Cypress PointeDECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
CYPRESS POINTE
THIS DECLARATION is made on the date hereinafter set forth by
Hayes-Johnson Development, Inc., a Georgia corporation (hereinafter
sometimes called "Declarant"); ~
W I T N E S S E T H:
WHEREAS, Declarant is the owner of the real'property described
in Article II, Section 1, of this Declaration; and
WHEREAS, Declarant desires to subject ~he real property
described in Article II, Section 1,. 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 Deci~ration;
NOW THEREFORE, Declarant hereby declares that the real
property described in Article It, Section t, of this Declaration,
including the improvements constructed or to be constructed
thereon, is hereby subjected to the provisions of this Declaration
and shall be held, sold, transferred, conveyed, used, occupied, and
mortgaged or otherwise encumbered subject to the covenants,
conditions, restrictions, easements, assessments, and liens,
hereinafter set forth, which are for the purpose of protecting the
value and desirability of, and which shall run with the title to,
the real property hereby or 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 or
hereafter made subject hereto, their respecbive heirs, legal
representatives, successors, successors-inrtitle, and assigns and
shall inure to the benefit of each and ever~ owner of all or any
portion thereof.
A~TICLE I
Definitions
Unless the context shall prohibit, certain words used in this
Declaration shall have the definitional meaning set forth in
Exhibit "A" attached hereto and by reference made a part hereof.
ARTICLE II
Proper~y Subject To This Declaration
Section 1. Property Hereby .Subjected To This Declaration.
The real property which is, by the recording of this Declaration,.
subject to the covenants and restrictions hereafter set forth and
which, by virtue of the recording of this Declaration, shall be
held, transferred, sold, conveyed, used, occupied, and mortgaged or
otherwise encumbered subject to this Declaration is the real
property described in Exhibit "B", attached hereto and by reference
made a part hereof.
Section 2. Other ProDerty Only the real property, described
in Section 1 of this Article II is hereby made subject to this
Declaration; provided, however, by one or more Supplementary
Declarations, Declarant and the Association have the right, but not
the obligation, to subject other real property to this Declaration,
as hereinafter provided.
ARTICLE III
Association MembershiD and Votinq Riqhts
Section 1. MembershiD. The Declarant and every Person who is
the record owner of a fee or undivided fee interest in any Unit
that is subject to this Declaration shall be deemed to 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 the Owner's membership. No Owner, whether one
or more Persons, shall have more than one (1) membership per Unit.
In the event of multiple Owners of a Unit, votes and rights of use
and enjoyment shall be as provided in this Declaration and in the
By-Laws. Membership shall be appurtenant to and may not be
separated from ownership of any Unit. The rights and privilegesof
membership, including the right to vote and to hold office, may be
exercised by a Member or the Member's spouse, but in no event
shall more than one (1) vote be cast nor office held for each Unit
owned.
Section 2. Votinq. Members, including the Declarant, shall
be entitled to one (1) vote for each Unit owned. When more than
one Person holds an ownership interest in any Unit, the vote for
such Unit shall be exercised as those Owners themselves determine
and advise the Secretary prior to any meeting. In the absence of
such advice, the Unit's vote shall be suspended in the event more
than one Person seeks to exercise it.
Article IV
Assessments
Section 1. Purpose of Assessment. 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 and occupants of Units, including the maintenance of
'real and personal property, all as may be more specifically
authorized from time to time by the Board of Directors.
Section 2. Creation of the Lien and Personal Obliqation for
Assessments. Each Owner of any Unit, 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) annual
assessments or charges; (b) special assessments, such assessments
to be established and collected as hereinafter provided; and (c)
Page 2
specific assessments against any particular Unit which are
established pursuant to the terms of this Declaration, .including,
but not limited to, reasonable fines as may be imposed in
accordance with the terms of this Declaration. All such
assessments, together with late charges, interest (not to exceed
the maximum legal rate), costs, and reasonable attorney's fees
actually incurred, shall be a charge on the land'and shall be a
continuing.lien upon the Unit against which each assessment is
made. Each such assessment, together with late charges, interest,
costs, and reasonable attorney's fees actually incurred, shall also
be the personal obligation of the person who was the Owner of such
Unit at the time the assessment fell due. Each Owner shall be
personally liable for his or her portion of each assessment coming
due while he or she is the Owner of a Unit, and his or her 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 liab~!ity of a grantee for the unpaid assessments of
its grantor shall not appl~ to any first Mortgage holder taking
title through foreclosure proceedings or deed in lieu of
foreclosure.
The Association shall, within five (5) days after receiving a
written request and for ~ reasonable charge, furnish a certificate
signed by an officer or agent of the Association setting forth
whether the assessments on a specified Unit have been paid. A
properly executed certificate of the Association certifying the
status of assessments on a Unit shall be binding upon the
Association as of the date of issuance.
Assessments shall be levied equally on all Units and shall be
paid in such manner and on such dates as may be fixed by the Board
of Directors. Upon ten (10) days' written notice, the Board may
accelerate the annual assessment for delinqu.ents. Unless otherwise
provided by the Board, the assessment shal~ be paid in monthly
installments.
Sectio~ 3. Computation of Budqet. It shall be the duty of
the Board to prepare a budget covering the estimated costs of
operating the Association during the coming year, which shall
include a.capital contribution or reserve in accordance with a
capital budget separately prepared.
The assessment to be levied against each Unit for the coming
year shall be set at a level which is reasonably expected to
produce total revenue to the Association equal to the total
budgeted common expenses, including reserves. In determining the
level of assessments, the Board, in its discretion, may consider
the other sources of funds available to the Association. In
addition, the Board shall take into account the number of Units
subject to assessment on the first day of the fiscal year for which
the budget is prepared and the number of Units reasonably
anticipated to become subject to assessment during the fiscal year.
Page 3
So long as the Declarant has the right unilaterall~ to annex
additional property pursuant to Article IX on an annual basis, the
Declarant may elect, but shall not be obligated, to reduce the
assessment for any fiscal year by payment of a subsidy. However,
any Declarant subsidy shall be conspicuously disclosed as a line
item in the income portion of the common expense~budget. If the
Declarant elects to pay a subsidy the amount or.the subsidy shown
on the budget shall be an estimate only and the Declarant shall
only be obligated to fund such subsidy to the extent of any actual
operating deficit. The payment of a subsidy in one year shall
under no circumstances obligate the Declarant to continue payment
of a subsidy, in future years.
In order to fund initial costs of operating the Association,
the Board is authorized to obtain a loan from the Declarant to
provide for initial capitalization of the Association. Any such
loan shall be interest free and shall be disclosed in the budget of
the Association for the year in which it is obtained, in the
financial statements, and in the books and records of the
Association.
The Board shall cause the budget and the assessments to be
levied against each Unit for the following year to be delivered to
each Member at least thirty (30) days prior to the end of the
current fiscal year. The budget and the assessment shall become
effective unless disapproved at a meeting by a Majority of the
total Association vote and the Declarant (so long as the Declarant
has an option unilaterally to subject additional property to the
Declaration as provided in Article IX). There shall be no
obligation to call a meeting for the purpose of considering the
budget except on petition of the Members as provided in the By-
Laws. Tke petition must be presented to the Board within ten (10)
days of delivery of the notice of assessment~. Notwithstanding the
foregoing, however, in the event the membership disapproves the
proposed budget or the Board fails for any reason so to determine
the budget for the succeeding year, then and until such time as a
budget shalI have been determined, as provided herein, the budget
in effect for the then current year. shall continue for the
succeeding year.
Section 4. ~pecial Assessments. In addition to the other
assessments authorized herein~ the Associationl may levy special
assessments from time to time. So long as the total amount of
special assessments allocable to each Unit does not exceed Three
Hundred ($300.00) Dollars in any one fiscal year, the Board may
impose the special assessment. Any special assessment which would
cause the amount of special assessments allocable to any Unit to
exceed this limitation shall be effective only if approved by a'
Majority of the total Association vote and the Declarant (so long
as the Declarant has an option to unilaterally subject additional
property to this Declaration as provided in Article IX). Special
assessments shall be paid as determined by the Board, and the Board
Page 4
may permit special assessments to be paid in installments.extending
beyond the fiscal year in which the special assessment is imposed.
Section 5. Lien for Assessments. Ail sums assessed against
any Unit pursuant to this Declaration, together with late charges,
interest, costs, and reasonable attorney's fees actually incurred,
as provided herein, shall be secured by a lien on such Unit in
favor of the Association. Such lien shall be superior to all other
liens and encumbrances on such Unit, except for (a) liens of ad
valorem taxes or (b) liens for all sums unpaid on a first Mortgage
or on any Mortgage to Declarant duly recorded in the land records
of Fayette Cpunty, Georgia, and all amounts advanced pursuant to
such Mortgage and'secured thereby in accordance_with the terms of
such instrument.
Ail other persons acquiring liens or encumbrances on 9ny Unit
after this Declaration shall have been recorded in such records
shall be deemed to consent ~at such liens or encumbrances shall be
inferior to future liens for assessments, as provided herein,
whether or not prior consent is specifically set forth in the
instruments creating such liens or encumbrances.
