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NAME.
The name of the condominium is Wieuca at Roswell Condominium
(hereinafter sometimes called "Wieuca at Roswell Condominium" or the "Condominium,
" as further defined herein), which condominium is a residential condominium
which hereby submits to the Georgia Condominium Act, O.C.G.A. § 44-3-70,
et sec. (Michie 1982)
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DEFINITIONS.
Generally, terms used in this Declaration, the Bylaws,
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 Bylaws, and the Articles of Incorporation shall be defined
as follows:
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Act means the Georgia Condominium Act, O.C.G.A. §
44-3-70, et seq. (Michie 1982), as may be amended.
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Architectural Control Committee or ACC means the committee
established to exercise the architectural review powers set forth in Paragraph
13 hereof.
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Area of Common Responsibility means the Common Elements,
together with those areas, if any, which by the terms of this Declaration
or by agreement with any other Person become the Association's responsibility.
Any public rights-of-way within or adjacent to the Condominium, may be
part of the Area of Common Responsibility.
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Articles or Articles of Incorporation mean the Articles
of Incorporation of Wieuca at Roswell Condominium Association, Inc., which
have been filed with the Secretary of State of the State of Georgia.
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Association means Wieuca at Roswell Condominium Association,
Inc., a Georgia nonprofit corporation, its successors or assigns.
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Board or Board of Directors means the elected body
responsible for management and operation of the Association.
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Bylaws means the Bylaws of Wieuca at Roswell Condominium
Association, Inc., attached hereto as Exhibit "C" and incorporated herein
by this reference.
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Common Elements mean those portions of the property
subject to this Declaration which are not included within the boundaries
of a Unit, as more particularly described herein.
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Common Expenses mean the expenses incurred or anticipated
to be incurred by the Association for the general benefit of the Condominium,
including, but not limited to, those expenses incurred for maintaining,
repairing, replacing, and operating the Common Elements and Area of Common
Responsibility.
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Community-Wide Standard means the standard of conduct,
maintenance, or other activity generally prevailing within the Condominium.
Such standard may be more specifically determined by the Board and the
ACC.
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Condominium means all that property described in Exhibit
"A," attached hereto and incorporated herein by this reference, submitted
to the provisions of the Act by this Declaration.
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Condominium Instruments mean this Declaration and
all exhibits hereto, including the Bylaws and the plats and plans, all
as may be supplemented or amended.
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Effective Date means the date that this Declaration
is recorded in the Fulton County, Georgia land records.
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Limited Common Elements mean a portion of the Common
Elements reserved for the exclusive use of those entitled to occupy one
(1) or more, but less than all, Units, as more particularly set forth herein.
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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.
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Occupant means any Person occupying all or any portion
of a Unit for any period of time, regardless of whether such Person is
a tenant or the Owner of such property.
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Owner means the record titleholder of a Unit, but
shall not include a Mortgage Holder.
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Person means any individual, corporation, firm, association,
partnership, trust, or other legal entity.
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Unit means that portion of the Condominium intended
for individual ownership and use as more particularly described herein
and shall include the undivided ownership in the Common Elements assigned
to the Unit hereunder.
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LOCATION
PROPERTY DESCRIPTION FLATS AND PLANS
The Condominium subject to this Declaration and the Act
is located in Land Lot 95, of the 17th District of Fulton County, Georgia,
being more particularly described in Exhibit "A" hereto. Flats of survey
related to the Condominium were filed in Condominium Flat Book 1, Page
59, Flat Book 1, Page 60, Flat Book 1, Page 61, Flat Book 1, Page 62, Flat
Book 1, Page 79, Flat Book 1, Page 80, Flat Book 1, Page 81, Flat Book
1, Page 82 and Flat Book 1, Page 83, Fulton County, Georgia Records.
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UNITS
AND BOUNDARIES.
The Condominium is divided into seventy-four (74) separate
Units, the Limited Common Elements and the Common Elements. Each Unit consists
of a dwelling and its appurtenant percentage of undivided interest in the
Common Elements as shown on Exhibit "B" attached to this Declaration and
incorporated herein by this reference. Each Unit shall be conveyed as a
separately designated and legally described freehold estate subject to
the Act and the Condominium Instruments. The Units are depicted on the
plats of survey and the plans. Each Unit includes that part of the structure
which lies within the following boundaries:
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Vertical Boundaries. The vertical boundaries of each
dwelling listed above shall be the exterior of the outside walls of the
dwelling as the same may exist upon completion of construction, having
the dimensions and locations shown on the plat plans, foundation plans,
and elevation drawings, and filed in the Office of the Clerk of the Superior
Court of Fulton County, Georgia. Where there may be attached to such outside
wall a balcony, a stairway, a front stoop, landing steps, projecting cornices
and copings, or other portion of the building, serving only the dwelling
being bounded, such boundary shall be deemed to include all of such structures
and fixtures thereon. However, as respects an interior wall, or walls between
dwellings, the vertical boundary of each dwelling shall be fixed at the
center line of such walls between dwellings, provided that such walls are
not to be deemed party walls, but instead are part of the limited common
areas and facilities as defined elsewhere in this Declaration, serving
only the dwellings affected. Every portion of a dwelling contributing to
the support of an abutting dwelling shall be burdened with an easement
of support for the benefit of such abutting dwelling.
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Horizontal Boundaries. The horizontal boundaries of
dwellings at Wieuca at Roswell Condominium are nonexistent. For the purposes
of this Declaration, there shall not be any horizontal boundaries, either
up or down, since the dwelling is deemed to extend upward and downward
indefinitely to the extent provided by law for real property estates in
general.
In interpreting deeds and plans, the existing physical boundaries
of a Unit as originally constructed or reconstructed in substantial accordance
with the original plans thereof shall be conclusively presumed to be its
boundaries rather than the metes and bounds expressed in any deed or plan,
regardless of settling or lateral movement of the building in which the
Unit was located, and regardless of minor variance between the boundaries
shown on the plans or in a deed and those of the Unit.
The ownership of each Unit shall include, and there shall
pass with each Unit, whether or not separately described in the conveyance
thereof, that percentage of the right, title and interest in the Common
Elements attributable to such Unit, together with membership in the Association
and an undivided interest in the funds and assets held by the Association.
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COMMON
ELEMENTS.
The Common Elements consist of all portions of the Condominium
not located within the boundaries of a Unit.
Ownership of the Common Elements shall be by the Unit
Owners as tenants-in-common. The percentage of undivided interest in and
to the Common Elements attributable to each Unit is set forth in Exhibit
"B" hereto. Such percentages may be altered only by an amendment hereto
with the consent of all Owners and Mortgagees (or such lesser number as
may be prescribed by the Act)
The Common Elements shall remain undivided, and no Owner
or any other Person shall bring any action for partition or division of
the whole or any part thereof except as provided in the Act. Except as
provided for Limited Common Elements or as otherwise provided herein, each
Owner and the Association may use the Common Elements for the purposes
for which they are intended, but no such use shall enter or encroach upon
the lawful rights of the other Owners.
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LIMITED
COMMON ELEMENTS.
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The Limited Common Elements located on the Condominium and
the Units to which they are assigned are:
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Limited common areas and facilities reserved for the exclusive
use of dwelling owners, their families, servants and invitees, are the
paved approach from the sidewalk to the dwelling, the front porch or stoop,
the lawn space between the front of each dwelling and the sidewalk, all
common walls, the garbage enclosures, and the patio at the rear of the
dwelling as such patios are shown on the Plats recorded in the Fulton County
land records, or any amendments enacted in accordance with O.C.G.A. §
44-3-82. In addition, two parking spaces as may be assigned by the Board
in accordance with O.C.G.A. § 44-3-82. The limited common areas and
facilities, here made appurtenant to the respective dwellings, shall not
be altered, diminished, or enlarged by any custom or practice of the owners
and their neighbors. Should any owner cause his property to be surveyed
and the limited common areas and facilities included by demarcation with
any stake, pin, or other monument, such stake, pin or monument shall not
be placed, located, altered or permitted to remain without the continuing
approval of the Board of Directors. Limited common areas and facilities
shall not be construed or interpreted to be separate and apart from common
areas and facilities, in general, being limited only with respect to the
reserved use thereof to such dwellings;
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the portion of the Common Elements on which there is located
any portion of the air conditioning or heating system exclusively serving
a particular Unit or Units is assigned as Limited Common Element to the
Unit or Units so served; and
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any gas or electric meter which serves only one Unit is assigned
as a Limited Common Element to the Unit so served.
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The Association's Board, without need for a membership vote,
is hereby authorized to assign and to reassign Limited Common Elements,
provided that any such assignment or reassignment shall be made in accordance
with the provisions of Section 44-3-82 (b) and (c) of the Act.
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ASSOCIATION
MEMBERSHIP ANDALLOCATION OF VOTES.
