Covenants
Recorded 01/02/2019 11:33AM
MICHELLE E STRICKLAND Clank Superiar Cart, MADISON County, Gr UPON RECORDING RETURN TO: 0952019004226
B: 01771 78 0021-0078 McMichael & Gray PC
574 Conyers Road, Suite 100
Loganville, GA 30052
DECLARATION OF PROTECTIVE COVENANTS,
CONDITIONS, RESTRICTIONS AND
EASEMENTS FOR WOODBURY SUBDIVISION
THIS INSTRUMENT ESTABLISHED A MANDATORY MEMBERSHIP HOMEOWNERS ASSOCIATION, BUT DOES NOT SUBMIT THE COMMUNITY TO THE PROVISIONS OF THE GEORGIA PROPERTY OWNERS'
ASSOCIATION ACT O.C.G.A. 44-3-220, ET SEQ.
Ek: 01771 P8 0022 DECLARATION OF PROTECTIVE COVENANTS,
CONDITIONS, RESTRICTIONS AND EASEMENTS
FOR WOODBURY SUBDIVISION
- TABLE OF CONTENTS -
ARTICLE 1 DEFINITION.
..Page Number 1.1 "ARTICLES OF INCORPORATION"
1.2 "ASSOCIATION"...
1.3 "BOARD OF DIRECTORS" OR "BOARD"
1.4 "BYLAWS" .
1.5 "COMMON PROPERTY"..
1.6 "COMMUNITY"..
1.7 "COMMUNITY-WIDE STANDARD"
1.8 *DECLARANT"
1.9 ILOTI...
1.10 *MORTGAGE"
1.11 *MORTGAGEE"
1.12 'OCCUPANT"
1.13 "OWNER" 2 1.14 "PERSON" .2 1.15 *PRIVATE DRIVE" ..3 1.16 "SUPPLEMENTARY DECLARATION" ..3 1.17 "TOTAL ASSOCIATION VOTE".. ..3
...3 ARTICLE 2 PROPERTY SUBJECT TO THIS DECLARATION...
..3 2.1 PROPERTY HEREBY SUBJECTED TO THIS DECLARATION..
2.2 UNILATERAL ANNEXATION BY DECLARANT.
2.3 ANNEXATION BY ASSOCIATION.. ..3 2.4 WITHDRAWAL OF PROPERTY... .4
4
ARTICLE 3 ASSOCIATION MEMBERSHIP AND VOTING RIGHTS..
.4
3.1 MEMBERSHIP..
3.2 VOTING.. .4
ARTICLE 4 ASSESSMENTS...
4.1 PURPOSE OF ASSESSMENTS...
4.2 CREATION OF THE LIEN AND PERSONAL OBLIGATION FOR ASSESSMENTS.
4.3 BUDGET...
4.4 GENERAL ASSESSMENTS..
4.5 SPECIAL ASSESSMENTS..
4.6 SPECIFIC ASSESSMENTS..
.. 6
EX 01771 Fg 0023
4.7 SUBORDINATION OF LIENS TO MORTGAGES
4.8 REMEDIES OF THE ASSOCIATION.. .7 4.9 DATE OF COMMENCEMENT OF ASSESSMENTS..
-8 4.10 BUDGET DEFICITS DURING DECLARANT CONTROL AND ESTABLISHMENT OF RESERVE FUNDS.....8 4.11 FAILURE TO ASSESS..
.8 4.12 ESTOPPEL LETTER...
.9 4.13 WORKING CAPITAL CONTRIBUTION....
..9 4.14 PAYMENT OF COMMON PROPERTY TAXES.. ..9 ARTICLE 5 MAINTENANCE / COMMON PROPERTY. ..9 5.1 ASSOCIATION'S MAINTENANCE RESPONSIBILITY
...9 5.2 OWNER'S MAINTENANCE RESPONSIBILITY. .10 5.3 CONVEYANCE OF COMMON PROPERTY BY DECLARANT TO ASSOCIATION; NO IMPLIED RIGHTS11 5.4 PARTITION.
.12 5.5 CONDEMNATION .. 12 5.6 LIABILITY
.12 ARTICLE 6 ARCHITECTURAL STANDARDS ...13 6.1 GENERAL
.13 6.2 GUIDELINES AND PROCEDURES
.13 6.3 ARCHITECTURAL GUIDELINES ...14 6.4 LIMITATION OF LIABILITY
.14 6.5 NO WAIVER
...15 6.6 VARIANCES.
.15 6.7 ENFORCEMENT.
.15 6.8 ARCHITECTURAL REVIEW BY DECLARANT..
.15 ARTICLE 7 USE RESTRICTIONS AND RULES .16 7.1 RULES AND REGULATIONS
...16 7.2 RESIDENTIAL USE
7.3 SIGNS
7.4 VEHICLE; PARKING..
7.5 LEASING
7.6 ANIMALS AND PETS.
7.7 NUISANCE.
7.8 UNSIGHTLY OR UNKEPT CONDITIONS
7.9 ANTENNAE.. ... .. 7.10 TREE REMOVAL
7.11 DRAINAGE
7.12 SIGHT DISTANCE AT INTERSECTIONS.
7.13 GARBAGE CANS, WOODPILES, ETC.
7.14 SUBDIVISION OF LOT
7.15 FIREARMS AND FIREWORKS
7.16 FENCE.
E 01771 FE 0024
7.17 UTILITY LINES.
..23 7.18 AIR-CONDITIONING UNITS. ...23 7.19 LIGHTING AND DISPLAYS...
...23 7.20 ARTIFICIAL VEGETATION, GARDENS, PLAY EQUIPMENT, EXTERIOR SCULPTURE, WATER
FEATURES SIMILAR ITEMS.. ...23 7.21 FLAGS..
..23 7.22 CONSERVATION EQUIPMENT
...23 7.23 SWIMMING POOLS..
..24 7.24 CLOTHESLINES..
...24 7.25 ENTRY FEATURES...
...24 7.26 WINDOW TREATMENTS.. ...24 7.27 GARAGE SALES..
7.28 OUTBUILDINGS AND SIMILAR STRUCTURES.
...24 7.29 STREAM BUFFER.
.24 7.30 STORM WATER DETENTION/RETENTION PONDS, CREEKS AND STREAMS.
..24 7.31 UNDISTURBED BUFFER AREAS.. .25 ARTICLE 8 INSURANCE AND CASUALTY LOSSES .25 8.1 INSURANCE OBTAINED BY ASSOCIATION
...25 8.2 INSURANCE OBTAINED BY LOT OWNERS.
.26 8.3 DAMAGE AND DESTRUCTION -- INSURED BY ASSOCIATION
.26 8.4 DAMAGE AND DESTRUCTION - INSURED BY OWNERS
..27 ARTICLE 9 EASEMENTS ..27 9.1 GENERAL.
...27 9.2 EASEMENTS FOR USE AND ENJOYMENT.
...27 9.3 EASEMENTS FOR UTILITIES.. ...28 9.4 EASEMENT FOR EMERGENCY ENTRY...
...28 9.5 EASEMENT FOR MAINTENANCE
..29 9.6 EASEMENT FOR ENTRY FEATURES AND STREETSCAPES
.29 9.7 EASEMENT FOR DRAINAGE..
...29 9.8 EASEMENT DURING CONSTRUCTION AND SALE PERIOD..
...29 9.9 EASEMENT FOR PRIVATE DRIVE, SIDEWALKS AND SIGNS. ...30 9.10 EASEMENT FOR CLUSTER MAILBOXES... ..30 ARTICLE 10 GENERAL PROVISIONS. .30 10.1 ENFORCEMENT.
...30 10.2 OCCUPANTS BOUND ...31 10.3 SELF-HELP..
.31
10.4 DURATION.
...31 10.5 TERMINATION OF RIGHTS OF DECLARANT.
.32 10.6 AMENDMENT
..32
10.7 GENDER AND GRAMMAR
.33
10.8 SEVERABILITY.
..33
Ek 01771 & 0025 10.9 CAPTIONS.. ..33 10.10 NO MERGER.. .33 10.12 NOTICES.. ….34 10.13 NO DISCRIMINATION.. ....34 10.14 SECURITY.... ...34 10.15 INDEMNIFICATION.. ...34 10.16 NOTICE OF SALE OR ACQUISITION ...35 10.17 AGREEMENTS ...35 10.18 VARIANCES.. ..35 10.19 LITIGATION ...35
EXHIBIT "A" - PROPERTY SUBJECT TO THIS DECLARATION
EXHIBIT "B' - ADDITIONAL PROPERTY WHICH MAY BE UNILATERALLY SUBMITTED TO THE
DECLARATION BY DECLARANT
EXHIBIT "C" - BYLAWS OF WOODBURY HOMEOWNERS ASSOCIATION, INC.
iv
Ek. 01771 ₽§ 0026 DECLARATION OF PROTECTIVE COVENANTS,
CONDITIONS, RESTRICTIONS AND EASEMENTS
FOR WOODBURY SUBDIVISION
THIS DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR WOODBURY SUBDIVISION ("Declaration) is made on the date hereinafter set forth by Reliant Homes GA, LLC, a Georgia limited liability company (hereinafter sometimes called "Declarant");
WITNESSETH
WHEREAS, Declarant is the owner of the real property described in Exhibit "A" hereof; and
WHEREAS, Declarant desires to subject the real property described in Exhibit "A" hereof to the provisions of this Declaration to create a residential community of single-family housing and to provide for the subjecting of other real property to the provisions of this Declaration;
NOW, THEREFORE, Declarant hereby declares that the real property described in Exhibit "A" attached hereto and by this reference incorporated herein is hereby subjected to the provisions of this Declaration and shall be held, sold, transferred, conveyed, used, occupied, mortgaged and otherwise encumbered subject to the covenants, conditions, restrictions, easements, assessments and liens,
hereinafter set forth, which are for protecting the value and desirability of and which shall run with the title to the real property hereby and hereafter 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 and hereafter made
subject hereto, their respective heirs, legal representatives, successors, successors-in-title and assigns and shall inure to the benefit of each owner of all or any portion thereof.
Article 1
Definitions
The following words, when used in this Declaration or in any Supplementary Declaration, shall have the following meanings:
1.1"Articles of Incorporation" means the Articles of Incorporation of Woodbury Homeowners Association, Inc., filed with the Georgia Secretary of State and incorporated herein by this reference, as may be amended from time to time.
1.2"Association" means Woodbury Homeowners Association, Inc., a Georgia nonprofit
corporation, its successors and assigns.
1.3 "Board of Directors" or "Board' means the appointed or elected body of the Association vested with the authority to operate and manage the affairs of the Association under the Georgia
Nonprofit Corporation Code, O.C.G.A. Section 14-3-101, et seq.
1.4 "Bylaws" means the Bylaws of Woodbury Homeowners Association, Inc., attached to this Declaration as Exhibit "C" and incorporated herein by this reference as may be amended from time to time.
1.5"Common Property" means any and all real and personal property, including, without
limitation, the Private Drive, easements and other interests therein, and the facilities and improvements
5: 01771 Pg 0027 located thereon, now or hereafter owned by the Association for the common use and enjoyment of the Owners.
1.6 "Community" refers to that certain real property described in Exhibit "A", attached hereto, and such additions thereto as may be made by Supplementary Declaration as provided herein.
1.7"Community-Wide Standard means the standard of conduct, maintenance or other activity generally prevailing in the Community. Such standard may be more specifically determined by the Board of Directors of the Association and may be articulated in the Architectural Guidelines established pursuant to Article 6 hereof, but must be consistent with the Community-Wide Standard established by the Declarant.
1.8 "Declarant" means Reliant Homes GA, LLC, a Georgia limited liability company and its successor, successors-in-title or assigns taking title to any portion of the property described in Exhibit "A" or Exhibit "B" hereof for the purpose of development and/or sale and designated as Declarant in a recorded instrument by the then holder of the rights of Declarant hereunder. Any or all of the rights of Declarant set forth in this Declaration, the Articles of Incorporation or the Bylaws may be transferred or assigned in whole or in part to other Persons, provided that the transfer or assignment shall not reduce an obligation nor enlarge a right beyond that which the Declarant has under this Declaration, the Articles of Incorporation or the Bylaws. No transfer or assignment of the rights of Declarant as provided herein shall be effective unless it is in a written instrument signed by the Declarant and recorded in the Madison County, Georgia land records.
1.9 "Lot" means any plot of land within the Community, whether or not improvements are constructed thereon, which constitutes or will constitute, after the construction of improvements, a single-family dwelling site as shown on the subdivision plat(s) for the Community recorded in the Madison County, Georgia land records. The ownership of each Lot shall include, and there shall pass with the title to each Lot as an appurtenance thereto, whether or not separately described, all of the rights and interests of an Owner in and to the Common Property, as herein provided, together with membership in the Association.
1.10 "Mortgage" means any and all instruments used for the purpose of encumbering real property in the Community as security for the payment or satisfaction of an obligation, including, without limitation, any mortgage, deed to secure debt or deed of trust.
1.11 "Mortgagee" means the holder of a Mortgage.
1.12 "Occupant" means any Person occupying all or any portion of a Lot within the Community for any period of time, regardless of whether such Person is a tenant of the Owner of such property.
1.13 "Owner" means the record owner, whether one or more Persons, 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.
1.14 "Person" includes any individual, individual acting in a fiduciary capacity, corporation, limited partnership, limited liability company, general partnership, joint stock company, joint venture, association, company or other organization recognized as a separate legal entity under Georgia law.
& 01771 F8 0028 1.16 "Supplementary Declaration" means a supplement to this Declaration which subjects additional property to the provisions of this Declaration and/or imposes additional covenants,
conditions, restrictions or easements on the land described therein.
1.17 "Total Association Vote" means the votes attributable to the entire membership of the Association (including the votes of Declarant) as of the record date for such action, but specifically excluding the votes of any Owners whose voting rights have been suspended as provided herein, whether or not such members are present or represented at the meeting, if any, where such votes are to be cast. If, for example, and without limitation, two-thirds (2/3) of the Total Association Vote is required to approve a matter, such matter must receive more than twothirds (2/3) of the votes attributable to all existing members of the Association as of the record date for such action (and
excluding the votes of any Owners whose voting rights have been suspended as provided herein), whether or not such members are present or represented at the meeting, if any, where such votes are to be cast.
Article 2
Property Subject To This Declaration
Property Hereby Subjected to This Declaration. The real property which is, by the recording of this Declaration, subject to the covenants, conditions, restrictions and easements
hereinafter set forth and which, by virtue of the recording of this Declaration, shall be held, transferred, sold, conveyed, used, occupied and encumbered subject to this Declaration is the real property
described in Exhibit "A" attached hereto and by this reference made a part hereof.
2.2 Unilateral Annexation by Declarant. As the owner thereof or, if not the owner, with the consent of the owner thereof, Declarant shall have the unilateral right, privilege, and option from time to time at any time until ten (10) years after the recording of this Declaration to subject all or any portion of the real property described in Exhibit "B" attached hereto and by this reference incorporated herein, to the provisions of this Declaration and the jurisdiction of the Association by filing for record in the Madison County, Georgia land records a Supplementary Declaration executed by the Declarant describing the property being subjected. Any annexation shall be effective upon the filing for record of such Supplementary Declaration in the Madison County, Georgia land records, unless a later effective date is provided therein.
Declarant intends to annex hereto the property contained in Declarant's land plan for the development, as amended from time to time, which property is a portion of the property described in Exhibit "B". However, inclusion of property on Declarant's land plan or in Exhibit "B" shall not obligate the Declarant to subject such property to the Declaration, nor shall exclusion of property from the initial land plan bar Declarant from subjecting such property to the Declaration. As long as covenants
applicable to the real property previously subjected to this Declaration are not changed and as long as the rights of existing Owners are not adversely affected, the Declarant may unilaterally amend this Declaration to reflect the different character of any such annexed real property. If any land is not
subjected to this Declaration, Declarant's reserved rights shall not impose any obligation on Declarant to impose any covenants and restrictions similar to those contained herein upon such additional land nor
Sk 01771 ₽g _Q029 shall such rights in any manner limit or restrict the use to which such additional land may be put by Declarant or any subsequent owner thereof, regardless of whether such uses are consistent with the covenants and restrictions imposed herein.
2.3 Annexation by the Association. Upon the written consent of: (a) the owner(s) thereof; (b) the Declarant; and (c) the Owners of at least two-thirds (2/3) of the Lots, the Association may annex real property to the provisions of this Declaration and the jurisdiction of the Association by filing for record in the Madison County, Georgia land records a Supplementary Declaration describing the
property being annexed. Any such Supplementary Declaration shall be executed on behalf of the
Association by the President of the Association whose signature shall be attested by the Secretary of the Association. The annexation shall be effective only upon the filing for record of such Supplementary Declaration in the Madison County, Georgia land records, unless a later effective date is provided
therein.
2.4 Withdrawal of Property. So long as Declarant has a right to unilaterally annex additional property pursuant to Section 2.2 hereof, Declarant shall have the right to amend the Declaration to remove any portion of the Community then owned by Declarant or the Association, as the case may be, from the coverage of this Declaration and the jurisdiction of the Association, to the extent originally included in error or as a result of any changes whatsoever in the plans for the Community, provided such withdrawal is not unequivocally contrary to the overall, uniform scheme of development for the Community. Any withdrawal shall be accomplished by the filing for record of an amendment to this Declaration which: (a) describes the property to be removed; and (b) is executed by the Declarant and the Owner(s) of the property being removed, if not the Declarant. Such amendment shall be executed by the Declarant and the Owner(s) of the property being removed and shall not require the vote or consent of any Lot Owners in the Community. The withdrawal shall be effective upon filing for record of such amendment in the Madison County, Georgia land records, unless a later effective date is provided therein.
