Covenants

DECLARATION OF COVENANTS AND EASEMENTS THIS DECLARATION OF COVENANTS AND EASEMENTS is made this 17th day of November 1987, by BREEDLOVE INVESTMENTS, INC. (hereinafter referred to as "Declarant").   W I T N E S S E T H   WHEREAS, Declarant is the owner of certain real property in Gwinnett County, Georgia, which is more particularly described on Exhibit "A" attached hereto and made a part hereof. WHEREAS, Declarant intends to develop on lands including the real property described above a development to be known as Royal Oaks Estates Subdivision. WHEREAS, Declarant has caused the association (as hereinafter defined) to be formed as a non-profit civic organization to perform certain functions for the common good and general welfare of the Owner (as hereinafter defined). NOW, THEREFORE, the Declarant hereby declares that all of the real property described above shall be held, sold and conveyed subject to this Declaration of Covenants and Easements, which is for the purposes of enhancing and protecting the value, desirability and attractiveness of the Property. The covenants and Easements set forth herein shall run with the Property (as hereinafter defined), and shall be binding on all parties having or acquiring any right, title or interest in the Property or any part thereof, and shall, subject to the limitations herein provided, inure to the benefit of each owner, his heirs, grantees, distributees, successors and assigns and to the benefit of the Association. ARTICLE I. DEFINITIONS The following words, when used in this Declaration of Covenants and Easements, shall have the following meanings: 1.01 Association. "Association" means Royal Oaks Estates Subdivision Homeowners' Association, Inc. (a non-profit corporation organized under the Georgia Nonprofit Corporation Code), its successors and assigns. 1.02 Board. "Board" means the Board of Directors of the Association. 1.03 By-Laws. "By-Laws" means the By-Laws of the Association. 1.04 Common Property. "Common Property" means all real property (together with any and all improvements now or hereinafter located thereon) owned by the Association or in certain instances over which the Association has been granted permanent easements, for the common use and enjoyment of the owners. 1.05 Declarant. "Declarant" means Breedlove Investments, Inc., its successors and assigns. 1.06 Lot. "Lot" means any parcel of land shown upon a subdivision plat recorded in the Office of the Clerk of the Superior Court of Gwinnett County, covering any portion of the Property, provided, however, that no portion of the Common Property shall ever be a Lot except as provided in 2.03(a). Member. "Member" means any member of the association. 1.07 Membership. "Membership" means the collective total of all Members of all classes of the Association. 1.08 Owner. "Owner" means the record owner (including Declarant) whether one or more persons or entities, of a fee simple title to any Lot, provided, however, that where fee simple title has been transferred and is being held merely as security for the repayment of a loan, the person or entity who would own the Lot in fee simple if such loan were paid in full shall be considered the Owner. 1.09 Property. "Property" means that certain real property (other than Common Property) hereinabove described together with such additional real property as the Declarant may acquire and subject to the provisions of this Declaration of Covenants and Easements in accordance with the provisions of Article X hereof. 1.10 Restrictions. "Restrictions" means all covenants, restrictions, easements, charges, liens and other obligations created or imposed by this Declaration. 1.11 Structure. "Structure" means: (a) any thing or object the placement of which upon an Lot may affect the appearance of such Lot, including by way of illustration and not limitation, any building or part thereof, garage, porch, shed, greenhouse or bathhouse, coop or cage, covered or uncovered patio, swimming pool, fence, curbing, paving, wall, tree, shrub, sign, signboard, temporary or permanent living quarters (including any house trailer) or any other temporary or permanent improvement to such Lot; (b) any excavation, grading, fill, ditch, diversion dam or other thing or device which affects or alters the natural flow of surface waters from, upon or across any Lot, or which affects or alters the flow of any waters in any natural or artificial creek, stream, wash or drainage channel from, upon or across any Lot; and (c) any change in the grade at any point on a Lot of more than six (6) inches, whether or not subsection (b) of this Section 1.11 applies to such change. Note - This document is a replication. The original is recorded in Gwinnett County Superior Court book 4659 page 77 to 111and book 11100 page 214 - 223, then re-recorded in book 11147-316   ARTICLE II. Common Property   2.01 Conveyance of Common Property. (a) The Declarant may from time to time convey to the Association or grant easements to the Association, at no expense to the Association and in accordance with this Section, real and personal property for the common use and enjoyment of the Owners (such real and personal property is hereinafter collectively referred to as "Common Property") and, to the extent set forth in this Declaration of Covenants and Easements, the general public. The Association hereby covenants and agrees to accept from the Declarant all such conveyances of Common Property. (b) It is contemplated by the Declarant that the Declarant will convey to the Association Common Property for scenic and natural area preservation and for general recreational use to include facilities for swimming, tennis and exercise. The Declarant may, at Declarant's sole discretion, modify, alter, increase, reduce and otherwise change the Common Property contemplated to be conveyed to the Association in accordance with this subsection (b) of this Section 2.01 at any time prior to conveyance of such Common Property to the Association. (c) In addition to the property described in subsection (b) of this Section 2.01, the Declarant may convey to the Association in accordance with this Section 2.01 such other real and personal property as the Declarant may determine to be necessary or proper for the completion of the Development. (d) Notwithstanding any legal presumption to the contrary, the fee title to, and all rights, in, any portion of the Property owned by the Declarant and designated as Common Property or designated for public use shall be reserved to the Declarant until such time as the same shall be conveyed to the Association or to any municipality or other governmental body, agency or authority. 2.02 Right of Enjoyment. Every Owner shall have a right and easement to use and enjoy the Common Property, which right shall be appurtenant to and shall pass with the title to every Lot upon transfer; provided, however, that no Owner shall do any act which interferes with the free use and enjoyment of the Common Property by all other Owners. The Association may permit persons who are not Owners to use and enjoy part or all of the Common Property subject to such limitations, and upon such terms and conditions, as it may from time to time establish. The right and easement of enjoyment granted or permitted by this Section2.02 is subject to suspension by the Association as provided in Sections 2.03(f) and 3.05. 