State of Florida,
County of Leon,
KNOW ALL MEN BY THESE PRESENTS,
That this Declaration of Covenants and Restrictions, made and entered into on this 25th day of September, AD 1981, by Killearn, LTD., a Louisiana Limited Partnership, hereinafter referred to as “Declarant.”
W I T N E S S E T H:
WHEREAS, Declarant is the owner of the real property commonly known as Pebble Creek and desires to create therein a residential community with common area, open spaces, and other common facilities for the benefit of the said community; and,
WHEREAS, Declarant desires to provide for the preservation of the values and amenities in said community and for the maintenance of said common area, open spaces, and other common facilities, and to this end, desires to subject the real property described in Exhibit “A” to set forth, each and all of which is and are for the benefit of said property and each owner thereof; and,
WHEREAS, these Covenants and Restrictions are in addition to those recorded in Official Records Book 993, in Page 427 of the Public Records of Leon County, Florida and are not intended to amen, diminish or alter these Covenants and Restrictions in any way; and,
WHEREAS, Declarant has deemed it desirable, for the efficient preservation of the values and amenities in said community, to create an agency to which should be delegated and assigned the powers of maintaining and administering the community properties and facilities and administering and enforcing the covenants and restrictions and collecting and disbursing the assessments and charges hereinafter created; and,
WHEREAS, Declarant has incorporated under the laws of the State of Florida, as a non-profit corporation, Pebble Creek Homeowners Association, Inc., for the purpose of exercising the functions aforesaid;
WHEREAS, Declarant declares that the real property described in Exhibit “A,” and such additions thereto as may hereafter be made pursuant to Article I hereof, is and shall be held, transferred, sold, conveyed and occupied subject to the covenants, restrictions, easements, charges and liens (sometimes referred to as “covenants and restrictions”) hereinafter set forth.
Article I. Property Subject To This Declaration
Section 1 Existing Property. The real property which is, and shall be, held, transferred, sold, conveyed, and occupied subject to this Declaration is located in Leon County, Florida, contains 12.73 acres more or less, and is more particularly described in Exhibit “A” attached hereto.
Section 2 The declaration shall interlock all rights of the members to the Covenants and Restrictions of Killearn Homes Association, as provided in Article XLIV, and all members shall become members of and shall pay the required Annual Assessments and/or special Assessments established by the Killearn Homes Association under the Covenants and Restrictions recorded in Official Records Book 993, in Page 427 of the Public Records of Leon County, Florida.
Article II. Definitions
Section 1 The following words when used in this Declaration or any Supplemental Declaration (unless the context shall prohibit) shall have the following meanings.
“Association” shall mean and refer to the Pebble Creek Homeowners Association, Inc.
“Board” shall mean and refer to the Board of Directors of the Pebble Creek Homeowners Association, Inc.
“Building” shall include, but not limited to, both the main portion of such building and all projections or extensions, thereof, including garages, outside platforms and docks, carports, canopies, enclosed malls, porches, walls, docks, and fences.
“Committee” shall mean and refer to the Pebble Creek Architectural Control Committee.
“Common Properties” shall mean and refer to those areas of land shown on the recorded subdivision plat of Pebble Creek and intended to be devoted to the common use and enjoyment of the owners of property in Pebble Creek.
“Improvements” shall mean and include structures and construction of any kind, whether above or below the land surface, such as, but not limited to, buildings, out-buildings, water lines, sewers, electrical and gas distribution facilities, parking areas, walkways, wells, fences, hedges, mass plantings, entrance ways or gates and signs.
“Living Area” shall mean and refer to those heated and/or air conditioned areas which are completely finished as living area and which shall not include garages, carports, porches, patios or storage areas.
“Living Unit” shall mean and refer to any portion of a building designed and intended for use and occupancy as a residence by a single family.
“Member” shall mean and refer to all those Owners who are members of the Association as provided in Article XXIX, Section 1, hereof.
“Owner” shall mean and refer to the record owner, whether one or more persons or entities, of the fee simple title to any site situated in Pebble Creek but, notwithstanding any applicable theory of the mortgage, shall not mean or refer to the mortgage unless and until such mortgage has acquired title pursuant to foreclosure or any proceeding in lieu of foreclosure.
“Site” shall mean a portion or contiguous portions of said property, which accommodate a single use under single control. After improvement to the site. “Site” shall mean and refer to any plot of land shown upon any recorded subdivision map of Pebble Creek with the exception of Common Properties as heretofore defined.
