The property of Monrovia Bishop Row Lot #7.
Here are the preliminary covenants for Bishop Row.
Bishop
Road Proposed Covenants
1.
General. This Article, sets
out certain use restrictions which must be complied with by all Owners and
Occupants. These restrictions may only
be amended in the manner provided in Article XII, Section 4, hereof regarding
amendment of this Declaration. In
addition, the board, by two-thirds (2/3) vote, may, from time to time, without
consent of the Members, promulgate, modify or delete other use restrictions and
rules and regulations applicable to the community. The board may restrict certain portions of
the recreational facilities administered by the Association to adults
only. Such use restrictions and rules
shall be distributed to all Owners and Occupants prior to the date that they
are to become effective and shall thereafter be binding upon all Owners and
Occupants until and unless overruled, canceled, or modified in a regular or
special meeting by a Majority of the total Association vote entitled to vote
thereon.
2. Residential Use. All Residences shall be used for
single-family residential purposes exclusively.
No business, trade, garage sale, moving sale, or similar business
activity shall be carried on in or upon any Residence at any time except with
the written approval of the Board. An
Owner or occupant of a Residence may conduct business activities within the
Residence so long as: (a) the existence
or operation of the business activity is not apparent or detectable by sight,
sound or smell from outside the Residence; (b) the business activity conforms
to all zoning requirements for the subdivision; (c) the business activity does
not involve regular visitation (more than one on a daily basis) of the
Residence by clients, customers, suppliers or other business invitees or
door-to-door solicitation of residents of the subdivision; and (d) the business
activity is consistent with the residential character of the subdivision and
does not constitute a nuisance, or a hazardous or offensive use, or threatens
the security or safety of other residents of the subdivision, as may be
determined in the sole discretion of the Board.
The terms “business” and “trade” as used in this provision, shall be
construed to have their ordinary, generally accepted meanings and shall
include, without limitation, any occupation, work, or activity undertaken on an
ongoing basis which involves the provision of the goods or services to persons
other than the provider’s family and for which the provider receives a fee,
compensation, or other form of consideration, regardless of whether such activity
is engaged in full or part-time; whether such activity is intended to or does
generate a profit; or whether a license is required.
3 Signs. No sign of any kind shall be erected by an
Owner or Occupant within the Community without the prior written consent of the
Architectural Review Committee. Notwithstanding the foregoing, the Board shall
have the right to erect reasonable and appropriate signs. "For Sale"
signs consistent with the Community-Wide Standard may be erected upon the
Residence property. Directional signage of "For Sale" signs on key
corners within the community are restricted to weekends. The provisions of this
Section shall not apply to any Person holding a Mortgage who becomes the Owner
of any Residence as purchaser at a Judicial or foreclosure sale conducted with
respect to a first Mortgage or as transferee pursuant to any proceeding in lieu
thereof. During home construction or any
reconstruction requiring a Building Permit from the County of Madison, the
Contractor may place one sign visible from the street for the purpose of identification
of the project. Such signage must be removed within two days of completion of the
work.
4. Vehicles
and Parking. The
term "vehicles," as used herein, shall include, but is not limited to
commonly state-licensed automobiles, trucks, buses, vans, sport utility
vehicles, motorcycles, some motor scooters, some mini-bikes, recreational motor
homes, campers, various flat-bed and fully enclosed trailers, boat trailers,
and jet-ski trailers (with or without the boat or jet skis). The term
"recreational vehicles" as used herein, shall include, but is not
limited to those items that are not commonly licensed by the state, such as
some motor scooters, some mini-bikes, go-carts, etc.
Occupants of a Residence shall limit their number of
vehicles to the number of garage and driveway parking spaces serving their
residence, since all vehicles must be routinely parked within such parking
spaces and not on the street, common area parking lots, or on any grass within
the community including on the grass at the resident's own property. Trailers
of all sorts, Recreational Motor Homes, Campers, and other utility and
recreational vehicles, other than normal transportation vehicles, may not be
parked in driveways for more than 24 hours per month without prior approval
from the HOA Board.
No community resident or guest, whether the owner or
operator, shall leave on any public street or thoroughfare in the Community any
recreational vehicle, mobile home, motor home, boat or trailer.
No unlicensed or inoperable vehicle incapable of being
operated on public highways may be parked in any portion of the Community,
except in a garage or other are designated by the HOA Board.
Vehicles violating the street parking restriction or unlicensed/inoperable
parking restriction shall be considered a nuisance and may be removed from the
Community at the direction of the HOA Board and at the expense of the home
owner.
No vehicle or recreational vehicle as defined above may be
stored in any residential backyard for more than 24 hours without prior
approval from the HOA Board.
Except during periods of active occupancy, garage doors
should routinely be kept closed at all times for security and appearance
purposes.
No motorized vehicles shall be permitted on Sidewalks,
pathways, or unpaved Common Property except for motorized wheelchairs, mobility
carts required due to medical disability, public safety
vehicles, and vehicles authorized by the Board. Accordingly, the operation of motorized
vehicles in the neighborhood is restricted to those licensed by the state and restricted
to public streets. This precludes the operation of motorized motorcycles,
motorscooters, mini-bikes, go-carts, and motorized skateboards on neighborhood
sidewalks and pathways.
Violators of this
provision shall have a period of 24 hours from receipt of the notice of violation
to remove non-complying vehicle restriction. Any Owner who has received more than
three notices of the same non-compliance violation shall be subjected to the
"repeat offender" provisions as contained in Section 36 herein below Leases. Residences may be leased for residential
purposes. All leases shall have a minimum term of six months.
5.
Leasing. Residences may be
leased for residential living purposes only.
6. Occupants
Bound. All provisions of the Declaration, By·Laws, and of any
rules and regulations, use restrictions or design gUidelines promulgated
pursuant thereto which govern the conduct of Owners and which provide for
sanctions against Owners shall also apply to all Occupants even though
Occupants are not specifically mentioned. Fines may be levied against Owners or
Occupants. If a fine is first levied against an Occupant and is not paid
timely, the fine may then be additionally levied against the Owner.
7.
Animals and Pets. No
animals, livestock, or poultry of any kind may be raised, bred, kept, or
permitted on any Residence, with the exception of dogs, cats, or other usual
and common household pets in reasonable number, as determined by the Board;
provided, however, those pets in the sole discretion of the Board endanger
health, make objectionable noise, (including, but not limited to barking dogs)
or constitute a nuisance or inconvenience to the Association members or
Occupants or the owner of any property located adjacent to the Community may be
removed by the Board. No pets are permitted to roam free. No pets shall be
kept, bred or maintained for any commercial purpose. Dogs which are household
pets shall at all times whenever they are outside a Residence be on a leash or
otherwise confined in a manner acceptable to the Board. Without prejudice to
the Board's right to remove any such household pets, no household pet that has
caused damage or injury may be walked in the Community. Animal Control
authorities shall be permitted to enter the Community to patrol and remove
pets. Pets shall be registered, licensed and inoculated as required by law. All types of pet outside bUildings and for
kennels must be an approved by the Architectural Review Committee and will not
be positioned in public view.
8.
