Article 5 - Assessments
Section 1. Creation of the Lien and Personal Obligation of Assessments. The Declarant for all the properties located within Eagle Landing covenants and each Lot Owner by acceptance of a deed for any property within Eagle Landing, whether it shall be expressed in such deed or not, is deemed to covenant and agree to pay to the Association (i) annual assessments, (ii) special assessments, and (iii) special assessments to remedy unsightly conditions. Additionally, each Lot Owner, by acceptance of a deed for a Lot, whether it shall be so expressed in such deed or not, is deemed to covenant and agree to pay to the Association annual Recreational Facilities assessments for so long as the Recreational Facilities are owned or leased by the Association. All such assessments shall be established and collected as hereinafter provided. All the assessments set forth above together with interest and costs of collection, including attorney's fees, shall be a charge on the land of every Lot Owner and shall he a continuing lien upon the property against which each assessment is made, inferior in lien and dignity only to real estate taxes and bona fide duly recorded deeds of trust. Each such assessment, together with interest, late charges, and costs of collection, including attorney's fees, shall also be, in addition to a lien on the Lot imposed hereby, the personal obligation of the Lot Owner or Lot Owners''. (such personal obligations being the joint and several obligation of each Lot Owner of any one Lot, if more than one) of the Lot at such time as the assessment falls due.
Section 2. Purpose of Annual Assessments. The annual assessments levied by the Board of Directors shall be used exclusively to promote the recreation, health, safety and welfare of the residents of Eagle Landing and the establishment of reserves therefore including by way of example and without limitation or restriction:
(a) Implementing and maintaining security measures and precautions including, but not limited to, a gatehouse at the entry of Eagle Landing and retaining a security guard or guards, walls and fencing, floodlighting, alarm systems and such other measures as either the Declarant or the Association deems desirable or prudent (although the foregoing is a permitted purpose, the Declarant shall in no way be required or obligated to perform any of the foregoing, nor shall the Association in any way be required or obligated to perform any of the foregoing unless directed by a majority of the Board of Directors of the members);
(b) Maintenance of any private roadways within Eagle Landing;
(c) Maintenance and preservation of the Eagle Landing Community Area;
(d) Payment of any real and personal property taxes and other charges assessed against the Eagle. Landing Community Area and against the equipment and other personal property which may be owned by the Association;
(e) Payment of salaries and benefits of all employees in connection with carrying out the Association's duties, responsibilities, and rights under this Declaration; and
(f) Maintenance of a policy or policies of insurance insuring the Declarant, the Association and its employees, agents, and others (as determined by the Board of Directors in their sole discretion) with respect to the Eagle Landing Community Area as required by this Declaration.
Section 3. Recreational Facilities Assessments. If the Recreational Facilities are owned or leased by the Association and a Recreational Facilities Assessment is imposed, the Recreational facilities assessment shall be used exclusively to maintain, manage, repair, improve, staff, control, insure, and operate the Recreational Facilities and the establishment of reserves therefore.
Section 4. Special Assessment to remedy Unsightly Conditions.
(a) Lot Owner's Duty to Maintain. Each Lot Owner covenants to the Declarant, the Association, and to every other Lot Owner to maintain the Lot owned by the Lot Owner and the structures located on that Lot in an attractive, neat, sightly, and first-class appearance and condition. To that end, each Lot Owner shall regularly and properly effect the following to and on his property:
(i) The cleaning, painting, and general maintenance of the exterior of the residence and every other structure on the property;
(ii) The repair and replacement of roofs, gutters, down spouts, exterior building surfaces, and exterior glass surfaces of the residence and every other building on the property;
(iii) The repair and replacement of all walls and fences on the property;
(iv) The maintenance, repair, and cleaning of all walks, curbs, stoops, and steps on the property; and
(v) The maintenance including cutting, pruning, feeding, watering, and, if necessary and permitted, the removal of trees, shrubs, grass, and other landscaping items on the property.
