DECLARATION OF PROTECTIVE COVENANTS 1. USE

Transcription

1 STATE OF GEORGIA COUNTY OF COBB DECLARATION OF PROTECTIVE COVENANTS 1. USE Each lot shall be used for single family residential purposes only. No Lot may be split, divided or subdivided without the prior written consent of the Architectural Committee. No temporary house, shack or tent shall be erected on any Lot for any purpose, including residential, school, kindergarten or church purposes. 2. VEHICLES There shall be no mobile homes, camp trailers, campers, buses, boats or trailers stored or kept for any purpose on any Lot unless such items are stored, kept or parked at the extreme rear of the rear yard. No inoperative vehicle can be parked in any driveway or in the front yard of a Lot for over a period of thirty (30) days. No [such] vehicle shall be used as a residence. No truck, trailer, or combination truck/trailer with more than two axles or longer than 25 feet shall be placed on any Lot. Parking on the street is prohibited except for temporary occasional use by visitors or residents. 3. FENCES Without the prior approval of the Architectural Committee there shall be no metal fencing erected on any Lot (except fencing which is coated with black vinyl) and [no]front fencing across the front of any Lot and any side fencing on the sides of any Lot from the side of the house toward the side of the Lot shall be wood. Any fence erected, including those for animal confinement, shall first be approved by the Architectural Control Committee prior to installation. 4. GARBAGE; ANIMALS No Lot shall be used as a dumping ground for rubbish, trash, or garbage; nor shall any Lot be used for keeping or breeding of livestock animals or poultry of any kind (other than household pets which are not kept for breeding or maintained for any commercial purposes). Garbage and trash containers shall be screened and not visible from any street. No animals determined in the sole discretion of the Board to be dangerous or a nuisance may be brought onto or kept on the property at any time by any Lot owner, occupant or guest of a lot owner or occupant. Dogs must be kept on a leash

2 and under the physical control of a responsible person at all times when walked or exercised outside of fenced areas. Any pet which endangers the health of any owner or occupant of any Lot or which creates a nuisance or unreasonable disturbance, as may be determined in the sole discretion of the Board of Directors, must be permanently removed from the property upon seven (7) days written notice by the Board of Directors. Pet owners will be responsible for proper disposal of solid pet waste. This means placing waste in the garbage or burying. Animals are not allowed to run loose; the County leash law may be enforced by any property owner or others as necessary or desired. Any owner or occupant who keeps or maintains any pet upon any portion of the property shall be deemed to have indemnified and agreed to hold the Association, its Directors and Officers, free and harmless from loss, claim or liability of any kind or character whatever arising by reason of keeping or maintaining such pet within the development. 5. APPROVAL OF PLANS No building shall be erected, placed, altered, or permitted to remain upon any Lot until the building plans and specifications, including specifications of exterior finishes, roof colors, and exterior colors have been approved in writing by the Architectural Committee. Said approval in writing will not be required with respect to construction upon any Lot after ninety-nine (99) years from the date of these Protective Covenants. If the Architectural Committee fails to approve or disapprove of such plans and specifications within thirty (30) days after same have been submitted to it, then the Architectural Committee shall be deemed to have approved said plans and specifications. Declarant and the Architectural Committee shall be deemed to have waived their rights to approve or disapprove of any plans and specifications if they have taken no action to restrain or enjoin the construction of any house prior to the completion of construction of any such house. 6. SET-BACKS; EASEMENTS No building shall be located on a Lot nearer to a street than the building set-back line shown on the Plat. All easements and drainage easements as indicated on said Plant shall inure to the benefit of all of the owners of any of the Property. 7. SIZE No house (whether one story, two story or split level) with less than 1800 square feet of finished heated floor space shall be erected on an Lot, unless specifically approved by Declarant or the Architectural Committee.