Nuisance. It shall be the
responsibility of each Owner and Occupant to prevent the development of any
unclean, unhealthy, unsightly, or unkempt condition on his or her property. No
property within the Community shall be used, in whole or in part, for the storage
of any property or thing that will cause such Residence to appear to be in an
unclean or untidy condition or that will be obnoxious to the eye; nor shall any
substance, thing, or material be kept that will emit foul or obnoxious odors or
that will cause any noise or other condition that will or might disturb the
peace, quiet, safety, comfort, or serenity of the occupants of surrounding
property. No noxious or offensive activity shall be carried on within the
Community, nor shall anything be done tending to cause embarrassment,
discomfort, annoyance, or nuisance to any Person using any property within the
Community. There shall not be maintained any plants or animals or device or
thing of any sort whose activities or existence is noxious, dangerous,
unsightly, unpleasant or of a nature as may diminish or destroy the enjoyment
of the Community.
9.
Unsightly or Unkempt Conditions. The pursuit of hobbies or other activities, ,
which might tend to cause disorderly, unsightly, or unkempt conditions, shall
not be pursued or undertaken in any part of the Community. No automobile
maintenance or repairs may be made in the streets and only minor repairs of
short duration may be made in driveways.
10.
Architectural Standards. No
exterior construction, alteration, addition, or erection of any nature
whatsoever shall be commenced or placed upon any part of the Community, except
such as is installed by the Board, or as is approved in accordance with this
Section, or as is otherwise expressly permitted herein. No exterior construction, addition erection,
or alteration shall be made, including landscaping plans, unless and until·
plans and specifications showing at least the nature, kind, shape, color, size,
height, materials, and location of all proposed structures shall have been
submitted in writing to and approved in writing by an Architectural Review
Committee established by the Board. The
following items, without limitation, will be submitted to the Architectural
Review Committee for new home construction: house plans, site plans,
landscaping plans, and exterior color. The
Board may employ for the Architectural Review Committee architects, engineers,
or other persons necessary to enable the Committee to perform its review. The Architectural Review Committee may, from
time to time, delegate any of its rights or responsibilities hereunder to one
or more duly licensed architects or other qualffied persons, which shall have full
authority to act on behalf of the committee for all matters delegated and in
the event of such delegation, the applicant shall be required to pay any fees
charged by such architects or other qualified persons.
The Architectural Review Committee shall make every effort
to approve or to disapprove submitted plans and specifications within thirty
days after the plans and specifications have been submitted to it. Failure to approve or disapprove plans and
specifications within thirty days from receipt of the proposed construction
shall not be construed as a waiver by the Architectural Review Committee. Construction shall not be commenced unless and
until a ruling has been made by the Architectural Review Committee. As a condition of approval under this Section,
an Owner, on behalf of himself and his successors-in-interest, shall assume all
responsibilities for maintenance, repair, replacement, and insurance to and on
any change, modification, addition, or alteration. In the discretion of the Architectural Review Committee,
an Owner may be made to verify such condition of approval by a recordable written
instrument acknowledged by such Owner on behalf of himself and his successor’s interest.
The Architectural Review Committee shall be the sole arbiter
of such plans and may withhold approval for any reason, including purely
aesthetic considerations, and it shall be entitled to stop any construction in
violation of these restrictions. Any
member of the Board or its representatives shall have the right, during
reasonable hours and after reasonable notice, to enter upon any property to
inspect for the purpose of ascertaining whether or not these restrictive
covenants have been or are being complied with. Such Person or Persons shall not be deemed
guilty of trespass by reason of such entry. In addition to any other remedies available to
the Association, in the event of noncompliance with this Section, the Board
may, as provided in Article XII, Section 1, hereof, record in the appropriate
land records a notice of violation naming the Violating Owner.
Plans and specifications are not approved for engineering or
structural design or quality of materials, and by approving such plans and
specifications neither the Architectural Review Committee, the members thereof,
nor the Association assumes liability or responsibility therefore, nor for any
defect in any structure constructed from such plans and specifications. Neither Declarant, the Association, the
Architectural Review Committee, the Board, nor the officers, directors,
members, employees, and agents of any of them shall be liable in damages to
anyone submitting plans and specifications to any of them for approval, or to
any Owner of property affected by these restrictions by reason of mistake in
judgment, negligence, or nonfeasance arising out of or in connection with the
approval or disapproval or failure to approve or disapprove any such plans or
specifications. Every Person who submits
plans or specifications and every Owner agrees that he will not bring any
action or suit against Declarant, the Association, the Architectural Review
Committee, the Board, or the officers, directors, members, employees, and
agents of any of them to recover any such damages and hereby releases, remises,
quit-claims, and covenants not to sue for all claims, demands, and causes of
action arising out of or in connection with any judgment, negligence, or nonfeasance
and hereby waives the provisions of any law which provides that a general release
does not extend to claims, demands, and causes of action not known at the time
the release is given.
Approval of proposals, plans and specifications, or drawings
for any work done or proposed, or in connection with any other matter requiring
approval, shall not be deemed to constitute a waiver of the right to withhold
approval as to any similar proposals, plans and specifications, drawings, or
other matters subsequently or additionally submitted for approval.
Any structure or improvement placed or made in violation of
this Section shall be deemed to be nonconforming. Upon written request from the
Architectural Review Committee, Owners shall, at their own cost and expense,
remove such structure or improvement and restore the property to substantially
the same condition as existed prior to the nonconforming work. Should an Owner fail to remove and restore as
required, any authorized agent of the Architectural Review Committee or the
Board shall have the right to enter the property, remove the violation, and
restore the property to substantially the same condition as previously existed.
All costs, together with the interest at
the maximum rate then allowed by law, may be assessed the Residence and
collected as a Specific Assessment. In
addition, the Architectural Review Committee, or the Association by and through
its Board, shall have the right to exercise any means of enforcement as set
forth in Article IV, Section 32, and as described In Article XII, Section 1, of
this Declaration.
Unless otherwise specified in writing by the committee
granting approval, all approvals granted hereunder shall be deemed conditioned
upon completion of all elements of the approved work and all work previously
approved with respect to the same Residence, unless approval to modify any
application has been obtained. In the
event that any Owner fails to commence and diligently pursue to completion all
approved work, the Association shall be authorized, after notice to the Owner
and an opportunity to be heard in accordance with the By-Laws, to enter upon
the proper and remove or complete any incomplete work and to assess all costs
incurred against the Residence and the Owner thereof as a Specific Assessment.
Neither the Architectural Review Committee nor any Member of
the Association, or their officers or directors shall be held liable to any
person for exercising the rights granted by this Section. Any contractor, subcontractor, agent, employee
or other invitee of the owner who fails to comply with the terms and provisions
of this Section or the design guidelines may be excluded by the Architectural
Review Committee from the properties, subject to the notice and hearing
procedures contained in the By-Laws.
In addition to the foregoing, the Association shall have the
authority and standing to pursue all legal and equitable remedies available to
enforce the provisions of this Section and the decision of the Architectural
Review Committee. Should an injunction
or other equitable action be filed by the Association, the Owner shall be
responsible for any and all costs of such legal proceeding, including a reasonable
attorney’s fee incurred for services rendered on behalf of the Association.
11.
