2. Declarant’s
Intention: The Declarant intends that the
Property will provide an aesthetically attractive, quiet,
comfortable environment conducive to a style of living
desired by senior citizens and that its residents will
meet the standards necessary to qualify for the exemptions
set forth in Title 42, Section 3607(b) (2) (C) U.S.C., the
Fair Housing Act, as amended by the Housing for Older
Persons Act (HOPA), commonly known as a “senior living
community,” wherein at least eighty percent (80%) of
occupied homes will have at least one person per residence
who is age fifty-five (55) or older.
3. Fifty-five
(55) Age Restriction: After the Effective Date of
this Amendment, no Homesite shall be occupied by any
person unless at least one of the occupants of the
Homesite is at least fifty-five (55) years of age or
older.
4. Exception for Current Owners and Tenants:
Section 3 shall not apply to Owners of Owner occupied
Homesites when the Owners have acquired title to their
Homesite prior to the Effective Date of this Amendment,
but Section 3 shall apply to any Owner who acquires title
to any Homesite after the Effective Date of this
Amendment. Section 3 shall not apply to any tenant whose
lease agreement is signed prior to the Effective Date of
this Amendment, but Section 3 shall apply to any tenant
who acquires a leasehold interest in any Homesite, whether
by entering into an original lease, by subletting or by
assignment, after the Effective Date of this Amendment.
5. Exception for Homesite Owners Acquiring Title as
the Result of the Death of a Spouse: Section 3
shall not apply to any Owner who acquires title to a
Homesite as the result of the death of a spouse. The term
“acquires title to a Homesite as the result of the death
of a spouse” means acquiring title to a Homesite as the
result of succeeding to the interest of a person’s
deceased spouse under a deed creating a tenancy by the
entireties with the deceased spouse, acquiring title to a
Homesite as the result of succeeding to the interest of a
person’s deceased spouse under a deed creating a joint
tenancy with right of survivorship with the deceased
spouse, acquiring title to a Homesite as the result of a
devise from a person’s deceased spouse or by operation of
the intestacy laws of any state as applied to a person’s
deceased spouse, or acquiring title to a Homesite as the
result of acquiring a life estate by the surviving spouse
in a Homesite acquired from the deceased spouse (whether
such life estate is created by will, deed or operation of
law). The term “acquires title to a Homesite as the result
of the death of a spouse” also includes any right of
occupancy or use of property contained in a trust
established by the deceased spouse for the benefit of the
surviving spouse.
6. Restriction on Transfer of Interests:
After the Effective Date of this Amendment: 1. No Homesite
shalt be conveyed, 2. No interest of any kind in any
Homesite shall be conveyed, 3. No Homesite shall be
leased, rented or loaned, 4. No Homesite shall be
subleased, 5. No lease shall be assigned, and 6. No
Homesite shall be occupied, until such time as the
Association has received satisfactory verification of the
age or ages of any proposed occupant(s), buyer(s) or
renter(s) to ensure that the requirements of this
Amendment have been met and has given its written approval
of the proposed occupant(s), buyer(s) or renter(s).
7. Required Provisions in Leases and Other
Agreements: All leases, subleases, assignments,
rental agreements or loan agreements (hereinafter
“Agreements”) shalt be in writing and shall contain a
clause which shall cause immediate termination of the
lease, sublease, assignment, rental or loan in the event
of non-compliance with this Amendment and shall
irrevocably name the Association as attorney-in-fact to
enforce said clause and shall provide for an award of
reasonable attorneys fees and costs to the Association
including but not limited to costs for any appeals or
proceedings in bankruptcy incurred to enforce the
provisions of this Amendment as currently in force or as
further amended from time to time. All such clauses shall
be in a form acceptable to the Association. All leases,
subleases, assignments, rental agreements or loan
agreements shall be submitted to the Association for
approval prior to signing.
8. Obligations of Owners and Others: By acceptance of
a deed to any Homesite in the Property, the Owner
covenants that the Owner and all other occupants shall
comply with the requirements of this Amendment and shall
be bound by its provisions. By entering into any lease,
sublease or by accepting any assignment of any lease to
any Homesite in the Property, the tenant covenants that
the tenant and all other occupants shall comply with the
requirements of this Amendment and shall be bound by its
provisions. By entering into any contract for deed to any
Homesite in the Property, the contract vendee covenants
that the contract vendee and all other occupants shall
comply with the requirements of this Amendment and shall
be bound by its provisions. All Owners, tenants and
contract vendees further agree to cooperate with all
requests to complete any survey, provide any affidavit
requested or required under any regulations issued by the
U.S. Secretary of Housing and Urban Development or the
State of Florida and to fully cooperate with the
Declarant, the Association and all governmental
authorities to ensure qualification for the aforesaid
exemption.
