HomeMy WebLinkAboutCCRs - Moody Road Townhomes (1)
DECLARATION OF COVENANTS, CONDITIONS,
AND RESTRICTIONS
OF
MOODY ROAD TOWNHOMES HOMEOWNER ASSOCIATION
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Table of Contents
RECITALS .......................................................................................................................................................................... 6
ARTICLE I. DEFINITIONS ............................................................................................................................................ 7
1.1 Additional Charges. ......................................................................................................................................... 7
1.2 Architectural Review Guidelines (or Guidelines). ............................................................................. 7
1.3 Articles. ................................................................................................................................................................ 7
1.4 Assessment......................................................................................................................................................... 7
1.5 Board (or Board of Directors). ................................................................................................................... 7
1.6 Common Property. .......................................................................................................................................... 7
1.7 Common Expenses. ......................................................................................................................................... 8
1.8 Declarant. ............................................................................................................................................................ 8
1.9 Development. .................................................................................................................................................... 8
1.10 Governing Documents. .................................................................................................................................. 8
1.11 Unit. .................................................................................................................................................................. 8
1.12 Member. .......................................................................................................................................................... 9
1.13 Occupant. ........................................................................................................................................................ 9
1.14 Owner. ............................................................................................................................................................. 9
1.15 Quorum. .......................................................................................................................................................... 9
1.16 Residence. ........................................................................................................................................................... 9
1.17 Restrictions. .................................................................................................................................................. 9
1.18 Rules. .............................................................................................................................................................. 10
1.19 Structure....................................................................................................................................................... 10
ARTICLE II. COMMON PROPERTY ........................................................................................................................ 11
2.1 Conveyance of Common Property. ......................................................................................................... 11
2.2 Types of Common Property. ..................................................................................................................... 12
2.3 Delegation of Rights of Use. ....................................................................................................................... 12
2.4 Rights of Enjoyment. .................................................................................................................................... 12
2.5 Rights and Responsibilities of the Association. ................................................................................ 12
ARTICLE III. HOMEOWNERS ASSOCIATION ..................................................................................................... 14
3.1 Purpose, Powers, and Duties of the Association. .............................................................................. 14
3.2 Membership in the Association. .............................................................................................................. 14
3.3 Voting Rights. .................................................................................................................................................. 14
3.4 Voting Procedures. ........................................................................................................................................ 15
3.5 Board of Directors. ........................................................................................................................................ 15
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3.6 Suspension of Membership. ...................................................................................................................... 15
3.7 Termination of Membership. .................................................................................................................... 15
3.8 Association Rules. .......................................................................................................................................... 16
3.9 Insurance. ......................................................................................................................................................... 16
3.10 Control by Declarant and Appointment of the Board. .................................................................... 16
3.11 Dissolution. .................................................................................................................................................. 16
ARTICLE IV. ASSESSMENTS AND LIENS ............................................................................................................ 16
4.1 Covenants for Assessments, Creation of Lien, and Personal Obligation. ................................ 16
4.2 Purpose of Assessments. ............................................................................................................................ 17
4.3 Initiation Fee and Annual Assessment. ................................................................................................ 17
4.4 Special and Parcel Assessments. ............................................................................................................. 18
4.5 Specific Assessments.................................................................................................................................... 18
4.6 Assessment Procedure. ............................................................................................................................... 19
4.7 Uniform Rate of Assessment. .................................................................................................................... 19
4.8 Delinquent Assessments. ........................................................................................................................... 20
4.9 Accumulation of Funds Permitted. ......................................................................................................... 20
4.10 Certificate of Payment. ........................................................................................................................... 21
ARTICLE V. MAINTENANCE OF PROPERTY ..................................................................................................... 22
5.1 Association Maintenance Responsibilities. ......................................................................................... 22
5.2 Association Liability. .................................................................................................................................... 22
5.3 Owner Maintenance Responsibilities. .................................................................................................. 22
5.4 Owner Failure to Maintain Property. .................................................................................................... 23
5.5 Cooperative Maintenance Obligations. ................................................................................................. 23
5.6 Compliance with Architectural Revisions. .......................................................................................... 23
5.7 Authority for Entry of Unit. ....................................................................................................................... 23
ARTICLE VI. ARCHITECTURAL REVIEW COMMITTEE ................................................................................. 24
6.1 Creation and Composition of Architectural Review Committee. ............................................... 24
6.2 Purpose, Powers, and Duties of the ARC. ............................................................................................. 24
6.3 Officers, Subcommittees, and Compensation. ................................................................................... 24
6.4 Operations of the ARC. ................................................................................................................................ 25
6.5 Architectural Review Guidelines. ............................................................................................................ 25
6.6 Submission of Plans and Specifications. .............................................................................................. 26
6.7 Approval of Plans........................................................................................................................................... 26
6.8 Disapproval of Plans..................................................................................................................................... 27
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6.9 Obligation to Act. ........................................................................................................................................... 27
6.10 Violations. .................................................................................................................................................... 27
6.11 Certification of Compliance. .......................................................................................................................... 28
6.12 Fees. ................................................................................................................................................................ 28
ARTICLE VII. COVENANTS AND RESTRICTIONS ............................................................................................ 29
7.1 General. .............................................................................................................................................................. 29
7.2 Siding Requirements. ................................................................................................................................... 29
7.3 Pets. ..................................................................................................................................................................... 29
7.4 Nuisances. ......................................................................................................................................................... 29
7.5 Firearms. ........................................................................................................................................................... 30
7.6 Antennas and Dishes. ................................................................................................................................... 30
7.7 Residential Use. .............................................................................................................................................. 30
7.8 Vehicles. ............................................................................................................................................................. 31
7.9 Trailers and Portable Homes. ................................................................................................................... 31
7.10 Driveways. ................................................................................................................................................... 31
7.11 Garages.......................................................................................................................................................... 31
7.12 Traffic Regulations within the Development. ............................................................................... 31
7.13 Leasing. ......................................................................................................................................................... 32
7.14 Occupants..................................................................................................................................................... 32
7.15 Minimum Size of Dwellings. ................................................................................................................. 32
7.16 Intersection Maintenance. .................................................................................................................... 32
7.17 Garbage Cans. ............................................................................................................................................. 32
7.18 Waste. ............................................................................................................................................................ 33
7.19 Sheds. ............................................................................................................................................................. 33
7.20 Cunitheslines. ............................................................................................................................................. 33
7.21 Subdivision of Unit. .................................................................................................................................. 33
7.22 Utility Lines. ................................................................................................................................................ 33
7.23 Air Conditioning Units. ........................................................................................................................... 33
7.24 Flags and Yard Ornaments. ................................................................................................................... 33
7.25 Signs. .............................................................................................................................................................. 34
7.26 Landscaping. ............................................................................................................................................... 34
7.27 Trees. ............................................................................................................................................................. 34
7.28 Recreational Equipment. ....................................................................................................................... 34
7.29 Solar Panels. ................................................................................................................................................ 34
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7.30 Swimming Pools. ....................................................................................................................................... 34
7.31 Mailboxes. .................................................................................................................................................... 35
7.32 Fences. ........................................................................................................................................................... 35
7.33 Lighting. ........................................................................................................................................................ 35
7.34 Maintenance. ........................................................................................................................................................ 35
ARTICLE VIII. EASEMENTS, ZONING, AND OTHER RESTRICTIONS ....................................................... 37
8.1 Easement for Improvements and Repairs. ......................................................................................... 37
8.2 Easement for Entry. ...................................................................................................................................... 37
8.3 Easement for Maintenance. ....................................................................................................................... 38
8.4 Easement for Encroachment and Overhang. ...................................................................................... 38
8.5 Easement for Utilities and Public Services.......................................................................................... 38
ARTICLE IX. ENFORCEMENT .................................................................................................................................. 40
9.1 Right of Enforcement. .................................................................................................................................. 40
9.2 Right of Abatements. .................................................................................................................................... 40
ARTICLE X. DURATION AND AMENDMENT ..................................................................................................... 41
10.1 Duration. ....................................................................................................................................................... 41
10.2 Amendments by Declarant. .................................................................................................................. 41
10.3 Amendments by Association................................................................................................................ 42
ARTICLE XI. ANNEXATION AND CONSTRUCTION AND SALE PERIOD ................................................. 43
11.1 Annexation. ................................................................................................................................................. 43
11.2 Construction and Sale Period. ....................................................................................................................... 43
ARTICLE XII. MORTGAGEE PROVISIONS ........................................................................................................... 45
12.1 Special Mortgagee Provisions. ............................................................................................................. 45
12.2 Special FHLMC Provision. ..................................................................................................................... 47
12.3 No Priority. .................................................................................................................................................. 47
12.4 Notice to Association. .............................................................................................................................. 47
12.5 Amendment by Board. ............................................................................................................................ 48
12.6 Applicability of Article XII. .................................................................................................................... 48
12.7 Failure of Mortgagee to Respond. ...................................................................................................... 48
ARTICLE XIII. INSURANCE AND CASUALTY LOSS ......................................................................................... 49
13.1 Insurance on Common Property. ....................................................................................................... 49
13.2 Owner Insurance. .......................................................................................................................................... 51
13.3 Damage and Destruction Covered by Association. ..................................................................... 51
13.4 Damage and Destruction Covered by Owner. ............................................................................... 51
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13.5 Insurance Deductible. ............................................................................................................................. 51
13.6 Annual Review of Policies. .................................................................................................................... 52
ARTICLE XIV. MISCELLANEOUS ............................................................................................................................ 53
14.1 Severability. ................................................................................................................................................ 53
14.2 No Liability. ................................................................................................................................................. 53
14.3 Notices. .......................................................................................................................................................... 53
14.4 Books and Records. .................................................................................................................................. 53
14.5 Merger or Consolidation. ....................................................................................................................... 54
14.6 Notice of Sale or Lease. ................................................................................................................................ 54
14.7 Agreements. ................................................................................................................................................ 54
14.8 Implied Rights. ........................................................................................................................................... 55
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RECITALS
This Declaration is made on March 26th, 2026 by Marco Diaz, hereinafter referred to as
“Declarant.”
WITNESSETH
WHEREAS, Declarant is the owner of certain real property situated at 396 W. Moody Road in
Rexburg and being recorded in the official records of the County of Madison.
WHEREAS, Declarant intends to develop on lands, including the real property described above,
a development to be known as Moody Road Townhomes LLC, hereinafter referred to as the
“Development”; and
WHEREAS, Declarant has caused the Association (as hereinafter defined) to be formed as a
nonprofit civic organization to perform certain functions for the common good and general welfare
of the owners (as hereinafter defined);
THEREFORE, the Declarant hereby declares that all of the property described above shall be
held, sold, and conveyed subject to this Declaration of Covenants, Conditions, and Restrictions,
which is for the purpose of maintaining the value and desirability of the development, and be
binding on all parties having any right, title, or interest in described property or any part thereof,
and shall subject said parties to all limitations herein provided, and inure to the benefit of each
owner, their heirs, grantees, devisees, successors, and assigns and to the benefit of the
Association.
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ARTICLE I. DEFINITIONS
1.1 Additional Charges.
“Additional Charges” means all costs, fees, charges, and expenditures, including interest, late
fees, legal fees, recording, and filing fees, and all other costs incurred by the Association in
collecting or enforcing payment, fines, or penalties of any kind.
