Declaration Of Covenants, Conditions And
Sycamore Creek Subdivision, A Planned Unit Development
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
This DECLARATION creating covenants, conditions and restrictions,
made on the date hereinafter set forth, by CAMERICON, INC., a Delaware corporation,
hereinafter referred to as "Declarant".
A. Declarant is the owner in fee simple of the following
described real estate situated in the City of Fairborn, County of Greene, State of Ohio:
Lots Numbered 2 through 10, inclusive, of Sycamore Creek
Subdivision, A Planned Unit Development as recorded in Plat Book 19, Page 60 of the Plat
Records of Greene County, Ohio.
B. The above described real property is hereinafter referred
to as the "Property", and it is the desire and intent of the Declarant to
develop such property as a residential community consisting of dwelling units in buildings
together with green space, open land, driveways, parking and other recreational areas.
C. Declarant is also the owner of the real property described
in "Exhibit B" hereof, and contemplates submitting such property to the
provisions of the Declaration, by an amendment or amendments hereto.
D. Declarant desires to establish a plan of covenants,
conditions, restrictions and private assessments to provide for the preservation of the
values and amenities in the Property. To these ends Declarant is making this
Declaration, and has caused to be formed an Ohio not-for-profit corporation named Sycamore
Creek Homeowners' Association, Inc., to own the Common Area and to enforce and administer
the provisions hereof.
NOW, THEREFORE, Declarant hereby declares that all of the Property,
and any additional property to be added to his plan as hereinafter provided, shall be
held, sold and conveyed subject to the following easements, restrictions, convenants,
conditions and assessments, all of which are for the purpose of enhancing and protecting
the value, desirability and attractiveness, unless otherwise specifically limited herein,
shall run with such property submitted hereby, and any additions thereto, and shall be
binding on all parties having or acquiring any right, title or interest in the Property or
any part thereof and additions thereto, and shall inure to the benefit of each Owner or
any part thereof.
The following terms used herein are defined as follows:
A. Articles, shall mean and refer to the
Articles of Incorporation of the Association.
B. Association, shall mean and refer to Sycamore
Creek Homeowners' Association, Inc. an Ohio not-for-profit corporation, its successors and
C. By-Laws, shall mean and refer to the
By-Laws of the Association.
D. Common Area, shall mean and refer to
that part of the Property which shall be conveyed to and owned by the Association for the
common use, enjoyment and benefit of the membership of the Association and described in
Item 2, Section C hereof.
E. Declarant, shall mean and refer to the
Camericon, Inc., a Delaware corporation, its successors and assigns.
F. Dwelling Unit, shall mean and refer to
a residential unit which has been constructed on a Lot within the Property.
G. Lot, shall mean and refer to those
parcels of real property on which Dwelling Units are to be constructed as set forth in
Item 2, Section B hereof.
H. Member, shall mean and refer to an
Owner that is subjected hereto.
I. Owner, shall mean and refer to the
Owner of any Lot on which Dwelling Units have been or are to be constructed thereon and
for the purposes thereof shall include Declarant.
J. Property, shall mean and refer to the
real property subject to this Declaration as described in Recital A hereof.
2. DESCRIPTION OF PROPERTY.
A. A legal description of the Property subject to
this Declaration is set forth in Recital A hereof.
B. Unless or until amend, there shall be a total
of eight(8) Dwelling Units constructed, with one(1) Dwelling Unit constructed on the
following described Lots:
Situate in the City of Fairborn, County of Greene, State of Ohio
and being Lots Numbered 2 through 9 inclusive of Sycamore Creek Subdivision, A Planned
Unit Development as recorded in Plat Book 19, Page 60 of the Plat Records of Greene
C. The Common Area shall consist of the following
Situate in the City of Fairborn, County of Greene, State of Ohio
and being Lot Numbered 10 of Sycamore Creek Subdivision, A Planned Unit Development as
recorded in Plat Book 19, Page 60 of the Plat Records of Greene County, Ohio.
A. Organization. The association was
formed as an Ohio not-for-profit corporation pursuant to the provisions of Chapter 1702 of
the Ohio Revised Code, by the filing of its Articles with the Secretary of the
State of Ohio. On the date of its incorporation, the Association duly adopted a set
of administrative operating rules called By-Laws. The Articles and By-Laws are
attached hereto collectively as "Exhibit A".
B. Membership. Each Owner within the
Property, upon acquisition of title to a Lot, shall automatically become a Member of the
Association, Membership is appurtenant to and shall not be separated from ownership of a
Lot. Such membership shall terminate upon the sale or other disposition by such
Member of his Lot ownership, at which time the new Owner automatically shall become a
Member of the Association. When more than one (1) person is an Owner of a Lot, all
such persons shall be Members.
C. Voting Rights. Each Owner shall be
entitled to the number of votes in the affairs of the Association that equals the number
of Lots owned by that Owner. If such Lots are owned by more than one (1) person,
each such person shall have a fraction of a vote equal to his, her, or its undivided
interest in that Lot.
D. Administration of Property. The
administration of the Property shall be in accordance with the provisions of this
Declaration, the Articles, and the By-Laws. Each Owner, tenant, or occupant of a Lot
shall comply with the provisions of this Declaration, the Articles, and the By-Laws,
decisions and resolutions of the Association or its representative, and failure to comply
with such provisions, decisions or resolutions shall be grounds for an action to recover
sums due for damages or for injunctive relief.
E. Board of Trustees. The Board of
Trustees, elected as provided by the By-Laws shall exercise the powers, discharge the
duties and be vested with the rights conferred by operation of law, the Articles, the
By-Laws and by this Declaration upon the Association, except as otherwise specifically
provided; provided, however, that in the event any such power, duty or right shall be
deemed exercisable or dischargeable by, or vested in, a member of the Board of Trustees,
he shall be deemed to act in such capacity to the extent required to authenticate his acts
and to carry out the purposes of this Declaration, the Articles, and the By-Laws.
