Studdiford Community Association
 
Studdiford Perpetual Membership Agreement

Final 9-8-00

-------------------------------------------- [SPACE ABOVE RESERVED FOR RECORDING DATA] ------
 
Return to: Weissman, Nowack, Curry & Wilco, P.C. [JEM]

Two Midtown Plaza, 15th Floor

1349 West Peachtree Street

Atlanta, Georgia 30309

 
 
Indexing Note: Grantors are each

STATE OF GEORGIA Owner whose notarized signatures

COUNTY OF FULTON are attached and the Studdiford

Property Owners’ Association, Inc.

 

DECLARATION OF PROTECTIVE COVENANTS

AND PERPETUAL MEMBERSHIP FOR STUDDIFORD
 
WHEREAS, the lot owners at Studdiford Subdivision in Fulton County, Georgia, signing as additional signatories to this Declaration of Protective Covenants and Perpetual Membership for Studdiford ("Declaration"), are the owners of certain real property located in the Studdiford Subdivision (the "Property") and desire to subject the Property to the terms and provisions of this Declaration and to hereby subject the Property to perpetual membership in the Studdiford Property Owners’ Association, Inc. ("Association"); and

WHEREAS, the undersigned officers of the Association desire to approve this Declaration on behalf of the Association;

NOW, THEREFORE, the undersigned officers of the Association, and all lot owners signing as additional signatories to the Declaration hereby declare that all of the Property described in Exhibit "A" shall be held, sold and conveyed subject to this Declaration, which is for the purpose of enhancing and protecting the desirability and attractiveness of, and which shall run with, the Property, and be binding on all parties having any right, title or interest in the Property or any part thereof, and shall, subject to all limitations herein provided, inure to the benefit of each owner of any portion of the Property, his heirs, grantees, distributions, successors and assigns and to the benefit of the Association:
 
 

 

DECLARATION OF PROTECTIVE COVENANTS

AND PERPETUAL MEMBERSHIP FOR

STUDDIFORD

WEISSMAN, NOWACK, CURRY, & WILCO, P.C.

Attorneys

Two Midtown Plaza - 15th Floor

1349 West Peachtree Street

Atlanta, Georgia 30309

(404) 885-9215

www.wncwlaw.com
 
TABLE OF CONTENTS
 
Page
 
1. NAME 1

2. DEFINITIONS 1

3. PROPERTY DESCRIPTION 3

4. EFFECTIVE DATE 4

5. ASSOCIATION MEMBERSHIP AND VOTING RIGHTS 4

6. DUES AND ASSESSMENTS 5

7. MORTGAGEE'S RIGHTS 8

8. ASSOCIATION RIGHTS AND RESTRICTIONS 9

9. INSURANCE 9

10. REPAIR AND RECONSTRUCTION 11

11. MEMBER AND ASSOCIATE MEMBER RESPONSIBILITIES 12

12. SALE OF LOTS 12

13. MAINTENANCE 12

14. GENERAL PROVISIONS 14

15. EMINENT DOMAIN 14

16. EASEMENTS 14

17. AMENDMENT 16

18. SEVERABILITY 16

19. DURATION 16

20. PREPARER 17

- LIST OF EXHIBITS -

LIST OF SUBMITTED PROPERTY "A"

DESCRIPTION OF COMMON PROPERTY "B"

MODEL CONSENT FORM FOR SUBSEQUENT ADDITIONS "C"

BY-LAWS OF STUDDIFORD PROPERTY OWNERS’ ASSOCIATION, INC "D"

DECLARATION OF PROTECTIVE COVENANTS

AND PERPETUAL MEMBERSHIP FOR STUDDIFORD
 
1. NAME.
 The name of the property is Studdiford, which property is a residential property owners’ development which hereby submits to the Georgia Property Owners' Association Act, O.C.G.A. Section 44-3-220, et seq. (Michie 1982) as may be amended.