9. Restriction
on Occupancy by Persons Under the Age of Eighteen (18):
No person under the age of eighteen (18) years of age
shall occupy, permanently reside or live in any Living
Unit on any Homesite in Oak Run unless a deviation has
been granted by the Association. The foregoing provisions
shall not prohibit visits and stays of members of an
Owner’s or tenant’s family under the age of eighteen (18)
years for a period of time not to exceed thirty (30) days
in any one (1) calendar year.
10. Deviations: The Association may, but shall
not be required to, grant reasonable deviations from the
requirements of this Section so long as the deviation
shall not cause non-compliance with the provisions of
applicable law, as amended. No approval or grant of
deviation from the requirements of this section shall be
effective unless made in writing and signed by a
responsible officer of the Association. No deviation shall
be issued for a period of more than three (3) years. Any
party requesting an extension of a deviation shall do so
in writing at least ninety (90) days prior to the
expiration of the deviation. The granting of any deviation
or the granting of any extension to any deviation shall
not be construed to create any obligation on the part of
the Association to grant any subsequent deviation or
extension. Deviations are non-transferable and are
non-assignable.
11. Enforcement: Notwithstanding anything to the contrary
contained in the Declarations or elsewhere, the Declarant
shall have the power and authority to jointly or severally
enforce this Amendment and to obtain injunctive or other
relief in the event of its violation and shall be entitled
to an award of their reasonable attorneys fees and costs
(including the cost of any paralegal or legal assistant
employed by any attorney) including but not limited to
costs for any appeals or proceedings in bankruptcy
incurred to enforce the provisions of this Amendment as
currently in force or as further amended from time to
time. Any amount expended by and any fine assessed by the
Declarant shall be treated as a Special Assessment as
hereinafter described. Declarant covenants for each Lot,
and, by acceptance of a deed or other transfer instrument,
whether or not expressed in such deed or instrument, each
Owner of any Lot is deemed to covenant and agree to pay to
the Association the Special Assessments.
12. Effect of Nonpayment of Assessment:
Remedies:
(a) Personal Obligation; All
Special Assessments, together with any late fees,
interests, and costs of collection when delinquent,
including reasonable attorneys' fees (at trial, on
appeal or in bankruptcy) whether or not a lawsuit is
brought (collectively, the "Assessment Charge") shall be
the personal obligation of the person or entity who was
the Owner of the Lot at the time the Assessment Charge
was levied, and of each subsequent Owner. No Owner may
waive or otherwise escape liability for the Assessment
Charge by abandonment of the Lot.
(b) Creation of
Lien; The Assessment Charge also shall be a
continuing lien on the Lot against which the Assessment
Charge is made, which lien is effective upon recording a
claim of lien, but relating back to and having a
priority as of the date of this Supplemental Amendment.
This lien in favor of the Declarant will secure the
Assessment Charge that is then due and that may accrue
subsequent to the recording of the claim of lien and
before entry of final judgment of foreclosure. The lien
in favor of the Assessment Charge is subject to the
subordination provisions of Paragraph 12(d).
(c) Lawsuit for
Payment; Foreclosure of Lien. The Declarant may
bring an action at law against the Owner personally
obligated to pay the Assessment Charge, or may foreclose
the lien in a manner similar to foreclosure of a
mortgage lien, or both. The Association, acting on
behalf of the Owners, shall have the power to bid for an
interest in any Lot foreclosed at such foreclosure sale
and to acquire, hold, lease, mortgage, and convey the
Lot.
(d) Subordination
of the Lien to Mortgages; The lien of the
Assessment Charge will be inferior to the first mortgage
lien of any Mortgagee. Sale or transfer of any Lot
pursuant to foreclosure of such a mortgage, including a
deed in lieu of foreclosure, shall extinguish the lien
as to payments that became due before the sale or
transfer. The transferees of such Lot shall be liable
for any assessments coming due after the sale or
transfer.