2.03 Rights of the Association. The rights and privileges conferred in Section 2.02 hereof shall be subject to the right of the Association acting through the Board to: (a) promulgate rules and regulations relating to the use, operation and maintenance of the Common Property; (b) borrow money for the purpose of carrying out the activities of the Association, including the acquisition, construction, improvement, equipping and maintenance of Common Property, and in aid thereof to encumber by deed to secure debt, mortgage or other security interest any or all of the Association's property including Common Property and revenues from assessments, user fees and other sources; and provided, however, that, during the period prior to the time when the Declarant has the right to appoint members of the Board, the Association shall not deed, grant or convey to anyone any mortgage, deed to secure debt or other security interest on or in Common Property constituting real estate without approval by Declarant and a two-thirds (2/3) vote of the members who are present in person or by proxy and voting at a meeting or Members duly held in accordance with the By-Laws of the Association; (c) grant easement or right-of-ways over Common Property to any municipality or other governmental body, agency or authority, to any quasi-public agency or to any utility company or cable television system; (d) dedicate or transfer all or any part of the Common Property or interests therein to any municipality or other governmental body, agency or authority for such purposes and subject to such provisions and conditions as may be agreed upon by the Association and such grantee, including a provision that such property or interest shall, if such dedication or transfer is approved by a two-thirds (2/3) vote of the Members who are present in person or by proxy and voting at a meeting or Members duly held in accordance with the By-Laws of the Association, cease to be subject to this Declaration or all or any part of the Restrictions while held by any such municipality or other governmental body, agency or authority; (e) charge reasonable fees in connection with the admission to and use of facilities or services; provided that in setting any such fee the Board may establish reasonable classifications which shall be uniform within each such class but need not be uniform between such classes; (f) suspend, pursuant to Section 3.05, the voting rights of any Member and the right of enjoyment granted or permitted by Section 2.02; (g) to sell, lease or otherwise convey all or any part of its properties and interests therein; and (h) enforce all applicable provisions of valid agreements of the Association relating to the Common Property or any part thereof. 2.04 Types of Common Property. At the time of the conveyance of any real property or grant of easement by the Declarant to the Association to be used as Common Property, the Declarant shall designate in the deed of conveyance or easement that such real property is to be Common Property, and further may designate in the deed of conveyance or easement the specific or general purpose or purposes for which such real property or any portion thereof may be used, and in such event, such property or portion thereof shall not, without a two-thirds (2/3) vote of the Members of the Association, be used for any different purpose or purposes without the prior written consent of the Declarant. 2.05 Delegation of Use. Any Owner may delegate to the members of his family or his tenants who reside on a Lot, in accordance with the By-Laws, his right to use and enjoy the Common Property. ARTICLE III. ROYAL OAKS ESTATES HOMEOWNERS ASSOCIATION 3.01 Purposes, Powers and Duties of the Association. The Association shall be formed as a non-profit civic organization for the sole purpose of performing certain functions for the common good and general welfare of the people of the Development. The Association shall have no power or duty to do or perform any act or thing other than those acts and things which will promote in some way the common good and general welfare of the people of the Development. To the extent, and only to the extent, necessary to carry out such purpose, then Association (a) shall have all of the powers of a corporation organized under the Georgia Nonprofit Corporation Code and (b) shall have the power and duty to exercise all of the rights, powers and privileges and to perform all of the duties and obligations of the Association as set forth in this Declaration. 3.02 Membership in the Association. Each Owner shall automatically be a member of the Association and such membership shall terminate only as provided in this Declaration of Covenants and Easements. 3.03 Voting Rights. Each Owner, shall be entitled to one (1) vote. Where such Owner is a group or entity other than one individual person, the vote on behalf of such Owner shall be exercised only by such individual person as shall be designated in a proxy instrument duly executed by or on behalf of such group or entity and delivered to the secretary of the Association.   The Development will be composed of Lots to be developed in phases containing unequal numbers of Lots. Each such phase will be platted of record in the Office of the Clerk of the Superior Court of Gwinnett County in accordance with ARTICLE VIII of this Declaration. The Declarant shall notify the Association in writing when the final phase of the Development has been so platted of record. By acceptance of a deed conveying a Lot, each Owner acknowledges that, upon the filing by Declarant of the subdivision plats covering such phases, the total votes outstanding. Nothing contained herein shall obligate the Declarant to develop any proposed phase of the Development unless such phase is subjected to this Declaration. 3.04 Board of Directors. The affairs of the Association shall be managed by a Board of Directors. The number of Directors and the method of election of Directors shall be as set forth in the By-Laws of the Association. 3.05 Suspension of Membership. The Board may suspend the voting rights of any Member and the right of enjoyment of the Common Property of any person who: (a) shall be subject to the Right of Abatement, as defined in Section 6.02 by reason of having failed to take the reasonable steps to remedy a violation or breach of either the Restrictions or the Design Standards of the ACC (as herein defined) within thirty (30) days after having received notice of the same pursuant to the provisions of Section 6.14 hereof; (b) shall be delinquent in the payment of any assessment levied by the Association pursuant to the provisions of ARTICLE IV hereof; or (c) shall be in violation of the rules and maintenance of the Association relating to the use, operation and maintenance of Common Property. Such suspension shall be for the balance of the period in which said Member or person shall remain in violation, breach or default, as aforesaid, except that in the case of a violation described in subsection   of this Section 3.05, the suspension may be for a period not to exceed sixty (60) days after the cure or termination of such violation. No such suspension shall prevent an Owner's ingress to or egress from his Lot. 3.06 Termination of Membership. Membership shall cease only when a person ceases to be an Owner. 3.07 Voting Procedures. The procedures for the election of Directors of the Association and the resolution of such other issues as may be brought before the membership of the Association shall be governed by this Declaration, the Georgia Nonprofit Corporation Code, the Articles of Incorporation of the Association and the By-Laws of the Association, as each shall from time to time be in force and effect. 