Section 6. Effect of Nonpayment of Assessments; Kemedies of
the Association. Any assessments which are not paid when due
shall be delinquent. Any assessment delinquent for a period of
more than ten (10) days shall incur a late charge in an amount as
the Board may from time to time determine. The Association shall
cause a notice of delinquency to be given to any Member who has not
paid within ten (10) days following the due date. If the
assessment is not paid within thirty (30) days, a lien, as herein
provided shall attach and, in addition, the lien shall include the
late charge interest, not to exceed the maximum ~egal rate, on the
principal amount due, and all late charges from the date first due
and payable, all costs of collection, reasonable attorney's fees
actually incurred, and any other amounts provided or permitted by
law. In the event that the assessment remains unpaid after sixty
(60) days, ,the Association may, as the Board shall determine,
institute suit to collect such amounts and to foreclose its lien.
Each Owner, by acceptance of a deed or as a party to any other type
of a conveyance, vests in the Association or its agents the right
and power to bring all actions against him or her, personally, for
the collection of such charges as a debt or. to foreclose the
aforesaid lien in the same manner as other liens for the
improvement of real property. The lien provided for in this
Article shall be in favor of the Association and shall be for the
benefit of all other Owners. The Association, acting on behalf of
the Owners, shall have the power to bid on the Unit at any
foreclosure sale or to acquire, hold, lease, mortgage, or convey.
the same. No Owner may waive or otherwise except liability for the
assessments provided for herein, including, by way of illustration,
but not limitation, abandonment of the Unit.
Page 5
No Owner may waive or otherwise exempt himself or heYself from
liability for assessments, by abandoning the Unit or in any other
manner. The obligation to pay assessments is a separate and
independent covenant on the part of each Owner and no reduction of
any assessment shall be claimed or allowed by reason of (a) any
alleged failure of the Association to take some action or perform
some function required to be taken.or performed bY'the Association
under this Declaration or the By-Laws, (b) for inconvenience or
discomfort'arising from the making of repairs or improvements which
are the responsibility of the Association, or (c) from any action
taken by the Association to comply with any law, ordinance, or with
any order or directive of any municipal or other governmental
authority.
All payments shall be applied first to costs and attorney's
fees, then to late charges, then interest and then to delinquent
assessments.
Section 7. Date of Commencement of'Assessments. Assessments
shall commence as to a Unit on the first day of the month following
the conveyance of the Unit to a Person other than the Declarant or
Hayes-Johnson Communities, Inc., a Georgia corporation. Units
which have not been conveyed as provided above shall not be subject
to assessment. However, assessments shall commence on Units
containing residences that~are owned by Declarant or Hayes-Johnson
Communities, Inc., a Georgia corporation on the first day of the
month following the issuance of a certificate of occupancy for the
residence constructed on the Unit. Assessments shall be due and
payable in a manner and on the schedule that the Board of Directors
provides. The first annual assessment shall be adjusted according
to the number of months then remaining in that fiscal year.
Section 8. Assessments by Declarant. Notwithstanding
anything to the contrary herein, the Declarant may contribute
assessments due from it, if any, in services or materials or a
combination of services and materials, rather than in money (herein
collectively called "in kind contribution"). The amount by which
monetary assessments shall be decreased.as a result of any in kind
contribution shall be the fair market value of the contribution.
If the Declarant and the Association agree as to the value of any
contribution, the value shall be as agreed. If the Association and
the Declarant cannot agree as to the value of any contribution, the
Declarant shall s~pply the Association with a detailed explanation
of the service performed and material furnished, and the
Association shall acquire bids for performing like services and
furnishing like materials from three (3) independent contractors
approved by the Declarant who are in the business of providing such
services and materials. If the Association and the Declarant are
still unable to agree on the value of the contribution, the value
shall be deemed to be the average of the bids received from the
independent contractors.
Page 6
Section 9. Specific Assessments. The Board shall have the
power to specifically assess pursuant to this Section as, in its
discretion, it shall deem appropriate. Failure of the Board to
exercise its authority under this Section shall not be grounds for
any action against the Association or the Board of Directors and
shall not constitute a waiver of the Board's right to exercise its
autkority under tkis Section in the future with%respect to any
expenses, .including an expense for which the Board has not
previously exercised its authority under this Section. Fines
levied pursuant to Article XtI, Section 1 and the costs of
maintenance performed by the Association which the Owner is
responsible .for under Article V, Section 2 shall be specific
assessments. The Board may also specifically assess Units for the
following Association expenses, except for expenses incurred for
maintenance and repair of items which are the maintenance
responsibility of the Association:
(a) Expenses of the ~Ssociation which benefit less than all
of the Units may be specifically assessed equitably among all of
the Units which are benefited according to the benefit received.
(b) Expenses of the Association which benefit all Units, but
which do not provide an equal benefit to all Units, may be assessed
equitably among all Units according to the benefit received.
ARTICLE V
Maintenance
Section 1. Association's Responsibility. The Association
shall maintain and keep in good repair the Common Property. This
maintenance shall include, without limitation, maintenance, repair,
and replacement, subject to any insurance then-in effect of all
landscaping and improvements situated on the Common Property
including, without limitation, all entry feDtures, streets, and
street lights. The Association shall maintain and keep in good
repair, but shall not be responsible for replacement of, all
landscaping,grounds areas within the boundaries of Units. The
Association shall clean but not repair or replace all gutters
located on residences. The Association shall maintain and keep in
good repair all water and sewer pipes or facilities which serve
more than one (1) Unit, whether located within or without a Unit's
boundaries.
The Association shall have the right, but not the obligation,
to maintain property not owned by the Association including,
without limitation, green belt area located adjacent to the
Community, where the Board has determined that such maintenance
would benefit all Owners.
The foregoing maintenance shall be performed consistent with
the Community-Wide Standard.
Page 7
Section 2. Owner's Responsibility. Except as provided in
Section 1, above, all maintenance of the Unit including, without
limitation, all structures and parking areas, shall be the
responsibility of the Owner. Such maintenance shall be performed
consistent with this Declaration and the Community-Wide Standard
established pursuant hereto.
In the event that the Board of Directors of the Association
determines that (a) any Owner has failed or refused to discharge
properly his obligations with regard to the maintenance, repair, or
replacement of items for which he is responsible hereunder; or (b)
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, his or her family, guests,
lessees, or invitees, and is not covered or paid for by insurance,
in whole or in part, then, the Association may perform the repair,
replacement or maintenance_and shall, except in the event of an
emergency situation, give the Owner written notice of the
Association's intent to provide such necessary maintenance, repair,
or replacement, at Owner's sole cost and expense. The notice shall
set forth with reasonable particularity the maintenance, repairs,
or replacement deemed necessary. The Owner shall have ten (10)
days 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 time. If any Owner does not comply with the provisions
hereof, the Association may provide any such maintenance, repair,
or replacement at Owner's sole cost and expense, and all costs
shall be added to and become a part of the assessment to which such
Owner is subject and shall become a lien against the Unit.
Section 3. Party Walls.
(a) General Rules of Law to Apply. Each'wall built as a part
of the original construction of the Units which shall serve and
separate an~ two (2) adjoining Units shall constitute a party wall
and, to the extent not inconsistent with the provisions of this
Section, the general rules of law regarding party walls and
liability for property damage due to negligence or willful acts or
omissions shall apply thereto.
(b) Sharinq of ReDair and Maintenance. The cost of
reasonable repair and maintenance of a party wall shall be shared
by the Owners who make use of the wall in equal proportions.
(c) Damaqe and Destruction. If a party wall is destroyed or
damaged by fire or other casualty, then to the extent that such.
damage is not covered by insurance and repaired out of the proceeds
of insurance, any Owner who has used the wall may restore it, and
if the other Owner or Owners thereafter make use of the wall, they
shall contribute to the cost of restoration thereof in equal
Page 8
proportions without prejudice, however, to the right of any such
Owners to call for a larger contribution from the others under any
rule of law regarding liability for negligent or willful aQts or
omissions.
(d) Riqht to Contribution Runs With Land. The right of any
owner to contribution from any other owner under thi~ Section shall
be appurtenant to the land and shall pass to such owner's
successors-in-title.
(e) Arbitration. In the event of any dispute arising
concerning a.party wall, or under the provisions of this Section,
each party shall appoint one (1) arbitrator. ~hould any party
refuse to appoint an arbitrator within ten (10) days after written
request therefor by the Board of Directors, the Board shall appoint
an arbitrator for the refusing party. The arbitrators thus
appointed shall appoint one (1) additional arbitrator and the
decision by a majority of- all three (3) arbitrators shall be
binding upon the parties and shall be a condition precedent to any
right of legal action that either party may have against the other.
ARTICLE VI
Use Restrictions and Rules
Section 1. General. The Board of Directors may, from time to
time, without consent of the Members, promulgate, modify, or delete
use restrictions and rules and 'regulations applicable to the Units
and the Common Property. This authority shall include, but shall
not be limited to, the right to limit the type and size and to set
the maximum and minimum speeds of vehicles within the Community.
The Association shall also have the authority to impose all other
necessary traffic and parking regulations an~ to restrict the
maximum noise levels of vehicles in the Community. Such
regulations and use restrictions shall be binding upon all Owners
and occupants until and unless overruled, cancelled, or modified in
a regular or special meeting by the vote of Members holding a
Majority of the total votes in the Association and by the consent
of the De61arant (so long as the .Declarant has an option
unilaterally to subject additional property to this Declaration as
provided in Article IX). The foregoing notwithstanding, the
Association shall not, without the consent of Declarant, so long as
Declarant has an unexpired option to subject, property to this
Declaration, adopt, modify, or delete any use restriction, rule or
regulation concerning new construction without the written consent
of Declarant.