2. DEFINITIONS.
 Generally, terms used in this Declaration, the By-Laws, and the Articles of Incorporation shall have their normal, generally accepted meanings or the meanings given in the Act or the Georgia Nonprofit Corporation Code. Unless the context otherwise requires, certain terms used in this Declaration, the By-Laws, and the Articles of Incorporation shall be defined as follows:
a.Act means the Georgia Property Owners' Association Act, O.C.G.A. Section 44-3-220, et seq. (Michie 1982), as may be amended.
b.Additional Property means all those Lots defined as part of the "Property" under Paragraph 2(ee) below and as shown on the Studdiford Plats which are not subject to the terms of this Declaration, but which shall, upon execution of a Consent in accordance with the terms of this Declaration, become a portion of the Property.
c.Area of Common Responsibility means the Common Property, together with any areas which become the Association's responsibility under this Declaration or by contract or agreement with any other Person. Public rights-of-way within or adjacent to the Property may be considered by the Board to be part of the Area of Common Responsibility.
d.Articles or Articles of Incorporation mean the Articles of Incorporation of Studdiford Swim & Tennis Club, Inc., as amended, filed with the Secretary of State of the State of Georgia.
e.Associate Member means a Lot Owner whose Lot has been subjected to Associate Membership in the Association by written Consent recorded in the Fulton County, Georgia land records, as provided in Paragraph 5 hereof, and which Lot therefore is a portion of the Property. Associate Members shall be entitled to use the Common Property with the exception of the pool and tennis courts, may vote on all Association matters and may attend community social functions, as more particularly provided in Paragraph 5. Only those Lot Owners residing within the Studdiford Subdivision and submitting their Lots to Associate Membership before October 15, 2000 may be Associate Members. An Associate Member shall have the right, but not the obligation, to convert Membership by execution of a Consent in the form attached hereto as Exhibit "C". An Associate Member who converts to Membership shall not be subject to payment of an initiation fee.
f.Associate Membership means membership as Associate Member in the Association which is perpetual and mandatory and which cannot be separated from a Lot, but rather is appurtenant to and runs with title to a Lot by virtue of a written Consent, recorded in the Fulton County, Georgia land records as provided in Paragraph 5 hereof.
g.Associate Member Lot means a Lot subjected to Associate Membership in the Association.
h.Association means Studdiford Property Owners’ Association, Inc., a Georgia nonprofit corporation, its successors or assigns.
i.Association Legal Instruments means this Declaration and all exhibits hereto, including the Association's By-Laws, and the Plats, all as may be supplemented or amended.
j.Board or Board of Directors means the elected body responsible for management and operation of the Association.
k.By-Laws means the By-Laws of Studdiford Property Owners’ Association, Inc.
l.Common Property means 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, and such areas shall include, but are not limited to the pool and the tennis courts as well as the property described in Exhibit "B" attached hereto and incorporated herein. The Common Property is subjected to the terms of this Declaration.
m.Common Expenses mean the expenses anticipated or actually incurred by the Association in maintaining, repairing, replacing, and operating the Common Property and otherwise for the benefit of all Lots.
n.Community-Wide Standard means the standard of conduct, maintenance, or other activity generally prevailing in the Property. Such standard may be more specifically determined by the Association’s Board of Directors.
o.Consent means a written document executed by an Owner of a Lot and recorded in the Fulton County land records submitting that Owner’s Lot to the terms of this Declaration.
p.Effective Date means the date that this Declaration is recorded in the Fulton County, Georgia land records.
q.Eligible Mortgage Holder means a holder of a first mortgage secured by a Lot who has requested notice of certain items under Paragraph 7(c) hereof.
r.Lot means a portion of the Property intended for ownership and use as a single-family dwelling site as permitted in this Declaration and as shown on the Plats for the Property, or amendments or supplements thereto, recorded in the Fulton County, Georgia land records.
s.Majority means those eligible votes, Owners, or other group as the context may indicate totaling more than fifty (50%) percent of the total eligible number.
t.Member means a Lot Owner whose Lot has been subjected to Membership in the Association by written Consent recorded in the Fulton County, Georgia land records, as provided in Paragraph 5 hereof, and which Lot therefore is a portion of the Property. Members shall be entitled to the full use of all Common Property, may vote on all Association matters and may attend all community social functions, as more particularly provided in Paragraph 5.
u.Member Lot means a Lot subjected to Membership in the Association.
v.Membership means membership as a Member in the Association which is perpetual and mandatory and which cannot be separated from a Lot, but rather is appurtenant to and runs with title to a Lot by virtue of a written Consent, recorded in the Fulton County, Georgia land records as provided in Paragraph 5 hereof.
w.Mortgage means any mortgage, deed to secure debt, deed of trust, or other transfer or conveyance for the purpose of securing the performance of an obligation, including, but not limited to, a transfer or conveyance of fee title for such purpose.
x.Mortgagee or Mortgage Holder means the holder of any Mortgage.
y.Occupant means any Person occupying all or any portion of a dwelling or other property located within the Property for any period of time, regardless of whether such Person is a tenant or the Owner of such property.
z.Officer means an individual who is elected by the Board to serve as President, Vice President, Secretary, or Treasurer, or such other subordinate officers as the Board may determine necessary.
aa.Outside Member means an Owner of a lot located outside of the Studdiford Subdivision whose lot has been subjected to an Outside Membership in the Association by payment of dues established by the Board and in compliance with the Declaration, By-Laws and rules and regulations of the Association, in accordance with Paragraph 5 hereof. Outside Members shall have all rights and privileges of membership, but shall not be entitled to vote on any Association matter and are not Submitted Members of the Association.
ab.Outside Membership means membership as an Outside Member in the Association which is voluntary in nature and which is established by the payment of annual dues and in compliance with the Declaration, By-Laws and rules and regulations of the Association, in accordance with Paragraph 5 hereof.
ac.Owner means the record titleholder of a Lot within the Property, but shall not include a Mortgage Holder on the Lot.
ad.Person means any individual, corporation, firm, association, partnership, trust, or other legal entity.
ae.Property means that real estate in the Studdiford Subdivision which is submitted to the Act and the provisions of this Declaration by the Owner's execution of this Declaration or, after the recording of this Declaration, by the recording of a written Consent subsequent to the date of recording of this Declaration. The Property is a residential property owners’ development which hereby submits to the Georgia Property Owners' Association Act, O.C.G.A. Section 44-3-220, et seq. (Michie 1982), as may be amended. By recordation of this Declaration, the Common Property is hereby submitted to this Declaration and the Act and shall be deemed a part of the Property.
af.Studdiford Subdivision means that property described on the plats ("Plat") for Studdiford recorded in Plat Book 130, Page 115, Book 131, Page 44, Book 132, Pages 111-112, Book 135, Page 74, Book 137, Page 71, Book 138, Page 80-81, Book 139, Page 13-14, Book 141, Page , Book 143, Page 57, Book 144, Page 12, Book 169, Page 11 and Book 169, Pages 21-22, Fulton County, Georgia land records, as may be amended or supplemented from time to time. The Plats are incorporated herein by this reference.
ag.Submitted Member shall mean all Lot Owners in the Studdiford Subdivision whose Lots have been submitted to Member or Associate Member status in the Association by execution of the Declaration or by written Consent recorded in the Fulton County, Georgia land records, as provided herein.
ah.Submitted Membership means membership as a Submitted Member in the Association which is perpetual and mandatory and which cannot be separated from a Lot, but rather is appurtenant to and runs with title to a Lot by virtue of a written Consent, recorded in the Fulton County, Georgia land records as provided herein.

3. PROPERTY DESCRIPTION.
 The Property subject to this Declaration and the Act is located in Land Lots 762, 763, 765, 768 and 788 of the 1st District, 2nd Section of Fulton County, Georgia, being more particularly described in the signatory portion of this Declaration and in Exhibits "A" and "B" attached to this Declaration, which exhibits are specifically incorporated herein by this reference. The Plats are incorporated herein by reference as fully as if the same were set forth in their entirety herein. For convenience, Exhibit "A" identifies those Lots which have been subjected to this Declaration and to Membership or Associate Membership.

Only the real property described in this Paragraph 3 is subject to this Declaration. However, by one or more Supplementary Declarations or by executing a written Consent, the Association and an Owner of a Lot in Studdiford, may subject other real property to this Declaration.

4. EFFECTIVE DATE.
 By executing this Declaration, Owners may submit their Lots to the terms of this Declaration without payment of an initiation fee during the Enrollment Period, which period shall close October 15, 2000. This Declaration shall not be effective, whether or not it is recorded, until and unless: (a) at least fifty (50) Owners have executed this Declaration as Members, (b) this Declaration has been recorded in the Fulton County, Georgia land records, which shall be no later than ninety (90) days after the end of the Enrollment Period, and (c) two Association officers have executed the final page hereof certifying that the minimum number of required Members have been obtained. Additional Consents, by Owners of Lots within the Additional Property, may be recorded at any time subsequent to the recording of this Declaration, subject to the terms of this Declaration. Consents shall be valid only if executed by at least one officer of the Association and recorded by the Association.

