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TABLE OF CONTENTS
2. No Further Force or Effect
4. Florida and Local Law
8. Reservation of Rights
9.1 Establishment of
9.2 Rights of APV
9.4 Allocation of Assessments
9.5 Bulk Land Assessments
9.6 Surplus Assessments
9.7 Establishment of Assessments
9.8 Claim of Lien
9.9 Timing of Assessment Payment
9.10 Non-Payment of Assessments
9.11 Subordination of Lien
9.12.2 Common Areas
11. Fines, Suspension of Voting, Etc.
11.1 Right to Cure
11.2 Non-Monetary Defaults
11.4 No Waiver
11.5 Rights Cumulative
11.6 Fines and Suspensions
12.1.1 Additional Temporary Easements
12.2 Plans and Specifications
12.3 Avatar's Approval Rights
12.5 Pets and Animals
12.6 Walls and Fences
12.9 No Repairs
12.10 Greenways and Waterways
12.12 Trash Containers for Commercial, Institutional, Multiple Family
12.13 Real Estate Offices
12.14 Commercial Use
12.16 Membership in Village Association
12.17 Subdivision of Land
13.1 Garbage and Trash
13.3 No Outside Storage
13.5 Flag Lot
13.5.1 Tenants In Common
13.5.2 Sharing of Expense
13.5.3 Failure to Maintain
14.2 Required Paving and Construction
14.3 Use Restrictions for Areas Zoned Commercial
14.4 Party Walls
14.5 Modification or Waiver
ASSOCIATION OF POINCIANA
VILLAGES, INC. (the " APV "), a Florida not-for-profit association
hereby makes this Poinciana Subdivision Declaration (" Declaration ")
respecting the real property described in Exhibit A (the " Poinciana
Subdivision "). Avatar Properties Inc. (" Avatar ") joins
in this Declaration to show its consent to the same.
R E C I T
A L S:
A. Avatar in its own name
or under its former name, GAC Properties, Inc., recorded (1) the various deeds
of restrictions described on Exhibit B attached hereto and made
a part hereof in the Public Records of Polk County, Florida (collectively, the
"Original Polk Deeds of Restriction ") and (2) the various deeds
of restrictions described on Exhibit B attached hereto and made
a part hereof in the Public Records of Osceola County, Florida (collectively,
the " Original Osceola Deeds of Restriction ").
B. The Original Polk Deeds
of Restriction and the Original Osceola Deeds of Restriction (collectively,
the " Original Deeds of Restriction ") were restated and consolidated
by that certain Restated Declaration of Restrictions (the " Restated Declaration ")
recorded in Polk County in Official Records Book 4510 at Page 1454 and in Osceola
County in Official Records Book 1767 at Page 297. The Restated Declaration replaced
entirely the Original Deeds of Restriction.
C. The Restated Declaration
governs the community known as Poinciana Subdivision, which is legally described
on Exhibit A attached hereto and made a part hereof.
D. Pursuant to Section 5
of the Restated Declaration, the APV, by majority vote of the entire Board of
Directors, has decided to amend and restate the Restated Declaration in its
entirety by this Declaration.
NOW THEREFORE, the APV does
establish the following restrictions for the Poinciana Subdivision:
1. Recitals .
All of the foregoing Recitals are true and correct.
Further Force or Effect . The Original Deeds of Restriction and the Restated
Declaration are of no further force or effect as the same are replaced entirely
by this Declaration.
3. Definitions .
In addition to the terms defined elsewhere in this Declaration, all initially
capitalized terms herein shall have the following meanings:
3.1 " APV
" shall mean Association of Poinciana Villages, Inc.
3.2 " Articles "
shall mean the APV's Amended and Articles of Incorporation attached hereto
as Exhibit C .
3.3 " Assessments "
shall mean any assessments made in accordance with this Declaration and as
further defined in Section 9 hereof.
3.4 " Avatar "
shall mean Avatar Properties Inc., a Florida corporation, its successors,
3.5 " APV Board "
shall mean the Board of Directors of the APV.
3.6 " Bulk Land "
shall mean any tract of land (whether or not subdivided) which has none of
the following: (i) improvements; (ii) overall community drainage; and (iii)
water and sewer availability. By way of example, if a Lot has either water
and sewer availability or overall drainage, it is not Bulk Land.
3.7 " By-Laws "
shall mean the APV's By-Laws attached hereto as Exhibit D .
3.8 " Common Areas "
shall mean all real property interests and personality within Poinciana Subdivision
designated as Common Areas from time to time by Plat or recorded amendment
to this Declaration and provided for, owned, leased by, or dedicated to, the
common use and enjoyment of the Owners within Poinciana Subdivision.
3.9 " County "
shall mean Polk or Osceola County, as applicable.
3.10 " Criteria "
shall mean the Design Control Board Criteria of the APV.
3.11 " DCB "
shall mean the Design Control Board of the DCB.
3.12 " Flag Lot "
shall refer to any of the various types of Flag Lots described in Section
3.13 " Lender "
shall mean any federally insured savings and loan association or bank, insured
by the Federal Savings and Loan Insurance Corporation, or Federal Deposit
and Insurance Corporation, Mortgage Bankers, licensed Mortgage Brokers (or
person or entity holding mortgage through efforts of a licensed Mortgage Broker),
Avatar and Parkway Mortgage Company, Inc. and their successors and assigns,
holding a first mortgage on a Lot.
3.14 " Lot "
shall mean any lot shown on a plat.
3.15 " Owner "
shall mean the owner of a lot.
