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DECLARATION COVENANTS, CONDITIONS AND RESTRICTIONS FOR ATASCOCITA TRAILS, SECTION I A SUBDIVISION IN HARRIS COUNTY, TEXAS THE STATE OF TEXAS COUNTY OF HARRIS THIS DECLARATION, made on the date hereinafter set forth by THE HUNTERWOOD FOREST CORPORATION, a Texas corporation, said corporation having its principal offices in Houston, Harris County, Texas, hereinafter called "Declarant" W I T N E S S E T H: WHEREAS; Declarant is the owner of that certain property known as ATASCOCITA TRAILS, SECTION I, a subdivision in Harris County, Texas, according to the map or plat thereof recorded in volume 245 Page 116 of the Map Records of Harris County, Texas; and WHEREAS, it is the desire of Declarant to place certain restrictions, covenants, conditions, stipulations and reservations upon and against such property in order to establish a uniform plan for the development, improvement and sale of such property, and to insure the preservation of such uniform plan for the benefit of both the present and future owners of lots in said subdivision: NOW, THEREFORE, Declarant hereby adopts, establishes and imposes upon ATASCOCITA TRAILS, SECTION I, and declares the following reservations, easements, restrictions, covenants and conditions applicable thereto, all of which are for the purpose of enhancing and protecting the value, desirability and attractiveness of the land, which reservations, easements, covenants, restrictions and conditions shall run with the land and shall be binding upon all parties having or acquiring any right, title or interest therein, or any part thereof, and shall inure. to the benefit of each owner thereof. ARTICLE I. DEFINITIONS SECTION 1. "Properties" shall mean and refer to ATASCOCITA TRAILS, SECTION I subject to the reservations set forth herein and/or in the Subdivision Plat, and any additional properties made subject to the terms hereof pursuant to the provisions set forth herein. SECTION 2. "Lot" and/or "Lots" shall mean and refer to the Lots shown upon the Subdivision Plot which are restricted hereby to use for residential purposes. SECTION 3. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of fee simple title to any Lot which is a part of the Properties, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation and those having only an interest in the mineral estate. SECTION 4. "Subdivision Plat" shall mean and refer to the map or plat of ATASCOCITA TRAILS, SECTION I, recorded in volume 245, Page 116, of the Map Records of Harris County, Texas. SECTION 5. "Architectural Control Committee" shall mean and refer to the ATASCOCITA TRAILS, SECTION I Architectural Control Committee provided for in Article IV hereof. SECTION 6. "Association" shall mean and refer to the ATASCOCITA TRAILS Homeowners' Association, its successors and assigns, as provided for in Article V hereof. ARTICLE II. RESERVATION, EXCEPTIONS AND DEDICATIONS SECTION 1. The Subdivision Plat dedicates for use as such, subject to the limitations set forth therein, the streets and easements shown thereon, and such Subdivision Plat further establishes certain restrictions applicable to the Properties, including, without limitation, certain minimum setback lines, and such Subdivision Plat further designates a certain 0.874 acre Reserve "A", a certain 2.458 acre Reserve "B", a certain 2.391 acre Reserve "C", a certain 4.440 acre Reserve "W", a certain 2.134 acre Reserve "E", a certain 1.0307 acre Reserve "F", a certain 1.987 acre Reserve "G", a certain 2.130 acre Reserve "H", as shown thereon, and such Reserves "A", "B", "C", "D", "E", "F", "G", "H" shall not be a part of the Properties nor subject to the provisions hereof unless otherwise specifically provided herein. All dedications, limitations, restrictions and reservations-shown on the Subdivision Plat are incorporated herein and made part hereof as if fully set forth herein, and shall be construed as being adopted in each and every contract, deed or conveyance executed or to be executed by or on behalf of Declarant, conveying said property or any part thereof, whether specifically referred to therein or not. SECTION 2. Declarant reserves the easements and rights-of-way as shown on the Subdivision Plat for the purpose of constructing, maintaining and repairing a system or systems of electric lighting, electric power, telegraph and telephone line or lines, gas, sewers or any other utility Declarant sees fit to install in, across and/or under the Properties. SECTION 3. Neither Declarant nor any utility company using the easements herein referred to shall be liable for any damages done by them, or their assigns, agents, employees or servants, to fences, shrubbery, trees or flowers or other property of the Owner situated on the land covered by said easements. SECTION 4. It is expressly agreed and understood that the title conveyed by Declarant to any Lot or parcel of land within the Properties by contract, deed or other conveyance shall be subject to any easement affecting same for roadways or drainage, water, gas, sewer, storm sewer, electric light, electric power, telegraph or telephone purposes and shall convey no interest in any pipes, lines, poles or conduits, or in any utility facility or appurtenances thereto constructed by or under-declarant or any easement Owner, or their agents, through, along or upon the premises affected thereby, or any part thereof, to serve said land or other portion of the Properties, and, where not affected, the right to maintain, repair, sell or lease such appurtenances to any municipality or other governmental agency or to any public service corporation or to any other party, and such right is hereby expressly reserved. ARTICLE III. USE RESTRICTIONS SECTION 1. Land Use and Building Type. All Lots shall be known and described as Lots for residential purposes only (hereinafter sometimes referred to as "Residential Lots"), and no structure shall be erected, altered, placed or permitted to remain on any Residential Lot other than one single-family dwelling not to exceed two (2) stories in height and a detached or an attached garage or carport for not less than two (2) or more than four (4) cars. As used herein, the term "residential purposes" shall be construed to prohibit the use of said Lots for duplex houses, garage apartments or apartment houses and no Lot shall be used for business or professional purposes of any kind, nor for any commercial or manufacturing purpose. No building of any kind or character shall ever be moved onto any Lot within said subdivision, it being the intention that only new construction shall be placed and erected thereon. SECTION 2. Architectural Control. No building shall be erected, placed or altered on any Lot until the construction plans and specifications and a plot plan showing the location of the structure thereon have been approved by the Architectural Control Committee as to harmony with existing structures with respect to exterior design and color with existing structures, as to location with respect to topography and finished grade elevation and as to compliance with minimum construction standards more fully provided for in Article IV hereof. SECTION 3. Dwelling Size. The ground floor area of the main residential structure, exclusive of open porches and garages, shall not be less than 1,200 square feet for a one (1) story dwelling, nor shall the ground floor area plus the upper floor area of the main residential structure of any multi-story dwelling be less than 1,200 square feet. SECTION 4. Type of Construction, Materials and Landscape.