F. Declarant's Rights. Until such
time as the sale of seventy-five percent (75%) of all Lots to Owners, have been
consummated, the powers, rights, duties and functions of the Association shall be
exercised by a Board of Trustees selected by Declarant, with at least two (2) of the
persons so selected being Owners, other than Declarant, its agents or representatives.
Declarant reserves the right to relinquish such right to control at any time.
G. Delegation of Authority. The Association
may delegate all or any portion of its authority to discharge its responsibilities to a
managing agent. This delegation of authority to a managing agent shall be evidenced
by a written agreement which shall be (a) terminable by the Association for cause on
fifteen (15) days written notice thereof, and (b) not to exceed a term of one (1) year,
renewable by agreement of the parties for successive one (1) year periods.
4. CONVEYANCE OF COMMON AREA.
Declarant agrees that
prior to the time that any Lot is conveyed to any Owner, it will convey the Common Area to
the Association free and clear of all liens and encumbrances except general real estate
taxes not then due and payable, easements granted for public utilities or for other public
purposes consistent with the intended use of the Property under this Declaration.
All improvements to the Common Area shall be fully installed, completed and operational at
the time of such conveyance.
A. Owner's Easements of Enjoyment.
Every owner shall have a right and easement of enjoyment in and to the Common Area which
shall be appurtenant to and shall pass with the title to every Lot subject to:
(1) The right to the Association to suspend the
voting rights and right to use the Common Area, other than for purposes of ingress, egress
or parking, for any period during which any assessment against his Lot remains unpaid; and
for a period not to exceed sixty (60) days for any infraction of its published rules and
regulations after hearing by the Board of Trustees.
(2) The right of the Association to dedicate or
transfer all or any part of the Common Area to any public agency, authority or utility for
such purposes and subject to such conditions as may be agreed to by the Members. No
such dedication or transfer shall be effective unless an instrument signed by two-thirds
(2/3) of the Members, agreeing to such dedication or transfer has been recorded.
B. Delegation of Use. any Owner may
delegate, in accordance with the By-Laws, his right of enjoyment in and to the Common Area
to the members of his family, his tenants, or contract purchasers who reside on the
C. Easements for Repair, Maintenance and
Restriction. The Association shall have a right of access and an easement to,
over and through each Lot, during reasonable hours and upon giving reasonable notice, for
ingress and egress and all other purposes which enable the Association to perform its
obligations, rights and duties with regard to maintenance, repair, restoration or
servicing of any items, Lots, things or areas of or on the Property, including the
removal, correction of abatement of any violations or breach or any attempted violation or
breach of the convenants and restrictions herein.
D. Easements for Construction. Declarant
hereby reserves, for itself and any Builder a right and easement to enter upon the Common
Area to do all things necessary to complete construction and to complete the development
of the Property, including any additional property which may be subjected hereto.
E. Easements for Utilities. The
Association may hereafter grant easements on behalf of Owners to entities for utility
purposes for the benefit of the Property. Each Owner hereby grants and the transfer
of title to an Owner shall be deemed to grant the Association an irrevocable power of
attorney to execute, acknowledge and record, for and in the name of such Owner, such
instruments as may be necessary to effectuate the foregoing.
F. Tie-In Easements. Declarant
reserves the right and easement over, on, and under the Common Area and to any Lots, to
use, tie into and extend all existing utility lines for purposes of serving additional
property which may be submitted to this Declaration as hereinafter provided.
G. Service Easements. An easement is
hereby granted to all police, firemen, ambulance operators, mailmen, deliverymen, garbage
and trash removal personnel, and all other similar persons, and to the local governmental
authorities, but not the public in general, to enter upon the Common Area in the
performance of their duties.
H. Easements Shall Run With Land. All easements
and rights described are easements appurtenant, running with the land, perpetually in full
force and effect, and at all times shall inure to the benefit of and be binding on the
Declarant, its successors and assigns, and any Owner, purchaser mortgagee and any other
person having an interest in the Property, or any part or portion thereof. Failure
to refer specifically to any or all of the easements described in the Declaration in any
deed of conveyance or in any mortgage or trust deed or other evidence of obligation shall
not defeat or fail to reserve said easement but same shall be deemed conveyed or
encumbered along with the Lot.
A. Creation of Lien and Personal Obligation of
Assessments. Declarant, for each Lot owned 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 the
Association: (1) annual assessments, (2) special individual Lot assessments, and (3)
periodic assessments, such assessments to be established and collected as hereinafter
provided. Such assessments, together with interest and costs shall be a charge on
the land and shall be a continuing lien upon the Lot against which each such assessments
is made as provided for in Item 7 hereof. Each such assessment together with
interest and costs shall also be the personal obligation of the person who was the owner
of such Lot at the time when the assessment became due.
B. Purpose of Assessment. The
assessment levied by the Association shall be used exclusively to promote the recreation,
health, safety, and welfare of the residents of the Property, and for the maintenance and
improvement of the Common Area, and the enforcement of these restrictions. The
assessments shall include without limitation the following expenses:
(1) Maintenance and repair of the Common Area.
(2) Taxes and assessments on the Common Area.
(3) Water, sewer, electricity, telephone or any
other utility service as may be provided to the Common Area, or to any group of Lots by
use of a common meter or meters.
(4) Acquisition of furnishings and equipment for
the Common Area.
(5) Insurance premiums for insurance obtained by
the Association pursuant to the provisions of Items 11 and 12 hereof.