3.16 " Poinciana
Subdivision " shall mean the real property described on Exhibit
Aattached hereto including future property subject to plats incorporating
3.17 " Utility Availability
Fee " shall have the meaning set forth in Section 10 herein.
3.18 " Village "
shall mean each subdivision of Poinciana Subdivision. Currently Poinciana
Subdivision is divided into ten (10) Villages. The Villages are described
on Exhibit E attached hereto and made a part hereof.
3.19 " Village Association "
shall mean the homeowners association governing each Village.
and Local Law . All restrictive covenants, listed and/or contained herein
are subject, in all instances, to compliance with State of Florida applicable
County health ordinances, restrictions and regulations, zoning regulations or
other established pertinent restrictions, and in particular when the said State
and County requirements exceed the requirements of the restrictions contained
herein. The laws of the State of Florida and applicable County as well as the
rules and regulations of their administrative agencies now or hereafter in effect
with regard to sewage disposal, water supply and sanitation are hereby incorporated
herein and made a part hereof.
5. Term .
These restrictive covenants, easements, reservations and requirements upon the
lands within the Poinciana Subdivision and any amendments and additions thereto,
shall run with the land and remain in full force and effect until January 1,
2012, at which time they shall be automatically extended for successive periods
of ten (10) years unless by majority vote of the entire APV Board on January
1, 2012, or at the end of each successive ten (10) year period thereafter, the
APV Board agrees to change said covenants, easements, reservations and requirements
upon said lands in whole or in part for the best interests of the Poinciana
Subdivision, at which time modifications thereto shall be evidenced by recording
in the office of the Clerk of the Circuit Court an Amendment to the Deed of
Restrictions reflecting such modifications. Notwithstanding the foregoing, the
APV Board hereby declares that from and after January 1, 2012 the APV Board
may amend this Declaration at any time upon a majority vote of the APV Board.
Nothing in this Section shall be construed to prohibit the APV Board from amending
this Declaration at any time upon a vote of two-thirds (2/3) of the APV Board.
All amendments shall be recorded in both the public records of Polk County and
6. Enforcement .
Enforcement of this Declaration shall be by proceedings at law or in equity
against any person or persons violating or attempting to violate any covenant
of this Declaration. Enforcement of this Declaration may be either to restrain
violations or to recover damages, or both. The prevailing party shall be entitled
to recover, in addition to cost and disbursements allowed by law, such sums
as the Court may adjudge to be reasonable for the service of the prevailing
7. Severability .
These covenants and restrictions are severable and the invalidation of one shall
not invalidate any other covenant hereof, and each covenant shall be independent
to such extent.
of Rights . Avatar reserves the right to create one or more additional Villages
upon property owned by Avatar or its assignees or designees. Such Villages shall
be subject to such use restrictions and setbacks as deemed appropriate by Avatar
or its assignees or designees and recorded in the Public Records of the applicable
County. Without limiting the foregoing, any property made subject to a new Village
shall not be subject to the use restrictions set forth in this Declaration except
and to the extent so designated by document recorded in the Public Records of
the applicable County. The APV and Avatar or its assignee or designee agree
to negotiate in good faith to what extent, if any, the APV will provide services
to such property and be subject to Assessment by the APV based on the impact
of such development.
9. APV .
9.1 Establishment of
APV . As an additional covenant and condition to the ownership to lands in
Poinciana Subdivision, as now platted, and as to lands in any subsequent plats
of Poinciana Subdivision filed by Avatar, Avatar has established the APV, a
master owners association, which has under its umbrella the various Village
Associations. The APV, this Declaration and the APV Articles affect all properties
within the Poinciana Subdivision and all present and future Owners agree to
be bound by this Declaration and the APV Articles, for themselves and as a charge
and duty of each lot owned, or to be owned by them.
9.2 Rights of APV .
APV shall have the right to own and take title to common areas not previously
dedicated and accepted by the public such as roads, streets and other ways,
greenways, drainage ways, retardation areas, open space and the like, and to
designate improvements to be constructed on any of such lands which it may own
at such time, or subsequently acquire. The APV shall have the right to assess
the costs of construction of such improvements to the Owners of all Lots in
Poinciana Subdivision and subsequent annexations and plats thereto. Except for
streets and roadways dedicated to the Public, the APV or an improvement district,
shall always assume the responsibility for maintenance of "Greenways" and "Retardation
Areas", as set forth on the respective Plats of Poinciana Subdivision filed
with the applicable County, and pursuant thereto, shall have the right to reimbursement
therefor in accordance with the provisions hereof, to make Assessments on all
of the Lots in the Poinciana Subdivision to cover the costs thereof, all as
further provided below.
9.3 Assessments .
Each Owner, by acceptance of a deed or instrument of convey-ance for the acqui-sition
of title in any manner (whether or not so expressed in the deed), including
any purchaser at a judicial sale, shall hereafter be deemed to have covenanted
and agreed to pay to the APV at the time and in the manner required by the APV
Board, assessments or charges and any special assessments as are fixed, established
and collected from time to time by the APV (collectively, the " Assessments ").
The Assessments levied by the APV shall be used for, among other things, the
purpose of promoting the recreation, health, safety and welfare of the residents
of Poinciana Subdivision, and in particular for the improvement and maintenance
of the Common Areas and any easement in favor of the APV. The Assessments levied
by the APV Board shall be used exclusively for the purposes set forth in this
Declaration, the Articles and the By-Laws and for the benefit of the Owners
as an entire community, the improvements, maintenance, repair and replacement
of properties, services and activities and facilities devoted to this purpose
and applicable to the use and enjoyment of the Common Areas.
