Covenants
Return to: Daniel C. Haygood, P.O. Box 264, Watkinsville, GA 30677 Georgia, Oconee County.
DECLARATION OF RESTRICTIONS AND COVENANTS
THE VILLAGE AT DOVE CREEK
OCONEE COUNTY, GEORGIA
THIS DECLARATION, made on the date hereinafter set forth by John Byram of Oglethorpe County, Georgia, and Richard C. Benton, of Oconee County, Georgia, (hereinafter sometimes called "Declarant").
RECITALS:
Declarant is the owner of the real property described on Exhibit A, attached hereto and incorporated herein by reference.
Declarant desires to subject the real property described in Exhibit "A" to the provisions of this Declaration, and to avail the Community of the provisions and benefits of the Georgia Property Owners' Association Act codified at O.C.G.A. §44-3-220, et seq.;
NOW, THEREFORE, Declarant hereby declares that the real property described in Exhibit "A" to this Declaration, including the improvements constructed or to be constructed thereon, be subjected to this Declaration, is hereby subject to the provisions of this Declaration, and the provisions of O.C.C.A. §44-3-220, et seq. and shall be held, sold, transferred, conveyed, used, occupied and mortgaged or otherwise encumbered subject to the covenants and restrictions (sometimes referred to herein collectively as "covenants and restrictions") hereinafter set forth, which are for the purpose of protecting the value and desirability of, and which shall run with the title to the real property hereby made subject hereto, and shall be binding on all persons having any right, title or interest in all or any portion of the real property now made subject hereto, their respective heirs, legal representatives, successors, successors in title and assigns, and shall inure to the benefit of each and every owner of all of any portion thereot.
ARTICLE I
DEFINITIONS
A. "The Act" shall mean the Georgia Property Owners Association Act, O.C.C.A. §44-3-220, et seq., as the same is or may be hereinafter amended.
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B. "Architectural Control Committee" shall mean and refer to The Architectural Control Committee initially comprised of Declarant and such other individuals or entities as Declarant may appoint and thereafter those persons selected by the Board of Directors in compliance with the provisions of this Declaration.
C. "Articles of Incorporation" shall mean the Articles of Incorporation of the Association, as the same may be hereinafter amended.
D. "Association" shall mean and refer to the The Village at Dove Creek Homeowner's Association, Inc., a non-profit Georgia corporation, its successors and assigns.
E. "Board of Directors" shall mean the Board of Directors of the Association, the members of which shall be appointed and elected from time to time as provided in this Declaration, the Articles of Incorporation and the By-Laws. The Board of Directors shall be the governing body of the Association.
F. "By-Laws" shall mean the By-Laws of the Association, as the same may be hereafter amended. G. "Common Area" means all real and personal property submitted to the Declaration which is owned or leased by the Association for common use and enjoyment of the members, including, without limitation, that area upon which Declarant imposes a conservation use easement and such drainage and storm water facilities as Declarant may construct on the Property and either convey by fee simple or easement to the Association.
H. "Common Expenses" means all expenditures lawfully made or incurred by or on behalf of the
Association together with all funds lawfully assessed for the creation and maintenance of reserves pursuant to the provisions of the Declaration.
I. "Community" shall mean and refer to that certain real property described in exhibit "A" attached hereto.
"Declarant" shall mean and refer to (i) John Byram and Richard C. Benton or (ii) any successor-intitle to the said party to all or some portion of the Community, provided such successor-in-title shall acquire such Community for the purpose of development or sale, and provided further, in the instrument of conveyance to any such successor-in-title is expressly designated as the "Declarant" hereunder at the time of such conveyance, or (iii) should any of the Community become subject to a first mortgage given by "Declarant" as security for the repayment of a construction or development loan, then all the rights, privileges and options herein reserved to "Declarant" shall inure to the benefit of the holder of such mortgage upon its becoming the owner of all the Community then subject thereto through whatever means, or the purchaser of all such Community at a judicial or foreclosure sale made pursuant to any power of sale contained in such mortgage; and, further, all the rights, privileges and options herein reserved to "Declarant" may be transferred to the successor-in-title of any such acquirer of title to such Community provided any such successor-in-title shall acquire for the purpose of development or sale all or some portion of such Community, and provided further, in the instrument of conveyance to such successor-in-title, such successor-in-title is designated as the 'Declarant hereunder. The privileges and options herein reserved to "Declarant" may be transferred to the successor-in-title of any such acquirer of title to such Community provided any such successorin-title shall acquire for the purpose of development or sale all or some portion of such Community,
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and provided further, in the instrument of conveyance to such successor-in-title, such successor-intitle is designated as the "Declarant" hereunder by the grantor of such conveyance, which grantor of such conveyance shall be the "Declarant" hereunder at the time of such conveyance. In the event that persons specified in both (ii) and (iii) above become entitled to succeed to the interests of"Declarant" as therein provided, then as between such persons, any person entitled to be "Declarant" by virtue of (iii) above shall be "Declarant" instead of any person entitled to be "Declarant by virtue of (ii) above. K. "Declaration" means this recordable instrument creating covenants upon property which covenants are administered by a property owners' association in which membership is mandatory for all owners of lots in the community.
L. "Lot" shall mean any plot of land located within the Community which constitutes a single dwelling site designated on any plat of survey recorded in the Office of the Clerk of Superior Court of Oconee County, Georgia, as well as any building or any portion of any building located thereon which is intended for independent residential use.