Article III. General Provisions
Section 1 Duration. The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be successors by the Association, their respective legal representatives, heirs, successors, and assigns, for a term of twenty (20) years from the date this declaration is recorded after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by the then-Owners of two-thirds of the sites has been recorded, agreeing to change said covenants and restrictions in whole, or in part, provided, however, that no such agreement to change shall be effective unless made and recorded one (1) year in advance of the effective date of such change, and unless written notice of the proposed settlement is sent to every Owner at least ninety (90) days in advance of any action taken.
Section 2 Notices. Any notice required to be sent to any Member or Owner, under the provisions of this Declaration shall be deemed to have been properly sent when mailed, postpaid, to the last known address of the person who appears as Member or Owner on the records of the Association at the time of such mailing.
Section 3 Enforcement. Enforcement of these covenants and restrictions shall be by any proceeding at law or in equity against any person or persons violating or attempting to violate any covenant or restriction, either to restrain violation or to recover damages, and against the land to enforce any lien created by these covenants; and failure by the Association or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
Section 4 Severability. Invalidation of any one of these covenants or restrictions by judgement or court order shall in no wise affect any other provision which shall remain in full force and effect.
Article IV. Amendment Of Declaration Of Covenants And Restrictions
The Declarant reserves and shall have the sole right (a) to amend these covenants and restrictions for the purpose of curing any ambiguity in or any inconsistency between the provisions contained herein, (b) to include in any contract or deed or other instrument hereinafter made any additional covenants and restrictions applicable to the said land which do not lower standards of the covenants and restrictions contained herein, and (c) to release any building plot from any part of the covenants and restrictions which have been violated (including, without limiting the foregoing, violation of building restriction lines and provisions hereof relating thereto) if the Declarant, in its sole judgement, determines such violation to be a minor or insubstantial violation. With the concurrence of the owners of eighty percent (80%) of the property described in Article I, Section I, excluding the Declarant, may amend, alter, modify or delete any portion of these covenants and restrictions at an annual or special meeting.
Article V. Additional Covenants And Restrictions
No property owner, without the proper written approval of the Declarant, may impose any additional covenants or restrictions on any part of the land described in Article I, hereof.
Article VI. Architectural Control
No improvement as defined herein, shall be commenced, erected or maintained within Pebble Creek until the plans and specification shall have been submitted in duplicate to and approved in writing by the Pebble Creek Architectural Control Committee. The plans and specification for any construction, exterior alteration or addition shall show the nature, kind, shape, height, materials and location. Further, no change of the exterior colors, whatsoever, shall be permitted without prior written approval of the Committee. Harmony of external design, colors, and location in relation to surrounding structures shall be the guiding factor and the Committee shall have the absolute and exclusive right to refuse to approve any such building, plans, alterations and changes of exterior color which are not suitable or desirable in its opinion for any reason, including purely aesthetic reasons.
“Improvement” as used in this Article, shall not include hedges or mass plantings.”
Exterior materials shall be of colors and textures that complement the natural surrounding and existing structural colors. The actual exterior colors shall be submitted to the committee on a representative sample for review prior to application to the building exterior. Samples shall be made for exterior materials. Subsequent submittals shall be required if the initial submittals are unacceptable to the committee. The initial approval of the working drawings shall not be construed as approval of the exterior colors.
Article VII. Architectural Control Committee
Section 1 Membership. The Pebble Creek Architectural Control Committee is to be initially composed of three (3) members to be appointed by the Declarant. A majority of the Committee may designate a representative to act for it. Neither the members of the Committee nor its designated representative shall be entitled to any compensation for services performed pursuant to this covenant. At such time as there is no longer any Class B voting rights in the Association, the Committee to be appointed by the Board.
Procedure. The Committee’s approval, disapproval or waiver as required in these covenants shall be in writing. In the event the Committee, or its designated representative, fails to approve or disapprove within 30 days after plans and specifications have been submitted thereto, written approval will not be required and the related covenants shall be deemed to have been fully complied with. At least ten (10) days prior to the commencement of construction, such plans and specifications shall be submitted to the Committee and shall consist of not less than the following: foundation plans, floor plans of all floors, section details, elevation drawings of all exterior walls, roof plan and plot plan showing location and orientation of all buildings and other structures and improvements proposed to be constructed on the building plot, with all building restriction lines shown. In addition, there shall be submitted to the Committee for approval, a description of materials and such samples of building materials proposed to be used as the Committee shall specify and require and such other details and/or exhibits as may be reasonably required by the Committee.
