ARTICLE V

 

GENERAL PROVISIONS

 

1. Amendment. (a) This Declaration and the other Association instruments may be amended at any time and from time to time by the assent of Mandatory Members having at least two-thirds (2/3) of the total vote of Mandatory Members of the Association. The total number of votes required to approve any amendment shall not be reduced by the suspension of the rights of any member or members to vote due to action taken by the Board of Directors. So long as the same shall not (a) adversely affect the title to any Lot, (b) materially alter or change any Lot Owner’s right to the use and enjoyment of his Lot or the common areas as set forth in this Declaration, or (c) otherwise make any material change in this Declaration, each Lot Owner agrees that, if requested to do so, such Lot Owner will consent to the amendment of this Declaration or the other Association instruments or the Bylaws or Articles of Incorporation of the Association, (I) if such amendment is necessary to bring any provision hereof or thereof into compliance or conformity with, or remove any conflict or inconsistency with, the provisions of any applicable governmental statute, rule, regulation, or judicial determination which shall be in conflict therewith, (ii) if such amendment is required by the governmental statutes, laws, rules or regulations applicable to or promulgated by a governmental or quasi-governmental lender or purchaser of mortgage loans, including, for example, the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to enable such lender or purchaser to make or purchase mortgage loans on any Lot, or (iii) if any such amendment is necessary to enable any governmental agency to insure mortgage loans on the Lots based on the statutes, laws, rules or regulations applicable to or promulgated by such agency. Any provision in this Declaration which may be construed to the contrary notwithstanding, any amendment to this Declaration which would change, alter, modify or rescind any right, title, interest or privilege herein expressly granted to the holder of any mortgage affecting any of the Lots shall require the prior written approval of such holder. Amendments to this Declaration may be proposed by the Board of Directors of the Association, or by petition signed by Lot Owners having at least thirty percent (30%) of the total votes of the Mandatory Members of the Association. Agreement of the required majority of Lot Owners to any amendment of the Association instruments shall be evidenced by their execution of the amendment, or, in the alternative, the sworn statement of the President, any Vice President or Secretary of the Association, attached to or incorporated in an amendment executed by the Association, in which sworn statement it is stated unequivocally that agreement of the required majority of Lot Owners was otherwise lawfully obtained, and that all required notices were given. Any such amendment of the Association instruments, including this Declaration, shall become effective only when recorded or at such later date as may be specified in the amendment itself. The written consent of any mortgagee required with respect to such amendment shall also be recorded with such amendment. The approval of any amendments by a mortgagee shall be deemed implied and consented to if the mortgagee fails to submit a response to any written proposal for an amendment within thirty (30) days after the mortgagee receives notice of the proposed amendment sent by certified or registered mail, return receipt requested.

 

(b) For the sole purpose of adding property to the Eligible Property listed in Exhibit “A”, this document may be amended by a majority vote of the board of directors for the sole purpose of listing additional property as “Eligible Property”in Exhibit A; provided, however, that the property added is either adjacent to property already a part of the Eligible Property or is located within one thousand (1,000) feet of property that is already a part of the Eligible Property. Agreement of the required majority of board members to any amendment under this subsection (b) shall be evidenced by the sworn statement of the President, any Vice President or Secretary of the Association, attached to or incorporated in an amendment executed by the Association, in which sworn statement it is stated unequivocally that agreement of the required majority of board members was lawfully obtained. Any such amendment of the Association Declaration shall become effective only when recorded or at such later date as may be specified in the amendment itself.

 

2. Rights of Third Parties. This Declaration shall be recorded for the benefit of the Lot Owners and their mortgagees as herein provided, and no adjoining property owner or third party shall have any right, title or interest whatsoever in the property or in the operation or continuation thereof or in the enforcement of any of the provisions hereof, and, subject to the rights of such mortgagees as herein provided, the Lot Owners shall have the right to cancel, extend, modify, amend or otherwise change the provisions of this Declaration without the consent, permission or approval of any adjoining owner or third party.