All Unit Owners, by virtue of their ownership of a fee
or undivided fee interest in any Unit are members of Wieuca at Roswell
Condominium Association, Inc., and, except as otherwise provided herein
or in the Bylaws, shall be entitled to vote on all matters upon which Association
members are entitled to vote pursuant to the Condominium Instruments. Subject
to the provisions of the Condominium Instruments, each Owner shall be entitled
to one (1) vote for each Unit in which he or she holds the interest required
for membership, which vote shall be appurtenant to such Unit and shall
be weighted in accordance with the percentage of undivided interest in
the Common Elements attributable to the Unit, as set forth on Exhibit "B"
hereto.
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ALLOCATION
OF LIABILITY FOR COMMON EXPENSES.
Except as otherwise provided herein, each Unit is hereby
allocated liability for Common Expenses apportioned in accordance with
the percentage of undivided interest in the Common Elements appurtenant
to the Unit, as shown on Exhibit "B"
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Except as provided below or elsewhere in the Act or Condominium
Instruments, the amount of all Common Expenses shall be assessed against
all the Units in accordance with the above allocation of liability for
Common Expenses.
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The Board shall have the power to assess specially pursuant
to this Paragraph and to Section 44-3-80 (b) of the Act as, in its discretion,
it shall deem appropriate. Failure of the Board to do so 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 do so in the future.
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Except for expenses incurred for maintenance and repair of
items which are the Association's maintenance responsibility under the
Condominium Instruments (other than Limited Common Elements, if maintained
by the Association), any Common Expenses benefiting less than all of the
Units or significantly disproportionately benefiting all Units may be specially
assessed equitably among all of the Units which are benefited according
to the benefit received.
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Any Common Expenses occasioned by the conduct of less than
all of those entitled to occupy all of the Units or by the Occupant(s),
licensees or invitees of any such Unit(s) may be specially assessed against
such Unit(s)
For purposes of this subparagraph (b), nonuse shall constitute
a benefit to less than all Units or a significant disproportionate benefit
among all Units only when such nonuse results in an identifiable, calculable
reduction in cost to the Association.
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ASSOCIATION
RIGHTS AND RESTRICTIONS.
In addition to and not in limitation of all other rights
it may have, the Association, acting through the Board, shall have the
right:
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in accordance with Section 44-3-105 of the Act, and as otherwise
provided herein, to enter any portion of the Condominium for maintenance,
emergency or safety purposes, or otherwise to discharge its powers or responsibilities
hereunder, which right may be exercised by the Association's Board, officers,
agents, employees or managers. Except in an emergency situation, entry
into Units shall be only during reasonable hours and after reasonable notice
to the Unit Owner or Occupant;
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to make and to enforce reasonable rules and regulations governing
the use of the Condominium, including the Units, Limited Common Elements,
and Common Elements;
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to enforce use restrictions, other Declaration and Bylaws
provisions, and rules and regulations by the imposition of reasonable monetary
fines and suspension of use and voting privileges as provided in Section
44-3-76 of the Act, as amended (which shall not be construed as limiting
any other legal means of enforcement);
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to grant permits, licenses, utility easements, and other
easements;
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to control, manage, operate, maintain, improve and replace
all portions of the Area of Common Responsibility;
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to deal with the Condominium in the event of damage or destruction
as a result of casualty loss, condemnation or eminent domain, in accordance
with the provisions of the Act and this Declaration;
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to represent the Owners in dealing with governmental entities
with respect to the Area of Common Responsibility;
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to close permanently or temporarily any portion of the Common
Elements (excluding the Limited Common Elements) with sixty (60) days prior
notice to all Owners, except that, in emergency situations requiring a
temporary closing, prior notice shall not be required so long as notice
is given within three (3) days after the closing explaining the reason
for the closing. Notwithstanding the above, the Owners may re-open closed
Common Elements by a majority vote of the total Association vote, cast
at a duly called special or annual meeting. This provision shall not apply
to the seasonal closing of the swimming pool or the restriction on the
use of a portion of the common elements if necessary to enable the Association
to carry out its maintenance responsibilities;
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to require each Owner to install separate utility meters
for each Owner's Unit at the Owner's cost, or to install such meters and
assess the costs thereof against each Unit as provided herein; and
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to acquire, hold, and dispose of tangible and intangible
personal property and real property.
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ASSESSMENTS.
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Purpose of Assessment. The Association shall have
the power to levy assessments as provided herein and in the Act. The assessments
for Common Expenses provided for herein shall be used for the general purposes
of promoting the recreation, health, safety, welfare, common benefit, and
enjoyment of the Owners and Occupants as may be more specifically authorized
by the Board.
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Creation of the Lien and Personal Obligation For Assessments.
Each Owner of any Unit, 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:
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annual assessments or charges;
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special assessments, as provided for herein; and
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specific assessments against any particular Unit, established
pursuant to this Declaration, including but not limited to reasonable fines
imposed hereunder.
All such assessments, together with charges, interest, costs,
and reasonable attorney's fees actually incurred, and if the Board so elects,
rents, in the maximum amount permitted by the Act, shall be a charge on
the Unit and shall be a continuing lien upon the Unit against which each
assessment is made. Such amounts shall also be the personal obligation
of the Person who was the Owner of such Unit at the time when the assessment
fell due. Each Owner and his or her grantee shall be jointly and severally
liable for all assessments and charges due and payable at the time of any
conveyance.
Assessments shall be paid in such manner and on such dates
as may be fixed by the Board; unless otherwise provided, the annual assessments
shall be paid in equal monthly installments due on the first day of each
calendar month. No Owner may exempt himself or herself from liability for
or otherwise withhold payment of assessments for any reason whatsoever,
including, but not limited to, nonuse of the Common Elements, the Association's
failure to perform its obligations required hereunder, or inconvenience
or discomfort arising from the Association's performance of its duties.
The lien provided for herein shall have priority as provided in the Act.
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Delinquent Assessments. All assessments
and related charges not paid on or before the due date shall be delinquent,
and the Owner shall be in default.
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If any monthly installment of annual assessments or any part
thereof is not paid in full by the fifteenth (15th) day of the month or
if any other charge is not paid within ten (10) days of the due date, a
late charge equal to the greater of ten ($10.00) dollars or ten (10%) percent
of the amount not paid, or such higher amounts as may be authorized by
the Act, may be imposed without further notice or warning to the delinquent
Owner, and interest at the rate of ten (10%) percent per anum or such higher
rate as may be permitted by the Act shall accrue from the due date.
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If part payment of assessments and related charges is made,
the amount received may be applied first to costs and attorney' s fees,
then, to: (1) in order, late charges, interest, delinquent assessments,
and current assessments which are not the subject matter of a lawsuit,
and then (2), in order, to late charges, interest, delinquent assessments,
and current assessments which are the subject matter of a lawsuit.
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If assessments, fines or other charges or any part thereof
due from an Owner remain delinquent and unpaid for more than fifteen (15)
days from the date due, then the Board may accelerate and declare immediately
due all of that Owner's or Unit's unpaid installments of the annual assessment
and of any special assessment not less than ten (10) days after the date
of written notice to the Owner. Upon acceleration, that Owner shall lose
the privilege of paying the annual assessment in monthly installments for
that fiscal year.
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If assessments and other charges or any part thereof remain
unpaid more than thirty (30) days after they 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 and suspend the Owner's and/or Occupant's right to use the
Common Elements, including the right to bring or park vehicles on the Common
Elements or have guests bring or park vehicles on the Common Elements.
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If any assessment or other charge is delinquent for thirty
(30) days or more, in addition to all other rights provided in the Act
and herein, the Association shall have the right upon ten (10) days written
notice, and in compliance with any requirements set forth in the Act, to
suspend any utility services, the cost of which are an Association Common
Expense, including, but not limited to, water, electricity, heat, air conditioning
and cable television, to that Unit until such time as the delinquent assessments
and all costs permitted under this Paragraph, including reasonable attorney's
fees, are paid in full. Any costs incurred by the Association in discontinuing
and/or reconnecting any utility service, including reasonable attorney's
fees, shall be an assessment against the Unit.
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Notwithstanding the above, the Board only may suspend water,
electricity, heat or air conditioning service paid for as a Common Expense
after a final judgment or judgments in excess of a total of $750.00, or
such other amount as required by the Act, are obtained in favor of the
Association from a court of competent jurisdiction, the Association provides
the notice required to be provided by the institutional provider of such
service prior to suspension of such service, and the Association complies
with any other requirements of O.C.G.A. § 44-3-76. The utility services
shall not be required to be restored until the judgment or judgments are
paid in full, at which time the Association shall direct the utility provider
to restore the service.
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Computation of Operating Budget and Assessment. Prior
to the beginning of the Association's fiscal year, the Board shall prepare
a budget covering the estimated costs of operating the Condominium during
the coming year. The Board shall cause the budget and notice of the assessments
to be levied against each Unit for the following year to be delivered to
each member at least thirty (30) days before the beginning of the next
fiscal year.
