Newtown Grant Phase 1-T.H. Homeowners' Association
D E C L A R A T I O N O F
COVENANTS, CONDITIONS & RESTRICTIONS
THIS DECLARATION, made this Ist day of November 1985,
by FPA CORPORATION,
a Delaware corporation, hereinafter called Declarant,
W I T N E S S E T H :
WHEREAS, Declarant is the owner of the real property
described in Exhibit A of this Declaration and desires to
create thereon a planned cluster of groups of attached town Homes with
common open space for the benefit of the said cluster,
substantially as shown on Exhibit C; and
WHEREAS, Declarant desires to preserve the property values,
in said cluster by providing for maintenance of the properties
and improvements thereon, and of the open space, and to this
end desires to subject the real property described in Exhibit A
to the covenants, restrictions, easements, charges and liens
hereinafter set forth, each and all of which is and are for the
benefit of said property and each owner thereof; and
WHEREAS, Declarant has deemed it desirable, for the
efficient preservation of the values, in said cluster, to
create an agency to which should be delegated and assigned the
powers of owning, maintaining and administering .the community
properties and administering and enforcing the covenants and
restrictions and collecting and disbursing the assessments and
charges hereinafter created with regard to the cluster; and
WHEREAS, Declarant- has incorporated or will incorporate
under the laws of the Commonwealth of Pennsylvania the Newtown-n
Grant Phase 1-T.H. Homeowners' Association, Inc., as a
nonprofit corporation for the purpose of exercising the
WHEREAS, the Cluster Properties ( as defined below ) are part
of a planned community being developed by Declarant known as
Newtown Grant ( the "Community" ), which Community is intended to
contain different types of dwelling units in different forms of
NOW THEREFORE, the Declarant, intending to be legally bound
hereby, declares that the real property described in Exhibit A,
is and shall be held, transferred, sold, conveyed and occupied
subject to the covenants, restrictions, easements, charges and
liens ( sometimes referred to as "covenants and restrictions" )
hereinafter set forth.
Section 1. "Declaration" shall mean the covenants,
conditions and restrictions and all other provisions herein set
forth in this entire document, as same may from time to time be
Section 2. "Association" shall mean and refer to Newtown
Grant Phase l-T.H. Homeowners' Association, Inc., its
successors and assigns. The Association is intended to be a
Cluster Association pursuant to the Master Declaration.
Section 3. "Declarant" shall mean and refer to FPA
Corporation, and its successors and assigns, together with any
successor to all or" substantially all of its business of
developing the Cluster Properties.
Section 4. The "Cluster Properties" shall- mean and refer
to all real property which becomes subject to this Declaration.
Section 5. "Cluster Common Area" shall mean and refer to
those areas of land described more particularly in Exhibit B
attached hereto, which are intended to be devoted to the common
use and enjoyment of the members of the Association.
Section 6. "Lot" shall mean and refer to any plot of land
shown upon any recorded subdivision map of the Cluster
Properties with the exception of the Cluster Common Area as
Section 7. "Owner" shall mean and refer to the record
owner, whether one or more persons or entities, of the fee
simple title to any Lot, but excluding those having such
interest merely as security for the performance of an
Section 8. "Book of Resolutions" shall mean and refer to
the document containing rules and regulations and policies
adopted by the Board of Directors of the Association as the
same may be from time to time amended.
Section 9. "Board of Directors" or "Board" shall mean the
Board of Directors of the Association.
Section 10. "Association Recreation Area" shall mean such
areas designated in the Master Declaration or as have been or
shall be designated from time to time as such in a
Supplementary Declaration duly recorded in Bucks County
pursuant to the Master Declaration, such areas and the
facilities and improvements therein and thereon to be part of
the Common Property owned by the Master Homeowners" Association.
Section 11. "Master Board of Directors" or "Master Board"
shall mean the Board of Directors of the Master Homeowners'
Section 12. "Community" shall mean any portion of the
Entire Tract defined in the Master Declaration which has been
subjected or which is intended to be subjected to the
provisions of the Master Declaration.
Section 13. "Covenants Committee" shall mean the Committee
established by the Master Board pursuant to the Master By-Laws
to administer for the Master Homeowners" Association certain
restrictions, rules and regulations in accordance with
requirements and guidelines contained in the Master
Declaration, Master By-Laws or Master Homeowners' Association
Rules and Regulations or as otherwise adopted by the Master
Section 14. "Delegate" shall mean the duly elected
representative of the Owners of Homes within a Cluster (as
defined in the Master Declaration) assigned to represent such
Owners in the election of members of the Master Board of
Section 15. "Master Homeowners' Association" shall mean
THE NEWTOWN GRANT HOMEOWNERS' ASSOCIATION, a-Pennsylvania
nonprofit corporation, its successors and assigns.
