|
Date: Aug. 12, 2007
Tags: None
DECLARATION
OF
COVENANTS,
CONDITIONS
AND RESTRUCTIONS
FOR
DUNWOODY COMMONS
HOMEOWNERS
ASSOCIATION,
INC.
ARTICLE VI "RIGHTS AND
OBLIGATIONS
OF THE ASSOCIATION AND
OWNERS"
Section 1. Common Area.
Subject to the rights of the Owners set forth in this Declaration,
the Association has exclusive management and control of the Common
Area and all other improvements thereon and all furnishings,
equipment and other personal property related thereto. The
Association shall keep the foregoing in good, clean, substantial,
attractive, sanitary and serviceable condition, order and
repair. The Association's duties with respect to the Common
Area include the management, operation,
maintenance, repair, servicing, replacement and renewal
of all improvements, equipment and personal property installed
thereon by the Declarant as part of the Work. The
Association's duties also include the duty to repair under the
circumstances outlined in this article.
Section 2. Lot
Maintenance.
(a)
Responsibility of Association. The Association shall
provide maintenance upon each Lot and each Lot is subject to
assessment for such maintenance, including but not
limited to: (i) the exclusive right to conduct exterior maintenance
including but not limited to the repair, replacement and
maintenance of Common Area improvements, roofs, lawns, trees,
shrubs, landscaped areas including any partially enclosed front
yards of Lots, sidewalks, fences the community pool, community pool
furniture and equipment, and other exterior improvements installed
by Declarant as part of the Work, and their replacements; (ii) the
exclusive right to painting and repair of exterior building
surfaces, every ten (10) years, or more often if deemed necessary
by the Board of Directors, the initial such time period to commence
from the date that the first Lot is sold to a residential Owner;
(iii) repair, replacement, and maintenance of the utility easements
located under each Lot as described in Article IV, and (iv) the
right to maintain irrigation systems within the Common Property.
The Association's duty of exterior
maintenance does NOT include: glass surfaces; replacement
of exterior doors; screened enclosures or rear lanai. The
Association also is
not responsible for any maintenance, repair or replacement
resulting from any fire, wind, flood, tornado, hurricane or other
casualty; and each Owner will promptly correct any and all such
casualty damage to such Owner's Lot within a reasonable time as
specified herein. Where it is stated herein that the
Association has exclusive control, it means the Owners of Lots
shall not be required, or entitled, to conduct such activities, it
being the intent of the Association to control such activities for
purpose of maintaining uniformity within the Property. Each Owner
of a Vistas Dwelling shall be responsible for repair, maintenance
and replacement of the driveway located on such Owner's
Lot. All maintenance performed by the Association shall be at
least up to the maintenance standards established in the
Declaration.
(b) Responsibility of
Owner. The Owner shall provide exterior maintenance as
follows, the cost for which each Owner shall be individually
responsible: (i) maintenance, repair and replacement of rear
screen porches, patios, lanais, screened enclosures, walkways and driveways upon
each Owner's Lot (ii) repair or replacement of all glass surfaces
on his/her Lot; (iii) replacement of exterior doors; (iv)
maintenance, repair, or replacement resulting from any fire, wind,
flood, tornado, hurricane or other casualty damage with the Lot of
an Owner; (v) repair or replace any property whether upon each
Owner's Lot or any other Lot, or the Common Property, which repair
or replacement is required because of any negligence or
the willful act of such Owner or any member of such Owner's
family or household, or any invitee of such
owner; and (vi) the cost of labor and materials for
replacement of roofs on individual Lots in excess of the reserves
established for such purpose pursuant to Article VI, Section 2
hereof. All maintenance performed by the Owner shall be at
least up to the maintenance standards established in the
Declaration.
