PreserveDECLARATION OF PROTECTIVE COVENANTS FOR
THE PRESERVE
HYATT & RHOADS, P.C.
Attorneys
2400 Marquis One Tower
Atlanta, Georgia 30303
(404) 659-6600
1275 K Street, N.W.
Washington, D.C. 20006
(202) 488-4418
1330 Wells Fargo Bank Building
101 W. Broadway
San Diego, California 92101
(619) 232-0811
- TABLE OF CONTENTS
Article
II.
III.
IV.
VI.
Section PaGe
I. DEFINITIONS 1
PROPERTY SUBJECT TO THIS DECLARATION
1. Property Hereby Subjected
To This Declaration ........................ 2
2. Other Property ............................. 2
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS
1. Membership ................................. 2
2. Voting ..................................... 2
ASSESSMENTS 3
1. Purpose of Assessment ...................... 3
2. Creation of the Lien and Personal
Obligation for Assessments ................. 3
3. Computation ................................ 4
4. Special Assessments ........................ 4
5. Lien for Assessments ....................... 5
6. Effect of Nonpayment of Assessments:
Remedies of the Association ................ 5
7. Date of Commencement of Annual
Assessments ................................ 6
8. Assessment Obligation of Declarant ......... 6
9. Specific Assessments ....................... 7
MAINTENANCE 8
1. Association's Responsibility ............... 8
2. Owner's Responsibility ..................... 8
3. Party Walls and Party Fences ............... 9
USE RESTRICTIONS AND RULES
l0
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
General ..........
Use of Lots ......
Signs ............
Vehicles .........
Leasing ..........
Occupants Bound..
Animals and Pets.
................... 10
................... l0
· .................. 11
................... 11
................... 11
................... 11
Nuisance ................................. 11
Unsightly or Unkempt Conditions 12
Architectural Standards ................... 12
Antennas .................................. 13
Gardens, Basketball Goals, Etc ............ 13
Tree Removal .............................. 13
Article
VII .
VIII.
IX.
XI.
XII.
Section
Paae
14. Lighting .................................. 13
15. Drainage .................................. 14
16. Sight Distance at Intersections ........... 14
17.
18
19
20
21
22
23
24
25
Clotheslines, Garbage Cans, Woodpiles,
Etc ............................
Subdivision of Lot .......
Guns .....................
Solar Devices ............
Fences ...................
Exterior Colors ..........
Mailboxes ................
Detached Structures
Entry Features and street'Signs.'--' -
.... 14
.... 14
.... 14
.... 14
.... 15
.... 15
.... 15
.... 15
........ 15
INSURANCE AND CASUALTY LOSSES
15
1. Insurance ................................. 15
2. Damage and Destruction -
Common Property ........................... 18
3. Damage and Destruction -- Lots ............ 19
CONDEMNATION
19
ANNEXATION OF ADDITIONAL PROPERTY
2O
1. Unilateral Annexation By Declarant ........ 20
2. Other Annexation .......................... 21
MORTGAGEE PROVISIONS
21
Notices of Action ......................... 21
Special FHLMC Provision ................... 22
2.
3. No Priority ............................
4. Notice to Association ..................
5. Amendments by Board ....................
6. VA/HUD Approval ........................
7. Applicability of Article X .............
8. Failure of Mortgagee to Respond ........
23
23
23
23
23
24
EASEMENTS
24
1. Easements for Encroachment and Overhang...24
2. Easements for Use and Enjoyment ........... 24
3. Easements for Utilities ................... 25
GENERAL PROVISIONS
26
1. Enforcement ............................... 26
2. Self-Help ................................. 26
3. Duration .................................. 27
4. Amendment ................................. 27
5. Partition ................................. 28
Article
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
Pa~e
Gender and Grammar ........................ 28
Severability .............................. 28
Captions .................................. 28
Preparer .................................. 29
Conveyances of Common Property ............ 29
Perpetuities .............................. 29
Indemnification ..............
Litigation ...................
Construction and Sale Period.
Books and Records ............
Financial Statements .........
Notice of Sale or Lease ......
Agreements ...................
Variances ....................
........... 29
.......... 29
.......... 30
.......... 31
.......... 32
.......... 32
.......... 33
.......... 33
DECLARATION OF PROTECTIVE COVENANTS
FOR
THE PRESERVE
THIS DECLARATION is made on the date hereinafter set
forth by John Wieland Homes, Inc., a Georgia corporation,
(hereinafter sometimes called NDeclarant#).
BACKGROUND STATEMENT
Declarant desires to subject the 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 Declaration.
Declarant is the owner (or if not the owner Declarant
has obtained the written consent of the owner to subject such
owner's property to this Declaration) of the real property
described in Article II, Section 1, of this Declaration.
NOW, THEREFORE, Declarant hereby declares that the
real property described in Article II, Section 1, 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 respective heirs, legal representatives,
successors, successors-in-title, and assigns and shall inure to
the benefit of each and every owner of all or any portion
thereof.
Article I
Unless the context shall prohibit, certain words used
in this Declaration shall have the definitional meaning set
forth in Exhibit NAN, attached hereto and by reference made a
part hereof.
Article II
Property Subiect 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 Property. Only the real property
described in Section 1 of this Article II is hereby made
subject to this Declaration; provided, however, by one Dr more
amendments to this Declaration, 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 Membership and Votina Riahts
Section 1. Membership. Every Person who is the record
owner of a fee or undivided fee interest in any Lot that is
subject to this Declaration shall 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 Lot. In the event of multiple Owners of a Lot,
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
Lot. The rights and privileges of 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 Lot owned.
Section 2. Voting. Members shall be entitled to one
(1) vote for each Lot owned. When more than one Person holds
an ownership interest in any Lot, the vote for such Lot shall
be exercised as those Owners themselves determine and advise
the Secretary prior to any meeting. In the absence of such
advice, the Lot's vote shall be suspended in the event more
than one Person seeks to exercise it.
-2-
Article IV
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 Lots,
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 Persona]
Obligation for Assessments. Each Owner of any Lot, by
acceptance of a deed therefor, whether or not it shall be so
expressed in such deed, covenants and agrees to pay to the
Association: (a) annual assessments or charges; (b) special
assessments, such assessments to be established and collected
as hereinafter provided; and (c) specific assessments against
any particular Lot 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 rate permitted by law (not
to exceed sixteen (16%) percent), costs, and reasonable
attorney's fees actually incurred, shall be a charge on the
land and shall be a continuing lien upon the Lot 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 Lot 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 Lot, 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
liability of a grantee for the unpaid assessments of its
grantor shall not apply to any first Mortgage holder taking
title through foreclosure proceedings or deed in lieu of
foreclosure.
