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IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
FONTAINE CONDOMINIUM )
ASSOCIATION, INC., )
)
Plaintiff,
CIVIL ACTION
Vv.
FILE NO.
CHRISTOPHER HINDS AS HEIR TO
THE ESTATE OF MOSES G. HINDS,
Defendant.
COMPLAINT FOR JUDICIAL FORECLOSURE OF LIEN AND DAMAGES
COMES NOW, Fontaine Condominium Association, Inc. (hereinafter the ““Association”),
Plaintiff in the above-styled action, and files this, its Complaint for Judicial Foreclosure of Lien
and Damages, respectfully showing this Court as follows:
1
The Association files this Complaint seeking judicial foreclosure of the Association's lien
against the property owned by Defendant and for damages arising under the Georgia
Condominium Association Act, O.C.G.A. § 44-3-70, et_seq. (hereinafter the “Act”) and the
Association’s governing documents (hereinafter the “Declaration”). A true and correct copy of the
Declaration is attached hereto as Exhibit “A”.
2
The Association is a Georgia non-profit corporation created pursuant to the Act and the
Declaration. The Association is responsible for, among other things, the maintenance of the
common elements of the Fontaine Condominium Development (hereinafter the “Development”).
3
The Association is authorized to assess condominium assessments against the
condominium units located within the Development and to collect such assessments from the
owners of the condominium units to obtain the funds necessary to carry out its maintenance
responsibilities.
4
Defendant is the owner of real property located within the Development known as 93 Rue
Fontaine, Unit 93-10, Lithonia GA 30038 (hereinafter the “Subject Property”).
5
Defendant is subject to the jurisdiction of this Court and venue is proper herein.
6
Defendant resides and may be served at 93 Rue Fontaine, Unit 93-10, Lithonia GA 30038.
7.
Defendant is subject to all the terms, conditions, and requirements of the Declaration and
the Act by virtue of Defendant's ownership of Subject Property.
8
The Subject Property is subject to all the terms, conditions, and requirements of the
Declaration and the Act by virtue of its location within the Development.
COUNT I - COLLECTION OF UNPAID ASSESSMENTS
9
The Association hereby incorporates Paragraphs 1-8 of this Complaint as if each said
paragraph were restated herein.
10.
Pursuant to the Act and the Declaration, each owner of each condominium unit in the
Development agrees to pay the Association assessments for the maintenance of the common
elements of the Development.
ll.
Defendant has failed to pay the assessments levied by the Association upon the Subject
Property.
12.
Defendant is indebted to the Association in the current principal amount of $16,644.00,
through and including April 17, 2024. A statement of Defendant's account is attached hereto as
Exhibit “B”. Additionally, Defendant is liable to the Association for all amounts that may come
due after the filing of this complaint, but prior to the entry of the final judgment.
13.
The Association provided Defendant with written notice of its intent to file this suit in the
event Defendant did not pay the past due assessments to the Association and its intent to accelerate
and seek recovery of any remaining amounts that will become due and payable to the Association
for its current fiscal year. A true and correct copy of said notice is attached hereto as Exhibit “C”.
14.
Additionally, should Defendant fail to pay the accelerated balance due for the fiscal year
within which the notice referenced above was provided, this Complaint shall constitute notice to
Defendant of Plaintiff's intention to accelerate the assessments due for each subsequent fiscal year
in accordance with the terms of the Association’s Declaration.
15.
Pursuant to the Act and the Declaration, the Association is authorized to file suit to recover
from Defendant unpaid assessments, accruing late charges, accruing interest at the rate of 10% per
annum in the current amount of $4,226.45, all costs of collection and all reasonable attorney's fees
actually incurred.
16.
The Association seeks a judgment from this Court awarding the Association the unpaid
assessments owed by Defendant to the Association in the amount of $16,644.00 along with the
accrued late charges, accrued interest in the current amount of $4,226.45, all costs of collection
and all reasonable attorney's fees actually incurred by the Association in taking this collection
action against Defendant.
COUNT II - FORECLOSURE OF LIEN
17.
The Association hereby incorporates Paragraphs 1-16 of this Complaint as if each said
paragraph were restated herein.
18.
O.C.G.A. § 44-3-109(a) provides, in relevant part:
All sums lawfully assessed by the Association against any unit
owner or condominium unit, whether for the share of the common
expenses pertaining to that condominium for fines, or otherwise ...
shall, from the time the same become due and payable ... constitute
a lien in favor of the Association on the condominium unit...
19.
The unpaid assessments referenced in Paragraph 12 above, constitutes a statutory lien on
the Subject Property in favor of the Association pursuant to the Act and the Declaration.
20.
O.C.G.A. § 44-3-109(c) provides in relevant part:
The lien may be foreclosed by the association by an action,
judgment, and foreclosure in the same manner as other liens for the
improvement of real property, subject to superior liens or
encumbrances ....
21.
Consequently, the Association is entitled to a Judgment for judicial foreclosure upon the
Association's lien against the Subject Property subject to all superior liens or encumbrances.
COUNT III - ATTORNEY FEES
22.
The Association hereby incorporates Paragraphs 1-21 of this Complaint as if each said
paragraph were restated herein.
23.
The Act and the Declaration provide that the Association is entitled to recover from
Defendant all reasonable attorney's fees actually incurred in collecting past due assessments and
for foreclosure upon the Association's lien.
WHEREFORE, the Association prays for the following relief:
(a) for an award of unpaid assessments and accrued late fees in the principal amount
of $16,644.00 plus accruing interest on the past due amount at the rate of 10% per
annum in the current amount of $4,226.45;
(b) for an award of all costs of collection and all reasonable attorney's fees actually
incurred by the Association in the collection of said unpaid amounts pursuant to the
Act and the Declaration;
(©) for an Order for judicial foreclosure of the Association's lien upon the Subject
Property, subject to all superior liens or encumbrances against the Subject Property;
and
(d) For such other relief as this Court may deem just and proper
Respectfully Submitted.
LAZEGA & JOHANSON LLC
OS ¥
Dan D. Wright,Jr. C
Georgia Bar No. 777731
Attorneys for Plaintiff
P.O. Box 250800
Atlanta, GA 30325
(404) 350-1192
Email: danw@ljlaw.com
2143134
Exhibit “A”
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Amat 4¥al-ST 3
After recording, return to: Wetssuan, Nowack, Curry & Zaleon
' 181 Fourteenth Street, Second Floor
Atlanta, Georgia 30309
pees
Kd 5# 10
STATE OF GEORGIA Reference: Deed Book 28$5
Page 447
COUNTY OF DEKALB
Et MENT 20 THE Ds on 2 OVEN COND ON
WHEREAS, Fairington Associates, a partnership, recorded a
Declaration of Covenants, Conditions, and Restrictions for Fontaine
Condominium, on July 27, 1972, in Deed Book 2855, Page 447, et seq.,
DeKalb County, Georgia Records ("Original Declaration" : and
WHEREAS, the Original Declaration has been amended by amendments
recorded in the DeXalb County, Georgia Records as follows:
4
Rats Deed Book/Page atso en
33oS 2
September 28, 1976 3864/250, et seq. 3
March 10, 1977 3637/4202, et seq. oe A
May 29, 1985 2/585, et seq. 3
April 32, 1987 5810/29,
March 11, 1992 7205/113, et seq. ny and =z
WHEREAS, a plat related to the Condominium was filed in 8 2
Condominium Plat Book 1, Page 86, DeKalb County, Georgia Records; and
WHEREAS, floor plans relating to the Condominium vere filed in
the Condominium Pile Cabinet of the DeKalb County, Georgia Records;
and
WHERBAS, Article XIII, Section 2 of the Original Declaration
Provides for amendment of the Original Declaration with the approval
of all of the directors and owners holding sixty-six and two-thirds
(66 2/3¥) percent of the total vote of the Association; aad
WHEREAS, all of the directors and owners holding at least sixty-
six and two-thirda (66 2/3%) percent of the total Association vote
desire to amend the Declaration and have approved this Amendment;
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WHERBAS, in accordance with Article XIV, Section 1 of the
By-Laws of Fontaine Condominium Association, Inc. (*Original
By-Laws"), the Original By-Laws may be amended at a regular or
special Association meeting, by a vote of a majority of a quorum of
members present in person or by proxy at such meeting; and
WHEREAS, at least a majority of a quorum of menbere present in
Person or by proxy at an Association meeting have approved thie
amendment to the Original By-Laws; and
WHEREAS, these Amendments do not affect materially any rights of
any existing Mortgage holder; provided, hovever, in the event a court
of competent jurisdiction determines that these Amenduents do affect
materially any righte of any existing Mortgage holder without such
Mortgage holder’s consent in writing to these Amendments, then these
Amendments shall not be binding on the Mortgage holder so involved,
unle: such Mortgage holder consents to these Amendmente; and if such
consent is not forthcoming, than the provisions of the Original
Declaration effective prior to this Amendment shall control with
respect to the affected Mortgage holder;
NOW, THERBPORE, the Original By-Laws and the Original
Declaration, and all amendments and exhibits thereto, are hereby
stricken in their entirety and the following is simltaneously
substituted therefor:
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528
AMENDED AND RESTATED DECLARATION OF CONDOMINIUM
FOR
FONTAINE CONDOMINIUM
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- CONTENTS
TABLE OF -
DEFINITIONS.