SECTION 5. Building Location. No building shall be located on any Lot nearer to the front Lot line or nearer to the side street line than the minimum building setback lines shown on the recorded plat. No building shall be located nearer than five feet (5') to any interior Lot line, except that a garage, carport, or other permitted accessory building located sixty-five feet (65') or more from the front Lot line may be located within three feet (3') of an interior Lot line. No main residence building nor any part thereof shall be located on any interior Lot nearer than fifteen feet (15') to the rear Lot line. For the purpose of this covenant, eaves, steps and open porches shall not be considered as a part of the building; provided, however, that this shall not be construed to permit any portion of a building on any Lot to encroach upon another Lot. For the purposes of these restrictions, the front of each Lot shall coincide with and be the property line having the smallest or shortest dimension abutting a street. Unless otherwise approved in writing by the Architecture Control Committee, each main residence building will face and be located at last twenty-five (25') from the front of the Lot on which it is situated and will be provided with the driveway access from the front of the Lot only, except corner Lots may have driveway access to the street on which they side and must be located at least ten feet (10') from the side Lot line. All Lots backing or siding on Atascocita Road shall have no direct driveway access to said road. SECTION 6. Minimum Lot Area. No Lot shall be resubdivided, nor shall any building be erected or placed on any Lot having an area of less than that of the smallest Lot shown on the recorded Plat; provided, however, that nothing contained herein shall be construed to prohibit the resubdivision of any Lot or Lots within the Properties if such resubdivision results in each resubdivided Lot containing not less than the minimum Lot area aforesaid; it being the intention of this restriction that no building plot within the properties contain less than the aforesaid minimum area. SECTION 7. Annoyance or Nuisances. No noxious or offensive activity shall be carried on upon any Lot nor shall anything be done thereon which may become an annoyance to the neighborhood. The Architectural Control Committee's determination as to what constitutes a noxious or offensive activity shall in all cases be final and conclusive. SECTION 8. Temporary Structures. No structure of a temporary character, whether trailer, basement, tent, shack, garage, barn or other outbuilding shall be maintained or used on any Lot at any time as a residence, or for any other purpose, either temporarily or permanently; provided, however, that the Declarant reserves the exclusive right to erect, place and properly maintain such facilities in or upon any portions of the Properties as in its sole discretion may be necessary or convenient while selling Lots, selling or constructing residences and constructing other improvements upon the Properties. Such facilities may include, but not necessarily be limited to, sales and construction offices, storage areas, model units, signs, and portable toilet facilities. No truck, trailer, boat, automobile or other vehicle shall be stored, parked or kept on any Lot or in the street in front of the Lot unless such vehicle is in a day to day use off the premises and such parking is only temporary, from day-to-day; provided, however, that nothing herein contained shall be construed to prohibit the storage of any unused vehicle in the garage or carport permitted on any Lots covered hereby. SECTION 9. Signs and Billboards. No signs, billboards, posters or advertising devices of any character shall be erected, permitted or maintained on any Lot or plot except (i) one sign of not more than ten (10) square feet advertising the particular Lot or plot on which the sign is situated for sale or rent, and (ii) one sign of not more than five (5) square feet to identify the particular Lot or plot as may be required by the Federal Housing Administration or Veterans Administration during the period of actual construction of a single-family residential structure thereon. The right is reserved by Declarant to construct and maintain such signs, billboards, or advertising devices as is customary in connection with the general sale of the property in this subdivision. In no event shall any sign, billboard, poster or advertising device of any character, other than as specifically prescribed in the first sentence of this Section 9, be erected, permitted or maintained on any Lot or plot without the express prior written consent of the Architectural Control Committee. The term "Declarant", as used in this Section 9, shall refer to said entities and such successors or assigns of such entities to whom the right under this Section 9 expressly and specifically transferred. SECTION 10. Oil and Mining Operations. No oil drilling or development operations, oil refining, quarrying or mining operations of any kind shall be permitted upon or in any Lot nor shall oil wells, tanks, tunnels, mineral excavations or shafts be permitted upon or in any Lot. No derrick or other structure designed for use in boring for oil or natural gas shall be erected, maintained or permitted upon any Lots. SECTION 11. Storage and Disposal of Garbage and Refuse. No Lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage or other waste materials shall not be kept except in sanitary containers constructed of metal, plastic or masonry materials with sanitary covers or lids. Equipment for the storage or disposal of such waste materials shall be kept in a clean and sanitary condition. No Lot shall be used for the open storage of any materials whatsoever, which storage is visible from the street, except that new building materials used in the construction of improvements erected upon any Lot may be placed upon such Lot at the time construction is commenced and may be maintained thereon for a reasonable time, so long as the construction progresses without undue delay, until the completion of the improvements, after which these materials shall either be removed from the Lot or stored in a suitable enclosure on the Lot. SECTION 12. Electrical Utilities. An underground electric distribution system will be installed in that part of ATASCOCITA TRAILS, SECTION I SUBDIVISION, designated herein as "Underground Residential Subdivision", which underground service area embraces all of the Lots which are platted in ATASCOCITA TRAILS, SECTION I SUBDIVISION. In the evens that there are constructed within the Underground Residential Subdivision structures containing multiple dwelling units such as townhouses, duplexes or apartments, then the underground service area embraces all of the dwelling units involved. The Owner of each Lot containing a single dwelling unit, or, in the case of a multiple dwelling unit structure, the Owner/Developer shall, at his or its own cost, furnish, install, own and maintain (all in accordance with the requirements of the local governing authorities and the National Electrical Code) the underground service cable and appurtenances from the point of electric company's metering at the structure to the point of attachment at such company's installed transformers or energized secondary junction boxes, such point of attachment to be made available by the electric company at a point designated by such company at the property line of each Lot. The electric company furnishing service shall make the necessary connections at said point of attachment and at the meter. Developer has, either by designation on the plat of the Subdivision or by separate instrument, granted necessary easements to the electric company, providing for the installation, maintenance and operation of its electric distribution system and has also granted to the various homeowners' reciprocal easements providing for access to the area occupied by and centered on the service wires of the various homeowners to permit installation, repair and maintenance of each homeowner's owned and installed service wires. In addition, the Owner of each Lot containing a single dwelling unit, or, in the case of a multiple dwelling unit structure, the owner/Developer shall, at his or its own coat, furnish, install, own and maintain a meter loop (in accordance with the then current Standards and Specifications of the electric company furnishing service) for the location and installation of the meter of such electric company for each dwelling unit involved. For so long as underground service is maintained in the Underground Residential Subdivision, the electric service to each dwelling unit therein shall be underground, uniform in character and exclusively of the type known as single phase, 290/120 volt, three wire, 60 cycle, alternating current. The electric company has installed the underground electric distribution system in the Underground Residential Subdivision at no cost to Developer (except for certain conduits, where applicable, and except as hereinafter provided) upon Developer's representation that the Underground Residential Subdivision is being developed for residential dwelling units, including homes, and, if permitted by the restrictions applicable to such subdivision, townhouses, duplexes and apartment structures, all of which are designed to be permanently located where originally constructed (such category of dwelling units expressly to exclude mobile homes) which are built for sale or rent and all of which multiple dwelling unit structures are wired so as to provide for separate metering to each dwelling unit. The provisions of the two preceding paragraphs also apply to any future residential development in the Reserves shown on the Plat of ATASCOCITA TRAILS, SECTION I, as such Plat exists at the execution of the Agreement for underground electric services between the electric company and Developer or thereafter. Specifically, but not by way of limitation, if a Lot Owner in a former Reserve undertakes some action which would have invoked the above per front Lot foot payment, if such action had been undertaken in the Underground Residential Subdivision, such Owner or applicant for service shall pay the electric company one and 75/100 Dollars ($1.75) per front Lot foot unless Developer has paid the electric company as above described. The provisions of the preceding paragraphs do not apply to any future non-residential development in such Reserves. ARTICLE IV. ARCHITECTURAL CONTROL COMMITTEE SECTION 1. Approval of Building Plans. No building shall be erected, placed or altered on any Lot until the construction plans and specifications