3.08 Control by Declarant. Notwithstanding any other language or provision to the contrary in this Declaration, in the Articles of Incorporation, or in the By-Laws of the Association, Declarant hereby retains the right to appoint and remove any members of the Board of the Association and any officer or officers of the Association until such time as the first of the following events shall occur: (i) the expiration of five (5) years after the date of the recording of this Declaration; (ii) the date upon which all of the Lots have been conveyed by Declarant to Owners other than a person or persons constituting Declarant; or (iii) the surrender by Declarant of the authority to appoint and remove directors and officers by an express amendment to this Declaration executed and recorded by Declarant. Upon the expiration of the period of Declarant's right to appoint and remove directors and officers of the Association pursuant to the provisions of this Section, such right shall automatically pass to the Owners, including Declarant if Declarant then owns one or more Lots; and a special meeting of the Association shall be called at such time. At such special meeting the Owner shall elect a new Board of Directors which shall undertake the responsibilities of the Board and Declarant shall deliver the books, accounts, and records, if any, which Declarant has kept on behalf of the Association and any agreements or contracts executed by or on behalf of the Association during such period which Declarant has in its possession. Each Owner by acceptance of a deed to or other conveyances of a Lot vests in Declarant such authority to appoint and remove directors and officers of the Association as provided in this Section. The Association may exercise any other right or privilege given to it expressly by this Declaration or by law and any other right or privileges reasonably to be implied from the existence of any right or privilege given to it herein or reasonably necessary to effectuate any such right or privilege. ARTICLE IV. ASSESSMENTS 4.01 Covenant for Assessments and Creation of Lien and Personal Obligation. The Declarant, to the extent that Declarant is an Owner, hereby covenants and agrees, and each Owner, jointly and severally, for himself, his heirs, distributees, legal representatives, successors and assigns, by acceptance of a deed for a Lot, whether or not the covenants contained herein shall be expressed in any such deed, hereby covenants and agrees as follows: (a) to pay to the Association the annual assessments which may or shall be levied by the Association pursuant to this Declaration against all Lots owned by him; (b) to pay to the Association any special assessments for capital improvements and other charges which may or shall be levied by the Association pursuant to this Declaration against all Lots owned by him; (c) that there is hereby created a continuing charge and lien upon all Lots owned by him against which all such assessments are made to secure payment of such assessments and any interest thereon as provided in Section 4.09 hereof and costs of collection including reasonable attorneys' fees; (d) that such continuing charge and lien on such Lots binds such Lots in the hands of the then Owner, and the Owner's heirs, devisees, legal representatives, successors and assigns. Such charge and lien is superior to any and all charges, liens or encumbrances which may hereafter in any manner arise or be imposed upon such Lots whether arising from or imposed by judgment or decree or by any agreement, contract, mortgage, deed to secure debt, or other instrument, except (i) such liens for taxes or other public charges as are by applicable law made superior, and (ii) all deeds to secure debt given to secure a loan the proceeds of which are used (1) to purchase a Lot or Lots (together with any and all Structures which may from time to time be placed or located thereon); (2) to finance the construction repair or alternation of Structures; and (3) to finance or refinance the improvements on Structures located on each lot. (e) that no sale or transfer at foreclosure or in lieu of foreclosure shall relieve any Lot or Lots from liability for any assessment thereafter assess; (f) that all annual and special assessments (together with interest thereon as provided in Section 4.09 of this Declaration and costs of collection including reasonable attorneys' fees) levied against any Lot or Lots owned by him during the period that he is an Owner shall be (in addition to being a continuing charge and lien against such Lot or Lost as provided in Section 4.01(c) of this Declaration) a personal obligation which will survive any sale or transfer of the Lot or Lots owned by him; provided, however, that such personal obligation for delinquent assessments shall not pass to an Owner's successor in title unless expressly assumed by such successor. 4.02 Purpose of Assessment. The assessments levied by the Association shall be used exclusively for the purpose of providing for the common good and general welfare of the people of the new community of the Development, including, but not limited to, security, the acquisition, construction, improvement, maintenance and equipping of Common Property, the enforcement of the Restrictions contained in this Declaration, the enforcement of the Design Standards of the ACC, the payment of operating costs and expenses of the Association and the payment of all principal and interest when due on all debts owed by the Association. 4.03 Accumulation of Funds Permitted. The Association shall not be obligated to spend in any calendar year all the same collected in such year by way of annual assessments or otherwise, and may carry forward, as surplus, any balances remaining; nor shall the Association be obligated to apply such surplus to the reduction of the amount of the Annual Assessments in any succeeding year, but may carry forward from year to year such surplus as the Board may deem to be desirable for the greater financial security of the Association and the effectuation of its purposes. 4.04 Maximum Annual Assessment. (a) The below section was amended on February 20, 1994, and subsequently filed with Gwinnett County, Georgia on February 24, 1995. See attached amendment for new wording. Beginning on the Commencement Date (as hereinafter defined) and continuing thereafter until January 1 of the year immediately following the Commencement Date each for Lot shall be subject to a maximum annual assessment of ONE HUNDRED & NO/100 ($100.00) DOLLARS per Lot; provided, however, that prior to the closing of the sale of any Lot and the completed structures thereon to Owner other than Declarant or the builder of the structures on the Lot, the annual assessment for said Lot shall be equal to twenty-five (25%) of the annual assessment. In the event that the Commencement Date falls on a day other than January 1, the annual assessment for such year shall be prorated so that each Owner pays an annual assessment proportional to the number of days remaining in the calendar year. The words "Assessment Year" as used herein shall mean the calendar year with the first Assessment Year commencing on January 1 of the year immediately following the Commencement Date. (b) The below section was amended on February 20, 1994, and subsequently filed with Gwinnett County, Georgia on February 24, 1995. See attached amendment for new wording. Commencing with the first Assessment Year and continuing thereafter, the maximum annual assessment may be increased at any time and from time to time during each Assessment Year no more than five (5%) percent above the maximum annual assessment for the previous Assessment Year without a vote of the membership. During the first Assessment Year, the maximum annual assessment may be increased ten (10) percent above $100.00 (c) The below section was amended on February 20, 1994, and subsequently filed with Gwinnett County, Georgia on February 24, 1995. See attached amendment for new wording. Commencing with the second Assessment Year and continuing thereafter, the maximum annual assessment for each Assessment Year may at any time and from time to time be increased more than five (5%) percent above the maximum annual assessment for the previous Assessment Year if such increase is approved by a two-thirds (2/3) vote of the Members of the Association who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association and this Declaration. During the First Assessment Year, the maximum annual assessment may be increased more than ten (10%) percent above $100.00 if such increase is approved by a two-thirds (2/3) vote of each of the Members of the Association who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association and this Declaration. 