Preview
Filed
11/13/2020 1:22 PM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Justyce Tumer
CAUSE NO. 18-DCV-256011
GREAT OAKS SOUTH IN THE DISTRICT COURT FOR
HOMEOWNERS ASSOCIATION, INC.,
Plaintiff,
ve FORT BEND COUNTY, TEXAS
TRACY CARTER AND CHARLES
FLETCHER, JR.,
Defendants. 240th JUDICIAL DISTRICT COURT
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW the Plaintiff, Great Oaks South Homeowners Association, Inc., and files
this Motion for Summary Judgment against the Defendants, Tracy Carter and Charles Fletcher,
Jr., and in support thereof would show unto this Court as follows:
I SUMMARY JUDGMENT EVIDENCE
1 Plaintiff relies on the following summary judgment evidence:
EXHIBIT ONE: Declaration of Covenants, Conditions and Restrictions for
Great Oaks South;
EXHIBIT TWO: Supplemental Declaration Providing for Annexation;
EXHIBIT THREE: Account Statement;
EXHIBIT FOUR: Affidavit of Managing Agent;
EXHIBIT FIVE: Letter of February 23, 2017;
EXHIBIT SIX: Letter of June 7, 2017;
EXHIBIT SEVEN Letter of December 11, 2017;
EXHIBIT EIGHT Affidavit on Attorney’s Fees and Costs.
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FACTS & CASE PROCEDURE
Plaintiff Great Oaks South Homeowners Association, Inc., (hereinafter the “Plaintiff” or
the “Association”) is the governing entity for Great Oaks South, a subdivision in Fort Bend
Defendants Tracy Carter and Charles Fletcher Jr., (hereinafter the “Defendants”) own the
property located at 7243 Chickory Woods Lane, Houston, Texas 77083 (hereinafter the
“Property”) and more pa
FOUR (4), IN BLOCK ONE (1), OF GREAT OAKS SOUTH SEC. 2, AN ADDITION IN FORT
BEND COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN
SLIDE NO. 2315/A TO 2315/B, OF THE PLAT RECORDS OF FORT BEND COUNTY, TEXAS.
The Property is within the Subdivision and therefore subject to the Association’s authority.
The Subdivision, and the Association, are governed by the Declaration of Covenants, Conditions
and Restrictions for Great Oaks South filed for record in the Real Property Records of Fort Bend
County, Texas, under Clerk’s File No. 2002013458 (hereinafter the “Declaration’”).
ONE: Declaration. The Supplemental Declaration Providing for Annexation, Great Oaks South
Section 2, filed for record in the Real Property Records of Fort Bend County, Texas, under Clerk’s
Article IV, Section 4.1 of the Declaration subjects each lot in the Subdivision to annual,
special, and specific assessments. Ex. 1 . Further, Article IV, Section 4.13(a) goes on to provide
that “the Association shall hereby have a continuing lien against each Lot to secure payment of
delinquent assessments (annual assessments, special assessments and specific assessments), as
well as interest at the Designated Interest Rate, late charges, and costs of collection, including,
without limitation, court costs and attorneys’ fees.” Ex. 1 . Article IV, Section 4.13(b) states
that “the lien may be enforce losure.”
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The Plaintiff sued the Defendants on October 15, 2018. The Plaintiff sued the Defendants
are delinquent in their maintenance
assessments and in the resulting fees, charges, and costs. The Plaintiff further seeks to foreclose
Because there are no genuine issues of material fact at issue in this lawsuit, this Court
should grant the Association summary judgment against the Defen
SUMMARY JUDGMENT STANDARD
In determining whether to grant summary judgment, it is a “trial court’s duty is to determine
[whether] there are any material fact issues to try.” Richardson v. Parker, 903 S.W.2d 801, 803
A plaintiff seeking summary judgment must show there are no genuine issues of material
fact in dispute and that judgment should be granted as a matter of law. KPMG Peat Marwick v.
., 988 S.W.2d 746, 748 (Texas 1999). To do this, a plaintiffmu
show it is entitled to prevail on the elements of its causes of action. See, e.g., Fry v. Comm'n for
Lawyer Discipline, 979 S.W.2d 331, 334 (Te h Dist.] 1998, pet
plaintiff meets its burden if it produces evidence that would be sufficient to support an instructed
verdict at trial. Braden v. New Ulm State Bank, 618 S.W.2d 780, 782 (Tex. Civ. App.—Houston
[1st Dist.] 1981, writ ref’d n.r.e.).
Plaintiffs who conclusively establish the absence of disputed issues are under no obligation
to negate affirmative defenses. Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d
eed, in conclusively establishing
the elements of its claim for the purposes of seeking a summary judgment, a plaintiffis not required
to negate, or even address, a defendant’s affirmative defenses. ExxonMobil Corp. v. Rincones, 520
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S.W.3d 572, 593 (Tex. 2017). A defendant who merely pleads affirmative defenses, without
offering proof to support those affirmative defenses, will not defeat an otherwise valid motion for
summary judgment. Hammer v. Powers, 819 S.W.2d 669, 673 (Tex. App.—Fort Worth 1991, no
writ).
IV. ARGUMENTS AND AUTHORITIES
11. The Association is entitled to summary judgment because there are no genuine issues of
material fact or law at issue in the instant case.
12. It is settled law in the State of Texas that homeowners are bound by the governing
documents of their subdivisions, including the enforcement provisions therein, and that all
homeowners who purchase property have constructive notice of those governing documents. See,
e.g., Inwood North Homeowners’ Association, Inc. v. Harris, 736 S.W.2d 632, 635-36 (Tex.1987);
and Sloan v. Owners Ass’n of Westfield, Inc., 167 S.W.3d 401 (Tex.App.—San Antonio 2005, no
pet.). The Supreme Court has held that under the laws of the State of Texas, trial courts are bound
to enforce the agreements into which homeowners enter concerning assessments. Inwood North
at 637 (reaffirmed in Brooks v. Northglen Ass’n., 141 S.W.3d 158, 170 (Texas 2004). Further,
Section 202.004(a) of the Texas Property Code provides that a property owners’ association may
exercise discretionary authority as to its restrictive covenants, and that such an exercise is
presumed reasonable.
13. In the instant case, there is no dispute as to whether the Defendants own the Property, nor
is there any dispute as to the fact that the Property is subject to the Association’s governing
documents.
14. Additionally, there is no genuine issue of material fact in dispute as to the Defendants’
delinquency. As of this date, the Defendants are delinquent in the amount of eleven thousand, four
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hundred and ninety dollars, and fifteen cents ($11,490.15), an amount consisting of $5,441.16 in
actual damages, $4,468.00 in reasonable and necessary attorneys’ fees, and $1,580.99 in
reasonable and necessary costs. EXHIBIT THREE: Account Statement; see also EXHIBIT
FOUR: Affidavit of Managing Agent. (This amount does not include any fees and costs the
Association incurs in litigating this Motion for Summary Judgment.)
15. As noted above, the Association maintains a secured lien against the Property in the full
amount of the Defendants’ delinquency, and the Plaintiff is entitled to foreclose that lien. As also
noted above, the Association’s lien against the Property secures any and all delinquent
assessments, interest on those delinquent assessments, costs of collection, and attorney’s fees and
costs.
Vv. THE ASSOCIATION IS ENTITLED TO
ITS ATTORNEY’S FEES & COSTS
16. The Plaintiff is entitled to its reasonable and necessary attorney’s fees and costs pursuant
to the Declaration, the Texas Property Code, and the Texas Rules of Civil Procedure.
17. As noted above, Article IV, Section 4.13(a) of the Declaration grants the Association a
continuing lien against the Property “costs of collection, including, without limitation, court costs
and attorneys’ fees.” Ex. 1 at 7.
18. Further, the Association is also entitled to its reasonable attorneys’ fees pursuant to Section
38.001 of the Texas Civil Practice and Remedies Code.
19. Finally, the Association is entitled to its reasonable attorney’s fees and costs under
209.008(a) of the Texas Property Code.
20. All requisite notices and preconditions for the recovery of attorneys’ fees were satisfied.
See, e.g., EXHIBIT FIVE: Letter of February 23, 2017; see also EXHIBIT SIX: Letter of
June 7, 2017; see also EXHIBIT SEVEN: Letter of December 11, 2017.
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21. As a result of the Defendants’ delinquency, the Association has incurred significant
attorneys’ fees and costs. Ex. 4; see also EXHIBIT EIGHT: Affidavit on Fees and Costs.
22. The Association is entitled to recover the full amount of its attorney’s fees and costs, as
reflected herein. Additionally, the Association is entitled to recover the full amount of the
attorney’s fees and costs it incurs in litigation this Motion for Summary Judgment.
VI. CONCLUSION AND PRAYER
23. Because there are no genuine issues of material fact or law in dispute in this matter, the
Association is entitled to summary judgment.