Section 2 Other. It shall be the responsibility of the property owner, or builder, to obtain the approval of the Architectural Control Committee of the Killearn Homes Association prior to commencement of construction.
Article VIII. Land Use And Building Type
No site shall be used except for single family residential purposes. No building of any type shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling not to exceed two and one-half stories in height. When the construction of any building is one begun, work thereon shall be prosecuted diligently and continuously until full completion thereof. The main residence and attached structures shown on the plans and specifications approved by the Committee must be completed in accordance with said plans and specifications upon each building plot unless such completion is rendered impossible as the direct result of strikes, fires, national emergencies or natural calamities.
Article IX. Temporary Structures
No structure of a temporary character, basement, tent, shack, garage, barn or other outbuilding of any type shall be located on any site at any time, except during approved construction.
Boats, trailers, campers, motorcycles, bicycles or any other vehicle shall be parked or stored within the garage. In no event shall the vehicle be stored or parked on the street or the rear of the property; nor shall they be visible from the street or other residences.
Article X. Single-Family Dwelling Quantity And Size
The living area of the main structure of one story single family dwelling, exclusive of porches, garages, carports,
and patios shall be not less than 1,400 square feet. In the event a structure contains more than one story, the
ground floor must contain not less than 800 square feet of living area. The total square footage must equal or exceed
that of the single story dwelling.
Article XI. Building Location
(a) The location of the improvements on the site must be approved by the Committee prior to commencement of construction. The location of all improvements must take into consideration the adjoining sites, privacy, view and preservation of specimen trees.
(b) Walls and fences shall be placed or constructed on the site only after approval by the Committee as to location and type materials and finish. No chain link fences of any type will be approved.
(c) Steps, walkways, eaves, decks and patios are not to be considered a part of the building. Steps, walkways, decks and patios shall not, under any circumstances, encroach upon an adjoining site.
Article XII. Land Near Parks And Water Courses
No building shall be placed nor shall any materials, fill or refuse be placed or stored on any site bordering on any open water course so as to alter or block the flow of water.
Article XIII. Exterior Structure Materials And Color
Exterior materials should be of colors and textures that enhance the surroundings and elements of the land. Textured stucco, solid wood siding, stone and brick are acceptable materials. Earth tone colors are recommended. All colors are to be approved by the Committee.
Article XIV. Driveway And Walkway Construction
Driveways shall have the capacity and size to allow parking for at least two (2) automobiles. Driveways shall be limited to one entrance to the abutting street. Asphalt driveways shall not be permitted unless specifically approved by the Committee. All walks, driveways and patios shall be of color and materials that blend with the balance of the improvements. All walkways and sidewalks shall be a minimum width of 30 inches.
Article XV. Utility Connections And Television Antennas
All house connections for all utilities including, but not limited to, water sewerage, electricity, telephone and television shall be run underground from the property connecting points to the building structure in such manner to be acceptable to the governing utility authority and the Committee.
Exterior radio and television antenna installation must be approved in writing by the Committee.
Article XVI. Water Supply
No individual water supply system of any type shall be permitted on any site unless approved in writing by the Committee.
Article XVII. Sewage Disposal
No individual sewage disposal system shall be permitted on any site.
Article XVIII. Garbage And Refuse Disposal
No site shall be used, maintained, or allowed to become a dumping ground for scraps, litter, leaves, limbs or rubbish. Trash, garbage or other waste shall not be allowed to accumulate on the property and shall not be kept except in sanitary containers installed in such a manner to be acceptable to the Committee. All equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition and shall not be visible from the street.
Article XIX. Window Air-Conditioning Units
No window air-conditioning units shall be installed in any side of a building, and all exterior heating and/or air conditioning compressors or other machinery shall be located so as not to be visible from the street, and in such manner as to be acceptable to the Committee.
Article XX. Mail Boxes
No mail box or paper box or other receptacle of any kind for use in the delivery of mail or newspapers or magazines or similar materials shall be erected or located on any building plot unless and until the size, location, design and type of material for said boxes or receptacles shall have been approved by the Committee. When the United States mail service or the newspaper or newspaper carrier indicate a willingness to make a delivery to wall receptacles attached to the residence, each property owner, on the request of the Committee, shall replace the boxes or receptacles previously employed for such purposes with wall receptacles attached to the residence.
