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STATE OF MISSISSIPPI
COUNTY OF PEARL RIVER
DECLARATION OF COVENANTS, CONDITIONS, AND
RESTRICTIONS FOR APPLE SOUTH
This Declaration of
Covenants, Conditions and Restrictions Apple South ("Declaration") is made on
this the 30th day of July, 1998, by Robert Applewhite, L.L.C., a
Mississippi limited liability company ("Declarant") (see Paragraph 13 for the
meaning of certain capitalized words).
The Declarant desires to
create and develop on the property as described in Exhibit A attached hereto
("the Property") and certain additional property described in Exhibit B
attached hereto ("Additional Property"), a residential community on the
Property which shall have designated common areas ("Common Areas") and common
facilities ("Common Facilities") for the benefit of Apple South ("Apple
South")
Now, therefore, the
Declarant declares that the Property is and shall be owned, leased, held,
transferred, assigned, sold, conveyed, rented, used, occupied, hypothecated or
encumbered, and improved subject to the provisions of this declaration which (i)
are agreed and declared to be beneficial for and in aid of the development of
the residential community and the improvements of the Property, (ii) shall be
deemed to run with and bind the Property, and (iii) shall inure to the benefit
of and be enforceable by the Declarant, its successors and assigns, and each
Person who has or acquires any interest in any portion of the Property or the
improvements on the Property, including the Apple South Homeowners'
Association, Inc. (the "Association"), any Owner and any Person who holds such
interest solely as security for the performance of an obligation or the
payment of a debt.
1.
PROPERTY SUBJECT TO DECLARATION
1.01.
The Property.
The real property, which is
and shall be owned, leased, held, transferred, assigned, sold, conveyed,
rented, used occupied, hypothecated or encumbered, and improved subject to
this Declaration is the Property which is located in Section 6, Township 5
South, Range 17 West, and Section 6, Township 5 South, Range 16 West, Pearl
River County, Mississippi, and is more particularly described in Exhibit A and
such portions of the Additional Property which may be annexed to the Property
From time to time as provided by Paragraph 1.03 hereof.
1.02.
Common Areas.
The designation of any
portion of the Property as a Common Area shall not mean that the public at
large acquires any easement of benefit, and enjoyment in or to the Common
Areas.
1.03.
Annexation of Additional
Property.
At any one or more times
prior to December 3 1, 2003, and without the assent of the Class A members,
the Declarant or any other person with the written assent of the Declarant,
shall have the right, privilege or option to annex to the Property any of the
Additional Property. Any such annexation shall have the effect of making the
annexed property part of the Property and extending the scheme of the within
covenants and restrictions to such annexed property However, no such
annexation shall occur until same has been accomplished in the manner herein
prescribed.
Any annexations of
additional real property to the Property shall be made by recording a
Supplement to the Declaration in the land records in the office of the
Chancery Clerk of Pearl River County, which Supplement to the Declaration
shall extend the scheme of the within covenants and restrictions to the
annexed additional property therein described. Such supplement shall be
executed by the Owner of the fee- simple title to the additional property
being annexed, and if such owner is other than the Declarant, shall be
executed also by the Declarant. Such Supplement to the Declaration may
contain whatever complimentary additions and modifications to the provisions
of the Declaration as may be appropriate to reflect the different character or
use, if any, of the annexed additional property, including, but not limited to
setback lines, total square footage to be contained within any residence,
easements, and degree of care and assessments for any care not rendered to all
of the Property; provided, however that in no event shall any such addition or
modification be substantially inconsistent with the provisions of this
Declaration.
2.
ARCHITECTURAL CONTROL
2.01.
Establishment of the
Architectural Review Committee.
There is hereby established
the Apple South Architectural Review Committee (referred to herein as
“Architectural Review Committee”). The Architectural Review Committee, after
the expiration of the term of the initial members, shall be appointed by the
Board of Directors.
2.02.
Architectural Review Committee.
The initial members of the
Architectural Review Committee shall consist of the following members of the
Board of Directors: Robert W. Applewhite, Bettye L. Applewhite, and Pam
Lahaye, who shall serve until the Declarant has sold all Lots in the Property
and the Additional Property, thereafter the Architectural Review Committee
shall consist of not less that three nor more than five individuals who shall
be appointed or designated from time to time by the Board of Directors, who
may be, but are not required to be, members, and who shall serve at the
pleasure of the Board of Directors, and who may be removed at any time by the
Board of Directors with or without cause. The affirmative vote of a majority
of the members of the Architectural Review Committee shall be required to make
any finding, determination, ruling, or order or to issue any permit, consent,
approval, or disapproval under this Declaration, including this Paragraph 2
and the approval or disapproval of all or any portion of any Plans, or to
recommend that the Board of Directors adopt any rule or regulation relating to
the provisions of this Paragraph 2.
2.03. General Requirements.
a.
Cottage District.
Lots 30 through 40 of Apple South, Phase I, are designated as a cottage
district for the construction of dwellings that may be classified as High
Cottages, Folk Victorian Cottages, or Creole American Cottages. Any dwelling
or other improvement constructed on any of these Lots must be built in
accordance with the guidelines and building criteria adopted by the
Architectural Review Committee. Copies of such building guidelines and
criteria may be obtained from the Architectural Review Committee or the
Declarant. All plans must be approved by the Architectural Review Committee
prior to construction as required by Paragraph 2.03 (e).
b.
Building Sizes and Locations.
i.
The living area of the main house or residential structure constructed
as a one-story residence on any Lot in the Cottage District, exclusive of
porches and garages, shall be not less than 1500 square feet. The living area
of the main house or residential structure constructed as a one-story
residence on any Lot, except for buildings constructed on a Lot in the Cottage
District or zero lot line lots, patio and cluster lots, exclusive of porches
and garages, shall not be less than 1700 square feet.
ii.
No residential building or other structure shall be erected on any Lot
nearer than forty feet (40;) from the front lot line, thirty-five feet (35’)
from a side or rear lot line, except for buildings constructed on zero lot
line lots, patio and cluster lots. This restriction shall not apply to
driveways, mailboxes, or fences.
iii.
The Architectural Review Committee shall establish the location of and
the sizes of all buildings to be constructed on all zero lot line lots, patio
and cluster lots.
iv.
For some Lots in Apple South, it may be impossible or inadvisable to
enforce the above stated set-back requirements or those set forth in this
Paragraph 2.03. due to the natural terrain, lot configurations, and/or
proximity of adjacent structures. Therefore, notwithstanding anything else
herein to the contrary, the Architectural Review Committee may approve
specific deviations to said setback requirements which it believes to be
beneficial to a specific home site or to adjacent home site.
v.
Lots contiguous to US Highway 11 shall not be permitted to directly
access said Highway from the Lot, but must use the dedicated road as depicted
on the Subdivision Plat for access.
c.
Tree Removal.
No trees, of any kind, may be removed without the written approval of the
Architectural Review Committee. Approval for the removal of trees located
within the main dwelling or accessory building or within ten (10) feet of the
approved site for such building will be granted unless such removal will
substantially decrease the beauty of the Property.
d.
Mailboxes.
The design, and placement, of all mailboxes must be approved in advance, by
the Architectural Review Committee.
e.
Prior Written Approval Required.
Except for the purposes of proper maintenance and repair, no improvement,
including, but not limited to, buildings, fences, walls or other structures,
and no exterior addition, change or alteration to any improvement, including
any change or alteration of color, shall be commenced, erected, constructed,
placed, altered, moved, maintained or permitted to remain on any portion of
the Property, including any Lot, until after compliance with the review
process of this Paragraph 2 and approval of the Plans by the Architectural
Review Committee. Any Developer or other builder, including any Owner or
lessee of a Lot shall not remodel or alter existing improvements on any Lot
until written approval has been granted by the Architectural Review Committee.