Article 3
Association Membership and Voting Rights
3.1 Membership. Every Person who is the record owner of a fee or undivided fee interest in any Lot that is subject to this Declaration shall have a membership in the Association. The foregoing is not intended to include Persons who hold an interest merely as security for the performance of an
obligation, and the giving of a security interest shall not terminate an Owner's membership. No Owner, whether one (1) or more Persons, shall have more than one (1) membership per Lot. Membership shall be appurtenant to and may not be separated from ownership of a Lot. The rights and privileges of
membership, including the right to hold office, may be exercised by a member or the spouse of a
member, but in no event shall more than one (1) Person representing a single membership hold office at the same time. This Section is not intended to prohibit the same individual from being both an officer and a director of the Association. Nothing in this Section shall restrict the number of votes cast or the number of officers and directors appointed by the Declarant.
3.2 Voting. Members shall be entitled to cast one (1) vote for each Lot owned. When more than one (1) Person holds an ownership interest in a Lot, the vote for such Lot shall be exercised as
those Owners themselves determine and advise the Secretary prior to any meeting or referendum. The
B 01771 Pg 0030 vote attributable to a Lot shall be suspended in the event more than one (1) Person seeks to exercise it. The Board of Directors may suspend the voting rights of an Owner for any period of time during which any past due assessment against any Lot of the Owner remains unpaid; and, for a reasonable period of time for an infraction of the Declaration, Bylaws, rules and regulations of the Association or the Architectural Guidelines, as more particularly set forth in Article 6 hereof.
Article 4
Assessments
Purpose of Assessments. The assessments provided for herein shall be used for the general purposes of promoting the recreation, health, safety, welfare, common benefit, and enjoyment of the Owners of Lots, including, without limitation, the maintenance of real and personal property, all as may be more specifically authorized from time to time by the Board of Directors.
4.2 Creation of the Lien and Personal Obligation for Assessments. Each Owner of a Lot, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, covenants and agrees to pay to the Association: (a) general assessments; (b) special assessments; and (c) specific assessments. All assessments, together with sums lawfully assessed by the Association against any Owner or Lot, whether for the share of the common expenses pertaining to that Lot, for fines, or otherwise, including without limitation, late charges (not in excess of the greater of Ten and No/100 Dollars ($10.00) or ten percent (10%) of the amount due), interest (at a rate not in excess of ten percent (10%) per annum on the principal amount due), costs of collection, reasonable attorneys' fees actually incurred and, if the Board of Directors so elects, the fair rental value of the Lot, and all reasonable charges made to any Owner or Lot for materials furnished or services rendered by the Association at the Owner's request to or on behalf of the Owner or Lot, shall, from the time the same become due and payable, be the personal obligation of the Person who was the Owner of the Lot at the time the assessment fell due and constitute a continuing lien in favor of the Association on the Lot prior and superior to all other liens whatsoever except: (1) liens for ad valorem taxes on the Lot; (2) the lien of any first priority Mortgage covering the Lot and the lien of any Mortgage recorded prior to the recording of this Declaration; and (3) the lien of any secondary purchase money Mortgage covering the Lot, provided that neither the grantee nor any successor grantee on 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 shall be required. Each Owner shall be personally liable for the portion of each assessment coming due while the Owner of a Lot, and each grantee shall be jointly and severally liable for such portion thereof as may be due and payable at the time of conveyance; provided, however, the liability of a grantee for the unpaid assessments of the grantor shall not apply to or (3) above. any first Mortgagee taking title through foreclosure proceedings pursuant to a Mortgage described in (2)
No Owner may waive or otherwise be exempt from liability for the assessments provided for herein for any reason, including, by way of illustration and not limitation, the following: (a)
abandonment of the Lot; (b) nonuse of the Common Property; (c) the Association's failure to perform its obligations required under the Declaration; or (d) inconvenience or discomfort arising out of the
Ek: 01771 ₽g 0031 Association's performance of its duties. No diminution or abatement of any assessment shali be claimed or allowed by reason of any failure of the Association to take some action or perform some function required to be taken or performed by the Association, the obligation to pay assessments being a separate and independent covenant on the part of each Owner. All payments shall be applied first to costs, then to late charges, then to interest and then to delinquent assessments
Budget. It shall be the duty of the Board to prepare a budget covering the estimated costs of operating the Association during the coming year. The Board shall cause the budget and the general assessment to be levied against each Lot for the year to be delivered to each member at least thirty (30) days prior to the due date of such general assessment. The budget and the general assessment shall become effective unless disapproved at a meeting by a majority of the Total Association Vote and the Declarant. Notwithstanding the foregoing, however, in the event the membership disapproves the proposed budget or the Board fails for any reason to determine the budget for any period, then and until such time as a budget has been determined, as provided herein, the budget in effect shall continue.
4.4 General Assessments. General assessments shall be levied equally on all similarly situated Lots and shall be paid in such manner and on such dates as may be fixed by the Board of Directors, which may include, without limitation, acceleration, upon ten (10) days' written notice for delinquents. Unless otherwise provided by the Board, the general assessment shall be paid in one annual installment. General assessments include any sums the Board determines necessary for the continued ownership, operation and maintenance of the Common Property, improvements to the establishment of reserve funds as the Board shall deem proper. General assessments may include, Common Property, operating expenses of the Association, payment for any items of betterment and the without limitation, the following: (a) sums for property taxes for the Common Property; (b) insurance premiums; (c) legal and accounting fees; (d) management fees; (e) charges for utilities and other services provided by the Association, if any; (f) landscape maintenance; (g) costs to maintain the features; (h) costs to maintain the storm water Community entry features and any irrigation and/or electricity expenses provided to such entry
4.5 Special Assessments. The Association, acting through the Board of Directors, may levy a special assessment against all Owners in the Community for unbudgeted or unanticipated expenses or expenses in excess of those budgeted. So long as the total amount of special assessments allocated to each Lot does not exceed the amount of the annual general assessment in any one fiscal year, the Board may impose the special assessment without a vote of the Owners. Except for special assessments levied pursuant to Section 8.3 hereof, any special assessment which would cause the total amount of the special assessments allocated to any one Lot in a single fiscal year to exceed the amount of the annual general assessment must be approved by two-thirds (2/3) of the Total Association Vote and the Declarant in order to be effective. Special assessments shall be paid as determined by the Board. The which the special assessment is imposed. Board may permit a special assessment to be paid in installments extending beyond the fiscal year in
4.6 Specific Assessments. The Board shall have the power to levy specific assessments as, in its discretion, it shall deem appropriate. The failure of the Board to exercise its authority under this Section shall not be grounds for any action against the Association and shall not constitute a waiver of the Board's right to exercise its authority under this Section in the future with respect to any expenses,
E 01771 ⅛ 0032 including an expense for which the Board has not previously exercised its authority under this Section. By way of explanation and not limitation, the following shall constitute specific assessments: (a) fines levied pursuant to this Declaration; (b) the working capital contribution; (c) the cost of maintenance performed by the Association for which an Owner is responsible.
In addition to the foregoing, the Board of Directors may also specifically assess Owners for Association expenses as follows: (a) expenses of the Association which benefit less than all of the Lots may be specifically assessed equitably among all of the Lots which are benefited according to the benefit received; (b) expenses of the Association which benefit all Lots, but do not provide an equal benefit to all Lots, may be specifically assessed equitably among all Lots according to the benefit received; and (c) expenses incurred by the Association which are attributable to the conduct of a particular Owner or the Occupants, guests, tenants, invitees or licensees of such Owner may be specifically assessed against the Lot of said Owner.
4.7 Subordination of Liens to Mortgages. Notwithstanding anything to the contrary in this Declaration or any other document related thereto or executed in connection therewith, the lien of all assessments authorized herein is hereby made subordinate to the lien of any first Mortgage placed on a Lot if, but only if, all assessments and charges with respect to such Lot authorized herein having a due date on or prior to the date of the Mortgage as filed of record have been paid. The lien hereby
subordinated is only such lien as relates to assessments and charges authorized hereunder having a due date subsequent to the date such Mortgage is filed of record and prior to the satisfaction, cancellation or foreclosure of such Mortgage or the sale or transfer of the Lot pursuant to any proceeding in lieu of foreclosure or the sale or transfer of the Lot pursuant to a sale under power contained in such
Mortgage. Such subordination is merely a subordination and shall not relieve the Owner of the Lot of the personal obligation to pay all assessments coming due during such period of ownership; shall not relieve such Lot from the lien provided for herein (except to the extent a subordinated lien is
extinguished as a result of such subordination as against a Mortgagee or such Mortgagee's assignee or transferee by foreclosure or by sale under power); and no sale or transfer of such Lot to the Mortgagee or to any other Person pursuant to a decree of foreclosure, or pursuant to any other proceeding in lieu of foreclosure or pursuant to a sale under power, shall relieve any existing or previous Owner of such Lot of any personal obligation or relieve such Lot or the then Owner of such Lot from liability for any assessment authorized hereunder that becomes due after such sale and transfer.
4.8 Remedies of the Association. Any assessments or installments thereof which are not paid when due shall be delinquent. In addition to the lien rights, the personal obligation of the then Owner to pay such assessments shall remain such Owner's personal obligation and shall also pass to such Owner's successors-in-title. Such Owner shall nevertheless remain as fully obligated as before to pay to the Association any and all amounts which such Owner was obligated to pay immediately
preceding the transfer; and such Owner and such successors-in-title shall be jointly and severally liable with respect thereto, notwithstanding any agreement between such Owner and such successors-in-title creating any indemnification of the Owner or any relationship of principal and surety as between
themselves. Any assessment or installment thereof delinquent for a period of more than thirty (30) days shall incur a late charge (not in excess of the greater of Ten and No/100 Dollars ($10.00) or ten percent (10%) of the amount due, or such higher amount as may be authorized by the Georgia Law from time to time), interest at a rate not excess of ten percent (10%) per annum on the principal amount due, or such higher amount as may be authorized by the law from time to time) and costs of collection, including,
EL 01771 Pg 0033 without limitation, reasonable attorney's fees actually incurred. As provided in O.C.G.A. Section 44-560(e), the obligation for the payment of assessments and fees arising hereunder shall include the costs of collection, including, without limitation, reasonable attorney's fees actually incurred, and the award of attorneys' fees shall not be construed in accordance with the provisions of O.C.G.A. Section 13-111(a)(2).
The Association may cause a notice of delinquency to be given to any Owner who has not paid within ten (10) days following the due date. In the event that the assessment remains unpaid after sixty (60) days, the Association may institute suit to collect such amounts and/or to foreclose its lien. The Association may file a claim of lien with the Office of the Clerk of Superior Court of Madison County, Georgia, but no such claim of lien shall be required to establish or perfect the lien for unpaid
assessments. Each Owner, by acceptance of a deed, vests in the Association the right and power to bring all actions against such Owner personally, for the collection of such charges as a debt or to foreclose the lien. The lien provided for in this Declaration shall be in favor of the Association and shall be for the benefit of all Owners. The Association shall have the power to bid on the Lot at any foreclosure sale and to acquire, hold, lease, mortgage and convey the same. The Association may also suspend the
membership rights of the delinquent Owner, including the right to vote, the right of enjoyment in and to the Common Property and the right to receive and enjoy such services and other benefits as may then be provided by the Association, if any. Any suspension shall not affect such Owner's obligation to pay assessments coming due during the period of such suspension and shall not affect the permanent lien on such Lot in favor of the Association.
4.9 Date of Commencement of Assessments. Assessments shall commence as to all Lots when the Board of Directors first determines a budget and levies assessments. The assessments
provided for herein shall commence as to a Lot and on the date that such Lot has been improved with a dwelling for which a certificate of occupancy has been issued and has been conveyed to an Owner who intends to occupy the dwelling, or, if the dwelling is occupied as a residence before such conveyance, the date of such occupancy. Any Lot which has been approved by Declarant for use as a model home for marketing and sales purposes shall not be deemed to be occupied for residential purposes and shall not be subject to assessments under this Declaration whether owned by Declarant or any other Person, so long as such Lot is used as a model home and is not occupied for residential purposes.
4.10 Budget Deficits During Declarant Control and Establishment of Reserve Funds. For so long as the Declarant has the authority to appoint and remove the directors and officers of the
Association, the Declarant may, but shall have no obligation to: (a) advance funds or contributions of services or materials or a combination of services and materials, rather than money (herein collectively called "in kind contribution"), or a combination of these, to the Association sufficient to satisfy the deficit, if any, between the actual operating expenses of the Association (but specifically not including an allocation for capital reserves), and the sum of the general, special and specific assessments collected by the Association in any fiscal year (such advances shall be evidenced by promissory notes from the Association in favor of the Declarant); or (b) cause the Association to borrow such amount from a
commercial lending institution at the then prevailing rates for similar loans in the local area of the
Community; provided, however, no Mortgage secured by the Common Property or any of the structures or improvements maintained by the Association shall be given in connection with such loan.
B: 01771 Pg 0034 4.11 Failure to Assess. The omission or failure of the Board to fix the assessment amounts or rates or to deliver or mail to 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 assessments on the same basis as for the last year for which an assessment was made, if any, until a new assessment is made, at which time any shortfalls in collections may be assessed retroactively by the Association.
4.12 Estoppel Letter. Any Owner, Mortgagee, or a Person or entity having executed a contract for the purchase of a Lot, or a lender considering a loan to be secured by a Lot, shall be entitled, upon written request, to a statement from the Association or its managing agent setting forth the amount of assessments past due and unpaid, including any late charges, interest, fines, or other charges against that Lot. Such request shall be delivered to the registered office of the Association, and shall state an address to which the statement is to be directed. The Association shall, respond in writing within five (5) business days of receipt of the request for a statement, or such longer period as may be permitted by law and the Association may require the payment of a reasonable fee not to exceed Ten and No/100 Dollars ($10.00), or such higher amount as may be authorized by the law, as a prerequisite to the issuance of such a statement. Such written statement shall be binding on the Association as to the amount of assessments due on the Lot as of the date specified therein.
4.13 Working Capital Contribution. Upon the sale of each and every Lot after it has been improved with a residence for which a certificate of occupancy has been issued, a working capital contribution in the amount of Three Hundred and No/100 Dollars ($300.00) shall be collected from the new Owner at the closing of such transaction and disbursed to the Association; or if not collected at closing, shall be paid immediately upon demand to the Association. Notwithstanding the foregoing, the Board may in its discretion increase the amount of the capital contribution.
The working capital contribution shall constitute a specific assessment against the Lot, shall be in addition to, not in lieu of, the general assessment and shall not be considered an advance payment of such assessment. The working capital contribution may be used by the Association for any purpose which provides a direct benefit to the Community, including, without limitation, for the payment of operating expenses of the Association and other expenses incurred by the Association pursuant to the provisions of this Declaration. Notwithstanding the foregoing, the working capital contribution shall not apply to the holder of any first Mortgage on a Lot who becomes the Owner of a Lot through foreclosure or any other means pursuant to the satisfaction of the indebtedness secured by such Mortgage, but shall apply to the Owner acquiring title to the Lot from the foreclosing Mortgagee.
4.14 Payment of Common Property Taxes. In the event that the Association fails to pay the property taxes for all or any portion of the Common Property as provided herein, each Lot Owner shall be responsible for paying his or her pro rata share of such property taxes.
Article 5
Maintenance; Common Property
5.1 Association's Maintenance Responsibility. The Association shall maintain and keep in good repair the Common Property, which shall include, without limitation, the maintenance, repair and replacement of all landscaping, structures and improvements located thereon. The Association shall also maintain (whether or not constituting Common Property) the following: (a) all Community entry
E₺ 01771 0035 features, including, without limitation, any landscaping associated therewith and any irrigation system and/or lighting system, if any, provided to said entry features and related landscaping, regardless of whether such entry features are located on a Lot, Common Property or public right-of-way; (b) all Community common area and open space, including, without limitation, the storm water management area as identified on the recorded subdivision plat(s) for the Community; (c) all storm water drainage facilities and storm water detention/retention ponds serving the Community and any gate, fence or other enclosure surrounding said storm water detention/retention pond(s), if and to the extent the same are not maintained on an ongoing basis by a governmental entity or third party; provided, however, each Owner of a Lot and not the Association shall be responsible for maintaining all storm water drainage facilities located on and exclusively serving said Lot; (d) the Private Drive; (e) and any street medians or street islands located along the public right-of-ways in the Community, if and to the extent the same are not maintained on an ongoing basis by a governmental entity or third party; and (f) the centralized mailbox area and the mailboxes located thereon, regardless of whether the same are located on a Lot or Common Property.
Notwithstanding the foregoing, in the event that the Association fails to any maintain any portion of the Common Property, including, without limitation the storm water detention/retention ponds, each Lot Owner will be responsible for paying his or her pro rata share of the expenses
associated with providing such maintenance.