Antennas. No exterior antennas
of any kind shall be placed, allowed, or maintained upon any portion of the
Community, including any Residence without the prior written consent of the
Board or its designee except for residentiaL digital satellite dishes. No free-standing antennas other than residential
digital satellite dishes shall be placed on any Residence. The Board or its designee may approve the
installation of radio antennas which do not protrude above the roof line of the
Residence at its highest point and are not visible from the street in front of
the Residence. Each Owner and Occupant acknowledges that this provision
benefits all Owners and Occupants and each Owner and Occupant agrees to comply
with this provision despite the fact that the erection of an outdoor antenna or
similar device would be the most cost-effective way to transmit or receive the
signals sought to be transmitted or received.
12.
Drainage. Catch basins and
drainage areas are for the purpose of natural flow of water only. No
obstructions by fences, structures, or debris shall be placed in these areas. No Owner or Occupant may obstruct or
re-channel the drainage flows after location and installation of drainage
swales, storm sewers, or storm drains except with the permission of the
Architectural Review Committee. The Association hereby reserves a perpetual
easement across all Community property for the purpose of altering drainage and
water flow. Rights exercised pursuant to
such reserved easement shall be exercised with a minimum of interference to the
quiet enjoyment of affected property, reasonable steps shall be taken to protect
such property, and damage shall be repaired by the person causing the damage at
its sole expense.
13.
Sight Distance at Intersections. All property located at street intersections
shall be landscaped so as to permit safe sight across the street corners. No
fence, wall, hedge, or shrub planting shall be placed or permitted to remain
where this would create a traffic or sight problem.
14.
Clotheslines, Garbage Cans, Woodpiles, Portable Utility Structures, Etc. All clotheslines, garbage cans, woodpiles,
swimming pool pumps, filters and related equipment, air conditioning
compressors and other similar items shall be located or screened so as to be concealed
from view of neighboring streets and property. All rubbish, trash, and garbage shall
be regularly removed and shall not be allowed to accumulate. Trash, garbage,
debris, or other waste matter of any kind may not be burned within the
Community, except when done during the normal construction of a residence and
in accordance with City Ordinances. Portable
utility structures (i.e., sheds, buildings, bins, etc.) are allowed, but must
be concealed from View of neighboring streets and property unless approved by
the Board.
15.
Subdivision of Residence. No
Residence shall be subdivided or its boundary lines changed except with the
prior written approval of the Board or its designee. Any such division, boundary line change, or
replatting shall not be in Violation of the applicable subdivision and zoning
regulations.
16.
Guns. The use of firearms
in the Community is prohibited. The term "firearms" includes "B-B"
guns, pellet guns, and firearms of all types.
17.
Fencing. No fence or fencing
type barrier of any kind shall be placed, erected, allowed, or maintained upon
any portion of the Community, including any Residence, without the prior written
consent of the Board or its designee. Fence will be compatible with in the home
and have architectural interest. Flat wood/slab Sided fencing that does not
have architectural interest and visual relief will not be approved. No fence will be higher than six feet from the
final ground level to the top of the fence except by special permission of the
Architectural Review Committee. The exterior side of the fence has to be
finished; specifically the structural characteristics must be covered. Within
the construction of the fence there must be some brick or stone masonry, and
stone or brick is the preferred material to use at the corner posts. No
rough-sawn board of any kind will be used in the fence. All wood will be stained
a neutral color as approved by the Architectural Review Committee and
maintained in a satisfactory manner, which means that wood fencing must be
re-stained periodically to eliminate its natural fading to gray. No chain link
fence will be allowed within the subdivision. Fences regardless of construction will not be
permitted any nearer, to front lot line than the rear most corner of the
dwelling except in special circumstances.
18.
Utility Lines. No
overhead utility lines, including lines for cable television, shall be permitted
within the Community, except for temporary lines as required during
construction and lines installed by or at the request of Declarant.
19.
Window Air-Conditioning Units. Except as may be permitted by the Board or its
designee, no window air conditioning/heating units may be installed.
20.
Exterior Lighting. Except
for approved lighting as originally installed on a Residence, exterior lighting
shall not be permitted, except for (a) two (2) decorative post lights; (b) a street
light in conformity with an established street lighting program for the
Community; or (c) seasonal decorative lights during holidays, Landscape
lighting and front house illumination will be permitted with the approval of
the Architectural Review Committee.
21.
Artificial Plants, Exterior Sculpture, and similar items. No artificial vegetation shall be permitted on
the exterior of any property unless approved by the Board. Exterior sculpture, fountains,
flags, and similar items in public view must be approved by the Board or its designee.
22.
Energy Conservation Equipment. No solar energy collector panels or attendant hardware
or other energy conservation equipment shall be constructed or installed unless
they are an integral and harmonious part of the architectural design of a
structure, as determined in the sole discretion of the Board or its designee,
and must not be observable from the street.
23.
Above-Ground Swimming Pools. Except as may be permitted by the Board or its
designee, above ground swimming pools shall not be erected.
24.
Driveways. Except as may be permitted by the Board or its designee,
driveways shall be constructed with concrete, brick, cobblestone, or other
Board-approved material. Driveways may
be stained or painted an earth-tone color, with the approval of the
Architectural ReviewCommittee.
25.
Window Coverings. All
exterior street-facing windows are required to have window coverings that shall
be white or off-white or neutral, unless otherwise prior approved by the Board
or its designee. Aluminum foil on window panes, mirrored or reflective glass is
not allowed.
26.
Chimneys. All chimneys that
are on the exterior wall must have either brick or stone on all exterior sides
of the chimney. Interior chimneys may
have either a cement siding or stucco product on all four sides of the chimney.
All chimneys must be painted to match the color of the dwelling's roof.
27.
Landscaping. The
purpose of this restriction is to promote landscape development of single
family residential lots that will preserve and appreciate the value of the
development by promoting a high quality, cohesive level of landscaping. These requirements may be altered or amended
at the discretion of the Architectural Review Committee.
Guideline for Landscaping Planning: (a) Existing vegetation and trees should
be preserved whenever possible to provide screening and lend an established
feeling to the Community. No tree shall be removed without the express consent
of the Board of its designee, except for (al diseased or dead trees; (b) trees
less than six (6) inches in diameter; (c) trees needing to be removed for
safety reasons; or (d) trees within five feet of a dwelling. (b) Shrubs should
be well distributed, but not necessarily evenly spaced. Shrubs may be used for
screening and to minimize the visual impact of driveways and parking areas. (c)
Earth berms may be used to create a sense of enclosure and to screen driveways,
especially if planted with shrubbery. (d) Unified mulched planting beds will be
edged in materials such as brick, steel or wood, except mulched planting beds
that also contain children's playground equipment may be edged with a plastic
edging material (for safety reasons) with the prior written approval from the
Architectural Review Committee. (e) Exterior building material colors should be
considered when selecting flowering trees and shrubs so colors don't compete or
negate each other.