2.04.
Disclaimer.
The Board of Directors, the
Architectural Review Committee, each director and each officer of the
Association, each member of the Architectural Review Committee and the
Association and, if applicable, the Declarant shall not be liable to an Owner
or to any other Person on account of any claim, liability, or expense
suffered, incurred or paid by or threatened against such Owner or other Person
arising or resulting from or in any way relating to the subject matter of any
reviews, acceptances, inspections, permissions, consents, or required
approvals which must be obtained from the Architectrual Review Committee or
public authorities, whether given, granted or construed either to represent,
guarantee or imply that such Plans or architectural standards will result in a
properly designed Dwelling or other improvement, or to represent, guarantee or
imply that any Dwelling or other structure or improvement will be built or
constructed in a good, workmanlike manner. Approval of any particular Plans
shall not be construed as a waiver of the right of the Architectural Review
Committee to disapprove all or any portion of the Plans if such Plans are
subsequently submitted for use in any other instance.
2.05.
Rules and Regulations.
Upon the recommendation of
the Architectural Review Committee, from time to time the Board of Directors
may (i) adopt and promulgate such rules and regulations regarding the
construction or alteration of any structure or improvement and the form and
content of Plans to be submitted to the Architectural Review Committee for
review and approval or disapproval, and (ii) publish and/or file for record
such statements of policy, standards, guidelines, and establish such criteria
relating to architectural styles or details, colors, size, set-backs,
materials or other matters relating to architectural control, protection of
the environment, including the use and application of fertilizers, pesticides
and other chemicals, and the preservation of such aesthetic values and
characteristics and amenities, as may be considered necessary and
appropriate. No such values and characteristics an amenities, as may be
considered necessary and appropriate. No such rules, regulations, statements
or criteria shall be construed as a waiver of any provision of this Paragraph
2 or any other provision of requirement of this Declaration.
2.06.
Limitations.
Construction in accordance
with approved Plans shall be commenced within six months after approval,
whether by affirmative action or by forbearance from action, and shall be
substantially completed either within six months after construction commences,
or within such other period as the Architectural Review Committee shall
specify in the approval of Plans. If construction is not commenced or is not
completed as required in this Paragraph 2.06, then approval of the Plans shall
be conclusively deemed to have lapsed and compliance with the provisions of
this Paragraph 2 shall be required again.
3.
EASEMENTS
3.01.
Utility Easements.
The Declarant, the
Association, and each utility providing service to the Property shall have and
is granted or reserved non-exclusive easements and rights-of-way in through,
across, on, over, and under the portions of the Property which are not
improved with Dwellings, buildings, or other structures, including full rights
of ingress and egress, for the installation, operation, use, maintenance,
repair and removal of utilities and drainage facilities and floodway easements
located in utility or drainage easements, which easements are hereby reserved
and established along the rear and street boundary lines of all Lots, said
easements being fifteen feet (15’) in width, and as shown and designated on a
Plat, and the right to remove any obstruction in ay utility or drainage
easement which may interfere either with the use of any utility or drainage
easement or with the installation, operation, use, maintenance, repair and
removal of such utility or drainage facility.
The Declarant shall have non-exclusive easements
and rights-of-way in, through, across, on over and under the portion of the
Common Areas and Common Areas which is not improved with the buildings or
structures to store building supplies and materials, install, construct,
maintain, reconstruct and repair sewers, water pipes, irrigation pipes,
electrical wires or cables, telephone wired or cables, gas lines, storm
drains, television cables, underground conduits, and any related improvements
or appurtenances and for all other purposes reasonably related to the
completion of construction, and the provision of public or private utility
services to any portion of the Property. Any and all conveyance documents
from the Declarant to the Association with respect to the Common Areas and
Common Areas shall be conclusively deemed to incorporate the provisions of
this Paragraph 3.01, whether or not specifically contained in such conveyance
documents or assignments. At the Declarant’s request, the Association shall
from time to time acknowledge, and deliver to the Declarant such documents the
Declarant considers it necessary to implement the provisions of this Paragraph
3.01.
The reservation and rights in this Paragraph 3.01
expressly include the right to (i) cut any trees, bushes, or shrubbery, (ii)
make any grading of the soil, and (iii) take any other similar action
reasonably necessary to provide economical and safe utility and drainage
facility installment, repair and maintenance and to maintain reasonable
standards of health, safety and appearance.
3.02.
Damage from Ingress and Egress.
Any entry by the Declarant, the Association, or
any utility upon any Lot for the purposes permitted or contemplated by this
Paragraph 3 shall be made with as little inconvenience to the Owner as
reasonably practical, and all physical damage to any Lot or improvement on a
Lot resulting from or caused by such entry shall be promptly repaired and
restored. Said repairs will be at the expense of the party causing the
damage.
3.03.
Walkway Easements.
Declarant hereby creates for the Owners of all
Lots, a perpetual non-exclusive easement for pedestrian traffic over an across
the walkway as shown by the Plat of Apple South Subdivision, Phase I and any
Plat of any portion of the Additional Property annexed to this Declaration as
herein provided.
4.
USE AND OTHER RESTRICTIONS AND
REQUIREMENTS
4.01
Use of Lots and Dwellings.
Except (i) for the activities of a Developer or
other builder during the construction and development of a Lot or the Common
Areas (ii) for activities and uses expressly permitted and not substantially
inconsistent with the provisions of the Declaration (iii) as may be necessary
or appropriate in connection with reasonable and necessary repairs or
maintenance to any Dwelling or other improvements on a Lot, the Common Areas
and (iv) as permitted by Paragraph 4.03, each Lot and Dwelling shall be used
for residential purposes only, and no trade and business of any kind or nature
may be conducted on or in such Lot or Dwelling. The use of a portion of a
Dwelling as an office by the Owner or his tenant shall both be considered to
be a violation of this Paragraph 4.01 if such does not create regular or
continual customer, client, or employee traffic. In no event shall any Lot or
Dwelling or other improvements on a Lot be used as a storage area for any
building contractor or real estate developer, except as specifically permitted
by this Declaration.
4.02
Sales and Construction
Activities.
The Declarant is expressly permitted and
authorized to maintain and conduct such facilities and activities as may be
reasonably appropriate, necessary, required, convenient or incidental to the
construction, completion, improvement and sale of Lots and/or Dwellings or the
development of Lots, Dwellings and other improvements, and the Common Areas,
including, without limitation, the installation and operation of sales and
construction trailers, offices and other structures or other improvements.
The location of any construction trailers of any Developer or other builder
shall be subject to the Declarant’s approval. The right to maintain and
conduct such facilities and activities specifically includes the right to use
Dwellings as model residences, as offices for the for the sale of Lots and/or
Dwellings, and for related activities. The Declarant is expressly permitted
and authorized to use, stock, maintain, locate, store and place any portion of
the Property, any and all equipment, tools and vehicles as may be reasonably
appropriate, necessary, required, convenient or incidental to such
construction, improvement, completion, sale or development, including, but not
limited to, construction equipment and construction machinery and vehicles.
4.03
Trespass.
Whenever the Association and/or Declarant is
permitted by this Declaration to repair, clean, clear out or do any action on
any part of the Property, including perform obligations or duties imposed on
any Owner under this Declaration, then entering any Lot or any portion of the
Property for such purposes and taking such action shall not be deemed to be a
trespass.
4.04
Easement Interference.
No structure, planting or other material shall be
placed or permitted to remain upon any Lot which may damage or interfere with
any easement for the installation or maintenance of utilities, or which may
unreasonably change, diminish, obstruct, or retard the direction of flow of
surface water runoff in any drainage easement, swale or channel.
4.05
Reconstruction after Fire or
Other Casualty Loss.
