HomeMy WebLinkAboutDeclaration of CovenantsDECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR THE ASHMOOR PROPERTY OWNERS
ASSOCIATION
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TABLE OF CONTENTS
PAGE
Recitals.................................................................................................................................1
Terms....................................................................................................................................1
ARTICLE I – DEFINITIONS..............................................................................................2
Section 1.1. “Assessment”........................................................................................... 2
Section 1.2. “Association”........................................................................................... 2
Section 1.3. “Board”.................................................................................................... 2
Section 1.4. “Committee”............................................................................................ 2
Section 1.5. “Common Area(s)”.................................................................................. 2
Section 1.6. “Common Expenses”...............................................................................2
Section 1.7. "Declarant"...............................................................................................2
Section 1.8. "Development Period”............................................................................. 2
Section 1.9. "Development Statement......................................................................... 2
Section 1.10. “Dwelling Unit”.......................................................................................2
Section 1.11. "HOA Act"...............................................................................................2
Section 1.12. “Easement Area”......................................................................................3
Section 1.13. “Lake” or “Lakes”................................................................................... 3
Section 1.14. “Lot” or “Lots”........................................................................................ 3
Section 1.15. “Member”................................................................................................ 3
Section 1.16. “Owner”................................................................................................... 3
Section 1.17. “Supplemental Declaration”.................................................................... 3
ARTICLE II – DEVELOPMENT OF THE REAL ESTATE.............................................. 3
Section 2.1. Development of the Real Estate...............................................................3
Section 2.2. Public Streets........................................................................................... 4
Section 2.3. Development of Additional Property.......................................................4
Section 2.4. Annexation of Additional Real Estate by Members................................ 4
Section 2.5. Withdrawal of Property............................................................................4
ARTICLE III – PROPERTY RIGHTS AND EASEMENTS..............................................4
Section 3.1. General.....................................................................................................4
Section 3.2. Owner’s Easement of Enjoyment............................................................ 5
Section 3.3. Easement for Declarant............................................................................5
Section 3.4. Drainage, Utility and Sewer Easements ................................................. 7
Section 3.5. Landscape Easements.............................................................................. 8
Section 3.6. Tree Preservation Areas and Easements..................................................8
Section 3.7. Medians and Entry Features.................................................................... 9
Section 3.8. Sales and Construction Offices................................................................9
Section 3.9. Maintenance Easement............................................................................ 9
ARTICLE IV – ORGANIZATION AND DUTIES OF ASSOCIATION........................... 9
Section 4.1. Organization of Association.................................................................... 9
Section 4.2. General Duties of the Association......................................................... 10
Section 4.3. Insurance................................................................................................ 11
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Section 4.4. Owners’ Insurance Requirements..........................................................12
Section 4.5. Condemnation or Destruction................................................................12
Section 4.6. Transfer of Control Association.............................................................13
Section 4.7. Interim Advisory Committee.................................................................13
Section 4.8. Mortgagees’ Rights................................................................................13
ARTICLE V – ASSESSMENTS....................................................................................... 14
Section 5.1. Purpose of Assessments.........................................................................14
Section 5.2. Deficit.................................................................................................... 14
Section 5.3. Basis For Assessment............................................................................ 15
Section 5.4. Liability..................................................................................................14
Section 5.5. Subordination of a Lien to Mortgage.....................................................15
Section 5.6. Pro Rata Share....................................................................................... 15
Section 5.7. Basis of Annual Assessments............................................................... 16
Section 5.8. Annual Assessments.............................................................................. 15
Section 5.9. One Time Assessments.......................................................................... 15
Section 5.10. Reserve Assessments............................................................................. 16
Section 5.11. Basis of Special Assessments................................................................ 17
Section 5.12. Violation Assessment.............................................................................16
Section 5.13. Fiscal Year; Date of Commencement of Assessments; Due Date
16
Section 5.14. Duties of the Association Regarding Assessments................................17
Section 5.15. Notice and Due Date..............................................................................17
Section 5.16. Collection...............................................................................................17
Section 5.17. Effect of Non-Payment of Assessment; Remedies of Association
17
Section 5.18. Adjustments........................................................................................... 18
ARTICLE VI – ARCHITECTURAL STANDARDS AND REQUIREMENTS
............................................................................................................................................18
Section 6.1. Purpose...................................................................................................18
Section 6.2. Architectural Control Committee.......................................................... 19
Section 6.3. Architectural Approval.......................................................................... 20
Section 6.4. Non-Vegetative Landscaping Approval.................................................21
Section 6.5. Approval Not a Guarantee..................................................................... 21
Section 6.6. Building Restrictions............................................................................. 22
ARTICLE VII – USE RESTRICTIONS........................................................................... 22
Section 7.1. Standards and Restrictions.....................................................................22
Section 7.2. Use of Lots.............................................................................................22
Section 7.3. Diligence in Construction...................................................................... 22
Section 7.4. Associations' Rights to Perform Certain Maintenance.......................... 22
Section 7.5. Unsightly or Unkempt Conditions.........................................................23
Section 7.6. Maintenance of Lots and Improvements............................................... 23
Section 7.7. Awnings and Window Screens...............................................................24
Section 7.8. Signs.......................................................................................................24
Section 7.9. Minimum Square Footage..................................................................... 24
Section 7.10. Parking and Prohibited Vehicles............................................................24
Section 7.11. Animals and Pets................................................................................... 25
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Section 7.12. Quiet Enjoyment.................................................................................... 25
Section 7.13. Antennas, Aerials and Satellite Dishes..................................................25
Section 7.14. Garbage Cans, Tanks, Etc...................................................................... 26
Section 7.15. Pools.......................................................................................................26
Section 7.16. Storage Sheds and Temporary Structures.............................................. 26
Section 7.17. Drainage, Water Wells and Septic Systems........................................... 27
Section 7.18. Traffic Regulation and Sight Distance at Intersections......................... 27
Section 7.19. Utility Lines........................................................................................... 27
Section 7.20. Clotheslines............................................................................................27
Section 7.21. Air Conditioning Units.......................................................................... 27
Section 7.22. Mailboxes...............................................................................................28
Section 7.23. Solar Panels............................................................................................28
Section 7.24. Homeowner Landscape Requirement....................................................28
Section 7.25. Seeding of Yards.................................................................................... 28
Section 7.26. Exterior Flags and Sculpture..................................................................28
Section 7.27. Driveways and Sidewalks......................................................................28
Section 7.28. Fences.................................................................................................... 29
Section 7.29. Business Uses.........................................................................................30
Section 7.30. Basketball Goals; Tennis, Racquetball and Paddleball Courts..............31
Section 7.31. Playground Equipment.......................................................................... 31
Section 7.32. On-Site Fuel Storage..............................................................................32
Section 7.33. Continguous Lots...................................................................................32
Section 7.34. Control of Lakes and Common Areas................................................... 32
Section 7.35. Laws and Ordinances.............................................................................34
Section 7.36. Sales and Construction...........................................................................34
Section 7.37. Occupants Bound...................................................................................34
ARTICLE VIII – RULEMAKING AND REMEDIES FOR ENFORCEMENT.............. 34
Section 8.1. Rules and Regulations........................................................................... 34
Section 8.2. Authority and Enforcement................................................................... 35
ARTICLE IX GENERAL PROVISIONS......................................................................... 36
Section 9.1 Term....................................................................................................... 36
Section 9.2. Amendment............................................................................................36
Section 9.3. Indemnification......................................................................................37
Section 9.4. Interpretation..........................................................................................37
Section 9.5. Right of Entry........................................................................................ 37
Section 9.6. Perpetuities.............................................................................................38
Section 9.7. Litigation................................................................................................38
Section 9.8. Notice of Sale or Transfer of Title......................................................... 38
Section 9.9. Gender and Grammar.............................................................................38
Section 9.10. Severability............................................................................................ 38
Section 9.11. Right of Third Parties............................................................................ 38
Section 9.12. Headings................................................................................................ 39
Section 9.13. Controlling Document........................................................................... 39
Section 9.14. Waiver.................................................................................................... 39
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
THE ASHMOOR PROPERTY OWNERS ASSOCIATION
THIS DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS FOR THE ASHMOOR PROPERTY OWNERS ASSOCIATION, dated
as of the ____ day of ______, 2015, is made by RH of Indiana, L.P., an Indiana limited
partnership (“Declarant”).
RECITALS:
A. Declarant is the purchaser and owner of all of the land contained in the
area described on Exhibit A attached hereto and made a part hereof (the “Real Estate”),
which lots and land will be subdivided for the development of Ashmoor, a single family
housing development in Hamilton County, Indiana (the “Development”), and will be
more particularly described on the plats to be recorded in the Office of the Recorder of
Hamilton County, Indiana (collectively, the “Plat”).
B. As provided herein, Declarant has retained and reserved the right,
privilege and option to submit to the provisions of this Declaration at a later time, and
from time to time as a part of the Development of additional property, and has retained
and reserved the right to withdraw and remove, any portion of the Real Estate from the
control and provisions of this Declaration.
C. Declarant will sell and convey all or certain of the residential lots situated
within the platted areas of the Development and before doing so desires to subject and
impose upon all real estate within the platted areas of the Development mutual and
beneficial restrictions, covenants, conditions and charges contained herein and as set
forth in the Plat (the “Declaration” or “Restrictions”) under a general plan or scheme of
improvement for the benefit and complement of the lots and land in the Development and
future owners thereof.
TERMS:
NOW, THEREFORE, Declarant, for itself, its successors and assigns in title to the
Real Estate, hereby declares that all of the Real Estate located within the Development is
held and shall be held, conveyed, hypothecated or encumbered, leased, rented, used,
occupied and improved, subject to the Restrictions, all of which are declared and agreed
to be in furtherance of a plan for the improvement and sale of said lots and land in the
Development, and are established and agreed upon for the purpose of enhancing and
protecting the value, desirability and attractiveness of the Development as a whole and of
each of said lots situated therein, all of the Restrictions shall run with the land and shall
be binding upon Declarant and upon the parties having or acquiring any right, title or
interest, legal or equitable, in and to the Real Estate or any part or parts thereof subject to
the Restrictions, and shall inure to the benefit of Declarant’s successors in title to any
Real Estate in the Development.
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ARTICLE I
The following are the definitions of the terms used in this Declaration:
Section 1.1. “Assessment” shall mean the share of the Common
Expenses imposed on each Lot or other special Assessments, as determined and
levied pursuant to the provisions of Article V hereof.
Section 1.2. “Association” shall mean the Ashmoor Property Owners
Association, or an entity of similar name, its successor and assigns, which shall be
created as an Indiana nonprofit corporation formed or to be formed under the
Indiana Nonprofit Corporation Act of 1991, as amended.
Section 1.3. “Board” shall mean the Board of Directors of the
Association.
Section 1.4. “Committee” shall mean the Architectural Control
Committee which shall be appointed by the Board and have such duties as
provided in Article VI hereof.
Section 1.5. “Common Area(s)” shall mean those areas and all
improvements located therein or thereon which are identified on the Plat.
Section 1.6. “Common Expenses” shall mean the actual and estimated
cost to the Association of the costs for maintenance, management, operation,
repair, improvement and replacement of the Common Areas, and any other cost or
expense incurred by the Association for the benefit of the Common Areas or for
the benefit of the Association or the Development.
Section 1.7. “Declarant” shall mean RH of Indiana, LP and its
successors and assigns in title to the Real Estate.
Section 1.8. “Development Period” shall mean the period of time
during which Declarant owns at least one (1) lot in the Development. If the
Declarant shall at any time subject additional property to the provisions of this
Declaration, as provided in Section 2.3 hereof, the definition of the Real Estate
shall then be expanded to include the additional property and thus the
Development shall include the additional property.
Section 1.9. “Dwelling Unit” shall mean and refer to any structure (or
portion thereof) designed or intended for use and occupancy as a residence by one
(1) family on a Lot located within the Development, irrespective of whether such
dwelling is detached or attached to another Dwelling Unit.
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Section 1.10. “Easement Area” shall mean any portion of the Real
Estate which is subject to an easement as more particularly described in Article
III hereof.
Section 1.11. “HOA Act” shall mean Article 32.25.5 of the Indiana
Code.
Section 1.12. “Lake” or “Lakes” shall mean and refer to the water
retention pond(s) or lake(s), whether or not such are also a Common Area,
together with the shoreline area thereof, as shown on the Plat.