Assessments shall be paid at a uniform rate per Lot.
Installments of the annual assessment shall be paid in such
manner and on such dates as may be fixed by the board of
directors, which may include, without limitation, acceleration,
upon ten (10) days' written notice, of the annual assessment for
delinquents.
-3-
The monthly costs of operating the Association may
fluctuate dramatically during each budget year. Therefore, the
board is not required to pro-rate the annual assessment
obligation of any Owner who has not lived in the Community for
a full year. For example, since the bulk of the costs of
operating the Association are likely to be incurred in the
summer months, any Owner moving into the Community after the
beginning of the budget year but prior to the summer months may
be required to pay a full annual assessment.
Section 3. ComDutatioB. It shall be the duty of the
board to prepare a budget covering the estimated yearly (or
shorter period with respect to the initial budget) costs of
operating the Association, which shall include a capital
contribution or reserve in accordance with a capital budget
separately prepared. The board shall determine the assessment
to be levied against each Lot for the upcoming budget period
and shall cause an assessment notice to be delivered to each
member at least thirty (30) days prior to the end of the
current fiscal year (or at least thirty (30) days prior to the
due date of the first installment payment in the case of the
initial budget). The assessment shall become effective unless
disapproved at a meeting by a Majority of the Owners and, so
long as the Declarant has an option unilaterally to subject
additional property to this Declaration as provided in Article
IX hereof, the Declarant. Notwithstanding the foregoing,
however, if the proposed assessment is disapproved or the board
fails for any reason so to determine the assessment for the
succeeding year, then and until such time as an assessment
shall have been determined, as provided herein, the assessment
in effect for the then current year shall continue for the
succeeding year.
Section 4. Special Assessments. In addition to the
other assessments authorized herein, the Association may levy
special assessments in any year. So long as the total amount
of special assessments allocable to each Lot 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 Lot to exceed this limitation shall be
effective only if approved by a Majority of the Owners and, so
long as the Declarant has an option unilaterally to subject
additional property to this Declaration as provided in Article
IX hereof, the Declarant. Special assessments shall be paid as
determined by the board, and the board may permit special
assessments to be paid in installments extending beyond the
fiscal year in which the special assessment is imposed.
-4-
Section 5. Lien for Assessments. All sums assessed
against any Lot 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 Lot in favor of the Association. Such lien shall
be superior to all other liens and encumbrances on such Lot,
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 the county where the
Community is located 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
any Lot after this Declaration shall have been recorded in such
records shall be deemed to consent that such liens or
encumbrances shall be inferior to future liens for assessments,
as provided herein, whether or not prior consent is
specifically set forth in the instruments creating such liens
or encumbrances.
Section 6. Effect of Nonpayment of Assessments:
Remedies 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 rate permitted by law (but not to
exceed sixteen (16%) percent), 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 Lot
at any foreclosure sale or to acquire, hold, lease, mortgage,
-5-
or convey the same. No Owner may waive or otherwise exempt
himself from liability for the assessments provided for herein,
including, by way of illustration, but not limitation,
abandonment of the Lot. No diminution or abatement of
assessment shall be claimed or allowed by reason of 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, or for inconvenience or
discomfort arising from the making of repairs or improvements
which are the responsibility of the Association, or 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, the obligation to pay assessments
being a separate and independent covenant on the part of each
Owner.
All payments shall be applied first to costs and
attorney's fees, then to late charges, then interest and then
to delinquent assessments.
Section 7. Date of Commencement of Annual Assessments,
Unless a later commencement date is established by the
board, the annual assessments provided for herein shall
commence as to all Lots then existing and subject to assessment
under this Declaration on the first day of the month following
the conveyance of the first Lot by Declarant to a Person other
than Declarant and shall be due and payable in a manner and on
a schedule as the board of directors may provide.
Section 8. Assessment ObliQation of Declarsnt.
(a) After the commencement of assessment payments as
to any Lot, Declarant, on behalf of itself and its successors
and assigns covenants and agrees to pay the full amount of the
assessments provided herein for each.Lot it owns which is
occupied for residential purposes; provided, however, each Lot
owned by Declarant which is not occupied for residential
purposes shall not be subject to any assessment provided for
herein.
(b) Any Lot which has been approved by Declarant for
use as a model home for marketing and sales purposes shall not
be deemed to be occupied for residential purposes and shall not
be subject to assessments under this Declaration whether owned
by Declarant or any other Person, so long as such Lot is
approved for use as a model home and is not occupied for
residential purposes.
-6-
(c) Notwithstanding anything to the contrary herein,
the Declarant may contribute assessments due from it 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 supply 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.
(d) For so long as the Declarant has the authority to
appoint the directors and officers of the Association,
Declarant may: (i) advance funds to the Association sufficient
to satisfy the deficit, if any, between the actual operating
expenses of the Association (but specifically not including an
allocation for capital reserves) and the sum of the annual,
special and specific assessments collected by the Association
in any fiscal year, and such advances shall be evidenced by
promissory notes from the Association in favor of the
Declarant; or (ii) cause the Association to borrow such amount
from a commercial lending institution at the then prevailing
rates for such a loan in the local area of the Community. The
Declarant in its sole discretion may guarantee repayment of
such loan, if required by the lending institution, but no
Mortgage secured by the Common Property or any of the
improvements maintained by the Association shall be given in
connection with such loan.
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 authority under this Section in
the future with respect to any expenses, including an expense
-7-
for which the board has not previously exercised its authority
under this Section. The board may specifically assess Lots for
the following Association expenses, except for expenses
incurred for maintenance and repair of items which are the
maintenance responsibility of the Association as provided
herein:
(a) Expenses of the Association which benefit less
than all of the Lots may be specifically assessed equitably
among all of the Lots which are benefitted according to the
benefit received.
(b) Expenses of the Association which benefit all
Lots, but which do not provide an equal benefit to all Lots,
may be assessed equitably among all Lots 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. The Association shall maintain all entry
features for the Community and all street signs originally
installed by Declarant. The Association shall also maintain
all property outside of Lots located within the Community which
was originally maintained by Declarant.