4.05 Special Assessments for Capital Improvements. In addition to the annual assessments authorized by this ARTICLE IV, the Association may levy in any Assessment Year and with such frequency as the Association shall deem necessary, special assessments for the purpose of paying, in who or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement on the Common Property, provided that any such special assessments shall have been approved by a two-thirds (2/3) vote of the Members of the Association who are present in person or by proxy at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association and this Declaration. 4.06 Assessment Procedure. (a) The Board shall establish the annual assessment for each Assessment Year at an amount not in excess of the maximum annual assessment as determined by the provisions of this ARTICLE IV, and shall also establish the date during the Assessment Year on which the annual assessment shall be due and payable (such date is hereinafter referred to as the "Due Date"). The Board shall cause the Association to send to each Owner at least thirty (30) days in advance of the Due Date written notice setting forth the amount of the annual assessment and the Due Date. The annual assessment shall become due on the thirtieth (30th) day following such written notice of the Due Date, whichever is later. The Board may establish reasonable payment procedures to allow or require payment of the annual assessment in installments during the Assessment Year. The Board shall also establish payment procedures for payment of any special assessments for capital improvements which may be levied in accordance with the provisions of this ARTICLE IV. (b) All Members of the Association shall be given written notice by the Board not less than thirty (30) nor more than sixty (60) days in advance of any meeting of the Members of the Association at which the Board shall propose taxing action pursuant to Section 4.04C and Section 4.05 of this ARTICLE IV. Such written notice shall specify under which Section or Sections the Board will propose action. At such meeting, the presence of Members or of proxies entitled to cast sixty (60%) percent of the total votes outstanding shall constitute a quorum. If the required quorum is not present at such meeting, a second meeting may be called by the Board subject to the same notice requirement, and the required quorum at such second meeting shall be thirty (30%) percent of the total votes outstanding. No such second meeting shall be held more than sixty (60) days following the first meeting. 4.07 Uniform Rate of Assessment. Both annual and special assessments must be fixed at a uniform rate for all Lots. 4.08 Commencement Date for Annual Assessment. All Lots shall become subject to Annual Assessment as provided for in this Article on the date designated by Declarant. Such date is herein referred to as the "Commencement Date". 4.09 Effect of Nonpayment of Assessments. Any Assessment which not paid on or before the Due Date shall bear interest after the Due Date at the lower of the highest legal note of interest which can be charged or the rate of eighteen (18%) percent per annum or at such rate as the Board may from time to time establish, provided, however, that in no event shall the Board have the power to establish, provided, however, that in no event shall the Board have the power to establish a rate of interest in violation of the laws of the State of Georgia. In the event of default in the payment of any one or more installments of an assessment, the Board may declare any remaining balance of the assessments at once due and payable. In the event that an Owner shall fail to pay fully any portion of any assessment prior to the date on which payment is due, such unpaid portion (including any remaining balance declared immediately due and payable in accordance with the proceeding sentence), together with interest and costs of collection including reasonable attorneys' fees, shall be a binding personal obligation of such Owner, as well as a lien on such Owner's Lot enforceable in accordance with the provisions of this Declaration. 4.10 Certificate of Payment. Upon written demand by an Owner, the Association shall within a reasonable period of time issue and furnish to such Owner a written certificate stating that all assessments (including penalties, interest and costs) have not been paid, setting forth the amount then due and payable. The Association may make a reasonable charge for the insurance of such certificate. Any such certificate, when duly issued as herein provided, shall be conclusive and binding with regard to any matter therein stated as between the Association and any bona fide purchaser of, or lender on, the Lot in question. 4.11 Approval by Declarant. Notwithstanding anything to the contrary contained herein, no assessment shall be made without the Approval of Declarant for so long as Declarant has the right to appoint officers and directors of the Association. ARTICLE V. EASEMENTS, ZONING AND OTHER RESTRICTIONS 5.01 Easements. (a) Declarant hereby expressly reserves to the Declarant, its successors and assigns forever, the right to create perpetual easements in, on, over and under any part of the Property owned by Declarant for any purpose which Declarant deems necessary, including, by way of example, and not limitation, the following:   (i) the erection, installation, construction and maintenance of wires, lines, conduits and poles and the necessary or proper attachments in connection with the transmission of electricity, telephone, cable television cables and other utilities and similar facilities; (ii) the erection, installation, construction and maintenance of storm-water drains, land drains, public and private sewers, irrigation systems, pipelines for supplying gas, water and heat, and for any other public or quasi-public facility, service or function; (iii) slope control purposes, including the right to grade and plant slopes and prevent the doing of any activity which might interfere with slopes or which might create erosion or sliding problems or which might change, obstruct or retard drainage flow; and (iv) the planting or re-planting of hedges, shrubbery, bushes, trees, flowers and plants of any nature. (b) No Owner shall have any right to use any easement created by the Declarant in, on or over any portion of the Property unless such easement has been assigned by the Declarant to the Association. 