(6) Costs for the operation, management and
administration of the Association, including without limitation, fees for property
management, fees for legal and accounting services, fidelity bonds, cost of mailing, and
(7) A general operating reserve to assure the
availability of funds for the purposes hereunder.
C. Owner's share of Annual Assessments.
Each Owner's share of the annual assessment shall be equal to a number of Dwelling
Units owned by such Owner and the denominator shall be the total number of Dwelling Units
to be constructed on the Property. As additional property is subjected to this
Declaration pursuant to the provisions of Item 15 hereof the denominator shall be
increased by the number of Dwelling Units to be constructed on such additional property at
the time of filing an amendment hereto adding such additional property.
D. Preparation of Estimated Budget.
The Association shall before or on December 1st of every year prepare an estimate of the
total amounts necessary to pay the cost of wages, materials, insurance, services and
supplies which will be required during the ensuing calendar year for the rendering of all
services, together with a reserve for contingencies and replacements. On or before
December 15th, each Owner shall be notified in writing as to the amount of such estimate,
with reasonable itemization thereof. On or before January 1st of the ensuing year,
and the 1st of each and every month of said year, each Owner shall be obligated to pay to
the Association or as it may direct one-twelfth (1/12) of his share of the assessment made
pursuant to this paragraph. On or before the date of the annual meeting in each
calendar year, the Association shall supply to all Owners, an itemized accounting of the
maintenance expenses actually incurred for the preceding calendar year, together with a
tabulation of the amounts collected pursuant to the estimate provided, and showing the net
amount over or short of the actual expenditures plus reserves. any amount
accumulated in excess of the amount required for actual expenses and reserves shall be
credited according to each Owner's share of the assessments to the next monthly
installment due from the Owners during the current year's estimate, until exhausted, and
any net shortage shall be added according to each Owner's share of the assessments to the
installments due in the succeeding six months after rendering of the accounting.
E. Reserve for Contingencies and Replacements.
The Association shall build up and maintain a reasonable reserve for contingencies
and replacement. Extraordinary expenditures not originally included in the annual
estimate which may be necessary for the year, shall be charged first against such reserve.
If said estimated cash requirement proves inadequate for any reason, including
non-payment of any Owner's assessment, the same shall be assessed to the Owners according
to each Owner's share of the assessments. the Association shall serve notice of such
further assessment on al Owners by a statement in writing giving the amount and reasons
therefor, and such further assessment shall become effective with the first monthly
maintenance payment which occurs more than ten (10) days after the delivery or mailing of
such notice of further assessment. All Owners shall be obligated to pay the adjusted
F. Budget for First Year. When the
first Board of Trustee's hereunder take office, the Association shall determine the
estimated cash requirement, as hereinabove defined, for the period commencing thirty (30)
days after said election and ending on December 31st of the calendar year in which such
election occurs. Assessments shall be levied against the Owners during said period
as provided in Section D of this Item 6.
G. Failure to Prepare Annual Budget.
The failure or delay of the Association to prepare or serve the annual or adjusted
estimate on the Owner shall not constitute a waiver or release in any manner of such
Owner's obligation to pay the maintenance costs and necessary reserves, as herein
provided, whether the same shall be determined. In the absence of any annual
estimate or adjusted estimate, the Owner shall continue to pay the monthly maintenance
charge at the existing monthly rate established for the previous period until the first
monthly maintenance payment which occurs more than ten (10) days after such new annual or
adjusted estimate shall have been mailed or delivered.
H. Books and Records of the Association.
The Association shall keep correct and complete books and records of account,
specifying the receipts and expenditures relating to the Common Area and other common
receipts and expenses, together with records showing the allocation, distribution, and
collection of the common profits, losses, and expenses among and from the Owners; minutes
of the proceedings of the Owners and Board of Trustees. Such books and records shall
be open for inspection by any Owner or any representative of an Owner duly authorized in
writing, at reasonable times and upon request by an Owner. If by terms of a first
mortgage an Owner has authorized such mortgagee to inspect such books and records, the
presentation to the Secretary of the Association by a representative of such mortgage of a
copy of the mortgage containing such authorization shall constitute written authorization
of such inspection. Upon ten (10) days notice to the Board of Trustees and upon
payment of a reasonable fee, any Owner shall be furnished a statement of his account
setting forth the amount of any unpaid assessments or other charges due and owing from
I. Commencement of Assessment.
Monthly assessments shall begin with respect to each Lot upon the conveyance of title to
such Lot by Declarant to an Owner other than Declarant. If any additional property
is included in the Property, pursuant to the annexation provisions of this Declaration,
the the assessments for the Lots by Declarant to an Owner other than Declarant.
J. Declarant's Obligations to Pay Assessments.
Notwithstanding any provisions hereof, Declarant shall have no obligation to pay
monthly assessments for the Lots owned by it, except that Declarant will pay to the
Association a monthly amount equal to the difference between the actual operating expenses
of the Association and the aggregate of the monthly assessments paid by the Owners, other
than Declarant. Declarant's obligation to pay said deficiency shall cease when
Declarant relinquishes control of the Board of Trustees at which time Declarant shall pay
the monthly assessment for each Dwelling Unit owned by it which either has been issued an
occupancy certificate, or is being offered for sale or rent.
K. Special Individual Lot Assessment.
Notwithstanding anything to the contrary herein, if the Association shall incur any
cost or expense for or on account of any item of maintenance, repair or other matter
directly or indirectly occasioned or made necessary by any wrongful or negligent act or
omission of any Owner, such cost of expense shall be borne by such Owner and not by the
Association, and if paid by the Association shall be paid or reimbursed to the Association
by such Owner as a special individual Lot forthwith upon the Association's demand.