Section 2. Residential Use. Each Unit shall be used for
residential purposes only, and no trade or business of any kind may.
be conducted in or from a Unit or any part of the Community,
including business uses ancillary to a primary residential use,
except that the Owner or occupant residing in the residence on a
Unit may conduct such ancillary business activities within the
Page 9
residence, so long as (a) the existence or operation of tha business
activity is not apparent or detectable by sight, sound, or smell
from the exterior of the residence; (b) the business activi%y does
not involve persons coming onto the Community who do not reside in
the Community or door-to-door solicitation of residents of the
Community; (c) the business activity conforms to all zoning
requirements for the Community; and (d) the business activity is
consistent with the residential character of the Community and does
not constitute a nuisance or a hazardous or offensive use, or
threaten the security or safety of other residents of the
Community, as may be determined in the sole discretion of the Board
of Directors.
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 servid%s 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: (i) the
activity is engaged in full or part-time; (ii) the activity is
intended to or does generate a profit; or (iii) a license is
required for the activity. Notwithstanding the above, the leasing
of a Unit or the use of a Unit by an on-site management company
operating on behalf of the Association shall not be considered a
trade or business within the meaning of this Section.
Section 3. Siqns. No sign of any kind shall be erected by an
Owner within the Community without the written consent of the
Board. The Board 'shall have the right to erect reasonable and
appropriate signs.
Section 4. Parkinq and Garages. The term "vehicles", as used
in this provision, shall include without limitation, motor homes,
boats, trailers, motorcycles, minibikes, scooters, go-carts,
trucks, campers, buses, vans, and automobiles. All vehicles shall
be parked w~thin garages, driveways or other paved parking areas
located on a Unit except that guests and service vehicles may park
along streets for reasonable periods of time as determined by the
Board. Parking in yards is prohibited. If the Unit includes a
garage with exterior doors, the doors shall be kept closed at all
times, except during times of entry and exit from the garage, or
when someone is working in or around the garage.
Ail commercial vehicles, tractors, mobile homes, trailers
(either with or without wheels), campers, camper trailers, boats
and other watercraft, boat trailers, motorcycles, minibikes,
scooters, and golf carts must be parked within a garage unless.
otherwise permitted by the Board. No garage may be altered in such
Page 10
a manner that the number of automobiles which may reasonably be
parked therein after the alteration is less than the number of
automobiles that could have reasonably been parked in the garage as
originally constructed.
Section 5.
purposes.
Leasinq.
Units may be.leased for residential
Secti6n 6. Occupants Bound. Ail provisions of the
Declaration and of any rules and regulations or use restrictions
promulgated pursuant thereto which govern the conduct of Owners and
which provid~ for sanctions against Owners shall also apply to all
occupants of any Unit.
Section 7. Animals and Pets. No animals, livestock, or
poultry of any kind may be raised, bred, kept, or permitted on any
Unit, with the exoeption of dogs, cats, or other usual and common
household pets in reasoh~ble number, as determined by the
Association; provided, however, those pets which are kept~ bred or
maintained for any commercial purpose, permitted to roam free, or,
in the sole discretion of the Association, endanger the health,
make objectionable noise, or constitute a nuisance or inconvenience
to the Owners of other Units or the owner of any property located
adjacent to the Community may be removed by the Association. Dogs
which are household pets shall at all times whenever they are
outside a Unit be confined on a leash. Dogs shall be walked only
in those areas designated by the Association.
Section 8. Nuisance. It shall be the responsibility of each
Owner to prevent the development of any unclean, unhealthy,
unsightly, or unkempt condition of his or her Unit. No Unit shall
be used, in whole or in part, for the s%orage of any property or
thing that will cause such Unit to appear ~o be in an unclean or
untidy condition or that will be obnoxious to the eye; nor shall
any substance, thing, or material be kept upon any Unit that will
emit foul or obnoxious odors or that will cause any noise or other
condition that will or might disturb the peace, quiet, safety,
comfort, or'serenity of the occupants of surrounding property. No
noxious or offensive activity shall be carried on upon any Unit,
nor shall anything be done thereon tending to cause embarrassment,
discomfort, annoyance, or nuisance to any person using any property
adjacent to the Unit. There shall not be maintained any plants or
animals or device or thing of any sort whose activities or
existence in any way is noxious, dangerous, unsightly, unpleasant,
or of a nature as may diminish or destroy the enjoyment~of the
Community.
Section 9. UnsiGhtly or Unkempt Conditions. The pursuit of.
hobbies or other activities, including specifically, without
limiting the generality of the foregoing, the assembly and
disassembly of motor vehicles and other mechanical devices, which
Page 11
might tend to cause disorderly, unsightly, or unkempt conditions,
shall not be pursued or undertaken in any part of the Community.
Section 10. Architectural Standards. No exterior
construction, alteration, addition, or erection or any nature
whatsoever shall be commenced or placed upon any part of the
Community, except such as is installed by the Declarant or Hayes-
Johnson Co.mmunities, Inc. or as is approved in accordance with this
Section. No exterior construction, addition, erection, or
alteration shall be made unless and until the plans and
specifications showing the nature, kind, shape, height, materials,
and location shall have been submitted in writing to and approved
by the Board or its designee. The Board or its designee may
promulgate written guidelines for the exercise of this review.
The Board or its designee shall be the sole arbitrator of such
plans and may withhold approval for any reason, including purely
aesthetic considerations, and it shall be entitled to stop any
construction in violation of these restrictions. Any member of the
Board or its representatives shall have the right, during
reasonable hours, to enter upon any Unit to inspect any Unit and
any improvements thereon for the purpose of ascertaining whether or
not these restrictive covenants have been or are being complied
with. Such person or persons shall not be deemed guilty of
trespass by reason of such entry. In the event the Board or its
designee fails to approve or to disapprove such design and location
within sixty (60) days after t~e plans and specifications have been
submitted to it, approval will not be required, and this Section
will be deemed to have been fully complied with.
In addition, all exterior construction, alterations, additions
or erections are subject to the ordinances ~f Peachtree City,
Georgia.
Section 11. Antennas. No exteri0~ antennas, aerials,
satellite dishes, or other .apparatus for transmission of
television,,radio; sateilite or other signals of any kind shall be
placed, allowed, or maintained upon an~ portion of the Community,
including any Unit, without the prior written consent of the Board
or its designee. The Association may erect an aerial for a master
antenna system, should any such master system or systems be
utilized by the Association and require any such exterior antenna.
Section 12. Clotheslines, Garbaqe Cans, Woodpiles, Etc. Ail
clotheslines, garbage cans, woodpiles, and other similar items
shall be located or screened so as to be concealed from view of
neighboring Units and Common Property and the street on which the
Unit (on which the item is located) fronts. All debris, rubbish~
trash, and garbage shall be regularly removed and shall not be
allowed to accumulate.
Page 12
Section 13. Subdivision of Unit. No Unit shall be subdivided
or its boundary lines changed except with the prior written
approval of the Board or its designee. Declarant, however,, hereby
expressly reserves the right to replat any Unit or Units owned by
Declarant or Hayes-Johnson Communities, Inc. Any such division,
boundary line change, or replatting shall not be in violation of
the applicable subdivision and zoning regulations~
Section 14. Local Ordinances. All use of Units within the
Community is also subject to the ordinances of Peachtree City,
Georgia, and all other governmental entities having jurisdiction
over the Co.mmunity.
ARTICLE VII
Insurance and Casualty Losses
Section 1. ~nsurance for Common Property. The Association's
Board of Directors or it§~ duly authorized agent shall have the
authority to and shall obtain insurance for all 'insurable
improvements on the Common Property. This insurance shall cover
loss or damage by fire or other hazards, including extended
coverage, vandalism, and malicious mischief and shall be in an
amount sufficient to co~er the full replacement cost of any repair
or reconstruction in the event of damage or destruction from any
such hazard.
The Board 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 a% least One Million
($1,000,000.00) Dollars.
Premiums for all insurance shall be common expenses of the
Association. The policies may contain a reasonable deductible, and
the amount thereof shall be added to the face amount of the policy
in determining whether the insurance, at least equals the full
replacement cost.
All such insurance coverage obtained by the Board of Directors
shall be written in the name of the Association, as trustee, for
the respective benefitted parties, as further identified in
subparagraph (b), below. Such insurance shall be governed by the
provisions hereinafter set forth:
(a) Ail policies shall be written with a company licensed to
do business in Georgia and holding a rating of XI or better in the
Financial Category as established by A.M. Best Company, Inc., if
available, or, if not available, the most nearly equivalent rating.
Page 13
(b) Exclusive authority to adjust losses under policies
obtained by the Association shall be vested in the Association's
Board of Directors; provided, however, no Mortgagee h~ving an
interest in such losses may be prohibited from participating in the
settlement negotiations, if any, related thereto.
(c) In no event shall the insurance coverage obtained and
maintained by the Association's Board of Directors hereunder be
brought i~to contribution with insurance purchased by individual
Owners, occupants, or their Mortgagees, and the insurance carried
by the Association shall be primary.
(d) Ail casualty insurance policies shall have an inflation
guard endorsement and an Agreed amount endorsement if these are
reasonably available and all insurance policies shall be reviewed
annually by one or more qualified persons, at least one of whom
must be in the real estate industry and familiar with construction
in the Fayette~County, GeoYgia, area.