3 8. SIGNS During the period that a house on a Lot is under construction, there may be placed on such Lot any sign approved by Declarant or the Architectural Committee. Thereafter, no advertising sings or billboards shall be erected on any Lot except For Sale or For Lease signs which are no larger than 2 feet by 3 feet. Signs promoting any political candidate shall be permitted for a period of thirty (30) days before an election. 9. ANTENNAS No television satellite dish or antenna shall be placed on any Lot or on any improvements on any Lot so as to be visible from the street. 10. ARCHITECTURAL CONTROL COMMITTEE The Architectural Control Committee shall be constituted and appointed as set for in the By-Laws of Wyndham Woods Homeowners Association, Inc. as may be amended from tine to time. Any action to be taken by the Architectural Control Committee may be taken after approval of a majority of its members. The Committee may establish guidelines and standards for submissions to be made and amend the same from time to time. The Committee may disapprove any submission because of the failure to include information reasonably desired by the Committee, the failure to comply with any guidelines or standards, and any other matter which (in the Committee s sole discretion) would cause the proposed construction or alteration (i) to fail to be in conformity and harmony of design and quality with the structures existing or proposed on the Property or (ii) to be incompatible with the topography, finished ground elevation or surrounding improvements. In addition, property owners are required to submit to the Architectural Control Committee any changes, modifications, alterations or renovations to the lot within the subdivision or any structures erected thereon including but no limited to porches, decks, garages, significant vegetation changes, paint color, pools, fencing or other material or significant alterations to the appearance of property. The Architectural Control Committee shall generally restrict the use of window air conditioners. Requests for exceptions to this rule must be submitted to the Architectural Control Committee in writing and in consideration of such request the Architectural Control Committee shall consider the placement, noise potential and appearance of the air conditioner and under no circumstances will the Architectural Control Committee approve the placement of window air conditioners so as to be visible from the street. In addition, the use of sheets, blankets, etc. are not acceptable for temporary window dressing.

4 11. DISCLAIMER AS TO COMMITTEE APPROVAL Plans and specifications are not reviewed for engineering or structural design or quality of materials, and by approving such plans and specifications neither the Architectural Control Committee, the members thereof, nor the Declarant assumes liability or responsibility therefor, nor for any defect in any structure constructed from such plans and specifications. Neither Declarant, the Committee, nor the officers, partners, directors, members, employees, and agents of any of them shall be liable in damages to anyone submitting plans and specifications to any of them for approval, or to any owner of any part of the Property by reason of mistake in judgment, negligence, or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any such plans or specifications. Every person who submits plans or specifications and every owner of any part of the Property agrees that he will not bring any action or suit against Declarant, the Committee, or the officers, partners, directors, members, employees, and agents of any of them to recover any such damages and herby releases, remises, quit-claims, and covenants not to sue for all claims, demands, and judgment, negligence, or nonfeasance and hereby waivers the provisions of any law which provides that a general release does not extend to claims, demands, and causes of action not known at the time to release is given. 12. RULE MAKING AND ENFORCEMENT (a) Authority and Enforcement. All property at Wyndham Woods shall be used only for those uses and purposes set out in this Declaration. The Board of Directors shall have the authority to make, modify, repeal and enforce reasonable rules and regulations governing the conduct, use, and enjoyment of Lots and the Common Property; provided, copies of all such rules and regulations shall be furnished to all Owners and Occupants. Any rule or regulation may be repealed by the affirmative vote or written consent of a Majority of the total Association vote at an annual or special meeting of the membership. Every Owner and Occupant shall comply with the Declaration, Bylaws and rules and regulations of the Association, and any lack of compliance shall entitle the Association and, in an appropriate case, one or more aggrieved Lot Owners, to take action to enforce the terms of the Declaration, Bylaws or rules and regulations. The Board shall have the power to impose reasonable fines, which shall constitute a lien upon the Owner s Lot, and to suspend an Owner s right to vote or to use the Common Property for violation of any duty imposed under the Declaration, these Bylaws, or any rules and regulations duly adopted hereunder; provided, however, nothing herein shall authorize the Association or the Board of Directors to limit ingress and egress to or from a Lot. In the event that any Occupant of a Lot violates the Declaration, Bylaws, or a rule or regulation and a fine is imposed, notice of such violation shall be sent

