RESTATED AND AMENDED DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
BRAEWOOD HERITAGE ASSOCIATION, INC.
THIS RESTATED AND AMENDED DECLARATION is made by Braewood Heritage Association, Inc., a Nevada corporation (the "Declarant").
P R E A M B L E:
A. Declarant is the owners’ association for Braewood Heritage, a planned unit development of townhouses more particularly described on exhibit A attached hereto and located in Clark County, Nevada (hereinafter referred to as "project").
B. It is the desire and intention of declarant to restate itself as a "common interest community" as defined in Section 116.110323 of Nevada Revised Statutes, as may be amended from time to time, consisting of "units" as defined in Section 116.11039 of the Nevada Revised Statutes, as may be amended from time to time, and to impose mutually beneficial restrictions under a general plan of improvement for the benefit of all the units created pursuant to the provisions of the Uniform Common-Interest Ownership Act set forth in Sections 116.110l et sq. .of the Nevada Revised Statutes, as may be amended from time to time.
C. Declarant hereby declares that all of the project is to be held, conveyed, hypothecated, encumbered, leased, rented, used, occupied and improved subject to the limitations, restrictions, reservations, rights, easements, conditions and covenants contained in this declaration, all of which are declared and agreed to be in furtherance of a plan for the protection, subdivision, maintenance, and improvement of the project for the purpose of enhancing the value, desirability and attractiveness of the project. All provisions of this declaration including, without limitation, the easements, uses, obligations, covenants, conditions and restrictions hereof, are hereby imposed as equitable servitudes upon the project. All of the limitations, restrictions, reservations, rights, easements, conditions and covenants herein shall run with and burden the project and shall be binding on and for the benefit of all of the project and all persons having or acquiring any right, title or interest in the project, or any part thereof, and their successive owners and assigns.
D. Declarant, its successors, assigns and grantees, covenant and agree that the undivided interest in the common elements, the membership in the association, any easements conveyed therewith and the fee title of each respective unit conveyed therewith shall not be separated or separately conveyed, and each such undivided interest, membership and easement shall be deemed to be conveyed or encumbered with its respective unit even though the description in the instrument of conveyance or encumbrance may refer only to the unit. Any conveyance by an owner of a unit, or any portion thereof, shall be presumed to convey the entire unit, together with a membership in the association.
Unless otherwise expressly provided, the following and phrases when used herein shall have the following specified meanings.
1.1 Articles. Articles shall mean the articles of incorporation of the association, as such articles may be amended from time to time.
1.2 Assessment, Annual. Annual assessment shall mean a charge against a particular owner and his unit representing a portion of the common expenses which are to be levied among all owners and their units in the project in the manner and proportions provided herein.
1.3 Assessment, Reconstruction. Reconstruction assessment shall mean a charge which the Board may from time to time levy against a particular owner and his unit, representing a portion of the cost to the association for reconstruction of any improvements on any of the common elements. Such charge shall be levied among all of the owners and their units in the project in the same proportions as annual assessments and include assessment which may be raised pursuant to section 2.7c of this declaration.
1.4 Assessment, Special. Special assessment shall mean a charge against a particular owner, levied by the Board after notice and hearing, which is directly attributable to, or reimbursable by, that owner, equal to the cost incurred by the association for corrective action performed pursuant to the provisions of this declaration, or a reasonable fine or penalty assessed by the Board, plus interest and other related charges on such special assessments as provided for herein.
1.5 Association. Association shall mean Braewood Heritage Association, Inc., a Nevada nonprofit corporation, its successors and assigns. The association is an "association" as defined in Section 116.110315 of the Nevada Revised Statutes, as may be amended. The association shall be situated solely in Clark County, Nevada.
1.6 Association Maintenance Funds. Association maintenance funds shall mean the accounts created for receipts and disbursements of the association, pursuant to article IV hereof.
1.7 Beneficiary. Beneficiary shall mean a mortgagee under a mortgage or a beneficiary under a deed of trust, as the case may be, and the assignees of such mortgagee or beneficiary.
1.8 Board. Board shall mean the Board of Directors of the association. The Board is an "executive board" as defined in Section 116.110345 of the Nevada Revised Statues, as may be amended.
1.9 Budget. Budget shall mean a written, itemized estimate of the income and common expenses of the association in performing its functions under this declaration.
1.10 Bylaws. Bylaws shall mean the bylaws of the association, as such bylaws may be amended from time to time.
1.11 City. City shall mean the City of Las Vegas, in the County of Clark, State of Nevada, and its various departments, divisions, employees and representatives.
1.12 Close of Escrow. Close of escrow shall mean the date on which a deed is recorded conveying title to a unit.
1.13 Common Elements. Common elements shall mean the entire project, except the units therein, including, but not limited to, those portions of the project shown as "private streets", "common parking space", "recreational areas", "landscape areas", "entry gate", "guard shack" and "common landscape area" all as shown on exhibit "A", including any portion of the project which is owned by the owners as tenants in common and any portion of the project which is owned in fee by the association.
1.14 Common Expenses. Common expenses shall mean those expenses for which the association is responsible under this declaration, including, but not limited to, the actual and estimated costs of: maintenance, management, operation, repair and replacement of the common elements; unpaid special assessments and reconstruction assessments; the costs of any commonly metered charges for the project; the cost of maintenance of clustered mailboxes, if any; the costs of management and administration of the association including, but not limited to, compensation paid by the association to managers, accountants, attorneys and other employees; the costs of all gardening, security and other services benefitting the common elements; the costs of fire, casualty and liability insurance, workers’ compensation insurance, errors and omissions and director, officer and agent liability insurance, and other insurance covering the project and the directors, officers and agents of the association; the costs of bonding of the members of the Board; taxes paid by the association; amounts paid by the association for discharge of any lien or encumbrance levied against the project, or portions thereof; and the costs of any other item or items incurred by the association, for any reason, whatsoever in connection with the project, for the common benefit of the owners.
1.15 Declarant. Declarant shall mean Braewood Heritage Association, Inc., a Nevada non-profit corporation, its successors, and any person to which it shall have assigned any of its rights hereunder by an express written assignment.
1.16 Declaration. Declaration shall mean this instrument as it may be amended from time to time.
1.17 Deed of Trust. Deed of trust shall mean a mortgage as further defined herein.
1.18 Family. Family shall mean one or more natural persons related to each other by blood, marriage or adoption, or one or more natural persons not all so related, but who maintain a common household in a residence.
1.19 FHA. FHA shall mean the Federal Housing Administration of the United States Department of Housing and Urban Development and any department or agency of the United States government which succeeds to the FHA’s function of insuring notes secured by mortgages on residential real estate.
1.20 FHLMC. FHLMC shall mean the Federal Home Loan Mortgage Corporation (also known as The Mortgage Corporation) created by Title II of the Emergency Home Finance Act of 1970, and any successors to such corporation.
1.21 Fiscal Year. Fiscal Year shall mean the fiscal accounting and reporting period of the association, which shall be the same as a calendar year.
1.22 FNMA. FNMA shall mean the Federal National Mortgage Association, a government-sponsored private corporation established pursuant to Title VIII of the Housing and Urban Development Act of 1968, and any successors to such corporation.