General Landscape Requirements: (a) A landscape plan shall be included as
part of the lot development package submittal. This plan will include the
entire lot and indicate the following: (i)
General information, including date, north arrow, and scale of one inch to no
more than fifty feet; all property lines, locations of all easements and
rights' of-way; name and telephone numbers of builder and owner. (ii)
Construction information, including the locations of buildings, driveways,
walks, walls, fences, and terraces. (iii)
Locations, caliper, species (common name), and intended treatment (move, remove,
or save) of existing trees six inches or greater at breast height. (iv) A schedule of all new and existing
required plants proposed for landscaping, including size (caliper and height,
container size, etc.) common names (genus, species, and variety) of trees,
shrubs, and ground cover, and type and amount of turf grasses. (b) The front yard of each lot shall be
planted with three large trees (4.i, ii, iii) and three small trees (4.iv, v),
to include no more than one evergreen. Shrubbery required in the front yard
shall be a minimum of twelve (12) shrubs, each initial shrub shall, at minimum,
be in a three gallon container, and at least half of which shall be species
evergreen in this climate. Shrubs shall be planted in a bed of mulch or ground
cover other than turf grass. (c) The
rear yard shall be planted with two large trees (4.i, ii, iii), and two small
trees (4.iv, v). (d) All proposed trees shall conform to be
the minimum size standard listed below, based on American Standards for Nursery
Stock, ANSI 160.1, published by the American Association of Nurserymen and
approved by the American National Standards Institute, as follows:
Suggested Large Trees:
(i) Type 1, Shade trees, 2.5" caliper, 12' height range' Sugar
Maple, Red Maple, Tullip Poplar, Sycamore, Red Oak, White Oak, and Willow Oak. (ii)
Type 2, Shade trees, 1.5" caliper, 6' to 8' height range· Weeping Willow,
Bradford Pear, Golden Rain Tree, Southern Magnolia, Zelkova, River Birch and
European Birch. (iii) Type 5, Coniferous Evergreens,5' to 6' height range -
Pine species, Hemlock and Spruce.
Suggested Smaller Trees:
(i) Type 3, Small upright trees, 1" caliper, 6' to 7' height range·
Redbud, Crabapple, Crepe Myrtle, Cherry Laurel, and Flowering Plum. (ii) Type 4, Small spreading trees, 5' to 6'
height range • Flowering Dogwood, Star Magnolia, Flowering Cherry, and Japanese
Maple. (e) Restricted trees are as
follows: Cold weather palm trees are not allowed forward of the rear corners of
the home. (f) If existing trees meet
requirements of this covenant in all respects, required trees of the covenant
may be omitted. Each existing tree meeting requirements may count, at the option
of the owner, for one of the trees in its required class, provided it: (i) Is not one of the following species:
Boxelder, silver maple, catalpa, cottonwood, camphor, mimosa, chinaberry, princess
tree, or Siberian elm. (ii)Has a live crown and is free from serious root,
trunk, and crown injury, (iii) Is indicated on the landscaping plan as a tree
"to be saved." (Iv) Is situated so that it can be incorporated into
the landscape with minimal grade, cut, or fill under the drip line of the tree.
(g) Ground cover may include shrubs and low·growing plants such as Liriope,
English Ivy, Periwinkle, and similar material. Ground cover may also include
non-living organic material such as bark and pine straw. (h) All trees greater
than six inches in diameter at breast heights shall be preserved, unless
removal of them is part of an approved plan, (i) The lot shall be completely
landscaped. However, planned natural areas will be allowed provided that the lawn
and the natural area form a cohesive whole. (j) Driveways shall coordinate with
topography and existing vegetation to preserve all trees greater than six
inches in diameter at breast height, "Curved" driveways are encouraged.
(k) Each lot owner must submit a landscaping plan which must be approved before
construction is commenced, The plan must be completely installed within ninety
days of receiving a certificate of occupancy. Additionally, each lot owner must
maintain his lawn in as good or better condition than his original landscaping
plan. It is not the intention of the Architectural Review Committee to monitor
every planting in Clifts Cove, but if a lawn, at the sole discretion of the
Architectural Review Committee, has deteriorated and/or was never installed
properly, and then the lot owner will be required to bring his lot into
compliance with the guidelines.
28.
Screening of Heating and Cooling Units, Propane Storage Tanks. All exterior heat and air conditioning compressors
or air handlers must be screened from view. This can be accomplished with vegetation,
fence, brick, and/or stone. If vegetation is used it must create a walled-off effect
within a reasonable time (a maximum of two years) after planting with no visual
sight of units. The screening is encouraged on all sides of the equipment but
is required on the front and side of the equipment.
29.
Storage Tanks. Two
twenty (20) pound propane tanks for outdoor cooking equipment are permitted but
must be screened from view, see above. Any
other storage tanks must be approved by the Architectural Review Committee.
30.
Recreational Equipment. Outdoor recreational equipment (swing sets,
playhouses, trampolines, etc) are permitted in rear yards and if possible should
be sited directly behind the rear of the house to prevent their viewing from
the street directly in the front of the residence, or within an approved
enclosed fence. Only Board approved
basketball goals may be erected or constructed and no basketball goals may be
erected or constructed forward of the front corners of the home. Any exceptions must be approved by the
Architectural Review Committee before installation.
31.
Dwelling Restrictions.
(a) All dwellings and permitted accessory buildings
constructed on the lots of said subdivision shall have an exterior of at least
eighty percent stone or masonry brick construction, with no less than eighty
percent of the exterior of the sides of the dwellings or buildings consisting
of stone or masonry brick with remaining exterior being cement type siding
material. No vinyl or aluminum siding or
trim is permitted. Visible unpainted red
or yellow "sewer brick" will not be allowed.
(b) All dwellings shall have side or courtyard entry
garages. No front entry garages will be permitted
on the primary residences unless specifically approved by the ARC.
(c) Roofs of dwellings constructed on all of said lots shall
be of dimensional architectural grade shingles or a material otherwise approved
by the ARC…no 3 tab flat shingles will be allowed.
(d) Dwellings constructed on lots in the subdivision shall
have at least 2,400 square feet of heated area, except that lots 9, 10, 11, and
12 must have at least 3,000 square feet of heated area.
(e) All dwellings shall have a minimum of a roof pitch of
8/12 or greater. First floor ceiling height will be a minimum of 9’ with 10’+
encouraged.
(f) Each lot shall contain an "Old French Mailbox"
with pointed top by the manufacturer designated by the Board. In the event of
supply problems of a given designated model, the Board or its designee shall
select the style mailbox to be installed for each lot. Each mailbox shall have a black finish.
(g) All single·family detached Residences shall contain, as
a minimum, a two car garage; carports shall not be permitted, unless attached
to the house and garage as a port-a-cochere, which must be approved by the
Architectural Review Committee.
(h) All dwelling exteriors must be repainted in the same
color used in the original construction unless prior permission is received from
the ARC. No dwelling shall be constructed
of untreated wood. All such wood
exteriors must be painted or specifically approved by the ARC.
(i) Residences of more than two stories are prohibited
(unless approved by the Architectural Review Committee prior to construction),
not including partial below ground basements.
32. Use
of Amenities and Common Area. Only residents may use the Association's
amenities and common area. Guests may utilize and/or visit such facilities only
when accompanied by a resident.
33.
Fines for Non-compliance with Community Use Restrictions. (a) New Home Construction Plan
Submission Violations. The failure to provide new home construction plans to
the Architectural Review Committee established by the Board shall result in a
fine assessed against the Owner, at the discretion of the Board, in the amount of
up to $100.00 per month the plans are delinquent, meaning the initiation of
construction activity. (b) Sign Violations. If a sign is erected in violation
of this Declaration, a notice will be sent by the Board to the Homeowner. If the sign is not removed within five days of
the date of the notice, a penalty of $10.00 per sign per day will be assessed
until said sign(s) is/are removed. (c) Other Community Use Restriction Violations.