9.4 Allocation of Assessments .
All Assessments shall be fairly apportioned over all the Lots in the Poinciana
Subdivision. The APV Board shall determine the total amount of Assessments required,
including operational items such as insurance, repairs, maintenance and other
operating expenses, as well as charges to cover any deficiencies from prior
years, capital improvements and reserves approved by the APV Board. The total
annual Assessments required and any supplemental requirements shall be allocated
between, assessed to and paid in accordance with the following:
9.4.1 Subject to the following,
all Owners (other than Bulk Land Owners or Owners subject to special assessment
agreement with the APV) shall be assessed equally for costs and expenses of
the APV related to any uniform overall community function, activity, service,
facility or improvement of the APV which is for the specific benefit of all
9.4.2 Assessments covering
special costs and expenses of the APV for any function, activity, services,
facility or improvements used by a portion of a Village or one or more Villages
but not by all Villages shall be assessed to those Owners directly receiving
the benefit thereof but not to Owners not receiving such benefit. The APV Board
shall determine, using reasonable judgment, the amount assessed and what Owners
are subject to such special Assessments.
9.4.3 Solivita (Village
X) has elected, at its own expense, to maintain all of its common areas, greenways
and drainage facilities, and provide or supply its own patrol, architectural
review (which supplements the Criteria), enforcement of restrictions, recreational
facilities, improvements and association type operations within the Village.
Owners within Solivita are subject to Assessments by the APV pursuant to that
certain Village Ten Assessment Agreement recorded in Official Record Book 04510
at Page 1739 in the Public Records of Polk County.
9.4.4 For any undeveloped
Village or portion thereof, the Owner shall be assessed by the APV as a Bulk
9.5 Bulk Land Assessments .
Each Bulk Land Owner shall be liable to pay its prorata share of the Assessments
levied each year by the APV respecting Bulk Land (" Bulk Land Assessments ").
The total amount of all Bulk Land Assessments shall be equal to the annual budget
adopted by the APV multiplied by a fraction, the numerator of which shall be
the aggregate value of all Bulk Land owned by the Bulk Land Owners as assessed
by the applicable county tax assessor for the prior calendar year, and the denominator
of which shall be the value of all land subject to the Declaration (other than
land owned by Avatar) as assessed by the applicable county tax assessor for
the prior calendar year. Each Bulk Land Owner's prorata share of the Bulk Land
Assessment shall based upon the total acreage of Bulk Land owned by each respective
Bulk Land Owner subject to the Declaration, divided by the total acreage of
land owned by all Bulk Land Owners.
9.6 Surplus Assessments .
Any surplus Assessments collected by the APV may be allocated towards the next
year's Assessments. Under no circumstances shall the APV be required to pay
surplus Assessments to Owners.
9.7 Establishment of
Assessments . Assessments shall be established in accordance with the following
9.7.1 Assessments shall
be established by the adoption of a twelve (12) month operating budget by the
APV Board. The budget shall be in the form required by Section 720.303(6) of
the Florida Statutes, as amended from time to time. Written notice of the amount
and date of commencement thereof shall be given to each Owner not less than
ten (10) days in advance of the due date of the first installment thereof. Notwithstanding
the foregoing, the budget may cover a period of less than twelve (12) months
if the first budget is adopted mid-year or in order to change the fiscal year
of the APV.
9.7.2 The APV may establish,
from time to time, by resolution, rule or regulation, or by delegation to an
officer or agent, including, a professional management company, use fees. The
sums established shall be payable by the Owner utilizing the service or facility
as determined by the APV.
9.8 Claim of Lien .
Each Owner, by acceptance of a deed or instrument of conveyance for the acquisition
of title to a Lot, shall be deemed to have covenanted and agreed that the Assessments,
and/or other charges and fees set forth herein, together with interest, late
fees, costs and reasonable attorneys' fees and paraprofessional fees at all
levels of proceedings including appeals, collections and bankruptcy, shall be
a charge and continuing lien in favor of the APV encumbering the Lot and all
personal property located thereon owned by the Owner against whom each such
Assessment is made. The lien is effective from and after recording a Claim of
Lien in the Public Records stating the legal description of the Lot, name of
the Owner, and the amounts due as of that date, but shall relate back to the
date that this Declaration is recorded. If such Assessments are not paid, the
Claim of Lien may be foreclosed after 90 days after same is outstanding, in
the same manner as provided under Florida law for the foreclosure of mortgages.
9.9 Timing of Assessment
Payment . All Assessments shall be paid by Lot Owners as established annually
by the APV Board and shall be due and payable to the APV in advance on or before
the first day of each calendar year. The APV Board, in its discretion, may allow
payments of Assessments on a monthly or other basis
9.10 Non-Payment of Assessments .
If any Assessment is not paid within fifteen (15) days (or such other period
of time established by the APV Board) after the due date, a late fee of $25.00
per month (or such lesser or greater amount established by the APV Board from
time to time), together with interest in an amount equal to the maximum rate
allowable by law (or such lesser rate established by the APV Board), per annum,
beginning from the due date until paid in full, may be levied. The late fee
shall compensate the APV for administrative costs, loss of use of money, and
accounting expenses. The APV may, at any time thereafter, bring an action at
law against the Owner personally obligated to pay the same, and/or foreclose
the lien against the Lot and improvements thereon, or both. The APV shall not
be required to bring such an action if it believes that the best interests of
the APV would not be served by doing so. There shall be added to the Assessment
all costs expended in preserving the priority of the lien and all costs and
expenses of collection, including attorneys' fees and paraprofessional fees,
at all levels of proceedings, including appeals, collection and bankruptcy.