5 to the Owner and the Occupant, and the fine may first be assessed against such Occupant; provided, however, if the fine is not paid by the Occupant within the time period set by the Board, the Lot Owner shall pay the fine upon notice from the Association, and the fine shall be an assessment and a lien against the Lot until paid. The failure of the Board to enforce any provision of the Declaration, Bylaws, or any rule or regulation shall not be deemed a waiver of the right of the Board to do so thereafter. (b) Fining and Suspension Procedure. The Board shall not impose a fine or suspend the right to vote or to use the Common Property (unless an Owner is shown on the books or management accounts of the Association to be more than thirty (30) days delinquent in any payment due the Association, in which case such suspensions shall be automatic) unless and until notice of the violation is given as provided in subsection (i) below. Any such fine or fines may be effective or commence upon the sending of such notice or such later date as may be set forth in such notice, notwithstanding the violator s right to request a hearing before the Board to challenge such fine under subsection (ii) below. (i) Notice. If any provision of this Declaration or Bylaws or any rule or regulation of the Association is violated, the Board shall serve the violator with written notice sent certified mail, return receipt requested, which shall state: (1) the nature of the alleged violation; (2) the proposed sanction to be imposed; (3) a statement that the violator may challenge the fact of the occurrence of a violation, the proposed sanction, or both, by written challenge and written request for a hearing before the Board, which request must be received by the Board within ten (10) days of the date of the notice; (4) the name, address, and telephone number of a person to contact to challenge the proposed action. If a timely challenge is made and the violation is cured within ten (10) days of the date of the notice, the Board, in its discretion, may, but is not obligated to, waive any sanction or portion thereof. In the event of a continuing violation, each day the violation continues or occurs again constitutes a separate offense, and fines may be imposed on a per diem basis without further notice to the violator. (ii) Hearing. If the alleged violator timely challenges the proposed action, a hearing before the Board shall be held in executive session affording the violator a reasonable opportunity to be heard. The hearing shall be set at a reasonable time and date by the Board, and notice of the time, date (which shall be not less than ten (10) days from the giving of notice without the consent of the violator), and place of the hearing and an invitation to attend the hearing and produce any statements, evidence, and witnesses shall be sent to the alleged violator. The minutes of the meeting shall contain a written statement of the results of the hearing. This Section shall be deemed complied with if a hearing is held and the violator attends and is provided an opportunity to be heard, notwithstanding the fact that the notice requirements contained herein are not technically followed.

6 (c) Additional Enforcement Rights. Notwithstanding anything to the contrary herein contained, the Association, acting through the Board, may elect to enforce any provision of this Declaration, the Bylaws, or the rules and regulations by self-help or by suit at law or in equity to enjoin any violation or to recover monetary damages or both without the necessity for compliance with the procedure set forth in Section (b) of this Article. In any such action, to the maximum extent permissible, the Owner or Occupant responsible for the violation for which abatement is sought shall pay all costs, including reasonable attorney s fees actually incurred. The Association or its duly authorized agent shall have the power to enter a Lot or upon 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 the Declaration, the Bylaws, or the rules and regulations. All costs of self-help, including reasonable attorney s fees, shall be assessed against the violating Lot Owner. 13. DURATION AND AMENDMENT Duration. The covenants and restrictions of this Declaration shall run with and bind the Property perpetually to the extent provided in the Act. Amendment. Except where a higher vote is required for action under any other provisions of this Declaration, in which case such higher vote shall be necessary to amend such provision, this Declaration may be amended by the affirmative vote, written consent, or any combination of affirmative vote and written consent of the members of the Association holding two-thirds of the total eligible vote thereof. Notice of a meeting, if any, at which a proposed amendment will be considered shall state the fact of consideration and the subject matter of the proposed amendment. No amendment shall be effective until certified by the President and Secretary of the Association and recorded in the Cobb County, Georgia land records. Notwithstanding the foregoing, the Board of Directors, without the necessity of a vote from the owners, may amend this Declaration to comply with the Act, any applicable state, city or federal law, including but not limited to, compliance with applicable guidelines of the Federal National Mortgage Association ( Fannie Mae ), the Department of Housing and Urban Development ( HUD ) and the Veterans Administration ( VA ). Any action to challenge the validity of an amendment adopted under this Paragraph must be brought within one (1) year of the effective date of such amendment. No action to challenge such amendment may be brought after such time.