1.2 Architectural Review Guidelines (or Guidelines).
“Architectural Review Guidelines” or “Guidelines” means the architectural review committee,
appointed by the board, responsible for architectural review, approval, and control of the
improvements within the development.
1.3 Articles.
“Articles” means the Articles of Incorporation of the Moody Road Homeowners Association, as
they may be amended from time to time, as filed with the Office of the Secretary of {State}.
1.4 Assessment.
“Assessment” means a charge levied by the Association against an owner and their unit.
“Assessment” includes:
(a) Regular Assessments
(b) Enforcement Assessments
(c) Reimbursement Assessments
(d) Special Assessments
1.5 Board (or Board of Directors).
“Board” or “Board of Directors” means the governing body of the Association.
1.6 Common Property.
“Common Property” means all real and personal property owned by the Association, and in certain
instances, over which the Association has been granted permanent easements, for the common
use and enjoyment of Owners.
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1.7 Common Expenses.
“Common Expenses” means the anticipated and actual expenses of operating the development
and any reasonable reserve for such purposes as determined by the board and the Governing
Documents.
1.8 Declarant.
“Declarant” means {developer’s name}; its successors-in-title and assigns, provided any such
successors-in-title or assigns shall acquire for the purpose of development or sale, and provided
further, that in a written instrument, such successor in title is expressly assigned all the rights,
privileges and options herein reserved to Declarant by the Declarant as hereunder defined at the
time of such conveyance; or should any of the property or the additional property become subject
to a first mortgage given by Declarant shall inure to the benefit of the holder of the first mortgage
upon its becoming the actual owner of the property and additional property then subject to the
first mortgage through a judicial foreclosure or sale made pursuant to any power of sale contained
in the mortgage or by a transfer of deed in lieu of foreclosure. All rights, privileges, and options
reserved for the declarant may be transferred to the successor in title of any acquired property,
provided any such successor in title shall acquire for the purpose of development or sale, including
a portion of such property, that in a written instrument, such successor in title is expressly
assigned all rights, privileges, and options herein reserved to Declarant by the Declarant as
defined at the time of such conveyance.
1.9 Development.
“Development” means all real property, including all structures and improvements erected or to
be erected, as well as other real property brought within the jurisdiction of the Association and
subject to this Declaration.
1.10 Governing Documents.
“Governing Documents” means the articles, bylaws, declaration, rules and policies, and
resolutions adopted by the board.
1.11 Unit.
“Unit” means any parcel of land shown upon a subdivision plat recorded in the Office of the Clerk
of the Superior Court of {location}, covering any portion of the property, as such boundaries may
be modified in accordance with this Declaration; provided that no portion of the Common Property
shall ever be a unit, except as provided in Article II.
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1.12 Member.
“Member” means any member of the Association.
1.13 Occupant.
“Occupant” means any person occupying all or any portion of a residence located within the
Development for any period of time, regardless of whether such person is a tenant or the owner
of such property.
1.14 Owner.
“Owner” means the record owner, whether one or more persons or entities, of a fee simple title to
any unit; provided that where fee simple title has been transferred and is being held merely as
the security for the repayment of a loan, the person or entity who would own the unit in fee simple
if such loan were paid in full shall be considered the owner.
1.15 Quorum.
“Quorum” means the presence at any meeting, in person or by proxy, of members entitled to cast
at least 30% of the total voting power and shall constitute a quorum for the transaction of any
business, except the quorum requirements for annual assessments and special assessments
stated in ARTICLE IV of the Declaration.
1.16 Residence.
“Residence” means a structure and the unit on which it is situated which is intended for
independent use and occupancy as a residence for a single family. A structure and the unit upon
which it is situated shall not become a residence until a certificate of occupancy has been issued
by the appropriate governmental authorities as a prerequisite to the occupancy of such residence
and until the unit and structure located thereon have been conveyed to a third party other than
the builder thereof. The owner of the residence shall notify the Association of its designee
immediately upon issuance of a certificate of occupancy for the residence.
1.17 Restrictions.
“Restrictions” means all covenants, restrictions, easements, charges, liens, and other obligations
created or imposed by this Declaration.
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1.18 Rules.
“Rules” means the rules and regulations governing the use, occupancy, management,
administration, and operation of the Development, or any part thereof as adopted and published
by the board of directors from time to time, and the Architectural Review Guide lines adopted by
the Architectural Review Committee from time to time.
1.19 Structure.
“Structure” means:
(a) Any thing or object the placement of which upon any unit may affect the appearance of such
unit, including by way of illustration and not limitation, any building or part thereof, garage, porch,
shed, greenhouse or bathhouse, coop or cage, covered or uncovered patio, deck, swimming pool,
dock, fence, driveway, curbing, paving, wall, tree, shrub (and all other forms of landscaping), sign,
signboard, temporary or permanent living quarters (including house trailer), or any other
temporary or permanent improvement to such unit;
(b) Any excavation, grading, fill, ditch, diversion dam, or other thing or devise which affects or
alters the natural flow of surface waters from, upon or across any unit, or which affects or alters
the flow of any waters in any natural or artificial creek, stream, wash or drainage channel from,
upon or across any unit; and
(c) Any change in the grade at any point on a unit of more than 6 inches, whether or not subsection
(b) of this section applies to such change.
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ARTICLE II. COMMON PROPERTY
2.1 Conveyance of Common Property.
(a) The Declarant may, from time to time, convey to the Association or grant easements to the
Association, at no expense to the Association and in accordance with the section, real and
personal property for the common use and enjoyment of the owners, and to the extent set forth
in the Declaration of Covenants, Restrictions, and Easements, the general public. The
Association hereby covenants and agrees to accept from the Declarant all such conveyances of
Common Property and the property shall thereafter be Common Property to be maintained by
the Association for the benefit of all its members. Any such conveyance of Common Property by
Declarant to the Association will be subject to all of the covenants and restrictions set forth in
this Declaration, as amended, ad valorem taxes for the current year, all easements to which the
Common Property is subject, general utility easements serving or crossing the Common
Property, and all easements, licenses and other rights granted in and to the Common Property
pursuant to the provisions of this Declaration, as amended.
(b) It is contemplated by the Declarant that the Declarant will convey to the Association Common
Property for scenic and area preservation and for general recreational use. The Declarant may,
at Declarant’s sole discretion, modify, alter, increase, reduce, or change the Common Property
contemplated to be conveyed to the Association in accordance with this subsection (b) of this
section 2.1 at any time prior to conveyance of such Common Property to the Association.
(c) In addition to the property described in subsection (b) of section 2.1, the Declarant may convey
to the Association such other real and personal property as the Declarant may determine to be
necessary or proper for the completion of the Development.
(d) Notwithstanding any legal presumption to the contrary, the fee title to, and all rights in, any
portion of the Property owned by the Declarant and designated as Common Property or
designated for public use shall be reserved to the Declarant until such time as the same shall be
conveyed to the Association or to any municipality or other governmental body, agency or
authority.
(e) Detention ponds, lakes, and dams shall, without limitation, be included in the property that
may be conveyed by Declarant and shall be accepted by the Association. Declarant shall not be
required to make any improvements at all to the property to be conveyed and accepted pursuant
to this section, including, without limitations, dredging or otherwise removing silt from any
detention pond or lake that may be conveyed.
(f) The Declarant shall have the right to dedicate or transfer fee simple title to all or any portion of
the Property then owned by the Declarant, including any portion thereof intended to be Common
Property to {location}, or any other public agency or authority, public service district, public or
private utility, or another person, provided that Declarant then owns any unit or residence primarily
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for the purpose of sale or has the unexpected option to add any additional property to the
Development.
2.2 Types of Common Property.
At the time of the conveyance of any real property or grant of easement by the Declarant to the
Association to be used as Common Property, the Declarant shall designate in the deed of
conveyance or easement that such real property is to be Common Property, and further may
designate in the deed of conveyance or easement the specific or general purpose(s) for which
the real property, or any portion of it, may be used, and in such event, the entirety or portion of
the real property shall not be used for any different purpose(s) without the written consent of 2/3
vote of the members of the Association and Declarant during the period when the Declarant has
the right to appoint members to the board.
2.3 Delegation of Rights of Use.
Any owner may delegate to the members of their family, or their tenants, who reside on the unit,
in accordance with the bylaws, their right to use and enjoy the Common Property.
2.4 Rights of Enjoyment.
Every owner shall have a right and easement to use and enjoy the Common Property in
accordance with the restrictions and subject to the rules and regulations adopted by the
Association, which shall be appurtenant to and shall pass with the title to every unit upon transfer,
provided that no owner does anything that interferes with the free use and enjoyment of the
Common Property by all other owners. The Association may permit persons who are not owners
to use and enjoy some or all of the Common Property, subject to limitations, and upon such terms
and conditions, as it may from time to time establish. The right and easement of enjoyment
granted or permitted by this section is subject to suspension by the Association, as provided in
section 2.5.
2.5 Rights and Responsibilities of the Association.
The rights and privileges conferred in section 2.4 shall be subject to the rights of the Association
acting through the board to:
(a) Promulgate rules and regulations relating to the use, operation, and maintenance of the
Common Property;
(b) Borrow money for the purpose of carrying out the activities of the Association, including the
acquisition, construction, improvement, equipping and maintenance of Common Property, and in
aid thereof to encumber by deed to secure debt, mortgage or other security interest any or all of
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the Association’s property including Common Property and revenues from assessments, user
fees, and other sources; and provided that the Association shall not deed, grant or convey to
anyone any mortgage, deed to secure debt or other security interest on or in Common Property
constituting real estate without approval by a 2/3 vote of the members of the Association, and
declarant during the period when the Declarant has the right to appoint members of the board;
(c) Grant easements or rights-of-way over Common Property to any municipality or other
governmental body, agency or authority, to any quasi-public agency, or to any utility company or
cable television system;
(d) Dedicate or transfer some or all of the Common Property or interests therein to any
municipality or other governmental body, agency or authority for such purposes and subject to
such provisions and conditions as may be agreed upon by the Association and such grantee,
including a provision that such property or interest shall, if such dedication or transfer is approved
by a 2/3 vote of the members of the Association, cease to be subject to this Declaration or all or
any part of the Restrictions while held by any such municipality or other governmental body,
agency or authority;
(e) Charge reasonable fees in connection with the admission to and use of facilities or services
by members and non-members; provided that in settling any such fee, the board may establish
reasonable classifications which shall be uniform within each such class but need not be uniform
between such classes;
(f) Suspend the voting rights of any member and the rights of enjoyment granted or permitted by
section 2.4;
(g) Sell, lease or otherwise convey all or any part of its properties and interests therein;
(h) Enforce all applicable provisions of valid agreements of the Association relating to the
Common Property of any part thereof; and
(i) Maintain any and all landscaping treatments previously installed by the Declarant, to the extent
that such landscaping is not otherwise maintained by the appropriate county and/or municipal
entity having jurisdiction over the roads serving the property.