24. Plaintiff Great Oaks South Homeowners Association, Inc., respectfully prays this Court
grant this Motion for Summary Judgment against the Defendants for the Plaintiff Association’s
damages, for its costs of court, and attorney’s fees, its expenses, for interest as allowed by law, for
foreclosure of its lien against the subject Property as set forth hereinabove, and for all such other
and further relief, at law or in equity, to which it may show itself entitled.
Respectfully submitted,
jim
HOLT & YOUNG, P.C.
=F
J.C. Jamison
State Bar No. 24092127
9821 Katy Freeway, Suite 350
Houston, Texas 77024
Fax No. (713) 510-1001
JJamison@HoltY oung.com
ATTORNEYS FOR PLAINTIFF
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was mailed to the
Defendants, by certified mail and first class mail, this 13" day of November, 2020.
/s/ J.C. Jamison
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nO _
oe FBC 2002 68 35 pas
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
GREAT OAKS SOUTH
This Declaration of Covenants, Conditions and Restrictions for Great Oaks South, is made on the
date hereinafter set forth by the Declarant, Centex Homes, a Nevada general partnership.
Declarant is the owner of the Property (as herein defined). Declarant desires to impose upon the
Property mutually beneficial restrictions under a general plan of improvement for the benefit of the owners
of cach portion of the Property. The Declaration is intended to provide a flexible and reasonable procedure
for the overall development, administration, maintenance, and preservation of the Property. In furtherance
of such plan, Declarant has caused or intends to cause the Great Oaks South Homeowners Association, Inc.
to be formed as a Texas nonprofit corporation to own, operate, and maintain the Common Maintenance Area
(as defined herein) and to administer and enforce the provisions of this Declaration.
Declarant hereby declares that all of the Property shall be held, sold, used and conveyed subject to
the easements, restrictions, covenants, and conditions contained in this Declaration, which shall run with the
title to the Property. This Declaration shall be binding upon all parties having any right, title or interest in
any portion of the Property, their heirs, successors, successors-in-title and assigns, and shall inure to the
benefit of each owner of any portion of the Property.
ARTICLE I
DEFINITIONS
1 "Annexable Property" means the real property described on Exhibit "B" attached hereto.
1.22 "ACA" or "Architectural Control Authority" shall have the meaning provided such terms
in Section 6.2 herein.
13 " ACA Standards" means standards adopted by the ACA regarding architectural and related
matters, including, without limitation, architectural design, placement of improvements, landscaping, color
schemes, exterior finishes and materials and similar features which may be either recommended or required
by the ACA for use within the Property.
14 " Associ: ion" means Great Oaks South Homeowners Association, Inc., a Texas nonprofit
corporation established for the purposes set forth herein.
1.5 “Board of Directors" means the board of directors of the Association.
1.6 "Builder" means any person or entity who purchases one or more Lots for the purpose of
constructing improvements for later sale to consumers in the ordinary course of such person's or entity's
business.
17 "City" means the City of Houston.
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EXHIBIT ONE
1.8 "Class B Control Period" means the period commencing upon the date of this Declaration
and expiring upon the earliest of: (i) 10 years after conveyance of the first Lot, (ii) a date that Declarant in
writing elects to terminate the Class B Control Period, or (iii) when 75% of the residential building sites
("lots") proposed within the Development have been improved with a Dwelling thereon and conveyed to
persons or entit‘es other than a Builder. For purposes of determining the number of building sites within the
Development, the final subdivision plats, when Recorded against the entire Development showing each
residential building site, shall be the determining documentation.
1.9 "Class Vote" means a vote that is counted or tallied for each separate class of voting and
requires the specific percentage from each class.
1.10 “Common Area" and "Common Areas" means all areas (including the improvements
thereon) within the Property owned or to be owned by the Association for the common use and enjoyment
of the Members. The Common Area to be owned by the Association at the time of the conveyance of the first
Lot (other than to an entity that may assume a Declarant status as provided herein) is described or depicted
and designated on Exhil “ attached hereto.
Vl " Common Expenses" means the actual and estimated expenses incurred, or anticipated to
be incurred by the Association for the benefit of the Member(s) and/or the Common Maintenance Areas, but
excluding any expenses incurred during the Class B Control Period for the initial or original construction of
improvements.
1.12 "Common Maintenance Areas" means the Common Areas, if any, and any areas within
public rights-of-way, easements (public and private), portions of a Lot, public parks, private streets, or
landscaping, entry feature, fence or similar areas that the Board of Directors deems necessary or appropriate
to maintain for the common benefit of the Members.
1.13 "County"means the County of Fort Bend.
1.14 "Declarant" means Centex Homes, a Nevada general partnership and its successors and
assigns who are designated as such in writing by Declarant, and who consent in writing to assume the duties
and obligations of the Declarant with respect to the Lots acquired by such successor or assign. There may
be more than one Declarant, if Declarant makes a partial assignment of the Declarant status.
1.15 "Declaration" means this Declaration of Covenants, Conditions and Restrictions for Great
Oaks South, and any amendments and supplements thereto made in accordance with its terms.
1.16 "Designated Interest Rate" means the interest rate designated by the Board of Directors
from time to time, subject to any interest limitations under Texas law. If the Board of Directors fails to
designate an interest rate, then the interest rate shall be the lessor of 12% per annum or the highest rate
permitted by Texas law. The Designated Interest Rate is also subject to the limitations in Section 11.7
herein.
1.17 "Development" means the Property and the Annexable Property.
1.18 "Dwelling" means any residential dwelling situated upon any Lot.
s lepsldvisionsboustoncentyrestonkasou(020602) wp
1.19 "Lot" means any separate residential building parcel shown ona Recorded subdivision plat
of the Property or any part thereof, but only if such parcel has in place the infrastructure (including utilities
and streets) necessary to allow construction of a single-family home thereon. Common Areas and areas
deeded to a governmental authority or utility, together with all improvements thereon, shall not be included
as part of a Lot.
1.20 "Member" means any person, corporation, partnership, joint venture or other legal entity
that is a member of the Association pursuant to the terms in Article III herein.
1.21 "Owner" means the record owner, whether one or more persons or entities, of fee simple
title to any Lot, but excluding in all cases any party holding an interest merely as security for the performance
of an obligation. Ifa Lot is sold under a Recorded contract for sale, then the purchaser (rather than the fee
Owner) will be considered the Owner.
1,22 “Property” means the real property described on Exhibit "A" attached hereto (other than
areas dedicated to the City or County) and such additional property as is brought within the jurisdiction of
the Association and made subject to this Declaration.
1.23 "Record", "Recording" or "Recorded" means the filing of a legal instrument in the Public
Records of Fort Bend County, Texas, or such other place as may be designated as the official location for
filing deeds, plats, and similar documents affecting title to real property.
1.24 "Supplemental Declaration" means a Recorded instrument which subjects additional
property to this Declaration and/or imposes additional restrictions and obligations on the land described in
the instrument.
1.25 “Vacant Lot" means a Lot that does not have thereon a Dwelling that has been occupied
at any time (past or current) for residential purposes.
ARTICLE I
PROPERTY RIGHTS
2.1 Owners' Easements of Use and Enjoyment. Every Owner will have a right and non-
exclusive easement of use, access and enjoyment in and to the Common Areas, and such easement will be
appurtenant to and will pass with the title to every Lot, subject to any limitations set forth herein, including,
without limitation, the following:
a. Rules. The right of the Association tc establish and publish rules and regulations
governing the use of the Common Areas and/or the Lots.
b. Suspension Voting Rights. The right of the Association to suspend the right of use
of the Common Areas and the voting rights of an Owner for any period during which any assessment
against such Owner’s Lot remains unpaid.
c. Conveyance of Common Area. The right of the Association, subject to the
provisions hereof, to dedicate, sell or transfer all or any part of the Common Areas. However, no
such dedication, sale or transfer will be effective unless there is a 67% or greater vote, excluding
Declarant, approving such action.
_gNegaldivisionsthouston\ccrs\greatoakssouth(020602).wpd
d Mortgage Common Area. The right of the Association, subject to the provisions
hereof, to mortgage or lien all or any part of the Common Areas. However, the Common Areas
cannot be mortgaged or liened without a 67% or greater vote, excluding Declarant, approving such
action.
2.2 Prohibitions on Easement of Use and Enjoyment. Each Owner's right and easement of
use and enjoyment in and to the Common Area is limited as follows:
a. No Transfer without Lot. An Owner’s right and easement of use and enjoyment
inand to the Common Area shall not be conveyed, transferred, alienated or encumbered separate and
apart from an Owner’s Lot and such right and easement of use and enjoyment in and to the Common
Area shall be deemed to be conveyed, transferred, alienated or encumbered upon the sale of any
Owner’s Lot, notwithstanding that the description in the instrument of conveyance, transfer,
alienation or encumbrance may not refer to the Common Area.
b. No Parti n. Except as provided in Section 2.1.c herein, the Common Area shall
remain undivided and no action for partition or division of any part thereof shall be permitted.