In addition, the Association shall have the right, but
not the obligation, to maintain property not owned by the
Association where the board has determined that such
maintenance would benefit all Owners.
The foregoing maintenance shall be performed
consistent with the Community-Wide Standard.
Section 2. Owner's Responsibility. Ail maintenance
of the Lot and all structures, parking areas, and other
improvements thereon shall be the sole responsibility of the
Owner thereof, who shall maintain such Lot in a manner
consistent with the Community-Wide Standard and this
Declaration. 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
-8-
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 the 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 Lot.
Section 3. Party Walls and Party Fences.
(a) General Rules of Law to Apply. Each wall or
fence built as a part of the original construction of the Lots
which shall serve and separate any two (2) adjoining Lots shall
constitute a party wall or fence 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) Sharina of Repair and Maintenance. The cost of
reasonable repair and maintenance of a party wall or fence
shall be shared by the Owners who make use of the wall or fence
in equal proportions.
(c) Damaae and Destructiop. If a party wall or fence
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 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 acts or omissions.
-9-
(d) Riaht to Contribution Runs With Land. The right
of any Owner to contribution from any other Owner under this
Section shall be appurtenant to the land and shall pass to such
Owner's successors-in-title.
(e) ~. In the event of any dispute arising
concerning a party wall or fence, or under the provisions of
this Section, each party shall appoint one (1) arbitrator.
Should 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 Lots 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 board shall also have the
authority to impose all other necessary traffic and parking
regulations and 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 Owners holding a Majority of
the total votes in the Association and by the vote of the
Declarant, so long as the Declarant has an option unilaterally
to subject additional property to this Declaration as provided
in Article IX hereof.
Section 2. ~. Ail Lots shall be used for
single-family residential purposes exclusively. No business or
business activity shall be carried on or upon any Lot at any
time except with the written approval of the board. Leasing of
a Lot shall not be considered a business or business activity.
Section 3. Sians. No sign of any kind shall be
erected by an Owner within the Community without the written
-10-
consent of the board except (a) such signs as may be required
by legal proceedings; and (b) not more than one "For Sale' sign
consistent with the Community-Wide Standard, having a maximum
area of four square feet. The board shall have the right to
erect reasonable and appropriate signs.
Section 4. ~. Vehicles shall not be parked on
any subdivision street. Vehicles shall not be parked on any
portion of a Lot other than the driveway and the garage.
Vehicles shall not be parked so as to be visible from the
street or any Lot for periods of more than twenty-four (24)
continuous hours. The term 'vehicles," as used herein, shall
include, without limitation, motor homes, boats, trailers,
motorcycles, scooters, trucks, campers, buses, and automobiles.
Section 5. ~. Lots may be leased for
residential purposes.
Section 6. Occupants BouDd. All provisions of the
Declaration and of any rules and regulations or use
restrictions promulgated pursuant thereto which govern the
conduct of Owners and which provide for sanctions against
Owners shall also apply to all occupants of any Lot.
Section 7. Animals and Pets. No animals, livestock,
or poultry of any kind may be raised, bred, kept, or permitted
on any Lot, with the exception of dogs, cats, or other usual
and common household pets in reasonable number, as determined
by the board; provided, however, those pets which are permitted
to roam free, or, in the sole discretion of the board, endanger
the health, make objectionable noise, or constitute a nuisance
or inconvenience to the Owners of other Lots or the owner of
any property located adjacent to the Community may be removed
by the board. No pets shall be kept, bred or maintained for
any commercial purpose. Dogs which are household pets shall at
all times whenever they are outside a Lot be confined on a
leash. Without prejudice to the board's right to remove any
such household pets, no household pet that has caused damage or
injury may be walked in the Community.
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 Lot.
No Lot shall be used, in whole or in part, for the storage of
any property or thing that will cause such Lot to appear to be
in an unclean or untidy condition or that will be obnoxious to
the eye; nor shall any substance, thing, or material be kept
-ll-
upon any Lot that will emit foul or obnoxious odors or that
will cause any noise or other condition that will or might
disturb the peace, quiet, safety, comfort, or serenity of the
occupants of surrounding property. No noxious or offensive
activity shall be carried on upon any Lot, nor shall anything
be done thereon tending to cause embarrassment, discomfort,
annoyance, or nuisance to any person using any property
adjacent to the Lot. There shall not be maintained any
landscaping, plants, animals, devices or thing of any sort
whose activities or existence in any way is, in the sole
discretion of the board, noxious, dangerous, unsightly,
unpleasant, or of a nature as may diminish or destroy the
enjoyment of the Community.
Section 9. Unsiahtlv or Unkempt Cond~Qns. The
pursuit of hobbies or other activities, including specifically,
without limiting the generality of the foregoing, the assembly
and disassembly of motor vehicles and other mechanical devices,
which might tend to cause disorderly, unsightly, or unkempt
conditions, shall not be pursued or undertaken in any part of
the Community.
Section 10. Architectural Standards. No exterior
construction, alteration, addition, or structure of any nature
whatsoever (including, without limitation, fences, pools,
tennis courts, exterior lighting, treehouses and play
equipment) shall be commenced or placed upon any part of the
Community, except such as is installed by the Declarant, or as
is approved in accordance with this Section, or as is otherwise
expressly permitted herein. No exterior construction,
addition, structure, 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 arbiter 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 designee or the representatives
thereof shall have the right, during reasonable hours, to enter
upon any Lot to inspect any Lot 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
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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 the 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. All activities commenced pursuant to plans and
specifications which have been deemed approved shall be
consistent with such plans and specifications.
Section 11. Antennas. No exterior antennas of any
kind shall be placed, allowed, or maintained upon any portion
of the Community, including any Lot, without the prior written
consent of the board or its designee. The board reserves the
right to (but shall not be obligated to) erect a master
antenna, satellite dish or other similar master system for the
benefit of the Community as a whole.
Section 12. Gardens, Basketball Goals, Etc. Grass,
ornamental plants and shrubbery (and only the foregoing) may be
planted in the front or side yard of any Lot. All other
planting in the front or side yard may be done only with prior
written approval of the board or its designee or in accordance
with the guidelines previously established by the board or its
designee. Overseeding of fescue lawns and sodding of lawns
with Bermuda or zoysia grasses shall not require prior approval
pursuant to this Section. No vegetable garden, hammocks,
statuary, or recreational equipment may be placed, erected,
allowed or maintained upon the front or side yard of any Lot
without the prior written consent of the board or its
designee. This provision shall not, however, apply to
basketball goals. Basketball goals may be installed after the
type and location has been previously approved in writing by
the board or its designee.