(e) The Association's Board of Directors shall be required to
make every reasonable effort to secure insurance policies that will
provide for the following:
(i) a waiver of subrogation by the insurer as to any
claims against the Association's Board of Directors, its manager,
the Owners and their respective tenants, servants, agents, and
guests;
(ii) a waiver by the insurer of its rights to repair and
reconstruct instead of paying cash;
(iii)that no policy may be cancelled, invalidated, or
suspended on account of any one or more individual Owners;
(iv) that no policy may be cancelled, invalidated, or
suspended on account of any defect or the conduct of any director,
officer, or employee of the Association or its duly authorized
manager without prior demand in writing delivered to the
Association to cure the defect or to cease the conduct and the
allowance of a reasonable time thereafter within which a cure may
be effected by the Association, its manager, any Owner or
Mortgagee;
(v) that any "other insurance" clause in any policy
exclude individual Owners' policies from consideration; and
(vi) that no policy may be cancelled or substantially
modified without at least ten (10) days' prior written notice to
the Association.
Page 14
In addition to the other insurance required by this. Section,
the Board shall obtain workmen's compensation insurance, if and to
the extent necessary, to satisfy the requirements of applicable
laws, and a fidelity bond or bonds on directors, officers,
employees, and other persons handling or responsible for the
Association's funds. The amount of fidelity coverage shall be
determined in the directors' best business judgment. Bonds shall
contain a waiver of all defenses based upon the exclusion of
persons serving without compensation and may not be cancelled or
substantially modified 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
requirements of The Mortgage Corporation or the Federal National
Mortgage Association.
Section. 2. Individual Insurance. Each Owner shall carry
blanket all-risk casualty ihsurance on the Unit and all structures
constructed thereon and a liability policy covering damage or
injury occurring on a Unit. If reasonably available, the casualty
insurance shall cover loss or damage by fire and other hazards
commonly insured under an "all-risk" policy, including vandalism
and malicious mischief, 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 and shall
name the Association as an additional insured. If all-risk
coverage is not reasonably available, Owners shall obtain, at a
minimum, fire and extended coverage. The policies required
hereunder shall be in effect at all times. Authority to adjust
losses under policies obtained by an Owner shall be vested in the
Owner.
section 3. Damaqe and Destruction.
(a) I~ General. Immediately afteu the damage or destruction
by fire or other casualty to all or any 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. Kepair or
reconstruction, as used in this paragraph, means repairing or
restoring the property to substantially the same condition and
location that existed prior to the fire or other casualty.
(b) ~epair and Reconstruction. Any damage or destruction
shall be repaired or reconstructed unless, within sixty (60) days
after the casualty Members holding at least seventy-five (75%)
percent of the total Association vote and the Declarant (so long as
Page 15
the Declarant has an option unilaterally to subject additional
property to this Declaration as provided in Article IX), shall
otherwise agree. If for any reason either the amount ~f 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 a3ailable to the
Association within such period, then the period s~all be extended
until such information shall be made available; provided, however,
such extension shall not exceed sixty (60) days. No Mortgagee
shall have the right to participate in the determination of whether
damage or destruction shall be repaired or reconstructed.
If the ~amage 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 Association's
Members, levy a special assessment against all Owners in proportion
to the number of Units -'owned by such Owners. Additional
assessments may be made in like manner 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 shall be deposited to tke 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, tken and in that event the property shall be
restored to its natural state and maintained as an undeveloped
portion of the Common Property by the Association in a neat and
attractive..condition.
Section 4. Damaqe and Destruction -- ~nsured by Owners. The
damage or destruction by fire or other casualty to all or any
portion of any improvement on a Unit shall be repaired by the Owner
within seventy-five (75) days after the damage or destruction.
However, where repairs cannot be completed within seventy-five (75)
days, they shall begin within the required period and shall be
diligently and continuously pursued until their completion.
Alternatively, the Owner ,may decide to destroy and remove all
improvements on the Unit within seventy-five (75) days after such
damage or destruction.
ARTICLE VIII
Condemnation
If the taking involves a portion of the Common Property on
which improvements have been constructed, then, unless within sixty
(60) days after such taking, Members holding at least seventy-five
(75%) percent of the total Association vote and the Declarant (so
long as the Declarant has an option unilaterally to subject
Page 16
property to this Declaration as provided in Article. IX) shall
otherwise agree, the Association shall restore or replace such
improvements so taken on the remaining land included in th~ Common
Property to the extent lands are available therefor. The
provisions of Article VII, Section 3, above, applicable to Common
Property improvements damage, shall govern ~ replacement or
restoration and the actions to be taken in th~ event that the
improvements are not restored or replaced.
ARTICLE IX
Annexation of Additional Property
Section 1. Annexation Without Approval of Membership,.
(a) As the owner thereof or, if not the owner, with the
consent of the owner thereof, Declarant shall have the unilateral
right, privilege; and opt%pn from time to time at any time until
December 1, 1998, to subject any real property adjacent to and
contiguous with the Community to the provisions of this Declaration
and the jurisdiction of the Association by filing for record in the
Office of the Clerk of the Superior Court of Fayette Court a
Supplementary Declaration in respect to the property being annexed.
Any such annexation shall be effective upon the filing for record
of such Supplementary Declaration unless 'otherwise provided
therein.
(b) The rights reserved unto Declarant to subject additional
land to the Declaration shall not and shall not be implied or
construed so as to impose any obligation upon Declarant to subject
any of such additional land to this Declaration or to the
jurisdiction of the Association. If such additional land is not
subjected to this Declaration, Declarant's reDerved rights shall
not impose any obligation on Declarant to impose any covenants and
restrictions similar to those contained herein upon such additional
land nor 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, whether such uses are consistent with the
covenants and restrictions imposed hereby or'not.
Section 2. AnneXation With Approval of Membership. Subject
to the consent of the Owner thereof, upon the affirmative vote or
consent of Members holding a majority of the total Association vote
and the Declarant (so long as the Declarant has an option to
subject additional propert~ to the Declaration as provided above),
the Association may annex other real property to the provisions of
this Declaration and the jurisdiction of the Association by filing
for record in the Office of the Clerk of the Superior Court of
Fayette County, Georgia, a Supplementary Declaration in respect bo
the property being annexed. Any such Supplementary Declaration
shall be signed by the President and Secretary of the Association,
and any such annexation shall be effective upon the filing for
record of such Supplementary Declaration, unless otherwise provided
Page 17
therein. The time within which and the manner in which notice of
any such meeting of the Members of the Association called for the
purpose o~ determining whether additional property shall be
annexed, and the quorum required for the transaction of business at
any such meeting, is specified in the By-Laws of tke Association.
ARTICLE X
Mortgaqee Provisions
The following provisions are for the benefit of holders of
first Mortgages on Units in the Community. The provisions of this
Article apply to both this Declaration and to the By-Laws,
notwithstanding any other provisions contained herein.
Section 1. Notices of Action. An institutional holder,
insurer, or guarantor of a first Mortgage, who provides written
request to the ~ssociatiq~ (such request to state the name and
address of such holder, insurer, or guarantor and the Unit number)
(therefore becoming an "eligible holder"), will be entitled to
timely written notice of:
(a) any condemnation loss or any casualty loss which affects
a material portion of ~he Community or which affects any Unit on
which there is a first Mortgage held, insured, or guaranteed by
such eligible holder;
(b) any delinquency in the payment of assessments or charges
owed by an Owner of a Unit subject to the Mortgage of such eligible
holder, where such delinquency has continued for a period of sixty
(60) days; provided, however, notwithstanding this provision, any
holder of a first Mortgage, upon request, is entitled to written
notice from the Association of any default in the performance by an
Owner of a Unit of any obligation under tks Declaration or By-Laws
of the Association which is not cured within sixty (60) days;
(c) any lapse,'cancellation, or material modification of any
insurance ~olicy maintained by the Association; or
(d) any proposed action which w0uld require the consent of a
specified percentage of Mortgage holders.
Section 2. Special FHLMC Provision. So tong as required by
the Federal Home Loan Mortgage Corporation (The Mortgage
Corporation) and so long as the U.S. Department of Housing and
Urban Development ("HUD") is insuring or the Veterans
Administration ("VA") is guaranteeing any Mortgage in the
Community, the following provisions apply in addition to and not in
lieu of the foregoing. Unless two-thirds (2/3) of the first
Mortgagees or Owners other than the Declarant give their consent,
the Association shall not:
(a) by act or omission seek to abandon~ partition, subdivide,
Page 18
encumber, sell, or transfer the Common Property .which the
Association owns, directly or indirectly (the granting of easements
for public utilities or other similar purposes consistent vith the
intended use of the Common Property shall not be deemed a transfer
within the meaning of this subsection);
(b) change the method of determining ..the obligations,
assessments, dues, or other charges which may be levied against an
Owner;
(c) by act or omission change, waive, or abandon any scheme
of regulations or enforcement thereof pertaining to the
architectural design or the exterior appearance and maintenance of
Units and of the Common Property (The issuance and amendment of
architectural standards, procedures, rules, and regulations or use
restrictions shall not constitute a change, waiver, or abandonment
within the meaning of this subsection.);
(d) fail to maintain fire and extended coverage insurance, as
required by this Declaration; or
(e) use hazard insurance proceeds for any Common Property
losses for other than the repair, replacement, or reconstruction of
such property.
Nothing contained in Article X, Section 2, of this Declaration
shall be construed to reduce the ~percentage vote that must
otherwise be obtained under the Declaration for any of the acts set
out in this Section 2.
First Mortgagees may, jointly or singly, pay taxes or other
charges which are in default and which may or have become a charge
against the Common Property and may pay overdue premiums on
casualty insurance policies or secure new casualty insurance
coverage upon the lapse of an Association policy, and First
Mortgagees making such payments shall be entitled to immediate
reimbursemgnt from the Association.