Section 1.13. “Lot” or “Lots” shall mean any parcel(s) of the Real
Estate (excluding the Common Areas) which are designated and intended for use
as a building site, or developed and improved for use as a single family residence
identified by number on the Plat. No Lot shall be further subdivided for
development purposes, except as may be reasonably necessary to adjust for minor
side or rear yard encroachments or inconsistencies.
Section 1.14. “Member” shall mean any person or entity holding
membership in the Association.
Section 1.15. “Owner” shall mean the record owner, whether by one or
more persons, of the fee simple title to any Lot, but excluding those persons
having such interest merely as security for the performance of an obligation.
Section 1.16. “Supplemental Declaration” shall mean an amendment or
supplement to this Declaration or a Plat executed by or consented to by Declarant
or by the Association pursuant to Article II hereof and recorded in the public
records of the county in which the Declaration was originally recorded, which
subjects additional real estate to this Declaration and/or imposes, expressly or by
reference, additional restrictions and obligations on the Real Estate or the land
described therein. A Supplemental Declaration may also remove any portion of
the Real Estate then owned by Declarant from the control and provisions of this
Declaration.
ARTICLE II
DEVELOPMENT OF THE REAL ESTATE
Section 2.1. Development of the Real Estate. All Lots shall be and are
hereby restricted exclusively to single-family residential use and shall be subject
to the standards and restrictions set forth in this Declaration. Declarant shall have
the right, but not the obligation, during the Development Period, to submit
additional real estate to or exclude any portion of the Real Estate from the
provisions of this Declaration, and to make and maintain improvements, repairs
and changes to any Common Area and all Lots owned by Declarant, including,
without limitation: (a) installation and maintenance of improvements in and to the
Common Areas; (b) changes in the location of the boundaries of any Lots owned
by Declarant or of the Common Areas; (c) installation and maintenance of any
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water, sewer, and other utility systems and facilities; (d) installation of security or
refuse systems; and/or (e) additions or changes to the boundaries of any Common
Area or Easement Area.
Section 2.2. Public Streets. The streets and public rights-of-way shown
on the Plat are, upon recording of the Plat, dedicated to the public use, to be
owned and maintained by the governmental body having jurisdiction, subject to
construction standards and acceptance by such governmental body. All Lots shall
be accessed from the interior streets of the Development.
Section 2.3. Development of Additional Property. Declarant hereby
reserves the right and option, to be exercised at its sole discretion and without
further approval by any party, to subject at any time and from time to time during
the Development Period, additional real estate to the provisions of this
Declaration.
Section 2.4. Annexation of Additional Real Estate by Members.
After the Development Period, the Association may annex additional real
property into the provisions of this Declaration and jurisdiction of the
Association. Such annexation shall require the affirmative vote of at least two-
thirds (2/3) of the Members. Annexation by the Association shall be
accomplished by the appropriate filing of record of a Supplemental Declaration
describing the property being annexed. Any such Supplemental Declaration shall
be signed by the President and the Secretary of the Association and by the owner
of the property being annexed and any such annexation shall be effective upon
filing unless otherwise provided therein.
Section 2.5. Withdrawal of Property. Declarant hereby reserves the
right and option during the Development Period, to be exercised at its sole
discretion and without further approval by any party, to withdraw and remove any
portion of the Real Estate then owned by Declarant from the control and
provisions of this Declaration. Such removal by Declarant shall be carried out
generally by the execution and filing of a Supplemental Declaration or other
document which shall be filed in the public records of county in which the
Declaration was originally recorded, together with a legal description of the Real
Estate being withdrawn.
ARTICLE III
PROPERTY RIGHTS AND EASEMENTS
Section 3.1. General. Each Lot shall for all purposes constitute real
property which shall be owned in fee simple and which, subject to the provisions
of this Declaration, may be conveyed, transferred, and encumbered the same as
any other real property. The Owner of any Lot subject to this Declaration, by
acceptance of a deed conveying title thereto, or the execution of a contract for the
purchase thereof, whether from Declarant or a subsequent Owner of such Lot,
shall accept such deed and execute such contract subject to each and every
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restriction and agreement herein contained. By acceptance of such deed or
execution of such contract, the new Owner acknowledges the rights and powers of
Declarant with respect to this Declaration and also for itself, its heirs, personal
representatives, successors and assigns. Each Owner shall be entitled to the
exclusive ownership and possession of his Lot subject to the provisions of this
Declaration, including, without limitation, the provisions of this Article III. The
ownership of each Lot shall include, and there shall pass with each Lot as an
appurtenance thereto, whether or not separately described, a non-exclusive right
and easement of enjoyment in and to the Common Areas as established hereunder
and membership in the Association. Each Owner shall automatically become a
Member of the Association and shall remain a Member thereof until such time as
his ownership ceases for any reason, at which time his membership in the
Association shall automatically pass to his successor-in-title. Lots shall not be
subdivided by any Owner and the boundaries between Lots and between the
Development and other neighborhoods shall not be relocated, unless the
relocation thereof is made with the approval of the Board and, during the
Development Period, of Declarant.
Section 3.2. Owner’s Easement of Enjoyment. Every Owner, his
family, tenants, and guests shall have a non-exclusive right and easement of use
and enjoyment in and to the Common Areas, such easement to be appurtenant to
and to pass with title to each Lot, subject to the provisions of this Declaration and
the rules, regulations, fees, and charges from time to time established by the
Board in accordance with the By-Laws of the Association (“By-Laws”) and
subject to the following provisions:
(a) The right of the Association to mortgage all or any portion
of the Common Areas for the purpose of securing a loan of money to be
used to manage, repair, maintain, improve, operate or expand the Common
Areas.
(b) The easements reserved elsewhere in this Declaration or in
any Plat of all or any part of the Real Estate, and the right of the
Association to grant and accept easements as provided in this Article III.
The location of any improvements, trees or landscaping within an
Easement Area is done at the Owner’s risk and is subject to possible
removal by the Association or the grantee of such easement.
(c) The right of the Association to dedicate or transfer fee
simple title to all or any portion of the Common Areas to any appropriate
public agency or authority, public service district, public or private utility,
or other person, provided that any such transfer of the fee simple title must
be approved by Declarant during the Development Period or thereafter a
majority vote of the Members as provided in the By-Laws.
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(d) The rights of the Association and Declarant reserved
elsewhere in this Declaration or as provided in any Plat of all or any part
of the Real Estate.
(e) The rights of the holder of any mortgage which is prior in
right or superior to the rights, interests, options, licenses, easements, and
privileges herein reserved or established.
Section 3.3. Easement for Declarant.
(a) During the Development Period, Declarant shall have an
easement for access to the Real Estate, including any and all Lots and any
and all Common Areas, for the purpose of constructing structures and
other improvements in, on, to or for the Lots and Common Areas, and for
installing, maintaining, repairing, and replacing such other improvements
to the Real Estate (including any portions of the Common Areas) as are
contemplated by this Declaration or as Declarant desires, in its sole
discretion, including, without limitation, any improvements or changes
permitted and described by Article II hereof, and for the purpose of doing
all things reasonably necessary and proper in connection therewith,
provided in no event shall Declarant have the obligation to do any of the
foregoing. In addition to the other rights and easements set forth herein
and regardless of whether Declarant at that time retains ownership of a
Lot, Declarant shall have an alienable, transferable, and perpetual right
and easement to have access, ingress and egress to the Common Areas and
improvements therein and thereon for such purposes as Declarant deems
appropriate, provided that Declarant shall not exercise such right so as to
unreasonably interfere with the rights of Owners in the Development.
(b) In addition to the easement set forth in Section 3.3(a)
above, Declarant hereby retains, reserves and is granted an exclusive
perpetual easement over, above, across, upon, along, in, through, and
under the Utility Easement Areas, as such is defined in Section 3.4 below,
(i) for the purpose of owning, installing, maintaining, repairing, replacing,
relocating, improving, expanding and otherwise servicing any utility or
service, including, without limitation, electricity, gas, sewer, telephone,
television, and computer link by line, wire, cable, main, duct, pipe,
conduit, pole, microwave, satellite or any other transfer or wireless
technology, and any related equipment, facilities and installations of any
type bringing such utilities or services to each Lot or Common Area; (ii)
to provide access to an ingress and egress to and from the Real Estate for
the purposes specified in subsection (i) above; and (iii) to make
improvements to and within the Real Estate to provide for the rendering of
public and quasi-public services to the Real Estate. The easements, rights
and privileges reserved to Declarant under this Section 3.3(b) shall be
transferable by Declarant to any person or entity solely at the option and
benefit of Declarant, its successors and assigns, and without notice to or
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the consent of the Association, the Owners, or any other person or entity.
Declarant may at any time and from time to time grant similar or lesser
easements, rights, or privileges to any person or entity. By way of
example, but not by limitation, Declarant and others to whom Declarant
may grant such similar or lesser easements, rights or privileges, may so
use any portion of the Real Estate to supply exclusive telecommunications
services to each Lot. The easements, rights, and privileges reserved under
this Section shall be for the exclusive benefit of Declarant, its successors
and assigns and may not be impaired, limited, transferred, sold or granted
to any person or entity by the Association or any of the Owners.
Section 3.4. Drainage, Utility and Sewer Easements.
(a) There is hereby reserved for the benefit of Declarant, the
Association, and their respective successors and assigns, the perpetual
right and easement, as well as the power, to hereafter grant and accept
nonexclusive easements to and from any of the following providers and
their respective successors and assigns, upon, over, under, and across (i)
all of the Common Areas, and (ii) those portions of all Lots designated on
the Plat as “D & UE”, “DE”, “Var. DE” or any other combination thereof
and as otherwise are reasonably necessary (such areas herein referred to
collectively as the “Utility Easement Areas”) for installing, replacing,
repairing, and maintaining the following specified services, and no other:
Specific Service
Electricity
Water
Sewer
Natural Gas
Internet
Telephone
Cable
Declarant, the Association, and their successors and assigns shall also
have the perpetual right and easement, as well as the power to hereafter grant and
accept nonexclusive easements within the Utility Easement Areas to and from any
public authority or agency, public service district, public or private utility or other
person for the purpose of installing, replacing, repairing, maintaining, and using
storm sewers, drainage systems, and retention ponds and facilities for the
Development or any portion thereof. Any other grant or acceptance of any
easement other than those specified above for any other utility service, including,
without limitation, master television antenna and/or cable systems, security and
similar systems, shall be made by Declarant in accordance with the rights
reserved to Declarant under Section 3.3(b) hereof. To the extent possible, all
utility lines and facilities serving the Development and located therein shall be
located underground. By virtue of any such easements and facilities, it shall be
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expressly permissible for the providing utility company or other supplier or
service provider, with respect to the portions of the Development so encumbered,
(i) to erect and maintain pipes, lines, manholes, pumps, and other necessary
equipment and facilities, (ii) to cut and remove any fences, trees, bushes, or
shrubbery, (iii) to grade, excavate, fill, or (iv) to take any other similar action
reasonably necessary to provide economical and safe installation, maintenance,
repair, replacement, and use of such utilities and systems.
(b) Declarant hereby grants to such governmental authority or
agency as shall from time to time have jurisdiction over the Development
with respect to law enforcement and fire protection, the perpetual, non-
exclusive right and easement upon, over and across all the Common Areas
for purposes of performing such duties and activities related to law
enforcement and fire protection in the Development as shall be required or
appropriate from time to time by such governmental authorities under
applicable law.
(c) There shall also be created sanitary sewer easements in
those areas designated on the Plat as Utility Easement Areas, which
easements shall run in favor of Declarant and any governmental or private
entity needing such access for the purpose of installation and maintenance
of the pipes, lines, manholes, pumps and other equipment necessary for
the sanitary sewer system.
Section 3.5. Landscape Easements. Landscape Easements, as may be
designated on a Plat of all or any part of the Real Estate, are hereby created and
reserved for the use of Declarant and the Association, for access to and
installation, maintenance, repair, and replacement of signs, walls, earth mounds,
trees, foliage, landscaping, and other improvements. Except as installed by
Declarant or the Association, no improvements or permanent structures,
including, without limitation, fences, patios, decks, driveways and walkways,
shall be erected or maintained in or upon said Landscape Easements without the
written consent of the Board and provided such are in accordance with all
applicable zoning laws. Notwithstanding the reservation of this easement, the
Owners of Lots subject to a Landscape Easement which does not extend along
adjoining streets or roads shall have the exclusive right to use such area, subject
to any other easement affecting such Lot.