If a Dwelling is partially or completely
destroyed by fire or other casualty, the Owner of such Dwelling shall promptly
clear the Lot or restore or reconstruct such Dwelling, at his own expense, in
accordance with the original Plans or as otherwise approved by Architectural
Review Committee in accordance with the procedure for obtaining such approval
as provided in Paragraph 2, hereof.
4.06
Vacant Lot Maintenance.
Each owner shall be responsible for the proper
seeding, fertilization, watering, mowing, removal of litter and maintenance of
such Owner’s Lot(s) which is undeveloped (including that portion of the street
right of way adjacent to the front lot line and extending to the curb of the
paved street in front of such Lot). If fill is placed on the Lot and the
construction of the improvements is not promptly commenced and completed, then
the Owner will be required to maintain such Lot. In the event an Owner fails
to maintain such Owner’s Lot, the Association is authorized to cut the grass
and perform such maintenance upon the Lot as it deems prudent under the
circumstances and may assess the Lot and the owner thereof at a rate of not
less than $100.00 for each cutting, up to twelve (12) cutting per year for all
cost and expense thereof as provided in Paragraph 7.04 hereof.
4.07
Signs.
Except as may be required by legal proceedings,
no signs, advertising or ornaments of any kind shall be placed, maintained or
permitted on a Lot or within any windows or on the exterior of any Dwelling or
other structure located on any Lot by any Person, including the Owner, without
the approval of the Declarant and/or the Architectural Review Committee shall
determine from time to time, and approval may be arbitrarily withheld. Any
approved sign or advertising device, except for the entrance sign, shall only
contain one name and/or one number plat, which shall not exceed 450 square
inches, and, if advertising the Lot or Leasehold Interest and Dwelling “for
sale” or “for lease,” such sign shall not exceed six (6) square feet in area
and shall be subject to the Architectural Review Committee’s right to restrict
color and content. The restrictions of this Paragraph 4.07 shall not apply to
the Declarant. The Board of Directors shall have the right to erect
reasonable and appropriate signs on any portion of the Common Areas and Common
Facilities and within easement areas established by this Declaration.
4.08
Lot Division and Addition.
No residential lot, except as provided in
Paragraph 12 hereof, shall be further subdivided and no more than one
single-family dwelling shall be constructed or permitted on each lot. It is
important that the visual appearance and street-scape quality not be altered
by decreasing the density of residential units in Apple South. Any such
changes as might occur by placing one house on two residential lots must be
approved by the Declarant until all Declarant’s Lots are sold and thereafter
by the Board of Directors and the Architectural Review Committee.
4.09
Signage, Antenna, etc.
No Owner or Occupant of any residential lot may
allow anything to be hung from windows or displayed from the outside wall of
any residence other than the American Flag, plants, or similar items. No
sign, basketball goal, radio, or television antenna or dish, except small
antenna or dish less than twenty-four inches (24”) in diameter, the size,
shape and location of which shall have been approved by the Architectural
Review Committee, may be affixed to an exterior wall or roof of any structure,
or permanently mounted in the yard. Each residence may contain a built-in
concealed TV, antenna or cable system if desired. Except as permitted in
Paragraph 4.07, no “For Rent” signs may be displayed by individual owners or
their agents. The location, size and material of any freestanding basketball
goal must be approved the Architectural Review Committee.
4.10
Exterior Appearance.
(a)
Except for maintenance areas within the Common Areas and those fences
erected by Declarant or the Association, no chain link fences shall be
permitted within the development unless approved by the Architectural Review
Committee.
(b)
No foil, sunscreens, or other reflective materials shall be permitted.
(c)
When not in use, all garage doors shall be kept closed.
(d)
No projections of any type shall be placed or permitted above the roof
of any improvement except approved chimneys, vents, small antenna or dish as
described in Paragraph 4.09 above and such other objects that my be approved
by the Architectural Review Committee.
(e)
No clothesline shall be constructed or placed on any Lot.
(f)
Each Property Owner shall provide a screened area to serve as a service
yard and an area in which garbage receptacles or similar storage receptacles,
electric and gas meters, air-conditioning equipment and other unsightly
objects must be placed or stored in order to conceal them from view from the
road and adjacent properties. Plans for such screened area delineating the
size, design, texture, appearance and location must be approved by the
Architectural Review Committee prior to construction. Garbage receptacles may
be located outside of such screened areas only if located underground.
4.11
Pets.
No animals, livestock or poultry of any kind,
shall be raised, bred, kept, staked or pastured on any Lot or on portion of
the Common Areas, except dogs, cats, birds or other household pets for
non-commercial purposes and which are kept in Dwellings and are not a source
of annoyance or a nuisance to the Property or any Member. The Board of
Directors shall have the right, but not the obligation, to prohibit or bar
certain dogs or breeds of dogs or other household pets from any Lot or
Dwelling or other structure on the Lot or any portion of the Property. Pets
shall be attended at all times and shall be registered, licensed and
inoculated as required by law. Pets shall not be permitted upon the Common
Areas unless accompanied by an adult individual and either carried or
leashed. The Board of Directors shall have the right to adopt such additional
rules and regulations regarding pets from time to time as considered necessary
or appropriate, including more restrictive “leash” regulations.
4.12
Vehicle Use and Storage.
All vehicles shall be currently licensed and
maintained in operating condition, so as not to cause or create hazards or
nuisances by excessive noise levels, exhaust emissions, or appearance.
Inoperative motor vehicles are strictly prohibited from the subdivision except
for emergency situations. Off-street parking, adequate to accommodate the
parking needs of the Owner and Occupants, shall be provided by the Owner of
each lot. The intent of this provision is to eliminate the need for any
on-street parking; provided, however, that nothing herein shall be deemed to
prohibit short-term parking of employees’, or visitors’ vehicles.
No motor vehicle may be repaired (except for
emergency repairs) on any lot, street, or Common Areas within the subdivision
except where such repairs are made on a vehicle owned by an Owner and are done
within such Owner’s enclosed garage or in an area screened from public view.
4.13
Mobile Homes and Trailers.
No house trailer or mobile home shall be admitted
in Apple South at any time, whether used for residential purposes or not.
4.14
Unsightly Conditions and
Nuisances.
It shall
be the responsibility of each Property Owner and tenant thereof to prevent the
development of any unclean, unsightly or unkempt conditions of buildings or
grounds on the Property, which shall tend to substantially decrease the beauty
of the community as a whole or as a specific area. No rubbish or debris of
any kind shall be dumped, placed or permitted to accumulate upon any portion
of the Property. Nor shall any nuisance or odors be permitted to accumulate
upon any portion of the Property. Noxious or offensive activities shall not
be carried on in any Lot, Dwelling or any part of the common Areas, and each
Owner, his family, tenants, invitees, guests, servants and agents shall
refrain from any act or use of a Lot, dwelling or the Common Areas which would
cause disorderly, unsightly or unkempt conditions or which would cause
embarrassment, discomfort, annoyance or nuisance to the occupants of other
portions of the Property or which would result in a cancellation of any
insurance from any portion of the Property or which would be in violation of
any law, governmental code or regulation. Without limiting the generality of
the foregoing conditions, no exterior speakers, horns, whistles, bells, or
other sound devices except security and fire alarm devices used exclusively
for such purposes shall be located, used, or placed within the Property and
discharge of firearms, pellet guns, and fireworks is expressly forbidden. Any
Owner, or his family, tenants, guests, invitees, servants, or agents, who
dumps or placed any trash or debris upon any portion of the Property shall be
liable to the Association for the actual cost of removal thereof or the sum of
$150.00, whichever is greater, and any sum shall be added to and become a part
of that portion of the assessment next becoming due to which the Owner and his
Lot are subject.
4.15
Lights.