Section 3. No Priority. No provi'sion of this Declaration or
the By-Laws gives or shall be construed as giving any Owner or
other party priority over, any rights of the first Mortgagee of any
Unit in the case of distribution to such Owner of insurance
proceeds or condemnation awards for losses to or a taking of the
Common Property.
Section 4. Notice to Association. Upon request, each Unit
Owner shall be obligated to furnish to the Association the name and
address of the holder of any mortgage encumbering such Owner's
unit.
Section 5. Amendments by Board. Should the Federal National
Mor{gage Association or the Federal Home Loan Mortgage Corporation
Page 19
subsequently delete any of their respective requirements which
necessitate the provisions of this Article or make any such
requirements less stringent, the Board, without approval ~,of the
Owners, may cause an amendment to this Article to be recorded to
reflect such changes.
Section 6. VA/HUD A~proval. As long as the D~clarant has the
right to .appoint and remove officers and directors of the
Association, the following actions shall require the prior approval
of the VA (so long as the VA is guaranteeing any Mortgage in the
Community), and HUD (so long as HUD is insuring any Mortgage in the
Community): .annexation of additional property to the Community,
except for annexation by Declarant in accordance witk Article IX,
Section 1 hereof pursuant to a previously approved plan of
annexation; mergers, and consolidations; dedication of Common
Property to any public entity; dissolution; mortgaging of Common
Property, and material amendment of the Declaration, By-Laws or
Articles of Incorporation.
Section 7. Applicability of this Article~ Nothing contained
in this Article shall be construed to reduce the percentage vote
that must otherwise be obtained under the Declaration, By-Laws, or
Georgia law for any of the acts set out in this Article.
Section 8. Failure of Mortqaqee to Respond. Any Mortgagee
who receives a written request from the Board to respond to or
consent to any action shall be deemed to have approved such action
if the Association does not receive a written response from the
Mortgagee within thirty (30) days of the date of the Association's
request.
Article XI
Easements
section 1. Easements for Encroachment and Overhanq. There
shall be reciprocal appurtenant easements for encroachment and
overkang as between eack Unit and such portion or portions of the
Common Property adjacent thereto or as between adjacent units due
to the unintentional placement or settling or shifting of the
improvements constructed, reconstructed, or altered thereon (in
accordance with the terms of this Declaration) to a distance of not
more than five (5) feet, as measured from any point on the common
boundary between each Unit and the adjacent portion of the Common
Property or as between adjacent Units, as the case may be, along a.
line perpendicular to such boundary at such point; provided,
however, in no event shall an easement for encroachment exist if
such encroachment occurred due to willful conduct on the part of an
Owner, tenant, or the Association.
Page 20
Section 2. Easements for Use and Enjoyment.
(a) Every Owner of a Unit shall have a right and easement of
ingress and egress, use and enjoyment in and to the Common Property
which shall be appurtenant to and shall pass with the title to his
Unit, subject to the following provisions:
(i) the right of the Association to charge reasonable
admission and other fees for the use of any portion of the Common
Property and to limit the number of guests of Unit Owners and
tenants who may use the Common Property;
(i~) the right of the Association to.suspend the voting
rights of a Unit Owner and the right of an Owner to use the
recreational facilities in the Community, if any, for any period
during which any assessment against his Unit which is hereby
provided for remains unpaid3 and, for a reasonable period of time
for an infraction of the Declaration, By-Laws, or rules and
regulations;
(iii) the right of the Association to borrow money for
the purpose of improving the Common Property, or any portion
thereof, or for construction, repairing or improving any facilities
located or to be located thereon, and 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, interest, options, easements, and
privileges herein reserved or established for the benefit of
Declarant, or any Unit or Unit Owner, or the holder of any
Mortgage, irrespective of when executed, given by Declarant or any
Unit Owner encumbering any Unit or other property located within
the Community (any provision in this Declaration or in any such
Mortgage given by the Association to the contrary notwithstanding,
the exercise of any rights therein by the holder thereof 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 Unit or Unit Owner, or the holder
of any mortgage, irrespective of when executed, given by Declarant
or any Unit Owner encumbering any Unit or other property located
within the Community). No mortgage conveying all or a portion of
the Common Property shall be effective unless an instrument
agreeing to the Mortgage has been approved by Members holding at
least two-thirds (2/3) of the total Association vote; and
(iv) the right of the Association to dedicate or
transfer all or any portion of the Common Property subject to such
conditions as may be agreed to by the Members of the Association..
No such dedication or transfer shall be effective unless an
instrument agreeing to such dedication or transfer has been
approved by at least two-thirds (2/3) of the total Association and
by the Declarant (so long as the Declarant has an option
Page 21
unilaterally to subject additional property to this Declaration as
provided in Article IX. Notwithstanding the above, Peachtree City,
Georgia will not accept dedication of the streets located in the
Common Property now or in the future.
(b) Any Unit Owner may delegate his or her3right of use and
enjoyment in and to the Common Property and facilities located
thereon to the members of his family, his tenants and guests and
shall be deemed to have made a delegation of all such rights to the
occupants of any leased Unit.
Section 3. Easements for Utilities. There is hereby reserved
to the Association blanket easements upon, across, above and under
all property within the Community for access, ingress, egress,
installation, 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 Association might decide to
have installed to serve the Community. It shall be expressly
permissible for the Association or its designee, as the case may
be, to install, repair,'replace, and maintain or to authorize the
installation, repairing, replacing, and maintaining of such wires,
conduits, cables and other equipment related to the providing of
any such utility or service. Should any party furnishing any such
utility or service request a specific license or easement by
separate recordable document, the Board shall have the right to
grant such easement.
Section 4. Easement for Entry. The Association shall have an
easement to enter into any Unit for emergency~ security, safety,
and for other purposes reasonably necessary for the proper
maintenance and operation of the Community., which right may be
exercised by the Association's Board of Directors, officers,
agents, employees, managers, and all policemen, firemen, ambulance
personnel, 0and similar emergency personnel in the performance of
their~respective duties. Except in a~ emergency situation, entry
shall only be during reasonable hours and after notice to the
Owner. It is intended that this right of entry shall include (and
this right of entry shall~include) the right of the Association to
enter a Unit to cure any condition which- may increase the
possibility of a fire or other hazard in the event an Owner fails
or refuses to cure the condition upon request by the Board.
Section 5. Easements to Serve Additional Property. The
Declarant and its duly authorized agents, representatives, and
employees, as well as its successors, assigns, licensees, a~d
mortgagees shall have and hereby reserves a perpetual, nonexclusive
easement over the Common prOPerty for the purposes of ingress and
egress, enjoyment, use, access, and development of any property
annexed to the Community pursuant to Article IX hereof. This
Page 22
easement includes, but is not limited to, a right of ingress and
egress over the Common Property for construction of roads and for
connecting and'installing utilities. Declarant, its successors or
assigns, shall be responsible for any damage caused to the Common
Property as a result of vehicular traffic or utility installation
or repair, but shall not be responsible for any costs associated
with other maintenance, repair, or replacement~ of the Common
Property.
Article XII
General Provisions
Sectio~ 1. Enforcement. Each Owner and every occupant of a
Unit shall comply strictly with the By-Laws, the rules and
regulations, the use restrictions, as they may be lawfully amended
or modified from time to time, and with the covenants, conditions,
and restrictions ~et forth in this Declaration and in the deed to
his or her Unit, if any. ~he Board of Directors may impose fines.
or other sanctions, which shall be collected as provided herein for
the collection of assessments. Failure to comply with this
Declaration, the By-Laws or the rules and regulations shall be
grounds for an action to recover sums due for damages or injunctive
relief, or both, maintainable by the Board of Directors, on behalf
of the Association, or, in a proper case, by an aggrieved Owner.
Failure by 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.
Section 2. Self-HelD. In addition to any other remedies
provided for herein, the Association or its duly authorized agent
shall have the power to enter upon a Unit or any portion of the
Common Property to abate or remove, using such force as may be
reasonably necessary, any erection, thing or condition which
violates this Declaration, the By-Laws, the nules and regulations,
or the use restrictions. Unless an emergency situation exists, the
Board shall give the~violating Unit Owner ten (10) days' written
notice of its intent to exercise self-help. All costs of self-
help, including reasonable attorney's f~es actually incurred shall
be assessed against the violating Unit Owner and shall be collected
as provided for herein for the collection of assessments.
Section 3. Duration. The covenants and restrictions of this
Declaration shall run with and bind the Community, and shall inure
to tke benefit o~ and skall be enforceable by the Association or
any Owner, their respective legal representatives, heirs,
successors, and assigns, perpetually to the extent permitted by
law. However, so long as Georgia law limits the period during
which covenants restricting lands to certain uses may run, any
provision of this Declaration affected by the law shall run with
and bind the land so long as permitted by the law, after which time
the provisions shall be automatically extended for successive
periods of ten (10) years, with the signed written consent of at
Page 23
least two-thirds (2/3) of the record Owners and an attorney's
affidavit confirming ownership of the Units or such lessor
requirement as provided in O.C.G.A. § 44-5-60. A written
instrument reflecting approval must be recorded within the year
immediately preceding the beginning of a ten (10) year renewal
period. Every purchaser or grantee of any interest (including,
without limitation, a security interest) in any real property
subject to this Declaration, by acceptance of a deed or other
conveyance, agrees that provisions of this Declaration may be
extended and renewed as provided in this Paragraph.