7 14. ANNEXATION Declarant may subject any other property to this Declaration without the consent of any party. Such annexation shall be accomplished by (i) filing in the Office of the Clerk of the Superior Court of Cobb County an approved subdivision plat and by including on such subdivision plat a statement that expressly sets forth the Declarant s intention to make such annexed real property subject to the provisions of this Declaration; or (ii) filing an amendment to this Declaration which describes the additional property to be subjected to this Declaration. 15. HOMEOWNER S ASSOCIATION ASSESSMENTS (a) Purpose of Assessment. The Association shall have the power to levy assessments as provided herein and in the Act. The assessments for Common Expenses 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 as may be authorized by the Board. (b) Creation of the Lien and Personal Obligation for Assessments. Each current Owner of any Lot in the Wyndham Woods subdivision and all future Owners of any Lot in the Wyndham Woods subdivision, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (i) annual assessments or charges; (ii) special assessments, to be established and collected as hereinafter provided; and (iii) 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 charges, interest, costs, and reasonable attorney s fees actually incurred, and if the Board so elects, rents, in the maximum amount permitted under the Act, shall be a charge on the Lot and shall be a continuing lien upon the Lot against which each assessment is made. Such amounts shall also be the personal obligation of the Person who was the Owner of such Lot at the time when the assessment fell due. Each Owner, and his or her grantee shall be jointly and severally liable for all assessments and charges due and payable at the time of any conveyance. Assessments shall be paid in such manner and on such dates as may be fixed by the Board; unless otherwise provided, the annual assessments shall be paid in on the first business day of each calendar year. No Owner may exempt himself or herself from liability for or otherwise withhold payment of assessments for any reason whatsoever, including, but not limited to, nonuse of the Common Property, the Association s failure to provide services or perform its obligations

8 required hereunder, or inconvenience or discomfort arising from the Association s performance of its duties. The lien provided for herein shall have priority as provided in the Act. (c) Delinquent Assessments. All assessments and related charges not paid on or before the due date shall be delinquent, and the Owner shall be in default. (i) If any annual assessments or any part thereof is not paid in full on or before January 31 of each calendar year or if any other charge is not paid within ten (10) days of the due date, a late charge equal to the greater of ten ($10.00) dollars or ten (10%) percent of the amount not paid, or such higher amounts as may be authorized by the Act, may be imposed without further notice or warning to the delinquent Owner, and interest at the rate of ten (10%) percent per annum or such higher rate as permitted by the Act shall accrue from the due date. (ii) If part payment of assessments and related charges is made, the amount received shall be applied, in respective order, to costs and attorney s fees, later charges, interest, delinquent assessments, and current assessments. (iii) If assessments and other charges or any part thereof remain unpaid more than thirty (30) days after the assessment payments first become delinquent, the Association, acting through the Board, may institute suit to collect all amounts due pursuant to the provisions of the Declaration, the By-laws, the Act and Georgia law and suspend the Owner s and Occupant s right to use the Common Property (provided, however, the Board may not limit ingress or egress to or from the Lot). (d) Computation of Operating Budget and Assessment. At least thirty (30) days prior to the beginning of the Association s fiscal year, the Board shall prepare a budget covering the estimated costs of operating the Property during the coming year. The Board shall cause the budget and notice of the assessments to be levied against each Lot for the following year to be delivered to each member at least twenty-one (21) days prior to the Association s annual meeting. The budget and the assessment shall become effective unless disapproved at a duly called annual meeting by a vote of a majority of the total Association membership; provided, however, if a quorum is not obtained at the annual meeting, the budget shall become effective even though a vote to disapprove the budget could not be called at this meeting. Notwithstanding the above, however, if the membership disapproves the proposed budget or the Board fails for any reason to determine the budget for the succeeding year, then, until a budget is determined as provided herein, the budget in effect for the current year shall continue for the succeeding year, and the Board may propose a new budget at any time during the year by causing the proposed budget and assessment to be delivered to the members at least thirty (30) days prior to the proposed effective

