(a) When the total votes outstanding in the Class A membership equal the total votes
outstanding in the Class B membership, or
ARTICLE IV
PROPERTY RIGHTS
Section 1. Members' Easements of Enjoyment. Every member shall have a right
and easement of enjoyment in and to the Common Area and such easement shall be appurtenant
to and shall pass with the title to every assessed Lot, subject to the following
provisions:
(a) The right of the Association to charge reasonable admission and other fees for the
use of any recreational facility situated upon the Common Area;
(b) The right of the Association to limit the number of guests of members at such
recreational facility;
(c) The right of the Association, in accordance with the Articles of Incorporation and
By-Laws, to borrow money for the purpose of improving the Common Area and facilities and
in aid thereof, with the assent of more than two-thirds (2/3) of each class of members who
are voting in person or by proxy, at a meeting duly called for this purpose, to mortgage
said property, subject to this Declaration and the easement of enjoyment created hereby,
and to acquire property encumbered by the lien or liens of the deed or deeds of trust
securing improvements on said property, provided that any such mortgage of
the Common Area must state that it is subject to this Declaration and the easement of
enjoyment created hereby and shall not be in conflict with its designation as "open
space";
(d) The right of the Association to suspend the voting rights and right to the use of
any recreational facilities constructed on the Common Area by a member for any period
during which any assessment against his Lot remains unpaid, and for a period not to exceed
sixty (60) days for any infraction of its published rules and regulations;
(e) The right of the Association at any time and consistent with the then existing
zoning ordinances of Fairfax County and its designation as "open space", or upon
dissolution to dedicate or transfer all or any part of the Common Area to any public
agency, authority or utility for such purposes and subject to such conditions as may be
agreed to by the members, provided that any such dedication or transfer shall have
the assent of more than two-thirds (2/3) of each class of members who are voting in person
or by proxy, at a meeting duly called for this purpose, written notice of which shall be
sent to all members not less than twenty-five (25) days nor more than fifty (50) days in
advance of the meeting setting forth the purpose of the meeting. Upon such assent and in
accordance therewith, the officers of the Association shall execute the necessary
documents;
(f) The right of the Association to grant any public utility with or without payment of
damages to the Association, and consistent with the "open space" designation
thereof, easements for the construction, reconstruction, installation, repair and/or
necessary maintenance of utility lines through or over any portion of the Common Areas.
The foregoing shall not be construed, however, to permit any such public utility to
acquire or damage any improvements situate upon the Common Areas, or other structures or
installations situate thereon which would otherwise be deemed to be part of the realty,
without the payment of damages, including severance or resulting damages, if any to the
Association, all in amounts and in a manner now or hereafter governing proceedings for the
acquisition of private property for public use by condemnation in this Commonwealth; and
(g) The right of the Association to lease Common Area, provided however that such
lease(s) must:
(1) be only to non-profit organizations,
(2) such organizations must give preference to members of the Association with regard
to membership and use of facilities,
(3) prohibit assignment and subleasing,
(4) require approval by the Association of uses of the Common Area and facilities,
which must be in accordance with this Declaration,
(5) be consistent with the then existing ordinances of the County, and
(6) be consistent with the open space designation thereof.
Section 2. Delegation of Use. Any member may delegate, in accordance with
the By-Laws, his right of enjoyment to the Common Area and facilities to the members of
his family, his tenants, or contract purchasers who reside on the member's Lot.
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ARTICLE V
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1. Creation of the Lien and Personal obligation of Assessments. The
Declarant, for each Lot owned within the Properties, hereby covenants, and each Owner of
any Lot by acceptance of a deed therefore, whether or not it shall be so expressed in any
such deed or other conveyance, is deemed to covenant and agree to pay to the Association:
(a) Annual assessments or charges, and
(b) Special assessments for capital improvements, or other specified items, such
assessments to be fixed, established and collected from time to time as hereinafter
provided. The annual and special assessments, together with such interest thereon and
costs of collections thereof, as hereinafter provided, shall be a charge on the land and
shall be a continuing lien upon the Lot against which each such assessment is made. Each
such assessment together with such interest, costs and reasonable attorney's fees, shall
also be the personal obligation of the person who was the Owner of such Lot at the time
when the assessment fell due and shall not pass to his successors in title unless
expressly assumed by them.
