Note:
You can use Ctrl-F to search for keywords
|
DECLARATION of COVENANTS, CONDITIONS, and RESTRICTIONS for |
KNOW ALL MEN BY THESE PRESENTS, that this Declaration of Covenants,
Conditions and Restrictions for
A.
The DEVELOPER is the owner of the Property and desires to create thereon
a residential community with common facilities for the benefit of the
community. The Property being subjected to the terms and provisions of this
Declaration is described as follows:
Emerald Forest Unit 1,
according to the plat
thereof recorded in Plat
Book 33, Pages 109
and 110, of the Public
Records of
B.
The DEVELOPER desires to provide for the preservation of the values and
amenities in the community and for the maintenance of the open spaces and other
common facilities; and, to this end, desires to subject the Property to the
covenants, restrictions, easements, charges and liens, hereinafter set forth,
each and all of which is and are for the benefit of the Property and each OWNER
(as defined in Article I) thereof.
C. The DEVELOPER has deemed it desirable for the
efficient preservation of the values and amenities in the community to create
an agency to which should be delegated and assigned the powers of maintaining
and administering the community properties and facilities and administering and
enforcing the covenants and restrictions and collecting and disbursing the
assessments and charges hereinafter created.
D.
The DEVELOPER will incorporate under the laws of the State of
E.
The Property is also subject to and encumbered by the Master Declaration
(as defined in Article I). The Property and
each Lot (as defined in Article 1) shall be held, sold, conveyed, leased,
mortgaged and otherwise dealt with subject to the easements, covenants,
conditions, restrictions, reservations, liens and charges set forth in the
Master Declaration. Wherever the
provisions of this Declaration are in conflict with the Master Declaration, the
provisions of the Master Declaration shall be considered superior to and shall
overrule this Declaration.
NOW, THEREFORE, the DEVELOPER declares
that the Property shall be held, transferred, sold, conveyed and occupied
subject to the covenants, restrictions, easements, charges and liens
hereinafter set forth.
ARTICLE I
DEFINITIONS
Unless prohibited by the context in
which they are used, the following words, when used in this Declaration, shall
be defined as set out below:
Section 1. Assessment. "Assessment" shall mean and refer to those
charges made by the ASSOCIATION from time to time against each Lot within the
Property for the purposes set forth herein, as set forth in Article VI hereof.
Section 2. Association. "ASSOCIATION" shall mean the EMERALD
FOREST HOMEOWNERS- ASSOCIATION, INC., a
Section 3. Board.
"BOARD" shall mean the Board of Directors of the ASSOCIATION.
Section 4. Common Expenses. "Common Expenses" shall mean and refer to
all expenses incurred by the ASSOCIATION in connection with its ownership
and/or maintenance of the Common Property and other obligations set forth
herein, or as may be otherwise determined by the BOARD, including, but not
limited to, the amount collected by the ASSOCIATION to pay the Assessments for
Common Expenses imposed by the Master Association.
Section 5. Common Property. "Common Property" shall mean and refer to
any areas shown on the plat of the property intended for the use and enjoyment
of the MEMBERS. The ASSOCIATION has the
obligation to maintain any Common Property for the common use, benefit and
enjoyment of all OWNERS.
Section 6. Covenants. "Covenants" shall mean and refer to the
covenants, restrictions, reservations, conditions, easements, charges and liens
hereinafter set forth. All Covenants constitute "covenants running with
the land" and shall run perpetually unless terminated or amended as
provided herein, and shall be binding on all OWNERS.
Section 7. Declaration. "Declaration" shall mean this instrument,
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR EMERALD FOREST, and
all amendments or Supplements made to this instrument.
Section 8. Developer. "DEVELOPER" shall mean ENGLE
HOMES/ORLANDO, INC., a
Section 9. Governing Documents. "Governing Documents" shall mean this
Declaration, any Supplement to the Declaration and the Articles of
Incorporation and Bylaws of the ASSOCIATION, as the same may be amended from
time to time. In the event of conflict or inconsistency among Governing
Documents, to the extent permitted by law, the Declaration and any Supplement
to the Declaration, the Articles of incorporation, and the Bylaws, in that
order, shall control. One Governing Document's lack of a provision with respect
to a matter for which provision is made in another Governing Document shall not
be deemed a conflict or inconsistency between such Governing Documents.
Section 10. Improvements. "Improvements" shall mean and refer to all
structures of any kind including, without limitation, any building, fence,
wall, privacy wall, sign, paving, grating, parking and building addition,
alteration, screen enclosure, sewer, drain, disposal system, decorative
building, recreational facility, landscaping, exterior lighting or landscape
device or object.
Section 11.
Section 12. Master Association. "Master Association" shall mean and refer
to the BuenaVista Woods Homeowners Association, Inc., the
Section 13. Master Association
Assessments. "Master
Association Assessments" shall mean and refer to those charges made by the
Master Association from time to time against
Section 14. Master Documents. "Master Documents" shall mean and refer to the Master Declaration, any
Supplement to the Master Declaration and the Articles of Incorporation and Bylaws of the Master Association,
as the same may be amended from time to time.
Section 15. Member. "MEMBER" shall mean and refer to all those
OWNERS who are MEMBERS of the ASSOCIATION as provided in Article III. The term "MEMBER" shall not mean or
refer to a builder or developer (other than the DEVELOPER) who in its normal
course of business purchases a Lot for the purpose of constructing an
Improvement thereon for resale, but shall mean and refer to those persons who
(1) purchase a Lot to have a residence built for them, or (2) purchase a Lot
and the Improvements thereon during or after completion of construction.
Section 16. Owner.
"OWNER" shall mean and refer to the record owner, whether one
or more persons or entities, of the fee simple title to any Lot situated upon
the Property but, notwithstanding any applicable theory of mortgage, shall not
mean or refer to a mortgagee unless and until such mortgagee has acquired title
pursuant to foreclosure or any proceeding in lieu of foreclosure.
Section 17. Person. "Person" shall mean and include an
individual, corporation, governmental agency, business trust, estate, trust,
partnership, association, sole proprietorship, joint venture, two or more
persons having a joint or common interest, or any other legal entity.
Section 18. Property. "Property" shall mean and refer to Emerald
Forest Unit 1, according to the plat thereof recorded in Plat Book 33 Pages 109 and 110, Public Records of
Orange County, Florida.
Section 19. Resident. "Resident" shall mean and refer to the
legal occupant of any
Section 20. Street. "Street" shall mean and refer to any
street or other thoroughfare within
Section 21. Supplement. "Supplement" shall mean a document and the
exhibits thereto which when recorded in the Public Records of Orange County,
Florida, shall subject additional real property to the provisions of this
Declaration.