Section 3.6. Tree Preservation Areas and Easements. Tree
preservation areas and easements, as may be designated on a Plat of all or any
part of the Real Estate, are hereby created and reserved. Except as installed by
Declarant or the Association, no improvements or permanent structures,
including, without limitation, fences, patios, decks, driveways and walkways,
shall be erected or maintained in or upon said Tree Preservation Areas and
Easements without the written consent of the Board and provided such are in
accordance with all applicable zoning laws. Additionally, the Declarant and the
Association may not (i) remove any living vegetation other than hazardous, exotic
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and invasive vegetation and hazardous trees from the Tree Preservation Areas and
Easements except what is necessary for the installation and maintenance of paths,
trails, sidewalks, and minor pedestrian area improvements (e.g., benches, trash
receptacles, and creek overlook areas) which must first be approved by the
Planning Director for the City of Carmel, (ii) mow any portion of the existing,
naturally vegetated Tree Preservation Areas and Easements, except for along
trails, points of access or gathering points, (iii) dump leaves or debris from areas
in the Tree Preservation Areas and Easements, and (iv) seed any part of the Tree
Preservation Areas and Easements without approval of the Planning Director for
the City of Carmel. Seeding shall include but not be limited to grass seed, prairie
mix seed, sod or planting of any type of vegetable.
Section 3.7. Medians and Entry Features. There may be landscaped
medians and/or islands located within the Development and within the public
right-of-way of the streets which are not otherwise labeled as Common Areas or
as a Landscape Easement. These areas are created and reserved for installation
and maintenance of landscaping and entry features, including, without limitation,
permanent or temporary walls, signs, fences and landscaping material. These
landscaped areas and features shall be maintained by the Association as if such
were a Common Area.
Section 3.8. Sales and Construction Offices. Notwithstanding any
provisions or restrictions herein to the contrary, during the Development Period,
and for a reasonable time thereafter, there is hereby reserved and created for the
use of Declarant, its successors and assigns, and persons constructing
improvements within the Development, an easement for access to the Real Estate
for the maintenance of signs, sales offices, construction offices, business offices,
and model houses, together with such other facilities as in the sole opinion of
Declarant may be reasonably required, convenient, or incidental to the
completion, improvement and/or sale of Lots and the Common Areas.
Section 3.9. Maintenance Easement. There is hereby reserved and
created for the use of Declarant, the Association and their respective agents,
employees, successors and assigns, a maintenance easement to enter upon any Lot
for the purpose of mowing, removing, clearing, cutting, or pruning underbrush
weeds, stumps or other unsightly growth and removing trash, so as to maintain a
community-wide standard of health, fire safety, and appearance within the
Development, provided that such easements shall not impose any duty or
obligation upon Declarant or the Association to perform any such actions.
ARTICLE IV
ORGANIZATION AND DUTIES OF ASSOCIATION
Section 4.1. Organization of Association. The Association shall be
organized as a nonprofit corporation under the laws of the State of Indiana, to be
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operated in accordance with the Articles of Incorporation which have been filed
or will be filed by Declarant and the By-Laws of the Association, both of which
are incorporated herein by reference. The membership of the Association shall
consist of one class of voting members, with each Member having equal voting
rights. In the event that any one Lot shall be owned by more than one person,
partnership, trust, corporation, or other entity, they shall be treated collectively as
one member for voting purposes, so that as to any matter being considered by the
Association, only one vote appertains to each Lot. Notwithstanding anything
herein to the contrary, during the Development Period, Declarant shall appoint the
Board and elect all officers of the Association, and all actions of the Association
shall otherwise require the prior written approval of Declarant.
Section 4.2. General Duties of the Association. The Association is
hereby authorized to act and shall act on behalf of, and in the name, place, and
stead of, the individual Owners in all matters pertaining to the maintenance,
repair, and replacement of the Common Areas, the determination of Common
Expenses, and the collection of annual and special Assessments. The Association
shall also have the right, but not the obligation, to act on behalf of any Owner or
Owners seeking enforcement of the terms, covenants, conditions and restrictions
contained in the Plat. Neither the Association nor its officers or authorized agents
shall have any liability whatsoever to any Owner for any action taken under color
of authority of this Declaration, or for any failure to take any action called for by
this Declaration, unless such act or failure to act is in the nature of a willful or
reckless disregard of the rights of the Owners or in the nature of willful,
intentional, fraudulent, or reckless misconduct.
(a) Responsibilities of the Association. The Association shall
maintain and keep in good condition and repair the Common Areas,
Lakes, and Landscape Easements. This maintenance shall include, without
limitation, maintenance, repair and replacement of all landscaping and
other flora, structures, play equipment and improvements, including all
private streets situated upon or within the Common Areas, landscaping
easements along the primary roads through the Development, medians and
rights of ways of public streets within the Real Estate, entry features for
the Development, and such portions of any other real property included
within the Common Areas as may be provided in this Declaration or by a
contract or agreement for maintenance with any other person or entity by
the Association. The Association shall also maintain and keep in good
condition and repair the street lights and street signs installed by Declarant
in the Development. The Association may contract for services for the
Development or any part thereof as it deems necessary or advisable.
(b) Maintenance by Owners. Unless specifically identified
herein, each Owner shall maintain and repair the interior and exterior of
his Lot and Dwelling Unit, and all structures, parking areas, lawns,
landscaping, grounds and other improvements comprising the Lot and
Dwelling Unit in a manner consistent with all applicable covenants.
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(c) Association’s Remedies if Owner Fails to Maintain Lot. In
the event Declarant or the Association determines that: (i) any Owner has
failed or refused to properly discharge his obligations with regard to the
maintenance, cleaning, repair, or replacement of items for which is his
responsibility hereunder, or (ii) that the need for maintenance, cleaning,
repair, or replacement which is the responsibility of the Association
hereunder is caused through the willful or negligent act of an Owner or his
family, tenants, guests, or invitees, and is not covered or paid for by
insurance in whole or in part, then in either event, Declarant or the
Association, except in the event of an emergency situation, may give such
Owner written notice of Declarant’s or the Association’s intent to provide
such necessary maintenance, cleaning, repair, or replacement, at the sole
cost and expense of such Owner as the case may be, shall have ten (10)
days within which to complete such maintenance, cleaning, repair or
replacement in a good and workmanlike manner, or in the event that such
maintenance, cleaning, repair or replacement is not capable of completion
within said ten (10) day period, to commence said maintenance, cleaning,
repair or replacement within said ten (10) day period and diligently
proceed to complete the same in a good and workmanlike manner. In the
event of emergency situations or the failure of any Owner to comply with
any provision hereof after such notice, Declarant or the Association may
provide (but shall not have the obligation to so provide) any such
maintenance, cleaning, repair or replacement at the sole cost and expense
of such Owner and said cost shall include administrative costs or other
costs expended to cure each violation, and (together with the cost of
attorneys’ fees, if any, in the enforcement of the Owner’s obligations and
collection of the charge to the Owner) shall become a lien against the
individual Owner’s Lot (with respect to any matter relating to an
individual Owner’s responsibility) and such cost shall become a part of the
costs of the Association (until such time as reimbursement is received
from the individual Lot Owner). In the event that Declarant undertakes
such maintenance, cleaning, repair or replacement, the Association shall
promptly reimburse Declarant for Declarant’s costs and expenses,
including, without limitation, attorneys’ fees and filing fees.
(d) Management Company. The Association may hire a
professional management company to administer the day-to-day
operations of the Association. No contract or agreement for professional
management of the Association, nor any other contract between Declarant
and the Association, shall be for a term in excess of three (3) years. Any
such agreement or contract shall provide for termination by either party
with or without cause and without payment of any termination fee upon
written notice of a minimum of ninety (90) days.
Section 4.3. Insurance. The Association shall maintain in force
adequate public liability insurance protecting the Association against liability for
property damage and personal injury. The Association may maintain in force
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adequate officers and directors insurance covering the officers and directors of the
Association. If appropriate, the Association shall also maintain in force adequate
fire and extended coverage insurance, insuring all Common Areas against fire,
windstorm, vandalism, and such other hazards as may be insurable under a
standard “extended coverage” provision, in an amount equal to the full insurable
value of such improvements and property. The Association shall notify all
mortgagees which have requested notice of any lapse, cancellation, or material
modification of any insurance policy. All policies of insurance shall contain an
endorsement or clause whereby the insurer waives any right to be subrogated to
any claim against the Association, its officers, Board members, Declarant, any
property manager, their respective employees and agents, and the Owners and
occupants, and also waives any defenses based on co-insurance or on invalidity
arising from acts of the insured, and shall cover claims of one or more parties
against other insured parties.
The Association may maintain a fidelity bond indemnifying the
Association, the Board and/or the Owners for loss of funds resulting from
fraudulent or dishonest acts of any director, officer, or employee of the
Association or anyone else who either handles or is responsible for funds held or
administered by the Association, whether or not they receive compensation for
their services. The fidelity bond should cover the maximum amount of funds
which will be in the custody of the Association or its management agent at any
time, but in no event shall such fidelity bond coverage be less than the sum of one
(1) years’ assessment on all Lots in the development, plus the Association’s
reserve funds.
The Association shall cause all insurance policies and fidelity bonds to
provide at least ten (10) days written notice to the Association and all mortgagees
who have requested such notice before the insurance policies or fidelity bonds can
be canceled or substantially modified for any reason.
Section 4.4. Owners’ Insurance Requirements. By virtue of taking
title to a Lot subject to the terms of this Declaration, each Owner covenants and
agrees with all other Owners and with the Association that each Owner shall carry
blanket all-risk casualty insurance on its Lot(s) and structures constructed
thereon. The Board may require all Owners to furnish copies or certificates
thereof to the Association. Each Owner further covenants and agrees that in the
event of a partial loss or damage resulting in less than total destruction of
structures located on any Lot, the Owner shall proceed promptly to repair or to
reconstruct the damaged structure in a manner consistent with the original
construction or such other plans and specifications as are approved in accordance
with Article IX hereof and all applicable zoning, building and other governmental
regulations. The Owner shall pay any costs of repair or reconstruction which are
not covered by insurance proceeds. In the event that a structure is totally
destroyed, the Owner may decide not to rebuild or to reconstruct, in which case
the Owner shall promptly clear the Lot of all debris and return it to substantially
the natural state in which it existed prior to the beginning of construction, and
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thereafter the Owner shall continue to maintain the Lot in a neat, safe and
attractive condition.
Section 4.5. Condemnation or Destruction. In the event that any of
the Common Areas shall be condemned or taken by any public authority, or in the
event the same shall be damaged or destroyed by any cause whatsoever, the
Association shall represent the interests of the Owners in any proceedings,
negotiations, insurance adjustments, settlements, or agreements in connection
with such condemnation, damage, or destruction. Any sums recovered by the
Association shall be applied, first, to the restoration and repair of any Common
Areas condemned, damaged, or destroyed, to the extent such restoration or repair
is practicable, and the balance of such sums shall either be held as a reserve for
future maintenance of the Common Areas or turned over to the Owners in
proportion to their Pro-Rata Shares (as hereinafter defined), whichever may be
determined by a majority vote of the Members of the Association. Each Owner
shall be responsible for pursuing his own action for damages to his Lot, either by
reason of direct damage thereto or by reason of an impairment of value due to
damage to the Common Areas. The Association shall notify all mortgagees of
which it has notice of any condemnation, damage, or destruction of any Common
Areas.
Section 4.6. Transfer of Control of Association. Declarant may, at its
discretion, transfer control of the Association to the Members, and its right to
elect the Board and officers of the Association shall terminate, as soon as is
practical upon the transfer of a number of Lots equal to eighty percent (80%) of
the Lots in the Development (“Transfer Period”); provided, however, that
Declarant may transfer control of the Association at an earlier date at its sole
discretion. Notwithstanding such transfer of control during the Development
Period, all actions of the Association shall continue to require the prior written
approval of Declarant. Declarant shall retain all of its rights and privileges
provided for herein from the Transfer Period until Dwelling Units have been
constructed on all Lots in the Development.
Section 4.7. Interim Advisory Committee. Declarant may, in its sole
discretion, establish and maintain until such time as Declarant shall transfer
control of the Association pursuant to Section 4.6 hereof, an Interim Advisory
Committee (the “Advisory Committee”). If established: (a) the Advisory
Committee shall serve as a liaison between the Owners (other than Declarant) and
the Association, and advise the Association from time to time during such period;
(b) The Advisory Committee shall consist of three (3) members, each of whom
must be an Owner (other than Declarant or an officer, director or employee of
Declarant); (c) The members of the Advisory Committee shall serve without
compensation; (d) The Advisory Committee members shall be elected for a term
of one (1) year by the Owners (other than Declarant) at a meeting thereof called
for such purpose; and (e) The Owners (other than Declarant) may remove any
member of the Advisory Committee with cause, and elect a successor at a
meeting thereof called for such purpose.
