HomeMy WebLinkAboutCovenantsDECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
OF
BALLANTRAE
~~
RFr.~~i~iED
~GV 40 2x03
DOCS
THIS DECLARATION, made on the 29"' day of October 2003, by Ballantrae Development, LLC
("Declarant"),
WITNESSETH:
WHEREAS, Declarant is the owner of certain real estate, located in Hamilton County, Indiana,
which is more particularly described in Exhibit "A" (hereafter "Property") attached hereto and by this
reference made a part hereof, upon which Declarant intends to develop a residential subdivision.
NOW, THEREFORE, Declarant hereby declares that all the Property shall be held, sold and
conveyed, subject to the following easements, restrictions, limitations, covenants and conditions, which
are for the purpose of protecting the value and desirability of, and which shall run with the Property and
be binding on all parties having any right, title or interest in the Property, or any part thereof, their heirs,
successors, and assigns, and shall inure to the benefit of each owner thereof.
ARTICLE i
Name
The subdivision of the Property created by this Declaration shall be known and designated as
Ballantrae (hereafer "Subdivision").
ARTICLE H
Definitions
The following terms, when used throughout this Declaration, shall have the following meanings
and definitions:
Section 2.1 "Articles" means the Articles of Incorporation of the Association (as hereinafter
defined) filed, or to be filed, with the Office of the Secretary of State of Indiana, as the same are or
hereafter may be amended from time to time.
Section 2.2 "Association" means the BALLANTRAE HOMEOWNERS ASSOCIATION, INC ,
a non-profit corporation, its successors and assigns.
Section 2.3 "Board of Directors" means the Board of Directors of the Association.
Section 2.4 "Builder" means a person or entity engaged in and responsible for the original
construction of a residence on a Lot.
Section 2.5 "Common Area"" means: (1) those portions of the Property, including improvements
thereto, facilities and personal properly owned, to-be-owned, leased or to-be-leased by the Association
from time to time for the common use, benefit and enjoyment of the Owners (as hereinafter defined), (2)
Lake Area, as defined below, and (3) items (if any) deemed Common Area for maintenance purposes
only. Unless expressly stated to the contrary, the term Common Area as used herein (whether or not so
expressed) shall include all portions of the Property designated on the Pla[ (as hereafter defined) as a
"Common Area," or such other areas within the Property that are not otherwise identified on the Plat (as
hereafter defined) as a lot or street. The Common Area to be conveyed to the Association at the time of
conveyance of the first Lot to an Owner is described in the Plat (as hereinafter defined).
Section 2.6 "Common Expenses" shall mean and refer to expenses of administration of the
Association, and expenses for the upkeep, maintenance, repair and replacement of all Common Area, and
all sums lawfully assessed against the Owners by the Association, and all sums, costs and expenses
declared by this Declaration to be Common Expenses.
,Section 2.7 "Declarant" means Ballantrae Development, LLC and its successors and assigns.
Section 2.8 "Development Period" means the period of time commencing with Declarant's
acquisition of the Property and ending when Declarant has completed the development and sale of, and no
longer owns, any Lot or any other portion of the Property. The Development Period shall recommence
each time the Declarant acquires any part (or all) of the Additional Property.
Section 2.9 "Dwelling Unit" means any single-family residence situated upon a Lot (as hereafter
defined).
Section 2.10 "Lake Area(s)" means any Common Area on which a lake now exists or is later
constructed by Declarant and "Lake" means a body of water which now exists or is later constructed by
Declarant in a Lake Area.
Section 2.11 "Lot" or "Lots" means, as the context requires, any parcel or parcels of land
designated as such upon the Plat (as hereinafter defined) or, after construction, that parcel of land upon
which there is constructed a Dwelling Unit that is conveyed to an Owner (as hereinafter defined) by the
Declarant. Subject to any necessary approval of the appropriate governmental authority, a "Lot" may
contain portions of real estate greater or less than its originally platted dimensions should the Declarant
deem it advisable in order to accommodate the construction of a Dwelling Unit.
,Section 2.12 "Owner" means the record owner, whether one or more persons or entities, of the fee
simple title to any Lot which is a part of the Property, including contract sellers, but otherwise excluding
those having such interest merely as security for the performance of an obligation. Unless specifically
indicated to the contrary, the term "Owner" shall include the Declarant.
.Section 2.13 "Plat" means the subdivision plats of the Property, which are recorded with the
Recorder of the county in which the Property is located, as the same may be hereafter amended or
supplemented pursuant to this Declaration.
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ARTICLE III
Property Rix~hts, Easements, and Encroachments
.Section 3. /Owners' Easements ofEnioyment of Common Areu. Every Owner shall have a
nonexclusive right and easement of enjoyment, in common with all Owners, in and to any Common Area,
which nonexclusive right and easement or enjoyment shall be appurtenant to and shall pass with title to
every Lot (in the form of a right to membership in [he Association), subject to the following provisions:
(a) The right of the Association to charge reasonable admission and other fees for the use of
recreational facilities, if any, situated upon the Common Area owned by the Association;
(b) The right of the Association to suspend the voting rights and right to use of any recreational
facilities, if any, by any Owner (i) for any period during which any assessment remains unpaid and (ii) for
a period not to exceed sixty (60) days for any infraction of its published rules and regulations;
(c) The right of the Association to promulgate reasonable rules and regulations governing the use
of the Common Area owned by the Association including, without limitation, parking, swimming,
boating, fishing, (including the denial thereof of any such rights) and upon improvements, additions or
alterations to the Lots and the Common Area owned by the Association;
(d) The rights of Declarant as provided in this Declaration, as the same may be amended from
time to time;
(e) The right of the Association to mortgage any or all of the Common Area owned by the
Association, upon the approval oftwo-thirds (b) of the membership of each class of members of the
Association;
(f) The easements reserved elsewhere in this Declaration and the right of the Association to grant
further reasonable utility easements across and through the Common Area owned by the Association for
the benefit of its members;
(g) The right of the Association to dedicate or transfer all or any part of the Common Area owned
by the Association to any public agency, authority or utility for such purposes and subject to such
conditions as may be agreed to by the members or otherwise allowed pursuant to this Declaration, as
amended. No such dedication or transfer, except as allowed pursuant to this Declaration, shall be
effective unless there is recorded an instrument agreeing to such dedication or transfer signed by two-
thirds (b) of the membership of each class of members of the Association;
(h) If ingress or egress to any Lot is through the Common Area, any conveyance or encumbrance
of such Common Area is subject to such Lot Owner's easement for ingress and egress;
(i) The right of the Declarant to erect any signs (i) advertising the sale of [he Property or any Lot
and/or (ii) identifying the Subdivision;
(j) The right of the Declarant to install, or cause to be installed, Technology Infrastructure in
Common Areas; and
(k) All other rights, obligations and duties as set forth in this Declaration, as the same may be
from time to time amended or supplemented.
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Section 3.2 Dele atigon of Use. In accordance with the By-Laws and any reasonable and
nondiscriminatory rules and regulations promulgated from time to time by the Association, and subject to
the rights of others as set forth in this Declaration, any owner may assign his or her right of enjoyment of
the Common Area owned by the Association, to family members, guests, tenants or contract purchasers
who reside on the Lot.
Section 3.3 Certain Obligations and Access Rights to the Common Area.
(a) Except as otherwise set forth in this Declaration, the Association, subject to the rights of the
Owners as set forth in this Declaration, shall be responsible for the management and control, for the
exclusive benefit of the Owners as provided herein, of the Common Area owned by the Association and
for the maintenance of [he same in good, clean, attractive, safe and sanitary condition, order and repair.