In the event that the Board determines that
(a)
any Owner or designee of the Owner, as designee is defined below, has failed or
refused to comply with these listed Community Use Restrictions; or, (b) that
the noncompliance is caused through the willful or negligent act of an Owner,
his or her family, guests, lessees, invitees, or designee then, the ASSOCiation
shall give the Owner or designee written notice of the violation specifics. The
Owner or his designee shall have ten days to correct the Violation, or respond
to the Board with their plan and time schedule to accomplish compliance in the
event that such compliance is not capable of completion within a ten day
period, or, to commence such work which shall be completed within a reasonable
time, or, in the event that such work cannot be completed within a ten day
period, the Owner must receive approval of a reasonable time for completion from
the Board. If any Owner does not comply with the provisions hereof, a penalty
of $50.00 per occurrence will be assessed. In the case of construction or a
similar type of labor requirement, the violation will be reassessed in thirty
days from the date of the assessment for the continued or additional violations
and the possibility of additional penalties of the same amount. "Repeat offenders" shall be
subjected to a penalty of $100.00 per occurrence. A "repeat offender" shall be defined
as an Owner who has received three notices of non-compliance regarding the same
type of violation at any given time. These
fines shall be in addition to any other remedies afforded to the Association as
specified in this Declaration, including, but not limited to the enforcement
provisions as contained in Article XII.
34.
Appeal of an assessed fine. The
Board of Directors shall not impose a fine (late charges are not considered fines)
unless and until the following procedure is followed: (a) Within ten days from
the date of the notice that the Board intends to assess a fine for a Covenants
violation, the violator may request a hearing regarding the fine. Any statements, evidence, and witnesses may be
produced by the alleged violator at the hearing; and all rights to have the
fine reconsidered are waived if a hearing is not requested within ten days of
the date of the notice. (b) If a hearing is requested, it shall be held before
the Board in Executive Session (not open to the community or public), and the
alleged violator shall be given a reasonable opportunity to be heard. The
minutes of the meeting shall contain a written statement of the results of the
hearing.
VII -
Prohibition of Timesharing
Timesharing shall be prohibited in the Community. The term
"timesharing" shall include, without limitation, timeshare estate,
timeshare use, and timeshare interval programs.
VIII -
Insurance and Casualty Losses
1.
Insurance. The Association's
Board of Directors or its duly authorized agent shall have the authority to and
shall obtain insurance for all insurable improvements on the Common Property. The Board shall obtain a public liability
policy applicable to the Common Property insuring the Association and its
members for all damage or injury caused by the negligence of the Association or
any of its members or agents. The public liability policy shall have a combined
single limit of at least $1,000,000.00 or a greater amount if directed by
Declarant. If available at reasonable
cost, as determined in the sole discretion of the Board, the Board shall also
obtain directors' and officers' liability insurance. All such insurance coverage obtained by the
Board of Directors shall be written in the name of the Association, as trustee,
for the respective benefitted parties, as further identified in subparagraph
(b), below. Such insurance shall be governed by the provisions hereinafter set forth: (a) All policies shall be written with a
company licensed to do business in Alabama and holding a rating of Bor better
as established by A. M. Best Company, Inc., if available, or, if not available,
the most nearly equivalent rating. (b) Exclusive authority to adjust losses
under policies obtained by the Association shall be vested in the Association's
Board of Directors; prOVided, however, no Mortgagee having an interest in such
losses may be prohibited from participating in the settlement negotiations, if
any, related thereto.(c) In no event shall the insurance coverage obtained and
maintained by the Association's Board of Directors hereunder be brought into
contribution with insurance purchased by individual Owners, Occupants, or their
Mortgagees, and the insurance carried by the Association shall be primary. (d)
All insurance policies shall be reviewed annually by one or more qualified
persons. (e) The Association's Board of Directors shall be required to make
every reasonable effort to secure insurance policies that will provide for the
following: (i) A waiver of subrogation by the insurer as to any claims against
the Association's Board of Directors, its manager, the Owners, and their
respective tenants, servants, agents, and guests; (ii) A waiver by the insurer
of its rights to repair and reconstruct instead of paying cash; (iii) That no
policy may be canceled, invalidated, or suspended on account of anyone or more
individual Owners; (iv) That no policy may be canceled, invalidated, or
suspended on account of any defect or the conduct of any director, officer, or
employee of the Association or its duly authorized manager without prior demand
In writing delivered to the Association to cure the defect or to cease the
conduct and the allowance of a reasonable time thereafter within which a cure
may be effected by the Association, its manager, any Owner or Mortgagee; (v)
That any "other insurance" clause in any policy exclude individual
Owners' policies from consideration; and, (vi) That no policy may be canceled
or substantially modified without at least thirty days' prior written notice to
the Association.
2.
Property Insured by the Association: Damage and Destruction.
Immediately after the damage or destruction by fire or other casualty to all or
any portion of any improvement covered by insurance written in the name of the
Association, the Board or its duly authorized agent shall proceed with the
filing and adjustment of all claims arising under such insurance and obtain
reliable and detailed estimates of the cost of repair or reconstruction of the damaged
or destroyed property. Repair or reconstruction, as used in this paragraph,
means repairing or restoring the property to substantially the same condition
and location that existed prior to the fire or other casualty. Any damage or destruction shall be repaired
or reconstructed unless, within sixty days after the casualty, at least 66%
percent of the total Association vote entitled to vote thereon and the Owner(s)
of the damaged property, if any, otherwise agree. If for any reason either the amount of the
insurance proceeds to be paid as a result of such damage or destruction, or reliable
and detailed estimates of the cost of repair or reconstruction, or both, are
not made available to the Association within such period, then the period shall
be extended until such information shall be made available; provided, however
such extension shall not exceed 120 days. No Mortgagee shall have the right to
participate in the determination of whether damage or destruction shall be
repaired or reconstructed. If the damage or destruction for which the insurance
proceeds are paid is to be repaired or reconstructed and such proceeds are not
sufficient to defray the cost thereof, the Board shall, w1thout the necessity
of a vote of the Association's Members, levy a special assessment against all
Owners. Additional assessments may be made in like manner at any time during or
following the completion of any repair or reconstruction. If the funds available from insurance exceed
the costs or repair or reconstruction or if the improvements are not repaired
or reconstructed, such excess shall be deposited to the benefit of the
Association. In the event that it should
be determined by the Association in the manner described above that the damage
or destruction shall not be repaired or reconstructed and no alternative improvements
are authorized, then and in that event the property shall be restored to its natural
state and maintained as an undeveloped portion of the Community in a neat and attractive
condition.
3.
Property Insured by Owners: Damage and Destruction. By virtue of
taking title to property within the Community, each Owner covenants and agrees
with all other Owners and with the Association that in the event that the Association
does not carry insurance on the Owner's property, each indiVidual Owner shall
carry liability and casualty insurance or cause such insurance to be carried by
another entity, such as a condominium association or homeowners association.
Each individual Owner further covenants and agrees that in the event of a
partial loss of damage and destruction resulting in less than total
destruction, the individual Owner shall proceed promptly to repair or to
reconstruct the damaged structure in a manner consistent with the original
construction. In the event that the structure is totally destroyed and the
individual Owner determines not to rebuild or to reconstruct, the individual
Owner shall clear the Residence of all debris and return it to substantially
the natural state in which it existed prior to the beginning of construction.
