Restrictions and Agreement of Maintenance.
Official Records Book 1366-0500 Filed November 23, 1981
Table of Contents
- Definitions
- Association Membership
- Voting Membership
- Use of Common Areas
- Assessments
- Special Assessments
- Quorum
- Term of Assessments
- Delinquent Assessments
- Mortgages; Foreclosures
- Assessment Exemptions
- Residential Use Only
- Architectural Control Committee
- Plan Approval
- Time for Approval
- Square Footage
- Temporary Residences
- Aerials/Antennas
- Mail/Paper Boxes
- Nuisances Prohibited
- Signs
- Trash; Etc.
- Fences, Walls, Etc.
- Shrubbery
- Swimming Pools
- Party Walls
- Maintenance Responsibilities
- Utility Easements
- Applicabilty
- Amendment
- Remedies for Violations
- Conveyance of Common Areas
- "Association" shall mean and refer to Whispering Oaks Homeowners Association, Inc., a Florida corporation not for profit, its successors and assigns.
- "Lot" shall mean and refer to any plot or parcel of real property as shown up on the recorded plat of said Whispering Oaks, Plat Book 24, Page 18, Public Records or Seminole County, Florida, upon which a single family dwelling is constructed or is to be constructed.
- "Member" shall mean and refer to every person or entity who holds a membership in the Association.
- "Owner" shall mean and refer to the record owner weather one or more persons or entities, of the fee simple title to any lot which is part of the Development, including the seller of an executory contract of sale, but excluding those having such interest merely as security for the performance of an obligation.
- "Developer" shall mean and refer to Ben Ward Agency, Inc., its successors, assigns, and transferees if such successors, assigns, or transferees should acquire more than one undeveloped lot from the Developer for the purpose of development.
- "Restrictions" shall mean and refer to these Restrictions and Agreement of Maintenance applicable to the Development recorded in the office of the Cleark of the Circuit Court, Seminole County, Florida.
- "Common Areas" shall mean and refer to Lots 12 and 17 as per plat of Whispering Oaks, recorded in Plat Book 24, Page 18, Public Records of Seminole County, Florida, and any property designated or referred to as "Common Area" on said plat.
- "Development" shall mean and refer to all of the property set forth and in the Plat of Whispering Oaks, as recorded in Plat Book 24, Page 18, Public Records of Seminole County, Florida.
- "Maintenance Year" shall mean and refer to a year running from January 1 to December 31 of each year.
Every person or entity who is a record owner of a fee or undivided fee interest in any lot which is subject by covenant of record to assessment by the Association, including the Seller of an executory contract of sale, shall be a member of the Association. The foregoing is not intended to include persons or entities who hold an interest nearly as security for the performance of an obligation. No owner shall have more than one membership per lot owned. Membership shall be appurtenant to ard may not be separated from ownership of any lot which is subject to assessment by the Association. Ownership of such lot shall be the sole qualification for membership.
Class A: Class A members shall be all those members as defined in Paragraph 2 hereof with the exception of the Developer. Class A members shall be entitled to one vote for each lot in which they hold the interest required for membership by Paragraph 2. When more than one person holds such interest in any lot all such persons shall be members. The vote for such lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any lot.
Class B: The Class B member shall be the Developer. The Class B members shall be entitled to three (3) votes for each lot in which it holds the interest required for membership by Paragraph 2, provided that the Class B membership shall cease and be converted to Class A membership on or before five (5) years from date hereof.
Every member shall have a right of enjoyment in and an easement to and over the Common Areas and such easement shall be appurtenant to and shall pass with the title to every assessed lot, subject to the following provisions:
- The right of the Association to limit the number of guests of members;
- The right of the Association, in accordance with its Articles and Bylaws, to borrow money for the purpose of improving the common areas and facilities thereon and in aid thereof to mortgage said properties, and the rights of such mortgages in said properties or common area shall be subordinate to the rights of the homeowners hereunder;
- The right of the Association to suspend the voting rights of and right to use the recreation facilities by a member, (1) for any period during which an assessment against his lot remains unpaid; and (2) for a period not to exceed thirty (30) days for any infraction of its published rules and regulations;
- The right of the Association and/or Developer to dedicate or transfer all or any part of the Properties to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the members. No such dedication or transfer by the Association shall be effective unless an instrument signed by members entitled to cast two-thirds (2/3) of the votes of the Class B membership, if any, has been recorded, agreeing to such dedication or transfer, and unless written notice of the proposed action is sent to every member not less than thirty (30) days nor more than sixty (60) days in advance.