(b) The Association shall have and is hereby granted a general right of access and easement to all
of the Common Area owned by the Association and across the Lots, at reasonable times and at any time
in case of emergency, as reasonably required by its officers, directors, employees and their agents and
independent contractors, to the full extent necessary or appropriate to perform its obligations and duties as
set forth in this Declaration. The easements and rights specified herein also are reserved for the benefit of
Declarant so long as Declarant owns any portion of the Property and for so long as Declarant may be
liable under any builder's warranty.
.Section 3.~1 General Drainage Uti/iry Sewer and Other Development Easement -The following
rights and easements reserved in this Section 3.4 shall not be exercised with respect [o a Lot, after the
conveyance of such Lot, in a manner that (i) unreasonably and adversely affects any Dwelling Unit or
portion [hereof located upon such Lot or the Owner's use or enjoyment thereof, or (ii) unreasonably
restricts the rights of ingress and egress to such Lot. The following rights and easements reserved by
Declarant in this Section 3.4 shall run with the land, and Declarant's right to further alter or grant
easements shall automatically terminate and pass to the Association one (I) year after Declarant shall
have conveyed the last Lot within the Property.
(a) Declarant hereby reserves unto itself, and unto any public or private utility, a general
easement ("General Drainage, Utility, and Sewer Easement") for drainage, utility and sewer purposes in,
on and over all of [he Common Area and any Lot, so as to permit Declarant to properly install and allow
to be installed and maintained all electrical, telephone, water, gas, and sanitary and storm sewer, to serve
any Dwelling Unit constructed on the Property. This General Drainage, Utility, and Sewer Easement
shall include all areas of the Property outside any Dwelling Units, with the exception of any areas covered
by chimneys, or patios. Improvements or permanent structures installed within the Common Area are
subject to [he rights (including the right to remove where reasonably necessary without duty of
replacement or reimbursement) of the Declarant and any public or private utility to construct, maintain,
repair or remove any necessary facilities. By virtue hereof, Declarant reserves the right to install a lake(s)
or pond(s) on any Common Area. The rights hereunder and easements hereby reserved survive the
conveyance, by the Declarant to the Association, of any Common Area. This easement shall be in
addition [o any easement identified or designated upon a Plat as a drainage, sewer, utility, cable,
landscape, sign, transmission, flowage or similar type easement.
(b) Declarant reserves unto itself during the Development Period, and thereafter unto the
Association, an easement ("Lake Easement") and right-of--way in and to any Lake Area (s) or areas now
or hereafter shown on the Plat as a "Common Area," or "Lake" or any other Common Area within the
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Property used as a water retention or detention area, or on which a Lake now exists or is later constructed,
for the purpose of fulfilling any maintenance obligations set forth in this Declaration and/or establishing
and maintaining proper surface water drainage throughout the Property, and an easement of ingress and
egress through so much of the remainder of the Property as is reasonably necessary or appropriate, to
perform such actions as Declarant or the Association deem necessary or appropriate, for the purpose of
establishing and maintaining proper surface water drainagethroughoutthe Property, which such actions
shall include the construction, repair and maintenance of retention and detention ponds or lakes in
accordance with the requirements of applicable law and of all governmental agencies having jurisdiction
(without undertaking any obligation or duty to exceed such requirements).
(c) Declarant reserves unto itself during the Development Period, and thereafter unto the
Association, the right and an undefined sign and facilities easement ("Sign and Facilities Easement") to
install, erect, construct and maintain an entryway sign or signs, directional signs, advertising signs
advertising the Property or the Lots therein, lighting, walkways, pathways, fences, walls and any other
landscaping, architectural and recreational features or facilities considered necessary, appropriate, useful
or convenient, anywhere upon the Property (except upon any Lot after the first conveyance thereof). Any
such signs shall comply with any applicable zoning requirements and all such facilities shall be
maintained by the Association as a part of its Common Area maintenance obligations.
(d) Declarant reserves unto itself during the Development Period, and thereafter unto the
Association, the full right, title and authority to:
(i) Relocate, alter or otherwise change the location of any Drainage, Flowage, Utility,
Sewer and Lake, Sign and Facilities Easement, or any facility at any time located therein or
thereon;
(ii) Grant such further easements, licenses and rights-of--way, temporary or permanent,
exclusive or non-exclusive, surface or otherwise, as Declarant may deem necessary or
appropriate, for ingress and egress, utility and similar purposes on or within any portion of the
Property, for the benefit of the Property or any portion thereof; and,
(iii) Describe more specifically or to change the description of any Drainage, Flowage,
Utility, Sewer, Lake, Sign and Facilities Easement or any other easement, license or right-of--way
now or hereafter existing on the Property, by written instrument, amended Plat or amendment to
the Plat recorded in the Office of the Recorder of the County in which the Property is located.
(e) The title of the Association (as to the Common Area owned by [he Association during the
Development Period) and of any Owner of any Lot shall be subject to the rights and easements reserved
herein.
Section 3.1 Easement for Emergencv Purposes. An easement is hereby dedicated and granted for
use in the case of an emergency by emergency vehicles such as fire trucks, police cars and ambulances
and emergency personnel, public and private, over and upon the Common Area.
Section 3.6 Fee Title to Lot. The fee title to any Lot described as bounded by any street, lane,
walkway, park, pond, lake, or any other common property which has not been dedicated or accepted by
the public and the fee title to any Lot shown on any Plat as abutting upon any such common property
shall not extend upon such common property and the fee title to such common property is reserved to the
grantor to be conveyed to the Association for the common enjoyment of all residents in the Subdivision.
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Section 3.7 Designated Drainage. Utility and Sewer Easements. There are strips of ground
designated on the Plat as drainage easements, utility easements, sewer easements, sanitary sewer
easements and storm sewer easements, or any combination thereof (hereafter collectively "DU&E
Easements"), which are hereby reserved to the appropriate governmental entities, public utilities, and
private utilities for the installation and maintenance of swales, ditches, pipes, drains, sanitary sewers,
manholes, detention and retention areas or other drainage facilities. Purchasers of Lots in this Subdivision
shall take title subject to such DU&E Easements hereby created and subject at all times to the rights of
proper authorities to service and maintain such DU&E Easements. No permanent structure of any kind
and no part thereof except fences which do not retard or impede the flow of drainage water and which are
approved pursuant to Section 6.2 below, shall be built, erected or maintained on any drainage easements,
except by [he Declarant or its assigns. It shall be the responsibility of the Association and the Owners of
the areas enclosed within any drainage easements to maintain such areas in such conditions that the flow
of storm drainage waters on, across and from said areas shall not be impeded, diverted or accelerated.
Such use for storm water movement or retention or detention is hereby declared to be an easement and
servitude upon said land for the benefit of the Owners of other land included within the Plat, upstream or
downstream, affected by such use and for any proper governmental agency or department or any private
or public utility. All proper governmental agencies or departments and public and private utilities are
hereby given the right to obtain access to any DU&E Easement areas to perform maintenance and to
perform such maintenance as may be necessary to protect that easement and servitude rights. It shall be
the responsibility of the Association and the Owner of any Lot or parcel of land within the Plat to comply
at all times with the provisions of [he drainage plan as approved for the applicable Plat by the appropriate
governmental agency or department and the requirements of all drainage permits for such Plat issued by
[hose agencies. Failure [o so comply shall operate as a waiver and release of the Declarant, the developer,
or their engineers and agents from all liability as to damage caused by storm waters or storm drainage.