No Owner may waive or otherwise escape liability for Assessments provided for
herein by non use of, or the waiver of the right to use the Common Areas or
by abandonment of a Lot.
9.11 Subordination of
Lien . The lien for Assessments shall be subordinate to a bona fide first
mortgage held by a Lender on any Lot if the mortgage is recorded in the Public
Records prior to the Claim of Lien. The lien for Assessments shall not be affected
by any sale or transfer of a Lot, except in the event of a sale or transfer
of a Lot pursuant to a foreclosure (or by deed in lieu of foreclosure or otherwise)
of a bona fide first mortgage held by a Lender, in which event, the acquirer
of title, its successors and assigns, shall not be liable for such sums secured
by a lien for Assessments encumbering the Lot or chargeable to the former Owner
of the Lot, which became due prior to such sale or transfer. However, any such
unpaid Assessments for which such acquirer of title is not liable may be reallocated
and assessed to all Owners (including such acquirer of title) as a part of the
operating costs of the APV included within Assessments. Any sale or transfer
pursuant to a foreclosure (or by deed in lieu of foreclosure or otherwise) shall
not relieve the Owner from liability for, nor the Lot from the lien of any Assessments
made thereafter. Nothing herein contained shall be construed as releasing the
party liable for any delinquent Assessments from the payment thereof, or the
enforcement of collection by means other than foreclosure.
9.12 Exemption . The
APV Board shall have the right to exempt any portion of Poinciana Subdivision
subject to this Declaration from the Assessments. The APV Board has exempted
all Lots owned by Avatar from Assessments until such Lots are conveyed to a
individual purchaser of a Lot. This Section shall not be amended by any party
or entity without the prior written approval of Avatar. The following property
is also exempt:
9.12.1 Any easement or other
interest therein dedicated and accepted by the local public authority and devoted
to public use.
9.12.2 Common Areas .
9.12.3 Land and improvements
owned by governmental entities pursuant to Florida law.
Fees . With respect to the real property described on Exhibit F
and all of Poinciana Subdivision in Polk County other than Village Ten, commencing
one year after the date a Lot buyer agrees to purchase a Lot, the Owner will
be responsible for payment of a utility availability fee to Avatar (" Utility
Availability Fee "). This Utility Availability Fee is to help Avatar
defray the costs and expenses involved in making utility service available to
the Lot. The Utility Availability Fee is presently estimated at $9.00 per month
per Lot, subject to adjustment in relation to actual costs and expenses and
the Utility Availability Fee shall continue until the utility facilities have
been turned over to a utility company. The extent of the utility maintenance
program and the amounts expended shall be within the sole discretion of Avatar.
This Utility Availability Fee shall constitute a lien against the assessed Lot,
and if unpaid, may be collected and enforced by any legal remedies available
to Avatar with the Lot Owner being liable for reasonable costs, including attorney's
fees. The Lot Owner's responsibility for the Utility Availability Fee shall
survive delivery of the deed.
Suspension of Voting, Etc .
11.1 Right to Cure .
Should any Owner do any of the following:
11.1.1 Fail to perform its
responsibilities as set forth herein or otherwise breach the provisions of the
11.1.2 Cause any damage
to any improvement or Common Areas; or
11.1.3 Impede the APV from
exercising its rights or performing its responsibilities hereunder; or
11.1.4 Undertake unauthorized
improvements or modifications to a Lot or to the Common Areas.
The APV, after reasonable
prior written notice, shall have the right, through its agents and employees,
to cure the breach, including, but not limited to, the entering upon the Lot
causing the default to be remedied and/or the required repairs or maintenance
to be performed, or as the case may be, remove unauthorized improvements or
modifications. The cost thereof, plus reasonable overhead costs and attorneys'
fees and paraprofessional fees at all levels including appeals, collections
and bankruptcy, incurred shall be assessed against the Owner as an Assessment
applicable just to such Lot.
11.2 Non-Monetary Defaults .
In the event of a violation by any Owner of any provisions of this Declaration,
other than the nonpayment of any Assessment or other monies, the APV shall notify
the Owner of the violation, by written notice. If such violation is not cured
as soon as practicable and in any event within seven (7) days after such written
notice, the party entitled to enforce same may, at its option:
11.2.3 Commence an action
to enforce the performance on the part of the Owner or to enjoin the violation
or breach or for equitable relief as may be necessary under the circumstances,
including injunctive relief; and/or
11.2.4 Commence an action
to recover damages; and/or
11.2.5 Take any and all
action reasonably necessary to correct the violation or breach.
11.3 Expenses . All
expenses incurred in connection with the violation or breach, or the commencement
of any action against any Owner, including reasonable attorneys' fees and paraprofessional
fees at all levels including appeals, collections and bankruptcy, shall be assessed
against the Owner, as an Assessment against the individual Lot, and shall be
immediately due and payable without further notice.
11.4 No Waiver . The
failure to enforce any right, provision, covenant or condition in this Declaration,
shall not constitute a waiver of the right to enforce such right, provision,
covenant or condition in the future.
11.5 Rights Cumulative .
All rights, remedies, and privileges granted to the APV and/or the DCB pursuant
to any terms, provisions, covenants or conditions of this Declaration, or Criteria
shall be deemed to be cumulative, and the exercise of any one or more shall
neither be deemed to constitute an election of remedies, nor shall it preclude
any of them from pursuing such additional remedies, rights or privileges as
may be granted or as it might have by law.