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The budget and the assessment shall become effective unless
disapproved at a duly called special meeting by a vote of a majority of
the total Association membership. However, if a quorum is not obtained
at the special meeting, the budget shall become effective even though a
vote to disapprove the budget could not be called at this meeting. If the
membership disapproves the proposed budget or the Board fails for any reason
to determine the budget for the succeeding year, then, until a budget is
determined as provided herein, the budget in effect for the current year
shall continue for the succeeding year.
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The Board may propose a new budget at any time during the
year at a special Association meeting. The proposed budget and assessment
shall be delivered to the members at least thirty (30) days before the
beginning of the next fiscal year thereof and at least seven (7) days prior
to the special meeting. The approval procedure set forth above for budgets
considered at annual meetings shall also apply to budgets considered at
special meetings.
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Special Assessments. In addition to the annual assessment
provided for in subparagraph (b) above, the Board may at any time levy
a special assessment against all Owners, notice of which shall be sent
to all Owners. Any special assessment which would cause the average total
of special assessments levied in one fiscal year to exceed two hundred
($200.00) dollars per Unit shall be approved by a Majority of the Owners
prior to becoming effective (except as provided in Paragraph 8(b) regarding
the power to assess specially pursuant to Section 44-3-80(b) of the Act,
Paragraph 12(b) regarding repair or reconstruction of casualty damage to
or destruction of all or part of the Condominium, or Paragraph 21 regarding
allocation of condemnation proceeds)
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Capital Budget and Contribution. The Board shall prepare
an annual capital budget or evaluation which takes into account the number
and nature of replaceable assets, the expected life of each asset, and
the expected repair or replacement cost. The Board shall set the required
capital contribution, if any, in an amount sufficient to permit meeting
the Association's projected capital needs both as to amount and timing
by equal annual assessments over the period of the budget. Any required
capital contribution shall be included within the budget and assessment
as provided in subparagraph (d) of this Paragraph.
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Statement of Account. Any Owner, Mortgagee, or a Person
having executed a contract for the purchase of a Unit, or a lender considering
a loan to be secured by a Unit, shall be entitled, upon written request,
to a statement from the Association setting forth the amount of assessments
due and unpaid, including any late charges, interest, fines, or other charges
against a Unit. The Association shall respond in writing within five (5)
days of receipt of the request for a statement; provided, however, the
Association may require the payment of a fee, not exceeding ten ($10.00)
dollars or such higher amount 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 Unit as of
the date specified therein.
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Surplus Funds and Common Profits. Pursuant to Section
44-3-108 of the Act, common profits from whatever source shall be applied
to the payment of Common Expenses. Any surplus funds remaining thereafter
shall, at the Board's option, either be distributed to the Owners or credited
to the Owners' next chargeable assessment in proportion to the liability
for Common Expenses attributable to each Unit, or added to the Association's
reserve account.
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INSURANCE.
The Association shall obtain and maintain at all times,
as a Common Expense, insurance as required by Section 44-3-107 of the Act,
as amended, and as required herein. To the extent reasonably available
at reasonable cost, the Association's insurance policy shall cover any
of the following types of property contained within a Unit, regardless
of ownership:
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fixtures, improvements and alterations that are a part of
the building or structure; and
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appliances, such as those used for refrigerating, ventilating,
cooking, dishwashing, laundering, security or housekeeping. If such insurance
is not reasonably available, the Association's insurance policy may exclude
improvements and betterments made by the Unit Owner and may exclude the
finished surfaces of perimeter and partition walls, floors, and ceilings
within the Units paint, wallpaper, paneling, other wall covering, tile,
carpet and any floor covering; provided, however, floor covering does not
mean unfinished hardwood or unfinished parquet flooring)
All insurance purchased by the Association pursuant to this
Paragraph shall run to the benefit of the Association, the Board, officers,
all agents and employees of the Association, the Unit Owners, and their
respective Mortgagees, and all other persons entitled to occupy any Unit,
as their interests may appear. The Association's insurance policy 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
equals at least the replacement cost of the insured property. The Association's
insurance shall not include the Unit Owners' personal property unless the
Association advises the Unit Owners of such coverage in writing.
The Board shall make available for review by Owners a
copy of the Association's insurance policy to allow Owners to assess their
personal insurance needs, and each Owner shall have the right to obtain
additional coverage at his or her own expense.
All Association insurance coverage shall be written in
the name of the Association as trustee for itself, each of the Owners,
and the Mortgagees, if any. At least every two (2) years the Board shall
conduct an insurance review to determine if the policy in force is adequate
to meet the Association's needs and to satisfy Section 44-3-107 of the
Act. Such responsibility shall be deemed reasonably performed by the Board
requesting the Association's insurance agent to so verify.
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The Board shall utilize reasonable efforts to secure a blanket
hazard insurance policy providing "all risk" coverage in an amount equal
to full replacement cost, before application of deductibles, of all improvements
located on the Condominium property. If "all risk" coverage is not reasonably
available at reasonable cost, the Board shall obtain, at a minimum, fire
and extended coverage, including coverage for vandalism and malicious mischief,
in like amounts. The Board shall use reasonable efforts to obtain policies
that will provide the following:
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the insurer waives its rights of subrogation of any claims
against directors, officers, the managing agent, the individual Owners,
Occupants, and their respective household members;
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any "other insurance" clause contained in the master policy
shall expressly exclude individual Owners' policies from its operation;
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until the expiration of thirty (30) days after the insurer
gives notice in writing to the Mortgagee of any Unit, the Mortgagee's insurance
coverage will not be affected or jeopardized by any act or conduct of the
Owner of such Unit, the other Unit Owners, the Board, or any of their agents,
employees, or household members, nor be canceled for nonpayment of premiums;
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the master policy may not be canceled, substantially modified,
or subjected to non-renewal without at least thirty (30) days prior notice
in writing to the Board and all Mortgagees of Units;
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an agreed value endorsement and an inflation guard endorsement;
and
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the deductible amount per occurrence for coverage required
by the Act shall not exceed one thousand ($1,000.00) dollars.
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All policies of insurance shall be written with a company
licensed to do business in the State of Georgia. The company shall provide
insurance certificates to each Owner and each Mortgagee upon request.
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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.
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In no event shall the insurance coverage obtained and maintained
by the Association hereunder be brought into contribution with insurance
purchased by individual Owners or their Mortgagees, and the insurance carried
by the Association shall be primary. Each Owner shall notify the Board
of all structural improvements made by the Owner to his or her Unit. Any
Owner who obtains an individual insurance policy covering any portion of
the Condominium, other than improvements and betterments made by such Owner
at his or her expense and personal property belonging to such Owner, shall
file a copy of such individual policy or policies with the Board within
thirty (30) days after the purchase of such insurance. Such Owner shall
also promptly notify the Board in writing in the event such policy is canceled.
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In addition to the insurance required above, the Board shall
obtain as a Common Expense:
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worker's compensation insurance if and to the extent necessary
to meet the requirements of law;
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public liability insurance in amounts no less than required
by Section 44-3-107 of the Act, as amended, and officers' and directors'
liability insurance in such amounts as the Board may determine. The public
liability insurance shall contain a cross liability endorsement;
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fidelity bonds or dishonesty insurance, if reasonably available,
covering officers, directors, employees, and other persons who handle or
are responsible for handling Association funds. Such bonds, if reasonably
available, shall be in an amount consonant with the best business judgment
of the Board, but in no event less than three (3) month's assessments plus
a reasonable amount to cover all or a reasonable portion of reserve funds
in the custody of the Association at any time during the term of the bond;
provided, however, fidelity coverage herein required may be reduced based
on the implementation of financial controls which take one or more of the
following forms: (a) the Association or management company, if any, maintains
a separate bank account for the working account and the reserve account,
each with appropriate access controls and the bank in which funds are deposited
sends copies of the monthly bank statements directly to the Association;
(b) the management company, if any, maintains separate records and bank
accounts for each association that uses its services and the management
company does not have the authority to draw checks on, or to transfer funds
from, the Association's reserve account; or (c) two members of the Board
must sign any checks written on the reserve account; and
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such other insurance as the Board may determine to be necessary.
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Insurance carried by the Association as a Common Expense
shall not be required to include any part of a Unit which is not depicted
on the original plats and plans or included in the original mortgage, nor
shall the Association include public liability insurance for individual
Owners for liability arising within the Unit.
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Nothing contained herein gives any Owner or other party a
priority over any rights of first Mortgagees as to distribution of insurance
proceeds. Any insurance proceeds payable to the Owner of a Unit on which
there is a Mortgagee endorsement shall be disbursed jointly to such Unit
Owner and the Mortgagee. This is a covenant for the benefit of any such
Mortgagee and may be enforced by any such Mortgagee.
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Every Owner shall be obligated to obtain and maintain at
all times insurance covering those portions of his or her Unit to the extent
not insured by policies maintained by the Association. Upon request by
the Board, the Owner shall furnish a copy of such insurance policy or policies
to the Association. In the event that any Owner fails to obtain insurance
as required hereunder, the Association may purchase such insurance on behalf
of the Owner and assess the cost thereof to the Owner.