Section 2. Purpose of Assessments. The assessments levied by the Association
shall be used exclusively for the purpose of promoting the recreation, health, safety and
welfare of the residents in the Properties and in particular for the payment of taxes and
improvements and maintenance of services and facilities devoted to this purpose and
related to the use and enjoyment of the Common Area.
Section 3. Basis and Maximum of Annual Assessments. Until January 1 of the
year immediately following the conveyance of the first Lot to an owner other than the
Declarant, the maximum annual assessment shall be One Hundred Twenty and no/100 DOLLARS
($120.00) per Lot.
(a) From and after January 1 of the year immediately following the conveyance of the
first Lot, the maximum annual assessment may be increased effective January 1 of each year
without a vote of the membership in conformance with the rise, if any, of the Consumer
Price Index (All Items Index) for the Washington, D. C. standard metropolitan area
(published by the Department of Labor, Washington, D.C.) for the year ending the preceding
July 1, or five percent (5%), whichever is greater.
(b) From and after January 1 of the year immediately following the conveyance of the
first Lot, the maximum annual assessment may be increased above that established by
subparagraph (a) for the next succeeding three (3) years, and thereafter for each
succeeding period of three (3) years, provided that any such change shall have the assent
by a vote of more than two-thirds (2/3) of each class of the members who are voting in
person or by proxy, at a meeting duly called for this purpose, written notice of which
shall be sent to all members not less than twenty-five (25) days nor more than fifty (50)
days in advance of the meeting setting forth the purpose of the meeting.
(c) After consideration of current maintenance costs and further needs of the
Association, the Board of Directors may fix the annual assessment at an amount not in
excess of the maximum.
Section 4. Special Assessments. In addition to the annual assessments
authorized above, the Association may levy in any assessment year, a special assessment
applicable to that year only, for the purpose of defraying, in whole or in part, the cost
of any construction or reconstruction repair or replacement of a capital improvement upon
the Common Area, including the fixtures and personal property related thereto, or other
specified purpose, provided that any such assessment shall have the assent
of more than two-thirds (2/3) of each class of members who are voting in person or by
proxy, at a meeting duly called for this purpose, written notice of which shall be sent to
all members not less than twenty-five (25) days nor more than fifty (50) days in advance
of the meeting setting forth the purpose of the meeting.
Section 5. Rate of Assessment. Both annual and special assessments shall
be fixed at a uniform rate for all Lots not owned by the Declarant. Any unoccupied Lot or
Lots owned by the Declarant shall be assessed at twenty-five percent (25%) of the rate of
Lots not owned by the Declarant so long as the Declarant has Class B membership
status. As long as the Declarant retains the right to pay only partial assessments for the
unoccupied lots in any section, he must also maintain the Common Area in such section at
no cost to the Association and fund all budget deficits including reserves applicable to
such section. Thereafter, such Lots will be assessed at the rate for those Lots not owned
by the Declarant.
Section 6. Quorum for any Action Authorized Under Sections 3 and 4. At
the first meeting called, as provided in sections 3 and 4 herein, the presence at the
meeting of members or proxies entitled to cast sixty percent (60%) of all the votes of
each class of membership shall constitute a quorum. If the required quorum is not
forthcoming at any meeting, another meeting may be called subject to the notice
requirements set forth in Sections 3 and 4, and the required quorum at any such subsequent
meeting shall be one-half (1/2) of required quorum at the preceding meeting. No such
subsequent meeting shall be held more than sixty (60) days following the preceding
meeting.