2.3 Right to Delegate Use and Enjoyment of Common Area. Any Owner may extend his or
her right of use and enjoyment to the members of his or her family, lessees and guests as applicable, subject
to the terms in this Declaration, the Bylaws and any reasonable rules of the Board of Directors. An Owner
who leases his or her Dwelling is deemed to have assigned all such rights to the lessee of such Dwelling.
ARTICLE Ill
MEMBERSHIP AND VOTING
3.1 Membership - Owners. Every Owner by virtue of ownership of a Lot will be a member
of the Association. Membership will be appurtenant to and will not be separated from ownership of any Lot.
3.2 Voting Rights. The Association shall have the following two classes of voting membership:
a. Class A. Class A Members shall be all Owners, with the exception of the Declarant.
Class A Members shall be entitled to one vote for each Lot owned. However, when more than one
person holds an interest in any Lot, all such persons shall be members, but only one vote in total may
be cast per Lot as the Owners determine among themselves and advise the Secretary of the
Association in writing prior to the vote being taken. The Association shall have no affirmative
obligation to take any action to determine which Owner is the person designated to cast the Lot’s
vote. If the Owners’ fail to advise the Association of the person designated to cast the Lot’s vote,
then the Lot’s vote shall be suspended if more than one person or entity seeks to exercise it.
b. Class B. The sole Class B Member shall be Declarant. The Class B Member is
entitled to three (3) votes for each Lot owned by the Class B Member. The Class B membership
shall cease and be converted to Class A membership upon expiration of the Class B Control Period.
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ARTICLE IV
ASSESSMENTS
41 Obligation to Pay Assessments. Subject to the terms of this Article IV, the Declarant, for
each Lot it owns, hereby covenants, and each Owner of any Lot by acceptance of a deed therefor, whether
or not it will be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (i)
annual assessments or charges, (ii) special assessments as provided in Section 4.5 herein, and (iii) specific
assessments as provided in Section 4.9 herein.
4.2 Personal Obligation to Pay Assessments. Each such assessment, together with interest
at the Designated Interest Rate, late charges, costs and reasonable attorneys' fees, shall be the personal
obligation of the person who was the Owner of such Lot at the time when the assessment arose. Upon a
transfer of title to a Lot, the grantee shall be jointly and severally liable for any assessments and other
charges due at the time of conveyance. However, no mortgagee under a Recorded first mortgage or
beneficiary of a Recorded first deed of trust (meaning any Recorded mortgage or deed of trust with first
priority over other mortgages or deeds of trust), shall be liable for unpaid assessments which accrued prior
to such acquisition of title. In addition, no mortgagee shall be required to collect assessments.
43 Purpose of Annual and Special Assessments. Annual assessments and special assessments
levied by the Association shall be used for Common Expenses. The Association may establish and maintain
a reserve fund for the periodic maintenance, repair and replacement of improvements to the Common
Maintenance Areas.
44 Maximum and Actual Annual Assessment. Until January Ist of the year immediately
following the conveyance of the first Lot to an Owner, the maximum annual assessment shall be $250.00 per
Lot. The Board of Directors may fix the actual annual assessment at an amount not in excess of the maximum
annual assessment. From and after January Ist of the year immediately following the conveyance of the first
J.ot to an Owner, the maximum annual assessment may be increased as follows:
a Maximum Increase Wi out Vote. The maximum annual assessment may be
increased by the Board of Directors without a vote of the membership each year by 10% above the
maximum annual assessment for the previous year. The Board of Directors may increase the
maximum annual assessment with or without increasing the actual annual assessment.
b. Maximum Increase With Vote. The maximum annual assessment may be
increased more than 10% above the prior year's maximum annual assessment amount by a 67% or
greater Class Vote approving such action.
45 Special Assessments. In addition to the annual assessments authorized above, the
Association may levy, in any assessment year, a special assessment to cover expenses which the Board of
Directors determines, in its sole discretion, to more appropriately be handled outside of the regular operating
budget, provided, that any such special assessment must have a 67% or greater Class Vote approving such
action.
46 Uniform Rate of Assessment - Reduced for Vacant Lots. Both annual assessments and
special assessments shall be fixed at a uniform rate for all Lots, except that Vacant Lots shall be assessed
at 25% of the regular full assessment rate.
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47 Declarant's Payment of Full Assessments for Vacant Lots or Shortfall Amount. During
the period that Declarant owns any Vacant Lot, if the Association’s revenues are insufficient to pay the
expenses of the Association, then Declarant shall pay to the Association the lesser of: (i) the difference
between the revenues and the expenses, or (ii) the difference between the total amount of assessments paid
by Declarant for Vacant Lots (assessed at the reduced assessment rate) and the total amount that Declarant
would have paid for such Vacant Lots if such Vacant Lots were assessed as Lots at the full (100%) rate.
Declarant shall pay such amount within 30 days of receipt of request for payment thereof from the
Association, provided that if the budget deficit is the result of the failure or refusal of an Owner or Owners
to pay their annual assessment or special assessments, the Association will diligently pursue (the Declarant
may also pursue at its option) all available remedies against such defaulting Owners and will promptly
reimburse the Declarant the amounts, if any, so collected.
48 Date of Commencement of Annual Assessments; Due Dates. The annual assessments
provided for herein shall commence as to all Lots on the date of conveyance of the first Lot to an Owner
(other than to a Builder or an entity that assumes the Declarant status as provided herein), unless the Board
of Directors elects to commence the annual assessment earlier. The first annual assessment shall be adjusted
according to the number of months remaining in the calendar year. The Board of Directors shall fix the
amount of the annual assessment against each Lot at least 30 days in advance of each assessment period.
Written notice of the annual assessment shall be sent to an Owner of every Lot subject thereto. The due dates
shall be established by the Board of Directors. The Board of Directors shall also establish whether the
annual assessment shall be paid annually, quarterly or monthly.
4.9 Specific Assessments. The Association shall have the power to levy specific assessments
against a particular Lot to (i) cover costs incurred in bringing a Lot into compliance with this Declaration,
(ii) cover costs incurred as a consequence of the conduct (or the failure to act) of the Owner or occupant of
a Lot, their agents, contractors, employees, licensees, invitees, or guests, and/or (iii) collect any sums due
by the Owner to the Association (other than annual assessments or special assessments or interest or late
charges related thereto), including, without limitation, fines and transfer fees.
4.10 Capitalization of Association. Upon acquisition of record title to a Lot by the first Owner
thereof (other than Declarant or a Builder), a contribution shall be made by or on behalf of the purchaser to
the working capital of the Association in an amount equal to two months of the full annual assessment per
Lot for that year. This amount shall be in addition to, not in lieu of, the annual assessment and shall not be
considered an advance payment of such assessment. This amount shall be deposited into the purchase and
sales escrow and disbursed therefrom to the Association for use in covering operating expenses and other
expenses incurred by the Association pursuant to this Declaration and the Bylaws.
4.11 Certificate of Assessment Status. The Association will, upon written demand and for a
reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether or not
the assessment has been paid for the assessment period.
4.12 Failure to Pay Assessments; Remedies of the Association. With respect to any
assessment or other sum due herein not paid within 10 days after the due date, the Association shall have the
right to: (i) charge a late charge, in an amount determined by the Board of Directors; (ii) charge interest on
the amount due at the Designated Interest Rate from the due date until the date the sum is paid; and/or (iii)
charge costs and fees related to the collection of the sum due. In addition, the Association may bring an
action at law against the Owner personally obligated to pay the same. No Owner may waive or otherwise
escape liability for the assessments provided for herein by non-use of the Common Maintenance Area or
glegalldivisions\houston\ccrs\greatoakssouth(020602).wpd 6
abandonment of his or her Lot. The failure to pay assessments shall not by the terms of this Declaration
constitute a default under an insured mortgage, unless otherwise provided by the terms of such mortgage.