5. ASSOCIATION MEMBERSHIP AND VOTING RIGHTS.
 (a) Members. Each Person who is the record Owner of a fee or undivided fee interest in any Lot in Studdiford who subjects such Owner’s Lot to the terms of this Declaration by execution of this Declaration or by written Consent recorded in the Fulton County, Georgia land records, shall be a Member of the Association and shall be entitled to use of all Common Property of the Association and shall be entitled to vote on all Association matters as set forth herein and in the By-Laws of the Association. Membership shall be appurtenant to and may not be separated from ownership of any such Membership Lot.

(b) Associate Members. Each Person who is a record Owner of a fee or undivided fee interest in any Lot in Studdiford who subjects such Owner's Lot to the terms of this Declaration by execution of this Declaration or by written Consent, but who is not a Member, shall be an Associate Member. Associate Members shall be entitled to attend community social functions, to use the Common Property with the exception of the pool and tennis courts and shall be entitled to vote as set forth herein and in the By-Laws of the Association. An Associate Member shall have the right, but not the obligation, to convert to Membership by execution of a Consent in the form attached hereto as Exhibit "C". An Associate Member who converts to Membership shall not be subject to payment of an initiation fee. Only those Owners who have submitted their Lots to Associate Membership prior to October 15, 2000 may be Associate Members. Following the Effective Date of this Declaration, no Lots shall be submitted to Associate Membership and all Owners desiring to submit their Lots to the provisions of the Declaration shall do so as Members.

UPON CONVEYANCE OR TRANSFER OF A LOT WHOSE CURRENT OWNER HAS EXECUTED THIS DECLARATION SUBJECTING OWNER'S LOT TO ASSOCIATE MEMBERSHIP, SUCH LOT SHALL AUTOMATICALLY CONVERT TO MEMBERSHIP AND SHALL BE SUBJECT TO THE RIGHTS AND OBLIGATIONS OF MEMBERSHIP, BUT SHALL NOT BE SUBJECT TO AN INITIATION FEE.
 
(c) Outside Members. Outside Membership or yearly use passes shall be offered on a voluntary basis for owners of lots located outside of the Studdiford Subdivision. Outside Membership shall be contingent upon payment of dues established by the Board and in compliance with the Declaration, By-Laws and rules and regulations of the Association. Outside Members shall be authorized to use the pool and tennis courts on an annual voluntary basis subject hereto, but may not vote on Association matters. Assessments or dues charged to Outside Members may reflect an appropriate differential, determined by the Board on an annual basis, in the assessment from those Owners who do execute this Declaration and become Perpetual Members in accordance with subparagraph 5(a) and (b) above.

The foregoing definitions of membership are not intended to include Persons who hold an interest merely as security for the performance of an obligation, and the giving of a security interest shall not terminate an Owner's membership. No Owner, whether one or more Persons, shall have more than one (1) membership per Lot owned. 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. Any 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.

(d) Voting. All Members and Associate Members not subject to suspension as provided herein or in the By-Laws shall be entitled to one (1) equal vote for each Lot owned. Members and Associate Members shall be entitled to vote on any and all matters brought before a vote of the Association and may serve as members of the Association’s Board of Directors. Outside Members shall not be entitled to vote on any matter nor shall they be entitled to serve on the Board. When more than one (1) Person holds an ownership interest in any Lot, the vote for such Lot shall be exercised as those Owners determine among themselves 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 (1) Person seeks to exercise it.

6. DUES AND ASSESSMENTS.
 (a) General. The Association shall have the power to levy dues or assessments upon all Members, Associate Members and Outside Members as provided herein and in the By-Laws. The assessments for Common Expenses provided for herein shall be used for the general purposes of maintaining, repairing, replacing, insuring, managing, operating and, in the Board's discretion, improving the Common Property, otherwise operating the Property, enforcing this Declaration and other covenants upon the Property, paying for utility services serving the Common Property, maintaining a reserve fund for future Common Property maintenance, repairs or improvements, and promoting the recreation, health, safety, welfare, common benefit, and enjoyment of the Owners and Occupants of Lots in the Property and the Members and Associate Members, as may be more specifically authorized from time to time by the Board. Except as otherwise provided herein, each Member Lot is hereby allocated equal liability as all other Member Lots and each Associate Member Lot is hereby allocated equal liability as all other Associate Member Lots for Common Expenses related to the budget (as defined below).

(b) Annual Dues.


(i) Member Dues. The annual dues shall be established pursuant to a budget created and adopted by the Board, covering the estimated costs of maintaining and operating the Common Property during the coming year. The budget and notice of dues shall be sent or delivered to each Member at least thirty (30) days prior to the due date of the annual dues. The maximum annual dues for Members shall not exceed the amount established by the membership at the 2000 annual meeting for the first year after the recording of this Declaration, and shall not increase by more than five (5%) percent per year above the previous year's annual dues without the approval of a Majority of the eligible Members and Associate Members who are voting in person or by written proxy at a duly called Association meeting, or by ballot. Notwithstanding anything to the contrary herein, if a Member transfers a Lot to any other Member, Associate Member or Outside Member, there shall be no refund of the annual dues and the purchaser and seller may allocate the annual dues among themselves in a manner which they shall determine.

If the Board proposes a budget with an annual dues more than five (5%) percent greater than the previous year's dues, and the Membership and Associate Membership disapproves the proposed budget, or if the Board fails for any reason so to determine the budget for the succeeding year, then, until such time as a budget shall have been determined as provided herein, the budget in effect for the current year shall continue for the succeeding year. However, 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 and Associate Members in accordance with the procedure set forth here.

(ii) Associate Member Dues. The Board also shall establish the annual dues chargeable to Associate Members, which shall contribute to the Common Expenses of the Association. The maximum annual dues for Associate Members shall not exceed one hundred ($ 100.00) dollars for the first year after the recording of this Declaration, and shall not increase by more than five (5%) percent per year above the previous year's annual dues without the approval of a Majority of the eligible Members and Associate Members who are voting in person or by written proxy at a duly called Association meeting, or by ballot; provided, however, that in no case shall Associate Member dues exceed twenty-five (25%) percent of the Member dues. The Board shall cause the budget and notice of the dues to be levied against each Associate Member for the following year to be delivered to each Associate Member as provided in subparagraph (b)(i) above. Each Associate Member shall be personally liable for all dues, as well as for any Common Expenses occasioned by the conduct of such Associate Member or such Associate Member's guests or invitees. Any Associate Member desiring to use the pool and tennis courts of the Association shall be entitled to use the pool and tennis courts upon converting their Lot to a Membership Lot. Notwithstanding anything to the contrary herein, if an Associate Member transfers a Lot to another any other Member, Associate Member or Outside Member, there shall be no refund of the annual dues and the purchaser and seller may allocate the annual dues among themselves in a manner which they shall determine.