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Insurance Deductibles. In the event of an insured
loss, any required deductible shall be considered a maintenance expense
to be paid by the person or persons who would be responsible for such loss
in the absence of insurance. If the loss affects more than one Unit or
a Unit and the Common Elements, the cost of the deductible may be apportioned
equitably by the Board among the parties suffering loss in proportion to
each affected owner's portion of the total cost of repair or otherwise
as the Board determines equitable. Notwithstanding this, if the insurance
policy provides that the deductible will apply to each Unit separately
or to each occurrence, each Unit Owner shall be responsible for paying
any deductible pertaining to his or her Unit. If any Owner fails to pay
the deductible when required hereunder, then the Association may pay the
deductible and assess the cost to the Owner pursuant to Paragraph 8 hereof;
provided, however, where the deductible is for insurance required under
the Act, no Owner shall be assigned more than one thousand ($1,000.00)
dollars, or such higher amount as authorized by the Act, as the cost of
the deductible for any one occurrence.
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REPAIR
AND RECONSTRUCTION.
In the event of damage to or destruction of all or any
part of the Condominium as a result of fire or other casualty, unless eighty
(80%) percent of the Owners, including the Owner(s) of any damaged Unit(s),
vote not to proceed with the reconstruction and repair of the structure,
the Board or its 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 Owner with respect to the distribution
of proceeds to any such Unit.
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Cost Estimates. Promptly after a fire or other casualty
causing damage to the Condominium, the Board shall obtain reliable and
detailed estimates of the cost of repairing and restoring the structures
(including any damaged Unit) 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.
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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, the additional costs
shall be assessed against the Owners of the Unit(s) damaged in proportion
to the damage to the Units or against all Owners, in the case of insufficient
funds to cover damage to the Common Elements. This assessment shall not
be considered a special assessment as discussed in Paragraph 10(e). If
there are surplus funds after repair and reconstruction is completed, such
funds shall be common funds of the Association to be used as directed by
the Board.
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Plans and Specifications. Any such reconstruction
or repair shall be substantially in accordance with the plans and specifications
under which the Condominium 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.
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Encroachments. Encroachments upon or in favor of Units
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 Owner
upon whose property such encroachment exists, provided that such reconstruction
was substantially in accordance with the architectural plans under which
the Condominium was originally constructed. Such encroachments shall be
allowed in existence for so long as the reconstructed building shall stand.
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Construction Fund. The net proceeds of the insurance
collected on account of a casualty and the funds collected by the Association
from assessments against Owners on account of such casualty shall constitute
a construction fund which shall be disbursed in payment of the cost of
reconstruction and repair as set forth in this Paragraph to be disbursed
by the Association in appropriate progress payments to such contractor(s),
supplier(s), and personnel performing the work or supplying materials or
services for the repair and reconstruction of the buildings as are designated
by the Board.
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ARCHITECTURAL
CONTROLS
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Architectural Standards. Except as provided herein,
no Owner, Occupant, or any other person may make any encroachment onto
the Common Elements or Limited Common Elements, or make any exterior change,
alteration, or construction (including painting and landscaping), nor erect,
place or post any object, sign, clothesline, playground equipment, light
(except for reasonable seasonal decorative lights), storm door or window,
doorknob or knocker, artificial vegetation, exterior sculpture, fountains,
flags, or thing on the exterior of the buildings, in any windows, on any
Limited Common Elements, or on any other Common Elements, without first
obtaining the written approval of the Architectural Control Committee with
the exception that the American flag may be displayed on federal holidays
and that reasonable seasonal decorations and lights may be displayed during
the December holiday season. The standard for approval of such improvements
shall include, but not be limited to, aesthetic consideration, materials
to be used, harmony with the external design of the existing buildings,
Units and structures, and the location in relation to surrounding structures
and topography.
Applications for approval of any such architectural modification
shall be in writing and shall provide such information as the ACC may reasonably
require. The ACC or its designated representative shall be the sole arbiter
of such application and may withhold approval for any reason, including
purely aesthetic considerations, and it shall be entitled to stop any construction
which is not in conformance with approved plans. The Board or the ACC may
publish written architectural standards for exterior and Common Element
alterations or additions, and any request in substantial compliance therewith
shall be approved; provided, however, each such requested change shall
be in harmony with the external design of the existing buildings and Units
and the location in relation to surrounding structures and topography of
the vicinity. The ACC or the Board may allow such encroachments on the
Common Elements and Limited Common Elements as it deems acceptable.
If the ACC or its designated representative fails to approve
or to disapprove such application within forty-five (45) days after the
application and all information as the ACC may reasonably require have
been submitted, its approval will not be required and this subparagraph
(a) will be deemed complied with; provided, however, even if the requirements
of this subparagraph are satisfied, nothing herein shall authorize anyone
to construct or maintain any structure or improvement that is otherwise
in violation of the Declaration, the Bylaws, or the rules and regulations.
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Architectural Control Committee. The ACC shall constitute
a standing committee of the Association and shall consist of the Board
unless the Board delegates to other Owners the authority to serve on the
ACC. The chairperson of the ACC shall be a Board member.
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Condition of Approval. As a condition of approval
for a requested architectural change, addition, or alteration, an Owner,
on behalf of himself or herself and his or her successors-in- interest,
shall assume all responsibilities for maintenance, repair, replacement
and insurance of such change, modification, addition, or alteration. In
the Board's or ACC's discretion, an Owner may be made to verify such condition
of approval by written instrument in recordable form acknowledged by such
Owner. The Board or ACC also may establish such other conditions of approval
as it determines necessary or appropriate, including reasonable construction
commencement and completion times.
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Limitation of Liability. Review and approval of any
application hereunder may be made on any basis, including solely the basis
of aesthetic considerations only, and neither the Board nor the ACC shall
bear any responsibility for ensuring the design quality, structural integrity
or soundness of approved construction or modifications, nor for ensuring
compliance with building codes, zoning regulations and other governmental
requirements. Neither the Association, the Board, the ACC, or member thereof
shall be held liable for any injury, damages or loss arising out of the
manner or quality of approved construction on or modifications to any Unit.
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No Waiver of Future Approvals. Each Owner acknowledges
that the Board and ACC members will change from time to time and that interpretation,
application and enforcement of the architectural standards may vary accordingly.
Board or ACC approval hereunder shall not be deemed to constitute a waiver
of any right to withhold approval or consent as to any similar proposals,
plans and specifications, drawings, or matters whatever subsequently or
additionally submitted for approval or consent.
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Enforcement. Any construction, alteration, or other
work done in violation of this Paragraph shall be deemed to be nonconforming.
Upon written request from the Board, Owners shall, at their own cost and
expense, remove such construction, alteration, or other work and shall
restore the property to substantially the same condition as existed prior
to the construction, alteration, or other work. Should an Owner fail to
do so, the Board or its designees shall have the right to enter the property
and do so. All costs thereof, including reasonable attorney's fees, shall
be an assessment and lien against such Unit.
In addition, the Board shall have the authority and standing,
on behalf of the Association, to impose reasonable fines and to pursue
all legal and equitable remedies available to enforce the provisions of
this Paragraph and its or the ACC's decisions.
If any Owner or Occupant makes any exterior change, alteration,
or construction (including landscaping) upon the Common Elements in violation
hereof, he or she does so at his or her sole risk and expense, and subject
to possible removal by the Board at any time. The Board may require that
the change, alteration or construction remain on the Common Elements without
reimbursement to the Owner or Occupant for any expense he or she may have
incurred in making the change, alteration or construction.
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Planting and Gardening. There shall be no planting
or gardening on the common elements except in those areas designated by
the Board, if any, and only plants designated by the Board may be used.
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USE
RESTRICTIONS.
Each Owner shall be responsible for ensuring that the
Owner's family, guests, tenants and Occupants comply with all provisions
of the Condominium Instruments and the Association' s rules and regulations.
Furthermore, each Owner and Occupant 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 against the Owner's
family, guests, tenants or Occupants, as a result of such person's violation
of the Condominium Instruments, the Association may take action hereunder
against the Owner as if the Owner committed the violation in conjunction
with the Owner's family, guests, tenants or Occupants.
In addition to the following use restrictions, the Board
may adopt rules and regulations in accordance with the terms hereof and
of the Bylaws.
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Use of Units.
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Residential Use. Each Unit shall be used for residential
purposes only, and no trade or business of any kind may be conducted in
or from a Unit or any part of the Condominium, including business uses
ancillary to a primary residential use, except that the Owner or Occupant
residing in a Unit may conduct such ancillary business activities within
the Unit so long as
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the existence or operation of the business activity is not
apparent or detectable by sight, sound, or smell from the exterior of the
Unit;
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the business activity does not involve visitation of the
Unit by employees, clients, customers, suppliers or other business invitees;
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the business activity conforms to all zoning requirements
for the Condominium;
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the business activity does not increase traffic in the Condominium
(other than by occasional deliveries by couriers, express mail carriers,
parcel delivery services and other such similar delivery services);
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the business activity does not increase the insurance premium
paid by the Association or otherwise negatively affect the Association's
ability to obtain insurance coverage;
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the business activity is consistent with the residential
character of the Condominium and does not constitute a nuisance or a hazardous
or offensive use, or threaten the security or safety of other residents
of the Condominium, as may be determined in the sole discretion of the
Board; and
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the business activity does not result in a materially greater
use of common element facilities or Association services.