1.23 GNMA. GNMA shall mean the Government National Mortgage Association administered by the United States Department of Housing and Urban Development, and any successor to such association.
1.24 Improvements. Improvements shall mean all structures and appurtenances thereto of every type and kind, including, but not limited to, buildings, walkways, sprinkler pipes, recreational facilities, roads, driveways, parking areas, fences, screening walls, block walls, retaining walls, awnings, stairs, decks, landscaping, antennae, hedges, windbreaks, the exterior surfaces of any visible structure and the paint on such surfaces, planted trees and shrubs, poles, signs and equipment owned or controlled by the association.
1.25 Limited Common Elements. Limited common elements, if any, shall mean those portions of the project common elements over which exclusive easements are reserved for the benefit of one or more but fewer than all of the owners, and designated on "A" as "LCE".
1.26 Manager. Manager shall mean the person or other entity employed by the association pursuant to and limited by the provisions of this declaration, and delegated the duties, powers or functions of the association as limited by this declaration, the bylaws and the terms of the agreement between the association and said person.
1.27 Map. Map shall mean the recorded map or plat covering all or any portion of a phase of development, which was filed in book 15 of plats, page 57; book 16 of plats, page 88; book 19 of plats, page 36; and book 19 of plats, page 71, in the Office of the County Recorder, Clark County, Nevada, and any subsequent amendment or modification thereof or any additional map of a phase of development or the entire project.
1.28 Member, Membership. Member shall mean any person holding a membership in the association, as provided in this declaration. Membership shall mean the property, voting and other rights and privileges of members as provided herein, together with the correlative duties and obligations contained in the restrictions.
1.29 Mortgage. Mortgage shall mean any recorded mortgage or deed of trust relating to one or more units or other portion of the project to secure the performance of an obligation, which conveyance will be reconveyed upon the completion of such performance.
1.30 Mortgagee, Mortgagor. Mortgagee shall mean a person to whom a mortgage is made and shall include the beneficiary of a deed of trust. Mortgagor shall mean a person who mortgages his or its property to another (i.e., the maker of a mortgage), and shall include the trustor of a deed of trust. The term "trustor" shall be synonymous with the term "mortgagor" and the term "beneficiary" shall be synonymous with the term "mortgagee."
1.31 Notice and Hearing. Notice and hearing shall mean written notice and a hearing before the Board, at which the owner concerned shall have an opportunity to be heard in person or by counsel, at the owner’s expense, in the manner further provided in the bylaws.
1.32 Owner. Owner shall mean the person or persons holding fee simple interest to a unit. The term "owner" shall include a seller under an executory contract of sale but shall exclude mortgagees.
1.33 Person. Person shall mean a natural individual or any other entity with the legal right to hold title to real property.
1.34 Project. Project shall mean Braewood Heritage and it is a "common-interest community" as defined in Section 116.110323 of the Nevada Revised Statutes, as may be amended from time to time.
1.35 Record, File, Recordation. Record, file, or recordation shall mean, with respect to any document, the recordation or filing of such document in the Office of the Clark County Recorder.
1.36 Residence. Residence shall mean a unit, intended for use by a single family, together with any limited common elements reserved for the benefit of such unit.
1.37 Restrictions. Restrictions shall mean this declaration, the articles, bylaws and the rules and regulations of the association, from time to time in effect.
1.38 Rules and Regulations. Rules and regulations shall mean the rules and regulations adopted by the Board pursuant to this declaration or the bylaws, as such rules and regulations may be amended from time to time.
1.39 Unit. Unit shall mean a "unit" as defined in Section 116.11039 of the Nevada Revised Statutes, as may be amended.
1.40 VA. VA shall mean the Department of Veterans Affairs of the United States of America and any department or agency of the United States government which succeeds to VA’s function of issuing guarantees of notes secured by mortgages on residential real estate.
- Braewood Heritage Homeowners Association
2.1 Organization of Association
The association is or shall be incorporated under the name of Braewood Heritage Association, Inc., as a nonprofit corporation organized under the provisions of Sections 82.006 through 82.690 of the Nevada Revised Statutes, as may be amended.
2.2 Duties and Powers
The duties and powers of the association are those set forth in this declaration, the articles and bylaws, together with its general and implied powers of an "association" (as defined in Section 116.110315 of Nevada Revised Statutes, as may be amended) and a nonprofit corporation, generally to do any and all things that such a corporation may lawfully do which are necessary or proper, in operating for the peace, health, comfort, safety and general welfare of its members, subject only to the limitations upon the exercise of such powers as are expressly set forth in the articles, the bylaws and in this declaration. The association shall further have the right to install or construct capital improvements on the common elements. The association may at any time, and from time to time reconstruct, replace or refinish any improvement or portion thereof upon the common elements in accordance with the original design, finish or standard of construction of such improvement; replace destroyed trees or other vegetation and plant trees, shrubs and ground cover upon any portion of the common elements. The association may employ personnel necessary for the effective operation and maintenance of the common elements, including the employment of legal, management and accounting services. The association shall additionally have the power but not the duty to enter into contracts with owners or other persons to provide services or to maintain and repair improvements within the project and elsewhere which the association is not otherwise required to provide or maintain pursuant to this declaration; provided, however, that any such contract shall provide for the payment to the association for the costs of providing such services or maintenance.
Every owner, upon becoming the owner of a unit, shall automatically become a member of the association, and shall remain a member thereof until such time as his ownership ceases, at which time his membership in the association shall automatically cease. Ownership of a unit shall be the sole qualification for membership in the association. Membership in the association shall not be assignable except to the person to whom title to the unit has been transferred, and every membership in the association shall be appurtenant to and may not be separated from the fee ownership of such unit. The rights, duties, privileges and obligations of all members of the association shall be as provided in the restrictions.
The membership held by any owner shall not be transferred, pledged or alienated in any way, except upon the sale or encumbrance of such owner’s unit, and then only to the purchaser or mortgagee of such unit. A prohibited transfer is void and will not be reflected upon the books and records of the association. A member who has sold his unit to a contract purchaser under an agreement to purchase shall be entitled to delegate to the contract purchaser his membership rights in the association. The delegation shall be in writing and shall be delivered to the Board before the contract purchaser may vote. However, the contract seller shall remain liable for all charges and assessments attributable to his unit until fee title to the unit sold is transferred. If the owner of any unit fails or refuses to transfer his membership to the purchaser of the unit upon transfer of fee title thereto, the Board shall have the right to record the transfer upon the books of the association. Until satisfactory evidence of such transfer has been presented to the Board, the purchaser shall not be entitled to vote at meetings of the association. The association may levy a reasonable transfer fee against a new owner and his unit (which fee shall be added to the annual assessment chargeable to such new owner) to reimburse the association for the administrative cost of transferring the membership to the new owner on the records of the association provided such fee does not exceed the association’s actual cost involved in changing its records of ownership.
2.5 Classes of Membership
The association shall have one (1) class of voting membership. Each owner shall be a member. Members shall be entitled to one (1) vote for each unit owned by such members and subject to assessment. When more than one (1) person owns any unit all such persons shall be members. The vote for such unit shall be exercised in accordance with section 2.6, but in no event shall more than one (1) vote be cast for any one (1) unit.