(c) Failure of Owner to
Repair. The Association may perform maintenance or
make repairs and assess the costs of any required exterior
maintenance or repairs to the Owner of any Lot under the following
circumstances: (1) such Owner does not when reasonably
necessary replace any glass surfaces or exterior doors on such
Owner's Lot; or (ii) any maintenance, repair or replacement,
whether upon such Owner's Lot, or any other Lot or Common
Property, is required because of any negligent or willful act of
such Owner or any member of such Owner's family or household or any
invitee of such Owner; or (iii) any owner fails promptly to repair
or replace, as the case may be, any casualty damage to such Owner's
Lot; and (iv) such Owner has failed to undertake the necessary
maintenance or replacement within a reasonable period of time
following written notice from the Association. Upon the
occurrence of the foregoing, and after
reasonable prior notice to such Owner, and
a reasonable opportunity to
be heard, the Association's Board of Directors by a vote of not
less than sixty-seven percent (67%) of the full Board may undertake such maintenance, replacement or repairs
and may assess by specific assessment the costs of such maintenance,
replacement or repairs, as the case may be, against such Owner's
Lot in the manner provided by Article VII, Section 14, of the
Declaration. Failure of the Association to undertake any such
maintenance, replacement or repair on behalf of the Owner
shall in no event be deemed a waiver of the right to do so
thereafter.
Section 3. Services. The
Association may obtain and pay for the services of any person to
manage its affairs to the extent it deems advisable, as well as
such other personnel as the Association determines are necessary or
desirable for the proper operation of the Property, whether such
personnel are furnished or employed directly by the Association or
by any person with whom it contracts. Without limitation, the
Association may obtain and
pay for legal and accounting services
necessary or desirable in connection with the operation of the Property or
the enforcement of this Declaration, any future Declaration, or its
Articles, Bylaws, Rules and Regulations. The Association
may contract with others to furnish trash collection, lawn care,
Common Property maintenance, and any other services or materials,
or both, to all Lots, or to any group of Lots; provided, however,
if such services or materials, or both, are furnished to less than
all Lots, then:
(i) only
those Lots enjoying the benefit thereof shall be assessed for the
cost thereof, as provided in this Declaration; and
(ii) provided
further, each such Owner's consent shall be required.
Section 4.
Personal Property. The Association
may acquire, hold and dispose of tangible and intangible personal
property, subject to such restrictions as from time to time may be
contained in the Association's Bylaws.
Section 5.
Rules and Regulations. The Association
from time to time may adopt, alter, amend, rescind and enforce
reasonable Rules and Regulations governing the use of the Lots, the
Common Property, or any combination thereof, which Rules and
Regulations shall be consistent with the right and duties
established by this Declaration, and any applicable future
Declaration. The validity of the Association's Rules and
Regulations, and their enforcement shall be determined by a
standard of reasonableness for the purpose of protecting the value
and desirability of the Property as a residential community. All
Rules and Regulations initially may be promulgated by the Board of
Directors, subject to amendment or rescission by a majority of both
classes of membership present and voting at any regular or special
meeting convened for such purposes. The Association's
procedures for enforcing its Rules and Regulations at all times
shall provide the affected Owner with reasonable prior notice and a
reasonable opportunity to be heard, in person and through
representatives of such Owner's choosing.
Section
6. Implied Rights. The
Association may exercise any other right, power or privilege given
to it expressly by this Declaration, any future Declaration, its
Articles or Bylaws, or by law, and every other right, power or
privilege reasonably to be implied from the existence of any right,
power or privilege so granted or reasonably necessary to effectuate
the exercise of any right, power or privilege so
granted.
Section 7. Restriction on Capital
Improvements. Except for replacement or repair
of items installed by Declarant as part of the Work, and except for
personal property related to the Common Property, the
Association may not authorize capital improvements to the Common
Property without Declarant's consent until termination of the Class
B control period as described in Article V. At all times
hereafter, all capital improvements to the Common Property,
except for replacement or repair of those items installed by
Declarant as part of the Work and except for personal property
related to the Common Property shall be approved by
sixty-seven percent (67%) of each class of members who are present
in person or by proxy and voting at a meeting duly convened for
such purpose, as provided in this Declaration.
Section 8. Litigation. The
Association shall have the power to initiate or defend litigation
on behalf of the Association, subject to the following
limitations: no judicial or administrative proceeding shall be
commenced or prosecuted by the Association unless approved by a
vote of seventy-five percent (75%) of each class of
members. This paragraph shall not apply, however,
to (a) actions brought by the Association to
enforce the
provisions of this Declaration (including, without limitation, the
foreclosure of liens and enforcement of restrictive covenants
against Owners), (b) the imposition and collection of assessments
as provided in Article VII hereof, (c) proceedings involving
challenges to ad valorem taxation, or (d) counterclaims brought by
the Association in amendment is made by the Declarant or is
approved by the percentage votes, and pursuant to the same
procedures, necessary to institute proceedings as provided
above.