The terms "business" and "trade," as used herein, shall have
their ordinary, generally accepted meanings, and shall include, without
limitation, any occupation, work, or activity undertaken on an ongoing
basis which involves the provision of goods or services to persons other
than the provider's family and for which the provider receives a fee, compensation,
or other form of consideration, regardless of whether: (i) such activity
is engaged in full or part-time; (ii) such activity is intended to or does
generate a profit; or (iii) a license is required therefor.
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Number of Occupants. The maximum number of occupants in a
Unit shall be limited to two (2) people per bedroom in the Unit, (as such
bedrooms are depicted on the original plats and plans filed in the Fulton
County, Georgia records). "Occupancy, " for purposes hereof, shall be defined
as staying overnight in a Unit for a total of more than thirty (30) days,
either consecutive or nonconsecutive, in any calendar year. This occupancy
restriction shall not apply to require the removal of any person lawfully
occupying a Unit on the Effective Date hereof. Upon written application,
the Board shall grant variances to this restriction to comply with provisions
of the Fair Housing Amendments Act of 1988 or any amendments thereto.
If an Owner of a Unit is a corporation, partnership, trust
or other legal entity not being a natural person, the entity shall designate
in writing to the Board the name(s) of the person(s) who will occupy the
Unit. The designated person(s) to occupy the Unit may not be changed more
frequently than once every six (6) months.]
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Subdivision of Units and Outbuildings. No Unit may
be subdivided into a smaller Unit and no structure of a temporary character,
trailer, tent, shack, carport, garage, barn or other outbuilding shall
be erected by any Owner or Occupant on any portion of the Condominium,
at any time, either temporarily or permanently.
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Use of Common Elements. There shall be no obstruction
of the Common Elements, nor shall anything be kept on, parked on, stored
on or removed from any part of the Common Elements without prior written
Board consent, except as specifically provided herein.
With prior written Board approval, and subject to any
restrictions imposed by the Board, an Owner may reserve portions of the
Common Elements for use for a period of time as set by the Board. Any such
Owner who reserves a portion of the Common Elements as provided herein
shall assume, on behalf of himself or herself and his or her guests, Occupants
and family, all risks associated with the use of the Common Elements and
all liability for any damage or injury to any person or thing as a result
of such use. The Association shall not be liable for any damage or injury
resulting from such use unless such damage or injury is caused solely by
the willful acts or gross negligence of the Association, its agents or
employees.
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Use of Limited Common Elements. Use of the Limited
Common Elements is restricted exclusively to the Owners of the Unit to
which such Limited Common Elements are assigned, and said Owner's family
members, guests, tenants and invitees. Each owner shall be responsible
for maintaining the patios in a neat and clean condition.
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Prohibition of Damage, Nuisance and Noise. Without
prior written Board consent, nothing shall be done or kept on the Condominium
which would increase the rate of insurance on the Condominium or any Unit,
which would be in violation of any statute, rule, ordinance, regulation,
permit or other governmental requirements, or which would increase the
Common Expenses.
Noxious, destructive, offensive or unsanitary activity
shall not be carried on upon the Condominium. No Unit Owner or Occupant
may use or allow the use of the Unit or any portion of the Condominium
at any time, in any way or for any purpose which may endanger the health,
unreasonably annoy or disturb or cause embarrassment, or discomfort to
other Owners or Occupants, or in such a way as to constitute, in the Board's
sole opinion, a nuisance.
No Owner, Occupant or agent of such Owner or Occupant
shall do any work which, in the Board's reasonable opinion, would jeopardize
the soundness or safety of the Condominium or any structure thereon, would
reduce the value thereof, or would impair any easement or other interest
in the Condominium, without the prior written consent of all Association
members and their Mortgagees.
No damage to or waste of the Common Elements, or any part
thereof, shall be permitted by any Owner or family member or invitee of
any Owner. Each Owner shall indemnify and hold the Association and the
other Owners harmless against all loss to the Association or other Owners
resulting from any such damage or waste caused by such Owner, members of
his or her family, guests, invitees, or Occupants of his or her Unit.
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Firearms and Fireworks. The display or discharge of
firearms or fireworks on the Common Elements is prohibited; provided, however,
that the display of lawful firearms on the Common Elements is permitted
by law enforcement officers and also is permitted for the limited purpose
of transporting the firearms across the Common Elements to or from the
Owner's Unit. The term "firearms" includes "B-B" guns, pellet guns, and
other firearms of all types, regardless of size. The term "fireworks" shall
include those items as listed in O.C.G.A. § 25-10-1, as amended.
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Pets. No Owner or Occupant may keep any pets other
than generally recognized household pets on any portion of the Condominium,
and no Owner or Occupant may keep more than two (2) generally recognized
household pets per Unit; provided, however, that this requirement shall
not apply to an Owner or Occupant that has more than two (2) pets on the
Effective Date hereof. Any Owner or Occupant permitted to keep more than
two (2) pets hereunder may not replace pets that die or are otherwise removed
from the Condominium until the number of pets kept in such Unit is two
(2) or less. Notwithstanding the above, a reasonable number of generally
recognized household pets, as determined in the Board's sole discretion,
weighing less than two (2) pounds each may be kept in Units.
No potbellied pigs may be brought onto or kept at the
Condominium at any time. No pit bulldogs or other dogs determined in the
Board's sole discretion to be dangerous dogs may be brought onto or kept
on the Condominium at any time. Any pet which endangers the health of any
Owner or Occupant or which creates a nuisance or unreasonable disturbance,
as may be determined in the Board's sole discretion, must be permanently
removed from the Condominium upon seven (7) days' written notice by the
Board. If the Owner or Occupant fails to do so, the Board may remove the
pet. Any pet which, in the Board's sole discretion, presents an immediate
danger to the health, safety or property of any community member may be
removed by the Board without prior notice to the pet's owner.
Any Owner or Occupant who keeps or maintains any pet upon
the Condominium shall be deemed to have indemnified and agreed to hold
the Association, its directors, officers, and agents free and harmless
from any loss, claim or liability of any kind or character whatever arising
by reason of keeping or maintaining such pet within the Condominium.
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Parking. No Owner or Occupant may keep or bring onto
the Condominium more than two (2) vehicles per Unit at any time without
prior written Board consent; provided, however, this provision shall not
prohibit an Owner or Occupant from having guests or service vehicles park
on the Condominium if otherwise in compliance with this subparagraph. Permitted
vehicles only may be parked overnight in designated parking spaces or other
areas authorized in writing by the Board.
Disabled and stored vehicles are prohibited from being
parked on the Condominium. Boats, trailers, panel trucks, pick up trucks,
trucks with a load capacity of one (1) ton or more, vans (excluding mini-vans
or utility vehicles used as passenger vehicles and receiving a "car" or
"passenger vehicle" classification by the Georgia Department of Motor Vehicles),
recreational vehicles (RV's and motor homes), vehicles used primarily for
commercial purposes, and vehicles with commercial writings on their exteriors
are also prohibited from being parked on the Condominium, except in other
areas, if any, designated by the Board as parking areas for particular
types of vehicles. Notwithstanding the above, trucks, vans, commercial
vehicles and vehicles with commercial writings on their exteriors shall
be allowed temporarily on the Common Elements during normal business hours
for the purpose of serving any Unit or the Common Elements; provided, that
no such vehicle shall be authorized to remain on the Common Elements overnight
or for any purpose except serving a Unit or the Common Elements, without
written Board consent.
For purposes hereof, a vehicle shall be considered "disabled"
if it does not have a current license tag or is obviously inoperable. A
vehicle shall be considered "stored" if it remains on the Condominium for
fourteen (14) consecutive days or longer without prior written Board permission.
If any vehicle is parked on any portion of the Condominium
in violation hereof or in violation of the Association's rules, the Board
may place a notice on the vehicle specifying the nature of the violation
and stating that after twenty-four (24) hours the vehicle may be towed.
The notice shall include the name and telephone number of a person to contact
regarding the alleged violation. A notice also shall be conspicuously placed
at the Condominium stating the name and telephone number of the person
or entity which will do the towing. If twenty-four (24) hours after such
notice is placed on the vehicle the violation continues or occurs again
within six (6) months of such notice, the vehicle may be towed in accordance
with the notice, without further notice to the Owner or user of the vehicle.
If a vehicle is blocking another vehicle or access to
another Owner's or Occupant's Unit, is obstructing the flow of traffic,
is parked on any grassy area, is parked in a space which has been assigned
as exclusively serving another Unit, or otherwise creates a hazardous condition,
no notice shall be required and the Board may have the vehicle towed immediately.