Section 7. Date of Commencement of Annual Assessments Due Dates. The
annual assessments provided for herein shall commence as to all Lots in any section, no
later than thirty (30) days following the conveyance of the Common Area pertaining to that
section. The first annual assessment shall be adjusted according to the number of months
remaining in the calendar year. The Board of Directors shall fix the amount of the annual
assessment against each Lot at least thirty (30) days in advance of each annual assessment
period. Written notice of the annual assessment shall be sent to every owner subject
thereto. The due dates shall be established by the Board of Directors. The Association
shall upon demand at any time furnish a certificate in writing signed by an officer of the
Association setting forth whether the assessments on a specified Lot have been paid. A
reasonable charge may be made by the Board for the issuance of these certificates. Such
certificates shall be conclusive evidence of payment of any assessment therein stated to
have been paid.
Section 8. Remedies of the Association in the Event of Default. If any
assessment is not paid within thirty (30) days
after the due date, the assessment shall bear interest from the date of delinquency at
the rate of eight percent (8%)per annum.
The Association in its discretion may:
(a) Impose a penalty as previously established by rule;
(b) Accelerate the required payment date of the entire
remaining annual assessment; or
(c) Bring an action at law against the Owner personally
obligated to pay the same, and/or foreclose the lien against
the property, and interest, costs and reasonable attorney's
fees of any such action shall be added to the amount of such
assessment.
No Owner may waive or otherwise escape liability for the assessments provided for
herein by non-use of the Common Area or abandonment of his Lot.
Section 9. Subordination of the Lien to Mortgages. The lien of the
assessments provided for herein shall be subordinate to the lien of any first trust or
mortgage. Sale or transfer of any Lot shall not affect the assessment lien. However, the
sale or transfer of any Lot pursuant to a foreclosure or any proceeding in lieu thereof
shall extinguish the lien of such assessments as to payment thereof which became due prior
to such sale or transfer. No sale or transfer shall relieve such Lot from liability for
any assessments which thereafter become due or from the lien thereof.
Section 10. Exempt Property. The following property subject to this
Declaration shall be exempt from the assessments created herein: (a) all properties
dedicated to and accepted by a local public authority; (b) the Common Area; (c) all
properties owned by charitable or other organizations exempt from taxation by the laws of
the Commonwealth of Virginia. However, no land or improvements devoted to dwelling use
shall be exempt from said assessments.
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ARTICLE VI
RESTRICTIVE COVENANTS
Section 1. The Properties shall be used exclusively for residential purposes. The
Declarant, however, for itself, its successors and assigns, reserves the right, prior to
sale and transfer of any Lot, pursuant to a recorded subdivision plat, to alter, amend and
change any lot lines or subdivision plan. No building shall be erected, altered, placed or
permitted to remain on any Lot other than one single-family attached dwelling, garages and
other approved structures for use solely by the occupants. Except for those related to
real estate sales and construction, no sign, advertisement or message other than for
identification purposes only shall be displayed or published which offers or implies
commercial or professional services, or which might constitute any other kind of business
solicitation in, or from, any residence or residential property. Notwithstanding the
foregoing, the Declarant or its assigns may:
(a) During the construction and/or sales period, and within five (5) years from the
date of subdivision of a particular Section, erect, maintain and operate real estate sales
and construction offices, displays, signs and special lighting on any part of the
Properties and on or in any building or structure now or hereafter erected thereon while
owned by the Declarant; and
(b) On Lots now or hereafter specifically designated for such purposes by Declarant,
there may be erected and/or operated, a church or place of public worship, a school
accredited by the Commonwealth of Virginia Board of Education, a public park, or a
noncommercial swimming pool, a recreational area, and appurtenances thereto.
Section 2. No clothing, laundry, or wash shall be aired or dried on any portion of
the Lots in any area other than in the rear yards of the Lots.
Section 3. No tree, hedge or shrub planting shall be maintained in such a manner as
to obstruct sight lines for vehicular traffic.
Section 4. No noxious or offensive activity shall be carried on upon any Lot, nor
shall anything be done or placed thereon which may become an annoyance or nuisance to the
neighborhood. Owners shall, at all times, maintain their property and all appurtenances
thereto in good repair and in a state of neat appearance. Except for flower gardens,
shrubs, and trees which shall be neatly maintained, all open Lot areas shall be maintained
in lawns or other materials approved by the Architectural Review Board. All lawn areas
shall be kept mowed and shall not be permitted to grow to a height in excess of four (4)
inches.