Section 9. Surface Water/Stormwater
Management System.
(a) The Association
shall operate, maintain and manage the SWMS
in a
manner consistent with the SJRWMD Permit
requirements and applicable District rules, and shall assist in the
enforcement of the restrictions and covenants contained
herein. Maintenance of the SWMS shall mean exercise of
practices which allow the systems to provide drainage, water
storage, treatment, conveyance or other surface water
or stormwater management capabilities as permitted by
SJRWMD. The Association shall be responsible for such
maintenance and operation. Any repair or reconstruction of the
SWMS shall be as permitted, or if modified, as approved
by SJRWMD.
(b) No structure of any kind shall
be constructed or erected within, nor shall an Owner in any way change, alter,
impede, revise or otherwise interfere with the flow and the volume
of water in any portion of any drainage areas or the SWMS, nor
shall any grading, alteration, or other modifications to these
areas be made without the prior written permission of the
Association, any governmental entity having jurisdiction and
SJRWMD.
(c) No Owner shall in any
way deny or prevent ingress and egress by the Declarant, the Association, the
County of Seminole, or SJRWMD to any drainage areas or SJRWMD for
maintenance or landscape purposes. The right of ingress and
egress, and easements therefore are
hereby specifically reserved and created in
favor of the Declarant, the Association, SJRWMD, County of
Seminole or any appropriate governmental or quasi-governmental
agency that may reasonably require such ingress and
egress.
(d) No
Lot shall be increased in size by filling in any drainage areas
or other portion of
the SWMS. No Owner shall fill, dike, rip-rap, block, divert or
change the established drainage areas or the SWMS without the prior
written consent of the Association, County of Seminole, and
SJRWMD.
(e) Any wall, fence, paving,
planting or other improvement which is placed by an Owner within a
drainage area, drainage easement, or
the SWMS including, but not limited to, easements for
maintenance or ingress and egress, shall be removed, if
required by the Association or SJRWMD, the cost of which shall be
paid for by such Owner as a special assessment.
(f) SJRWMD and any
governmental entity having jurisdiction shall have the right to enforce, by a
proceeding at law or in equity, the provisions contained in this
Declaration which relate to the maintenance, operation, and repair
of the SWMS.
(g) No
Owner of property within the Property may construct
or maintain any building, residential
dwelling, or structure, or perform any activity in the wetlands,
buffer areas, and upland conservation areas described in the
approved permit and recorded plat of the subdivision, unless prior
approval is received from SLRWMD and County of
Seminole.
(h) SJRWMD has the right to take
enforcement action, including civil action for an injunction and
penalties, against the Association to compel the Association to
correct any outstanding problem with the SWMS or if applicable, in
mitigation or conservation areas under the responsibility or
control of the Association.
(i) If
applicable, monitoring and management of the mitigation areas,
described in the SJRWMD permit, shall be the responsibility of the
Association. Also, if applicable, the Association shall be
responsible for successful completion of the mitigation in
accordance with the success criteria described in the SJRWMD
Permit.
LOTS MAY CONTAIN OR ABUT CONSERVATION
AREAS WHICH ARE PROTECTED UNDER RECORDED CONSERVATION EASEMENTS.
THESE AREAS MAY NOT BE ALTERED FROM THEIR PRESENT CONDITIONS EXCEPT
IN ACCORDANCE WITH THE RESTORATION PROGRAM INCLUDED IN THE
CONSERVATION EASEMENT, OR TO REMOVE EXOTIC OR
NUISANCE VEGETATION, INCLUDING WITHOUT LIMITATINO, MELALEUCA,
BRAZILIAN PEPPER, AUSTRALIAN PINE, JAPANESE CLIMBING FERN,
CATTAILS, PRIMROSE WILLOW AND GRAPE VINE. OWNERS ARE RESPONSIBLE
FOR PERPETUAL MAINTENANCE OF SIGNAGE REQUIRED BY THE PERMIT ISSUED
BY SJRWMD WHICH MAINTENANCE SHALL BE PERFORMED TO THE GREATEST
DEGREE LAWFUL BY THE ASSOCIATION.