L. Periodic Assessments.
Notwithstanding any provision in this Item, the Board of Trustees may, at its option,
elect that certain expenses such as insurance, water and sewer be paid by periodic
assessments based on the billing date of such expenses or at other intervals. If the
Board of Trustees so elects, such expenses shall be separately stated in the budget
specifying the amount and due date thereof.
M. Non-Use of Facilities. No Owner
may exempt himself from liability for his contribution toward the common expenses by
waiver of the use or enjoyment of any of the Common Area or by the abandonment of his Lot.
7. REMEDIES FOR NON-PAYMENT OF ASSESSMENT.
A. Lien Of Association. The
Association shall have a lien upon the estate of interest in any Lot of the Owner thereof
for the payment of the portion of the assessments chargeable against such Lot which remain
unpaid for ten (10) days after the same have become due and payable from the time a
certificate therefor, subscribed by the President of the Association, is filed with the
Recorder of Greene County, Ohio, pursuant to authorization given by the Board of Trustees
of the Association. Such certificate shall contain a description of the Lot, the
name or names of record owner or owners thereof and the amount of such unpaid portion of
the assessments. such lien shall remain valid for a period of five (5) years from
the time of filing thereof unless sooner released or satisfied in the same manner provided
by law for the release and satisfaction of mortgages on real property or discharged by the
final judgment or order of the court in an action brought to discharge such lien as
B. Priority of Association's Lien.
The lien provided for in Section A of this Item shall take priority over any lien or
encumbrance subsequently arising or created, except liens for real estate taxes and
assessments and liens of bona fide first mortgages which have been filed for record, and
may be foreclosed in the same manner as a mortgage on real property in an action brought
by the Association. In any such foreclosure action, the owner or owners of the Lot
affected shall be required to pay a reasonable rental for such Lot during the pendency of
such action, and the plaintiff in such action is entitled to the appointment of a receiver
to collect the same. In any such foreclosure action, the Association shall be
entitled to become a purchaser at the foreclosure sale.
C. Dispute as to Common Expenses.
Any Owner who believes that the portion of assessments chargeable to his Lot, for which a
certificate of lien has been filed by the Association, has been improperly charged against
him or his Lot may bring an action in the court of Common Pleas for Montgomery County,
Ohio, for the discharge of such lien.
D. Non-Liability of Foreclosure Sale Purchaser
or an Acquirer or Title in Lieu of Foreclosure for Past Due Assessments. Where
the mortgage of a first mortgage of record or other purchaser of a Lot acquires title to
the Lot as a result of a foreclosure of any lien or a deed in lieu of foreclosure of the
first mortgage, such acquirer of title, his successors and assigns, shall not be liable
for the share of assessment by the Association chargeable to such Lot which became due
prior to the acquisition of tile to such Lot by such acquire. Such unpaid share of
assessments shall be deemed to be assessments collectible from all of the Lots, including
that of such acquirer, his successors or assigns.
E. Liability for Assessments Upon Voluntary
Conveyance. In a voluntary conveyance of a Lot other than a conveyance in lieu
of foreclosure, the grantee of the Lot shall be jointly and severally liable with the
grantor for all unpaid assessments by the Association against the grantor and his Lot for
his share of the assessments up to the time of the grant or conveyance, without prejudice
to the grantee's right to recover from the grantor the amounts paid by the grantee
therefor. However, any such grantee and his mortgagee shall be entitled to a
statement from the Board of Trustees of the Association setting forth the amount of all
unpaid and current assessments against the grantor due the Association, and such grantee
shall not be liable for nor shall the Lot conveyed be subject to a lien for any unpaid
assessments mad by the Association against the grantor in excess of the amount set forth
in such statement for the period reflected in such statement.
8. ARCHITECTURAL CONTROL.
No building, fence,
wall, patio, deck, or other structure or improvement shall be commenced, erected, or
maintained on the Property, nor shall any exterior addition to or change or alteration
therein be made until the plans and specifications showing the nature, kind, shape, color,
height, materials, and location of the same shall have been submitted to and approved in
writing as to harmony of external design and location in relation to surrounding
structures and topography by the Board of Trustees, or by an architectural committee
composed of three (3) or more representatives appointed by the Board of Trustees. In
the event said Board of Trustees, or its designated committee, fails to approve or
disapprove such design and location within thirty (30 days after said plans and
specifications have been submitted to it, approval will not be required and this Item will
be deemed to have been fully complied with.
9. USE RESTRICTIONS.
A. Use. The Property shall be used for
residential purposes and for no other purpose except for purposes reserved to Declarant
herein and except as herein specifically provided otherwise. It shall be expressly
permissible for Declarant to maintain during the period of its sale of Lots or Dwelling
Units, upon those portions of the Property as it deems desirable, those facilities it
deems reasonably required, covenient or incidental to the construction and sale of Lots or
Dwelling Units, and improvements thereof including, without limiting the generality of the
foregoing, a sales office, storage area, models, and parking areas.
B. Rental. No Lot or any Dwelling Unit thereon
shall be rented or leased unless, (1) the lease or rental agreement is in writing, and (2)
is for a term of at least one (1) year in duration, and (3) the lease or rental agreement
specifically provides that the terms of the lease or rental agreement and of the tenancy
thereby created shall be subject in all respects to the terms of this Declaration, the
Articles, and the By-laws, and any failure to comply therewith shall be a default under
the lease or rental agreement. The owner of any Lot shall provide the Association
with a copy of any lease or rental agreement entered into for the lease or rental of any
Dwelling Unit, prior to the commencement of such lease or rental term.