Ir ASSOCIATION.
ur, PROPERTY RIGHTS AND DESCRIPTION; PLATS
UNITS TES; AND LIMITED
es
Iv ARCHITECTURAL CONTR we 8
MAINTENANCE
VI ASSESSMENTS 20
vit ADMINISTRATION a4
viIT INSURANCE AND CASUALTY LOSSES 15
Ix, CONDEMNATION. . 20
USE RESTRICTI 20
Xx SALE AND LEASING ‘OF UNITS. 26
XII 26.27
XIII GENERAL PROVISIONS. . pee 2B
xv. ‘SBVBRABL 26
MORTGAGER’S RIGHTS. 30
~ UIST
EXHIBITS
OF -
DESCRIPTION OF SUBMITTED PROPERTY...... . ons
ALLOCATION OF UNDIVIDED INTEREST IN THE
APPURTENANT TO UNIT, VOTING RIGHTS AND LIABILITIES
POR COMMON EXPENSES... ieee BBE
BY-LAWS. . there ee eee rete cree teen ee decent eM
ENGINEER'S CERTIFICATION. .........0.50-5+ . “p*
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ARTICLE T
DEFINITIONS
Section 1. Act means the Geo: ia Condominium Act, 0.C.G.A,
Section 44-3-70, et seq. (Michie 1982), as guch act may be amended.
Section 2 Assesement moana an Owner's share of the common expenses
which from time to time is a: ed against an Owner by the
Awsociation in the manner hei provided
Section 3. Association means the Fontaine Condominium Association,
Inc., its successors a igns
Section 4. Soerd or Beard of Directare means the elected body
responsible for management and operation of the Assoc:
Section S. Building means the composite of all adjoining Units
couprising « wingle residential structure as shown on the master plot
plan.
Section 6. Building Muaber means the number, letter or combination
thereof designating a building in the Condominium documents, or the
master plot plan.
Section 7. By-Laws mean the -Laws of Fontaine Association, Inc.,
attached hereto as Exhibit * ‘and incorporated herein by thie
reference
Blements mean those portions of the property
subject to this Declaration which are not included within the
indaries of a Unit, as more particularly described herein.
~
Section 9. enses means the expenses incurred or
anticipated to be incurred by the Association for the general benefit
of the Condominium, including, but not limited to, those expenses
incurred for maintain: ring, replacing, and operating the
Common Blements, incli ding the
Limited Common Elements.
Section 10. Communs Wide Standard means the standard of conduct,
maintenance, or other activity generally prevailing vithin the
Condominium. ‘Such standard may be more specifically determined by
the Board and the Architectura: Control Comittee
@ Section 11. Condominium means all that property described in
Exhibit "A," attached hereto and incorporated herein
referenct
Declaration
submitted to the provisions of the Act by this
this
Section 12, Condominium Instruments mean this Declaration and all
exhibits hereto, including the By-Laws and the plate and plans, all
as may be supplemented or amended
Section 13 Eligible Mortgage Holder means those holders of first
mortgage cured by Condominium Units who have requested notice of
certain as set forth herein
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ection 14. Linited Comson Elemants mean a portion of the Common
lements reserved for the exclusive use of those entitled to occupy
(2) or more, but less than all, Units, as more particularly set
for th herein.
fection 15, Majority means those eligible vot + Owne: rt or other
oup as the context may indicate totalling mor fifty (508)
iecent of the total eligible number.
dectton 16. Mortgs shall refer to any mortgage, deed to secure
of trust ; or other transfer or conveyance for the purpose
uring the performance of an obligation, including, but not
Satee d to, a transfer or conveyance of fee title for such purpose.
Section 17. Mortgagee or Mortgage Holder means the holder of any
Mortgage.
dection 18. Yt means any Person occupying all or any portion
gf a Unit for any period of time, regardless of whether such Person
is a tenant or the Owner of such Unit.
jection 19, means the record title holder of a Condominium
Init, but shall not include a Mortgage Holder.
jection 20. Person means any individual, corporation, firm,
jociation, partnership, trust, or other legal entity.
tion 22, Unit shall mean that portion of the Condominium intended
individual Ownership and use as more particularly described
t jerein and shall include the undivided Ownerehip in the Common
ements assigned to the Unit by thie Declaration.
ASSOCIATION KEXDERSET? AND VOTING RIGHTS
ection 1. Membership. All Unit Owners, by virtue of their Ownership
gf a tee or undivided fee interest in any Unit, excluding Persons
Holding such interest under a Mortgage, are members of Fontaine
dinium Association, Inc., and, except as otherwise rovided
Herein or in the By-Laws, shall be entitled to vote on all matters
upon which members of the Association are entitled to vote pursuant
do the Declaration and in accordance with the By-Laws. Subject to
the provisions of the Condominium Instruments, each r shall be
qntitled to one (1) vote for each Unit in which he or she holds the
Znterest required for membership, which vote shall be appurtenant to
@uch Unit and shall be weighted in accordance with the percentage of
yndivided interest in the Common Elements attributable to the Un:
qs set forth on Exhibit "B® attached hereto and by reference
incorporated herein.
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ARTICLE ITZ
PROPERTY RIGHTS AND DESCRIPTION: pars AD PLANS)
‘UMITS AND BOUMDARIES
Cowmtcat ELEONETE AMD LIKITED COMMCH RLINOONTS
Section 1. Description; Plats and Plans. The Condominium
subject to this Declaration and the Act is located in Land Lot 55, of
the 16th District of Dekalb County, Georg: being more particulariy
cribed in Exhibit *A" attached to chis ration, which exhib.
im specifically incorporated herein by this reference. A plat of
surve rel i to the Condominium has been filed in Condominium Plat
Book 2, Page 86, of the DeKalb County, Georgia records. Floor plans
relating to ium have been filed in the Condominium Floor
Plan Cabinet of the DeKalb County, Georgia recort ‘The plat of
survey and plans are inco1 rated herein by reference as fully as if
the eame vere set forth in their entirety herein.