Article XXI. Signs
No sign of any kind shall be displayed to the public view on any site except one of not more than five square feet advertising the property for sale or rent. All signs must be approved in writing by the Committee.
Article XXII. Protective Screening
Protective screening areas are or shall be established as shown on the plat. Except as otherwise provided herein regarding street intersections under “Sight Distance at Intersections,” plantings, fences or walls shall be maintained throughout the entire length of such areas by the Pebble Creek Home Owners Association to form as effective screen for the protection of the residential area. No building or structure except a screen fence or wall or utilities or drainage facilities shall be placed or permitted to remain in such areas. No vehicular access over the area shall be permitted except for purpose of installation and maintenance of screening, utilities and drainage facilities.
Article XXIII. Sight Distance At Intersections
No fence, wall, hedge or shrub planting which obstructs sight lines at elevations between 2 and 6 feet above the roadways shall be placed or permitted to remain on any corner within the triangular area formed by the street property lines and a line connecting them at points 25 feet from the intersection of the street lines or, in the case of a rounded property corner, from the intersection of the property lines extended. The same sight line limitations shall apply within 10 feet from the intersection of a street property line with the edge of a driveway or alley pavement. No tree shall be permitted to remain within such distances of such intersections unless the foliage line is maintained at sufficient height to prevent obstruction of such sight lines.
Article XXIV. Easements
Easements for installation and maintenance of utilities and drainage facilities are reserved as shown on the recorded plat. Within these easements, no structure, planting or other materials shall be placed or permitted to remain which may damage or which may change the direction of flow of drainage channels in the easements, or which may obstruct or retard the flow of water through drainage channels in the easements. The easements area of each site and all improvements in it shall be maintained continuously by the Association, except for those improvements for which a public authority or utility company is responsible.
Article XXV. Livestock And Poultry
No animals, livestock, or poultry of any kind shall be raised, bred or kept on any site, except that dogs, cats, or other household pets may be kept, provided that they are not kept, bred, or maintained for any commercial purpose, and, further, provided they are not allowed to wander or roam freely about the neighborhood. Doghouses shall not be visible from the street or adjacent lots and dog pens and/or runs are prohibited.
The foregoing language, however, shall not be construed to require that a cat be kept on a leash when it is outside. Each owner shall be responsible for the activities, including any damages, caused by his or her dog, cat or other household pet.
Article XXVI. Parking Restrictions
No owner of a lot shall park, store, or keep any vehicle except wholly within the parking space designated therefor, and no owner shall park, store or keep any truck, camper, boat, trailer, or aircraft, or any vehicle other than a private passenger vehicle may be parked on a driveway. In no event shall any truck larger than a ½ ton pickup be parked, stored, or kept in any parking space. No owner of a lot shall repair or restore any motor vehicle, boat, trailer, aircraft, or other vehicle on any portion of any lot, or on the common area, except for emergency repairs, and then only to the extent necessary to enable movement thereof to a proper repair facility. No owner shall park a vehicle on his driveway in such a manner that the vehicle extends into the street.
Article XXVII. Oil And Mining Operations
No oil drilling, oil development operations, oil refining, quarrying or mining operations of any kind shall be permitted upon or in any site, nor shall oil wells, tanks, tunnels, mineral excavations or shafts be permitted upon or in any site. No derrick or other structure designed for use in boring for oil or natural gas shall be erected, or maintained for any commercial purpose.
Article XXVIII. Nuisances
No noxious or offensive activity shall be carried on upon any site, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood or tend to damage or destroy either private or public property.
Article XXIX. Membership And Voting Rights In The Association
Section 1. Membership. Every person or entity who is a record owner of a fee or undivided fee, interest in any site which is subject to covenants of record to assessment by the Association, shall be a member of the Association, provided that any such person or entity who holds such interest merely as a security for the performance of an obligation shall not be a member. The requirement of membership shall not apply to any mortgage or third person acquiring title by foreclosure or otherwise, pursuant to the mortgage instrument, or those holding by, through or under such mortgages or third person. The record owner may, at his option, designate that the occupant of a residential Living Unit be the member in his stead.
Section 2. Voting Rights. The Association members shall be those owners as defined in Section 1 with the exception of the Declarant. Members shall be entitled to one vote for each single-family site. When more than one person holds such interest or interests in any site, all such persons shall be Members, and the vote for such site shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any such site.