M. "Lot Owner" or "Owner" shall mean and refer to the record owner, whether one or more person, of the fee simple title to any lot located within the Community, excluding, however, any person holding such interest merely as security for the performance or satisfaction of any obligation. N. "Mortgage" means any mortgage, deed to secure debt, security deed and any and all other similar instruments used for the purpose of conveying or encumbering real property as security for the payment or satisfaction of an obligation.
O. "Person" means any natural person, as well as a corporation, joint venture, partnership (general or limited), association, trust or other legal entity.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION AND ADDITIONAL PROPERTY Section I. Property Subject to Declaration. The real property which is, by the recording of this Declaration, subject to the covenants and restrictions hereafter set forth and which, by virtue of the recording of this Declaration, shall be held, transferred, sold, conveyed, used, occupied and mortgaged or otherwise encumbered subject to this Declaration is the real property described as the Community in Article I hereof. Declarant intends to construct or sell for others to construct, 37 Lots in the Community, together with roads, utility systems and other improvements serving the Lots.
Further, Declarant intends to construct amenities for the benefit of the Community including landscaping in and on the common areas designated as common areas on the plat of subdivision. On or before the date of conveyance of the last Lot in the Community by Declarant to an Owner, Declarant shall convey all common areas as shown on the plat of subdivision to the Association as common areas for the enjoyment, benefit, and use of Lot Owners in the Community. A portion of the common area shall be subject to a conservation use easement to comply with the applicable provisions of the Oconee County ordinances.
Section 2. Lots and Other Interests Subject to Plan of Development. Every purchaser of a Lot shall purchase such Lot and every mortgagee and lien holder holding an interest therein shall take title, or hold such security interest with respect thereto, with notice of Declarant's plan of development as herein set forth. Any
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provision of this Declaration to the contrary notwithstanding, the provisions of this the foregoing plan of development set forth in this Article II may not be abrogated, modified, rescinded, supplemented or amended in whole or in part without the prior written consent of Declarant.
ARTICLE III
POWERS OF THE ASSOCIATION AND BOARD OF DIRECTORS
The powers of the Association and the Board of Directors shall be as set forth and shall be subject to the limitations and restrictions set forth in the Act, the Georgia Non-Profit Corporation Act, this Declaration, the Articles of Incorporation and the By-laws of the Association.
ARTICLE IV
ARCHITECTURAL CONTROL COMMITTEE
Section 1. Purpose, Powers and Duties of the Architectural Control Committee. The purpose of the Architectural Control Committee, the "ACC', is (a) to administer and enforce the covenants and restrictions set forth in this Declaration; and (b) to assure the installation, construction or alteration of any structure on any Lot is submitted to the Architectural Control Committee for approval (i) as to whether the proposed installation, construction or alteration is in conformity and harmony of external design and general quality with the existing standards of the neighborhood and with the standards of the development of the Community; and (ii) as to the location of structures with respect to topography, finished ground elevation and surrounding structures.
Section 2. Selection of the Architectural Control Committee. From the execution date of this Declaration until such time as all Lots have been fully developed, permanently improved, and sold to permanent residents, the Architectural Control Committee shall consist of the Declarant. Upon the sale by Declarant to an Owner of the last Lot and the construction and completion of a permanent residence thereof the Declarant shall cease functioning as the Architectural Control Committee in all respects and a successor Architectural Control Committee shall be appointed by the Board of Directors, However, the Declarant may at any time prior thereto resign from the Architectural Control Committee, turning its functions over to the Board of Directors of the Association.
Section 3. Meetings. After the Declarant ceases to function as the Architectural Control Committee, the Architectural Control Committee shall hold such meetings as required or allowed for the Board of Directors by the By-Laws.
Section 4. Action of Members of Architectural Control Committee. Any member of the Architectural Control Committee may be authorized by the Architectural Control Committee to exercise the full authority of the Architectural Control Committee with respect to all matters over which the Architectural Control Committee has authority as may be specified by resolution of the Architectural Control Committee. The action of such member with respect to the matters specified shall be final and binding upon the Architectural Control Committee and upon any applicant for an approval permit or authorization, subject, however, to review and modification by the Architectural Control Committee on its own motion or appeal by the applicant to the Architectural Control Committee as provided herein. Written notice of the decision of such member shall, within five (5) days thereof, be given to any applicant for an approval permit or authorization. The applicant may, within ten (10) days after receipt of notice of any decision which he deems to be unsatisfactory, file a written request to have the matter in question reviewed by the Architectural Control Committee. Upon the
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filing of any such request, the matter with respect to which request was filed shall be submitted to, and reviewed promptly by, the Architectural Control Committee, but in no event later than thirty (30) days after the filing of such request. The decision of a majority of the members of the Architectural Control Committee with respect to such matter shall be final and binding.
ARTICLE V
BUILDING REQUIREMENTS
The following property rights and architectural restrictions shall apply to the property which is subjected to this Declaration.
Section 1. Subdivision of Lot. No Lot shall be subdivided, or its boundary lines changed, except with the prior written approval of the Architectural Control Committee. Declarant, however, until such time as the last Lot is sold by the Declarant to an owner, hereby expressly reserves the right to replat any two (2) or more Lots in order to create a modified residential Lot or Lots, and to take such other steps as reasonably may be necessary to make such replatted Lot or Lots suitable as a building site or sites. All of the covenants and restrictions set forth herein shall apply to each such Lot, if any, so created. Any such division, boundary line change or replatted Lot shall not be in violation of the applicable City or County subdivision and zoning regulations.