The design and location of landscape lighting
fixtures shall be subject to the approval of the Architectural Review
Committee. Neither these, nor any other illumination devices, including, but
not limited to, Christmas ornaments, shall be located anywhere on the
structure or grounds of any Lot in such a manner as to adversely illuminate or
affect the nighttime environment of any adjoining Property.
4.16
Certain Construction Rights.
The Declarant expressly reserves to itself, its
successors in title, and assigns and any other provisions of this Declaration
notwithstanding, the right to build bridges, walkways, or expanse across any
natural or man-made canals, creeks, walking trails, paths, or lagoons in the
Property. Nothing in this paragraph shall be construed as placing an
affirmative obligation to the Declarant to provide or construct any such
improvement.
4.17
Certain Controls.
(a)
To implement effective insect, reptile, and fire ant control, and
vegetation and trash control, the Declarant or the Association, and their
heirs, successors, assigns and agents, have the right to enter upon any
property on which a building or structure has not been constructed and upon
which no landscaping plan has been implemented for the purpose of mowing,
removing, clearing, cutting or pruning underbrush, weeks or other unsightly
growth, removing trash or dispensing pesticides on all such property which in
the opinion of the Declarant or the Architectural Review Committee distract
from the overall beauty, setting and safety of the Property. The cost of this
vegetation and trash control shall be kept as low as reasonably possible and
shall be paid by the respective Property Owner. Such entry shall not be made
until thirty (30) days after such Property Owner has been notified in writing
for the need of such work and unless such Property Owner fails to perform the
work within said thirty (30) day period.
(b)
The provisions of this paragraph shall not be construed as an
obligation on the part of the Declarant or the Association to mow, clear, cut
or prune any property, to provide garbage or trash removal services, to
perform any grading or landscaping work, construct or maintain erosion
prevention devices, or to provide water pollution control on any privately
owned property.
(c)
Entrance upon Property pursuant to the provisions of this Paragraph
4.17 shall not be deemed trespass. This rights reserved unto the Declarant
and the Association in this paragraph shall not be unreasonably employed and
shall be used only where necessary to affect the stated intents and purpose of
this Declaration.
5.
ASSOCIATION MEMBERSHIP AND
VOTING RIGHTS.
5.01.
Membership.
The members of the Association shall be and
consist of every person who is or who becomes, an owner of record of the fee
title to a Lot and is included in the definition of an Owner under Paragraph
13. When more than one Person owns or holds an interest or interests in a
Lot, then all such Persons shall be Members.
5.02.
Action by Members.
The Association shall have two classes of voting
Members. Class A members shall consist of all members, except the Declarant,
and Class B Members, which shall be the Declarant. Whenever any provision of
this Declaration requires a vote of a specified percentage of the voting power
of each class of Members, then such provision shall require a separate vote by
the specified percentage of the voting power of the Class A Members and by the
specified percentage of the voting power of the Class B Members. Whenever any
provision of this Declaration requires a vote of a specified percentage of the
voting power of the Members, then such provision shall require a vote by the
specified percentage of the combined voting power of all Members.
5.03.
Member’s Voting Rights.
Except as otherwise specifically provided in the
Charter or the Bylaws, the voting rights of the Members shall be as follows:
(b)
The Class B Members shall be the Declarant, who shall be entitled to
four (4) votes for each Lot owned by the Declarant. The Class B membership
shall cease and be converted to Class A Membership on the happening of either
the following events, whichever occurs earlier: (a) when the total votes
outstanding in the Class A Membership equal the total votes outstanding in the
Class B membership, or (b) on June 1, 2003.
5.04
Membership Appurtenant to Real
Property.
The membership of both the Class A Members and
the Class B Member shall be appurtenant to the ownership of a Lot. A
membership shall not be held, assigned, transferred, pledged, hypothecated,
encumbered, conveyed or alienated in any manner except in conjunction with and
as an appurtenance to the ownership, assignment, transfer, pledge,
hypothecation, encumbrance, conveyance or alienation of the Lot to which the
membership is appurtenant.
5.05
Voting Conflict Between Members.
If the fee title to a particular Lot is owned of
record by more than one Member, then the one vote appurtenant to such Lot may
be exercised by any one of the such Members, unless the other members who own
an interest in such fee title to the Lot shall object prior to the completion
of voting upon the particular matter under consideration. In the event of any
such objection, the one vote appurtenant to such Lot shall not be counted.
5.06
Termination and Reinstatement of
Class B Members.
If on any one or more occasions all Class B
memberships should terminate, and if after any such termination the Declarant,
by annexation to the Property in accordance with the Declaration, should add
additional property to the Property theretofore subject to the Declaration,
then on each such occasion the status of the Declarant as a Class B Member
shall be fully reinstated, and following each such occasion, the Declarant, or
the nominee or nominees, if any, of the Declarant, shall continue to be Class
B Members until such time as the total votes outstanding of Class A and Class
B member resulting from the newly added property has been equalized. At such
time, the Class B membership resulting from such addition shall cease and be
converted to Class A memberships. Following each such reinstatement of the
Class B memberships, for so long thereafter as the class B memberships shall
continue to exist, the Declarant, and the nominee or nominees, if any, of the
Declarant, shall have all rights and powers of Class B membership, as herein
provided.
5.07
Other Voting Provisions.
The Charter and/or the Bylaws contain other
provisions relating to voting rights of Members with respect to matters or
issues unrelated to this Declaration, including, but not limited to, the
election of individuals to the Board of Directors.
6.
BOARD OF DIRECTORS AND OFFICERS
OF THE ASSOCIATION.
6.01.
Board of Directors.
The Association and the affairs of the
Association shall be managed and controlled by the Board of Directors, which
shall have all the power, authority and duty necessary or appropriate for such
management and control. The Board of Directors shall consist of five
individuals or such greater number of individuals, not to exceed nine, as may
be prescribed in the Bylaws from time to time. Directors are not required to
be Members, and shall be appointed by the Declarant or elected by the Members
in the manner prescribed in the Bylaws.
6.02.
Officers.
The Association shall have such officers as are
prescribed by the Bylaws. The officers shall conduct affairs of the
Association and implement the policies and decisions of the Board of
Directors.
7.
ASSESSMENTS.
7.01.
Covenants for Assessments.
Each owner by acceptance of a Deed or other
conveyance document for such lot, whether or not expressed in any such Deed or
other conveyance document shall be deemed to covenant and agree to pay the
Association any maintenance or special assessments, which shall be levied by
the Association. Each such assessment shall be a charge on the land, and
shall be a continuing lien upon each Lot and the personal obligation of the
Person who is the owner of such Lot at the time the assessment fell due. No
Class A member may become exempt from, or otherwise avoid liability for the
payment of any assessment by the abandonment of any lot or by the abandonment
or release of the members’ rights to use, benefit and enjoy the Common Area
and/or Common Facilities. The Association acting by and through its Board of
Directors shall have the right to levy all assessments described in this
Paragraph 7.
7.02.
Maintenance Assessments.
Except as permitted by paragraph 7.07, any
maintenance Assessments levied by the Association shall be used exclusively (i)
to promote the health, safety and welfare of the resident of the Property,
including the improvement, maintenance and repair of the Common Areas and/or
Common Facilities and (ii) to pay the cost of labor, the purchase or rental of
equipment and materials used or required for, and the management, care and
supervision of, the Common Areas and/or Common Facilities. The purposes for
which the maintenance Assessments may be levied include, but are not limited
to, the following purposes:
(a)
The amount of all operating expenses of or for the Common Areas and/or
common facilities and the services furnished or provided to or in connection
with the common Areas and/or Common Facilities, including charges for any
services furnished or provided by the Association.
(b)
The costs of appropriate or necessary management and administration of
the Common Areas.