Section 2. Condominium Plan, Situated upon the Condominium and
identified on the plat(s) by the numbers 1 through 20 are 20
residential buildings containing a total of 192 Units, constructed
imarily of atucco and wood. The Units are constructed substantially
f{A-1,
in accordance with the floor plans, there being four types of Units
A-2, B-1 and B-2) contained ‘Cond nium,
‘The inmediate Common Zlements to which each Unit has access is
as shovn on said master plot plan and architectural plans ‘Attached
hereto as Exhibit *"D' and incorporated herein by reference is the
verified statement of a registered professional engineer certifying
that the plat of survey and architectural plans fully and accurately ~
depict the layout, location, number/letter identifications ai
dimensions of the buildings and Unite as buile.
Section 3. Unite. Rach Unit consists of a dwelling and its
appurtenant percentage of undivided interest in the Common Elements
hovn on &xhibit *B* attached to this Declaration and incorporated
ein by this reference Bach Unit shall be conveyed as a
separately designa egally described treehol entate, subject
to the Act and the Condominium Instrumente. Bach Owne! 1 be
entitled to the exclusive Ownership and ion of his Unit,
subject to the provisions of the Act and this Declaration
The Units are depicted on the plats of survey and the plans
Subject to the following, each Unit shall include all of the space
within the boundaries thereof. The lower boundary of each Unit shall
be the horizontal plane of the undecorated finished floor extended to
an intersection with the perimetrical boundaries ‘The upper boundary
of each Unit shall be the horizontal plane of the undecorated
finished ceiling extended to an intersection with the spetimetrical
boundaries. The perimetrical boundaries of each Unit sha:
vertical planes of the undecorated finished interior of the walls
bounding the Unit extended to intersections with each other and with
the upper and lower boundaries; provided, however, that, where a
terrace or balcony is situated adjacent to a Unit, the boundaries of
euch Unit shall emed extended to include the same.
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Conduits, pipes, ducts, plumbing, wiring and other
facatities for furnishing of utility services to the Units and
Blenent are Common Rlements and are excluded fron said
ite although located, in part, within the boundaries thereo!
ms ap of each Unit shall include, and there shall pase with each
rtenances thereto whether or not separatel: cribed,
at of the rights, title and interest of a t Omer to
dominium, which shall include but not be limited to an undivided
interest in the Common Elements, membership in the Association and an
undivided interest in the funds and ete held by the Association.
In interpreting deeds and plans, the existing physical
boundaries of a Unit as originally constructed or of a Unit
yeconatructed in substantial accordance with the original plans
erect shall be conclusively p. umed to be ite boundaries rather
the metes and expres ¢ in any deed or plan, r rdlest
df settling or late: movement of the building in which the Unit w
cated, and rega: 8 of minor var! between the boundaries
on the plans or in a deed and those of the Unit.
fection 3. Common Blements. The Common Elements consist of all
é
tions of the Condominium not located within the boundaries of a
it. Ownership of the Common Blements shall be by che Unit Owners
tenants-in-common. The percentage of undi, interest in and to
e Common Elements attributable to each Unit shall be as set forth
in Exhibit "Be Such percentages of undivided interest ou
red only by the consent of all Own ad Mort: (or euch
er number of Owners and Mortgagees may hereafter be prescribed
the Act) expressed in a duly recorded amendment to this
claration
‘The Common Elements shall remain undivided, and no Owner no:
ther person shall bring any action for partition or division of the”
i
hole or any part thereof except as provided in the Act. Except as
rovided for Limited Conmon Elements or as otherwise provided herein,
jach Owner and the Association may use the Common Elements for the
& poses for which they are intended, but no such use shall enter or
croach upon the lavful rights of the other 8.
fection 4, Limited Common Elements. Ownership of each Unit shall
qntitle the Owner or Owners thereof to the exclusive use of one
dovered parking space as designated on the plate and plans by the
jame number, letter or combination thereof as may be used to
lesignate the Unit to which such covered parking space appertains. In
iddition, each Owner shall be entitled to the exclusive use of at
je tone storage area as may be designated from tine to time by the
sociation by means of placing thereon in a conspicuous place and
inner the same number, letter or combination thereof as may be
ignate the Unit to wnich such stora areaal tains. Said
torage areas are eituated in the basenen! of build: ings 18 and 19,
neath the stairs leading to the second floor of pullding ‘through
0 and adjacent to certain of the second floor balcon:
‘The Association's Board, without need for a nenberahip vote, is
hereby authorized to ign and to reassign Limited Common Element!
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Provaded that any such assignnent of reassignment shall be made in
accordance with the provisions of Sect: 82 tb) and ic) of che
act. ‘A Common Element not previously jned as a Limited. Common
Element may be so assigned by the Board, without the need for a vote
of the Association, upon written application to the Association by
the Unit Owner or Owners for whose exclusive use such Common Blement
ig requested. Upon such application and approval, the Association
shall prepare and execute an amendment to the Declaration assigning
the Common Element a Limited Common Element, which amendment shall
be executed by the or Owners making such application. Such
amendment shall be delivered and become effective as provided in
Section 44-3-82 of the Act.
ARTICLE IV
Section 1. Architectural Standards, Except as provided herein, no
Owner, Occupant, or any other person may make any encroachment onto
he Common Elements or Limited Common Elements, or make any exterior
change, al ation, or construction (including painting and
ui eaping), nor erect, place or post any object, 4 , antenna,
clot! line, light, storm door or window, artificial vegetation,
exterior aculpture, or thing on the exterior of the buildings, in any
windows, on any Limited Comnon Blenent or on any other Common
Blements, without firet obtaining the written approval of the
Architectural Control Committee (hereinafter *ACC") ‘The standard
for approval of such improvements shall include, but not be limited
to, aesthetic consideration, materials to be used. harmony with the
the’ Locacton fe ofrelation
the existing buildings, Units and structures,
to surrounding structures and topography.
Applications for approval of any such architectural modification
al 1 be in wricing and shall provide such information as the ACC maj
reasonably re re. ‘The ACC or ite designated representative shall
be the sole arbiter of such application and may withhold approval for
any reason, including purely aesthetic considerations, and it shall
be entitled to stop any construction which is not in conformance with
approved plans. ‘The Board or the ACC may publish written
architectura! standards for exterior and Common Element alterations
or additions. .nd any request in substantial compliance therewith
shall be appr.ved; provided, however, h auch requested change
shall be in harmony with the external design of the existing
buildings and Units and the location in relation to surrounding
structures and topography of the vicinity ‘The ACC or the Board may
allow such encroachmenta on the Blements and Limited Common
Elements as it deems acceptable.
In the event that the ACC or ite designated representative fails
to approve or to disapprove such application within thirty (30) days
at F the applicati all information ag the ACC may reasonably
require have been submitted, its approval will not be required and
nis Section will be deemed complied with; provided, however, even
e requirements of this Section are satiefied, nothing nerein shall
auchorize anyone to conatzuct or maintain any structure or
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improvement that is otherwise in violation of the Declaration, the
By-Lawe, or the ru: and regulations,
Section 2. Architectural Control Committee. The ACC shall
chnaticute a standing e ttee of the Association. The ACC shall
consist of the Board unl the Board delegates to other Owners ¢i
authority to serve on the ACC. The Board may delegate such authority
tb individual Owners by resolution, or the Board may call for a
ecial election by the Association to’select the Owners to whom the
authority shall be delegated. At all tines, however, the chairperson
of the ACC shall be a Board
Bpction 3. Condition of 1, As a condition of approval for a
i jented architectural modificaci. on, addition or alteration, an
x, on behalf of himself/herself and his/her
jors-in-interest, shall assume all responsibilities for’
maintenance, repair, replacement and insurance of such modification,
addition, or alteration. In the Board's or ACC's discretion, an
Owner may be required to acknowledge such in a written instrument in
recordable form on behalf of himself or herself and all
successors-in- interest.