ARTICLE II
PROPERTY
SUBJECT TO THIS
DECLARATION AND ADDITIONS TO THE PROPERTY
Section 1. Property Subject to
Declaration. The Property is, And
shall be, held, transferred, sold, conveyed, and occupied subject to this
Declaration. The Property is part of the BuenaVista Woods development located
in
Section 2. Other Additions to the Property. The DEVELOPER reserves the right to add, or may cause to be added,
other real property not now included within the plat of the Property to the
provisions of this Declaration. Each commitment of additional property to this
Declaration shall be made by a recitation to that effect in a Supplement which
need be executed only by the DEVELOPER, and the title holder of such real
property if not the DEVELOPER, and does not require the execution or consent of
the ASSOCIATION, or any OWNERS. The Supplement shall describe the real property
which is being committed to this Declaration and made subject to the terms of
this Declaration and shall contain such other terms and provisions as the
DEVELOPER deems proper. Upon the recordation of a Supplement, such real
property described therein shall be committed to the Covenants contained in
this Declaration and shall be considered "Property" as fully as
though originally designated herein as Property.
Section 3. Mergers. Upon a merger or consolidation of the ASSOCIATION
with another association as permitted by the Articles of incorporation for the
ASSOCIATION, its properties, rights and obligations, by operation of law, may
be transferred to another surviving or consolidated association or,
alternatively, the properties, rights and obligations of another association,
by operation of law, may be added to the properties, rights and obligations of
the ASSOCIATION as a surviving corporation pursuant to a merger. The surviving
or consolidated association may administer the Covenants established by this
Declaration within the Property together with the covenants and restrictions
established by any Supplement upon any other Properties as one scheme. No such
merger or consolidation, however, shall affect any revocation, change or
addition to the Covenants within the Property, except as hereinafter provided.
ARTICLE III
Section 1. Membership. Except as is set forth in this Section 1, every
Person who is a record titleholder of a. fee or undivided fee interest in any
Lot which is subject by the Covenants to assessment by the ASSOCIATION shall be
a MEMBER of the ASSOCIATION, provided that no Person who holds such interest
merely as a security for the performance of any obligation shall be a MEMBER.
No builder or developer (other than the DEVELOPER) who in its normal course of
business purchases a Lot for the purpose of constructing an Improvement thereon
for resale shall become a MEMBER of the ASSOCIATION so long as such builder or
developer does not occupy the Improvement as a residence. Only those Persons
who purchase a Lot to have a residence built for them or a
Section 2. Member's Voting Rights. The votes of the MEMBERS shall be established and
exercised as provided in the Articles and Bylaws.
Section 3. Board of Directors. The ASSOCIATION shall be governed by the BOARD
which shall be appointed, designated, or elected, as the case may be, as
follows:
(a) Appointed
by the DEVELOPER. The DEVELOPER shall have the right to appoint all members
of the BOARD until the DEVELOPER holds less than five percent (5%) of the total
number of votes of MEMBERS as determined by the Articles.
(b) Majority
Appointed by the DEVELOPER. Thereafter, the DEVELOPER shall have the right to
appoint a majority of the members of the BOARD so long as the DEVELOPER owns
Lots within
(c) Election
of the BOARD After the DEVELOPER no
longer has the right to appoint all members of the BOARD under subsection 3(a) of
this Article III, or earlier if the DEVELOPER so elects, then, and only then,
shall any member of the BOARD be elected by the MEMBERS of the ASSOCIATION.
(d) Vacancies.
A member of the BOARD may be removed
and vacancies on the BOARD shall be filled in the manner provided by the
Bylaws. However, any member of the BOARD
appointed by the DEVELOPER may only
be removed by the DEVELOPER, and any
vacancy on the BOARD of a member appointed by the DEVELOPER shall be
filled by the DEVELOPER.
ARTICLE IV
RELATIONSHIP
WITH THE MASTER ASSOCIATION
Section 1. Creation of the Master
Association. The Master Association
was formed for the purpose of enforcing the Master Declaration and the
covenants set forth therein in accordance with the rights of enforcement provided
in the Master Declaration.
Section 2. Rights and Duties of the
ASSOCIATION. The ASSOCIATION shall
be a "Neighborhood Association" as defined in the Master Declaration.
The ASSOCIATION shall:
(a) abide by the Master Declaration and the
covenants set forth therein;
(b) enforce
this Declaration;
(c) maintain the Common Property, if any, and other
real property under its control or jurisdiction;
(d) administer
the affairs of the ASSOCIATION; and
(e) perform such other
duties as are prescribed by the Governing Documents or which may be assigned to
it from time to time by the Master Association or the DEVELOPER.
Section 3. Power of the Master
Association Over the ASSOCIATION.
The Master Association shall have the absolute power to veto any action taken
or contemplated to be taken by the ASSOCIATION if such action would conflict in
any manner with the Master Declaration. The Master Association shall receive
the same notification of each meeting of the MEMBERS of the ASSOCIATION or
board or committee thereof required by the Governing Documents of the
ASSOCIATION and a representative of the Master Association shall have the
unrestricted right to attend any such meeting. If proper notice is not given to
the Master Association, any action taken at such meeting shall be considered
null and void to the same effect as if proper notice had not been given to the
MEMBERS of the ASSOCIATION.
Section 4.
Current List of OWNERS. The
ASSOCIATION shall provide the Master Association with the names and addresses
of all OWNERS and shall notify the Master Association in writing each time
there is a change in the name and/or mailing address of an OWNER.
Section 5. Representative. The votes of the MEMBERS of the ASSOCIATION shall
be cast at meetings of the Members of the Master Association by the President
of the ASSOCIATION. The President of the ASSOCIATION shall be the
Representative to act on behalf of the MEMBERS of the ASSOCIATION at all
meetings of the Members of the Master Association. The Officers of the ASSOCIATION shall be
designated by a certificate signed by the Secretary of the ASSOCIATION, and
filed with the Secretary of the Master Association prior to the time all
proxies are due. In the absence of a revocation of same, the President shall be
deemed to be the person entitled to cast the votes of the MEMBERS of the
ASSOCIATION at any meeting of the Members of the Master Association. In the
event the President does not appear in person or by proxy at any meeting of the
Members of the Master Association, the votes of the MEMBERS of the ASSOCIATION
may be cast at the meeting by the
ASSOCIATION's Vice President, Secretary or Treasurer, in that order.