(c)
The amount of all taxes and assessments levied against for the Common
Areas.
(d)
The costs of fire and extended coverage and liability insurance on the
Common Areas and/or Common Facilities and the Association’s other assets and
the costs of such other insurance with respect to the common Areas and/or
Common Facilities, and the Association’s other assets and affairs as the Board
of Directors considers appropriate.
(e)
The costs to maintain, replace, repair and landscape the Common Areas,
including, but not limited to, the costs (i) to maintain, replace and repair
the walking tract, the islands in Apple South Boulevard, and such other
facilities and improvements as my be added by the Declarant, if any, and (ii)
of such equipment as the Board of Directors shall determine to the necessary
or appropriate in connection with such maintenance, replacement, repair and
landscaping.
(f)
The costs to fund all reserves established by the Association,
including any appropriate general operating reserve and/or reserve for
replacement of assets.
7.03.
Annual Maintenance Assessment.
Prior to the first day of January in each year,
the Board of Directors shall adopt a budget estimated by the Board of
Directors to be sufficient to meet the cost and expenses described in
Paragraph 7.02 hereof, and shall fix and levy the Annual Maintenance
Assessment at an amount sufficient to meet the budget adopted by the Board of
Directors, provided, however:
(a)
Until January 1 of the year immediately following the conveyance of the
first Lot to an Owner, the maximum annual assessment shall be Two Hundred
Dollars ($200.00) per Lot.
(b)
From and after January 1 of the year immediately following the
conveyance of the first Lot to an Owner, the maximum annual assessment may be
increased each year not more than 5% above the maximum assessment for the
previous year, without a vote of the membership.
(c)
From, and after, January 1 of the year immediately following the
conveyance of the first Lot to an Owner, the maximum annual assessment may be
increased above 5% by a vote of two-thirds (2/3) of each class of Members who
are voting in person or by proxy, at a meeting duly called for this purpose.
(d)
The Board of Directors may fix the annual assessment at an amount not
in excess of the maximum.
7.04
Special Assessments.
In addition to the maintenance Assessments
authorized in Paragraph 7.01, the Association may levy special Assessments as
follows:
(a)
In any fiscal year, the Association may levy a special Assessment
applicable only to that fiscal year (i) for the purpose of paying all or a
portion of the costs of any construction, reconstruction, replacement or
inordinate repair or maintenance of improvements on the Common Areas,
including the fixtures and personal property on or related to the Common Areas
and/or common Facilities, or (ii) for such other purposes as the Board of
Directors may consider to be appropriate. Any such Assessment under the
provisions of this Paragraph 7.04 (a) shall be approved by a vote of
two-thirds of the voting power of each class of the Members.
(b)
The Association my levy a special assessment against any Lot, and the
Owners of any Lot, for reimbursement (i) of or for repairs occasioned by the
willful or negligent acts of the Owners of such Lot, or (ii) of or for any and
all costs, expenses and expenditures made or incurred by the Association with
respect to either such Lot, including work or activities performed on such
Lot, including, but not limited to, any work required in maintaining and/or
mowing any such Lot prior to the construction of a residential dwelling on
such Lot pursuant to the provisions of this Declaration, including the
discharge or satisfaction of any obligation or duty imposed on such Owners
under this Declaration. Any such Assessment under the provisions of this
Paragraph 7.04 (b) shall be approved by a majority vote of the Board of
Directors of the Association.
7.05
Dwelling and Lawn Maintenance.
Generally, this Declaration does not contemplate
that the Association shall have any responsibility for the maintenance or
repair of any Dwelling or its appurtenances or the maintenance and care of
lawn, garden and landscaped areas on any Lot. The Association shall have the
responsibility and duty only for the maintenance, repair and care of the
Common Areas and Facilities.
7.06
Assessments Are Not Dues.
No portion of the annual maintenance and special
Assessments provided in or permitted by this Paragraph 7 are intended to be,
or shall be construed to be, dues for the membership in the Association.
7.07
Meetings to Approve Assessments.
If the consent or approval of any class of the
Members is required for any action under this paragraph 7, then the Board of
Directors shall call a meeting of the Members pursuant to the Bylaws for the
purpose of considering the consent of approval for such action. All
Assessments requiring the consent of approval of the Members must be approved
by a vote of two-thirds (2/3) of the voting power of each class of the
Members.
7.08
Uniform Rate for Assessments.
All Assessments shall be levied at a uniform rate
for each Lot to which Class A Membership is appurtenant, except special
Assessments under Paragraph 7.04(b). The Board of Directors may change or
modify the pro rata obligations of any Lot or the Owners of such Lot for the
purpose of levying Assessments, except special Assessments under Paragraph
7.04(b), only if approved by at least two-thirds (2/3) of the voting power of
each class of the Members.
7.09
Commencement of Annual
Maintenance Assessment.
The annual Assessment provided for herein shall
commence as to all lots, except lots owned by the Declarant, on the first day
of the month following the conveyance of any of the Common Area to the
Association. The first annual Assessment shall be prorated according to the
number of months remaining in the calendar year. Payment of such Assessments
will be made in advance in monthly, quarterly, semi-annually, or annual
installments with the due dates being established by the Board of Directors.
The Association shall not collect any Assessments from any Member prior to the
date of the conveyance of any portion of the Common Area to the Association.
7.10
Assessment of Declarant.
Unless required as a matter of law, or otherwise
set forth in this Paragraph 7, Declarant shall not, at any time, be subject to
the Annual Maintenance Assessment; however, the Declarant hereby agrees that
until such time as Declarant ceases to be a Class B Member, Declarant will pay
to the Association any deficit amounts not covered by the income of the
Association which are reasonably necessary to maintain the common Area and the
Lots in a neat, attractive condition. In determining whether such a deficit
exists, paper expenses, such as depreciation, shall not be taken into
consideration. Any such deficit amount required to be paid by Declarant shall
be treated as an Assessment and subject to the provisions of Paragraph 8;
provided, however, any lien for such an Assessment shall apply only to those
Lots owned by the Declarant which are subject to this Declaration and amount
hereof shall be divided equally among all such Lots; and, provided further,
that in no event shall the Declarant be required to pay any amounts,
specifically including any deficit amount, which would exceed an amount equal
to the number of Lots owned by the Declarant and subject to the Declaration at
the time the Declarant becomes responsible for payment, or the time the
deficit is incurred (for purposes of this provision, “the time the deficit in
incurred” means the time in which the expense creating such deficit becomes a
binding obligation upon the Association). In addition, and notwithstanding
anything to the contrary herein, the Declarant may contribute assessments due
from it in services or materials or a combination of services and materials,
rather than money (herein collectively called “in kind contribution”). The
amount by which monetary assessments shall be decreased as a result of any
in-kind contribution shall be the fair market value of the contribution
reasonably determined by the Declarant.
7.11
Exempt Property.
No Assessments of any kind or nature shall be
levied by the Association against (i) any portion of the Streets and other
real property and improvements dedicated and accepted by the local public
authority and devoted to public use, (ii) all areas unplatted or reserved for
future development by the Declaration of the Plat of the Property, (iii) the
Common Areas or Common Facilities.
7.12
Equitable Adjustments.
If a Supplement is filed for record which annexes
additional property to the property and specifies that a greater or lesser
level of use, benefit or enjoyment of the common area or of services shall be
available or provided by the Association, with respect to any portion of the
annexed additional property, then the supplement may provide a different
method or basis for the establishment, determination and calculation of the
annual maintenance or special assessments under Paragraph 7.02, Paragraph
7.04, or Paragraph 7.05, with respect to such annexed additional property. In
such event, the Association shall have the authority and the duty to make
equitable adjustments in and to the procedures described in this Paragraph 7
for the establishment, determination and calculation of the annual maintenance
and special assessments to reflect any such different level of use, benefit
and enjoyment of the Common Area or services available or provided by the
Association.