THE CONSERVATION AREAS ARE HEREBY
DEDICATED AS COMMON AREAS. THEY SHALL BE THE PERPETUAL
RESPONSIBILITY OF THE ASSOCIATION, AND MAY IN NO WAY BE ALTERED
FROM THEIR NATURAL STATE. ACTIVITIES PROHIBITYED WITHIN THE
CONSERVATION AREAS INCLUDE, BUT ARE NOT LIMITED TO, CONSTRUCTION OR
PLACING OF BUILDINGS ON OR ABOVE THE GROUND; DUMPING OR PLACING
SOIL OR OTHER SUBSTANCES SUCH AS TRASH; REMOVAL OR DESTRUCTION OF
TREESE, SHRUBS, OR OTHER VEGETATION, WITH THE EXCEPTION OF
EXOTICNUISANCE VEGETATION REMOVAL; EXCAVATION, DREDGING OR REMOVAL
OF SOIL MATERIAL; DIKING OR FENCING; ANY OTHER ACTIVITIES
DETRIMENTAL TO DRAINAGE, FLOOD CONTROL, WATER CONSERVATION, EROSION
CONTROL, OR FISH AND WILDLIFE HABITAT CONSERVATION OR
PRESERVATION.
Section 10. Personal Property for Common
Use. The Association may acquire and hold tangible
and intangible personal property and may dispose of the same
by sale or otherwise, subject to such restrictions, if any, as
may from time to time be provided in the Association's
Articles or Bylaws.
Section 11. Insurance.
The Association at all times shall procure and maintain adequate
policies of public liability insurance, as well as other insurance
that it deems advisable or necessary. The Association
additionally shall cause all persons responsible for
collecting and disbursing Association moneys to be insured or
bonded with adequate fidelity insurance or bonds.
Section 12. Common Expense. The
expenses and costs incurred by the Association in performing
the rights, duties, and obligations set forth in this Article,
are hereby declared to be Common Expenses and shall be paid by
Class A and Class C members. All expenses of the
Association in performing its duties and obligations or in
exercising any right or power it has under this Declaration, the
Articles of Incorporation or the Bylaws are deemed to be and are
hereby Common Expenses. Class A and Class C Property
shall be subject to separate annual budgets determined by the
Boards of Directors at each annual meeting.
Section 13. Suspension of Use Rights; Levy of
Fines. The Association may suspend for a reasonable
period of time the rights of an Owner or an Owner's
tenants, guests, or invitees, or both, to use the Common Areas
and facilities and may levy reasonable fines, not to exceed One
Hundred and no/100 Dollars ($100.00) per violation per
day for each day of a continuing violation not to exceed One
Thousand and no/100 Dollars ($1000.00) in the aggregate,
against any Owner or any tenant, guest or invitee for failure
to comply with the provisions of this Declaration, the Articles,
Bylaws or Rules and Regulations promulgated by the
Association. A fine or suspension may be imposed only after
giving such Owner, tenant, guest or invitee at least fourteen (14)
days written notice and an opportunity for a hearing before a
committee of at least three (3) members of the Association
appointed by the Board of Directors who are not officers,
directors, or employees of the Association, or the spouse, parent,
child brother, or sister of an officer, director or
employee. The Committee must approve a proposed fine or
suspension by a majority vote. No suspension of the right to
use the Common Area shall impair the right of an Owner or Owner's
tenant to have vehicular ingress to and egress from such Owner's
Lot, including, but not limited to, the right to park.
Section 14. Proviso.