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Section 4.8. Mortgagees’ Rights. Any mortgagees of any Lots shall
have the right, at their option, jointly or severally, to pay taxes or other charges
which are in default or which may or have become a charge against the Common
Areas and to pay overdue premiums on hazard insurance policies, or secure new
hazard insurance coverage on the lapse of a policy for the Common Areas, and
mortgagees making such payment shall be owed immediate reimbursement
therefor from the Association. In addition, neither the Owners nor the Association
shall materially impair the right of any mortgagee holding, insuring, or
guaranteeing any mortgage on all or any portion of the Real Estate.
ARTICLE V
ASSESSMENTS
Section 5.1. Purpose of Assessments. The Assessments levied by the
Association shall be used exclusively for the purpose of preserving the values of
the Lots within the Development and promoting the health, safety, and welfare of
the Development and the Owners, users, and occupants of the Real Estate and, in
particular, for the Association’s obligations relating to the improvement,
repairing, operating, and maintenance of the Common Areas, including, without
limitation, the payment of taxes and insurance thereon, enforcement of the
Restrictions, and for the cost of labor, equipment, material, and management
furnished with respect to the Common Areas; provided, that the Association shall
not be responsible for the replacement, repair or maintenance of any Common
Areas which are or hereafter may be dedicated to the public. Each Owner (except
Declarant) hereby covenants and agrees to pay to the Association:
(a) A Pro-Rata Share of the annual Assessment fixed,
established and determined from time to time, as hereinafter provided.
(b) A One Time Assessment, as hereinafter provided.
(c) A Reserve Assessment, as hereinafter provided.
(d) A Pro-Rata Share of any special Assessments fixed,
established and determined from time to time, as hereinafter proved.
(e) A Violation Assessment, as hereinafter provided.
Section 5.2. Deficit. Declarant hereby covenants and agrees to pay to
the Association during the Development Period, but not beyond the Transfer
Period, an amount equal to the difference, if any, between the expenditures of the
Association made pursuant to this Section 5.2 and the aggregate amount of the
annual Assessment collected by the Association.
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Section 5.3. Basis for Assessment.
(a) Each Lot owned by a person, other than Declarant, shall be
assessed at a uniform rate without regard to whether a Dwelling Unit has
been constructed upon the Lot.
(b) Declarant shall at no time be assessed or required to pay
any Assessment of any type.
Section 5.4. Liability for Assessment. Each Assessment, together with
any interest thereon and any cost of collection thereof, including attorneys’ fees,
shall be a charge on each Lot other than Lots owned by Declarant and shall
constitute a lien upon each such Lot from and after the due date thereof in favor
of the Association. Each such Assessment, together with any interest thereon and
any costs of collection thereof, including attorneys’ fees, shall also be the
personal obligation of the Owner of each such Lot at the time when the
Assessment is due.
Section 5.5. Subordination of a Lien to Mortgage. The sale or
transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu
thereof shall extinguish the lien of such Assessment as to payments which
become due prior to such sale or transfer. No sale or transfer shall relieve such
Lot from liability for any Assessments thereafter becoming due or from the lien
thereof, nor shall any sale or transfer relieve any Owner of and from the personal
liability hereby imposed. The personal obligation is expressly assumed by such
successor.
Section 5.6. Pro-Rata Share. The pro-rata share of each Owner for
purposes of this Article V shall be the percentage obtained by dividing one by the
total number of Lots shown on the Plat of the Development (“Pro-Rata Share”).
Section 5.7. Basis of Annual Assessments. The Board shall establish
an annual budget prior to the beginning of each fiscal year, setting forth estimates
of all Common Expenses for the coming fiscal year, together with a reasonable
allowance for contingencies and reserves of the Association. A copy of this
budget shall be mailed or delivered to each Owner prior to the beginning of each
fiscal year of the Association upon request there for. Such budget shall serve as
the basis for establishing the annual Assessments. The Annual Assessment shall
be determined in accordance with procedures set forth in the By-Laws and in
compliance with the HOA act.
Section 5.8. Annual Assessment. The annual Assessment provided for
herein shall be per fiscal year, as established by the Board, and shall commence
for each Lot on the day of closing of the initial conveyance of each Lot by
Declarant or another builder to an Owner other than Declarant or another builder.
The amount of the annual Assessment shall be established by the Board. The
amount of the annual Assessment shall not increase by more than 10% from one
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fiscal year to the next without the approval of a majority of the Members of the
Association.
Section 5.9. One Time Assessment. Upon the closing of the initial
conveyance of each Lot by Declarant or another builder to an Owner other than
Declarant or another builder, the purchaser of such Lot shall pay to the
Association, in addition to any other amounts then owed or due to the
Association, as a contribution to its working capital and start-up fund, two
hundred fifty dollars ($250.00), which payment shall be non-refundable and shall
not be considered as an advance payment of any assessment or other charge owed
to the Association with respect to such Lot. Such working capital and start-up
fund shall be held and used by the Association for payment of or reimbursement
to Declarant for advances made to pay expenses of the Association for its early
period of operation of the Development, to enable the Association to have cash
available to meet unforeseen expenditures, and/or to acquire additional equipment
or services deemed necessary by the Board.
Section 5.10. Reserve Assessment. Upon the closing of the conveyance
of each Lot by an Owner, who is not also the Declarant, to a subsequent Owner,
the purchaser of such Lot shall pay to the Association, in addition to any other
amounts then owed or due to the Association, as a contribution to its working
capital and start-up fund, two hundred fifty dollars ($250.00), which payment
shall be non-refundable and shall not be considered as an advance payment of any
assessment or other charge owed the Association with respect to such Lot. Such
working capital shall be held and used by the Association for payment of or
reimbursement to Declarant for advances made to pay expenses of the
Association for its early period of operation of the Development, to enable the
Association to have cash available to meet unforeseen expenditures, and/or to
acquire additional equipment or services deemed necessary by the Board.
Section 5.11. Basis of Special Assessments. Should the Board at any
time during the fiscal year determine that the Assessments levied with respect to
such year are insufficient to pay the Common Expenses for such year, the Board
may, at any time and from time to time, levy such special Assessments as it may
deem necessary for meeting the Common Expenses. In addition, the Board shall
have the right to levy at any time, and from time to time, one or more special
Assessments for the purpose of defraying, in whole, or in part, any unanticipated
Common Expense not provided for by the annual Assessments.
Section 5.12. Violation Assessment. In addition to all other assessments
authorized or accounted for herein, the Board may levy a Violation Assessment
on an Owner, (i) for an uncured violation of this Declaration, or (ii) for damages,
if any portion of the Common Area that the Association is obligated to maintain,
repair and/or replace is damaged due to the willful or negligent act or omission of
such Owner or Owner’s guest or invitee. In the event of such damage, the Board
shall have the right to undertake the necessary maintenance, repair or
replacement. The choice between repair and replacement is in the sole discretion
17
of the Board. The Violation Assessment shall be a minimum of $150 per
occurrence or the actual total amount expended to cure each violation, whichever
is greater.
Section 5.13. Fiscal Year; Date of Commencement of Assessments;
Due Date. The fiscal year of the Association shall be established by the
Association and may be changed from time to time by action of the Association.
The liability of an Owner, other than Declarant, for Assessments under this
Article V shall commence as of the date such Owner acquires his interest in a Lot.
The first annual Assessment within the Development shall be made for the
balance of the Association’s fiscal year in which such Assessment is made and
shall become due and payable commencing on any date fixed by the Association.
The annual Assessment for each year after the first assessment year shall be due
and payable on the first day of each fiscal year of the Association. Annual
Assessments shall be due and payable in full as of the above date, except that the
Association may from time to time by resolution authorize the payment of such
Assessments in installments.
Section 5.14. Duties of the Association Regarding Assessments.
(a) The Board shall keep proper books and records of the levy
and collection of each annual, one-time, reserve and special Assessment,
including a roster setting forth the identification of each and every Lot and
each Assessment applicable thereto, which books and records shall be kept
by the Association and shall be available for the inspection and copying
by each Owner (or duly authorized representative of any Owner) at all
reasonable times during regular business hours of the Association. The
Board shall cause written notice of all Assessments levied by the
Association upon the Lots and upon the Owners to be mailed or delivered
to the Owners or their designated representatives as promptly as
practicable and in any event not less than thirty (30) days prior to the due
date of such Assessment or any installment thereof. In the event such
notice is mailed or delivered less than thirty (30) days prior to the due date
of the Assessment to which such notice pertains, payment of such
Assessment shall not be deemed past due for any purpose if paid by the
Owner within thirty (30) days after the date of actual mailing or delivery
of such notice.
(b) The Association shall promptly furnish to any Owner or
any mortgagee of any Lot upon request a certificate in writing signed by
an officer of the Association, setting forth the extent to which
Assessments have been levied and paid with respect to such requesting
Owner’s or mortgagee’s Lot. As to any person relying thereon, such
certificate shall be conclusive evidence of payment of any Assessment
therein stated to have been paid. The Association may assess an
administrative fee for each such certificate, not to exceed the sum of
$125.00.
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(c) The Association shall notify any mortgagee from which it
has received a request for notice of any default in the performance by any
Owner of any obligation under the By-laws or this Declaration which is
not cured within sixty (60) days.
Section 5.15. Notice and Due Date. Written notice of special
Assessments and such other Assessment notices as the Board shall deem
appropriate shall be delivered to every Owner subject thereto. The due dates for
all Assessments shall be established by the Board.
Section 5.16. Collection. All Assessments, together with interest
thereon, attorneys’ fees, and other costs of collection thereof, shall be a charge on
the land and shall be a continuing lien upon the Lot against which each
Assessment is made until paid in full. Each Assessment, together with interest
thereon and costs of collection thereof, including attorneys’ fees, shall also be the
personal obligation of the Owner of the Lot at the time when the Assessment
became due.
Section 5.17. Effect of Non-payment of Assessments; Remedies of the
Association.
(a) If any Assessment is not paid on or prior to the date when
due, then such Assessment shall be deemed delinquent and shall, together
with any interest thereon and any cost of collection thereof, including
attorneys’ fees, become a continuing lien on the Lot against which such
Assessment was made, and such lien shall be binding upon and
enforceable as a personal liability of the Owner of such Lot as of the date
of levy of such Assessment, and shall be enforceable against the interest of
such Owner and all future successors and assignees of such Owner in such
Lot, and shall be collected in the same manner as the Assessments
described in subparagraph (b) below; provided, however, that such lien
shall be subordinate to any mortgage on such Lot recorded prior to the
date on which such Assessment becomes due.
(b) If any Assessment upon any Lot is not paid within thirty
(30) days after the due date, such Assessment and all cost of collection
thereof, including attorneys’ fees, shall bear interest at the rate of twelve
percent (12%) per annum until paid in full. The Association may bring an
action in any court having jurisdiction against the delinquent Owner to
enforce payment of the same and/or to foreclose the lien against said
Owner’s Lot, and there shall be added to the amount of such Assessment
all cost of such action, including the Association’s attorneys’ fees,
administrative costs and in the event a judgment is obtained, such
judgment shall include appropriate interest, late fees, costs and attorneys’
fees. Additionally, Owner shall reimburse the Association for all costs,
including administrative costs and filing fees, incurred by the Association
in filing assessment liens against the respective Owner’s Lot.
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(c) Notwithstanding any other provision contained herein, the
Board shall have the right to suspend the voting rights, if any, and the
services to be provided by the Association, together with the right to use
the Common Areas, of any Member.
Section 5.18. Adjustments. In the event that the amounts actually
expended by the Association for Common Expenses in any fiscal year exceed the
amounts budgeted and assessed for Common Expenses for that fiscal year, the
amount of such deficit shall be carried over and become an additional basis for
Assessments for the following fiscal year. Such deficit may be recouped either by
inclusion in the budget for annual Assessments or by the making of one or more
special Assessments for such purpose, at the option of the Association.
ARTICLE VI
ARCHITECTURAL STANDARDS AND REQUIREMENTS
Section 6.1. Purpose. In order to preserve the natural setting and beauty
of the Development, to establish and preserve a harmonious and aesthetically
pleasing design for the Development, and to protect and promote the value of the
Real Estate, the Lots and all improvements located therein or thereon shall be
subject to the restrictions set forth in this Article VI and in Article VII.