5.02 Easement Area. The words "Easement Area" as used herein shall mean those areas on any Lot with respect to which easements are shown on a recorded deed or on any filed or recorded map or plat relating thereto. 5.03 Entry. The Declarant and its employees, agents, successors and assigns, shall have the right at all reasonable times to enter upon all parts of each Easement Area is reserved, without being deemed to have committed a trespass or wrongful act solely by reason or such entry and the carrying out of such purposes, provided the same are done in accordance with the provisions of this Section. The Declarant and its employees, agents, successors and assigns, shall be responsible for leaving each Lot in good condition and repair following any work or activity undertaken in an Easement Area pursuant to the provisions of Section 5.01. 5.04 Zoning and Private Restrictions. None of the covenants, restrictions or easements created or imposed by this Declaration shall be construed as permitting any action prohibited by applicable zoning laws, or by the laws, rules or regulations of any governmental body. In the event of any conflict between such laws, rules or regulations and the covenants, restrictions, and easements created or imposed by Declaration, the most restrictive provision shall govern and control. ARTICLE VI. ENFORCEMENT 6.01 Right of Enforcement. This Declaration and the restrictions contained herein shall inure to the benefit of and shall be enforceable by (i) the Declarant so long as it is an Owner, (ii) the Association and (iii) each Owner, his legal representatives, heirs, successors and assigns. 6.02 Right of Abatement. (a) In the event of a violation or breach of any Restriction contained n this Declaration the Association shall give written notice by certified mail to the Owner setting forth in reasonable detail the nature of such violation or breach and the specific action or actions needed to be taken to remedy such violation or breach. If the Owner shall fail to take reasonable steps to remedy such violation or breach within thirty (30) days after the mailing of said written notice, then the Association shall have the Right of Abatement. (b) The Right of Abatement, as used in this Section means the right of the Association, thought its agents and employees, to enter at all reasonable times upon any Lot or Structure, as to which a violation, breach or other condition to be remedied exists, and to take the actions specified in the notice to the Owner to abate, extinguish, remove or repair such violation, breach or other condition which may exist thereon contrary to the provisions hereof, without being deemed to have committed a trespass or wrongful act solely be reason of such entry and such actions, provided such entry and such actions are carried out in accordance with the provisions of this Section, and with the cost thereof including the costs of collection including reasonable attorneys' fees, together with interest thereon at the lowest of the highest rate permitted by Law or eighteen (18%) percent to be a binding personal obligation of such Owner enforceable in Law, as well as a lien on such Owner's Lot enforceable pursuant to the provisions of Section 6.04 hereof. Such lien shall be superior to any and all charges, liens or encumbrances which may in any manner arise or be imposed upon the Lot after such entry whether arising from or imposed by judgment or decree or by any agreement, contract, mortgage, deed to secure debt, or other instrument, except only (i) such liens for taxes or other public charges as are by applicable law made superior, (ii) the liens created by Section 4.01 hereof and (iii) all deeds to secure debt given to secure a loan the proceeds of which are used (1) to purchase a Lot or Lots (together with any and all Structures which may from time to time be place or located thereon) and (2) to finance the construction, repair or alteration of Structures. 6.03 Specific Performance. Nothing contained in this Declaration shall be deemed to affect or limit the rights of the Declarant, the Association or any Owner to enforce the Restrictions by appropriate judicial proceedings or to recover damages. However, it is hereby declared that it may be impossible to measure accurately in money the damages which will accrue to a beneficiary hereof, its transferees, successors or assigns, by reason of a violation of, or failure to perform any of the obligations provided by, this Declaration; and therefore, any beneficiary hereof shall be entitled to relief by way of injunction or specific performance, as well as any other relief available at law or in equity, to enforce the provisions hereof. 6.04 Collection of Assessments and Enforcement of Lien. (a) If any assessment, interest, cost or other charge is not paid as required by this Declaration, the Association may bring either an action at law against the Owner personally obligated to pay the same, or an action to foreclose any lien created by this Declaration against the Lot or Lots subject to the lien, or both, for the purpose of collecting such assessment, cost of charge, plus any interest thereon and costs of collection, including reasonable attorneys' fees. (b) As an additional remedy, but in no way as a limitation on the remedies, if any assessment, interest, cost or other is not paid as required by this Declaration, each Owner hereby grants to the Association and its assigns the following irrevocable power of attorney: To sell the said Lot or Lots subject to the lien at auction, at the usual place for conducting sales at the Courthouse in Gwinnett County, Georgia, to the highest bidder for cash, after advertising the time, terms and place of such sale once a week for four (4) weeks immediately preceding such sale (but without regard to the number of days) in the paper in which the Sheriff's advertisements for Gwinnett County are published, all other notice being hereby waived by each Owner, and the Association or any person on behalf of the Association, or assigns, may bid and purchase at such sale and thereupon execute and deliver to the purchaser or purchasers at such sale a conveyance of said property in fee simple, which conveyance shall contain recitals as to the happenings of the default upon which the execution of the power of sale herein granted depends, and each Owner hereby constitutes and appoints the Association and assigns, the agent and attorney in fact of each Owner to make such recitals and hereby covenants and agrees that the recitals so to be made by the Association, or assigns, shall be binding and conclusive upon the Owner whose property is the subject matter of such sale, and the heirs, executors, administrator and assigns, shall be effectual to bar all equity of redemption of such Owner, or the successors in interest of such Owner, in and to said Lot or Lost and the Association or assigns shall collect the proceeds of such sale, and after reserving therefrom the entire amount of assessment, interest, cost or other charge due, together with all costs and expenses of sale and fifteen per centum of the aggregate amount due for attorneys' fees, shall pay any excess to such Owner, or to the heirs or assigns of such Owner as provided by law. The power and agency hereby granted are coupled with an interest and are irrevocable by death or otherwise and are granted as cumulative to the remedies for collection of said indebtedness provided by law. (c) Waiver. Each Owner, by acceptance of a deed conveying a Lot subject to this Declaration, waives any right which Owner may have under the construction or the laws of the State of Georgia or the Constitution or the laws of the United States of America to notice or to a judicial hearing prior to the exercise of any right or remedy provided by this Declaration and Owner waives Owner's rights. In any, to set aside or invalidate any sale duly consummated in accordance with the provisions of this Declaration on the ground (if such be the case) that the sale was consummated without a prior judicial hearing. All waivers by Owner in this paragraph have been made voluntarily, intelligently and knowingly, after Owner has first been allowed the opportunity to consult legal counsel with respect to Owner's possible rights. 