Section 2. Approval of Plans. No residence, building, fence, wall, road, driveway, sidewalk, parking area, tennis court, swimming pool, or other structure or improvement of any kind shall be erected, placed, altered, added to, modified, maintained or reconstructed on any Lot until the plans therefore, and for the proposed location thereof upon the Lot, shall have been approved in writing by the Architectural Control Committee. "Improvement" shall mean and include any improvement, change or modification of the appearance of a Lot from the state existing on the date of the conveyance of such Lot by Declarant to a Lot Owner. Before taking any action requiring approval under this Section, a Lot Owner shall submit to the Architectural Control Committee a construction schedule and two (2) complete sets of final plans and outline specifications, showing site plan (which site plan shall show driveways, patios, decks, accessory buildings, and all other components referenced in the first sentence of this Section), landscape layout, floor plans, exterior elevations and exterior materials, colors and finishes. No changes or deviations in or from such plans and specifications as approved shall be made without the prior written approval by the Architectural Control Committee. No alteration in the exterior appearance of any building, structure or other improvement shall be made without like approval by the Architectural Control Committee. Further, before beginning any construction, the name of the builder must be submitted to the Architectural Control Committee and approval by thee Architectural Control Committee as to builder's experience and ability to build houses or other structures of the class and type of those which are to be built in the Community. The Architectural Control Committee shall act in accordance with Article IV, Section 4 upon receipt of such information to approve or disapprove the same. Neither the Architectural Control Committee, nor any person or party to whom the Architectural Control Committee shall assign such function, shall be responsible or liable in any way for the performance of any builder or for any defects in any plans or specifications approved in accordance with the foregoing, nor for any structural defects in any work done according to such plans and specifications. The Architectural Control Committee may refuse approval of plans, siting or specifications upon any ground, including purely aesthetic considerations, which in its sole discretion it shall deem sufficient. Approval of any one series of improvements hereunder shall not waive the Architectural Control Committee's rights to disapprove subsequent improvements to the same Lot.
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Section 3. Building Location. No building shall be erected on any Lot closer to the front, rear and side Lot lines than the minimum building setback lines shown on the plat of the Community. Accessory buildings and detached garages may be located no closer than 10 feet from a side or rear lot line. The Architectural Control Committee reserves the right to control solely and absolutely the precise site and location of any proposed house, dwelling, building, or other structure or improvement upon all Lots. Such location shall be determined, however, only after reasonable opportunity is afforded the Lot Owner to request a specific site. No improvements shall be placed or erected within any such building setback area required by the Architectural Control Committee or designated on plat of subdivision.
Section 4. Garages. Carports All garages or carports will be required to open to the rear or the side of the Lot. Garages located in the rear yard may open toward the street as well as the rear or side of the Lot, provided, garage doors shall be installed and maintained on all garages. There shall be no separate carports in the community.
Section 5. Attachment of Utilities. No permanent utility connections shall be made to any dwelling or other structure by any utility, public or private, until the Architectural Control Committee has verified general compliance with these covenants and restrictions and with the plans and specifications therefore submitted pursuant to Section 2 above, and has approved utility connections in writing. Each Lot, parcel of land, residence, building or other structure on said property, when required to be served by a utility, must be served by utilities approved by the Architectural Control Committee.
Section 6. Other Building Requirements. The requirements set forth below are in no way to be construed as limiting the exercise of the Architectural Control Committees discretion pursuant to Section 2 and 3 above:
(a) All residences in The Village at Dove Creek subdivision must contain a minimum of 1,500 square feet of heated living space. Owners may request, in writing to the Architectural Control Committee, a waiver of this requirement. The Architectural Control Committee may, under reasonable circumstances, grant such a request where the resulting appearance of the Lot is likely to preserve the overall appearance, scheme, and design of the Community.
(b) Each residence and other structures shall be constructed pursuant to construction plans approved in writing by the Architectural Control Committee and shall be constructed to "Walton E.M.C. Total Electric" Standards. Declarant reserves the right, in Declarant's sole and absolute discretion, to substitute some other similar standard.
(c) Driveways shall be a minimum of 10 feet in width and constructed only of materials approved in writing by the Architectural Control Committee, 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 Architectural Control Committee.
(d) The exterior of all residences and other structures must be completed within six (6) months after commencement of construction and the landscaping on such Lots must be completed within ninety (90) days thereafter, except, in each case, where, in the sole discretion of the Architectural Control Committee 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.
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(e) 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 Architectural Control Committee. Further the design, type, location, size, color, and intensity of all exterior lights shall be subject to control by the Architectural Control Committee and only such exterior lighting as shall have been approved in writing by the Architectural Control Committee shall be installed or used on any Lot.
Mechanical equipment (other than heating or air conditioning equipment), shall be installed only within the main dwelling or buried. Heating and air conditioning equipment shall be installed in such locations as will, to the maximum 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.
(g) Unless located within ten (10) feet of a main dwelling or accessory building or 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 Architectural Control Committee; provided, however, that 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 Architectural Control Committee and permission for such cutting and removal has been obtained.
(h) No structure of a temporary character shall be placed upon any Lot at any time, except for shelters used by a building contractor during the course of construction. Such temporary shelters may not, at any time, be used as residences, nor be permitted to remain on the Lot after completion of construction.
(i) No accessory building shall be placed, erected or maintained upon any part of any Lot except in connection with a residence already constructed or under construction at the time that such outbuilding is placed or erected upon that Lot, except that one outbuilding for normal non-commercial accessory uses, such as a barn, shop or storage facility, may be constructed on the rear one third of the Lot, upon approval by the ACC.