Notwithstanding the foregoing, neither this Article nor Article VII shall apply to
the activities of Declarant, nor to construction or improvements or modifications
of or to the Common Areas by or on behalf of the Association. The Board shall
have the authority and standing, on behalf of the Association, to enforce in courts
of competent jurisdiction decisions of the Committee.
Section 6.2. Architectural Control Committee. The Board shall
establish an Architectural Control Committee to consist of three (3) persons, all of
whom shall be appointed by and shall serve at the discretion of the Board.
Members of the Committee may include persons who are not Members of the
Association. Members of the Committee may or may not be members of the
Board. During the Development Period, Declarant shall have all of the powers
and authority of the Committee.
The regular term of office for each member of the Committee shall be one
year, coinciding with the fiscal year of the Association. Any Committee member
appointed by the Board may be removed with or without cause by the Board at
any time by written notice to such appointee, and a successor or successors
appointed to fill such vacancy shall serve the remainder of the term of the former
member. The Committee shall elect a Chairman and Vice Chairman, and the
Chairman, or in his absence, the Vice Chairman, shall be presiding officer at its
meetings. The Committee shall meet upon call of the Chairman, and all meetings
shall be held at such places as may be designated by the Chairman. A majority of
the members of the Committee shall constitute a quorum for the transaction of
business, and the affirmative vote of a majority of those present in person or by
proxy at a meeting of the Committee shall constitute the action of the Committee
20
on any matter before it. The Committee is authorized to retain the services of
consulting architects, landscape architects, urban designers, engineers, inspectors,
and/or attorneys in order to advise and assist the Committee in performing its
functions set forth herein. Such costs associated with the use of consultants shall
be considered a Common Expense, unless the Committee determines that such
costs are the responsibility of the applying Owner.
The Committee shall have exclusive jurisdiction over modifications,
additions or alterations made on or to existing Lots or structures and the open
space, if any, appurtenant thereto. The Committee shall promulgate a Common
Interest and Community Information Disclosure Document (the “CICID”), which
may contain additional architectural standards and guidelines for the
Development. In addition to such standards, the following shall apply: plans and
specifications showing the nature, kind, shape, color, sizes, materials, and location
of such modifications, additions, or alterations shall be submitted to the
Committee for approval as to quality of workmanship and design and as to
harmony of external design with existing structures and location in relation to
surroundings, topography, and finished grade elevation. Nothing contained herein
shall be construed to limit the right of an Owner to remodel the interior of his
Dwelling Unit, or to paint the interior of his Dwelling Unit any color desired. The
Committee shall endeavor to approve or to disapprove such plans or to request
additional information within thirty (30) days after submission of completed
plans, proposals, specifications or drawings. If Owner fails to submit all
requested materials as described, the application shall be considered not approved
after thirty (30) days. Owner may resubmit later for approval. Owner must
complete all work approved by the Committee within 120 days of approval,
unless otherwise approved by the Committee.
Section 6.3. Architectural Approval. To preserve the architectural and
aesthetic appearance of the Development, no construction of improvements of
any nature whatsoever, with the exception of vegetative landscaping, shall be
commenced or maintained by an Owner, other than Declarant, with respect to the
construction of, or affecting the exterior appearance of, any Dwelling Unit or with
respect to any other portion of the Real Estate, including, without limitation, the
construction or installation of sidewalks, driveways, parking lots, mail boxes,
decks, patios, courtyards, swimming pools, tennis courts, greenhouses,
playhouses, tree houses, playground equipment, or similar structures, awnings,
walls, fences, exterior lights, garages, or outbuildings, nor shall any exterior
addition to or change or alternation therein be made (excluding repainting in the
original color but otherwise including, without limitations, painting or staining of
any exterior surface), unless and until a written application in the manner and
form prescribed from time to time by the Committee and two (2) copies of the
plans and specifications and related data (including, if required by Committee, a
survey showing the location of trees of six (6) inches in diameter at a height of
four (4) feet and other significant vegetation on such Lot) showing the nature,
color, type, shape, height, materials, composition, and location of the same shall
have been submitted to and approved in writing by the Committee, as to the
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compliance of such plans and specifications with such standards as may be
published by the Committee from time to time, including the harmony of external
design, location, and appearance in relation to surrounding structures and
topography. All plans and drawings required to be submitted to the Committee
shall be drawn to a scale of ¼” = 1’ and all plot plans shall be drawn by a
professional to a scale of 1” = 30’, or to such other scale as the Committee shall
deem appropriate. It is also recommended that a certified survey be prepared to
ensure that an improvement is not encroaching onto an adjacent Lot or any
Common Area. One copy of such plans, specifications, and related data so
submitted shall be retained in the records of the Committee, and the other copy
shall be returned to the Owner marked “approved”, “approved as noted”, or
“disapproved.”
(a) Approval Process. Approval of the Committee shall be
obtained only after the Owner of the Lot requesting authorization from the
Committee has made written application to the Committee at least thirty
(30) days prior to the proposed installation or construction.
(b) Power of Disapproval. The Committee may refuse to grant
permission to construct, place or make the requested improvement, when:
(i) The plans, specifications, drawings or other material submitted are
themselves inadequate or incomplete, or show the proposed improvements
to be in violation of the restrictions contained in this Declaration; (ii) The
design, proposed material or color scheme of a proposed improvement is
not in harmony with the general surroundings of the Lot or with adjacent
buildings or structures, including trim, siding, roof and brick colors, or
with the Development in general; (iii) The proposed improvement or any
part thereof would architecturally, in the reasonable judgment of the
Committee, be contrary to the interests, welfare or rights of all or any
other Owners; and/or (iv) The Committee is otherwise authorized to
disapprove the requested improvement in this Declaration or in the
CICID.
(c) Powers Following Approval. Following approval of any
plans and specifications by the Committee, representatives of the
Committee shall have the right, during reasonable hours, to enter upon and
inspect any Lot or other improvements with respect to which construction
is underway to determine whether or not the plans and specifications there
for have been approved and are being complied with. In the event the
Committee shall determine that such plans and specifications have not
been approved or are not being complied with, the Committee shall be
entitled to enjoin further construction and to require the removal or
correction of any work in place which does not comply with approved
plans and specifications.
(d) Exercise of Discretion. Declarant intends that the members
of the Committee exercise discretion in the performance of their duties
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consistent with the provisions hereof, and every Owner by the purchase of
a Lot shall be conclusively presumed to have consented to the exercise of
discretion by such members. In any judicial proceeding challenging a
determination by the Committee and in any action initiated to enforce this
Declaration in which an abuse of discretion by the Committee is raised as
a defense, abuse of discretion may be established only if a reasonable
person, weighing the evidence and drawing all inferences in favor of the
Committee, could only conclude that such determination constituted an
abuse of discretion.
Section 6.4. Non Vegetative Landscaping Approval. To preserve the
aesthetic appearance of the Development, no material modification to the grading,
excavation or filling of any Lot shall be implemented by an Owner, unless and
until the plans there for have been submitted to and approved in writing by the
Committee. The provisions hereof regarding time for approval of plans, right to
inspect, right to enjoin and/or require removal shall also be applicable to
approvals required under this Section.
Section 6.5. Approval Not a Guarantee. No approval of plans and
specifications and no publication of standards shall be construed as representing
or implying that such plans, specifications, or standards will, if followed, result in
properly designed improvements. Such approvals and standards shall in no event
be construed as representing or guaranteeing that any improvement built in
accordance therewith will be built in a good and workmanlike manner. Neither
Declarant, the Association, nor the Committee shall be responsible or liable for:
(a) any defects in any plans or specifications submitted, revised, or approved
pursuant to the terms of this Article VI; (b) loss or damages to any person arising
out of the approval or disapproval of any plans or specifications; (c) any loss or
damage arising from the noncompliance of such plans and specifications with any
governmental ordinances and regulations; nor (d) any defects in construction
undertaken pursuant to such plans and specifications.
Section 6.6. Building Restrictions. All improvements shall be
constructed in compliance with any and all applicable state, county and municipal
zoning and building restrictions. Prior to any such grading, clearing, construction
of impervious surface, building, or other construction activity, the Owner of any
Lot which is subject to such rules, regulations, guidelines or restriction shall make
such filings, and obtain such authorizations and permits as are required hereunder,
and further, shall receive the prior written approval of the Committee.
ARTICLE VII
USE RESTRICTIONS
Section 7.1. Standards and Restrictions. The Association, acting
through its Board, shall have the authority to make and to enforce standards and
restrictions governing the use of the Real Estate, in addition to those contained
herein, and to impose reasonable user fees for use of Common Areas. Such
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regulations and use restrictions shall be binding upon all Owners and occupants
until and unless overruled, canceled or modified in a regular or special meeting of
the Association by a majority of members entitled to vote thereon; subject to the
prior written consent of Declarant during the Development Period.
Section 7.2. Use of Lots. Except as permitted by Section 7.29 hereof,
each Lot shall be used for residential purposes only, and no trade or business of
any kind may be carried therein. The use of a portion of a Dwelling Unit as an
office by Owner, or his tenant shall not be considered to be a violation of this
covenant if Owner is in compliance with Section 7.29 hereof. No building or
structure shall be located on any Lot outside of the setback lines designated on the
Plat.
Section 7.3. Diligence in Construction. Subject to inclement weather
and other force majeure events, every Dwelling Unit shall be completed within
twelve (12) months after the commencement of its construction or placement. No
improvement which has been partially or totally destroyed by fire or otherwise
shall be allowed to remain in such state for more that three (3) months from the
time of such destruction or damage or, if approval of the applicable casualty
insurance is pending, then within three (3) months after such approval is
requested.
Section 7.4. Association’s Right to Perform Certain Maintenance.
In the event that the Owner of any Lot shall fail to maintain his Lot and any
improvements situated thereon in accordance with the provisions of this
Declaration after notice from the Association and a cure period, the Association
shall have the right, but not the obligation, by and through its agents, employees,
or contractors, to enter upon said Lot and maintain, repair, mow, clean or perform
such other acts as may be reasonably necessary to ensure that such Lot and
improvements situated thereon, if any, conform to the requirements of this
Declaration. The cost incurred by the Association shall be assessed and billed to
the Owner. The Association shall have the right to collect any outstanding
maintenance assessments in the manner described in Article V. Neither the
Association nor any of its agents, employees, or contractors shall be liable for any
damage that may result from any work performed hereunder.
Section 7.5. Unsightly or Unkempt Conditions. It shall be the
responsibility of each Owner to prevent any unclean, unhealthy, unsightly or
unkempt condition on his Lot. The pursuit of hobbies or other activities,
specifically, without limiting the generality of the foregoing, the assembly and
disassembly of motor vehicles and other mechanical devices, which might tend to
cause disorderly, unsightly, or unkempt conditions, shall not be permitted on any
part of the Real Estate. Nothing which would result in a cancellation of any
insurance for any portion of the Development, or which would be in violation of
any law or governmental code or regulation, shall be permitted in the
Development. Any Owner, or his family, tenants, guests, invitees, servants or
agents, who clump or place any trash or debris upon any portion of the
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Development, shall be liable to the Association for the actual costs of removal
thereof or the sum of $150.00, whichever is greater, and such sum shall be added
to and become a part of that portion of any Assessment next becoming due to
which such Owner and his Lot are subject.
Section 7.6. Maintenance of Lots and Improvements. Each Owner
shall at all times maintain his Lot and any improvement situated thereon in such a
manner as to prevent the Lot or improvements from becoming unsightly and,
specifically, such Owner shall:
(a) Mow the Lot at such times as may be reasonably required
in order to prevent the unsightly growth of vegetation and noxious weeds.
In no event shall the grass on any Lot exceed the lesser of six (6) inches or
the maximum height required by applicable statute or ordinance.
Notwithstanding the foregoing, vacant Lots owned by Declarant shall be
mowed by Declarant at such times as necessary so that the maximum
height of the grass on those Lots shall not exceed twelve (12) inches.
(b) Remove all debris or rubbish from the Lot.
(c) Maintain the landscaping on a regular basis and replace any
dead tree or shrub that is part of required landscaping.
(d) Cut down and remove dead trees from the Lot.
(e) Within sixty (60) days following completion of a Dwelling
Unit, the Owner shall landscape the Lot, weather permitting.
Section 7.7. Awnings and Window Screens. No foil or other reflective
material shall be used on any windows for sunscreens, blinds, shades, or other
purposes. No metal, fiberglass or similar type awnings or patio covers shall be
permitted unless approved by the Committee.
