. Should the sidewalk not be completed within the time specified in Article 8, Section (g) (vii) herein, the Declarant or Association shall give written notice to the Lot Owner to complete construction of the sidewalk within thirty (30) days. If construction of the sidewalk is not completed within said 30 day period, the Declarant or the Association may, but is not required to, expend said $1500 to construct the sidewalk. Should the cost of construction of the sidewalk exceed the $1500 deposited hereunder, said excess funds necessary to complete the construction of the sidewalk shall be levied as a special assessment against the Lot Owner and Lot. Sidewalks shall join the street at intersections, and shall provide a tapered smooth transition from sidewalk level to street level in order to accommodate handicap and/or wheel chair access as outlined in ACC Guidelines.
(h) Size and Quality. No dwelling shall be permitted in which the floor area of a onestory structure, exclusive of open porches and garages, is less than two thousand (2,000) square feet. No dwelling shall be permitted in which the floor area of a two-story structure, exclusive of open porches and garages, is less than two thousand four hundred (2,400) square feet. Dwellings erected on any Lot shall have not less than the number of square feet of floor space specified in the subdivision regulations as promulgated by the appropriate county officials if said regulations provide for larger square footage requirements, with ceiling height not less than eight (8) feet and with all enclosed applicable areas heated and air conditioned. This floor space requirement shall be exclusive of any space in garages and finished basements. Unless otherwise approved by the Declarant or the ARB, the facade of all buildings shall be four (4) sides of brick, stack rock, stone or a combination thereof. Concrete siding products and real stucco (no synthetic) may, if approved, be considered for use as accents, architectural enhancements, details, and/or trim. The fascia, soffit, and
(i) Exposed concrete block or poured concrete foundations and site retaining walls must be covered with stone or brick to complement the house materials.
(ii) Sheet metal and PVC work such as roof caps, flashings, plumbing vents, and chimney caps must be painted to match the roof colors. Gutters and downspouts must be painted approved colors.
(iii) Roof stacks and plumbing vents must be placed on the rear slopes of roofs. (iv) Chimneys framed to receive prefabricated fireplaces and flues must not appear cantilevered from the Home. They must be continuous to finish grade.
The roof pitch of all residences shall be a minimum of 8/12 unless otherwise approved by the Declarant or the ARB.
(vi) Driveways shall be a minimum of 12 feet in width and constructed only of materials approved in writing by the Declarant or the ARB, and any culverts, pipes or conduits for water placed in or under driveways shall be covered at points of protrusion from driveways or the ground with materials approved by the Declarant or the ARB.
(vii) The exterior of all residences and other structures must be completed within nine (9) months after commencement of construction and the landscaping on such Lots must be completed within one hundred twenty (120)
B00K 2209 PAGE 026
* days thereafter, except, in each case, where, in the sole discretion of the Declarant or the ARB such completion is not possible or would result in greater hardship to the Owner or Builder due to strike, fire, national emergency or natural calamity. All front yards shall be sodded with Bermuda, Centipede, or Myers Zoysia grass. Fescue grass shall not be permitted. Any other grasses must be requested in writing and receive written approval from the Declarant or the ARB.
(viii) All electrical service, cable television and telephone lines shall be placed underground, and no exterior pole, tower, antenna or other device for the transmission or reception of television signals, radio signals or any other form of electromagnetic radiation, or for any other purpose, shall be erected, placed or maintained on any Lot except as may be constructed by the Declarant or approved in writing by the ARB. Further, the design, type, location, size, color, and intensity of all exterior lights shall be subject to control by the Declarant or the ARB and only such exterior lighting as shall have been approved in writing by the Declarant or the ARB shall be installed or used on any Lot. (ix) All exterior lighting shall be a low-level, non-glare type and located to cause minimum visual impact to adjacent properties and streets. Exterior lighting visible from the street shall not be permitted except for: (1) approved lighting as originally installed on a Lot; (2) one (1) approved decorative post light; (3) pathway lighting; (4) seasonal decorative lights during the usual and common season; or (5) front house illumination.
(x) Mechanical equipment (other than heating or air conditioning equipment), shall be installed only within the dwelling or buried. Heating and air conditioning equipment shall be installed in such location as will, to the Ịaximum extent possible, not be readily visible to the view of neighboring Lots, streets and property located adjacent to the Community. No outdoor clothes lines shall be allowed in the Community.
(xi) Landscaping shall relate to the existing terrain and natural features of the Lot; utilizing plant materials native to the Southeastern United States. The amount and character of the landscaping must conform to the precedent set in the surrounding community. The preferred landscape bed edging is a neat four (4)- six (6) inch deep trench.
Other edging, if used, should be flush with the ground. No edging material should be visible above grade. All mulched landscape beds should be covered with natural pine-straw or chopped pine bark mulch.
(xii) Exterior hot tubs must be screened from adjacent properties and streets. All pump, filter, etc. equipment for spas must be sited where it will not cause a nuisance to neighbors and must be screened from view.
Swimming Pools. All swimming pools must fit naturally into the topography of the proposed Lot and be located to provide minimal visual impact to surrounding properties and streets. Swimming pools must be constructed below ground level with the same setback requirements as dwellings and other improvements. Only "Gunite" type pools are allowed. All pool equipment, including but not limited to, pumps and filters must be sited where it
20
B00K 2209 PAGE 023
will not cause a nuisance to neighbors and must be screened from view. A fence a maximum of six (6) feet in height and capable of being locked shall surround all swimming pools.