No camper, recreational vehicle, trailer, tent, boat, tree house, play equipment (such as swing set) or other similar outbuildings shall be placed in the front yard or so as to be visible from any public right of way.
(K) There shall be no fences or walls in the front yard of any Lot.
Swimming pools must be constructed below ground level with the same setback requirements as dwellings and other improvements. A fence at least six (6) feet in height and capable of being locked shall surround all swimming pools.
(m) All lots will be seeded with turf type grass to ensure conformity in the development. Section 7. Right of Inspection. The Architectural Control Committee, its agents and representatives, shall have the right during reasonable hours to enter upon and inspect any Lot and improvement thereon for the purpose of ascertaining whether the installation, construction, alteration or maintenance of any improvement or the use of any Lot or improvement is in compliance with the provisions of
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this Declaration; and the Architectural Control Committee shall not be deemed to have committed a trespass or other wrongful act solely by reason of such entry or inspection.
Section 8. Violation. If any improvement shall be erected, placed, maintained or altered upon any Lot, otherwise than in accordance with the plans and specifications approved by the Architectural Control Committee pursuant to the provisions of this Article, such erection, placement, maintenance or alteration shall be deemed to have been undertaken in violation of this Article and without the approval required herein. If in the opinion of the Architectural Control Committee such violation shall have occurred, the Architectural Control Committee shall be entitled and empowered to enjoin or remove any such construction, and take any other action permitted by the By-Laws of the Association. Any costs and expenses incurred by the Architectural Control Committee in enjoining and removing any construction or improvements shall become a lien against the Owner's Lot in accordance with Article VII. Additionally, the Architectural Control Committee shall be entitled to pursue all legal and equitable remedies.
Section 9. Fees. The Architectural Control Committee may impose and collect a reasonable and appropriate fee to cover the cost of inspections performed pursuant to Section 7 hereof, which such fee will be paid out of regular or special assessments established per Article VIl hereof. The fee shall be established from time to time by the Architectural Control Committee.
ARTICLE VI.
USE RESTRICTIONS
Residential Use. All Lots shall be used for single-family residential purposes exclusively. Except as hereinafter provided, no house, structure or other improvement shall be erected, altered, placed, maintained or permitted to remain on any Lot other than one (1) detached single-family dwelling. No business or business activity shall be carried on or upon any Lot at any time except with the written approval of the Architectural Control Committee. Nothing contained herein shall prohibit Declarant from using any Lot owned by Declarant for the purpose of carrying on business related to the development and management of the Community.
Signs. No commercial signs, including "for rent" or "for sale" signs or advertising posters of any kind shall be erected, placed or maintained on any Lot except as may be required by legal proceedings or a single sign for the purpose of selling or renting the property. Nothing herein shall be construed, however, to prevent Declarant from erecting, placing or maintaining upon any Lot, or permitting the erection, placing or maintaining upon any Lot by builders or residents, of such signs as Declarant may deem necessary or desirable during the period of the development, construction and sale of the Lots and residences constructed thereon. Also, the provisions of this Section shall not apply to any mortgagee who becomes the Owner of any Lot as purchaser at a judicial or foreclosure sale conducted with respect to a first mortgage or deed to secure debt or as transferee pursuant to any proceeding in lieu thereof.
Section 3. Mailboxes, Property Identification Markers and Decorative Hardware. The Architectural Control Committee shall have the right to approve the location, color, size, design, lettering and all other particulars of mail and newspaper boxes, if any, and of name signs on such boxes, as well as property identification markers and decorative hardware, whether attached to such mailbox, to any structure within the Lot or affixed or erected upon the grounds of the Lot. It is the Declarant's intent that the Lot Owners utilize identical mailboxes.
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Section 4. Garbage Cans, Woodpiles, etc. All garbage cans, woodpiles, etc., shall be located or screened so as to be concealed from view of neighboring Lots, streets and property located adjacent to the Community. All rubbish, trash, and garbage shall be regularly removed from the premises and shall not be allowed to accumulate thereon.
Section 5. Prohibited Structures. No mobile home, house trailer, factory or manufacturer assembled homes, modular homes, tent, shack, barn, or other outbuilding or structure (except accessory buildings otherwise permitted hereunder) shall be placed on any Lot at any time, either temporarily or permanently; provided, however, house trailers, temporary buildings and the tike shall be permitted for construction purposes during the construction period of residences or as one or more real estate sales offices of Declarant for the sale of property and provided that this covenant shall not preclude industrialized buildings as defined in the Industrialized Building Act, O.C.G.A. Title 8, Chapter 2, Part 1.
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 horses, dogs, cats or other usual and common household pets in reasonable number, provided that said pets are not kept, bred or maintained for any commercial purpose, are not permitted to roam free, and in the sole discretion of the Board of Directors, do not endanger the health, make objectionable noise or constitute a nuisance or inconvenience to the Owners of other Lots or the owner or any property located adjacent to the Community. Dogs which are household pets shall at all times, whenever they are outside a dwelling, be confined within a pen or on a leash. No structure for the care, housing, or confinement of any pets shall be maintained so as to be visible from neighboring property, except fencing of the rear one third of the Lot for horses, subject to ACC review and approval as specified
Section 7. Incapacitated Motor Vehicles. No automobile or motor driven vehicle may be left upon any Lot for a period longer than five (5) days in a condition such that it is incapable of being operated upon the public highways. After such five (5) day period, such vehicle shall be considered a nuisance and detrimental to the welfare of the neighborhood and must be removed from the Community. Any towed vehicle, boat, motor home or mobile home regularly stored upon any Lot, or temporarily kept thereon for periods longer than twenty-four (24) hours each, shall be considered a nuisance and must be removed from the Community. The foregoing, however, does not apply to such boats or other vehicles, whether motor-driven or towed, as are stored wholly within a private garage or trailer storage areas, if any, designated by Declarant or the Architectural Control Committee. No commercial vehicles may be parked, stored or temporarily kept within the Community, unless such vehicles are stored wholly within private garages, are within the Community temporarily to service existing improvements or are used in connection with the construction of improvements within the Community.