and a plot plan showing the location of the structure have been approved in writing as to harmony of exterior design and color with existing structures, as to location with respect to topography and finished ground elevation and as to compliance with minimum construction standards by ATASCOCITA TRAILS, SECTION I Architectural Control Committee. A copy of the construction plans and specifications and a plot plan, together with such information as may be deemed pertinent, shall be submitted to the Architectural Control Committee, or its designated representative, prior to commencement of construction. The Architectural Control Committee may require the submission of such plans, specifications and plot plans, together with such other documents as it deems appropriate, in such form and detail as it may elect at its entire discretion. In the event the Architectural Control Committee fails to approve or disapprove such plans and specifications within thirty (30) days after the same are submitted to it, approval will not be required and the requirements of this Section will be deemed to have been fully complied with. SECTION 2. Committee Membership. James Disiere, Shawn Smith, and Gloria Presser, all of Humble, Harris County, Texas, are hereby designated and appointed as the Architectural Control Committee, which Committee and its successors, are hereby vested with the full right and authority to act as such under the provisions of these restrictions. A majority of such Committee shall have the right to designate a representative to act for it in all matters arising hereunder. In the event of the death or resignation of any member or members of the Committee, the remaining member or members shall have the full right and authority to designate a successor member or members. Neither the members of such Committee nor any designated representative shall be entitled to any compensation for services performed pursuant to these restrictions. All appointments and designations of persons as successors to the Committee shall be made in writing by a recordable instrument, which shall be filed for record in Harris County, Texas. The powers and duties of the Committee as from time to time constituted, shall continue in force during the effective period of the restrictions hereby created. At any time the then record owners of a majority of the residential lots on which a residence has been constructed and have the power through a duly recorded written instrument to change the membership of the Architectural Control Committee, as it pertains to existing construction, and to withdraw from or restore to the Committee any of its powers and duties. Any such instrument affecting said Committee shall show the property owned by each owner signing same, and in case property is owned by man and wife as community property, the signature of the husband alone shall be sufficient, except that in cases where the husband resides elsewhere or has abandoned his wife, her signature alone shall be sufficient. The Architectural Committee hereinabove designated, being James Disiere, Shawn Smith, and Gloria Presser, their successors and/or designees, shall be the Architectural Committee only for new construction to be constructed on vacant lots in ATASCOCITA TRAILS, SECTION 1. The Atascocita Trails Homeowners' Association, its successors, assigns or designees, is hereby designated as the Architectural Committee for ATASCOCITA TRAILS, SECTION 1 pertaining to any changes made in exterior design or exterior alterations after original construction and only after a house has been occupied as a residence. SECTION 3. Minimum Construction Standards. The Architectural Control Committee may from time to time promulgate an outline of minimum acceptable construction standards; provided however, that such outline will serve as a minimum guideline and such Architectural Control Committee shall not be bound thereby. ARTICLE V. ATASCOCITA TRAILS HOMEOWNERS' ASSOCIATION, INC. SECTION 1. Membership. Every person or entity who is a record Owner of any of the Properties which are subject, or which will be subject upon the completion of improvement thereon, to maintenance charge assessment by the Association, including contract sellers, shall be a member of the ATASCOCITA TRAILS HOMEOWNERS' ASSOCIATION, INC. The foregoing is not intended to include persons or entities who hold an interest merely as security for the performance of an obligation or those having only an interest in the mineral estate. No owner shall have more than one membership. Membership shall be appurtenant to and may not be separated from ownership of the land which is subject to assessment by the Association. Ownership of such land shall be the sole qualification for membership. Other lands may hereafter be annexed into the jurisdiction of the Association in the manner herein described. If annexed, the owners of Lots in each future section so annexed as well as all Owners subject to the jurisdiction of the Association shall be entitled to the use and benefit of all Community Properties that may become subject to the jurisdiction of the Association as a result of such annexation, and the facilities thereon, and shall be entitled to the use and benefit of the maintenance fund, hereinabove set forth, provided that each future section must be impressed with and subject to an annual maintenance charge imposed hereby, and further such sections shall be made by recorded restrictions subject to the jurisdiction of the Association. Upon submission and approval by the Federal Housing Administration or Veterans Administration such additional stages of development may be annexed by action of the Board of Directors of the Association. Upon a merger or consolidation of the Association with another Association, the Associations' properties, rights, and obligations may be transferred to another surviving or consolidated Association, or alternatively, the properties, rights, and obligations of another Association may be added to the properties rights, and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated Association shall administer the Covenants and Restrictions established by this Declaration, together with the Covenants and Restrictions applicable to the properties of the other Association as one scheme. No such merger or consolidation, however, shall effect any revocation change, or addition to the Covenants established by this Declaration. Provided, that no such merger or consolidation shall be permitted except upon approval of two-thirds vote of each class of members of the Association. SECTION 2. Maintenance Assessments. Declarant imposes on each Lot within the Properties and hereby covenants and each owner of any Lot by acceptance of a deed thereto, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association the following: (1) annual assessments or charges to be established and collected as herein after provided, and (2) special assessments for capital improvements. The annual and special assessments, together with interest, costs, and reasonable attorney's fees, shall be a charge on the land and shall be secured by a vendor's lien which is hereby reserved in favor of the Association and its successors and assigns, upon each Lot against which each such assessment is made to the same extent as if retained as a vendor's lien by Declarant in each deed to any such Lot and expressly assigned to the Association without recourse to any extent unto Declarant. Each such assessment, together with any accrued interest and all collection costs and reasonable Attorney's fees incurred to enforce payment thereof, shall also be the personal obligation of the person or entity owning such Lot at the time when each assessment becomes due and payable. The personal obligation for delinquent assessments shall not pass to such person's or entity's assignee or successor in title unless expressly assumed by such assignee or successor. Section 3. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to improve, beautify, maintain, manage and operate the Community Association, and to pay taxes and insurance premiums thereon, and to promote recreation, health, safety, convenience and welfare of the Members, such benefits to include by way of illustration but not limitation, providing patrol or watchman service, providing and maintaining street lighting, fogging for insect control, enforcing the Covenants contained in this Declaration, employing at the request of the Architectural Control Committee on or more architects, engineers, attorneys, or other consultants, for the purpose of advising such Committee in carrying out its duties and authority as set forth in this Declaration, and providing and doing all other things necessary or desirable, in the opinion of the Board of Directors of the Association, for the maintenance and/or improvement of the Community Association, and for the benefit of the Members, the foregoing uses and purposes being permissive and not mandatory, and the decisions of the Board of Directors of the Association being final as long as made in good faith and in accordance with the law and the By-Laws governing the Association. SECTION 4. Maximum Annual Assessment. The rate at which each Lot with a living unit constructed thereon will be assessed shall not exceed $144 per year; provided, however, that for any calendar year after 1977 the Association may increase said rate as the needs of the Association and the judgment of the Association require; except that if any such increase shall cause the annual assessment to be greater than the aforesaid $144, plus the yearly rise, if any, of the Consumer Price Index as published by the United States Department of Labor for the preceding month of July; or more than one hundred ten percent (110%) of the amount assessed in the preceding calendar year, whichever is greater, then shall such an increase require the vote of two-thirds (2/3) of each class of members of the Association who are voting in person or by proxy, at a meeting duly called for that purpose. SECTION 5. Special Assessments for Capital Improvements. In addition to the annual assessments authorized above, the Association may levy against all Lots, 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, reconstruction, repair or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto, provided that any such assessment must 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. SECTION 6. Owner's Easement of Enjoyment. Each owner shall have a right and easement of enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to every Lot subject to the following provisions:
SECTION 7. Voting Right. The Association shall have two classes of voting memberships.