(iii) Outside Member Dues. The Board also shall establish the annual dues chargeable to Outside Members, which shall contribute to the Common Expenses of the Association.

(c) Obligation for Dues. Members and Associate Members: Creation of the Lien and Personal Obligation For Dues. Each Owner of a Member Lot or an Associate Member Lot, 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 dues or charges; (ii) special assessments, such 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.

All such dues and assessments, together with charges, interest, costs, and reasonable attorney's fees actually incurred, in the maximum amount permitted under the Act, shall be a charge on such Member Lot or Associate Member Lot and shall be a continuing lien upon the Lot against which such dues or assessment are made. Such amounts shall also be the personal obligation of the Person who was the Owner of such Lot at the time when the dues or assessments fell due. Each Owner of a Member Lot or Associate Member Lot and his or her grantee shall be jointly and severally liable for all dues and assessments and charges due and payable at the time of any conveyance. Dues and Assessments shall be paid in such manner and on such dates as may be fixed by the Board of Directors, which may include acceleration of any unpaid portion of any special assessment for delinquent Owners upon ten (10) days written notice.

The lien provided for herein shall have priority as set forth in the Act. The sale or transfer of any Lot pursuant to foreclosure of a first Mortgage shall extinguish the lien for dues or assessments as to payments coming due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any dues or assessments thereafter coming due or from the lien thereof. No Member or Associate Member may exempt himself or herself from liability for or otherwise withhold payment of assessments for any reason whatsoever.

(d) Special Assessments. In addition to the annual assessment provided for above, the Board may at any time levy a special assessment for any purpose against all Members and/or Associate Members up to one hundred ($100.00) dollars in any fiscal year. However, any special assessment(s) that will cause the total special assessment to exceed one hundred ($100.00) dollars per Member or Associate Member Lot in any fiscal year must first be approved by the affirmative vote of at least two-thirds (2/3) of eligible Members and Associate Members present or represented by written proxy at a duly called meeting, notice of which shall specify that purpose, or by ballot specifying that purpose.

(e) Initiation Fee. Following the Open Enrollment Period, the Board will require a non-refundable initiation fee of one thousand five hundred ($1,500.00) dollars or such other amount as may be determined by the Board of Directors. Associate Members who subsequently convert to Membership shall not be obligated to pay an initiation fee. In addition, any Member, Associate Member or Outside Member moving from a Membership or Associate Membership Lot or an Outside Membership lot to a non-Membership Lot who subsequently subjects such non-Membership Lot to the terms of this Declaration shall not be obligated to pay an initiation fee. Any initiation fees paid pursuant to the terms of this Paragraph shall be nonrefundable and nontransferable, except that if a Member leases his or her Lot, the tenant shall not be obligated to pay an initiation fee.

(f) Budget. The budget shall include amounts to cover anticipated Common Expenses of operating, maintaining, repairing, improving and managing all of the Common Property, including insurance, legal, accounting and other professional fees, landscaping costs, and a reserve or capital contribution related to maintenance, repair, improvement and operation of the Common Property. The budget may reflect anticipated income to be received from Outside Members, and the Member and Associate Member assessments shall be determined from the budget prepared by the Board. The budget and shall become effective unless disapproved at a duly called Association annual meeting by a vote of a majority of the total Association Submitted 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.

(g) Delinquent Dues and Assessments. All dues and assessments and related charges not paid on or before the due date established by the Board shall be delinquent, and the Member shall be in default.


(i) If the annual dues or any part thereof is not paid in full within ten (10) days of the due date, or such later date as may be provided by the Board, 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 Member or Associate Member, and interest at the rate of ten (10%) percent per annum or such higher rate as permitted by the Act (or, for Outside Members, the highest rate otherwise permitted under Georgia law) shall accrue from the due date.

(ii) If dues, assessments, fines or other charges, or any part thereof, remain unpaid more than sixty (60) 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 Bylaws, the Act and Georgia law, including reasonable attorney’s fees actually incurred, and to suspend the Owner's right to vote and the Owner's and Occupant's right to use the Common Property (provided, however, the Board may not deny ingress or egress to or from the Lot).

(iii) For Outside Members, if assessments or other charges, or any part thereof, remain unpaid more than thirty (30) days, the Association may revoke such Outside Member's membership in the Association upon ten (10) days written notice.

(iv) If part payment of assessments and related charges is made, the amount received shall be applied first to costs and attorneys fees, as applicable, and then, in order, to late charges, interest, delinquent assessments, and current assessments. Late charges may be assessed on delinquencies which are created by the application of current payments to outstanding delinquent assessments or charges.

(h) Statement of Account. Any Owner, Mortgage holder, or a Person having executed a contract for the purchase of a Member Lot or an Associate Member Lot, or a lender considering a loan to be secured by a Member Lot or an Associate Member 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 such Lot. The Association shall respond in writing within five (5) business 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, or such higher amount as authorized by the Act, as a prerequisite to the issuance of such a statement. Such written statement shall be binding on the Association as to the amount of assessments due on the Lot as of the date specified therein.

(i) Specific Assessments. In the discretion of the Board, any Association Common Expenses occasioned by the conduct of less than all of those entitled to occupy all of the Lots or by the licensees or invitees of any such Lot or Lots, including, but not limited to, reasonable attorneys fees actually incurred by the Association, may be specially assessed against such Lot or Lots. Failure of the Board to exercise its authority under this Paragraph shall not be grounds for any action against the Association or the Board and shall not constitute a waiver of the Board's right to exercise its authority under this Paragraph in the future with respect to any expenses, including an expense for which the Board has not previously exercised its authority under this Paragraph.