3. Enforcement. Each Lot Owner shall comply strictly with the covenants, conditions and restrictions set forth in this Declaration, the Bylaws and the rules and regulations of the Association now or hereafter adopted, as the same may be lawfully amended from time to time. In the event of a violation or breach, or threatened violation or breach, of any of the same, the Association or, in a proper case, any aggrieved Lot Owner or Owners, jointly and severally, shall have the right to proceed at law or in equity to compel compliance therewith or to prevent a threatened violation or breach thereof. In addition to all other remedies, the Association, or a duly authorized agent thereof, shall have the right to enter upon any portion of the common areas where a violation exists and, at the expense of the violating Lot Owner and using such force as may be reasonably necessary, summarily abate or remove any erection, thing or condition that may be or exist contrary to the intent and meaning of the provisions hereof or of the Bylaws or rules and regulations, if after ten (10) days’written notice of such violation it shall not have been corrected by such Lot Owner. Neither the Association nor its agents shall be deemed guilty or liable for any manner of trespass for such entry, abatement or removal. Should the Association employ legal counsel to enforce any of the foregoing or any other rights or remedies of the Association, all costs incurred in such enforcement, including a reasonable fee for counsel, shall be paid by the violating Lot Owner. Inasmuch as the enforcement of the provisions of this Declaration and the Bylaws and such rules and regulations is essential for the protection of present and future Lot Owners, it is hereby declared that, for any breach thereof which cannot be adequately compensated by recovery of damages, the Association or, in any proper case, any aggrieved Lot Owner or Owners, in addition to all other remedies, may require and shall be entitled to the remedy by injunction to restrain any such violation or breach or threatened violation or breach. Further, and except as otherwise provided in this Declaration, in any case of flagrant or repeated violation by a Lot Owner, then, in addition to the foregoing remedies, the Association may suspend temporarily the voting rights of a Lot Owner, suspend temporarily the right of a Lot Owner to use certain of the common areas, and/or levy summary charges against the Lot Owner for such violation, provided that no summary charges may be levied for more than $25.00 for any one violation, but each day or time a violation is continued or repeated after written notice is given to the Lot Owner to cease and desist, it shall be considered a separate violation. Collection of summary charges may be enforced against a Lot Owner as if such charges were a common expense owed by the Lot Owner involved, and such charges may be added to and thereupon shall become part of that portion of any assessment next coming due to which the Lot Owner is subject. No delay, failure or omission on the part of the Association or any aggrieved Lot Owner or Owners in exercising any right, power or remedy herein provided shall be construed as an acquiescence thereto or shall be deemed a waiver of the right to do so thereafter as to the same violation or breach, or as to a violation or breach occurring prior or subsequent thereto, and shall not bar or affect its enforcement. No right of action shall accrue nor shall any action be brought or maintained by anyone whatsoever against the Association for or on account of any failure to bring any action on account of any violation or breach, or threatened violation or breach, of the provisions and regulations, however long continued, or for the imposing of provisions which may be unenforceable.

 

4. 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 at Hidden Hills; 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 at Hidden Hills. 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 Lot Owner. The Association shall not be held liable for any loss or damage by reason to provide adequate security or ineffectiveness of safety measures undertaken.

 

5. Duration. The term of this Declaration shall be perpetual. To the event Georgia law does not permit the right of perpetual duration for any provisions of the Declaration, the term of this Declaration shall be twenty (20) years from the date on which the Declaration is filed for record in the Office of the Clerk of the Superior Court of DeKalb County, Georgia, unless sooner terminated, and shall remain in effect and shall inure to the benefit of and be enforceable by any Owner of any Lot subject to this Declaration, their respective legal representatives, heirs, successors and assigns. If perpetual duration is not permitted, upon the expiration of said twenty (20) year term, this Declaration shall be automatically extended, as permitted by the laws of the State of Georgia, for successive renewal periods of ten (10) years each, unless terminated as hereinafter provided. This Declaration may be terminated, renewed or extended, in whole or in part, if any agreement for termination, renewal or extension is signed by two thirds of all Mandatory Members and approved by two thirds of any eligible first mortgage holders, as provided in section 1 of this Article. The termination, extension or renewal shall be effective when filed for record in the Office aforesaid.

 

6. Effective Date. This Declaration of Protective Covenants and Mandatory Membership shall be effective only when the following occurs: at least two hundred (200) Mandatory Members have submitted their lots to current mandatory membership, or a total of Two Hundred Fifty (250) Mandatory Members, including Mandatory Members with delayed application, have consent to subject their Lots to the terms of this Declaration. Additional consents by Persons within the Eligible Property, including current Voluntary Members, may be recorded at any time, and from time to time subsequent to the recording of this Declaration, subject to the terms of this Declaration. All consents, whether effective immediately, or upon sale or transfer, shall be recorded by the Association.