(i) Temporary or Detached Structures. No structure of an accessory or temporary character, barn, camper, garage, mobile home, recreational vehicle, shack, storage buildings, tent, trailer home, travel trailer, or other outbuildings shall be erected or located on any lot as a residence either temporarily or permanently except as may be approved by the Declarant or the Association. This restriction shall not apply to shelters used by contractors during the construction of any residence. The Association may permit construction trailers during initial construction, provided that all such construction trailers must be removed prior to completion of final construction of all Lots in Phase I and Phase II. Freestanding play houses, tree-houses and detached storage buildings are not allowed.
(k) Tennis Courts. Tennis courts will be permitted only where they will fit naturally onto the topography of the proposed Lot and located to provide minimal visual impact to surrounding properties. Chain link fencing for courts must have a black or dark green vinyl coating. Lighting for tennis courts will not be allowed.
(1) Tree Remova. Unless located within ten (10) feet of an approved building site, no trees, shrubs, bushes or other vegetation having a trunk diameter of six (6) inches or more at a point of two (2) feet above ground level may be cut, pruned, mutilated or destroyed at any time without the prior written approval of the Declarant or the ARB.
However, dead or diseased trees, shrubs, bushes or other vegetation shall be cut and removed promptly from any Lot by the Owner thereof after such dead or diseased condition is first brought to the attention of the Declarant or the ARB and permission for such cutting and removal has been obtained. The Declarant or the ARB may adopt or impose requirements for, or condition approval of, tree removal upon the replacement of any tree removed.
No Waiver of Future Approvals. Approval of proposals, plans and specifications, or drawings for any work done or proposed, or in connection with any other matter requiring approval, shall not be deemed to constitute a waiver of the right to withhold approval as to any similar proposals, plans and specifications, drawings, or other matters subsequently or additionally submitted for approval.
8.6. Limitation of Liability. The standards and procedures established pursuant to this Article are intended to provide a mechanism for maintaining and enhancing the overall aesthetics of the Properties only, and shall not create any duty to any Person. Review and approval of any application pursuant to this Article is made on the basis of aesthetic considerations only and neither the Declarant, the Association nor the ARB shall bear any responsibility for ensuring the structural integrity or soundness of approved construction or modifications, the adequacy of soils or drainage, nor for ensuring compliance with building codes and other governmental requirements. Neither the Declarant, the Association, the Board nor ARB shall be held liable for any injury, damages, or loss arising out of the manner or quality of approved construction or modifications to any Lot.
8.7. Enforcement. The Declarant or the ARB shall have the right, during reasonable hours and after reasonable notice, to enter upon any Lot to inspect for the purpose of ascertaining whether any structure or improvement is in violation of this Article. Any structure, improvement or landscaping placed or made in Violation of this Article shall be deemed to be nonconforming. Upon written request from the ARB, Owners shall, at their
BOOK 2 20 8 PAGE 028
own cost and expense, remove such structure or improvement and restore the property to substantially the same condition as existed prior to the nonconforming work. Should an Owner fail to remove and restore as required, the ARB shall have the right to enter the property, remove the violation, and restore the property to substantially the same condition as previously existed. Entry for such purposes and in compliance with this Section shall not constitute a trespass. In addition, the Board may enforce the decisions of the ARB by any means of enforcement described in Section 4.3. All costs, together with the interest at the maximum rate then allowed by law, may be assessed against the benefited Lot and collected as a Specific Assessment.
ARTICLE 9: USE RESTRICTIONS
9.1: General. This Article sets out certain use restrictions which must be complied with by all Owners and occupants of any Lot. The Properties shall be used only for singlefamily residential, recreational, and related purposes (which may include, without limitation, model homes, sales offices for Builders, an information center and/or a sales office for any real estate broker retained by the Declarant to assist in the sale of property described on Exhibit "A", business offices for the Declarant or related parking facilities) consistent with this Declaration.
Rules and Regulations. In addition to the use restrictions set forth in this Article, the Association Board may, from time to time, without consent of the Members, promulgate, modify, or delete rules and regulations applicable to the Properties. Such rules shall be distributed to all Owners and occupants prior to the date that they are to become effective and shall thereafter be binding upon all Owners and occupants until and unless overruled, canceled, or modified in a regular or special meeting by a Majority of the Members, and, during the Class "B" Conttol Period, the written consent of the Declarant.
9.3. Occupants Bound. All provisions of the Declaration, By-Laws, and of any rules and regulations, use restrictions governing the conduct of Owners and establishing sanctions against Owners shall also apply to all occupants even though occupants are not specifically mentioned
9.4. Animals and Pets. No animals, livestock, or poultry of any kind may be raised, bred, kept; or permitted on any Lot, with the exception of dogs, cats, or other usual and common household pets in reasonable number, as determined by the Board. No animals shall be kept, bred or maintained for commercial purposes without prior written Board approval. 'All pets shall be reasonably controlled and not allowed to roam free by the owner whenever outside a Lot and shall be kept in such a manner as to not become a nuisance by barking or other acts. The owners of the pet shall be responsible for all of the pet's actions Dogs which are household pets shall at all times, whenever they are outside a dwelling, be confined within a pen or on a leash. Dog house exterior colors and materials must relate to the exterior of the house. The structure should be screened from any view from surrounding roads, and be discreetly located so as to not cause a nuisance to neighbors. Fenced "dog
If, in the sole opinion of the Board, any animal becomes dangerous or an annoyance or nuisance in the Properties or to nearby property or destructive of wildlife, such animal shall be removed from the Properties. By way of explanation and not limitation, this Section may be enforced by exercising self-help rights provided in Section 4.3.