Section 13. Tree Removal. No trees which are left on
the Lot at closing shall be removed without the express consent
of the board or its designee, except for (a) diseased or dead
trees; and (b) trees needing to be removed to promote the
growth of other trees.
Section 14. ~. Notwithstanding Article VI,
Section 10 above, the following exterior lighting may be
installed without the necessity of obtaining the prior approval
of the board or its designee: (a) seasonal decorative lights
during the Christmas season; (b) illumination of other than the
front or side yards of a Lot; (c) illumination of a model home
and entrance features constructed by the Declarant; and (d)
-13-
other lighting installed by the Declarant. Plans for all other
exterior lighting must be submitted and approved in acCordaDce
with Art{cle VI, Section 10. Only decorative post lights in
conformity with established street lighting shall be approved.
Section 15. P_/~. Catch basins and drainage
areas are for the purpose of natural flow of water only. No
obstructions or debris shall be placed in these areas. NO
Owner of any Lot may obstruct or rechannel the drainage flows
after installation of drainage ~wales, storm sewers, or storm
drsfns are located. Pec~srant reserves the right to prepare
slopin~ banks, cut or fill, on a three (3) to one (1) slope on
Section 16. SiQht Distance ~_~ Intersections. All
Lots at street intersections sh~ll be so landscaped as to
permit safe sight across the street corners. No fence,
he,ge, Or shrub plant,n9 shall be placed or permitted to remain
at the corner of s Lot where this would create a traffic or
sight problem.
Section 17. Clotheslines. Garbage Cang. ~oodpiles~
Etc. All clotheslines, garbage cans, woodpiles, and other
similar items shall be located or screened so as to be
concealed from view of neighboring LOTS, streets, and p~operty
located adjacent to the Lot. All rubbish, trash, and garbage
shall be regularly removed from the Lot and shall not be
allowed to a=cumulate thereon. Declarant, however, hereby
expressly reserves the right to dump and bu~y construction
debris and trees on Lots as needed for efficient construction.
Section 18. Subdivision of Lot. No Lot shall be
subdivided or its boundary lines changed except with the prior
written approve! of the board or its designee. Declarant,
however, hereby e~pressly ~ese~ves the right to repl~t any Lot
or Lots. Any such division, boundary line change, or
replatting shall not be in violation of the applicable
subdivision and zoning regulations.
Section 19. Guns. The use of firearms in the
Com~unfty is prohibited. The term 'firearms" includes
guns, pellet guns, ~nd small firearms of all types.
Section Z0. ~L~. No artificial or manmad~
device which is designed or used for collection of or heating
by solar energy o~ other similar purposes shall be placed,
allowed, or maintained upon any port,on of the Community,
including any Lot, without the prior written consent of the
board or its designee.
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Section 21. ~. No fence or fencing type barrier
of any kind ~hall be placed, erected, allowed, or maintained
upon any portion of the Community, includ~ng Shy Lot, without
the pr{nv ~rl~n consent of the board or its designee. The
board or Its deszgnee-ma~ issue guidelines detai:ing acceptable
fence styles or specifications, but in no event may a chain
link fence of any kind visible from any street be approved.
Section 22. E~terior ColorB. The exterior of all
improvements, including, without limitation, residences,
constructed, erected, allowed, or malntslned upon any Lot must
be pslnted or repalnted in a color used by Declarant ~n the
original construction and marketing of residences within the
Community or in s color used by John Wleland Homes, Inc., in
the original construction and marketing of residences in any
subdivision located within the same county as the Co~nunity.
Section 23. Mailboxes. All mailboxes and mailbox
posts shall be of the same type and color es that originally
installed by the Declarant.
Section 24. Detached Structures. No detached metal
structure shall be placed, erected, allowed, or maintained upon
any Lot.
Seotion 25. Entry Features and Street Sions. Owners
shall not alter, remove or add improvements to any entry
features or street signs constructed by the Declarant on any
Lot, or any part of any easement ares associated therewith
without the prior written consent of the board or its designee.
Article V3!
Insuxance and Casualty Losses
Seotion 1. ~. The Association's board of
directors or its duly authorized agent shall have the authority
to and sha~! obtain insurance for all insurable improvements
located on the Common Property or required to be ma~ntalned by
the Association under Article V, Section 1 hereof. 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 cover the full
replacement cost of any repair or reconstruction in the event
of damage or destruction from any such hazard. Alternstlvely,
the board m~y purchase "all-risk" coverage in like amounts.
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TOTAL P. 03
;': -"~ ¢.F :~ i.'- A'..: F:3
If available at reasonable cost, as determined in the
sole discretion of the board, the board shall obtain a public
liability policy applicable to the Common Property insuring the
Association and its members for all damage or injury caused by
the negligence of the Association or any of its members or
agents. The public liability policy shall have a combined
single limit of at least One Million ($1,000,000.00) Dollars.
If available at reasonable cost, as determined in the sole
discretion of the board, the board shall also obtain directors'
and officers' liability insurance. The board is hereby
authorized to contract with or otherwise arrange to obtain the
insurance coverage required hereunder through the Declarant and
to reimburse Declarant for the cost thereof, and Declarant
shall be authorized, but not obligated, to purchase such
insurance coverage for the benefit of the Association and the
Owners upon Declarant and Association agreeing upon the terms
and conditions applicable to reimbursement by the Association
for costs incurred by Declarant in obtaining such coverage.
Notwithstanding anything contained in this Declaration to the
contrary, the board shall not be required to comply with the
provisions of this Article if the board has contracted for or
otherwise arranged to obtain the required insurance coverage
through the Declarant.
Premiums for all insurance shall be common expenses of
the Association. The policies may contain a reasonable
deductible, and the amount thereof shall not be subtracted from
the face amount of the policy in determining whether the
insurance at least equals the full replacement cost.
Ail 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
authorized to do business in Georgia.
(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 having 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
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hereunder be brought into 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 county where the Community is located.
(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, subjected
to nonrenewal, invalidated, or suspended on account of any one
or more individual Owners;
(iv) that no policy may be cancelled, subjected
to nonrenewal, 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, subjected
to nonrenewal, or substantially modified without at least ten
(10) days' prior written notice to the Association.