11.6 Fines and Suspensions .
Except to the extent prohibited by law, in the event of a violation of the provisions
contained herein by an Owner or a person acting by, through, or under an Owner,
the Rules and Regulations of the APV, the Criteria, or other rules and regulations
promulgated by the APV, the APV shall also have the right to levy reasonable
fines or suspend the privileges of the Owner or any person acting by, through,
or under an Owner.
11.6.1 The APV may suspend
the voting rights of any Owner for the nonpayment of regular annual Assessments
as provided by law.
11.6.2 Further, the APV
may suspend the rights of an Owner to use Common Areas of the APV so long as
such suspension does not impair vehicular and pedestrian ingress and egress
from the applicable Lot, including the right to park.
11.6.3 Each fine shall be
an Assessment against the applicable Lot and enforceable pursuant to the provisions
of this Declaration and the By-Laws. Each day of an Owner's failure to comply
with this Declaration, the Rules and Regulations, the Criteria, or other rules
and regulations promulgated by the APV shall be treated as a separate violation
and, be subject to a separate fine. Fines shall be in such reasonable and uniform
amounts as the APV shall determine.
11.6.4 Suspensions and fines
shall be imposed in the manner provided in Section 720.305 of the Florida Statutes,
as amended from time to time. The APV Board shall have the authority to promulgate
additional procedures from time to time.
General Requirements . The following requirements are applicable to Villages
One through Nine and are not applicable to Village Ten (Solivita). Village Ten
is subject to the Solivita Declaration recorded in Official Records Book 04510
at Page 1576 in the Public Records of Polk County.
12.1 Easements . Easements
and rights-of-way are hereby expressly reserved for the creation, construction
and maintenance of utilities, such as gas, water, telephone, telegraph, electricity,
sewers, storm drains, public, or quasi-public, as well as for any public or
quasi-public utility or function deemed necessary and/or expedient for the public
health and welfare. Avatar reserves the exclusive use of such easements and
rights-of-way for purposes of cable television, including, but not limited to,
the exclusive right to erect, install, construct, repair, replace, reconstruct,
maintain and retain in, on, over, under, upon, across such easements and rights-of-way
for cable television systems. Overhead service wires are permitted across corners
of rear yards where side Lot lines do not join in the rear at a common corner.
12.1.1 Additional Temporary
Easements . In addition to the above, there shall be an additional temporary
construction easement abutting the exterior sides of each easement herein granted.
Said temporary construction easement shall be for the purpose of providing access
during the construction of utility improvements and shall terminate upon the
completion of improvements. Said easement shall be of unlimited width, except
that same shall approach no closer than five (5) feet to any structure existing
at time of construction.
12.2 Plans and Specifications .
Plans and specifications for all residential, institutional or commercial structures
including, but not limited to, driveways, and paving must be submitted to the
DCB for written approval as to quality of workmanship and materials, harmony
of external design, aesthetic effect, size and existing structures. Without
limiting the foregoing, the DCB must approve all building and site plans prior
to the commencement of any construction. The DCB has pre-approved all initial
construction for all improvements located within the boundaries of Village Ten.
The DCB shall not unreasonably withhold any approval of proposed changes to
initial construction sought by an Owner within Village Ten once such changes
have been approved by the Village Ten Architectural Review Committee. Building
permits must be obtained from the proper County authorities.
12.3 Avatar's Approval
Rights . Avatar or its designated agent shall have a right to review and
approve all plans and specifications submitted to the DCB. The failure of Avatar
or its designated agent to give notice of its disapproval of plans and specifications
submitted to the DCB within thirty (30) days after receipt thereof shall be
deemed to constitute the approval thereof.
12.4 Signs . No signs
of any kind shall be exhibited in any way on or above the property of Poinciana
Subdivision, including any and all signs to be painted on any side or face of
structure, without written approval from Avatar or its duly authorized agent
and the DCB. Avatar reserves the right to approve the erection of certain signs
on a temporary basis which would vary from the usual norm of other signs. All
other signs shall be in conformance with the Poinciana Signage Requirements
of the DCB.
12.5 Pets and Animals .
No husbandry of either animals or fowls shall be conducted or maintained in
Poinciana Subdivision; provided, however, that dogs, cats and other household
pets, not to exceed two (2) per household, may be kept on the Lots subject to
such rules and regulations as may be adopted by the APV Board, so long as they
are not kept, bred or maintained for commercial purposes.
12.6 Walls and Fences .
No fence, hedge, wall or other dividing instrumentality shall be erected or
maintained on any Lot of Poinciana Subdivision which shall restrict or block
the view from an adjoining Lot or which shall materially impair the continuity
of Poinciana Subdivision. For this purpose, a residential hedge, fence, wall
or other dividing instrumentality shall be maintained at no greater height than
six (6) feet, and no wall or fence shall be erected or placed within the front
setback lines of any Lot, unless said wall or fence shall be ornamental and
a desirable feature and shall not in any manner impair the general scheme of
Poinciana Subdivision. The APV Board may grant fencing variances for Flag Lots.