Further, there are easements and servitudes upon the land within the Plat in favor of surface water
runoff along natural valleys and drainage channels running [o Owners of other land contained within the
Plat, upstream and downstream. It shall be the responsibility of the Association and the Owners of these
natural valleys and channels to use their land and maintain said natural valleys and channels in such
manner and condition [ha[ the flow of storm drainage waters on, across, from and to such areas shall not
be impeded, diverted or accelerated.
Section 3.8 Designated Easements for Landsecrpin¢ Mounding. Screenin ag nd Silage Within
any strips of ground shown or designated on a Plat as a landscape easement, landscape maintenance
easement, landscape maintenance access easement, or by any similar language indicating a landscaping
purpose, Declarant hereby reserves unto itself during the Development Period and thereafter unto the
Association, the exclusive and sole right to (i) erect signs which advertise the Property or availability of
Lots, and/or identify the Subdivision and (ii) install landscaping, mounding, walls, and screening.
Notwithstanding anything in this Declaration to [he contrary, no planting shall be done, and no hedges,
walls, signs, fences or other improvements shall be erected or maintained in the area of such easements,
except by the Declarant during the Development Period and thereafter by the Association. Furthermore,
notwithstanding anything in this Declaration to the contrary, no planting shall be done, and no hedges,
walls, fences, structures, signs, or other improvements shall be erected between (i) the area of any such
easements and (ii) any perimeter roadway, public highway or right-of--way along the perimeter or
boundary of the Property, except by the Declarant.
Section 3.9 Street Dedication. All streets now or hereafter located upon the Property are hereby
dedicated to the public.
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Section 3.10 Easement Work. Notwithstanding any architectural approval under Section 6.2
below, during the course of any maintenance, service, repair or work upon any easement, the Declarant,
the Association, any private utility, any public utility, and/or any governmental entity shall have the right
and the authority, without any obligation or liability whatsoever planted, to any owner, to remove,
damage, or destroy any fence or other structure or landscaping built, erected, maintained or planted in any
easement described in Section 3.7 and Section 3.8 above.
Section 3.11 No Access. There may be strips of ground designated on the Plat as "no access
strips", "no access", "no access easement", "no access esmt", or by other similar language. Vehicular
ingress, egress, and [raveling and/or the construction of improvements for such ingress, egress and/or
traveling, is prohibited on, over, or across any such strips or areas.
Section 3.12 Reservation of Right to Grunt Easement. The Declarant hereby reserves the right,
in its discretion, to (i) grant easements upon, under, over and across the Property for the benefit of land
which is adjacent to the Property and/or (ii) to obtain, for the benefit of the Property, easements upon,
under, over and across the real estate which is adjacent to the Property.
ARTICLE IV
Association Membership, Voting Rights,
Board of Directors, and Projessionn! Management
Section 4.1 Membership. Initially, the person(s) who serve as incorpora[or(s) of the Association
shall be the member(s) (the "Initial Member(s)"). The initial Member(s) shall remain member(s) of the
Association until the Association Articles of Incorporation are accepted by the Indiana Secretary of State,
at which time the Initial Member(s) shall cease [o be member(s) unless [hey also qualify as Class A or
Class B members. Every Owner of a Lot which is subject to assessment shall be a member of the
Association. Apart from the Initial Member(s), a membership in the Association shall be appurtenant to
and may not be separated from ownership of any Lo[.
Section 4.2 Classes of Membership crud Votinx Rights. The Association shall have the following
two classes of voting membership:
Class A. Class A members shall be all Owners with the exception of the Declarant.
Class A members shall be entitled to one (I) vote for each Lot owned. When more than one
person holds an interest in any Lot, all such persons shall be members. The vote for such Lot
shall be exercised as the members holding an interest in such Lot determine among themselves,
but in no event shall more than one vote be cast with respect to any Lot.
Class B. The Class B member shall be the Declarant. The Declarant shall be entitled to
five (5) votes for each Lot owned. For purposes of this calculation, it shall be assumed that
Declarant owns all Lots, which number shall be reduced as Lots are conveyed by the Declarant to
an Owner. The Class B Membership shall cease and be converted to a Class A Membership on
the happening of either of the following events, whichever occurs earlier:
(i) December 31, 2015; or
(ii) When the total number of votes outstanding in the Class A Membership is equal
to the total number of votes outstanding in the Class B Membership; provided,
however, that [he Class B Membership shall recommence in the event that the
Declarant subsequently records a plat of part of or all of the Property and, by
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virtue thereof, total number of votes outstanding in the Class A Membership is no
longer equal to or greater than the total number of votes outstanding in the Class
B Membership.
Section 4.3 Board o(Directors. The Board of Directors of the Association shall be appointed
and/or elected as prescribed by the Association's Articles and By-Laws. The Board of Directors shall
manage the affairs of the Association. Directors need not be members of the Association.
Section 4.4 Professional Mana eq ment. The Association is permitted and authorized to enter into
an agreement or contract, approved by the Board of Directors, for professional management of the
Association.
ARTICLE V
Covenant jor Maintenance Assessments
Section J.1 Creation ofthe Lien and Personal Obli atg ion of Assessments. Declarant, for each Lo[
now or hereafter owned by it within the Property, hereby covenants, and each Owner of any Lot by
acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant
and agree to pay to the Association:
(a) Regular Quarterly Assessments (for maintenance, repairs and ordinary operating expenses,
including Common Expenses); and
(b) Special Assessments for capital improvements and operating deficits and for special
maintenance or repairs as provided in this Declaration.
Such assessments shall be established, shall commence upon such dates and shall be collected as
hereinafter provided. All such assessments, together with prejudgment interest at eight percent (8%) per
annum, costs and reasonable attorneys' fees, shall be a charge on the land and shall be a continuing lien
upon the property against which each such assessment is made. Each such assessment, together with
interest, costs, and reasonable attorneys fees, shall also be the personal obligation of the person who was
the Owner of such property a[ the time when the assessment fell due. The personal obligation for
delinquent assessments shall not pass to such Owner's successors in title unless expressly assumed by
them.
Section 5.2 Purpose of Regular Quarterly Assessments. The Regular Quarterly Assessments
levied by the Association shall be used exclusively, in the reasonable discretion of the Board of Directors
of the Association, for the promotion of the recreation, health, safety and welfare of the residents in the
Property, for the improvement, maintenance and repair of the Common Area, for the performance of the
obligations and duties of the Association and for other purposes only as specifically provided herein. As
and if necessary, a portion of the Regular Quarterly Assessments shall be set aside or otherwise allocated
in a reserve fund for the purpose of providing repair and replacement of the Common Area, and other
capital improvements which the Association is required to maintain.
Section 5.3 Mazinrum Re r~_Quarterly Assessments.
(a) Until January 1 of the year immediately following the conveyance of the first Lot to an
Owner, the maximum Regular Quarterly Assessment on any Lot shall be $750 per Lot per calendar
quarter (i.e., April I s[, July 1st, October 1st, and January 1st).
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(b) From and after January 1 of such year, the maximum Regular Quarterly Assessment may be
increased each calendar year not more than twenty percent (20%) above the maximum Regular Quarterly
Assessment for the previous year, without a vote of the membership.
(c) From and after January 1 of such year, the maximum Regular Quarterly Assessment may be
increased each calendar year by more than twenty percent (20%) above the maximum Regular Quarterly
Assessment for the previous year, by a vote oftwo-thirds (b) of the votes entitled to be cast by members
who cast votes in person or by proxy a[ a meeting duly called for this purpose.
(d) The Board of Directors from time to time may fix [he Regular Quarterly Assessment, without
any vote of the membership, a[ any amount not in excess of the maximum.