In addition to other insurance coverage required by
this Section, the board shall obtain workers compensation
insurance, if and to the extent necessary to satisfy the
requirements of applicable law, and, if available at reasonable
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cost, as determined in the sole discretion of the board, a
fidelity bond or employees dishonesty coverage covering
directors, officers, employees, and other persons handling or
responsible for the Association's funds. The amount of
fidelity or employees dishonesty coverage, if obtained, shall
be determined in the directors' best business judgment. Such
coverage, if obtained, shall contain a waiver of all defenses
based upon the exclusion of persons serving without
compensation and shall not be subject to cancellation,
nonrenewal or substantial modification without at least ten
(10) days' prior written notice to the Association. The
Association shall also obtain construction code endorsements,
steam boiler coverage, and flood insurance, if and to the
extent necessary to satisfy the requirements of The Mortgage
Corporation or the Federal National Mortgage Association.
Section 2. Damaae and Destruction -- Common ?roPertv.
(a) In General. Immediately after the damage or
destruction by fire or other casualty to all or any portion of
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. Repair or reconstruction,
as used in this Section, means repairing or restoring the
property to substantially the same condition and location that
existed prior to the fire or other casualty allowing for any
changes or improvements necessary to comply with applicable
building codes. The board of directors shall have all
enforcement powers specified in Article XII, Section 1, of this
Declaration necessary to enforce this provision.
(b) Repair and Reconstruction. Any damage or
destruction to property required to be covered by insurance
written in the name of the Association shall be repaired or
reconstructed unless, within sixty (60) days after the
casualty, at least seventy-five (75%) percent of the Owners and
the Declarant, so long as the Declarant has an option
unilaterally to subject additional property to this Declaration
as provided in Article IX hereof, otherwise agree. If for any
reason either the amount of the insurance proceeds to be paid
as a result of such damage or destruction, or reliable and
detailed estimates of the cost of repair or reconstruction, or
both, are not made available to the Association within such
period, then the period shall be extended until such
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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 damage or destruction for which the insurance
proceeds are paid is to be repaired or reconstructed and such
proceeds are not sufficient to defray the cost thereof, the
board of directors shall, without the necessity of a vote of
the Association's members, levy a special assessment against
all Owners in proportion to the number of Lots 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 the benefit of the Association.
In the event that it should be determined by the
Association in the manner described above that the damage or
destruction shall not be repaired or reconstructed and no
alternative improvements are authorized, then and in that event
the property shall be restored to its natural state and
maintained as an undeveloped portion of the Community by the
Association in a neat and attractive condition.
Section 3. Damage and Destruction -- Lots. The
damage or destruction by fire or other casualty to all or any
portion of any improvement on a Lot shall be repaired by the
Owner thereof within seventy-five (75) days after such damage
or destruction or, where repairs cannot be completed within
seventy-five (75) days, they shall be commenced within such
period and shall be completed within a reasonable time
thereafter. Alternatively, the Owner may elect to demolish all
improvements on the Lot and remove all debris therefrom within
seventy-five (75) days after such damage or destruction. In
the event of noncompliance with this provision, the board of
directors shall have all enforcement powers specified in
Article XII, Section 1, of this Declaration.
Article VIII
Whenever all or any part of the Common Property shall
be taken (or conveyed in lieu of and under threat of
condemnation by the board, acting on its behalf or on the
written direction of all owners of Lots subject to the taking,
-19-
if any) by any authority having the power of condemnation or
eminent domain, the Association shall represent the Owners.
The award made for such taking shall be payable to the
Association as trustee for all Owners. The provisions of
Article VII, Section 2, above, applicable to Common Property
improvements damage or destruction, shall govern replacement or
restoration and the actions to be taken in the event that the
improvements are not restored or replaced.
Article IX
Annexation of Additional Property
Section 1. Unilateral Annexation By Declarant.
(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 option from time to time at
any time until five (5) years after the recording of this
Declaration ~ or any portion of the real property
described in-Exhibit #C', attached hereto and by reference made
a part hereof 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 the county in
which the property to be annexed is located an amendment t_~o
this Declaration describing the property being annexed. Any
~6ch annexation shall be effective upon the filing for record
of such amendment to this Declaration unless a later effective
date is provided therein. As long as covenants applicable to
the real property previously subjected to this Declaration are
not changed and as long as rights of then Owners are not
adversely affected, the Declarant may unilaterally amend this
Declaration to reflect the different character of any such
annexed real property.
(b) The rights reserved unto Declarant ~o subject
~dition~ lan~ 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 reserved rights shall not impose any obligation on
Declarant to impose any covenants and restrictions similar to
those contained herein upon such additional land nor 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.
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Section 2. Other Annexation. Subject to the consent
of the Owner thereof, the consent of the Declarant, so long as
the Declarant has an option to subject additional property to
this Declaration as provided above, and upon the affirmative
vote or written consent of Owners representing two-thirds (2/3)
of the total Association vote, the Association may annex 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 the county in
which the property to be annexed is located an amendment to
this Declaration describing the property being annexed. Any
such amendment to this 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 amendment to this Declaration, unless a later effective
date is provided therein.
Article X
Mortaaaee Provisions
The following provisions are for the benefit of
holders of first Mortgages on Lots in the Community. The
provisions of this Article apply to both this Declaration and
to the By-Laws, notwithstanding any other provisions contained
therein.
Section 1. Notices of Action. An institutional
holder, insurer, or guarantor of a first Mortgage who provides
written request to the Association (such request to state the
name and address of such holder, insurer, or guarantor and the
Lot 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 the Community or which affects
any Lot on which there is a first Mortgage held, insured, or
guaranteed by such eligible holder;
(b) any delinquency in the payment of assessments or
charges owed by an Owner of a Lot 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 Lot of any
obligation under the Declaration or By-Laws of the Association
which is not cured within sixty (60) days;
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(c) any lapse, cancellation, or material modification
of any insurance policy maintained by the Association; or
(d) any proposed action which would require the
consent of a specified percentage of Mortgage holders.