ARTICLE V
PROPERTY
RIGHTS IN THE COMMON PROPERTY
Section 1. Member's Easement of
Environment. Subject to the
provisions of Section 3, every MEMBER shall have a right and easement of
enjoyment in and to the Common Property and such easement shall be appurtenant
to and shall pass with the title to every
Section 2. Title to Common
Property. The DEVELOPER may retain
the legal title to any Common Property until such time as it has completed
improvements thereon and until such time as, in the opinion of the DEVELOPER,
the ASSOCIATION is able to maintain the same. The DEVELOPER may convey or turn
over certain portions of the Common Property and retain others. Notwithstanding
any provision in this Section 2 to the contrary, the DEVELOPER hereby
covenants, for itself, its successors and assigns, that it will convey all
Common Property located within the Property when ninety- five percent (95%) of the Lots within
Section 3. Extent of MEMBERS’
Easements. The rights and easements
of enjoyment created hereby shall be subject to the right of the ASSOCIATION to
dedicate or transfer all or any part of the Common Property to any public
agency, authority, or utility for such purposes and subject to such conditions
as may be agreed to by the MEMBERS, provided, however, that no such dedication
or transfer, determination as to the purposes or as to the conditions thereof,
shall be effective unless an instrument signed by MEMBERS entitled to cast
two-thirds (2/3) of the votes irrespective of class of membership has been
recorded, agreeing to such dedication, transfer, purpose or condition, and
unless written notice of the proposed agreement and action thereunder is sent
to every MEMBER at least ninety (90) days in advance of any action taken.
ARTICLE VI
Section 1. Creation of the Lien and
Personal Obligation of Assessments.
Each OWNER of a Lot by acceptance of a deed therefor, whether or not it shall
be so expressed in any such deed or other conveyance, hereby covenants and
agrees to pay to the ASSOCIATION: (1) the Original Assessment; (2) Annual
Assessments for Common Expenses; and (3) Special Assessments for Capital
Improvements, such Assessments to be fixed, established, and collected from
time to time as hereinafter provided. The Original, Annual and Special
Assessments, together with such interest thereon and costs of collection
thereof as are hereinafter provided, shall be a charge on the land and shall be
a continuing lien upon the Lot against which each such Assessment is made. Each
such Assessment, together with such interest thereon and cost of collection
thereof as are hereinafter provided, shall also be the personal obligation of
the person who was the OWNER of such
Section 2. Purpose of Assessments. The Assessments levied by the ASSOCIATION shall be
used exclusively for the purpose of promoting the recreation, health, safety,
and welfare of the Residents and in particular for the improvement and
maintenance of properties, services, and facilities which are devoted to the
purpose and related to the use and enjoyment of any Common Property and of the
homes situated upon the Property, including, but not limited to:
(a) Payment of operating expenses of the ASSOCIATION;
(b)
Payment of the amount due for the
maintenance of the common recreation area;
(c) Payment of amounts due the Master Association in
accordance Article VII;
(d) Lighting, improvement and beautification of Streets and
easement areas, and the acquisition, maintenance, repair and replacement of
directional markers and signs and traffic control devices, and costs of
controlling and regulating traffic on the access ways;
(e) Management, maintenance, improvement and beautification
of parks, entrance features, lakes, ponds, buffer strips, and recreation areas
and facilities;
(f) Repayment of deficits previously incurred by the
ASSOCIATION (or the DEVELOPER), if any, in making capital improvements to or
upon the Common Property, if any, and/or in furnishing the services and
facilities provided herein to or for the OWNERS and the MEMBERS of the
ASSOCIATION;
(g) Doing any other thing necessary or desirable, in the
judgment of the ASSOCIATION, to keep the Property neat and attractive or to
preserve or enhance the value of the Property, or to eliminate fire, health or
safety hazards, or which, in the judgment of the ASSOCIATION, may be of general
benefit to the OWNERS and/or Residents of lands included in the Property;
(h) Maintenance and repair of easements shown on any recorded
subdivision plat.
Section 3. Original and Annual Assessments.
(a) Original
Assessment. The Original Assessment shall be One Hundred and No/1OO Dollars
($100.00) per Lot to be paid at the time of closing on the purchase of the
(b) Annual Assessment. Until
changed by the BOARD in accordance with the
terms hereof, the Annual Assessment shall be payable annually, in advance, no
later than January 31st of each year. This Annual Assessment shall
be in addition to the above mentioned Original Assessment and shall be prorated
in the year of initial purchase of the
(c) Adjustment
to Annual Assessment. Prior to the beginning of each fiscal year, the BOARD
shall adopt a budget for such fiscal year which shall estimate all of the
Common Expenses to be incurred by the ASSOCIATION during the fiscal year. The
total Common Expenses shall be divided by the number of Lots to establish the
Annual Assessment for Common Expenses per
(d) Commencement
of First Assessment. Assessments provided herein shall first commence as to
each Lot on the day of the conveyance of title of each
Section 4. Special Assessments for
Capital Improvements. In addition to
the Assessments for Common Expenses authorized by Section 3 hereof, the BOARD
may levy in any assessment year a Special Assessment for Capital Improvements,
applicable to that year only, for the purpose of defraying, in whole or in
part, the cost of any construction or reconstruction, unexpected repair or
replacement of a described capital improvement upon any Common Property,
including the necessary fixtures and personal property related thereto,
provided that any such Assessment shall have the assent of two-thirds (2/3) of
the votes of the MEMBERS who are voting in person or by proxy at a meeting duly
called for this purpose, written notice of which shall be sent to all MEMBERS
at least thirty (30) days in advance and shall set forth the purpose of the
meeting. The Special Assessment for Capital Improvements shall be levied
against all Lots, including Lots owned by the DEVELOPER and Lots owned by
OWNERS who are not MEMBERS.
Section 5. Certificate of Payment. The ASSOCIATION shall upon demand at any time,
furnish to any OWNER liable for any Assessment a certificate in writing signed
by an officer of the ASSOCIATION, setting forth whether the Assessment has been
paid. Such certificate shall be conclusive evidence of payment of any
Assessment therein stated to have been paid.
Section 6. Payment of Assessments
for Common Expenses. Each MEMBER
shall be required to and shall pay to the ASSOCIATION an amount equal to the
Assessment, or installment, for each
Section 7. Assessments for
Common Expenses For Lots Owned by the DEVELOPER. Notwithstanding anything contained in this Article VI to the contrary, the DEVELOPER shall
not be required to pay Assessments for Lots owned by the DEVELOPER so long as
the DEVELOPER remains responsible for any shortfall in the obligations payable
by the ASSOCIATION.
Section 8. Monetary Defaults and
Collection of Assessments.