In the event that the Association determines that the need for maintenance, repair, or
replacement, which is the responsibility of the Association hereunder, is caused through the willful or negligent act of an Owner, or the Occupants, family, guests, lessees or invitees of an Owner, then the Association may perform such maintenance, repair or replacement and all costs thereof, not paid for by insurance, shall be assessed against the Lot of such Owner as a specific assessment. All maintenance by the Association shall be performed consistent with the Community-Wide Standard.
The Association shall have the right, but not the obligation, to maintain property it does not own, regardless of whether such property is located within or outside of the Community, where the Board has determined such action would benefit the Owners. In addition to the foregoing, the Board shall have the right, without the consent of the members, but with the consent of the Declarant, to enter into easement and covenant to share cost agreements where the Board has determined that such action would benefit the Owners. The Board of Directors may authorize the officers of the Association to enter into contracts with any Person or Persons to perform maintenance hereunder on behalf of the Association.
5.2 Owner's Maintenance Responsibility.
(a) General. Except for maintenance performed on or to a Lot by the Association pursuant to Section 5.1, if any, all maintenance of and repair and replacement to the Lot and all structures, landscaping, and other improvements located thereon shall be the sole responsibility of the Owner thereof, who shall maintain such Lot in a manner consistent with the Community-Wide Standard and this Declaration. Such maintenance obligation shall include, without limitation, the following: (i) prompt removal of all litter, trash, refuse, and waste; (ii) lawn mowing on a regular basis; (ill) tree and shrub pruning; (iv) watering landscaped areas; (v) keeping improvements and exterior lighting in good repair and working order; (vi) keeping lawn and garden areas alive, free of weeds, and attractive; (vii) keeping driveways and walkways in good repair; (viii) complying with all governmental health and police
Ek 01771 PE 0036 requirements; (ix) maintenance of grading and storm water drainage as originally established on the Lot; (x) periodic maintenance and repair of exterior damage to improvements; (xi) all maintenance, repair and replacement to the residential dwelling located on the Lot, including, without limitation, periodic painting and pressure washing as needed; (xii) all storm water drainage facilities which are located on and exclusively serve the Lot; and (xili) the septic tank located on the Lot and all pipes, wires and conduits related thereto or used in connection therewith:
Failure to Maintain. In the event that the Board of Directors determines that any Owner has failed or refused to discharge properly any of such Owner's obligations with regard to the
maintenance, repair or replacement of items for which such Owner is responsible hereunder, the Association shall, except in an emergency situation, give the Owner written notice of the Association's intent to provide such maintenance, repair or replacement at the Owner's sole cost and expense. The notice shall set forth with reasonable particularity the maintenance, repair or replacement to be performed. The Owner shall have ten (10) days after receipt of such notice within which to complete such maintenance, repair or replacement, or, in the event that such maintenance, repair or replacement is not capable of completion within a ten (10) day period, to commence such work which shall be completed within a reasonable period of time. If an Owner does not comply with the provisions hereof, the Association may provide such maintenance, repair or replacement to the Lot and all costs thereof shall be assessed against the Owner and the Lot of such Owner as a specific assessment. This provision residence. shall not apply to any Lots) owned by the Declarant, unless improved with a dwelling and occupied as a
5.3 Conveyance of Common Property by Declarant to Association; No Implied Rights. Declarant may transfer or convey to the Association at any time and from time to time any personal property and any interest in improved or unimproved real property. Such conveyance shall be deemed to be accepted by the Association upon delivery of any personal property or upon recordation of an instrument of conveyance of any interest in real property, and the property shall thereafter be Common Property to be used and, if and as provided in Section 5.1 hereof, maintained by the Association for the benefit of its members. So long as Declarant owns any property primarily for development and/or sale in the Community or has the right unilaterally to annex additional property to the Declaration, Declarant may, upon written notice to the Association, require the Association to re-convey to Declarant all or any portion of the Common Property, improved or unimproved, at no charge to Declarant, without a vote of the members of the Association, if all or any portion of the Common Property is: (a) found by Declarant to have been conveyed in error; (b) needed by Declarant to make adjustments in property boundary lines; or (c) reasonably determined by Declarant to be needed by Declarant due to changes in the overall scheme of development for the Community.
The Association hereby constitutes and appoints Declarant as its agent and attorney-infact to accept on behalf of the Association any such conveyance to the Association, to re-convey any such property on behalf of the Association and to execute on behalf of the Association any and all
documents, including, without limitation, deeds, necessary or convenient to effectuate and document any such conveyance to or re-conveyance from the Association. The power and agency hereby granted are coupled with an interest and are irrevocable by death or otherwise. Declarant shall not be required to make any improvements whatsoever to property to be conveyed and accepted pursuant to this Section and shall have no duty or obligation to convey any property or property rights to the Association regardless of whether such property has been made available for the use of Owners. Declarant, or the
Ek 01771 PE 0037 owner of the property with the approval of Declarant, may reserve, by lease, license, easement or otherwise, such rights of use and enjoyment in and to all or any portion of the property so conveyed as Declarant may reasonably require so long as such reservation is not materially inconsistent with the overall scheme of development for the Community. Neither the recordation of any subdivision plat nor the use by the Owners or maintenance by the Association of any property shall create any rights, easements or licenses, in the Association or the Owners, express or implied, unless and until any such property rights, easements or licenses are conveyed by the Declarant or the owner of such property to the Association or the Owners, as the case may be, by an instrument recorded in the Madison County, Georgia land records.
Partition. The Common Property shall remain undivided and no Owner shall bring any action for partition or division of the whole or any part thereof without the written consent of: (a) all Owners of all portions of the property located within the Community; and (b) all holders of all
Mortgages encumbering any portion of the property, including, but not limited to, the Lots located within the Community.
5.5 Condemnation. In the event of a taking by eminent domain of all or any portion of the Common Property on which improvements have been constructed, the Association shall, if reasonably possible, restore or replace such improvements on the remaining Common Property, unless within sixty (60) days after such taking, an alternative plan is approved by at least seventy-five percent (75%) of the Total Association Vote and the Declarant. The provisions of this Declaration applicable to the
replacement or restoration of damaged improvements on the Common Property shall also apply to and govern the actions to be taken in the event that the improvements are not restored or replaced after a condemnation.
5.6 Liability. Owners, Occupants and their guests shall use the common areas maintained by the Association and all other Common Property and all portions of the Community not contained within a Lot, including, without limitation, the Private Drive, at their own risk and shall assume sole responsibility for their personal belongings used or stored thereon. All Owners and Occupants shall have an affirmative duty and responsibility to inspect the Common Property and all portions of the Community not contained within a Lot for any defects, perils or other unsafe conditions relating to the use and enjoyment thereof. The Association, the Declarant and their respective officers, directors, employees, representatives and agents shall not be held liable for: (a) personal injury to any person occurring on the Common Property; (b) loss or damage to personal belongings used or stored on the Common Property or on any other portion of the Community; or (c) loss or damage, by theft or
otherwise, of any other property of such Owner or Occupant.
The Association, Declarant and their respective representatives, agents, officers, directors and employees shall not be liable for injury or damage to any Person or property: (a) caused by the elements or by an Owner or any other Person; (b) resulting from any rain or other surface water which may leak or flow from any street, pipe, plumbing, drain, conduit, appliance, equipment, security system, or utility line or facility, the responsibility for the maintenance of which is that of the Association or from any portion of the Common Property; or (c) caused by any street, pipe, plumbing, drain, pond, lake, dam, conduit, appliance, equipment, security system, or utility line or facility, the responsibility for the
maintenance of which is that of the Association, becoming out of repair.
Ek: 01771 F: 0038 Article 6
Architectural Standards
General. No exterior construction, alteration or addition of any improvements of any nature whatsoever (including, without limitation, staking, clearing, excavating, grading, filling,
construction of impervious surfaces, building, exterior alteration of existing improvements, installing storm and screen doors and storm windows, fencing, changing the exterior color of any existing
improvement and planting and removing landscaping materials), shall be commenced or placed upon any part of the Community unless, installed by the Declarant or an affiliate of the Declarant, approved in accordance with this Article, or otherwise expressly permitted under this Declaration. Any Owner hereunder. However, additions and/or modifications to the interior of balconies, porches, patios, decks and similar portions of a structure visible from outside of a Lot shall be subject to approval. No approval shall be required to repaint the exterior of a structure located on a Lot in accordance with the originally approved color scheme or to rebuild in accordance with originally approved plans and specifications. This Article shall not apply to the activities of the Declarant or its affiliates or to improvements to the Common Property made by or on behalf of the Association. This Article may not be amended without the written consent of the Declarant until: (a) Declarant no longer owns any property in the Community and no longer has the right to unilaterally annex additional property to the Community; and (b) each Lot has been improved with a dwelling for which a certificate of occupancy has been issued.
Guidelines and Procedures. Except as provided above or as specifically articulated in the Architectural Guidelines as defined in Section 6.3 hereof, no exterior construction, addition or alteration shall be made unless and until plans and specifications shall have been submitted in writing to and approved by the Declarant. Such plans and specifications shall be of sufficient detail to allow the
Declarant to make its review and, to the extent required by the Declarant, shall show the nature, kind, shape, height, materials and location of the proposed structure or improvement. The Declarant shall be the sole arbiter of such plans and specifications and may withhold approval for any reason, including, without limitation, purely aesthetic considerations, and it shall be entitled to stop any construction in violation of any plans and specifications, Architectural Guidelines or any other provision of this
Declaration. If the Declarant fails to approve or disapprove submitted plans and specifications within forty-five (45) days after receipt of all required information, such approval shall be deemed to have been given. If construction does not commence on a project for which plans have been approved within twelve (12) months of such approval, such approval shall be deemed withdrawn, and it shall be
necessary for the Owner to resubmit the plans to the Declarant for reconsideration.
As a condition of approval under this Article, each Owner, on behalf of such Owner and such Owner's successors-in-interest, shall assume all responsibilities for the maintenance, repair,
replacement and insurance to and on any improvement, change, modification, addition or alteration. In the discretion of the Declarant, an Owner may be required to verify such condition of approval by a recordable written instrument acknowledged by such Owner on behalf of such Owner and such Owner's successors-in-interest. The Declarant and its representatives and agents shall have the right, during reasonable hours and after reasonable notice, to enter upon any property in the Community to
determine whether or not these restrictive covenants have been or are being complied with and such Persons shall not be deemed guilty of trespass by reason of such entry; provided, however, nothing
Sk 01771 0039 herein shall be construed as permitting the Association to enter any residential dwelling located on a Lot without the consent of the Owner thereof.
6.3 Architectural Guidelines. The Declarant may adopt written architectural guidelines and application and review procedures (Architectural Guidelinest), which may provide for a review fee. The Declarant shall have the sole and full authority to prepare and to amend, modify, repeal or expand from time to time at its sole discretion and without notice, the Architectural Guidelines. In the event the Declarant modifies, expands or repeals all or any portion of the Architectural Guidelines, said new Architectural Guidelines 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 by a majority of the Total Association Vote and the Declarant. The Declarant shall make the Architectural Guidelines available to Owners and Occupants who seek to engage in construction upon all or any portion of the Community and such Owners and Occupants shall conduct their operations strictly in accordance therewith and with the provisions of this Article 6. In addition, to the foregoing, the Declarant shall provide, without cost, a copy of the Architectural
Guidelines then in effect to any requesting member or Mortgagee.
Limitation of Liability. Plans and specifications are not approved for engineering or structural design, quality of materials or for compliance with applicable building codes, permitting requirements, zoning conditions or other applicable local or governmental laws, regulations and
ordinances governing construction in the Community and by approving such plans and specifications the Declarant, the Association and their respective directors, officers, members, representatives, agents or employees assume no liability or responsibility therefor or for any defect in any structure or
improvement constructed from such plans and specifications or for any violation of applicable building codes, permitting requirements, zoning conditions or applicable local or governmental laws, regulations or ordinances governing construction within the Community. Neither the Declarant, the Association, nor their respective officers, directors, members, employees and agents shall be liable in damages to anyone submitting plans and specifications for approval or to any Owner of property affected by these restrictions by reason of mistake in judgment, negligence or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any such plans or specifications. Every Person who submits plans and specifications and every Owner agrees that such Person or Owner will not bring any action or suit against the Declarant, the Association or their respective officers,
directors, members, representatives, employees and agents to recover any damages and hereby
releases, remises, quitclaims and covenants not to sue for all claims, demands and causes of action arising out of or in connection with any judgment, negligence or nonfeasance and hereby waives the provisions of any law which provides that a general release does not extend to claims, demands and causes of action not known at the time the release is given.
6.5 No Waiver. The approval of the Declarant of any proposals or plans and specifications or drawings for any work done or proposed, or in connection with any other matter requiring the approval or consent of the Declarant, shall not be deemed to constitute a waiver of any right to withhold
approval or consent as to any similar proposals, plans and specifications or drawings or matters
whatsoever subsequently or additionally submitted for approval or consent.
6.6 Variances. Notwithstanding anything to the contrary contained herein, the Declarant shall be authorized to grant individual variances from any of the provisions of this Declaration and the
Bk 01771 Pg 0040 Architectural Guidelines if it determines that waiver of application or enforcement of the provision in a particular case is dictated by unique circumstances, such as, but not limited to, topography, natural obstructions, hardship or aesthetic or environmental considerations. No variance shall: (a) be effective unless in writing; (b) be inconsistent with the overall scheme of development for the Community; or (c) estop the Declarant from denying a variance in other similar circumstances. For purposes of this provision, the inability to obtain approval of any governmental agency or the issuance of any permit, or the terms of any financing shall not be considered a hardship warranting a variance.
6.7 Enforcement. Any structure, improvement or landscaping improvement placed or made in violation of this Article shall be deemed to be nonconforming. Upon written request from the
Declarant, an Owner shall, at his or her own cost and expense, remove such nonconforming structure or improvement and restore the land to substantially the same condition as existed prior to the
nonconforming work. Should an Owner fail to remove and restore as required, the Declarant and its agents shall have the right to enter the property, remove the nonconforming structure or improvement, and restore the property to substantially the same condition as previously existed. In such event, neither the Declarant, the Association nor their respective officers, directors, members, employees and agents shall be held liable to any Person for exercising the rights granted by this Section, including, without limitation, claims for damages resulting from the removal of the nonconforming structure or improvement in accordance with the procedures set forth herein. All costs, including, without
limitation, reasonable attorneys' fees actually incurred, may be assessed against the Lot as a specific assessment. Any contractor, subcontractor, agent, employee or other invitee of an Owner who fails to comply with the terms and provisions of this Article and the Architectural Guidelines, if any, may be excluded by the Declarant from the Community, subject to any applicable notice and hearing
procedures contained in the Bylaws. In the event of noncompliance with this Article, the Association or Declarant, respectively, may record in the appropriate land records a notice of violation hereunder naming the violating Owner. In addition to the foregoing, Declarant or the Association, acting through its Board, shall have the authority and standing to pursue any and all remedies available at law and equity to enforce the provisions of this Article, including, without limitation, the right to levy and collect fines against non-complying Owners and Occupants in accordance with the provisions of this Declaration and the Bylaws.
6.8 Architectural Review By Declarant. Until: (a) the Declarant no longer owns any property in the Community and no longer has the right to unilaterally annex additional property to the
Community; and (b) each Lot has been improved with a dwelling for which a certificate of occupancy has been issued, the Declarant shall have the sole right, power and authority under this Article.
Notwithstanding the foregoing, the Declarant may in its sole discretion relinquish architectural control as to certain types of improvements or modifications to the Board of Directors while retaining control over all other building and construction in the Community; provided, however, any right, power or authority of the Declarant which may be relinquished to the Board of Directors prior to the termination of the rights of Declarant hereunder shall only be by a written instrument executed by Declarant and recorded in the Madison County, Georgia land records and no such right, power or authority shall be relinquished by implication or otherwise. For example, and without limitation, the Declarant may
relinquish control over modifications of existing structures to the Board of Directors while retaining all authority to review and approve new home construction. Upon the surrender in writing of all or a
portion of such right and authority, the Board of Directors shall then have such jurisdiction over
B 01771 0041 architectural control under this Article as may have been relinquished by the Declarant. The
establishment of an advisory architectural review committee shall not be deemed to be a
relinquishment by Declarant of any of its right, power and authority hereunder.
After the termination of all rights of Declarant hereunder, the Board of Directors shall have all right, power and authority to review and approve all building and construction activity within the Community and this Article shall then be read and interpreted as if any reference to the authority of or action by the Declarant in this Article 6 were a reference to the authority of or action by the Board of Directors. The Board of Directors may, but shall have no obligation to, establish an architectural review committee ("ARCI), which shall then have such rights, powers and authority as may be granted to it by the Board of Directors. The Board of Directors may grant to the ARC all of its rights, powers and
authorities hereunder, or may grant the ARC such limited rights as it deems appropriate in its sole discretion. In the event that all or any portion of such rights, powers and authorities are granted to an ARC, this Article or portions thereof, as appropriate, shall then be read and interpreted as if any
reference to the authority of or action by the Declarant in this Article 6 were a reference to the ARC. Notwithstanding anything herein to the contrary, the Board of Directors shall have the sole right and authority to appoint and remove the members of the ARC.
Article 7
Use Restrictions and Rules
7.1 Rules and Regulations. The Board of Directors may, from time to time, with the consent of the Declarant and without a vote of the members, promulgate, modify or delete reasonable rules and regulations applicable to the Community. Such rules and regulations shall be distributed to all Owners 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 by a majority of the Total Association Vote and the Declarant.