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ARTICLE III. HOMEOWNERS ASSOCIATION
3.1 Purpose, Powers, and Duties of the Association.
The Association has been formed as a non-profit civic organization for the sole purpose of
performing specific functions for the common good and general welfare of the people of the
Development. The Association shall have no power or duty to do or perform any act or thing that
goes against the common good and general welfare of the people of the development. To the
extent necessary to carry out such purpose, and subject to any limitations contained in this
Declaration, the Association shall have all of the powers of a corporation organized under the
{location} non-profit corporation rules or code and shall have the power and duty to exercise all
of the rights, powers, and privileges, and to perform all of the duties and obligations of the
Association as set forth in this Declaration.
3.2 Membership in the Association.
Every owner shall automatically be a member of the Association, and such membership shall
terminate only as provided in this Declaration of Covenants, Restrictions, and Easements. For
purposes of voting, there shall be 2 classes of members, set forth in section 3.3.
3.3 Voting Rights.
(a) Each owner of a unit, with the exception of Declarant, shall be a Class A member and shall be
entitled to 1 Class A vote per unit owned by such owner. Where the owner is more than 1 individual
person, the vote on behalf of such owner shall be exercised only by such individual person as
shall be designated in a proxy instrument duly executed by or on behalf of such group or entity
and delivered to the Secretary of the Association.
(b) The Declarant shall be the sole Class B member and shall be entitled to 3 votes for each unit
owned. However, in no event shall the Class B member have less than the total number of Class
A votes, plus 1. The Class B membership shall cease and be converted to a Class A membership
at such time as the Declarant no longer retains the right to appoint and remove members of the
board, and officers of the Association, pursuant to section 3.10.
(c) The Development may be composed of units to be developed in phases containing unequal
numbers of units. Each such phase will be platted of record in the office of the Clerk of the Superior
Court of {location}. The Declarant shall notify the Association in writing when the final phase of
the Development has been so platted of record. By acceptance of a deed conveying a unit, each
owner acknowledges that, upon the annexation of additional real property composed of units
pursuant to this Declaration, the total votes outstanding in the Association will automatically
increase based on the number of units in the phases added, and in accordance with the formula
set forth in subsection (b) of this section. Nothing contained herein shall obligate the Declarant to
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develop any proposed phase of the Development unless such phase is subjected to this
Declaration.
3.4 Voting Procedures.
The procedures for the election of Directors of the Association and the resolution of such other
issues as may be brought before the membership of the Association shall be governed by this
Declaration, the {location} non-profit corporation laws or codes, the Articles of Incorporation of the
Association, and the bylaws of the Association, as each shall, from time to time, be in force and
effect.
3.5 Board of Directors.
The affairs of the Association shall be managed by a board of directors. The number of directors
and the method of election of directors shall be as set forth in the bylaws of the Association.
3.6 Suspension of Membership.
The board may suspend the voting rights of any member, and the right of enjoyment of the
Common Property of any person who shall be:
(a) subject to the Right of Abatement;
(b) delinquent in the payment of any assessment levied by the Association pursuant to the
provisions of Article IV; or
(c) in violation of any of the rules and regulations of the Association relating to the use, operation,
or maintenance of Common Property.
Such suspension shall be for the balance of the period in which said member shall remain in
violation, breach, or default, as aforementioned, except in the case of a violation described in
subsection (c) of this section. The suspension may be for a period not to exceed 60 days after
the resolution or termination of such violation. No such suspension shall prevent an owner’s
ingress to or egress from their unit.
3.7 Termination of Membership.
Membership shall cease only when a person is no longer an owner of a unit on the development.
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3.8 Association Rules.
The board shall have the power and authority to establish, promulgate, amend, repeal, and
enforce such rules and regulations, as the board deems necessary for the management and
operation of the Development and the conduct of business and affairs of the Association. The
rules may concern, but need not be limited to, matters pertaining to the use of shared amenities,
pets, signs, minimum standards for maintenance of property, and any other subject matter within
the jurisdiction of the Association as provided in the Governing Documents or bylaws.
3.9 Insurance.
The board shall procure and maintain liability insurance and property insurance as it deems
adequate. The minimum limits of such insurance shall be determined by the board, after
consulting with the Association’s insurance agent or insurance professional. The minimum limits
shall be established to provide such coverage and protection as is customarily carried by
associations of similar developments in {location}. The board shall review the limits and coverage
of such insurance annually and shall increase or adjust, if necessary, to provide adequate
coverage and protection.
3.10 Utility Access
In the rare exception that there is an issue with a utility in a unit that stems from another unit, the
owner of the unit where the problem needs to be fixed will provide access to be able to address
said issue. There needs to be proper notice of a minimum of 24 hours in order to provide
access.
3.11 Dissolution.
Dissolution of the Association is prohibited without following the requirements of the the Idaho
Community Association Act.
ARTICLE IV. ASSESSMENTS AND LIENS
4.1 Covenants for Assessments, Creation of Lien, and Personal
Obligation.
Each owner hereby covenants and agrees for themselves, their heirs, distributes, legal
representatives, successors and assigns, by acceptance of a deed for a unit, whether or not the
covenants contained hereby shall be expressed in any such deed, as follows:
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(a) To pay the Association the annual assessments levied by the Association pursuit to this
Declaration against all units owned by them;
(b) To pay the Association any special assessments required for capital improvements or other
charges levied by the Association pursuant to this Declaration against all units owned by them;
(c) There is a continuing charge and lien upon all units owned by them against which all such
assessments are made to secure payment of such assessments and any penalties and interest
thereon as provided in section 4.8 hereof, and costs, including reasonable attorney fees;
(d) Continuing charge and lien on such units binds the units of the then owner, their heirs,
devisees, legal representatives, successors, and assigns. Such charge and lien take precedence
to any and all charges, liens, or encumbrances which may hereafter, arise or be imposed on such
units, except:
● Such liens for taxes or other public charges, as are by applicable law, made superior; and
● All deeds to secure debt, given to secure a loan, the proceeds of which are used to
purchase a unit or units and to finance the construction, repair or alteration of structures;
(e) That no sale or transfer at foreclosure or in lieu of foreclosure shall relieve a unit or units from
liability for any assessment already assessed;
(f) That all annual and special assessments (together with interest and costs of collection) levied
against any unit owned by the owner shall be, in addition to there being a continuing lien and
charge against the unit as provided in this section, a personal obligation which will survive any
sale or transfer of the unit or units belonging to the owner. The personal obligation for delinquent
assessments shall not pass to an owner’s successor in title unless expressly assumed by the
successor.
4.2 Purpose of Assessments.
The assessments levied by the Association shall be used exclusively for the purpose of providing
for the common good and general welfare of the people of the community of the Development,
including, but not limited to, maintenance or improvement of Common Property, security, the
enforcement of the Restrictions, the enforcement of the Review Standards of the ARC, and
operating costs and expenses of the Association.
4.3 Initiation Fee and Annual Assessment.
(a) Each residence shall be subject to an initiation fee of $100 a month as may be charged by the
board from time to time, which shall not be prorated, and an initial maximum annual assessment
as may be set by the board from time to time, in accordance with the procedure set forth herein,
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which may be prorated in accordance with the number of days in the assessment year such
residence existed and as may be adjusted pursuant to subsections 4.3
(b) Commencing with the first assessment year and continuing thereafter, without a vote of the
membership, the annual assessment may be increased at any time, and from time to time during
each assessment year by not more than 33.33% above the annual assessment for the previous
assessment year without a vote of the membership.
(c) Commencing with the first assessment year and continuing thereafter, the annual assessment
for each assessment year may, at any time and from time to time, be increased by more than
33.33% if such increase is approved by a 2/3 vote of the members of the association.
4.4 Special and Parcel Assessments.
In addition to the annual assessments authorized by this article, the Association may levy, in any
assessment year, and with such frequency as the Association deems necessary, special
assessments for the purpose of paying in whole or in part, any unanticipated operating costs, or
repair or replacement of a capital improvement on the common property. Special assessments
may be levied by the board in any assessment year without the approval of the members, so long
as special assessments in the aggregate do not exceed an amount equal to the annual
assessment then in effect. Special assessments exceeding said amount shall require the approval
of a 2/3 vote of the members of the Association.
The Association shall also be authorized to levy, in any assessment year, and with such frequency
as the Association deems necessary, parcel assessments for the purpose of paying, in whole or
in part, the cost of estimated expenses for the sole benefit of a particular parcel, which parcel
assessments shall be allocated equally among the residences in a parcel.
4.5 Specific Assessments.
The board shall have the power to specifically assess pursuant to this section as, in its discretion,
it shall deem appropriate. Failure of the board to exercise its authority under this section shall not
be grounds for any actions against the Association or the board, and shall not constitute a waiver
of the board’s rights to exercise its authority under this section in the future with respect to any
expenses, including an expense for which the board has not previously exercised its authority
under this section. The board may specifically assess owners for the following expenses, except
for expenses incurred for maintenance and repair of items which are the maintenance
responsibility of the Association:
(a) Expenses of the Association which benefit less than all of the residences which may be
specifically assessed equitably among all of the residences which are benefited.
(b) Reasonable fines may be imposed in accordance with terms of the Declaration and bylaws.
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4.6 Assessment Procedure.
(a) The board shall establish the annual assessment for each assessment year at an amount not
exceeding the maximum annual assessment as determined by the provisions of this article. The
annual assessment will be due and payable on {date} of each year, and this date will be referred
to as the due date. The board shall also establish an annual budget that will list the estimated
operating expenses and shall contain an amount to be set aside each year into a reserve fund to
be used for future repair and replacement of the common property. In no event shall the board be
required to provide for a reserve sufficient to cover all future repair and replacement costs of the
common property, it being intended that a portion of such costs will be covered by special
assessment. The board shall ensure the Association sends to each owner, at least 30 days in
advance of the due date, a written notice stating the amount of the annual assessment, and the
due date. The annual assessment is due on the 30th day following such written notice, or the due
date, whichever is later. The board may establish reasonable payment procedures to allow or
require payment of the annual assessment in installments during the assessment year. The board
shall also establish payment procedures for payment of any special assessments for capital
improvements, which may be levied in accordance with the provisions of this article.
(b) All members of the Association shall be given written notice by the board no less than 30 days,
and no more than 60 days in advance of any meeting of the members of the Association at which
the board shall propose taking action pursuant to this article. Such written notice shall specify
under which section(s) the board will propose action. At such a meeting, the presence of members
or proxies entitled to cast 50% of the total votes outstanding shall constitute a quorum. If a quorum
is not met, a second meeting may be called by the board subject to the same notice requirement,
and the required quorum at the second meeting shall be 30% of the total votes outstanding. No
such second meeting shall be held more than 60 days following the first meeting. If a q uorum is
not reached at the second meeting, the board may take such action without the approval of the
members. A minimum vote of 51% of all of the votes of the Association is required to disapprove
the Association’s annual budget, notwithstanding quorum requirements.
(c) Notwithstanding anything to the contrary in the Declaration, no special or parcel assessment
shall be made without the approval of Declarant for so long as Declarant has the right to appoint
members of the board.
4.7 Uniform Rate of Assessment.
Both annual and special assessments must be fixed at a uniform rate for all residences within the
Development. Parcel assessments must be fixed at a uniform rate for all residences within a
parcel.
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4.8 Delinquent Assessments.
Any assessment which is not paid on or before the due date shall automatically subject the payor
thereof to a late fee of {percentage} of said assessment, which shall immediately be due and
payable, and shall bear interest after the due date at the lower of the highest legal rate which can
be charged, or the rate of 18% per annum or at such rate as the board may, from time to time,
establish. In no event shall the board have the power to establish a rate of interest in violation of
the laws of the state of {name}.