Section 16. "Master Homeowners' Association Expenses"
shall mean all expenses including reserves incurred by or
assessed by the Master Homeowners' Association or its
directors, officers, agents, or employees in the performance of
their responsibilities, duties or powers.
Section 17. "Lender" shall mean the record owner of a
mortgage-loan which encumbers any Home.
Section 18. "Master By-Laws" shall mean the By-Laws of the
Master Homeowners Association, together with all amendments
thereto from time to time.
Section 19. "Master Declaration" shall mean the
Declaration of Covenants, Conditions and Restrictions of the
Master Association and all Exhibits thereto, as the same may
now exist or hereafter be amended or supplemented.
Section 20. Other capitalized terms used herein shall have
the meaning specified or used for such terms in the Master
PROPERTY SUBJECT TO THIS DECLARATION
Section 1. Existing Property. The real property which is
and shall be held, transferred, sold, conveyed, and occupied
subject to this Declaration is located in Newtown Township,
Bucks County, Pennsylvania and is more particularly described
in Exhibit A.
Section 2. Master Homeowners' Association. The entire
Community is governed by and subject to the provisions of the
Master Declaration and the Articles of Incorporation and the
Master By-Laws of the Master Homeowners' Association which is
established to operate, manage and maintain the Common Property
and facilities within the Community which are intended for the
use and enjoyment of all the residents in the Community. The
Master Homeowners' Association is also empowered to accept the
responsibility for maintaining, operating and administering
certain of the Cluster Common Area and facilities within the
Cluster Properties and administering the affairs of the
Association on behalf of the Board of Directors, to the extent
such power and obligation is currently delegated to it pursuant
to Article VIII of this Declaration. The Association common
expenses shall include all Master Homeowners' Association
Expenses assessed by the Master Homeowners' Association against
the Association and the Cluster Properties in the lawful
performance of its duties or powers as Annual or Special
MEMBERSHIP AND VOTING RIGHTS
Section 1. Members. Every person or entity who is a
record owner of a fee or undivided fee interest in any Lot
which is subject by covenants of record to assessment by the
Association shall be a Member of the Association. The
foregoing is not intended to include persons or entities who
hold an interest merely as security for the performance of an
Section 2. Voting Rights. The Association shall have two
classes of voting membership:
Class A. Class A members shall be all Owners of Lots,
and shall be entitled to one vote for each Lot owned.
Class B. The Class B member shall be the Declarant,
who shall have three votes for each Lot owned. The Class B
membership shall cease upon the earlier of written notice
thereof by Declarant to the Association, or upon sale by
Declarant of at least sixty-six (66) Lots, but in no event
later than December 31, 1992.
Any person or entity qualifying ,as a member of more than
one class, may exercise those votes to which he is entitled for
each such class of membership.
Section 1. Obligations of the Association. The
Association, subject to the rights of the Owners set forth in
this Declaration and delegation of most of its powers and
duties to the Master Homeowners' Association as set forth in
Article VIII below, shall be responsible for the exclusive
management and control of the Cluster Common Areas and
facilities related thereto, and shall keep the same in good
order and condition. The Association shall also administer and
enforce all of the provisions hereof.
Section 2. Members' Easement of Enjoyment. Subject to the
provisions herein, every Owner shall have a right and easement
of enjoyment in and to the Cluster Common Areas which shall be
appurtenant to and shall pass with the title to every Lot. If
the Owner of a Lot does not reside in or upon the Lot then the
Single Housekeeping Unit therein residing shall be deemed the
Owner for the purpose of using the Cluster Common Area.