2.6 Voting rights
All voting rights shall be subject to the restrictions. Members shall be entitled to one (1) vote for each unit in which they hold the interest required for membership. When more than one (1) person holds such interest or interests in any unit ("co-owners"), all such co-owners shall be members and may attend any meeting of the association, but only one (1) such co-owner shall be entitled to exercise the single vote to which the unit is entitled. If only one (1) of several owners of a unit is present at a meeting of the association, that owner is entitled to cast all the vote allocated to that unit. Co-owners owning the majority interests in a unit may from time to time designate in writing one (1) of their number to vote. Fractional votes shall not be allowed, and the vote for each unit shall be exercised, if at all, as a unit. Where no voting co-owner is designated or if the designation has been revoked, the vote for the unit shall be exercised as the co-owners owning the majority interests in the unit mutually agree. There is a majority agreement if any of the owners cast the vote allocated to that unit without protest made promptly to the person presiding over the meeting by the other owners of the unit. Unless the Board receives a written objection in advance from an absent co-owner, it shall be conclusively presumed that the corresponding voting co-owner is acting with the consent of his co-owners. No vote shall be cast for any unit if the co-owners present in persons or by proxy owning the majority interests in such unit cannot agree to said vote or other action. The nonvoting co-owner or co-owners shall be jointly and severally responsible for all of the obligations imposed upon the jointly-owned unit and shall be entitled to all other benefits of ownership. All agreements and determinations lawfully made by the association in accordance with the voting percentages established herein, or in the bylaws of the association, shall be deemed to be binding on all owners, their successors and assigns.
2.7 Repair and Maintenance by the Association
(a) Maintenance Standards. Subject to article VIII pertaining to destruction of improvements and article IX pertaining to eminent domain, the association shall paint, maintain, repair and replace the common elements and improvements thereon or shall contract for such maintenance, repair and replacement to assure maintenance of the common elements and improvements thereon in a clean, sanitary and attractive condition reasonably consistent with prudent property management practices and the budget. However, the association shall not be responsible for or obligated to perform those items of maintenance, repair or improvement of the units or limited common elements. The Board shall determine, in its sole discretion, the level and frequency of maintenance of the common elements.
(b) Maintenance Items. Association maintenance and repairs shall include, without limitation, the right, without obligation, to perform the repair and payment for all utilities, water charges, and mechanical and electrical equipment serving the common elements. The limited common elements are owned by the association, however, the owner(s) to which the limited common elements are appurtenant shall be responsible for the cost to maintain, repair and replace (including structural repairs and replacement) such items under the direction and control of the association’s Board of Directors under rules and regulations as set forth in the architectural standards promulgated by the Board under section 6.3 of this declaration. If any owner fails to make, maintain, repair or replace the limited common elements as required by the Board of Directors, the association may, but is not obligated to, enter upon the limited common element and make any necessary repairs and charge back the owner of the appurtenant unit(s) for all costs involved in making such repairs as a special assessment.
(c) Charges to Owners. All such costs of maintenance, repairs and replacements for the project shall be paid for as common expenses out of the association maintenance funds as provided in this declaration. The Board may cause the project to be inspected by its designee who may be a hired professional, for any violation thereof. The cost of any maintenance, repairs or replacements by the association which is not the responsibility of the association or which arises out of, or is caused by, the act of an owner or such owner’s family, tenants, guests, invitees, or agents shall, after notice and hearing, be levied by the Board as a special assessment against such owner.
2.8 Liability for effects of Limited Common Elements
Any damage, injury or harm that is caused by or as the result of a limited common element shall be solely the responsibility of the owner who has the exclusive easement with respect to that limited common element. The association shall have no liability for any damage, injury or harm that results from a limited common element. Furthermore, the association shall have the right to be indemnified by the owner who has an exclusive easement with respect to the limited common element causing harm for any judgment awarded against the association, including the actual attorneys fees and costs in relation to any defense, in relation to damage caused by a limited common element.
2.9 Repair and Maintenance by Owners
It shall be the duty of each owner, at his sole expense, keep any limited common element appurtenant to his unit free from debris and reasonably protected against damage. Each owner shall be solely responsible for full repair, replacement, maintenance and upkeep of such limited common element as approved by the Board of Directors in accordance with its architectural standards promulgated under this declaration. If any owner fails to maintain or repair his residence or limited common element, the association shall have the right but not the duty to perform such maintenance and repair and to levy a special assessment against such owner as described in sections 2.7 (b) and (c).
2.10 Use of Agent
The Board, on behalf of the association, may contract with a manager for the performance of maintenance and repair and for conducting other activities on behalf of the association, as may be determined by the Board. The maximum term of any such contract ("management contract") shall be one (1) year, unless a longer term is approved either by vote or written assent of a majority of the voting power of the association or by VA or FHA, in which case the maximum term of the management contract shall be three (3) years. Each such management contract shall provide for its termination by either party thereto with cause upon no more than thirty (30) days, written notice to the other party, and without cause and without payment of a termination fee upon no more than ninety (90) days, written notice to the other party.
2.11 FHA Regulatory Agreement
In order to induce FHA to insure mortgages on units in the project, the association may enter into an agreement with FHA concerning the financial and maintenance affairs of the association, which agreement may be executed on FHA Form No. 3278. If the association enters into such an agreement, its provisions shall control in the event of a conflict with the provisions of this declaration, the bylaws, or the articles, so long as FHA is insuring loans secured by mortgages on units in the project.
- Owners’ Property Rights
3.1 Legal Description of Unit
The components of each unit shall be substantially as follows:
PARCEL NO. 1: Fee title to the applicable unit as shown on the map covering such unit.
PARCEL NO. 2: A non-exclusive easement for access, ingress, egress, and use with respect to the common elements as described in this declaration.
3.2 Association Easement
The association shall have an easement over the common elements for performing its duties and exercising its powers described in this declaration. The association’s obligations to maintain the common elements shall commence on the date annual assessments commenced on units.
As provided in Section 116.2107(6) of the Nevada Revised Statutes, as may be amended, there shall be no judicial partition of the common elements, or any part thereof, for the term of the project, nor shall declarant, any owner or any other person acquiring any interest in any unit in the project seek any such judicial partition. Any purported conveyance, encumbrance, judicial sale or other voluntary or involuntary transfer of an undivided interest in the common elements made without the unit to which that interest is allocated is void.
3.4 Members’ Easements in Common Elements
Subject to the provisions of this declaration, every member of the association shall have for himself, his family, his tenants and guests, a nonexclusive easement of access, ingress, egress, use and enjoyment of, in and to the common elements, and such easements shall be appurtenant to and shall pass with title to every unit in the project.