In the event of default in the payment of any one or more installments of an assessment, the
board may declare any remaining balance of the assessment at once due and payable. In the
event that an owner fails to pay fully any portion of any assessment by the due date, such unpaid
portion, together with interest and costs of collection, shall be a binding personal obligation of
such owner as well as a lien on the owner’s residence enforceable in accordance with the
provisions of this Declaration. In addition to all other legal remedies, either in law or equity and
not in limitation thereof, the Association may institute rights to collect such past-due assessments
and/or to foreclose its lien. Each owner, by acceptance of a deed or as a party to any other type
of a conveyance, vests in the Association or its agents the right and power to bring all actions
against such owner personally, for the collection of such charges as a debt or to foreclose the
aforementioned lien in the same manner as other liens for the improvement of real property. The
Association, acting on behalf of the owners, shall have the power to bid on the unit at any
foreclosure sale or to acquire, hold, lease, mortgage or convey the same. The lien provided in
this article shall be in favor of the Association and shall be for the benefit of all other owners.
No owner may waive or otherwise exempt themselves from liability for the assessments provided
for herein, including by way of illustration, but not limited to, abandonment of the unit. No
diminution or abatement of any assessment shall be claimed or allowed by reason of any alleged
failure of the Association to take some action or perform some function required to be taken or
performed by the Association under this Declaration or the bylaws, or for inconvenience or
discomfort arising from the making of repairs or improvements which are the responsibility of the
Association, or from any action taken by the Association to comply with any law, ordinance, or
with any order or directive of any municipal or other governmental authority, the obligation to pay
assessments being a separate and independent covenant on the part of each owner.
All payments shall be applied first to costs, then late charges and then to interest, and finally
delinquent assessments.
4.9 Accumulation of Funds Permitted.
The Association shall not be obligated to spend in any calendar year, all the sums collected in
such year by way of annual assessments or otherwise, and may carry forward, as surplus, any
balances remaining. Furthermore, the Association is not obligated to apply such surplus to the
reduction of the amounts of the annual assessments in any succeeding year but may carry
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forward from year to year such surplus as the board may deem to be desirable for the greater
financial security of the Association and the effectuation of its purpose.
4.10 Certificate of Payment.
Upon written demand by an owner, the Association shall, within {number} days, issue a written
certificate to the owner stating that all assets (including penalties, interests, and costs) have been
paid with respect to any unit belonging to the owner as of the date of such certificate, or that all
assessments, interests, and costs have not been paid, setting forth the amount then due and
payable.
The Association may make a reasonable charge for the issuance of such a certificate. Any such
certificate that is issued to an owner shall be conclusive and binding with regard to any matter
therein stated as between the Association and any bona fide purchaser of, or lender on, the unit
in question.
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ARTICLE V. MAINTENANCE OF PROPERTY
5.1 Association Maintenance Responsibilities.
The Association is responsible for maintaining:
(a) Common property, including making improvements.
(b) Landscaping located within the common property, at the entrances of the Development, and
any landscaping located on the Development bordering {location/s}.
(c) Private roads servicing the units, including any multiple party roads servicing units, and the
emergency access roads providing fire escape routes for the Development. Maintenance of
private roads shall include snow clearing and removal. The frequency, method, and manner of
such clearing and removal shall be left to the discretion of the board.
(d) Entry gates, walls, and monuments, which the Association will maintain and repair.
(e) Common driveways {include a list of driveways if applicable}. Maintenance of common
driveways shall include snow clearing and removal. The frequency, method, and manner of such
clearing and removal shall be left to the discretion of the board.
5.2 Association Liability.
Except as specifically provided in this article, the Association is not responsible or liable for any
maintenance, repair, or replacement of a unit or any improvement thereon, except to the extent
that the need for such maintenance, repair, or replacement results from the gross negligence of
the Association.
5.3 Owner Maintenance Responsibilities.
(a) Units/residences shall be maintained, repaired, and replaced by owners, except for items listed
in subsection 5.1. Owners are responsible for, but not limited to, maintaining:
● Roofs
● Fences
● Exterior building surfaces
● Exterior doors
● All yard areas not expressly maintained by the Association
● Plants
● Draining facilities
(b) Pests or organisms that destroy wood;
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(c) Fixtures, personal and common property which are to be maintained by the owner. Even if
these things are damaged by an element maintained by the Association, the owner must pay for
repairs unless the cause is the gross negligence of the Association.
5.4 Owner Failure to Maintain Property.
The board has the power to determine whether any maintenance, repair, or replacement which is
the responsibility of an owner, is necessary to preserve the appearance and the value of the
property comprising the Development, or any portion thereof, and may notify an owner of the work
the board deems necessary. In the event that an owner fails to perform the work within a
reasonable and specified amount of time after the owner has received a written notice from the
board, the board may, after the right of a hearing, cause such work to be done and charge the
cost to the owner as a reimbursement assessment.
5.5 Cooperative Maintenance Obligations.
To the extent necessary to accomplish the Association’s maintenance and repair obligations,
owners shall cooperate with the Association in the prosecution of its work.
5.6 Compliance with Architectural Revisions.
An owner’s right and responsibility for maintaining, repairing, or replacing any portion of their unit,
including landscaping, shall be subject to any applicable provisions of the Governing Documents
relating to landscaping and architectural guidelines.
5.7 Authority for Entry of Unit.
The Association may enter any unit, whenever such entry is necessary for the Association to
maintain, repair, or replace something that it is responsible for maintaining. {Number} hours notice
will be given in writing to the owner before entry. The board may authorize the Association to
enter any unit to perform emergency repairs that are necessary for safety reasons or to prevent
or stop damage to the unit or common property. The cost of performing emergency repairs shall
be charged to the owner as a reimbursement assessment. Such entry shall be made with as little
inconvenience to the owner as possible, and only upon reasonable advance written notice of no
less than 24 hours, unless the emergency situation must be addressed immediately.
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ARTICLE VI. ARCHITECTURAL REVIEW COMMITTEE
6.1 Creation and Composition of Architectural Review Committee.
(a) An architectural review committee (ARC) shall be established, consisting of no less than 3,
and no more than {number} individuals. The ARC must have an uneven number of members.
Declarant shall have the right, but not the obligation to appoint all ARC members until the plans
for all of the residences for all of the units in the Development have been approved by the ARC.
After that, the board shall appoint the members of the ARC. All operating costs are at the
discretion of the Declarant and will be borne by the Association.
(b) Each initial member of the ARC shall be appointed for a term, expiring on {date}. After this
date, each ARC member shall be appointed for a calendar-year term. If any vacancy shall occur
in the membership of the ARC, the remaining members shall continue to act and such vacancy
shall, subject to the provisions of this section, be filled by the Declarant, or board if they have the
right to appoint ARC members, at the earliest possible time. Any ARC member has the right to
resign at any time by giving written notice of such resignation to the chairperson of the ARC. Such
resignation shall take effect once the chairperson receives the resignation. Any member of the
ARC may be removed without cause by the Declarant while the Declarant has the power to
appoint members of the ARC, or the board if they have the right to appoint ARC members,
pursuant to this section.
6.2 Purpose, Powers, and Duties of the ARC.
The purpose of the ARC is to assure that any installation, construction or alteration of any
structure on any unit shall be submitted to the ARC for approval as to whether the proposed
installation, construction, or alteration conforms with the design and general quality of the existing
standards of the neighborhood and with the standards of the Development. The ARC shall have
all of the powers and duties necessary to accomplish such purpose, without being limited to the
power and duty to approve or disapprove plans and specifications for any installation,
construction, or alternation of any structure on any unit.
6.3 Officers, Subcommittees, and Compensation.
The members of the ARC shall appoint a chairperson from among them and may appoint other
officers and subcommittees of ARC members as they shall determine necessary. ARC members
shall be reimbursed by the Association for travel expenses and other reasonable out-of-pocket
expenses incurred while performing their duties.
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6.4 Operations of the ARC.
(a) Meetings. The ARC shall hold regular meetings at least once every 4 months, or more often
as may be established by the ARC. Special meetings may be called by the chairperson at any
time and shall be called upon the written request of a majority of the members of the ARC. The
meeting time and location shall be determined by the committee. Notice of each regular or special
meeting shall be mailed to each member at least 3 days before the meeting is to be held. Notice
of regular and special meetings need not specify the purpose for which the meeting is called.
The presence of the majority of ARC members shall constitute a quorum for the transaction of
business. In the absence of a quorum, any member of the ARC present at the meeting may
adjourn the meeting until a quorum is present. The ARC shall maintain both a record of votes and
minutes for each of its meetings. Records and minutes shall be made available at reasonable
places and times for inspection by members of the Association, and the secretary. Any action
required to be taken at an ARC meeting may be taken without a meeting if written consent, setting
forth the action so taken, is signed by all members of the ARC and be filed within the minutes of
the proceedings of the ARC. Such consent shall have the same force and effect as a unanimous
vote, and may be stated as such in any document filed by the ARC.
(b) Activities. The ARC shall adopt and promulgate the architectural review guidelines described
in section 6.5, and shall make rulings, findings, determinations and orders in conformity with said
guidelines. Plans and specifications are to be submitted for approval to the ARC, pursuant to the
provisions of this Declaration. The ARC shall issue permits, authorizations or approvals, which
may include specified requirements or conditions, pursuant to the provisions of this Declaration.
Any 2 or more members of the ARC may be authorized to exercise the full authority of the ARC
with respect to all matters over which the ARC has authority as may be specified by resolution of
the ARC, except for the adoption or promulgation of the architectural review guidelines. Written
notice of the decision of such 2 or more members shall, within {number} working days, be given
to any applicant for an approval, permit or authorization. The applicant may, within {number} days
after receiving written notice of any decision that they believe is unsatisfactory, file a written
request to have the matter in question reviewed by the ARC. Upon the filing of such a request,
the matter shall be promptly reviewed by the ARC, no later than 30 days after the request wa s
filed. The decision of the majority of the members of the ARC with respect to the request shall be
final and binding.
6.5 Architectural Review Guidelines.
(a) The ARC shall adopt, promulgate, revoke and enforce architectural review guidelines for the
purpose of:
(i) Governing the form and content of plans and specifications to be submitted to the ARC for the
approval pursuant to the provisions of the Declarant;
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(ii) Governing the procedure for such submission of plans and specifications;
(iii) Establishing guidelines with respect to the approval and disapproval of design features,
architectural styles, colors and materials, details of construction, location and size of structure,
and all other matters that require approval by the ARC pursuant to this Declaration; and
(iv) Assuring the conformity of external design and general quality of the Development.
(b) The ARC shall make a published copy of its current architectural review guidelines readily
available to members and prospective members of the Association, and to all applicants seeking
the ARC’s approval.
6.6 Submission of Plans and Specifications.
No structure shall be commenced, erected, placed, moved onto or permitted to remain on any
unit, nor shall any existing structure upon any unit be repainted a color different than its original
color or altered in any way which materially changes the exterior appearance of the structure or
unit, unless plans and specifications have been submitted to and approved in writing by the ARC.