é
ction 4. Limitation of Liability. Review and approval of a:
application hereunder may be made on any basis, including solely the
eis of aesthetic considerations only, and neither the Board nor the
shall bear any responsibility for enauring the structural
integrity or soundness of approved construction or modifications, nor
for ensuring compliance with building codes, zoning regulations and
other governmental requirements. Neither the Association, the Board,
the ACC, or member thereof shall be held liable for any injury,
damages or loss arising out of the manoer or quality of app:
construction on or modifications to any Unit.
Section 5. Wo Waiver of Future Approvals. Bach Owner acknowledges
that the Board and ACC members will change fram time to time and that
interpretation, application and enforcement of the architectural
standards may vary accordl: Ly joard or the ACC approval
of any
Proposals, plans and speci ical 3 or drawings for any work done or
Proposed, or in connection with any other matter requiring the
et proval and consent of the Board or the ACC, shall not be deemed to
titute a waiver of any right to withhold oval or consent as
any similar proposals, plans and specifications, drawings, or
matters whatever subsequently or additionally submitted for approval
or consent.
Section 6. Baforcement. Any construction, . alteration, or other work
done in violation of this Article shall be
nonconforming. ‘Upon written request from the Board, Ownere shall, at
their own cost and je, remove such construction, alteration, or
other work and shall zestore the property to substantially the same
condition as existed prior to the construction, alteration, or otber
work. Should an Owner fa: to remove and restore as require
hereunder, the Board or ite designees shall have the right to enter
the property, remove the violation restore the property to
substantially the same condition as existed prior to the
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construction, alteracion or other work. All costs thereof, including
eo. reasonable attorney's fees, shall be an assessment and lien against
such Unit.
In addition, the Board shall have the authority and standing, on
behalf of the Association, to impor reasonable fines and to pursue
all legal and equitable remedies a ilable to enforce the provisions
of thig Article and it or the C's decisions.
If any Owner or Occupant makes exterior change, alteration,
or construction (including landscapi ag} upon the Common’ Element: a
violation of this Section, he or does so at his or her sole risk
and expense. Board may require that the change, alteration or
construction remain on the Common Elements without reimbursement to
the Owner or Occupant for any expense he or she may have incurred in
making the change, alteration or construction,
ARTICLE V
Section 1. Unites. Maintenance of a Unit shall be the responsibility
of the Owner thereof, which responsibility shall include, but not be
limited to, maintenance, x, and replacement, ject to the
provisions of Article VIII he: eof, and at the expense of such Ovner,
of al portions of the Unit, including, but not limited to, all
doors door frames thresholds and hardware; glass eurfaces, windows,
window frames, sills and hardware; screens; heaters; hot water
heaters; refrigerators, dishvashers, and other appliances; drains;
plunbing f: res and connections; interior surfaces of all walls,
floors and ceilings; the air conditioning coupressor serving the
Unit; and all pipes, lines, ducts, conduits, or other apparatus which
gerve only the Unit, from the int where such item intersects the
boundaries of the Unit (includ: fnng all gas, electricity, water, sewer,
or air conditioning pipes, ines, ducts, conduits, or other apparatus
serving only the Unit), such to be done without disturbing the rights
of othar Owners. ‘The Owner also shall be responsible for maintenance
and repair of the sheetrock on the Unit side of the vertical and
upper horizontal boundaries of the Unit.
Notwithstanding the foregoing, the Association shall maintain,
repair and replace at the Association’s expense all portions of a
Unit, except interior aurfaci contributing to the support of the
building in which the Unit i: located, which portions shall includ
but not be limited to, load- aring columns and load. ring wall
No Owner shall do any work which, in the Board’s opinion, would
jeopardize the soundness and safety of the property, reduce the value
thereof or impair any easement or hereditament without in eve:
the unanimous consent of all the other Unit Owners being fi fae
obt
In addition, each Unit Owner shall have the responsibility:
(a) To keep in a neat, clean and sanitary condition any
Limited Coumon Elements serving bis or her Unit.
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(b) To perform his or her responsibilit: in such manner so
ae not to unreasonably disturb other persons in ot x Units
To promptly report to the Association or its agent any
defect or need for'repeizs, for which che association ap i sponsible.
(a) To pay for the cost of repairing, replacing or
cleaning up any item which 1e the responsibility of the Unit owner
it which responsibility such Owner fails or refuses to dischar:
(which the Association shall have the right, but not the obligation,
to do), or to for the cost of repairing, eplac: , or cleaning
up any item wh: Eek, although the Association 8 res; sponsibility, is
necessitated by ré ful of negligentact of the Owner,
his/her fanily, tenants org with the cost thereof to be added
to and become part of the Unit Ovaer's next chargeable assesanent.
Section 2 Common Blesents. Maintenance, repair, replacement and, in
the Board’s discretion, improvement of the Blementa, other
than Limited Common Elements as provided in Section 3 below, shall be
the responsibility of the Association, which responsibility shall
include, but not be limited to, maintenance, repair replacement
of all trees, shrubs, gras walks, and other improvements comprising
a part of the Coumon Blements ‘The Association‘ maintenance
responsibility also shall i: ude roofs and roof rte Lincluding.
but not limited to roof joists and trusses, crossbeams, root
and underlaying, and shingles or other cover! and surface
materials: paving; brick; guttera and downspouts Bxcept to the
extent that insurance requ: to be maintained or maintained by the
Association covers any damage or loss and except as otherwise
Provided herein, the Asgociation shall not be responsible for any
maintenance or repair to any Unit
Section 3. Limited Common Elements. Maintenance, repair al
Zeplacement of al!’ erorage areas cesprising a porticn of the Linited
Common Elemente shall be the sole responsibility of the individual
Owners of the Units appurtenant thereto and not in any manner the
responsibility of the Association
Section 4, Yailure to Maintain. Te the Board determines that any
Owner has failed or refused to discharge properly his or
obligation vith regard to the maintenance, repair, or replacenent of
items of which he or she is responsible hereunder, then the
Association shall give the Owner written notice of the such need and
Of the Association’s right to provide necessary maintenance,
or replacement at the Owner’s cost and e The notice shall ect
forth with reasonable particularity the maintenance, repair, or
replacement de ry by t
Unless the Board determines that an emergency exis the ower
shall have ten (10) days within which to complete maint
repair, or if the maintenance or repair ie not capable of eogpletion
within such tine period, to comence replacenent or re in ten
(20) day Tf the Board determine that (i) an emergency existe oF
(id) that an Owner has not lied with the demand givenby the
Association as herein provided; then the Association may provide any
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@
dasa
8538
auch maincenance, re i or replacement at the Owner’ sole cost and
such costs shal) added to and become a part of the
jament to which such Owner 9 subject, shall become and be a lien
against the Unit, and stall be collected as provided herein for the
collection of assesamenta.
If the Board determines that the need for maintenance or repair
is in the Common Zlements and is caused through the willful or
negligent act of ai owner, or Occupant or their ¢ Y gue
lessees, or invite then the Association may asa et of any
such maintenance, repair, or replacement against the owner’ or
Occupant's Unit, shall become a lien against the Unit, and ghall be
collected as provided herein for the collection of assessments.