3.5 Extent of Members’ Easements
The rights and easements of use and enjoyment of the common elements created by this declaration shall be subject to the restrictions, which include, without limitation, the following:
(a) The right of the association to consent to or otherwise cause the construction of additional improvements on the common elements and to consent to or otherwise cause the alteration or removal of any existing improvements on the common elements for the benefit of the members of the association;
(b) The right of the association acting through the Board and pursuant to an agreement executed by owners to whom a majority of the association’s voting power is allocated, which agreement must be recorded and which must specify a date after which the agreement will be void unless recorded, to convey the common elements or to subject the common elements to a mortgage;
(c) The right of the association, acting through the Board, to grant easements, leases, licenses and concessions through or over the common elements;
(d) Subject to the provisions of this declaration, the right of each owner to the exclusive use and occupancy for the purposes designated in this declaration or in any recorded notice of addition of the limited common elements allocated to his respective unit;
(e) The right of the association, acting through the Board, to reasonably restrict access to maintenance and landscaped areas and similar areas of the project;
(f) The right of the association to reasonably limit the number of guests and tenants of the owners using the common elements; and
(g) The right of the association, acting through the Board, to establish uniform rules and regulations for the use of the common elements.
3.6 Delegation of Use
Any owner entitled to the right and easement of use and enjoyment of the common elements may delegate his right and easement to his tenants, contract purchasers or subtenants who reside in his unit, subject to reasonable regulation by the Board. Said delegation must be in writing and delivered to a member of the Board. If an owner delegates his rights as set forth herein, such owner shall not be allowed the use and enjoyment of the common elements during the term of such delegation.
3.7 Waiver of Use
No owner may exempt himself from personal liability for assessments duly levied by the association, or effect the release of his unit from the liens and charges thereof, by waiving or delegating use and enjoyment of the common elements as set forth in section 3.6 above or by abandoning his unit.
3.8 Damage by Member
To the extent permitted by Nevada law, each member shall be liable to the association for any damage to the common elements not fully reimbursed to the association by insurance if the damage is sustained because of the negligence, willful misconduct or unauthorized or improper installation or maintenance of any improvement by the member, his guests, tenants or invitees, or any other persons deriving their right and easement of use and enjoyment of the common elements from the member, or his or their respective family and guests, both minor and adult. However, the association, acting through the Board, reserves the right to determine whether any claim shall be made upon the insurance maintained by the association, and the association further reserves the right, after notice and hearing as provided in the bylaws, to levy a special assessment equal to the increase, if any, in insurance premiums directly attributable to the damage caused by the member or the person for whom the member may be liable as described above. In the case of joint ownership of a unit the liability of the owners shall be joint and several, except to the extent that the association shall have previously contracted in writing with the joint owners to the contrary. After notice and hearing as provided in the bylaws, the cost of correcting the damage to the extent not reimbursed to the association by insurance shall be a special assessment against such member’s unit and may be enforced as provided herein.
- Association Maintenance Funds and Assessments.
4.1 Personal Obligation of Assessments
Each owner, by acceptance of a deed to a unit whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the association (1) annual assessments for common expenses, (2) special assessments and (3) reconstruction assessments, together with interest, costs, and reasonable attorneys’ fees for the collection thereof, shall be a charge on the unit against which such assessment is made. Each such assessment, together with interest costs and reasonable attorneys’ fees shall also be the personal obligation of the person who was the owner of the unit at the time when the assessment fell due. This personal obligation cannot be avoided by abandonment of the unit or by an offer to waive uses of the common elements or the limited common elements. The personal obligation for delinquent assessments shall not pass to any new owner ("purchaser") unless expressly assumed by the purchaser.
4.2 Maintenance Funds of Association
The Board shall establish no fewer than two (2) separate association maintenance fund accounts, into which shall be deposited all monies paid to the association, and from which disbursements shall be made, as provided herein, in the performance of functions by the association under this declaration. The association maintenance funds may be established as trust accounts at a banking or savings institution and shall include: (1) an operating fund for current common expenses of the association, (2) an adequate reserve fund for capital improvements, replacements, painting and repairs of the common elements (which cannot normally be expected to occur on an annual or more frequent basis), and for payment of deductible amounts for policies of insurance which the association obtains as provided in Section 7.1 hereof, and (3) any other funds which the Board may establish to the extent necessary under the provisions of this declaration. Nothing contained herein shall limit, preclude or impair the establishment of additional maintenance funds by the association, so long as the amounts assessed to, deposited into, and disbursed from any such fund are earmarked for specified purposes authorized by this declaration. Any surplus funds of the association remaining after payment of or provision for common expenses and any prepayment of reserves or any other fund established by the Board may be used for other purposes as determined by the Board of Directors.
4.3 Purpose of Assessments
The assessments levied by the association shall be used exclusively to promote the recreation, health, safety and welfare of the owners, for the operation, replacement, improvement and maintenance of common elements, and to discharge any other obligations of the association under this declaration. All amounts deposited into the maintenance funds must be used solely for the common benefit of all of the owners for purposes authorized by this declaration. Disbursements from the operating fund shall be made by the Board or its designated agent, for such purposes as are necessary for the discharge of its responsibilities herein for the common benefit of all of the owners, other than those purposes for which disbursements from the reserve fund are to be used. Disbursements from the reserve fund shall be made by the Board only for the purposes specified in this article IV. Nothing in this declaration shall be construed in such a way as to permit the use of association assessments or funds to abate any annoyance or nuisance emanating from outside the boundaries of the project. Annual assessments shall be used to satisfy common expenses of the association, as provided herein and in the bylaws.
4.4 Adoption of Budget
The Board shall annually adopt, at least (60) days prior to the expiration of the current fiscal year, a proposed budget for the project for the upcoming fiscal year. Within thirty (30) days after such adoption, the Board shall provide a summary of the budget to all owners and shall call a meeting of the members to consider ratification of the budget. The date of such meeting shall be not less than fourteen (14) nor more than thirty (30) days after the date of mailing of the budget summary. Unless members controlling a majority of the voting power of the association reject the budget, the budget shall be deemed ratified, whether or not a quorum is present at said meeting. If the budget is rejected,
then the budget last ratified shall be continued until such time as a new proposed budget is ratified. If during such upcoming fiscal year the Board determines that the annual assessment should be increased above the amount reflected in the budget then in effect for such fiscal year, the Board shall provide a summary of the increased budget to all owners and the provisions set forth above concerning a meeting of the owners to ratify a new budget shall be applicable to such proposed increase.
4.5 Annual Assessments/Commencement-Collection/Maximum Increase
All annual assessments shall be assessed equally against the members and their units based upon the number of units owned by each member. From time to time and consistent with Section 116.3114 of the Nevada Revised Statutes, as may be amended, and section 4.2 hereof, the Board may determine that all excess funds in the operating fund be retained by the association and used to reduce the following year’s annual assessments. Upon dissolution of the association incident to the abandonment or termination of the project, any amounts remaining in any of the maintenance funds shall be distributed to or for the benefit of the members in the same proportions as such monies were collected from the members, subject to the rights of any creditors of the association as set forth in Sections 116.21183 to 116.2119, inclusive, of the Nevada Revised Statutes, as may be amended.
Each member shall pay to the association his annual assessment in installments at such frequency and in such amounts as established by the Board. However, the annual assessment for a particular fiscal year shall not, without approval of the members, be increased by an amount which is more than 110% of the last installment of annual assessments levied in the last quarter (or other installment period) of the immediately preceding fiscal year, annualized over an entire year. An annual assessment may be increased above such maximum if, but only if, such increase is approved at a meeting of members by the vote of members holding two-thirds (2/3) of the votes cast at said meeting in each class of voting rights then in existence. Each installment of annual assessments may be paid by the member to the association in one check or in separate checks as payments attributable to deposits into specified association maintenance funds. If any installment of an annual assessment payment is less than the amount assessed and the payment does not specify the association maintenance fund or funds into which it should be deposited, the receipt by the association from that member shall be credited in order of priority first to the operating fund, until that portion of the annual assessment has been satisfied, and second to the reserve fund.