4.13 Lien.
Lien.
a. Creation of Lien. The Association shall hereby have a continuing lien against each
Lot to secure payment of delinquent assessments (annual assessments, special assessments and
specific assessments), as well as interest at the Designated Interest Rate, late charges, and costs of
collection, including, without limitation, court costs and attorneys’ fees. Although no further action
is required to create or perfect the lien, the Association may, as further evidence and notice of the
lien, execute and Record a document setting forth as to any Lot, the amount of delinquent sums due
the Association at the time such document is executed and the fact that a lien exists to secure the
payment thereof. However, the failure of the Association to execute and record any such document
shall not, to any extent, affect the validity, enforceability, perfection or priority of the lien.
b. Enforcement of Lien - Judicial or Nonjudicial. The lien may be enforced by
judicial or nonjudicial foreclosure. Each Owner by accepting title to a Lot hereby grants to the
Association, whether or not it is so expressed in the deed or other instrument conveying such Lot to
the Owner, a private power of nonjudicial sale to be exercised in accordance with Texas Property
Code Ann. § 51.002 (Vernon 1984), as it may be amended. The Board of Directors may appoint,
from time to time, any person including an officer, agent, trustee, substitute trustee, or attorney, to
exercise the Association's lien rights on behalf of the Association, including the power of sale. The
appointment must be in writing and may be in the form of a resolution recorded in the minutes of
a Board of Director's meeting.
c. Subordination of Lien. The lien of the assessments provided for herein is
subordinate to the lien of any Recorded first mortgage or first deed of trust against a Lot.
d Effect of Conveyance. An Owner that conveys title to a Lot shall not be liable for
assessments that are attributable to the period after the conveyance of the Lot, except as provided
in the following paragraph. However, a conveyance of title to a Lot shall not affect the assessment
lien or relieve the Owner that conveys the Lot from personal liability for any assessments
attributable to the period prior to the date of the conveyance, except as provided in the following
paragraph.
e. Effect of Foreclosure. The foreclosure of a first mortgage, trustee’s sale ofa first
deed of trust or a deed in lieu thereof will extinguish the lien of such assessment as to payments
attributable to the period prior to the foreclosure, trustee's sale or deed in lieu thereof. However,
foreclosure of a first mortgage, trustee’s sale of a first deed of trust or a deed in lieu thereof will not
relieve such Lot or Owner thereof from liability for any assessment attributable to the period after
the foreclosure, trustee's sale or deed in lieu thereof. The foreclosure of a first mortgage, trustee's
sale of a first deed of trust or a deed in lieu thereof shall not release the Owner whose Lot is being
foreclosed, sold at a trustee's sale or conveyed pursuant to a deed in lieu from the Owner's obligation
to pay assessments attributable to the period prior to the date of such foreclosure, trustee's sale or
deed in lieu thereof. For purposes of this Declaration, the use of the term "first" in connection with
a mortgage or deed of trust shall refer to the lien priority as compared to other mortgages or deeds
of trust.
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RTICLE V
THE ASSOCIATION
5.1 The Association - Duties and Powers. The Association is a Texas nonprofit corporation
charged with the duties and invested with the powers prescribed by law and set forth in the Articles of
Incorporation, Bylaws, and this Declaration. The Association shall continue to exist until the Association
is dissolved, regardless if the corporate status expires or lapses. The Association shall have such rights, duties
and powers as set forth herein and in the Articles of Incorporation and the Bylaws.
5.2 Board of Directors. The affairs of the Association shall be conducted by the Board of
Directors and such officers as the Board of Directors may elect or appoint, in accordance with the Articles
of Incorporation and the Bylaws. The Board of Directors shall have the powers granted in this Declaration,
the Articles of Incorporation, the Bylaws, and all powers provided by Texas law and all powers reasonably
implied to perform its obligations and/or duties provided herein.
3.3 Limitation on Liability. The liability of an officer, director or committee member of the
Association shall be limited as provided in the Articles of Incorporation.
S4 Indemnification. Subject to the limitations and requirements of the Texas Nonprofit
Corporation Act, as amended, and in the Bylaws, the Association shall indemnify every officer, director, and
committee member against all damages and expenses, including, without limitation, attorneys’ fees,
reasonably incurred in connection with any threatened, initiated or filed action, suit, or other proceeding
(including settlement of any suit or proceeding, if approved by the then Board of Directors) to which he or
she may be a party by reason of being or having been an officer, director, or committee member, except that
such obligation to indemnify shall be limited to those actions for which a director's, officer's or committee
member’s liability is limited under the Articles of Incorporation. Additionally, subject to the limitations and
requirements of the Texas Nonprofit Corporation Act, as amended, and in the Bylaws, the Association may
voluntarily indemnify a person who is or was an employee, trustee, agent or attorney of the Association,
against any liability asserted against such person in that capacity and arising out of that capacity.
5.5 Limitations on Litigation. No judicial or administrative proceeding shall be commenced
or prosecuted by the Association unless there is a 75% or greater vote approving such action. This Section
5.5 shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this
Declaration (including, without limitation, the foreclosure of liens); (b) the imposition and collection of
assessments as provided herein; (c) proceedings involving challenges to ad valorem taxation; (d)
counterclaims brought by the Association in proceedings instituted against it; or (e) actions to enforce written
contracts with the Association. Except as authorized by said vote, the Board of Directors shall not be liable
for failing or refusing to commence litigation;
5.6 Insurance.
a Required Coverages. The Association, acting through its Board of Directors or
its duly authorized agent, shall obtain and continue in effect, at a minimum the following insurance
coverage, if reasonably available or, if not, the most nearly equivalent coverages as are reasonably
available:
(i) Property Insurance. Blanket property insurance covering loss or damage
ona "special form" basis (or comparable coverage by whatever name denominated) for all
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insurable improvements on the Common Area and within the Common Maintenance Area
to the extent that the Association has assumed responsibility in the event of a casualty,
regardless of ownership. All property insurance policies obtained by the Association shall
have policy limits and/or endorsement related thereto sufficient to cover the full replacement
costof the insured improvements. The Association shall obtain endorsements to the property
insurance policy to the extent the Board of Directors determines that particular
endorsements are advisable and reasonably available to the Association. Such endorsements
may include, without limitation: (i) a Replacement Cost Endorsement with an Agreed
Amount Endorsement; (ii) a waiver of the insurer's right to repair and reconstruct instead
of paying cash, if reasonably available; (iii) an Inflation Guard Endorsement; (iv) a Building
Ordinance or Law Endorsement; and (v) a Steam Boiler and Machinery Coverage
Endorsement.
(ii) General Liability Insurance. Commercial general liability insurance on
the Common Maintenance Areas, insuring the Association and its Members for damage or
injury caused by the negligence of the Association or any of its Members, employees,
agents, or contractors while acting on its behalf. Such coverage (including primary and any
umbrella coverage) shall have a limit ofat least $2,000,000.00 per occurrence with respect
to bodily injury, personal injury, and property damage. The Board of Directors may obtain
a higher policy coverage if the Board of Directors determines that such additional coverage
is advisable.
b. Additional Insurance. The Board of Directors may obtain additional insurance as
the Board of Directors determines advisable, including, without limitation, the insurance set forth
below. In determining whether to obtain additional insurance and/or endorsements thereto that are
discretionary the Board of Directors shall use its own business judgment to determine if such
insurance and/or endorsement is advisable based on the cost and availability of the insurance and/or
the endorsement compared to the risks associated therewith.
q) Directors and Officers Liability Insurance. Directors and officers
liability insurance.
(ii) Fidelity Insurance. Fidelity insurance covering all parties responsible for
handling Association funds in an amount determined by the Board of Directors. If fidelity
insurance coverage is obtained the policy should contain, if reasonably available, a waiver
of all defenses based upon the exclusion of persons serving without compensation.
(iii) Flood Insurance. Flood insurance covering any improvements located
on the Common Area to the extent that the Board of Directors determines that the
improvements have significant enough value and the risks related thereto justify the cost of
such insurance.
(iv) Workers Compensation Insurance. Workers compensation insurance and
employers liability insurance.
C. Policy Requirements. All insurance coverage obtained by the Association shall:
(i) be written in the name of the Association and shall provide for a certificate of insurance to be
furnished to the Association; (ii) contain a reasonable deductible; (iii) contain an endorsement
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requiring at least 30 days' prior written notice to the Association of any cancellation of insurance;
(iv) contain a provision or endorsement excluding Owner's individual policies from consideration
under any other insurance clause, if reasonably available; and (v) contain a waiver of subrogation
as to any claims against the Board of Directors and the Association's officers, employees and
manager. and the Owners and their tenants, servants, agents and guests, if reasonably available.
d. Review of Policies. The Board shall annually review the types and amounts of
insurance coverage for sufficiency.
e. Compliance with Federal Agencies and Secondary Mortgage Market
Requirements. In addition to the foregoing insurance in Section 5.6, the Board of Directors may
obtain such insurance coverage that the Board of Directors determines desirable to satisfy any
applicable insurance requirements of any federal agency or secondary mortgage market entity,
including, without limitation, the Federal Home Loan Mortgage Corporation ("FHLMC"), the
Federal National Mortgage Association ("FNMA"), the U. S. Department of Veterans Affairs
("VA"), and the U. S. Department of Housing and Urban Development ("HUD"), to the extent
applicable.
5.7 Contracts; Management and Maintenance. The Association shall have the right to
contract with any person or entity for the performance of various duties and functions. This right shall
include, without limitation, the right to enter into management, operational, or other agreements with other
persons or entities; provided, any such agreement shall require approval of the Board of Directors. The Board
of Directors may employ for the Association a management agent or agents at such compensation as the
Board of Directors may establish, to perform such duties and services as the Board of Directors shall
authorize. The Board of Directors may delegate such powers as are necessary to perform the manager's
assigned duties, but shall not delegate policymaking authority.