7.2 Residential Use. Each Lot shall be used for residential purposes exclusively. Leasing of a Lot for residential occupancy shall not be considered a business or business activity. No trade or
business of any kind may be conducted in or from a Lot, except that the Owner or Occupant residing at the Lot may conduct business activities within the residential dwelling located thereon so long as the business activity: (a) does not otherwise violate the provisions of the Declaration, Bylaws or any rules and regulations of the Association; (b) is not apparent or detectable by sight, sound or smell from the exterior of the Lot; (c) does not unduly increase traffic flow or parking congestion; (d) conforms to all zoning requirements for the Community; (e) does not increase the insurance premium paid by the
Association or otherwise negatively affect the ability of the Association to obtain insurance coverage; (f) is consistent with the residential character of the Community; (g) does not constitute a nuisance or a hazardous or offensive use; (h) does not threaten the security or safety of other residents of the
Community; and (i) does not involve door-to-door solicitation within the Community, all as may be determined in each case in the sole discretion of the Board of Directors.
The Board may issue rules regarding permitted business activities. The terms "business" and "trade", as used in this provision, shall be construed to have their ordinary, generally accepted meanings and shall include, without limitation, any occupation, work or activity undertaken on an ongoing basis which involves the provision of goods or services to Persons other than the provider's family and for which the provider receives a fee, compensation, or other form of consideration, regardless of whether:
Ek 01771 Pg 0042 (x) the activity is engaged in full or part-time; (y) the activity is intended to or does generate a profit; or (z) a license is required for the activity.
Notwithstanding anything to the contrary herein, nothing in this Section 7.2 shall be construed as prohibiting the Declarant or any builder approved by Declarant from maintaining model homes, speculative housing or sales and construction trailers on Lots in the Community.
7.3 Signs. No sign of any kind shall be erected or displayed within the Community without prior written approval under Article 6 hereof; provided, however, the following signs may be erected on any Lot without approval: (a) one (1) for-sale sign or one (1) for rent sign consistent with the
Community-Wide Standard; (b) security signs not larger than two (2) feet by three (3) feet which are consistent with the Community-Wide Standard; (c) signs required by legal proceedings; and (d) small address plaques not larger than one (1) foot by two (2) feet which are consistent with the CommunityWide Standard; (e) such other signs as may be permitted under the Architectural Guidelines.
Notwithstanding the foregoing, the Board, on behalf of the Association, and the Declarant shall have the right to erect and display reasonable and appropriate signs in the Community, including, without limitation, marketing and sales signs relating to the development, construction and sales of residential dwellings located on Lots in the Community. The Board of Directors shall also have the right to adopt reasonable rules and regulations governing the display and placement of signs in the Community, including, without limitation, imposing reasonable time, place and manner restrictions. The Board or Declarant, as the case may be, may impose a fine of One Hundred Fifty and No/100 Dollars ($150.00) per day for the display of any sign which violates this provision and is not removed within twenty-four (24) hours after written demand is delivered to the Owner at that Lot. Notwithstanding anything to the contrary herein, the provisions of this Section 7.3 shall not apply to any Mortgagee in possession due to the foreclosure of a first Mortgage or as grantee pursuant to any deed in lieu of such foreclosure. 7.4 Vehicles; Parking.
(a) General. Vehicles shall be parked only in appropriate parking spaces serving the Lot or other designated parking areas established by the Board, if any. The term "vehicles," as used herein, shall include, without limitation, motor homes, boats, trailers, motorcycles, minibikes, scooters, go carts, golf carts, trucks, campers, buses, vans and automobiles. The term "parking spaces serving the Lot" shall refer to the number of garage parking spaces and if, and only if, the Owners and Occupants of a Lot have more vehicles than the number of garage parking spaces, those excess vehicles which are an Owner's or Occupant's primary means of transportation on a regular basis may be parked on the driveway located on such Lot and no vehicle parked on a driveway shall encroach onto any portion of the sidewalk, Private Drive or any landscaped or grassy area. All parking shall be further subject to such reasonable rules and regulations as the Board may adopt from time to time.
Garages. All homes shall contain a garage; carports shall not be permitted. Garage doors should be kept closed at all times, except during times of ingress and egress from the garage. Garages shall be used for the parking of vehicles and not for storage or other purposes. Garages shall not be converted to additional living space unless the same has been approved in accordance with Article 6 hereof.
(c) Disabled and Stored Vehicles. No vehicle may be left upon any portion of the
Community, except in an enclosed garage or other area designated by the Board, if any, for a period of
B₺ 01771 ₽¿ 0043 more than five (5) days if it is not licensed or if it is in a condition such that it is incapable of being operated upon the public highways. After such five-day period, such vehicle may be removed from the Community by the Board of Directors or the appropriate authority of Madison County. No towed vehicle, boat, personal watercraft, recreational vehicle, motor home, trailer, motorcycle, minibike, scooter, go cart, golf cart, commercial vehicle, camper, bus or mobile home shall be regularly stored in the Community or temporarily kept in the Community, except if kept in an enclosed garage or other area designated by the Board, if any, for periods longer than forty-eight (48) hours (the temporary removal of such vehicle from the Community shall not be sufficient to establish compliance with the forty-eight (48) consecutive hour provision provided for herein). Trucks with mounted campers which are used as a primary means of transportation shall not be considered recreational vehicles provided they are used on a regular basis for transportation and the camper is stored out of public view upon removal. No eighteen wheel trucks or the cabs of such trucks or trucks with a load capacity in excess of threequarters of a ton shall be parked, kept or stored within the Community except as may be
reasonably necessary to provide service to or delivery within the Community or as otherwise permitted by the Board of Directors.
(d) Commercial Vehicles. The term "commercial vehicles" as used herein, shall include, without limitation any vehicle which: (i) has a gross vehicle weight rating greater than 14,000 Ibs. (ii) is over 20 feet in length, bumper to bumper (ili) carries equipment, tools, or materials, related to a
business which are visible from outside the vehicle such as ladders, pool supplies, plumbing equipment or materials, construction materials, landscape equipment or materials. The display of commercial signage (business name, phone number, etc.) will not cause a vehicle such as those described above to be labeled a commercial vehicle. The following vehicles are considered commercial vehicles, even if they meet the requirements established previously in this Section; flatbed trucks, tow trucks, tractortrailer rigs, box vans, step vans. A homeowner may appeal the commercial designation to the Board and it shall be at the Boards sole discretion as to the ruling on commercial vehicle designations in the
Community. Commercial vehicles shall not be permitted in the Community, except if kept in an
enclosed garage; provided however, construction, service, and delivery vehicles shall be exempt from this provision for such period of time as is reasonably necessary to provide service to or make a delivery within the Community.
(e) Remedies of the Association for Noncompliance. If any vehicle is parked on any portion of the Common Property, including, without limitation, the Private Drive, in violation of this Section or in violation of the Association's rules and regulations, the Board or agent of the Association may place a notice on the vehicle specifying the nature of the violation and stating that after twenty-four (24) hours the vehicle may be towed. The notice shall include the name and telephone number of the person or entity that will do the towing and the name and telephone number of a person to contact regarding the alleged violation. If twenty-four (24) hours after such notice is placed on the vehicle the violation
continues or thereafter occurs again within twelve (12) months of such notice, the Board or agent of the Association may have the vehicle towed in accordance with the notice, without further notice to the Owner or user of the vehicle. If a vehicle is towed in accordance with this Section, the Declarant, the Association and their respective affiliates, directors, officers, employees or agents shall not be liable to any Person for any claim of damage as a result of the towing activity. The Board of Directors may
exercise any and all remedies available for a violation of this Section, including, without limitation, the
5k 01771 0044 right to levy and collect fines against non-complying Owners or Occupants, which remedies shall be in addition to not in lieu of its authority to remove the violating vehicle.
(f) Traffic Regulations. All vehicular traffic on the Private Drive shall be subject to the provisions of state and local laws concerning the operation of motor vehicles on public streets. The Association is hereby authorized to promulgate, administer, and enforce reasonable rules and
regulations governing vehicular and pedestrian traffic, including reasonable safety measures and speed limits. The Association shall be entitled to enforce the same by establishing such enforcement
procedures as it deems appropriate, including levying and collecting fines for the violations thereof. In the event of a conflict between the provisions of state and local laws and the rules and regulations promulgated by the Association, the rules and regulations of the Association shall govern. Only drivers properly licensed to operate motor vehicles on the public roads within the State of Georgia may operate any type of motor vehicle on the Private Drive within the Community. All vehicles of any kind and nature which are operated on the Private Drive shall be operated in a careful, prudent, safe, and quiet manner and with due consideration for the rights of all Owners and Occupants.
(g) Declarant Exemption. Notwithstanding the foregoing, the Declarant, and its respective agents, contractors, subcontractors and assigns shall have the right, during regular business hours, to park vehicles on any and all streets within the Community as needed in order to facilitate the
construction, development and build out of the Community.
7.5 Leasing. Lots may be leased for residential purposes. All leases shall be in writing. Lots may be leased only in their entirety; no fraction or portion may be leased without prior written Board approval. Unless otherwise provided by the Board of Directors, all leases shall have a minimum term of at least twelve (12) months.
(a) Notice. Within ten (10) days after executing a lease agreement for the lease of a Lot, the Owner shall provide the Board with the following information: (i) a copy of the fully executed lease agreement; (il) the name of the lessee and all other Occupants of the Lot; (iii) the phone number of the lessee; (iv) the Owner's address and phone number other than at the Lot; and (v) other such information as the Board may reasonably require.
(b) General. The Owner must provide the lessee with copies of the Declaration, Bylaws, the rules and regulations of the Association and Architectural Guidelines, if any, and the lease shall provide that the Owner has made available to the lessee copies of the Declaration, Bylaws, and the rules and regulations and Architectural Guidelines, if any.
(c) Compliance with Declaration, Bylaws, and Rules and Regulations. Each Owner
covenants and agrees that any lease of a Lot shall contain the following language and agrees that if such language is not expressly contained therein, then such language shall be incorporated into the lease by existence of this covenant, and the lessee, by occupancy of the Lot, agrees to the applicability of this covenant and incorporation of the following language into the lease:
Lessee shall abide by and comply with all provisions of the Declaration, Bylaws, and rules and regulations and Architectural Guidelines adopted pursuant thereto and shall control the conduct of all other Occupants and guests of the leased Lot in order to ensure such compliance. Owner agrees to
cause all Occupants of his or her Lot to comply with the Declaration, Bylaws, and the rules and
& 01771 0045 regulations and Architectural Guidelines adopted pursuant thereto and is responsible for all violations caused by such Occupants, notwithstanding the fact that such Occupants of the Lot are fully liable and may be sanctioned for any violation of the Declaration, Bylaws, and rules and regulations and
Architectural Guidelines adopted pursuant thereto. In the event that the lessee or a person living with the lessee violates the Declaration, Bylaws, or a rule or regulation or Architectural Guidelines for which a fine is imposed, notice of the violation shall be given to the Owner and the lessee, and such fine may be assessed against the lessee in accordance with the provisions contained herein. If the fine is not paid by the lessee within the time period set by the Board of Directors, the Owner shall pay the fine upon notice from the Association of the lessee's failure to pay the fine. Unpaid fines shall constitute a lien against the Lot.
(d) Use of Common Property. The Owner transfers and assigns to the lessee, for the term of the lease, any and all rights and privileges that the Owner has to use the Common Property.
(e) Liability for Assessments; Assignment of Rent. If an Owner who is leasing his or her Lot fails to pay any general, special or specific assessment or any other charge owed to the Association for a period of more than thirty (30) days after it is due and payable, then the delinquent Owner hereby consents to the assignment of any rent received from the lessee during the period of delinquency, and, upon request by the Board of Directors, lessee shall pay to the Association all unpaid general, special and specific assessments and other charges payable during and prior to the term of the lease and any other period of occupancy by lessee. However, lessee need not make such payments to the Association in excess of, or prior to the due dates for, monthly rental payments unpaid at the time of the Board of Director's request. All such payments made by lessee shall reduce, by the same amount, lessee's
obligation to make monthly rental payments to lessor. If lessee fails to comply with the Board of
Director's request to pay assessments or other charges, lessee shall pay to the Association all amounts authorized under the Declaration as if lessee were an Owner. The above provision shall not be
construed to release the Owner from any obligation, including the obligation for assessments, for which he or she would otherwise be responsible.
7.6 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 a reasonable number as determined by the Board from time to time. No pets shall be kept, bred or maintained for any commercial purpose. No dog runs, runners or exterior pens for household pets shall be erected or maintained on any Lot unless approved in accordance with the provisions of Article 6 hereof. Dogs shall at all times when outside of a dwelling located on a Lot be kept on a leash or
otherwise under the physical control of a responsible person. All Owners must control their pets at all times, whether or not such Owner is present, in a manner that will prevent any pet from: (a) making noise at objectionable sound levels for extended periods of time, whether continuously or
intermittently; (b) endangering the health or safety of other Owners, their families, guests or invitees or creating fear in other Owners as to the safety of themselves, their families, guests or invitees; or (c) otherwise constituting a nuisance or inconvenience to the Owner(s) or Occupant(s) of any other Lot; all of the foregoing as determined by the Association in its sole discretion. The Association may require that an Owner remove any animal that presents an actual threat to the health or safety of residents and require abatement of any nuisance or unreasonable source of annoyance. In the event that the Owner fails to remove an animal as provided herein, the Association shall have the right to institute legal action
Ek 01771 ₽g 0046 to have the animal removed and all costs associated therewith, including, without limitation, reasonable attorneys' fees actually incurred, shall be a specific assessment against the Lot of such Owner.
All pets shall be registered, licensed and inoculated if and as required by law. Animal control authorities shall be permitted to enter the Community to patrol and remove unlicensed pets. Animal waste deposited in the Community must be removed by the owner of the animal or the person
responsible for the animal. The Association may adopt reasonable rules and regulations, including,
without limitation, regulations designed to minimize damage and disturbance to other Owners and
Occupants, regulations requiring damage deposits, waste removal, leash controls and noise controls.
7.7 Nuisance. It shall be the responsibility of each Owner and Occupant to prevent the
development of any unclean, unhealthy, unsightly or unkempt condition on a Lot. No property within the Community 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 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 within the
Community, nor shall anything be done tending to cause embarrassment, discomfort, annoyance or nuisance to any Person using any property within the Community. No plants, animals, device or thing of any sort shall be maintained in the Community whose activities or existence is in any way noxious,
dangerous, unsightly, unpleasant or of a nature as may diminish or destroy the enjoyment of the
Community by other Owners and Occupants. Without limiting the generality of the foregoing, no horn, whistle, siren, bell, amplifier, alarm, equipment or other sound device, mechanical or otherwise, which creates or produces excessively loud sounds or vibrations, except such devices as may be used
exclusively for security purposes, screaming, shouting, excessively loud talking, fighting, raucous
behavior, insobriety, playing loud music or television, or any conduct which creates any noxious or
offensive odors outside of a home shall be permitted, located, used, placed, installed or maintained upon any Lot, or any portion thereof. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary, reasonable person as determined in a particular instance by the Board. Notwithstanding anything to the contrary herein, each Owner and Occupant acknowledges that the Declarant and its representatives, agents, contractors and subcontractors may engage in construction activities on one or more Lots in the
Community and each Owner and Occupant further agrees that such construction activities shall not be deemed a nuisance as provided herein.
7.8 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.
7.9 Antennae. No exterior antenna, receiving dish or similar apparatus of any kind for
receiving or transmitting audio or video signals shall be placed, allowed or maintained upon any portion of the Community, including any Lot, unless approved in accordance with the provisions of Article 6
hereof; provided, however, no such approval shall be necessary to install the following on a residential dwelling located on a Lot: (a) antennae designed to receive direct broadcast satellite services, including direct-to-home satellite services or antennae designed to receive or transmit fixed wireless signals via
Bk 01771 ₽ę 004'7 satellite, that are one meter or less in diameter; (b) antennae designed to receive video programming services via multi-point distribution services or antennae designed to receive or transmit fixed wireless signals other than via satellite that are one meter or less in diameter or diagonal measurement; or (c) antennae that are designed and intended to receive television broadcast signals. Owners shall install any permitted antennae on the rear of the residential dwelling located on a Lot unless such installation: (x) imposes unreasonable delay or prevents the use of the antennae; (y) unreasonably increases the cost of installation; or (z) an acceptable quality signal cannot otherwise be obtained.
7.10 Tree Removal. No trees that are more than four (4) inches in diameter at a point twelve (12) inches above the ground and no ornamental or flowering trees, including, but not limited to,
dogwood trees, cottonwood trees, cherry trees or apple trees, regardless of diameter, shall be removed from a Lot unless approved in accordance with the provisions of Article 6 hereof or as may be otherwise permitted pursuant to the Architectural Guidelines. The Association and Owners shall also comply with all zoning conditions and local ordinances applicable to tree removal. In the event of a conflict between the provisions of this Section and any zoning condition or local ordinance, the more restrictive provision shall govern. This provision shall not apply to the removal of trees by Declarant.