If a vehicle is towed in accordance with this subparagraph, neither the
Association nor any officer or agent of the Association shall be liable
to any person for any claim of damage as a result of the towing activity.
The Association's right to tow is in addition to, and not in limitation
of all other rights of the Association, including the right to assess fines.
The Board may elect to impose fines or use other available sanctions, rather
than exercise its authority to tow.
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Abandoned Personal Property. Personal property, other
than an automobile as provided for in Paragraph 14(h), is prohibited from
being stored, kept, or allowed to remain for more than twenty-four (24)
hours upon any portion of the Common Elements, other than on a Limited
Common Element, without prior written Board permission. If the Board determines
that a violation exists, then, not less than two (2) days after written
notice is placed on the personal property and/or on the front door of the
property owner's Unit, if known, the Board may remove and either discard
or store the personal property in a location which the Board may determine.
The notice shall include the name and telephone number of the person or
entity which will remove the property and the name and telephone number
of a person to contact regarding the alleged violation.
The Board, in its discretion, may determine that an emergency
exists and may exercise its removal rights hereunder without prior notice
to the property owner; provided, however, in such case, the Board shall
give the property owner, if known, notice of the removal of the property
and the location of the property within three (3) days after the property
is removed.
Neither the Association nor any officer or agent thereof
shall be liable to any person for any claim of damage resulting from the
removal activity in accordance herewith. The Board may elect to impose
fines or use other available remedies, rather than exercise its authority
to remove property hereunder.
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Heating of Units in Colder Months. In order to prevent
breakage of water pipes during colder months of the year resulting in damage
to the Condominium, increased Common Expenses, and increased insurance
premiums or cancellation of insurance policies due to numerous damage claims,
the thermostats within the Units shall be maintained with the heat in an
"on" position and at a minimum temperature setting of fifty-five (550)
degrees Fahrenheit (except during power failures or periods when heating
equipment is broken) whenever the temperature is forecasted to or does
reach thirty-two (320) degrees Fahrenheit or below. Owners and Occupants
of Units shall take all steps possible on a timely basis to keep heating
equipment, including, but not limited to, the thermostat, in good working
order and repair. If during the months specified above the heating equipment
is not working properly, the Owner or Occupant shall immediately inform
the Board of this failure of the equipment and of the time needed to repair
the equipment. The Board may fine any Owner or Occupant and/or cause the
water service to the violator's Unit to be discontinued for violation hereof,
in addition to any other remedies of the Association.
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Signs. Except as may be required by legal proceedings,
no signs, advertising posters or billboards of any kind shall be erected,
placed, or permitted to remain on the Condominium without the prior written
consent of the Board or its designee, except that one (1) professional
security sign not to exceed six (6") inches by six (6") inches in size
may be displayed from within a Unit, and one (1) professionally lettered
"For Rent" or "For Sale" sign not to exceed two (2') feet by two (2') feet
in size may be displayed from within a Unit being offered for sale or for
lease. The Board shall have the right to erect reasonable and appropriate
signs on behalf of the Association.
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Rubbish, Trash, and Garbage. All rubbish, trash, and
garbage shall be regularly removed from the Unit and shall not be allowed
to accumulate therein. No garbage or trash shall be placed on the Common
Elements or Limited Common Elements outside the Unit, temporarily or otherwise,
except as provided herein. Rubbish, trash, and garbage shall be disposed
of in sealed plastic bags and either placed in proper receptacles designated
by the Board for collection or removed from the Condominium.
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Unsightly or Unkempt Conditions. The pursuit of hobbies
or other activities, including, but not limited to, the assembly and disassembly
of motor vehicles and other mechanical devices, which might tend to cause
disorderly, unsightly, or unkempt conditions, shall not be pursued or undertaken
on any part of the Condominium. Clothing, bedding, rugs, mops, appliances,
indoor furniture, and other household items shall not be placed or stored
outside the Unit. Only appropriate outdoor items, such as patio furniture,
may be kept on the porch, patio or balcony serving the Unit.
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Garage Sales. Garage sales, yard sales, flea markets,
or similar activities shall be permitted at the Condominium only with prior
written Board consent and subject to all reasonable conditions that the
Board may impose.
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Window Treatments. Unless otherwise approved in writing
by the Board, all Unit windows that face any street including Wieuca Road,
shall have window treatments and any portion thereof visible from outside
the Unit shall be white, off-white, or neutral in color.
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LEASING.
In order: (1) to protect the equity of the individual
property owners in Wieuca at Roswell Condominium Association; (2) to carry
out the purpose for which the Association was formed by preserving the
character of the Association as a private residential community of owner-occupied
homes and by preventing the Association from assuming the character of
a renter-occupied complex; (3) to ensure that resident owners control the
Association entrusted with the community purposes set forth in the Declaration;
and (4) to comply with the eligibility requirements for financing in the
secondary mortgage market insofar as such criteria provide that the project
be substantially owner-occupied, leasing or renting of units shall be prohibited,
except in accordance with the restriction imposed by this Article.
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Leasing of units (as used herein, "leasing" shall be understood
to include renting) shall not be allowed as a regular practice for business,
speculative investment, investment income, or other such purposes. Leasing
of a unit must be approved by the Board of Directors, and may be authorized
by the Board of Directors only to avoid hardship in a particular case.
The Board of Directors shall be empowered to determine whether specific
circumstances rise to the level of a hardship within the meaning of this
section. In determining whether or not a hardship exists, the Board shall
consider all relevant information, including, but not limited to, the following:
reason for desiring to lease; purchase of another residence; transfer;
intent to return to Wieuca at Roswell; market conditions for sale; and
availability of mortgage money. Whenever such approval is either withheld
or granted and any owner is dissatisfied therewith, the Secretary shall
be required to call an immediate! special meeting of the Association at
the instance of such owner. At such meeting, the proposed transaction shall
be submitted, and a majority of the vote present at said meeting, including
proxies, shall have the power to approve or disapprove said proposed transaction.
No further action by the Board shall be necessary. The owner shall be furnished
with a written certificate of the action taken.
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Any owner of a unit which is now or will be leased shall
place on file with the Board of Directors a copy of the applicable lease
agreement in effect. Any assignment, subleasing, extension, renewal, or
modification of any lease agreement, including but not limited to, changes
in the terms or duration of occupancy, shall be considered a new lease
agreement which must be approved by the Board of Directors in accordance
with the standards and procedures herein set forth, and with any implementing
rules or regulations the Board may adopt. All new lease agreements approved
under the hardship provisions of this Article shall contain the following
language, or its equivalent, and if such language is not expressly contained
therein, then such language shall be incorporated therein by existence
of this covenant on the unit. Any lessee, by occupancy in a unit, agrees
to the applicability of this covenant and incorporation of this covenant
and the following language, or its equivalent, into the lease:
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Lessee agrees to abide by and comply with all provisions
of the Declaration, the Association's By-Laws, and the rules and regulations
of the Association, and agrees to be personally obligated for the payment
of all assessments which become due during the terms of lessee's lease,
or as a consequence of lessee's activities, including, but not limited
to, activities which violate provisions of the Declaration, the By-Laws,
or the rules and regulations. Lessor is not hereby released from any obligation,
including the obligation for assessments, for which he would otherwise
be responsible, and lessee and lessor shall be jointly and severally liable
therefor.
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Any violation of the Declaration, or the Association By-Laws,
or the rules and regulations, is deemed to constitute a default under the
terms of the lease. In the event of default, lessor is authorized to terminate
the lease without liability and to evict lessee and pursue any remedies
available under Georgia law. Lessor hereby delegates and assigns to the
Association, acting through the Board, the power and authority to pursue
against lessee all remedies applicable in the event of default. In the
event the Association proceeds to evict lessee, any costs, including attorney's
fees and court costs associated with the eviction, shall be specially assessed
against the unit and the owner thereof, such being deemed hereby as an
expense which benefits the leased residence and the owner thereof.
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A lease which meets the requirements of this section is attached
hereto as Exhibit "A" hereof, which is by this reference incorporated herein.
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Mortgages Not Affected. Notwithstanding anything to the contrary
herein contained, the provisions of this Section shall not impair the right
of any first mortgagee to:
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foreclose or take title to a unit pursuant to remedies contained
in any mortgage;
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take a deed or assignment in lieu of foreclosure; or
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sell, lease, or otherwise dispose of a unit acquired by the
mortgagee.
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The Association, acting through the Board of Directors, shall
have the right to require from each lessor a damage deposit requirement
as a condition for authorizing any lease. The deposit shall not exceed
three (3) months rent and shall be used to pay for any damages to common
property or any excess expense incurred by the Association as a result
of acts or omissions of any lessees, their guests, or invitees. The deposit
shall not bear interest and, to the extent it is not applied as authorized
herein to costs of the Association, shall be returned to lessor within
thirty (30) days of the termination of the lease and removal of the lessee.