(a) Interest. If any OWNER is in default
in the payment of any Assessment for more than ten (10) days after same is due,
or in the payment of any other monies owed to the ASSOCIATION for a period of
more than ten (10) days after written demand by the ASSOCIATION, the
ASSOCIATION may charge such OWNER interest at the highest rate permitted by the
laws of Florida, on the amount owed to the ASSOCIATION. Such interest shall
accrue from the due date of the Assessment or the monies owed.
(b) Acceleration
of Assessments. If any OWNER is in default in the payment of any Assessment
or any other monies owed to the ASSOCIATION for more than ten (10) days after
written demand by the ASSOCIATION, the ASSOCIATION shall have the right to
accelerate and require such defaulting OWNER to pay to the ASSOCIATION
Assessments for Common Expenses for the next twelve (12) month period, based
upon the then existing amount and frequency of Assessments for Common Expenses.
In the event of such acceleration, the defaulting OWNER shall continue to be
liable for any increases in the regular Assessments for Common Expenses, for
all Special Assessments, and/or all other Assessments and monies payable to the
ASSOCIATION.
(c) Collection.
In the event any OWNER fails to pay any Assessment, Special Assessment or other
monies due to the ASSOCIATION within ten (10) days after written demand, the
ASSOCIATION may take any action deemed necessary in order to collect such
Assessments, Special Assessments or monies including, but not limited to,
retaining the services of a collection agency or attorney to collect such
Assessments, Special Assessments or monies, initiating legal proceedings for
the collection of such Assessments, Special Assessments or monies, recording a
claim of lien as hereinafter provided, and foreclosing same in the same fashion
as mortgage liens are foreclosed, or any other appropriate action. The OWNER
shall be liable to the ASSOCIATION for all costs and expenses incurred by the
ASSOCIATION incident to the collection of any Assessment, Special Assessment or
other monies owed to it, and the enforcement and/or foreclosure of any lien for
same, including, but not limited to, reasonable attorneys' fees, and attorneys'
fees and costs incurred on the appeal of any lower court decision, reasonable
administrative fees of the DEVELOPER and/or the ASSOCIATION, and all sums paid
by the ASSOCIATION for taxes and on account of any mortgage lien
and encumbrance in order to preserve and protect the ASSOCIATION's lien. The ASSOCIATION shall have the right to bid in the
foreclosure sale of any lien foreclosed by it for the payment of any
Assessments, Special Assessments or monies owned to it; and if the ASSOCIATION
becomes the OWNER of any Lot by reason of such foreclosure, it shall offer such
Lot for sale within a reasonable time and shall deduct from the proceeds of
such sale all Assessments, Special Assessments or monies due it. All payments
received by the ASSOCIATION on account of any Assessments, Special Assessments
or monies owed to it by any OWNER shall be first applied to payments and
expenses incurred by the ASSOCIATION, then to interest, then to any unpaid
Assessments, Special Assessments or monies owed to the ASSOCIATION in the
inverse order that the same were due.
(d) Lien for
Assessment, Special Assessment and Monies Owed to ASSOCIATION. The
ASSOCIATION shall have a lien on all property owned by an OWNER for any unpaid
Assessments (including any Assessments which are accelerated pursuant to this
Declaration), Special Assessments or other monies owed to the ASSOCIATION by
such OWNER, and for interest, reasonable attorneys' fees incurred by the
ASSOCIATION incident to the collection of the Assessments, Special Assessments
and other monies, or enforcement of the lien, for reasonable administrative
fees incurred by the DEVELOPER and/or the ASSOCIATION, and for all sums
advanced and paid by the ASSOCIATION for taxes and on account of superior
mortgages, liens or encumbrances in order to protect and preserve the ASSOCIATION's
lien. To give public notice of the
unpaid Assessment, Special Assessment or other monies owed, the ASSOCIATION may
record a claim of lien in the Public Records of Orange County, Florida, stating
the description of the
(e) Transfer
of a
(f) Subordination of the Lien to Mortgages. The
lien of the ASSOCIATION for Assessments or other monies shall be subordinate
and inferior to the lien of any mortgage in favor of an Institutional Lender so
long as the mortgage is recorded prior to the recording of a claim of lien by
the ASSOCIATION. For purposes of this Declaration, "Institutional
Lender" shall mean and refer to the DEVELOPER, a bank, savings bank,
savings and loan association, insurance company, real estate investment trust,
or any other recognized lending institution. If the ASSOCIATION's lien or its
rights to any lien for any such Assessments, Special Assessments, interest,
expenses or other monies owed to the ASSOCIATION by any OWNER is extinguished
by foreclosure of a mortgage held by an Institutional Lender, such sums shall
thereafter be Common Expenses, collectible from all OWNERS including such
acquirer, and its successors and assigns.
Section 9. Certificate as to unpaid
Assessments or Default. Upon request
by any OWNER, or an Institutional Lender holding a mortgage encumbering any
Section 10. Exempt Property. The following property subject to this Declaration
shall be exempted from the Assessments, charges and liens created herein: (a) all properties to the extent of any
easement or other interest therein dedicated and accepted by the local public
authority and devoted to public use; (b) all Common Property; and (c) all
properties exempted from taxation by the laws of the State of Florida, upon the
terms and to the extent of such legal exemption.
Notwithstanding
any provisions herein, no land or improvements devoted to dwelling use shall be
exempt from Assessments, charges or liens.
ARTICLE VII
MASTER
ASSOCIATION ASSESSMENTS
The ASSOCIATION shall include in its
budget each year an amount sufficient to pay all Master Association Annual
Assessments for the Common Expenses of the Master Association ("Master
Association Annual Assessments") levied by the Master Association against
OWNERS of Lots in the Property. The ASSOCIATION shall have the duty to collect
assessments it imposes which includes the Master Association Annual
Assessments. The Master Association Annual Assessments for the Lots shall be
timely remitted to the Master Association.
If the ASSOCIATION has not collected
its assessments from a MEMBER(S), it shall notify the Master Association of the
name and address of such MEMBER (S). The
Master Association shall be entitled to rely upon the information given by the
ASSOCIATION regarding delinquencies, and may impose a lien upon such delinquent
OWNER's
Section 1. Determination of Master
Association Annual Assessments.
Prior to the beginning of each fiscal year, the Board of Directors of the
Master Association (the "Master Association Board") shall adopt a
budget for such fiscal year which shall estimate all of the Common Expenses to
be incurred by the Master Association during the fiscal year. The Master
Association Board shall then establish the Master Association Annual Assessment
for Lots within the Property and the Master Association shall then promptly
notify the ASSOCIATION in writing of the amount, frequency, and due dates of
the Master Association Annual Assessment for all Lots within the Property. From time to time during the fiscal year, the
Master Association Board may revise the budget for the fiscal year. Pursuant to
the revised budget, the Master Association Board may, upon written notice to
the ASSOCIATION, change the amount, frequency and/or due dates of the Master
Association Annual Assessments for Lots within the Property. If the expenditure
of funds is required by the Master Association in addition to funds produced by
the regular Master Association Annual Assessments, the Master Association Board
may make Master Association Special Assessments, which shall be levied in the
same manner as provided for regular Master Association Annual Assessments and
shall be payable in the manner determined by the Master Association Board as
stated in the notice of any Master Association Special Assessment.