Notwithstanding any other provision in this Declaration, no
amendment of the governing documents by any person, and no
termination or amendment of this Declaration, will be
effective to change the Association's responsibilities for the SWMS
or any conservation areas, unless the amendment has been consented
to in writing by SJRWMD. Any proposed amendment which would
affect the SWMS or any conservation areas must be submitted to
SJRWMD for a determination of whether the amendment
necessitates a modification of the surface water management
permit
ARTICLE VII -
COVENANT FOR MAINTENANCE
ASSESSMENTS
Section
1. Creation of the Lien and Personal
Obligation for Assessments. The Declarant, for
each Lot within the Properties, hereby covenants, and each Owner of
any Lot by acceptance of a deed or other conveyance thereto,
whether or not it is so expressed in such deed or conveyance, is
deemed to covenant and agrees to pay to the
Association: (i) annual assessments or charges and
charges for common Expenses; (ii) special assessments or
charges against a particular Lot as may be provided by the
terms of this Declaration. Such assessments and charges,
together with the maximum interest allowable by law, computed from
the date the delinquency first occurs and all costs and
expenses of collection, including reasonable attorney's fees,
are a continuing charge on the land secured by a continuing lien
upon the Lot against which each assessment is made. Each such
assessment, together with interest and all costs and expenses
of collection, including reasonable attorney's fees, also
is the personal obligation of the person who is the owner of
such Lot when such assessment
arose. Such personal obligation for delinquent
assessments shall not pass to the Owner's successor in title
who are not affiliated or related to the Owner by marriage,
blood or adoption, unless assumed expressly in writing; provided,
however, the above-referred to lien shall continue to be
enforceable against the Lot. No First Mortgagee who obtains
title to a Lot pursuant to the remedies provided in the
First Mortgagee's mortgage shall be liable for unpaid
assessments which accrued prior to such acquisition of
title.
Section 2. Purpose of
Assessments. The assessments levied by
the Association shall be used to promote the recreation,
health, safety, and welfare of the residents of the Properties, and
for the improvement and maintenance of the common Area and the
carrying out of the other responsibilities and obligations of the
Association under this Declaration, the Articles and the
Bylaws. Without limiting the generality of the foregoing such
funds may be used for the acquisition, improvement
and maintenance of Properties, services and facilities related
to the use and enjoyment of the Common Area, including the costs of
repair, replacement and additions thereto; the cost of labor,
equipment, materials, management and supervision thereof; the
payment of taxes and assessments made or levied against the
Common Area; reserves for roof
replacements, exterior painting of Dwellings, and garage door
replacement for the Vistas Dwellings; the procurement and
maintenance of insurance; the employment of necessary or
useful; the maintenance, landscaping and beautification of the
Common Area and such public lands as may be designated by the
Declarant or the Association; the maintenance, repair and
replacement of Boundary Walls required or permitted to be
maintained by the Association; the employment of security personnel
to provide services which are not readily available from any
governmental authority; and such other needs as may
arise.
Section 3. Maximum Annual assessment for
Common Expenses.
(a)
Initial Assessment.
1. Until January 1
of the year immediately following the conveyance by the Declarant
of the first Lot containing a Park Dwelling to an Owner, the
maximum annual Common Expenses assessment per Lot for a Park
Dwelling Unit shall not exceed One Hundred Fifty-Three and
75/100ths Dollars ($153.75).
2. Until January 1
of the year immediately following the conveyance by the Declarant
of the first Lot containing a Vistas Dwelling to an Owner, the
maximum annual Common Expenses assessment per Lot for a Vistas
Dwelling Unit shall not exceed One Hundred Sixty and 15/100ths
Dollars ($160.15).
(b) Standard
Increases. From and after January 1 of the
year immediately following the conveyance by the Declarant of
the first Lot to an Owner of either a Park Dwelling or a Vistas
Dwelling, the maximum annual assessment for Common Expenses as
stated above may be increased each year not more than fifteen
percent (15%) above the maximum assessment for the previous year
without a vote of the members.
(c) Special
Increases. From and after January 1 of the
year immediately following the conveyance by the
Declarant of the first Lot to an Owner of either a Park
Dwelling or a Vistas Dwelling, the maximum annual assessment
for Common Expenses may be increased above the increase
permitted by subsection 3 (b) above by a vote of two-thirds (2/3)
of each class of voting members at a meeting duly called for this
purpose.
(d) Duty
of Board to Fix Amount. The Board of Directors may fix the
annual assessment for Common Expenses at an amount not in excess of
the maximum annual assessment rate established in this
Section.