Section S.4_SDecia! Assessments for Capita!lmprovemen[s and Operating De kits. In addition to
the Regular Quarterly Assessments authorized above, the Association may levy a Special Assessment
applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction,
reconstruction, repair or replacement of any capital improvement which the Association is required to
maintain, or to recover any operating deficits which the Association may from time to time incur,
provided that any such assessment shall have the approval oftwo-thirds (b) of the votes entitled to be cast
by those members who cast votes in person or by proxy at a meeting duly called for this purpose.
Section 5.5 One Time Assessment. Upon (i) the closing of the initial conveyance of each Lot by
Declarant to an owner other a builder, or (ii) the sale of each Lot by a builder (other by deed or by
installment sale, conditional sale, or land contract sale), 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
towards its working capital and start-up fund, the amount of $500 per Lot, 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 and start-up fund shall be held and used
by the Association for the payment of, or reimbursement to, Declarant for advances, expenses of the
Association for its early period of operation, to enable the Association to have cash available to meet
unforeseen expenditures, or [o acquire additional equipment or services deemed necessary by the Board.
Section 5.6 Quorum. Written notice of any meeting called for the purpose of taking any action
authorized under this Article shall be sent [o all Members not less than thirty (30) days nor more than
sixty (60) days in advance of the meeting. At the first such meeting called, the presence of Members or of
proxies entitled to cast sixty percent (60%) of the total number of votes entitled to be cast (Class A and
Class B votes combined) shall constitute a quorum. If the required quorum is not present, another
meeting may be called subject to the same notice requirement, and the required quorum at the subsequent
meeting shall be one-half ('/z) of the required quorum at the preceding meeting. No such subsequent
meeting shall be held more than sixty (60) days following the preceding meeting.
Section S.7 Unifi~rm Rate ofAssessment. Regular Quarterly Assessments and Special
Assessments for capital improvements and to recover operating deficits must be fixed at a uniform rate
for all Lots; provided, however, that, notwithstanding anything to the contrary in this Declazation,
Declarant and any individual or entity purchasing a Lot or Lots solely for the purpose of construction of a
for-sale Dwelling Unit thereon (a "Builder") shall not pay any assessments including, without limitation,
any Regular Quarterly Assessments and Special Assessments, so long as any Dwelling Unit constructed
upon a Lot by Declarant or Builder has not been conveyed to an Owner intending to occupy or rent said
Dwelling Unit as a residence.
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Section 5.8 Date of Commencement of Quarterly Assessments: Due Dates. The Regular
Quarterly Assessment provided for herein shall commence as to each Lot within a recorded Plat on the
first day of the first month following the recording of such Plat. The Board of Directors shall fix any
increase in the amount of the Quarterly assessments at least thirty (30) days in advance of the effective
date of such increase. Written notice of any increase in the Regular Quarterly Assessment, and written
notice of any Special Assessment and such other assessment notices as the Board of Directors shall deem
appropriate, shall be sent to every Owner subject thereto. The due dates for all assessments, and the
assessment and collection period (i.e., annual, monthly, lump-sum or otherwise) for any Special
Assessments, shall be established by the Board of Directors. The Association shall, upon demand, and
for a reasonable charge, furnish a certificate in recordable form signed by an Officer of the Association
setting forth whether the assessments on a specified Lot have been paid. A properly executed certificate
from the Association regarding the status of assessments for any Lot shall be binding upon [he
Association as of the date of its issuance.
Section 5.9 E ect ofNon~ayment ofAssessrnents: Remedies of(he Association. If any
assessmenC (or periodic installment of such assessment, if applicable) is not paid on the due date
established therefor pursuant to this Declaration, then the entire unpaid assessment (together with interest
thereon, costs and attorneys' fees as provided in this Declaration) shall become delinquent and shall
constitute a continuing lien on [he Lotto which such assessment relates, binding upon the then Owner, his
Heirs, devisees, successors and assigns. The personal obligation of the then Owner to pay such
assessments, however, shall not pass to such Owner's successors in title unless expressly assumed by
them. If any assessment is not paid within thirty (30) days after [he due date, the assessment shall bear
interest from the date of delinquency at the rate of eight percent (8%) per annum, and the Association
may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien
against the property, or both. In such event, there shall be added to the amount of such assessment the
costs and attorney's fees of preparing and filing the complaint in such action; and in the event a judgment
is obtained such judgment shall include interest on the assessment as above provided, costs of the action
and reasonable attorneys' fees Co be fixed by the court. No Owner may waive or otherwise escape
liability for the assessments provided for herein by nonuse of the Common Area owned by the
Association or abandonment of his Lot.
Section 5.10 Subordhvation ofthe Lien to Mortgages: Sale or Transfer. The lien of the
assessments provided for herein shall be subordinate to the lien of any first mortgage. The sale or transfer
of any Lot pursuant to the foreclosure of any first mortgage on such Lo[ (without the necessity ofjoining
the Association in any such foreclosure action) or any proceedings or deed in lieu thereof shall extinguish
the lien of all assessments becoming due prior to the date of such sale or transfer. No sale or transfer of
any Lot (whether voluntary or pursuant to foreclosure or otherwise) shall relieve such Lot from liability
for any assessments thereafter becoming due or from the lien thereof; and, except as hereinabove
provided, the sale or transfer of any Lot shall not affect the lien of assessments becoming due prior to the
date of such sale or transfer except to the extent that a purchaser may be protected against the lien for
prior assessments by a binding certificate from the Association, issued pursuant to this Declaration, as to
whether or not such assessments have been paid.
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ARTICLE V[
Use, Restrictions, and Architecture/ Control
.Section 6.1 Lot Use and Conveyance. All Lots shall be used exclusively for single family
detached residential purposes, except that Declarant, during the Development Period, reserves (a) the
rights provided in this Declaration respecting the Property generally, and (b) the right to subdivide,
dedicate or otherwise convey or designate all or any portion of any one or more Lots which it may own
from time to time for recreational or other common uses and benefit of all Owners and other members of
the Association. Any Lot or portion thereof so designated for common use shall become part of the
Common Area owned by the Association, and reasonable rules and regulations shall be promulgated and
enforced with respect thereto so that the use and enjoyment of adjacent Lots by the Owners thereof shall
not be unreasonably disturbed. Except as provided in the Declaration, no Lot shall be subdivided to fonn
units of less area. Each Lot shall be conveyed as a separately designated and legally described freehold
estate subject to [he covenants, conditions and restrictions contained herein.
Section 6.2 Architectural Control. No building, outbuilding, mailbox, fence, satellite dish, wall
or other structure, except original construction of Dwelling Units by or on behalf of the Declarant, shall
be commenced, erected or maintained upon the Property, nor shall any exterior addition to or change or
alteration [herein, other than by the Declarant, be made until the plans and specifications showing the
nature, kind, shape, height, materials, color and location of the same shall have been submitted to and
approved in writing as [o harmony of external design and location in relation to surrounding structures
and topography by the Declarant, until the end of the Development Period, and thereafter by the Board of
Directors of the Association. After the Development Period, the Board of Directors may appoint three (3)
or more representatives to an Architectural Committee. Any change in the appearance or [he color of any
part of the exterior of a residence shall be deemed a change thereto and shall require the approval therefor
as above provided. However, there shall be no such approval of the planting of hedges, walls, fences,
structures and/or other improvements prohibited under Section 3.8 above, and any such approval shall be
null and void. [n the event that written approval is not received as required hereunder within thirty (30)
days afrer complete plans and specifications have been submitted, then the request for approval shall be
deemed denied.