(e) Other
Remedies; The Declarant may assess fines of up
to $50.00 per day and suspend the voting rights of an
Owner for any period during which any non-compliance
with this Amendment occurs. Each day of a violation
shall constitute a separate violation, but it shall only
be necessary for the Declarant to send the Owner one
notice of assessment, which notice shall relate back to
the date of the recording of this Amendment. The amount
of such fine not paid within ten (10) days of the date
of the notice, together with all amounts accruing
thereafter, shall constitute a Special Assessment and
may be foreclosed in the manner set forth above.
13. Certificate of Payment: The treasurer of
the Association, upon request of any Owner, shall furnish
a certificate signed by a member of the Board, if
authorized by the Board, stating whether any Assessments
are owed by that Owner. The Board may establish a
reasonable fee for such certificate. Such certificate will
be conclusive evidence of payment of an Assessment through
the date of the certificate.
14. Definitions: The following words when used in this
Amendment (unless the context shall prohibit) shall have
the following meanings:
(a) "Association" - shall
mean and refer to Oak Run Homeowners Association, Inc.,
its successors and assigns.
(b) "Declarant" - shall
mean and refer to OAK RUN ASSOCIATES, LTD., a Florida
Limited Partnership.
(c) "Declarations" -
shall mean and refer to: the Declaration of Covenants
and Restrictions for each specific Neighborhood.
(d) "Effective Date" -
shall mean and refer to the date this Amendment is
recorded in the Public Records of Marion County,
Florida.
(e) "Living Unit" - shall mean and refer to any building
or portion of a building situated upon a Homesite
designed and intended for use and occupancy as a single
residence. By way of example, but not limitation, the
term "Living Unit" shall include a townhouse unit, or
any other form of single residential dwelling, whether
attached or detached.
(f) "Homesite" - shall
mean and refer to any Homesite of land shown on any
recorded subdivision plat of The Properties which has
been designated by the Declarant to contain a Living
Unit. The word Homesite shall also include the Living
Unit located thereon when one has been constructed on
the Homesite.
(g) "Member" of the
Association - shall mean and refer to all Owners, Owners
of a Homesite and the Declarant.
(h) "Owner" - shall mean and refer to the record owner,
whether one or more persons or entities, of the fee or
undivided fee interest in any Homesite located within
The Properties, including the Declarant, but shall not
mean or refer to any mortgagee unless and until such
mortgagee has acquired title pursuant to foreclosure or
any proceeding in lieu of foreclosure.
(i) "Property or Properties" - shall mean and refer to
all areas of land subject to the Covenants.
15. Headings: References to
Sections and Schedules: The headings of the
Sections, paragraphs and subparagraphs of this Amendment
are solely for convenience of reference and shall not
limit or otherwise affect the meaning of any of the terms
or provisions of this Amendment. The references in this
Amendment to Sections, unless otherwise indicated, are
references to sections of this Amendment.
16. Gender and Case: Wherever in this Amendment the
singular number is used, the same shall include the
plural, and the masculine gender shall include the
feminine and neuter genders, and vice versa, as the
context shall require.
17. Severability: The unenforceability or
invalidity of any one or more provisions of this Amendment
shall not affect the validity or enforceability of any
other provisions of this Amendment.
18. Exception for Declarant: The Association
and the Declarant recognize and agree that the Declarant
is still in the process of selling Homesites in the
Property and that the age restrictions contemplated by
this Amendment might cause an increase in Declarant’s
costs if fully implemented against Declarant at this time.
The parties further recognize that the recordation of this
Supplement Amendment confers no advantage to Declarant but
is being executed by Declarant as an accommodation to the
Association and to the residents of Oak Run to implement
the expressed desire of the vast majority of the residents
that the residents live in an age-restricted community.
Therefore, the Declarant shalt have the right to exclude
the initial sale by Declarant of up to one hundred (100)
Homesites from the application of this Supplemental
Amendment so long as said exclusion shall not cause the
number of Homesites occupied by at least one person age
fifty-five (55) or older to drop below eighty percent
(80%) of the total number of Homesites encumbered by the
Declarations of Covenants and Restrictions amended by this
Supplemental Amendment. As used herein, the term “initial
sale” shall mean and refer to Declarant’s first sale of a
Homesite to a Buyer and, should said Buyer default in said
purchase, to any resale of the same Homesite. Declarant’s
right under this paragraph shall be non-assignable.
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