5.8 Books and Records. The books and records of the Association shall be made available to
the Members for inspection as provided in the Bylaws. In addition, Members may obtain copies, at a
reasonable cost, of the books and records of the Association as provided in the Bylaws.
5.9 Dissolution of Association; Conveyance of Assets. If the Association is diss
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Filed 11/13/2020 1:22 PM Beverley McGrew Walker District Clerk Fort Bend County, Texas Justyce Tumer CAUSE NO. 18-DCV-256011 GREAT OAKS SOUTH IN THE DISTRICT COURT FOR HOMEOWNERS ASSOCIATION, INC., Plaintiff, ve FORT BEND COUNTY, TEXAS TRACY CARTER AND CHARLES FLETCHER, JR., Defendants. 240th JUDICIAL DISTRICT COURT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW the Plaintiff, Great Oaks South Homeowners Association, Inc., and files this Motion for Summary Judgment against the Defendants, Tracy Carter and Charles Fletcher, Jr., and in support thereof would show unto this Court as follows: I SUMMARY JUDGMENT EVIDENCE 1 Plaintiff relies on the following summary judgment evidence: EXHIBIT ONE: Declaration of Covenants, Conditions and Restrictions for Great Oaks South; EXHIBIT TWO: Supplemental Declaration Providing for Annexation; EXHIBIT THREE: Account Statement; EXHIBIT FOUR: Affidavit of Managing Agent; EXHIBIT FIVE: Letter of February 23, 2017; EXHIBIT SIX: Letter of June 7, 2017; EXHIBIT SEVEN Letter of December 11, 2017; EXHIBIT EIGHT Affidavit on Attorney’s Fees and Costs. 1 of 7 | Motion for Summary Judgment FACTS & CASE PROCEDURE Plaintiff Great Oaks South Homeowners Association, Inc., (hereinafter the “Plaintiff” or the “Association”) is the governing entity for Great Oaks South, a subdivision in Fort Bend Defendants Tracy Carter and Charles Fletcher Jr., (hereinafter the “Defendants”) own the property located at 7243 Chickory Woods Lane, Houston, Texas 77083 (hereinafter the “Property”) and more pa FOUR (4), IN BLOCK ONE (1), OF GREAT OAKS SOUTH SEC. 2, AN ADDITION IN FORT BEND COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN SLIDE NO. 2315/A TO 2315/B, OF THE PLAT RECORDS OF FORT BEND COUNTY, TEXAS. The Property is within the Subdivision and therefore subject to the Association’s authority. The Subdivision, and the Association, are governed by the Declaration of Covenants, Conditions and Restrictions for Great Oaks South filed for record in the Real Property Records of Fort Bend County, Texas, under Clerk’s File No. 2002013458 (hereinafter the “Declaration’”). ONE: Declaration. The Supplemental Declaration Providing for Annexation, Great Oaks South Section 2, filed for record in the Real Property Records of Fort Bend County, Texas, under Clerk’s Article IV, Section 4.1 of the Declaration subjects each lot in the Subdivision to annual, special, and specific assessments. Ex. 1 . Further, Article IV, Section 4.13(a) goes on to provide that “the Association shall hereby have a continuing lien against each Lot to secure payment of delinquent assessments (annual assessments, special assessments and specific assessments), as well as interest at the Designated Interest Rate, late charges, and costs of collection, including, without limitation, court costs and attorneys’ fees.” Ex. 1 . Article IV, Section 4.13(b) states that “the lien may be enforce losure.” 2 of 7 | Motion for Summary Judgment The Plaintiff sued the Defendants on October 15, 2018. The Plaintiff sued the Defendants are delinquent in their maintenance assessments and in the resulting fees, charges, and costs. The Plaintiff further seeks to foreclose Because there are no genuine issues of material fact at issue in this lawsuit, this Court should grant the Association summary judgment against the Defen SUMMARY JUDGMENT STANDARD In determining whether to grant summary judgment, it is a “trial court’s duty is to determine [whether] there are any material fact issues to try.” Richardson v. Parker, 903 S.W.2d 801, 803 A plaintiff seeking summary judgment must show there are no genuine issues of material fact in dispute and that judgment should be granted as a matter of law. KPMG Peat Marwick v. ., 988 S.W.2d 746, 748 (Texas 1999). To do this, a plaintiffmu show it is entitled to prevail on the elements of its causes of action. See, e.g., Fry v. Comm'n for Lawyer Discipline, 979 S.W.2d 331, 334 (Te h Dist.] 1998, pet plaintiff meets its burden if it produces evidence that would be sufficient to support an instructed verdict at trial. Braden v. New Ulm State Bank, 618 S.W.2d 780, 782 (Tex. Civ. App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.). Plaintiffs who conclusively establish the absence of disputed issues are under no obligation to negate affirmative defenses. Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d eed, in conclusively establishing the elements of its claim for the purposes of seeking a summary judgment, a plaintiffis not required to negate, or even address, a defendant’s affirmative defenses. ExxonMobil Corp. v. Rincones, 520 3 of 7 | Motion for Summary Judgment S.W.3d 572, 593 (Tex. 2017). A defendant who merely pleads affirmative defenses, without offering proof to support those affirmative defenses, will not defeat an otherwise valid motion for summary judgment. Hammer v. Powers, 819 S.W.2d 669, 673 (Tex. App.—Fort Worth 1991, no writ). IV. ARGUMENTS AND AUTHORITIES 11. The Association is entitled to summary judgment because there are no genuine issues of material fact or law at issue in the instant case. 12. It is settled law in the State of Texas that homeowners are bound by the governing documents of their subdivisions, including the enforcement provisions therein, and that all homeowners who purchase property have constructive notice of those governing documents. See, e.g., Inwood North Homeowners’ Association, Inc. v. Harris, 736 S.W.2d 632, 635-36 (Tex.1987); and Sloan v. Owners Ass’n of Westfield, Inc., 167 S.W.3d 401 (Tex.App.—San Antonio 2005, no pet.). The Supreme Court has held that under the laws of the State of Texas, trial courts are bound to enforce the agreements into which homeowners enter concerning assessments. Inwood North at 637 (reaffirmed in Brooks v. Northglen Ass’n., 141 S.W.3d 158, 170 (Texas 2004). Further, Section 202.004(a) of the Texas Property Code provides that a property owners’ association may exercise discretionary authority as to its restrictive covenants, and that such an exercise is presumed reasonable. 13. In the instant case, there is no dispute as to whether the Defendants own the Property, nor is there any dispute as to the fact that the Property is subject to the Association’s governing documents. 14. Additionally, there is no genuine issue of material fact in dispute as to the Defendants’ delinquency. As of this date, the Defendants are delinquent in the amount of eleven thousand, four 4 of 7 | Motion for Summary Judgment hundred and ninety dollars, and fifteen cents ($11,490.15), an amount consisting of $5,441.16 in actual damages, $4,468.00 in reasonable and necessary attorneys’ fees, and $1,580.99 in reasonable and necessary costs. EXHIBIT THREE: Account Statement; see also EXHIBIT FOUR: Affidavit of Managing Agent. (This amount does not include any fees and costs the Association incurs in litigating this Motion for Summary Judgment.) 15. As noted above, the Association maintains a secured lien against the Property in the full amount of the Defendants’ delinquency, and the Plaintiff is entitled to foreclose that lien. As also noted above, the Association’s lien against the Property secures any and all delinquent assessments, interest on those delinquent assessments, costs of collection, and attorney’s fees and costs. Vv. THE ASSOCIATION IS ENTITLED TO ITS ATTORNEY’S FEES & COSTS 16. The Plaintiff is entitled to its reasonable and necessary attorney’s fees and costs pursuant to the Declaration, the Texas Property Code, and the Texas Rules of Civil Procedure. 17. As noted above, Article IV, Section 4.13(a) of the Declaration grants the Association a continuing lien against the Property “costs of collection, including, without limitation, court costs and attorneys’ fees.” Ex. 1 at 7. 18. Further, the Association is also entitled to its reasonable attorneys’ fees pursuant to Section 38.001 of the Texas Civil Practice and Remedies Code. 19. Finally, the Association is entitled to its reasonable attorney’s fees and costs under 209.008(a) of the Texas Property Code. 20. All requisite notices and preconditions for the recovery of attorneys’ fees were satisfied. See, e.g., EXHIBIT FIVE: Letter of February 23, 2017; see also EXHIBIT SIX: Letter of June 7, 2017; see also EXHIBIT SEVEN: Letter of December 11, 2017. 5 of 7 | Motion for Summary Judgment 21. As a result of the Defendants’ delinquency, the Association has incurred significant attorneys’ fees and costs. Ex. 4; see also EXHIBIT EIGHT: Affidavit on Fees and Costs. 22. The Association is entitled to recover the full amount of its attorney’s fees and costs, as reflected herein. Additionally, the Association is entitled to recover the full amount of the attorney’s fees and costs it incurs in litigation this Motion for Summary Judgment. VI. CONCLUSION AND PRAYER 23. Because there are no genuine issues of material fact or law in dispute in this matter, the Association is entitled to summary judgment. 