6.05 No Waiver. The failure of the Declarant, the Association, or the Owner of any Lot, his or its respective legal representatives, heirs, successors and assigns, to enforce any Restrictions herein contained shall in no event be considered a waiver of the right to do so thereafter, as to the same violation or breach or as to any violation or breach occurring prior to subsequent thereto. ARTICLE VII. DURATION AND AMENDMENT 7.01 Duration. This Declaration and the Restrictions CONTAINED HERIN SHALL RUN WITH AND BIND THE Property for a period of twenty (20) years from and after the date when this Declaration is filed for record with the Clerk of the Superior Court of Gwinnett County, Georgia, after which time this Declaration and the Restrictions shall be automatically renewed for successive periods of ten (10) years provided, however, that after the end of the said twenty (20) year period and during any ten (10) year renewal period (but only during such renewal period), this Declaration and the Restrictions contained herein may be terminated by an Instrument executed by the proper Association officers and recorded in the office of the Clerk of the Superior Court of Gwinnett County, Georgia, or in such other place of recording as may be appropriate at the time of the execution of such instrument, pursuant to a resolution approving such termination which is approved by a two-thirds (2/3) vote of those Class A Members of the Association who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association. 7.02 Amendments by Declarant. During any period in which Declarant retains the right to appoint and remove any directors and officers of the Association, Declarant may amend this Declaration by an instrument in writing filed and recorded in the Land Records of the Superior Court of Gwinnett County, Georgia, without the approval of any Owner or mortgagee; provided, however, that (i) in the event that such amendment materially alters or changes any Owner's right to the use and enjoyment of such Owner's Lot or of the Common Property as set forth in this Declaration or if such amendment adversely affects the title to any Lot, such amendment shall be valid only upon the written consent thereto by a majority in number of the then existing Owners affected thereby, or (ii) in the event that such amendment would materially and adversely affect the security title and interest of any mortgagee, such amendment shall be valid only upon the written consent thereto of all such mortgagees so affected. Any amendment made pursuant to this Section 7.02 shall be certified by Declarant as having been duly approved by Declarant, and such Owners and mortgagees if required, and shall be effective only upon recordation or at such later date as shall be specified in the amendment itself. Each Owner, by acceptance of a deed or other conveyance to a Lot, agrees to be bound by such amendments as are permitted by this Section 7.02 and further agrees that, if requested to do so by Declarant, such Owner will consent to the amendment of this Declaration or any other instruments relating to the Development (i) if such amendment is necessary to bring any provision hereof or thereof into compliance or conformity with the provisions of any applicable governmental statute, rule or regulation or any judicial determination which shall be in conflict therewith, (ii) if such amendment is necessary to enable any reputable title insurance company to issue title insurance coverage with respect to any Lots subject to this Declaration, (iii) if such amendment is required by an institutional or governmental lender or purchaser of mortgage loans, including, for example, the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation, to enable such lender or purchaser to make or purchase mortgage loans on any Lot subject to this Declaration, (iv) if any such amendment is necessary to enable any governmental agency or reputable private insurance company to insure mortgage loans on the Lots subject to this Declaration or (v) if such amendment is necessary to correct a subscriber's error in the drafting of this Declaration. 7.03 Amendments by Association. Amendments to this Declaration, other than those authorized by Section 7.02 hereof, shall be proposed and adopted in the following manner: (a) Notice of the subject matter of the proposed amendment shall be included in the notice of the meeting of the Association at which such proposed amendment is to be considered and shall be delivered to each member of the Association. (b) At such meeting, a resolution adopting a proposed amendment may be proposed by either the Board or by members of the Association. Such amendment must be approved by Owners holding at least two-thirds (2/3) of the total votes in the Association provided, however (i) that any amendment which materially and adversely affects the security title and interest of any mortgagee must be approved by such mortgagee and (ii) during any period in which Declarant has the right to appoint and remove officers and directors of the Association, such amendment must be approved by Declarant. (c) The agreement of the required percentage of the Owners and, where required, the Declarant and any mortgagee, to any amendment of this Declaration shall be evidenced by their execution of such amendment, or, in the alternative, and provided that Declarant does not then have the right to approve such amendment, the sworn statement of the President and any Vice President or the Secretary of the Association attached to or incorporated in the amendment executed by this Association, which sworn statement shall state unequivocally that the Agreement of the required parties was lawfully obtained. Any such amendment of this Declaration shall become effective only when recorded or at such later date as may be specified in the amendment itself. ARTICLE VIII. ANNEXATION Additional real property may be annexed to the Property by the Declarant without the consent of the Class A Members at any time for a period of ten (10) years following the date on which this Declaration is filed in the office of the Clerk of the Superior Court of Gwinnett County, Georgia. Such annexation shall be accomplished by filing in the office of the Clerk of the Superior Court of Gwinnett County, Georgia, an approval subdivision plat describing the real property to be annexed to the Property and by including on such subdivision plat a statement that expressly sets forth the Declarant's intention to make such annexed real property subject to the provisions of this Declaration. At the expiration of ten (10) years following the date of the filing of this Declaration, no real property many be annexed to the Property unless such annexation is approved by a two-thirds (2/3) vote of the Members of the Association who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association. ARTICLE IX. MISCELLANEOUS 9.01 No Reverter. No restriction herein is intended to be, or shall be construed as, a condition subsequent or as creating a possibility of reverter. 