Section 8. Nuisance. It shall be the responsibility of each Lot Owner to prevent the development of any unclean, unhealthy, unsightly, or unkempt condition of buildings or grounds on his or her Lot or Lots. No Lot shall be used, in whole or in part, for the storage 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 upon any Lot 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 property. No noxious or offensive activity shall be carried on upon any Lot, nor shall anything be done thereon tending to cause embarrassment, discomfort, annoyance, or nuisance to any person using any property adjacent to the Lot. 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 property in the neighborhood by the Owners thereof.
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Section 9. Unsightly or Unkempt Conditions. The pursuit of hobbies or other activities, including specifically, without limiting the generality of the foregoing, the assembly and disassembly of motor vehicles and other mechanical devices, which might tend to cause disorderly, unsightly, or unkempt conditions, shall not be pursued or undertaken in any part of the Community.
Section 10. Antennas. No Owner shall erect, use, or maintain any outdoor antenna or 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 Architectural Control Committee; provided, 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.
ARTICLE VII
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS
Section 1. Membership. Every Owner of a Lot in the Community shall be a member of the Association. If title to a Lot is held by more than one person, each of such persons shall be members. Membership shall be appurtenant to the Lot to which it appertains and shall be transferred automatically. Notwithstanding the above, each Lot shall be entitled to one (a.) vote in the Association.
Section 2. Amplification. The provisions of this Article are to be amplified by the Articles of Incorporation and By-Laws of the Association provided, however, that no such amplification shall substantially alter or amend any of the rights or obligations of the Owners of Lots as set forth herein. In the event of any conflict or inconsistencies among this Declaration, the Articles of Incorporation or the By-Laws of the Association, this Declaration and the Articles of Incorporation (in that order) shall prevail.
ARTICLE VIII
ASSESSMENTS
Assessments against the Lot Owners shall be made to raise funds to pay the common expenses of the Property, and contribute a pro rata share of the maintenance of the common areas of the Community and shall be governed by the following provisions:
(a) Liability. Each Lot Owner shall be liable to the Association for all sums as are lawfully assessed by the Association against him or his Lot or Lots in accordance with the terms and provisions of this Declaration and the Articles of Incorporation and Bylaws. In addition to exercising the remedies provided for herein, the Association may enforce such liability by an action at law to recover all amounts assessed against each unit owner in accordance with the provisions of this Declaration.
(b) Creation of the Lien and Personal Obligation for Assessment. Each owner of any Lot by acceptance of a deed or other conveyance thereof, whether or not it shall be expressed in any such deed or other conveyance, covenants and agrees to pay to the Association assessment which shall be fixed, established, and collected as herein provided.
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(c) Uniform Rate of Assessment. All annual assessments shall be fixed at a uniform rate for all Lots except as follows:
(i) Any common expenses benefitting less than all of the Lots may be specially assessed equitably among all of the Lots so benefitted, as determined by the Board;
(i1) Any common expenses occasioned by the conduct of less than all of those entitled to occupy all of the Lots or by the licensees or invitees of any such Lot or Lots may be specially assessed against the Lot or Lots, the conduct of any occupant, licensee or invitee of which occasioned any such common expenses,
(iii) Any common expenses significantly disproportionately benefitting all of the Lots should be assessed equitably among all of the Lots in the Community as determined by the Board.
Nothing contained herein shall permit the Association to specially or disproportionately allocate common expenses for periodic maintenance, repair and replacement of any portion of the common area or the Lots which the Association has the obligation to maintain, repair, or replace.
(a) Purpose. Assessments shall be levied against the Lot Owners and the Lots to defray the common expenses of the Property. The common expenses of the Property shall be all of the expenditures which are made or incurred by or on behalf of the Association in connection with the exercise of its powers and responsibilities, and shall include but not be limited to the following:
(1) Management fee, if any, and expenses of administration of the Association; (i¡) common utility bills and charges for other common services, including but not limited to water and power;
premiums for all insurance policies maintained by the Association;
(IV) the expenses of performing the maintenance, repair, renovation, restoration and replacement work which is the responsibility of the Association hereunder, including, without limitation the maintenance of drainage and storm water facilities;
(V) such other costs and expenses as may be determined from time to time by the Board of Directors to be common expenses; and
(vi) the creation and maintenance of such reserve funds as are required to be maintained by the Association under Article VIII herein, and such other reserve funds as the Board of Directors shall determine, including but not limited to a reserve for repairs and maintenance.
(e) Budget. Payment Dates. No less than thirty (30) days prior to the commencement of each fiscal year of the Association, the Board of Directors shall adopt a budget for the succeeding fiscal year, which budget (i) shall estimate the amount of common expenses which are anticipated to be incurred during such year, and (ii) shall make provision for an adequate reserve fund for maintenance, repair and replacement of those portions of the common elements that must be replaced on a periodic basis. Prior to the commencement of such fiscal year, the Board of Directors shall furnish a copy of such budget to each Lot Owner, together with a written statement of the amount of such common expenses which shall be assessed against such Lot Owner
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for such fiscal year. Unless otherwise determined by the Board of Directors, such assessment shall be due on January 1 of each year. The Board of Directors shall be authorized to prorate the annual assessment into twelve monthly or four quarterly installments. In addition, any fees, charges, and other amounts payable by any Lot Owner to the Association shall be added to and shall, unless paid at the time the same are incurred or at some other time determined by the Board of Directors, be due and payable as part of the installment of the assessment next coming due.