Such plans and specifications shall be in such form and shall contain such information as may be
reasonably required by the ARC in the guidelines, including:
(a) A site plan showing the location of all proposed and existing structures on the unit, including
building setbacks, open space, driveways and parking spaces, and erosion control measures;
(b) A foundation plan;
(c) Exterior elevations of all proposed structures and alterations to existing structures as such
structures will appear after all back-filling and landscaping are completed;
(d) Specification of materials, colors, and other details affecting the exterior appearance of all
proposed structures and alterations to existing structures;
(e) A floor plan; and
(f) Plans for landscaping and grading.
6.7 Approval of Plans.
Upon approval by the ARC of any plans and specifications submitted pursuant to this Declaration,
2 copies of the plans and specifications, as approved, must be provided for permanent record
with the ARC. A copy of the plans, bearing approval in writing, shall be returned to the applicant
submitting the same. Approval for use in connection with any unit or structure of any plans and
specifications shall not be deemed a waiver of the ARC’s right, in its direction, to disapprove
27
similar plans and specifications, or any of the features or elements included if such plans,
specifications, features or elements are subsequently submitted for use in connection with any
other unit or structure. Once plans are approved, they shall not be revoked or rescinded, provided
that there has been adherence to, and compliance with, such plans and specifications, as
approved, and any conditions attached to any such approval.
6.8 Disapproval of Plans.
The ARC shall have the right to disapprove any plans and specifications submitted if:
(a) There has been a failure to include reasonably requested information in the plans and
specifications;
(b) The plans and specifications do not comply with this Declaration or the architectural review
guidelines; or
(c) Any other matter which, in the judgment of the ARC, would be likely to cause the proposed
installation, construction or alteration of the structure to go against the conformity of the external
design and general quality with the standards for the Development, or if location is incompatible
with topography, finished ground elevation, or surrounding structures. Disapproval or qualified
approval of plans shall be accompanied by a statement of the grounds upon which such action
was based. If requested, the ARC shall make reasonable efforts to assist and advise the applicant
in order for an acceptable proposal to be prepared and submitted for approval.
6.9 Obligation to Act.
The ARC shall take action on any plans and specifications with {number} days after receipt
thereof. Approval by the ARC, if granted, together with any conditions imposed by the ARC, shall
be placed in writing on the plans and specifications and shall be returned to the applicant. In the
event conditions are imposed requiring modification of the plans, the applicant shall resubmit
plans and specifications, showing the conditions fulfilled. If the ARC does not take action within
{number} days after receiving plans and specifications initially submitted for approval, the plans
and specifications are considered approved. If the ARC does not take action within {number}
days after receiving resubmitted plans that show conditions have been fulfilled, the plans and
specifications are considered approved.
6.10 Violations.
If any structure is erected, placed, maintained or altered on any unit, otherwise than in accordance
with the plans and specifications approved by the ARC, the structure shall be deemed to have
been undertaken in violation of this article and without approval. If the ARC determines that such
a violation has occurred, the ARC shall notify the Association and the board shall take appropriate
28
measures to correct the violation. The board shall provide written notice to the owner by first-class
U.S. mail, setting forth in reasonable detail the nature of the violation and the specific action
required to remedy the violation. If the owner does not take reasonable steps to remedy the
situation within 30 days after the notice has been mailed, then the Association shall have the
Right of Abatement as provided in this Declaration.
6.11 Certification of Compliance.
(a) Upon completion of the installation construction or alteration of any structure in accordance
with plans and specifications approved by the ARC, the ARC shall, if requested or if the ARC
chooses to do so, issue a Certificate of Compliance, identifying the structure and unit upon which
the structure is placed, stating plans and specifications have been approved, and that the
structure complies with the approved plans. A copy of the certificate shall be filed for permanent
record with the plans and specifications.
(b) Any Certificate of Compliance issued in accordance with provisions of this section shall be
prima facie evidence of the facts therein stated; and as to any purchaser or encumbrancer in good
faith for value, or as to any title insurer, such Certificate shall be conclusive evidence that all
structures on the unit comply with all the requirements of this article, provided that the Certificate
is in no way constructed to certify the acceptability, sufficiency or approval by the ARC of the
actual construction of structures or of the workmanship, or to represent or warrant to anyone the
quality, function or operation of the structure.
The issuance of the Certificate shall in no way be constructed to certify to any party that the
structure has been built in accordance with any applicable rule or regulation or in accordance with
every detail on the approved plans and specifications.
6.12 Fees.
The ARC may impose and collect a reasonable and appropriate fee to cover the cost of review of
plans and specifications, and of inspections performed. The fee shall be established by the ARC,
and published in the architectural review guidelines.
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ARTICLE VII. COVENANTS AND RESTRICTIONS
7.1 General.
This article sets out certain use restrictions which must be complied with by all owners and
occupants of units. These use restrictions may only be amended in the manner provided herein
regarding amendment of this Declaration. In addition, the Protective Covenants set forth upon
any plat or future plats of unit in {development’s name} which shall be recorded in the Plat records
of the Clerk of the Superior Court, {county and state}, as may be amended or revised from time
to time, are expressly referenced hereby and incorporated herein. The board may also, without
consent from members, promulgate, modify or delete rules and regulations applicable to the
Development. Such rules and regulations shall be distributed to all owners and occupants until,
and unless overruled, canceled, or modified in a regular or special meeting by a majority of the
members of the Association eligible to vote.
7.2 Siding Requirements.
The exterior of every dwelling shall be {specify materials}. Declarant reserves the right to approve
all exterior finishes.
7.3 Pets.
No animals, livestock or poultry of any kind may be raised, bred, kept or permitted on any unit,
with exception of cats, dogs or other usual common household pets in reasonable numbers
{include types of pets or specific numbers, if necessary}. Potbelly pigs are not considered
household pets. No pets shall be kept, bred, or maintained for any commercial purpose. Dogs
shall at all times, when outside, be on a leash or inside the owner’s fence.
7.4 Nuisances.
It shall be the responsibility of each owner and occupant to prevent the development of unclean,
unhealthy, unsightly or unkept conditions on their property. No property within the Development
shall be used for the storage of any property, animal or thing that will cause the unit to appear to
be in an unclean or untidy condition or that will be obnoxious to the eye, emit foul or obnoxious
odors, or cause any noise or other condition that might or will disturb the peace, quiet, safety,
comfort or security of the occupants of the surrounding property. No noxious or offensive activity
shall be carried on within the Development, nor shall anything be done tending to cause
embarrassment, discomfort, annoyance or nuisance to any person using any property within the
Development. Without limiting the generality of the foregoing, no speaker, horn, whistle, siren,
bell, amplifier or other sound device, shall be installed or maintained upon any unit or the exterior
of any structure, unless required by law.
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7.5 Firearms.
The discharge of firearms in the Development is prohibited. Firearms include BB guns, and pellet
guns.
7.6 Antennas and Dishes.
No exterior television or radio antenna, dish or receiver shall be placed, allowed or maintained
upon any portion of the Development, including any unit, if it is visible from any public or private
street providing access to or located within the Development. No satellite dish larger than {size}
shall be placed, allowed or maintained on any portion of the Development, including any unit.
7.7 Residential Use.
The units within the Development shall be and are restricted exclusively to single-family
residential use and no trade or business of any kind may be conducted in or from a unit, or any
part of the Development either as a primary or accessory use of either the unit or any portion of
the Development.
An owner or occupant may conduct such business activities within a dwelling so long as:
(a) The existence or operation of the business activity is not apparent or detectable by sight,
sound or smell from the exterior of the dwelling;
(b) The business activity does not regularly involve persons or vehicles coming into the
Development who do not reside there;
(c) The business activity does not involve having any tools of a particular trade stored or placed
in any area which can be seen from another unit or the common property;
(d) The business activity conforms to all zoning requirements for the Development;
(e) The business activity is consistent with the residential character of the Development;
(f) The business activity does not require use of common property utilities; and
(g) The business activity does not constitute a nuisance, hazardous or offensive use, as may be
determined by 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 any occupation, work or activity
31
performed on an ongoing basis which involves the provision of 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 the activity is done full time or part time, the activity is
intended to or does generate a profit, or a license is required for the activity.
Leasing of a unit shall not be considered a business or business activity. The board may issue
rules regarding permitted business activities.
7.8 Vehicles.
The term “vehicles'' as used herein shall include, without limitation, motorcycles, minibikes,
scooters, go-karts, trucks, vans and automobiles. All vehicles shall be parked within garages,
driveways or other paved parking areas located on a unit. Parking in yards or on streets within
the Development is prohibited. Unit owners’ visitors may temporarily park on the street. No
inoperable, junk or abandoned vehicles shall be allowed to sit on the property.
7.9 Trailers and Portable Homes.
No trailer or mobile home, modular home, prefabricated home or portable structure shall be
constructed or kept on any unit.
7.10 Driveways.
Except as permitted by the ARC, all driveways shall be paved with concrete.
7.11 Garages.
All garages are to be enclosed with doors. All garages must be no less than two cars in size.
Unattached garages are permissible as long as such a garage is constructed in the same
architectural style, with the same colors as the dwelling on the unit. An unattached garage must
face the front of the unit.
7.12 Traffic Regulations within the Development.
All vehicular traffic on all streets and paved areas within the Development shall be subject to the
laws of {state and county} concerning operation of motor vehicles in public streets and paved
areas. The Association is hereby permitted to promulgate, administer and enforce rules and
regulations governing vehicular and pedestrian traffic. This includes reasonable safety measures
and speed limits. Enforcement measures, including levying of fines, may be taken by the
Association as it deems appropriate. All vehicles within the Development shall be operated
carefully and safely, with due consideration for the rights of all owners and occupants.
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7.13 Leasing.
Units may be leased for residential purposes. All leases must have a minimum term of at least
{months or year}. All leases shall require that the tenant acknowledge receipt of a copy of the
Declaration, bylaws, and rules and regulations of the Association. The lease shall also obligate
the tenant to comply with the foregoing and shall provide that in the event of noncompliance, the
board, in addition to any other remedies available to it, may evict the tenant on behalf of the owner
and specifically assess all costs associated against the owner and the owner’s property.
7.14 Occupants.
All provisions of the Declaration, bylaws, and any other rules and regulations, that 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 of units even though
occupants are not specifically mentioned. Reasonable fines may be levied by the board against
owners for violation of this Declaration or bylaws. The procedure for finding is set forth in the
bylaws.
7.15 Minimum Size of Dwellings.
No single-story dwelling having a total area of heated floor space of less than {size} square feet,
and no two-story dwelling having a total area of heated floor space of less than {size} square feet,
shall be constructed or maintained on any unit, in either case exclusive of garages, porches and
terraces.
7.16 Intersection Maintenance.
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.
7.17 Garbage Cans.
All garbage cans shall be located or screened so as to be concealed from view of neighboring
streets and property.
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7.18 Waste.
No person shall dump or bury rubbish, garbage or any other form of waste on any unit or any
common property. No burial of construction materials, waste or debris is permitted on any unit or
common property. All trash, garbage and debris shall be regularly removed and shall not be
allowed to accumulate.
7.19 Sheds.
No separate or detached storage sheds shall be constructed, placed or erected on any unit
without first receiving approval by the ARC for the design and location.
7.20 Cunitheslines.
No cunitheslines shall be placed, allowed, or maintained upon any portion of the Development,
including any unit.