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Failure of the Association or any owner to enforce any provision
of this Section shall not constitute a waiver of the right to do so thereafter.
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Any owner of a unit who entered into a lease agreement before
the recording date of this amendment may continue to lease said unit in
accordance with the terms of this Declaration as it existed before the
adoption of this amendment during the term of said lease agreement. Any
assignment, subletting, extension, renewal, or modification of said lease
agreement, including but not limited to changes in terms of duration of
occupancy, shall be considered a new lease agreement, which must be authorized
by the Board of Directors in accordance with the standards and procedures
herein set forth, and with any implementing Rules or Regulations the Board
may adopt. Upon conveyance of said unit, any grantee thereof shall be subject
to the provisions of this amendment in addition to all other provisions
of the Declaration, By-Laws, Rules and Regulations and other condominium
documents or instruments.
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Any owner intending to lease his unit shall submit to the
Board of Directors, with the proposed lease, a notice stating the name,
age, and business and residence addresses of the intended lessee, and the
names of all family members or other persons who will be occupying the
unit. Such notice shall be executed by both the owner and intended lessee,
and shall contain an acknowledgement by the intended lessee that he has
received and read copies of the Declaration and By-Laws, both as amended,
and understands that he is bound by their provisions.
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As used herein, masculine pronouns shall be deemed to include
feminine pronouns, and singular shall be deemed to include plural.
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SALE
OF UNITS.
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In the event any owner of a unit shall seek to sell such
unit to another, and shall receive a bona fide offer in writing therefor,
from a prospective purchaser, the remaining owners shall be entitled to
notice thereof. Such owner wishing to sell shall give notice to the Board
of Directors of the Association by furnishing to them a true copy of said
bona fide offer, bearing the signatures of all parties thereto and containing
the terms thereof, whereupon the Seller shall cause copies to be circulated
and delivered to each owner of all remaining units. The remaining owners,
through the Association, or any person named by the Board of Directors,
shall have the right to purchase said dwelling upon the same terms and
conditions as set forth in the offer served upon the Board of Directors,
provided written notice of such election to purchase is given the seller
owner during the fifteen (15) day period immediately following the delivery
of the notice to the Board. Should the owner of any unit attempt to sell
his unit without affording to the other owners the right of first refusal
herein provided, such sale shall be wholly null and void and shall confer
no title, interest or right of possession whatsoever upon the intended
purchaser. The failure of, or refusal of the Board of Directors, or the
Association, or any other owner to exercise the right herein provided for
purchase shall not constitute or be interpreted to be a waiver of such
right to purchase in a subsequent instance when an owner receives a bona
fide offer from a prospective purchaser as aforesaid.
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In all cases to which the preceding paragraph applies, the
Association (and only the Association) shall have the right of market value
appraisal. If the Association elects to exercise the right, it shall so
notify the selling or leasing owner during the stated fifteen (15) day
notice period and thirty (30) additional days shall be allowed to obtain
the appraisal. If the Association finds the appraised market value to be
less that the offering first reported to the Association, it shall have
the further right (but not the obligation) to complete arbitration of the
price and terms upon which it will purchase or rent. The question shall
be submitted and award made pursuant to the Georgia Law Statutory Arbitration
and Award (O.C.G.A. § 9-9-1 et sec.) as the same may
be in effect at the time of arbitration. Arbitration shall be a condition
precedent to any suit or litigation concerning price or terms of sale or
lease. If the statute is repealed, the Association may apply to the Superior
Court of Fulton County, Georgia, for Court ordered referral to arbitration
under such rules as the Court may impose. The award made in such cases
shall be fully enforceable at the instance of either party in a suit for
specific performance or other relief sought in said Court.
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Upon the written request of any prospective transferee, purchaser,
tenant, or mortgagee, of any dwelling at Wieuca at Roswell, the Board of
Directors shall issue a written and acknowledged certificate by its officers
in recordable form, evidencing that the proposed transfer of title or possession
is not subject to the provisions of this section, or that the owners and
the Association did not elect to exercise their option to buy or regulate
the transfer in accordance with this section, and such certificate shall
be conclusive evidence of the facts contained therein.
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The leasing prohibitions shall not apply to any mortgagee
who acquires title through foreclosure or a deed in lieu. All persons occupying
such units shall be subject to the Declaration, By-Laws and Rules and Regulations.
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MAINTENANCE
RESPONSIBILITIES
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Association. Except as otherwise specifically provided
herein, the Association shall maintain and keep in good repair as a Common
Expense, the following:
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maintenance, repair, replacement and, in the discretion of
the Board, improvement of the Common Elements, including Limited Common
Elements;
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exterior maintenance upon the buildings containing the Units,
including, but not limited to, painting, repairing, replacing and caring
for the following:
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roofs (including the roof joists and trusses, crossbeams,
roof decking and underlaying, and shingles or other covering and surface
materials);
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gutters and downspouts, if any;
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exterior walls and surfaces bounding the Units, but not including
the wood, drywall, plaster or other building material on the Unit side
of the perimetrical or vertical boundaries of the Unit, and not including
foundations below a Unit;
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exterior stairways, stoops, landings, railings and steps
located on the front of a Unit;
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projecting cornices and copings;
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shutters;
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window frames and trims;
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door frames and trim; and
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the outer exterior surfaces of the rear brick wall or fence
enclosing any patio and the outer exterior surface of any brick fence enclosing
the side yard of an end unit.
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maintenance of utility lines, pipes, wires, vents, ducts,
flues, and conduits serving more than one Unit, or serving a particular
Unit up to the point where the same intersect the boundaries of the Unit
to the extent that such utility lines, pipes, wires, vents, ducts, flues,
and conduits are not maintained by public, private or municipal utility
companies;
The Association shall not be liable for injury or damage
to person or property caused by the elements or by the Owner of any Unit,
or any other person, or resulting from any utility, rain, snow or ice which
may leak or flow from any portion of the Common Elements 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 Unit 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 Elements. 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.
The Association shall repair incidental damage to any
Unit resulting from performance of work which is the responsibility of
the Association. 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.
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Unit Owner. The responsibility of the Unit Owner shall
be as follows:
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To maintain, repair and replace all portions of his or her
Unit, except those portions which are to be maintained, repaired or replaced
by the Association under subparagraph (a) of this paragraph.
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The responsibility of the Unit Owner shall include, but not
be limited to, the maintenance, repair and replacement of all fixtures
and equipment installed in his or her Unit commencing at the point where
the utility lines, pipes, wires, vents, ducts, flues, conduits or systems
intersect the boundaries of the Unit.
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The responsibility of the Unit Owner shall also include the
maintenance and repair of the wood, drywall, plaster, or other building
material on the Unit side of the exterior walls and ceilings forming the
boundaries of the Unit and the interior surfaces of any brick wall or fence
enclosing any patio.
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The Unit Owner shall also be responsible for the maintenance,
repair and replacement of the windows, glass, window screens, storm windows,
exterior doors and thresholds (including the front door, back door if any,
sliding glass doors, French doors, caulking of windows), and all door hardware,
door bells, and exterior lights, if any, serving his or her Unit as well
as the garbage container areas serving a unit.
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The maintenance and repair of those portions of the heating
and air conditioning systems serving a Unit which are located within the
Unit itself, as well as the air conditioning compressor and condenser located
outside the Unit.
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To keep in a neat, clean and sanitary condition any Limited
Common Elements serving his or her Unit.
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To perform his or her responsibility in such manner so as
not to unreasonably disturb other persons in other Units.
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To promptly report to the Association or its agent any defect
or need for repairs for which the Association is responsible.
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Not to make any alterations in the portions of the Unit which
are to be maintained by the Association.
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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 or such longer time so the Board may
permit, 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 added to and become a part
of the assessment to which such Owner is subject, shall become and be a
lien against the Unit, and shall be collected as provided herein for the
collection of assessments.
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 Unit, shall become a lien against the Unit, and shall be collected
as provided herein for the collection of assessments.
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Measures Related to Insurance Coverage.
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The Board, upon resolution, shall have the authority to require
all or any Unit Owner(s) to do any act or perform any work involving portions
of the Condominium which are the Owner's maintenance responsibility, which
will, in the Board's sole discretion, decrease the possibility of fire
or other damage in the Condominium, reduce the Association's insurance
premium(s) or otherwise assist the Board in procuring or maintaining insurance
coverage. This authority shall include, but shall not be limited to, requiring
all Owners to turn off cut-off valves during winter months for outside
water spigots; requiring Owners to insulate pipes sufficiently or take
other preventive measures to prevent freezing of water pipes; requiring
Owners to install smoke detectors; requiring Owners to make improvements
to the Units; and such other measures as the Board may reasonably require
so long as the cost of such work does not exceed the amount equal to two
months assessment of a Unit in any twelve (12) month period.
