Whispering Oaks Homeowners Association
Covenants
DECLARATION OF COVENANTS,
CONDITIONS, RESTRICTIONS AND EASEMENTS FOR
WHISPERING OAKS SUBDIVISION
AMENDED FOR SUPPLEMENTAL CHANGES THROUGH JULY 5, 2023*
Declaration of Covenants, Conditions, Restrictions and Easements for Whispering Oaks Subdivision is made on __May 4,1998______, by R.L. Morris Development, Inc. and John Wicker.
STATEMENT OF PURPOSE
A. Declarant is the owner of all the “common property” shown on the subdivision plat for Whispering Oaks, recorded at Plat Book 34__, Page 11-13 of the Public Records of St. Johns County, Florida. Phase II, recorded at Plat Book 36, pages 79-80, added in First Supplemental dated October 8, 1999 by Declarant R.L. Morris Development Corporation and recorded in O.R. 1446, Pages 1558-1560. . Phase III, recorded at Plat Book 41, pages 18-19, added in Supplemental dated October 9, 2001 by Declarant R.L. Morris Development Corporation and recorded in O.R. 1661, Pages 131-134.
B. The lots within Whispering Oaks will be used for single-family dwellings. The easements within Whispering Oaks will be used by the various utility providers to furnish services to the neighborhood. The common areas and recreation areas will be transferred to a nonprofit Florida corporation formed or to be formed by Declarant, which corporation will own such areas for the benefit of the homeowners in Whispering Oaks.
NOW THEREFORE, Declarant hereby establishes this Declaration of Covenants, Conditions, Restrictions, and Easements for Whispering Oaks, which will run with the land and be binding on and inure to the benefit of every owner of property within Whispering Oaks.
ARTICLE I – DEFINITIONS (O.R.1316 Pg 1782)
The following definitions apply wherever the capitalized terms appear in this Declaration. Additional terms also may be defined the first time they appear.
1.1 "Articles" means the Articles of Incorporation of the Community Association, filed with the Secretary of State of Florida, as amended from time to time.
1.2 "Assessments" means, collectively, the following charges:
(a) "General Assessment" means the amount charged to each Member to meet the Community Associations’ annual budgeted expenses.
(b) "Individual Lot Assessment" means an amount charged to a Member’s individual Lot for any charges particular to that Lot.
(c) "Special Assessment" means a charge to each Member for capital improvements or emergency expenses.
1.3 "Board" means the Board of Directors of the Community Association.
1.4 "Bylaws" means the Bylaws of the Community Association.
1.5 "Whispering Oaks" refers to Whispering Oaks Subdivision, the plat of which is recorded at Plat Book 34, Page 11-13 of the Public Records of St. Johns County, and to any land later made subject to this Declaration, from time to time.
1.6 "Common Property" means those tracts of land that are (i) deeded to the Community Association and designated in the deed as Common Property, or (ii) labeled as a Common Area, or a Recreation Area on the Plat. The term "Common Property" also means any personal property appurtenant to any real property owned by the Community Association or acquired by the Community Association if the personal property is designated as such in the bill of sale or other instrument conveying it. "Common Property" does not mean any area that is (i) dedicated in the plat to the county or municipal government or other party other than the Community Association, or (ii) sold or dedicated by the Community Association.
1.7 "Community Association" means the Community Association for Whispering Oaks Subdivision its successors and assigns, formed or to be formed by Declarant.
1.8 "Declarant" means R.L. Morris Development, Inc., its successors and assigns. Declarant also may be an Owner. The various rights of Declarant under this Declaration may be separated and assigned to different parties and, if so assigned, each assignee will be considered "Declarant" as to the specific rights so assigned. Declarant may collaterally assign its rights as Declarant by mortgage or other instrument, and such assignees may elect to either exercise the assigned rights or designate another party to exercise such rights if such assignees succeed to Declarant’s interest in Whispering Oaks or any portion thereof.
1.9 "Declaration" means this Declaration of Covenants, Conditions, Restrictions, and Easements for Whispering Oaks and all supplements and amendments to this Declaration.
1.10 "Drainage System" means all drainage rights of way, lakes, ponds, water management tracts, drainage facilities, conservation districts, conservation areas, and buffer zones, as shown on the Plat. The "Drainage System" also means a system that is designed and constructed or implemented to control discharges necessitated by rainfall events, incorporating methods to (i) collect, convey, store, absorb, inhibit, treat, use, or reuse water; or (ii) prevent or reduce flooding, overdrainage, environmental degradation, and water pollution, or otherwise affect the quantity and quality of discharges from the system as permitted pursuant to Chapters 40C-4, 40C-40, or 40C-42 of the Florida Administrative Code.
1.11 "Lot" means any lot shown on a Plat along with any improvements constructed on the Lot.
1.12 "Member" means a member of the Community Association. Each Owner is also a Member. There are two classes of Members.
1.13 "Mortgagee" means any institutional lender that holds a bona fide mortgage encumbering a Lot. The term "institutional lender" specifically includes, but is not limited to, a bank, a savings and loan association, a mortgage lending company, an insurance company, a credit union, and the Federal National Mortgage Association or similar agency.
1.14 "Owner" means the record owner, whether that be one or more persons or entities, of (i) the fee simple title to any Lot, or (ii) a life estate in any Lot. "Owner" does not mean a mortgagee.
1.15 "Plat" means that the plat of Whispering Oaks and the plats of any additional land annexed to and made part of Whispering Oaks, from time to time.
1.16 "Public Records" means and refers to the Official Public Records of St. Johns County, Florida.
1.17 "Rules" means the rules governing the use of the Common Property originally enacted by Declarant and revised from time to time by the Community Association. The procedures regarding the Rules are set forth in Paragraph 5.6.
ARTICLE II -- PROPERTY SUBJECT TO THIS DECLARATION
This article describes the real property of which Whispering Oaks will initially be comprised, and provides the method by which additional property may be added.
2.1 Initial Property. The property initially subject to this Declaration consists of the property shown on the plat of Whispering Oaks.
2.2 Annexation of Additional Property
(a) Parties Authorized to Annex Property. Additional property may be annexed by the following parties:
(i) By Declarant. Unless waived by recorded instrument, Declarant will have the right, but not the obligation, from time to time in its sole discretion, to annex any property to Whispering Oaks, if such property is adjacent to or abuts any property shown on the Plat. In determining whether the property to be annexed is adjacent to or abuts the property shown on the Plat, Declarant may disregard any roads that are situated between the property shown on the Plat and the property to be annexed.
(ii) By Community Association. Additional property may be annexed to Whispering Oaks by the Community Association, but only after the termination of the Class B Membership.