24. Plaintiff Great Oaks South Homeowners Association, Inc., respectfully prays this Court grant this Motion for Summary Judgment against the Defendants for the Plaintiff Association’s damages, for its costs of court, and attorney’s fees, its expenses, for interest as allowed by law, for foreclosure of its lien against the subject Property as set forth hereinabove, and for all such other and further relief, at law or in equity, to which it may show itself entitled. Respectfully submitted, jim HOLT & YOUNG, P.C. =F J.C. Jamison State Bar No. 24092127 9821 Katy Freeway, Suite 350 Houston, Texas 77024 Fax No. (713) 510-1001 JJamison@HoltY oung.com ATTORNEYS FOR PLAINTIFF 6 of 7 | Motion for Summary Judgment CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was mailed to the Defendants, by certified mail and first class mail, this 13" day of November, 2020. /s/ J.C. Jamison 7 of 7 | Motion for Summary Judgment nO _ oe FBC 2002 68 35 pas DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR GREAT OAKS SOUTH This Declaration of Covenants, Conditions and Restrictions for Great Oaks South, is made on the date hereinafter set forth by the Declarant, Centex Homes, a Nevada general partnership. Declarant is the owner of the Property (as herein defined). Declarant desires to impose upon the Property mutually beneficial restrictions under a general plan of improvement for the benefit of the owners of cach portion of the Property. The Declaration is intended to provide a flexible and reasonable procedure for the overall development, administration, maintenance, and preservation of the Property. In furtherance of such plan, Declarant has caused or intends to cause the Great Oaks South Homeowners Association, Inc. to be formed as a Texas nonprofit corporation to own, operate, and maintain the Common Maintenance Area (as defined herein) and to administer and enforce the provisions of this Declaration. Declarant hereby declares that all of the Property shall be held, sold, used and conveyed subject to the easements, restrictions, covenants, and conditions contained in this Declaration, which shall run with the title to the Property. This Declaration shall be binding upon all parties having any right, title or interest in any portion of the Property, their heirs, successors, successors-in-title and assigns, and shall inure to the benefit of each owner of any portion of the Property. ARTICLE I DEFINITIONS 1 "Annexable Property" means the real property described on Exhibit "B" attached hereto. 1.22 "ACA" or "Architectural Control Authority" shall have the meaning provided such terms in Section 6.2 herein. 13 " ACA Standards" means standards adopted by the ACA regarding architectural and related matters, including, without limitation, architectural design, placement of improvements, landscaping, color schemes, exterior finishes and materials and similar features which may be either recommended or required by the ACA for use within the Property. 14 " Associ: ion" means Great Oaks South Homeowners Association, Inc., a Texas nonprofit corporation established for the purposes set forth herein. 1.5 “Board of Directors" means the board of directors of the Association. 1.6 "Builder" means any person or entity who purchases one or more Lots for the purpose of constructing improvements for later sale to consumers in the ordinary course of such person's or entity's business. 17 "City" means the City of Houston. _glegaldivisions\houston\ccrs\greatoakssouth(020602).wpd EXHIBIT ONE 1.8 "Class B Control Period" means the period commencing upon the date of this Declaration and expiring upon the earliest of: (i) 10 years after conveyance of the first Lot, (ii) a date that Declarant in writing elects to terminate the Class B Control Period, or (iii) when 75% of the residential building sites ("lots") proposed within the Development have been improved with a Dwelling thereon and conveyed to persons or entit‘es other than a Builder. For purposes of determining the number of building sites within the Development, the final subdivision plats, when Recorded against the entire Development showing each residential building site, shall be the determining documentation. 1.9 "Class Vote" means a vote that is counted or tallied for each separate class of voting and requires the specific percentage from each class. 1.10 “Common Area" and "Common Areas" means all areas (including the improvements thereon) within the Property owned or to be owned by the Association for the common use and enjoyment of the Members. The Common Area to be owned by the Association at the time of the conveyance of the first Lot (other than to an entity that may assume a Declarant status as provided herein) is described or depicted and designated on Exhil “ attached hereto. Vl " Common Expenses" means the actual and estimated expenses incurred, or anticipated to be incurred by the Association for the benefit of the Member(s) and/or the Common Maintenance Areas, but excluding any expenses incurred during the Class B Control Period for the initial or original construction of improvements. 1.12 "Common Maintenance Areas" means the Common Areas, if any, and any areas within public rights-of-way, easements (public and private), portions of a Lot, public parks, private streets, or landscaping, entry feature, fence or similar areas that the Board of Directors deems necessary or appropriate to maintain for the common benefit of the Members. 1.13 "County"means the County of Fort Bend. 1.14 "Declarant" means Centex Homes, a Nevada general partnership and its successors and assigns who are designated as such in writing by Declarant, and who consent in writing to assume the duties and obligations of the Declarant with respect to the Lots acquired by such successor or assign. There may be more than one Declarant, if Declarant makes a partial assignment of the Declarant status. 1.15 "Declaration" means this Declaration of Covenants, Conditions and Restrictions for Great Oaks South, and any amendments and supplements thereto made in accordance with its terms. 1.16 "Designated Interest Rate" means the interest rate designated by the Board of Directors from time to time, subject to any interest limitations under Texas law. If the Board of Directors fails to designate an interest rate, then the interest rate shall be the lessor of 12% per annum or the highest rate permitted by Texas law. The Designated Interest Rate is also subject to the limitations in Section 11.7 herein. 1.17 "Development" means the Property and the Annexable Property. 1.18 "Dwelling" means any residential dwelling situated upon any Lot. s lepsldvisionsboustoncentyrestonkasou(020602) wp 1.19 "Lot" means any separate residential building parcel shown ona Recorded subdivision plat of the Property or any part thereof, but only if such parcel has in place the infrastructure (including utilities and streets) necessary to allow construction of a single-family home thereon. Common Areas and areas deeded to a governmental authority or utility, together with all improvements thereon, shall not be included as part of a Lot. 1.20 "Member" means any person, corporation, partnership, joint venture or other legal entity that is a member of the Association pursuant to the terms in Article III herein. 1.21 "Owner" means the record owner, whether one or more persons or entities, of fee simple title to any Lot, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. Ifa Lot is sold under a Recorded contract for sale, then the purchaser (rather than the fee Owner) will be considered the Owner. 1,22 “Property” means the real property described on Exhibit "A" attached hereto (other than areas dedicated to the City or County) and such additional property as is brought within the jurisdiction of the Association and made subject to this Declaration. 1.23 "Record", "Recording" or "Recorded" means the filing of a legal instrument in the Public Records of Fort Bend County, Texas, or such other place as may be designated as the official location for filing deeds, plats, and similar documents affecting title to real property. 1.24 "Supplemental Declaration" means a Recorded instrument which subjects additional property to this Declaration and/or imposes additional restrictions and obligations on the land described in the instrument. 1.25 “Vacant Lot" means a Lot that does not have thereon a Dwelling that has been occupied at any time (past or current) for residential purposes. ARTICLE I PROPERTY RIGHTS 2.1 Owners' Easements of Use and Enjoyment. Every Owner will have a right and non- exclusive easement of use, access and enjoyment in and to the Common Areas, and such easement will be appurtenant to and will pass with the title to every Lot, subject to any limitations set forth herein, including, without limitation, the following: a. Rules. The right of the Association tc establish and publish rules and regulations governing the use of the Common Areas and/or the Lots. b. Suspension Voting Rights. The right of the Association to suspend the right of use of the Common Areas and the voting rights of an Owner for any period during which any assessment against such Owner’s Lot remains unpaid. c. Conveyance of Common Area. The right of the Association, subject to the provisions hereof, to dedicate, sell or transfer all or any part of the Common Areas. However, no such dedication, sale or transfer will be effective unless there is a 67% or greater vote, excluding Declarant, approving such action. _gNegaldivisionsthouston\ccrs\greatoakssouth(020602).wpd d Mortgage Common Area. The right of the Association, subject to the provisions hereof, to mortgage or lien all or any part of the Common Areas. However, the Common Areas cannot be mortgaged or liened without a 67% or greater vote, excluding Declarant, approving such action. 2.2 Prohibitions on Easement of Use and Enjoyment. Each Owner's right and easement of use and enjoyment in and to the Common Area is limited as follows: a. No Transfer without Lot. An Owner’s right and easement of use and enjoyment inand to the Common Area shall not be conveyed, transferred, alienated or encumbered separate and apart from an Owner’s Lot and such right and easement of use and enjoyment in and to the Common Area shall be deemed to be conveyed, transferred, alienated or encumbered upon the sale of any Owner’s Lot, notwithstanding that the description in the instrument of conveyance, transfer, alienation or encumbrance may not refer to the Common Area. b. No Parti n. Except as provided in Section 2.1.c herein, the Common Area shall remain undivided and no action for partition or division of any part thereof shall be permitted. 