9 date thereof. Unless a special meeting is requested by the members, as provided in the By-laws for special meetings, the new budget and assessment shall take effect without a meeting of the members. (e) Special Assessments. In addition to the annual assessment provided for in subparagraph (b) above, the Board may at any time levy a special assessment against all Owners, notice of which shall be sent to all Owners; provided, however, prior to becoming effective, any special assessment which would cause the total of special assessments levied against any Lot in one calendar year to exceed fifty ($50.00) dollars first shall be approved by the affirmative vote of at least two-thirds (2/3) of Owners present or represented by proxy at a special or annual meeting of the members, notice of which shall specify that purpose. (f) Capital Budget and Contribution. The Board shall annually prepare a capital budget which shall take into account the number and nature of replaceable assets, the expected life of each asset, and the expected repair or replacement cost. The Board shall set the required capital contribution, if any, in an amount sufficient to permit meeting the projected capital needs of the Association, as shown on the capital budget, with respect both to amount and timing by equal annual assessments over the period of the budget. The capital contribution required, if any, shall be fixed by the Board and included within the budget and assessment as provided in subparagraph (d) of this Paragraph. A copy of the capital budget shall be distributed to each member in the same manner as the operating budget. (g) Statement of Account. Any Owner, Mortgagee, or a Person having executed a contract for the purchase of a Lot, or a lender considering a loan to be secured by a Lot, shall be entitled, upon written request, to a statement from the Association setting forth the amount of assessments due and unpaid, including any late charges, interest, fines, or other charges against a Lot. The Association shall respond in writing within five (5) days of receipt of the request for a statement; provided, however, the Association may require the payment of a fee, not exceeding ten ($10.00) dollars, as a prerequisite to the issuance of such a statement. Such written statement shall be binding on the Association as the amount of assessments due on the Lot as of the date specified therein. (h) Surplus Funds and Common Profits. Common profits from whatever source shall be applied to the payment of Common Expenses. Any surplus funds remaining after the application of such common profits to the payment of Common Expenses shall, at the Board s option, either be distributed equally to the Owners or credited to the next assessment chargeable to the Owners, or added to the Association s reserve account.

10 16. MAINTENANCE (A) Responsibilities of owners: Unless specifically identified herein as being the responsibility of the Association, all maintenance and repair of lots and dwellings, with all other improvements thereon or therein and all lawns, landscaping, trees and grounds on and within a lot or dwelling, each owner shall be responsible for maintaining his or its lot or dwelling, as the case may be, in a neat, clean sanitary condition, and such responsibility shall include the maintenance and care of (i) all exterior surfaces of all dwellings, buildings and other structures (including repainting), (ii) all lawns, trees, shrubs, hedges, grass and other landscaping, and (iii) all utility lines and easements located on and serving only such owner s lot to the extent such utility lines and easements are not maintained by the utility or appropriate governmental agency or authority, as provided in Section 16(c) hereof, each owner shall also be obligated to pay for the costs incurred by the Association for repairing, replacing, maintaining or cleaning any time which is the responsibility of such owner but which responsibility such owner fails or refuses to discharge. No owner shall (X) repaint, change or otherwise alter significantly the appearance of any portion of the exterior of a dwelling or the landscaping, grounds or other improvements within a lot unless such significant repainting, change or alteration is first approved, in writing, by the Architectural Control Committee or do any work which, in the reasonable opinion of the Architectural Control Committee, would jeopardize the soundness and safety of the development, reduce the value thereof or impair any easement or hereditament thereto, without in every such case obtaining the written approval of the Architectural Control Committee. (B) Association s responsibility: Except as may be herein otherwise specifically provided, the Association shall maintain and keep in good repair all portions of the common areas, which responsibility shall include the maintenance, repair and replacement of (i) all roads, walks, trails, parking lots, landscaped areas, recreational areas and other improvements made by Declarant or the Association situated within the common areas, (ii) such security systems and utility lines, pipes, plumbing, wires, conduits and related systems which are part of the common areas and which are not maintained by a public authority, public service district, public or private utility, or other person, and (iii) all lawns, trees, shrubs, hedges, grass and other landscaping and all lakes and ponds situated within or upon the common areas. The Association shall not be liable for injury or damage to any person or property (a) caused by the elements or by any owner or any other person, (b) resulting from any rain or other surface water which may leak or flow from any portion of the common areas, or (c) caused by any pipe, plumbing, drain, conduit, appliance, equipment, security system, or utility line or facility, the responsibility for the maintenance of which is that of the Association, becoming out of repair. The Association shall not be liable to any owner for loss or damage, by theft or otherwise, of any property of such owner which may be stored in or upon any portion of the common areas or any other portion of the property. No diminution or abatement of assessments shall be claimed or allowed by reason of any alleged failure of the Association to take some action or to perform some function required to be taken or