7.21 Subdivision of Unit.
No unit shall be subdivided, or its boundary lines changed, without the prior written approval of
the board or its designee. Declarant hereby reserves the rights to replat any unit owned by
Declarant.
7.22 Utility Lines.
No overhead utility lines, including lines for cable television, shall be permitted within the
Development, except for temporary lines as required during construction and lines installed by or
at the request of Declarant.
7.23 Air Conditioning Units.
No window air conditioning units may be installed.
7.24 Flags and Yard Ornaments.
Flags and yard ornaments, and similar items, must be approved by the ARC.
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7.25 Signs.
No sign of any kind shall be erected by an owner or occupant of a unit within the Development.
Notwithstanding the foregoing, residents shall have the right to erect reasonable and appropriate
“For Sale” and “For Rent” signs. Declarant may erect entry signs and sales information signs.
7.26 Landscaping.
No construction or any alteration of any structure or unit shall take place without the prior written
approval by the ARC of plans and specifications for the landscaping to accompany such
construction or alteration. Guidelines may be included in the architectural review guidelines of the
ARC.
7.27 Trees.
No tree having a diameter of {size} inches or more, measuring from a point of two feet above
ground level, shall be removed from any unit unless such removal is in conformity with approved
landscaping plans and specifications for the landscaping to accompany such construction or
alteration. Guidelines may be included in the architectural review guidelines of the ARC.
7.28 Recreational Equipment.
No recreational or playground equipment including, but not limited to, swing sets, jungle gyms,
play houses, tennis courts and basketball goals, shall be constructed upon, erected upon, placed,
allowed or maintained on any unit without the prior written approval as to the form, type, style,
color, location, etc. of the ARC. The ARC shall only allow such equipment to be placed on the
rear of a unit. The ARC may approve tennis courts to be located in the side yard no closer to the
street than the front plane of the residence. In addition to the above approvals required by the
ARC, the fencing, netting, lighting, and landscaping of the tennis courts must be approved by the
ARC.
7.29 Solar Panels.
No solar 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 ARC or its designee.
7.30 Swimming Pools.
No swimming pool shall be permitted in the yard of a residence without the express prior written
approval of the ARC. In the event the ARC approves such a swimming pool, it shall be permitted
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only in the area designated by the ARC, in the rear yard of the residence and in a location not
readily visible from the street upon which the residence is located. In no event shall an above
ground swimming pool be permitted.
7.31 Mailboxes.
All mailboxes and stands shall be of similar style and approved by Declarant. All mailboxes and
stands shall be maintained in a good state of repair.
7.32 Fences.
No fence, wall or outbuilding of any kind shall be erected, maintained or altered on any unit without
the prior written approval of the ARC. Under no circumstances shall any chain link, barbed wire
or hog wire fence be permitted in the Development. All fences must tie from and run parallel with
the back of the house to the property line. Corner units shall have no fencing installed outside of
the building setback lines.
7.33 Lighting.
Except as may be permitted by the ARC, exterior lighting visible from the street shall not be
permitted except for:
(a) Approved lighting as originally installed on a unit;
(b) Street lights in conformity with an established street lighting program for the Development; or
(c) Seasonable decorative lights at Christmas. Seasonal Christmas decorative lights and
Christmas ornaments visible from the exterior of any residence shall be erected or placed no
earlier than the day Thanksgiving is ordinarily and customarily celebrated in the United States of
America, and shall be removed from a residence or unit no later than {date} of the following year.
7.34 Maintenance.
Each owner shall maintain their unit and keep it in a state of good condition and repair. Each
owner shall be responsible for the repairing and painting of all structures, the seeding, watering
and mowing of all lawns not expressly agreed to be mowed by the Association, and the pruning
and trimming of trees, hedges, and shrubbery so that the same are not obstructive of a view by
motorists or pedestrians of street traffic. The maintenance required hereunder shall also extend
from the boundary of a unit to the curb of the street bordering said unit. If the ARC sees that the
owner has failed to perform the duties imposed by this section, then the ARC shall give written
notice to the owner to remedy the condition, setting forth in reasonable detail the nature of the
condition and the specific action needed to be taken to remedy the condition. If the owner has not
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taken reasonable steps to remedy the issue 30 days after the notice was mailed, the Association
shall have the Right of Abatement. Maintenance guidelines may be included in the architectural
review guidelines of the ARC.
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ARTICLE VIII. EASEMENTS, ZONING, AND OTHER RESTRICTIONS
8.1 Easement for Improvements and Repairs.
Declarant hereby expressly reserves to Declarant, the Association and their respective
successors and assigns, for so long as the Declarant owns any unit within the Development, and
after which, solely to the Association, blanket perpetual easements in, on, over and under any
part of the property, as is determined in the sole discretion of the Declarant, the Association, and
their respective successors and assigns, for completing improvements or effecting repairs within
the Development, including, by the way of example, and not limitation, the following:
(a) The erection, installation, construction and maintenance of wires, lines conduits, and poles,
and the necessary or proper attachments in connection with the transmission of electricity,
telephone, television cables, and other utilities and similar facilities;
(b) The erection, installation, construction and maintenance of storm-water drains, land drains,
public and private sewers, retention ponds, irrigation systems, pipelines for supplying gas and
water, and for any other public or quasi-public facility, service or function;
(c) Slope control purposes, including the right to grade and plant slopes and prevent the doing of
any activity which might interfere with slopes or which might create erosion or sliding problems or
which might change, obstruct or retard drainage flow; and
(d) The planting or replanting of hedges, shrubbery, bushes, trees, flowers and plants of any
nature.
In addition, there is hereby reserved to the Declarant a {number} foot easement on either side of
the boundary line of each unit, and the right to impose on any unit or other property within the
Development any other easements necessary or appropriate for the development, maintenance
and sale of units within the Development as well as the right to release or abandon any easements
in favor of Declarant.
8.2 Easement for Entry.
The board shall have the right, but shall not be obligated to enter upon any property within the
Development for emergency, security and safety. This right may be exercised by the manager,
and all police, fire and 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 entry party shall be responsible
for any damage caused. It is intended that the right of entry shall include the right of the board to
enter to fix any condition which may result in fire, slope erosion, or other hazards in the event that
an owner or occupant fails or refuses to fix the condition upon request by the board.
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8.3 Easement for Maintenance.
There is hereby reserved to the Declarant, its successors and assigns, and the Association, a
perpetual transferable and alienable easement across such portions of the Development,
determined in the sole discretion of Declarant or the Association, as are necessary to allow for
the maintenance of retention ponds and other items required by this Declaration to be maintained
by Declarant or the Association. Such maintenance shall be performed with a minimum of
interference to the quiet enjoyment of owners' 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.
8.4 Easement for Encroachment and Overhang.
There shall be reciprocal appurtenant easements for encroachment and overhanging as between
each unit due to the unintentional placement or settling or shifting of any structure constructed,
reconstructed or altered thereon to a distance of not more than {number} feet, as measure from
any point on the common boundary between each unit and the adjacent portion of the common
property or as between adjacent units, along a line perpendicular to such boundary at such point.
In no event shall an easement for encroachment exist if such encroachment occurred due to willful
conduct on the part of an owner, tenant, or the Association.
8.5 Easement for Utilities and Public Services.
There is hereby reserved for the benefit of Declarant, its successors and assigns, and the
Association, the alienable, transferable, and perpetual right and easement, as well as the power
to grant and accept easements to and from {county and state}, or any other public authority or
agency, public service district, public or private utility, or other person, upon, over or under all of
the common property and those portions of all units and residences as are reasonably necessary,
for the purpose of installing, replacing, repairing, maintaining and using master television antenna
and/or cable systems, security and similar systems, and all utilities, including but not limited to,
storm sewers, drainage systems, and retention ponds and facilities for the Development of any
portion thereof, and electrical gas, telephone, water and sewer lines, provided that such
easements shall not unreasonably affect the developability, marketability or vale of any such unit
or residence. Such easements may be granted or accepted by Declarant, its successors or
assigns, so long as Declarant owns any unit or residence primarily for the purpose of sale or has
the unexpired option to add the additional property or any portion thereof to the Development, the
Association must obtain the written consent of Declarant prior to granting and accepting any such
easements.
To the extent possible, all utility lines and facilities serving the Development and located therein
shall be located underground. By virtue of any such easement and facilities, it shall be expressly
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permissible for the providing utility company, or other supplier or servicer, with respect to the
portions of the Development so encumbered, to erect and maintain pipes, lines, manholes,
pumps, etc., to cut and remove any trees, bushes or shrubbery, to grade, excavate or fill, or to
take any other similar action reasonably necessary to provide economical and safe installation,
maintenance, repair, replacement and use of such utilities and systems. The utility company,
supplier or servicer shall take reasonable actions to repair any damage they caused during the
exercise of any rights conveyed under any easement granted hereunder.
The Association shall have the right to grant and accept easements as provided in this section,
and to dedicate or transfer fee simple title to all or any portion of the common property to {county
and state}, or to any other public agency or authority, public service district, public or private utility,
or other person. Such transfer must be approved by a majority of those present in person or by a
proxy at a duly held meeting of the Association and by Declarant for so long as Declarant owns
any unit or residence primarily for the purpose of sale or has the unexpired option to add any
additional property to the Development.
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ARTICLE IX. ENFORCEMENT
9.1 Right of Enforcement.
This Declaration and the Restrictions contained herein shall insure to the benefit of and shall be
enforceable by the Declarant so long as it is the owner, the Association, and each owner, their
heirs, devisees, legal representatives, successors and assigns.
9.2 Right of Abatements.
(a) Except where different notice provisions are provided in other sections hereof, in the event of
a violation or breach of any restriction contained in this Declaration the Association shall give
written notice by first class U.S. mail to the owner setting forth in reasonable detail the nature of
such violation or breach and the specific action(s) needed to be taken to remedy such violation
or breach. If the owner shall fail to take reasonable steps to remedy such violation or breach within
30 days after the mailing of said written notice, then the Association shall have the Right of
Abatement.
(b) The Right of Abatement, as used in this section and in other sections hereof, means the right
of the Association, through its’ agents and employees, to enter at all reasonable times upon any
unit or structure, as to which a violation, breach or other condition to be remedied exists, and to
take the actions specified in the notice to the owner to abate, extinguish, remove or repair such
violation, breach, or other condition which may exist thereon contrary to the provisions hereof,
without being deemed to have committed a wrongful act solely by reason of such entry and such
actions, provided entry and action are carried out in accordance with the provisions in this section,
and with the cost thereof including the costs of collection including reasonable attorney fees,
together with interest at the lower of the highest rate permitted by law, or {percentage}, to be a
binding personal obligation of such owner enforceable in law, as well as a lien on an owner’s unit.
Such lien shall be superior to any and all charges, liens or encumbrances which may arise or be
imposed on the unit after such entry whether arising from or imposed by judgment or decree or
by any agreement, contract, mortgagee, deed to secure debt, or other instrument, excepting only
such liens for taxes or other public charges as are by applicable law made superior, the liens
created by Article IV hereof and all deeds to secure debt given to secure a loan the proceeds of
which are used to purchase a unit or units and to finance the construction, repair or alteration of
structures.