7.11 Drainage. Catch basins, retention ponds, detention ponds, drainage easement areas and related drainage facilities are for the purpose of controlling the natural flow of water only. No obstructions or debris shall be placed in these areas. No Owner may obstruct or alter the drainage flow after the location and installation of catch basins, retention ponds, detention ponds, drainage swales, storm sewers or storm drains without approval in accordance with the provisions of Article 6 hereof. In the event storm water drainage from any Lot or Lots flows across another Lot, provisions shall be made by the Owner of such downstream Lot to permit such drainage to continue, without restriction or
reduction, across the downstream Lot and into the natural drainage channel or course although no specific drainage easement for such flow of water is provided on the subdivision plat for the Community recorded in the Madison County, Georgia land records.
7.12 Sight Distance at Intersections. All property located at street intersections shall be landscaped so as to permit safe sight across the street corners. No fence, wall, hedge, shrub or other planting or thing shall be placed or permitted to remain where, in the opinion of the Board of Directors, it would create an unsafe condition.
Garbage Cans, Woodpiles, Etc. All garbage cans, recycling bins, woodpiles, swimming pool pumps, filters and related equipment, and other similar items shall be located or screened so as to be concealed from the view of neighboring streets and property. All rubbish, trash, garbage, recycling materials and yard waste shall be regularly removed and shall not be allowed to accumulate. Trash removal, garbage, debris, yard waste or other waste matter of any kind may not be burned within the Community.
7.14 Subdivision of Lot. No Lot shall be subdivided or its boundary lines changed except with prior written approval in accordance with the provisions of Article 6 hereof. Declarant, however, hereby expressly reserves the right to subdivide and/or revise and re-record the subdivision plat of any Lot(s) with the consent of the Owner of the affected Lots) and to approve the revision and re-recording of any plat of any Lots) owned by any builder or developer, including, but not limited to, changing any Lot to Common Property or creating a public or private street over any Lot or property that was formerly a Lot, without the consent of any Person, other than the Owner(s) of such Lots).
Ex 01771 FE 0048 Firearms and Fireworks. The display or discharge of firearms and fireworks within the Community is prohibited; provided, however, that the display of lawful firearms is permitted by law enforcement officers and also is permitted for the limited purpose of transporting firearms to or from a Lot. The term "firearms" includes, but is not limited to, "B-B" guns, pellet guns, archery equipment and firearms of all types, regardless of size. The term "fireworks" shall include, but not be limited to, those items as listed in O.C.G.A. Section 25-10-1, as amended.
7.16 Fences. No fence or fencing type barrier of any kind shall be placed, erected, allowed or maintained upon any Lot without prior written approval in accordance with the provisions of Article 6 hereof or in compliance with applicable Architectural Guidelines. Guidelines detailing acceptable fence styles or specifications may be issued pursuant to Article 6. Black vinyl coated chain link fences, or similar fences approved under Article 6, shall be permitted on the rear of a Lot if such fence on such Lot is located along the perimeter of the Community. All other chain link or barbed wire fences are
prohibited. Notwithstanding the foregoing, Declarant and the Association may erect any type of fence on the Common Property or elsewhere within the Community as they may deem appropriate or as necessary to satisfy the requirements of any law, regulation or governmental entity or for the health and safety of Owners and Occupants.
7.17 Utility Lines. No overhead utility lines, including lines for cable television, shall be
installed within the Community.
7.18 Air-Conditioning Units. No window air conditioning units may be installed.
7.19 Lighting and Displays. Exterior lighting on any Lot visible from the street shall not be permitted, except for: (a) approved lighting as originally installed on a Lot; (b) one decorative post light; (c) street lights in conformity with an established street lighting program for the Community; (d)
seasonal decorative lights for a reasonable period of time during the holiday season as may be
determined by the Board in its sole discretion; (e) front house illumination of model homes; or (f) other lighting approved under and pursuant to Article 6 hereof or as may be otherwise permitted under
applicable Architectural Guidelines.
7.20 Artificial Vegetation, Gardens, Play Equipment, Exterior Sculpture, Water Features and Similar Items. No artificial vegetation shall be permitted on any Lot or Common Property. No vegetable garden, hammock, statuary, play equipment (including, without limitation, basketball goals), exterior sculpture, fountains, or water features may be erected on any Lot without prior written approval in accordance with the provisions of Article 6 hereof and/or in compliance with applicable Architectural Guidelines.
7.21 Flags. Except for flags which may be installed by the Declarant, no flags may be
displayed on any Lot without prior written approval in accordance with the provisions of Article 6 hereof or as may be otherwise permitted in the Architectural Guidelines established thereunder; provided, however no such approval shall be required to display the flag of the United States of America and the current flag of the State of Georgia on a Lot in accordance with the provisions of the U.S. Flag Code (36 US Code 10) and usual and customary practice. The Board of Directors of the Association may
promulgate reasonable rules and regulations with respect to the display of flags in the Community, including, without limitation, regulating the size of flags that may be displayed and imposing reasonable time, place and manner restrictions pertaining to the display of the United States flag; provided,
Bk 01771 F 0049 however, the Association shall not enact any rule or regulation which has the effect of prohibiting any Owner from displaying the flag of the United States of America on a Lot in the Community in
contravention of the Freedom to Display the American Flag Act of 2005.
7.22 Conservation Equipment. No solar energy collector panels or attendant hardware or other conservation equipment shall be constructed or installed on a Lot unless as an integral and harmonious part of the architectural design of a structure or otherwise screened from view and
approved in accordance with the provisions of Article 6 hereof or as may be otherwise permitted in the Architectural Guidelines.
7.23 Swimming Pools. No swimming pool shall be constructed, erected or maintained upon any Lot without prior written approval in accordance with the provisions of Article 6 hereof and in no event shall any above-ground swimming pool be permitted; provided, however, portable or inflatable wading pools designed for use by small children shall be permitted so long as the same are properly maintained and stored out of view from neighboring property and the public streets when not in use.
7.24 Clotheslines. No exterior clotheslines of any type shall be permitted upon any Lot. 7.25 Entry Features. Owners shall not alter, remove or add improvements to any entry features or streetscapes constructed or erected by or on behalf of the Declarant or the Association on any Lot in connection with the original development of the Community, or any part of any easement area associated therewith without prior written approval in accordance with the provisions of Article 6 hereof or applicable Architectural Guidelines.
7.26 Window Treatments. No foil or other reflective materials shall be used on any windows for sunscreens, blinds, shades or for any other purpose. The side of all window treatments, with the exception of stained wood blinds or shutters, which can be seen at any time from the outside of any structure located on a Lot shall be white, off-white or such other colors as may be permitted in the Architectural Guidelines. Bed sheets, blankets, towels, black plastic, paper and similar type items shall not be used as window treatments.
7.27 Garage Sales. No garage sale, carport sale, yard sale, flea market, or similar activity shall be conducted in any portion of the Community without the prior written consent of the Board of
Directors. If permitted, such activities shall be subject to all reasonable conditions that the Board may impose.
7.28 Outbuildings and Similar Structures. No structure of a temporary nature shall be
erected or allowed to remain on any Lot, and no trailer, camper, shack, tent, garage, barn or other structure may be used as a residence, either temporarily or permanently, without prior written approval in accordance with the provisions of Article 6 hereof or in compliance with applicable Architectural Guidelines. However, this Section shall not be construed to prevent the Declarant and those engaged in development, construction, marketing, property management or sales in the Community from using sheds, trailers or other temporary structures for any of the foregoing purposes. In addition, nothing in this Section shall be construed as preventing the Declarant from developing, constructing, marketing, or maintaining model homes, speculative housing, sales offices or construction trailers on Lots within the Community.
3k 01771 _ 0050 Stream Buffer. Land-disturbing activities shall not be conducted within any stream buffer area as shown on the recorded subdivision plats for the Community, except with prior written approval under Article 6 hereof and in compliance with Georgia law, including without limitation, the Control of Erosion and Sedimentation Act, O.C.G.A. Section 12-7-1, et seq., as amended from time to time.
7.30 Storm Water Detention/Retention Ponds, Creeks and Streams. Except as herein
provided, all storm water retention/detention ponds, creeks and streams within the Community shall be used for aesthetic amenities and storm water drainage only; no other use thereof, including, without limitation, swimming, ice skating, playing, or use of personal flotation devices, and other recreation, shall be permitted, without the written consent of the Board of Directors. The Association and/or the Declarant shall not be responsible for any loss, damage, or injury to any person or property arising out of the authorized or unauthorized use of the any storm water detention/retention pond, wetland area, creek or stream within the Community. For purposes of this Declaration, "wetlands" means any area labeled as wetlands on a recorded plat for the Community or otherwise designated as wetlands by the Declarant or the Board of Directors. No Owner shall have any right to place rocks, stones, trash, garbage, sewage, waste water, rubbish, debris, ashes or other refuse in any body of water or wetland area
located within the Community. Applicable governmental agencies, the Declarant and the Association, shall have the sole right to control the water level of all bodies of water located within the Community and to control the growth and eradication of plants, fowls, reptiles, animals, fish and fungi in and around any storm water detention/retention pond, wetland area, creek and stream within the Community. Owners shall have no riparian or littoral rights with respect to the waters in any creek or stream within the Community and shall not be permitted to withdraw water from any creek or stream as may exist in the Community without the prior written consent of the Board of Directors.
7.31 Undisturbed Buffer Areas. Portions of the Community contain a twenty-five foot (25') undisturbed buffer area, as identified on the recorded subdivision plat for the Community. Land
disturbing activities shall not be permitted in any undisturbed buffer area unless approved in
accordance with Article 6 hereof and in compliance with any applicable governmental rules, regulations, ordinances and site specific zoning conditions.
Article 8
Insurance and Casualty Losses
8.1 Insurance Obtained by Association. The Association shall obtain the insurance coverage necessary to satisfy the requirements of the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association ("Fannie Mae"), the U.S. Department of Veterans Affairs ("VA"), and the U.S. Department of Housing and Urban Development ("HUD), as applicable to the Community.
Accordingly, the Board of Directors shall obtain casualty insurance for all insurable improvements, whether or not located on the Common Property, which the Association is obligated to maintain.
Insurance obtained and maintained by the Association shall provide, at a minimum, fire and extended coverage and shall be in an amount sufficient to cover the full replacement cost of any repair or
reconstruction in the event of damage or destruction from any such hazard. The Board of Directors shall obtain a public liability policy applicable to the Common Property covering the Association and its
members for all damage or injury caused by the negligence of the Association or any of its members or agents, and, if reasonably available, directors' and officers' liability insurance. The public liability policy shall have a combined single limit of at least One Million and No/100 Dollars ($1,000,000.00). Policies
Ek 01771 0051 may contain a reasonable deductible as determined by the Board of Directors. Notwithstanding the foregoing, nothing in this Section 8.1 shall be construed as obligating the Association to obtain or maintain insurance on a Lot or any structures or improvements located thereon or a Lot Owner's or Occupant's personal property; the responsibility of the same shall be that of the Lot Owner as provided in Section 8.2 hereof.
In addition to the other insurance coverage required by this Section, the Board of Directors shall obtain workers compensation insurance, if and to the extent necessary to satisfy the requirements of applicable law, and, if available at reasonable cost, as determined in the sole discretion of the Board, a fidelity bond or employee dishonesty coverage covering directors, officers, employees and other Persons handling or responsible for the Association's funds. The amount of fidelity or employees dishonesty coverage, if obtained, shall be determined in the director's best business judgment and shall satisfy local, state or federal requirements for such coverage, if any. Such coverage, if obtained, shall contain a waiver of all defenses based upon the exclusion of Persons serving without compensation and shall not be subject to cancellation, nonrenewal or substantial modification without at least ten (10) days' prior written notice to the Association. The Association shall also obtain construction code endorsements, steam boiler coverage and flood insurance, if and to the extent necessary to satisfy the applicable requirements of the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.
Insurance Obtained by Lot Owners. By virtue of taking title to a Lot subject to the terms of this Declaration, each Owner acknowledges and understands that the Association has no obligation to provide any insurance for any portion of individual Lots and each Owner covenants and agrees with all other Owners and with the Association that each Owner shall obtain and maintain the following: (a) allrisk casualty insurance on the Lot and all structures, dwellings and improvements located or constructed thereon, which shall cover loss or damage by fire and other hazards commonly insured under an all-risk policy, and, if reasonably available, shall be in an amount sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage or destruction from any such hazard; (b) insurance covering an Owner's or Occupant's personal property; and (c) a liability policy covering damage or injury occurring on a Lot. The policies required hereunder shall be in effect at all times.
8.3 Damage and Destruction -- Insured by Association. Immediately after damage or destruction by fire or other casualty to any portion of any structure or improvement covered by
insurance written in the name of the Association, the Board of Directors or its duly authorized agent shall proceed with the filing and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or destroyed property. Repair or reconstruction, as used in this Section, means repairing or restoring the property to substantially the same condition and location that existed prior to the fire or other casualty, allowing for any changes or improvements necessitated by changes in applicable building codes. Any damage or destruction to property covered by insurance written in the name of the Association shall be repaired or reconstructed unless, within sixty (60) days after the casualty, a proposal not to repair or reconstruct such property is approved by at least seventy-five percent (75%) of the Total Association Vote and the Declarant. If for any reason either the amount of the insurance proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not made available to the Association within such period, then the period shall be extended until such information shall be made available; provided, however, such extension shall not exceed sixty
Ek 01771 P8 0052 (60) days. If the damage or destruction for which the insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to defray the cost thereof, the Board of Directors shall, without the necessity of a vote of the members of the Association, levy a special assessment against the Owner of each Lot. Additional assessments may be made in like manner, as necessary, at any time during or following the completion of any repair or reconstruction. If the funds available from insurance exceed the costs of repair or reconstruction or if the improvements are not repaired or reconstructed, such excess funds shall be deposited to the benefit of the Association. In the event that it should be determined by the Association in the manner described above that the damage or
destruction shall not be repaired or reconstructed and no alternative improvements are authorized, the property shall thereafter be maintained by the Association in a neat and attractive condition consistent with the Community-Wide Standard and this Declaration.
Damage and Destruction -- Insured by Owners. The damage or destruction by fire or other casualty to all or any portion of any structure or improvement located on a Lot shall be repaired or reconstructed by the Owner thereof in a manner consistent with the original construction or such other plans and specifications as are approved in accordance with Article 6 of this Declaration. Said repair or reconstruction shall be completed within seventy-five (75) days after such damage or destruction
occurred or, where repairs cannot be completed within seventy-five (75) days, they shall be commenced within such period and shall be completed within a reasonable period of time thereafter. Alternatively, the Owner of the Lot may elect to demolish all improvements on the Lot and remove all debris and ruins therefrom within seventy-five (75) days after such damage or destruction occurred and thereafter maintain the Lot in a neat and attractive, landscaped condition consistent with the Community-Wide Standard and this Declaration. The Owner shall pay all costs which are not covered by insurance
proceeds.
Article 9
tasements
General. Each Lot shall be subject to those easements, if any, shown or set forth on the recorded subdivision plat for the Community, as amended from time to time, as well as the easements now or hereafter established by the Declarant in this Declaration or by any other document recorded in the Office of the Clerk of Superior Court of Madison County, Georgia.
9.2 Easements for Use and Enjoyment. Every Owner of a Lot shall have a right and
easement of ingress and egress, use and enjoyment by the Owner and the Occupants of the Owner's Lot in and to the Common Property which shall be appurtenant to and shall pass with the title to each Lot, subject to the following:
(a) the right of the Association to borrow money for the purpose of improving the Common Property, or any portion thereof, or for constructing, repairing or improving any facilities located or to be located thereon and, upon the affirmative vote of the Owners of at least two-thirds (2/3) of the Lots (other than the Declarant) and the consent of Declarant, to give as security for the payment of any such loan a Mortgage conveying all or any portion of the Common Property; provided, however, the lien and encumbrance of any such Mortgage given by the Association shall be subject and subordinate to any rights, interests, options, easements and privileges herein reserved or established for the benefit of the Declarant, any Owner or the holder of any Mortgage encumbering any Lot or other property located within the Community (regardless of any contrary provision in this Declaration or in any such Mortgage
El: 01771 Pg 0053 given by the Association, the exercise of any rights by the holder of such Mortgage in the event of a default thereunder shall not cancel or terminate any rights, easements or privileges herein reserved or established for the benefit of Declarant or any Owner or the holder of any Mortgage encumbering any Lot or other property located within the Community);
(b) the right of the Association, acting through the Board of Directors and without a vote of the members, to dedicate or grant licenses, permits, easements and rights-of-way over, under and through the Common Property;
(c) the right of the Association to transfer or convey title to all or any portion of the
Common Property upon the approval of the Owners of at least two-thirds (2/3) of the Lots and the consent of Declarant;
(d) all other rights of the Association, the Declarant, Owners and Occupants set forth in this Declaration, in any Supplementary Declaration, or in any deed conveying Common Property to the Association; and
(e) all encumbrances and other matters shown by the public records affecting title to the Common Property.
9.3 Easements for Utilities. There is hereby reserved to Declarant and granted to the
Association and any builder with the consent of Declarant a blanket easement upon, across, above and under all property within the Community for access, ingress, egress, installing, altering, repairing,
replacing, and maintaining all utilities serving the Community or any portion thereof, including, but not limited to, gas, water, sanitary sewer, telephone and electricity, as well as storm drainage and any other service such as, but not limited to, a master television antenna system, cable television system, or
security system which the Declarant, such builder or the Association might decide to have installed to serve the Community. Declarant, any builder with the consent of Declarant, the Association or their respective designees, as the case may be, may alter drainage and water flow, install, repair, replace and maintain or authorize the installation, repair, replacement and maintenance of such wires, conduits, cables and other equipment related to the providing of any utility or service. Should any party
furnishing any such utility or service request a specific license or easement by separate recordable
document, Declarant or the Board shall have the right to grant such easement. The Board of Directors, without a vote of the Owners, shall have the right, power and authority to grant permits, licenses, utility easements, and other easements under, through, or over the Lots, and/or the Common Property, as may be reasonably necessary to or desirable for the ongoing maintenance and operation of the
Community.