Declarant intends that the members of the Architectural Committee exercise discretion in [he performance
of their duties 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 Architectural Committee and in any action initiated to
enforce this Declaration in which an abuse of discretion by the Architectural Committee is raised as
defense, abuse of discretion may be established only if a reasonable person, weighing the evidence and
drawing all inferences in favor of the Architectural Committee, could only conclude that such
determination constituted an abuse of discretion.
The Architectural Committee may inspect work being performed without the Owner's permission to
assure compliance with these restrictions and applicable regulations.
Neither the Architectural Committee nor any agent thereof, nor the Declarant, or Association shall be
liable in any way for costs, fees, damages, delays, or any charges or liability whatsoever relating to the
approval or disapproval of any plans submitted to it, nor shall the Architectural Committee, Association
or Declarant be responsible in any way for any defects in any plans, specifications or other materials
submitted to it, or for any defects in any work done according thereto. Further, the Architectural
Committee, Association and/or Declarant make no representation or warranty as [o the suitability or
advisability of the design, the engineering, the method of construction involved, or the materials to be
used. All parties should seek professional construction advice, engineering, and inspections on each lot
prior to proposing construction.
Section 6.3 Leasine. Any Lot may be leased by its Owner.
Section 6.4 Animals. No animals shall be kept or maintained on any lot except domestic,
household pets traditionally kept in individual residences throughout the state of Indiana. All such pets
shall be kept reasonably confined so as not to become a nuisance. Excessive barking of dogs or vicious
animals shall constitute a nuisance and may be ordered 6y the Association to be removed from the
property. All pets shall either be confined to their Owner's Lot by a leash, fence, or invisible fence or,
once outside their Owner's Lot, shall be secured by a leash held by a person capable of controlling the
pet.
Section 6.5 Outside Storaze. All equipment, garbage cans, service yards, woodpiles or storage
piles shall be kept from view of neighboring homes and streets. All rubbish, trash or garbage shall be
stored in enclosed containers, shall be regularly removed from the premises, and shall not be allowed to
accumulate thereon.
Section 6.6 Setback Lines. Front Building lines are hereby established as shown on the Plat.
Between such Front Building lines and the right-of--way lines there shall be erected, placed or altered no
structure or part thereof, except fences in keeping with architectural style as specifically approved by the
Declarant until the end of the Development Period, and thereafter by the Association Board of Directors
or Architectural Review Committee; provided, however, except that in no case will such fences be
permitted on the public right-of--way. The building lines which are from public right-of--way lines are
parallel to and measured perpendicularly from these public right-of--way lines.
Section 6.7 Side Setbacks. The minimum side yard and minimum rear yard requirements shall be
those established by the applicable zoning and subdivision control ordinances.
Section 6 8 Temporary Structures and Outbuildings. No structure of a temporary character, tent,
shed, basement, garage, barn or other out-building shall be erected, placed, or altered upon any Lot for
use as a residence either temporarily or permanently, or at any time be used for such purpose.
Section 6.9 Motor Vehicle Repair. The repair of inoperative motor vehicles or material alteration
of motor vehicles shall not be permitted on any Lot unless entirely within a garage permitted to be
constructed per the terms of the Declaration.
Section 6.10 Nuisances. No noxious or offensive activities shall be carried on or be permitted to
exist on any Lot, nor shall anything be done thereon which may be or become an annoyance or nuisance.
Any structure or building permitted to be constructed on any Lot by this Declaration, which may be all or
in part destroyed by fire, wind, storm or any other reason, shall be rebuilt and restored to its previous
condition within a reasonable length of time, and all debris accumulated in connection therewith shall be
removed within a reasonable time afrer any such occurrence.
Section 6.11 Permitted Uses. No use shall be made of any Lot except as permitted by the
applicable zoning and subdivision control ordinances under which this Property is developed.
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Section: 6.12 Drains. No house footing drain or roof water drain shall be discharged into the
sanitary sewers.
Section 6.13 Residential Use. Lots may be used only for residential. purposes and only for one
single-family dwelling, a private garage, and other such outbuildings as are usual and incidental to [he use
of a residential lot. All lots in this subdivision shall be designated as residential Lots, and no home shall
exceed two and one half (2-'h) stories or thirty-five (35) feet in height.
Section 6.1 d Size. Subject to any further restrictions imposed by any recorded commitment,
every single-family dwelling erected, placed, altered or maintained on any Lot within shall have a
minimum living area, exclusive of open porches, unfinished basements and attached garages, of not less
than what is required by the applicable zoning and subdivision control ordinances.
.Section 6.15 Site Visibility. No fence, wall, hedge or shrub planting which obstructs sight lines at
elevations between two (2) feet and nine (9) feet above the street shall be placed or permitted to remain
on any corner Lot within the triangular area formed by the street property lines and a line connecting
points twenty-five (25) feet from the intersection of said street lines, or in [he case of a rounded property
comer from the intersection of the street lines extended. The same sightline limitations shall apply to any
Lot within ten (10) feet from the intersection of a street line with the edge of a driveway pavement or
alley line. No tree shall be permitted to remain within such distances of such intersections unless the
foliage line is maintained at sufficient height to prevent obstruction of such sight lines. No fences shall be
permitted to be constructed between the front set back line and the street curb.
Section 616 Semi-Tractor trucks, trailers, etc. No semi-tractor trucks, semi-trucks, semi-tractor
trailers, boats, campers, mobile homes, disabled vehicles, and/or trailers shall be permitted to park on the
Property or a Lot unless fully enclosed in a garage, or unless the same is necessary and incident to the
Declarants, builder's or Association's business on the Property.
Section 6.17 S%Q77 Limitations. No sign of any kind, other than those installed by Declarant, the
Association, or a Builder, may be displayed to public view on any Lot, except that one sign with an area
of not more than six (6) feet may be displayed with the purpose of advertising the Lot for sale.
Section 6.18 Lakes. Lake Area(s). Except as otherwise provided, no individual using a Lake, if
any, has the right to cross another Lot or trespass upon shoreline no[ within a Common Area owned by
the Association, subject to the rights of the Declarant, the Association, their employees, heirs, successors
and assigns as set forth in the Declaration. No one shall do or permit any action or activity which could
result in pollution of any Lake, diversion of water, elevation of any Lake level, earth disturbance resulting
in silting or any other conduct which could result in an adverse effect upon water quality, drainage or
proper Lake management except as provided in [he Declaration. A Lake may not be used for swimming,
ice skating, boating, or for any other purpose, except for drainage of [he Property, unless expressly and
specifically approved by the Board of Directors in writing and allowed by law. Lakes and Lake Areas
may or may no[ exist on the Property, and the reference throughout this Declaration to Lakes and Lake
Areas is made in order to address Lakes and Lake Areas, if any, which now exist or are later constructed
upon the Property. The installation on the Property of any Lake or Lake Area shall be within the sole
discretion of the Declarant, and under no circumstances shall the Declarant be required or obligated to
install any Lake or Lake Area. Only the Declarant and the Association shall have the right to store items
or develop recreational facilities upon any Common Area owned by the Association adjacent to a Lake.
Section 6.19 Rules and ReQUlations. The Board of Directors from time to time may promulgate
further rules and regulations concerning the use of Lots and the Common Area owned by the Association.
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A majority of those Owners voting at a meeting called for the purpose may rescind or modify any rule or
regulation adopted by the Board of Directors. Copies of all rules and regulations shall be furnished by the
Board to all Owners, at the Owner's last known address, prior to the time when the same shall become
effective. The Association shall have current copies of the Declaration, Articles and By-Laws, and other
rules concerning the Property as well as its own books, records and financial statements available for
inspection by Dwelling Unit Owners or by holders, insurers and guarantors of first mortgages, that are
secured by Dwelling Units in the Property. These documents shall be available during normal business
hours or under other reasonable circumstances.