Section 3. Extent of Owners' Easements. The Owners'
easements of enjoyment created hereby shall be subject to the
(a) the right of the Association to establish
reasonable rules on a uniform basis for the use of the Cluster
(b) the right of the Association to suspend the
voting rights of an Owner and the right of the Master
Association to suspend the right of an Owner to use the
Association Recreation Area for any period during which any
assessment against his Lot remains unpaid for more than thirty
(30) days and for a period not to exceed sixty (60) days for
any other infraction of this Declaration or the Book of
(c) the right of the Association to mortgage any or
all of the Cluster Common Area for the purposes of improvements
or repair to Cluster Common Area pursuant to approval of the
Class B member, if any, and of 67% of the votes of the Owners
who are voting in person or by proxy at a regular meeting of
the Association or at a meeting duly called for this purpose;
(d) the right of the Association to take such steps
as are reasonably necessary to protect against foreclosure;
(e) the right of the Association to dedicate or
transfer all or any part of the Cluster 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 67% of the Owners and by the Class B
member, if any, agreeing to such dedication or transfer, has
(f) the easements created pursuant to the Master
(g) the right of the Board from time to time may
designate parts of.the Cluster Common Areas as Reserved Cluster
Common Areas and (i) either limiting use to those persons
paying fees or satisfying other reasonable conditions for use,
or (ii) restricting access only to authorized personnel (such
as with regard to detention basins, utility easement areas and
areas containing utility or other installations and
facilities). Utility and other installations in or upon or
under the Cluster Common Areas whether belonging to or operated
by a utility company, the Association or the Master Homeowners'
Association shall be Reserved Cluster Common Areas with access
limited only to authorized personnel.
Section 4. Delegation of Use. Any Owner may delegate his
right of enjoyment to the Cluster Common Areas and facilities
to the members of his Single Housekeeping Unit and to his
guests subject to such general regulations as may be
established from time to time by the Association, and included
within the Book of Resolutions.
Section 5. Damage or Destruction of Cluster Common Area by
Owner. In the event any Cluster Common Area is damaged or
destroyed by an Owner or any of his guests, tenants, licensees,
agents or members of his family, such Owner does hereby
authorize the Association to repair said damaged area; the
Association shall repair said damaged area in a good
workmanlike manner. The amount necessary for such repairs
shall become a Special Assessment upon the Lot of said Owner.
Section 6. Title to Cluster Common Area. The Declarant
hereby covenants that it shall convey the Cluster Common Area
to the Association, free and clear of all liens and financial
encumbrances, not later than the date of transfer of title to a
Home by Declarant to a purchaser who is not a successor
Section 7. Title to Streets and Roads Within Cluster. The
Declarant hereby covenants that it shall retain title to, and
maintain at its sole cost and expense, all streets and roads
within the Cluster until such time as said streets and roads
are accepted for dedication by Newtown Township.
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation
of Assessments. The Declarant hereby covenants, and each Owner
of any Lot by acceptance of a deed thereof, whether or not it
shall be so expressed in such deed, is deemed to covenant and
agree to pay to the Association annual general assessments or
charges, and any special assessments.
All such assessments, together with interest thereon
and costs of collection thereof as hereinafter provided, 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 thereon and costs of
collection thereof shall also be the personal obligation of
the person who was the Owner of such property at the time when
the assessment fell due.
Section 2. Assessment in General.
(a) Purpose and Determination of Assessment. The
assessments levied by the Association shall be used exclusively
to maintain the Cluster Common Area and facilities, perform
services related to the use and enjoyment of the same, if any,
and enforce the provisions hereof.
A prospective annual budget shall be prepared by the
Master Homeowners' Association and will include the Master
Homeowners ' Association budget for Cluster Annual Assessments.
The expenses giving rise to Master Homeowners' Association
Cluster Annual Assessments shall be common expenses of the
Association. The expenses giving rise to Master Homeowners'
Association Special Cluster Assessments shall also be common
expenses of the Association. The Board shall formally adopt a
budget and assessments each year as the Association budget and
the Association annual and/or special assessments of common
expenses. Unless and until such a budget is adopted, the
proposed budget submitted by the Master Homeowners' Association
shall be deemed to have been adopted by the Board and
assessments of common expenses made accordingly.
Common expenses arising from non-delegated powers and
duties of the Board shall be communicated to the Master
Homeowners' Association for inclusion in the prospective budget
In order to aid the Master Homeowners' Association in
enforcement and collection of any type of Master Homeowners'
Association Assessments against the Association or its Members,
such Assessments shall be deemed to be assessments of common
expenses by the Board.
It is contemplated that the Master Homeowners'
Association will collect all common expense assessments,
disburse all payments of common expense and otherwise handle
all fiscal affairs for and on behalf of the Association.
(b) Basis for Assessments. Master Homeowners
Association Annual and Special Individual Assessments shall be
assessed against individual Lot Owners as set forth in the
Master Declaration. Annual and Special General and Cluster
Assessments shall be assessed as follows:
(1) Each Lot shall be assessed at a uniform rate.
(2) Declarant-owned Property: Lots owned by the
Declarant shall be assessed 25% of the full assessment per Lot
until any such Lot contains a Home which is occupied.