9.02 Severability. A determination by a court that any provision hereof is invalid for any reason shall not affect the validity of any other provision hereof. 9.03 Headings. The headings of the Articles and Section hereof are for convenience only and shall not affect the meaning or interpretation of the contents of this Declaration. 9.04 Gender. Throughout this Declaration, the masculine gender shall be deemed to include the feminine and neuter, and the singular, the plural and vice versa. 9.05 Notice. All amendments, notices, requests, objections, waivers, rejections, agreements, approvals, disclosures or consent or any kind made pursuant to the Declaration, whether made by the Declarant, the Association, the ACC, the Owner, or any other person, shall be in writing. All such writings shall be sufficient only if deposited in the United States Mail, with sufficient postage, and sent to the following addresses: (a) Declarant: Breedlove Investments, Inc. P. O. Box 472 Buford, Georgia 30518 (b) Owners Each Owner's address as registered with the Association in accordance with the By-Laws. Any written communication transmitted in accordance with this Section 9.05 shall be deemed received on the third (3rd) day following the day such written notice is deposited in the United States Mail. 9.06 No Liability. Declarant has, using best efforts and all due diligence, prepared and recorded this Declaration so that each and every Owner shall have the right and the power to enforce the terms and provisions of this Declaration against every other Owner. However, in the event that this Declaration is, for any reason whatsoever, unenforceable by an Owner (or any other person) in a court of law or otherwise, Declarant shall have no liability of any kind as a result of such unenforceability, and each and every Owner, by acceptance of a deed conveying a Lot, acknowledges that Declarant shall have not such liability. IN WITNESS WHEREOF, the Declarant has caused this Declaration to be duly executed and sealed the day and year first above written. Breedlove Investments, Inc. By: /s/ Keith R. Breedlove, President Attest: /s/ Barry J. Breedlove, Treasurer Signed, sealed and delivered in the presence of: By: /s/ Margaret Youngblood Unofficial Witness Attest: /s/ Tracey S. Wallace Notary Public Tracey is a Notary Public, Georgia, State at Large Her commission Expires on October 31, 1988   INDEXING NOTE: Please Index Grantor Index under: Breedlove Investments, Inc. Please also cross-reference to Declaration: Deed Book 4659 Page 77   AMENDMENT TO DECLARATION OF COVENANTS AND EASEMENTS For Royal Oaks Estates Subdivision     THIS AMENDMENT is made and entered into this 24th day of February, 1995, by Breedlove Investments, Inc., a Georgia corporation (hereinafter referred to as "Declarant") and Royal Oaks Estates Homeowners' Association, Inc., a Georgia non-profit corporation (hereinafter referred to as the "Association");   BACKGROUND STATEMENT   On November 11, 1987, Declarant executed that certain Declaration of Covenants and Easements for Royal Oak Estates Subdivision which was recorded on December 2, 1987 in Deed Book 4659, page 77 et seq., Gwinnett County, Georgia records (hereinafter as supplemented and/or amended from time to time the "Declaration"). Pursuant to ARTICLE VII Section 7.02 and Section 7.03 thereof, the Association and Declarant have the right to amend the provisions of the Declaration.   The Association and Declarant now desire to amend the provisions of the Declaration as follows: 1   By adding to the end of Paragraph 4.01(d) of ARTICLE IV the following language:   "…(3) to finance or refinance the improvements on structures located on each lot."   2   By deleting Paragraph 4.04 (a) of ARTICLE IV and inserting in lieu thereof the following:   " (a) Beginning on the Commencement Date (as hereinafter defined) and continuing thereafter until January 1 of the year immediately following the Commencement Date each Lot shall be subject to a maximum annual assessment of THREE HUNDRED & NO/100 ($300.00) dollars per LOT; provided however, that prior to the closing of the sale of any Lot and the completed structures thereon to an Owner other than Declarant or the builder of the structures on the Lot, the annual assessment for said Lot shall be equal to twenty-five (25%) percent of the annual assessment. In the event that the Commencement Date falls on a day other than January 1, the annual assessment for such year shall be prorated so that each Owner pays an annual assessment proportional to the number of days remaining in the calendar year. The words "Assessment Year" as used herein shall mean the calendar year with the first Assessment Year commencing on January 1 of the year immediately following the Commencement Date.   3   By deleting Paragraph 4.04(b) of ARTICLE IV and inserting in lieu thereof the following:   " (b) Commencing with the first Assessment Year and continuing thereafter, the maximum annual assessment may be increases at any time and from time to time during each Assessment Year not more that five (5%) percent above the maximum annual assessment for the previous Assessment Year without a vote of the Membership. During the first Assessment Year, the maximum annual assessment may be increases ten (10) percent above $300.00.   4   By deleting Paragraph 4.04 (c) of ARTICLE IV and inserting in lieu thereof the following:   " (c) Commencing with the second Assessment Year and continuing thereafter, the maximum annual assessment for each Assessment Year may at any time and from time to time be increased more than five (5%) percent above the maximum annual assessment for the previous Assessment Year if such increase is approved by a two-thirds (2/3) vote of the Members of the Association who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the Declaration. During the First Assessment Year, the maximum annual assessment may be increased more than ten (10%) above $300.00, if such increase is approved by two thirds (2/3) vote of each of the Members of the Association who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association and this Declaration.   5   By adding the attached Exhibit "A" Royal Oaks Estates Subdivision Protective Covenants (items 1 through 28 as a part of the Declaration.   6   Pursuant to ARTICLE VII, Section 7.03of the Declaration, the required notice to each member of the Association and minimum required approval of this Amendment is certified to by that certain Certification of Vote attached hereto as Exhibit "B" and made part hereof by this reference.     EXHIBIT "A"   ROYAL OAKS ESTATES SUBDIVISION   PROTECTIVE COVENANTS PHASE I, II, III, & IV     Lots shown on this plat are subject to the following restrictions, which are covenants running with the land and may be enforced by the owner of any lot in the subdivision and shall remain in effect, per the language as written in the Covenants, ARTICLE VII. 1. Lots shall be used for single family residence purposes only. 2. No lot shall be subdivided, nor shall more than one house be erected on any one lot. 3. No house shall be nearer a fronting street than the building line shown on plat, nor nearer to any side street than the building line shown on plat, nor nearer that 10 ft. to any side lot line. The sum of two side yards, on any on lot, shall not be less than 25 feet. 4. No building shall be erected on any lot to be used as a school, church, or kindergarten. 5. No temporary house, shack, tent, or trailer shall be erected or occupied on any lot as a residence, school, church, or kindergarten. 