C. Exterior of Lots. Nothing shall
be permitted to be hung, displayed or stored on the outside of windows or placed on the
outside walls of a Dwelling Unit or on the exterior wall of patios, or otherwise outside
of a Dwelling Unit or any part thereof, except in enclosed patios, and no sign, awning,
canopy, shutter, radio or television antenna or any other device or ornament shall be
affixed to or placed upon the exterior walls, roof or the exterior patio walls, or
otherwise on the Lot areas visible to the public, other than originally provided by
Declarant or as authorized by the Board of Trustees, or its committee as hereinbefore
D. Common Area. No part of the
Common Area shall be used by anyone other than the Association for the storage or
maintenance of any signs, goods, machinery, material or other item or device, nor shall
clothes, sheets, blankets, laundry or other articles of any kind be hung out or exposed on
any part thereof visible from the outside, nor shall there be playing, lounging, parking
of baby carriages or playpens, bicycles, wagons, toys, vehicles, benches or chairs on any
part of the Common Area, except in accordance with rules and regulations therefor adopted
from time to time by the Board of Trustees. In addition, no use shall be made of the
driveway areas that would prohibit free and unimpeded ingress and egress by a member and
his motor vehicles to and from his garage and the drives of the Common Area.
E. Vehicles. That parking of
motor vehicles on the Common Area shall be subject to such rules and regulations as the
Board of Trustees may from time to time establish, which may include the assignment of
exclusive parking spaces to each Owner. No boats, trailers, trucks or other like
vehicles shall be permitted to park on the Common areas or visible part of any Lot, nor
shall mechanical work on vehicles be permitted thereon.
F. Nuisances. No noxious or
offensive activity shall be carried on or upon any Lot or Dwelling Unit or the Common Area
nor shall anything be done thereon which may in any way or for any purpose endanger the
health or unreasonably disturb the occupant of a Dwelling Unit or interfere with the full
use of a Dwelling Unit.
G. Structural Integrity. Nothing
shall be done on any Lot or in, on or to the Common Area which will impair or change the
structural integrity of any improvement located thereon.
H. Temporary Structures. No
structure of a temporary character, trailer, basement, tent, shack, garage, barn, or other
out building shall be used on any Lot or on the Common Area at any time as a residence
either temporarily or permanently.
I. Signs. No sign of any kind shall
be displayed to the public view on the Property, except signs used by the client to
advertise lots for sale during the construction and sales period, and professional signs
as limited by rules and regulations adopted by the Board of Trustees.
J. Animals. Except as hereinafter
provided, no animals, livestock, or poultry of any kind shall be raised, bred or kept on
any Lot or the Common Area. Notwithstanding the foregoing, household domestic pets,
not in excess of the total of two (2), not bred or maintained for commercial purposes, may
be maintained on a Lot, provided that (1) no such animal shall be permitted in any portion
of the Common Area, except by a leash maintained by a responsible person, (2) be
permitting of attended leashed animals on the Common Area shall be subject to such rules
and regulations as the Board of Trustees may from time to time establish, and (3) the
right of a member to maintain an animal on a lot shall be subject to termination if the
Board of Trustees, in its full and complete discretion, determines that the maintenance of
the animal constitutes a nuisance.
K. Garbage and Refuse Disposal. No
Lot or the Common Area shall be used or maintained as a dumping ground for rubbish.
Trash, garbage, or other waste shall not be kept except in sanitary containers. All
incinerators or other equipment for the storage or disposal of such material shall be kept
in a clean and sanitary condition.
L. Water Supply. No individual water
supply system shall be permitted on any Lot.
M. Sewage Disposal. No individual sewage
disposal system shall be permitted on any Lot.
N. Rules and Regulations. The Board
of Trustees of the Association may establish and enforce rules and regulations as to the
use of the Common Area, and the same is promulgated from time to time, shall be
enforceable in the same manner and to the same extent as other restrictions herein.
O. Arbitration. In the event of any
dispute between members as to the application of these restrictions or any rule or
regulation to any particular circumstance, the party agreed shall submit a complaint in
writing to the Board of Trustees specifying the dispute. The Board of Trustees shall
set a time, date and place for hearing thereon within twenty (20) days thereafter, and
give written notice to the party thereof no less than three (3) days in advance. The
Board of Trustees shall thereupon hear such evidence on the dispute as the Board deems
proper and render a written decision on the matter to each party within thirty (30) days
thereafter. No action of law may be instituted by the party to such dispute unless
arbitration pursuant hereto has first been had.
A. Association. The
Association shall maintain, repair and make all necessary replacements to the Common Area
and any improvements thereon, including but not limited to any recreational facilities,
utility facilities, lawns, shrubs, trees, driveways, roadways, parking areas and walkways.
The Association shall also provide exterior
maintenance upon each Lot, i.e., paint, repair, replace and care for roofs, gutters,
downspouts, exterior surfaces and other exterior improvements. such responsibility
shall not include any glass surfaces, doors, doorways, windows and window frames.
B. Owner. The Owner of each Lot
shall furnish and be responsible for, at his expense, all maintenance, repairs, decorating
and replacements within his Dwelling Unit, including without limitation, the heating and
air conditioning system and any partitions and interior walls.
The Owner shall also be responsible for the
maintenance, repair and replacement of any patios or decks, patio area or deck area, bulb
replacement for exterior lighting fixtures to his Lot, glass surfaces, doors, doorways,
windows and window frames, and any and all other maintenance, repair and replacements of
the improvements on his Lot unless otherwise provided herein.
C. Exterior Surfaces. Any exterior
maintenance, repair or replacements to be performed by the Owner hereunder shall be
subject to the prior approval of the Board of Trustees, or its delegated committee.