(f) Special Assessments. If for any reason, including nonpayment of any Lot Owner's assessments, an annual budget adopted by the Board of Directors for any fiscal year proves inadequate to defray the common expenses for such fiscal year, the Board of Directors may, at any time, levy a special assessment to raise the additional funds necessary to defray such common expenses, which special assessment shall be due and payable at such time and in such installments as the Board of Directors shall determine. Additionally, the Board of Directors shall be authorized to levy special assessments under the circumstances described in this Declaration.
(g) Special Assessments for Capital Improvements. In addition to the assessments which shall be levied against the Lot Owners, the Board of Directors shall be authorized, upon the affirmative vote of 75% of the Lot Owners entitled to cast votes to levy a special assessment for the purpose of defraying, in whole or in part, the costs of any capital improvements to be made upon the common elements, or for the costs of making repairs or replacements which are not provided for in then current budget of the Association. Any such special assessments for the capital improvements and repairs shall be payable at such time and in such installments as the Board of Directors shall determine.
(h) 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 may hereinafter provided.
In the event that any Lot Owner shall fail to pay an/Installment of any assessment levied against him within ten (10) days after such installment shall be due and payable and within days after written notice is mailed to the Lot Owner, the entire unpaid balance of such assessment for the remainder of the fiscal year may, at the option of the Board of Directors, be accelerated and be declared immediately due and payable in full, without notice to such Lot Owner.
(ii) In the event that any Lot Owner shall fail to pay within five (5) 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:
(a) A late charge equal to the Ten ($10.00) Dollars or ten (10%) percent of the amount so due, whichever is the greater;
(b) 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;
(c) 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
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(a) 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 unit at foreclosure (or until the judgment rendered in such suit is otherwise satisfied)
(i¡i) All sums lawfully assessed by the Association against any tot Owner or Property Owner's Association Lot, whether for 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:
Liens for ad valorem taxes on the Lot;
(b) 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
(c) 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.
(iv) The rights of a Lot Owner and all persons entitled to occupy the Lot of such owner, to use the common elements 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.
(1) 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.
Article IX
INSURANCE
Insurance (other than title insurance) which shall be obtained by the Association shall be governed by the following provisions:
(a) Types of Insurance The Association shall obtain and maintain the following insurance. policies:
(1) A multi-peril casualty insurance policy covering the common elements, providing as a minimum, fire and extended coverage, vandalism and malicious mischief, on a replacement cost basis in an amount not less than 100% of the full replacement cost of the common elements within the Community. The name of the insured under such casualty insurance policy shall be stated as follows: "The Village at Dove Creek Homeowners' Association, Inc., for the use and benefit of the individual Lot owners in The Village at Dove Creek, Oconee County, Georgia'. The amount of coverage of such casualty insurance policy shall be
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readjusted by reappraisal or reevaluation of the insured property, not less frequently than once every five years. Such casualty insurance policy shall contain the standard mortgagee clause which shall be endorsed to provide that nay proceeds shall be paid to the Association for the use and benefit of mortgagees as their interest may appear.
(i1) A comprehensive policy of public liability insurance covering all of the common elements. Such liability insurance policy shall contain a 'severability of interest" endorsement which shall preclude the insurer from denying the claim of a Lot Owner because of the negligent acts of the Association or other Lot Owners. Such liability insurance policy shall cover the Association, the Board of Directors, the officers of the Association, all agents and employees of the Association, and all unit owners and other persons entitled to occupy any Lot or other portion of the Property, shall be for at least $500,000.00 for injury including death to a single person, $1,000,000.00 for injury or injuries, including death, arising out of a single occurrence and $50,000.00 for property damage, with a cross liability endorsement to cover the Lot Owners as a group and shall include protection for damage to the property of others.
(iIi) Such other insurance policies as the Board of Directors shall deem desirable for the benefit of the Association, its Officers and Directors or the Lot Owners.
(b) Minimum Qualifications of Insurance Carriers. Each policy of insurance which the Association is required to maintain under the provisions of this Declaration shall be written by a hazard insurance carrier which has a financial rating by Best's Insurance Reports of Class A:VI or better and which is licensed to transact business within the State of Georgia.
(c) Minimum Qualifications of Insurance Policies, All policies of insurance which the Association is required to maintain under the provisions of this Declaration shall (a) not allow contributions or assessments to be made against the owner of any Lot, or the holder of any mortgage upon any Lot, (b) not allow loss payments to be contingent upon any action by the insurance carrier's board of directors, policyholders, or members, (c) not include any limiting clauses (other than insurance conditions) which could prevent any Lot Owner or the holder of any mortgage upon any unit from collecting insurance proceeds, and (d) contain or have attached a mortgage clause which provides that the insurance carrier shall notify in writing all holders of first lien mortgages on any of the units at least ten (10) days in advance of the effective date of any reduction in, cancellation, or nonrenewal of such policies.
In no event shall any recovery or payment under the insurance coverage obtained and maintained by the Association be affected or diminished by insurance purchased by individual Lot owners or mortgagees, and no Lot Owner shall be entitled to exercise his right to maintain any additional insurance coverage in such a way as to decrease the amount which the Association may realize under any insurance policy which it may have in force on the Property at any particular time.