Section 2. Payment of Master
Association Annual Assessments. The
ASSOCIATION shall be required to and shall pay to the Master Association the
Master Association Annual
Assessment, or installment, for
Lots within the Property on or before the date each Master Association Annual
Assessment, or installment, is due. In the event any Master Association Annual
Assessments are made payable in periodic payments as provided in the notice
from the Master Association, such periodic payments shall automatically continue
to be due and payable in the same amount and frequency as indicated in the
notice, unless and/or until: (1) the notice specifically provides that the
periodic payments will terminate upon the occurrence of a specified event or
the payment of a specified amount; or (2) the Master Association notifies the
ASSOCIATION in writing of a change in the amount and/or frequency of the
periodic payments. Notwithstanding the
foregoing, in no event shall any Master Association Annual Assessment payable
by the ASSOCIATION be due less than thirty (30) days from the date of the
notification of such Master Association Annual Assessment.
Section 3. Master Association
Special Assessments. The Master
Association Board may levy Master Association Assessments other than annual
operating assessments (referred to as "Master Association Special
Assessments") at any time to exercise its responsibilities as provided in
the Master Declaration. The Master Association Special Assessment may be levied
in the event that the Master Association Annual Assessment is insufficient to
pay the Master Association Common Expenses for the fiscal year; or in the event
that the Master Association reserves are insufficient to cover necessary
expenditures for Improvements or replacement; or to retire indebtedness
incurred to improve the Common Area of BuenaVista Woods; or any other purposes
that relate to the members of the Master Association. When the Master
Association levies a Master Association Special Assessment, the ASSOCIATION
shall collect such Master Association Special Assessment directly from each
OWNER and remit payment thereof promptly to the Master Association. Also a
Master Association Special Assessment may be levied by the Master Association
against an individual Lot of an OWNER for any violation of the Master
Declaration, as authorized in the Master Declarations, Articles of
Incorporation and/or Bylaws.
ARTICLE VIII
No building, fence, wall or other
structure shall be commenced, erected or maintained upon the Property, nor
shall any exterior addition to or change or alteration therein be made until
the plans and specifications showing the nature, kind, shape, height,
materials, and location of the same shall have been submitted to and approved
in writing as to harmony of external design and location in relation to
surrounding structures and topography by the Architectural Review Board as
hereinafter defined.
Section 1. Composition. Upon the recording of this Declaration, the
DEVELOPER shall form a committee known as the "Architectural Review
Board", hereinafter referred to as the "ARB", which shall
initially consist of at least three (3) persons. The ARB shall maintain this
composition until the first meeting of the MEMBERS of the ASSOCIATION. At such
meeting, the ARB shall be appointed by the BOARD and shall serve at the
pleasure of the BOARD. Provided, however, that in its selection, the BOARD
shall be obligated to appoint the DEVELOPER or his designated representative to
the ARB for so long as the DEVELOPER owns any Lots in the Property. The BOARD
shall also be obligated to appoint at least one (1) MEMBER of the ASSOCIATION
to the ARB. Neither the ASSOCIATION, the BOARD, nor the MEMBERS of the
ASSOCIATION, will have the authority to amend or alter the number of members of
the ARB, which is irrevocably herein set as three (3). No decision of the ARB
shall be binding without at least a 2/3 affirmative approval by the members.
Section 2. Duties. The
ARB shall have the following duties and powers:
(a) to approve all buildings, fences, walls or other structures which
shall be commenced, erected or maintained upon the Property and to approve any
exterior additions to or changes or alterations therein. For any of the above, the ARB shall be
furnished plans and specifications showing the nature, type, shape, height,
materials and location of the proposed Improvements. The ARB's approval will
take into consideration the harmony of the external design and location of the
proposed Improvements in relation to surrounding structures and topography.
(b) to approve any such building plans and specifications and Lot
grading and landscaping plans, and the conclusion and opinion of the ARB shall
be binding, if in its opinion, for any reason, including purely aesthetic
reasons, the ARB should determine that the Improvement, alteration, etc. is not
consistent with the planned development of the Property; and
(c) to require to
be submitted to it for approval any samples of building materials proposed or
any other data or information necessary to reach its decision.
(d) The ARB shall
have the right of specific approval or veto of all architectural, engineering,
platting, planning, and landscape aspects of any improvement or development of
individual units or building as well as the general plan for the development of
any individual lot or subdivision, tract or parcel of land within the Property.
All construction and development within the Property is subject to local
governmental control; provided, further, that the ARB may, in its sole
discretion, impose standards of architectural and landscaping design, building
setback lines or the general plan for development, which standards may be
greater or more stringent than standards prescribed in applicable building,
zoning, planning or other local governmental codes. Such further rules and
regulations as the ARB deems necessary to carry out its functions and purposes
hereunder shall be adopted and referred to as the “Architectural Review Board Criteria.” Said Architectural Review Board Criteria
shall be filed with and made a part of the ASSOCIATION’S minutes and shall be
binding on all Members once the Architectural Review Criteria have been adopted
and made a part of the ASSOCIATION’S minutes and mailed to all Members at the
address provided by each Member.
ARTICLE IX
ENFORCEMENT
OF NONMONETARY DEFAULTS
Section 1. Nonmonetary Defaults. In the event of a violation by any MEMBER or OWNER
(other than the nonpayment of any Assessment, Special Assessment or other
monies) of any of the provisions of this Declaration or the Governing
Documents, the ASSOCIATION shall notify the MEMBER or OWNER of the violation,
by written notice. If such violation is
not cured as soon as practicable and in any event within seven (7) days after
the receipt of such written notice, or if the violation is not capable of being
cured within such seven (7) day period, if the MEMBER or OWNER fails to
commence and diligently proceed to completely cure as soon as practical, the
ASSOCIATION may, at its option:
(a) Specific
Performance. Commence an action to enforce the performance on the part of
the MEMBER or OWNER, or for such
equitable relief as may be necessary under the circumstances, including injunctive
relief; and/or
(b) Damages.
Commence an action to recover damages; and/or
(c) Corrective Action. Take any and
all action reasonably necessary to correct
such violation, which action may
include, but is not limited to, removing any building or Improvement for which
architectural approval has not been obtained, or performing any maintenance
required to be performed by this Declaration, including the right to enter upon
the Lot to make such corrections or modifications as are necessary, or remove anything
in violation of the provisions of this Declaration.