2.3 Right to Delegate Use and Enjoyment of Common Area. Any Owner may extend his or her right of use and enjoyment to the members of his or her family, lessees and guests as applicable, subject to the terms in this Declaration, the Bylaws and any reasonable rules of the Board of Directors. An Owner who leases his or her Dwelling is deemed to have assigned all such rights to the lessee of such Dwelling. ARTICLE Ill MEMBERSHIP AND VOTING 3.1 Membership - Owners. Every Owner by virtue of ownership of a Lot will be a member of the Association. Membership will be appurtenant to and will not be separated from ownership of any Lot. 3.2 Voting Rights. The Association shall have the following two classes of voting membership: a. Class A. Class A Members shall be all Owners, with the exception of the Declarant. Class A Members shall be entitled to one vote for each Lot owned. However, when more than one person holds an interest in any Lot, all such persons shall be members, but only one vote in total may be cast per Lot as the Owners determine among themselves and advise the Secretary of the Association in writing prior to the vote being taken. The Association shall have no affirmative obligation to take any action to determine which Owner is the person designated to cast the Lot’s vote. If the Owners’ fail to advise the Association of the person designated to cast the Lot’s vote, then the Lot’s vote shall be suspended if more than one person or entity seeks to exercise it. b. Class B. The sole Class B Member shall be Declarant. The Class B Member is entitled to three (3) votes for each Lot owned by the Class B Member. The Class B membership shall cease and be converted to Class A membership upon expiration of the Class B Control Period. gMegaldivisions\houston\ecrs\greatoakssouth(020602).wpd ARTICLE IV ASSESSMENTS 41 Obligation to Pay Assessments. Subject to the terms of this Article IV, the Declarant, for each Lot it owns, hereby covenants, and each Owner of any Lot by acceptance of a deed therefor, whether or not it will be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (i) annual assessments or charges, (ii) special assessments as provided in Section 4.5 herein, and (iii) specific assessments as provided in Section 4.9 herein. 4.2 Personal Obligation to Pay Assessments. Each such assessment, together with interest at the Designated Interest Rate, late charges, costs and reasonable attorneys' fees, shall be the personal obligation of the person who was the Owner of such Lot at the time when the assessment arose. Upon a transfer of title to a Lot, the grantee shall be jointly and severally liable for any assessments and other charges due at the time of conveyance. However, no mortgagee under a Recorded first mortgage or beneficiary of a Recorded first deed of trust (meaning any Recorded mortgage or deed of trust with first priority over other mortgages or deeds of trust), shall be liable for unpaid assessments which accrued prior to such acquisition of title. In addition, no mortgagee shall be required to collect assessments. 43 Purpose of Annual and Special Assessments. Annual assessments and special assessments levied by the Association shall be used for Common Expenses. The Association may establish and maintain a reserve fund for the periodic maintenance, repair and replacement of improvements to the Common Maintenance Areas. 44 Maximum and Actual Annual Assessment. Until January Ist of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment shall be $250.00 per Lot. The Board of Directors may fix the actual annual assessment at an amount not in excess of the maximum annual assessment. From and after January Ist of the year immediately following the conveyance of the first J.ot to an Owner, the maximum annual assessment may be increased as follows: a Maximum Increase Wi out Vote. The maximum annual assessment may be increased by the Board of Directors without a vote of the membership each year by 10% above the maximum annual assessment for the previous year. The Board of Directors may increase the maximum annual assessment with or without increasing the actual annual assessment. b. Maximum Increase With Vote. The maximum annual assessment may be increased more than 10% above the prior year's maximum annual assessment amount by a 67% or greater Class Vote approving such action. 45 Special Assessments. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment to cover expenses which the Board of Directors determines, in its sole discretion, to more appropriately be handled outside of the regular operating budget, provided, that any such special assessment must have a 67% or greater Class Vote approving such action. 46 Uniform Rate of Assessment - Reduced for Vacant Lots. Both annual assessments and special assessments shall be fixed at a uniform rate for all Lots, except that Vacant Lots shall be assessed at 25% of the regular full assessment rate. ¢gegaTivisions\houstontcers\greatoakssoutl020602).wpd 47 Declarant's Payment of Full Assessments for Vacant Lots or Shortfall Amount. During the period that Declarant owns any Vacant Lot, if the Association’s revenues are insufficient to pay the expenses of the Association, then Declarant shall pay to the Association the lesser of: (i) the difference between the revenues and the expenses, or (ii) the difference between the total amount of assessments paid by Declarant for Vacant Lots (assessed at the reduced assessment rate) and the total amount that Declarant would have paid for such Vacant Lots if such Vacant Lots were assessed as Lots at the full (100%) rate. Declarant shall pay such amount within 30 days of receipt of request for payment thereof from the Association, provided that if the budget deficit is the result of the failure or refusal of an Owner or Owners to pay their annual assessment or special assessments, the Association will diligently pursue (the Declarant may also pursue at its option) all available remedies against such defaulting Owners and will promptly reimburse the Declarant the amounts, if any, so collected. 48 Date of Commencement of Annual Assessments; Due Dates. The annual assessments provided for herein shall commence as to all Lots on the date of conveyance of the first Lot to an Owner (other than to a Builder or an entity that assumes the Declarant status as provided herein), unless the Board of Directors elects to commence the annual assessment earlier. The first annual assessment shall be adjusted according to the number of months remaining in the calendar year. The Board of Directors shall fix the amount of the annual assessment against each Lot at least 30 days in advance of each assessment period. Written notice of the annual assessment shall be sent to an Owner of every Lot subject thereto. The due dates shall be established by the Board of Directors. The Board of Directors shall also establish whether the annual assessment shall be paid annually, quarterly or monthly. 4.9 Specific Assessments. The Association shall have the power to levy specific assessments against a particular Lot to (i) cover costs incurred in bringing a Lot into compliance with this Declaration, (ii) cover costs incurred as a consequence of the conduct (or the failure to act) of the Owner or occupant of a Lot, their agents, contractors, employees, licensees, invitees, or guests, and/or (iii) collect any sums due by the Owner to the Association (other than annual assessments or special assessments or interest or late charges related thereto), including, without limitation, fines and transfer fees. 4.10 Capitalization of Association. Upon acquisition of record title to a Lot by the first Owner thereof (other than Declarant or a Builder), a contribution shall be made by or on behalf of the purchaser to the working capital of the Association in an amount equal to two months of the full annual assessment per Lot for that year. This amount shall be in addition to, not in lieu of, the annual assessment and shall not be considered an advance payment of such assessment. This amount shall be deposited into the purchase and sales escrow and disbursed therefrom to the Association for use in covering operating expenses and other expenses incurred by the Association pursuant to this Declaration and the Bylaws. 4.11 Certificate of Assessment Status. The Association will, upon written demand and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether or not the assessment has been paid for the assessment period. 4.12 Failure to Pay Assessments; Remedies of the Association. With respect to any assessment or other sum due herein not paid within 10 days after the due date, the Association shall have the right to: (i) charge a late charge, in an amount determined by the Board of Directors; (ii) charge interest on the amount due at the Designated Interest Rate from the due date until the date the sum is paid; and/or (iii) charge costs and fees related to the collection of the sum due. In addition, the Association may bring an action at law against the Owner personally obligated to pay the same. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Maintenance Area or glegalldivisions\houston\ccrs\greatoakssouth(020602).wpd 6 abandonment of his or her Lot. The failure to pay assessments shall not by the terms of this Declaration constitute a default under an insured mortgage, unless otherwise provided by the terms of such mortgage. 4.13 Lien. Lien. a. Creation of Lien. The Association shall hereby have a continuing lien against each Lot to secure payment of delinquent assessments (annual assessments, special assessments and specific assessments), as well as interest at the Designated Interest Rate, late charges, and costs of collection, including, without limitation, court costs and attorneys’ fees. Although no further action is required to create or perfect the lien, the Association may, as further evidence and notice of the lien, execute and Record a document setting forth as to any Lot, the amount of delinquent sums due the Association at the time such document is executed and the fact that a lien exists to secure the payment thereof. However, the failure of the Association to execute and record any such document shall not, to any extent, affect the validity, enforceability, perfection or priority of the lien. b. Enforcement of Lien - Judicial or Nonjudicial. The lien may be enforced by judicial or nonjudicial foreclosure. Each Owner by accepting title to a Lot hereby grants to the Association, whether or not it is so expressed in the deed or other instrument conveying such Lot to the Owner, a private power of nonjudicial sale to be exercised in accordance with Texas Property Code Ann. § 51.002 (Vernon 1984), as it may be amended. The Board of Directors may appoint, from time to time, any person including an officer, agent, trustee, substitute trustee, or attorney, to exercise the Association's lien rights on behalf of the Association, including the power of sale. The appointment must be in writing and may be in the form of a resolution recorded in the minutes of a Board of Director's meeting. c. Subordination of Lien. The lien of the assessments provided for herein is subordinate to the lien of any Recorded first mortgage or first deed of trust against a Lot. d Effect of Conveyance. An Owner that conveys title to a Lot shall not be liable for assessments that are attributable to the period after the conveyance of the Lot, except as provided in the following paragraph. However, a conveyance of title to a Lot shall not affect the assessment lien or relieve the Owner that conveys the Lot