Article XXX. Property Rights In The Common Properties
Section 1. Member’s Easements of Enjoyment. Subject to the provisions of Section 3, every Member shall have a right and easement of enjoyment in the Common Properties and such easement shall be appurtenant to and shall pass with the title to every site.
Section 2. Extent of Members’ Easements. The rights and easements of enjoyment created hereby shall be subject to the following:
The right of the Declarant and of the Association, in accordance with its Articles and By-Laws to borrow money for the purpose of improving the Common Properties and in aid thereof to mortgage said properties. In the event of a default upon any such mortgage, the lender shall have a right, after taking possession of such properties, to charge admission and other fees as a condition to continued enjoyment by the Members and, if necessary, to open the enjoyment of such properties to a wider public until the mortgage debt is satisfied, whereupon the possession of such properties shall be returned to the Association and all rights of the Members hereunder shall be fully restored and,
The right of the Association, as provided in its Articles and By-Laws, to suspend the enjoyment rights of any Member for any period during which any assessment remains unpaid and for any period not to exceed thirty (30) days for any infraction of its published rules and regulations; and,
The right of the Association to charge reasonable admission and other fees for the use of the Common Properties; and,
The right of the Association to dedicate or transfer all or any part of the Common Properties to any public Agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the members, provided that no such dedication or transfer, determination as to the purpose or as to the conditions thereof, shall be effective, unless an instrument signed by Members entitled to cast two-thirds (2/3) of the votes irrespective of class of membership, has been recorded, agreeing to such dedication, transfer, purpose or condition, and unless written notice of the proposed agreement and action thereunder is sent to every Member at least ninety (90) days in advance of any action taken.
Article XXXI. Covenant For Maintenance Assessments
Section 1. Creation of the Lien and Personal Obligation of Assessments. The Declarant, for each site owned by him within the Properties, hereby covenants and each Owner of any site by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed or other conveyance, be deemed to covenant and agree to pay to the Association: (1) annual assessments or charges; (2) special assessments for capital improvements, such assessments to be fixed, established, and collected from time to time as hereinafter provided. The annual and special assessments, together with such interest thereon and costs of collections thereof as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with such interest thereon and cost of collection thereof as hereinafter provided, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due.
Section 2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively for the purpose of promoting the recreation, health, safety, and welfare of the residents and in particular for the improvement and maintenance of properties, services and facilities devoted to the purpose and related to the use and enjoyment of the Common Properties, including the streets and perimeter walls, if any, situated within Pebble Creek, including, but not limited to, the payment of taxes, insurance, repair, replacement, and additions thereto, and for the cost of labor, equipment, materials, management and supervision thereof.
Section 3. Basis and Maximum of Annual Assessments. Until the year beginning January 1983, the annual assessment shall be Four Hundred Dollars ($400.00) per site. From and after January 1, 1983, the annual assessment may be increased by vote of the Members, as hereinafter provided, for the next succeeding year, and thereafter at the end of each year for each succeeding period of one (1) year.
The Board of Directors of the Association may, after consideration of current maintenance costs and future needs of the Association, fix the actual assessment for any year at a lesser amount.
Section 4. Special Assessment for Capital Improvements. In addition to the annual assessments authorized by Section 3 hereof, the Association may levy in any assessment year a special assessment, applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction, unexpected repair or replacement of a described capital improvement upon the Common Properties, provided that any such assessment shall have the assent of two-third (2/3) of the votes of Class A members who are voting in person or by proxy at a meeting duly called for this purpose, written notice of which shall be sent to all Members at least thirty (30) days in advance and shall set forth the purpose of the meeting.
Section 5. Change in Basis and Maximum Amount of Annual Assessments. Subject to the limitations of Section 3 hereof, and for the periods therein specified, the Association may change the maximum amount and basis of the assessments fixed by Section 3 hereof prospectively for any such period, provided that any such change shall have the assent of two-third (2/3) of the votes irrespective of class of Members who are voting in person or by proxy, at a meeting duly called for this purpose, written notice of which shall be sent to all Members at least thirty (30) days in advance and shall set forth the purpose of the meeting, provided further that the limitations of Section 3 hereof shall not apply to any change in the maximum amount and basis of the assessments undertaken as an incident to a merger or consolidation in which the Association is authorized to participate under its Articles of Incorporation and under Article I, Section 2 hereof.