SECTION 8. Rate of Assessment. The Lots in the plat establishing ATASCOCITA TRAILS SECTION ONE shall each commence to bear their applicable maintenance fund assessment from and after that certain date fixed by the Board of Directors as the commencement date for same. Lots that are occupied by residents shall be subject to an annual assessment as determined pursuant to Sections 4 and 5, Article V. Lots that are not occupied by residents and that are owned by the Declarant, a builder or a building company shall be assessed at the rate of one-half (1/2) of the annual assessment provided for above. The rate of assessment for an individual Lot, within a calendar year, shall change as the character of ownership and the status of occupancy by a resident changes. The applicable assessment for such a Lot shall be prorated according to the rate required for each type of ownership. SECTION 9. Date of Commencement of Annual Assessments Due Dates. The annual assessments provided for herein shall commence as to all Lots on the date fixed by the Board of Directors to be the date of commencement. The first annual assessment shall be adjusted according to the number of months remaining in the calendar year. Thereafter, 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. The due dates shall be established by the Board of Directors. The Association, upon demand, and for a reasonable charge, shall furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid. SECTION 10. Effect of Non-Payment of Assessments/Remedies of the Association. Any assessment not paid within thirty (30) days after its due date shall bear interest from the due date until paid at the rate of ten percent (10%) per annum. The Association may bring an action at law to collect such assessment against the owner personally obligated to pay the same and to foreclose the vendor's lien reserved herein against the Lot against which such assessment is levied or may enforce collection by any other means authorized by law. The Association shall be entitled to recover interest accrued at the rate hereinabove set forth, together with collection costs and reasonable attorney's fees incurred by it in enforcing payment of such assessment. No owner may waive or otherwise avoid liability for the assessments provided for herein by non-use of the Common Area or by abandonment or conveyance of his Lot. SECTION 11. Subordination of Lien. The vendor's lien, reserved herein as security for the payment of the annual and special assessments set out herein, shall be subject, subordinate, inferior and secondary to all liens, mortgages and encumbrances, whether now or hereafter existing, that (i) are created to secure the payment of the purchase price of all or any part of any Lot (and any improvements thereon), situated within the plat establishing ATASCOCITA TRAILS, SECTION I, or (ii) are created to secure the payment of all amounts due or to become due under and by virtue of any contract, now or hereafter executed, for the construction, addition or repair of any improvements now or hereafter situated upon all or any part of any Lot situated within the plat establishing ATASCOCITA TRAILS, SECTION I. The sale or transfer of any Lot shall not affect the lien securing the assessments provided for herein. However, the sale or transfer or any Lot, pursuant either to mortgage foreclosure or to any proceeding in lieu thereof, shall extinguish-the lien of such assessments as to any payments that have become due and payable prior to such foreclosure, sale or transfer in lieu thereof. No foreclosure or sale or transfer in lieu thereof covering any Lot shall relieve the purchaser or transferee thereof from liability for any assessments thereafter becoming due and payable nor release any such Lot from the lien securing payment of such subsequent assessments. SECTION 12. Enforcement. In the event of any violation or attempted violation of any of the terms or provisions hereof, including any of the restrictions or covenants set forth herein, enforcement of the terms and provisions hereof shall be authorized by any proceedings at, law or in equity against any person or persons so violating or attempting to violate any of the provisions hereof, including by means of actions to restrain or prevent such violation or attempted violation by injunction, prohibitive or mandatory, and it shall not be a prerequisite to the granting of any such injunction that there be inadequate remedy at law or that there be any showing of irreparable harm or damage if such injunction is not granted. In addition, any person entitled to enforce the provisions hereof may recover such damages, either actual or punitive, as such person may show himself justly entitled by reason of such violation of the terms and provisions hereof. The terms and provisions hereof may be enforced by Declarant, by the Association (and the Association is hereby expressly authorized to use its funds for the purpose of assisting in the enforcement of the terms and provisions hereof), or by the Owner of any Lot shown in the plat establishing ATASCOCITA TRAILS, SECTION I. Failure by the Association or any owner to so enforce any covenant or restriction hereof shall not be construed to constitute a waiver of the right to thereafter enforce such provision or any other provision hereof. No violation of any of the terms or provisions hereof or any portion thereof, shall affect the rights of any mortgagee under any mortgage or deed of trust presently or hereafter placed of record covering any of the land shown to be within the plat establishing ATASCOCITA TRAILS, SECTION I. ARTICLE VI. GENERAL PROVISIONS SECTION 1. Term. These covenants shall run with-the land and shall be binding upon all parties and all persons claiming under them for period of forty (40) years from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years each, unless an instrument signed by a majority of the then Owners of the Lots has been recorded agreeing change or terminate said covenants herein, it shall be lawful for the declarant, its successors or assigns, or other Lot Owner to prosecute any proceeding at law or in equity against the person or persons violating or attempting to violate any such covenant and either to prevent him or them from doing so recover damages or other dues for such violations. SECTION 2. Severability. Invalidation of any one of these covenants by judgment or other court order shall in no wise affect any of the other provisions, which shall remain in full force and effect. SECTION 3. FHA/VA Approval. So long, as these covenants, conditions and restrictions shall remain in full force and effect, the following actions will require the prior approval of the Federal Housing Administration or the Veterans Administration: (i) annexation of additional properties, (ii) amendment of this Declaration of Covenants, Conditions and Restrictions. DECLARATION COVENANTS, CONDITIONS AND RESTRICTIONS FOR ATASCOCITA TRAILS, SECTION II A SUBDIVISION IN HARRIS COUNTY, TEXAS THE STATE OF TEXAS COUNTY OF HARRIS THIS DECLARATION, made on the date hereinafter set forth by UNIVERSITY