8.
ENFORCEMENT OF ASSESSMENTS.
8.01.Lien of Assessments.
Each Assessment with respect to or against a Lot
plus such additional amounts as are specified in Paragraph 8.03, shall be (i)
a charge on the land, (ii) a continuing lien upon and against the Lot, (iii)
binding upon such Lot, and (iv) the continuing joint and several personal
obligation and liability of each Person who was an Owner of such Lot when any
portion of the assessment became due and payable, their heirs, devisees,
personal representatives, successors and assigns, which shall not be
extinguished or diminished by any transfer or conveyance of any Lot. The
personal obligation of each Member to pay all Assessments levied against his
Lot shall continue for the full statutory period permitted by law, and a suit
to recovered a monetary judgment for the non-payment of all or any portion of
any Assessment, including any installment, may be commenced and maintained by
the Association without the foreclosure or waiver of any lien created under
this Declaration to secure the payment of the Assessment. Any judgment may
include all amounts specified in Paragraph 8.03. The Association may commence
and maintain any action at law against any Member personally obligated or
liable to pay any Assessment and/or may foreclose the lien against any Lot in
the manner now or hereafter provided in the State of Mississippi for
foreclosure of mortgages and other liens on real property containing a power
of sale provision. Any such foreclosure by the Association shall be subject
to the substantive and procedural requirements prescribed by the laws of the
State of Mississippi applicable to the foreclosure of mortgages and other
liens on real property containing the power of sale provision.
The Association shall have the right to reject
partial payments of an Assessment and to demand the full payment of such
Assessment. The lien for unpaid Assessments shall be unaffected by any sale or
other transfer or conveyance of the Lot subject to the Assessments, and the
lien shall continue in full force and effect. No Member may waive or otherwise
avoid or escape personal liability for payment of any assessment by
abandonment of his Lot or by abandonment or release of the Members' rights to
the use, benefit and enjoyment of the Common Areas and Facilities.
8.02. Assessment Certificate.
Upon five days notice, the Board of Directors
shall furnish a certificate signed by an Association officer to any Member
liable for the payment of any Assessment or to any other Person having
legitimate interest in the payment of such Assessment staling whether or not
the Assessment has been paid. The certificate shall be conclusive evidence of
the payment of any Assessment stated to have been paid in the certificate. The
Board of Directors may require the payment of reasonable charge for the
issuance of a certificate.
8.03. Amount of Lien.
Upon the default by any Owner of any Lot in the
payment of any installment of an Assessment, the entire unpaid balance of all
Assessments against the Lot and the Owners of the Lot shall immediately be and
become due and payable, unless the Board of Directors shall otherwise direct.
In addition to the amount of the unpaid annual maintenance and special
Assessments, the following amount shall be considered to be special
Assessments against the Lot and the Owners of such Lot and shall be subject to
the lien of Assessments provided under Paragraph8.01:
(a) All reasonable costs and expenses of
collection incurred or paid by the Association, including attorneys' fees,
court costs and other costs and expenses relating to the collection or
enforcement of the lien of Assessments.
(b) Such late payment charges or fees as shall
be established by the Board of Directors from time to time.
(c) Such Association overhead charges as shall
be established by the Board of Directors from time to time to reimburse or
compensate the Association for overhead or indirect costs and expenses
incurred to collect unpaid Assessments or to perform or satisfy any obligation
or duty imposed upon such Owners under this Declaration.
(c)
Interest on or with respect to all amounts specified in this Paragraph
8.03, including the unpaid balance of all Assessments, and such interest shall
accrue from the due date until the payment of each such amount until paid in
full at the maximum rate of interest permitted by law in the State of
Mississippi on loans to the Owners from Persons similar to the Association.
8.04. Priority of Lien.
The lien to secure payment of an Assessment
against a Lot shall have preference over any other liens, assessments,
judgments or charges of whatever nature, except (i) general and special
assessments for ad valorem property taxes on or against such Lot, (ii) the
lien of any First Mortgage on such Lot made in good faith and for value
received and duly recorded prior to the Assessment creating the lien against
the Lot, or duly recorded after receipt of a certificate under Paragraph 8.02
stating that payment of the Assessment was current as of the date the First
Mortgage was filed for record.
8.05. Subordination to Mortgages.
As provided by Paragraph 8.04, the lien against
any Lot to secure payment of any Assessment shall be subordinate to the lien
of any duly recorded First Mortgage on or against the Lot made in good faith
and for value received, and shall not affect the rights of the holder of any
First Mortgage. However, the lien shall be subordinate only to Assessments,
which have become due and payable prior to the sale, or other transfer of, or
conveyance of the Lot pursuant to a foreclosure of any such First Mortgage, or
prior to the execution of any deed, assignment or other proceeding or
arrangement in lieu of foreclosure. Any such holder of a First Mortgage who
acquires possession of such Lot pursuant to a foreclosure or pursuant to the
execution of any deed, assignment or other proceeding or arrangement in lieu
of foreclosure, and any purchaser or assignee at a foreclosure sale or any
transferee under any deed, assignment or other proceeding or arrangement in
lieu of foreclosure, shall acquire the Lot free of any claims for unpaid
Assessments levied against the Lot which accrued prior to the time such holder
acquires possession of the Lot, or prior to foreclosure sale or prior to the
execution of any deed, assignment or other proceeding or arrangement in lieu
of foreclosure, except for claims for a proportionate share of such unpaid
Assessments resulting from a relocation of such unpaid Assessments among the
various Lots.
However, such foreclosure, deed, assignment or
other proceeding or arrangement in lieu of foreclosure shall not relieve the
holder of the First Mortgage in possession or the purchaser or assignee at
foreclosure or the transferee under any deed, assignment or other proceeding
or arrangement in lieu of foreclosure, from any liability for payment of any
Assessments thereafter becoming due, or from the Hen created to secure the
payment of such Assessments, and the lien for the payment of such Assessments
thereafter becoming due and payable shall have the same effect and shall be
enforced in the same manner as provided in this Paragraph 8. No amendment to
this Paragraph 8.05 shall adversely affect the rights of the holder of any
First Mortgage on any Lot filed for record prior to the amendment being filed
for record of the holder or any indebtedness secured by such First Mortgage,
unless such holders execute, approve or consent to the amendment. In its sole
and absolute discretion, the Board of Directors may extend the provisions of
this Paragraph 8.05 to Mortgagees not otherwise entitled to the benefits of
this Paragraph 8.05.
8.06. Additional Default.
Any First Mortgage encumbering a Lot shall
provide that any default by the mortgagor in the payment of any Assessment or
any installment of an Assessment shall be a default under the First Mortgage.
The failure to include such a provision in any First Mortgage shall not affect
the validity or priority of the First Mortgage, and the protection extended by
Paragraph 8.04 and Paragraph 8.05 to the holder of the First Mortgage or the
holder of the indebtedness secured by the First Mortgage shall not be altered,
modified or diminished by reason of or as result of such failure.
9.
PROPERTY RIGHTS
9.01.
9.01.Members' Easements of
Enjoyment.
Every Member shall have a right and easement of
enjoyment in and to the Common Areas which shall be appurtenant to and shall
pass with the title to every Lot, subject to the rights of the Association as
described in the Bylaws.
9.02. Delegation of Use.
In accordance with the Bylaws and subject to such reasonable rules and
regulations as the Board of Directors may adopt or promulgate and uniformly
apply and enforce, any Member may delegate his rights to the use, benefit and
enjoyment of the Common Areas and Common Facilities to (i) family members who
reside permanently with such Owner, (ii) contract purchasers who reside on the
Property, and (iii) Invitees accompanied by Owner.
10.