Section 4. Amendment. This Declaration may be amended
unilatera!!~ at any time and from time to time by Declarant (a) if
such amendment'is necessary to bring any provision hereof into
compliance with any applicable governmental statute, rule, or
regulation or judicial determination which shall be in conflict
therewith; (b) Lf such amendment is necessary to enable any
reputable title insurance cbmpany to issue title insurance coverage
with respect to the Units subject to this Declaration; (c) if such
amendment is required by an institutional or governmental lender or
purchaser of mortgage loans, including, for.example, the Federal
National Mortgage Association or Federal Home Loan Mortgage
Corporation, to enable such lender or purchaser to make or purchase
mortgage loans on the Units subject to this Declaration; or (d) if
such amendment is necessary to enable any governmental agency or
reputable private insurance company to insure mortgage loans on the
Units subject to this Declaration; provided, however, any such
amendment shall not adversely affect the title to any Owner's Unit
unless any such Unit Owner shall consent thereto in writing.
Further, so long as the Declarant has the right unilaterally to
subject additional property to the Declaration, Declarant may
unilaterally amend this Declaration for any other purpose;
provided, however, any such amendment shall not adversely affect
title to any Unit without the consent of the~affected Unit Owner.
In addition to the above, this Declaration may be amended upon
the affirmative vote or written consent, or any combination
thereof, of Members holding at least twg-thirds (2/3) of the total
Association vote and the consent of the Declarant (so long as
Declarant has the right unilaterally to subject additional property
to this Declaration). Amendments to this Declaration shall become
effective upon recordation in the Fayette County, Georgia Records,
unless a later effective date is specified therein.
Section 5. Partition. The Common Property shall remain
undivided, and no Unit Owner nor any other Person shall bring any
action for partition or division of the whole or any part thereof
without the written consent of all Owners of all portions of the
property located within the Community and without the written
consent of all holders of all Mortgages encumbering any portion of
the property, including, but not necessarily limited to, the Units
located within the Community.
Page 24
Section 6. Gender and Grammar. The singular, wherever used
herein, shall be construed to mean the plural, when applicable, and
the use of the masculine pronoun shall include the neuter and
feminine.
Section 7. Severability. Whenever possible, each provision
of this Declaration shall be interpreted in such~anner as to be
effective and valid, but if the application of any provision of
this Declaration to any person or to any property shall be
prohibited or held invalid, such prohibition or invalidity shall
not affect any other provision or the application of any provision
which can be given effect without the invalid provision or
application,' and, to this end, the provisions of this Declaration
are declared to be severable.
Section 8. Captions. The captions of each Article and
Section hereof, a~ to the contents of each Article and Section, are
inserted only for convenience and are in no way to be construed as
defining, limiting, extending, or otherwise modifying or adding to'
the particular Article or Section to which they refer.
Section 9. Preparer. This Declaration was prepared by Glover
& Davis, P.A., attorney~ at law, Suite 130, 200 Westpark Drive,
Peachtree City, Georgia, 30269.
Section 10. Conveyances of Common PropertV. The Association
shall accept such conveyances of Common Property as are made from
time to time to the Association by Declarant.
Section 11. Perpetuities. If any of the covenants,
conditions, restrictions, or other provisions of this Declaration
shall be unlawful, void, or voidable for violhtion of the rule
against perpetuities, then such provisioqs shall continue only
until twenty-one (21) years after the death o~ the last survivor of
the now living descendants of Elizabeth, Queen of England.
Section 12. Indemnification. In accordance with the Georgia
Nonprofit Corporation Code, and to the full extent allowed by
Georgia law, the Association shall indemnify every person who was
or is a party or who is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative (other
then an action by or in the right of the Association), by reason of
the fact that such person is or was serving as a director or
officer of the Association against any and all expenses, including
attorneys' fees, imposed upon or reasonably incurred in connection
with any action, suit, or proceeding, if such person acted in a
manner reasonably believed to be in or not opposed to the best.
interests of the Association and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. Any indemnification shall be made by the
Association only as authorized in a specific case upon a
Page 25
determination that indemnification of tke person is proper under
the circumstances.
Section 13. Construction and Sale Period. Notwithstanding
any provisions contained in this Declaration to the contrary,
Declarant hereby expressly reserves unto itself and its successors
and assigns a non-exclusive, perpetual right,% privilege, and
easement with respect to the Community for the benefit of
Declarant', its successors, and assigns over, under, in and/or on
the Community, without obligation and without charge to Declarant,
for the purposes of construction, installation, relocation,
development sale, maintenance, repair, replacement, use and
enjoyment, 'and/or otherwise dealing with th~ Community and any
other property now owned or which may in the future be owned by
Declarant (such other property is hereinafter referred to as
"Additional Property"). The reserved easement shall constitute a
burden on the tit~e to the~ommunity and specifically includes, but
is not limited to:
(a) the right of access, ingress, and egress for vehicular
and pedestrian traffic over, under, on, or in the Community; and
the right to tie into any portion of the Community with driveways,
parking areas, and waLkways; and 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, natural gas, water, sewer, and
drainage lines and facilities constructed or installed in, on,
under and/or over the Community; and
(b) the right to construct, install, replace, relocate,
maintain, repair, use, and enjoy signs, model residences, and sales
offices in the Community.
(c) no rights, privileges, and easements granted or reserved
herein shall be merged into the title of any property, including,
without limitation, the Community, but shall be held independent of
such title, and no such right, privilege, or easement shall be
surrehdered, conveyed, or released unless and until and except by
delivery of a quit-claim deed from Declarant releasing such right,
privilege, or easement by express reference thereto.
Section 14. Contracts Executed During Dec'larant Control. All
contracts or leases executed by or on behalf of the Association
prior to the expiration of Declarant's right to appoint the members
of the Board of Directors as provided in Article III of the By-Laws
shall contain a termination clause permitting the Association to
terminate the contract or lease at any time after the expiration of
Declarant's right to appoint the members of the Board of Directors,
without cause and without penalty, upon not more than ninety (90)
days' written notice.
Page 26
Section 15. Books and Records.
(a) .Inspection by Members and Mortqagees. This Declaration,
the By-Laws, copies of the rules and use restrictions, membership
register, books of account, and minutes of meetings of the members
of the Board and of committees shall be made available for
inspection and copying by any Member of the AssoGiation or by his
duly appointed representative and by holders, insurers, or
guarantor~ of any first Mortgage at any reasonable time and for a
purpose reasonably related to his or her interest as a Member or
holder, insurer, or guarantor of a first Mortgage at the office of
the Association or at such other reasonable place as the Board
shall prescribe.
(b) Rules for Inspection. The Board shall establish
reasonable rules with respect to:
(i) n6tice to b'~ given to the custodian of the records;
(ii) hours and days of the week when such an inspection
may be made; and
(iii) paymen~ of the cost of reproducing copies of
documents.
(c) Inspection by Directors. Every Director shall have the
absolute right at any reasonable time to inspect all books,
records, and documents of the Association and the physical
properties owned or controlled by the Association. The right of
inspection by a Director includes the right to make extra copies of
documents at the reasonable expense of the Association.
Section 16. Financial Review. A review'of the accounts of
the Association shall be made annually in't~e manner as the Board
of Directors may decide; provided, however, after having received
the Board's reviewed: financial statement at the annual meeting, by
a Majority of the Association vote present, or represented by
proxy, the'Owners may require that the.accounts of the Association
be audited as a common expense by a public accountant. Upon
written request of any institutional holder of a first Mortgage and
upon payment of all necessary costs, such holder shall be entitled
to receive a copy of an audited financial statement within ninety
(90) days of the date of the request.
Section 17. Notice of Sale or Lease. In the event an Owner
sells or leases his or her Unit, the Owner shall give to the
Association, in writing, the name of the purchaser or lessee of the
Unit and such other info£mation as the Board may reasonably
require.
Section .18. Variances. Notwithstanding anything to the
contrary contained in this Declaration, the Board of Directors or
Page 27
its designee shall be authorized to grant individual variances from
any of the provisions of this Declaration, the By-Laws and any
rule, regulation or use restriction promulgated pursuant thereto if
it determines that waiver of application or enforcement Df the
provision in a particular case would not be inconsistent with the
overall scheme of development for the Community.
Section 19. Security. The Association may but shall not be
required to, provide measures or take actions which directly or
indirectly improve safety on the Community. However, each Owner,
for themselves and their tenants, guests, licensees, and invitees,
acknowledges and agrees that the Association is not a provider of
security and shall have no duty to provide security for the
Community. It shall be the responsibility of each Owner to protect
his or her person and property, and all responsibility to provide
security shall lie solely with each Owner. The Association shall
not be held liabl~ for any loss or damage by reason of failure to
provide adequate security o-r ineffectiveness of security measures
undertaken.
IN WITNESS WHEREOF, the undersigned, being the duly appointed
officers of Declarant herein, have executed this instrument and
affixed the corporate seal this day of , 19
HAYES-JOHNSON ~i~i~'~, INC.
Signed, sealed, and delivered
this day of
19 .
BY:
TITLE:
ATTEST:
TITLE:
(coRP. SEAL)
WITNESS
Notary Public, State of Georgia
MY COMMISSION EXPIRES:
Page 28
The following signatures are provided to evidence the consent
and acknowledgment of the undersigned to the applicability of the
foregoing to all property constituting the Community 9nd the
undersigned hereby subordinate any interest now or hereafter held
by the undersigned in and to any portion of the Community to the
foregoing Declaration
HAYES-JOHNSON COMMUNITIES, INC.