(b) Procedure. The party effecting the annexation shall record a Supplemental Declaration in the Public Records. The Supplemental Declaration shall be executed by either Declarant, its assigns, or the president of the Community Association. The Supplemental Declaration shall contain the legal description of the property being annexed. The Supplemental Declaration may contain special provisions applicable to the property being annexed. These special provisions may limit the applicability of specific covenants, restrictions, and easements contained in this Declaration to the annexed property or may impose additional or different covenants, conditions, or restrictions to reflect the different character of the property being annexed. The party making the Supplemental Declaration will have sole discretion to determine the special provisions to be contained in the Supplemental Declaration; however, no special provisions may be included that exempt the owners of the property being annexed from equitably sharing in common expenses. Upon recording the Supplemental Declaration, the annexed property will become part of Whispering Oaks
2.3 Further Subdivision or Replat of Lots. Owners (other than Declarant) may not subdivide or separate any Lot into smaller lots; however, this shall not prohibit corrective deeds or similar corrective instruments. Any Owner may, by recording an instrument to that effect in the Public Records, combine two or more Lots for a single homesite, whereupon the combined property will be deemed to be a single Lot for all purposes. Declarant shall have the right to modify the Plat to make adjustments to Lot boundary lines if the Owners of the affected Lots consent. Declarant may make other adjustments to the Plat if Owners are not materially affected or if all Owners who will be materially affected consent to the modification. Owners shall not unreasonably withhold their consent to an adjustment, and consent will be deemed given if an Owner does not object in writing to a request for the Owner’s consent. Declarant also may replat a Lot or Lots to Common Property, to roadway, or to other legal purpose, without the consent of the other Owners, whereupon such replatted Lot or Lots will no longer be deemed a "Lot." Declarant also may establish additional easements on a Lot or Lots without the consent of the other Owners.
ARTICLE III -- ARCHITECTURAL REVIEW
AND CONSTRUCTION REQUIREMENTS
As authorized by Florida Statute 720.305 (2), the Association may levy a fine of $100 per violation against any member, tenant, guest, or invitee. The fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing, except that no such fine shall exceed $1,000 in the aggregate. A notice of at least 14 days shall be given to the person sought to be fined and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If the committee, by majority vote, does not approve a proposed fine, it may not be imposed. (Added in Fifth Supplemental dated January 12, 2004 by Whispering Oaks Homeowners Association of St. Augustine Beach, Inc. and recorded in O.R. 2120, Pages 1746-1747).
To ensure that the homes and accessory buildings within the neighborhood are harmonious, Declarant will create an architectural review committee to approve all construction. Although certain requirements are specified herein, the Architectural Review Committee will not be limited to the specific requirements but rather will have broad discretion.
3.1 Architectural Review Committee.
(a) Composition. The Architectural Review Committee will consist of a single person or a committee of volunteers from the Whispering Oaks community and approved by the Association Board.
(b) Professional Advisor. The Architectural Review Committee may employ one or more architects or land planners to advise the Architectural Review Committee. Each advisor may sit on the Architectural Review Committee as either a voting or nonvoting member, at the discretion of the other members of the Architectural Review Committee. At the discretion of the Architectural Review Committee, the advisor may be paid a reasonable fee derived from application fees or payable by the Community Association from the General Assessment.
3.2 Architectural Review Procedure.
(a) Construction Subject to Review. All construction, improvements, remodeling, or modification on or to a Lot, except interior alterations not affecting the external appearance of the Lot or improvements on a Lot, must be approved in advance by the Architectural Review Committee. This specifically includes, but is not limited to, painting or other alteration of a building (including doors, windows, and trim); replacement of roof or other parts of a building other than with duplicates of the original material; installation of antennas, satellite dishes or receivers, solar panels, or other devices; construction of fountains, swimming pools, whirlpools, or other pools; construction of privacy walls or other fences or gates; addition of awnings, flower boxes, statues, or other outdoor ornamentation; addition of outdoor window coverings, installation of a well; and initial landscaping and any material alteration of landscaping. This right is general and is not limited to the specific items listed in this paragraph or in Paragraph 3.4.
(b) Application. The plans to be submitted for approval shall include (i) the construction plans and specifications, including all proposed clearing and landscaping; (ii) elevations of all proposed improvements; (iii) a lot survey showing current improvements; and (iv) such other items as the Architectural Review Committee requires. No construction, material deliveries or ground alterations on any Lot shall be commenced and no Lot shall be modified except in accordance with the submitted plans and approved permits. Any modification to the approved plans must also be reviewed and approved by the Architectural Review Committee.
(c) Basis for Decision. The Architectural Review Committee, in making its decisions, may consider purely aesthetic matters that in the sole opinion of the Architectural Review Committee will affect the desirability or suitability of the construction. The Architectural Review Committee will not be limited to the specific restrictions and requirements of this Article in making its decisions.
(d) Application Fee; Deposit. The Architectural Review Committee may establish procedures for the review of applications, and impose a reasonable fee to be paid by the applicant. The ARC also may require an applicant to post a security deposit to ensure that all work is effected only in accordance with approved plans. The ARC may retain the security deposit until all work and any repairs to damages to common areas or roads has been completed in accordance with the approved plans.
(e) Notification of Approval. The Architectural Review Committee must notify an applicant electronically or in writing of its decision within 30 days of receiving a completed application. If approval or disapproval is not given within 30 days after submission of a completed application, the application will be deemed approved unless the applicant agrees to an extension.
(f) Enforcement. If any construction or modification is undertaken that has not been approved or that deviates substantially from the approved plans. The board may bring an action for specific performance, declaratory decree, or injunction, and will be entitled to recover all costs of such action including attorneys fees at trial or on appeal. Any such action also shall determine entitlement to any retained security deposit. The board will have the right to enforce these provisions. The failure to strictly enforce these provisions as to a particular violation or violations will not be deemed a waiver to enforce these provisions as to future or continuing violations.
3.3 Liability. The Architectural Review Committee and Association Board will not be liable to the applicant or to any other party to ensure that the proposed plans comply to any applicable building codes, for inadequacy or deficiency in the plans resulting in defects in the improvements, or to ensure that construction was done in accordance with the plans.
3.4 Specific Restrictions. The following restrictions shall apply to the Lots; however, the Architectural Review Committee will not be limited to these items when reviewing plans and will have broad discretion in the interpretation of these restrictions.
(a) Residential Building. No building may be erected, placed or permitted to remain on any Lot other than one single-family dwelling, a two-car, attached garage, and if approved by the Architectural Review Committee, accessory buildings that do not furnish residential accommodations for an additional family.
(b) Building Restriction Lines. No dwelling shall be located nearer to the streets or adjacent Lots than the applicable building setback requirements on the applicable Plat.
(c) Minimum Floor Space. Each single-story dwelling located on a Lot must contain at least 1,700 square feet of floor area, and each multi story dwelling located on a Lot must contain at least 1,700 square feet of floor area, (added 8th supplemental dated February 1, 2021 by Whispering Oaks Home Owners Association of St. Augustine Beach, Inc. and recorded in O.R. 5167 page 593) of which 1,000 square feet must be on the first floor thereof, with the following exception: If the garage constitutes ground floor and is 60% or more subterranean then first floor will mean living area above garage level. "Floor area" means only enclosed livable floor area and does not include garages, porches (open or with screened enclosures), terraces, or patios. No stilt homes.
(d) Garages. Unless otherwise specifically approved by the Architectural Review Committee, no building may be constructed separate and apart from the dwelling. Each dwelling must have an attached enclosed garage to accommodate at least two (2) and not more than four (4) cars. No carports will be permitted. Without the prior written approval of the Architectural Review Committee, no garage may be enclosed permanently or converted to another use with the substitution of another garage on the Lot.