ENFORCEMENT OF DECLARATION
10.01.
Compliance.
If any provision of this Declaration is breached
or violated or threatened to be breached or violated by any Owner or other
Person, then each of the other Owners, the Declarant and/or the Association,
jointly or severally, shall have the right, but not the obligation, to proceed
at law or in equity to compel a compliance with, or to prevent the threatened
violation or breach of, the provisions of this Declaration. If any structure
or other improvement located on any portion of the Property, including any
Lot, violates any provision of this Declaration, then the Declarant and/or the
Association, jointly or severally, shall have the right, but not the
obligation, to enter upon any portion of the Property, including any Lot, to
abate or remove such structure or other improvement at the cost and expense of
the Owners of the Lot where such structure or improvement is located or who
otherwise causes such violation, if the violation is not corrected by such
Owners within 30 days after written notice of such violation. Any Person
entitled to file or maintain a legal action or proceeding for the actual or
threatened violation or breach of this Declaration shall be entitled to
recover attorney's fees and other costs and expenses attributable to such
action or proceeding, and the Association shall be entitled to recover and
receive any other amounts specified in Paragraph 8.03. Any such entry and
abatement or removal shall not be or be deemed to be a trespass. The failure
by any Person for any period of time to enforce any provision of this
Declaration shall not be or be deemed a waiver of the right to enforce or
otherwise bar or affect the enforcement of any and all provisions of this
Declaration at any time, including any future time.
10.02.
Enforcement.
This Declaration shall be enforced by any
appropriate proceeding at law or in equity (i) against any Person who breaches
or violates or threatens to breach or violate any provision of this
Declaration, (ii) to recover damages for any such breach or violation, (iii)
to collect any amounts payable by any Owner to the Association under this
Declaration, including Assessments, attorneys' fees, costs of collection, late
charges, overhead charges or other amounts incurred by the Association to
perform or discharge any obligation or duty of an Owner under this Declaration
or otherwise specified in this Declaration, including Paragraph 8.03, and (iv)
to enforce any lien created by this Declaration. There is hereby created and
declared to be a conclusive presumption that any actual or threatened
violation or breach of this Declaration cannot be adequately remedied by an
action at law exclusively for recovery of monetary damages. The Declarant, the
Association and each Owner by acceptance of a deed or other document to a Lot
waives and agrees not to assert any claim or defense that injunctive relief or
other equitable relief is not an appropriate remedy.
11.
GENERAL PROVISIONS
11.01
Duration.
This Declaration shall run with and bind the land
subject to this Declaration, and shall inure to the benefit of and be
enforceable by the Declarant, the Association and the Owners of any land
subject to this Declaration, their respective legal representatives, heirs,
devisees, successors and assigns, until January 1, 2036. After such date this
Declaration shall be automatically extended for successive periods often years
unless a Supplement signed by a majority of the Owners has been properly filed
for record to abolish or terminate all or a substantial portion of this
Declaration at least one year prior to the effective date of such abolishment
or termination.
11.02. Amendments.
Notwithstanding Paragraph 11.01, this Declaration may be amended, modified
and/or changed either (i) by the Declarant properly filing for record a
Supplement prior to January 1, 2000 or (ii) by a Supplement properly filed for
record and executed by the Declarant and the owners of at least 51% of the
Lots if amended, modified and/or changed prior to January 1, 2002, and
thereafter by the Owners of at least fifty-one percent (51%) of the Lots.
11.03. Interpretation.
The provision of this Declaration shall be construed to implement the purpose
of the creation of a uniform plan for the development of the Property.
11.04. Severability.
Invalidation of any provision of this Declaration by judgment or court order
shall not affect any other provisions of this Declaration which shall remain
in full force and effect.
11.05. Headings.
The headings contained in this Declaration are for reference purposes only and
shall not in any way affect the meaning or interpretation of this Declaration.
11.06. Notices to Owner.
Any notice required to be given to any Owner under the provisions of this
Declaration shall be deemed to have been properly delivered, when deposited in
the United States mails, postage prepaid, addressed to the last known address
of the Person who appears as Owner on the records of the Association or, if
applicable, the Declarant at the time of such notice is mailed.
11.07.
Successors of Declarant.
All or any portion of any and all rights,
reservations, easements, interests, exemptions, privileges and powers of the
Declarant under this Declaration may be assigned and transferred exclusively
by the Declarant with or without notice to the Association.
11.08.
Incorporation by Reference on
Resale.
In the event any Owner sells or otherwise
transfers any Lot, any deed or assignment purporting to such transfer shall
contain a provision incorporating the provisions of this Declaration by
reference.
11.09. No Dedication to Public Use.
No provision of this Declaration shall be
construed as a dedication to public use of or as an acceptance for maintenance
of any Common Areas by any public agency of authority or by any utility or
shall be interpreted as imposing upon any public agency or authority or any
utility any responsibility or liability for the maintenance or operation of
any portion of the Common Areas.
11.10.
Consents of Eligible Mortgage
Holders.
The Owners, or the Board of Directors, or the
Association, by any act or omission, shall not do any of the following things
without the prior written consent and approval of the holders of fifty-one
percent (51%) of the outstanding first mortgages who have requested notice
from the Association of any proposed action that requires the consent of a
specified percentage of Eligible Mortgage Holders:
(a)
Abandon, partition, subdivide, encumber, sell, assign or transfer any
of the Common Areas or Common Facilities, but the realignment of boundaries,
the granting of rights-of-way, easements and similar rights or interests for
utilities or for other purposes consistent with the use of the Common Areas by
the Members of the Association shall not be considered to be such an
encumbrance, sale, assignment or transfer.
(c)
Abandon or terminate this Declaration.
(d)
Modify or amend any material or substantive provision of this
Declaration or the Bylaws pertaining to the rights of the holders of First
Mortgages.
(e)
Substantially modify the method of determining and collecting
Assessments as provided in this Declaration.
11.11.
Notice to and Rights of Eligible
Mortgage Holders.
The Association shall promptly notify any
Eligible Mortgage Holder on any Lot for which any Assessment remains
delinquent for at least 60 days, and the Association shall promptly notify the
holder of the First Mortgage on any Lot for which there is default by the
Owner with respect to performance of any other obligation or duty under this
Declaration which remains uncured for at least 60 days following the date of
such default. Any failure to give any such notice shall not affect the
validity of priority of any First Mortgage on any Lot, and the protection
provided in this Declaration to any Eligible Mortgage Holder on any Lot shall
not be altered, modified or diminished by reason of such failure, nor shall
any such failure affect the validity of the lien of any Assessment or affect
any of the priorities for liens as specified in Paragraph 7.
No suit or other proceeding may be brought to
foreclosure the lien for any Assessment levied pursuant to this Declaration,
except after 10 days written notice to any Eligible Mortgage Holder holding a
first mortgage encumbering the Lot which is the subject matter of such suit or
proceeding. Any holder of a First Mortgage of any Lot may pay any taxes,
rents, utility charges or other charges levied against the Common Area which
are in default and which may or have become a charge or lien against any of
the Common Area and may pay any overdue premiums on any hazard or liability
insurance policy, or secure new hazard or liability insurance coverage on the
lapse of any policy, relating to the Common Area. Any holder of a First
Mortgage who advances any such payment shall be due reimbursement of the
advanced amount from the Association.
11.12.
Captions and Gender.
The captions contained in this Declaration are
for convenience only and are not a part of this Declaration and are not
intended to limit or enlarge the terms and provisions of this Declaration.
Whenever the context requires, the male shall include all genders and singular
shall include the plural.
11.13.
Exhibits.
All Exhibits which are referred to in this
Declaration are made a part of and incorporated into this Declaration by
reference.
12.