(d) Proceeds on Account of Damage to Common Elements. Insurance proceeds which shall be paid on account of damages to or destruction of any portion of the common elements shall be held by the Association in a construction fund, which shall be used for the purpose of repairing, reconstruction or rebuilding the portion of such common elements so damaged or destroyed, as provided in this Declaration. If it shall be determined in accordance with the provisions of this Declaration not to repair, reconstruct or rebuild the portion of the common elements so damaged or destroyed, then the insurance proceeds paid on account of the occurrence of such damage or destruction to such portion of common elements shall first be used to clean up and landscape the common elements as necessary in view of the fact that such part of the common elements is not to be repaired, reconstructed or rebuilt, and the remaining insurance proceeds shall be disbursed to the
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Lot Owners proportionately, such disbursement to be made payable jointly to the Lot Owners and their mortgagees. Notwithstanding anything contained in this Declaration, the Articles of Incorporation, the Bylaws, or the Act which may be construed to the contrary, in no event shall any insurance proceeds paid to the Association on account of the occurrence of any fire or other casualty be deemed to be common profits.
Article XI
DAMAGE TO OR DESTRUCTION OF COMMON ELEMENTS
Repair, reconstruction or rebuilding of the common elements following damage or destruction to all or any portion of the common elements shall be governed by the following provisions:
(a) Estimates of the cost of repair. As soon as practicable following the occurrence of any damage to, or destruction of any portion of the common elements, the Board of Directors shall obtain reliable and detailed estimates of the cost of repairing and restoring such portion of the common elements so damaged or destroyed to substantially the same condition as such portion of the common elements were in prior to the occurrence of such damage and destruction and shall proceed with the filing and adjustment of all claims arising under insurance maintained by the Association as a result of such damage or destruction.
(b) Determination to Repair. Reconstruct, or Rebuild. Any damage to, or destruction of the common elements will be repaired, reconstructed, or rebuilt unless the owners of the Lots to which 75% of the votes in the Association are allocated shall determine within 45 days after the occurrence of the casualty not to repair, reconstruct, or rebuild the same.
(c) Manner of Repair, Reconstruction, or Rebuilding. All repairs, reconstruction, or rebuilding to be made as a result of damage by tire or other casualty shall be made in accordance with the following provisions:
(i) The damage shall be repaired, reconstructed, or rebuilt substantially in accordance with the plans and specifications for such damaged property prior to the occurrence of such damage;
(ii) All of the work of repairing, reconstruction, or rebuilding any portion of the common elements, the damage to or destruction of which cause the payments of insurance benefits under insurance policies maintained by the Association, shall be performed under the supervision of the Board of Directors which, in discharging such supervisory responsibility, shall be authorized to employ such building supervisors and architects as the Board of Directors shall deem to be in the best interest of the Association.
(a) Cost of Repairs. Reconstruction. or Rebuilding. The cost of repairing, reconstructing, or rebuilding any portion of the common elements which shall be damaged or destroyed shall be paid with any insurance proceeds which shall be paid to the Association on account on such damage or destruction. If such insurance proceeds are not sufficient to defray such cost of repair, reconstruction, or rebuilding, then the Board of Directors may levy a special assessment against all of the Lot Owners and Lots to raise the excess funds necessary to defray such cost.
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Article XII
General Provisions
Section 1. Easements for Architectural Control Committee. There is hereby created in favor of the Architectural Control Committee, its members, agents, employees and any management company retained by the Architectural Control Committee, an easement to enter in or to cross over the Lots to inspect and to perform the duties of maintenance and repair of the Lots, as provided for herein.
Section 2. Easements for Declarant. Declarant hereby reserves for himself, his successors and assigns, agents, employees, contractors and sub-contractors, the following easementś and rights-of-way in, on, over, under and through any part of the Community for so long as Declarant owns any Lot primarily for the purpose of sale:
(a) For the erection, installation, construction and maintenance of wires, lines and conduits, and necessary or proper attachments in connection with the transmission of electricity, gas, water, telephone, community antenna, television cables and other utilities;
For the construction of improvements on the Lots;
(c) For the installation, construction and maintenance of storm-water drains, public and private sewers, and for any other public or quasi-public utility facility;
(a) For use as sales offices, model lots and parking spaces in connection with his efforts to market Lots; and
(e) For the maintenance of such other facilities and reasonably required, convenient or incidental to the completion, improvement and sale of Lots.
Section 3. Easements for the Association. There is hereby created in favor of the Association, its Board of Directors, its members, agents, employees and contractors, an easement to enter upon, enter in, or cross over the Lots for the purpose of providing the maintenance required by the Association in this Declaration.
Section 4. Enforcement. The Architectural Control Committee, the Association, or any Owner, including Declarant, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, easements, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by any person to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
Section 5. Duration. The Provisions of this Declaration shall run with and bind the land and shall be and remain in effect perpetually to the extent permitted by law. Provided, however, so long as Georgia law limits the period during which covenants restricting lands to certain uses may run, any provisions of this Declaration affected thereby shall run and bind the land so long as permitted by such law and such provisions may be renewed or extended in whole or in part beyond the initial period permitted by such law for successive periods not to exceed the period permitted by such law provided such renewal or extension is approved by at least eighty percent (80%) of the Lot Owners. Every Purchaser or grantee of any interest in any real property subject to this Declaration, by acceptance or a deed or other conveyance therefore, thereby agrees that such provisions of this Declaration may be extended and renewed as provided in this Section.