Section 6.20 Development and Sale Period. Nothing contained in this Article 6 shall be
construed or interpreted to restrict the activities of Declarant or a Builder in connection with the
development of the Property and sale of Lots. During the Development Period, Declarant or a Builder
shall be entitled to engage in such activities and [o construct, install, erect and maintain such facilities,
upon any portion of the Property at any time owned or leased by Declarant or a Builder, as in the sole
opinion of Declarant or a Builder may be reasonably required, or convenient or incidental to, the
development of the Property and sale of the lots; such facilities may include, without limitation, storage
areas, signs, parking areas, model residences, construction offices, sales offices and business offices.
Section 6.2! Outside U,tie ofLots. Except in an individual patio area appurtenant to a Dwelling
Unit, no planting or gardening shall be done, and no fences, hedges, walls or other improvements shall be
erected or maintained upon the Property except such as installed in accordance with the initial
construction of the buildings located thereon or as approved by the Board of Directors. Above ground
swimming pools are prohibited on the Property.
Section 6.22 Mailboxes. All mailboxes installed upon Lots shall be uniform and shall be of a
type, color and manufacture approved by the Declarant during the Development Period and, thereafter, by
the Board of Directors of the Association.
Section 6.23 Home Occupations. No Lot or Dwelling Unit located thereon shall be used for any
purpose other than as a single family residence, except a home occupation which is both permitted under
the applicable zoning ordinance and which also complies with the following guidelines:
(a) Any home occupation must be conducted entirely within the residence
and conducted solely by a member of the immediate family residing in
said Dwelling Unit;
(b) Any home occupation must be clearly incidental and secondary to the use of the
Dwelling Unit for residential purposes;
(c) There can be no sign or display that will indicate from the exterior of the
Dwelling Unit that the Dwelling Unit is being used, in whole or in part, for any
purpose other than that of a residential dwelling;
(d) No commodity can be sold from the Lot or Dwelling Unit located thereon.
(e) No person can be employed other than a member of the immediate family
residing in the Dwelling Unit;
(f) No manufacturer or assembly operations can be conducted; and
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(g) Customers cannot enter upon the Lot or Dwelling Unit for [he purpose
of conducting business.
In no event shall the following similar activities be conducted: child care, barber shop, styling salon,
animal hospital, kennel, any form of animal care or treatment such as dog trimming, or any similar
activities.
Section 6.24 Fences. The Architectural Committee, prior to any installation, must approve any
fencing and landscape screening. 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 Architectural Committee when reviewing fences for approval. No
front yard fencing is permitted, except on a Lot on which there is maintained a sales office or model home
by Declarant or Builder. If approved by the Architectural Committee, fences may be privately installed
but must be constructed to professional levels of quality, design, material, composition, and color as
determined by the Architectural Committee. Non-professionally installed fences may be inspected by the
Architectural Committee after completion in order to ensure that the fence is of a professional quality, and
final approval of such fence shall be deemed withheld until completion of this final review. All fences
shall be kept in good repair by the Owner. No fence shall be located any closer to the front line than the
rear foundation line of the residence.
The Architectural Committee must approve all fencing materials, design, and location. Only wrought
iron and wrought iron appearing fences are permitted, and the Architectural Committee may not approve
any fence which is not wrought iron or wrought iron in appearance. Walls above grade must be
constructed of natural stone, masonry, or wood. The Architectural Committee will approve landscape
screening materials, design, and location on an individual basis.
The exact location, material, color and height of the fence and rendering or photograph thereof shall be
submitted to the Architectural Committee for written approval at least thirty (30) days prior to proposed
construction. If however, approval has not been received by applicant in writing within thirty (30) days
after submitted, then said request shall be considered DENIED.
Section 6.25 Animal Kennels. Animal kennels or quarters, whether connected to or detached
from a Dwelling Unit, are prohibited.
Section 6.26 Tree Preservation. Any and all areas on a Lot and/or Common Area which were not
cleared by the Declarant in connection with the development of such Lot or Common Area shall hereafter
be referred to as Tree Preservation Area. All Tree Preservation Areas shall be kept in their natural state,
and no trees, whether living or dead, shall be removed from the Tree Preservation Areas, unless such
removal is necessary in order to eliminate a threat to public health, safety, welfare, or nearby structures.
Tree preservation provisions have been made a part of the Architectural Standards of Ballantrae and have
been filed with the City of Carmel under Docket Number 28-03-PP.
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ARTICLE VII
Maintenance, Repairs and Replacements
Section 7.1 By Owners. Except as specifically provided in this Declaration, each Owner shall
furnish and be responsible for the maintenance of all portions of his Lot. All fixtures and equipment
installed within or as part of the Dwelling Unit, commencing at the points where the utility lines, pipes,
wires, conduits or systems enter the Lot upon which said Dwelling Unit is located, shall be maintained
and kept in repair by the Owner thereof. Each Owner shall promptly perform all maintenance and repair
of his Lot and Dwelling Unit which, if neglected, might adversely affect any other Lot or Dwelling Unit
or any part of the Common Area owned by the Association. Such maintenance and repairs include, but
are not limited to, all exterior surface, siding, roof, gutters, internal water lines, plumbing, electric lines
gas lines, appliances, and all other fixtures, equipment and accessories belonging to the Owner and a part
of or appurtenant to his Dwelling Unit or Lot. Each Owner shall be responsible for maintaining the
photocell controlled light in the front yard so that it operates properly.
Section 7.2 Common Properties and Lawns by the Association.
(a) The Association, as part of its duties, and as part of the Common Expenses, shall provide for:
(i) Maintenance of the Common Area. Maintenance of the Common Area shall include,
but shall not be limited to, leaf removal, treating any Lakes, mowing, fertilization and irrigation
of the grass, and maintenance of any other improvement within the Common Area;
(ii) Maintenance of the entry signs, street signs and the permanent subdivision
identification sign located in any Common Area, and landscaping installed by the Declarant in
any Common Area, or any Landscape Easement, Landscape Maintenance Easement, Landscape
Maintenance Access Easement or similar easement;
(iii) The costs of maintaining and lighting of any street lights which are installed by
Declarant and which are not located upon any Lot; and,
(iv) The maintenance of any brick surface installed, by Declarant on any internal
street or entryway.
(v) The maintenance of any pond or lake equipment, including but not limited to
fountains, pumps, aerators, and edging.
The Board of Directors may adopt such other rules and regulations concerning maintenance,
repair, use and enjoyment of the Common Area owned by the Association (or any items deemed Common
Area for purposes of maintenance only) as it deems necessary.
(b) Notwithstanding any obligation or duty of the Association to repair or maintain any of the
Common Area owned by the Association (or any items deemed Common Area for purposes of
maintenance only), if, due to the willful, intentional or negligent acts or omissions of an Owner or a
member of his family or of a guest, tenant, invitee or other occupant or visitor of such Owner, damage
shall be caused to the Common Area owned by the Association (or any items deemed as such for
purposes of maintenance only), or if maintenance, repairs or replacements shall be required thereby which
would otherwise be at the Common Expense, then such Owner shall pay for such damage and such
maintenance, repairs and replacements, as may be determined by the Association, unless such loss is
covered by the Association's insurance with such policy having a waiver of subrogation clause. If not
paid by such Owner upon demand by the Association, the cost of repairing such damage shall be added to
and become a part of the assessment to which such Owner's Lot is subject.