Section 7.8. Signs. No signs of any kind shall be erected within the
Development, or permitted within any windows, without the written consent of
the Board, except for such signs as may be required by legal proceedings and
except for a single standard real estate “for sale” or “for rent” sign may exist on a
Lot if such does not exceed six (6) square feet in area. Declarant may use such
signs as it deems necessary or appropriate during the Development Period. No
business signs, flags, banners or similar items except those placed and used by
Declarant advertising or providing directional information shall be erected by any
Owner. If permission is granted to any Owner to erect a sign, including name and
address signs within the Development, the Board reserves the right to determine
the size and composition of such sign as it, in its sole discretion, deems
appropriate.
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Section 7.9. Minimum Square Footage. Dwelling Units within the
Development shall have the following minimum square footage, exclusive of
basements, open porches, garages or other unheated areas:
Ranch 1700 square feet
Two-Story 2300 square feet
Section 7.10. Parking and Prohibited Vehicles.
(a) Parking. Vehicles shall be parked in the garages or on the
driveways serving the Lots. Each Dwelling Unit shall have an attached
garage with space for not less than two (2) automobiles. No motor
vehicle, whether or not utilized by an Owner, shall be parked on any street
or public right-of-way, except on a temporary and non-recurring basis.
Garages shall be used for parking of vehicles and no other use or
modification thereof shall be permitted which would reduce the number of
vehicles which may be parked therein below the number for which the
garage was originally designed. Vehicles may be parked on a street in the
Development for no more than forty-eight (48) consecutive hours, and
such an occurrence shall not occur more than one time during any thirty
(30) day period. No Owners or other occupants of any portion of the
Development shall repair or restore any vehicles of any kind upon or
within any Lot or within any portion of the Common Areas, except (i)
within enclosed garages or workshops, or (ii) for emergency repairs, and
then only to the extent necessary to enable the movement thereof to a
proper repair facility.
(b) Prohibited Vehicles. Vehicles labeled or classified as
commercial by the State of Indiana, vehicles registered with the Indiana
Department of Transportation in the State of Indiana, tractors, busses,
mobile homes, recreational vehicles, trailers (either with or without
wheels), campers, camper trailers, boats and other watercraft, and boat
trailers shall be parked only in enclosed garages or areas, if any,
designated by the Board. Stored vehicles and vehicles which are either
obviously inoperable or do not have current operating licenses shall not be
permitted on the Real Estate except within enclosed garages.
Notwithstanding the foregoing, service and delivery vehicles may be
parked in the Real Estate during daylight hours for such period of time as
is reasonably necessary to provide service or to make a delivery to a Lot
or the Common Areas. Any vehicles parked in violation of this Section or
parking rules promulgated by the Board may be towed at the expense of
the Owner. Notwithstanding the foregoing, recreational vehicles, campers,
camper trailers, boats and other watercraft may be parked in the driveway
of a Lot for a period of time not to exceed forty-eight (48) hours in any
calendar month for cleaning, loading and unloading but for no other
purposes.
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Section 7.11. Animals and Pets. No farm animals, fowls or domestic
animals for commercial purposes shall be kept or permitted on any Lot or Lots in
the Development. No animals shall be kept or maintained on any Lot except for
the usual household pets and, in such case, such household pets shall be kept
reasonably confined so as not to become a nuisance. Excessive barking of a
dog(s) or vicious animal(s) shall constitute a nuisance as determined by the
Association, and may be ordered removed from the Real Estate by the
Association. All pets shall remain under the control and supervision of an adult
Owner, and shall not be permitted off of such Owner’s respective Lot unless on a
leash or other restraint. The owner of any pet shall be responsible to clean up or
repair any waste or damage caused by such pet, and assure that such pet does not
create any unreasonable disturbance. Animal quarters, kennels, and runs are
specifically prohibited.
Section 7.12. Quiet Enjoyment. No portion of the Real Estate shall be
used, in whole or in part, for the storage of any property or thing that will cause it
to appear to be in an unclean or untidy condition. No noxious or illegal activity
shall be carried on upon any portion of the Real Estate. No hunting of any nature
shall be permitted within the Development. With the exception of a gas or wood
burning fire pit and/or outdoor fireplace, which if permanently affixed to the
ground must be approved by the Committee, there shall be no outside open
burning of wood, leaves, trash, garbage or household refuse within the Real
Estate. Declarant or the Association may at any time order the relocation of any
wood piles which, in their sole opinion, are unsightly. No horns, whistles, bells or
other sound devices, except security and fire alarm devices used exclusively for
such purposes, shall be located, used, or placed within the Development.
Section 7.13. Antennas, Aerials and Satellite Dishes. No exterior
antennas, aerials, satellite dishes, or other apparatus larger than thirty-six (36)
inches in diameter and intended for the reception of television, radio, satellite or
other signals of any kind shall be placed, allowed, or maintained upon any portion
of any Lot. Any such antennas, aerials, satellite dishes or other such apparatus
that do not exceed thirty-six (36) inches in diameter shall be permitted on a Lot
only if such will be aesthetically concealed by landscaping or otherwise and shall
be installed so as not to be visible from front elevation street view or constitute a
nuisance or offensive effect on other Lot Owners. Under no circumstances shall
any such antennas, aerials, satellite dishes, or other such apparatus be installed
without the approval of the Committee. No radio or television signals, nor
electromagnetic radiation, shall be permitted to originate from any Lot which may
unreasonably interfere with the reception of television or radio signals within the
Development, provided, however, that Declarant and/or the Association shall
have the right, without obligation, to erect an aerial, satellite dish, or other
apparatus or master antenna or cable system for the benefit of all or a portion of
the Real Estate, should any such master system or systems be utilized by the
Association and require any such exterior apparatus.
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Section 7.14. Garbage Cans and Tanks. No storage tanks of any kind
shall be allowed upon a Lot with the exception of a small propane take used
exclusively for residential gas grills. The propane tank shall be stored on the gas
grill, within the Dwelling Unit on the Lot, or completely out of view of other
Owners. No rubbish, trash or garbage containers shall be stored or maintained
outdoors except for such temporary storage necessary for immediate pick up of
the trash and, in that event, trash shall be stored in appropriate containers. At the
option of the Association, trash and refuse disposal for each Dwelling Unit will be
provided by the Association on a weekly basis. No dumpsters or other forms of
general or common trash accumulation shall be permitted within the
Development, except to facilitate or in connection with construction activities.
No Lot shall be used or maintained as a dumping ground for trash. Rubbish,
garbage and other waste shall be kept in sanitary containers at all times and all
equipment for storage or disposal of such materials shall be kept clean. No
rubbish, garbage or other waste shall be allowed to accumulate on any Lot. No
homeowner or occupant of a Lot shall burn or bury any garbage or refuse.
Section 7.15. Pools. No above ground swimming pools shall be erected,
constructed or installed on any Lot; provided, that nothing herein shall preclude
installation and use of hot tubs, spas or in-ground pools with prior approval from
the Committee as provided herein.
Section 7.16. Storage Sheds and Temporary Structures. Except as
may be utilized by Declarant during the Development Period, no tent, shack,
trailer, storage shed, mini-barn or other similar detached or attached structure
shall be placed upon a Lot or the Common Areas. Notwithstanding the above,
party tents or similar temporary structures may be erected for special events with
prior written approval of the Committee or Declarant and children’s overnight
camping tents will be allowed as long as they are not up longer than forty-eight
(48) hours. Any and all forms of outbuildings, including, without limitation,
sheds, storage sheds, and play houses, which are not directly connected to a
Dwelling Unit, are prohibited unless the same are necessary or incident to the
Declarant’s or Association’s business or activities.
Section 7.17. Drainage, Water Wells and Septic Systems.
(a) Catch basins and drainage areas are for the purpose of
natural flow of water only. No obstructions or debris shall be placed in
these areas. No person other than Declarant may obstruct or rechannel the
drainage flows after location and installation of drainage swales, storm
sewers, or storm drains.
(b) No private water wells may be drilled or maintained and no
septic tanks or similar sewerage facilities may be installed or maintained
on any Lot.
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Section 7.18. Traffic Regulation and Sight Distance at Intersections.
All Lots 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 wherein it would create a traffic or sight problem.
All vehicular traffic on the private streets and roads in the Development shall be
subject to the provisions of the laws of the State of Indiana, and any other
applicable governmental agency, concerning operation of motor vehicles on
public streets. The Association is hereby authorized to promulgate, administer,
and enforce reasonable rules and regulations governing vehicular and pedestrian
traffic, including modifications of those in force on public streets, within the
Development. The Association shall be entitled to enforce same by establishing
such enforcement procedures as it deems necessary, including levying fines for
the violation thereof. Only drivers licensed to operate motor vehicles by the State
of Indiana or by any other state in the United States may operate any type of
motor vehicle within the Development. All vehicles of any kind and nature which
are operated on the streets in the Development shall be operated in a careful,
prudent, safe and quiet manner and with due consideration for the rights of all
residents of the Development.
Section 7.19. 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 high voltage lines if required by law for
safety purposes.
Section 7.20. Clotheslines. No clothesline of any kind may be erected,
maintained, or permitted on or at any Lot. Clothing, rugs or other items which are
visible to others in the Development shall not be hung on any railing, fence,
hedge, or wall.
Section 7.21. Air Conditioning Units. No window air conditioning
units may be installed in or at any Lot.
Section 7.22. Mailboxes. Each Owner of a Lot shall maintain the
mailbox and structure which was originally installed by a builder, and shall
replace same as necessary with a mailbox and structure which is substantially the
same in appearance as that which was originally provided to the Dwelling Unit.
Nothing may be attached to the mailbox structure which will affect the uniformity
thereof with other such structures in the Development. The Committee shall have
the discretion to require the replacement of any mailbox within the Development
at the expense of the Owner of the Lot served thereby.
Section 7.23. Solar Panels. No solar energy collector panels or attendant
hardware or other energy conservation equipment shall be constructed or installed
on any Lot.
Section 7.24. Homeowner Landscape Requirement. Within six (6)
months of initial occupancy of a Dwelling Unit, the Owner thereof shall be
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responsible for installing (i) two (2) deciduous shade trees in the front yard, a
minimum size of two and one half (2 ½) inch caliper; and (ii) a minimum of ten
(10) shrubs with a mixture of flowering and evergreen varieties and with a
twenty-four (24) inch spread or height in the front yard. Additionally, Owners of
corner Lots shall also install, within six (6) months of initial occupancy of a
Dwelling Unit, two (2) trees and six (6) shrubs in the side yard abutting the street.
Section 7.25. Seeding of the Yard. Within thirty (30) days of initial
occupancy of a Dwelling Unit, the Owner thereof shall cause (i) sod to be
installed in the front yard between the Dwelling Unit and the street, and (ii) the
balance of the yard of such Lot to be seeded with grass of a type generally used in
the Development. The initial seeding may be delayed if the occupancy date
occurs between November 1 and the following March 31, or if, as of the date of
occupancy, the final grading of the yard has not been completed; provided,
however, that in either of such events, the initial seeding of the yard shall be
completed on or before (a) May 1 following the date of occupancy, or (b) thirty
(30) days following completion of final grading, which ever is later. In lieu of the
grass seed above, the Owner may sod all of the yard, at their sole cost and
expense.
Section 7.26. Exterior Flags and Sculpture. Exterior sculptures,
fountains, flags, and similar items must be approved by the Committee.
Section 7.27. Driveways and Sidewalks. All driveways will be
constructed by a builder of the Dwelling Unit which it serves. Owners shall
maintain and replace the driveway of their Lot thereafter so as to maintain the
same appearance as provided at the time of original construction, ordinary wear
and tear accepted. Each Dwelling Unit shall have a continuous side walk from
driveway to the front porch or entry. Any modification or extension of driveways
and sidewalks beyond those constructed by a builder are subject to Committee
approval as provided in Article VI. In no event will concrete, blacktop, gravel or
dirt side drives or parking areas be permitted on any Lot or Common Area except
where Declarant, during the Development Period, may deem necessary.
Section 7.28. Fences. The Committee, prior to installation, must
approve any fencing, walls, mounds, and landscape screening on or at any Lot. It
is the goal to keep all fencing or screening harmonious with the architectural
character of the community. No fence or screen will be approved which obstructs
necessary sight lines for vehicular traffic. Undue obstruction of views from
adjoining properties and amenity areas will be taken into consideration by the
Committee when reviewing fences, walls, mounds, and screening for approval.