(e) Driveways. All Lots must have a paved driveway of stable and permanent construction extending from the adjacent street to the dwelling. All driveways must be of concrete, pavers, asphalt, or other approved material.
(f) Exterior Color and Materials. The color and materials of all exterior surfaces will be subject to approval of the Architectural Review Committee. The Architectural Review Committee may promulgate a list of approved neutral colors and materials for this purpose. This restriction includes window tints and films.
(g) Pools, Play Facilities, and Lighting. All recreation facilities constructed or erected on a Lot, including, without limitation, swimming pools and any other play or recreation structures, basketball backboards, platforms, playhouses, dog houses, or other structures of a similar kind or nature must be adequately walled, fenced, or landscaped in a manner specifically approved by the Architectural Review Committee before such facility is constructed or erected. All exterior lighting must be specifically approved by the Architectural Review Committee.
(h) Non-Interference With Easements. No structure, planting, or other material may be placed or permitted to remain on a Lot if it may damage or interfere with the installation and maintenance of any entry way, hedge, planting, tree, grass, fence, or other improvement or landscaping located within the Common Property or Drainage Easement. Any easement area located on a Lot and all improvements on an easement area shall be maintained by the Owner of the Lot whereon the easement area lies, except for those easement areas the maintenance of which is the responsibility of a public authority, utility, or the Community Association. In any event, an Owner may not interfere with the maintenance of an easement area on the Owner’s Lot by the party responsible for maintaining the same. This provision may be enforced by any person or party benefiting from the easements or responsible for the maintenance of them.
(i) Utility Connections. Connections for all utilities, including, but not limited to, water, sewage, electricity, telephone, and television must be run underground from the connecting point therefrom to the dwelling in such a manner as is acceptable to the respective utility authority or company and the Architectural Review Committee. Wells may be installed only for irrigation purposes.
(j) Air Conditioning Units. No window or wall air conditioning unit will be permitted on any Lot.
(k) Mailboxes. Mailboxes are in central locations provided and maintained by the United States Postal Service.
(m) Clothes Drying Area. No clotheslines or other facilities or apparatus for the drying of clothes outside of a dwelling shall be constructed or maintained on a Lot if viewable from other Lots, Common Property, or adjacent roads.
(n) Signs. The size, color, and design of all signs located on a Lot will be subject to the approval of the Architectural Review Committee. No sign of any kind shall be displayed to general view on any Lot (whether freestanding, attached to a Building, or displayed in a window) except under any of the following circumstances:
(i) Directional or traffic signs may be installed by the appropriate governmental authority, or by the Board, and entrance or other identification signs may be installed by or with the consent of the Architectural Review Committee;
(ii) One "For Sale" sign not more than two square feet (as measured on each side of the sign) may be displayed on a Lot by the Owner or the agent for such Owner; and
(iii) A name plate and address plate in size and design approved by Declarant may be displayed on a Lot.
(iv) A single security system sign near the house is permitted.
(v) Sport team and special events (e.g. birthday, graduation...) flags or signs may be displayed on game or event day only.
(vi) No political signs or flags are allowed.
(vii) All other flags and signs must be approved by the Architectural Review Board.
(o) Fences. No fences, except as may be required by law or government regulation, may be erected on any Lot without prior written approval of the Architectural Review Committee. The Architectural Review Committee may specify the height, location, and material as conditions of any approval. The Architectural Review Committee will select a single color or other finish for all fences in order to maintain a uniform appearance throughout Whispering Oaks. Fences shall be located only where indicated on plans approved by the Architectural Review Committee but, generally, will be permitted only in the rear and side yards of a Lot. Accordingly, fences will not be permitted closer to the street than twenty-five (25) feet behind the front face of the dwelling located on a Lot. If the front of the dwelling is irregular in design, the Architectural Review Committee will determine the setback requirement for the fences.
3.5 Temporary Structures. No structure of a temporary nature, whether a trailer, tent, shack, garage, barn, or any other such building, is permitted on a lot. This restriction excludes temporary buildings used in connection with and during the construction of a dwelling if approved by the Architectural Review Committee.
3.6 Completion of Construction and Repairs. The improvement of a Lot and the construction, repair, or remodeling of any improvement must be diligently and continuously pursued once begun and, in any event, promptly completed. The Architectural Review Committee may, as a condition of approval, impose a deadline to complete construction. In addition to any other remedies, the Architectural Review Committee may impose a fine for each day of violation for work that is not diligently pursued, continued, and completed.
3.7 Destruction Or Damage to Subdivision Improvements. Owners will be responsible for any and all damage caused to Common Property or subdivision improvements, including, but not limited to, curbs, gutters, water hydrants, sidewalks, power poles, light fixtures, signs, landscaping, gates or fences erected by anyone, whether such damage is caused by the Owner or the Owner’s employees, agents, invitees, guests, contractors, or subcontractors. Any liability incurred under this provision will be both a personal obligation and an Individual Lot Assessment on such Owner’s Lot.
3.8 Trees. No living trees with a diameter of six (6) inches or more, when measured at a height of five (5) feet above the natural grade, may be removed, cut down, or destroyed without the prior approval of the Architectural Review Committee, except if the tree poses an immediate danger to life or property. This restriction will apply to all live oak trees of any diameter with a height of at least twelve (12) feet. This prohibition will not prohibit the usual and customary pruning or trimming of trees. If this provision is violated, an Owner may be required to replace the subject tree or otherwise mitigate the damages directed by the as directed by the Architectural Review Committee. An Owner must use reasonable care to preserve, in good health, all protected trees on the Owner’s Lot.
3.9 Other Covenants. The Lots also will be subject to any master covenants recorded in the Public Records for real property including the Lots.
3.10 Application. Once review passes to Association, the Association will be bound by all past agreements and any amendments will apply only to future applications.
ARTICLE IV -- USE OF PROPERTY, INDIVIDUAL LOTS
As authorized by Florida Statute 720.305 (2), the Association may levy a fine of $100 per violation against any member, tenant, guest, or invitee. The fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing, except that no such fine shall exceed $1,000 in the aggregate. A notice of at least 14 days shall be given to the person sought to be fined and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If the committee, by majority vote, does not approve a proposed fine, it may not be imposed. (Added in Fifth Supplemental dated January 12, 2004 by Whispering Oaks Homeowners Association of St. Augustine Beach, Inc. and recorded in O.R.2120 , Page 1746.)
The following restrictions are imposed on the use of the Lots to promote a harmonious neighborhood and limit uses that may be a nuisance to other Owners.
4.1 Residential Use. No business or commercial building may be erected on any Lot. No business or commercial activity may be conducted on any Lot. This restriction excludes owners and residents working from home that do not have clients and employees coming to the lot.
4.2 Leasing. Leasing and short term rental of lots for terms of less than twelve months is not permitted.(added tenth supplement dated July 5, 2023 by Whispering Oaks Homeowners Association of St. Augustine Beach, Inc. and recorded in BK: 5786 PG:1559). Owners will be liable for any violations of this Declaration committed by their tenants.