Section 5. Association Responsibilities. The Association shall not
be liable for injury or damage to person or property caused by the
elements or ‘the Owner of an ‘Unit, or any other person, or
resulting from any utility, 2, snow or ice which may leak or flow
from any portion of the Common Elemants or from an) » drain,
Conduit” Eppitance or equipnent watch the Association a responsible
to maintain hereunder ‘The Association shall not be liable to the
Ovner of any Unit or such Owner's Occupant, guest, or family, for
loss or damage, by theft or otherwise, of any property which my be
stored in or upon any of the Common Blements. ‘The Association shall
not be Liable to aay Omer, of any Oyner’s Occupant, quest or family
for x injury in whole or in part
Aatociation™ 2 failure to discharge its responsibilities under this ~
uch damage or in: jury is not a foreseeable, natural
Artic’
responsibilities
1
Maule of the Association's taf ure to discharge ite
No diminution or abatement of at mente shall be
claimed or allowed by reason of any alleged failur
Association to take some action or perform some function required to
be taken or performed by the Association under this Declaration, or
for inconvenience or discomfort ai from the making of repairs or
improvementa which are the responsibility of the
Preview
IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA FONTAINE CONDOMINIUM ) ASSOCIATION, INC., ) ) Plaintiff, CIVIL ACTION Vv. FILE NO. CHRISTOPHER HINDS AS HEIR TO THE ESTATE OF MOSES G. HINDS, Defendant. COMPLAINT FOR JUDICIAL FORECLOSURE OF LIEN AND DAMAGES COMES NOW, Fontaine Condominium Association, Inc. (hereinafter the ““Association”), Plaintiff in the above-styled action, and files this, its Complaint for Judicial Foreclosure of Lien and Damages, respectfully showing this Court as follows: 1 The Association files this Complaint seeking judicial foreclosure of the Association's lien against the property owned by Defendant and for damages arising under the Georgia Condominium Association Act, O.C.G.A. § 44-3-70, et_seq. (hereinafter the “Act”) and the Association’s governing documents (hereinafter the “Declaration”). A true and correct copy of the Declaration is attached hereto as Exhibit “A”. 2 The Association is a Georgia non-profit corporation created pursuant to the Act and the Declaration. The Association is responsible for, among other things, the maintenance of the common elements of the Fontaine Condominium Development (hereinafter the “Development”). 3 The Association is authorized to assess condominium assessments against the condominium units located within the Development and to collect such assessments from the owners of the condominium units to obtain the funds necessary to carry out its maintenance responsibilities. 4 Defendant is the owner of real property located within the Development known as 93 Rue Fontaine, Unit 93-10, Lithonia GA 30038 (hereinafter the “Subject Property”). 5 Defendant is subject to the jurisdiction of this Court and venue is proper herein. 6 Defendant resides and may be served at 93 Rue Fontaine, Unit 93-10, Lithonia GA 30038. 7. Defendant is subject to all the terms, conditions, and requirements of the Declaration and the Act by virtue of Defendant's ownership of Subject Property. 8 The Subject Property is subject to all the terms, conditions, and requirements of the Declaration and the Act by virtue of its location within the Development. COUNT I - COLLECTION OF UNPAID ASSESSMENTS 9 The Association hereby incorporates Paragraphs 1-8 of this Complaint as if each said paragraph were restated herein. 10. Pursuant to the Act and the Declaration, each owner of each condominium unit in the Development agrees to pay the Association assessments for the maintenance of the common elements of the Development. ll. Defendant has failed to pay the assessments levied by the Association upon the Subject Property. 12. Defendant is indebted to the Association in the current principal amount of $16,644.00, through and including April 17, 2024. A statement of Defendant's account is attached hereto as Exhibit “B”. Additionally, Defendant is liable to the Association for all amounts that may come due after the filing of this complaint, but prior to the entry of the final judgment. 13. The Association provided Defendant with written notice of its intent to file this suit in the event Defendant did not pay the past due assessments to the Association and its intent to accelerate and seek recovery of any remaining amounts that will become due and payable to the Association for its current fiscal year. A true and correct copy of said notice is attached hereto as Exhibit “C”. 14. Additionally, should Defendant fail to pay the accelerated balance due for the fiscal year within which the notice referenced above was provided, this Complaint shall constitute notice to Defendant of Plaintiff's intention to accelerate the assessments due for each subsequent fiscal year in accordance with the terms of the Association’s Declaration. 15. Pursuant to the Act and the Declaration, the Association is authorized to file suit to recover from Defendant unpaid assessments, accruing late charges, accruing interest at the rate of 10% per annum in the current amount of $4,226.45, all costs of collection and all reasonable attorney's fees actually incurred. 16. The Association seeks a judgment from this Court awarding the Association the unpaid assessments owed by Defendant to the Association in the amount of $16,644.00 along with the accrued late charges, accrued interest in the current amount of $4,226.45, all costs of collection and all reasonable attorney's fees actually incurred by the Association in taking this collection action against Defendant. COUNT II - FORECLOSURE OF LIEN 17. The Association hereby incorporates Paragraphs 1-16 of this Complaint as if each said paragraph were restated herein. 18. O.C.G.A. § 44-3-109(a) provides, in relevant part: All sums lawfully assessed by the Association against any unit owner or condominium unit, whether for the share of the common expenses pertaining to that condominium for fines, or otherwise ... shall, from the time the same become due and payable ... constitute a lien in favor of the Association on the condominium unit... 19. The unpaid assessments referenced in Paragraph 12 above, constitutes a statutory lien on the Subject Property in favor of the Association pursuant to the Act and the Declaration. 20. O.C.G.A. § 44-3-109(c) provides in relevant part: The lien may be foreclosed by the association by an action, judgment, and foreclosure in the same manner as other liens for the improvement of real property, subject to superior liens or encumbrances .... 21. Consequently, the Association is entitled to a Judgment for judicial foreclosure upon the Association's lien against the Subject Property subject to all superior liens or encumbrances. COUNT III - ATTORNEY FEES 22. The Association hereby incorporates Paragraphs 1-21 of this Complaint as if each said paragraph were restated herein. 23. The Act and the Declaration provide that the Association is entitled to recover from Defendant all reasonable attorney's fees actually incurred in collecting past due assessments and for foreclosure upon the Association's lien. WHEREFORE, the Association prays for the following relief: (a) for an award of unpaid assessments and accrued late fees in the principal amount of $16,644.00 plus accruing interest on the past due amount at the rate of 10% per annum in the current amount of $4,226.45; (b) for an award of all costs of collection and all reasonable attorney's fees actually incurred by the Association in the collection of said unpaid amounts pursuant to the Act and the Declaration; (©) for an Order for judicial foreclosure of the Association's lien upon the Subject Property, subject to all superior liens or encumbrances against the Subject Property; and (d) For such other relief as this Court may deem just and proper Respectfully Submitted. LAZEGA & JOHANSON LLC OS ¥ Dan D. Wright,Jr. C Georgia Bar No. 777731 Attorneys for Plaintiff P.O. Box 250800 Atlanta, GA 30325 (404) 350-1192 Email: danw@ljlaw.com 2143134 Exhibit “A” age3a 2142 0518 Amat 4¥al-ST 3 After recording, return to: Wetssuan, Nowack, Curry & Zaleon ' 181 Fourteenth Street, Second Floor Atlanta, Georgia 30309 pees Kd 5# 10 STATE OF GEORGIA Reference: Deed Book 28$5 Page 447 COUNTY OF DEKALB Et MENT 20 THE Ds on 2 OVEN COND ON WHEREAS, Fairington Associates, a partnership, recorded a Declaration of Covenants, Conditions, and Restrictions for Fontaine Condominium, on July 27, 1972, in Deed Book 2855, Page 447, et seq., DeKalb County, Georgia Records ("Original Declaration" : and WHEREAS, the Original Declaration has been amended by amendments recorded in the DeXalb County, Georgia Records as follows: 4 Rats Deed Book/Page atso en 33oS 2 September 28, 1976 3864/250, et seq. 3 March 10, 1977 3637/4202, et seq. oe A May 29, 1985 2/585, et seq. 3 April 32, 1987 5810/29, March 11, 1992 7205/113, et seq. ny and =z WHEREAS, a plat related to the Condominium was filed in 8 2 Condominium Plat