Any installment of an assessment provided for in this declaration shall be delinquent if not paid within fifteen (15) days of the due date as established by the Board of the association. Upon such delinquency, the full amount of the assessment (i.e., not simply the delinquent installment) shall immediately become due and payable. The Board shall be authorized to adopt a system pursuant to which the full amount of any annual assessments, special assessments, or reconstruction assessments not paid within thirty (30) days after the due date, plus all reasonable costs of collection (including attorneys’ fees) and late charges as provided herein, shall bear interest commencing thirty (30) days from the due date until paid at the rate of up to eighteen percent (18%) per annum, but in no event more than the maximum rate permitted by law. The Board may also require the delinquent owner to pay a late charge. The association need not accept any tender of a partial payment of an installment of an assessment and all costs and attorneys’ fees attributable thereto, and any acceptance of any such tender shall not be deemed to be a waiver of the association’s right to demand and receive full payments thereafter.
4.7 Creation and Release of Lien
All sums assessed in accordance with the provisions of this declaration shall constitute a lien on the respective unit from the time such sums become due prior and superior to all other liens and encumbrances thereon except (a) liens and encumbrances recorded before recordation of the original declaration; (b) a first mortgage on the unit recorded before the date on which the assessment sought to be enforced becomes delinquent, except the association lien shall have priority for six (6) months’ annual assessments pursuant to Section 116.3116.2(c) of the Nevada Revised Statutes, as may be amended; and (c) liens for real estate taxes and other governmental assessments or charges against the unit. The association may enforce the lien after (aa) recordation by the Board or its authorized agent of a notice of delinquent assessment ("notice of lien") which states (i) the amount of the assessment and other authorized charges and interest, including the cost of preparing and recording the notice of lien, (ii) a sufficient description of the unit against which the same has been assessed, and (iii) the name of the owner thereof; (bb) the association or other person conducting the sale has executed and caused to be recorded a notice of default and election to sell ("notice of default") the unit to satisfy the lien, which contains the same information as the notice of lien plus a description of the deficiency in payment and the name and address of the person authorized to enforce the lien by sale; and (cc) the owner or his successor-in-interest has failed to pay the amount of the lien (including costs, fees and expenses incidental to its enforcement) for sixty (60) days following recordation of the notice of default. The sixty (60) day period shall begin to run on the first day following the later of (aaa) the date of which the notice of default is recorded, or (bbb) the day on which a copy of the notice of default is mailed by certified or registered mail, return receipt requested, to the unit’s owner or his successor-in-interest at his address if known, otherwise to the address of the unit. Upon payment to the association of the full amount claimed in the notice of lien, or other satisfaction thereof, the Board shall cause to be recorded a notice of satisfaction and release of lien ("notice of release") stating the satisfaction and release of the amount claimed. The Board may demand and receive from the applicable owner a reasonable charge, to be determined by the Board, for the preparation and recordation of the notice of release before recording it. Any purchaser or encumbrancer who has acted in good faith and extended value may rely upon the notice of release as conclusive evidence of the full satisfaction of the sums stated in the notice of lien. A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted with three (3) years after the full amount of the assessment becomes due.
4.8 Enforcement of Liens
It shall be the duty of the Board to enforce the collection of any amounts due under this declaration by one (1) or more of the alternative means of relief afforded by this declaration or in any other matter permitted by law. The lien on a unit may be enforced by sale, in the County in which the project or any part of it is situated, of the unit by the association, the association’s attorneys, any title insurance company authorized to do business in Nevada, or other persons authorized to conduct the sale as a trustee, or in any other manner permitted by law, after failure of the owner to pay any annual, special or reconstruction assessment, or installments thereof, as provided herein. The sale shall be conducted in accordance with the provisions of the Nevada Uniform Common-Interest Ownership Act, or in any other manner permitted by law. The association, through its agents, shall have the power to enter a credit bid on the unit at foreclosure sale, and to acquire and hold, lease, mortgage and convey the same. Upon completion of the foreclosure sale, an action may be brought by the association or the purchaser at the sale in order to secure occupancy of the defaulting owner or any persons claiming under the defaulting owner. Suit to recover a money judgment for unpaid assessments shall be maintainable without foreclosing or waiving any lien securing the same, but this provision or any institution of suit to recover a money judgment shall not constitute an affirmation of the adequacy of money damages. Any recovery resulting from a suit at law or in equity initiated pursuant to this section may include reasonable attorneys’ fees as fixed by the court.
4.9 Capital Contributions to the Association
Upon acquisition of record title to a unit, each owner of a unit shall contribute to the capital of the association $250.00. This amount shall be deposited by the buyer into the purchase and sale escrow and disbursed therefrom to the association.
- Project Easements and Rights of Entry
(a) Access. Declarant expressly reserves for the benefit of the owners reciprocal, nonexclusive easements for access, ingress and egress over all of the common elements. Subject to the provisions of this declaration governing use and enjoyment thereof, the easements may be used by all owners and their guests, tenants and invitees residing on or temporarily visiting the project, for purposes reasonably necessary for use and enjoyment of a unit in the project.
(b) Maintenance and Repair. Declarant expressly reserves for the benefit of the Board and all agents, officers and employees of the association, nonexclusive easements over the common elements (including the limited common elements) as necessary to maintain and repair the common elements, and to perform all other tasks in accordance with the provisions of this declaration. Such easements over the common elements shall be appurtenant to, binding upon, and shall pass with the title to, every unit conveyed.
(c) Utility Easements. Declarant expressly reserves for the benefit of the association the right of declarant to grant additional easements and rights-of-way over the project to utility companies and public agencies, as necessary, for the proper development and disposal of the project.
(d) Encroachments. Easements and reciprocal negative easements for utility services and repairs, replacement and maintenance of the same over all of the common elements are specifically reserved for the benefits of the owners.
5.2 Rights of Entry
The Association shall have the right to enter at all reasonable times, by it or its agents or independent contractors, any Unit when necessary in connection with maintenance or construction as to which the Association has rights hereunder, subject to obtaining the express consent of the Owner of any such Unit. In case of emergency, such right of entry shall be immediate..
6. Residence and Use Restrictions
All of the project shall be held, used and enjoyed subject to the following limitations and restrictions set forth in this declaration.
6.1 Single Family Residences
Each unit shall be used as a residence for a single family and for no other purpose.