Section 6. Quorum for any action authorized under Sections 4 and 5. The quorum required for any action authorized by Sections 4 and 5 hereof shall be as follows:
At the first meeting called, as provided in Sections 4 and 5 hereof, the presence at the meeting of Members, or of proxies, entitled to cast sixty (60) percent of all votes of the membership shall constitute a quorum. If the required quorum is not forthcoming at any meeting, another meeting may be called, subject to the notice requirement set forth in Sections 4 and 5 hereof, and the required quorum at any such subsequent meeting shall be one-half (½) of the required quorum at the preceding meeting, provided that no such subsequent meeting shall be held more than sixty (60) days following the preceding meeting.
Section 7. Date of Commencement of Annual Assessments. Due Dates. The annual assessments provided for herein shall commence on the date (which shall be the first day of the month) fixed by the Board of Directors of the Association to be the date of commencement. No assessment shall be due until all promised improvements have been completed and Warranty Deeds issued.
The first annual assessments shall be made for the balance of the calendar year and shall become due and payable on the day fixed for commencement. The assessments for any year, after the first year, shall become due and payable on January 1.
The amount of the annual assessment which may be levied for the balance remaining in the first year of assessment shall be an amount which bears the same relationship to the annual assessment provided for in Section 3 hereof as the remaining number of months in that year bear to twelve. The same reduction in the amount of the assessment shall apply to the first assessment levied against any property which is hereafter added to the properties now subject to assessment at a time other than the beginning of any assessment period.
The due date of any special assessment under Section 4 hereof shall be fixed in the resolution authorizing such assessment.
Section 8. Duties of the Board of Directors. The Board shall fix the date of the commencement, and the amount of the assessment against each site, for each annual assessment period on or before such due date or period and shall, at that time, prepare a roster of the properties and assessments applicable thereto which shall be kept in the office of the Association and shall be open to inspection by any Owner. Written notice of the assessment thereupon shall be sent to every Owner subject thereto.
The Association shall, upon demand, furnish at any time to any Owner liable for said assessment, a certificate in writing signed by an officer of the Association, setting forth whether said assessment has been paid. Such certificate shall be conclusive evidence of payment of any assessment therein stated to have been paid.
Section 9. Effect of Non-payment Assessment: The Personal Obligation of the Owner; The Lien; Remedies of Association. If the assessments are not paid within ten (10) days of the due date (being the dates specified in Section 7 thereof), then such assessment shall become delinquent and shall, together with such interest thereon and cost of collection thereof, as hereinafter provided, thereupon becoming a continuing lien on the property which shall bind such property in the hands of the then Owner, his heirs, devisees, personal representatives and assigns. The personal obligation of the then Owner to pay such assessment, however, shall remain his personal obligation for the statutory period and shall not pass to his successors in title unless expressly assumed by them.
If the assessment is not paid within thirty (30) days after the due date, a late charge of 10% of the assessment shall be added to the assessment and the balance due shall bear interest from the date of delinquency at the maximum rate of interest allowed by law, and the Association may bring an action at law against the Owner personally obligated to pay the same or to foreclose the lien against the property, and there shall be added to the amount of such assessment the cost of such action, including a reasonable attorney’s fee. In the event a judgement is obtained, such judgment shall include interest on the assessment as above provided and a reasonable attorney’s fee to be fixed by the Court, together with the costs of the action.
Section 10. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be absolutely subordinate to the lien of any first mortgage now or hereafter placed upon the properties subject to assessment. This subordination shall not relieve such property from liability for any assessments now or hereafter due and payable, but the lien thereby created shall be secondary and subordinate to any first mortgage as if said lien were a second mortgage, irrespective of when such first mortgage was executed and recorded.
Section 11. Exempt Property. The following property subject to this Declaration shall be exempted from the assessments, charges and liens created herein: (a) all properties to the extent of any easement or other interest therein dedicated and accepted by the local public authority and devoted to public use; (b) all Common Properties as defined in Article 2 hereof; (c) all properties exempted from taxation by the laws of the State of Florida, upon the terms and to the extent of such legal exemption.
Notwithstanding any provisions herein, no land or improvements devoted to dwelling use shall be exempt from said assessments, charges or liens.