7. MORTGAGEE'S RIGHTS
(a) Mortgagee Approval of Actions. Unless at least two-thirds (2/3) of either the holders of first Mortgages on Member and Associate Member Lots or the Owners of the Member and Associate Member Lots give their consent, the Association shall not:


i) by act or omission seek to abandon or terminate the Property or the Association;

ii) change the pro rata interest or obligations of any individual Member Lot or Associate Member Lot for the purpose of levying assessments or charges or allocating distributions of hazard insurance proceeds or condemnation awards;

iii) partition or subdivide any Lot;

iv) by act or omission seek to abandon, partition, subdivide, encumber, sell, or transfer the Common Property (the granting of utility or public easements or rights-of-way or other easements shall not be deemed a transfer within the meaning of this provision); or

v) use hazard insurance proceeds for losses to any portion of the Common Property for other than the repair, replacement, or reconstruction of such portion of the Common Property.

This provision shall not apply to prevent Owners from partitioning, subdividing or relocating boundaries of their Lots, if done in compliance with all recorded restrictions or covenants affecting the Lots and with applicable Fulton County, Georgia zoning and other requirements.

(b) Mortgagee Assessments Upon Foreclosure of Member or Associate Member Lot. Where the Mortgagee holding a first Mortgage of record on a Member Lot or an Associate Member Lot or other purchaser of a Member Lot or Associate Member Lot obtains title pursuant to judicial or nonjudicial foreclosure of the Mortgage, it shall not be liable for the share of the Common Expenses or assessments by the Association chargeable to such Lot which became due prior to such acquisition of title. Such unpaid share of Common Expenses or assessments shall be deemed to be Common Expenses collectible from Owners of all the Member and Associate Member Lots, including such acquirer, its successors and assigns. Additionally, such acquirer shall be responsible for all charges accruing subsequent to the passage of title, including, but not limited to, all charges for the month in which title is passed.

(c) Mortgagee Notices. Upon written request to the Association, identifying the name and address of the holder and the Lot number or address, any Eligible Mortgage Holder of a Member Lot or an Associate Member Lot will be entitled to timely written notice of:


i) any condemnation loss or any casualty loss which affects a material portion of the Common Property or any Lot on which there is a first Mortgage held by such Eligible Mortgage Holder;

ii) any delinquency in the payment of assessments or charges owed by an Owner of a Member Lot or Associate Member Lot subject to a first Mortgage held by such Eligible Mortgage Holder which remains unsatisfied for a period of sixty (60) days, and any default in the performance by an individual Lot Owner of any other obligation under the Declaration or By-Laws which is not cured within sixty (60) days;

iii) any lapse, cancellation, or material modification of any insurance policy or fidelity bond maintained by the Association; or

iv) any proposed action which would require the consent of a specified percentage of Eligible Mortgage Holders, as specified herein.

(d) Any holder of a first Mortgage on a Member Lot or an Associate Member Lot shall be entitled, upon written request, to receive within a reasonable time after request, a copy of the financial statement of the Association for the immediately preceding fiscal year, free of charge to the Mortgagee so requesting.

8. ASSOCIATION RIGHTS AND RESTRICTIONS.

The Association, acting through its Board of Directors, shall have the right and authority, in addition to all other rights it may have:

(a) to make and to enforce reasonable rules and regulations governing the use of the Property and Common Property;

(b) to enforce the provisions of this Declaration, the By-Laws and rules and regulations concerning the Property and Common Property, by imposing reasonable monetary fines, suspending use and voting privileges of Members and Associate Members (as provided herein and in Section 44-3-223 of the Act), suspending memberships of Associate Members or Outside Members or revoking memberships of Outside Members, using any other legal or equitable means, including self-help, and any other available legal or equitable means. These powers, however, shall not limit any other legal means of enforcing the Declaration, By-Laws and rules and regulations by either the Association or, in an appropriate case, by an aggrieved Owner. Any fines imposed against a Member or Associate Member shall be considered an assessment against such Member’s or Associate Member's Lot;

(c) to grant permits, licenses, utility easements, and other easements, permits, public rights-of-way or licenses necessary for the proper maintenance or operation of the Common Property under, through, or over the Common Property, as may be reasonably necessary to or desirable for the ongoing development and operation of the Common Property;

(d) to control, manage, operate, maintain, replace and, in the Board's discretion, improve all portions of the Common Property in accordance with the Declaration and By-Laws;

(e) to deal with the Common Property in the event of damage or destruction as a result of casualty loss, condemnation or eminent domain, in accordance with the provisions of this Declaration;

(f) to close permanently or temporarily any portion of the Common Property with, except in emergency situations, thirty (30) days prior written notice to all Members and Associate Members; provided, however, the Members and Associate Members may re-open the closed Common Property by a majority vote of the total eligible Submitted Membership vote, cast at a duly called special or annual meeting;

(g) to represent the Association in dealing with governmental entities involving the Common Property;

(h) to acquire, hold and dispose of tangible and intangible personal property and real property; and

(i) to establish guidelines for Outside Members, if in the Board’s sole discretion such is desired.

9. INSURANCE.

(a) Hazard Insurance on Common Property and Lots. The Association's Board or its duly authorized agent shall have the authority to and shall obtain insurance for all insurable improvements on the Common Property. This insurance shall include fire and extended coverage, including coverage for 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. Alternatively, the Board may purchase "all-risk" coverage in like amounts. The Association may, upon the affirmative vote of a Majority of the Members and Associate Members present or represented by proxy at a duly called meeting of the Association, but shall under no circumstances be obligated to, change the above stated Association insurance, to require each Owner to obtain and maintain blanket insurance for all improvements on Lots.

(b) Association Liability and Directors’ and Officers’ Liability Insurance. The Board shall obtain, if possible, a public liability policy applicable to the Common Property covering the Association and its Members, Associate Members, Outside Members or their respective tenants, servants, agents or guests for all damage or injury caused by the negligence of the Association or any of its Association and its Members, Associate Members or Outside Members or agents in their capacities as such, and, if reasonably available, directors' and officers' liability insurance. The public liability policy shall have a combined single limit of at least One Million ($1,000,000.00) Dollars.

(c) Premiums and Deductible on Association Policies. Premiums for all insurance obtained by the Association shall be a Common Expense 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.

(d) Policy Terms. All such insurance coverage obtained by the Board shall be written in the name of the Association, as trustee, for the respective benefited parties, as further identified in subparagraph (ii) below. Such insurance shall be governed by the provisions hereinafter set forth:


(i) All policies shall be written with a company licensed to do business in Georgia.

(ii) All policies on the Common Property shall be for the benefit of the Association and its Members, Associate Members, Outside Members and their respective tenants, servants, agents or guests. Any policies covering improvements on Lots shall be for the benefit of Lot Owners and their Mortgagees, as their interests may appear.