The Board of Trustees may adopt guidelines or other criteria setting forth standards for
such maintenance, repair or replacement. Pursuant to such standards the Board of
Trustees, or its committee, may require that only certain types and/or manufacturers be
used for replacements to the exterior surfaces in order to assure similarity and
D. Failure to Maintain. In the event
an Owner shall fail to maintain his Lot and improvements situated thereon, to such an
extent that in the opinion of the Board of Trustees, the conditions require maintenance,
repair of service for purposes of protecting the public safety or residence in or visitors
to the Property, or in order to prevent or avoid damage to or destruction of any part,
portion, or aspect of the value thereof, the Association shall have the right, upon
approval of the majority of the Board of Trustees, to enter upon that Lot and maintain,
repair or service the same. The cost of such maintenance, repair or service shall be
added to and become a special individual Lot assessment, chargeable to the Lots they
maintain, repaired or serviced.
11. HAZARD INSURANCE.
A. Fire and Extended Coverage Insurance.
The Association shall obtain and maintain for the benefit of the Association, all
Owners and mortgagees insurance on all Dwelling Units constructed on the Lots within the
Property and on all improvements constructed on the Common Area, against loss or damage by
fire, lightning and such perils as are at this time comprehended within the term
"extended coverage" with no coinsurance and in an amount not less than one
hundred percent (100%) of the replacement value thereof. In the event such policy
contains coinsurance provisions, such policy shall contain an agreed amount endorsement.
Such policy shall provide coverage for built-in installed fixtures and equipment in
an amount not less than one hundred percent (100%) of the replacement value thereof and
shall also provide that the insurer shall have no right to contribution from any insurance
which may be purchased by any Owner as hereinafter permitted.
No Owner may purchase an individual policy of
fire and extended coverage insurance for any Dwelling Units constructed on his Lot.
If irrespective of this prohibition an Owner purchases an individual policy
insuring such Dwelling Unit, said Owner shall be responsible to the Association for any
loss or expense that such policy may cause in adjusting the Association's insurance, and
such amount of loss shall be a lien on his Lot and enforced in the manner provided for in
Such policy of insurance shall contain
provisions requiring the issuance of certificates of coverage and the issuance of written
notice not less than ten (10) days prior to any expiration or cancellation of such
coverage to any mortgagee or mortgagees of any Lot.
Such insurance by the Association shall be
without prejudice to the right of any Owner or occupant of a Dwelling Unit to obtain
individual contents on chattel property insurance.
Such policy shall also provide for the release
by the insurer thereof of any and all rights of subrogation or assignment and all causes
and rights of recovery against any Owner, member of his family, his tenant, or other
occupant of the Property resulting from any of the perils insured against under such
If the required insurance coverage under this
Section A of Item 11 ceases to exist for any reason whatsoever, any mortgagee of any
portion of the Property may remedy that lack of insurance by purchasing policies to supply
the insurance coverage. The funds so advanced shall be deemed to have been loaned to
the Association; shall bear interest at a per annum rate two percent (2%) higher than the
basic interest rate in any note secured by the mortgagee's mortgage against a portion of
the Property; and shall be due and payable to the mortgagee by the Association
immediately. The repayment of said obligation shall be secured by a special
assessment against all Owners and shall not require a vote of the members of the
Association, anything to the contrary in this Declaration notwithstanding.
B. Sufficient Insurance. In the
event that the improvements on the Common Area, the Dwelling Units constructed on the Lots
within the Property, or any Dwelling Unit constructed on a lot within the Property, shall
suffer damage or destruction from any cause or peril insured against and the proceeds of
any policy or policies insuring against and the proceeds of any policy or policies
insuring against such loss or damage and payable by reason thereof shall be sufficient to
pay the cost of repair or restoration or reconstruction, then such repair, restoration or
reconstruction, shall be undertaken by the Association and the insurance proceeds shall be
applied by the Association in payment therefor; provided, however, that in the event
within thirty (30) days after such damage or destruction, the Owners, if they are entitled
to do so pursuant to Section D of this Item 11 shall elect to withdraw the same from the
provisions of the Declaration, then such repair, restoration or reconstruction shall not
C. Insufficient Insurance. In the
event that the improvements on the Common Area, the Dwelling Units constructed on the Lots
within the Property, or any Dwelling Unit constructed on a Lot within the Property, shall
suffer damage or destruction from any cause or peril which is not insured against, or, if
insured against, the insurance proceeds from which shall not be sufficient to pay the cost
of repair, restoration or reconstruction thereof, unless the Owners shall within ninety
(90) days after such damage or destruction, they are entitled to do so pursuant to Section
E of this Item 11, elect to withdraw the Property from the provisions of this Declaration,
such repair, restoration or reconstruction of the Dwelling Units so damaged or destroyed
shall be undertaken by the Association at the expense of all the Owners of the Units in
the same proportions in which they shall share in the annual assessments. Should any
Owner refuse or fail after reasonable notice to pay his share of such cost in excess o
available insurance proceeds, the amount thereof may be advanced by the Association and
the amount so advanced by the Association shall be assessed to such Owner and such
assessment shall have the same force and effect, and, if not paid, may be forced in the
same manner as hereinbefore provided for the non-payment of assessments.
D. Non-Restoration of Damage or Destruction.
In the event of substantial damage to or destruction of two-thirds (2/3) or more of
the Dwelling Units constructed on the Lots within the Property, the Owners by the
affirmative vote of those entitled to exercise not less than seventy-five percent (75%) of
the voting power may elect not to repair or restore such damage or destruction. Upon
such election, all of the Property shall be subject to an action for sale as upon
partition at the suit of any Owners. In the event of any such sale or sales of the
Property after such election by agreement of all Owners, the net proceeds of the sale
together with the net proceeds of insurance, if any, and any other indemnity arising
because of such damage or destruction, shall be considered as one fund and shall be
distributed to all Owners in proportion to their share of the annual assessments. No
Owner, however, shall receive any portion of his share of such proceeds until all liens
encumbrances on his Lot have been paid, released or discharged.