6.2 Parking and Vehicular Restrictions
No owner shall park, store or keep within the project any large commercial type vehicle (including, but not limited to, any dump truck, cement mixer truck, oil or gas truck or delivery truck); any recreational vehicle (including, but not limited to, any camper unit, house/car or motor home); any bus, trailer, trailer coach, camp trailer, boat or other type of water craft of any kind, aircraft or mobile home; or any inoperable or unlicenced vehicle or any other similar vehicle except as allowed by the Board of Directors. The above excludes camper trucks and similar vehicles up to and including three-quarter (3/4) ton when used for everyday-type transportation and subject to approval by the Board. In addition, no owner shall park, store, or keep anywhere within the project any vehicle or vehicular equipment, mobile or otherwise, deemed to be a nuisance by the Board. The Board may establish additional regulations as it deems appropriate in its sole discretion with regard to any of the parking areas in the project, including the power to enforce all parking and vehicle use restrictions applicable to the project, including the power to remove violating vehicles from any of the project to the extent permitted by applicable law. The Board and the Declarant may, in their sole discretion, assign and re-assign handicap parking spaces within the project. If the Board fails to enforce any of the parking or vehicle use regulations, the County may, but need not, enforce such regulations in accordance with state and local laws and ordinances.
6.3 Architectural Standards.
No building, fence, wall or other structure shall be commenced, erected or maintained upon any owner’s unit, nor shall any landscaping, exterior painting or modification be made until the plans and specifications showing the nature, kind, shape, height, materials and locations of such modification shall have been submitted to and approved in writing by the Board of Directors of the association, or by an architectural review committee composed of three or more representatives appointed by the Board.
(a) Neither the Board nor the architectural review committee may be held liable for either granting or withholding approval of any proposed modification submitted by an owner.
No rubbish or debris of any kind shall be placed or permitted to accumulate anywhere within the project, and no odor shall be permitted to arise therefrom so as to render the project or any portion thereof unsanitary, unsightly, or offensive. No noise or other nuisance shall be permitted to exist or operate upon any portion of a unit so as to be offensive or detrimental to any other unit in the project or to its occupants. Without limiting the generality of any of the foregoing provisions, no exterior speakers, horns, whistles, bells or other sound devices (other than security devices used exclusively for security purposes), noisy or smoky vehicles, large power equipment or large power tools, unlicenced off-road motor vehicles or other items which may unreasonable disturb other owners or their tenants as determined by the Board of Directors shall be located, used or placed on any portion of the project without the prior written approval of the Board. Alarm devices used exclusively to protect the security of a unit and its contents shall be permitted, provided that such devices do not produce annoying sounds or conditions as a result of frequently occurring false alarms.
No sign, poster, billboard, advertising device or other display of any kind shall be displayed without the pre-approval of the Board of Directors. The Board of Directors shall not unreasonably withhold such approval.
6.6 Antennae/Satellite Dish
No exterior radio antenna, television antenna, "C.B.," antenna, satellite dish or other antenna of any type shall be erected or maintained on any unit except as approved by the Board of Directors which approval shall be in harmony with any state or federal law governing the installation and maintenance of such satellite dish, satellite antenna or television antenna.
6.7 Unsightly Articles
No unsightly articles shall be permitted to remain on any unit so as to be visible from any other portion of the project. Without limiting the generality of the foregoing, refuse, garbage and trash shall be kept at all times in covered, sanitary containers or enclosed areas designed for such purpose.
No animals, fowls, reptiles, poultry, fish or insects of any kind ("animals") shall be raised, bred or kept within the project, except that a reasonable number of dogs, cats, or other household pets may be kept within a residence, provided that they are not kept, bred or maintained for any commercial purpose, nor in unreasonable quantities nor in violation of any applicable local ordinance or any other provision of the restrictions and such limitations as may be set forth in the rules and regulations. As used in this declaration "unreasonable quantities" shall ordinarily mean more than two (2) pets per household; provided, however, that the Board may determine that a reasonable number in any instance may be more or less. The association, acting through the Board, shall have the right to prohibit maintenance of any animal which constitutes, in the opinion of the Board, a nuisance to other owners in the project. Animals belonging to owners, occupants or their licensees, tenants or invitees within the project must be either kept within the unit or on a leash or other restraint being held by a person capable of controlling the animal. Furthermore, to the extent permitted by law, any owner shall be liable to each and all remaining owners, their families, guests, tenants and invitees, for any unreasonable noise or damage to person or project caused by any animals brought or kept upon the project by an owner or by members of his family, his tenants or his guests; and it shall be the absolute duty and responsibility of each owner to clean up after such animals which have used any portion of the common elements. No animal shall be tied to any common area structure.
6.9 Business or Commercial Activity
No part of the project shall ever be used for any business, commercial (including auctions or similar events), manufacturing, mercantile, storage, vending or other nonresidential purposes, including without limitation any activity for which the provider is compensated in any way or receives any form of consideration, regardless of whether the activity is engaged in full or part-time, generates or does not generate a profit, or requires or does not require a license. The provisions of this section 6.9 shall not preclude any of the above-described activities without external evidence thereof, provided that all of the conditions are fulfilled: (a) such activities are conducted in conformance with all applicable governmental ordinances; (b) the patrons or clientele of such activities do not visit the unit or park automobiles or other vehicles within the project; (c) the existence or operation of such activities is not apparent or detectable by sight, sound or smell from outside of the boundaries of the unit; (d) no such activity increases the liability or casualty insurance obligation or premium of the association; and (e) such activities are consistent with the residential character of the project and conform with the provisions of this declaration.
6.10 No Further Subdivision
No unit may be further subdivided without the prior written approval of the Board; provided, however, that nothing in this section shall be deemed to prevent an owner from, or require the approval of the Board for: (1) selling a unit; or (2) transferring or selling any unit to more than one (1) person to be held by them as tenants in common, joint tenants, tenants by the entirety or as community property; or (3) the leasing or renting by any owner of all of his unit, provided that any such lease or rental shall be subject to the restrictions as stated elsewhere in the Declaration.
There shall be no interference with the established drainage in the project, unless an adequate alternative provision, previously approved in writing by the Board of Directors, is made for proper drainage.
No unit shall be rented or leased for hotel or transient purposes. A lease for a period of less than six (6) months shall be deemed to be for transient purposes. All leases of any unit shall be in writing and shall include an acknowledgment by the tenant of the applicability of this declaration and the rules and regulations. All leases shall be in writing and subject to the approval of the Board but only with respect to the provisions required to this subsection. Copies of all leases, including the names of the tenant(s) shall be provided to the Board for its records and upon termination of a lease agreement, the owner shall be obligated to provide the Board with each subsequent lease agreement within the time frame established by the Board.
7.1 Duty to Obtain Insurance; Types
(a) Public Liability. At all times, the Board shall cause to be obtained and maintained adequate blanket public liability insurance (including medical payments), with such limits as may be considered acceptable to FNMA (not less than $1 million covering all claims for personal injury and project damage arising out of a single occurrence), insuring against liability for bodily injury, death and project damage arising out of or in connection with the use, ownership or maintenance of the common elements.
(b) Fidelity Bonds. Fidelity bond coverage which names the association as an obligee must be obtained by or on behalf of the association for any person or entity handling funds of the association, including, but not limited to, officers, directors, trustees, employees and agents of the association and employees of the manager of the association, whether or not such persons are compensated for their services, in an amount not less than the estimated maximum of funds, including reserve funds, in the custody of the association or the manager, as the case may be, at any given time during the term of each bond. However, in no event may the aggregate amount of such bonds be less than $25,000.