(iii) Exclusive authority to adjust losses under policies obtained by the Association shall be vested in the Board; provided, however, no Mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related thereto.

(iv) In no event shall the insurance coverage obtained and maintained by the Board 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.

(v) All 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 Property is located.

(vi) The Board shall be required to make every reasonable effort to secure insurance policies that will provide for the following:


(A) a waiver of subrogation by the insurer as to any claims against the Board, the Association's manager, the Members, Associate Members or Outside Members and their respective tenants, servants, agents, and guests;

(B) a waiver by the insurer of its rights to repair and reconstruct instead of paying cash;

(C) a provision that no policy may be canceled, invalidated, suspended or subjected to non-renewal on account of any one or more individual Members, Associate Members or Outside Members;

(D) a provision that no policy may be canceled, invalidated, suspended, or subjected to non-renewal on account of any defect or the conduct of any director, officer, or employee of the Association or its duly authorized manager, if any, 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 Member, Associate Member, Outside Member or Mortgagee;

(E) that any "other insurance" clause in any policy exclude individual Members’, Associate Members’ or Outside Members’ policies from consideration; and

(F) that no policy may be canceled or substantially modified or subjected to non-renewal without at least thirty (30) days' prior written notice to the Association.

(e) Payment of Claims to Delinquent Owners. Notwithstanding anything to the contrary herein, in the event of an insured loss under the Association’s master hazard insurance policy for which the Association receives from the insurer payment for a loss sustained by a Member or an Associate Member who is delinquent in the payment of assessments owed to the Association under Paragraph 6 hereof, then the Association may retain and apply such proceeds to the delinquency. Any surplus remaining after application of the proceeds to any delinquency shall be paid by the Association to the affected Owner.

10. REPAIR AND RECONSTRUCTION.

In the event of damage to or destruction of all or any part of the Common Property insured by the Association as a result of fire or other casualty, unless eighty (80%) percent of the Members and Associate Members, including the Member(s) of any damaged Lot(s), vote not to proceed with the reconstruction and repair of the structure, the Board or its duly authorized agent shall arrange for and supervise the prompt repair and restoration of the structure. In the event of substantial damage or destruction, each institutional holder of a first Mortgage shall be entitled to written notice of the damage, and nothing in these documents shall be construed to afford a priority to any Lot Owner with respect to the distribution of proceeds to any such Lot.

(a) Cost Estimates. Immediately after a fire or other casualty causing damage to the Property, the Board shall obtain reliable and detailed estimates of the cost of repairing and restoring the structures (including any damaged Lot) to substantially the condition which existed before such casualty, allowing for any changes or improvements necessitated by changes in applicable building codes. Such costs may also include professional fees and premiums for such bonds as the Board determines to be necessary.

(b) Source and Allocation of Proceeds. If the proceeds of insurance are not sufficient to defray the estimated costs of reconstruction and repair, as determined by the Board, or if at any time during the reconstruction and repair or upon completion of reconstruction and repair the funds for the payment of the costs thereof are insufficient, a special assessment shall be made against all of the Members and Associate Members without the necessity of a vote of the Members or Associate Members or compliance with Paragraph 6(f) above. If, after repair and reconstruction is completed, there is a surplus of funds, such funds shall be common funds of the Association to be used as directed by the Board.

(c) Plans and Specifications. Any such reconstruction or repair shall be substantially in accordance with the plans and specifications under which the Property was originally constructed, except where changes are necessary to comply with current applicable building codes or where improvements not in accordance with the original plans and specifications are approved by the Board. To the extent insurance proceeds are available, the Association may reconstruct or repair owner improvements damaged as a result of fire or other casualty.

(d) Construction Fund. The net proceeds of the insurance collected on account of a casualty and the funds collected by the Association from assessments against Lot Owners on account of such casualty shall constitute a construction fund which shall be disbursed in payment of the cost of reconstruction and repair in the manner set forth in this Paragraph to be disbursed by the Association in appropriate progress payments to such contractor(s), supplier(s), Owners and/or personnel performing the work or supplying materials or services for the repair and reconstruction of the buildings as are designated by the Board.

(e) Encroachments. Encroachments upon or in favor of Lots which may be created as a result of such reconstruction or repair shall not constitute a claim or basis for any proceeding or action by the Lot Owner upon whose property such encroachment exists, provided that such reconstruction was substantially in accordance with the architectural plans under which the Property was originally constructed. Such encroachments shall be allowed to continue in existence for so long as the reconstructed building shall stand.

(f) Damage to or Destruction of Dwellings on Lots. In the event of damage to or destruction of structures on a Lot, the Owner shall proceed promptly to repair or to reconstruct the damaged structure in a manner consistent with the original construction or such other plans and specifications as are approved in accordance with Paragraph 11 of this Declaration, unless a determination not to rebuild is made by the Lot Owner in cases of substantial damage or destruction. If the structure is substantially destroyed and a determination is made not to rebuild or to reconstruct, the Owner shall clear the Lot of all debris and return it to substantially the natural state in which it existed prior to the beginning of construction, and, thereafter, the Owner shall continue to maintain the Lot in a neat and attractive condition consistent with the Community-Wide Standard.

11. MEMBER AND ASSOCIATE MEMBER RESPONSIBILITIES.

Each Member, Associate Member and Outside Member shall be responsible for ensuring that the Owner's family, guests, tenants and Occupants comply with all provisions of this Declaration, the By-Laws and the rules and regulations of the Association. Furthermore, each Member, Associate Member and Outside Member shall always endeavor to observe and promote the cooperative purposes for which the Association was established. In addition to any rights the Association may have with regard to the Member’s, Associate Member’s and Outside Member’s family, guests, tenants or Occupants, the Association may take action under this Declaration against the Member, Associate Member or Outside Member as if the Member, Associate Member or Outside Member committed the violation in conjunction with the Member’s, Associate Member’s or Outside Member’s family, guests, tenants or Occupants.

The Association expects that all Members, Associate Members, Outside Members and their respective tenants, servants, agents or guests will comply with all laws of the State of Georgia and the City of Roswell at all times while on the Property. In the event that any Member, Associate Member, Outside Member or their respective tenants, servants, agents or guests violates any of the laws of the State of Georgia or the City of Roswell while on the Property, the Association, while not obligated to enforce such provisions, may seek the prosecution of any such violation by contacting and assisting the appropriate governmental entity or by such other means as may be appropriate, as determined by the Board of Directors.