Book 1, Page 86, DeKalb County, Georgia Records; and WHEREAS, floor plans relating to the Condominium vere filed in the Condominium Pile Cabinet of the DeKalb County, Georgia Records; and WHERBAS, Article XIII, Section 2 of the Original Declaration Provides for amendment of the Original Declaration with the approval of all of the directors and owners holding sixty-six and two-thirds (66 2/3¥) percent of the total vote of the Association; aad WHEREAS, all of the directors and owners holding at least sixty- six and two-thirda (66 2/3%) percent of the total Association vote desire to amend the Declaration and have approved this Amendment; meorG830e' 518, woe PO 08838 8519 WHERBAS, in accordance with Article XIV, Section 1 of the By-Laws of Fontaine Condominium Association, Inc. (*Original By-Laws"), the Original By-Laws may be amended at a regular or special Association meeting, by a vote of a majority of a quorum of members present in person or by proxy at such meeting; and WHEREAS, at least a majority of a quorum of menbere present in Person or by proxy at an Association meeting have approved thie amendment to the Original By-Laws; and WHEREAS, these Amendments do not affect materially any rights of any existing Mortgage holder; provided, hovever, in the event a court of competent jurisdiction determines that these Amenduents do affect materially any righte of any existing Mortgage holder without such Mortgage holder’s consent in writing to these Amendments, then these Amendments shall not be binding on the Mortgage holder so involved, unle: such Mortgage holder consents to these Amendmente; and if such consent is not forthcoming, than the provisions of the Original Declaration effective prior to this Amendment shall control with respect to the affected Mortgage holder; NOW, THERBPORE, the Original By-Laws and the Original Declaration, and all amendments and exhibits thereto, are hereby stricken in their entirety and the following is simltaneously substituted therefor: Wo GG90 M519 . wo deaae 528 AMENDED AND RESTATED DECLARATION OF CONDOMINIUM FOR FONTAINE CONDOMINIUM = - a. eee a 08838 O52t - CONTENTS TABLE OF - DEFINITIONS. Ir ASSOCIATION. ur, PROPERTY RIGHTS AND DESCRIPTION; PLATS UNITS TES; AND LIMITED es Iv ARCHITECTURAL CONTR we 8 MAINTENANCE VI ASSESSMENTS 20 vit ADMINISTRATION a4 viIT INSURANCE AND CASUALTY LOSSES 15 Ix, CONDEMNATION. . 20 USE RESTRICTI 20 Xx SALE AND LEASING ‘OF UNITS. 26 XII 26.27 XIII GENERAL PROVISIONS. . pee 2B xv. ‘SBVBRABL 26 MORTGAGER’S RIGHTS. 30 ~ UIST EXHIBITS OF - DESCRIPTION OF SUBMITTED PROPERTY...... . ons ALLOCATION OF UNDIVIDED INTEREST IN THE APPURTENANT TO UNIT, VOTING RIGHTS AND LIABILITIES POR COMMON EXPENSES... ieee BBE BY-LAWS. . there ee eee rete cree teen ee decent eM ENGINEER'S CERTIFICATION. .........0.50-5+ . “p* : W830 521 a a 88830 W522 - ARTICLE T DEFINITIONS Section 1. Act means the Geo: ia Condominium Act, 0.C.G.A, Section 44-3-70, et seq. (Michie 1982), as guch act may be amended. Section 2 Assesement moana an Owner's share of the common expenses which from time to time is a: ed against an Owner by the Awsociation in the manner hei provided Section 3. Association means the Fontaine Condominium Association, Inc., its successors a igns Section 4. Soerd or Beard of Directare means the elected body responsible for management and operation of the Assoc: Section S. Building means the composite of all adjoining Units couprising « wingle residential structure as shown on the master plot plan. Section 6. Building Muaber means the number, letter or combination thereof designating a building in the Condominium documents, or the master plot plan. Section 7. By-Laws mean the -Laws of Fontaine Association, Inc., attached hereto as Exhibit * ‘and incorporated herein by thie reference Blements mean those portions of the property subject to this Declaration which are not included within the indaries of a Unit, as more particularly described herein. ~ Section 9. enses means the expenses incurred or anticipated to be incurred by the Association for the general benefit of the Condominium, including, but not limited to, those expenses incurred for maintain: ring, replacing, and operating the Common Blements, incli ding the Limited Common Elements. Section 10. Communs Wide Standard means the standard of conduct, maintenance, or other activity generally prevailing vithin the Condominium. ‘Such standard may be more specifically determined by the Board and the Architectura: Control Comittee @ Section 11. Condominium means all that property described in Exhibit "A," attached hereto and incorporated herein referenct Declaration submitted to the provisions of the Act by this this Section 12, Condominium Instruments mean this Declaration and all exhibits hereto, including the By-Laws and the plate and plans, all as may be supplemented or amended Section 13 Eligible Mortgage Holder means those holders of first mortgage cured by Condominium Units who have requested notice of certain as set forth herein Teen GG 71:5 22 ayo 98830 4523 ection 14. Linited Comson Elemants mean a portion of the Common lements reserved for the exclusive use of those entitled to occupy (2) or more, but less than all, Units, as more particularly set for th herein. fection 15, Majority means those eligible vot + Owne: rt or other oup as the context may indicate totalling mor fifty (508) iecent of the total eligible number. dectton 16. Mortgs shall refer to any mortgage, deed to secure of trust ; or other transfer or conveyance for the purpose uring the performance of an obligation, including, but not Satee d to, a transfer or conveyance of fee title for such purpose. Section 17. Mortgagee or Mortgage Holder means the holder of any Mortgage. dection 18. Yt means any Person occupying all or any portion gf a Unit for any period of time, regardless of whether such Person is a tenant or the Owner of such Unit. jection 19, means the record title holder of a Condominium Init, but shall not include a Mortgage Holder. jection 20. Person means any individual, corporation, firm, jociation, partnership, trust, or other legal entity. tion 22, Unit shall mean that portion of the Condominium intended individual Ownership and use as more particularly described t jerein and shall include the undivided Ownerehip in the Common ements assigned to the Unit by thie Declaration. ASSOCIATION KEXDERSET? AND VOTING RIGHTS ection 1. Membership. All Unit Owners, by virtue of their Ownership gf a tee or undivided fee interest in any Unit, excluding Persons Holding such interest under a Mortgage, are members of Fontaine dinium Association, Inc., and, except as otherwise rovided Herein or in the By-Laws, shall be entitled to vote on all matters upon which members of the Association are entitled to vote pursuant do the Declaration and in accordance with the By-Laws. Subject to the provisions of the Condominium Instruments, each r shall be qntitled to one (1) vote for each Unit in which he or she holds the Znterest required for membership, which vote shall be appurtenant to @uch Unit and shall be weighted in accordance with the percentage of yndivided interest in the Common Elements attributable to the Un: qs set forth on Exhibit "B® attached hereto and by reference incorporated herein. -2- 00930523. >} wee 08830 a524 ARTICLE ITZ PROPERTY RIGHTS AND DESCRIPTION: pars AD PLANS) ‘UMITS AND BOUMDARIES Cowmtcat ELEONETE AMD LIKITED COMMCH RLINOONTS Section 1. Description; Plats and Plans. The Condominium subject to this Declaration and the Act is located in Land Lot 55, of the 16th District of Dekalb County, Georg: being more particulariy cribed in Exhibit *A" attached to chis ration, which exhib. im specifically incorporated herein by this reference. A plat of surve rel i to the Condominium has been filed in Condominium Plat Book 2, Page 86, of the DeKalb County, Georgia records. Floor plans relating to ium have been filed in the Condominium Floor Plan Cabinet of the DeKalb County, Georgia recort ‘The plat of survey and plans are inco1 rated herein by reference as fully as if the eame vere set forth in their entirety herein. Section 2. Condominium Plan, Situated upon the Condominium and identified on the plat(s) by the numbers 1 through 20 are 20 residential buildings containing a total of 192 Units, constructed imarily of atucco and wood. The Units are constructed substantially f{A-1, in accordance with the floor plans, there being four types of Units A-2, B-1 and B-2) contained ‘Cond nium, ‘The inmediate Common Zlements to which each Unit has access is as shovn on said master plot plan and architectural plans ‘Attached hereto as Exhibit *"D' and incorporated herein by reference is the verified statement of a registered professional engineer certifying that the plat of survey and architectural plans fully and accurately ~ depict the layout, location, number/letter identifications ai dimensions of the buildings and Unite as buile. Section 3. Unite. Rach Unit consists of a dwelling and its appurtenant percentage of undivided interest in the Common Elements hovn on &xhibit *B* attached to this Declaration and incorporated