SAVINGS ASSOCIATION, a Texas corporation, said corporation having its principal offices in Houston, Harris County, Texas, hereinafter called "Declarant" W I T N E S S E T H: WHEREAS; Declarant is the owner of that certain property known as ATASCOCITA TRAILS, SECTION II, a subdivision in Harris County, Texas, according to the map or plat thereof recorded in volume 285 Page 60 of the Map Records of Harris County, Texas; and WHEREAS, it is the desire of Declarant to place certain restrictions, covenants, conditions, stipulations and reservations upon and against such property in order to establish a uniform plan for the development, improvement and sale of such property, and to insure the preservation of such uniform plan for the benefit of both the present and future owners of lots in said subdivision: NOW, THEREFORE, Declarant hereby adopts, establishes and imposes upon ATASCOCITA TRAILS, SECTION II, and declares the following reservations, easements, restrictions, covenants and conditions applicable thereto, all of which are for the purpose of enhancing and protecting the value, desirability and attractiveness of the land, which reservations, easements, covenants, restrictions and conditions shall run with the land and shall be binding upon all parties having or acquiring any right, title or interest therein, or any part thereof, and shall inure. to the benefit of each owner thereof. ARTICLE I. DEFINITIONS SECTION 1. "Properties" shall mean and refer to ATASCOCITA TRAILS, SECTION II, subject to the reservations set forth herein and/or in the Subdivision Plat, and any additional properties made subject to the terms hereof pursuant to the provisions set forth herein. SECTION 2. "Lot" and or "Lots" shall mean and refer to the Lots shown upon the Subdivision Plat which are restricted hereby to use for residential purposes. SECTION 3. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of fee simple title to any Lot which is a part of the Properties, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation and those having only an interest in the mineral estate. SECTION 4. "Subdivision Plat" shall mean and refer to the map or plat of ATASCOCITA TRAILS, SECTION II, recorded in volume 285, Page 60, of the Map Records of Harris County, Texas. SECTION 5. "Architectural Control Committee" shall mean and refer to the ATASCOCITA TRAILS, SECTION II Architectural Control Committee provided for in Article IV hereof. SECTION 6. "Association" shall mean and refer to the ATASCOCITA TRAILS Homeowners' Association, its successors and assigns, as provided for in Article V hereof. ARTICLE II. RESERVATION, EXCEPTIONS AND DEDICATIONS SECTION 1. The Subdivision Plat dedicates for use as such, subject to the limitations set forth therein, the streets and easements shown thereon, and such Subdivision Plat further establishes certain restrictions applicable to the Properties, including, without limitation, certain minimum setback lines, and such Subdivision Plat further designates a certain 2.109 acre Reserve "H", a certain 2.003 acre Reserve "I", a certain .589 acre Reserve "J", as shown thereon, and Reserves "H", "I", and "J" shall not be a part of the properties nor subject to the provision hereof unless otherwise specifically provided herein. All dedications, limitations, restrictions and reservations shown on the Subdivision Plat are incorporated herein and made a part hereof, as if fully set forth herein, and shall be construed as being adopted in each and every contract, deed or conveyance executed or to be executed by or on behalf of Declarant, conveying said property or any part thereof, whether specifically referred to therein or not. SECTION 2. Declarant reserves the easements and rights-of-way as shown on the Subdivision Plat for the purpose of constructing, maintaining and repairing a system or systems of electric lighting, electric power, telegraph and telephone line or lines, gas, sewers or any other utility Declarant sees fit to install in, across and/or under the Properties. SECTION 3. Neither Declarant nor any utility company using the easements herein referred to shall be liable for any damages done by them, or their assigns, agents, employees or servants, to fences, shrubbery, trees or flowers or other property of the Owner situated on the land covered by said easements. SECTION 4. It is expressly agreed and understood that the title conveyed by Declarant to any Lot or parcel of land within the Properties by contract, deed or other conveyance shall be subject to any easement affecting same for roadways or drainage, water, gas, sewer, storm sewer, electric light, electric power, telegraph or telephone purposes and shall convey no interest in any pipes, lines, poles or conduits, or in any utility facility or appurtenances thereto constructed by or under Declarant or any easement Owner, or their agents, through, along or upon the premises affected thereby, or any part thereof, to serve said land or other portion of the Properties, and, where not affected, the right to maintain, repair, sell or lease such appurtenances to any municipality or other governmental agency, or to any public service corporation or to any other party, and such right is hereby expressly reserved. ARTICLE III. USE RESTRICTIONS SECTION 1. Land Use and Building Type. All Lots shall be known and described as Lots for residential purposes only (hereinafter sometimes referred to as "Residential Lots"), and no structure shall be erected, altered, placed or permitted to remain on any Residential Lot other than one single-family dwelling not to exceed two (2) stories in height and a detached or an attached garage or carport for not less than two (2) or more than four (4) cars. As used herein, the term "residential purposes" shall be construed to prohibit the use of said Lots for duplex houses, garage apartments or apartment houses and no Lot shall be used for business or professional purposes of any kind, nor for any commercial or manufacturing purpose. No building of any kind or character shall ever be moved onto any Lot within said subdivision, it being the intention that only new construction shall be placed and erected thereon. SECTION 2. Architectural Control. No building shall be erected, placed or altered on any Lot until the construction plans and specifications and a plot plan showing the location of the structure thereon have been approved by the Architectural Control Committee as to harmony with existing structures with respect to exterior design and color with existing structures, as to location with respect to topography and finished grade elevation and as to compliance with minimum construction standards more fully provided for in Article IV hereof. SECTION 3. Dwelling Size. The ground floor area of the main residential structure, exclusive of open porches and garages, shall not be less than 1,000 square feet for a one (1) story dwelling, nor shall the ground floor area plus the upper floor area of the main residential structure of any multi-story dwelling be less than 1,200 square feet. SECTION 4. Type of Construction, Materials and Landscape.