Notwithstanding the above, Avatar may, in its discretion, approve minor projections
above the restricted heights for architectural features. Innovative fencing
for commercial, institutional and recreation areas may exceed six (6) feet with
the approval of the APV Board. No wall or fence of any kind whatsoever shall
be constructed on any Lot until after the height, type, design and location
thereof shall have been approved in writing by Avatar, or its duly authorized
agent and the DCB. The failure of Avatar or its duly authorized agent to give
notice of its approval of any wall or fence submitted to the DCB within thirty
(30) days after receipt thereof shall be deemed to constitute the disapproval
12.7 Vehicles . No
house trailer, mobile or motor home (except in Village Nine and other areas
designated for mobile homes), camper, recreation vehicle, boat, boat trailer,
bus, inoperable vehicle, implement of husbandry, or the like shall be allowed
on any residential Lots, roadways, driveways or Common Areas. No utility trailer,
tractor, truck tractor, semitrailer, road roller, commercial van or other vehicle
with a carrying capacity of one (1) ton or greater (oversized vehicles), dumpster,
pole trailer, caterpillar, bulldozer, crane, backhoe, or the like shall be allowed
on any of the residential Lots unless the same is present in the actual continuous
construction, repair, or development of structures or property, or the temporary
servicing of or delivery to homes, and only for the duration of such activity.
No Lot shall be used as a junk yard or auto graveyard. No other vehicle shall
be used for living purposes, except as allowed in areas subsequently zoned for
mobile homes. No trucks shall be parked overnight in areas zoned Residential.
No parking is permitted in the traveled section of any roadway or street. No
parking is permitted on the lawn or unpaved area of any Lot. In residential
areas "on-street" parking shall be allowed only for temporary visitor parking
or for the temporary parking of vehicles performing pick up, delivery and other
commercial services. Notwithstanding the foregoing, the APV may issue a twenty-four
(24) hour, on a case by case basis, for leisure styled vehicles such as boats,
campers, recreation vehicles and the like. Temporary passes must be non-consecutive
and not issued for the same Lot more frequently than once every seven (7) days.
12.8 Parking . No
trucks shall be parked overnight in areas zoned Residential. No parking is permitted
in the traveled section of any roadway or street or the shoulder or unpaved
portion of the street right-of-way, except for temporary emergency purposes
or by authorized governmental, public utility or law enforcement personnel while
engaged in their official duties. No parking is permitted on the lawn or unpaved
area of any Lot. No cars shall be parked on a residential Lot except with rear
or front car bumper facing garage or carport except where a Lot has a home with
a circular driveway.
12.9 No Repairs .
General repair or overhaul of any automobile, truck, recreation vehicle, motorcycle,
or any other motorized vehicle, shall not be performed at any Lot or upon any
Common Area within Poinciana Subdivision. Minor repair and adjustment, washing
or polishing of any vehicle is permitted at the Lot subject to applicable Florida
12.10 Greenways and Waterways .
The owners and occupants of land in the Poinciana Subdivision who have continuous
ownership shall have an easement in common for the use of parks, greenways,
retardation areas and canal waterways. No structures shall be constructed, dug,
or excavated into any of the greenways, retardation areas, or canals until plans
for same have been approved in writing by Avatar, or its duly authorized agent
and the DCB. Likewise, no vehicle or structure shall be placed in the waterways
adjacent to or within the Poinciana Subdivision which will impede navigation
or restrict freedom of movement of other vehicles. No boat, houseboat, or other
vessel shall be used as a place of abode or dwelling within the Poinciana Subdivision.
12.11 Irrigation .
All buildings shall be connected at the Owner's expense with central water and
sewer utilities within ninety (90) days after date of availability. Incidental
utility or service structures, and detached garages, shall not be required to
make such utility connections. However, wells may be maintained for outside
use, including watering of lawns, swimming pools, etc., subject to approval
of duly constituted public health authorities and/or public utility.
12.12 Trash Containers
for Commercial, Institutional, Multiple Family . All trash container areas
and yards for commercial, institutional and multiple family buildings will be
screened visually and in a manner which will dampen associated noise. This should
be accomplished either with dense shrubbery such as hedges or with wood fences
or landscaped masonry walls.
12.13 Real Estate Offices .
No property shall be used for a real estate office, except only upon the written
approval of Avatar.
12.14 Commercial Use .
No residential Lot shall be used for commercial purposes of any kind that result
in noise, increased traffic, nuisance or otherwise disrupt the residential character
of a neighborhood; provided, however, the APV may grant a special exception,
upon the application duly made. No Lot granted a special exception for commercial
use shall be used exclusively for commercial purposes. A combination of residential
and commercial usage is required. Signage shall be in accordance with Section
12.4 of this Declaration.
12.15 Districts .
Avatar or the APV Board may form or cause to be formed one or several general
or special improvement or service districts for the purpose of providing for
the construction of street lighting, fire districts, pedestrian ways, common
parking areas, and for the care and maintenance of common open spaces, parks,
greenways, drainage ways, pedestrian ways and beautification. These districts
shall arrange for and defray costs of said care and maintenance by equitable
Assessments on Owners. Such districts may cease to exist if at any time any
municipality, County, or other public body or improvement district shall assume
said care and maintenance.
12.16 Membership in Village
Association . At such time as a deed is delivered to the Owner of a Lot,
the Owner of the Lot shall automatically become a member of the Village Association
for the Village in which the Lot is located if such association has previously
been created by Avatar for such purpose. The jurisdictional boundaries of the
Village Association may include any areas in Poinciana Subdivision or annexations
thereto specifically designated by Avatar.
12.17 Subdivision of
Land . No Lots, tracts, or parcels set forth in the recorded plat or subsequent
recorded plats of Poinciana Subdivision can be divided or re-subdivided unless
all the divided portions thereof are added to the adjacent Lots, tracts, or
parcels to create larger adjacent contiguous ownerships, except with the written
consent of Avatar. Consent shall not be unreasonably withheld. It is further
provided that no Lots, tracts, or parcels be subdivided so as to create a violation
of any of the restrictions herein established. In the event a Lot is increased
in size by the addition of a portion of the adjacent Lot, any encroachment on
the utility easements in the interior of the increased Lot is hereby waived
and such easement is hereby deemed removed to the perimeter of said increased
Lot and original easement heretofore reserved is hereby vacated. The Owner of
combined Lots must pay the Assessments due on each Lot unless the structure
built on the combined Lots straddles the interior Lot boundaries.