- The Developer, for each lot owned within the development, excluding common areas, hereby covenants, and each owner of any lot by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed or other convenience, is deemed to covenant and agree to pay the Association: (1) annual assessment or charges and (2) special assessment for capital improvements, such assessments to be fixed, established and collected from time to time as hereinafter provided. The annual assessment shall be due and payable in equal monthly installments on the first day of each month. The annual and special assessments, together with such interest thereon and costs of collection thereof, as hereinafter provided, shall be a charge on the land an shall be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with such interest, costs and reasonable attorney’s fees shall also be the personal obligation of the person or persons who are or were the owner of such property at the time with the assessment fell due.
- The assessments levied by the Association shall be used exclusively for the purposes of promoting the recreation, health, safety, and welfare of the residents in the Development and in particular for the improvement and maintenance of the Development, services, and facilities devoted to this purpose and related to the use and enjoyment of the Development and the homes situated upon the Development.
- Until July 1st of the year immediately following the conveyance of the first lot to an owner, the maximum annual assessment shall be SIX HUNDRED AND NO/100 ($600.00) DOLLARS per lot.
- From and after July 1st of the year immediately following the conveyance of the first lot to an owner, the maximum annual assessment shall be increased effective July 1st of each year without a vote of the membership ten (10) per cent.
- From and after July 1st of the year immediately following the conveyance of the first lot to an owner, the maximum annual assessment may be increased above the ten (10) percent established in paragraph 5 (d) above by a vote of the membership for the next succeeding one (1) year and at the end of each such period of one (1) year for each succeeding period of one (1) year, provided that any such change would have the assent of two-thirds (2/3) of the vote of each class of membership who are voting in person or by proxy, at a meeting duly called for this purpose, written notice of which shall be sent to all members not less than to (10) days nor more than thirty (30) days in advance of the meeting, setting forth the purpose of the meeting.
- After consideration of current maintenance costs and future needs of the Association, the Board of Directors may fix the annual assessment of an amount not in excess of the maximum.
In addition to the annual assessments authorized above, the Association may levy in any assessment year, a special assessment applicable to that year only, for the purpose of defraying in whole or in part, the cost of any construction or reconstruction, unexpected repair or replacement of a described capital improvement upon the properties, including the necessary fixtures and personal property related thereto, provided that any such assessment shall have the assent of two-thirds (2/3) of the votes of each class of members who are voting in person or by proxy at a meeting duly called for this purpose, written notice of which shall be sent to all members not less than ten (10) days nor more than thirty (30) days in advance of the meeting setting forth the purpose of the meeting. Both annual and special assessments must be fixed at a uniform rate for all lots and may be collected on a monthly basis as is more specifically set forth herein; provided, however the foregoing requirement of uniformity shall not prevent special assessments against any particular lot which are established pursuant to the terms of this Declaration.
At the first meeting called, as provided in sections 5 (e) and 6, hereof, the presence at the meeting of members or of proxies entitled to cast sixty percent (60%) of all the votes of each class of membership shall constitute a quorum. If the required quorum is not forthcoming at any meeting, another meeting may be called subject to the notice requirement set forth in sections 5 (e) and 6, and the required quorum at any such subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting.
The annual assessments provided for herein shall commence as to all lots on the first day of October. The first annual assessment shall be adjusted according to the number of months remaining the maintenance year. The Board of Directors shall fix the amount of the annual assessment against each lot at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessment shall be sent to every owner subject thereto. The due dates shall be established by the Board of Directors. The Association shall upon demand at any time furnish a certificate in writing signed by an officer of the Association setting forth whether the assessments on a specified lot have been paid. A reasonable charge may be made by the Board for the issuance of these certificates. Such certificates shall be conclusive evidence of payment of any assessment therein stated to have been paid. The Developer, shall, however, maintain all unsold and completed units, together with all vacant lots until a transaction is completed in the name of an Owner.
Any assessments which are not paid when due shall be delinquent. If the assessment is not paid within thirty (30) days after the due date, the assessment shall bear interest from the date of delinquency at the rate of fifteen percent (15%) per annum, and the Association may bring an action at law against the owner personally obligated to pay the same, or foreclose the lien against the property, and interest, costs, and reasonable attorney's fees of any such action shall be added to the amount of such assessment. No owner may waive or otherwise escape liabilty for the assessments provided for herein by non-use of the properties or abandonment of his lot.
The lien of the assessments provided for herein shall be subordinate to the lien of any mortgage or mortgages. Sale or transfer of any lot shall not affect the assessment lien. However, the sale or transfer of any lot which is subject to any mortgage, pursuant to a decree of foreclosure under such mortgage or any proceeding in lieu of the foreclosure thereof, shall extinguish the lien of such assessments as to payment thereof which became due prior to such sale or transfer. No such sale or transfer shall relieve such lot from liability for any assessments thereafter becoming due or from the lien thereof.