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In addition to any other rights the Association may have,
if any Unit Owner does not comply with any requirement made by the Board
pursuant to subparagraph (d)(i) above, the Association, upon fifteen (15)
days' written notice, may perform such required act or work at the Owner's
sole cost. Such cost shall be an assessment and a lien against the Unit
as provided herein. The Association shall have all rights necessary to
implement the requirements mandated by the Board pursuant to subparagraph
(d) (i) above, including, but not limited to, a right of entry during reasonable
hours and after reasonable notice to the Unit Owner or Occupant, except
that access may be had at any time without notice in an emergency situation.
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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. 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.
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PARTY
WALLS AND FENCES.
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General Rules of Law to Apply. Each wall or fence
built as a part of the original construction of the Units which shall serve
and separate any two (2) adjoining Units shall constitute a party wall
or fence and, to the extent not inconsistent with the provisions of this
Paragraph, the general rules of law regarding party walls and liability
for property damage due to negligent or willful acts or omissions shall
apply thereto.
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Sharing of Repair and Maintenance. The cost of reasonable
repair and maintenance of a party wall or fence shall be shared by the
Owners who make use of the wall or fence in equal proportions.
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Damage and Destruction. If a party wall or fence is
destroyed or damaged by fire or other casualty, then to the extent that
such damage is not covered by insurance and repaired out of the proceeds
of insurance, any Owner who has benefited by the wall or fence may restore
it, and the other Owner or Owners thereafter who are benefited by the wall
or fence shall contribute to the cost of restoration thereof in equal proportions,
without prejudice, however, to the right of any such Owners to call for
a larger contribution from the others under any rule of law regarding liability
for negligent or willful acts or omissions.
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Right to Contribution Runs With Land. The right of
any Owner to contribution from any other Owner under this Paragraph shall
be appurtenant to the land and shall pass to such Owner's successors-in-title.
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Arbitration. In the event of any dispute arising concerning
a party wall or fence, or under the provisions of this Paragraph, each
party shall appoint one (1) arbitrator. Should any party refuse to appoint
an arbitrator within ten (10) days after written request therefor by the
Board, the Board shall appoint an arbitrator for the refusing party. The
arbitrators thus appointed shall appoint one (1) additional arbitrator
and the decision by a majority of all three (3) arbitrators shall be binding
upon the parties. Compliance with this subparagraph shall be a condition
precedent to any right of legal action that either party may have against
the other in a dispute arising hereunder.
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MORTGAGEE'S
RIGHTS.
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Unless at least two-thirds (2/3) of the first Mortgagees
or Unit Owners or such higher percentage of Unit Owners and/or mortgagees
as may be required by the Act give their consent, the Association or the
membership shall not:
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by act or omission seek to abandon or terminate the Condominium;
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change the pro rata interest or obligations of any individual
Unit for the purpose of (1) levying assessments or charges or allocating
distributions of hazard insurance proceeds or condemnation awards; or (2)
determining the pro rata share of ownership of each Unit in the Common
Elements;
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partition or subdivide any Unit;
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by act or omission seek to abandon, partition, subdivide,
encumber, sell, or transfer the Common Elements (the granting of easements
or licenses, as authorized herein, shall not be deemed a transfer within
the meaning of this clause); or
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use hazard insurance proceeds for losses to any portion of
the Condominium (whether to Units or to Common Elements) for other than
the repair, replacement, or reconstruction of such portion of the Condominium.
The provisions of this subparagraph shall not be construed
to reduce the percentage vote that must be obtained from Mortgagees or
Unit Owners where a larger percentage vote is otherwise required by the
Act or the Condominium Instruments for any of the actions contained in
this Paragraph.
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Where the Mortgagee holding a first Mortgage of record or
other purchaser of a Unit obtains title pursuant to judicial or non-judicial
foreclosure of the first Mortgage, it shall not be liable for the share
of the Common Expenses or assessments by the Association chargeable to
such Unit 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 Units, 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.
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Upon written request to the Association, identifying the
name and address of the holder and the Unit number or address, any Eligible
Mortgage Holder will be entitled to timely written notice of:
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any condemnation loss or any casualty loss which affects
a material portion of the Condominium or any Unit on which there is a first
Mortgage held by such Eligible Mortgage Holder;
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any delinquency in the payment of assessments or charges
owed by an Owner of a Unit 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 Owner of any other
obligation under the Condominium Instruments which is not cured within
sixty (60) days;
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any lapse, cancellation, or material modification of any
insurance policy or fidelity bond maintained by the Association; or
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any proposed action which would require the consent of a
specified percentage of Eligible Mortgage Holders, as specified herein.
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Any holder of a first Mortgage 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.
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Notwithstanding anything to the contrary herein contained,
the provisions of Paragraphs 15 and 16 governing sales and leases shall
not apply to impair the right of any first Mortgagee to: (i) foreclose
or take title to a Unit pursuant to remedies contained in its Mortgage;
(ii) take a deed or assignment in lieu of foreclosure; or (iii) sell, lease,
or otherwise dispose of a Unit acquired by the Mortgagee.
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GENERAL
PROVISIONS.
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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 Condominium; however, each Owner, 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 Condominium. It shall
be the responsibility of each Owner to protect his or her person and property
and all responsibility to provide such security shall lie solely with each
Unit Owner.
The Association shall not be held liable for any loss
or damage by reason of failure to provide adequate security or ineffectiveness
of safety measures undertaken.
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Dispute Resolution. Prior to filing a lawsuit against
the Association, the Board, or any officer, director, or property manager
of the Association, a Unit Owner or Occupant must request and attend a
hearing with the Board. Any such request shall be in writing and shall
be personally delivered to any member of the Board or the property manager,
if any, of the Association. The Owner or Occupant shall, in such request
and at the hearing, make a good faith effort to explain the grievance to
the Board and resolve the dispute in an amicable fashion, and shall give
the Board a reasonable opportunity to address the Owner' s or Occupant's
grievance before filing suit. Upon receiving a request for a hearing, the
Board shall give notice of the date, time and place of the hearing to the
person requesting the hearing. The Board shall schedule this hearing for
a date not less than seven (7) nor more than twenty-one (21) days from
the date of receipt of the request.
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No Discrimination. No action shall be taken by the Association
or the Board which would unlawfully discriminate against any person on
the basis of race, creed, color, national origin, religion, sex, familial
status or handicap.
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Implied Rights. The Association may exercise any right or
privilege given to it expressly by this Declaration, the Bylaws, 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.
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EMINENT
DOMAIN.
In the event of a taking by condemnation or by eminent
domain, the provisions of the Act shall prevail and govern; provided, however,
that any proceeds received for a taking of the Common Elements (other than
Limited Common Elements) by condemnation or eminent domain shall, at the
option of the Board, either be: (1) distributed to the Owners, (2) credited
to future assessments due from the Owners, or (3) allocated to the Owners
and deposited into the Association's operating account or reserve account
to be applied to Common Expenses, pursuant to O.C.G.A. § 44-3-97(a),
as amended, in which case the Board shall, without the need for a vote
of the members, levy a special assessment against all Owners in an amount
consonant with each Owner's proportionate share of the proceeds. Each institutional
holder of a first Mortgage shall be entitled to written notice of any such
condemnation proceedings, and nothing in the Condominium Instruments shall
be construed to give a priority to any Owner in the distribution of proceeds
to such Unit.
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EASEMENTS.
Each Unit Owner and Occupant shall have a right and easement
of use and enjoyment in and to the Common Elements (including the right
of access, ingress and egress to and from his or her Unit over those portions
of the Condominium designated for such purpose), and such easement shall
be appurtenant to and shall pass with the title to such Unit, subject to
the rights of the Unit Owners to the exclusive use of the Limited Common
Elements assigned to their respective Units and to the right of the Association
to control the use and enjoyment of the Common Elements as provided by
the terms of this Declaration including, but not limited to, the right
of the Association to suspend voting and use privileges as provided herein.
Every portion of a Unit and all Limited Common Elements contributing to
the support of an abutting Unit shall be burdened with an easement of support
for the benefit of such abutting Unit. All portions of the Condominium
also shall be subject to easements of encroachment as provided in the Act.
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AMENDMENTS
Except where a higher vote is required for action under
any other provisions of this Declaration or by the Act, in which case such
higher vote shall be necessary to amend such provision, this Declaration
may be amended by the affirmative vote, written consent, or any combination
of affirmative vote and written consent of the members of the Association
holding sixty-six and two-thirds (66-2/3%) percent of the total eligible
vote thereof. Notice of such amendment must be given to all owners. Notice
of a meeting, if any, at which a proposed amendment will be considered
shall state the fact of consideration and the subject matter of the proposed
amendment. No amendment shall be effective until certified by the President
and Secretary of the Association and recorded in the 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 Units 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 any applicable state, city or federal law, including but
not limited to, compliance with applicable guidelines of the Federal National
Mortgage Association ("Fannie Mae"), the Department of Housing and Urban
Development ("HUD") and the Veterans Administration ("VA")
Any action to challenge the validity of an amendment adopted
under this Paragraph must be brought within one (1) year of the effective
date of such amendment. No action to challenge such amendment may be brought
after such time.
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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.
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PREPARER.