(c) Insurance Required by FNMA, GNMA, and FHLMC. The association shall continuously maintain in effect such casualty, flood and liability insurance and fidelity bond coverage meeting the insurance and fidelity bond requirements for this project as may be required by FNMA, GNMA, and FHLMC, so long as any of which is a mortgagee or owner of a unit within the project, except to the extent such coverage is not available or has been waived in writing by FNMA, GNMA and FHLMC, as applicable.
(d) Other Insurance. The Board shall purchase such other insurance, as necessary, including but not limited to, errors and omissions, directors, officers and agents liability insurance, plate glass insurance, medical payments, malicious mischief, liquor liability and vandalism, insurance, fidelity bonds and worker’s compensation, and such other risks as shall customarily be covered with respect to projects similar in construction, location and use.
(e) Beneficiaries. Such insurance shall be maintained for the benefit of the association, the owners, and the mortgagees, as their interests may appear as named insured and consistent with Section 116.31133 of the Nevada Revised Statutes, subject however, to loss of payment requirements as set forth herein.
7.2 Waiver of Claim Against Association
As to all policies of insurance maintained by or for the benefit of the association and the owners, the association and the owners hereby waive and release all claims against one another and the Board, to the extent of the insurance proceeds available, whether or not the insurable damage or injury is caused by the negligence of or breach of any agreement by any of said persons.
7.3 Owners to Insure
It is the responsibility of each owner to provide insurance on his residence, limited common elements to which he has an exclusive easement and personal property, as provided in Section 7.1(b) above. Nothing herein shall preclude any owner from carrying any public liability insurance as he deems desirable to cover his individual liability for damage to person or property occurring inside his residence or elsewhere upon the project. Such policies shall not adversely, affect or diminish any liability under any insurance obtained by or on behalf of the association, and duplicate copies of such other policies shall be deposited with the Board upon request. If any loss intended to be covered by insurance carried by or on behalf of the association shall occur and the proceeds payable thereunder shall be reduced by reason of insurance carried by any owner, such owner shall assign the proceeds of such insurance carried by him to the association, to the extent of such reduction, for application by the Board to the same purposes as the reduced proceeds are to be applied.
7.4 Notice of Expiration Requirements
If available, each of the policies of insurance maintained by the association shall contain a provision that said policy shall not be canceled, terminated, materially modified or allowed to expire by its terms, without thirty (30) days’ prior written notice to the Board, to each owner and beneficiary, insurer and guarantor of a first mortgage who has filed a written request with the carrier for such notice and every other person in interest who requests such notice of the insurer. In addition, fidelity bonds shall provide that they may not be canceled or substantially modified without thirty (30) days prior written notice to any insurance trustee named pursuant to Section 7.6 and to each FNMA servicer who has filed a written request with the carrier for such notice.
7.5 Insurance Premiums
Insurance premiums for any insurance deemed necessary by the Board shall be a common expense to be included in the annual assessments levied by the association and collected from the owners. That portion of the annual assessments necessary for the required insurance premiums shall be separately accounted for by the association in the reserve fund, to be used solely for the payment of premiums of required insurance as such premiums become due.
7.6 Trustee for Policies
The association, through its board, is hereby appointed and shall be deemed trustee of the interests of all named insureds under policies of insurance purchased and maintained by the association. All insurance proceeds under any such policies as provided for in Section 7.1 of this article shall be paid to the Board as trustees. The Board shall have full power to receive and to receipt for the proceeds and to deal therewith as provided herein. Insurance proceeds shall be used by the association for the repair or replacement of the property for which the insurance was carried or otherwise disposed of as provided in article VII of this declaration. The Board is hereby granted the authority to negotiate loss settlements with the appropriate insurance carriers, with participation, to the extent they desire, of first mortgagees who have filed written requests within ten (10) days of receipt of notice of any damage or destruction as provided in Section 8.4 of this declaration. Any two (2) officers of the association may sign a loss claim form and release form in connection with the settlement of a loss claim, and such signatures shall be binding on all the named insureds. A representative chosen by the Board may be named as an insured, including a trustee with whom the association may enter into an insurance trust agreement or any successor to such trustee, who shall have exclusive authority to negotiate losses under any policy providing property or liability insurance and to perform such other functions necessary to accomplish this purpose.
7.7 Actions as Trustee
Except as otherwise specifically provided in this declaration, the Board, acting on behalf of the association and all owners, shall have the exclusive right to bind such parties in respect to all matters affecting insurance carried by the association, the settlement of a loss claim, and the surrender, cancellation, and modification of all such insurance, in a manner satisfactory to beneficiaries of seventy-five percent (75%) of the first mortgages held by first mortgagees who have filed requests under Section 7.4. Duplicate originals or certificates of all policies of fire and casualty insurance maintained by the association and all renewals thereof, together with proof of payment of premiums, shall be delivered by the association to all owners and mortgagees who have requested the same in writing.
7.8 Annual Insurance Review
The Board shall review the insurance carried by or on behalf of the association at least annually, for the purpose of determining the amount of the casualty and fire insurance referred to in Section 7.1 above. If economically feasible, the Board shall obtain a current appraisal of the full replacement value of the improvements on the common elements, without deduction for depreciation, from a qualified independent insurance appraiser, prior to each such annual review.
7.9 Required Waiver
All policies of physical damage and liability insurance shall provide, if reasonably possible, for waiver of the following rights, to the extent that the respective insurers would have the rights without such waivers:
(a) subrogation of claims against the owners;
(b) any defense based upon coinsurance
(c) any right of setoff, counterclaim, apportionment, proration or contribution by reason of other insurance not carried by the association;
(d) any invalidity, other adverse effect or defense on account of any breach of warranty or condition caused by the association or any owner, or arising from any act, neglect, or omission of any named insured or the respective agents, contractors and employees of any insured;
(e) any right of the insurer to repair, rebuild or replace;
(f) notice of the assignment of any owner of his interest in the insurance by virtue of a conveyance of any unit; and
(g) any right to require any assignment of any mortgage to the insurer.
Each such policy shall also provide that each owner is an insured person under the policy with respect to liability arising out of the owner’s interest in the common elements or membership in the association.
- Destruction of Improvements
8.1 Restoration of the Project
Except as otherwise provided in this declaration, in the event of any destruction of any portion of the common elements, the repair or replacement of which is the responsibility of the association, it shall be the duty of the association to restore and repair the same to its former condition, as promptly as practical. The proceeds of any insurance maintained pursuant to Article VII hereof for reconstruction or repair of the common elements shall be used for such purpose, unless (a) the project is terminated, in which case section 11.2(c) of this declaration shall apply; (b) repair or restoration would be illegal under any state or local statute or ordinance governing health or safety; or (c) eighty percent (80%) of the owners’ vote not to rebuild. The Board shall be authorized to have prepared the necessary documents to effect such reconstruction as promptly as practical. The common elements shall be reconstructed or rebuilt substantially in accordance with the applicable map and the original construction plans if they are available, unless changes recommended by the Board of Directors have been approved in writing by sixty-seven percent (67%) of the owners and by the beneficiaries of fifty-one percent (51%) of first mortgages upon the units. A reconstruction assessment shall be levied by the Board to provide the necessary funds for such reconstruction, over and above the amount of any insurance proceeds available for such purpose. If all the common elements are not repaired or replaced, then the proceeds attributable to the damaged common elements must be used to restore the damaged area to a condition compatible with the remainder of the project, and (a) any proceeds attributable to units and limited common elements that are not rebuilt shall be distributed to the owners of those units and the units to which those limited common elements were allocated; provided, however, that such proceeds shall first be applied to the balance then due on any mortgages encumbering such owners holding an interest in such common elements in proportion to the interest held; provided, however, that such proceeds shall first be applied to the balance then due on any mortgage encumbering such owners’ units, in order of priority.