Section 5. No sign of any kind that is illuminated and/or larger than two (2)
square feet shall be displayed to the public view on any Lot, except temporary real estate
signs not more than four square feet in area advertising the property for sale or rent and
except as provided in Paragraph 1(a) above. All signs advertising the property for sale or
rent shall be removed within three (3) days from the date of execution of any agreement of
sale or rental.
Section 6. No horse, pony, cow, chicken, pig, hog, sheep, goat or other domestic
or wild animal shall be kept or maintained on any Lot; however, common household pets,
such as dogs and cats may be kept or maintained, provided that they are not kept, bred or
maintained for commercial purposes and do not create a nuisance or annoyance to
surrounding Lots or the neighborhood and are in compliance with applicable Fairfax County
ordinances.
Section 7. Trash and garbage containers shall not be permitted to remain in public
view except on days of trash collection. No accumulation or storage or litter, new or used
building materials or trash of any other kind shall be permitted on any Lot.
Section 8. No person shall paint the exterior of any building a color different
than the original color of said building without the proposed color having been approved
by the Architectural Review Board.
Section 9. The exteriors of all structures, including walls, doors, windows and
roofs shall be kept in good maintenance and repair. No structure shall be permitted to
stand with its exterior in an unfinished condition for longer than six (6) months after
the commencement of construction. In the event of fire, windstorm or other damage, the
exterior of no structure shall be permitted to remain in a damaged condition for longer
than three (3) months.
Section 10. No structure or addition to be a structure shall be erected, placed,
altered or externally improved on any Lot until the plan and specification, including
elevation, material, color and texture and a site plan showing location of improvement
with grading modifications shall be filed with and approved in writing by the
Architectural Review Board. No alterations, additions, or improvements shall be made to
any garage which would defeat the purpose for which it was intended. Structure shall be
defined to include any building or portion thereof, fence, pavement, driveway or
appurtenances to any of the aforementioned.
Section 11. All fences or enclosures must be approved by the
Architectural Review Board as to location, material and design. Any fence or wall built
on any lots shall be maintained in a proper manner so as not to detract from the value and
desirability of surrounding property.
Section 12. No exterior television or radio antenna of any sort shall be erected or
maintained on any Lot without the written consent of the Architectural Review Board,
provided that the Association shall have the right to erect and maintain a master antenna
on Association property, if the erection of such master antenna is approved by members of
the Association pursuant to the provisions of Article IV, hereof.
Section 13. No junk vehicles, recreational vehicles, house trailers, or commercial
or industrial vehicles such as, but not limited to, moving vans, trucks, tractors,
trailers, vans, wreckers, hearses, buses, boats, boating equipment, travel trailers or
camping equipment, shall be regularly or habitually parked within the boundaries of the
subdivision, except in the areas designated by the Association.
Section 14. The provisions of Sections 5, 7, 8, 9, 10 and 11 above shall not apply
to any construction or development or improvements on any Lot by a Declarant commencing
within three (3) years from the date of submission of said Lot to this Declaration.
Section 15. The Board of Directors shall have the authority to adopt such rules and
regulations regarding Sections 1 through 13 above as it may from time to time consider
necessary or appropriate.
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ARTICLE VII
ARCHITECTURAL REVIEW BOARD
Section 1. Composition. The Architectural Review Board shall be comprised of
three (3) or more members. Members shall serve staggered three (3) year terms, as
determined by the Board of Directors.
Until the Declarant loses Class B membership, the Architectural
Review Board shall consist of two (2) committees: The New Construction Committee and
the Modification and Change Committee. Thereafter, the New Construction Committee shall be
terminated.
After the Declarant loses Class B membership, no member of the Architectural Review
Board may be a Director.