22
BOOK 2209 PAGE 029
9.5. Business and Residential Use. All Lots shall be used for residential purposes of a single family and for ancillary business or home office uses. A business or home office use shall be considered ancillary so long as: (a) the existence or operation of the activity is not apparent or detectable by sight, sound, or smell from outside the Lot; (b) the activity conforms to all zoning requirements for the Properties; (c) the activity does not involve regular visitation of the Lot by clients, customers, suppliers, or other invitees or door-to-door solicitation of residents of the Properties; (d) the activity does not increase traffic or include frequent deliveries within the Properties: and (e) the activity is consistent with the residential character of the Properties and does not constitute a nuisance, or a hazardous or offensive use, or threaten the security or safety of other residents of the Properties, as may be determined in the sole discretion of the Board. Provided, however, nothing herein shall prevent the Declarant from using all or any part of the Property owned by him for the purpose of carrying on business related to the ownership, development, sale and management of the Property.
The leasing of a Lot shall not be considered a business or trade within the meaning of this Section. This Section shall not apply to any activity conducted by the Declarant or a Builder approved by the Declarant with respect to its ownership, development, sale, and management of the Properties or its use of any Lots which it owns within the Properties.
9.6. Combustible Liquid. There shall be no storage of gasoline, propane, heating or other fuels, except for a reasonable amount of fuel that may be stored in containers appropriate for such purpose on each Lot for emergency purposes and operation of lawn mowers and similar tools or equipment and except as may be approved in writing by the ARB. The Association shall be permitted to store fuel for operation of maintenance vehicles, generators and similar equipment.
9.7. Drainage and Grading.
(a) Catch basins and drainage areas are for the purpose of natural flow of water only. No improvements, obstructions or debris shall be placed in these areas. No Owner or occupant may obstruct or re-channel the drainage flows after location and installation of drainage swales, storm sewers, or storm drains.
(b) Each Owner shall be responsible for maintaining all drainage areas located on its Lot. Required maintenance shall include, but not be limited to, maintaining ground cover in drainage areas and removing any accumulated debris from catch basins and drainage areas,
(c) Each Owner shall be responsible for controlling the natural and man-made water flow from its Lot. No Owner shall be entitled to overburden the drainage areas or drainage system within any portion of the Properties with excessive water flow from its Lot. Owners shall be responsible for all remedial acts necessary to cure any unreasonable drainage flows from Lots, Neither the Association nor the Declarant bears any responsibility for remedial actions to any Lot.
(d) No Person shall alter the grading of any Lot without prior approval pursuant to Article 9 of this Declaration. The Declarant hereby reserves for itself and the Association a perpetual easement across the Properties for the purpose of altering drainage and water flow. The exercise of such an easement shall not materially diminish the value of or unreasonably interfere with the use of any Lot without the Owner's consent.
23
B00K 2209 PAGE 030
(e) All Persons shall comply with any and all applicable city and county erosion control ordinances in construction of improvements on any Lot and in conducting any activity within non-disturbance buffer zones.
9.8. Fences and Clotheslines. No fence or wall of any type will be permitted unless prior approval has been obtained from the Declarant or the ARB. Where approved for landscaping necessity only ornamental fences and walls conforming architecturally to the principal dwelling on said Lot shall be constructed in the front yard. Small diameter open mesh wire fences shall not be constructed forward of the front edge of the home or in the front yard.
Fences for rear yards may consist of a cedar shadow box design and may be a maximum of six (6) feet in height. Under no circumstances shall silver or metal colored chain link fence be constructed on any Lot. Vertical supports for wood decks must be a minimum 6" x 6" wood post or metal poles boxed in as to appear to be a 6" × 6" wood post. All playground equipment, doghouses, and garbage receptacles shall not be exposed to view from the street.: Except for compressors for air conditioning systems, which must be screened by shrubbery, approved walls or fencing, or other similar devices, no heating or other mechanical equipment, and no fuel or water tanks or similar storage receptacles may be exposed to view from the street. Such equipment and receptacles may be installed only within the main dwelling, or behind an approved screen or buried underground. Clotheslines will not be permitted
99. Flags. The flags of The United States of America and The State of Georgia may be properly displayed from the home. Other acceptable flags, banners, balloons, pennants, and/or ribbons may be displayed to public view provided prior acceptability and approval has been obtained, and for such time periods as established, from the Declarant, or the Association. No flag pole shall be constructed any nearer to the street than the rear of the home.
9.10. Garbage Cans, Woodpiles, Dumping, Materials Storage, Etc. All garbage cans, woodpiles, etc. shall be located or screened so as to be concealed from view of neighboring Lots, streets, and property. All garbage, rubbish, and trash shall be regularly removed and shall not be allowed to accumulate. There shall be no dumping of grass clippings, leaves or other debris; rubbish, trash or garbage; petroleum products, fertilizers, or other potentially hazardous or toxic substances in any drainage ditch within the Properties, except that fertilizers may be applied to landscaping on Lots provided care is taken to minimize runoff No lumber, metals, bulk materials, refuse, trash or other similar materials shall be kept, stored, or allowed to accumulate outside the buildings on any Lot, except during the initial construction period of the improvements to the Lot.
9.11. Hunting and Guns. There shall be no hunting, and the discharge of firearms on the Lots is prohibited. The term "firearms" includes without limitation "B-B" guns, pellet guns, and firearms of all types. The Board may impose fines and exercise other enforcement remedies as set forth in this Declaration, but shall have no obligation to exercise self-help to prevent or stop any such discharge.