ein by this reference Bach Unit shall be conveyed as a separately designa egally described treehol entate, subject to the Act and the Condominium Instrumente. Bach Owne! 1 be entitled to the exclusive Ownership and ion of his Unit, subject to the provisions of the Act and this Declaration The Units are depicted on the plats of survey and the plans Subject to the following, each Unit shall include all of the space within the boundaries thereof. The lower boundary of each Unit shall be the horizontal plane of the undecorated finished floor extended to an intersection with the perimetrical boundaries ‘The upper boundary of each Unit shall be the horizontal plane of the undecorated finished ceiling extended to an intersection with the spetimetrical boundaries. The perimetrical boundaries of each Unit sha: vertical planes of the undecorated finished interior of the walls bounding the Unit extended to intersections with each other and with the upper and lower boundaries; provided, however, that, where a terrace or balcony is situated adjacent to a Unit, the boundaries of euch Unit shall emed extended to include the same. 3. i GYBOs: 524 ~ —— ———. oe 88838 4525 Conduits, pipes, ducts, plumbing, wiring and other facatities for furnishing of utility services to the Units and Blenent are Common Rlements and are excluded fron said ite although located, in part, within the boundaries thereo! ms ap of each Unit shall include, and there shall pase with each rtenances thereto whether or not separatel: cribed, at of the rights, title and interest of a t Omer to dominium, which shall include but not be limited to an undivided interest in the Common Elements, membership in the Association and an undivided interest in the funds and ete held by the Association. In interpreting deeds and plans, the existing physical boundaries of a Unit as originally constructed or of a Unit yeconatructed in substantial accordance with the original plans erect shall be conclusively p. umed to be ite boundaries rather the metes and expres ¢ in any deed or plan, r rdlest df settling or late: movement of the building in which the Unit w cated, and rega: 8 of minor var! between the boundaries on the plans or in a deed and those of the Unit. fection 3. Common Blements. The Common Elements consist of all é tions of the Condominium not located within the boundaries of a it. Ownership of the Common Blements shall be by che Unit Owners tenants-in-common. The percentage of undi, interest in and to e Common Elements attributable to each Unit shall be as set forth in Exhibit "Be Such percentages of undivided interest ou red only by the consent of all Own ad Mort: (or euch er number of Owners and Mortgagees may hereafter be prescribed the Act) expressed in a duly recorded amendment to this claration ‘The Common Elements shall remain undivided, and no Owner no: ther person shall bring any action for partition or division of the” i hole or any part thereof except as provided in the Act. Except as rovided for Limited Conmon Elements or as otherwise provided herein, jach Owner and the Association may use the Common Elements for the & poses for which they are intended, but no such use shall enter or croach upon the lavful rights of the other 8. fection 4, Limited Common Elements. Ownership of each Unit shall qntitle the Owner or Owners thereof to the exclusive use of one dovered parking space as designated on the plate and plans by the jame number, letter or combination thereof as may be used to lesignate the Unit to which such covered parking space appertains. In iddition, each Owner shall be entitled to the exclusive use of at je tone storage area as may be designated from tine to time by the sociation by means of placing thereon in a conspicuous place and inner the same number, letter or combination thereof as may be ignate the Unit to wnich such stora areaal tains. Said torage areas are eituated in the basenen! of build: ings 18 and 19, neath the stairs leading to the second floor of pullding ‘through 0 and adjacent to certain of the second floor balcon: ‘The Association's Board, without need for a nenberahip vote, is hereby authorized to ign and to reassign Limited Common Element! 4s m8 Qc 55 a | —--- eee evene a 48838 8526 Provaded that any such assignnent of reassignment shall be made in accordance with the provisions of Sect: 82 tb) and ic) of che act. ‘A Common Element not previously jned as a Limited. Common Element may be so assigned by the Board, without the need for a vote of the Association, upon written application to the Association by the Unit Owner or Owners for whose exclusive use such Common Blement ig requested. Upon such application and approval, the Association shall prepare and execute an amendment to the Declaration assigning the Common Element a Limited Common Element, which amendment shall be executed by the or Owners making such application. Such amendment shall be delivered and become effective as provided in Section 44-3-82 of the Act. ARTICLE IV Section 1. Architectural Standards, Except as provided herein, no Owner, Occupant, or any other person may make any encroachment onto he Common Elements or Limited Common Elements, or make any exterior change, al ation, or construction (including painting and ui eaping), nor erect, place or post any object, 4 , antenna, clot! line, light, storm door or window, artificial vegetation, exterior aculpture, or thing on the exterior of the buildings, in any windows, on any Limited Comnon Blenent or on any other Common Blements, without firet obtaining the written approval of the Architectural Control Committee (hereinafter *ACC") ‘The standard for approval of such improvements shall include, but not be limited to, aesthetic consideration, materials to be used. harmony with the the’ Locacton fe ofrelation the existing buildings, Units and structures, to surrounding structures and topography. Applications for approval of any such architectural modification al 1 be in wricing and shall provide such information as the ACC maj reasonably re re. ‘The ACC or ite designated representative shall be the sole arbiter of such application and may withhold approval for any reason, including purely aesthetic considerations, and it shall be entitled to stop any construction which is not in conformance with approved plans. ‘The Board or the ACC may publish written architectura! standards for exterior and Common Element alterations or additions. .nd any request in substantial compliance therewith shall be appr.ved; provided, however, h auch requested change shall be in harmony with the external design of the existing buildings and Units and the location in relation to surrounding structures and topography of the vicinity ‘The ACC or the Board may allow such encroachmenta on the Blements and Limited Common Elements as it deems acceptable. In the event that the ACC or ite designated representative fails to approve or to disapprove such application within thirty (30) days at F the applicati all information ag the ACC may reasonably require have been submitted, its approval will not be required and nis Section will be deemed complied with; provided, however, even e requirements of this Section are satiefied, nothing nerein shall auchorize anyone to conatzuct or maintain any structure or -5- FagyI0 1 526 ae oe _~ — — 88838 8527 @ . improvement that is otherwise in violation of the Declaration, the By-Lawe, or the ru: and regulations, Section 2. Architectural Control Committee. The ACC shall chnaticute a standing e ttee of the Association. The ACC shall consist of the Board unl the Board delegates to other Owners ¢i authority to serve on the ACC. The Board may delegate such authority tb individual Owners by resolution, or the Board may call for a ecial election by the Association to’select the Owners to whom the authority shall be delegated. At all tines, however, the chairperson of the ACC shall be a Board Bpction 3. Condition of 1, As a condition of approval for a i jented architectural modificaci. on, addition or alteration, an x, on behalf of himself/herself and his/her jors-in-interest, shall assume all responsibilities for’ maintenance, repair, replacement and insurance of such modification, addition, or alteration. In the Board's or ACC's discretion, an Owner may be required to acknowledge such in a written instrument in recordable form on behalf of himself or herself and all successors-in- interest. é ction 4. Limitation of Liability. Review and approval of a: application hereunder may be made on any basis, including solely the eis of aesthetic considerations only, and neither the Board nor the shall bear any responsibility for enauring the structural integrity or soundness of approved construction or modifications, nor for ensuring compliance with building codes, zoning regulations and other governmental requirements. Neither the Association, the Board, the ACC, or member thereof shall be held liable for any injury, damages or loss arising out of the manoer or quality of app: construction on or modifications to any Unit. Section 5. Wo Waiver of Future Approvals. Bach Owner