Section 2. Method of Selection. The Declarant shall nominate three (3)
persons and one (1) alternate to serve on the New Construction Committee of the
Architectural Review Board. The Board of Directors shall appoint or reject such nominees
and, in case a nominee is rejected, the Declarant shall thereupon nominate another person
for appointment.
The Board of Directors shall also appoint the Modification and Change Committee.
Section 3. Vacancies. Appointments to fill vacancies in unexpired terms
shall be made in the same manner as the original appointment.
Section 4. Officers. At the first meeting of the Architectural Review Board
following each Annual Meeting of Members, the Architectural Review Board shall elect from
among themselves, a Chairman, a Vice-Chairman and a Secretary who shall perform the usual
duties of their respective offices.
Section 5. Duties. The Architectural Review Board shall regulate the
external design, appearance and locations of the Properties and improvements thereon in
such a manner so as to preserve and enhance values and to maintain a harmonious
relationship among structures and the natural vegetation and topography. In furtherance
thereof, the Architectural Review Board shall:
(1) Review and approve, modify or disapprove, within thirty (30) days, all written
applications of Owners and of the Association for improvements or additions to Lots or
Common Areas; in this regard, during the period the Architectural Review Board is composed
of the committees described above, the New Construction Committee shall act with respect
to initial improvements to the common area and Lots; the Modification and Change Committee
shall act with respect to modification and changes to the Common Area and Lots, including
improvements thereon.
(2) Periodically inspect the Properties for compliance with architectural standards and
approved plans for alteration;
(3) Adopt architectural standards subject to the confirmation of the Board of
Directors; '
(4) Adopt procedures for the exercise of its duties and enter them in the Book of
Resolutions; and
(5) Maintain complete and accurate records of all actions taken.
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ARTICLE VIII
COMMON DRIVEWAYS
Section 1. Definitions.
(a) "Common Driveways" shall be the areas within the Ingress and Egress
Easements as shown on the plats attached to the Deeds of Dedication and Subdivision for
Fair Oaks Estates or as may subsequently be established by Declarant.
(b) "Affected Lots" shall be the Lots encumbered by and/or served by a Common
Driveway.
Section 2. Restrictions.
(a) Common Driveways shall be used for the purpose of ingress and egress to the
Affected Lots served by the individual Ingress and Egress Easements, for governmental and
other emergency vehicle ingress and egress, and for construction and maintenance of
utilities.
(b) No act shall be performed by any Members, their tenants, guests or agents which
would in any manner affect or jeopardize the free and continuous use and enjoyment of any
other authorized Member in and to the Common Driveway of an Affected Lot.
(c) There shall be no parking within Common Driveways at any time except for delivery
and/or emergency vehicles, unless all owners of Affected Lots pertaining thereto shall
agree upon other parking limitations.
Section 3. Damage or Destruction. In the event that any Common Driveway
is damaged or destroyed (including deterioration from ordinary wear and tear and
lapse of time):
(a) through the act of a Member or any of his agents or guests or members of his family
(whether or not such act is negligent or otherwise culpable), it shall be the obligation
of such a Member to rebuild and repair the Common Driveway without cost to the other
owners of Affected Lots for that Driveway;
(b) other than by the act of a Member, his agents, guests or family, it shall be the
obligation of all owners of Affected Lots for that Common Driveway to rebuild and repair
such Common Driveway at their joint and equal expense. To this end, the owners of Affected
Lots for a Common Driveway shall assess themselves periodic dues which shall be used to
defray the costs of said rebuilding and repair. Any lien arising out of an assessment for
repair or maintenance of Common Driveways shall be subordinate to the lien of any first or
second deed of trust or mortgage; and
(c) In the event of any dispute arising concerning the use, repair and maintenance of
said Common Driveways as set forth herein, which cannot be resolved by the Owners, such
dispute shall be resolved by arbitration. Each party shall choose one arbitrator, and such
arbitrators shall choose one additional arbitrator, and the decision shall be by a
majority of all the arbitrators.