6. No residence shall be erected on any lot to have less than 2300 sq. ft. of living area. Living area is defined as main structure, exclusive of open porches, garages, carports and breezeways, and shall not include a basement whether finished or not. 7. Residential construction plans must be submitted and approved by the Royal Oaks Estates Homeowners Association Architectural Control Committee. 8. Home builder shall be responsible for implementation of and conformance with county soil erosion control ordinances. 9. Home builder shall be required to maintain cleanliness of building site, removing all debris and construction material after completion of construction. He shall be required to remove transported soils from street, gutters, catch basins and abutting developed lots as needed during and after construction. He shall seed all disturbed earth with a permanent vegetative cover, with the exception of the front yard which shall be sodded or landscaped. 10. No residence to be erected on any lot without a minimum of an enclosed double garage. 11. The front of all residences to be brick veneer, stone, stucco or some combination with Masonite siding. (Existing structures exempt from the previous sentence.) In addition, all sides and rear of homes to conform to front specifications, with an allowance for Masonite or similar material to be accepted for the sides and rear. The color of said homes shall conform to the rest of the neighborhood and be subjected to approval by the ROEHA Architectural Control Committee. 12. All residences to be erected with no exposed concrete blocks. 13. No house, modular home, or mobile home shall be moved onto any Lot. 14. No out buildings shall be constructed on any Lot without brick, veneer, stone, stucco, or similar type of siding equivalent to a Masonite siding matching the residence and with no exposed concrete blocks. 15. No junk vehicles or commercial or industrial vehicles, including, but not limited to, moving vans, trucks, tractors, trailers, wreckers, hearses, compressors, concrete mixers, buses, or the like, shall be parked overnight in front of or beside any Lot. In addition, the parking and storage of boating equipment, travel trailers, motor homes, and recreational vehicles shall be in the rear of the house, or in an enclosed garage. An exception is allowed for visitors up to ten (10) consecutive days. In addition, any further exceptions to this paragraph must be approved in advance in writing by the ROEHA Board. 16. No animals to include, but not limited to, swine, poultry, horses, cows, goats, or other livestock shall be raised, bred or kept on any Lots, except that dogs, cats or other household pets may be kept provided they are not kept, bred or maintained for commercial purposes. 17. All structures erected shall be completed within one year from the date that structural work begins. 18. A mandatory home owner's association shall be established and maintained for ownership of the recreation area and common ground. 19. All mailboxes, including the base and/or posts to be of similar construction to the residence. 20. No noxious, offensive or illegal activities shall be carried on upon any Lot, nor shall anything be done thereon which is or may become an annoyance or nuisance. 21. No advertising signs or billboards shall be erected on any Lot or displayed to the public on any Lot except a professional sign of not more than 5 square feet in area may be used to advertise the property of sale or rent. This restriction shall not apply to signs used to identify and advertise the subdivision as a whole, nor to signs for selling Lots and/or houses during the development and construction period, provided such signs are approved by the ROEHA Architectural Control Committee. Also, this restriction shall not apply to the permanent subdivision signs erected on the entrance Lots. In addition, an allowance shall be made for announcing the activities of the ROEHA and related activities. Any exceptions to this paragraph shall be approved in writing by the ROEHA Architectural Control Committee. 22. No radio or television transmission or reception device or antennae shall be erected on the property other than customary antennae which do not exceed ten (10) feet in height above the roof ridge line of any house. Any exceptions must be reviewed and approved in writing in advance by the ROEHA Architectural Control Committee. 23. No Lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage or other waste shall not be kept except in sanitary containers. All equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition and shall be screened to conceal them from view of neighboring Lots and streets. If such litter or other materials is found on any Lot, the same shall be removed by the Lot owner of such Lot, or at the Lot owner's expense, upon written request by the ROEHA Architectural Control Committee. 24. No laundry or wash shall be aired or dried on any portion of said lots in public view. 25. The ROEHA Architectural Control Committee shall be composed of the President, Vice President, Secretary, and Treasurer. A majority of the committee may designate a representative to act for it. In the event of death, resignation, or removal of any member of the committee, the remaining members all have full authority to designate a successor. Neither the members of the committee nor its designated representative shall be entitled to any compensation for services performed pursuant to these covenants. 26. Invalidation of any one of these covenants by judgment or court order shall in no way affect any of the other provisions, which shall remain in full force and effect. 27. These covenants are in force the day they are filed and are for all phases of Royal Oaks Estates Development. Any subsequent additions or new phases shall be subject to these covenants. 28. No overnight on street parking. EXHIBIT "B" CERTIFICATION OF VOTE   This Certification of Vote is given this 24th day of February, 1995 pursuant to O.C.G.A. Section 44-3-_____ and ARTICLE VII Section 7.03 of that certain Declaration of Covenants and Easements for Royal Oaks Estates Subdivision (the "Declaration") recorded on December 2, 1987 in Deed Book 4659, page 77, Gwinnett County, Georgia Records, to unequivocally state and certify that the required notice to each member of the Royal Oaks Estates Homeowners' Association, Inc. (as hereinafter referred to as the "Association"), was properly given and received by each member of the Association and that the required minimum approval of two-thirds (2/3) of the members of the Association was given on the 20th day of February, 1994 to the foregoing Amendment to the Declaration.   IN WITNESS WHEREOF, the Association has caused this Certification of Vote to be executed under seal the day and year first above written.   Signed, sealed and delivered in the presence of:   ROYAL OAKS ESTATES HOMEOWNERS' ASSOCIATION, INC. Not legible on Master Document Unofficial Witness   BY: /s/ Jim Whitehurst Jim Whitehurst, President Not legible on Master Document Notary Public     Signed, sealed and delivered in the presence of:     Not legible on Master Document Unofficial Witness   ATTEST: /s/ Bud Eberhardt Bud Eberhardt, Secretary Not legible on Master Document Notary Public     Signed, sealed and delivered in the presence of:   BREEDLOVE INVESTMENTS, INC. /s/ Christine M. Herrera Unofficial Witness   BY: /s/ Keith Breedlove Keith Breedlove, President Not legible on Master Document Notary Public, Gwinnett County, Georgia   (CORPORATE SEAL)