(b) Enforcement and Lien. If it is determined by the Board of Directors in its sole and absolute discretion that a Lot Owner is failing to maintain that Lot Owner's property or the improvements located thereon, as required above, the Board of Directors shall give such Lot Owner written notice stating the nature of such Lot Owner's failure and slating that the Board of Directors shall take such action as it deems necessary to remedy such failure to maintain if (i) such failure to maintain is not remedied within (10) days if such failure to maintain is capable of immediate or prompt remedy (as determined in the reasonable discretion of the Board of Directors), or (ii) remedial action is not commenced within ten (10) days and thereafter diligently prosecuted to completion if such failure to maintain is not capable of immediate or prompt remedy (as determined in the reasonable discretion of the Board of Directors). If the Lot Owner thereafter fails, as determined in the sole and absolute discretion of the Board of Directors, to appropriately respond within the time limit stated above or the additional time limit permitted by the Board of Directors, the Board of Directors shall have the power and duty to take such actions as are necessary to remedy the Lot Owner's failure to maintain the Lot Owner's properly as provided above. To that end, the Board of Directors, its contractors, employees, management agents, and other agents are granted and shall have the irrevocable and absolute right, license, and power to enter on to the Lot Owner's properly, without notice to the Lot Owner, to effect such cleaning, painting, maintenance, repair, and replacement as the Board of Directors deems necessary. The cost of all such maintenance and repair to a Lot Owner's Property effected by the Board of Directors in accordance with this section shall be charged directly to the Lot Owner as a special assessment to remedy unsightly conditions, and shall be due and payable in full within thirty (30) days after the date that notice of the assessment is given. The Board of Directors may enforce the collection of such assessment against the Owner personally and by foreclosing the lien created in this Article for the same.
Section 5. Costs Borne Directly by Lot Owner. If the need for maintenance or repair required by this Article is caused by the willful or negligent act or omission of a Lot Owner, its family, employees, tenants, agents, guests, permitees, or invitees, as determined by the Hoard of Directors after giving the Lot Owner notice and opportunity to respond to the Board of Directors, the cost of such maintenance or repair shall be charged directly to such Lot Owner and added to and become a part of the assessment to which such Lot Owner's property is subject.
Section 6. Special Assessments. In addition to the annual assessments and special assessments to remedy unsightly conditions authorized above, the Association may levy a special assessment applicable for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair, or replacement of a capital improvement upon the Eagle Landing Community Area and Recreational Facilities, fixtures, and personal property related thereto, or for any other special need of the Association. A special assessment may be made without the prior approval of the members of the Association to the extent that the amount of the special assessment payable in one (1) year does not exceed ten percent (10%) of the regular annual assessment for the same year. Any special assessments, the payment of which exceeds such amount, whether singularly or when combined with prior special assessments In the same fiscal year, must have the consent of more than two-thirds (2/3) of the votes entitled to be cast by all of the members of the Association. Any special assessment applicable to the Recreational Facilities shall be assessed only against Lots.
Section 7. Exempt Property. After the commencement of annual assessments as provided in this Article:
(a) No Lot shall be exempt from assessments after conveyance of the Lot from the Declarant to a Lot Owner; except that
(b) Lots which are owned by the Declarant shall be exempt from assessment until the expiration of the Declarant Control Period or conveyance by the Declarant to a Lot Owner, whichever shall sooner occur. In lieu of paying assessments on its Lots during the Declarant Control Period, the Declarant shall be obligated to pay, to or for the benefit of the Association, the difference between the total amount of assessments levied on all units subject to assessment and the amount of actual expenditures required to operate the Association during the fiscal year.
Section 8. Rate of Assessment. The amount of the annual assessment, the special assessments imposed upon each property within Eagle Landing, and the amount of the Recreational Facilities assessment imposed upon all Lots subject to assessment will be determined by multiplying the total amount of the assessment to be imposed by a fraction, the numerator of which shall be the "assessment unit" applicable to the particular property assessed and the denominator of which shall be the aggregate number of assessment units applicable to all property within Eagle Landing subject to the particular assessment, set forth as follows:
Unless exempt under Section 8 of this Article, each Lot shall have an assessment unit of (1).
Section 9. Determination of Annual Assessment.
(a) The annual assessment shall be fixed by the Board of Directors in accordance with a budget prepared and approved by the Board of Directors. Such budget shall contain provisions for reasonable reserves.
(b) The initial annual assessment and all subsequent annual assessments which are equal to or less than ten percent (10%) greater than the previous year's annual assessment shall be fixed by the Board of Directors without submission of the same to the Association for approval. Any approved budget and resulting annual assessment approved by the Board of Directors which is more than ten percent (10%) greater than the previous year's annual assessment must be presented to the Lot Owners at the annual meeting of the Association preceding the fiscal year in which such assessment shall go into effect. The annual assessment approved by the Board of Directors shall automatically go into effect on the first day of the succeeding fiscal year unless disapproved by more than two-thirds (2/3) of the votes entitled to be cast by all the members of the Association. . Upon any such disapproval, the Board of Directors shall promptly meet to establish a revised budget and assessment and shall submit the same to a special meeting of the Association. The revised budget and assessment approved by the Board of Directors shall go into effect as of the first day of the fiscal year unless again disapproved by more than two-thirds (2/3) of the votes entitled to be cast by all of the members of the Association. If for any reason the Association does not approve a budget and assessment for a fiscal year, which must be approved as set forth above, prior to commencement of the fiscal year, the budget and assessment for the preceding fiscal year, automatically increased by ten percent (10%), shall remain in effect until new budgets and assessments have been approved.