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ARTICLE IX
EASEMENTS
Section 1. There is hereby granted a blanket easement to the Association, its
directors, officers, agents, and employees, to any Manager employed by or on behalf of the
Association, and to all policemen, firemen, ambulance personnel and all similar persons to
enter upon the Properties in the exercise of the functions provided by this Declaration
and the Articles, By-Laws and Rules of the Association, in the event of emergencies, and
in performance of governmental functions.
Section 2. The rights accompanying the easements provided by Section 1 of this
Article shall be exercised only during reasonable daylight hours and then whenever
practicable only after advance notice to, and with the permission of, any Owner or tenant
directly affected thereby when not an emergency situation or a governmental function.
Section 3. A Declarant, its agents and employees, shall have a right of ingress and
egress over the Common Area as required for construction and development of the
Properties.
Section 4. There shall be and is hereby reserved to a Declarant a nonexclusive
easement over any Lot or any Common Area, for the purpose of installing, repairing and/or
maintaining utility lines of any sort including, but not limited to, storm drains,
sanitary sewers, gas lines, electric lines and/or cables, water lines, telephone lines and
the like. This easement shall automatically expire as to any Lot or Parcel five (5) years
from subdivision of such Lot or Parcel.
Section 5. There shall be and is hereby reserved to a Declarant a perpetual and
nonexclusive easement over all Lots, or any Common Area, for the purposes of maintaining,
landscaping, mowing, erecting and maintaining street intersection signs, directional
signs, temporary promotional signs, entrance features and/or "theme areas",
light, stone, wood, or masonry wall features and for the purpose or purposes of executing
any of the powers, rights or duties granted to or imposed on the Association in Article X
hereof.
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Section 6. Any rights granted to a Declarant in this Article shall extend only to
Lots and Parcels submitted to this Declaration by such Declarant.
ARTICLE X
POWERS AND DUTIES OF THE ASSOCIATION
Section 1. Discretionary Powers and Duties.
The Association shall have the following powers and duties which may be exercised at
its discretion:
(a) To enforce any or all building restrictions which are imposed by the terms of this
Declaration or which may hereafter be imposed on any part of the Properties. Provided,
that nothing contained herein shall be deemed to prevent the owner of any Lot from
enforcing any building restrictions in his own name; the right of enforcement shall not
serve to prevent such changes, releases or modifications of the restrictions or
reservations placed upon any part of the Properties by any party having the right to make
such changes, releases or modifications in the deeds, contracts, declarations or plats in
which such restrictions and reservations are set forth; and the right of enforcement shall
not have the effect of preventing the assignment of those rights by the proper parties
wherever and whenever such right of assignment exists. The expense and costs of any
enforcement proceedings initiated by the Association shall be paid out of the general fund
of the Association, as hereafter provided
for;
(b) To provide such light as the Association may deem advisable on streets and for the
maintenance of any and all improvements, structures or facilities which may exist or be
erected from time to time on any Common Area;
(c) To build facilities upon land owned or controlled by the Association;
(d) To use the Common Area and any improvements, structures or facilities erected
thereon subject to the general rules and regulations established and prescribed by the
Association and subject to the establishment of charges for their use;
(e) To mow and resow the grass and to care for, spray, trim, protect, plant and replant
trees and shrubs growing on the Common Area and to pick up and remove from said property
and area all loose material, rubbish, filth and accumulations of debris; and to do any
other thing necessary or desirable in the judgment of the Association to keep the Common
Area in neat appearance and in good order;
(f) To exercise all rights and control over any easements which the Association may
from time to time acquire, including, but not limited to, those easements specifically
reserved to the Association in Article IX, hereof;
(g) To create, grant and convey easements upon, across, over and under all Association
properties including, but not limited to, easements for the installation, replacement,
repair and maintenance of utility lines serving lots in the subdivision;
(h) To create subsidiary corporations;
(i) To employ counsel and institute and prosecute such suits as the Association may
deem necessary or advisable, and to defend suits brought against the Association;
(j) To employ from time to time such agents, servants and laborers as the Association
may deem necessary in order to exercise the powers, rights and privileges granted to it,
and to make contracts; and
(k) To promulgate such rules and regulations as needed to regulate the use of any
parking areas that may be constructed or authorized on Common Area for the benefit of all
Owners, which rules and regulations may include assignment of parking spaces and no
restriction or prohibition on certain vehicles as provided in this Declaration.