9.12. Lake Charles. The lake shall be a common area for the use, benefit, and enjoyment of all Lot Owners. No motorized water-craft of any nature shall be allowed,on or in the lake. No Swimming shall be allowed in Lake Charles.
BOOK 2200 PAGE 031
9.13. Leasing. Lots may be leased for single-family residential purposes only. All leases shall require, without limitation, that the tenant acknowledge receipt of a copy of the Declaration, By-Laws, use restrictions, and rules and regulations of the Association. The lease shall also obligate the tenant to comply with the foregoing.
9.14. Maintenance and Unkempt Conditions. The premises to which these covenants apply or structures to be constructed thereon shall not be allowed to deteriorate in appearance to the detriment of the surrounding property. Lawns and shrubbery along with suitable ground cover must be installed around all houses and shall be properly cared for and all buildings shall be, where required, painted at proper and necessary intervals. The pursuit of hobbies or other activities of any nature, which might tend to cause disorderly, unsightly, or unkempt conditions, shall not be pursued or undertaken in any part of the Community.
9.15. Nuisance. No Lot or parcel of land shall be used as a dumping ground for rubbish, trash or garbage; nor shall any Lot or parcel be used for keeping or breeding livestock animals or poultry of any kind, except that household pets may be kept, provided they are not kept for breeding or maintained for any commercial purpose. containers shall be enclosed. Further, it shall be the responsibility of each Owner and
of any property or thing that will cause such Lot to appear to be in an unclean or untidy condition or that will be obnoxious to the eye; nor shall any substance, thing, or material be kept that will emit foul or obnoxious odors or that will cause any noise or other condition that will or might disturb the peace, quiet, safety, comfort, or serenity of the occupants of surrounding Lots. No noxious or offensive activity shall be carried on within the Lots, nor shall anything be done tending to cause embarrassment, discomfort, annoyance, or nuisance to any Person using any Lot, the Common Area, and/or Lake Charles. There shall not be maintained any plants or animals or device or thing of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or destroy the enjoyment of the Lots, Common Area, and/or Lake Charles.
Without limiting the generality of the foregoing, no speaker, horn, whistle, siren, bell, amplifier or other sound device, except such devices as may be used exclusively for security purposes or as approved by the ARB, shall be located, installed or maintained upon the exterior of any Lot unless required by law.
9.16. Occupancy of Unfinished Lots. No dwelling erected upon any Lot shall be occupied in any manner before commencement of construction, while in the course of construction, nor at any time prior to the dwelling being fully completed, and a certificate of occupancy has been issued by Athens-Clarke County (ACC).
9.17. Oil and Mining Operations. No oil drilling, oil development operations, oil refining, quarrying or mining operations of any kind shall be permitted upon or in any Lot, nor shall oil wells, tanks, tunnels, mineral excavation or shafts be permitted upon any Lot. No derrick or other structure designed for use in boring for oil or natural gas shall be erected, maintained or permitted upon any Lot.
9.18. Signs. Except as provided herein, no sign of any kind shall be erected by an Owner or occupant. Owners or occupants may erect or place on a Lot (a) such signs as may be required by legal proceedings; (b) one (1) "For Rent" or "For Sale" sign not to exceed two (2) feet by three (3) feet on any Lot being offered for sale or for lease; and (c) one (1)
political campaign sign not to exceed two (2) feet by three (3) feet for such time periods as established by the Association.
9.19. Subdivision of Lot. No Lot shall be subdivided or its boundary lines changed after a subdivision plat including such Lot has been approved and filed in the real estate records of without the Declarant's prior written consent. Declarant, however, hereby expressly reserves the right to re-plat any Lot or Lots which it or any Builder owns, with the written prior consent of the owner of the Lot or Lots affected. Any such division, boundary line change, or re-platting shall not be in violation of the applicable subdivision and zoning regulations, if any.
9.20. Vehicles. No lot shall be used for a parking lot or storage for hot rods, junk cars, racing cars, tractors, trailer-type trucks, trailer buses, or other commercial or industrial vehicles. Further, no vehicle of any type shall remain parked on the street overnight without approval of the Declarant or the Association.
Automobiles of any nature whatsoever shall be parked only in the garages or on the driveways serving the Lots. No automobile or motorized vehicle of any nature may be left upon any portion of the Lots, except in a garage, if it is unlicensed or if it is in a condition such that it is incapable of being operated upon the public highways. Such vehicle shall be considered a nuisance and may be removed from the Lots.
(b) Recreational vehicles or other recreational equipment shall be parked only to the rear of residences or in enclosed garages in the garages serving the Lots so as not to be visible from the road. The term "recreational vehicles," as used herein, shall include, without limitation, motor homes, mobile homes, boats, "jet skis" or other watercraft, trailers, other towed vehicles, motorcycles, mini-bikes, scooters, go-carts, golf carts, campers, buses, commercial trucks and commercial vans. Any recreational vehicle parked or stored in violation of this provision in excess of seven (7) days during any calendar days shall be considered a nuisance and may be removed from the Properties.
(c) Service and delivery vehicles may be parked in the Properties during daylight hours for such periods of time as are reasonably necessary to provide service or to make a delivery within the Properties.
(d) All vehicles shall be subject to such reasonable rules and regulations as the Board of Directors may adopt.
This Section shall not apply to any development, construction or sales activities conducted or permitted by the Declarant.