9.4 Easement for Emergency Entry. The Association shall have the right, but not the
obligation, to enter upon any Lot for emergency, security and safety reasons and to inspect for the
purpose of ensuring compliance with this Declaration, any Supplementary Declaration, Bylaws, rules and regulations of the Association and Architectural Guidelines, which right may be exercised by any
member of the Board, the officers, agents, employees, and managers of the Association and all
policemen, firemen, ambulance personnel, and similar emergency personnel in the performance of their respective duties. Except in an emergency situation, entry shall only be during reasonable hours and after notice to the Owner. This right of entry shall include the right of the Association to enter upon any Lot to cure any condition which may increase the possibility of a fire, slope erosion or other hazard in an
& 01771 0054 emergency situation and in the event an Owner fails or refuses to cure the condition within a reasonable period of time after requested by the Association, but shall not authorize entry into any single family dwelling located on a Lot without the permission of the Owner.
9.5 Easement for Maintenance. Declarant hereby grants to the Association a perpetual easement across the exterior portions of all Lots as may be reasonably necessary for the maintenance required hereunder. Such maintenance shall be performed with a minimum of interference to the quiet enjoyment of Lots, reasonable steps shall be taken to protect such property and damage shall be repaired by the Association or its contractors) at their sole cost and expense.
Easement for Entry Features and Streetscapes. There is hereby reserved to the
Declarant and granted to the Association an easement for ingress, egress, installation, construction, landscaping and maintenance of entry features and similar streetscapes for the Community, over and upon any portion of a Lot containing such entry features or streetscapes as may be more fully described on the recorded subdivision plat(s) for the Community. The easement and right herein reserved shall include the right to cut, remove and plant trees, shrubbery, flowers and other vegetation around entry features and streetscapes and the right to grade the land under and around the same.
9.7 Easement for Drainage. There is hereby reserved by the Declarant and granted to the Association and any builder with consent of the Declarant an easement upon, across, above and under all storm water drainage easement areas as shown on the recorded subdivision plat(s) for the
Community for access, ingress, egress, installing, altering, repairing, replacing, and maintaining the storm water drainage system and related facilities serving the Community or any portion thereof. This easement shall include the right to construct and maintain catch basins, retention ponds, detention ponds, drainage swales, storm sewers, storm drains, sloping banks, cut or fill. In addition, there is hereby reserved to the Declarant and granted to the Association and any builder with consent of the Declarant a blanket easement across all Lots for creating and maintaining satisfactory drainage in the Community; provided, however, such easement area shall not include any portion of a Lot within the outer perimeter of the dwelling structure. It is anticipated that increased storm water run-off across downstream Lots will result from the construction of impervious surface within or adjacent to the Community. Neither the Declarant, the Association nor any builder or Owner constructing according to plans and specifications approved under Article 6 hereof shall have any liability to any Owner due to the increased flow or increased velocity of surface water resulting from approved construction within the Community.
9.8 Easement During Construction and Sale Period. Notwithstanding any provisions now or hereafter contained in this Declaration, the Bylaws, Articles of Incorporation, use restrictions, rules and regulations, Architectural Guidelines, and amendments or revisions thereto, Declarant reserves an easement across the Community to maintain and carry on, upon such portion of the Community as it may reasonably deem necessary, such facilities and activities as in its sole opinion may be required or convenient for its development, construction and sales activities related to property hereby and
hereafter subjected to this Declaration or for the development, construction or benefit of any
neighboring property, including, but not limited to: (a) the right to place or authorize the placement of marketing and directional signs on Lots or right-of-way(s) at street intersections within the Community; (b) the right of access, ingress and egress for vehicular and pedestrian traffic and construction activities over, under, on or in the Community, including, without limitation, any Lot; (c) the right to tie into any
Ek 01771 P& 0055 portion of the Community with streets, driveways, paths, parking areas and walkways; (d) the right to tie into and/or otherwise connect and use (without a tap-on or any other fee for so doing), replace,
relocate, maintain and repair any device which provides utility or similar services including, without
limitation, electrical, telephone, cable television, natural gas, water, sewer and drainage lines and
facilities constructed or installed in, on, under and/or over the Community; (e) the right to grant
easements over, under, in or on the Community, including without limitation the Lots, for the benefit of neighboring properties for the purpose of tying into and/or otherwise connecting and using sewer and drainage lines and facilities constructed or installed in, on, under and/or over the Community; (f) the right to convert Lots (with the consent of the Owner thereof) to Common Property and/or streets; (g) the right to construct utilities and other improvements on Common Property; (h) the right to carry on sales and promotional activities in the Community; and (i) the right to construct and operate business offices, signs, construction trailers, model residences and sales offices. Declarant may use residences, offices or other buildings it owns or leases as model residences and sales offices. This Section shall not be amended without the Declarant's written consent until the rights of Declarant have terminated as provided in Section 10.5 hereof.
Easement for Private Drive, Sidewalks and Signs. Declarant hereby grants, conveys,
declares, creates, imposes and establishes a perpetual, non-exclusive right-of-way easement for
vehicular and pedestrian access, ingress and egress over and across the Private Drive and sidewalks
located within the Community. At such time as one or more subdivision plats for the property
submitted to this Declaration are recorded in the real estate records of the Office of the Clerk of
Superior Court of Madison County, Georgia, any reference to private streets shall then and thereafter mean a reference to the private streets as actually constructed and depicted on the recorded
subdivision plat. The right-of-way easement herein granted shall permit joint usage of such easement. Declarant hereby expressly reserves for itself, its successors and assigns, all rights and privileges incident to the ownership of the fee simple estate of any right-of-way easement area which are not inconsistent with the rights and privileges herein granted, including, without limitation, the right to maintain one or more proprietary signs on the easement area and the right to grant additional non-exclusive easements to third parties, over, under and across the easement area. Declarant hereby reserves for itself and
grants to the Association as Common Property, the perpetual nonexclusive right and easement upon, over and across those utility easement areas, sidewalks for the installation, maintenance, and use of
such streets and roads, sidewalks, traffic directional signs, grading for proper drainage of said Private
Drive and related activities and improvements.
9.10 Easement for Cluster Mailboxes. The cluster mailboxes are located on Lots 63 and 64 in the Community, as more particularly identified on the recorded subdivision plat(s) for the Community. Each Owner shall have an easement over and across that portion of Lots 63 and 64 as is reasonably
necessary to access said cluster mailboxes. As provided in Section 5.1 of the Declaration, the
Association shall maintain the cluster mailboxes and the land located thereon. Such maintenance shall be performed with a minimum of interference to the quiet enjoyment of Lot 63 and 64, reasonable
steps shall be taken to protect such property and damage shall be repaired by the Association or its
contractor(s) at their sole cost and expense. In event an Owner needs a replacement of a mailbox key, reasonable and customary fees may be charged by the Association to the Lot Owner in conjunction with obtaining a replacement key.
Article 10
Бk. 01771 ₽§ 0056 General Provisions
10.1 Enforcement. Each Owner and Occupant shall comply strictly with the Bylaws, rules and regulations, use restrictions and Architectural Guidelines, as amended or modified from time to time, and with the covenants, conditions, easements and restrictions set forth in this Declaration, the
recorded subdivision plat(s) for the Community and in the deed to such Owner's Lot, if any. Declarant or the Association, acting through the Board of Directors, may impose fines or other sanctions for
violations of the foregoing in accordance with this Declaration and the Bylaws, which fines shall be collected as provided herein for the collection of assessments; provided, however, only one fine may be imposed for a single violation such that an Owner or Occupant may not be fined by Declarant and the Association for the same violation; and provided, further, Declarant or the Association, as the case may be, may count each day a violation continues after notice thereof as a separate violation. In the event fines or other sanctions are imposed by Declarant, Declarant shall have any and all rights to collect such fines or sanctions (which fines shall be payable to the Association) and any related charges, including, without limitation, attorney's fees actually incurred and costs of collection, in the same manner as provided herein for the collection of assessments by the Association acting through the Board.
The failure to comply with this Declaration, the Bylaws, the rules and regulations, use
restrictions and the Architectural Guidelines shall be grounds for an action to recover sums due for damages or injunctive relief or both, including, without limitation, reasonable attorney's fees actually incurred, maintainable by the Association, Declarant or an aggrieved Owner. Failure by the Declarant, the Association or any Owner to enforce any of the foregoing shall in no event be deemed a waiver of the right to do so thereafter. Declarant or the Association shall have the right to record in the
appropriate land records a notice of violation of the Declaration, Bylaws, rules and regulations, use restrictions or Architectural Guidelines and to assess the cost of recording and removing such notice against the Lot of the Owner who is responsible (or whose Occupants are responsible) for violating the foregoing.
10.2 Occupants Bound. All provisions of the Declaration, Bylaws, rules and regulations, use restrictions and Architectural Guidelines which govern the conduct of Owners and which provide for sanctions against Owners shall also apply to all Occupants and the guests and invitees of Owners and Occupants. The Owner shall be responsible for insuring that the Occupants, the guests, invitees and licensees of the Owner and Occupant strictly comply with all provisions of the Declaration, Bylaws, rules and regulations, use restrictions and Architectural Guidelines. Fines may be levied against Owners or Occupants. If a fine is first levied against an Occupant and is not timely paid, the fine may then be levied against the Owner.
10.3 Self-Help. In addition to any other remedies provided for herein, the Association, acting through the Board, Declarant or their respective duly authorized agents shall have the power to enter upon any Lot or any other portion of the Community to abate or remove any structure, improvement, thing or condition which violates this Declaration, the Bylaws, the rules and regulations, the use
restrictions or the Architectural Guidelines. Unless an emergency situation exists, the violating Owner shall be given ten (10) days' written notice of the intent to exercise self-help. Notwithstanding the foregoing, vehicles may be towed after giving any notice required herein or by law. All costs of self-help, including, without limitation, reasonable attorney's fees actually incurred, shall be assessed against the Lot of the violating Owner as a specific assessment.
Ek 01771 ₽₴ 0057 10.4 Duration. The covenants, conditions, restrictions and easements contained in this Declaration shall run with and bind the Community, and shall inure to the benefit of and shall be
enforceable by the Association, the Declarant and any Owner, their respective legal representatives, heirs, successors, and assigns, perpetually to the extent provided by law; provided, however, if and to the extent that Georgia law limits the period during which covenants restricting land to certain uses may run, any provisions of this Declaration affected thereby shall run with and bind the land so long as permitted by such law, after which time, any such provision(s) shall be: (a) automatically extended for successive periods of twenty (20) years (or the maximum period allowed by applicable law, if less), unless a written instrument signed by the then Owners of at least two-thirds (2/3) of the Lots has been recorded within the year immediately preceding the beginning of a twenty (20) year renewal period agreeing to change such provisions, in whole or in part, or to terminate the same, in which case this Declaration shall be modified or terminated to the extent specified therein; or (b) extended, renewed, modified or terminated as otherwise provided herein or by applicable law.
10.5 Termination of Rights of Declarant. The rights of Declarant to take, approve or consent to actions under this Declaration, the Articles of Incorporation and the Bylaws shall cease and be of no further force and effect upon the earlier of: (a) the date that the Declarant no longer owns any property in the Community and no longer has the right to unilaterally annex additional property to the
Community as provided herein and a certificate of occupancy has been issued for the residential
dwelling located on each Lot in the Community; or (b) the date of recording by Declarant in the Madison County, Georgia land records of a written instrument terminating all of Declarant's rights hereunder.
10.6 Amendment.
(a) By the Declarant. This Declaration may be amended unilaterally at any time and from time to time by Declarant if such amendment is: (i) 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; (il) necessary to enable any reputable title insurance company to issue title insurance coverage with respect to the Lots subject to this Declaration; (iii) required by an institutional or governmental lender or purchaser of mortgage loans, including, without limitation, the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation, to enable such lender or purchaser to make or purchase Mortgage loans on the Lots subject to this Declaration; (iv) necessary to enable any governmental agency or private insurance company, including without limitation, the U.S. Department of Housing and Urban Development and the U.S. Department of Veterans Affairs, to insure or guarantee Mortgage loans on the Lots subject to this Declaration; provided, however, any such
amendment shall not adversely affect the title to any Lot unless the Owner of such Lot consents thereto in writing.
Further, Declarant may unilaterally amend this Declaration for any other purpose; provided, however, such amendment shall not materially adversely affect the substantive rights of any Owner to use and enjoy his or her Lot hereunder nor shall it adversely affect title to any Lot without the consent of the affected Owner.
By the Board. The Board of Directors, with the written consent of the Declarant, and without a vote of the members may amend this Declaration for the following purposes: (i) 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) to enable any reputable title insurance company
Ek 01771 ₽g 0058 to issue title insurance coverage with respect to the Lots subject to this Declaration; (ili) if such
amendment is required by an institutional or governmental lender or purchaser of mortgage loans, including, without limitation, the Federal National Mortgage Association or the 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) to enable any governmental agency or private insurance
company, including without limitation, the U.S. Department of Housing and Urban Development and the U.S. Department of Veterans Affairs, to insure or guarantee Mortgage loans on the Lots subject to this Declaration; provided, however, any such amendment shall not adversely affect the title to any Lot unless the Owner of such Lot consents thereto in writing.
(c) By the Association. In addition to the above, this Declaration may be amended upon the affirmative vote or written consent or any combination thereof of Owners of at least two-thirds (2/3) of the Lots and the consent of Declarant; provided, however, during the time that Declarant has the right to unilaterally annex additional property to the Declaration or has the right to appoint and remove the officers and directors of the Association as provided in the Bylaws, the Declaration shall be amended by Owners of at least two-thirds of the Lots, exclusive of any Lots) owned by the Declarant. Amendments to this Declaration shall become effective upon recordation unless a later effective date is specified therein.
The consent of the Declarant to any amendment shall be evidenced by the execution of said amendment by Declarant. The consent of the requisite number of Owners to any amendment shall be evidenced by the execution of the amendment by said Owners, or, provided that the Declarant does not have the right to appoint and remove the officers and directors of the Association, the sworn statement of the President or any Vice President or the Secretary of the Association attached to or incorporated in the amendment, which sworn statement states unequivocally that the consent of the required number of Owners was obtained and that any notices required by this Declaration, the Bylaws, the Articles of Incorporation and Georgia law were given. The amendments authorized by this Section may be of uniform or nonuniform application and Owners shall be deemed to have agreed that the Declaration may be amended as provided herein and that any rule of law requiring unanimous approval of
amendments having a non-uniform application shall not apply.
10.7 Gender and Grammar. The singular, wherever used herein, shall be construed to mean the plural, when applicable, and the use of the masculine or feminine pronoun shall include the neuter, masculine and feminine.
10.8 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.
10.9 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.
Ek 01771 ₽g_0059 10.10 No Merger. There shall be no merger of any of the covenants, conditions, restrictions or easements created or reserved hereby with the fee estate of Declarant, by reason of the fact that
Declarant may own or hold the estate or interest both encumbered and benefited by such covenants, conditions, restrictions or easements and no such merger shall occur unless and until Declarant, while owning all of the estate or interests shall execute a written statement or instrument affecting such
merger and shall duly record the same.
10.11 Notices. Except as otherwise specifically provided in such documents), as the case may be, notices provided for in this Declaration, the Articles or Bylaws shall be in writing, and shall be
addressed to an Owner at the address of the Lot and to the Declarant and to the Association at the
address of their respective registered agent on file with the Secretary of State of the State of Georgia. Any Owner may designate a different address for notices to such Owner by giving written notice to the Association. Owners shall keep the Association advised of their current address and phone numbers where they can be reached. Notices addressed as above shall be mailed by United States Registered or Certified Mail, return receipt requested, postage paid, or delivered in person, including delivery by
Federal Express or other reputable commercial courier service. The time period in which a response to any such notice must be given or any action taken with respect thereto, shall commence to run from the date of personal delivery or date of receipt shown on the return receipt. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be
deemed to be receipt of the notice sent.
10.12 No Discrimination. No action shall be taken by the Declarant, the Association or the
Board of Directors which would discriminate against any person on the basis of race, creed, color,
national origin, religion, sex, familial status or disability.