Dwellings . In addition and supplemental to the foregoing restrictions, the
DCB Criteria and the following restrictions, reservations and easements shall
apply to and govern the erection and maintenance of single, duplex and multiple
dwellings in Villages One through Nine. These restrictions do not apply to Village
13.1 Garbage and Trash .
Trash and garbage containers shall not be permitted to remain conspicuous except
on days of trash collection. In Village Nine, at the time of occupancy each
Owner shall be responsible for arrangement with the franchised collector for
removal of garbage on a regular basis.
13.2 Pets . No animals,
livestock or poultry of any kind shall be raised, bred or kept on any Lot, except
that dogs, cats or other household pets (but no more than two (2) per Lot) may
be kept if permitted by the APV pursuant to rules and regulations adopted by
13.3 No Outside Storage .
No outside storage is allowed (e.g., storage of car tires, step ladders, discarded
13.4 Garages . There
shall not be erected or maintained on the property of that part of the Poinciana
Subdivision which is designated herein exclusively for single family residential
purposes, any structure of any kind other than a one-family dwelling and suitable
accessory building, such as garage or carport. No garage or accessory buildings
shall be used as living quarters. All garages must be built on rear half of
Lot unless attached to the house.
13.5 Flag Lot . A
Flag Lot has the basic formation set forth on Exhibit G hereof ("Typical
Flag Lots") or as set forth on Exhibit H hereof (" Non-Typical Flag
Lots "), each of which has parcels marked "A," "B" and "C." The front Lot
line is that portion of the Lot which abuts the greenway, golf course, open
space or waterway or, with respect to rear Flag Lots, the portion of the Lot
which abuts the driveway. When more than one side of the Lot abuts a greenway,
the front Lot line is defined as the Lot line abutting the major greenway.
13.5.1 Tenants In Common .
The Owners of the two residential Flag Lots fronting (contiguous to) the street
lying on either side of the said driveway tract, together with the Owners of
the rear two Flag Lots served access by the driveway tract for ingress and egress
shall be tenants in common, each as to an undivided one-fourth (_) interest,
all to the entire of said driveway tract. Said respective ownership interest
of an undivided one-fourth (_) interest in the driveway parcel shall constitute
an appurtenant additional interest to the rights of ownership of the respective
residential Lot adjacent to or lying to the rear of the subject driveway parcel,
and the title to said appurtenance shall follow and be concurrent to the ownership
of the respective residential Lot. Any person hereinafter acquiring title to
any such residential Lot agrees that the title to such Lot and the said appurtenant
undivided one-fourth (_) interest in the driveway parcel is perpetually unified
and made concurrent, to the result that such unity of title shall forever be
a covenant running with the land and that the benefits and burdens of such ownership
of said appurtenance shall be attributable to and a charge and lien upon the
ownership of the fee simple title of the respective residential Lot, including
an assumption by the Owner thereof of the responsibility for maintenance and
payment of ad valorem taxes, all in addition to the rights of possession, all
as hereinafter set forth. As to the Owner of a residential Lot adjacent to parcel
"A" or "B", respectively, such Owner shall become obligated to maintain the
grass and all landscaping planted along the border of said parcel "A" or "B"
lying adjacent to such Owner's respective Lot and to the driveway parcel "C".
The Owner assuming the above said duties of maintenance as to parcel "A" or
parcel "B" shall have as to that specific parcel exclusive rights to possession
and enjoyment to the exclusion of all other persons, which rights of use, possession
and enjoyment, except as needed by rear Lot Owners for parcel "C" maintenance,
shall include the right fully to occupy same in all manner and respect as the
rights are attributed to the Owner's residential Lot adjacent thereto. Said
Owner also agrees to pay an undivided one-fourth (_) of all Assessments and/or
ad valorem taxes imposed on the driveway parcel by any governmental authority.
13.5.2 Sharing of Expense .
The Owners of either of the rear Flag Lots shall have the full and undiminished
right to use and occupancy of the driveway (parcel "C") and all rights of ingress
and egress to his respective Lot over and across said driveways, to the exclusion
of all other persons, excepting only the owner of the other adjacent rear Lot
also served by the same said driveway parcel "C". It shall be a covenant running
with the land that each of said rear Flag Lot Owners have the concurrent obligation
for the maintenance of the surface and appearance of said driveway (parcel "C")
and also shall pay an undivided one-fourth (_) of all taxes or assessments made
by any governmental authority thereon.
13.5.3 Failure to Maintain .
In the event any of the respective tenants in common having ownership of parcels
"A" or "B" and "C" shall fail to maintain said parcels as described above according
to the conditions therein stated, or to pay taxes and/or Assessments which may
be imposed thereon, the APV shall have the right to perform such maintenance
services in behalf of such respective common Owners or pay the taxes and assessments
thereon, and the APV shall have the right to enforce reimbursement for such
advances by imposing a lien upon the respective residential Owner, which lien
may be enforced according to the terms and provisions of this Declaration.