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ARTICLE X. DURATION AND AMENDMENT
10.1 Duration.
This Declaration and the Restrictions contained herein shall run with and bind the property for a
period of {number} years from and after the date when this Declaration is filed for record with the
Clerk of the Superior Court of {county and state}, after which time this Declaration and the
Restrictions shall be automatically renewed for the successive periods of {number} years. After
the end of the said {1st number} year period and during any {2nd number} year renewal period
(but only during such renewal period), this Declaration and the Restrictions contained herein may
be terminated by an instrument executed by the proper Association officers and recorded in the
Office of the Clerk of the Superior Court of {county and state}, or in such other place of recordings
as may be appropriate at the time of the execution of such instrument, pursuant to a resolution
approving such termination which is approved by a 2/3 vote of the Class A members of the
Association.
10.2 Amendments by Declarant.
During any period in which Declarant retains the right to appoint and remove any directors and
officers of the Association, Declarant may amend this Declaration by an instrument in writing, filed
and recorded in the Deed Records of the Superior Court of {county and state} without the approval
of any member or mortgagee.
In the event that such amendment materially alters or changes any owner’s right to the use and
enjoyment of such owner’s unit or of the common property as set forth in this Declaration, or if
such amendment adversely affects the title to any unit, such amendment shall be valid only upon
the written consent by a majority in number of the then existing members affected thereby, or in
the event that such amendment would materially and adversely affect the security title and interest
of any mortgagee, such amendments shall be valid with the written consent of all such
mortgagees so affected. Any amendment made pursuant to this section shall be certified by
Declarant as having been duly approved by Declarant, and such members and mortgagees, if
required, and shall be effective only upon recordation or at such later date as shall be specified
in the amendment itself. Each owner, by acceptance of a deed or other conveyance to a unit,
agrees to be bound by such amendments as are permitted by this section and further agrees that
if requested to do so by Declarant, such owner will consent to the amendment of this Declaration
or any other instruments relating to the Development if:
(a) Such amendment is necessary to bring any provision into compliance with the provisions of
any applicable governmental statute, rule or regulation, or any judicial determination which shall
be in conflict therewith;
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(b) If such amendment is necessary to enable any reputable title insurance company to issue title
insurance coverage with respect to any units subject to this Declaration;
(c) If such amendment is required by an institutional or governmental lender, purchaser or
guarantor of mortgage loans, to enable such lender or purchaser to make or purchase mortgage
loans on any unit subject to this Declaration;
(d) If such amendment is necessary to enable any government agency or reputable private
insurance company to insure mortgage loans on the units subject to this Declaration; or
(e) If such amendment is necessary to correct a scrivener’s error in the drafting of this Declaration.
10.3 Amendments by Association.
Amendments to this Declaration, other than those authorized by section 10.2, shall be proposed
and adopted in the following manner:
(a) Notice of the subject matter of the proposed amendment shall be included in the notice of the
meeting of the Association at which such proposed amendment is to be considered and shall be
delivered to each member of the Association.
(b) At such meeting, a resolution adopting a proposed amendment may be proposed by either
the board or by members of the Association. Such amendment must be approved by members
holding at least 2/3 of the total votes in the Association. Any amendment which materially and
adversely affects the security title and interest of any mortgagee must be approved by such
mortgagee, and during any period in which Declarant has the right to appoint and remove officers
and directors of the Association, such amendment must be approved by Declarant.
(c) The agreement of the required percentage of the owners, and, where required, the Declarant
and any mortgagee, to any amendment of this Declaration shall be evidenced by their execution
of such amendment, or in the alternative, and provided that Declarant does not then have the
right to approve such amendment, the sworn statement of the president and any vice president
or the secretary of the Association attached to or incorporated in the amendment executed by the
Association, which sworn statement shall state unequivocally that the agreement of the required
parties was lawfully obtained. Any such amendment of this Declaration shall become effective
only when recorded or at such later date as may be specified in the amendment itself.
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ARTICLE XI. ANNEXATION AND CONSTRUCTION AND SALE PERIOD
11.1 Annexation.
(a) Until {number} years from the date of this Declaration, or until Declarant surrenders their rights
to annex real property, whichever is earlier, Declarant may annex any real property without the
consent of Class A members. Such annexation shall be accompanied by filling in the office of the
Clerk of the Superior Court of {county} an approved subdivision plat describing the real property
to be annexed to the property and by including on such subdivision plat a statement that expressly
sets forth the Declarant’s intention to make such annexed real property subject to the provisions
of this Declaration; or by filing an amendment to the Declaration which shall be executed by
Declarant and has been consented to by the owners of the real property to be annexed if any
portion of such real property is owned by someone other than Declarant. The provisions hereof
shall be expressly subject to the provisions of Article XII of this Declaration.
(b) At the expiration of Declarant’s right to appoint and remove directors and officers of the
Association, or after Declarant surrenders their rights to annex real property, no real property may
be annexed to the Property unless such annexation is approved by a 2/3 votes of the members
of the Association who are present in person or by proxy and voting at a meeting of the members
duly held in accordance with the provisions of the bylaws of the Association.
(c) Declarant also reserves the right to amend this Declaration unilaterally at any time so long as
it has the authority under this article without the prior notice and without the consent of any owner,
for the purpose of removing certain portions of the Property then owned by Declarant or its
affiliates, or the Association from the provisions of this Declaration, to the extent originally included
in error or as a result of any changes whatsoever in the plans for the Property desired to be
effected by the Declarant, provided such withdrawal is not unequivocally contrary to the overall
scheme of the development of the property.
11.2 Construction and Sale Period.
Until Declarant no longer owns any units as defined herein, it shall be expressly permissible for
Declarant and any builder or developer approved by Declarant to maintain and carry on, upon
such portion of the Development as Declarant may deem necessary, such facilities and activities
as may reasonably be required by the Declarant as such builder in the development, construction
and sales activities related to property subject to this Declaration, including, but not limited to, the
right of access, ingress and egress for vehicular and pedestrian traffic over, under, on, or in the
Development; the right to tie into any portion of the Development with driveways, parking areas
and walkways; the right to tie into and/or otherwise connect and use (without a tap-on or any other
fee for so doing), replace, relocate, maintain and repair any device which provides utility or similar
services including, without limitation, electrical, telephone, natural gas, water, sewer and drainage
lines and facilities constructed or installed in, on, under and/or over the Development; the right to
44
carry on sales and promotional activities in the Development; and the right to construct and
operate business offices, signs, construction trailers, material storage areas, model residences,
off-street parking areas, and sales offices. Declarant and any such builder or developer may use
residences or offices owned or leased by Declarant or such builder or developer as model
residences and sales offices. Rights exercised pursuant to this 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
any damage as its’ sole expense.
The rights and easements of enjoyments of owners in and to the common property as expressed
in Article II shall be subject to the right of the Declarant to the exclusive use of portions of the
common property reasonably required, convenient or incidental to the improvement and sale of
units including, but not limited to, sales and business offices, storage areas, construction yards
and signs. Such right of the Declarant may be delegated by it to the developers and builders
having an interest in the Property, shall be exercised so as to avoid any unnecessary
inconvenience to or infringement upon the rights of others and continue until such time as such
persons no longer own any unit primarily for the purpose of sale, or on 7 years from the date of
the recording of this Declaration, whichever shall first occur, without affecting any member’s
obligation to pay assessments coming due during such period of time or the permanent charge
and lien on any member’s unit in favor of the Association.
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ARTICLE XII. MORTGAGEE PROVISIONS
12.1 Special Mortgagee Provisions.
(a) As used in this section, the term “eligible holder” shall mean a holder, insurer or guarantor of
a first mortgage on a unit which has requested notice in accordance with the provisions of section
12.1 (b).
(b) A holder, insurer or guarantor of a first mortgage, upon written request to the Association, will
be entitled to timely written notice of any proposed amendment of the Declaration effecting a
change in the boundaries of any unit or the exclusive easement rights appertaining thereto, the
interests in the common property or the liability for common expenses appertaining thereto, the
number of votes in the Association appertaining to any unit, or the purposes to which any unit or
the common property are restricted; any proposed termination of the administration of the
common property pursuant to this Declaration; any condemnation loss or any casualty loss which
affects a material portion of the property or which affects any unit on which there is a first mortgage
held, insured or guaranteed by such eligible holder; any delinquency in the payment of
assessments or charges owed by an owner of a unit subject to a first mortgage held by such
eligible holder which remains uncured for a period of 60 days; any lapse, cancellation, or material
modification of any insurance policy or fidelity bond maintained by the Association; any proposed
action which would require the consent of a specified percentage of eligible holders, as specified
herein; and an annual financial statement, or audit if available, of the Association for the preceding
fiscal year, free of charge.
(c) To the extent permissible under the law of the state of {state}, the following provisions shall
apply:
● Any restoration or repair of the common property after a partial condemnation or damage
due to an insurable hazard shall be substantially in accordance with the Declaration and
the original plans and specifications unless the approval of the eligible holders of the first
mortgages on units to which at least 51% of the votes of units subject to mortgages held
by such eligible holders are allocated, is obtained.
● Any election to terminate the administration of the common property pursuant to this
Declaration after substantial destruction or a substantial taking in condemnation of the
property must require the approval of the eligible holders of first mortgages on units to
which at least 51% of the votes of units subject to mortgages held by such eligible holders
are allocated.
(e) The following provisions do not apply to amendments to the constituent documents or
termination of the Association pursuant to section 12.1 (c) hereof made as a result of
destruction, damage or condemnation, or to the addition of land pursuant to any plan of
expansion or phased development previously approved by the Department of Housing
46
and Urban Development or the Veterans Administration, to the extent that such approval
is required by either:
● The consent of owners representing at least {percentage} of Class A votes and of the
Declarant, so long as it holds any land subject to this Declaration, and the approval of the
eligible holders of first mortgages on units to which at least {percentage} of the votes of
units subject to a mortgage appertain, shall be required to terminate the administration of
the property subject to this Declaration.
● The consent of owners representing at least {percentage} of the Class A votes and of the
Declarant, so long as it holds any land subject to this Declaration, and the approval of
eligible holders of first mortgages on units to which at least {percentage} of the votes of
units subject to a mortgage appertain, shall be required to materially amend any provisions
of the Declaration, the bylaws or the Articles of Incorporation, to add any material
provisions thereto, which establish, provide for, govern or regulate any of the following:
○ Voting
○ Assessments, assessment liens or subordination of such items
○ Reserves for maintenance, repair and replacement of the common property
○ Insurance or fidelity bonds
○ Rights to use of the common property
○ Responsibility for maintenance and repair of the several portions of the property
○ Expansion or contraction of the property or the addition, annexation or withdrawal
of land to or from the property
○ Boundaries of any unit
○ Convertibility of units into common property or of common property into units
○ Leasing of units
○ Imposition of any right of first refusal or similar restriction on the right of a unit
owner to sell, transfer, or otherwise convey their unit
○ Establishment of self-management by the Association where professional
management, if any, has been employed
● The approval of eligible holders of first mortgages on units to which at least {percentage}
of the votes of units subject to a mortgage appertain, shall be required to amend any
provisions included in this Declaration, the bylaws, or the Articles of Incorporation which
are for the express benefit of holders or insurers of first mortgages on units.
(e) The provisions of this section shall not be constructed to reduce the percentage vote that must
be obtained from mortgagees of unit owners where a larger percentage vote is otherwise required
by applicable law or in any other provision in the Declaration, the bylaws, or the Articles of
Incorporation for any of the actions contained in this section.