4.3 Maintenance of Exteriors. Each Owner shall at all times maintain the exterior of all structures on the Owner’s Lot and any and all fixtures attached thereto in a sightly manner. If an Owner fails to undertake the necessary repair or maintenance within five (5) days of notice of violation (given by the Architectural Review Committee) or fails to complete the work within fifteen (15) days of the notice, the Community Association may effect the repairs or maintenance to the Owner’s Lot to preserve the beauty, quality, and value of the neighborhood and the costs of these repairs or maintenance plus a 15% administrative fee shall be payable by the Owner to the party effecting the work. If the Owner fails to make this payment within five (5) days of demand, the costs and fee will constitute an Individual Lot Assessment against the Owner’s Lot. If the work was effected by Declarant, the Community Association will be responsible to pay the requisite costs and fee to Declarant and collect the same from the Owner. Each Owner the Community Association, and their respective contractors, employees, and agents a perpetual easement to enter onto the Owner’s Lot to carry out the work, and releases those parties from all liability with respect to such work. Additionally, the Community Association may impose a fine for each day this paragraph is violated.
4.4 Noxious Vegetation. No Owner may permit the growth of noxious weeds or vegetation on the Owner’s Lot or on the land lying between the street pavement and the front lot line of the Owner’s Lot. All unimproved areas of a Lot must be maintained in an attractively landscaped and sightly manner. The Community Association may impose a fine for each day this paragraph is violated.
4.5 Litter, Trash, Garbage. No garbage, trash, refuse, or rubbish may be deposited, dumped, or kept on any Lot except in closed sanitary containers. Trash containers must be kept inside a garage or otherwise hidden from public view. Trash containers may be placed at the front of the Lot on the night before or on the day designated for pickup, but only if promptly returned to the proper storage area and no later than 24 hours from pick-up.
4.6 Nuisances. No Owner may cause or permit unreasonable noises or odors on the Owner’s Lot. No Owner may commit or permit any nuisance, any immoral or illegal activity, or anything that may be an annoyance or a noxious or offensive activity to the other Owners or their guests. Soliciting within Whispering Oaks is strictly prohibited without the approval of Declarant or the Community Association.
4.7 Parking of Wheeled Vehicles and Boats. Cars, trucks, tractors, recreational vehicles, and trailers (collectively called “Vehicles”) must be kept at all times completely inside a garage and are not permitted to be parked elsewhere on a Lot or on a street within the Plat except as otherwise specifically permitted in this paragraph. Boats and boat trailers should be kept at all times completely inside a garage. Private cars or private trucks (exclusive of all other Vehicles) owned by an Owner or an Owner’s guests may be parked in the Owner’s driveway, but only if they do not display commercial signs. Commercial boats and vehicles may be parked in a street or driveway when necessary for providing services to an Owner, or for)) pickup and delivery service, but only while undertaking this activity and never overnight. Recreational vehicles, travel trailers, trailers, and campers may be parked in the driveway of a Lot for up to a total of forth-eight (48) consecutive hours (two nights) per week for loading and unloading only or as otherwise specifically permitted by the Architectural Review Committee. No Vehicles may be repaired or maintained on or adjacent to a Lot, except within a garage. Vehicles engaged in construction of subdivision improvements or dwellings will be permitted within Whispering Oaks for such purposes.
4.8 Garage Doors. Garage doors must be kept closed except when opened to permit persons or vehicles to enter and exit from a garage.
4.9 Pets. Up to three (3) “household pets” may be kept at a Lot. All other pets and animals are strictly forbidden to be kept, bred, or maintained within Whispering Oaks. A “household pet”: is a dog, cat, or other common domestic animal approved by the Architectural Review Committee. In no event may any pet, including household pets, be kept, bred, or maintained for any commercial purpose. Each Owner will be strictly responsible for the behavior of his or her household pets. An Owner may not permit the household pet to become a nuisance or annoyance to other Owners. Each Owner will be responsible to immediately collect and dispose of waste and litter from the Owner’s pets. Pets will not be allowed on the Common property except in designated areas and then only in compliance with the Rules.
ARTICLE V -- COMMON PROPERTY
The Community Association will own and maintain the Common Property for the benefit of all Members and, when necessary, improve, convey, or lease the property.
5.1 Title to Common Property.
(a) Ownership. The Common Property will be owned by the Community Association for the benefit of all Owners.
(b) Conveyance. The Community Association is authorized by buy or lease real or personal property to be added to the Common Property. The Community Association may sell or lease any part of the Common Property; however, membership approval is not needed for the Board to sell personal property or to grant easements on real property.
(c) Dedication. If the county or municipal government requests that the Community Association convey title to or dedicate the Common Property or any portion thereof to the public, the Community Association will be authorized to make such conveyance or dedication, but only with the approval of the Members. Upon such dedication, all obligations of the Community Association regarding the property so dedicated will cease except for requirements imposed as a condition of the dedication.
5.2 Maintenance; Management; Contracts and Utilities
(a) Community Association Responsibility. The Community Association will be responsible for the management, control, and improvement of the Common Property and must keep the same attractive, clean, and in good repair in accordance with this Declaration and applicable governmental regulations.
(b) Management Agreements. The Community Association may contract with the party for the performance of all or any portion of the management of the Community Association and the Community Association’s maintenance and repair obligations. Management costs will be included within the Assessments. The property manager for the Community Association, its employees, officers, contractors, and assigns will have the right to use the Common Property without liability for Assessments or other charges, as more particularly specified in the management agreement.
(c) Utilities. The St. Johns County Utility Department is responsible for the maintenance of the gravity sewer lines from manhole to manhole. Lot owners are responsible for the horizontal lateral service pipes connecting their lots to the main sewer line.
(Added Sixth Supplement dated February 9, 2017 by Whispering Oaks Homeowners Association of St. Augustine Beach Inc. and recorded in OR1316 page 1781.)
5.3 Capital Improvements. The Community Association may make capital improvements to the Common Property and may modify the uses of the Common Property.
5.4 Damage or Destruction of Common Property by Owner. If any Owner or any guest, tenant, licensee, agent, employee, family member, or pet of an Owner damages any of the Common Property as a result of negligence or misuse, the Owner hereby authorizes the Community Association to repair the damage. The cost or repair will be the responsibility of that Owner and will become and Individual Lot Assessment payable by the responsible Owner.
5.5 Compliance with Laws. Lots and the Common Property may be used and must be maintained in accordance with all applicable laws, ordinances, and regulations, including, without limitation, all regulations and requirements of the St. Johns River Water Management District and the Florida Department of Environmental Protection.
5.6 Rules for Use of Common property. Members will have the right to use the Common Property only in accordance with the terms of the Rules initially made by Declarant and revised from time to time by The Community Association. The Rules may restrict the time of use, provide for the reservation of certain recreation facilities, provide limitations on use of the Common property by a Member’s guests and lessees, and provide for the imposition of a fee or charge for use of certain facilities, provided such fee or charge is uniformly assessed. No Member will be entitled to any rebate or reduction in such Member’s Assessments on account of any such restrictions imposed on the Member’s use of the Common Property. The Rules will be kept at the offices of the Community Association and copies will be made available without charge to any Member requesting the same.
5.7 Use of Common Property by Civic Groups. The Community Association may permit persons and groups other than Members to use the Common Property for civic, charitable, educational, or other purposes; provided that the costs associated with such use are paid by the person or group using the Common Property. The Board will have the authority to determine which person and groups may use the Common Property, and shall establish a schedule of applicable fees. The property manager for the Community Association may be delegated this authority in the management agreement.