Section 2. Special FHLMC Provision. So long as
required by the Federal Home Loan Mortgage Corporation (The
Mortgage Corporation), 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 give their
consent, the Association shall not:
(a) by act or omission seek to abandon, partition,
subdivide, encumber, sell, or transfer the Common Property
(other than personal property), which the Association owns,
directly or indirectly (The granting of easements for public
utilities or other similar purposes consistent with 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 Lots and of the Common Property (The issuance and amendment
of architectural standards, procedures, rules, and regulations
or use restrictions and the granting of variances with respect
thereto shall not constitute a change, waiver, or abandonment
within the meaning of this subsection.);
(d) fail to maintain insurance, as required by this
Declaration; or
(e) use hazard insurance proceeds received in
connection with any Common Property (other than personal
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.
-22-
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 reimbursement from the Association.
Section 3. ~L~_~. No provision of this
Declaration or the By-Laws gives or shall be construed as
giving any Owner or other party priority over any rights of the
first Mortgagee of any Lot in the case of distribution 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
Lot Owner shall be obligated to furnish to the Association the
name and address of the holder of any Mortgage encumbering such
Owner's Lot.
Section 5. Amendments bY Board. Should the Federal
National Mortgage Association or the Federal Home Loan Mortgage
Corporation 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 Approval. As long as the Declarant
has an option unilaterally to subject property to this
Declaration as provided in Article IX, the following actions
shall require the prior approval of the Veterans Administration
("VA") so long as the VA is guaranteeing any Mortgage in the
Community, and the Department of Housing and Urban Development
("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 with Article
IX, Section 1 hereof pursuant to a plan of annexation
previously approved by the VA and HUD; dedication of Common
Property to any public entity; and material amendment of the
Declaration, By-Laws or Articles of Incorporation.
Section 7. Applicability of 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.
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Section 8. Failure of MortQa~ee 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
Section 1. Easements for Encroachment and Overhann.
There shall be reciprocal appurtenant easements for
encroachment and overhang as between each Lot and such portion
or portions of the Common Property adjacent thereto or as
between adjacent Lots 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 Lot and the adjacent portion of the Common Property or as
between adjacent Lots, 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.
Section 2. Easements for Use and Enjoyment.
(a) Every Owner of a Lot 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 Lot, 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, to limit the number of guests of Lot
Owners and tenants who may use the Common Property, and to
provide for the exclusive use and enjoyment of specific
portions thereof at certain designated times by an Owner, his
family, tenants, guests, and invitees;
(ii) the right of the Association to suspend the
voting rights of a Lot 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 Lot which is
hereby provided for remains unpaid; and, for a reasonable
period of time for an infraction of the Declaration, By-Laws,
or rules and regulations;
-24-
(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,
interests, options, easements and privileges herein reserved or
established for the benefit of Declarant, or any Lot or Lot
Owner, or the holder of any Mortgage, irrespective of when
executed, given by Declarant or any Lot Owner encumbering any
Lot 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 Lot or Lot Owner, or the holder of
any Mortgage, irrespective of when executed, given by Declarant
or any Lot Owner encumbering any Lot or other property located
within the Community.); 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 is
approved by the affirmative vote of at least two-thirds (2/3)
of the total Association vote (other than votes of Declarant so
long as Declarant has the right to appoint and remove the
directors of the Association) and the consent of Declarant so
long as the Declarant has the right to appoint and remove the
directors of the Association.
(b) Any Lot Owner may delegate his or her right 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 such Owner's Lot if leased.
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
-25-
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.
Article XII
General Provisions
Section 1. Enforcement. Each Owner and every
occupant of a Lot 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 set forth in this
Declaration and in the deed to his or her Lot, if any. The
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. ~. In addition to any other
remedies provided for herein, the Association or its duly
authorized agent shall have the power to enter upon a Lot or
any portion of the Common Property to abate or remove, using
such force as may be reasonably necessary, any structure, thing
or condition which violates this Declaration, the By-Laws, the
rules and regulations, or the use restrictions. Unless an
emergency situation exists, the board shall give the violating
Lot Owner ten (10) days' written notice of its intent to
exercise self-help. All costs of self-help, including
reasonable attorney's fees actually incurred shall be assessed
against the violating Lot Owner and shall be collected as
provided for herein for the collection of assessments.
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Section 3. ~. The covenants and restrictions
of this Declaration shall run with and bind the Community, and
shall inure to the benefit of and shall be enforceable by the
Association or any Owner, their respective legal representa-
tives, heirs, successors, and assigns, perpetually to the
extent permitted by law; provided, however, so long as Georgia
law limits the period during which covenants restricting lands
to certain uses may run, any provision of this Declaration
affected thereby shall run with and bind the land so long as
permitted by such law, after which time any such provisions
shall be automatically extended for successive (10) years,
unless such extension is disapproved by at least a Majority of
the total Association vote and, so long as the Declarant has an
option unilaterally to subject additional property to this
Declaration as provided in Article IX hereof, the consent of
Declarant. A written instrument reflecting disapproval must be
recorded within the year immediately preceding the beginning of
a ten (10) year renewal period. Every purchaser or grantee of
any interest in any real property subject to this Declaration,
by acceptance of a deed or other conveyance therefor, thereby
agrees that such provisions of this Declaration may be extended
and renewed as provided in this Section.
Section 4. Amendment. This Declaration may be amended
unilaterally 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) if such amendment is necessary to
enable any reputable title insurance company to issue title
insurance coverage with respect to the Lots subject to this
Declaration; (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 Lots 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 Lots subject to this Declaration; provided, however, any
such amendment shall not adversely affect the title to any
Owner's Lot unless any such Lot Owner shall consent thereto in
writing. Further, so long as Declarant has the right
unilaterally to subject additional property to this Declaration
as provided in Article IX hereof, Declarant may unilaterally
amend this Declaration for any other purpose; provided,
however, any such amendment shall not materially and adversely
-27-
affect the substantive rights of any Lot Owner hereunder, nor
shall it adversely affect title to any Lot without the consent
of the affected Lot Owner.
In addition to the above, this Declaration may be
amended upon the affirmative vote or written consent, or any
combination thereof, of Owners representing two-thirds (2/3) of
the total Association vote and the consent of the Declarant, so
long as the Declarant has an option unilaterally to subject
additional property to this Declaration as provided in Article
IX hereof. Amendments to this Declaration shall become
effective upon recordation, unless a later effective date is
specified therein. No provision of this Declaration which
reserves or grants special rights to the Declarant shall be
amended without the prior written consent of the Declarant so
long as the Declarant owns any property primarily for
development and/or sale in the Community or subject to
annexation by the Declarant to the Community.