Section 2. Expenses. All expenses incurred by the ASSOCIATION in
connection with the correction of any violation, or the commencement of any
action against any OWNER, including administrative fees and costs and
reasonable attorneys, fees and costs, and attorneys, fees and costs incurred on
the appeal of any lower court decision, shall be a Special Assessment assessed
against the applicable OWNER, and shall be due upon written demand by the
ASSOCIATION and collectible as any other Special Assessment under this Article
or Article VI. Even if action is
not taken against any OWNER, but postage or attorney’s fees cause the
Association’s legal or postal fees to exceed $25 in a calendar year due in part
by their actions which are in conflict with the Emerald Forest Covenants,
Conditions, and Restrictions, such OWNER shall be liable for those fees,
regardless of whether said actions precipitated in legal action by the EFHOA
board. Those fees shall be due upon written demand by the ASSOCIATION
and collectible as any other Special Assessment under this Article or Article
VI.
Section 3. No Waiver. The failure of the ASSOCIATION to enforce any right,
provision, covenant or condition which may be granted by this Declaration or
the Governing Documents shall not constitute a waiver of the right of the
ASSOCIATION to enforce such right, provisions, covenant or condition in the
future.
Section 4. Rights Cumulative. All rights, remedies and privileges granted to the
ASSOCIATION pursuant to any terms, provisions, covenants or conditions of this
Declaration or the Governing Documents shall be deemed to be cumulative, and
the exercise of any one or more shall neither be deemed to constitute an
election of remedies, nor shall it preclude the ASSOCIATION thus exercising the
same from executing such additional remedies, rights or privileges as may be
granted or as it might have by law.
Section 5. Enforcement by or
Against Other Persons. In addition
to the foregoing, this Declaration may be enforced by the DEVELOPER, or the
ASSOCIATION, by any procedure at law or in equity against any Person violating
or attempting to violate any provision herein, to restrain such violation, to
require compliance with the provisions contained herein, to recover damages, or
to enforce any lien created herein. The expense of any litigation to enforce
this Declaration shall be borne by the Person against whom enforcement is
sought, provided such proceeding results in a finding that such Person was in
violation of this Declaration. In
addition to the foregoing, any OWNER shall have the right to bring an action to
enforce this Declaration against any Person violating or attempting to violate
any provision herein, to restrain such violation or to require compliance with
the provisions contained herein, but no OWNER shall be entitled to recover
damages or to enforce any lien created herein as a result of a violation or
failure to comply with the provisions contained herein by any Person. The prevailing party in any such action shall
be entitled to recover its reasonable attorneys, fees and costs, including
reasonable attorneys' fees and costs incurred on the appeal of any lower court
decision.
Section 6. Certificate as to
Default. Upon request by any MEMBER,
or OWNER, or an Institution Lender holding a mortgage encumbering any
Section 7. Circumventing the
Association. Any
ARTICLE X
The Property shall be subject to the
following Restrictions, reservations and conditions, which shall be binding
upon each and every OWNER who shall acquire hereafter a
Section 1. Mining or Drilling. There shall be no mining, quarrying or drilling for
minerals, oil, gas or otherwise undertaken within any portion of the Property.
Exceptions from the foregoing shall be activities of the ASSOCIATION, or any
assignee of the ASSOCIATION, in dredging the water areas, creating land areas
from water areas or creating, excavating or maintaining drainage or other
facilities or easements, the installation of wells or pumps in compliance with
applicable governmental requirements, or for sprinkler systems for any portions
of the Property.
Section 2. Clothes Drying Areas. No portion of the Property shall be used as a drying
or hanging area for laundry without prior express written permission from the
ARB. Any approved clotheslines must be
of temporary construction, may only be used in the rear of the Property, and
must be removed when not in use.
Section
3. Antennas, Aerials, Discs and Flagpoles. No outside antennas, antenna poles, antenna masts, satellite television
reception devices, electronic devices, antenna towers or citizen band (CB) or
amateur band (ham) antennas shall be permitted without prior express written permission from the ARB. A flagpole
for display of the American flag shall be permitted only after receiving prior
express written permission from the ARB, both as to its design, height, and
location, to ensure it is displayed in a tasteful manner as described in
Chapter 720. No flagpole shall be used as an antenna.
Section 4. Games and Play
Structures. The locations, materials
and design of all basketball backboards and any other fixed or temporary games
and play structures shall be subject to the prior express written permission of
the ARB. Subject to such approval from
the ARB, all basketball backboards and any other fixed or temporary games and
play structures shall be maintained by each respective OWNER in first-class
condition and repair. Treehouse or
platforms of a like kind, character, or nature shall not be constructed between
the rear line of the residence constructed or proposed to be constructed upon
said Lot and the street fronting said
Section 5. Litter. No garbage, trash, recyclables or yard waste shall
be deposited, dumped or kept upon any part of the Property except in closed
containers, dumpsters or other garbage collection facilities deemed suitable by
the ASSOCIATION. All containers,
dumpsters and other garbage collection facilities shall be screened, to the
extent reasonable under the circumstances, from view from outside the
Section 6. Subdivision or
Partition. No portion of the
Property shall be subdivided except with the ASSOCIATION's prior express
written permission.
Section 7. Casualty Destruction to
Improvements. In the event an
Improvement is damaged or destroyed by casualty, hazard or other loss, then,
within a reasonable period of time after such incident, the OWNER thereof shall
either commence to rebuild or repair the damaged improvement and diligently
continue such rebuilding or repairing activities to completion or, upon a
determination by the OWNER that the Improvement will not be repaired or
replaced promptly, shall clear the damaged Improvement and grass over and
landscape such Lot in a sightly manner consistent with the DEVELOPER's plan for
beautification of the Property. A destroyed improvement shall only be replaced
with an Improvement of an identical size, type and elevation as that destroyed
unless the prior written consent of the ARB is obtained.
Section 8. Common Property. Nothing shall be stored, constructed within or
removed from the Common Property other than by the ASSOCIATION or an individual
or entity contracted by the ASSOCIATION for the purpose of maintaining or
improving the Common Property, unless prior written approval of the BOARD is
obtained.
Section 9. Insurance Rates. Nothing shall be done or kept on the Common Property
which shall increase the insurance rates of the ASSOCIATION without the prior
express written consent of the BOARD.
Section 10. Drainage Areas.
(a) No structure
of any kind shall be constructed or erected, nor shall an OWNER in any way
change, alter, impede, revise or otherwise interfere with the flow and the
volume of water in any portion of any drainage areas without the prior express
written permission of the ASSOCIATION.