9.21. Walking Trails Walking trails are a common area for the use, benefit, and enjoyment of all Lot Owners. No motorized vehicles of any nature shall be allowed on the walking trails.
ARTICLE 10: EASEMENTS
Declarant reserves, creates, establishes, promulgates, and declares the non-exclusive, perpetual easements set forth herein for the enjoyment of the Declarant, the Association, the Members and the Owners.
26
BOOK 2209 PAGE 033
Easements of Encroachment. Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, reciprocal, appurtenant easements of encroachment, and for maintenance and use of any permitted encroachment, between adjacent Lots, and between each Lot and any adjacent Common Area, due to the unintentional placement or settling or shifting of the improvements constructed, reconstructed, or altered thereon (in accordance with the terms of these restrictions) to a distance of not more than three (3) feet, as measured from any point on the common boundary along a line perpendicular to such boundary. However, in no event shall an easement for encroachment exist if such encroachment occurred due to willful and knowing conduct on the part of, or with the knowledge and consent of, the Person claiming the benefit of such easement.
10.2. Easements for Utilities. Etc.
(a) Declarantreserves, creates, establishes, promulgates and declares non-exclusive, perpetual, reciprocal, appurtenant easements, for itself during the Class Bi Control Period, for the Association, and the designees of each (which may include, without limitation, any governmental or quasi-governmental entity and any utility company) perpetual nonexclusive easements upon, across, over, and under all of the Properties to the extent reasonably necessary for the purpose of installing, constructing, monitoring, replacing, repairing, maintaining, operating and removing cable television systems, master television antenna systems, and other devices for sending or receiving data and/or other electronic signals; security and similar systems; roads, walkways, pathways and trails; irrigation, and drainage systems; street lights and signage; and all utilities, including, but not limited to, water, sewer, telephone, gas, and electricity, and utility meters; and an easement for access of vehicular and pedestrian traffic over, across, and through the Properties, as necessary, to exercise the easements described above. Declarant may assign to the local water supplier, electric company, telephone company, and natural gas supplier the easements set forth herein across the Properties for ingress, egress, installation, reading, replacing, repairing, and maintaining utility lines, meters and boxes, as applicable.
(b) Declarant reserves, creates, establishes, promulgates and declares for itself, during the Class BY Control Period, non-exclusive, perpetual, reciprocal. appurtenant, easements, and the non-exclusive right and power to grant such specific easements as may be necessary, in the sole discretion of Declarant, in connection with the orderly development of the Properties.
(c) Any damage to a Lot resulting from the exercise of the easements described in subsections (a) and (b) of this Section shall promptly be repaired by, and at the expense of, the Person exercising the easement. The exercise of these easements shall not extend to permitting entry into the structures on any Lot, nor shall it unreasonably interfere with the use of any Lot, and except in an emergency, entry onto any Lot shall be made only after reasonable notice to the Owner or occupant.
(d) Declarant reserves unto itself the right, in the exercise of its sole discretion, upon the request of any Person holding, or intending to hold, an interest in the Properties, or at any other time, (i) to release all or any portion of the Properties from the burden, effect, and encumbrance of any of the easements granted or reserved under this Section, or (ii) to define the limits of any such easements.
10.3. Easement for Entry. Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, reciprocal easements for the Association to enter upon any
BOOK 2209 PAGE 034
Lot for emergency, security, and safety reasons. Such right may be exercised by any member of the Board, the Association's officers, committee members, agents, employees and managers of the Association, and by all police officers, fire fighters, ambulance personnel, and similar emergency personnel in the performance of their duties. Except in emergencies, entry onto a Lot shall be only during reasonable hours and after notice to and permission from the Owner. This easement includes the right to enter any Lot to cure any condition which may increase the possibility of fire, slope erosion, immediate risk of personal injury, or oilier hazard if an Owner fails or refuses to cure the condition within a reasonable time after request by the Board, but shall not authorize entry into any dwelling without permission of the Owner, except by emergency personnel acting in their official capacities. Entry under this Section shall not constitute a trespass.
10.4. Easements for Maintenance and Enforcement. Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, reciprocal easements for the Association to enter all portions of the Properties, including each Lot, to (a) perform its maintenance responsibilities under Article 5, and (b) make inspections to ensure compliance with the Governing Documents. Except in emergencies, entry onto a Lot shall be only during reasonable hours. This easement shall be exercised with a minimum of interference to the quiet enjoyment to Owners' property, and any damage shall be repaired by the Association at its expense. Entry under this Section shall not constitute a trespass.
The Association also may enter a Lot to abate or remove, using such measures as may be reasonably necessary, 'any structure, thing or condition which violates the Governing Documents. All costs incurred, including reasonable attorneys fees, may be assessed against the violator as a Specific Assessment.
10.5. Lateral Support. Declarant reserves, creates, establishes, promulgates and declares nonexclusive, perpetual, reciprocal, appurtenant easements over every portion of the Common Area, every Lot, and any improvement which contributes to the lateral support of another portion of the Common Area, or of another Lot, for lateral support, and each shall also have the right to lateral support which shall be appurtenant to and pass with title to such property.
10.6. Liability for Use of Easements. No Owner shall have a claim or cause of action against the Declarant, its successors or assigns, arising out of the exercise or non-exercise of any easement reserved hereunder or shown on any subdivision plat for the Properties, except in cases of willful or wanton misconduct.
ARTICLE 11: MORTGAGEE PROVISIONS
The following provisions are for the benefit of holders, insurers and guarantors of first Mortgages on Lots in the Properties. The provisions of this Article apply to both this Declaration and to the By-Laws, notwithstanding any other provisions contained therein.