Section 5. Partition. The Common Property shall
remain undivided, and no Lot 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 Lots located within the Community.
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. Severabilit¥. Whenever possible, each
provision of this Declaration shall be interpreted in such
manner as to be effective and valid, but if the application of
any provision of this Declaration to any person or to any
property shall be prohibited or held invalid, such prohibition
or invalidity shall not affect any other provision or the
application of any provision which can be given effect without
the invalid provision or application, and, to this end, the
provisions of this Declaration are declared to be severable.
Section 8. Captions. The captions of each Article
and Section hereof, as to the contents of each Article and
Section, are inserted only for convenience and are in no way to
be construed as defining, limiting, extending, or otherwise
modifying or adding to the particular Article or Section to
which they refer.
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Section 9. Preparer. This Declaration was prepared by
Richard A. Bacon, Hyatt & Rhoads, P.C., 2400 Marquis One Tower,
245 Peachtree Center Avenue, N.E., Atlanta, Georgia 30303.
Section 10. ConveYances of Common PropertY. The
Association shall accept such conveyances of Common Property as
are made from time to time to the Association by Declarant.
Section 11. ~9~. If any of the covenants,
conditions, restrictions, or other provisions of this
Declaration shall be unlawful, void, or voidable for violation
of the rule against perpetuities, then such provisions shall
continue only until twenty-one (21) years after the death of
the last survivor of the now living descendants of Elizabeth
II, Queen of England.
Section 12. Indemnification. In accordance with the
Georgia Nonprofit Corporation Code, and to the full extent
allowed by Georgia law, and in accordance with the provisions
contained therein, 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 than 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. Such
indemnity shall include 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
hereunder shall be made by the Association only as authorized
in a specific case upon a determination that indemnification of
the person is proper under the circumstances.
Section 13. Litiaation. No judicial or
administrative proceeding shall be commenced or prosecuted by
the Association unless approved by at least seventy-five (75%)
percent of the total Association vote. This Section shall not
apply, however, to (a) actions brought by the Association to
enforce the provisions of this Declaration (including, without
limitation, the foreclosure of liens), (b) the imposition and
collection of assessments as provided in Article IV hereof, (c)
proceedings involving challenges to ad valorem taxation, or (d)
counterclaims brought by the Association in proceedings
-29-
instituted against it. This Section shall not be amended
unless such amendment is made by the Declarant pursuant to
Article XII, Section 4, hereof, or is approved by the
percentage votes, and pursuant to the same procedures,
necessary to institute proceedings as provided above.
Section 14. Construction and Sale Period.
Notwithstanding any provisions contained in this Declaration,
the By-Laws, Articles of Incorporation, rules and regulations,
use restrictions, and any amendments to any of the foregoing,
the 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 the Declarant, its successors, and assigns over,
under, in, and/or on the Community, without obligation and
without charge to the Declarant, for the purposes of taking all
actions related to or connected with construction,
installation, relocation, development, sale, maintenance,
repair, or replacement in the Community and any other property
now owned or which may in the future be owned by the Declarant,
(such other property is hereinafter referred to as "Additional
Property"). The reserved easement shall constitute a burden on
the title to the Community 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 streets, 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 payable to the Association
or any Owner 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;
(b) the right to use (continually or from time to
time) without charge any clubhouse or similar structure and
appurtenant recreational facilities constructed by the
Declarant in the Community for business purposes or company
functions of the Declarant and any similar use, including but
not limited to, sales and marketing meetings, offices for
Declarant's sales or other employees and agents, a design
studio, and employee parties; and
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(c) the right to construct, install, replace,
relocate, maintain, repair, use, and enjoy signs, model
residences, and sales offices in the Community.
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 surrendered, conveyed, or released unless and
until and except by delivery of a quitclaim deed from the
Declarant releasing such right, privilege, or easement by
express reference thereto.
If these reserved easements are exercised without
annexing any Additional Property to the Community, the Owners
of the affected Additional Property shall share the costs, if
any, of using and maintaining utility and similar facilities,
including, without limitation, electrical, telephone, natural
gas, water, sewer, and drainage lines and facilities with the
Owners in the Community in the proportion that the number of
completed dwellings on the affected Additional Property bears
to the total number of completed dwellings upon the affected
Additional Property and the number of Lots in the Community.
The costs of maintenance and repair of Community streets and
driveways shall likewise be apportioned to the affected
Additional Property if the only means of vehicular access to
the affected Additional Property is across the Community. For
the purposes of this provision, a dwelling on the affected
Additional Property shall be considered completed when a
certificate of occupancy has been granted. The allocation of
expenses and the collection therefor may be done on a monthly,
quarterly, or annual basis as may reasonably be determined by
the Association in accordance with this Declaration. If any of
the Additional Property is added to the Community, from the
time of the annexation, the sharing of costs and expenses and
the use of any property so added shall be governed by this
Declaration, rather than by these reserved easements.
This Section shall not be amended without the prior
written consent of the Declarant so long as the Declarant owns
any property primarily for development and/or sale in the
Community or subject to annexation to the Community.
Section 15. Books and Records.
(a) Inspection by Members and Mortaa~ees. This
Declaration, the By-Laws, copies of rules and use restrictions,
membership register, books of account, and minutes of meetings
-31-
of the members of the board and of committees shall be made
available for inspection and copying by any member of the
Association or by his duly appointed representative and by
holders, insurers, or guarantors 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) notice to be given to the custodian of the
records;
(ii) hours and days of the week when such an
inspection may be made; and
(iii) payment 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 Statements. Financial
statements for the Association shall be compiled annually in
the manner as the board of directors may decide; provided,
however, after having received the board's financial statements
at the annual meeting, the Owners, by a Majority vote, may
require that the financial statements of the Association be
audited as a common expense by a certified public accountant.
Upon written request of any institutional holder of a first
Mortgage and upon payment of all costs associated therewith,
such holder shall be entitled to receive a copy of the audited
financial statements of the Association 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 Lot, the Owner shall give to
the Association, in writing, the name of the purchaser or
lessee of the Lot and such other information as the board may
reasonably require.