13.5.4 Exceptions .
None of the provisions of this Section 13.5 shall apply to the Owner of a Flag
Lot or the Owner of either of the two residential Lots fronting (contiguous
to) the street lying on either side of the said driveway tract unless the deed
from Avatar shall also include in the lands conveyed thereby the appurtenant
undivided one-fourth (_) interest in the driveway parcel. Nothing herein contained,
however, shall prevent at any time in the future, the owners of Flag Lots or
the fronting residential Lots contiguous to the Flag Lot stems from voluntarily
agreeing to be bound by the provisions of this Section 13.5, other than this
subsection, by filing in the Public Records of the applicable County an instrument
in writing agreeing to privity of title as between all four of any such Lots,
each as to an undivided one-fourth (_) interest in said driveway parcel as then
made unified. After the filing of such instrument in the Public Records of the
applicable County, the covenants running with the lands, as recited in this
Section 13.5, shall thereafter apply.
14. Commercial .
The following restrictions, reservations and easements shall apply to and govern
the erection and maintenance of Commercial Buildings in Villages One through
Nine, all of which are limited and restricted to those sections and areas of
Poinciana Subdivision as are zoned for that purpose. These restrictions are
not applicable to Village Ten. Pursuant to Section 5 of the Original Declarations,
the Village Ten Declaration shall set forth the restrictions on Commercial Buildings
applicable to Village Ten. Setback requirements for Commercial Buildings are
set forth in the DCB Criteria. In addition, all Commercial Buildings must meet
all applicable regulations of the applicable County.
14.1 Parking . The
front and rear setback areas may be utilized for parking. No vehicular parking
shall be allowed on the front building setback portion of any Lot unless provisions
are established, to the satisfaction of Avatar and the County to prevent the
vehicles departing such premises from backing onto the traveled portions of
adjacent streets. In all such departures, the vehicles must use only Avatar
and the County approved exits.
14.2 Required Paving
and Construction . As part of the construction of each building erected in
a commercial area of Poinciana Subdivision, there shall be included a sidewalk
in accordance with the applicable County Code and/or Regulations. Likewise,
as part of the construction of each building, there shall be constructed concrete
curbing and gutters, and storm sewers, plus that portion of the unpaved street
fronting on each such building, lying between the side curb and gutter and the
street, as paved by Avatar, shall be paved. All of the construction required
by this Section shall be at the expense of the Lot Owner and shall be paid for
by the Lot Owner at the prevailing rate, concurrently with the erection of a
building or buildings. It is further understood that Lot Owners who erect buildings
on only a fractional portion of a Lot must provide the herein above-detailed
curbs, sidewalks, gutters and paving for the entire Lot. All structures erected
must be of a permanent building material and must include adequate toilet facilities
for Owners and/or occupants and their employees. No building shall be used or
occupied as living quarters except for bonafide hotels and motels.
14.3 Use Restrictions
for Areas Zoned Commercial . The use restrictions for areas zoned Commercial
shall be as follows: retail businesses or services; parking lots and parking
garages; hotels, offices, banks, theaters; wholesaling; dry cleaning plants;
newspaper offices, printing establishments; public buildings; gasoline service
stations; funeral parlors; auto sales and repair service; bus and truck terminals;
tourist courts, motel and apartment motels, baking establishments; radio or
television studios and transmission towers; recreation and entertainment facilities;
or any other business the operation of which is not noxious, offensive, or injurious
to the properties or the occupants thereof in districts of higher restrictive
classifications by reason of the emission of odor, dust, dirt, smoke, gas, fumes,
cinders, noise, refuse matter, vapor, vibration, radioactive or other similar
substance or conditions; provided, however, that site development plans accompany
the user application for building permits and use and plans are approved by
Avatar, the DCB and the applicable County. The use restrictions shall be at
least as restrictive as the restrictions imposed on areas zoned or subsequently
zoned Commercial under the applicable County Zoning Code. Further, no gasoline
stations or service stations shall be permitted in areas designated Commercial
unless approved in writing by Avatar.
14.4 Party Walls .
When and where the use of a party wall is not in conflict with the laws and
regulations governing fire protection, party walls are permissible in a Commercial
Building by the mutual consent of all parties concerned.
14.5 Modification or
Waiver . The above restrictions shall refer in general to all Commercial
property in Poinciana Subdivision. These restrictions may be modified and waived
where a developer can demonstrate an adequate or more desirable solution to
the satisfaction of the applicable County, Avatar and the APV. Without limiting
any other provision hereof, the DCB must approve all Commercial building site
DEEDS OF RESTRICTION WHICH ARE OF NO FURTHER FORCE OR EFFECT
Original Polk Deeds of
Restriction : Deed of Restrictions executed by GAC Properties, Inc. recorded
in Official Records Book 1384 at Page 58; as amended by Amendment to Deed of
Restrictions recorded in Official Records Book 1401 at Page 50; as amended by
Amendment of Deed to Restrictions recorded in Official Records Book 1457 at
Page 799; as amended by Third Amendment to Deed of Restrictions recorded in
Official Records Book 1552 at Page 490; as amended by Fourth Amendment to Deed
Tuesday, June 26, 2007
BY AND RETURN TO:
DENNIS J. GETMAN, ESQ.
ASSOCIATION OF POINCIANA VILLAGES, INC.
401 WALNUT STREET
KISSIMMEE, FLORIDA 34759-4329
INSTR # 2001165186
OR BK 04805 PG 0410
RECORDED 09/21/2001 11:49 AM
RICHARD M. WEISS CLERK OF COURT
DEPUTY CLERK pvaughan
LARRY WHALEY 107P
OSCEOLA COUNTY, FLORIDA
CLERK OF CIRCUIT COURT
CL 2001137613 OR 1932/2808
DLB Dated 09/21/2001 Time 09:50:11 POINCIANA