Section 2. Mandatory Powers and Duties. The Association shall exercise the
following rights, powers and duties:
(a) To accept title to the Common Area and to hold and administer said property for the
benefit and enjoyment of the owners and occupiers of lots in the subdivision. The purpose
of this provision is to impose on the Association the obligation to accept title to any
common area and to hold and maintain the same for the benefit of owners and occupants of
Lots in Fair Oaks Estates; and
(b) To make and enforce regulations governing the use of the Common Area.
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ARTICLE XI
RIGHTS OF MORTGAGEES
All Mortgagees shall have the following rights:
Section 1. A Mortgagee, upon request, will be given written notification from the
Association of any default in the performance by the Owner of a Lot relating to the
mortgage owned by the Mortgagee of any obligation under this Declaration or related
Association documents, which is not cured within sixty (60) days.
Section 2. Any Mortgagee who obtains title to a Lot pursuant to the remedies
provided in the mortgage, or foreclosure of the mortgage, or deed or assignment in lieu of
foreclosure, will not be liable for such Lot's unpaid dues or charges which accrue prior
to the acquisition of title to the Lot by the Mortgagee.
Section 3. A Mortgagee shall have the right to examine the books and records of the
Association.
Section 4. Provided that improvements have been constructed in the Common Area, and
provided that a Mortgagee gives notice to the Association that it has relied on the value
of the improvements in making a loan on the Properties, then such Mortgagee shall be
further entitled to the following rights:
(a) Unless all Mortgagees and three-fourths (3/4) of the owners have given their prior
written approval, the Association shall not:
(i) By act or omission seek to abandon, partition, subdivide, encumber, sell or
transfer the Common Area or other property owned by the Association. The granting of
easements for public utilities or other public purposes consistent with the intended use
of the Common Area by the Association shall not be deemed a transfer within the
meaning of this clause;
(ii) Change the method of determining assessments
(iii) By act or omission change, waive or abandon the architectural controls or
imposition thereof established by this Declaration;
(iv) Fail to maintain fire and extended coverage on insurable parts of the Common Area
or other Association property on a current replacement-cost basis in an amount not less
than one hundred percent (100%) of the insurable value based on current replacement costs,
not including land value of the improvements; and
(v) Use hazard insurance proceeds for losses to the Common Area or other Association
property for other than the repair, replacement, or reconstruction of such property.
(b) A Mortgagee may, jointly or singly, pay taxes or other charges which are in default
and which may or have become a charge against the Common Area, and may pay overdue
premiums on hazard insurance policies, or secure new hazard insurance coverage upon the
lapse of a policy for such Common Area. The Mortgagee or Mortgagees making such payments
shall be owed immediately reimbursement therefor from the Association;
(c) The assessments imposed by the Association shall include an adequate reserve fund
for maintenance, repairs, and replacements for those parts of the Common Area which may be
replaced or require maintenance on a periodic basis. Such reserves shall be payable in
regular installments rather than by special assessments;
(d) The Association shall cause the immediate repair, reconstruction or renovation of
any damage to the Common Area or Association property unless a decision not to
repair, reconstruct or renovate is approved by all Mortgagees;
(e) In the event that there is a condemnation of the Common Area or other Association
property, to the extent practicable, condemnation proceeds shall be used to repair or
replace the property taken by condemnation; and
(f) Should there be excess casualty insurance or condemnation proceeds after the
renovation, repair, or reconstruction called for herein, such excess proceeds may be
distributed equally to the Owners, apportioned equally by Lot, subject, however, to the
priority of a Mortgagee with regard to the proceeds applicable to the Lot securing said
Mortgagee.