Section
4. Special Assessments for Capital
Improvements. In addition to the annual assessments
authorized above, the Association may levy, in any
assessment year, a special assessment applicable to
that year only for the purpose of defraying, in whole or in
part, the cost of any construction, reconstruction, repair or
replacement of a capital improvement, including fixtures and
personal property related thereto, provided that any such
assessment shall have the assent of two-thirds (2/3) of the votes
of each class of members who are voting in person or by proxy
at a meeting duly called for this purpose.
Section 5. Notice of Meeting and
Quorum for Any Action Authorized Under Section 3 and
4. Written notice of any members meeting called for
the purpose of taking any action authorized under
Section 3 and 4 of this Article shall be sent to
all members not less than thirty (30) days nor more than
sixty (60) days in advance of the meeting. At such
meeting, the presence of members or of proxies entitled to cast
a majority of all the votes of each class of membership
shall constitute a quorum. If the required quorum is not
present, another meeting may be called subject to the same notice
requirement, and the required quorum at the subsequent meeting
shall be the presence of members or of proxies entitled to cast
one-tenth (1/10) of all the votes of each class of
membership. No subsequent meeting shall be held more than
sixty (60) days following the preceding meeting.
Section 6. Declarant's Common Expenses
Assessment. Notwithstanding any provision of
this Declaration or the association's Articles or Bylaws to the
contrary, as long as there is Class B membership in the
Association, the Declarant shall not be obligated for, nor
subject to any annual assessment for any Lot which it may
own, provided Declarant shall be responsible for paying the
difference between the Association's expenses of operation
otherwise to be funded by annual assessments and the amount
received from Owners, other than the Declarant, in payment
of the annual assessments levied against their Class A or
Class C Lots. Such difference shall be called the
'Deficiency', and shall not include any reserve for
replacements, operating reserve, depreciation reserves,
capital expenditures or special assessments. The Declarant may
at any time, give thirty (30) days prior written notice to the
Association terminating its responsibility for the Deficiency, and
waiving its right to exclusion from annual
assessments. Upon giving such notice, or upon termination
of Class B membership, whichever is sooner, each Lot owned by
Declarant shall thereafter be assessed at twenty-five percent
(25%) of the annual assessment established for Lots owned by
Class A or Class C members other than Declarant. Declarant
shall not be responsible for any reserve for replacements,
operating reserves, depreciation reserves, capital expenditures or
special assessments. Such assessment shall be prorated as to
the remaining months of the year, if applicable. Declarant
shall be assessed only for the Lots which are subject to the
operation of this Declaration. Upon transfer of title of a Lot
owned by Declarant, the Lot shall be assessed in the amount
established for Lots owned by Owners other than the Declarant,
prorated as of and commencing with, the month following the date of
transfer of title. Notwithstanding the foregoing, any Lots
from which the Declarant derives any rental income, or holds an
interest as mortgagee or contract seller, shall be assessed at the
same amount as Lots owned by Owners other than the Declarant,
prorated as of and commencing with, the month following the
execution of the rental agreement or mortgage, or the contract
purchaser's entry into possession as the case may be.
Section 7. Exemption from
Assessments. The assessments, charges and liens
provided for or created by this Article shall not apply to the
Common Area or any other Homeowner's Association, any property
dedicated to and accepted for maintenance by a public or
governmental authority or agency, and property owned by a public or
private utility company or public or governmental body or agency,
and any property owned by a charitable or non-profit
organization.
Section 8. Date of Commencement of Annual
Assessments: Due Dates. The annual assessments
for common Expenses shall commence as to all Lots
subject thereto upon the conveyance of the first Lot from the
Declarant to its purchaser. The Board of Directors shall
fix the amount of the annual assessment for Common Expenses
against each Lot not later than December 1 of each calendar
year for the following calendar year. Written
notice of the annual assessment for Common Expenses shall be
sent to every Owner subject hereto. Unless otherwise
established by the Board of Directors, annual assessments for
common Expenses shall be collected on a quarterly
basis. The due date for special assessments shall be
as established by the Board of Directors.