Notices of Action. An institutional holder, insurer, or guarantor of a first Mortgage who provides a written request to the Association (such request to state tile name and address of such holder, insurer, or guarantor and the street address of the Lot to which its Mortgage relates, thereby becoming an "Eligible Holder'), will be entitled to timely written notice of:
BOOK 2200PAGE 035
(a) Any condemnation loss or any casualty loss which affects a material portion of the Properties or which affects any Lot on which there is a first Mortgage held, insured, or guaranteed by such Eligible Holder;
(b) Any delinquency in the payment of assessments or charges owed by a Lot subject to the Mortgage of such Eligible Holder, where such delinquency has continued for a period of sixty (60) days, or any other violation of the Declaration or By-Laws relating to such Lot or the Owner or Occupant which is not cured within sixty (60) days;
(c) Any lapse, cancellation, or material modification of any insurance policy maintained by the Association; or
(d) Any proposed action which would require the consent of a specified percentage of Eligible Holders pursuant to Federal Home Loan Mortgage Corporation requirements.
11.2. Special FHLMC Provision. So long as required by the Federal Home Loan Mortgage Corporation, the following provisions apply in addition to and not in lieu of the foregoing. Unless at least sixty-seven percent (67%) of the first Mortgagees or at least sixtyseven percent (67%) of the Members of the Association vote consent, the Association shall not:
(a) By act or omission seek to abandon, partition, subdivide, encumber, sell, or transfer all or any portion of the real property comprising the Common Area which the Association owns, directly or indirectly (neither the conveyance of property in accordance with Section 4.2 nor the granting of easements for utilities or other similar purposes consistent with the intended use of the Common Area shall be deemed a transfer within the meaning of this subsection);
(b) Change the method of determining the obligations, assessments, dues, or other charges which may be levied against an Owner of a Lot;
(c) By act or omission change, waive, or abandon any scheme of regulations or enforcement pertaining to architectural design, exterior appearance or maintenance of Lots and the Common Area (the issuance and amendment of architectural standards, procedures, rules and regulations, or use restrictions shall not constitute a change, waiver, or abandonment within the meaning of this provision);
(d) Fail to maintain insurance, as required by this Declaration; or
(e) Use hazard insurance proceeds for any Common Area losses for other than the repair, replacement, or reconstruction of such property.
First Mortgagees may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against the Common Area and may pay overdue premiums on casualty insurance policies or secure new casualty insurance coverage upon the lapse of an Association policy, and first Mortgagees making such payments shall be entitled to immediate reimbursement from the Association.
11.3. Other Provisions for First Lien Holders. To the extent not inconsistent with Georgia law:
29
BOOK 2209 PAGE 036
(a) Any restoration or repair of the Properties after a partial condemnation or damage due to an insurable hazard shall be performed substantially in accordance with this Declaration and the original plans and specifications unless the approval is obtained of the Eligible Holders of first Mortgages on Lots to which at least fifty-one percent (51%) of the votes of Lots subject to Mortgages held by such Eligible Holders are allocated
(b) Any election to terminate the Association after substantial destruction or a substantial taking in condemnation shall require the approval of the Eligible Holders of first Mortgages on Lots to which at least sixty-seven percent (67%) of the votes of Lots subject to Mortgages held by such Eligible Holders are allocated.
11.4. No Priority. No provision of this Declaration or the By-Laws gives or shall be construed as giving any Owner or other party priority over any rights of the first Mortgagee of any Lot in the case of distribution such Owner of insurance proceeds or condemnation awards for losses to or a taking of the Common Area.
11:5. Notice to Association. Upon request, each Owner shall be obligated to furnish Owner's Lot. to the Association the name and address of the holder of any Mortgage encumbering such
11.6. HUD/VA Approval. As long as there is a Class "B" membership, the following actions shall require the prior approval of the U.S. Department of Housing and Urban Development, so long as it is insuring the Mortgage on any Lot, or the U.S. Department of Veterans Affairs, so long as it is guaranteeing the Mortgage on any Lot: merger, consolidation or dissolution of the Association; annexation of additional property other than the Additional property, dedication, conveyance or mortgaging of Common Area except in accordance with Section 4.2; or material amendment of this Declaration, the By-Laws or the Articles
11.7. Failure of Mortgagee to Respond. Any Mortgagee who receives a written request from the Board to respond to or consent to any action shall be deemed to have approved such action if the Association does not receive a written response from the Mortgagee within thirty (30) days of the date of the Association's request, provided such request is delivered to the Mortgagee by certified or registered mail, return receipt requested.
(11.8. Construction of Article 11. Nothing contained in this Article shall be construed to reduce the percentage vote that must otherwise be obtained under the Declaration, ByLaws, or law for any of the acts set out in this Article.
ARTICLE 12: DECLARANT'S RIGHTS
12.1. Transfer or Assignment. Any or all of the special rights and obligations of the Declarant set forth in the Governing Documents may be transferred or assigned in whole or in part to the Association or to other Persons, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that which the Declarant has under this Declaration or the By-Laws. Upon any such transfer, the Declarant shall be automatically released from any and all liability a rising with respect to such transferred rights and obligations. No such transfer or assighment shall be effective unless it is in a written instrument signed by the Declarant and duly recorded in the Clerk of Superior Court of Athens-Clarke County, Georgia.