(b) No OWNER
shall in any way deny or prevent ingress and egress by the ASSOCIATION or the
Master Association to any drainage areas for maintenance or landscape purposes.
The right of ingress and egress, and easements therefore, are hereby
specifically reserved and created in favor of the ASSOCIATION, the Master
Association or any appropriate governmental or quasi-governmental agency that
may reasonably require such ingress and egress.
(c) No
(d) Any
wall, fence, paving, planting or other improvement which is placed by an OWNER
within a drainage area or drainage easement shall be removed if required by the
ASSOCIATION or the Master Association, the cost of which shall be paid for by
such OWNER as a Special Assessment.
Section
11. Pets, Livestock and Poultrv. No
animals, livestock or poultry of any kind shall be raised, bred or kept within
the Property, other than household pets provided they are not kept, bred or
maintained for any commercial purpose, and provided that they do not become a
nuisance or annoyance to any other OWNER. No pet shall be allowed outside a
Commercial activities involving pets shall not be allowed. The
ASSOCIATION may establish limits on the number and kind of pets that may be
kept or permitted to be kept on any
Section 12. Signs. No signs, freestanding or otherwise installed, shall
be erected or displayed to the public view on any
a) A “For Sale” or “For Rent” sign of not greater than five (5) square feet in size, hung from a wooden cantilever post and being of the standard preprinted type commonly used by realtors, which may only be located in the front yard of the Lot, and which must be removed within forty-eight (48) hours after the sale closing or rental occupancy;
b) Preprinted standard political signs supporting candidates for election, which must be removed within forty-eight (48) hours after the election is concluded.
Section 13. Garbage Containers, Oil
and Gas Tanks, Pool Equipment, Outdoor Equipment. All garbage and trash containers, oil tanks, bottled
gas tanks, and swimming pool equipment and housing must be underground or
placed in walled-in areas or landscaped areas so that they are not visible from
any adjoining
Section 14. Solar Collectors/Solar
Heaters. Solar collectors and or
solar heating units shall not be permitted without the prior express written
permission of the ARB. Approval of the
ARB shall require that the solar collectors and/or solar heating units be so
located on the
Section 15. Maintenance of the
Property. In order to maintain the
standards of
Section 16. Vehicles and Recreational
Equipment. No truck or commercial
vehicle, mobile home, motor home, house camper, boat, boat trailer or other
recreational equipment, horse trailer or van, or the like, including
disabled vehicles, shall be permitted to be parked or to be stored at any place
on any portion of the Property unless they are parked within a garage, or
unless the ASSOCIATION has specifically designated certain spaces for some or
all of the above. This prohibition on parking shall not apply to temporary
parking of trucks and commercial vehicles used for pick-up, delivery and repair
and maintenance of a
Any such vehicle or recreational
equipment parked in violation of these or other regulations contained herein or
in the Rules and Regulations adopted by the ASSOCIATION and/or the Master
Association may be towed by the ASSOCIATION and/or the Master Association at
the sole expense of the owner of such vehicle or recreational equipment if it
remains in violation for a period of twenty-four (24) consecutive hours or for
forty-eight (48) nonconsecutive hours in any seven (7) day period. Neither the
ASSOCIATION nor the Master Association shall be liable to the owner of such
vehicle or recreational equipment for trespass, conversion or otherwise, nor
guilty of any criminal act by reason of such towing and neither its removal nor
failure of the owner of such vehicle or recreational equipment to receive any
notice of said violation shall be grounds for relief of any kind.
Section 17. Repairs. No maintenance or repairs shall be performed on any
vehicles upon any portion of the Property or county roadways except in an
emergency situation. Notwithstanding the
foregoing, all maintenance or repairs to disabled vehicles within the Property
must be completed within six (6) hours from its immobilization or the vehicle
must be removed.
Section 18. Prohibited Structures. No structure of a temporary character including, but
not limited to, trailer, tent, shack, shed, barn, tree house or out building
shall be parked or erected on the Property at any time without the prior
express written permission of the ARB.
Section 19. Underground Utility Lines.
All electric, telephone, gas and other utility lines must be installed underground.
Section 20.
Nuisances. No obnoxious, unpleasant,
unsightly or offensive activity shall be carried on, nor may anything be done,
which can be reasonably construed to constitute a nuisance, public or private
in nature. Any questions with regard to
the interpretation of this section shall be decided by the BOARD, whose
decision shall be final.
Section 21. Rentals. The rental of
any residence must be documented in a formal rental/lease agreement, which must
be subsequently registered with the ASSOCIATION within thirty (30) days of
signature. The rental/lease must be for a period of no less than twelve (12)
months and must be entered into between the OWNER and a single person, couple
or family. Rentals or leases to a group of individuals or families are strictly
prohibited. The rental/lease agreement must strictly prohibit the ability to
sublease to any third party.
Section 22. Home Businesses. OWNERS agree
to use their property for residential purposes only. Use of the Property for
business purposes is a violation of local zoning ordinances.
Section 23. Repetitive Group
Events. Residences may not be used for the purpose of
conducting group meetings or events on a regular basis. Any group meeting or
event must not cause traffic or safety problems due to cars parking on both
sides of the streets nor cause a nuisance to the neighbors due to cars parking
on their property or attendees walking
across or through their property.
Section 24. Compliance with
Documents. Each OWNER (including
each Resident) and his family members, guests, invitees; lessees and their
family members, guests, and invitees; and his or its tenants, licensees,
guests, invitees and sub-tenants shall be bound and abide by this
Declaration. The conduct of the
foregoing parties shall be considered to be the conduct of the OWNER
responsible for, or connected in any manner with, such individual's presence
within
Section 25. Exculpation of the
BOARD, the ASSOCIATION and the Master Association. The BOARD, the ASSOCIATION and the Master
Association may grant, withhold or deny its permission or approval in any
instance where its permission or approval is permitted or required without
liability of any nature to the OWNER or any other Person for any reason
whatsoever, and any permission or approval granted shall be binding upon all
Persons.
Section 26. No Implied Waiver. The failure of the ASSOCIATION to object to an
OWNER's or other party's failure to comply with these Covenants or any other
Governing Documents (including any Rules
and Regulations promulgated) shall in no event be deemed a waiver by the
ASSOCIATION or the Master Association, or any other
Person having an interest therein, of that OWNER's or other party's requirement
and obligation to abide by these Covenants.