Signed, sealed, and delivered
this day of
19
BY:
TITLE:
ATTEST:
TITLE:
(CORP. SEAL)
WITNESS
Notary Public, State of Georgia
MY COMMISSION EXPIRES:
Signed, sealed, and delivered
this day of
19
BANKSOUTH MORTGAGE, INC.
BY:
TITLE:
ATTEST:
TITLE:
(CORP. SEAL)
WITNESS
Notary Public, State of Georgia
MY COMMISSION EXPIRES:
Page 29
Exhibit "A"
Definitions
The following words, when used in this Declaration or in
any Supplementary Declaration (unless the context shall prohibit),
shall have. the following meanings:
(a) "Association" shall mean and refer to The Cypress
Pointe Community Association, Inc., a nonprofit Georgia
corporation,, its successors and assigns.
(b) "Board of Directors" or "Board" shall mean the
appointed or elected body of the Association, as applicable, having
its normal meaning under Georgia corporate law..
(c) "By-Laws" s~all refer to the By-Laws of Cypress
Pointe Community Association, Inc., attached to this Declaration as
Exhibit "C" and incorporated therein by this reference.
(d) "Common Property" shall mean any and all real and
personal property and easements and other interests therein,
together with the facilities and improvements located thereon, now
or hereafter owned by the Association for 'the common use and
enjoyment of the Owners.
(e) "Community" shall mean and refer to that certain
real property and interests therein described in Exhibit "B",
attached hereto, and (i) such additions thereto as may be made by
Declarant (or its Mortgagee or transferee, as provided in the
Declaration); and (ii) such additions thereto as'may be made by the
Association by Supplementary Declaration o~ other real property.
(f) "Community-Wide Standard" shal~ mean 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.
(g) "Declaran%" shall mean and refer to Hayes-Johnson
Development, Inc., a Georgia corporation, and the successors-in-
title and assigns of Hayes-Johnson Development, Inc. provided any
such successor-in-title or assign shall be designated as the
"Declarant" by Hayes-Johnson Development, Inc., in an instrument
recorded in the Fayette County, Georgia records.
(h) "Majority" means those eligible votes, Owners, or
other group as the context may indicate totalling more than fifty
(50%) percent of the total eligible number.
Page 30
EXHIBIT "C"
BY-LAWS
OF ~
~HE CYPRESS POINTE COM14UNITY ASSOCIATION, INC.
Page 31
- TABLE OF CONTENTS -
NAME, MEMBERSHIP, APPLICABILITY, AND DEFINITIONS
Name .....................
2. hembership ............
3. Definitions ...............
II. ASSOCIATION: MEETINGS, QUORUM, VOTING, PROXIES
1
2
3
4
5
6
7
8.
9.
Place of Meetings .......
First Meeting and Annual Meetings
Special ~eetings ..........
Notice.of Meeting? ........
Waiver of Notice ..........
Adjournment of Meetings ......
Voting ............ . .........
Proxies ................
Quorum ..............
III. BOARD OF DIRECTORS:
NUMBER, POWERS,.MEETINGS
ComDosition and Selection.
Governing Body; Composition .......
Directors Appointed by Declarant
Number of Directors ......
Nomination of Directors ........
Election and Term of Office , .....
Removal of Directors ..... ~ .....
Vacancies .......... . .
9.
10
11
12
13
14
15
16
17
Meetinqs.
~rganization Meetings ...
Regular Meetings ..............
Special Meetings ..........
Waiver of Notice ......
Quorum of Board of Directors ..........
Compensation .................
Open Meetings ........
Executive Session .......
Action Without a Formal Meeting ......
Telephonic Participation ......
Paqe
3
3
3
3
3
4
4
Page 32
C. Powers and Duties
18. Powers ................
19. Management Agent ................
20. Borrowing ................
21. Fining Procedure . ~
IV. OFFICkRS
1. Officers ................
2. E~ection, Term of Office, and Vacancies .....
3. Removal .
4. President .
5. Vice President'
6. Secretary . .
7. Treasurer
8. Kesignation . '-
V. COMMITTEES
1. General ......
VI. MISCELLANEOUS
1. Fiscal Year .....
2. Parliamentary Rules .
3. Conflicts
4. .Amendment .....
10
10
10
10
Page 33
BY-LAWS
OF
THE CYPRESS POINTE COMMUNITY ASSOCIATION, INC.
Article I ~
Name, Membership, Applicability, and Definitions
Section 1. Name. The name of the Association shall be The
Cypress Pointe Community Association, Inc., (hereinafter sometimes
referred to as the "Association").
Section 2. Membership. The Association shall have one
class of membership, as set forth in that Declaration of Covenants,
Conditions, and Restrictions for Cypress Pointe, (this Declaration,
as amended, renewed, o~ extended from time to time, is hereinafter
sometimes referred to as ~e "Declaration"), the terms of which
pertaining to the membership are specifically incorporated by
reference herein.
Section 3. Definitions. The words used in these By-Laws
shall have the same meaning as set forth in the Declaration, unless
the context shall prohibit.
Article II
Association: Meetinqs, Quorum, Votinq, Proxies
Section 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.
Section 2. First Meetinq and Annual'Meetings. An annual
or special meeting shall be held within one (1) year from the date
the Declaration is recorded. Annual meetings shall be set by the
Board so as to occur no later than sixty (60) days after the close
of the Association's fiscal year. If the day for the annual
meeting of the Members is a legal holiday, the meeting will be held
at the same hour on the first day following which is not a legal
holiday (excluding Saturday and Sunday).
Section 3. Special Meetinqs. The President may call
special meetings. In addition, it shall be the duty of the
President to call a special meeting of the Association if so
directed by resolution of a Majority of the Board of Directors or
upon a petition signed by Members holding at least twenty-fiv~
(25%) percent of the total Association vote. The notice of any
special meeting shall state the date, time, and place of such
meeting and the purpose thereof. No business shall be transacted
at a special meeting, except as stated in the notice.
Page 34
Article III
Board of Directors: Number, Powers, MeetinQs
A. ComDosition and Selection.
Section 1. Governing Body; Composition. %The affairs of
the Association shall be governed by a Board of Directors. Except
as provided in Section 2 of this Article, the Directors must reside
in the Community and shall be Members or spouses of such Members;
provided, however, no Person and his or her spouse may serve on the
Board at the same time.
Section 2. Directors Appointed by D~clarant. Hayes-
Johnson Development, Inc. as Declarant shall have the right to
appoint or remove all members of the Board of Directors and all
officers of the Association until such time as the first of the
following events shall occur; (a) the expiration of five (5) years
after the date of the recording of the Declaration; (b) the date
on which ( ) Units have been conveyed to Persons
other than the Declarant or Hayes-Johnson Communities, Inc.; or (c)
the surrender by Declarant in writing of the authority to appoint
and remove directors and Qfficers of the Association. Each Owner,
by acceptance of a deed to or other conveyance of a Unit, vests in
Declarant this authority to appoint and remove directors and
officers of the Association. The directors and officers appointed
by the Declarant need not be Owners or residents in the Community.
The names of the initial directors selected by the Declarant are
set forth in the Articles of Incorporation of the Association.
Section 3. Number of Directors. The Board shall consist
of three to five (5) members, the exact number, to be set by the
Declarant.
Section 4. Nomination of Directors. Elected Directors
shall be nominated from the floor and may also be nominated by a
Nominating 9ommittee, if such a committee is established by the
Board.. All candidates shall have a .reasonable opportunity to
communicate their qualifications to the Members and to solicit
votes.
Section 5. Election and Term of Office. Not later than
thirty (30) days after termination of the Declarant's right to
appoint directors and officers as described in Section 2 of this
Article, the Association shall call a meeting to be held at which
Owners shall elect all of the directors. The term of a Majority of
the directors shall expire two (2) years after the first annual
meeting following termination of the Declarant's right to appoint.
directors, and the term of the remainder of the directors shall
expire one (1) year after that annual meeting. At the expiration
of the first term of office of each member of the initial elected
Board of Directors, a~successor shall be elected to serve for a
Page 3
term of two (2) years. The members of the Board of Directors shall
hold office until their respective successors shall have. been
elected by the Association.
At each annual meeting of the membership, directors shall be
elected to succeed those directors whose terms are'~expiring. All
eligible Members of the association shall vote on all directors to
be elected, and the candidate(s) receiving the most votes shall be
elected.
Section.6. Removal of Directors. At any regular or
special meeting of the Association duly called, any one or more of
the members of the Board of Directors may be removed, with or
without cause, by Members holding at least a Majority vote of the
total Association Vote and a successor may then and there be
elected to fill the~vacancy ~hus created. A Director whose removal
has been proposed by the Owners shall be given at least ten (10)
days' notice of the call of the meeting and the purpose thereof and
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 twenty (20) days may be removed by a
Majority vote of the Directors at a meeting, a quorum being
present. This Section shall not apply to Directors appointed by
Declarant.
Section 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, even though less'than a quorum, at any
meeting of the Board of Directors. Each Person ~o selected shall
serve the unexpired portion of the term.
B. MEETINGS.
Section 8. Orqanization Meetinqs. The first meeting of
the members of the Board of Directors following each annual meeting
of the membership shall be held within ten (10) days thereafter at
such time and place as shall be fixed by the Board.
Section 9. ~eqular Meetinqs. Kegular meetings of the
Board of Directors may be held at such time and place as shall be
determined from time to time by a Majority of the Directors, but 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.