Section 9. Lien for
Assessments. All sums assessed to any Lot pursuant
to this Declaration, including those owned by the Declarant,
together with interest and all costs and expenses of
collection, including reasonable attorney's fees, shall be
secured by a continuing lien on such Lot in favor of the
Association.
Section 10. Effect of Nonpayment of
Assessments: Remedies of the Association.
Any assessment not paid within thirty (30) days after the due date
shall bear interest from the date of delinquency at the maximum
rate allowed by law. The Association may bring an
action at law against the Owner personally obligated to
pay the same, or foreclose the lien against the Lot. No
Owner may waive or otherwise escape liability for the
assessments provided for herein by non-use of the
Common Area, or abandonment of his Lot.
Section 11. Foreclosure. The
lien for sums assessed pursuant to this Declaration may be
enforced by judicial foreclosure by the association in the
same manner in which mortgages on real property may be
foreclosed in Florida. In any such foreclosure, the Owner
shall be required to pay all costs and expenses of foreclosure,
including reasonable attorney's fees. All such costs and
expenses shall be secured by the lien being foreclosed. The
Owner shall also be required to pay to the Association any
assessments against the Lot which shall become due during the
period of foreclosure, and the same shall be secured by the
lien foreclosed and accounted for as of the date the Owner's title
is divested by foreclosure. The Association shall have
the right and power to bid at the foreclosure or other legal
sale to acquire the Lot foreclosed, and thereafter to hold,
convey, lease, rent, encumber, use and otherwise deal with the same
as the Owner thereof. In lieu of foreclosing its lien, the
Association, at its election, shall have the right to collect
amounts due it by suit for collection brought against the Owner
personally obligated for payment.
Section 12. Homestead. By
acceptance of a deed thereto, the Owner and spouse thereof, if
married, of each Lot shall be deemed to have waived any
exemption from liens
created by this Declaration or the
enforcement therof by foreclosure or otherwise,
which may otherwise have been available by reason of the homestead
exemption provisions of Florida law, if for any reason such are
applicable. This Section is not intended to limit or restrict
in any way the lien or rights granted to the Association by this
Declaration, but to be construed in its favor.
Section 13. Subordination of the Lien to
Mortgages. The lien of the assessments
provided for herein shall be subordinate to the lien of any first
mortgage which is given to or held by an Institutional Lender, or
which is guaranteed or insured by the FHA or VA. The sale or
transfer of any Lot pursuant to foreclosure of such a first
mortgage or any proceeding in lieu thereof, shall extinguish the
lien of such assessments as to payments which became due prior
to such sale or transfer. No sale or transfer shall
relieve such Lot from liability for any assessments thereafter
becoming due or from the lien thereof. The Association shall,
upon written request, report to any such First Mortgagee of a
Lot any assessments remaining unpaid for a period
longer than thirty (30) days after the same shall
have become due, and shall give such First Mortgagee a period of
thirty (30) days in which to cure such delinquency
before instituting foreclosure proceedings against the
Lot; provided, however, that such First Mortgagee first shall have
furnished to the association written notice of the existence of its
mortgage, which notice shall designate the Lot encumbered by a
proper legal description and shall state the address to which
notices pursuant to this Section are to be given. Any
such First Mortgagee holding a lien on a Lot may pay, but shall not
be required to pay, any amounts secured by the lien
created by this Article VII. Mortgagees are not required to
collect assessments.
Section 14. Special
Assessments. Any cost or expense required to be
paid by an Owner related solely to such Owner or its Lot, and
any and all other accrued, liquidated indebtedness or any
Owner to the association arising under any provision of this
Declaration or any applicable future Declaration, including any
indemnity contained here, or by contract express or implied, or
because of any act or omission of any Owner or of any Owner's
family, household members or invitees, also shall be assessed by
the Association against such Owner's Lot after such Owner fails to
pay the same when due and such default continues for thirty (30)
days after written notice.
Section 15. Certificate of Amounts
Due. The Association shall upon demand, and for a
reasonable charge, furnish a certificate signed by an officer of
the Association setting forth whether the assessments on a
specified Lot have been paid. A properly executed
certificate of the Association as to the status of assessments on a
Lot shall be binding upon the Association as of the date of its
issuance.