SECTION 5. Building Location. No building shall be located on any Lot nearer to the front Lot line or nearer to the side street line than the minimum building setback lines shown on the recorded plat. No building shall be located nearer than five feet (5') to any interior Lot line, except that a garage, carport, or other permitted accessory building located sixty-five feet (65') or more from the front Lot line may be located within three feet (3') of an interior Lot line. For the purpose of this covenant, eaves, steps and open porches shall not be considered as a part of the building; provided, however, that this shall not be construed to permit any portion of a building on any Lot to encroach upon another Lot. For the purposes of these restrictions, the front of each Lot shall, coincide with and be the property line having the smallest or shortest dimension abutting a street. Unless otherwise approved in-writing by the Architectural Control Committee, each main residence building will face and be located at least twenty-five (20') from the front of the Lot on which it is situated and will be provided with the driveway access from the front of the Lot only, except corner Lots may have driveway access to the street on which they side and must be located at least ten feet (10') from the side Lot line. All Lots backing or siding on Atascocita Road shall have no direct driveway access to said road. SECTION 6. Minimum Lot Area. No Lot shall be re-subdivided, nor shall any building be erected or placed on any Lot having an area of less than that of the smallest Lot shown on the recorded Plat; provided, however, that nothing contained herein shall be construed to prohibit the resubdivision of any Lot or Lots within the Properties if such resubdivision results in each resubdivided Lot containing not less than the minimum Lot area aforesaid; it being the intention of this restriction that no building plot within, the properties contain less than the aforesaid minimum area. SECTION 7. Annoyance or Nuisances. No noxious or offensive activity shall be carried on upon any Lot nor shall anything be done thereon which may become an annoyance to the neighborhood. The Architectural Control Committee's determination as to what constitutes a noxious or offensive activity shall in all cases be final and conclusive. SECTION 8. Temporary Structures. No structure of a temporary character, whether trailer, basement, tent, shack, garage, barn or other outbuilding shall be maintained or used on any Lot at any time as a residence, or for any other purpose, either temporarily or permanently; provided, however, that the Declarant reserves the exclusive right to erect, place and properly maintain such facilities in or upon any portions of the Properties as in its sole discretion may be necessary or convenient while selling Lots, selling or constructing residences and constructing other improvements upon the Properties. Such facilities may include, but not necessarily be limited to, sales and construction offices, storage areas, model units, signs, and portable toilet facilities. No truck, trailer, boat, automobile or other vehicle shall be stored, parked or kept on any Lot or in the street in front of the Lot unless such vehicle is in a day to day use off the premises and such parking is only temporary, from day to day; provided, however, that nothing herein contained shall be construed to prohibit the storage of any unused vehicle in the garage or carport permitted on any Lots covered hereby. SECTION 9. Signs and Billboards. No signs, billboards, posters or advertising devices of any character shall be erected, permitted or maintained on any Lot or plot except (i) one sign of not more than ten (10) square feet advertising the particular Lot or plot on which the sign is situated for sale or rent, and (ii) one sign of not more than five (5) square feet to identify the particular Lot or plot as may be required by the Federal Housing Administration or Veterans Administration during the period of actual construction of a single-family residential structure thereon. The right is reserved by Declarant to construct and maintain such signs, billboards, or advertising devices as is customary in connection with the general sale of the property in this subdivision. In no event shall any sign, billboard, poster or advertising device of any character, other than as specifically prescribed in the first sentence of this Section 9, be erected, permitted or maintained on any Lot or plot without the express prior written consent of the Architectural Control Committee. The term "Declarant", as used in this Section 9, shall refer to said entities and such successors or assigns of such entities to whom the right under this Section 9 expressly and specifically transferred. SECTION 10. Oil and Mining Operations. No oil drilling or development operations oil refining, quarrying or mining operations of any kind shall be permitted upon or in any Lot nor shall oil wells, tanks, tunnels, mineral excavations or shafts be permitted upon or in any Lot. No derrick or other structure designed for use in boring for oil or natural gas shall be erected, maintained or permitted upon any Lots. SECTION 11. Storage and Disposal of Garbage and Refuse. No Lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage or other waste materials shall not be kept except in sanitary containers constructed of metal, plastic or masonry materials with sanitary covers or lids. Equipment for the storage or disposal of such waste materials shall be kept in a clean and sanitary condition. No Lot shall be used for the open storage of any materials whatsoever, which storage is visible from the street, except that new building materials used in the construction of improvements erected upon any Lot may be placed upon such Lot at the time construction is commenced and may be maintained thereon for a reasonable time, so long as the construction progresses without undue delay, until the completion of the improvements, after which these materials shall either be removed from the Lot or stored in a suitable enclosure on the Lot. SECTION 12. Electrical Utilities. An underground electric distribution system will be installed in that part of ATASCOCITA TRAILS, SECTION II SUBDIVISION, designated herein as "Underground Residential Subdivision", which underground service area embraces all of the Lots which are platted in ATASCOCITA TRAILS, SECTION II SUBDIVISION. In the evens that there are constructed within the Underground Residential Subdivision structures containing multiple dwelling units such as townhouses, duplexes or apartments, then the underground service area embraces all of the dwelling units involved. The Owner of each Lot containing a single dwelling unit, or, in the case of a multiple dwelling unit structure, the Owner/Developer shall, at his or its own cost, furnish, install, own and maintain (all in accordance with the requirements of the local governing authorities and the National Electrical Code) the underground service cable and appurtenances from the point of electric company's metering at the structure to the point of attachment at such company's installed transformers or energized secondary junction boxes, such point of attachment to be made available by the electric company at a point designated by such company at the property line of each Lot. The electricity company furnishing service shall make the necessary connections at said point of attachment and at the meter. Developer has, either by designation on the plat of the Subdivision or by separate instrument, granted necessary easements to the electric company, providing for the installation, maintenance and operation of its electric distribution system and has also granted to the various homeowners' reciprocal easements providing for access to the area occupied by and centered on the service wires of the various homeowners to permit installation, repair and maintenance of each homeowner's owned and installed service wires. In addition, the Owner of each Lot containing a single dwelling unit, or, in the case of a multiple dwelling unit structure, the owner/Developer shall, at his or its own cost, furnish, install, own and maintain a meter loop (in accordance with the then current Standards and Specifications of the electric company furnishing service) for the location and installation of the meter of such electric company for each dwelling unit involved. For so long as underground service is maintained in the Underground Residential Subdivision, the electric service to each dwelling unit therein shall be underground, uniform in character and exclusively of the type known as single phase, 290/120 volt, three wire, 60 cycle, alternating current. The electric company has installed the underground electric distribution system in the Underground Residential Subdivision at no cost to Developer (except for certain conduits, where applicable, and except as hereinafter provided) upon Developer's representation that the Underground Residential Subdivision is being developed for residential dwelling units, including homes, and, if permitted by the restrictions applicable to such subdivision, townhouses, duplexes and apartment structures, all of which are designed to be permanently located where originally constructed (such category of dwelling units expressly to exclude mobile homes) which are built for sale or rent and all of which multiple dwelling unit structures are wired so as to provide for separate metering to each dwelling unit. The provisions of the two preceding paragraphs also apply to any future residential development in the Reserves shown on the Plat of ATASCOCITA TRAILS, SECTION II, as such Plat exists at the execution of the Agreement for underground electric services between the electric company and Developer or thereafter. Specifically, but not by way of limitation, if a Lot Owner in a former Reserve undertakes some action which would have invoked the above per front Lot foot payment, if such action had been undertaken in the Underground Residential Subdivision, such Owner or applicant for service shall pay the electric company one and 75/100 Dollars ($1.75) per front Lot foot unless Developer has paid the electric company as above described. The provisions of the preceding paragraphs do not apply to any future non-residential development in such Reserves. ARTICLE IV. ARCHITECTURAL CONTROL COMMITTEE SECTION 1. Approval of Building Plans. No building shall be erected, placed or altered on any Lot until the construction plans and specifications and a plot plan showing the location of the structure have been approved in writing as to harmony of exterior design and color with existing structures, as to location with respect to topography and finished ground elevation and as