The following property subject hereto shall be exempt from the assessments created herein:
- All properties dedicated to and accepted by a local public authority;
- The properties designated as "Common Area," and
- All properties owned by a charitable or non-profit organization exempt from taxation by the laws of the State of Florida or United States of America. However, no land or improvements devoted to dwelling use shall be except from said assessments, regardless of ownership.
No lot shall be used except for single family residential purposes, unless otherwise specified on the plat. No building shall be erected, altered, placed, or permitted to remain on any lot other than one single family dwelling not to exceeed two (2) stories in height and a private garage for not more than two (2) cars.
The Architectural Control Committee shal be composed of three (3) members of the Board of Directors of Whispering Oaks Homeowners Association, Inc., (a Florida corporation not for profit), or three (3) persons appointed by the Board of Directors of said corporation not for profit who shall not necessarily be members of the Board of Directors. In the event of death of, or resignation of any member of the committee, the Board of Directors shall designate a successor within sixty (60) days from the date of said death or resignation.
Except for buildings and structures and all additions and alterations thereto constructed by the Developer, no building shall be erected, placed, or altered on any lot until the construction plans and specifications and a plan showing the location of the structure have been approved by the Architectural Control Committee as to the quality of workmanship and materials, harmony of external design with existing structures, and as to location with respect to topography and finish grade elevation.
The committee's approval or disapproval as required in these covenants shall be in writing. In the event the committee or its designated representative fails to approve or disapprove within thirty (30) days after plans and specifications have been submitted to it, or in any event if no suit to enjoin the construction has been commenced prior to the completion thereof approval will not be required and the related covenants shall be deemed to have been fully complied with.
No principal residence shall be erected or allowed to remain on any lot unless the square footage area thereof, exclusive of screened porches, garages, and storage rooms, shall equal or exceed 1,400 square feet; provided, however, that two-story homes shall have a total of 2,000 square feet.
No structure of a temporary character, trailer, boat, motor home, rent, shack, garage, barn, or other outbuilding shall be used on any lot at any time as a residence or appendage to such residence, either temporarily or permanently.
No radio or television aerial or antenna, nor any other exterior electronic or electrical equipment or devices of any kind, shall be installed or maintained on the exterior of any structure located on a lot or on any portion of any lot occupied by a building or other structure unless and until the location, size, and design thereof shall have been approved by the Architectural Control Committee of the Homeowners Association.
No mail box or paper box or other receptacle of any kind for use in the delivery of mail or newspapers, or magazines, or similar material shall be erected or located on any lot unless the size, location, design, and type of material for said boxes or receptacles shall have been approved by the Architectural Control Committee of the Homeowners Association.
No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood.
No sign of any kind shall be displayed to the public view on any lot except one professional sign of not more than one (1) square foot, one (1) sign of not more than five (5) square feet advertising the property for sale or rent, or signs used by a builder to advertise the property during the construction and sales period.
No lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage, or other waste shall not be kept except in sanitary containers. All equipment for storage or disposal of such materials shall be kept in a clean and sanitary condition, and except during pick-up, if required to be placed at the street, all containers shall be kept at the side or rear of dwellings out of sight from the street. There shall be no burning of trash or any other waste materials.
No fence, wall, or other structure shall be erected, placed, or altered on any lot between any private road right of way and any building situated on said lot. Prior to the erection, placement, or alteration of any fence, wall, or other structure behind said area, owner shall obtain written approval of the Architectural Control Committee. The maximum allowable height of any fence or wall, shall be eight (8) feet.
It is prohibited for an Owner of a residence, member of his family, or guests to plant any shrubbery, trees, or plants in any position on the common areas, or private road right of way, without the prior written consent of the Architectural Control Committee.
Any swimming pool constructed on any lot shall be subject to the following restrictions, reservations, and conditions:
- Construction may be only of concrete or a concrete-type material.
- The outside edge of any pool wall may not be closer than five (5) feet to the walls of the house.
- No pool wall may be constructed or placed closer than five (5) feet to the sides and rear lot lines.
- No pool or screening may be constructed within (recorded) designated utility or drainage easments.
- No pool or screening shall be erected or placed on any lot until the construction plans and specifications and a plan showing their location have been approved by the Architectural Control Committee.
- General Rules of Law to Apply. Each wall which is built as a part of the original construction of the buildings upon the Development and placed on the dividing line between the Lots, shall constitute a party wall, and, to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto.