(3) The first year's assessment shall be
prorated according to the number of months remaining in the
(c) Method of Assessment. The Board shall cause the
Master Board to fix the annual assessments at an amount
sufficient to meet the obligations imposed by the Declaration.
The Master Board shall set the date(s) such assessments shall
Section 3. Date of Commencement of Annual Assessments.
The annual assessments provided for herein shall commence on
the first day of the month following conveyance of the first
Lot to an Owner who is not a Declarant. The initial annual
assessment on any assessable Lot shall be adjusted according to
the number of whole months remaining in the fiscal year.
Section 4. Effect of Nonpayment of Assessments:
Remedies of the Association. Any assessment not paid after the
due date shall bear interest from the due date as provided in
the Master Declaration at a rate to be set by the Master Board
for each assessment period. The Association may bring or cause
to be brought an action at law against the Owner personally
obligated to pay the sane or an action to foreclose the lien
against the Lot or Home and there shall be added to the amount
due the cost of preparing and filing the complaint in such
action, and in the event a judgment is obtained, such judgment
shall include interest on the amount due as herein provided and
reasonable attorneys' fees to be fixed by the court together
with costs of the action. If the Association has provided for
collection of assessments in installments, upon default in the
payment of any one or more installments, the Association may
accelerate payment and declare the entire balance of said
assessment due and payable in full. No Owner may waive or
otherwise escape liability for the assessments provided for
herein by non-use of the Cluster Common Area or abandonment of
his Lot. Similarly, an Owner's liability for any assessments
shall not be abated nor reduced by reason of any interruption
in his right, of occupancy of his Home or use of the Cluster
Common Areas, the benefits hereunder or for any other reason
Section 5. Subordination of the Lien to First Mortgages.
The lien of the assessments provided for herein shall be
subordinate to the lien of any first mortgage. Sale or
transfer of any Lot or Home shall not affect the assessment
lien. However, the sale or transfer of any Lot or Home
pursuant to mortgage foreclosure of a first mortgage or any
proceeding in lieu thereof, shall extinguish the lien of such
assessments as to payments which became due prior to such sale
or transfer but shall not extinguish the obligation of the
prior Owner therefor. No sale or transfer shall relieve such
Lot or Home from liability for any assessments thereafter
becoming due or from the lien thereof.
Section 6. Exempt Property. The Cluster Common Area shall
be exempted from the assessments, charges and liens created
Section 7. Annual Budget. By a two-thirds (2/3) vote of
the Board, the Board shall adopt the annual budget for the
subsequent fiscal year, which shall provide for allocation of
expenses in such a manner that the obligations imposed by the
Declaration and the Master Declaration will be net.
Section 8. Certificates. The Association shall upon
demand at any time and upon payment of a reasonable fee as
determined from time to time by the Board, furnish or cause to
be furnished to any Owner a certificate in writing signed by an
officer of the Association, setting forth whether all
assessments then due by said Owner have been paid to date or
listing the amounts (including interest) then due. Such
certificate shall be conclusive evidence of payment of any
assessment therein stated to have been paid.
Section 9. Contribution to Capital. Each Owner shall at
the time he acquires title to his Home be obligated to pay to
the Association a one-time contribution to the capital and
common expenses of the Association equal to one-fourth (1/4) of
the estimated annual Association common expense assessments for
the Home, which contribution shall not be refundable or
transferable and may be utilized for any lawful purpose which
the Board may deem appropriate.
Section 1. The Environmental Review Board. An
Environmental Review Board consisting of three or more persons
shall be appointed by the Class B member. At such time as the
Class 3 membership expires, the Environmental Review Board
shall be appointed by the Board of Directors.
Section 2. Purpose. The Environmental Review Board shall
regulate the external design, appearance, use, and maintenance
of the Cluster Properties and of improvements thereon, in such
a manner so as to preserve and enhance values and to maintain a
harmonious relationship among structures and the natural
vegetation and topography.
Section 3. Conditions. No improvements, alterations,
repairs, change of paint colors, excavations, changes in grade
or other work which in any way alters the exterior of any Home
(including exterior doors and storm doors) or Lot or the
improvements located thereon from its natural or improved state
existing on the date such property was first conveyed in fee by
the Declarant to an Owner shall be made or done without the
prior approval of the Environmental Review Board, except as
otherwise expressly provided in this Declaration, No building,
fence, vail, recreational equipment, residence, or other
temporary or permanent structure shall be commenced, erected,
maintained, improved, altered, made or done without the prior
written approval of the Environmental Review Board.