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ARTICLE XII
GENERAL PROVISIONS
Section 1. Enforcement. The Association, or any Owner, shall have the right
to enforce, by a proceeding at law or in equity, all restrictions, conditions, covenants,
reservations, liens and charges now or thereafter imposed by the provisions of this
Declaration. Failure by the Association or by any Owner to enforce any right, provision,
covenant, or condition which may be granted by this Declaration shall not constitute a
waiver of the right of the Association or an Owner to enforce such right, provision,
covenant, or condition in the future. All rights, remedies and privileges granted to the
Association or any owner pursuant to any term, provision, covenant or condition of this
Declaration shall be deemed to be cumulative, and the exercise of any one or more thereof
shall not be deemed to constitute an election of remedies, nor shall it preclude the party
exercising the same from exercising such privileges as may be granted to such party by
this Declaration, or at law or in equity.
Section 2. Severability. Invalidation of any one of these covenants or
restrictions by judgment or court order shall in no way affect any other provisions which
shall remain in full force and effect.
Section 3. Amendment. The covenants and restrictions of this Declaration
shall run with and bind the land, and shall inure to the benefit of and be enforceable by
the Association, or the Owner of any Lot subject to this Declaration, their respective
legal representatives, heirs, successors and assigns, for a term of twenty (20) years from
the date this Declaration is recorded, after which time said covenants shall be
automatically extended for successive periods of twenty (20) years. The covenants and
restrictions of this Declaration may be amended in whole or in part, provided that
Declarant shall not amend or remove from this Declaration without the consent of the
Association and an Owner, other than the Declarant and the Association, of at lease one
Lot in Fair Oaks Estates. Any such amendment during the first twenty (20) year period
shall have the assent of not less than eighty percent (80%) of the lot owners, and
thereafter and amendment shall have the assent of seventy-five percent (75%) of the votes
of the lot Owners, at a meeting duly called for this purpose, written notice of which
shall be sent to all lot Owners not less than twenty-five (25) days nor more than fifty
(50) days in advance of the meeting setting forth the purpose of the meeting. Any
amendment must be properly executed and acknowledged (in the manner required by law for
the execution and acknowledgment of deeds) by the Association and recorded among the land
records of Fairfax County, Virginia.
Section 4. Annexation of Additional Properties. The Association may, for
twenty-one (21) years from the date hereof, annex additional areas and provide for
maintenance, preservation and architectural control of residence Lots, and so add to its
membership under the provisions of Article II, provided that any such
annexation shall be authorized at a duly held meeting at which a quorum is present by the
assent of more than two-thirds (2/3) of each class of the members voting in person or by
proxy. After twenty-one (21) years, annexation may be made with the consent of all
members. No such consent is required for the annexation of all or any part of the 195
acres more or less conveyed by instruments recorded in Deed Book 5267, at Page 361, in
Deed Book 5267, at Page 376, in Deed Book 5267, at Page 383, and in Deed Book 5404, at
Page 1049, among the land records of Fairfax County, Virginia, by the Declarant.
Section 5. FHA/VA Approval. After initial approval of the Lots for FHA or VA
financing for so long as there is a Class B membership, the following actions will require
the prior approval of the Federal Housing Administration or the Veterans Administration:
(a) annexation of additional properties, except the land within that certain tract
described in Section 4 above;
(b) mergers, consolidations, and dissolution of the Association;
(c) mortgaging or dedication of the Common Area; and
(d) amendment of Declaration of Covenants, Conditions, and Restrictions.
WITNESS WHEREOF the following signature and seal:
BATAL BUILDERS, INC.
By: /s/ Robert J. Batal
President
CERTIFICATION
We, the undersigned, current Directors of the Fair Oaks Estates Homeowners Association,
do hereby certify that this constitutes an accurate and complete copy of the original
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS made on the 8th day of SEPTEMBER
, 1980, by and between BATAL BUILDERS, INC., and the FAIR OAKS ESTATES HOMEOWNERS
ASSOCIATION.
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_______________________________ __________________
Alton Miilhouse
_______________________________ __________________
Neil Reilly
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Arthur Treiber