12. SALE OF LOTS.

A Lot Owner intending to make a transfer or sale of a Lot or any interest in a Lot shall give the Board written notice of such intention within seven (7) days after execution of a contract for sale of the Lot. The Owner shall furnish the Board, as part of the notice, the name and address of the intended grantee and such other information as the Board may reasonably require. This Paragraph shall not be construed to create a right of first refusal in the Association or in any third party.

Within thirty (30) days after receiving title to a Lot, the purchaser of the Lot shall give the Board written notice of his or her ownership of the Lot. Upon failure of a Owner to give the required notice within the seven-day time period provided herein, the Board may levy fines against the Lot and Owner thereof, and assess the Owner for all costs incurred by the Association in determining his or her identity.

13. MAINTENANCE.

(a) 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 grass areas, paving and other improvements situated on the Common Property. The Association shall also maintain and keep in good repair all water and sewer pipes or facilities which serve the Common Property, to the extent that such pipes and facilities are not maintained by public, private, or municipal utility companies.

The foregoing maintenance shall be performed consistent with the Community-Wide Standard. The Association shall have the right, but not the obligation, to maintain public rights of way adjacent to the Property and other property not owned by the Association if the Board determines that such maintenance would benefit the Property.

(b) Owner's Responsibility. Each Owner shall maintain and keep his or her Lot and dwelling in good repair, condition and order. In addition, each Owner shall maintain any public right of way located between the Owner's Lot and the curb of the street(s) bordering such Lot. Such maintenance shall be performed consistent with this Declaration and the Community-Wide Standard established pursuant hereto. Each Owner shall perform his or her responsibility hereunder in such manner so as not to unreasonably disturb other Lot Owners.

The Association shall not be liable for injury or damage to person or property caused by the elements or by the Owner of any Lot, or any other person, or resulting from any utility, rain, snow or ice which may leak or flow from any portion of the Common Property or from any pipe, drain, conduit, appliance or equipment which the Association is responsible to maintain hereunder. The Association shall not be liable to the Owner of any Lot or such Owner's Occupant, guest, or family, for loss or damage, by theft or otherwise, of any property which may be stored in or upon any of the Common Property. The Association shall not be liable to any Owner, or any Owner's Occupant, guest or family for any damage or injury caused in whole or in part by the Association's failure to discharge its responsibilities under this Paragraph where such damage or injury is not a foreseeable, natural result of the Association's failure to discharge its responsibilities. 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 perform some function required to be taken or performed by the Association under this Declaration, 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.

(c) Failure to Maintain. If the Board determines that any Owner has failed or refused to discharge properly his or her obligation with regard to the maintenance, repair, or replacement of items of which he or she is responsible hereunder, then, the Association shall give the Owner written notice of the Owner's failure or refusal and of the Association's right to provide necessary maintenance, repair, or replacement at the Owner's cost and expense. The notice shall set forth with reasonable particularity the maintenance, repair, or replacement deemed necessary by the Board.

Unless the Board determines that an emergency exists, the Owner shall have ten (10) days within which to complete maintenance or repair, or if the maintenance or repair is not capable of completion within such time period, to commence replacement or repair within ten (10) days. If the Board determines that: (i) an emergency exists or (ii) that an Owner has not complied with the demand given by the Association as herein provided; then the Association may provide any such maintenance, repair, or replacement at the Owner's sole cost and expense, and such costs shall be an assessment and lien against the Owner and the Lot. If, during the course of performing its maintenance responsibilities hereunder, the Association discovers that maintenance, repair or replacement is required of an item which is the Owner’s responsibility, and such maintenance, repair or replacement must be performed for the Association to properly complete its maintenance project, then the Association may perform such work on behalf of the Owner and at the Owner’s expense, without prior notice to the Owner, such being deemed an emergency situation hereunder.

If the Board determines that the need for maintenance or repair is in the Area of Common Responsibility and is caused through the willful or negligent act of any Owner or Occupant or their family, guests, lessees, or invitees, then the Association may assess the cost of any such maintenance, repair, or replacement against the Owner's or Occupant's Lot, which shall become a lien against the Lot and shall be collected as provided herein for the collection of assessments.

(d) Maintenance Standards and Interpretation. The maintenance standards and the enforcement thereof and the interpretation of maintenance obligations under this Declaration may vary from one term of the Board to another term of the Board. These variances shall not constitute a waiver by the Board of the right to adopt and enforce maintenance standards under this Paragraph. No decision or interpretation by the Board shall constitute a binding precedent with respect to subsequent decisions or interpretations of the Board.

14. GENERAL PROVISIONS.

(a) Security. The Association may, but shall not be required to, from time to time, provide measures or take actions which directly or indirectly improve safety on the Common Property; however, each Member, Associate Member and Outside Member, for himself or herself and his or her tenants, guests, licensees, and invitees, acknowledges and agrees that the Association is not a provider of security and shall have no duty to provide security on the Common Property. It shall be the responsibility of each Member, Associate Member and Outside Member to protect his or her person and property and all responsibility to provide security shall lie solely with each Member, Associate Member and Outside Member. The Association shall not be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of security measures undertaken.

(b) No Discrimination. No action shall be taken by the Association or the Board of Directors which would unlawfully discriminate against any person on the basis of race, creed, color, national origin, religion, sex, familial status or handicap.

(c) Indemnification. The Association shall indemnify every officer, director and committee member against any and all expenses, including, without limitation, attorney's fees, imposed upon or reasonably incurred by any officer, director or committee member in connection with any action, suit, or other proceeding (including settlement of any suit or proceeding, if approved by the then Board of Directors) to which such officer, director or committee member may be a party by reason of being or having been an officer, director or committee member. The officers, directors or committee members shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct, or bad faith. The officers, directors or committee members shall have no personal liability with respect to any contract or other commitment made by them, in good faith, on behalf of the Association (except to the extent that such officers, directors or committee members may also be members of the Association), and the Association shall indemnify and forever hold each such officer, director or committee member free and harmless against any and all liability to others on account of any such contract or commitment. Any right to indemnification provided for herein shall not be exclusive of any other rights to which any officer, director or committee member, or former officer, director or committee member, may be entitled. The Association shall maintain adequate general liability and officers' and directors' liability insurance to fund this obligation, if such coverage is reasonably available.

(d) Implied Rights. The Association may exercise any right or privilege given to it expressly by this Declaration, the By-Laws, the Articles of Incorporation, any use restriction or rule, and every other right or privilege reasonably to be implied from the existence of any right or privilege given to it therein or reasonably necessary to effectuate any such right or privilege.