to compliance with minimum construction standards by ATASCOCITA TRAILS, SECTION II Architectural Control Committee. A copy of the construction plans and specifications and a plot plan, together with such information as may be deemed pertinent, shall be submitted to the Architectural Control Committee, or its designated representative, prior to commencement of construction. The Architectural Control Committee may require the submission of such plans, specifications and plot plans, together with such other documents as it deems appropriate, in such form and detail as it may elect at its entire discretion. In the event the Architectural Control Committee fails to approve or disapprove such plans and specifications within thirty (30) days after the same are submitted to it, approval will not be required and the requirements of this Section will be deemed to have been fully complied with. SECTION 2. Committee Membership. Larry D. Johnson, Gerald J. Goff, and Keith B. Turner, all of Houston, Harris County, Texas, are hereby designated and appointed as the Architectural Control Committee, which Committee and its successors, are hereby vested with the full right and authority to act as such under the provisions of these restrictions. A majority of such Committee shall have the right to designate a representative to act for it in all matters arising hereunder. In the event of the death or resignation of any member or members of the Committee, the remaining member or members shall have the full right and authority to designate a successor member or members. Neither the members of such Committee nor any designated representative shall be entitled to any compensation for services performed pursuant to these restrictions. All appointments and designations of persons as successors to the Committee shall be made in writing by a recordable instrument, which shall be filed for record in Harris County, Texas. The powers and duties of the Committee as from time to time constituted, shall continue in force during the effective period of the restrictions hereby created. At any time the then record owners of a majority, of the residential lots on which a residence has been constructed shall have the power through a duly recorded written instrument to change the membership of the Architectural Control Committee, as it pertains to existing construction, and to withdraw from or restore to the Committee any of its powers and duties. Any such instrument affecting said Committee shall show the property owned by each owner signing same, and in case property is owned by man and wife as community property, the signature of the husband alone shall be sufficient, except that in cases where the husband resides elsewhere or has abandoned his wife, her signature alone shall be sufficient. The Architectural Committee hereinabove designated, being Larry D. Johnson, Gerald J. Goff, and Keith B. Turner, their successors and/or designees, shall be the Architectural Committee only for new construction to be constructed on vacant lots in ATASCOCITA TRAILS, SECTION II. The Atascocita Trails Homeowners' Association, its successors, assigns or designees, is hereby designated as the Architectural Committee for ATASCOCITA TRAILS, SECTION II pertaining to any changes made in exterior design or exterior alterations after original construction and only after a house has been occupied as a residence. SECTION 3. Minimum Construction Standards. The Architectural Control Committee may from time to time promulgate an outline of minimum acceptable construction standards; provided however, that such outline will serve as a minimum guideline and such Architectural Control Committee shall not be bound thereby. ARTICLE V. ATASCOCITA TRAILS HOMEOWNERS' ASSOCIATION, INC. SECTION 1. Membership. Every person or entity who is a record Owner of any of the Properties which are subject, or which will be subject upon the completion of improvement thereon, to maintenance charge assessment by the Association, including contract sellers, shall be a member of the ATASCOCITA TRAILS HOMEOWNERS' ASSOCIATION, INC. The foregoing is not intended to include persons or entities who hold an interest merely as security for the performance of an obligation or those having only an interest in the mineral estate. No owner shall have more than one membership. Membership shall be appurtenant to and may not be separated from ownership of the land which is subject to assessment by the Association. Ownership of such land shall be the sole qualification for membership. Other lands may hereafter be annexed into the jurisdiction of the Association in the manner herein described. If annexed, the owners of Lots in each future section so annexed as well as all Owners subject to the jurisdiction of the Association shall be entitled to the use and benefit of all Community Properties that may become subject to the jurisdiction of the Association as a result of such annexation, and the facilities thereon, and shall be entitled to the use and benefit of the maintenance fund, hereinabove set forth, provided that each future section must be impressed with and subject to an annual maintenance charge imposed hereby, and further such sections shall be made by recorded restrictions subject to the jurisdiction of the Association. Upon submission and approval by the Federal Housing Administration or Veterans Administration such additional stages of development may be annexed by action of the Board of Directors of the Association. Upon a merger or consolidation of the Association with another Association, the Associations' properties, rights, and obligations may be transferred to another surviving or consolidated Association, or alternatively, the properties, rights, and obligations of another Association may be added to the properties rights, and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated Association shall administer the Covenants and Restrictions established by this Declaration, together with the Covenants and Restrictions applicable to the properties of the other Association as one scheme. No such merger or consolidation, however, shall effect any revocation change, or addition to the Covenants established by this Declaration. Provided that no such merger or consolidation shall be permitted except upon approval of two-thirds vote of each class of members of the Association. SECTION 2. Maintenance Assessments. Declarant imposes on each Lot within the Properties and hereby covenants and each owner of any Lot by acceptance of a deed thereto, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association the following: (1) annual assessments or charges to be established and collected as herein after provided, and (2) special assessments for capital improvements. The annual and special assessments, together with interest, costs, and reasonable attorney's fees, shall be a charge on the land and shall be secured by a vendor's lien which is hereby reserved in favor of the Association and its successors and assigns, upon each Lot against which each such assessment is made to the same extent as if retained as a vendor's lien by Declarant in each deed to any such Lot and expressly assigned to the Association without recourse to any extent unto Declarant. Each such assessment, together with any accrued interest and all collection costs and reasonable Attorney's fees incurred to enforce payment thereof, shall also be the personal obligation of the person or entity owning such Lot at the time when each assessment becomes due and payable. The personal obligation for delinquent assessments shall not pass to such person's or entity's assignee or successor in title unless expressly assumed by such assignee or successor. Section 3. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to improve, beautify, maintain, manage and operate the Community Association, and to pay taxes and insurance premiums thereon, and to promote recreation, health, safety, convenience and welfare of the Members, such benefits to include by way of illustration but not limitation, providing patrol or watchman service, providing and maintaining street lighting, fogging for insect control, enforcing the Covenants contained in this Declaration, employing at the request of the Architectural Control Committee on or more architects, engineers, attorneys, or other consultants, for the purpose of advising such Committee in carrying out its' duties and authority as set forth in this Declaration, and providing and doing all other things necessary or desirable, in the opinion of the Board of Directors of the Association, for the maintenance and/or improvement of the Community Association, and for the benefit of the Members, the foregoing uses and purposes being permissive and not mandatory, and the decisions of the Board of Directors of the Association being final as long as made in good faith and in accordance with the law and the By-Laws governing the Association. SECTION 4. Maximum Annual Assessment. The rate at which each Lot with a living unit constructed thereon will be assessed shall be the same rate of assessment that applies to Section One of Atascocita Trails Subdivision wherein the Restrictions applicable thereto, recorded in Harris County Deed Records under Clerk's File No. F-042157, state as follows: The rate at which each Lot with a living unit constructed thereon will be assessed shall not exceed $144 per year; provided, however, that for any calendar year after 1977 the Association may increase said rate as the needs of the Association and the judgment of the Association require; except that if any such increase shall cause the annual assessment to be greater than the aforesaid $144, plus the yearly rise, if any, of the Consumer Price Index as published by the United States Department of Labor for the preceding month of July; or more than one hundred ten percent (110%) of the amount assessed in the preceding calendar year, whichever is greater, then shall such an increase require the vote of two-thirds (2/3) of each class of members of the Association who are voting in person or by proxy, at a meeting duly called for that purpose. SECTION 5. Special Assessments for Capital Improvements. In addition to the annual assessments authorized above, the Association may levy against all Lots, 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, reconstruction, repair or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto, provided that any such assessment must 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. SECTION 6. Owner's Easement of Enjoyment. Each owner shall have a right and easement of enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to every Lot subject to the following provisions:
SECTION 7. Voting Right. The Association shall have two classes of voting memberships.