Section 10. Special Meetinqs. 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 time and place of the meeting and the nature of any
Page 4
special business to be considered. The notice shall be.given to
each Director by one of the following methods: (a) by personal
delivery; (b) written notice by first class mail, postage prepaid;
(c) by telephone communication, either directly to the Director or
to a Person at the Director's home or office who would reasonably
be expected to communicate such notice promptly to the Director; or
(d) by telegram, charges prepaid. All such notices~shal! 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 into a United States mailbox at least four (4)
days before the time set for the meeting. Notices given by
personal delivery, telephone, or telegraph company shall be given
at least forty-eight (48) hours before the time set for the
meeting.
Section 11. Waiver of Notice. The transactions of 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. The waiver of notice or
consent need not specify ~he 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.
Section 12. 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. A meeting at which a quorum is. initially present may
continue tO transact business, notwithstanding the withdrawal of
Directors, if any action taken is approved by at least a Majority
of the required quorum for that meeting. If any meeting cannot be
held because a quorum is not present, a Majority of the Directors
who are present at such meeting may adjourn the meeting to a time
not less than five (5) nor more than thirty (30) days from the time
that 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.
Section 13. ~omDensation. No Director shall receive any
compensation from the Association for acting as such unless
approved by Members holding a Majority of the total Association
vote.
Section 14. ODen Meetinqs. Ail 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
Page 5
authorized by the Board.
Section 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.
Section 16. Action Without a Formal Meetinq. Any action
to be taken at a meeting of the Directors or any action that may be
taken at a meeting of the Directors may be taken without a meeting
if a consent in writing, setting forth the action so taken, shall
be signed by all of the Directors.
Section 17. Telephonic Participation. One or more
directors may participate iD and vote during any regular or special
meeting of the Board by telephone conference call or similar
communication equipment by means of which all persons participating
in the meeting can hear each other at the same time, and those
directors participating by telephone shall be deemed to be present
at such meeting for quorum and other purposes. Any such meeting at
which a quorum participates shall constitute a regular meeting of
the Board.
C. Powers and Duties.
Section 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 the Declaration, Articles% or these By-Laws
directed to be done and exercised exclusively by the Members. In
addition to the duties imposed by these. By-Laws or by any
resolution of the Association that may hereafter be adopted, the
Board of Directors shall have the power to and Re responsible for
the following, in way of explanation, but not limitation:
(a) preparation and adoption of an annual budget in which
there shall be established the contribution of each owner to the
common expenses;
(b) making assessments to defray the common expenses,
establishing the means and methods of collecting such assessments,
and establishing the period of the installment payments of the
annual assessment;
(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
Page 6
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 ~o administer the Association.
(f) making and amending use restrictions and rules and
regulations;
(g) opening of bank accounts on behalf of-the Association and
designating the signatories required;
(h) enforcing by legal means the provisions of the
Declaration, thes~ By-Laws. z and the rules and regulations adopted
by it, and bring any proceedings which may be instituted on behalf
of or against the Owners concerning the Association;
(i) obtaining and carrying insurance against casualties and
liabilities, as provided in the Declaration, and paying the premium
cost thereof;
(j) paying the cost of all services rendered to the
Association or its Members which are not directly chargeable to
Owners;
(k) keeping books with detailed accounts of the receipts and
expenditures affecting the Association and its administration, and
specifying the maintenance and repair expenses and any other
expenses incurred; and
(1) contracting with any Person ~o~ the performance of
various duties and functions. The Board shall have the power to
enter into common management agreements with trusts, condominiums,
or other ~ssociations. Any and all functions of the Association
shall be fully transferable by the Board, in whole or in part, to
any other entity.
Section 19. Manaqement Aqent. 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. The Declarant or an affiliate of the 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 (90) days' written notice.
Section 20. Borrowing. The Board of Directors shall have
the power to borrow money for the purpose of repair or restoration
Page 7
of the Common Property and facilities without the approval of the
Members of the Association; provided, however, the Board shall
obtain membership approval in the same manner as for ~pecial
assessments, in the event that the proposed borrowing is ~or the
purpose of modifying, improving, or adding amenities, and the total
amount of such borrowing exceeds or would exceed Ten Thousand
($!0,000.00) Dollars outstanding debt at any one time.
Section 21. Fininq Procedure. The Board shall not impose
a fine (a late charge shall not constitute a fine) unless and until
the following procedure is followed:
(a) Notice. Written notice shall be served upon the violator
specifying:
(i) th? nature of the violation and the fine imposed;
(ii) that the vitiator may, within ten (10) days from the
date of the notice, request a hearing regarding the fine imposed;
(iii) the name, address and telephone number of a person
to contact to challenge the fine;
(iv) that any statements, evidence, and witnesses may be
produced by the violator at the hearing;
(v) that all rights to have the fine reconsidered are
waived if a hearing is not requested within ten (10) days of the
date of the notice.
(b) Hearing. If a hearing is requested, it shall be held
before the Board in executive session, and th~ alleged 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.
Article IV
Officers
Section 1. Officers. The officers of the Association
shall be a President, Vice President, Secretary, and Treasurer.
Any two 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.
Section 2. Election, Term of Office, and Vacancies. The
officers of the Association shall be elected annually by the Board
of Directors at the first meeting of the Board of Directors
following each annual meeting of the Members. 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
Page 8
of the term.
Section 3. Removal. Any officer may be removed~by the
Board of Directors whenever, in its judgment, the best interests of
the Association will be served thereby.
Section 4. President. The President sh~ll be the chief
executive, officer of the Association and shall preside at all
meetings of the Association and of the Board of Directors. The
President shall have all the general powers and duties which are
incident to the office of the president of a corporation organized
under the Georgia Nonprofit Corporation Code.
Section 5'~ Vice President. The Vice President shall act
in the President's absence and shall have all powers, duties, and
responsibilities ~rovided for the President when so acting.
Section 6. Secretary. The Secretary shall keep the
minutes of all meetings of the Association and of the Board of
Directors and shall have charge of such books and papers as the
Board of Directors may direct and shall, in general perform all
duties incident to the office of the secretary of a corporation
organized in accordance with Georgia law.
Section 7. Treasurer. The Treasurer shall have the
responsibility for the Association's funds and securities and shall
be responsible for keeping full and accurate financial records and
books of account showing all receipts and disbursements, for
preparing all required financial statements and tax returns, and
for the deposit of all monies and other valuable effects in the
name of the Association or the managing agent in such depositories
as may from time to time be designated by the ~oard of Directors.
Section 8. Resiqnation. Any officer may resign at any
time by giving written notice to the Board of Directors, the
President, or the secretary. 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 V
Committees
Section 1. General. Committees to perform such tasks and to
serve for such periods as may be designated by the Board are hereby
authorized. Each committee shall be composed and shall operate in
accordance with the terms of the resolution of the Board of
Directors designating the committee or with rules adopted by the
Board of Directors.
Page 9
Article VI
Miscellaneous
Section !. Fiscal Year. The fiscal year of the
Association shall be determined by resolution of the Board. In ~he
absence of such a resolution, the fiscal year shall be the calendar
year.
Section 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, the Declaration, these By-Laws,. or ruling made by
the Person presiding over the proceeding.
Section 3. Conflicts. If there are conflicts or
inconsistencies between th~provisions of Georgia law, the Articles
of. Incorporation, the Declaration, and these By-Laws, the
provisions of Georgia law, the Declaration, the Articles of
Incorporation, and the By-Laws (in that order) shall prevail.
Section 4. Amendment. These By-Laws may be amended
unilaterally at any time. and from time to time by Declarant (a) if
an amendment is necessary to bring any provision into compliance
with any applicable governmental statute, rule, or regulation or
judicial determination with which it is in conflict; (b) if an
amendment is necessary to enable any reputable title insurance
company to issue title insurance coverage with respect to the Units
subject to the Declaration; (c) if an amendment is required by an
institutional or governmental lender or purchaser of mortgage
loans, including, for example, the Federal National Mortgage
Association or Federal Home Loan Mortgage Corporation, to enable
the lender or purchaser to make or purchase Mortgage loans on the
Units subject to the Declaration; or (d). if an amendment is
necessary to enable any governmental agency or reputable private
insurance company tin insure Mortgage loans on the Units subject to
the Declaration. However, any such amendment shall not adversely
affect the title to any Owner's Unit unless any Unit Owner consents
to the amendment in writing. Further, so long as Declarant has the
right unilaterally to subject additional property to the
Declaration as provided in Article IX, Declarant may unilaterally
amend these By-Laws for any other purpose; provided, however, any
such amendment shall not adversely affect title to any Unit without
the consent of the affected Unit Owner.
In addition to the above, these By-Laws may be amended upon
the affirmative vote or written consent, or any combination of
affirmative vote and written consent, of Members holding at least
a Majority of the total Association vote and the consent of the
Declarant (so long as Declarant has an option unilaterally to
subject additional property to the Declaration as provided in
Article IX of the Declaration). Amendments to these By-Laws shall
Page 10
become effective upon recordation, unless a later effective date is
specified in the amendment. No provision of these By-Laws which
reserves or grants special rights to the Declarant shall be amended
without the Declarant's prior written consent so long as the
Declarant owns any property in the Community, or subject to
annexation to the Community, primarily for development and/or sale.
Notwithstanding the above, VA and HUD shall have the right to
veto amendments to these By-Laws for as long as the Declarant has
the right to appoint directors and officers of the Association
under Article III, Section 2 of these By-Laws.
Page 11
EXHIBIT "B"
ProDerty Submitted
cyrespo, iht/cypress, coy