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Section 18. ~. Subject to the prior
approval of Declarant, so long as the Declarant has an option
to unilaterally subject additional property to this Declaration
as provided in Article IX above, all agreements and
determinations, including settlement agreements regarding
litigation involving the Association, lawfully authorized by
the board of directors shall be binding upon all Owners, their
heirs, legal representatives, successors, assigns, and others
having an interest in the Community or the privilege of
possession and enjoyment of any part of the Community.
Section 19. ~. Notwithstanding anything to
the contrary contained herein, the board of directors or 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 of the provision in a particular case would not be
inconsistent with the overall scheme of development for the
Community.
IN WITNESS WHEREOF, the undersigned, being the duly
appointed officers of Declarant herein, have executed this
instr_ume..~.t and affixed the corporate seal this ~'-day
of ~, 19 ~.
JOHN WIELAND HOMES, INC.
By:
Title:
Attest:
Title:
Signed2,~ealed, anc]_delivered
this ~ day of ~6c~ , 19~.
in the presence of: /
WITNESS
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EXHIBIT "A"
The following words, when used in this Declaration or
in any amendment thereof (unless the context shall prohibit),
shall have the following meanings:
(a) "Association' shall mean and refer to The
Preserve Community Association, Inc., a nonprofit Georgia
corporation, its successors and assigns.
(b) 'BY-Laws" shall refer to the By-Laws of The
Preserve Community Association, Inc., attached to this
Declaration as Exhibit 'D' and incorporated herein by this
reference.
(c) "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.
(d) '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) of all or any portion of the real property
described in Exhibit "C", attached hereto; and (ii) such
additions thereto as may be made by the Association (as
provided in the Declaration) of other real property.
(e) 'CommunitY-Wide Standard" shall 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. Such
determination, however, must be consistent with the Community-
Wide Standard originally established by the Declarant.
(f) 'Declarant" shall mean and refer to John Wieland
Homes, Inc., a Georgia corporation, and the successors-in-title
and assigns of John Wieland Homes, Inc., provided any such
successor-in-title or assign shall acquire for the purpose of
development or sale all or any portion of the remaining
undeveloped or unsold portions of the real property described
in Exhibit 'B', attached hereto or in Exhibit 'C', attached
the grantor of such conveyance, which grantor shall be the
"Declarant" hereunder at the time of such conveyance; provided,
further, upon such designation of such successor Declarant, all
rights of the former Declarant in and to such status as
"Declarant" hereunder shall cease, it being understood that as
to all of the property described in Exhibit "B", attached
hereto, and in Exhibit 'C', attached hereto, which is now or
hereafter subjected to this Declaration, there shall be only
one person or legal entity entitled to exercise the rights and
powers of the 'Declarant' hereunder at any one point in time.
(g) "Lot' shall mean any plot of land within the
Community, whether or not improvements are constructed thereon,
which constitutes or will constitute, after the construction of
improvements, a single dwelling site as shown on the plat for
the Community, or amendments thereto, recorded in the land
records of the county where the Community is located. The
ownership of each Lot shall include, and there shall pass with
each Lot as an appurtenance thereto, whether or not separately
described, all of the right, title, and interest of an Owner in
the Common Property, which shall include, without limitation,
membership in the Association.
(h) "Maiorit¥" means those eligible votes, Owners, or
other group as the context may indicate totalling more than
fifty (50%) percent of the total eligible number.
(i) 'Mortaage" means any mortgage, deed to secure
debt, and any and all other similar instruments used for the
purpose of conveying or encumbering real property as security
for the payment or satisfaction of an obligation.
(j) "~D_fJ~qaG~" shall mean the holder of a Mortgage.
(k) 'Owner" shall mean and refer to the record owner,
whether one or more Persons, of the fee simple title to any Lot
located within the Community, excluding, however, any Person
holding such interest merely as security for the performance
or satisfaction of any obligation.
(1) 'Person" means any natural person, as well as a
corporation, joint venture, partnership (general or limited),
association, trust, or other legal entity.
hereto, and provided further, in the instrument of conveyance
to any such successor-in-title or assign, such successor-in-
title or assign is designated as the "Declarant' hereunder by
the grantor of such conveyance, which grantor shall be the
'Declarant' hereunder at the time of such conveyance; provided,
further, upon such designation of such successor Declarant, all
rights of the former Declarant in and to such status as
'Declarant" hereunder shall cease, it being understood that as
to all of the property described in Exhibit "B', attached
hereto, and in Exhibit 'C', attached hereto, which is now or
hereafter subjected to this Declaration, there shall be only
one person or legal entity entitled to exercise the rights and
powers of the "Declarant' hereunder at any one point in time.
(g) "Lot" shall mean any plot of land within the
Community, whether or not improvements are constructed thereon,
which constitutes or will constitute, after the construction of
improvements, a single dwelling site as shown on the plat for
the Community, or amendments thereto, recorded in the land
records of the county where the Community is located. The
ownership of each Lot shall include, and there shall pass with
each Lot as an appurtenance thereto, whether or not separately
described, all of the right, title, and interest of an Owner in
the Common Property, which shall include, without limitation,
membership in the Association.
(h) "Maioritv" means those eligible votes, Owners, or
other group as the context may indicate totalling more than
fifty (50%) percent of the total eligible number.
(i) "Mortaaae' means any mortgage, deed to secure
debt, and any and all other similar instruments used for the
purpose of conveying or encumbering real property as security
for the payment or satisfaction of an obligation.
(j) 'Mortaa~ee# shall mean the holder of a Mortgage.
(k) "Owner" shall mean and refer to the record owner,
whether one or more Persons, of the fee simple title to any Lot
located within the Community, excluding, however, any Person
holding such interest merely as security for the performance
or satisfaction of any obligation.
(1) "Person' means any natural person, as well as a
corporation, joint venture, partnership (general or limited),
association, trust, or other legal entity.
EXHIBIT "B"
Pronertv Submitted
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land
Lot 20 of the 6th District of Fayette County, Georgia, and being
more particularly described on that certain plat of survey for
The Preserve prepared for John Wieland Homes by M.G. Engineering
& Construction Co. recorded in Plat Book , Page , of the
Fayette County, Georgia land records.
EXHIBIT "C"
Additional Property Which Can Be Unilaterally
Submitted by Declarant
ALL THAT TP~ACT OR PARCEL OF LAND lying and being in Land
3, 4, 5, 6, 18, 19, 20, 21, of the 6th District and Land Lots 161,
192, 193, 224 of the 4th District of Fayette County, Georgia.