- Sharing of Repair and Maintenance. The cost of reasonable repair and maintenance of a party wall shall be shared by the Owners who make use of the wall in proportion to such use.
- Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by fire or other casualty and it is not covered by insurance, any Owner who has used the wall may restore it, and shall contribute to the cost of restoration thereof in proportion to their use without prejudice, subject, however, to the right of any such Owners to call for a larger contribution from the others under any rule or law regarding liability for negligent or willful acts or omissions.
- Weatherproofing. Notwithstanding any other provisions of this Article, an Owner who by negligent or willful act causes the party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements.
- Right to Contribution Runs with Land. The right of any Owner to contribution from any other Owner under this Article shall be appurtenant to the land and shall pass to such Owner's successors in title.
- Association. The Association, subject to the rights of the owners as set forth in this Declaration, shall be responsible for the exclusive management and control of the common areas and private road right of ways shown on the plat of Whispering Oaks and all improvements thereon. The Association shall keep the same in good, clean, attractive, and sanitary condition, order, and repair. In addition, the Association shall provide lawn maintenance and landscaping for the front of each lot (the area between the public or private right-of-way and the front of each unit to and including the privacy fence at the front of said unit). Said maintenance shall include mowing, trimming, edging the grass, trimming the shrubs, and maintaining or replacing as needed, the privacy fence as aforesaid. The Association shall be responsible for maintaining the brick wall encircling the outer perimeter of the entire development. The Association shall also retain an easment for ingress and egress upon and across all portions of each lot for the purpose of maintaining the front yard and the rear four feet of each lot as aforesaid.
- Owner's Responsibility. Each lot owner shall provide exterior maintenance of the dewelling unit upon his lot and maintain the concrete driveway and walkway to the unit. Said maintenance shall include painting, repairing, replacing, and caring of roofs, gutters, downspouts, exterior building surfaces, driveway and walkway, and other exterior improvements, including patio fences, if any. Each lot owner shall also maintain all shrubbery on his lot to the rear of the privacy fence, and all patio areas and atrium areas. Should an owner neglect or fail to maintain the exterior of his dwelling unit, the concrete driveway and walkway, then the Association may maintain or repair the same at such owner's expense. The cost thereof shall become a special assessment against that owner's lot provided that the requirements for levying a special assessment under paragraph 6 are met prior to actual maintenance or repair.
Easements for installation and mainatenance of utilities and drainage facilities are reserved as shown on the recorded plat. Within the easements, no structure, planting, or other materials shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities. The easements are for the benefit of each lot and all improvements located on them, if any, shall be maintained continuously by the Association, pursuant to the covanents of maintenance provided herein, except for those improvements for which a public authority or utility company is responsible.
Each person or entity who is a record owner of a fee or undivided fee interest in any lot shall be subject to these restrictions, toghether with the provisions of the Articles, Bylaws, and Rules and Regulations of Whispering Oaks Homeowners Association, Inc.
These covanents and restrictions shall nan with and bind the land, and shall inure to the benefit of and be enforceable by the Association, or the Owner of any lot subject to this notice of Restrictions and Agreement of Maintenance, their respective legal representatives, heirs, successors, and assigns, for a term of twenty (20) years from the date this oducment is recorded, after which time said covanents shall be automatically extended for successive periods of ten (10) years. The covenants and restricions of this document may be amended during the first twenty (20) year period by an instrument signed by not less than 60 percent (60%) of the lot owners, and thereafter by an instrument signed by not less than fifty percent (50%) of the lot owners, provided, however, that any institutional mortgages which holds a note secured by a mortgage encumbering any real property located within the development, must give its written consent prior to any amendment hereof. Any amendment must be properly recorded.
For violation or a breach of any provisions herein by any person claiming under, by, through, or under the Developer and/or Association or by virtue of any judicial proceedings any owner and/or the Association or an institutional first mortgages, or any of them, severally, shall have the right to proceed at law for damages or in equity to compel compliance of any of them, or for such other relief as may be appropriate. In addition to the foregoing right, the Association shall have the right, whenever there shall have been built within the parcel any structure which is in violation of this Agreement, to enter upon the property where such violation of this Agreement exists, and summarily abate or remove the same at the expense of the owner, provided, however, the Association shall then make the necessary repairs, construction, etc., necessary to insure that the property and improvements where such violation occurred shall be in the same condition as it was before said violation occurred and any such entry and abatement or removal shall not be deemed a trespass. The failure promptly to enforce any of the provisions of this Agreement shall not bar their subsequent endorsement.
The Developer hereby covenants for itself, its successors, and/or assigns that it will convey in fee simple title to the Association all properties designated "Common Areas."