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Section 6. Rights of Mortgage. In addition to the rights elsewhere provided, each mortgagee of a Lot, or purchaser or insurer of a mortgage on any Lot subject to this Declaration, including Federal National Mortgage Association, Federal Home Loan Mortgage Corporation, the Veterans Administration and the Federal Housing Administration shall (a) be entitled to written notice from the Association of any default by an Owner in the performance of his obligations under the Declaration which is not cured within 30 days; (b) be entitled to attend and observe all meetings of Owners, but not meetings of the Association's Board of Directors. (c) be furnished copies of annual financial reports made to the Owners; (d) be entitled to inspect current copies of the Declaration, Articles of Incorporation, By-Laws, Rules and Regulations, books, records and financial statements of the Association during normal business hours; (e) be entitled to written notice from the Association of any lapse, cancellation, or material modification of any insurance policy or fidelity bond maintained by the Association; (f) be entitled to written notice from the Association of any condemnation or casualty loss that affects a material portion of the Community, or the Lot securing its mortgage and (g) be entitled to timely written notice of any proposed action which would require the consent of a specified percentage of mortgagees; provided, however, that such mortgagee or purchaser or insurer of such mortgage shall first tile with the Association a written request that such notices be sent to a named agent or representative of the mortgagee at an address stated in such notice.
Section 7. Amendment. This Declaration may be amended unilaterally at any time and from time to time by Declarant (i) if such amendment is necessary to bring any provision hereof into compliance with any applicable governmental statute, rule or regulation or judicial determination which shall be in conflict therewith, (ii) if such amendment is necessary to enable any reputable title insurance company to issue title insurance coverage with respect to the Lots subject to this Declaration, (iii) if such amendment is required by an institutional or governmental lender or purchaser of mortgage loans, including, for example, the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to enable such lender or Purchaser to make or purchase mortgage loans on the Lots subject to this Declaration, or (iv) if such amendment is necessary to enable any governmental agency or reputable private insurance company to insure mortgage loans on the Lots subject to this Declaration, provided any such amendment shall not adversely affect the title to any Owner's Lot unless any such Lot Owner shall consent thereto in writing.
All amendments other than those specified hereinabove shall be adopted as follows:
(i) At least sixty-seven (67%) percent of the Lot Owners shall be necessary to amend this Declaration. Notwithstanding anything to the contrary herein, it is expressly provided that any amendment which adversely affects the title to any Lot must be approved by the Owner of such Lot in writing.
(11) The proposed amendment may be proposed by either the Lot Owners or Declarant. The Declarant, or the Association, may call a meeting of the Lot Owners to consider such an amendment and shall be required to call such a meeting upon a petition signed by at least twenty-five (25%) percent of the Lot Owners. If a meeting of the Lot Owners is called to consider such an amendment, the time within which and the manner by which notice of such meeting shall be given, the authorized use of proxies, and the quorum required for the transaction of business at such meeting shall correspond to the requirements for meetings of the Association.
(iii) The consent of the Lot Owners required to approve said amendments shall be obtained by affirmative vote, written consent, or a combination thereof. A meeting of the Lot Owners shall not be required in the event that the requisite approval of the Lot Owners is obtained by written consent. The required consent of Declarant shall be in writing.
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No amendment to the provisions of this Declaration shall alter, modify, change or rescind any right, title, interest or privilege herein granted or accorded to the holder of any mortgage affecting any Lot unless such holder shall consent thereto in writing. The written consent thereto of any mortgage holder affected thereby shall be filed with such amendment. Every purchaser or grantee of any interest in any real property now or hereafter subject to this Declaration, by acceptance of a deed or other conveyance therefore, thereby agrees that this Declaration may be amended as provided in this Section. No amendment shall become effective until filed with the Clerk of the Superior Court of Oconee County, Georgia.
Section 8. Interpretation. In all cases, the provisions set forth or provided for in this Declaration shall be construed together and given that interpretation or construction which will best effect the intent of the general plan of development. The provisions hereof shall be liberally interpreted and, if necessary, they shall be so extended or enlarged by implication as to make them fully effective.
Section 9. Gender and Grammar. The singular whenever used herein shall be construed to mean the plural when applicable, and the use of the masculine pronoun shall include the neuter and feminine.
Section 10. Severability. Whenever possible, each provision of this Declaration shall be interpreted in such manner as to be effective and valid, but if the application of any provision of this Declaration to any person or to any property shall be prohibited or held invalid, such prohibition or invalidity shall not affect any other provision or the application of any provision which can be given effect without the invalid provision or application, and to this end the provisions of this Declaration are declared to be severable.
Section 11. Captions. The captions of each Article and Section hereof as to the contents of each Article and Section are inserted only for convenience and are in no way to be construed as defining, limiting, extending or otherwise modifying or adding to the particular Article or Section to which they refer.
Section 12. ment here the one Rever The f Conservation Easement. The property subject to the Declaration is also subject to a Conservation Easement held by the Oconee River Land Trust and is subject to all the terms and provisions of same.
Section 13. Real Estate Listings. Any unimproved lot which is offered for sale by any owner shall be listed by Byram Realty, Inc., as Seller's Broker so long as Byram Realty, Inc., remains in the business of providing real estate brokerage services.
IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has executed this instrument under seal this _ _ day of _, 2002.
Signed, sealed and delivered JOHN BYRAM AND RICHARD C. BENTON in the presence of:
-(Seal) Unofficial Witness / John Byram
_ (Seal) Notary Public, Richard C. Benton
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