Section 4. Procedures. In the event the Board fails to
approve, modify or disapprove in writing an application within
sixty (60) days after sufficiently detailed plans and
specifications in writing have been submitted to it, in
accordance with adopted procedures, approval will be deemed
granted. The applicant may appeal an adverse Environmental
Review Board decision to the Board of Directors who may reverse
or modify such decision by a two-thirds (2/3) vote of the
USE OF PROPERTY
Section 1. Protective Covenants.
(a) Residential Use. All of the property subject
hereto, except the Cluster Common Area, shall be used, improved
and devoted exclusively to residential use and no Lot shall
contain more than one building which shall be devoted to such
residential purposes and occupied only by a Single Housekeeping
Unit; provided, however, that Declarant may maintain on the
property a construction office, sales office and sample units.
Nothing herein shall be deemed to prevent the Owner from
leasing a Home to a Single Housekeeping Unit, subject to all of
the provisions of the Declaration and the Master Declaration.
(b) Cluster Common Area. Except as set forth herein,
the Cluster Common Area -shall remain in a natural, park-like
state to be used for the benefit and enjoyment of the Owners of
Homes within the Cluster. Improvements to the Cluster Common
Areas initially will be substantially as shown on Exhibit C.
Said improvements include a detention basin, a water veil to be
owned by Indian Rock Water Company and utility areas, and
installations, and may in the future include, although not
currently planned, recreational facilities, other utility
areas, facilities and equipment and trash collection and
compaction facilities and equipment. Utility areas, facilities
and equipment may serve other Clusters in which event the
Master Homeowners' Association shall apportion costs and
expenses with regard thereto.
(c) Nuisances. No nuisance shall be permitted to
exist or operate upon any property so as to be detrimental to
any other property in the vicinity thereof or to its occupants;
provided, that it shall not be deemed a nuisance for Declarant
to construct, maintain, sell and display Homes.
(d) Restriction on Further Subdivision. No Lot
having once been sold to an Owner shall be further subdivided
or separated into smaller Lots by any Owner, and no portion
less than all of any such Lot, nor any easement or other
interest herein, shall be conveyed or transferred by an Owner,
provided that this shall not prohibit deeds of correction,
deeds to resolve boundary line disputes and similar corrective
instruments or easements to utility providers. An Owner of a
Lot or Lots shall not build any improvement or use any
improvement on such Lot or Lots for any purpose other than one
Building for residential use by a Single Housekeeping Unit.
(e) Mailboxes. Dual mailboxes on or near Lot lines
as installed and to be installed by Declarant may not be moved,
painted, altered or replaced without the approval of the
Environmental Review Board.
(f) Other Restrictions. The Environmental Review
Board may adopt general rules to implement the purposes set
forth herein and interpret the covenants in this Section,
including, but not limited to, rules to regulate animals,
antennas, signs, storage and use of recreational vehicles,
storage and use of machinery, use of outdoor drying lines,
trash containers, planting, maintenance and removal of
vegetation on the Cluster Properties and such other matters
consistent with and supplemental to the documents governing the
Master Homeowners' Association and its Rules and Regulations
pursuant thereto. Such general rules may be amended by a
two-thirds (2/3) vote of the Environmental Review Board,
following a public hearing for which due notice has been
provided, and pursuant to an affirmative vote of two-thirds
(2/3) of the Board of Directors. All such general rules and
any subsequent amendments thereto shall be placed in the Book
(g) Owners are also bound by and shall observe and
comply with all restrictions and requirements set forth in the
Master Declaration, the Master By-Laws and the Rules and
Regulations of the Master Homeowners' Association pursuant
thereto. A default thereunder shall constitute a default
hereunder and the Board shall have the power to enforce any or
all of such restrictions and requirements as if the same were
set forth in full herein. The Master Homeowners' Association
also has authority to enforce its restrictions and requirements
and, by reason of delegation of authority hereunder, authority
to enforce the requirements and restrictions applicable to the
Association and Cluster Properties.
(h) Exceptions. The Environmental Review Board may
issue temporary permits to except any prohibitions expressed or
implied by this Section, provided the Board can show good cause
and acts in accordance with adopted guidelines and procedures.