SECTION 8. Rate of Assessment. The Lots in the plat establishing ATASCOCITA TRAILS SECTION II, shall each commence to bear their applicable maintenance fund assessment from and after that certain date fixed by the Board of Directors as the commencement date for same. Lots that are occupied by residents shall be subject to an annual assessment as determined pursuant to Sections 4 and 5, Article V. Lots that are not occupied by residents and that are owned by the Declarant, a builder or a building company shall be assessed at the rate of one-half (1/2) of the annual assessment provided for above. The rate of assessment for an individual Lot, within a calendar year, shall change as the character of ownership and the status of occupancy by a resident changes. The applicable assessment for such a Lot shall be prorated according to the rate required for each type of ownership. SECTION 9. Date of Commencement of Annual Assessments: Due Dates. The annual assessments provided for herein shall commence as to all Lots on the date fixed by the Board of Directors to be the date of commencement. The first annual assessment shall be adjusted according to the number of months remaining in the calendar year. Thereafter, 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. The due dates shall be established by the Board of Directors. The Association, upon demand, and for a reasonable charge, shall furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid. SECTION 10. Effect of Non-Payment of Assessments/Remedies of the Association. Any assessment not paid within thirty (30) days after its due date shall bear interest from the due date until paid at the rate of ten percent (10%) per annum. The Association may bring an action at law to collect such assessment against the owner personally obligated to pay the same and to foreclose the vendor's lien reserved herein against the Lot against which such assessment is levied or may enforce collection by any other means authorized by law. The Association shall be entitled to recover interest accrued at the rate hereinabove set forth, together with collection costs and reasonable attorney's fees incurred by it in enforcing payment of such assessment. No owner may waive or otherwise avoid liability for the assessments provided for herein by non-use of the Common Area or by abandonment or conveyance of his Lot. SECTION 11. Subordination of Lien. The vendor's lien, reserved herein as security for the payment of the annual and special assessments set out herein, shall be subject, subordinate, inferior and secondary to all liens, mortgages and encumbrances, whether now or hereafter existing, that (i) are created to secure the payment of the purchase price of all or any part of any Lot (and any improvements thereon), situated within the plat establishing ATASCOCITA TRAILS, SECTION II, or (ii) are created to secure the payment of all amounts due or to become due under and by virtue of any contract, now or hereafter executed, for the construction, addition or repair of any improvements now or hereafter situated upon all or any part of any Lot situated within the plat establishing ATASCOCITA TRAILS, SECTION II. The sale or transfer of any Lot shall not affect the lien securing the assessments provided for herein. However, the sale or transfer or any Lot, pursuant either to mortgage foreclosure or to any proceeding in lieu-thereof, shall extinguish the lien of such assessments as to any payments that have become due and payable prior to such foreclosure, sale or transfer in lieu thereof. No foreclosure or sale or transfer in lieu thereof covering any Lot shall relieve the purchaser or transferee thereof from liability for any assessments thereafter becoming due and payable nor release any such Lot from the lien securing payment of such subsequent assessments. SECTION 12. Enforcement. In the event of any violation or attempted violation of any of the terms or provision hereof, including any of the restrictions or covenants set forth herein, enforcement of the terms and provisions hereof shall be authorized by any proceedings at, law or in equity against any person or persons so violating or attempting to violate any of the provisions hereof, including by means of actions to restrain or prevent such violation or attempted violation by injunction, prohibitive or mandatory, and it shall not be a prerequisite to the granting of any such injunction that there be inadequate remedy at law or that there be any showing of irreparable harm or damage if such injunction is not granted. In addition, any person entitled to enforce the provisions hereof may recover such damages, either actual or punitive, as such person may show himself justly entitled by reason of such violation of the terms and provisions hereof. The terms and provisions hereof may be enforced by Declarant, by the Association (and the Association is hereby expressly authorized to use its funds for the purpose of assisting in the enforcement of the terms and provisions hereof), or by the Owner of any Lot shown in the plat establishing ATASCOCITA TRAILS, SECTION II. Failure by the Association or any owner to so enforce any covenant or restriction hereof shall not be construed to constitute a waiver of the right to thereafter enforce such provision or any other provision hereof. No violation of any of the terms or provisions hereof or any portion thereof, shall affect the rights of any mortgage under any mortgage or deed of trust presently or hereafter placed of record covering any of the land shown to be within the plat establishing ATASCOCITA TRAILS, SECTION II. ARTICLE VI. GENERAL PROVISIONS SECTION 1. These covenants shall run with-the land and shall be binding upon all parties and all person claiming under them for a period of forty (40) years from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years each, unless an instrument signed by, a majority of the then Owners of the Lots has been recorded agreeing change or terminate said covenants herein, it shall be lawful for the declarant, its successors or assigns, or other Lot Owner to prosecute any proceeding at law or in equity against the person or persons violating or attempting to violate any such covenant and either to prevent him or them from doing so recover damages or other dues for such violations. SECTION 2. Severability. Invalidation of any one of these covenants by judgment or other court order shall in no wise affect any of the other provisions, which shall remain in full force and effect. SECTION 3. FHA/VA Approval. So long as these covenants, conditions and restrictions shall remain in full force and effect, the following actions will require the prior approval of the Federal Housing Administration or the Veterans Administration: (i) annexation of additional properties, (ii) amendment of this Declaration of Covenants, Conditions and Restrictions.
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