5.9 Drainage System Located in Common Property. The Community Association will be responsible for the maintenance, operation, and repair of such portion of the Drainage System as is located on Common Property. Maintenance means the exercise of practices that allow the system to provide drainage, water storage, conveyance, or other stormwater management capabilities as permitted by the. Johns River Water Management District. Any repair or reconstruction of the Drainage System shall be as permitted or, if modified, as approved by the St. Johns River Water Management District.
ARTICLE VI -- GRANT AND RESERVATION OF EASEMENTS
Every Owner has the benefit of certain easements and the responsibility for others.
6.1 Owners. Owners’ Easement of Enjoyment of the Common Property. Every Owner will have a right and easement of enjoyment in and to the Common Property, subject to the restrictions imposed in this Declaration or in the Rules. This easement will be appurtenant to and shall pass with title to every Lot. Any Owner, subject to the provisions of this Declaration, the Articles, the Bylaws, and the Rules,. May delegate the Owner’s right to enjoyment of the Common Property to the Owner’s family, tenants, and guests.
6.2 Easements in Favor of the Community Association. The Community Association the following perpetual easements:
(a) Utilities. Easements, for ingress, egress, installation, replacement, repair, and maintenance of all public and private utilities and conveniences, upon all property subject to Public Utility Easements as shown on the Plat; across, over, through, and under the Common Property; and five (5) feet in width along the front, rear, and side line of each Lot. This easement shall be automatically deemed abandoned as to the interior side Lot lines if two (2) or more Lots are combined into a single home site.
(b) Police Powers: Security. A blanket easement throughout Whispering Oaks for police powers and services supplied by the local, state, and federal governments and for any security services that may be provided by the Community Association.
ARTICLE VII -- ASSOCIATION ORGANIZATION
Although Declarant will control the Community Association during the development stage, the Owners eventually will be responsible for the continuation of the Community Association.
7.1 Membership. Every Owner is a mandatory Member of the Community Association. Membership is appurtenant to and may not be separated from title to any Lot.
7.2 Voting Rights. The Community Association will have two classes of voting membership:
(a) Class A. Class A Members are all Owners of Lots other than Declarant, while Declarant is a Class B Member. Class A. Members will be entitled to one vote for each Lot owned.
(b) Class B. Class B Member is Declarant, who shall be entitled to ten (10) votes in all matters for each Lot owned by the Class B Member or its affiliates. Declarant may assign its Class B Membership. The Class B Membership will end and be converted to Class A Membership three (3) months after the first to occur of the following events.
(i) The total votes outstanding in the Class A Membership equals the total votes outstanding in the Class B Membership;
(ii) All phases of Whispering Oaks have been completed and made subject to this Declaration, and 90% of the Lots within Whispering Oaks have been conveyed to Members other than the Class B Members; or
(iii) Declarant chooses to become a Class A Member, as evidenced by instrument to such effect, executed by Declarant and Declarant’s mortgagees holding a mortgage encumbering Whispering Oaks or portion thereof, which is recorded in the Public Records.
7.3 Exercise of Vote. When more than one person holds an interest in any Lot, all such persons shall be Members; however, the number of votes for that Lot will not be increased, and the Members must determine among themselves how the Lot’s vote may be exercised. Corporations, partnerships, and other entities must notify the Community Association of the natural person who will be considered a Member of the Community Association and be entitled to exercise its vote.
7.4 Board of Directors.
(a) Composition. The Board initially will consist of at least three (3) persons appointed by Declarant. Upon termination of the Class B Membership, the Board will consist of at least three (3) directors, selected in accordance with the Articles and Bylaws, but in any event, the number of directors must always be at least three (3) or an odd number of members (5, 7, 9...).
(b) Classes. Each director will be appointed or elected to one of three (3) classes: Class 1, Class 2 or Class 3. Directors will be elected by class to provide for staggered terms. If the number of directors is increased, it shall be in multiples of three (3) and each new position must be assigned to a class so that each class will have an equal number of directors.
(c) Term of Office. The initial term for the Class 1 director will be for one (1) year. The initial term for the Class 2 director will be for two (2) years. The initial term for the Class 3 director will be for three (3) years. Subsequent terms for directors of any class will be for three (3) years; however, directors will always serve until resignation, removal, or the election of their successors.
(d) Qualifications. After termination of the Class B Membership, each director must be a Member. If a director ceases to be a Member during the term of office, such person will be automatically removed from the Board, effective upon such occurrence.
(e) Voting Procedure. At each annual meeting, the Members will elect the directors to replace the directors of the class whose term of office is then expiring. Each Class A Member will have one (1) vote for each seat to be filled and the Class B Member will have ten (10) votes for each Lot owned by the Class B Member or its affiliates. No cumulative voting will be permitted. The candidate (s) receiving the highest number of votes will be declared elected. If there is a tie vote, the Class B Member will be given one (1) additional vote and the opportunity to cast such vote to break the tie. The meeting will, in other respects, be conducted in accordance with the Articles and the Bylaws.
(f) Removal. Any director may be removed from office, with or without cause, by at least a majority vote of the Members.
(g) Vacancies; Replacement of Directors. Any vacancy occurring in positions as director may be filled by majority vote of the remaining Board members. If the remaining Board members do not constitute a quorum, a special meeting of the Community Association may be called by any officer or by any Member to elect new members to the Board.
(h) Compensation. Directors will not receive compensation for their services unless approved by the Members. This will not prevent a Class B Member or an affiliate of a Class B Member from being compensated for management or other services.
7.5 Relationship to Articles and Bylaws. The Articles and Bylaws will govern all matters of the Community Association not set forth in this Declaration. The terms of this Declaration will prevail over any conflicting provisions in the Articles and Bylaws.
ARTICLE VIII -- OPERATION OF ASSOCIATION AND BOARD
Most day-to-day decisions about the maintenance of the Common Property and enforcement of the Declaration are the responsibility of the Board, acting on the Members’ behalf. For those decisions requiring Members’ approval, the Community Meeting provides a public opportunity for discussion.
8.1 Annual Meeting.
(a) When called. The Annual Meeting will be called every year for the election to the Board of the class of directors whose term then expires and for other business requiring approval of the Members. The meeting date shall be as determined by the Articles and Bylaws.
(b) Quorum. Voting at an annual meeting requires the presence of (I) Members (in person or by proxy) representing 30% of votes, and (ii) Declarant or its representative so long as Declarant owns at least one Lot.
(c) Notice. Notice of the annual meeting may be given by (I) mailing a notice to each Member at the last address furnished to the Community Association, (ii) delivering notices to the Member’s dwellings or Lots, or (iii) posting conspicuous notices for the meeting in the Common Property. Notice should be given at least thirty (30) days before the annual meeting.
8.2 Board Meetings.
(a) Board’s Responsibility. Except as specifically provided in this Article or elsewhere in this Declaration, the Board has been delegated the power, and has the authority to act on behalf of the Community Association in all matters.
(b) Quorum. Voting at a Board meeting requires presence of at least one-half of the directors (in person or by proxy). Except as prohibited by law, action required to be taken by vote of the Board may be taken in the absence of a meeting by obtaining the written approval of a majority of the Board.