Section 2. Maintenance of Cluster Properties. Each Owner
shall keep all Lots owned by him, and all Homes and other
improvements therein or thereon, in good order and repair and
free of debris including, but not limited to, the pruning and
cutting of all trees and shrubbery, the mowing of lawns and the
painting (or other appropriate external care) of all Buildings
and other improvements, all in a manner and with such frequency
as is consistent with good residential property management. In
the event an Owner of any Lot in the Cluster Properties shall
fail to maintain the Lot and the improvements situated thereon,
as provided herein, the Cluster Association, after notice to
the Owner as provided in the Cluster Bylaws and approval by
two-thirds (2/3) vote of the Board of Directors, shall have the
right to enter upon said Lot to correct drainage and to repair,
maintain and restore the Lot and the exterior of the Building
and any other improvements erected thereon. All costs related
to such correction, repair or restoration shall become a
Special Assessment upon such Lot. Anything herein to the
contrary notwithstanding, the exercise of such rights is
subject to the limitations set forth in Section 3 of Article V
of the Master Declaration.
Section 3. Utility Easements. There is hereby created a
blanket easement upon, across, over, through, and under the
above-described Cluster Properties for ingress, egress,
installation, replacement, repair, and maintenance of all
utility and service lines and systems including, but not
limited to water, sewer, gas, telephone, electricity.
television cable or communication lines and systems. By virtue
of this easement it shall be expressly permissible for the
Declarant or the providing utility or service company to
install and maintain facilities and equipment on said Cluster
Properties, to excavate for such purposes and to affix and
maintain wires, circuits, and conduits on, in and under the
roofs and exterior walls of Buildings provided such company
restores disturbed areas to the condition in which they were
found. Notwithstanding anything to the contrary contained in
this paragraph, no sewers, electrical lines, water lines, or
other utility service lines or facilities for such utilities
may be installed or relocated on said Cluster Properties except
as programmed and approved by the Declarant prior to the conveyance of the
first Lot to an Owner or by the Environmental Review Board thereafter. This easement
shall in no way affect any other recorded easements regarding the Cluster Properties.
This easement shall be limited to the replacement and improvement,
and not expansion, of any utility facility constructed pursuant hereto.
Section 4. Declarant's Easement to Correct Drainage. For
a period of five years from the date of conveyance of the first
Lot, the Declarant reserves a blanket easement and right on,
over and under the Cluster Properties to maintain and to
correct drainage of surface water in order to maintain
reasonable standards of health, safety and appearance. Such
right expressly includes the right to cut any trees, bushes or
shrubbery, make any gradings of the soil, or to take any other
similar action reasonably necessary, following which the
Declarant shall restore the affected property to its original
condition as near as practicable. The Declarant shall give
reasonable notice of intent to take such action to all affected
Owners, unless in the opinion of the Declarant an emergency
exists which precludes such notices.
Section 5. Entrance and Buffer Easements. Pursuant to
Article IX of the Master Declaration, Entrance Easement Areas
and Buffer Easement Areas are hereby created as shown on
Exhibit C hereof. Access to said Entrance Easement Areas and
Buffer Easement Areas shall be restricted to Owners of those
Lots burdened by or abutting said Entrance Easement Areas and
Buffer Easement Areas and to the Declarant, the Association and
the Master Homeowners' Association and their respective
officers, agents, employees and contractors.
Section 6. Declarant's Easement for Development of
Adjacent Real Estate. Declarant reserves an easement on, over
and under those portions of the Cluster Properties not located
in a Building for all purposes relating to the construction,
development, leasing, and sale of improvements on adjacent real
estate. This easement shall include, without limitation, the
right of vehicular and pedestrian ingress and egress, the right
to park motor vehicles and to engage in construction and
marketing activities of any nature whatsoever, including the
movement and storage of building materials and equipment, the
conduct of sales, leasing and management activities, the
maintenance of models and offices and the erection and
maintenance of directional and promotional signs.
Section 7. Access Easements. Declarant
hereby creates a system of Access Easements between certain Buildings and
burdening certain Lots as shown on Exhibit C hereof, for the benefit of the
Owners of those Lots burdened by or abutting said Access Easements and for the
Declarant, the Association and the Master Homeowners' Association, and their
respective officers, agents, employees, and contractors. Owners shall have the
same responsibility to maintain those portions of their Lot(s) burdened by an
Access Easement as they have with respect to the remaining portions of their Lot(s).