30
BOOK 220 UPAGE O37
12.2. Development and Sales. The Declarant and Builders authorized by Declarant may maintain and carry on the Properties such activities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the development of the Properties and/or the construction or sale of Lots, such as sales activities and promotional events, and restrict Members from using the Common Area during such activities. Such activities shall be conducted in a manner to minimize (to the extent reasonably possible) any substantial interference with the Members' use and enjoyment of the Common Area. The Declarant and authorized Builders shall have easements over the Properties for access, ingress and conducting such activities.
In addition, the Declarant and Builders authorized by Declarant may establish within the Properties, such facilities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the development of the Properties and/or the construction or sale of Lots, including, but not limited to, business offices, signs, model Lots, tents, sales offices, sales centers and related parking facilities. Owners may be excluded from use of all or a portion of such facilities in the Declarant's sole discretion. The Declarant and authorized Builders shall have easements over the Properties for access, ingress, and egress and use of such facilities.
Declarant may permit the use of any facilities situated on the Common Area by Persons other than Owners without the payment of any use fees.
12.3 Modifications and Revisions. These covenants and restrictions may be modified or revised solely by the Declarant, or his designated representative, until all Lots in Phase I and Phase II are sold. At which time it will be necessary to have the agreement of ninety per-cent (90%) of the lot owners in order to make any such modifications or revisions.
12.4. Improvements to Common Areas. The Declarant and its employees, agents and designees shall also have a right and casement over and upon all of the Common Area for the purpose of making, constructing and installing such improvements to the Common Area as it deems appropriate in its sole discretion.
12.5 Amendments. Notwithstanding any contrary provision of this Declaration, no amendment to or modification of any use restrictions and rules made after termination of the Class "B" Control Period shall be effective without prior notice to and the written consent of the Declarant, for so long as the Declarant or any Builder remains a Class "A' Member. This Article may not be amended without the written consent of the Declarant. The rights contained in this Article shall terminate upon the earlier of (a) twenty (20) years from the date this Declaration is recorded, or (b) upon recording by Declarant of a written statement that all sales activity has ceased.
ARTICLE 13: GENERAL PROVISIONS
13.1. Duration. Except as otherwise limited by Georgia law, this Declaration shall have perpetual duration. If Georgia law limits the period during which covenants may run with the land, then this Declaration shall automatically be extended at the expiration of such period for successive periods of twenty (20) years each. Notwithstanding the above, if any of the covenants, conditions, restrictions, or other provisions of this Declaration shall be unlawful, void, or voidable for violation of the rule against perpetuities, then such provisions shall continue only until twenty-one (21) years after the death of the last survivor of the now living descendants of Elizabeth Il, Queen of England.
31
ЕЛОК 2200 PAGE 038
13.2. Amendments
(a) By Declarant. Until termination of the Class 'B" membership, Declarant may unilaterally amend this Declaration at any time and from time to time. However, any such amendment shall not adversely affect the title to any Lot unless the Owner shall consent in writing.
(b) By Members. Except as otherwise specifically provided above and elsewhere in this Declaration, this Declaration may be amended only by the affirmative vote or written consent, or any combination thereof, of Members representing sixty-seven percent (67%) of the total Class "A" votes in the Association, including sixty-seven percent (67%) of the Class "A" votes held by Members other than the Declarant, and, during the Class "B" Membership, the written consent of the Declarant.
Notwithstanding the above, the percentage of votes necessary to amend a specific clause shall not be less than the prescribed percentage of affirmative votes required for action to be taken under that clause.
(c) Validity and Effective Date. Any amendment to the Declaration shall become effective upon recordation in the Public Records, unless a later effective date is specified in the amendment. Any procedural challenge to an amendment must be made within six (6) months of its recordation or such amendment shall be presumed to have been validly adopted. In no event shall a change of conditions or circumstances operate to amend any provisions of this Declaration. No amendment may remove, revoke, or modify any right or privilege of the Declarant or the Class "B" Member without the written consent of the Declarant, the Class "B" Member, or the assignee of such right or privilege.
If an Owner consents to any amendment to this Declaration or the By-Laws, it will be conclusively presumed that such Owner has the authority to consent, and no contrary provision in any Mortgage or contract between the Owner and a third party will affect the validity of such amendment,
13.3. Severability. Invalidation of any provision of this Declaration, in whole or in part, or any application of a provision of this Declaration by judgment or court order shall in no way affect other provisions or applications.
13.4. Litigation. Except as provided below, no judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by a vote of seventyfive percent (75%) of the total Association vote. This Section shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this Declaration (including, without limitation, the foreclosure of liens); (b) the imposition and collection of assessments as provided in Article 7; (c) proceedings involving challenges to Ad Valorem taxation; (d) counter-claims brought by the Association in proceedings instituted against it or (e) actions brought by the Association against any contractor, vendor, or supplier of goods or services arising out of a contract for services or supplies. This Section shall not be amended unless such amendment is approved by the percentage of votes, and pursuant to the same procedures, necessary to institute proceedings as provided above.
13.5. Non-Merger. Notwithstanding the fact that Declarant is the current owner of the Properties, it is the express intention of Declarant that the easements established in the Declaration for the benefit of the Properties and Owners shall not merge into the fee simple estate of individual lots conveyed by Declarant or its successor, but that the estates of the
BOOK 2203 PAGE 033
Declarant and individual lot owners shall remain as separate and distinct estates. Any conveyance of all or a portion of the Properties shall be subject to the terms and provisions of this Declaration, regardless of whether the instrument of conveyance refers to this Declaration.