Section 27. Imposition of Fines for
Violations. It is acknowledged and
agreed among all OWNERS that a violation of any of the provisions of this
Article X by an OWNER or Resident may impose irreparable harm to the other
OWNERS or Residents. All OWNERS agree
that a fine not to exceed One Hundred and No/100 Dollars ($100.00) per day may
be imposed by the ASSOCIATION for each day a violation continues given the
following conditions:
a)
Fines may only
be imposed after written notification by the ASSOCIATION and an opportunity for
a hearing before a committee of at least three (3) Members appointed by the
BOARD who are not officers, directors, or employees of the ASSOCIATION, or the
spouse, parent, child, brother, or sister of an officer, director, or employee.
If the committee, by majority vote, does not approve a proposed fine, it may
not be imposed.
b)
The requirements
of this subsection do not apply to the fines imposed upon a Member because of
the failure of the Member to pay assessments or other charges when due if such
action is authorized by the governing documents
All fines collected shall be used for the
benefit of the ASSOCIATION. Any fine levied shall be paid within fifteen (15)
days after mailing of notice of the fine. If not paid within said fifteen (15)
days the amount of such fine shall accrue interest at the highest interest rate
allowed by the laws of Florida, and shall be treated as a Special Assessment as
provided in Article VI.
MISCELLANEOUS
PROVISIONS
Section 1. Assignment of Rights and
Duties to ASSOCIATION. The DEVELOPER
may at any time assign and delegate to the ASSOCIATION all or any portion of
the DEVELOPER's rights, title, interest, duties or obligations created by this
Declaration. It is understood that the ASSOCIATION has been formed as a
property owners association in order to effectuate the intent of the DEVELOPER
for the proper development, operation and management of the Property. Wherever
herein the DEVELOPER or the ASSOCIATION, or both, are given the right, the duty
or the obligation to approve, enforce, waive, collect, sue, demand, give notice
or take any other action or grant any relief or perform any task, such action
may be taken by the DEVELOPER or the ASSOCIATION or the Master Association
until such time as the DEVELOPER has recorded a Certificate of Termination of
Interest in the Property. Thereafter, all rights, duties and obligations of the
DEVELOPER shall be administered solely by the ASSOCIATION and/or the Master
Association in accordance with procedures set forth herein, in the Governing
Documents and in the Master Declaration.
Section 2. Waiver. The failure of the DEVELOPER or the ASSOCIATION to
insist upon the strict performance of any provision of this Declaration shall
not be deemed to be a waiver of such provision unless the DEVELOPER or the
ASSOCIATION has executed a written waiver of the provision. Any such written
waiver of any provision of this Declaration by the DEVELOPER or the ASSOCIATION
may be canceled or withdrawn at any time by the party giving the waiver.
Section 3. Covenants to Run with
the Title to the Land. This
Declaration and the Covenants, as amended and supplemented from time to time as
herein provided, shall be deemed to run with the title to the land, and shall
remain in full force and effect until terminated in accordance with the
provisions set out herein.
Section 4. Term of this
Declaration. All of the foregoing
covenants, conditions, reservations and restrictions shall run with the land
and continue and remain in full force and effect at all times as against all
OWNERS, their successors, heirs or assigns, regardless of how the OWNERS
acquire title, for a period of fifty (50) years from the date of this
Declaration, unless within such time, one hundred percent (100%) of the MEMBERS of the ASSOCIATION
execute a written instrument declaring a termination of this Declaration and
the MEMBERS establish a method of taking care of the Common Property, if any,
and paying the expenses of the ASSOCIATION which is acceptable to the Master
Association. After such fifty (50) year period, unless sooner terminated as
provided above, these covenants, conditions, reservations and restrictions
shall be automatically extended for successive periods of ten (10) years each, until
a majority of the votes of the entire membership of the ASSOCIATION execute a
written instrument declaring a termination of this Declaration and such
termination is approved by the Master Association. Any termination of this
Declaration shall be effective on the date the instrument of termination is
recorded in the Public Records of Orange County, Florida, provided, however,
that any such instrument, in order to be effective, must be approved in writing
and signed by the DEVELOPER so long as the DEVELOPER owns any portion of the
Property.
Section 5. Amendments of this
Declaration. The ASSOCIATION may
amend this Declaration by the recordation of an amendatory instrument in the
Public Records of Orange County, Florida, executed by the ASSOCIATION only. This Declaration
may be amended at any time upon the approval of at least two-thirds (2/3) of the members of the BOARD as
evidenced by the recordation of an amendatory instrument executed by the
President and Secretary of the ASSOCIATION.
Section 6. Disputes. In the event there is any dispute as to the
interpretation of this Declaration or whether the use of the Property or any
portion thereof complies with this Declaration, such dispute shall be referred
to the BOARD. A determination by the BOARD with respect to any dispute shall be
final and binding on all parties concerned.
Section 7. Litigation. No judicial or administrative proceeding shall be
commenced or prosecuted by the ASSOCIATION unless approved by eighty percent
(80%) of all the votes entitled to be cast by all of the OWNERS. This Section shall not apply, however, to (a)
actions brought by the ASSOCIATION to enforce the provisions of this
Declaration (including, without limitation, the foreclosure of liens), (b) the
imposition and collection of assessments as provided in Article VI hereof, (c)
proceedings involving challenges to ad valorem taxation, (d) counterclaims
brought by the ASSOCIATION in proceedings instituted against it, (e) in an
emergency where waiting to obtaining the approval of the OWNERS creates a
substantial risk of irreparable injury to the ASSOCIATION or to OWNERS or to
the property thereof, or (f) defending a lawsuit instituted against the
ASSOCIATION. This Section shall not be
amended unless such amendment is made by the BOARD or is approved by the
percentage votes, and pursuant to the same procedures, necessary to institute
proceedings as provided above.
Section 8. Governing Law. The construction, validity and enforcement of this Declaration shall be determined according to
the laws of the State of
Section
9. Invalidation. The invalidation of
any provision or provisions of this Declaration by lawful court order shall not
affect or modify any of the other provisions of this Declaration, which other
provisions shall remain in full force and effect.
Section
10. Usage. Whenever used herein, the
singular number shall include the plural and the plural the singular, and the
use of any gender shall include all genders.
Section
11. Conflict. This Declaration shall
take precedence over conflicting provisions in the Articles of Incorporation
and Bylaws of the ASSOCIATION and the Articles of Incorporation shall take
precedence over the Bylaws.
Section 12. Notice. Any notice required to be sent to any MEMBER or OWNER under the
provisions of this Declaration shall be deemed to have been properly sent when
mailed, postpaid, to the last known address of the person who appears as MEMBER
or OWNER on the records of the ASSOCIATION at the time of such mailing.
IN WITNESS THEREOF, the DEVELOPER, ENGLE HOMES/ ORLANDO,
INC. has caused this instrument to be executed in its name as of the day and
year first above written.