11 performed by the Association under this Declaration, or for inconvenience or discomfort arising from the making of improvements or repairs 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 such assessments being a separate and independent covenant on the part of each owner. (C) In the event that Declarant or the Board determines that: (i) any owner has failed or refused to discharge properly his or its obligations with regard to the maintenance (including painting), cleaning, repair or replacement of items for which he or it is responsible hereunder, or (ii) that the need for maintenance (including painting), cleaning, repair or replacement which is the responsibility of the Association hereunder is caused through the willful or negligent act of an owner, his family, tenants, guests or invitees, and is not covered or paid for by insurance in whole or in part, then, in either event, Declarant or the Association, except in the event of an emergency situation, may give such owner written notice of Declarant s or the Association s intent to provide such necessary maintenance, cleaing, repair or replacement, at the sole cost and expense of such owner, and setting forth with reasonable particularity the maintenance, cleaning, repairs, or replacement deemed necessary, except in the event of emergency situations, such owner shall have ten (10) days within which to complete the same in a good and workmanlike manner, or in the event that such maintenance, cleaning, repair or replacement is not capable of completion within said ten (10) day period, to commence said maintenance, cleaning, repair or replacement and diligently proceed to complete the same in a good and workmanlike manner. In the event of emergency situations or the failure of any owner to comply with the provisions hereof after such notice, the Association may provide (but shall not have the obligation to so provide) any such maintenance, cleaning, repair or replacement at the sole cost and expense of such owner, and said cost shall be added to and become a part of the assessment to which such owner and his lot or dwelling are subject and shall become a lien against such lot or dwelling. 17. MISCELLANEOUS (a) No Reverter. No restriction herein is intended to be, or shall be construed as, a condition subsequent or as creating a possibility of reverter. (b) Severability. A determination by a court that any provision hereof is invalid for any reason shall not affect the validity of any other provision hereof. (c) Headings. The headings of the Articles and Section hereof are for convenience only and shall not affect the meaning or interpretation of the contents of this Declaration. (d) Gender. Throughout this Declaration, the masculine gender shall be deemed to include the feminine and neuter, and the singular, the plural, and vice versa.

12 (e) Declarant has, using best efforts and all due diligence, prepared and recorded this Declaration so that each and every owner of the Property shall have the right and the power to enforce the terms and provisions of the Declaration. However, in the event that this Declaration is, for any reason whatsoever, unenforceable by any person in a court of law or otherwise, Declarant shall have no liability of any kind as a result of such unenforceability, and each and every owner, by acceptance of a deed acknowledges that Declarant shall have no such liability. (f) Any and all real property submitted to this Declaration is part of a residential property owners development which hereby submits to the Georgia Property Owners s Association Act, O.C.G.A Section , et seq. (Michie 1982), as such act may be amended from time to time (herein referred to as the Act ).