13.6. Grants, The parties hereby declare that this Declaration, and the easements created herein shall be and constitute covenants running with the fee simple estate of the Properties. The grants of easements in this Declaration are independent of any covenants and contractual agreements undertaken by the parties in this Declaration and a breach by either party of any such covenants or contractual agreements shall not cause or result in a forfeiture or reversion of the easements granted in this Declaration.
13.7. Cumulative Effect: Conflict. The provisions of this Declaration shall be cumulative with any additional covenants and restrictions.
13.8. Use of the Words "St. Charles". No Person shall use the words "St. Charles" or any derivative in any printed or promotional material without the Declarant's prior written consent. However, Owners may use the words "St. Charles" in printed or promotional matter where such terms are used solely to specify that particular property is located within St. Charles and the Association and any other community association located on shall be entitled to use the words "St. Charles" in its name.
13.9. Notice of Sale or Transfer of Title. Any Owner desiring to sell or otherwise transfer title to a Lot shall give the Board at least seven (7) days' prior written notice of the name and address of the purchaser or transferee, the date of such transfer of title, and such other information as the Board may reasonably require. The transferor shall continue to be jointly and severally responsible with the transferee for all obligations of the Owner of the Lot, including assessment obligations, until the date upon which such notice is received by the Board, notwithstanding the transfer of title.
3.10. Exhibits. Exhibit "A" attached to this Declaration is incorporated by this reference.
IN WITNESS WHEREOF, the undersigned Declarant has executed this Declaration this & T day of dure → 2002.
Signed, sealed and delivered DECLARANT:
in the presence of:
Cecilia Cleveland thes
Foseph B. Hutchison
Unofficial Witness: on
same mot
Notary Public
My Commission Expires
BOOK 2200 PAGE 010
EXHIBIT "A»
ALL THAT TRACT OR PARCEL OF LAND lying and being in the 218th G.M. District, Athens-Clarke County, Georgia, being designated as the St. Charles subdivision Phase I containing 34 acres, more or less, on that particular plat of survey for Joseph B. Hutchison, prepared by Landmark Engineering Corporation, J. R. Holland, G.R.L.S. No. 1087, dated July 24, 2001, and being more particularly described as follows:
BEGINNING at a point at the intersection of the Southern right-of-way edge of Highway 78 (Lexington Highway), having a right-of-way width of one hundred feet (100'), and the Western right-of-way edge of Morton Road, having a right-of-way width of eighty feet (80"), thence running Southerly along the Western edge of the Morton Road right-of-way a distance of 1,148.14 feet to an iron pin found such pin being the THE TRUE POINT OF BEGINNING; thence running South 12 degrees 59 minutes 21 seconds West a distance of 607.30 feet to an iron pin found; thence running North 86 degrees 59 minutes 48 seconds West a distance of 713.88 feet to a point; thence running North 64 degrees 50 minutes 13 seconds West a distance of 116.43 feet to a point; thence running North 41 degrees 37 minutes 30 seconds West a distance of 105.93 feet to an iron pin found; thence running North 61 degrees 06 minutes 29 seconds West a distance of 170.00 feet to an iron pin found; thence running South 48 Degrees 11 minutes 24 seconds West a distance of 96.21 feet to a point; thence finning North 41 degrees 40 minutes 54 seconds West a distance of 63.37 feet to a point; thence running North 64 degrees 35 minutes 51 seconds West 73.66 feet to a point; thence running South 88 degrees 49 minutes 04 seconds West a distance of 92.52 feet to a point; thence running North 71 degrees 29 minutes 48 seconds West a distance of 100.67 feet to an iron pin found; thence running South 13 degrees 33 minutes 06 seconds West a distance of 175.00 feet to an iron pin found; thence running North 76 degrees 06 minutes 54 seconds West a distance of 330.00 feet to an iron pin found; thence running North 78 degrees 52 minutes 00 seconds West a distance of 60.00 feet to an iron pin found; thence running North 11 degrees 08 minutes 00 seconds East a distance of 115.12 feet to an iron pin found thence running North 82 degrees 14 minutes 59 seconds West a distance of 33.87 feet to a point; thence running North 00 degrees 12 minutes 19 seconds East a distance of 38.65 feet to a point; Thence running North 85 degrees 21 minutes 48 seconds West a distance of 80.76 feet to a point; thence running South 86 degrees 56 minutes 37 seconds West a distance of 69.08 feet to a point; thence running South 86 degrees 32 minutes 04 seconds West a distance of 60.16 feet to a point; thence running South 26 degrees 26 minutes 49 seconds West a distance of 21.39 feet to a point; thence running South 78 degrees 08 minutes 37 seconds West a distance of 42.97 feet to a point; thence running North 75 degrees 41 minutes 22 seconds West a distance of 110.77 feet to an iron pin found; thence running South 65 degrees 37 minutes 48 seconds West a distance of 85.39 feet to a point; thence running South 64 degrees 01 minutes 52 seconds West a distance of 164.27 feet to a point; thence running South 61 degrees 16 minutes 24 seconds West a distance of 155.75 feet to an iron pin found, such pin being 70.03 feet East of the center line of Shoal Creek; Thence running North 01 degrees 08 minutes 13 seconds West a distance of 264.69 feet to a point; thence running North 01 degrees 52 minutes 20 seconds East a distance of 227.44 feet to an iron pin found; thence running North 03 degrees 40 minutes 32 seconds East a distance of 220.66 feet to an iron pin found, such pin being 14.86 feet East of the center line of Shoal Creek; thence running South 83 degrees 29 minutes 03 seconds East a distance of 2,706.39 feet to THE TRUE POINT OF BEGINNING.
34