E. Right of Association. Upon the
termination of or the relinquishment by Declarant of its right to control the Association,
the Association shall have the right to terminate and cancel any insurance obtained by the
Declarant upon first obtaining replacement insurance. Any policy procured by the
Association, when Declarant is in control, shall contain a provision recognizing such
12. LIABILITY INSURANCE.
The Association as a
common expense shall insure itself, the Board of Trustees, all Owners and members of their
respective families and other persons residing with them in the Property, their tenants,
and all other persons lawfully in the possession or control of any Dwelling Unit, or part
thereof, against liability for bodily injury, disease, illness or death and for injury to
or destruction of property occurring upon, in or about, or arising from the Common Area,
such insurance to afford protection to a limit of not less than Five Hundred Thousand
Dollars ($500,000) in respect to bodily injury, disease, illness or death suffered by any
one person, and to the limit of not less than One Million Dollars ($1,000,000) in respect
to any one occurrence, and to the limit of not less than One Hundred Thousand Dollars
($100,000) in respect to damage to or to destruction of property arising out of any one
Such policy shall not
insure against liability for personal injury or property damage arising out of or relating
to the individual Lots, or Dwelling Units located thereon.
In the event that by
reason of the exercise by appropriate public authority of the right of eminent domain any
portion of the Common Area is appropriated, the net proceeds received therefrom shall be
prorated and distributed among the Owners in the same proportions as their share of the
annual assessments are charged, subject to the right of any holder of the first mortgage
to the portion of the proceeds applicable to the Lot mortgaged to such mortgagee.
A. General. Except as hereinafter
provided, this Declaration may be amended only with the approval of members exercising not
less than seventy-five percent (75%) of the voting power of the entire membership.
Any such amendment shall be in writing and effective on the date when it is filed
of record with the Recorder of the county in which the Property is situated.
B. Declarant's Rights.
Notwithstanding the foregoing, Declarant hereby reserves the right and power, and
each member by acceptance of a deed to a Lot is deemed to and does give and grant to
Declarant a power of attorney, which right and power is coupled with an interest and runs
with title to Lot and is irrevocable for a period of two (20 years from the date hereof,
to amend this Declaration and to execute any and all documents deemed necessary or
desirable by Declarant to conform to requirements of any lending institution, the Federal
Housing Administration, or the Veterans Administration; provided, however, that any such
amendment must be approved by either the Federal Housing Administration or the Veterans
C. Federal Housing Administration and/or
Veterans Administration. As long as the Declarant maintains and asserts control
of the Board of Trustees, any amendment annexing additional property, dedicating Common
Areas, or amending this Declaration shall require the approval of either the Federal
Housing Administration or the Veterans Administration.
D. Right of First Refusal. Any
amendment attempting to or giving the Association or any Owners a right of first refusal
on the sale, transfer or other disposition of a Lot shall contain a provision exempting
such right of first refusal as to any Lot the title of which is obtained by a first
mortgage pursuant to remedies provided in the mortgage, or foreclosure of the mortgage, or
a deed to such mortgage in lieu of herein cannot be amended without unanimous written
consent of all Owners and the holders of any first mortgages.
A. Contemplated Annexation by Declarant.
Declarant is the owner in fee simple of the real property described in Exhibit
"B", and contemplates constructing thereon additional Dwelling Units and
reserving certain portions of it for green space, open areas, parking and other
recreational lands and facilities. The residential structures are to be
substantially the same type, character, quality, style and size as those constructed on
the Lots submitted to the provisions of this Declaration. Declarant, further
contemplates submitting the land in Exhibit "B", with any improvements thereon,
to the provisions of this Declaration, so that the same will become in all respects part
of the Property.
B. Recreational Facilities.
Declarant hereby represents that it will construct certain recreational facilities
on the additional property which will be added to the Property pursuant to the annexation
provisions herein. Such recreational facilities shall consist of a clubhouse, a
swimming pool and a tennis court in substantial conformity with the sales information
supplied by Declarant or its agents. Such improvements shall be completed and added
to the Property no later than the sale of two-thirds (2/3) of the total Dwelling Units to
be constructed on the Property and the additional property. Declarant reserves the
right to construct additional facilities as it determines necessary.
C. Reservation of Right to Annex Additional
Property. Declarant hereby reserves the right at any time within a period of seven (7)
years, commencing on the date this Declaration is filed for record to take the action so
contemplated in submitting the land described in Exhibit "B", and to construct
thereon a maximum of one hundred (100) additional Dwelling Units with Common Areas, so
that the same will become in all respects part of the Property.
D. Reservation of Right to Amend Declaration.
Declarant hereby reserves the right to amend this Declaration, in the manner
hereinafter provided, in such respects as Declarant may deem advisable in order to
effectuate the generality of the foregoing, the right to amend this Declaration so as to
include the real property described in Exhibit "B" and the improvements
constructed thereon as part of the Property.
E. Consent and Approval for Annexation
Amendments. Declarant on its own behalf as the Owner of all Lots in the Property
and on behalf of all subsequent Owners, hereby consents and approves, and each Owner and
his mortgage by accepting of add conveying such ownership, or a mortgage encumbering such
interest, as the case may be, hereby consents and approves the provisions of this Item 15,
including, without limiting the generality of the foregoing, the amendment of this
Declaration by Declarant in the manner provided in Section E of this Item 15, and all such
Owners and their mortgagees, upon request of Declarant, shall execute and deliver from
time to time all such instruments and perform all such acts as may be deemed by Declarant
to be necessary or proper to effectuate said provisions.