 

7. Interpretation. In all cases, the provisions set forth or provided for in this Declaration shall be construed together and given that interpretation or construction which, in the opinion of the Board of Directors, will best effect the intent of the general plan of the Association. The provisions hereof shall be liberally interpreted, and if necessary, they shall be so extended or enlarged by implication as to make them fully effective. In the event of any conflicts or inconsistencies between the Georgia Nonprofit Corporation Code, this Declaration, and the Bylaws, the terms and provisions of the Georgia Nonprofit Corporation Code and this Declaration, in that order, shall prevail.

 

8. Gender and Grammar. The singular wherever used herein shall be construed to mean the plural when applicable, and the necessary grammatical changes required to make the provisions hereof apply either to corporations or other entities or to individuals, men or women, shall in all cases be assumed as though in each case fully expressed.

 

9. Rights of Holders, Insurers and Guarantors of First Mortgages, Secondary Purchase Money Mortgages, and Secondary Mortgages Held By Institutional Lenders. In addition to the rights of mortgagees elsewhere provided, the holder, insurer and guarantor of each first mortgage, secondary purchase money mortgage, and secondary mortgage held by institutional lenders, or any insurer or guarantor of such mortgage, of a Lot shall (a) be entitled to written notice from the Association of any default by a Lot Owner in the performance of his obligations under this Declaration or the Bylaws or rules and regulations of the Association which is not cured within sixty (60) days, (b) be entitled to receive notice of and to designate a representative to attend and observe all meetings of Lot Owners, but not meetings of the Board of Directors of the Association, (c) be furnished copies of annual financial reports made to the Lot Owners, and (d) be entitled to timely written notice of any action that requires the written consent of a specified percentage of mortgage holders; provided, however, that such holder, insurer or guarantor shall first file with the Association a written request that notices of default, notices of meetings and copies of financial reports be sent to a named agent or representative of the holder, insurer or guarantor at an address stated in such notice. Further, each holder, insurer or guarantor which is an institutional lender (i.e., a bank, savings and loan association, insurance company, FHA-approved mortgage lender, pension fund, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, mortgage banker or other lender generally recognized in the community as an institutional lender) or a generally recognized commercial or governmental insurer or guarantor (including, without limitation, the U.S. Veterans Administration and the Federal Housing Administration) shall, upon request, be entitled to inspect the books and records of the Association during normal business hours, and may, at the sole expense of such holder, insurer or guarantor, have an audited statement of the Association’s books and records prepared if one is not otherwise available. Each Owner of a Lot, by acceptance of a deed or other conveyance therefore, consents to such notifications and information to be provided to any such party by the Association. Any notice rights given in other provisions of this Declaration to Mortgagees are hereby granted to all insurers or guarantors of the mortgages held by said Mortgagees.

 

10. Severability. Whenever possible, each provision of this Declaration shall be interpreted in such manner as to be effective and valid, but if the application of any provision of this Declaration to any person or to any property shall be prohibited or held invalid, such prohibition or invalidity shall not affect any other provision or the application of any provision which can be given effect without the invalid provision or application, and to this end the provisions of this Declaration are declared to be severable.

 

11. Captions. The captions of each Article and Section hereof as to the contents of each Article and Section are inserted only for convenience and are in no way to be construed as defining, limiting, extending or otherwise modifying or adding to the particular Article or Section to which they refer.

 

12. Author. This Declaration was prepared by Randall M. Lipshutz and Jody L. Peskin, Lipshutz, Greenblatt & King, 2400 Harris Tower, 233 Peachtree Street, N.E., Atlanta, Georgia 30303.

IN WITNESS WHEREOF the undersigned officers of Hidden Hills Civic Association, Inc., hereby certify that the above Declaration was duly adopted by the required majority of the Association and its membership.

This _____ day of ___________________, 200__. (Signature on following page)

 

 

Signed, sealed, and delivered

this ____ day of ____________, 200___ in the presence of:

_____________________________ Witness

_____________________________ NOTARY PUBLIC

HIDDEN HILLS CIVIC ASSOCIATION, INC.

By:__________________________(SEAL) President

Attest:_________________________(SEAL) Secretary

_____________________________________ Treasurer

_____________________________________ Vice President of Community Affairs

_____________________________________ Vice President of External Affairs

_____________________________________ Board Member-at-Large

_____________________________________ Board Member-at-Large