DECLARANT'S RIGHTS AND
RESERVATIONS
No provisions in the
Charter, the Bylaws or this Declaration shall limit, and no Owner or the
Association shall interfere with, the right of Declarant to subdivide or
re-subdivide any portions of The Property; to complete o r alter improvements
or refurbishments to and on the Common Areas and Common Facilities or any
portion of the Property owned by Declarant, or alter the construction plans
and designs, or constrict such additional improvements or add future phases as
Declarant deems advisable during development of the Property. Such right shall
include, but shall not be limited to, the right to install and maintain such
structures, displays, signs, billboards, flags and sales offices as may be
reasonably necessary for the conduct of Declarant’s business or completion of
the work and disposition of the Lots by sale, lease or otherwise. Each Owner
by accepting a deed or other conveyance document to a Lot hereby acknowledges
that the activities of Declarant may temporarily or permanently constitute an
\ inconvenience or nuisance to the Owners, and each Owner hereby consents to
such inconvenience or nuisance.
This Declaration shall not
limit the right of the Declarant at any time prior to acquisition of title to
a Lot by a purchaser from Declarant to establish on that Lot, Common Areas,
additional licenses, easements, reservations and rights of way, to itself, to
utility companies, or to others as may from time to time be reasonably
necessary to the proper development and disposal of the Property. The
Declarant need not seek or obtain Board approval of any improvement
constructed or placed by Declarant on any portion of the Property. The rights
of the Declarant under this Declaration may be assigned by Declarant to any
successor and any interest or portion of Declarant's interest in any portion
of the Property by a recorded, written assignment. Notwithstanding any other
provision of this Declaration, the prior written approval of Declarant will be
required before any amendment to this Paragraph 12 shall be effective while
Declarant owns a Lot. Declarant shall be entitled to the nonexclusive use of
the Common Area, without, further cost, for access, egress, ingress, use or
enjoyment, in order to show the Property to its prospective purchasers or
lessees and dispose of the Property as provided herein. Each Owner hereby
grants, by acceptance of the deed to such owner's Lot, an irrevocable, special
power of attorney to Declarant to execute and record all documents and maps
necessary to allow Declarant to exercise its rights under this Paragraph 12.
This Paragraph 12 shall be applicable for so long as the Declarant owns any
portion of the Property.
13. DEFINITIONS
13.01. Definitions.
For all purposes of this
Declaration, the following words and terms shall have the meanings assigned in
this Paragraph 13.01 unless otherwise specified or the context requires a
different construction.
"Additional
Property" shall mean the property described on Exhibit B attached hereto
and any other property situated in Section I, Township 5 South, Range 17 West,
and Section 6, Township 5 South, Range 16 West, Pearl River County,
Mississippi, contiguous to said property, owned by the Declarant or its
members.
"Architectural
Review Committee" shall mean and refer to the committee which shall be
appointed by the Association's Board of Directors to approve exterior and
structural improvements, additions, and changes within the Development as
provided in Paragraph 2 hereof.
"Assessment"
shall mean the share allocated to a Lot and thereby the Owners of such Lot of
the Association's (i) maintenance Assessments if elected by the Board of
Directors and Class A Members as described under paragraph 7.02, (i) Special
Assessments under paragraph 7.03, and (iii) expenses, costs, charges and other
amounts incurred with respect to either such Lot or the satisfaction,
discharge or compliance with any obligations or duties of the Owners of such
Lot as specified in this Declaration.
"Association"
shall mean the Apple South Homeowners' Association, Inc., a Mississippi not
for profit corporation, and its successors and assigns.
"Bylaws"
shall mean the bylaws of the Association as amended from time to time.
"Charter"
means The Articles of Incorporation of the Association, as amended from time
to time.
"Common
Areas" shall mean all real property conveyed to the Association by the
Declarant or shown and designated on the plat as Common Area and is owned by
or otherwise made available to the Association for the common use, benefit and
enjoyment of the members.
"Common
Expense" shall mean expenditures made or liabilities incurred by or on
behalf of the Association, together with any allocations or reserves.
"Common
Facilities" shall mean all the buildings and other improvements
constructed on any portion of the Common Area for the common use, benefit and
enjoyment of the members.
"Declarant"
shall mean Robert Applewhite, L.L.C.., a Mississippi limited liability
company, and its successors and assigns.
"Declaration"
shall mean this Declaration of Covenants, Conditions and Restrictions for
Apple South as supplemented from time to time.
"Developer"
means the Declarant and each Person who is a successor in title to or acquires
a fee simple interest from the Declarant with respect to any Lot, except the
Association, and with the Declarant's permission is engaged in the business of
the development, improvement and sale of any Lot, including the construction
and sale of a Dwelling and related improvements or appurtenances on any lot.
"Dwelling"
shall mean a fully detached residence which is designed and used as a
conventional single family home, and which should be designed to maximize
views, climatic conditions, and the environmental amenities of the site.
"Eligible
Mortgage Holder" shall mean those holders of a First Mortgage on a Lot who
have requested, in writing, the Association to notify them on any proposed
action that requires the consent of a specified percentage of eligible
mortgage holders or of any Assessment or installment thereof, which shall
become and remain delinquent for a period in excess of sixty (60) days.
"First
Mortgage" shall mean a mortgage, deed of trust or similar encumbrance
creating a lien or encumbrance against a Lot which has priority over all other
mortgages, deeds of trusts or similar encumbrances creating liens or
encumbrances against such Lot.
"Invitees"
shall mean an Owner's tenants, guests, patrons, employees or other guests or
invitees.
"Lot"
shall mean each subdivided parcel, plot or tract of land constituting a
portion of the property which is shown and designated as a numbered lot on any
subdivision plat filed for record in the office of the Chancery Clerk of Pearl
River County, Mississippi, and is intended to be improved with a Dwelling, but
does not include the Common Areas,
"Management
Agent" means the Person, if any, employed or retained by the Board of
Directors for the purpose of conducting and managing the daily operations of
the Association.
"Member"
shall mean each Person who holds or has any class of membership in the
Association as provided by Paragraph 5.
“Mortgagee”
shall mean any Person who owns, holds or is the beneficiary of a mortgage,
deed of trust, or similar encumbrance creating a lien or encumbrance against
any Lot, including, but not limited to, (i) a bank, (ii) a savings and loan
association, (iii) a trust company, (iv) an insurance company, (v) a mortgage
company, (vi) a trust, (vii) a mortgage insurance company, (viii) a mutual
savings bank, (ix) a real estate investment trust, (x) a credit union, (xi) a
pension fand, (xii) the Federal National Mortgage Association, (xiii) the
Federal Home Loan Mortgage Corporation, (xiv) a recognized institutional type
lender or loan correspondent, (xv) any agency or a department of The United
States of America or any state, county or municipal government,(xvi) a
corporation, or (xvii) an individual.
"Owner"
shall mean the record holder, whether one or more Persons, of a fee or
undivided fee interest in or to any Lot, including contract sellers, but
excluding those Persons who hold an interest in a Lot merely as security for
the performance of an obligation or payment of a debt.
"Person"
shall mean an individual, a corporation, a general or limited partnership, an
association, a trust, an estate or any other legal entity.
"Plat"
shall mean the subdivision map(s) or plat(s) of the Property, which has been
or shall be filed for record in the office of the Chancery Clerk of Pearl
River County, Mississippi.
"Property"
shall mean all real property situated in Pearl River County, Mississippi,
which is described in Exhibit A, and all additions thereto which by annexation
in accordance with the terms and provisions of this Declaration are subject to
the covenants and restrictions of this Declaration.
"Supplement"
means any amendment, modification, change or restatement of or to this
Declaration.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed
by its
By:
Robert W. Applewhite, L.L.C.
Bettye L. Applewhite
All members of the Robert Applewhite, L.L.C.