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12.2 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 2/3 of the first mortgagees or
at least 2/3 of the total members of the Association entitled to vote thereon consent, the
Association shall not:
● 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).
● Change the method of determining the obligations, assessments, dues, or other charges
which may be levied against an owner of a residence.
● 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 units and residences and of the common property.
● Fail to maintain insurance, as required by this Declaration.
● 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
may or 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.
12.3 No Priority.
No provision of this Declaration of the bylaws gives or shall be constructed as giving any owner
or other party priority over any rights of the first mortgagee of any residence in the cases of
distribution to such owner of insurance proceeds or condemnation awards for losses to or taking
of the common property.
12.4 Notice to Association.
Upon request, each owner shall be obligated to provide to the Association the name and address
of the holder of any mortgage encumbering the owner’s residence.
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12.5 Amendment by Board.
Should the Federal National Mortgage Association or Home Loan Mortgage Corporation 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 make an
amendment to this article that reflects such changes.
12.6 Applicability of Article XII.
Nothing contained in this article shall be constructed to reduce the percentage vote that must
otherwise be obtained under the Declaration, bylaws, or state law for any of the acts set out in
this article.
12.7 Failure of Mortgagee to Respond.
Any mortgagee who receives a written request from the board to respond to or consent to any
action shall be deemed to have approved the action if the Association does not receive a written
response from the mortgagee within {number} days from the date of the Association’s request.
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ARTICLE XIII. INSURANCE AND CASUALTY LOSS
13.1 Insurance on Common Property.
The board of directors, or the duly authorized agent of the Association shall have the authority
and shall obtain insurance for all insurable improvements whether or not located on the common
property, if any, which the Association is obligated to maintain against loss or damage by fire for
the full insurance replacement cost thereof, and may obtain insurance against such other hazards
and casualties as the Association deems necessary. The insurance, if obtained, must at least
provide fire and extended coverage, including vandalism and malicious mischief, and shall be in
an amount that the board sees fit. The Association may also insure any other property owned by
the Association, against other loss or damage, with the Association as the owner and beneficiary
of such insurance.
Insurance coverage with respect to common property shall be written in the name of, and the
proceeds thereof, shall be payable to the Association. Insurance proceeds shall be used by the
Association for the repair or replacement of the property for which the insurance was carried.
Premiums for all insurance carried by the Association are common expenses included in the
maintenance assessments levied by the Association.
In addition to casualty insurance on the common property, the board of directors may elect to
obtain and continue in effect, on behalf of all owners, adequate blanket casualty and fire insurance
in such form as the board of directors deems appropriate in an amount equal to the full
replacement value, without deduction for depreciation or co-insurance, of all of the units, including
the structural portion and fixtures thereof. Premiums paid by the Association from any such
blanket insurance coverage shall be a common expense of the Association to be included in the
maintenance of assessments of the owners, as levied by the Association. The insurance coverage
with respect to the units shall be written in the name of, and the proceeds thereof shall be payable
to the Association as trustee for the owners. The board shall also obtain such additional amounts
and types of insurance as may be required from time to time by either the Veterans Administration
or Federal Housing Administration, their successors and assigns, for similar types of residential
subdivision communities.
The board shall obtain a public liability policy applicable to the common property covering the
Association and its members for all damage or injury caused by the negligence of the Association
or any of its members, and if reasonably available, directors’ and officers’ liability insurance. The
amount of the liability policy shall be determined by the board.
All insurance obtained by the board shall be governed by the following provisions:
(a) All policies shall be written with a company authorized to do business in {state}.
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(b) Exclusive authority to adjust losses under policies obtained by the Association shall be vested
in the Association’s board. No mortgagee having an interest in such losses may be prohibited
from participating in the settlement negotiations.
(c) In no event shall the insurance coverage obtained and maintained by the board 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 casualty insurance policies shall have an inflation guard endorsement and an agreed
amount endorsement if these are reasonably available. All insurance policies shall be reviewed
annually by at least one individual who is in the real estate industry and familiar with construction
in the county.
(e) The board shall be required to make every reasonable effort to secure insurance policies that
will provide:
● A waiver of subrogation by the insurer as to any claims against the board, its manager,
the owners and their tenants, agents and guests;
● A waiver by the insurer of its rights to repair and reconstruct instead of paying cash;
● That no policy may be canceled, subject to non-renewal, invalidated, or suspended on
account of any defect or the conduct of any director, officer or employee of the Association,
or its authorized manager, without prior demand in writing delivered to the Association to
fix the defect or to stop the conduct, and the allowance of a reasonable time thereafter
within which a resolution may be implemented by the Association, its manager, an owner
or mortgagee;
● That any other insurance clause in any policy exclude individual owners’ policies from
consideration; and
● That no policy may be canceled, subject to nonrenewal or substantially modified without
at least {number} days’ prior written notice to the Association.
In addition to other insurance required by this section, the board shall obtain worker’s
compensation insurance, and a fidelity bond (or bonds) on directors, officers, employees, and
other persons handling or responsible for the Association’s funds, if reasonably available. If
obtained, the amount shall be determined by the board and shall equal at least 3 months’
assessments plus reserves on hand. Bonds shall contain a waiver of all defenses based upon the
exclusion of persons serving without compensation and may not be canceled, subject to
nonrenewal or substantially modified without at least {number} days’ prior written notice to the
Association.
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13.2 Owner Insurance.
It is the responsibility of each owner to obtain insurance at their own expense.
13.3 Damage and Destruction Covered by Association.
After damage or destruction caused by fire or other casualty to any or all portion of any property
covered by insurance written in the name of the Association, the board 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.
Any damage or destruction covered by insurance written in the name of the Association shall be
repaired or reconstructed unless, within 60 days of the casualty, at least {percentage} of the
members of the Association eligible to vote agree not to repair or reconstruct. If the amount of the
insurance proceeds to be paid, or reliable and detailed estimates of the repair costs (or both) are
not made available to the Association within such a period, then the period shall be extended until
such information is made available. However, the extension shall not exceed 60 days. No
mortgagee shall have the right to participate in the determination of whether damage or
destruction shall be repaired or reconstructed.
If the proceeds are not enough to cover the damage, the board shall, without the necessity of a
vote from members, levy a special assessment against owners in proportion to the number of
units belonging to each owner. Additional assessments may be made in a similar fashion at any
time during or following the completion of any repair or reconstruction. Any excess funds from the
insurance shall be deposited to the benefit of the Association.
If the Association votes not to move forward with a repair or reconstruction, and no alternative
improvements are authorized, in that event, the affected portion of the Development shall be
maintained by the Association in a neat and attractive fashion.
13.4 Damage and Destruction Covered by Owner.
Damage or destruction by fire or other casualty to all or any portion of property on a unit shall be
repaired by the owner within {number} days after the damage has occurred. If repairs cannot be
completed by this time, they shall be completed within a reasonable time thereafter. Alternatively,
the owner may wish to demolish the affected portion of the unit and remove the debris within
{number} days after the damage occurred. In the event of noncompliance with this provision, the
board shall have all enforcement and abatement powers specified in this Declaration.
13.5 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
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any declaration or contract requiring the Association to obtain such insurance, for maintenance
of the destroyed property.
13.6 Annual Review of Policies.
All insurance policies shall be reviewed annually by the board. Board members will determine
whether the coverage contained in the policies is sufficient to cover future repairs and
replacements of the property that are damaged or destroyed.
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ARTICLE XIV. MISCELLANEOUS
14.1 Severability.
A determination by a court that any provision hereof is invalid for any reason shall not affect the
validity of any other provision in the Declaration.
14.2 No Liability.
Declarant has, using best efforts and all due diligence, prepared and recorded this Declaration so
that each and every owner shall have the right and power to enforce the terms and provisions of
this Declaration against every other owner. However, in the event that this Declaration is
unenforceable by an owner, or any other person in a court of law, Declarant shall have no liability
of any kind as a result of such unenforceability. Each and every owner, by acceptance of a deed
conveying a unit, acknowledges that Declarant shall have no such liability.
14.3 Notices.
All amendments, notices, requests, objections, waivers, rejections, agreements, approvals,
disclosures, or consents of any kind made pursuant to this Declaration, shall be in writing. All such
writings shall be sufficient if personally delivered or if deposited in the United States mail, with
sufficient postage, and sent to the following addresses:
Declarant – 10808 S. River Front Pkwy, South Jordan, UT 84095
Owners – Each owner’s address as registered with the Association in accordance with the bylaws.
If no such address has been registered, direct mail to the owner's last known address.
The Declarant reserves the right to change its address by filing an amendment to this Declaration
specifying its new address in the Deed Records of Madison County, Idaho
Any written communication mailed in accordance with this section shall be deemed received on
the 3rd business day following the day such written notice is deposited in the U.S. mail.
14.4 Books and Records.
(a) Inspections by members and mortgagees. This Declaration, the bylaws, copies of rules and
use restrictions, membership register, books of account, and minutes of meetings shall be made
available for inspection and copying by any member of the Association or their appointed agent,
holder, insurer or guarantor of any first mortgage at any reasonable time, and for a purpose
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reasonably related to their interest as a member. Documents shall be reviewed and copied at the
office of the Association, or at such other reasonable place as the board deems appropriate.
(b) Rules. The board shall establish reasonable rules with respect to the notice that must be given
to the custodian of the records, the hours and days when inspections can be made, and costs for
making copies of the documents.
(c) Inspection by directors. Every director shall have the right to inspect all books, records, and
documents of the Association, and the physical properties owned or controlled by the Association.
Directors may make copies of documents at the reasonable expense of the Association.
14.5 Merger or Consolidation.
Upon a merger or consolidation of the Association with another association, its property, rights
and obligations may be transferred to a surviving or consolidated association. The property, rights
and obligations of another association may similarly be transferred to the properties of the
Association as a surviving corporation pursuant to a merger. The surviving association may
administer the Covenants contained herein within the property, together with the covenants and
restrictions established upon any other properties as one plan.
No such merger or consolidation shall be effective unless first approved by the Association’s
board and the members entitled to cast at least 2/3 of the votes of each class of members. During
any period in which Declarant retains the right to appoint and remove directors, Declarant may
enter into a merger or consolidation of the Association in its sole discretion without approval from
members or mortgagees.
14.6 Notice of Sale or Lease.
In the event that an owner sells or leases their unit, the owner shall give the Association written
notice, prior to the effective date of such sale or lease, that details the name of the purchaser or
lessee of the unit, and other information that the board may reasonably require.
14.7 Agreements.
Subject to the prior approval of Declarant (so long as the Class B Membership exists), all
agreements and determinations, including settlement agreements regarding litigation involving
the Association, representatives, successors, assigns, and others having an interest in the
Development or the privilege of possession and enjoyment of any part of the Development.
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14.8 Implied Rights.
The Association may exercise any right or privilege given to it expressly by this Declaration, the
bylaws, the Articles of Incorporation, or any rule or regulation, 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.
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IN WITNESS THEREOF, the Declarant has caused this Declaration to be duly executed and
sealed this 26th day of March, 2026
Signed, sealed, and delivered in the presence of: {Developer’s Name}
______________________________________ By: __________________________
Witness {Name and Title}
{Corporate Seal}
______________________________________
Notary Public Signature and Stamp