(c) Notices. Notices of all meetings of the Board shall be posted in a conspicuous place in the Common Property forty-eight (48) hours in advance, absent emergency. If the Board desires to levy an assessment at a meeting, the notice must include a statement describing the assessment being considered. All meetings must be open to the Members, except for meetings permitted by law to be closed.
8.3 Record Keeping. The Board shall keep, or cause to be kept, a record of all meetings, both of the Board and of the Community Association. For each action taken, the record must state the vote and a description of the action approved, and, if applicable, the reasons why the action was considered necessary and a summary of the information on which the decision was based. The record must be available for inspection by any Member, except for records of closed meetings of the Board. Officers may be elected by the Board by secret ballot.
ARTICLE IX -- ASSOCIATION BUDGET
To fulfill its obligation to maintain the Common Property, the Board is responsible for the fiscal management of the Community Association.
9.1 Fiscal Year. The fiscal year of the Community Association will begin January 1 or each year and end on December 31 of that year. The Board may elect another fiscal year. The Board must prepare an annual Budget.
9.2 Budget. A copy of the budget must be provided to each Member or a notice must be given to the Members that a copy of the budget is available upon request and without charge. The ;annual budget will estimate total expenses to be incurred by the Community Association in carrying out its responsibilities. The budget must include -
(a) The cost of wages, materials, insurance premiums, services, supplies, and other expenses for the rendering of all services required or permitted under this Declaration.
(b) Reasonable amounts, as determined by the Board, for working capital for the Community Association and for reserves;
(c) Fees for professional management of the Community Association (which may include Declarant), legal counsel, and accounting;
(d) Taxes, if the Common Property is taxed separately from the Lots; and
(e) An estimate of revenues from the General Assessment.
9.3 Reserves. The Community Association shall accumulate and maintain adequate reserves for working capital, contingencies, and replacements, to be included in the annual budget and collected as part of the annual General Assessment. This shall not occur until the termination of Declarant’s guarantee described in Paragraph 10.2 of this document. Extraordinary expenses not originally included in the annual budget will be charged first against such reserves. Except in the event of an emergency, reserves accumulated for one purpose may not be expended for any other purpose. If there is an excess of reserves at the end of a fiscal year, such excess may be used to reduce the following year’s assessments.
9.4 Preparation and Approval of Annual Budget.
(a) Initial Budget, Declarant will prepare the first annual budget.
(b) Subsequent Years. Budget other than the initial budget will be prepared at the direction of the Board at least one (1) month before the end of the fiscal year. The budget and the annual General Assessment must be adopted by a majority of the Board.
9.5 Effect of Failure to Prepare or Adopt Budget. The Board’s failure or delay in preparing or adopting the annual budget for any fiscal year will not waive or release a Member’s obligation to pay General Assessments, whenever the amount of such assessments is finally determined. In the absence of an annual Community Association budget, each Member shall continue to pay the assessment at the rate established for the previous fiscal period until notified otherwise.
9.6 Financial Reporting. The Board shall prepare an annual financial report for the Community Association within sixty (60) days of the close of the fiscal year and either provide each Member with a copy of the report or a notice that a copy is available without charge. The report must be in form required by 6.17.303(7), Florida Statutes.
9.7 Capital Improvements. The Board shall determine whether capital improvements should be paid from General Assessments or by Special Assessment. If the cost of all capital improvements to be paid within a single year totals more than 25% of the Community Association’s annual budget, the capital improvements must be approved by majority vote of the Members. Any repair or replacement of existing improvements will not be considered a capital improvement.
9.8. Reserves shall be kept separate from other Community Association funds. All other sums collected by the Board with respect to Assessments and charges of all types may be commingled in a single fund.
9.9 Amendment of Budget. The Board may amend the budget during any fiscal year and increase the amount of the annual General Assessment for such year if it appears that there will be insufficient income to meet the obligations of the Community Association.
ARTICLE X -- COVENANTS TO PAY ASSESSMENTS
The cost of fulfilling the Community Association’s financial obligations is divided equitably among the Members by means of Assessments. To ensure that the Community Association has a reliable source of funds and to protect those Members who contribute their equitable share, assessments are mandatory and are secured both by a lien on the Lots and the Member’s personal obligation.
10.1 Obligation for Assessments. 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 Community Association the following (to be known collectively as “Assessments”):
(a) General Assessment for expenses included in the budget;
(b) Special Assessments for the purposes provided in this Declaration, and
(c) Individual Lot Assessments for any charges particular to that Lot.
10.2 Guarantee of Class B member. The Class B Member agrees that it will be obligated to pay any operating expenses of the Community Association in excess of the revenue derived from the Assessments, including any increases made during a fiscal year, until the end of the first fiscal year of the Community Association. This obligation is called the “Budget Guarantee.” The Class B Member may elect to renew the Budget Guarantee on an annual basis. In return for the Budget Guarantee, the Class B Member and its affiliates will not be liable for any Assessments on any Lots it owns. A Lot exempt from Assessments pursuant to this paragraph is referred to as an “Exempt Lot.”
10.3 Equitable Division of Assessments. The General Assessment and Special Assessments shall be assessed among all Lots as follows:
(a) Exempt Lots will not be subject to assessment.
(b) All lots improved or vacant shall be bear the cost of all assessments equally, as set forth in 10.1(a), (b), (c). (added in Fourth Supplemental dated May 3, 2002 by Declarant R.L. Morris Development Corporation and recorded in O.R. 1754, Pages 450-451.)
10.4 General Assessment.
(a) Establishment by Board. The Board will set the date or dates the General Assessment will be due, and it may provide for payment in monthly, quarterly, semiannual, or annual installments.
(b) Proration Upon Sale of Exempt Lot or Loss of Exemption. Upon conveyance of an Exempt Lot, or upon an Exempt Lot becoming subject to Assessments on account of the Class B Member not extending the Budget Guarantee, the annual General Assessment will become due for such Lot(s); provided however, that the General Assessment will be prorated on a monthly or daily basis, whichever the Board elects, and only the portion of the General Assessment attributable to the remainder of the fiscal year will be due. The portion of the General Assessment attributable to the portion of the fiscal year in which the affected Lot was an Exempt Lot will not be assessed. If payment of the General Assessment is by installment, only the applicable portion of the current installment will be due.
(c) Late Fee and Interest. The Board may impose a reasonable late fee. Additionally, interest will accrue at the highest lawful rate on delinquent payments.
10.5 Special Assessment. In addition to the General Assessment, the Board may levy, in any fiscal year, a Special Assessment applicable as follows:
(a) Capital Improvements. Any capital improvement that has been approved in accordance with this Declaration.
(b) Emergency Assessment. By a 2/3 vote, the Board may impose Special Assessment for any unusual or emergency maintenance or repair or other expense that this Declaration requires the Community Association to pay (including, after depletion of reserves, any unexpected expenditures not provided by the budget.