(c) If the Recreational facilities are owned or leased by the Association, the determination of the annual Recreational Facilities assessment shall be according to the procedures set forth in (a) and (b) above, except any Recreational Facilities budget approved by the Board of Directors and resulting Recreational Facilities assessment which is more than ten percent (10%) greater than the Recreational Facilities assessment for the preceding year shall automatically go into effect unless it is disapproved by more than two thirds (2/3) of the votes entitled to be cast by all Lot Owners.
Section 10. Date and Commencement of Annual Assessments and Due Dates. At settlement of the sale of each Lot, the purchaser shall pay to Eagle Landing Homeowners Association the sum of THREE HUNDRED AND N0/100 Dollars ($300.00) to be applied towards maintenance and preservation of the Eagle Landing Community Area. Assessments for the maintenance of the Eagle Landing Community Area and the Recreational Facilities assessment shall be due and payable on January 1 of each and every year, except as to exempt property. The first Recreational Facilities assessment shall commence immediately when Recreational Facilities are ready for use, shall be assessed against the owners of all Improved Lots, and shall be pro-rated to the following January 1.
Section 11. Non-Payment and Remedies. If any Lot Owner is more than forty (40) days delinquent in the payment of any installment of any assessment contemplated by this Declaration, the entire unpaid balance of the assessment may be declared by the Board of Directors to be immediately due and payable. Additionally, any assessment; or installment thereof, not paid within thirty (30) days after the date upon which it is due shall be assessed a reasonable late charge and/or a late fee, as may be established by the Board of Directors from time to time. Moreover, if any assessment, or any installment thereof, is not paid within forty, (40) days after the date upon which it is due, the Association may bring an action at law against the Lot Owner personally obligated to pay the same and initiate proceedings to foreclose the lien against the Lot Owner's property, together with cost of collection, including attorney's fees. Every Lot Owner, by accepting a deed to property it Eagle Landing, whether so expressed in the deed or not, covenants and agrees to pay the same. No Lot Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Eagle Landing Community Area, Recreational Facilities, or abandonment of its property.
Section 12. Certificate Re: Status of Assessments. The Association shall, upon demand by a contract purchaser or a Mortgagee of a Lot in which it has a legal interest, and for a reasonable charge (such charge determined solely in the discretion of the Board of Directors) for each such demand, furnish a certificate signed by an officer of the Association setting forth whether the assessments on the Lots have been paid, and whether the Lot Owner of such Lot is in default in the performance of any other obligation to the Association. Such properly executed certificate of the Association regarding the status of assessments against a Lot in Eagle Landing shall be binding upon the Association as of the date of its issuance. lf the Association docs not deliver a properly executed certificate within fourteen (14) days after receipt of written request therefor, the Association shall have deemed to certify that no assessments are past due with respect to such Lot and that the Lot Owner is not otherwise in default in the performance of any obligation to the Association. Nothing contained in the foregoing sentence shall be deemed to be a covenant for the benefit of a Lot Owner, and an error made by the Association or delay by the Association in the making or delivery of such certificate shall not stop the Association as to the Lot Owner or preclude the exercise of any right or remedy against the Lot Owner.
Section 13. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any and all Mortgages and the lien for real estate taxes. Sale or transfer of any Lot subject to assessment shall not affect the assessment lien but, rather, the grantor and grantee shall be jointly and severally liable for the payment of the assessment secured thereby. A Mortgagee shall not be liable for any lien for assessments arising prior to a foreclosure. If the sale or transfer of any Lot subject to assessment pursuant to foreclosure of a first mortgage or deed of trust or any proceeding in lieu thereof extinguishes the lien of such assessments as to payments which became due prior to such sale or transfer, the personal obligation of the Lot Owner whose Lot was subject to the lien shall not be extinguished or otherwise affected. No sale or transfer shall relieve such property from liability for any assessments thereafter becoming due or from the lien thereof.