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(c) The authorized representatives of the Association, the Board of Directors and the Managing
Agent for the Association (if any) are hereby granted an easement for access upon and to any Lot as may
be required in connection with maintenance only, repairs or replacements of or to the Common Area
owned by the Association or any items deemed as Common Area for purposes of maintenance only,
including, but not limited to, access to any easements reserved by any Plat of any portion of the Property
for such purposes.
Section 7.3 Other Maintenance Landscaping and Snow Removal. The obligations of the
Association shall also include the following with respect to Lots for which all assessments due under this
Declaration are current:
(a) The Association shall mow, trim, irrigate and fertilize grass located on a Lot. Provided,
however, that the Association shall not be required to maintain, irrigate or fertilize any
flowers, plants, trees or shrubs;
(b) The Association will provide for leaf removal from the Lots;
(c) The Association shall provide snow removal from streets, driveways, and walkways from
driveways to residences, but not from the sidewalks;
(d) The Association shall maintain all street signs installed by Declarant;
(e) The Association shall seal asphalt driveways on Lots on an as-needed basis, as
determined by the Association in the Association's sole and subjective discretion; and
(f) The Association shall maintain all sidewalks installed by Declarant.
ARTICLE VIII
Insurance
Sectron 8. / Liability Insurance. The Association shall purchase a master comprehensive general
liability insurance policy in such amount or amounts as the Board of Directors shall deem appropriate
from time to time. Such comprehensive general liability insurance policy shall cover the Association, its
Board of Directors, any committee or organ of the Association or Board of Directors, all persons acting or
who may come to act as agents, or employees of any of the foregoing with respect to the Association. It
shall also cover all Common Area owned by the Associations, public ways and any other areas under the
Association's control or supervision. The Hamilton County Drainage Board is to be named as an
additional insured on the policy, with minimum liability coverage of $500,000. The premiums for all such
liability policies shall be a Common Expense.
Section 8.2 Fidelity Bonds. The Association shall have blanket fidelity bonds for anyone who
either handles or is responsible for funds held or administered by the Association, whether or not they
receive compensation for their services. The Association bonds shall name the Association as the obligee
and the premium shall be paid as a Common Expense by the Association. Any management agent that
handles funds for the Association shall be covered by its own fidelity bond, which must provide the same
coverage required of the Association. The Association shall be named as an additional obligee in the
management agent's bond. The fidelity bond shall cover the maximum funds that will be in the custody
of the Association or its management agent at any time while the bond is in force. In addition, the fidelity
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bond coverage must at least equal one (1) years' assessments on all Dwelling Units in the Property, plus
the Association's reserve funds. [f available, the fidelity bonds must include a provision that calls for ten
(10) days' written notice to the Association or insurance trustee before the bond can be canceled or
substantially modified for any reason.
Section 8.3 Miscellaneous Insurance Provisions. The Association shall obtain any other
insurance required by law to be maintained, including but not limited to workmen's compensation
insurance, and such other insurance as the Board of Directors shall from time to time deem necessary,
advisable or appropriate. Such insurance coverage shall also provide for and cover cross liability claims
of one insured party against another insured party. Such insurance shall inure to the benefit of the
Association, its Board of Directors and any managing agent acting on behalf of the Association. The
premiums for all such insurance coverage shall be a Common Expense.
Section 8A Casualty and Restoration. Damage to or destruction of any Common Area actually
owned by the Association due to fire or any other casualty or disaster shall be promptly repaired and
reconstructed by the Association and the proceeds of insurance, if any, shall be applied for that purpose.
The same obligation shall apply to an Owner, and not the Association, for damage or destruction to the
Owner's Dwelling Unit. For purposes of this Section, repair, reconstruction and restoration shall mean
construction or rebuilding of the damaged property to as neaz as possible the same condition as it existed
immediately prior to the damage or destruction, with the same or a similar type of architecture.
Section 8.5 Insu~cienc,LOfinsurance Proceeds. If the insurance proceeds received by the
Association as a result of any such fire or any other casualty or disaster are not adequate to cover the cost
of repair and reconstruction, or in the event there are no insurance proceeds, the cost for restoring the
damage and repairing and reconstructing the Common Area actually owned by the Association or any
improvements damaged or destroyed (or the costs thereof in excess of insurance proceeds received, if
any) shalt be paid by the Association which shall then have the right to levy a Special Assessment against
all Lots for such deficiency.
Section 8.6 Surplus oflnsurance Proceeds. In the event that there is any surplus of insurance
proceeds after the reconstruction or repair of the damage has been fully completed and all costs paid, such
sums may be retained by the Association as a reserve or may be used in the maintenance and operation of
the Property. The action of the Board of Directors in proceeding to repair or reconstruct damage shall not
constitute a waiver of any rights against any Owner for committing willful or malicious damage.
ARTICLE IX
Mortgages
Section 9.1 Mortg~ee Ri¢hts. In addition to any other rights provided elsewhere in this
Declaration to mortgagees, any lender or lenders holding a first mortgage or first mortgages upon any Lot
or Lots, jointly or singly, may pay any real estate taxes or other taxes or charges which are in default and
which may or have become a charge or lien against any Common Area owned by the Association or any
other property owned by the Association; and may pay any overdue premiums on any hazard, casualty,
liability or other insurance policies or secure new insurance coverage on the lapse of any policies for any
such property owned by the Association or covering any property for which the Association has an
obligation to maintain insurance coverage. Any such lender or lenders making payments in accordance
with this Section shall be entitled to immediate reimbursement therefor from the Association along with
any costs incurred, including reasonable attorneys' fees.
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Section 9.2 Notice to Mordgagees. The Association, upon request, shall provide to any lender
holding a first mortgage upon any Lot, a written certificate or notice specifying unpaid assessments and
other defaults of the Owner of such Lot, if any, in the performance of such Owner's obligations under this
Declaration, the Articles of Incorporation of the Association, its By-Laws or any other applicable
documents, which default has not been cured within sixty (60) days. A reasonable charge maybe made by
the Association for the issuance of any such certificate or notice, and any such certificate properly
executed by an officer of the Association shall be binding upon the Association, as provided in this
Declaration.
Section 9.3 Condemnation and Insurance Awards. No provisions of this Declaration, or any
amendment thereto, shall give an Owner, or any other party, priority over any rights of the first mortgagee
of a Lot pursuant to its mortgage in the case of a distribution to such Owner of insurance proceeds or
condemnation awards for losses to or a taking of Common Area property.
Section 9.4 Right of First Refusal. The Association DOES NOT have the "right of first refusal"
to purchase any Dwelling Unit. Any right of "right of first refusal" subsequently granted to the
Association through amendment of the Declaration, Association Articles, Association By-Laws or any
other document governing the development and administration of the Properties must receive the prior
written approval of the Federal Housing Administration or Secretary of the Department of Housing and
Urban Development. Any "right of first refusal" subsequently added in the Declaration, Association
Articles, Association By-Laws or any other document governing the development and administration of
the Property must not impair the rights of a first mortgagee to:
(a) Foreclose or take title to a Dwelling Unit, and the Lot upon which the Dwelling Unit is
situated, pursuant to the remedies in the mortgage;
(b) Accept a deed or assignment in lieu of foreclosure in the event of default by a mortgagor; or
(c) Sell or lease a unit acquired by the mortgagee.
Section 9.5 Unpaid Dues or Charges. Any first mortgagee who obtains title to a Dwelling Unit,
and the Lot upon which the Dwelling Unit is situated, pursuant to the remedies in the mortgage or through
foreclosure, will not be liable for the Dwelling Unit's unpaid dues or charges accrued before the
acquisition of the title to the Dwelling Unit by the mortgagee.