Article XXXII. Exterior Maintenance
Section 1. Exterior Maintenance. In addition to maintenance as described in Article XXXI, the Association shall have the right to provide maintenance upon vacant sites and shall have the right to provide maintenance upon every improved site which is subject to assessment under Article 8 hereof. Such maintenance may include paint, repair, replacement, and care of roofs, gutters, downspouts, exterior building surfaces, and other exterior improvements including the mowing of grass and weeds, and the removal of trash and litter.
Section 2. Assessment of Cost. The cost of such maintenance shall be assigned against the site upon which such maintenance is done and shall be added to and become part of the annual maintenance assessment or charge to which such site is subject under Article XXXI hereof and, as part of such annual assessment or charge, it shall be a lien against said property as heretofore defined and limited, and a personal obligation to the Owner, as heretofore limited, and shall become due and payable in all respects as provided in Article XXXI hereof.
Article XXXIII. Special Exterior Walls
Section 1. Special Exterior Walls. Each residence shall contain one windowless exterior wall (the “Special Exterior Wall”) which shall face an adjacent lot (“Adjacent Lot”).
Section 2. Drainage Easement and Roof Runoff. An easement is hereby granted to the Association, its officers, agents and employees to enter upon, across, over, and under any Lot for the purpose of changing, correcting, or otherwise modifying the grade or drainage channels of a Lot so as to improve the drainage of water from the Lots or Common Area. It shall be the responsibility of each Owner to take appropriate measures, whether by landscaping or otherwise, to protect such Adjacent Owner’s Lot or the Common Area from water running off of such Owner’s roof onto an Adjacent Owner’s Lot or unto the Common Area and no Owner shall have liability to otherwise be responsible to any other Owner or to the Association for any loss, expense or damage resulting from such roof runoff.
Section 3. Patio and Repair Easements. An exclusive easement, covering the ground area extending a width of five (5) feet from the Special Exterior Wall and running the length of the Special Exterior Wall, is hereby created for the benefit of the lot owner on whose lot line the Special Exterior Wall comprised a part of his residence. This easement may be used only for those purposes consistent with this declaration. Such easement to exist for the utilization of ladders and other equipment necessary for the repair and maintenance of the Special Exterior Wall and the roof. Utilization shall be only for such periods of time as is required to make repairs and perform such maintenance. Access onto the easement shall be permitted only at reasonable times during daylight hours and with prior knowledge of the Owner of the Adjacent Lot.
Section 4. Restrictions on Owner with Residence Containing Special Exterior Wall. The owner of the residence containing the Special Exterior Wall shall similarly be prohibited from attaching anything to such wall or from altering it in any way other than painting the wall in such manner as shall be approved by the Board or the Architectural Review Committee. Additionally, the owner of such residence shall not make any openings for windows or otherwise on such Wall, and shall take no other action, except as specifically contemplated herein, in connection with such Wall which shall interfere with the privacy of the Owner of the Adjacent Lot.
Section 5. General Rules of Law to Apply. Each Special Exterior Wall built as part of the original construction of a home and placed on the lot line shall constitute a common wall and the extent not inconsistent with the provisions of this article, the general rules of law regarding common walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto.
Section 6. Destruction by Fire or Other Casualty. The Lot Owner on whose property the Special Exterior Wall is a part of the residence shall provide insurance to repair or replace the Special Exterior Wall in the event of fire or other casualty. Any injury, whether to person or property, suffered by the Adjacent Lot Owner, as a result of fire or other casualty, shall be the responsibility of the Adjacent Lot Owner.
Section 7. Notice of Repair. It shall be the responsibility of the Adjacent Lot Owner to notify the Property Owner of the Special Exterior Wall of any required evident structural or other repairs. If the Adjacent Lot Owner does not give timely notice, the Property Owner shall have the available remedies under existing law to recover any damages resulting from the delay in notice.
Section 8. Arbitration. In the event of a dispute between the Adjacent Lot Owner and the Property Owner concerning a Special Exterior Wall, such dispute shall first be submitted to the Board of the Homeowners Association. If the recommendation of the Board is not acceptable to both parties, the dispute shall be submitted to arbitration. Each party is to select one arbitrator and such arbitrators are to select one additional arbitrator. The decision of a majority of all arbitrators shall bind the parties to the dispute.
Section 9. Roof Easement. A permanent roof easement is hereby granted, extending not more than two (2) feet from the Special Exterior Wall, to the Property Owner of the Special Exterior Wall.