15. EMINENT DOMAIN.
Whenever all or any part of the Common Property shall be taken or conveyed in lieu of or under threat of condemnation by any authority having power of condemnation or eminent domain, each Owner shall be entitled to notice thereof. If the taking involves a portion of the Common Property on which improvements have been constructed, then, unless within sixty (60) days after such taking at least seventy-five (75%) percent of the Members and Associate Members shall otherwise agree, the Association shall restore or replace such improvements so taken on the remaining land included in the Common Property to the extent lands are available therefor. The provisions of Paragraph 10, above, applicable to Common Property improvements damage, shall govern replacement or restoration and the actions to be taken in the event that the improvements are not restored or replaced.

16. EASEMENTS.
 (a) Easements for Encroachment and Overhang. 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, Occupant, or the Association.

(b) Easements for Use and Enjoyment. 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 or her 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 or her family, tenants, guests, and invitees;

(ii) the right of the Association to suspend the voting rights of an Owner and the right of an Owner to use the recreational facilities in the Property for any period during which any assessment against his or her Lot which is provided for herein remains unpaid and for a reasonable period of time for an infraction of the Declaration, Bylaws, or rules and regulations;

(iii) the right of the Association to borrow money as may be set forth in the Bylaws; 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 any Lot or Lot Owner, or the holder of any Mortgage, irrespective of when executed, encumbering any Lot or other property located within the Property (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 any Lot or Lot Owner, or the holder of any Mortgage, irrespective of when executed, encumbering any Lot or other property located within the Property.);

(iv) the right of the Association to grant permits, licenses or easements across the Common Property, as authorized in this Declaration or the Bylaws; and

(v) 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.

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 or her family, his or her tenants and guests, and shall be deemed to have made a delegation of all such rights to the Occupants of his or her Lot, if leased.

(c) Easements for Utilities. There is hereby reserved to the Association blanket easements upon, across, above and under all property within the Property for access, ingress, egress, installation, repairing, replacing, and maintaining all utilities serving the Property or any portion thereof, including, but not limited to, gas, water, sanitary sewer, telephone and electricity, as well as storm drainage and any other service such as, but not limited to, a master television antenna system, cable television system, or security system which the Association may have installed to serve the Property. 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.

(d) Easement for Entry. The Association shall have an easement to enter onto any Lot for emergency, security, safety, and for other purposes reasonably necessary for the proper maintenance and operation of the Property, which right may be exercised by the Association's Board of Directors, officers, agents, employees, managers, and all police officers, firemen, ambulance personnel, and similar emergency personnel in the performance of their respective duties. Except in an emergency situation, entry shall be only during reasonable hours and after notice to the Owner or Occupant. This right of entry shall include the right of the Association to enter a Lot to cure any condition which may increase the possibility of a fire or other hazard in the event that an Owner fails or refuses to cure the condition upon request by the Board.

17. AMENDMENT TO THE DECLARATION.

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 and Associate Members of the Association holding sixty-six and two-thirds (66-2/3%) percent 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 filed in the Fulton County, Georgia land records.

In addition to the above, material amendments to this Declaration must be approved by Eligible Mortgage Holders who represent at least fifty-one (51%) percent of the votes of Lots that are subject to Mortgages held by Eligible Mortgage Holders. Notwithstanding the above, the approval of any proposed amendment by an Eligible Mortgage Holder shall be deemed implied and consented to if the Eligible Mortgage Holder fails to submit a response to any written proposal for an amendment within thirty (30) days after the Eligible Mortgage Holder receives notice of the proposed amendment sent by certified or registered mail, return receipt requested.

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").

If legal action is not instituted to challenge the validity of this Declaration or any amendment hereto within one (1) year of the recording thereof in the Fulton County, Georgia land records, then such amendment or document shall be presumed to be validly adopted.

18. SEVERABILITY.
 Invalidation of any one of these covenants or restrictions by judgment or court order or otherwise shall in no way affect the application of such provision to other circumstances or affect any other provision(s), which shall remain in full force and effect.

19. DURATION.
 The covenants and restrictions of this Declaration shall run with and bind the Property perpetually to the extent provided in the Act. Notwithstanding anything to the contrary herein, neither: (1) the foreclosure of Mortgages on one or more Member or Associate Member Lots subsequent to the recording of this Declaration, nor (2) the execution of one or more Consents in a defective manner, nor (3) that, as a result of such foreclosure(s) and/or defective executions, there are less than fifty (50) Members at any time, shall affect the validity and enforceability of this Declaration as to all other Lots submitted hereto.

20. PREPARER.

This Declaration was prepared by Joaquin E. Martinez, Weissman, Nowack, Curry & Wilco, P.C., Two Midtown Plaza, 15th Floor, 1349 West Peachtree Street, Atlanta, Georgia 30309.

IN WITNESS WHEREOF, the undersigned Lot Owners at Studdiford, by execution of this Declaration, do hereby submit the Property described hereto and listed in Exhibit "A" to the terms of this Declaration and to Membership or Associate Membership in the Studdiford Property Owners’ Association, Inc., and, further, the undersigned officers of the Studdiford Property Owners’ Association, Inc., hereby certify that this Declaration was duly executed by the required number of Members and by the Board of Directors of the Association.

This day of , 2000.

STUDDIFORD PROPERTY OWNERS’

ASSOCIATION, INC.

By: [SEAL]

President

Attest: [SEAL]

Secretary

[CORPORATE SEAL]

Sworn to and subscribed to

before me this day of

, 2000.

Witness
 
Notary Public

[NOTARY SEAL]
 
[additional signatures on following pages]

[Additional signatory to Declaration]

 

The undersigned Owner(s) is/are the record Owner(s) and holder of title in fee simple to a Lot within the Studdiford Subdivision in Fulton County, Georgia, located at the address described below, and in Land Lot ______, 1st District, 2nd Section and more particularly shown as Lot _____, as shown on the plat of survey for Studdiford Subdivision recorded in Plat Book _______ , Page _______, Fulton County, Georgia records, such plat being incorporated herein by this reference. The undersigned elects the following level of Membership:

(CHECK ONE)
 
ð Member ð Associate Member

 

____________________________________

Signature of Owner

Signed, sealed and delivered

this ____ day of ,
 
20____. Print or Type Full Name of Owner

 
 
Witness Signature of Co-Owner



Notary Public Print or Type Full Name of Owner

[NOTARY SEAL]

 

Street Address