F. Power of Attorney, Coupled with an Interest.
Each Owner and his respective mortgagees by the acceptance of a deed conveying such
ownership, or a mortgage encumbering such interest, as the case may be, hereby irrevocably
appoints Declarant his Attorney-in-Fact, coupled with an interest, for the purpose of
adding the property described in Exhibit "B" hereof to the Property
pursuant to the provisions of this Item. Such Owner authorizes such Attorney to
execute, acknowledge and record for and in his name, an amendment to this Declaration for
the purpose of adding such additional property. Such mortgagee authorizes such
Attorney to execute, acknowledge and record for and in its name, a consent to any such
16. PARTY WALLS.
A. General Rules of Law to Apply.
Each wall which is built as a part of the original construction of the Dwelling
Units upon the Property and placed on the dividing line between the Lots shall constitute
a party wall, and, to the extent not inconsistent with the provisions of this Item, the
general rules of law regarding party walls and liability for property damage due to
negligence or willful acts or omissions shall apply thereto.
B. Sharing of Repair and Maintenance.
The cost of reasonable repair and maintenance of a party wall shall be shared by
the Owners who make use of the wall in proportion to such use.
C. Destruction by Fire or Other Casualty.
If a party wall is destroyed or damaged by fire or other casualty, an Owner who has
used the wall may restore it, and if the other Owners thereafter make use of the wall,
they shall contribute to the cost of restoration thereof in proportion to such use of the
wall, without prejudice, however, to the right of any such Owners to call for a larger
contribution from the others under an rule of law regarding liability for negligent or
willful acts or omissions.
D. Weatherproofing. Notwithstanding
any other provision of this Item, an Owner who by his negligent or willful act causes the
party wall to be exposed to the elements shall bear the whole cost of furnishing the
necessary protection against such elements,
E. Right to Contribution Runs With Land.
The right of any Member to contribute from any other Member under this Item shall
be appurtenant to the land and shall pass to such Owner's successors in title.
F. Arbitration. In the event of any
dispute arising, concerning a party wall, or under the provisions of this Item, each party
shall choose one arbitrator, and such arbitrators shall choose one additional arbitrator,
and the decision shall be by a majority of all the arbitrators.
A. Covenants Running With Land. The
convenants, conditions, restrictions, easements, reservations, liens and charges created
by the Declaration shall run with and bind the land, and each part thereof, and shall be
binding upon and inure to the benefit of all parties having any right, title or interest
in or to all or any part of the Property, and their respective heirs, executors,
administrators, successors and assigns, for a term of fifty (5) years from the date this
Declaration is recorded, after which time it shall automatically extend for successive
periods of ten (10) years, unless amended as hereinafter provided.
B. Enforcement. In addition to any
other remedies provided in this Declaration, Declarant, the Association, or any member,
shall have the right to enforce, by any proceeding at law or in equity, all restrictions,
conditions, covenants, easements, reservations, liens and charges set forth herein or now
or hereafter imposed by or through the Association's rules and regulations. Failure
by Declarant, the Association or by any member to proceed with such enforcement shall in
no event be deemed a waiver of the right to enforce at a later date the original violation
or a subsequent violation nor shall the doctrine of laches nor any statute of limitations
bar the enforcement of any such restriction, condition, covenant, reservation, easement,
lien or charge. The Association shall not deliberately refuse to enforce the
provisions hereof or discontinue operations, or attempt to terminate its operations
without giving thirty (3) days prior written notice to all of the holders of first
mortgage lien on Lots.
C. Notice to Mortgagees.
Notwithstanding any other provisions hereof, the Association shall notify the
holder of the first mortgage lien on the Lot, in writing, of any default by the Owner of
such Lot in performance of that Owner's obligations under this Declaration, the Articles
or the By-Laws which is not cured within thirty 3) days.
D. Partition. There shall be no
judicial partition of the Common Area, nor shall Declarant, or any Owner or any
person acquiring any interest in the Property or any part thereof, seek judicial partition
thereof. However, nothing contained herein shall be constructed to prevent judicial
partition of any Lot owned in con-tenancy.
E. Severability. In validation of
any one or more of these covenants, conditions, restrictions or easements by judgment or
court order shall in any way affect any other provisions which shall remain in full force
F. 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 provisions hereof apply either to
corporations, partnerships, or individuals, male or female, shall in all cases be assumed
as though in each case fully expressed herein.
G. Captions. The captions of
the various provisions of this Declaration are not part of the context hereof, but are
merely labels to assist in locating the various provisions hereof.
H. Taxes, Assessments and Charges.
The first mortgagee of any Lot, either singly or jointly with other holders of
first mortgages on any Lot, at its or their option, may pay taxes, real estate assessments
or other charges which are in default and which may or have become a charge against the
Common Area. The funds so advanced shall be deemed to have been loaned to the
Association; shall bear interest rate on any note secured by the two percent (2%) higher
than the basic interest rate on any note secured by the mortgagee's mortgage against a
portion of the Property; and shall be due and payable to the mortgagee by the Association
immediately. The repayment of said obligation shall be secured by a special
assessment against all Owners and shall not require a vote of the Member of the
Association, anything to the contrary in the Declaration notwithstanding.
I. Compliance With Requirements. The
Declaration, and the plan of ownership commonly known as the Planned Unit Development
("P.U.D.") created hereby, has been created and is existing in full compliance
with all applicable requirements of local, state and all other applicable ordinances and
IN WITNESS WHEREOF, the undersigned, the Declarant herein, a
Delaware corporation, by its duly authorized officer has caused, this instrument to be
duly executed this _______ day of ________________, 1993.
Thomas Peebles, Its President
STATE OF OHIO, COUNTY OF MONTGOMERY, SS:
The foregoing instrument was acknowledged before me this _________
day of __________________, 1983, by Thomas Peebles, President of CAMERICON, INC., a
Delaware corporation, on behalf of the corporation.
Hans H. Soltau
Attorney at Law
367 West Second Street
Dayton, Ohio 45402