4.
Insurance Deductible. The
deductible for any casualty insurance policy carried by the Association shall,
in the event of damage or destruction, be allocated among the persons who are
responsible hereunder, or under any declaration or contract requiring the
Association to obtain such insurance, for maintenance of the damaged or
destroyed property.
IX -
Condemnation
Whenever all or any part of the Common Property shall be
taken (or conveyed in lieu of and under threat of condemnation by the Board,
acting on its behalf or on the written direction of all Owners subject to the taking,
if any) by any authority having the power of condemnation or eminent domain,
the Association shall represent the Owners. The award made for such taking
shall be payable to the Association as trustee for all Owners. The provisions
of Article VIII, Section 2, above, applicable to Common Property improvements
damage or destruction, shall govern replacement or restoration and the actions
to be taken in the event that the improvements are not restored or replaced by
amendment to Exhibit "C" Real Property. Any such Supplementary Declaration shall be
signed by the President and Secretary of the Association, and any such
annexation amendment shall be effective upon the filing for record of such
Supplementary Declaration, unless otherwise provided therein.
X -
Mortgagee Provisions
The following provisions are for the benefit of holders of
first Mortgages on Residences in the Community. The provisions of this Article
apply to both this Declaration and the By-Laws notwithstanding any other
provisions contained therein.
1.
Notices of Action. An
institutional holder, insurer, or guarantor of a first Mortgage, who provides written
request to the Association (such request to state the name and address of such
holder, insurer, guarantor and the Residence number, therefore becoming an
"eligible holder"), will be entitled to timely written notice of: (a)
Any condemnation loss or any casualty loss which affects a material portion of
the Community or which affects any Residence on which there is a first Mortgage
held, insured, or guaranteed by such eligible holder; (b) Any delinquency in
the payment of assessments or charges owed by an Owner of a Residence subject
to the Mortgage of such eligible holder, where such delinquency has continued
for a period of sixty days; provided, however, notwithstanding this provision, any
holder of a first Mortgage, upon request, is entitled to written notice from
the Association of any default in the performance by an Owner of a Residence of
any obligation under the Declaration or By-Laws of the Association which is not
cured within sixty days; (c) Any lapse, cancellation, or material modification
of any insurance policy maintained by the Association; or (d) Any proposed
action which would require the consent of a specified percentage of eligible holders.
2.
Special FHLMC Provision. So
long as required by the Federal Home Loan Mortgage Corporation, the following
provisions apply in addition to and not in lieu of the foregoing. Unless at least two-thirds of the first
Mortgagees or at least two-thirds of the total Association vote entitled to
vote thereon consent, the Association shall not: (a) By act or omission seek to
abandon, partition, subdivide, encumber, sell, or transfer the Common Property
which the Association owns, directly or indirectly (the granting of easements
for public utilities or other similar purposes consistent with the intended use
of the Common Property shall not be deemed a transfer within the meaning of
this subsection); (b) Change the method of determining the obligations,
assessments, dues, or other charges which may be leVied against an Owner of a
Residence (A decision, including contracts, by the Board or provisions of any
Supplementary Declaration regarding assessments for Parcels or other similar
areas shall not be subject to this provision where such decision or Supplementary
Declaration is otherwise authorized by this Declaration.; (c) By act or
omission change, waive, or abandon any scheme of regulations or enforcement thereof
pertaining to the architectural design or the exterior appearance and maintenance
of Residences and of the Common Property (The issuance and amendment of architectural
standards, procedures, rules and regulations, or use restrictions shall not constitute
a change, waiver, or abandonment within the meaning of this provision.); (d) Fail to maintain insurance, as required by
this Declaration; or (e) Use hazard insurance proceeds for any Common Property
losses for other than the repair, replacement, or reconstruction of such
property. First Mortgagees may, jointly or singly, pay taxes or other charges
which are in default and which mayor have become a charge against the Common
Property and may pay overdue premiums on casualty insurance policies or secure
new casualty insurance coverage upon the lapse of an Association policy, and
first Mortgagees making such payments shall be entitled to immediate reimbursement
from the Association.
3. No
Priority. No provision of this
Declaration or the By-Laws gives or shall be construed as giving any Owner or
other party priority over any rights of the first Mortgagee of any Residence in
the case of distribution to such Owner of insurance proceeds or condemnation awards
for losses to or a taking of the Common Property.
4.
Notice to Association. Upon request, each Owner shall be obligated to
furnish to the Association the name and address of the holder of any Mortgage
encumbering such Owner's Residence.
5.
Amendment by Board. Should
the Veterans Administration, the Federal National Mortgage Association, or the
Federal Home Loan Mortgage Corporation subsequently delete any of their
respective requirements which necessitate the provisions of this Article or
make any such requirements less stringent, the Board, without approval of the
Owners, may cause an amendment to this Article to be recorded to reflect such
changes.
6.
Applicability of Article X. Nothing contained in this Article shall be
construed to reduce the percentage vote that must otherwise be obtained under
the Declaration, By-Laws, or Alabama law for any of the acts set out in this
Article.
7.
Failure of Mortgagee to Respond. Any Mortgagee (or insurer or guarantor of a
Mortgage) who receives a written request from the Board to respond to or
consent to any action shall be deemed to have approved such action if the
Association does not receive a written response from the Mortgagee within
thirty (30) days of the date of the Association's request.
XI -
Easements
1.
Easements for Encroachment and Overhang. There shall be reciprocal appurtenant easements
for encroachment and overhang as between each Residence and such portion or portions
of the Common Property adjacent thereto or as between adjacent Residences due
to the placement or settling or shifting of the improvements constructed,
reconstructed, or altered thereon (in accordance with the terms of this
Declaration) to a distance of not more than five feet, as measured from any
point on the common boundary between each Residence and the adjacent portion of
the Common Property or as between adjacent Residences, as the case may be,
along a line perpendicular to such boundary at such point; provided, however, in
no event shall an easement for encroachment exist if such encroachment occurred
due to willful conduct on the part of an Owner, Occupant, or the Association.
2.