ARTICLE X
General Provisions
Section 10.1 Right of Enforcement. In the event of a violation, or threatened violation, of any of
the covenants, conditions and restrictions herein enumerated, Declarant, the Association or any Owner
and all parties claiming under them shall have the right to enforce the covenants, conditions and
restrictions contained herein, and pursue any and all remedies, at law or in equity, available under
applicable Indiana law, with or without proving any actual damages, including the right to secure
injunctive relief or secure removal by due process of any structure not in compliance with the covenants,
conditions and restrictions contained herein, and shall be entitled to recover reasonable attorneys' fees
and the costs and expenses incurred as a result thereof.
Section 10.2 Severability and Waiver. The Declaration shall be enforceable to the fullest extent
permitted at law or in equity. Invalidation of any one of the covenants, restrictions or provisions
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contained in this Declaration by judgment or court order shall not in any way affect any of the other
provisions hereof, which shall remain in full force and effect. No delay or failure by any person to
enforce any of the restrictions or to invoke any available remedy with respect to a violation or violations
thereof shall under any circumstances be deemed or held to be a waiver by that person of the right to do
so thereafter, or as estoppel of that person to assert any right available to him upon the occurrence,
recurrence or continuation of any violation or violations of the restrictions.
Section 10.3 Assignment. Declarant may at any time assign some or all of its rights and
obligations under this Declaration. Such assignment shall be effective after it is executed and recorded by
Declarant with the Recorder of the County in which the Property is located. After such assignment is
recorded with the Recorder of the County in which the Property is located, Declarant shall have no further
obligations or liabilities under the Declaration with respect to [he rights or obligations assigned.
Section 10.4 Amendment. This Declaration and the covenants, conditions and restrictions set
forth in this Declaration, as from time to time amended in the manner hereafter set forth, shall run with
the land and shall be binding upon the persons owning any portion of the Property and all parties closing
under them. This Declaration may be amended or modified at any time by an instrument recorded in the
Office of the Recorder of the County in which the Property is located, approved and signed by at least
seventy-five percent (75%) of the then Owners. Provided, however, that none of the easements, rights, or
duties of Declarant reserved or set out hereunder may be amended or changed without Declarant's prior
written approval. Except as prohibited in the paragraph immediately below, the Declarant reserves the
right and power to amend this Declaration without the approval of the Owners: (i) to correct or clarify the
legal description of the Property; (ii) to correct clerical or typographical errors; (iii) to make nominal
changes in the Declaration; (iv) to the extent necessary to conform to any requirements imposed or
requested by any governmental agency, public authority or financial institution (including the U.S.
Department of Housing and Urban Development, [he U.S. Veterans Administration, Federal National
Mortgage Association, Federal Home Loan Mortgage Corporation, or similar agency); or (v) to the extent
necessary to enable the Declarant to meet any other reasonable need or requirement, including those
associated with the completion of the development of the Property and to facilitate the making or
marketing of first mortgages upon any lots. Any amendment must be recorded.
Neither the Association, the Owners or Declarant shall effect any of the following changes
without the prior written approval oftwo-thirds (b) of the Owners of Lots (excluding Declarant or
Builder):
(a) By act or omission seek to abandon, partition, subdivide, encumber, sell or transfer the
Common Area owned directly or indirectly by the Association for the benefit of the Owners of the
Dwelling Units. The granting of easements for public utilities or other public purposes consistent with
the intended use of the Common Area owned by the Association by the Dwelling Unit Owners is not a
transfer in the meaning of this clause;
(b) Fail to maintain fire and extended coverage on insurable Common Area owned by the
Association on a current replacement cost basis in an amount at least one hundred percent (100%) of the
insurable value (based on current replacement costs);
(c) Use hazard insurance proceeds for losses to any Common Area owned by [he Association for
other than the repair, replacement, or reconstruction of the Common Area owned by the Association.
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Section 10.5 Condemnation. Destruction or Liquidation. The Association shall be designated to
represent the Owners in any proceedings, negotiations, settlements or agreements for the handling of any
losses or proceeds from condemnation, destruction or liquidation of all or a part of the Common Area
owned by the Association, or from the termination of the development. Each Dwelling Unit Owner, by
his acceptance of a deed, appoints the Association as his attorney-in-fact for this purpose. Proceeds from
the settlement will be payable to the Association for the benefit of the Dwelling Unit Owners and their
mortgage holders. Any distribution of funds in connection with the termination of this development shall
be made on a reasonable and an equitable basis.
IN WITNESS WHEREOF, Ballantrae Development, LLC has caused this Declaration to be
executed as of the date first written above.
BALLANTRAE DEVE;.@$MENT, LLC
Anderson, President
STATE OF INDIANA )
SS:
COUNTY OF HAMILTON )
Before me the undersigned, a Notary Public in and for said County and State, personally appeared
James J. Anderson, the President of Ballantrae Development, LLC, and having been duly sworn,
acknowledged execution of this Declaration of Covenants, Conditions and Restrictions of Ballantrae.
Witness my hand and Notarial Seal this day of ~p'tD~,C,!/ , 2003.
My Commission Expires:
[a. l8. oq Darlene Lorenz, Not \ lic
Residing in Hamilton Co tty
Prepared By: Charles D. Frankenberger, NELSON & FRANKENBERGER, 3021 East 98th Street,
Suite 220, Indianapolis, Indiana 46280, (317) 844-0106.
H:\UserUane[\Anderson\Bal I antrae\CC R-Non-rxpandable.doc
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Exhibit A -Description of Real Estate
Part of the Northeast Quarter of Section 22, Township 18 north, Range 3 East, in Clay
Township, Hamilton County, Indiana, described as follows:
Beginning at the North line of the Northeast Quarter of Section 22, Township 18
North, Range 3 East, 412.50 feet North 90 degrees 00 minutes 00 seconds (assumed
bearing) from the Northwest corner of said Northeast Quarter; thence South 00
degrees 59 minutes 49 seconds West 494.60 feet to a found iron pipe; thence North
80 degrees 41 minutes 57 seconds East 477.97 feet to a fence line; thence North 06
degrees 14 minutes 56 seconds East along said fence line and prolongation thereof,
419.77 feet to the North line of said Northeast Quarter; thence South 90 degrees 00
minutes 00 seconds West on said North line 508.77 feet to the Place of Beginning,
containing 5.107 acres, more or less.
Less the following Right-of--Way deeded to Hamilton County, Indiana on January 12,
1999:
Part of the Northeast Quarter of Section 22, Township 18 North, Range 3 East in
Washington Township, Hamilton County, Indiana, being described as follows:
Commencing at a Hamson Marker at the northeast corner of the northeast quarter of
Section 22, Township 18 North, Range 3 East; thence South 89 degrees 30 minutes
26 seconds West along the north line thereof a distance of 1777.88 feet to the
BEGINNING POINT: thence South 00 degrees 29 minutes 34 seconds East a
distance of 16.50 feet; thence South 78 degrees 16 minutes 39 seconds West a
distance of 95.28 feet; thence South 89 degrees 30 minutes 26 seconds West parallel
with said north Quarter line a distance of 150.01 feet; thence North 79 degrees 54
minutes 48 seconds West a distance of 101.08 feet; thence North 00 degrees 29
minutes 34 seconds West a distance of 16.5 feet to the North line thereof; thence
North 89 degrees 30 minutes 26 seconds East along said north line a distance of
342.82 feet to the BEGINNING POINT, containing 0.235 acres, more or less.
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