Article XXXIV. Right To Lease
The respective houses shall not be rented by the owners thereof for transit or hotel purposes which shall be defined as rental for any period less than ninety (90) days. Other than the foregoing obligations together with any other specific limitations set forth in the Declaration, the homeowners shall have the absolute right to lease their houses provided that the lease is made subject to the covenants, conditions, restrictions, limitations and uses contained in this Declaration and those contained in the Articles of Incorporation of said Association and the By-Laws of the Association. Only the person or party in possession of any residence, whether the fee owner or his lessee, shall be entitled to the use of the common areas.
Article XXXV. Lawful Use
No immoral, improper, offensive, or unlawful use shall be made of the Property or any part of it. All valid laws, zoning ordinance, and regulations of all governmental bodies having jurisdiction over the Property shall be observed.
Article XXXVI. Regulations
Reasonable regulations concerning the use of common areas and all other areas which the Association maintains, regardless of fee ownership, may be made and amended from time to time by the Association in the manner provided by its Articles of Incorporation and By-Laws. Copies of such regulations and amendments shall be furnished by the Association to all homeowners and residents of the houses upon request.
Article XXXVII. Limitation Of Liability Of Association
Notwithstanding the duties of the Association, specifically including but not limited to its duties as stipulated Section 2, Article XXXI, the Association shall not be liable to homeowners for injury or damage other than the cost of maintenance and repair as required hereunder caused by any latent defect or condition of the property owned, or to be maintained and repaired by the Association or caused by acts of God or by third persons.
Article XXXVIII. Enforcement Of Obligations
Each homeowner shall be governed by and shall comply with the terms of this Declaration, the Articles of Incorporation of the Association, the By-Laws of the Association and Regulations adopted by the Association. Upon failure of a homeowner to so comply, the Association and other homeowners shall have the right to institute legal proceedings to require such compliance. In any such proceedings the prevailing party shall be entitled to recover its or his legal cost including a reasonable attorney’s fee. The failure of the Association or any homeowner to enforce any right, requirement, restriction, covenant, or other provisions of the hereinabove described documents shall not be deemed to be a waiver of the right to seek judicial redress against subsequent non-compliance therewith.
Article XXXIX. Discrimination Regulations Or Amendments
No amendments to this declaration or regulations promulgated by the Association shall be adopted which discriminated against any homeowner or group of homeowners without their express consent. No amendment shall change the boundaries of any common area nor increase the percentage of the homeowners’ obligation for common expenses unless the homeowner affected expressly consents to such action in writing.
Article XLII. Titles
The titles of each of the paragraphs or subdivisions thereof contained herein are for convenience only and shall be deemed to have no legal effect.
Article XLIII. Severability
The invalidity in whole or in part of any covenant, condition, restriction, agreement, provision, section, sub-section, sentence, clause, phrase, or word contained in this Declaration or in the Articles of Incorporation, By-Laws and Regulations of the Association shall not affect the validity of the remaining portions.
Article XLIV. Subject To Restrictive Covenants Of Killearn Estates
These Restrictive Covenants shall be in addition to and subject to those restrictive covenants dated April 29, 1981 and recorded April 30, 1981, in Official Records Book 993, Page 427, of the Public Records of Leon County, Florida.
KNOW ALL MEN BY THESE PRESENTS, that for and in consideration of the improvements placed upon the herein referred property and other good and valuable considerations, KILLEARN PROPERTIES, INC., pursuant to those certain restrictive covenants dated April 29, 1981 and recorded April 30, 1981 in Official Records Book 993, in Page 427 of the Public Records of Leon County, Florida, does hereby approve and agree to the Restrictive Covenants herein, this 18th day of September, 1981.
BEFORE ME personally appeared J.T. Williams, Jr. and Janice M. Hagan, to me well known and known to me to be the individuals described in and who executed the foregoing instrument as President and Secretary, respectively, of the above named KILLEARN PROPERTIES, INC., a Florida corporation, and severally acknowledged to and before me that they executed such instrument as such President and Secretary, respectively, of said corporation, and that the seal affixed to the foregoing instrument is the corporate seal of said corporation and that it was affixed to said instrument by due and regular corporate authority, and that said instrument is the free act and deed of said corporation.
WITNESS my hand and seal, this 18th day of September 1981.
Approved Amendments have been made to the original document. Date unknown
Reprinted with formatting changes, February 1, 2006.
Amended January 14, 2010 to add Section 9 to Article XXXIII. Recorded in Leon County Book 4081 Page 1256 on February 9, 2010