Easements for Use and Enjoyment of Common Property. Every Member shall have a right and easement of
ingress and egress, use and enjoyment in and to the Common Property which shall
be appurtenant to and shall pass with the title to his property, subject to the
following provisions: (a) The right of the Board to charge reasonable admission
and other fees for the use of any portion of the Common Property, including,
without limitation, swimming pools, to limit the number of guests who may use
the Common Property, to allow Persons who are not Members of the Association,
such as Persons living or working in the vicinity of the Community, to use the
Common Property on a regular or temporary basis and to charge or not charge a
user fee therefore, and to provide for the exclusive use and enjoyment of specific
portions thereof at certain designated times by an Owner, his family, tenants, guests,
Occupants, and invitees; (b) The right of the Board to suspend the voting
rights of an Owner and Occupant and the right of an Owner and Occupant to use
the Common Property recreational facilities in the Community, if any, for any
period during which any assessment which is hereby provided for remains unpaid;
and, for a reasonable period of time for an infraction of the Declaration,
By-Laws, use restrictions, rules and regulations or design guidelines; (c) The
right of the Board to borrow money for the purpose of improving the Common Property,
or any portion thereof, or for construction, repairing or improving any
facilities located or to be located thereon, and give as security for the
payment of any such loan a Mortgage conveying all or any portion of the Common
Property; provided, however, the lien and encumbrance of any such Mortgage
given shall be subject and subordinate to any rights, interests, options,
easements and privileges herein reserved or established for the benefit of
Declarant, or any Residence or Owner, or the holder of any Mortgage, irrespective
of when executed, given by Declarant or any Owner encumbering any Residence or
other property located within the Community (Any provision in this Declaration
or in any such Mortgage given by the Board to the contrary notwithstanding, the
exercise of any rights therein by the holder thereof in the event of a default
there under shall not cancel or terminate any rights, easements or privileges
herein reserved or established for the benefit of Declarant, or any Residence
or Owner, or the holder of any Mortgage, irrespective of when executed, given
by Declarant or any Owner encumbering any Residence or other property located
within the Community.); and (d) The right of the Board to dedicate or transfer
all or any portion of the Common Property subject to such conditions as may be
agreed to by the Owners. No such dedication or transfer shall be effective
unless an instrument agreeing to such dedication or transfer has been approved
by at least a Majority of the Association, in person or by proxy, at a meeting
duly called for such purpose (or, if a meeting is not called, upon the
affirmative vote of at least a Majority of the votes cast in a referendum on
the issue). An Owner's right of use and
enjoyment in and to the Common Property and facilities located thereon shall
extend to the members of his family and guests. Land Owner shall be deemed to have
made a delegation of all such rights (except for the right of ingress and egress
to the Owner's property) to the Occupants of any leased Residence. Upon the affirmative vote of the Majority of
the Association vote present, in person or by proxy, at a meeting duly called
for such purpose (or, if a meeting is not called, upon the affirmative vote of
at least a Majority of the votes case in a referendum on the issue) the Board
may alter the use of any Common Property. For example, and by way of
illustration and not limitation, the Board may convert tennis courts into a
basketball court or vice versa. An
Owner's right of use and enjoyment in and to the Common Property and facilities
located thereon shall not give any OWner the right of ingress or egress across
any Residence to obtain access to such Common Property.
3.
Reserved Easements for the Provision of Services to the Community. There is hereby reserved to the Declarant, its
successors and assigns blanket easements upon, across, above and under all
property within the Community for access, ingress, egress, installation, repairing,
replacing, maintaining, and removing rights-of-way, drainage facilities,
floodway easements, and all utll1ties serving the Community or any portion
thereof, including, but not limited to, gas, water, sanitary sewer, telephone
and electricity, and any other similar service such as, but not limited to, a
master television antenna system, cable television system, video system, or
security system which the Declarant might decide to have installed to serve the
Community or any portion thereof. It shall be expressly permissible for the Declarant
and its successors and assigns to install, repair, replace, maintain, and
remove or to authorize the installation, repair, replacement, maintenance, or
removal of such wires, conduits, cables and other equipment related to the
providing of any such utility or service.
Declarant and its successors and assigns shall full rights of ingress
and egress at all times over all portions of the Community for the
installation, operation, maintenance, repair, or removal of any of the
foregoing utilities or services and shall have the right to remove any unauthorized
obstruction placed in or on any of the foregoing easements that would, in the sole
discretion of Declarant or its successors and assigns, interfere with the use
of the above installation of the foregoing utilities or services. In no event
shall the foregoing prohibit paving or landscaping within such easements. Declarant shall have the right to assign and convey,
in whole or in part, the easements reserved by it hereunder to one or more
public utility companies, quasi·public service companies, or relevant
governmental authorities. All utilities
except drainage installed within the above described easements shall be
installed underground. This reserved easement may be assigned by Declarant by
written instrument to the Association, and the Association shall accept such
assignment upon such terms and conditions as are acceptable to Declarant. Rights exercised pursuant to such reserved easements
shall be exercised with a minimum of interference to the quiet enjoyment of affected
property, reasonable steps shall be taken to protect such property, and damage
shall be repaired by the Person causing the damage at its sole expense.
4.
Easement for Entry. In
addition to the right of the Board to exercise self-help as provided in Article
XII, Section 2, hereof, the Board shall have the right, but shall not be
obligated, to enter upon any property within the Community for emergency,
security, and safety, which right may be exercised by the manager, and all
policemen, firemen, ambulance personnel, and similar emergency personnel in the
performance of their respective duties. Except in an emergency situation, entry
shall only be during reasonable hours and after notice to the Owner, and the
entering party shall be responsible for any damage caused. It is intended that this right of entry shall
include the right of the Board to enter to cure any condition which may
increase the possibility of a fire, slope erosion, or other hazard in the event
an Owner or Occupant fails or refuses to cure the condition upon request by the
Board..
XII -
General Provisions
1.
Enforcement. Each owner
and every Occupant shall comply strictly with the By-Laws, the rules and
regulations, the use restrictions, and with the design guidelines, all as may
be amended or modified from time to time, and with the covenants, conditions,
and restrictions set forth in this Declaration, as may be amended from time to
time, and in the deed to his or her property within the Community, if any. The
Board may impose fines or other sanctions, which shall be collected as provided
herein for the collection of assessments. Failure to comply with this
Declaration, the By-Laws, the rules and regulations, use restrictions, or design
guidelines shall be grounds for an action to recover sums due for damages or
Injunctive relief, or both, maintainable by the Board, on behalf of the
Association, or, in a proper case, by an aggrieved Owner or Occupant. Further,
the Board shall have the power to suspend an Owner's right to vote, or to use
any recreational facilities within the Common Area in the event any Owner is in
violation of the By-laws, rules and regulations, use restrictions or architectural
design guidelines as set forth in this Declaration, all as may be amended from time
to time. Failure by the Board or any Owner or Occupant to enforce any of the
foregoing shall in no event be deemed a waiver of the right to do so
thereafter. The Board shall have the right to record in the appropriate land
records a notice of violation of the Declaration, By-Laws, and to assess the
cost of recording and removing such notice against the Owner who is responsible
(or whose Occupants are responsible) for violating the foregoing.
2.
Self-Help. In addition to any
other remedies provided for herein, the Board or It’s duly authorized agent
shall have the power to enter upon a Residence or any portion of the Community
to abate or remove, using such force as may be reasonably necessary, any erection,
thing or condition which violates this Declaration, the By Laws, the rules and regulations,
the use restrictions, or the design guidelines. Except in the case of emergency
situations and towing, the Board shall give the Violating Owner ten days'
written notice of its intent to exercise self-help. All costs incurred shall be
assessed against the violating Owner and shall be collected as prOVided for
herein for the collection of assessments.
3.
Durations. The provisions of
this Declaration shall run with and bind the land and shall be and remain in
effect perpetually to the extent permitted by law; provided, however, should any
provision of Alabama law now or hereafter in effect limit the period during
which covenants restricting land to certain uses may run, any provisions of
this Declaration affected thereby shall run with and bind the land so long as
permitted by such law; and such provisions shall be automatically extended for
successive periods of ten years or such shorter period as may be allowed by
law, unless such extension is disapproved at a meeting duly called for such purpose
by at least a Majority of the total Association vote (or, if a meeting is not
called, upon the affirmative vote of at least a Majority of the Association
votes as recorded by a referendum on the issue). Such meeting or referendum
must be held and a written instrument reflecting disapproval must be recorded
within the year immediately preceding the beginning of a renewal period. Every
purchaser or grantee of any interest in any real property subject to this
Declaration, by acceptance of a deed or other conveyance therefore, thereby
agrees that such provisions of this Declaration may be extended and renewed as provided
in this Section.