(c) Exemption. Exempt Lots will not be subject to Special Assessments, nor will an Exempt Lot be subject to payment of any Special Assessment or any portion thereof declared or assessed while such Lot was an Exempt Lot even if payments for such Special Assessments are made in installments becoming due subsequent to the time such Lot no longer is considered an Exempt Lot. (For example, if a Special Assessment is declared on January 1 while Lot 37 is an Exempt Lot, but the payment of the Special Assessment is not required until Architectural Review Committee of the same year, then even if Lot 37 is not an Exempt Lot as of February of such year, Lot 37 still will be considered exempt from such Special Assessment.)
10.6 Individual Lot Assessments. The community Association may levy at any time an Individual Lot Assessment against a particular lot for the purpose of defraying, in whole or in part, the cost of any special services to that Lot or any other charges designated in this Declaration as an Individual Lot Assessment. An Individual Lot Assessment may be levied on account of any legal expenses (at trial or on appeal) and costs incurred by the Community Association in enforcing this Declaration or in enforcing any other declaration the community Association is authorized to enforce.
10.7 Effect of Nonpayment of Assessment; Remedies.
(a) Personal Obligation. All Assessments, together with any late fees, interest, and costs of collection when delinquent, including reasonable attorneys’ fees (at trial or on appeal) 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 Declaration. This lien in favor of the Community Association 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 10.8(d).
(c) Lawsuit for Payment; Foreclosure of Lien. The Community Association 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 community 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.
(e) Other Remedies. The Community Association may assess fines and suspend the voting rights and right to use of the Community Property by an Owner for any period during which any Assessment against the Owner’s Lot remains unpaid, but only as permitted by law.
10.9 Certificate of Payment. The treasurer of the Community Association or the manager of the Community Association, upon request of any Owner, shall furnish a certificate signed by a member of the Board or by the manager, 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 throughout the date of the certificate.
10.10 Covenant for Maintenance Assessments for Association -
Assessments shall also be used for the maintenance and repair of the surface water or stormwater management systems including but not limited to work within retention areas, drainage structures and drainage easements. (Added in Second Supplemental dated February 11, 2000 by Successor Declarant Whispering Oaks Homeowners Association of St. Augustine Beach, Inc. and recorded in O.R. 1473, Pages 1970-1972.)
ARTICLE XI -- INSURANCE AND INDEMNITY
Insurance is essential to protect the interest of the various Owners and to ensure that funds will be available for rebuilding after a casualty; however, because insurance costs may increase significantly or new types of coverage may be available, this Article gives some flexibility to the Board to select insurance coverage that is reasonable for the conditions that exist at that time.
11.1 Review of Coverage. The Board shall review limits of coverage for each type of insurance at least once each year.
11.2 Casualty Insurance. The Board shall be required to obtain and maintain fire insurance as appropriate. Endorsements for extended coverage, vandalism, malicious mischief, and windstorm should be obtained if available at reasonable costs. Coverage shall be in an amount not less than necessary to comply with the co-insurance percentage stipulated in the policy, but in any event not less than 80% of the insurable value (based upon replacement) of the improvements constructed on the Common Property.
11.3 Public Liability. The Board shall obtain public liability insurance in such limits as the Board may from time to time determine, insuring against any liability arising out of, or incident to, the ownership and use of the Common Property. Whenever practicable, such insurance should be issued on a comprehensive liability basis and should contain a “severability of interest” endorsement that shall preclude the insurer from denying the claim of an Owner because of negligent acts of the Community Association, the Board, or other Owners. Such insurance must always name Declarant and Ralph L. Morris and Betty M. Morris, as additional insureds until 50 years after the date of this Declaration.
11.4 Director Liability Insurance. The Board may obtain liability insurance insuring against personal loss for actions taken by members of the Board in the performance of their duties. Such insurance shall be of the type and amount determined by the Board in its discretion.
11.5 Other Insurance. The Board shall obtain and maintain worker’s compensation insurance if and to the extent necessary to meet the requirements of law, and such other insurance as the Board may deem prudent.
11.6 Repair and Reconstruction after Fire or Other Casualty. If fire or other casualty damages or destroys any of the Common Property, the Board shall arrange for and supervise the prompt repair and restoration of the improvements. The Board shall obtain funds for such reconstruction first from the insurance proceeds, then from reserves for the repair and replacement of such improvements, and then from any Special Assessments that may be necessary after exhausting insurance and reserves.
11.7 Indemnity of Declarant. In consideration of Declarant conveying the Common Property to the Community Association, the Community Association release, indemnifies, and holds Declarant, its officers, employees and agents harmless from any and all liability arising out of the Common Property and shall defend Declarant against all claims of any third party. Such indemnity includes any attorneys’ fees and costs incurred by Declarant at trial and on appeal.
ARTICLE XII -- GENERAL PROVISIONS
This article sets forth rules of interpreting the Declaration, provides for enforcement, and sets forth the procedure to amend the Declaration.
12.1 Incorporation of the Land Use Documents. Any and all deeds conveying a Lot shall be conclusively presumed to have incorporated therein all of the terms and conditions of this Declaration.
12.2 Release From Minor Violations. Declarant and the Architectural Review Committee or either of them shall have the right, by written instrument, at any time to release a Lot from minor violations of this Declaration or the Plat including, without limitation (i) encroachments into easements, (ii) encroachments over building restriction lines, and (iii) construction of less than the required minimum square footage for the dwelling provided that the square footage is at least 90% or the required minimum.
12.3 Enforcement. The covenants and restrictions contained in this Declaration may be enforced by Declarant, any Owner, and any Mortgagee in any judicial proceeding seeking any remedy recognizable at law or in equity, including an action or lawsuit seeking damages, injunction, specific performance, or any other form or relief, against any person, firm, or entity violating or attempting to violate any covenant or restriction herein. The failure by any party to enforce any covenant or restriction contained herein shall in no event be deemed a waiver of such covenant or restriction or of the right of such party to thereafter enforce such covenant or restriction. The prevailing party in any such litigation shall be entitled to reasonable attorneys’ fees and court costs at all trial and appellate levels. The St. Johns River Water Management District will have the right to enforce, by proceedings at law or in equity, the provisions contained in this Declaration that relate to the maintenance, operation, and repair of the Drainage System. All parties agree that any dispute shall be determined by a judge and not a jury, and waiver their right to a jury trial in any litigation arising out of this Declaration.
12.4 Assignment. Declarant shall have the right, from time to time, to assign any of its rights or obligations pursuant hereto in part or in while.
12.5 Notices. Notices shall be given as to Owners by posting at the Owner’s dwelling or vacant Lot, or mailing first class postage prepaid to the Owner’s address maintained by the Community Association, or by posting notice applicable to all Owners at the Common Property, and as to Declarant, by sending certified mail to the corporate address of Declarant filed with the Florida Secretary of State.
12.6 Amendment.
(a) Subject to the provisions of Paragraph 12.7, Declarant specifically reserves the absolute and unconditional right, as long as Declarant owns any of the Lots, to amend this Declaration without the consent or joinder of any party to (i) conform to the requirements of the St. Johns River Water Management District, Federal Home Loan Mortgage Corporation, Federal National Mortgage Association, Veterans Administration, Department of Housing and Urban Development, or any other generally recognized institution involved in the purchase and sale of home loan mortgages; (ii) conform to the requirements of mortgage lenders or title insurance companies; or (iii) perfect, clarify, or make internally consistent the provisions herein.