from personal liability for any assessments attributable to the period prior to the date of the conveyance, except as provided in the following paragraph. e. Effect of Foreclosure. The foreclosure of a first mortgage, trustee’s sale ofa first deed of trust or a deed in lieu thereof will extinguish the lien of such assessment as to payments attributable to the period prior to the foreclosure, trustee's sale or deed in lieu thereof. However, foreclosure of a first mortgage, trustee’s sale of a first deed of trust or a deed in lieu thereof will not relieve such Lot or Owner thereof from liability for any assessment attributable to the period after the foreclosure, trustee's sale or deed in lieu thereof. The foreclosure of a first mortgage, trustee's sale of a first deed of trust or a deed in lieu thereof shall not release the Owner whose Lot is being foreclosed, sold at a trustee's sale or conveyed pursuant to a deed in lieu from the Owner's obligation to pay assessments attributable to the period prior to the date of such foreclosure, trustee's sale or deed in lieu thereof. For purposes of this Declaration, the use of the term "first" in connection with a mortgage or deed of trust shall refer to the lien priority as compared to other mortgages or deeds of trust. gilegaldivisionsthoustontecrs\greatoakssouth(020602). wpd RTICLE V THE ASSOCIATION 5.1 The Association - Duties and Powers. The Association is a Texas nonprofit corporation charged with the duties and invested with the powers prescribed by law and set forth in the Articles of Incorporation, Bylaws, and this Declaration. The Association shall continue to exist until the Association is dissolved, regardless if the corporate status expires or lapses. The Association shall have such rights, duties and powers as set forth herein and in the Articles of Incorporation and the Bylaws. 5.2 Board of Directors. The affairs of the Association shall be conducted by the Board of Directors and such officers as the Board of Directors may elect or appoint, in accordance with the Articles of Incorporation and the Bylaws. The Board of Directors shall have the powers granted in this Declaration, the Articles of Incorporation, the Bylaws, and all powers provided by Texas law and all powers reasonably implied to perform its obligations and/or duties provided herein. 3.3 Limitation on Liability. The liability of an officer, director or committee member of the Association shall be limited as provided in the Articles of Incorporation. S4 Indemnification. Subject to the limitations and requirements of the Texas Nonprofit Corporation Act, as amended, and in the Bylaws, the Association shall indemnify every officer, director, and committee member against all damages and expenses, including, without limitation, attorneys’ fees, reasonably incurred in connection with any threatened, initiated or filed action, suit, or other proceeding (including settlement of any suit or proceeding, if approved by the then Board of Directors) to which he or she may be a party by reason of being or having been an officer, director, or committee member, except that such obligation to indemnify shall be limited to those actions for which a director's, officer's or committee member’s liability is limited under the Articles of Incorporation. Additionally, subject to the limitations and requirements of the Texas Nonprofit Corporation Act, as amended, and in the Bylaws, the Association may voluntarily indemnify a person who is or was an employee, trustee, agent or attorney of the Association, against any liability asserted against such person in that capacity and arising out of that capacity. 5.5 Limitations on Litigation. No judicial or administrative proceeding shall be commenced or prosecuted by the Association unless there is a 75% or greater vote approving such action. This Section 5.5 shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this Declaration (including, without limitation, the foreclosure of liens); (b) the imposition and collection of assessments as provided herein; (c) proceedings involving challenges to ad valorem taxation; (d) counterclaims brought by the Association in proceedings instituted against it; or (e) actions to enforce written contracts with the Association. Except as authorized by said vote, the Board of Directors shall not be liable for failing or refusing to commence litigation; 5.6 Insurance. a Required Coverages. The Association, acting through its Board of Directors or its duly authorized agent, shall obtain and continue in effect, at a minimum the following insurance coverage, if reasonably available or, if not, the most nearly equivalent coverages as are reasonably available: (i) Property Insurance. Blanket property insurance covering loss or damage ona "special form" basis (or comparable coverage by whatever name denominated) for all 1 \kgaldivisions\houston\ccrs\greatoakssouth(020602).wpd a insurable improvements on the Common Area and within the Common Maintenance Area to the extent that the Association has assumed responsibility in the event of a casualty, regardless of ownership. All property insurance policies obtained by the Association shall have policy limits and/or endorsement related thereto sufficient to cover the full replacement costof the insured improvements. The Association shall obtain endorsements to the property insurance policy to the extent the Board of Directors determines that particular endorsements are advisable and reasonably available to the Association. Such endorsements may include, without limitation: (i) a Replacement Cost Endorsement with an Agreed Amount Endorsement; (ii) a waiver of the insurer's right to repair and reconstruct instead of paying cash, if reasonably available; (iii) an Inflation Guard Endorsement; (iv) a Building Ordinance or Law Endorsement; and (v) a Steam Boiler and Machinery Coverage Endorsement. (ii) General Liability Insurance. Commercial general liability insurance on the Common Maintenance Areas, insuring the Association and its Members for damage or injury caused by the negligence of the Association or any of its Members, employees, agents, or contractors while acting on its behalf. Such coverage (including primary and any umbrella coverage) shall have a limit ofat least $2,000,000.00 per occurrence with respect to bodily injury, personal injury, and property damage. The Board of Directors may obtain a higher policy coverage if the Board of Directors determines that such additional coverage is advisable. b. Additional Insurance. The Board of Directors may obtain additional insurance as the Board of Directors determines advisable, including, without limitation, the insurance set forth below. In determining whether to obtain additional insurance and/or endorsements thereto that are discretionary the Board of Directors shall use its own business judgment to determine if such insurance and/or endorsement is advisable based on the cost and availability of the insurance and/or the endorsement compared to the risks associated therewith. q) Directors and Officers Liability Insurance. Directors and officers liability insurance. (ii) Fidelity Insurance. Fidelity insurance covering all parties responsible for handling Association funds in an amount determined by the Board of Directors. If fidelity insurance coverage is obtained the policy should contain, if reasonably available, a waiver of all defenses based upon the exclusion of persons serving without compensation. (iii) Flood Insurance. Flood insurance covering any improvements located on the Common Area to the extent that the Board of Directors determines that the improvements have significant enough value and the risks related thereto justify the cost of such insurance. (iv) Workers Compensation Insurance. Workers compensation insurance and employers liability insurance. C. Policy Requirements. All insurance coverage obtained by the Association shall: (i) be written in the name of the Association and shall provide for a certificate of insurance to be furnished to the Association; (ii) contain a reasonable deductible; (iii) contain an endorsement :Nlegaldivisions\houston\ccrs\greatoakssouth(020602).wpd 9 requiring at least 30 days' prior written notice to the Association of any cancellation of insurance; (iv) contain a provision or endorsement excluding Owner's individual policies from consideration under any other insurance clause, if reasonably available; and (v) contain a waiver of subrogation as to any claims against the Board of Directors and the Association's officers, employees and manager. and the Owners and their tenants, servants, agents and guests, if reasonably available. d. Review of Policies. The Board shall annually review the types and amounts of insurance coverage for sufficiency. e. Compliance with Federal Agencies and Secondary Mortgage Market Requirements. In addition to the foregoing insurance in Section 5.6, the Board of Directors may obtain such insurance coverage that the Board of Directors determines desirable to satisfy any applicable insurance requirements of any federal agency or secondary mortgage market entity, including, without limitation, the Federal Home Loan Mortgage Corporation ("FHLMC"), the Federal National Mortgage Association ("FNMA"), the U. S. Department of Veterans Affairs ("VA"), and the U. S. Department of Housing and Urban Development ("HUD"), to the extent applicable. 5.7 Contracts; Management and Maintenance. The Association shall have the right to contract with any person or entity for the performance of various duties and functions. This right shall include, without limitation, the right to enter into management, operational, or other agreements with other persons or entities; provided, any such agreement shall require approval of the Board of Directors. The Board of Directors may employ for the Association a management agent or agents at such compensation as the Board of Directors may establish, to perform such duties and services as the Board of Directors shall authorize. The Board of Directors may delegate such powers as are necessary to perform the manager's assigned duties, but shall not delegate policymaking authority. 5.8 Books and Records. The books and records of the Association shall be made available to the Members for inspection as provided in the Bylaws. In addition, Members may obtain copies, at a reasonable cost, of the books and records of the Association as provided in the Bylaws. 5.9 Dissolution of Association; Conveyance of Assets. If the Association is diss