Section 16. Cable Television.
Declarant may, but shall not be obligated to, coordinate and
establish an agreement with one or more cable television
service companies for the provision of cable television
services to the community and all Dwellings included
therein. If such agreement is established, the fees for the
cable television service payable to the service provider shall
be a common expense payable by the Association and shall be
included within the annual budget for which the assessments
are levied each year. No Owner may avoid or escape liability
for any portion of the assessments by election not to utilize the
cable television service.
Section 17. Visual Security.
Declarant may, but shall not be obligated to, coordinate and
establish an agreement with one or more cable television service
companies for the provision of a visual security service channel to
the community and all Dwellings included therein. If such
agreement is established, the fees for the visual security
service channel payable to the service provider shall be a Common
Expense payable by the Association and shall be included
within the annual budget for which the assessments are levied each
year. No Owner may avoid or escape liability for
any portion of the assessments by election not to utilize the
visual security service channel.
Section 18. Community Bulletin
Board. Declarant may, but shall not be obligated
to, coordinate and establish an agreement with one or more cable
television service companies for the provision of a community
bulletin board channel to the community and all Dwellings included
herein. If such agreement is established, the fees for
the community bulletin board channel payable to the service
provider shall be a Common Expense payable by the Association
and shall be included within the annual budget for which the
assessments are levied each year. No Owner may avoid or escape
liability for any portion of the assessments by election not to
utilize the community bulletin board channel.
Section 19. Property Taxes.
Because the interest of each Owner in the Common Area is an
interest in real property appurtenant to each Lot, and because
no person other than an Owner has the right to the beneficial
use and enjoyment of the Common Area, Declarant intends that the
value of the interest of each Owner in the Common Area entitled to
its use be included in the assessment of each such Lot
for local property tax purposes. Declarant further
intends that any assessment for such purposes against the common
Area shall be for a nominal amount only, reflecting that the full
value thereof is included in the several assessments of the various
Lots. If the local taxing authorities refuse to so assess
the Common Area with the result that local real property taxes
in any given year are assessed to the Association with respect to
the Common Area in excess of One Thousand Dollars ($1000.00),
then the amount of such excess may be specially assessed by the
Board of Directors, in its discretion, in the following
manner: the amount of such excess with respect to the common
Property shall be divided by the number of Lots within the
Property, and the quotient shall be the amount of such special
assessment against each Lot. In the Board�s
discretion, such special assessment may be payable in a lump
sum within thirty (30) days after notice or may be amortized
without interest over such number of months as the Board deems
advisable. Each year the Board shall determine whether such
assessment shall be levied, and its amount, within forty-five
(45) days after receiving notice of the amount of taxes
due. Such special assessment is not an increase in the annual
assessment subject to the limitations of the preceding section
of this Article.
Section 20. Working
Capital. There shall be a working capital fee
of Five Hundred Dollars ($500.00), which fee shall be paid by
each Owner at the time of closing and transfer of title on
their Lot, to be used by the association to establish
an initial reserve account or to be used for any normal
operation expenses of the Association.
ARTICLE
VIII - HUD AND VA APPROVAL
Section 1. Master Plan of
Development. The Declarant has on file at its business
office, presently located at 555 Winderley Place, Suite 420,
Maitland, Florida 32751, a copy of the master plan of development
(the "Master Plan") for the land which is subject to this
Declaration, showing a general indication of the size and location
of developments; the approximate size and location of Common Area,
if any; and the general nature of any proposed Common Area
facilities and improvements, if any. Such Master Plan shall not
bind the Declarant to make any such Common Areas or adhere to the
Master Plan. Such Master Plan may be amended or modified by the
Declarant, in whole or in part, at any time, or discontinued. As
used herein, the term "Master Plan" shall mean such general plan of
development together with any amendments or modifications thereof
hereafter made.
Section 2. HUD, FHA or VA
Approval. As long as there is a Class B member, the
following actions will require the prior approval of HUD or FHA or
VA:
(a)
Dedication of additional Common Areas;
(b)
Amendment of the Articles of Incorporation of the
Association;
(c)
Amendment of the Bylaws of the Association;
(d)
Dissolution of the Association;
(e) <
|