10.13 Security. ALL OWNERS, OCCUPANTS, GUESTS, LICENSEES, AND INVITEES, AS
APPLICABLE, ACKNOWLEDGE THAT DECLARANT, THE ASSOCIATION AND ITS BOARD OF DIRECTORS, AND THE ARCHITECTURAL REVIEW COMMITTEE, IF ANY, DO NOT REPRESENT OR WARRANT THAT ANY
SAFETY OR SECURITY MEASURES WILL BE IMPLEMENTED IN THE COMMUNITY OR, IF IMPLEMENTED, THAT SUCH SAFETY OR SECURITY MEASURES MAY NOT BE COMPROMISED OR CIRCUMVENTED, OR
THAT ANY SUCH SAFETY OR SECURITY MEASURES WILL IN ALL CASES PROVIDE THE DETECTION OR
PROTECTION FOR WHICH THEY ARE DESIGNED. EACH OWNER, OCCUPANT, GUEST, LICENSEE, OR
INVITEE, AS APPLICABLE, ACKNOWLEDGES AND UNDERSTANDS THAT DECLARANT, THE ASSOCIATION, THE BOARD OF DIRECTORS AND THE ARCHITECTURAL REVIEW COMMITTEE, IF ANY, ARE NOT INSURERS OR PROVIDERS OF SAFETY OR SECURITY AND SHALL HAVE NO DUTY TO PROVIDE ANY SAFETY OR
SECURITY ON THE COMMON PROPERTY OR OTHERWISE; AND THAT EACH OWNER, OCCUPANT, GUEST, LICENSEE, AND INVITEE ASSUMES ALL RISKS OF PERSONAL INJURY AND PROPERTY DAMAGE AND
FURTHER ACKNOWLEDGES THAT DECLARANT, THE ASSOCIATION, THE BOARD OF DIRECTORS, AND THE ARCHITECTURAL REVIEW COMMITTEE, IF ANY, HAVE MADE NO REPRESENTATIONS OR WARRANTIES, NOR HAS ANY OWNER, OCCUPANT, GUEST, LICENSEE, OR INVITEE RELIED UPON ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE RELATIVE TO ANY SAFETY OR SECURITY MEASURES
IMPLEMENTED OR APPROVED.
10.14 Indemnification. To the fullest extent allowed by the Georgia Nonprofit Corporation
Code, and in accordance therewith, the Association shall indemnify every current and former officer,
Ek: 01771 ₽₴ 0060 director and committee member against any and all expenses, including, but not limited to, attorney's fees, imposed upon or reasonably incurred by any officer, director or committee member in connection with any action, suit or other proceeding (including settlement of any suit or proceeding, if approved by the then Board of Directors) to which such officer, director or committee member may be a party by reason of being or having been an officer, director or committee member. The officers, directors and 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 committee members shall have no personal liability with respect to any contract or other
commitment made by them, in good faith, on behalf of the Association and the Association shall
indemnify and forever hold each such officer, director and committee member free and harmless
against any and all liability to others on account of any such contract or commitment. Any right to
indemnification provided for herein shall not be exclusive of any other rights to which any officer,
director or committee member, or former officer, director or committee member, may be entitled. The Association shall maintain adequate general liability and officers' and directors' liability insurance to fund this obligation, if such coverage is reasonably available.
10.15 Notice of Sale or Acquisition. Owners must keep the Association apprised of their name, address and telephone number. Accordingly, prior to the sale of a Lot, the Owner shall provide the
Association with written notice of the name of the purchaser and such other information as the Board may reasonably require. Upon acquisition of a Lot, each new Owner shall provide the Association with written notice of the name, mailing address and telephone number of the Owner, the names of the Occupants of the Lot, if any, and such other information as the Board may reasonably require. All
Owners shall notify the Association of any change in name, address or telephone number.
10.16 Agreements. Subject to the prior approval of Declarant, all agreements and
determinations, including settlement agreements regarding litigation involving the Association, lawfully authorized by the Board of Directors, shall be binding upon all Owners, their heirs, legal representatives, successors, assigns and others having an interest in the Community or the privilege of possession and enjoyment of any part of the Community.
10.17 Variances. Notwithstanding anything to the contrary contained herein, the Declarant and the Board of Directors with the consent of Declarant shall be authorized to grant individual
variances from any of the provisions of this Declaration, the Bylaws and any rule, regulation or use
restriction promulgated pursuant thereto, if it determines that waiver of application or enforcement of the provision in a particular case is warranted and would not be inconsistent with the overall scheme of development for the Community.
10.18 Litigation. No judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by at least seventy-five percent (75%) of the Total Association Vote and the Declarant. This Section shall not apply 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 herein; (c) proceedings involving challenges to ad valorem taxation; (d) counterclaims 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 goods or services to which the Association is a party. This Section shall not be amended
Ek: 01771 _₽§_ 0061 unless such amendment is made unilaterally by the Declarant as provided herein or is approved by the percentage votes necessary to institute proceedings as provided above.
[SIGNATURES ON FOLLOWING PAGE]
Ek 01771 PE 0062
IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed under seal, this ≥ ox _day of
DECLARANT: Reliant Homes GA, LLC, a Georgia
limited liability company
By: _(SEAL) Print Name: Michel Pest
Title: CF
Signed, sealed, and delivered
in the presence of:
WITNESS
Felicia Fulsen
NOTARY PUBLIC
My Commission Expires: 7 / 11 / 2 02 0
[AFFIX NOTARY SEAL]
FELICIA HUDSON
NOTARY PUBLIC
Walton County
State of Georgia
My Commission Expires July 11, 2020
E₺ 01771 ⅕ 0063
EXHIBIT "A"
Property Description
Tract 1: All that tract or parcel of land lying and being in the 382nd District. G. M., Madison County, State the North and East by lands of Spratling and Bullock; and on the South and west by lands of Fortson, All of Georgia, containing 17.231 acres, more or less, Said tract is bounded now or formerly as follows; On according to a plat prepared by James R. Smith, Surveyor, Cornerstone Land Surveying, dated November 18, 1994, recorded in Plat Book 34, Page 83, Madison County Records, which, plat and record are by reterence incorporated herein. Deed Reference Deed Book X-11, Page 526, Madison County Records. TOGETHER WITH:
Hill District G.M. of Madison County, Georgia, containing FIFTY-FIVE (55) Acres, more or less, and Tract 6: All that tract of land, together with all improvements located thereon, lying and being in the Grove bounded now or formerly as follows: On the northeast by the old Dirt Road leading from Athens, Georgia, to Danielsville Georgia; on the Southeast by lands of Stoehr, lands of Williams, and lands of Brown
Brothers; on the Southwest by lands of Brown Brothers and others; and on the West and Northwest by lands of Brown Brothers and others; being the same, land described in two deeds, one of record in Book P-3, Page 150, and the other in Book V-3, Page 106, in the Office of the Clerk of the Superior Court of
Ek Q1771 _₽⅕ 0064 EXHIBIT "B"
Additional Property Which May Be Unilaterally
Submitted To This Declaration by Declarant
All that tract or parcel of land lying and being in GMD 382, Madison County, Georgia.
E 01771 Pg 0065
EXHIBIT "CI
BYLAWS
OF
WOODBURY HOMEOWNERS ASSOCIATION, INC.
B: 01771 ½ 0066 BYLAWS
OF
WOODBURY HOMEOWNERS ASSOCIATION, INC.
- TABLE OF CONTENTS -
Page Number ARTICLE 1 NAME, MEMBERSHIP, APPLICABILITY AND DEFINITIONS... ...1
1.1 NAME... ...1 1.2 MEMBERSHIP ..1 1.3 DEFINITIONS... .1
ARTICLE 2 ASSOCIATION: MEETINGS, QUORUM, VOTING, PROXIES
2.1 PLACE OF MEETINGS
2.2 ANNUAL MEETINGS..
2.3 SPECIAL MEETINGS..
2.4 RECORD DATE.
2.5 NOTICE OF MEETINGS..
2.6 WAIVER OF NOTICE...
2.7 ADJOURNMENT OF MEETINGS. ..2 2.8 MEMBERSHIP LIST..
2.9 VOTING
2.10 PROXIES..
2.11 QUORUM
2.12 ACTION BY WRITTEN CONSENT..
2.13 ACTION BY WRITTEN BALLOT...
ARTICLE 3 BOARD OF DIRECTORS: NUMBER, POWERS, MEETINGS...
3.1 GOVERNING BODY; COMPOSITION...
3.2 DIRECTORS APPOINTED BY DECLARANT..
3.3 NUMBER OF DIRECTORS..
3.4 NOMINATION OF DIRECTORS.
3.5 ELECTION AND TERM OF OFFICE
3.6 REMOVAL OF DIRECTORS.
3.7 VACANCIES...
3.8 ORGANIZATION MEETINGS..
3.9 REGULAR MEETINGS.
3.10 SPECIAL MEETINGS...
3.11 WAIVER OF NOTICE...
3.12 QUORUM OF BOARD OF DIRECTORS...
Et 01771 Fg 0067 3.13 COMPENSATION .6 3.14 OPEN MEETINGS.
.6 3.15 EXECUTIVE SESSION …..7 3.16 ACTION WITHOUT A FORMAL MEETING.. ..7 3.17 TELEPHONIC PARTICIPATION
..7 3.18 POWERS. ..7 3.19 MANAGEMENT AGENT.
3.20 BORROWING.
3.21 FINING PROCEDURE.
ARTICLE 4 OFFICERS.
4.1 OFFICERS..
4.2 ELECTION, TERM OF OFFICE, AND VACANCIES..
4.3 ADDITIONAL OFFICERS AND AGENTS...
4.4 SALARIES..
4.5 REMOVAL.
4.6 PRESIDENT
4.7 VICE PRESIDENT
4.8 SECRETARY.
4.9 TREASURER..
4.10 RESIGNATION.
ARTICLE 5 COMMITTEES
ARTICLE 6 MISCELLANEOUS..
6.1 FISCAL YEAR
6.2 PARLIAMENTARY RULES..
6.3 CONFLICTS.
6.4 ELECTRONIC RECORDS, SIGNATURES AND DOCUMENTS..
6.5 AMENDMENT
Bk 01771 g 0068
BYLAWS
OF
WOODBURY HOMEOWNERS ASSOCIATION, INC.
Article 1
Name, Membership, Applicability and Definitions
1.1 Name. The name of the corporation shall be Woodbury Homeowners Association, Inc. (hereinafter sometimes referred to as the "Association").
1.2 Membership. The Association shall have one class of membership, as is more fully set forth in that certain Declaration of Protective Covenants, Conditions, Restrictions and Easements for Woodbury Subdivision (such Declaration, as amended, supplemented, renewed, or extended from time to time, is hereinafter sometimes referred to as the "Declaration"), the terms of which pertaining to membership are specifically incorporated by reference herein.
Definitions. The words used in these Bylaws shall have the same meaning as set forth in the Declaration, unless the context shall prohibit, or the meanings given in the Georgia Nonprofit
Corporation Code (O.C.G.A. Section 14-3-101, et seq.) (the "Nonprofit Code"). Statutory references shall be construed as meaning the referenced statute or portion thereof as the same may exist from time to time.
Article 2
Association: Meetings, Quorum, Voting, Proxies
2.1 Place of Meetings. Meetings of the Association shall be held at the principal office of the Association or at such other suitable place convenient to the members as may be designated by the Board of Directors, either in the Community or as convenient thereto as possible and practical.
2.2 Annual Meetings. There shall be an annual meeting of the members at such date, place and time as the Board of Directors shall determine to receive the reports of the outgoing Board of
Directors, to install directors for the ensuing year and to transact such other business as may come before the meeting.
2.3 Special Meetings. The President or the Board of Directors may call special meetings. In addition, it shall be the duty of the President to call a special meeting of the Association upon the
delivery of a petition signed and dated by members entitled to cast at least twenty-five percent (25%) of the Total Association Vote and describing the purpose or purposes for which it is to be held. The notice of any special meeting shall state the date, time, and place of such meeting and the purposes) thereof.
Ek 01771 ₽g 0069 No business shall be transacted at a special meeting, except those matters that are within the purpose or purposes described in the notice.
2.4 Record Date. The Board of Directors shall fix in advance a record date for a
determination of members entitled to notice of and to vote at any meeting of members or any
adjournment thereof, or to make a determination of members for any other purpose, such date to be not more than seventy (70) days before the date on which the particular action requiring such
determination of members is to be taken.
2.5 Notice of Meetings. It shall be the duty of the Secretary or such other agent as the Association may designate to mail or to cause to be delivered to each member (as shown in the records of the Association as of the record date) a written notice of each annual or special meeting of the
Association stating the date, time and place where it is to be held and, if and to the extent required by the Nonprofit Code or other applicable law (the "Governing Law"), the purpose(s) thereof. Such notice shall be delivered personally or sent by United States mail, postage prepaid, statutory overnight
delivery, or sent by electronic transmission in accordance with the Nonprofit Code to all members of record at the address shown in the Association's current records. If an Owner wishes notice to be given at an address other than the Lot, the Owner shall designate by notice in writing to the Secretary such other address. Notices shall be mailed or delivered not less than twenty-one (21) days in advance of any annual or regularly scheduled meeting and at least seven (7) days in advance of any special meeting and shall state the time, place, and, for any special meeting, the purpose of such meeting. If any meeting of the members is adjourned to a different date, time or place, notice need not be given of the new date, time or place, if the new date, time or place is announced at the meeting before adjournment. If,
however, a new record date is or must be fixed under the Governing Law, notice of the adjourned meeting shall be given to persons who are members of record as of the new record date.
Waiver of Notice. Waiver of notice of a meeting of the members shall be deemed the equivalent of proper notice. Any member may, in writing or by electronic transmission signed by the member entitled to notice and delivered to the Association for inclusion in the minutes for filing with the Association's records, waive notice of any meeting of the members, either before or after such meeting. Attendance at a meeting by a member, whether in person or by proxy, shall be deemed
waiver by such member of lack of notice or defective notice, unless such member specifically objects to lack of proper notice at the time the meeting is called to order.
2.7 Adjournment of Meetings. If any meeting of the Association cannot be held because a quorum is not present, a majority of the members who are present at such meeting, either in person or by proxy, may adjourn the meeting to a time not less than five (5) nor more than thirty
(30) days from the time the original meeting was called. At such adjourned meeting at which a quorum is present, any business which might have been transacted at the meeting originally called may be
transacted without further notice.
Membership List. After the record date for any meeting is established by the Board of Directors, the Secretary shall prepare an alphabetical list of the names and addresses of all of the
members who are entitled to notice of the meeting. Beginning at least two (2) business days after
notice is given of the meeting for which the list was prepared, the list of members shall be available for inspection by any member or a member's agent or attorney: (1) on a reasonably accessible electronic
E: 01771 Pg 0070 network, provided that the information required to gain access to such list is included with the notice of the meeting or upon request; or (2) during ordinary business hours at the Association's principal office or at such other reasonable place as may be specified in the notice in the city where the meeting will be held. In the event that the Association makes the list available on an electronic network, the Association may take reasonable steps to ensure that such information is available only to members of the
Association. In addition, the list shall be available for inspection at the meeting or any adjournment thereof.
2.9 Voting. The voting rights of the members shall be as set forth in the Articles of
Incorporation and the Declaration, and such voting rights are specifically incorporated herein.
2.10 Proxies. At all meetings of members, each member may vote in person or by proxy. All proxy appointment forms shall be in writing, signed either personally or by an electronic transmission, dated, and filed with the Secretary before the appointed time of each meeting. An electronic
transmission must contain or be accompanied by information acceptable to the Board from which it can be determined that the member, the member's agent, or the member's attorney-in-fact authorized the electronic transmission. Proxies may be delivered to the Board of Directors by personal delivery, U.S. mail or electronic transmission to the Secretary or other officer or agent authorized to tabulate votes. Every proxy shall be revocable and shall automatically cease upon: (a) receipt of notice by the Secretary of the death or judicially declared incompetence of a member; (b) receipt by the Secretary or other officer or agent authorized to tabulate votes of written revocation signed by the member; (c) receipt by the Secretary or other officer or agent authorized to tabulate votes of a subsequent appointment form signed by the member; (d) attendance by the member and voting in person at any meeting; or (e) the expiration of eleven (11) months from the date of the proxy appointment form.
2.11
twenty-five percent (25%) of the votes entitled to be cast at the meeting shall constitute a quorum at all meetings of the Association. The members present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough members to leave less than a quorum.
2.12 Action By Written Consent. Any action required or permitted to be approved by the members may be approved without a meeting if one (1) or more consents, in writing or by electronic transmission, setting forth the action so taken, shall be signed, either personally or by an electronic transmission, and dated by members (including the Declarant, if the consent of the Declarant is
required) holding the voting power required to pass such action at a meeting held on the record date for such action. The record date for such action shall be the date that the first member signs a consent. Such action shall be approved when the Secretary receives a sufficient number of such consents dated within seventy (70) days of the record date for such action. If less than unanimous consent is obtained, the approval shall be effective ten (10) days after the Secretary gives written notice of the approval to all members who did not sign a consent. Each consent in writing or by electronic transmission shall be included in the minutes of meetings of members filed in the permanent records of the Association. No consent in writing or by electronic transmission shall be valid unless: (1) the consenting member has been furnished the same material that, pursuant to the Nonprofit Code, would have been required to be sent to members in a notice of a meeting at which the proposed action would have been submitted to
B: 01771 Ps 0071 the members for action; or (2) the written consent contains an express waiver of the right to receive the material otherwise required to be furnished.
Action By Written Ballot. Any action that may be taken at any annual, regular or special meeting of members may be taken without a meeting if approved by ballot in writing or by electronic transmission as provided herein. The Association shall deliver a ballot in writing or by electronic
transmission to each member entitled to vote on the matter. The ballot in writing or by electronic transmission shall set forth each proposed action and provide an opportunity to vote for or against each proposed action. All solicitations for votes by ballot in writing or electronic transmission shall indicate the number of responses needed to meet the quorum requirements; state the percentage of approvals necessary to approve each matter other than election of directors; and specify the time by which a ballot must be received by the Association in order to be counted. A timely ballot in writing or by
electronic transmission received by the Association may not be revoked. Approval by ballot in writing or by electronic transmission of an action shall only be valid when the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting held to authorize such action and the number of approvals equals or exceeds the number of votes that would be required to approve the matter at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot. The results of each action by ballot shall be certified by the Secretary and shall be included in the minutes of meetings of members filed in the permanent records of the Association.