In no event shall any portion of any Access Easement be either permanently or
temporarily obstructed, and in no event shall said Access Easements be open to
Section 8. Other Easement Areas. Certain easement and
open areas are shown on Exhibit "C." Such areas shall be used
for their intended purposes as shown on Exhibit "C" and for no
DELEGATION TO MASTER ASSOCIATION
Section 1. Delegation of Authority. Except as expressly
set forth below, the responsibility for the administration of
the affairs of the Association, collection (but not the
determination and assessment) of common expenses and the
operation and maintenance of the Common Areas and other common
facilities is hereby delegated to the Master Homeowners'
this Declaration, the Master Declaration, the Articles of
Incorporation of the Master Homeowners' Association, the
By-Laws and the Master By-Laws, the Rules and Regulations of
the Association and the Master Homeowners' Association Rules
and Regulations, and any amendments or supplements to the
By way of illustration and not limitation, it shall be
affirmative and perpetual obligation and duty of the Board
perform the following, all of which duties and obligations
together with the right to exercise discretion, are hereby
delegated to the Master Board of the Master Homeowners
Association, subject to the provisions set forth below:
a. Cause the Cluster Common Areas to be operated and
maintained according to accepted standards established by the
Association and as set forth in this Declaration and the Master
Declaration including, but not limited to, such maintenance and
repair work as may be necessary, grounds care and operation of
the detention basin; and
b. To investigate, hire, pay, supervise and discharge
the personnel necessary to be employed, and provide the
equipment and materials necessary, in order to properly
maintain and operate the Cluster Common Areas and administer
the affairs of the Association. Compensation for the services
of such employees (or the appropriately allocated portion
thereof) shall be considered an operating expense of the
c. Cause to be kept a complete record of all its acts
and corporate affairs and to present a report thereof to the
Home Owners when required pursuant to the By-Laws; and
d. Place and keep in force all insurance coverages
required to be maintained by the Association; and
e. To manage the fiscal affairs of the Association.
Section 2. Non-Delegated Powers. All of the following
powers may be exercised by the Board and shall not be delegated
to the Master Board of Directors of the Master Homeowners'
Association or other entity:
a. Borrow monies in the name of the Association
giving notes, mortgages or other security upon such term or
terms as it deems necessary; and
b. Invest and reinvest monies of the Association
other than temporarily; sue and be sued; make and enter into
contracts in the name of the Association; enter into leases or
concessions in the name of the Association; make and execute
any and all proper affidavits for various purposes; and
compromise any action in the name of the Association without
leave of court; and
c. Grant and obtain easements, licenses and other
property rights with respect to contiguous lands and affecting
the Cluster Property; and
d. Purchase or lease or otherwise acquire in the name
of the Association or its designees, corporate or otherwise, on
behalf of all Owners within the Cluster Properties, Lots or
Homes offered for sale or lease or surrendered by their Owners
to the Board; and
e. Purchase Lots or Homes within the Cluster
Properties at foreclosure or other judicial sales in the name
of the Association or its designees, corporate or otherwise, on
behalf of all Lot Owners; and
f. Sell, lease, mortgage (but not vote the votes
appurtenant thereto) or otherwise deal with Lots or Homes
acquired by the Association, and sublease any such Lots or
Homes leased by the Association or its designees, on behalf of
all Lot Owners; and
g. Except for enforcement against violators,
administer, change or add to or delete any restrictions or
requirements with regard to the physical aspects, occupancy and
use of the Cluster Properties or the granting or withholding of
approvals with regard thereto.
Section 3. Withdrawal of Delegation. Subject to
requirements set forth herein regarding termination of
professional management, the Board may, and upon vote of the
Members, shall withdraw delegation of any or all powers and
authority delegated to the Master Homeowners' Association.
Such withdrawal of delegation may be as to a general power or
area of responsibility (i.e. enforcement of Rules and
Regulations) or as to a specific exercise of a power or area of
responsibility (i.e. landscaping or snow removal).
Section 1. Duration. The covenants and restrictions of
this Declaration shall run with and bind the land for a term of
forty (40) years from the date this Declaration is recorded,
after which time they shall be automatically extended for
successive periods of ten (10) years unless terminated by a
vote of the Members holding at least seventy-five (75%) percent
of the votes entitled to be cast.
Section 2. Amendment. This Declaration may be amended at
any time by an instrument signed by the Class B Member, if any,
and by not less than seventy-five percent (75%) of the Owners.
Any amendment must be recorded, and shall become effective upon
No change, modification or amendment which affects the
rights, privileges or obligations of the Declarant shall be
effective without the prior written consent of the Declarant.