4.
Amendment. This Declaration may
be amended unilaterally at any time and from time to time by Declarant (a) if
such amendment is necessary to bring any provision hereof into compliance with
any applicable governmental statute, rule, or regulation or judicial determination
which shall be in conflict therewith; (b) if such amendment is necessary to enable
any reputable title insurance company to issue title insurance coverage with
respect to the Residences subject to this Declaration; (c) if such amendment is
required by an institutional or governmental lender or purchaser of Mortgage
loans, including, for example, Without limitation the Federal National Mortgage
Association or Federal Home Loan Mortgage Corporation, or a State or National
Bank, to enable such lender or purchaser to make or purchase Mortgage loans on
the Residences subject to this Declaration; or (d) if such amendment is
necessary to enable any governmental agency or reputable private insurance company
to insure Mortgage loans on the Residences subject to this Declaration; provided,
however, any such amendment shall not adversely affect the title to any Owner's
property unless any such Owner shall consent thereto in writing. This Declaration may be amended upon the
affirmative vote or written consent, or any combination thereof, of at least a
two·thirds vote of the total Association vote entitled to vote thereon or three
fourths of the Board. In the event of a conflict between the Board and the
Association, the Board's decision controls. A meeting may be called (but shall
not be required to be called) to consider and vote upon any amendment.
Amendments to this Declaration shall become effective upon recordation, unless
a later effective date is specified therein.
Any procedural challenge to an amendment must be made within six months
of its recordation. In no event shall a change of conditions or circumstances
operate to amend any provisions of the Declaration or By-Laws.
5.
Partition. The
Common Property shall remain undiVided, and no Owner nor any other Person shall
bring any action for partition or division of the whole or any part thereof
without the written consent of all Owners of all portions of the property
located within the Community, the written consent of all holders of all
Mortgages encumbering any portion of the property located within the Community.
6.
Gender and Grammar. The
singular, wherever used herein, shall be construed to mean the plural, when
applicable, and the use of the masculine pronoun shall include the neuter and
feminine.
7.
Severability. Whenever
possible, each provision of this Declaration shall be interpreted in such
manner as to be effective and valid, but if the application of any provision of
this Declaration to any Person or to any property shall be prohibited or held
invalid, such prohibition or invalidity shall not affect any other provision or
the application of any provision which can be given effect without the invalid
provision or application, and, to this end, the provisions of this Declaration
are declared to be severable.
8.
Captions. The captions of each
Article and Section hereof, as to the contents of each Article and Section, are
inserted only for convenience and are in no way to be construed as defining,
limiting extending, or otherwise modifying or adding to the particular Article
or Section to which they refer.
9.
Perpetuities. If any
of the covenants, conditions, restrictions, or other provisions of this Declaration
shall be unlawful, void, or voidable for violation of the rule against
perpetuities, then such provisions shall continue only until twenty-one years
after the death of the last survivor of the now living descendants of Elizabeth
II, Queen of England, including, but not limited to Prince Charles, Prince
William, Prince Harry, Prince Andrew, and Princess Margaret.
10.
Indemnification. The Association
shall indemnify every officer and Director against any and all expenses,
including attorney's fees, imposed upon or reasonably incurred by any officer
or Director in connection with any action, suit, or other proceeding (including
settlement of any suit or proceeding, if approved by the then Board of
Directors) to which he or she may be a party by reason of being or having been
an officer or Director. The officers and
Directors shall not be liable for any mistake of judgment, negligent or otherwise,
except for their own individual willful misfeasance, malfeasance, misconduct,
or bad faith. The officers and Directors
shall have no personal liability with respect to any contract or other commitment
made by them, in good faith, on behalf of the Association (except to the extent
that such officers or Directors may also be Members of the Association), and
the Association shall indemnify and forever hold each such officer and Director
free and harmless against any and all liability to others on account of any
such contract or commitment. Any right to indemnification provided for herein
shall not be exclusive of any other rights to which any officer or Director, or
former officer or Director, may be entitled. The Association shall maintain
adequate general liability and officers' and directors' liability insurance to
fund this obligation, if such coverage is reasonably available.
11.
Construction. During
any constnuction all trash must be contained on the lot under construction in
either a container or in a roll'off within 100 feet of the home except that a builder
with two adjacent lots can prOVide trash removal between the two lots. Each construction
site must be maintained in a safe, clean and orderly condition and shall
include a portable toilet until such facilities are available in the home for
use by construction workers.
12.
Books and Records. This
Declaration, the By·Laws, the Articles of Incorporation, copies of rules and
regulations, use restrictions, design guidelines, membership register, books of
account, and minutes of meetings of the Members, or the Board and of committees
shall be made available for inspection and copying by any Member of the
Association or by his duly appointed representative and by holders, insurers,
or guarantors of any first Mortgage at any reasonable time and for a purpose
reasonably related to his or her interest as a Member or holder, insurer, or
guarantor of a first Mortgage at the office of the Association or at such other
reasonable place as the Board shall prescribe. The Board shall establish
reasonable rules with respect to: (a)
Notice to be given to the custodian of the records; (b) Hours and days of the
week when such an inspection may be made; and (c) Payment of the cost of
reproducing copies of documents. Every
Director shall have the absolute right at any reasonable time to inspect all
books, records, and documents of the Association and the physical properties
owned or controlled by the Association. The right of inspection by a Director
includes the right to make extra copies of documents at the reasonable expense
of the Association.
13.
Audit. An audit of the
accounts of the Association may be made in such manner as the Board may decide.
Upon written request of any institutional holder of a first Mortgage, such holder,
upon payment of the costs associated therewith, shall be entitled to receive a
copy of a financial statement within ninety days of the date of the request.
14.
Notice of Sale. If an
Owner sells his or her Residence, the Owner shall give to the Board, in
writing, the name of the purchaser of the Residence and such other information
as the Board may reasonably require.
15.
Estoppel Certificate. Upon the
request of any Member, the Board or its designee shall furnish a written
certificate signed by an officer of agent of the Association regarding unpaid assessments
levied against that Member's property and any violations of the Declaration, By
Laws, use restrictions, rules and regulations, or design guidelines by any
Owner or Occupant of such property. Such certificate shall bind the Association
with respect to the foregoing matters. The Association may require the advance
payment of a processing fee not to exceed $25.00 for the issuance of each such
certificate.
16.
Agreements. All
agreements and determinations, including settlement agreements regarding
litigation involving the Association, lawfully authorized by the Board shall be
binding upon all Owners, their heirs, legal representatives, successors,
assigns, and other having an interest in the Community or the privilege of
possession and enjoyment of any part of the Community.
17.
Implied Rights. The
Association may exercise any right or privilege given to it expressly by the
Declaration, the By-Laws, the Articles of Incorporation, any use restriction or
rule, the design guidelines and every other right or privilege reasonably to be
implied from the existence of any right or privilege given to it therein or
reasonably necessary to effectuate any such right or privilege.
18.
Deviations. The Board
or its designee may, in the exercise of its discretion, permit deviations from
the restrictions contained in this Declaration, the By-Laws, the rules and regulations,
the use restrictions, and the design guidelines.