No front yard fencing, walls, mounds, or screening are permitted, except on a Lot
on which there is maintained a sales office or model home by Declarant. If
approved by the Committee, fences may be privately installed but must be
constructed to professional levels of quality, design, material, composition, and
color as determined by the Committee. Non-professionally installed fences may
be inspected by the Committee after completion in order to ensure that the fence
30
is of a professional quality, and final approval of such fence shall be deemed
withheld until completion of such final review. All fences shall be kept in good
repair by the Owner. No fence shall be located any closer to the front Lot line
than forty (40) feet back from the front foundation line of the residence or the rear
foundation line of the residence, whichever is closer to the street, except to
enclose equipment or garage service door. On a corner Lot, no solid/privacy
fence will be allowed between the side building line and the adjacent street or
right-of-way. No fences shall be installed in easements and, if erected, are erected
at the sole risk of the Owner, as such fences run the risk of being partially or
completely removed. Notwithstanding any other provision in this Declaration to
the contrary, invisible electronic fences designed to restrict the movement of
animals are expressly permitted.
Declarant, during the Development Period, and the Committee, after the
Development Period, may reasonably amend or change any of the following
restrictions:
(a) Height Restriction. The Committee shall determine the
height of fences and walls; provided, however, that the maximum heights
of walls and fences shall never exceed the following:
(i) No fence shall exceed forty-eight (48) inches in
height;
(ii) Lot fencing and walls shall not exceed forty-eight
(48) inches above grade;
(iii) Patio screens adjoining the rear of a Dwelling Unit
shall not exceed six (6) feet in height; and
(iv) No fence located on a Lot abutting a lake shall
exceed forty-two (42) inches in height beyond a point sixteen (16)
feet from the rear building line of the Residence unless used to
enclose a pool (see Section 7.28(a)(v)). This restriction may be
waived by the Committee to enclose an in-ground pool.
(v) Any fence enclosing an in-ground pool shall not
exceed six (6) feet in height, must be installed immediately
adjacent to the pool and not along the perimeter of the Lot, and be
approved by the Committee.
(b) Materials and Finish.
(i) Except in certain areas, such as those adjacent to
Common Areas, where fences may be restricted by the Committee
due to obstructed views by adjoining neighbors, fences are to be
wooden, aluminum wrought iron or PVC. Wooden fences may be
stained but shall not otherwise be painted and be shadow box or
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wooden picket in style. Aluminum wrought iron and PVC fences
must be black in color. The Committee must approve all fencing
materials, design, location and stain color.
(ii) Walls above-grade must be constructed of natural
stone, masonry, wood shadow box fencing, or a combination
thereof.
(iii) The Committee will approve landscape screening
materials, design, and location on an individual basis.
(c) Approval. The exact location, material, color, and height of
the fence and rendering or photograph thereof shall be submitted to the
Committee for written approval at least thirty (30) days prior to proposed
installation or construction. If however, approval has not been received by
the applicant in writing within thirty (30) days after submission, then said
request shall be deemed DENIED.
Section 7.29. Business Uses. No trade or business may be conducted in
or from any Lot, except that an Owner or occupant residing in a Dwelling Unit
may conduct business activities within the Dwelling Unit, so long as: (a) the
existence or operation of the business activity is not apparent or detectable by
sight, sound or smell from outside the Dwelling Unit; (b) the business activity
conforms to all zoning requirements for the Real Estate; (c) the business activity
does not involve persons coming onto the Real Estate who do not reside in the
Real Estate or door-to-door solicitation of residents of the Development; and (d)
the business activity is consistent with the residential character of the
Development and does not constitute a nuisance, or a hazardous or offensive use,
or threaten the security or safety of other residents of the Real Estate, as may be
determined in the sole discretion of the Board.
The terms “business” and “trade”, as used in this provision, shall be
construed to have their ordinary, generally accepted meanings, and shall include,
without limitation, any occupation, work, or activity undertaken on an ongoing
basis which involve 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; (i) such activity is engaged in
full or part-time; (ii) such activity is intended to or does generate a profit; or (iii) a
license is required there for. Notwithstanding the above, the leasing of a Lot or
Dwelling Unit shall not be considered a trade or business within the meaning of
this section. This Section shall not apply to any commercial property within the
Development nor shall it apply to any activity conducted by Declarant or a
builder approved by Declarant with respect to its development and sale of the
Real Estate or its use of any Lots or Dwelling Units which it owns within the Real
Estate.
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Section 7.30. Basketball Goals, Tennis Courts, Racquetball Courts,
and Paddleball Courts. No basketball goals shall be permitted on any Lot
without the prior review and approval of the Committee, except as provided for in
this section. No basketball goals shall be permitted to be used along any curb or in
any street of the Community. Tennis courts, racquetball courts, paddle ball courts,
basketball courts, squash courts, and other recreational facilities or sporting
facilities will not be permitted on any Lot without approval from the Committee.
All submittals to the Committee shall include landscape plans. Permanent
basketball goals may be installed on a Lot immediately adjacent to a driveway
without Committee approval, provided that such goals have translucent fiberglass
or glass backboards, and are professionally installed. Non-permanent basketball
goals or courts may not be installed or constructed on a Lot without written
Committee approval. No basketball goal or backboard shall be permitted to hang
from or be affixed to any part of the Dwelling Unit. Lighted courts of any kind
are prohibited. Temporary or portable basketball courts located on streets or in
cul-de-sacs or in the right-of-way of any public street are a safety hazard and are
strictly prohibited.
Section 7.31. Playground Equipment. No playground equipment shall
be installed on any Lot without the prior review and approval of the Committee.
All such equipment shall be located at least then (10) feet from any adjacent
property lines and in the rear yard of a Lot (being the portion of such Lot behind
the rear corners of the residence on such Lot). Notwithstanding the foregoing, in
the event such Lot is located on a corner in the Development, the Committee may,
in its discretion, approve a location for such equipment other than a rear yard,
provided such is not closer than ten (10) feet from any public sidewalk.
Children’s play equipment, such as temporary sandboxes and temporary
swimming pools having a depth of eighteen (18) inches or less, shall not require
approval of the Committee, provided that such equipment is maintained by the
Owner in good repair and such equipment is located in the rear yard. Equipment
higher than eighteen (18) inches shall require approval of the design, location,
color, material and use by the Committee and in no cases, if approved, is allowed
to be up for more than forty-eight (48) hours. Aluminum or metal play equipment
is prohibited. Free standing plastic or metal playhouses are prohibited, while forts
or playhouses that are incorporated as an integral part of a residential play system
are permitted but must be approved by the Committee. Above grade trampolines
are allowed and can be used daily, provided they are only used in the rear yard
and are stored out of sight of the Lots at night and when otherwise not in use. In-
ground trampolines are subject to approval by the Committee which will require
placement in compliance with the provisions of this Section 7.31, but are
otherwise permitted.
Section 7.32. On-Site Fuel Storage. No on-site storage of gasoline,
heating or other fuels shall be permitted on any part of the Real Estate, except that
up to five (5) gallons of fuel may be stored on each Lot for emergency purposes
and operation of gas grills, lawn mowers and similar tools or equipment, and the
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Section 7.33. Contiguous Lots. Whenever two (2) or more contiguous
Lots shall be owned by the same Owner, such Owner shall not be permitted to use
two (2) or more of said Lots as a site for a single dwelling, subject to applicable
zoning and other regulations and restrictions. Each Lot shall be, and shall remain,
improved with a single Dwelling Unit, and each Lot shall be subject to
Assessments.
Section 7.34. Control of Lakes and Common Areas.
(a) Control by the Association. As part of its general duties, the
Association shall regulate the Lakes and Common Areas and shall provide
for the maintenance thereof in such a manner so as to preserve and
enhance values and to maintain a harmonious relationship among
structures in the vicinity thereof and the natural or other vegetation and
topography of the Lakes and Common Areas. No improvements,
excavation, changes in grade or other work shall be done upon the Lakes
or Common Areas by any Owner, nor shall the Lakes or Common Areas
be changed by any Owner from its natural or improved existing state,
without the prior written approval of the Committee.
(b) Restrictions of Use of Lakes and Common Areas. The
following covenants and restrictions on the use and enjoyment of the Lots,
the Lakes and the Common Areas shall be in addition to any other
covenants or restrictions contained herein or in the Plat and all such
covenants and restrictions are for the mutual benefit and protecting of the
present and future Owners and shall run with the land and inure to the
benefit of and be enforceable by any Owner, or by the Association.
Present or future Owners of the Association shall be entitled to injunctive
relief against any violation or attempted violation of any of such
covenants and restrictions, and shall, in addition, be entitled to damages
for any injuries or losses resulting from any violations thereof, but there
shall be no right of reversion or forfeiture resulting from such violation.
These covenants and restrictions are as follows:
(i) No one other than Owners who are Members in
good standing with the Association, or such an Owner’s occupant,
tenants, guests or invitees, may use the Lakes or the Common
Areas.
(ii) No nuisance shall be permitted to exist on or at any
Lot and no waste shall be committed on or at any Lot which shall
or might damage or cause injury to the Lakes or the Common
Areas.
(iii) All Owners and members of their families, their
guests, or invitees, and all occupants of any Lot or other persons
entitled to use the same and to use and enjoy the Lakes and the
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Common Areas, shall observe and be governed by such rules and
regulations as may from time to time be promulgated and issued
by the Board governing the operation, use and enjoyment of the
Lakes and the Common Areas.
(iv) No Owner shall be allowed to plant trees, landscape
or do any gardening in any part of the Lakes or the Common Areas
without the express permission from the Committee.
(v) The Lakes and the Common Areas shall be used
and enjoyed only for the purposes for which they are designed and
intended, and shall be used subject to the rules and regulations
from time to time adopted by the Board. Without limiting the
generality of the foregoing, the Lakes are and will be an integral
part of the storm water drainage system serving the Development.
Accordingly, no use shall be made of the Lakes which in any way
interferes with their proper functioning as part of such storm water
drainage system. Recreational activity shall be permitted in or on
the Lakes as determined by the Board. No sewage, garbage, refuse,
or other solid, liquid, gaseous or other materials or items (other
than storm and surface water drainage) shall be put into the Lakes,
except the Association may take steps to clear and purify the
waters thereof by the addition of chemicals or other substances
commonly used for such purposes or by providing therein
structures and equipment to aerate the same. No Owner or other
person shall take or remove any water from or out of the Lakes or
utilize the water contained therein for any purposes, including,
without limitation, connection with any sprinkler or irrigation
systems. No piers, docks, retaining walls, rafts or other
improvements shall be built, constructed or located on any Lot or
on the Real Estate, which extend into, or to within twenty-five (25)
feet of the shoreline of any Lake, except those installed by
Declarant or the Association.
(vi) The Association shall not be responsible for any
loss, damage, or injury to any person or property arising out of the
authorized or unauthorized use of Lakes, ponds or streams within
the Real Estate.
Section 7.35. Laws and Ordinances. Every Owner and occupant of any
Lot or Dwelling Unit, their guests and invitees, shall comply with all laws,
statutes, ordinances and rules of federal, state and municipal governments
applicable to the Real Estate and any violation thereof may be considered a
violation of this Declaration; provided, however, that the Board shall have no
obligation to take action to enforce such laws, statutes, ordinances or rules.
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Section 7.36. Sales and Construction. Notwithstanding any provisions
or restrictions contained in this Declaration to the contrary, it shall be expressly
permissible for Declarant and its agents, employees, successors, and assigns to
maintain and carry on such facilities and activities as may be reasonably required,
convenient, or incidental to the completion, improvement, and sale of Lots and
Dwelling Units or the developing of Lots, Dwelling Units and Common Areas,
including, without limitation, the installation and operation of sales and
construction trailers and offices, signs and model houses, all as may be approved
by Declarant from time to time, provided that the location of any construction
trailer of any assignees of Declarant’s rights under this Section 7.36 shall be
subject to Declarant’s approval. The right to maintain and carry on such facilities
and activities shall include specifically the right to use Dwelling Units as model
residences and to use any Dwelling Unit as an office for the sale of Lots and
Dwelling Units and for related activities.
Section 7.37. Owners Bound. All provisions of this Declaration, the By-
Laws and of any rules and regulations or use restrictions promulgated pursuant
thereto which govern the conduct of Owners and which provide for sanctions
against Owners shall also apply to all occupants, guests and invitees of any Lot
and Dwelling Unit. Every Owner shall cause all occupants, guests and invitees of
his or her Lot or Dwelling Unit to comply with this Declaration, the By-Laws,
and rules and regulations adopted pursuant thereto, and shall be responsible for all
violations and losses to the Common Areas caused by such occupants, guests and
invitees, notwithstanding the fact that such occupants of a Lot are fully liable and
may be sanctioned for any violation of this Declaration, the By-Laws and rules
and regulations adopted pursuant thereto.