If any amendment is necessary in the judgment of the Board
to cure any ambiguity or to correct or supplement any provision
of this Declaration or the Exhibits which is defective or
inconsistent with any other provision hereof or thereof, or to
change, correct or supplement anything appearing or failing to
appear in the Exhibits which is incorrect, defective or
similarly inconsistent, or if such amendment is necessary to
conform to the then current requirements of the Federal
National Mortgage Association, the Federal Home Loan Mortgage
Corporation, the Veteran's Administration or the Federal
Housing Administration with respect to similar projects, the
Board may, at any time and from time to time, effect such
amendment without the approval of the Owners or Participating
Mortgagees. Each such amendment shall be effective upon the
recording of an appropriate instrument setting forth the
amendment and its due adoption, execution and acknowledgment by
one or more officers of the Board.
Section 3. Enforcement. The Association, Master
Association, any Owner or the Declarant shall have the right to
enforce, by any proceeding at law or in equity. all
restrictions, conditions, covenants, reservations, liens and
charges now or hereafter imposed by the provisions of this
Declaration. Failure to enforce and covenants or restrictions
herein contained shall in no event be deemed a waiver of the
right to do so thereafter.
Section 4. Reports and Notices. Upon the specific written
request of a Participating Mortgagee or its servicer, insurer
or guarantor to the Board, the Participating Mortgagee or such
requestor shall be entitled to receive some or all of the
following as designated in the request:
a. Copies of budgets, notices of assessment, or any
other notices or statements provided under this Declaration by
the Board or Master Board to the Owner of the Home covered by
b. Any audited or unaudited financial statements of
the Board which are prepared for the Master Homeowners'
Association and distributed to the Members;
c. Copies of notices of meetings of the Association
and the right to designate a non-voting representative to
attend such meetings;
d. Timely notice of proposed action of the Owners or
Board to make any material amendment to this Declaration or the
By-Laws or take any action requiring approval of a specified
percentage of Participating Mortgagees;
e. Notice of the commencement of any condemnation or
eminent domain proceedings with respect to any part of the
Cluster Common Areas;
f. Notice of any default by the Owner of the Home
which is subject to the mortgage held by a Participating
Mortgagee, where such default is not cured by the Owner within
thirty (30) days after the giving of notice by the Association
or Master Homeowners' Association to the Owner of the existence
of the default;
g. The right to examine the books, records and
financial statements (including current copies of the
Declaration, By-Laws and Rules and Regulations) of the
Association at any reasonable time;
h. Notice of any decision by the Master Homeowners'
Association to terminate professional management and assume
i. Notice of lapse, cancellation or material
modification of Association insurance policies.
The request of a Participating Mortgagee or its
servicer shall specify which of the above items it desires to
receive and shall indicate the address to which any notices or
documents shall be sent by the Board. The Board need not
inquire into the validity of any request made by a
Participating Mortgagee hereunder.
Failure to comply with the requirements set forth
above shall in no way invalidate otherwise proper actions of
the Association and the Board.
Section 5. Insurance. The Board shall acquire or cause to
be acquired and pay for such insurance as the Board deems
advisable in the operation, and for the protection, of the
Cluster Common Areas and the Owners.
Section 6. Approvals of Participating Mortgagees.
a. Termination of this Declaration shall require the
approval of Participating Mortgagees representing 67% of the
votes of Homes subject to mortgages.
b. Approval of Participating Mortgagees representing
51% of the votes of Homes subject to mortgages shall be
retired to effectuate any of the following:
(i) any amendment of the Declaration or By-laws
of a material nature;
(ii) a change of voting rights;
(iii) a change of assessments, assessment liens,
or subordination of assessment liens;
(iv) a Change of requirements for reserves for
maintenance, repair and replacement of
Cluster Common Areas;
(v) a change of responsibility for maintenance
(vi) a reallocation of interests in the Cluster
Common Areas, or rights to their use;
(vii) a change of expansion or contraction of the
Cluster Properties, or the addition,
annexation or withdrawal of property to or
from the Cluster Properties;
(viii) a change of insurance or fidelity bonds;
(ix) a change of restrictions regarding leasing
(x) the imposition of any restrictions on an
Owner's right to sell or transfer his or her
(xi) a decision by the Association to establish
self management instead of professional management through the Master Homeowners'
Association or otherwise;
(xii) a change of any provisions that expressly benefit mortgage holders, insurers or
Section 7. Severability. Invalidation of any one of these
covenants or restrictions by judgment or court order shall in no way affect any other provisions
which shall remain in full force and effect.
IN WITNESS WHEREOF, the Declarant has caused this Declaration to be duly executed the day and year first above written.