Article 3
Board of Directors: Number, Powers, Meetings
3.1 Governing Body; Composition. The affairs of the Association shall be governed by a Board of Directors. Directors shall be natural persons who are eighteen (18) years of age or older. Except for directors appointed by the Declarant, each director must reside in the Community and be a member or the spouse of a member; provided, however, no Person may serve on the Board at the same time with such Person's spouse or any co-Owner or Occupant of such Person's Lot.
Directors Appointed by Declarant. The Declarant shall have the right to appoint or remove any member or members of the Board of Directors or any officer or officers of the Association until such time as the first of the following events shall occur: (a) the date on which all of the Lots
planned by Declarant to be a part of the Community shall have been improved with a dwelling and conveyed to an Owner for occupancy as a residence; or (b) the surrender by Declarant in writing of the authority to appoint and remove directors and officers of the Association. The directors appointed by the Declarant need not be Owners or residents in the Community.
The total number of Lots planned by Declarant for the Community shall initially be the number of Lots shown on the Declarant's land use plan for the development as it may be amended from time to time. Inclusion of property on the land use plan shall not obligate the Declarant to subject such
property to the Declaration, nor shall exclusion of property from the initial land use plan bar Declarant from subjecting such property to the Declaration. The final total number of Lots planned for the
Community shall be the actual number of Lots shown on the recorded subdivision plat(s) for the
Community regardless of any different number of Lots shown from time to time on the land use plan.
3.3 Number of Directors. During the period that the Declarant has the right to appoint and remove the officers and directors of the Association as provided above, the Board of Directors shall
& 01771 P: 0072 consist of one (1) to three (3) members as determined by Declarant in writing from time to time. Thereafter, the Board shall consist of three (3) directors, who shall be elected as provided in Section 3.5 below.
Nomination of Directors. Elected directors may be nominated from the floor, if a meeting is held for the election of directors and may also be nominated by a nominating committee, if established by the Board. All candidates shall have a reasonable opportunity to communicate their qualifications to the members and to solicit votes.
Election and Term of Office. After the Declarant's right to appoint directors and officers terminates, the Association shall call a special meeting (or take action under Section 2.12 or Section 2.13 in lieu of a meeting) and the members shall elect three (3) directors as follows: the initial term of two (2) directors shall be fixed at two (2) years and the initial term of one (1) director shall be fixed at one (1) year. Thereafter, all successors shall be elected to a term of two (2) years. At annual meetings
thereafter (or pursuant to Section 2.12 or Section 2.13 in lieu of a meeting), directors shall be elected as necessary to fill vacant seats on the Board and to preserve the scheme of staggered terms with one more or one less director being elected each year than in the previous year. All eligible members of the Association may vote on all directors to be elected, and the candidates receiving the most votes shall be elected. Notwithstanding anything herein to the contrary, the members of the Board of Directors shall continue in office until their respective successors shall have been elected and take office.
3.6 Removal of Directors. At any annual, regular or special meeting of the Association, any one (1) or more of the members of the Board of Directors elected by the members may be removed, with or without cause, by a majority of the Total Association Vote and a successor may then and there be elected to fill the vacancy thus created. The notice of the meeting shall state that the purpose or one of the purposes, of the meeting is removal of a director. A director whose removal by the members has been proposed shall be given an opportunity to be heard at the meeting. Additionally, any director who has three (3) consecutive unexcused absences from Board meetings or who is delinquent in the
payment of an assessment for more than thirty (30) days may be removed by a majority vote of the remaining directors. This Section shall not apply to directors appointed by the Declarant.
3.7 Vacancies. Vacancies in the Board of Directors caused by any reason, excluding the removal of a director by vote of the Association, shall be filled by a vote of the majority of the remaining directors. Each Person so selected shall serve the unexpired portion of the term.
3.8 Organization Meetings. The first meeting of a newly elected Board of Directors shall be held within ten (10) days after the election at such time and place as the directors may conveniently assemble.
3.9 Regular Meetings. Regular meetings of the Board of Directors may be held at such time and place as shall be determined from time to time by the Board, provided that, after the right of
Declarant to appoint the directors terminates, at least four (4) such meetings shall be held during each fiscal year with at least one (1) per quarter. Notice of the regular schedule shall constitute sufficient notice of such meetings.
3.10 Special Meetings. Special meetings of the Board of Directors shall be held when
requested by the President, Vice President or by any two (2) directors. The notice shall specify the date,
Sk 01771 Pg 0073 time and place of the meeting and the nature of any special business to be considered. The notice shall be given to each director by one of the following methods: (a) by personal delivery (including
commercial delivery service) to such director's home or office; (b) written notice by first class mail, postage prepaid; (c) by telephone communication (including facsimile), either directly to the director or to the director's home or office; or (d) issued electronically in accordance with the Nonprofit Code, if the director has consented in writing to such method of delivery and has provided the Board with an
address regarding the same. All such notices shall be given or sent to the director's address or
telephone number as shown on the records of the Association. Notices sent by first class mail shall be deposited with the U.S. Postal Service at least four (4) days before the date of the meeting. Notices given by personal delivery, electronic transmission or telephone shall be given at least two (2) days before the day of the meeting.
3.11 Waiver of Notice. The business transacted at any meeting of the Board of Directors, however called and noticed or wherever held, shall be as valid as though taken at a meeting duly held after regular call and notice, if (a) a quorum is present, and (b) either before or after the meeting, each of the directors not present signs a written waiver of notice, a consent to holding the meeting, or an approval of the minutes either in writing or by electronic transmission which is included in the minutes or filed with the official records of the Association. The waiver of notice or consent need not specify the purpose of the meeting. Notice of a meeting shall also be deemed given to any director who attends the meeting without protesting before or at its commencement about the lack of adequate notice.
Quorum of Board of Directors. At all meetings of the Board of Directors, a majority of the directors shall constitute a quorum for the transaction of business, and the votes of a majority of the directors present at a meeting at which a quorum is present shall constitute the decision of the Board of Directors.
3.13 Compensation. No director shall receive any compensation from the Association for acting as such.
3.14 Open Meetings. All meetings of the Board shall be open to all members, but members other than directors may not participate in any discussion or deliberation unless expressly so authorized by the Board.
3.15 Executive Session. The Board may adjourn a meeting and reconvene in executive session to discuss and vote upon personnel matters, litigation in which the Association is or may become
involved, and orders of business of a similar nature. The nature of any and all business to be considered in executive session shall first be announced in open session.
3.16 Action Without A Formal Meeting. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if one or more consents, in writing or by
electronic transmission, setting forth the action so taken, shall be signed by a majority of the directors and delivered to the Association for inclusion in the minutes for filing in the corporate records. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
3.17 Telephonic Participation. One or more directors may participate in and vote during any meeting of the Board by telephone conference call or any other means of communication by which all
Ek 01771 ₽ OU74 directors participating may simultaneously hear each other during the meeting. Any such meeting at which a quorum participates shall constitute a meeting of the Board.
3.18 Powers. The Board of Directors shall be responsible for the affairs of the Association and shall have all of the powers and duties necessary for the administration of the Association's affairs and, as provided by law, may do all acts and things as are not by law, the Declaration, the Articles of Incorporation of the Association, or these Bylaws directed to be done and exercised by the members. In addition to the duties imposed by these Bylaws or by any resolution of the Association that may
hereafter be adopted, the Board of Directors shall have the power to and be responsible for the
following, in way of explanation, but not limitation:
(a) preparing and adopting an annual budget in which there shall be established the
contribution of each member to the common expenses;
(b) making assessments to defray the common expenses and establishing the means and
methods of collecting such assessments;
(c) providing for the operation, care, upkeep, and maintenance of all areas which are the
maintenance responsibility of the Association;
(d) designating, hiring, and dismissing the personnel necessary for the operation of the
Association and, where appropriate, providing for the compensation of such personnel and for the
purchase of equipment, supplies, and material to be used by such personnel in the performance of their duties;
(e) collecting the assessments, depositing the proceeds thereof in a bank depository which it shall approve, and using the proceeds to administer the Association;
(f) making and amending rules and regulations;
(g) opening bank accounts on behalf of the Association and designating the signatories
required;
(h) enforcing by legal means the provisions of the Declaration, these Bylaws, and the rules and regulations and Architectural Guidelines adopted by it, and bringing any proceedings which may be
instituted on behalf of or against the members concerning the Association, which enforcement power shall include, without limitation, the power to levy fines as provided herein and in the Declaration in such amounts as from time to time the Board may deem proper in the circumstances, counting each day a violation continues after notice from the Board as a separate violation;
(i) obtaining and carrying insurance against casualties and liabilities, as provided in the
Declaration, and paying the premium cost thereof;
() keeping books with detailed accounts of the receipts and expenditures of the Association and the actions thereof, and specifying the maintenance and repair expenses and any other expenses
incurred; and
(k) authorizing contracts on behalf of the Association.
Ek 01771 Pg 0075 Management Agent. The Board of Directors may employ for the Association a
professional management agent or agents at a compensation established by the Board of Directors to perform such duties and services as the Board of Directors shall authorize. Declarant, or an affiliate of Declarant, may be employed as managing agent or manager. The term of any management agreement shall not exceed one (1) year and shall be subject to termination by either party, without cause and without penalty, upon ninety (30) days' written notice.
3.20 Borrowing. The Board of Directors shall have the power to borrow money
without the approval of the members of the Association; provided, however, after the right of
the Declarant to appoint and remove the directors and officers expires as provided in Section
3.2 of the Bylaws, the Board shall obtain membership approval in the same manner as for
special assessments, in the event that the total amount of such borrowing exceeds or would
exceed ten percent (10%) of the annual budget of the Association.
3.21 Fining Procedure. A fine shall not be imposed (a late charge shall not constitute a fine) unless and until the following procedure is followed:
(a) Written notice shall be delivered to the member by first-class or certified mail sent to the address of the member shown on the Association's records, specifying:
(1) the nature of the violation, the fine to be imposed and the date, not less than ten (10) days or, in the event of an unapproved sign, twenty-four (24) hours, from the date of the notice, that the fine will take effect;
(2) that the violator may, within ten (10) days or, in the event of an unapproved sign, twenty four (24) hours, from the date of the notice, request a hearing in writing
regarding the fine imposed;
(3) the name, address and telephone number of a person to contact to challenge the fine;
(4) that any statements, evidence, and witnesses may be produced by the violator at the hearing; and
(5) that all rights to have the fine reconsidered are waived if a hearing is not requested within ten (10) days or, in the event of an unapproved sign, twenty-four (24) hours, of the date of the notice.
(b) If a hearing is requested within the requisite time provided above, it shall be held before the Board in executive session, and the violator shall be given a reasonable opportunity to be heard. The minutes of the meeting shall contain a written statement of the results of the hearing. No fine shall be imposed prior to the date that is five (5) days or, in the event of an unapproved sign, twenty-four (24) hours, after the date of the hearing, as applicable.
(c) Within twelve (12) months of such demand, if the violation continues past the period
allowed in the demand for abatement without penalty, or if the violation recurs, the Board may, upon notice stating the nature of the violation and delivered to the member by first class or certified mail sent to the address of the member shown on the Association's records, impose a fine.
3k 01771 ₽ 0076
Article 4
Officers
4.1 Officers. The officers of the Association shall be a President, Vice President, Secretary, and Treasurer. Any two (2) or more offices may be held by the same Person, excepting the offices of President and Secretary. The President and Treasurer shall be elected from among the members of the Board of Directors. This provision shall not apply to officers appointed by the Declarant.
4.2 Election, Term of Office, and Vacancies. Except during the period in which the Declarant has the right to appoint the officers of the Association, the officers of the Association shall be appointed annually by the Board of Directors at the first meeting of the Board of Directors following the election of directors. A vacancy in any office arising because of death, resignation, removal, or otherwise may be filled by the Board of Directors for the unexpired portion of the term.
4.3 Additional Officers and Agents. The Board of Directors may appoint such other officers, including vice presidents, assistant secretaries and assistant treasurers, and agents as it shall deem necessary. Such officers and agents shall hold their respective offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of
Directors.
4.4 Salaries. The officers shall receive no compensation.
4.5 Removal. Except for officers appointed by the Declarant, any officer may be removed, with or without cause, by the Board of Directors.
4.6 President. The President shall be the chief executive officer of the Association and shall preside at all meetings of the members and directors. The immediate supervision of the affairs of the Association shall be vested in the President. It shall be the President's duty to attend to the business of the Association and maintain strict supervision over all of its affairs and interests. The President shall keep the Board of Directors fully advised about the affairs and conditions of the Association, and shall manage and operate the business of the Association pursuant to and in accordance with such policies as may be prescribed from time to time by the Board of Directors.
4.7 Vice President. The Vice Presidents), if any, shall act in the President's absence or
disability and shall have all powers, duties, and responsibilities provided for the President when so
acting, and shall perform such other duties as shall from time to time be imposed upon any Vice
President by the Board or delegated to a Vice President by the President.
4.8 Secretary. The Secretary shall keep the minutes of all meetings of the members and of the Board of Directors; notify the members and directors of meetings as provided by these Bylaws and Georgia law; have custody of the seal of the Association; affix such seal to any instrument requiring the same; attest the signature or certify the incumbency or signature of any officer of the Association; and perform such other duties as the President, or the Board of Directors may prescribe. The Secretary shall perform the duties of the Treasurer of the Association in the absence or disability of the Treasurer.
4.9 Treasurer. The Treasurer shall keep, or cause to be kept, the financial books and
records of the Association, and shall faithfully account for the Association's funds, financial assets, and
Ek: 01771 Pg 0077 other assets entrusted to the Treasurer's care and custody. The Treasurer shall make such reports as may be necessary to keep the President and the Board of Directors informed at all times as to the
financial condition of the Association, and shall perform such other duties as the President, or the Board of Directors may prescribe. The Treasurer shall maintain the money and other assets of the Association in the name and to the credit of the Association in such depositories as may be designated by the Board of Directors. The Treasurer may provide for the investment of the money and other assets of the
Association consistent with the needs of the Association to disburse such money and assets in the
course of the Association's business. The Treasurer shall perform the duties of the Secretary of the
Association in the absence or disability of the Secretary.
4.10 Resignation. Any officer may resign at any time by giving written notice to the Board of Directors. Such resignation shall take effect on the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Article 5
Committees
Advisory, standing and Ad Hoc committees to perform such tasks and to serve for such periods as may be designated by the Board or as provided in the Declaration are hereby authorized. Each such committee shall be composed and shall operate in accordance with the terms of the Declaration or
resolution of the Board of Directors designating the committee or with rules adopted by the Board of Directors. An advisory, standing or Ad Hoc committee shall not be authorized to exercise any authority of the Board under the Articles of Incorporation, the Declaration, these Bylaws or the Nonprofit Code except as expressly provided therein.
Article 6
Miscellaneous
6.1 Fiscal Year. The fiscal year of the Association shall be the calendar year unless otherwise determined by resolution of the Board.
6.2 Parliamentary Rules. Roberts Rules of Order (current edition) shall govern the conduct of all Association proceedings, when not in conflict with Georgia law, the Articles of Incorporation of the Association, the Declaration or these Bylaws.
6.3 Conflicts. If there are conflicts or inconsistencies between the provisions of Georgia law, the Articles of Incorporation of the Association, the Declaration and these Bylaws, the provisions of Georgia law, the Declaration, the Articles of Incorporation of the Association and the Bylaws (in that order) shall prevail.
6.4 Electronic Records, Signatures and Documents. To the extent permitted by Georgia law, the Declaration and these Bylaws, the Association and its members, officers, directors, Owners and Occupants may perform any obligation or exercise any right by use of any technological means providing sufficient security, reliability, identification and verifiability, which technological means have been
approved by the Board of Directors in its sole discretion.
E: 01771 Pg 0078 6.5 Amendment. These Bylaws may be amended by the Board of Directors with the
consent of the Declarant if such amendment is necessary to: (a) bring any provision hereof into
compliance with any applicable governmental statute, rule, or regulation or judicial determination which shall be in conflict therewith; (b) enable any title insurance company to issue title insurance coverage with respect to the Lots subject to the Declaration; (c) enable an institutional or governmental lender or purchaser of mortgage loans, including, without limitation, the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to make or purchase Mortgage loans on the Lots subject to the Declaration; (d) enable any governmental agency or private insurance company to insure or guarantee Mortgage loans on the Lots subject to the Declaration; or (e) comply with the provisions of the Georgia Property Owners' Association Act, O.C.G.A. § 44-3-220, et seq. Further, Declarant may unilaterally amend these Bylaws for any other purpose; provided, however, any such amendment shall not materially adversely affect the substantive rights of any Owner to use and enjoy such Owner's Lot without the consent of the affected Owner nor shall it adversely affect the rights of the holder of any security interest granted by Declarant without the written consent of such holder. In addition, these Bylaws may be amended upon the affirmative vote, written consent or any combination of affirmative vote and written consent of at least two-thirds (2/3) of the Total Association Vote and the consent of Declarant.