acknowledges that the Board and ACC members will change fram time to time and that interpretation, application and enforcement of the architectural standards may vary accordl: Ly joard or the ACC approval of any Proposals, plans and speci ical 3 or drawings for any work done or Proposed, or in connection with any other matter requiring the et proval and consent of the Board or the ACC, shall not be deemed to titute a waiver of any right to withhold oval or consent as any similar proposals, plans and specifications, drawings, or matters whatever subsequently or additionally submitted for approval or consent. Section 6. Baforcement. Any construction, . alteration, or other work done in violation of this Article shall be nonconforming. ‘Upon written request from the Board, Ownere shall, at their own cost and je, remove such construction, alteration, or other work and shall zestore the property to substantially the same condition as existed prior to the construction, alteration, or otber work. Should an Owner fa: to remove and restore as require hereunder, the Board or ite designees shall have the right to enter the property, remove the violation restore the property to substantially the same condition as existed prior to the Fx G$90r527 — | ~- dg83a 8528 construction, alteracion or other work. All costs thereof, including eo. reasonable attorney's fees, shall be an assessment and lien against such Unit. In addition, the Board shall have the authority and standing, on behalf of the Association, to impor reasonable fines and to pursue all legal and equitable remedies a ilable to enforce the provisions of thig Article and it or the C's decisions. If any Owner or Occupant makes exterior change, alteration, or construction (including landscapi ag} upon the Common’ Element: a violation of this Section, he or does so at his or her sole risk and expense. Board may require that the change, alteration or construction remain on the Common Elements without reimbursement to the Owner or Occupant for any expense he or she may have incurred in making the change, alteration or construction, ARTICLE V Section 1. Unites. Maintenance of a Unit shall be the responsibility of the Owner thereof, which responsibility shall include, but not be limited to, maintenance, x, and replacement, ject to the provisions of Article VIII he: eof, and at the expense of such Ovner, of al portions of the Unit, including, but not limited to, all doors door frames thresholds and hardware; glass eurfaces, windows, window frames, sills and hardware; screens; heaters; hot water heaters; refrigerators, dishvashers, and other appliances; drains; plunbing f: res and connections; interior surfaces of all walls, floors and ceilings; the air conditioning coupressor serving the Unit; and all pipes, lines, ducts, conduits, or other apparatus which gerve only the Unit, from the int where such item intersects the boundaries of the Unit (includ: fnng all gas, electricity, water, sewer, or air conditioning pipes, ines, ducts, conduits, or other apparatus serving only the Unit), such to be done without disturbing the rights of othar Owners. ‘The Owner also shall be responsible for maintenance and repair of the sheetrock on the Unit side of the vertical and upper horizontal boundaries of the Unit. Notwithstanding the foregoing, the Association shall maintain, repair and replace at the Association’s expense all portions of a Unit, except interior aurfaci contributing to the support of the building in which the Unit i: located, which portions shall includ but not be limited to, load- aring columns and load. ring wall No Owner shall do any work which, in the Board’s opinion, would jeopardize the soundness and safety of the property, reduce the value thereof or impair any easement or hereditament without in eve: the unanimous consent of all the other Unit Owners being fi fae obt In addition, each Unit Owner shall have the responsibility: (a) To keep in a neat, clean and sanitary condition any Limited Coumon Elements serving bis or her Unit. “7. eonG9GOe 528 _—-—__—~ —. - — - i oe 08830 8529 (b) To perform his or her responsibilit: in such manner so ae not to unreasonably disturb other persons in ot x Units To promptly report to the Association or its agent any defect or need for'repeizs, for which che association ap i sponsible. (a) To pay for the cost of repairing, replacing or cleaning up any item which 1e the responsibility of the Unit owner it which responsibility such Owner fails or refuses to dischar: (which the Association shall have the right, but not the obligation, to do), or to for the cost of repairing, eplac: , or cleaning up any item wh: Eek, although the Association 8 res; sponsibility, is necessitated by ré ful of negligentact of the Owner, his/her fanily, tenants org with the cost thereof to be added to and become part of the Unit Ovaer's next chargeable assesanent. Section 2 Common Blesents. Maintenance, repair, replacement and, in the Board’s discretion, improvement of the Blementa, other than Limited Common Elements as provided in Section 3 below, shall be the responsibility of the Association, which responsibility shall include, but not be limited to, maintenance, repair replacement of all trees, shrubs, gras walks, and other improvements comprising a part of the Coumon Blements ‘The Association‘ maintenance responsibility also shall i: ude roofs and roof rte Lincluding. but not limited to roof joists and trusses, crossbeams, root and underlaying, and shingles or other cover! and surface materials: paving; brick; guttera and downspouts Bxcept to the extent that insurance requ: to be maintained or maintained by the Association covers any damage or loss and except as otherwise Provided herein, the Asgociation shall not be responsible for any maintenance or repair to any Unit Section 3. Limited Common Elements. Maintenance, repair al Zeplacement of al!’ erorage areas cesprising a porticn of the Linited Common Elemente shall be the sole responsibility of the individual Owners of the Units appurtenant thereto and not in any manner the responsibility of the Association Section 4, Yailure to Maintain. Te the Board determines that any Owner has failed or refused to discharge properly his or obligation vith regard to the maintenance, repair, or replacenent of items of which he or she is responsible hereunder, then the Association shall give the Owner written notice of the such need and Of the Association’s right to provide necessary maintenance, or replacement at the Owner’s cost and e The notice shall ect forth with reasonable particularity the maintenance, repair, or replacement de ry by t Unless the Board determines that an emergency exis the ower shall have ten (10) days within which to complete maint repair, or if the maintenance or repair ie not capable of eogpletion within such tine period, to comence replacenent or re in ten (20) day Tf the Board determine that (i) an emergency existe oF (id) that an Owner has not lied with the demand givenby the Association as herein provided; then the Association may provide any -8- FREEING 5D => - @ dasa 8538 auch maincenance, re i or replacement at the Owner’ sole cost and such costs shal) added to and become a part of the jament to which such Owner 9 subject, shall become and be a lien against the Unit, and stall be collected as provided herein for the collection of assesamenta. If the Board determines that the need for maintenance or repair is in the Common Zlements and is caused through the willful or negligent act of ai owner, or Occupant or their ¢ Y gue lessees, or invite then the Association may asa et of any such maintenance, repair, or replacement against the owner’ or Occupant's Unit, shall become a lien against the Unit, and ghall be collected as provided herein for the collection of assessments. Section 5. Association Responsibilities. The Association shall not be liable for injury or damage to person or property caused by the elements or ‘the Owner of an ‘Unit, or any other person, or resulting from any utility, 2, snow or ice which may leak or flow from any portion of the Common Elemants or from an) » drain, Conduit” Eppitance or equipnent watch the Association a responsible to maintain hereunder ‘The Association shall not be liable to the Ovner of any Unit or such Owner's Occupant, guest, or family, for loss or damage, by theft or otherwise, of any property which my be stored in or upon any of the Common Blements. ‘The Association shall not be Liable to aay Omer, of any Oyner’s Occupant, quest or family for x injury in whole or in part Aatociation™ 2 failure to discharge its responsibilities under this ~ uch damage or in: jury is not a foreseeable, natural Artic’ responsibilities 1 Maule of the Association's taf ure to discharge ite No diminution or abatement of at mente shall be claimed or allowed by reason of any alleged failur Association to take some action or perform some function required to be taken or performed by the Association under this Declaration, or for inconvenience or discomfort ai from the making of repairs or improvementa which are the responsibility of the