ARTICLE VIII
RULEMAKING AND REMEDIES FOR ENFORCEMENT
Section 8.1. Rules and Regulations. Subject to the provisions hereof,
the Board may establish reasonable rules and regulations concerning the use of
Lots and Dwelling Units, and the amendments thereto shall be furnished by the
Association to all Members prior to their effective date upon the Owners, their
families, tenants, guests, invitees, servants and agents, until and unless any such
rule or regulations be specifically overruled, cancelled, or modified by the Board
or in a regular or special meeting of the Association by a majority of the Members
as set forth in the By-Laws, subject to Declarant’s consent during the
Development Period.
Section 8.2. Authority and Enforcement.
(a) Upon a violation of this Declaration, the By-Laws, or any
rules and regulations duly adopted hereunder, including, without
limitation, the failure to timely pay any Assessments, the Association shall
have the power, after ten (10) days written notice to the Owner or the
occupant of said violation, and failure by said Owner or occupant to cure
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the violation: (i) to cause the Association to correct the violation at its own
cost and expense, which said cost and expense shall constitute a
continuing lien upon the Lot of the Owner or occupant who is guilty of
such violation; (ii) to suspend Owner’s right to vote in the Association;
and (iii) to suspend an Owner or occupant’s right (and the right of his or
her family, guests, and tenants) to use of the Common Areas.
The Board shall have the power to impose all or any combination
of these sanctions. Such sanctions are in addition to the Association’s
remedies under Section 4.2 hereof relating to maintenance. An Owner or
occupant shall be subject to the foregoing sanctions in the event of such a
violation by him or her, his or her family, guest or tenants. Any such
suspension of rights may be for the duration of the infraction and/or any
additional period thereafter, such additional period not to exceed thirty
(30) days per violation.
(b) Notwithstanding subsection (a) above, a violation or
threatened violation of any of the covenants and restrictions contained in
this Declaration and the provisions contained in the Articles of
Incorporation or By-Laws of the Association, or any rules and regulations
adopted hereunder, shall be grounds for an action at law or equity
instituted by Declarant, the Association, or any Owner against any person
violating or threatening to violate any such covenant, restriction, rule, or
regulation. Available relief in any such action shall include the recovery of
damages; injunctive relief, either to restrain the violation or threatened
violation or to compel compliance with the covenants, restrictions, rules or
regulations, declaratory relief; the enforcement of any lien created by
these covenants, restrictions, rules, or regulations; and the recovery of
costs and attorneys’ fees incurred by any party successfully enforcing such
covenants, restrictions, rules or regulations. Failure by Declarant, the
Association, or any Owner to enforce any covenant, restriction, rule or
regulation shall in no event be deemed a waiver of the right to do so
thereafter; provided, however, that no action shall be brought against
either Declarant or the Association for failing to enforce or carry out any
such covenants, restrictions, rules or regulations.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1. Term. The covenants and restrictions of this Declaration
shall run with and bind the Real Estate, and shall inure to the benefit of and shall
be enforceable by the Association or the Owner of any Lot subject to this
Declaration, their respective legal representatives, heirs, successors, and assigns,
for a term of sixty (60) years from the date this Declaration is recorded, after
which time this Declaration shall be automatically extended for successive
periods of ten (10) years, unless an instrument in writing, signed by more than
seventy-five percent (75%) of the then Owners has been recorded within the year
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preceding the beginning of each successive period often (10) years, agreeing to
change said covenants and restrictions, in whole or in part, or to terminate the
same, in which case this Declaration shall be modified or terminated as specified
therein. The number of ten (10) year renewal periods shall be unlimited.
Section 9.2. Amendment. Prior to the conveyance of the first Lot to an
Owner, Declarant may unilaterally amend this Declaration. After such
conveyance, Declarant may unilaterally amend this Declaration at any time and
from time to time if such amendment is: (a) necessary to bring any provision
thereof into compliance with any applicable governmental statutes, rules or
regulations, or judicial determination; (b) necessary to enable any reputable title
insurance company to issue title insurance coverage on the Lots and the Dwelling
Units; (c) required by an institutional or governmental agency or lender or
purchaser of mortgage loans, including, for example, the Federal National
Mortgage Association or Federal Home Loan Mortgage Corporation, to enable
such lender or purchaser to acquire or purchase mortgage loans on the Lots and
the Dwelling Units; (d) necessary to enable any governmental agency or reputable
private insurance company to insure mortgage loans on the Lots; (e) to annex
additional real estate to the Development; or (f) to correct clerical or
typographical errors in this Declaration or any exhibit hereto, or any supplement
or amendment thereto; provided, however, that any amendment permitted under
subsections (a) through (f) above shall not adversely affect the title to any Lot
unless the Owner shall consent thereto in writing. Additionally, during the
Development Period, Declarant may unilaterally amend this Declaration for any
purpose, provided the amendment has no material adverse effect upon any right of
the Owner.
Thereafter and otherwise, this Declaration may be amended only by the
affirmative vote or written consent, or any combination thereof, of voting
Members representing at least seventy-five percent (75%) of the Members
entitled to vote thereon. Any amendment to be effective must be recorded in the
public records of the county in which this Declaration was recorded.
If an Owner consents to any amendment to this Declaration or the By-
Laws, it will be conclusively presumed that such Owner has the authority so to
consent and no contrary provision in any mortgage or contract between the Owner
and a third party will affect the validity of such amendment.
No amendment may remove, revoke, or modify any right or privilege of
Declarant without the written consent of Declarant or the assignee of such right or
privilege.
Section 9.3. Indemnification. The Association shall indemnify every
officer, director, and committee member against any and all expenses, including
attorneys’ fees, reasonably incurred by or imposed upon such officer, director, or
committee member in connection with any action, suit, or other proceeding
(including settlement of any suit or proceeding, if approved by the then Board) to
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which he or she may be a party by reason of being or having been an officer,
director or committee member. The officers, directors, and committee members
shall not be liable for any mistake of judgment, negligent or otherwise, except for
their own individual willful misfeasance, malfeasance, misconduct, or bad faith.
The officers, directors and committee members shall have no personal liability
with respect to any contract or other commitment made by them, in good faith, on
behalf of the Association and the Association shall indemnify and forever hold
each such officer, director and committee member free and harmless against any
and all liability to others on account of any such contract or commitment. Any
right to indemnification provided for herein shall not be exclusive of any other
rights to which any officer, director, or committee member or former officer,
director, or committee member may be entitled. The Association shall, as a
Common Expense, maintain adequate general liability and officers’ and directors’
liability insurance to fund this obligation, if such insurance is reasonably
available.
Section 9.4. Interpretation. In all cases, the provisions set forth or
provided for in this Declaration shall be construed together and given that
interpretation or construction which, in the opinion of Declarant or the Board, will
best effect the intent of the general plan of development. The provisions hereof
shall be liberally interpreted and, if necessary, they shall be so extended or
enlarged by implication as to make them fully effective. The provisions of this
Declaration shall be given full force and effect notwithstanding the existence of
any zoning ordinance or building codes which are less restrictive. The effective
date of this Declaration shall be the date of its filing in the public records. The
captions of each Article and Section hereof as to the contents of each Article and
Sections are inserted only for limiting, extending, or otherwise modifying or
adding to the particular Article or Section to which they refer. This Declaration
shall be construed under and in accordance with the laws of the State of Indiana,
without regard to its conflict of law provisions.
Section 9.5. Right of Entry. The Association and, during the
Development Period, Declarant shall have the right, but not the obligation, to
enter onto any Lot for emergency, security, and safety reasons, and to inspect for
the purpose of ensuring compliance with this Declaration, the By-laws, and the
Association rules, which right may be exercised by the Association’s board,
officers, agents, employees, managers, and all policemen, firemen, ambulance
personnel, and similar emergency personnel in the performance of their respective
duties. Except in an emergency situation, entry shall only be during reasonable
hours and after notice to the Owner or occupant directly affected thereby. This
right of entry shall include the right of the Association to enter a Lot and
Dwelling Unit to cure any condition which may increase the possibility of a fire
or other hazard in the event an Owner fails or refuses to cure the condition within
a reasonable time after request by the Board.
Section 9.6. Perpetuities. If any of the covenants, conditions,
restrictions, or other provisions of this Declaration would be unlawful, void, or
39
voidable for violation of the common law rule against perpetuities, then such
provisions shall continue on for the maximum amount of time as allowed by
Indiana Code Section 32-1-4.5-1 et seq. as amended from time to time.
Section 9.7. Litigation. No judicial or administrative proceeding shall
be commenced or prosecuted by the Association unless approved by a vote
representing at least two-thirds (2/3) of the Members entitled to vote thereon.
However, this Section shall not apply to (a) actions brought by the Association to
enforce the provisions of this Declaration (including, without limitation, the
foreclosure of liens), (b) actions brought for collection of assessments, (c)
proceedings involving challenges to ad valorem taxation, or (d) counterclaims
brought by the Association in proceedings instituted against it.
Section 9.8. Notice of Sale or Transfer of Title. In the event that any
Owner desires to sell or otherwise transfer title to his or her Lot, such Owner shall
give the Board at least seven (7) days prior written notice of the name and address
of the purchaser or transferee, the date of such transfer of title, and such other
information as the Board may reasonably require. Until such written notice is
received by the Board, the transferor shall continue to be jointly and severally
responsible for all obligations of the Owner of the Lot hereunder, including
payment of assessments, notwithstanding the transfer of title to the Lot.
Section 9.9. Gender and Grammar. The singular wherever used herein
shall be construed to mean the plural when applicable, and the necessary
grammatical changes required to make the provision hereof apply either to
corporations or other entities or to individuals, men or women, shall in all cases
be assumed as though in each case fully expressed.
Section 9.10. Severability. Whenever possible, each provision of this
Declaration shall be interpreted in such manner as to be effective and valid, but if
the application of any provision of the Declaration to any person or to any
property shall be prohibited or held invalid, such prohibition or invalidity shall
not affect any other provision or the application of any provision which can be
given effect without the invalid provision or application, and to this end the
provisions of this Declaration are declared to be severable.
Section 9.11. Right of Third Parties. This Declaration shall be recorded
for the benefit of Declarant, the Owners and their mortgagees as herein provided,
and by such recording, no adjoining property owner or third party shall have any
right, title or interest whatsoever in the Real Estate. Except as provided for
herein, or in the operation or continuation thereof or in the enforcement of any of
the provision hereof, and subject to the rights of Declarant and the mortgagees as
herein provided, the Association shall have the right to extend, modify, amend, or
otherwise change the provisions of this Declaration without the consent,
permission, or approval of any adjoining owner or third party.
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Section 9.12. Headings. The headings and captions contained in this
Declaration have been inserted and used solely for ease of reference and shall not
be considered in the interpretation or construction of this Declaration.
Section 9.13. Controlling Document. In the event there is a conflict of
interest between the provisions of this Declaration and any Plat, the terms and
provisions of this Declaration shall control.
Section 9.14. Waiver. The waiver by any party of a breach of or
noncompliance with any provision of this Declaration shall not operate or be
construed as a continuing waiver or a waiver of any other or subsequent breach or
noncompliance hereunder.
[signature page follows]
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IN WITNESS WHEREOF, Declarant has caused this Declaration of Covenants,
Conditions and Restrictions for the Ashmoor Property Owners Association to be made
and executed as of the date written above.
RH OF INDIANA, L.P., an Indiana limited
Partnership
By: RH Builders of Indiana, Inc., its
general partner
By:___________________________
Kenneth E. Windler
Assistant Vice President
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally appeared
Kenneth E. Windler, the Assistant Vice President of RH Builders of Indiana, Inc. the
general partner of RH of Indiana, L.P., an Indiana limited partnership, who acknowledged
the execution of the foregoing Declaration of Covenants, Condition and Restrictions for
the Ashmoor Property Owners Association on behalf of such limited partnership.
WITNESS my hand and Notarial Seal this _____ day of ________, 2015.
My Commission Expires:
___________________________________
____________________ Notary Public
My County of Residence:
___________________________________
____________________ Printed
This instrument was prepared by: Kenny Windler, Ryland Homes, 9025 North River,
Road, Indianapolis, IN 46240; (317) 846-3148.
I affirm, under the penalties of perjury, that I have taken reasonable care to redact each
Social Security number in this document, unless required by law. Kenny Windler
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EXHIBIT A
DESCRIPTION OF THE REAL ESTATE