(a)(1) Amendment Any amendment to the Covenants and Restrictions which alter any provision relating to the surface water or stormwater management system, beyond maintenance in its original condition, including the water management portions of the common areas, must have prior approval of the St. Johns River Management District. (Added in Second Supplemental dated February 11, 2000 by Successor Declarant Whispering Oaks Homeowners Association of St. Augustine Beach, Inc. and recorded in O.R. 1473, Pages 1970-1972.)
(b) Subject to the provisions of Paragraph 12.7, Declarant reserves the right to amend this Declaration in any other manner without the joinder of any party, as long as no Owner’s right to the use and enjoyment of the Owner’s Lot is materially altered.
(c) Subject to the provisions of paragraph 12.7, this Declaration may be amended by consent of Owners of 50% or more of the Lots as evidenced by recording an instrument executed by said Owners in the Public Records, provided that no such amendment will be effective without the consent of Declarant, or its assigns, until Declarant and its affiliates own no Lots or other property within Whispering Oaks.
(d) Declarant, without the consent of any party, may bring within the scheme of this Declaration additional land by Supplementary Declaration in accordance with the procedures set forth in paragraph 2.2.
12.7 Mortgagee’s Consent to Amendments. This Declaration contains provisions concerning various rights, priorities, remedies, and interest of the Mortgagees. Such provisions are to be construed as covenants for the protection of the Mortgagees on which they may rely in making loans secured by mortgages on the Lots. Accordingly, no amendment or modification of this Declaration impairing such rights, priorities, remedies, or interest of a Mortgagee shall be adopted without the prior written consent of Mortgagees holding lines on 30% or more of the Lots encumbered by mortgagees to Mortgagees. Each Mortgagee agrees that it will either consent to a proposed amendment or give notice of refusal to consent by written notice to the party requesting such consent with 30 days after the request is received. If a Mortgagee does not respond within such time, the Mortgagee’s consent will be deemed given, and an affidavit to such effect recorded in the Public Records by the party requesting the consent will be sufficient evidence to make the requested amendment; provided, that a photocopy of the documentation proving receipt of the request to the Mortgagee is attached to the affidavit. This paragraph shall not apply or be construed as a limitation on those rights of Declarant, the Community Association, or the Owners to make amendments that do not adversely affect the Mortgagees.
12.8 Captions and Statement of Purpose. Captions inserted throughout this declaration are intended only as a matter of convenience and for reference only, and in no way shall such captions or headings define, limit, or in any way affect any of the terms or provisions of this Declaration. The Statement of Purpose is a summary of general information only and in no way shall such statement define, limit, or in any way affect any of the terms or provisions of this Declaration.
12.9 Gender and Plural Terms. Whenever the context so requires, any pronoun used herein may be deemed to mean the corresponding masculine, feminine, or neuter form thereof, and the singular form of any noun or pronoun herein may be deemed to mean the corresponding plural form thereof and vice versa.
12.10 Severability; Amendments to Laws. If any one of the provisions of this Declaration shall be deemed invalid by a court of competent jurisdiction, that judicial determination shall in no way affect any of the other provisions hereof, which shall remain in full force and effect. Without limitation of the foregoing, the invalidation of any of the covenants, restrictions, terms, or conditions of this Declaration, or a reduction in the term of the same by reason of the legal rule against perpetuities, shall in no way affect any other provision, which shall remain in full force and effect for such period of time as may be permitted by law. Any amendment to applicable law that has the effect of reducing the rights of Declarant, increasing the liabilities of or duties imposed on Declarant, will not be incorporated into this Declaration by reference. All other references to applicable laws and regulations will incorporate amendments to those laws and regulations.
12.11 Duration and Renewal. This Declaration (but excluding the easements herein created, which are perpetual) and the terms, provisions, conditions, covenants, restrictions, reservations, regulations, burdens, and liens contained herein, including, without limitation, the provisions for assessment of Lots, shall run with and bind all of the Lots and inure to the benefit of Declarant, the Owners, and their respective legal representatives, heirs, successors, and assigns, for a term of ninety (90) years from the date hereof, after which time this Declaration shall be automatically renewed and extended for successive periods of (ten)10 years each unless at least one year before the termination of the 90-year period or before each such 10-year extension, as the case may be, there is recorded in the Public Records an instrument agreeing to terminate this Declaration, which instrument is signed by a majority of all Owners and all Mortgagees, upon which event this Declaration shall be determined upon the expiration of the 90-year term or the 10-year extension during which such instrument was recorded, as the case may be
12.12
Easement for Access and Drainage – The Association shall have a perpetual non-exclusive easement over all areas of the surface water or stormwater management system for access to operate, maintain or repair the system. By this easement, the Association shall have the right to enter upon any portion of any lot of which is a part of the surface water or stormwater management system, at a reasonable time and in a reasonable manner, to operate, maintain or repair the surface water or stormwater management system as required by the St. Johns River Water Management District permit. Additionally, the Association shall have a perpetual non-exclusive easement for drainage over the entire surface water or stormwater management system. No person shall alter the drainage flow of the surface water or stormwater management system, including the buffer areas or swales, without the prior written approval of the St. Johns River Water Management District. (Added in Second Supplemental dated February 11, 2000 by Successor Declarant Whispering Oaks Homeowners Association of St. Augustine Beach, Inc. and recorded in O.R. 1473, Pages 1970-1972.)
12.13 Blank, not used.
12.14
Swale Maintenance – The Developer has constructed a Drainage Swale upon some Lots for the purpose of managing and containing the flow of excess surface water, if any, found upon such lot from time to time. Each lot owner, including builders, shall be responsible for the maintenance, operation and repair of the swales on the lot. Maintenance, operation and repair shall mean the exercise of practices, such as mowing and erosion repair which allow the swales to provide drainage, water storage, conveyance or other stormwater management capabilities as permitted by the St. Johns River Water Management District. Filling, excavation, construction of fences or otherwise obstructing the surface water flow in the swales is prohibited. No alteration of the Drainage Swale shall be authorized and any damage to any Drainage Swale, whether caused by natural or human-induced phenomena, shall be repaired and the Drainage Swale returned to its former condition as soon as possible by the Owner(s) of the Lot(s) upon which the Drainage Swale is located. (Added in Second Supplemental dated February 11, 2000 by Successor Declarant Whispering Oaks Homeowners Association of St. Augustine Beach, Inc. and recorded in O.R. 1473, Pages 1970-1972).
IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed the day and year first above written.
BY_______________________________________
R.L. MORRIS DEVELOPMENT, INC.
STATE OF FLORIDA
COUNTY OF ST. JOHNS
The foregoing instrument was acknowledged before me by Ralph L. Morris, who identified this instrument as Declaration of Covenants, Conditions, Restrictions and Easements for Whispering Oaks, and who signed the instrument willingly. Sworn to before me on _______________ day of _______________________________, 1997, by ______________________________________ Ralph L. Morris, who is personally known to me.
________________________________________
NOTARY PUBLIC -- STATE OF FLORIDA
Printed Name
Commission No.
My Commission Expires
* Tenth Supplemental recorded on July 5, 2023; Clerk number: 20233051961, BK: 5786, PG: 1559.e