No owner shall have the right to partition his interest in the unit and there shall be no judicial partition of the project, or any part thereof. Nothing herein shall be deemed to prevent partition of a cotenancy in any unit. Except as provided above, each owner and the successors of each owner, whether by deed, gift, devise, or by operation of law, for their own benefit and for the units and for the benefit of all other owners, specifically waive and abandon all rights, interests and causes of action for a judicial partition of the tenancy in common ownership of the project and do further covenant that no action for such judicial partition shall be instituted, prosecuted or reduced to judgment.
8.3 Notice to Owners and Listed Mortgagees
The Board, immediately upon having knowledge of any damage or destruction affecting a material portion of the common elements, shall promptly notify all owners and beneficiaries, insurers and guarantors of first mortgages on units in the project, who have filed a written request for such notice with the Board.
- Eminent Domain
The term "taking" as used in this article shall mean condemnation by exercise of the power of eminent domain or by sale under threat of the exercise of the power of eminent domain. The Board shall represent the owners, with the exception of the Secretary, Department of Veterans Affairs, an officer of the United States of America, in any proceedings, negotiations, settlements, or agreements regarding takings of common elements.
9.1 Condemnation of Common Elements
If there is a taking of all or any portion of the common elements (other than limited common elements), or any interest therein, other than the taking of an undivided interest therein taken as a result of the taking of a unit, then the award in condemnation shall be paid to the association and shall be deposited in the operating fund.
9.2 Condemnation of Limited Common Elements
If there is a taking of all or any portion of a limited common element which is not taken in connection with the taking of all or any portion of the unit to which it is appurtenant, the award in condemnation shall be paid to the owner of the unit to which the taken limited common element was appurtenant; provided, however, that such award shall first be applied to the balance then due on any mortgages encumbering such owner’s unit, in order of priority.
9.3 Notice to Owners and Mortgagees
The Board, upon learning of any taking affecting a material portion of the project, or any threat thereof, shall promptly notify all owners and those beneficiaries, insurers, and guarantors of mortgages on units in the project who have filed a written request for such notice with the association. The Board, upon learning of any taking affecting a unit, or any threat thereof, shall promptly notify any beneficiary, insurer or guarantor of a mortgage encumbering such unit who has filed a written request for such notice with the association.
10. Rights of Mortgagees
Notwithstanding any other provision of this declaration, no amendment or violation of this declaration shall operate to defeat or render invalid the rights of the beneficiary under any deed of trust upon one (1) or more units made in good faith and for value, provided that after the foreclosure of any deed of trust such unit(s) shall remain subject to this declaration, as amended. For purposes of this declaration, "first mortgage" shall mean a mortgage with first priority over other mortgages or deeds of trust on a unit, and "first mortgagee" shall mean the beneficiary of a first mortgage.
(a) The Board may enter into such contracts or agreements on behalf of the association as are required in order to satisfy the guidelines of VA, FHA, FHLMC, FNMA, or GNMA or any similar entity, so as to allow for the purchase, guaranty or insurance, as the case may be, by such entities of first mortgages encumbering units. Each owner hereby agrees that it will benefit the association and the membership of the association, as a class of potential mortgage borrowers and potential sellers of their residential units, if such agencies approve the project as a qualifying subdivision builder their respective policies, rules and regulations, as adopted from time to time. Each owner hereby authorizes his mortgagees to furnish information to the Board concerning the status of any mortgage encumbering a unit.
(b) When professional management has been previously required by a beneficiary, insurer, or guarantor of a first mortgage, any decision to establish self-management by the association shall require the approval of sixty-seven percent (67%) of the voting power of the association and the beneficiaries of fifty-one percent (51%) of the first mortgages of units in the project.
- Duration and Amendment
This declaration shall continue in full force for a term of fifty (50) years from the date of recordation hereof, after which the term shall be automatically extended for successive periods of ten (10) years, unless a declaration of termination satisfying the requirements of an amendment to this declaration as set forth in section 11.2 is recorded. There shall be no severance by sale, conveyance, encumbrance or hypothecation of an interest in any unit from the concomitant membership in the association, as long as this declaration shall continue in full force and effect. The provisions of this article XI are subject to the provisions of article IX and X of this declaration.
11.2 Termination and Amendment
(a) Notice of the subject matter of a proposed amendment to this declaration in reasonably detailed form shall be included in the notice of any meeting or election of the association at which a proposed amendment is to be considered. The resolution shall be adopted by the vote, in person or by proxy, or written consent of members representing a simple majority, not less than fifty-one percent (51%) of the voting power of the association necessary to amend a specified section or provision of this declaration than the percentage of affirmative votes prescribed for action to be taken under that section or provision. The member approval described above shall not be required for amendments that may be executed by the association under Sections 116.1107 and 116.2108(3) of the Nevada Revised Statutes, as may be amended, or by certain owners under Section 116.2118 of the Nevada Revised Statutes, as may be amended.
(b) Except in the case of a taking of all of the units by eminent domain, termination of this declaration shall require approval by members representing at least eighty percent (80%) of the association’s voting power.
(c) A copy of each amendment shall be certified by at least two (2) officers of the association, and the amendment shall be effective when a certificate of amendment is recorded. The certificate, signed and sworn to by two (2) officers of the association that the requisite number of owners and mortgagees have either voted for or consented in writing to any amendment adopted as provided above, when recorded, shall be conclusive evidence of that fact. The association shall maintain in its files the record of all such votes or written consents for a period of at least four (4) years. The certificate reflecting any termination or amendment which requires the written consent of any of the beneficiaries of first mortgages shall include a certification that the requisite approval of such first mortgagees has been obtained.
- General Provisions
12.1 Enforcement of Restrictions
(a) Violations identified by the association. If the Board determines that there is a violation of any provision of the restrictions, or that there is an improvement which is the maintenance responsibility of an owner is in need of installation, maintenance, repair, restoration or painting, then the Board shall give written notice to the responsible owner identifying (i) the condition or violation complained of, and (ii) the length of time the owner has to remedy the violation including, if applicable, the length of time the owner has to submit plans to the Board of Directors and the length of time the owner has to complete the work proposed in the plans submitted to the Board of Directors.
If an owner does not perform such corrective action as is required by the Board within the allotted time, the Board, after notice and hearing, may undertake to remedy such condition or violation complained of, and the cost thereof shall be charged to the owner as a special assessment. Such special assessment shall be subject to enforcement and collection by the Board in accordance with the procedures provided for in this declaration.
If the violation involves nonpayment of any type of assessment, then the Board shall be entitled to collect such delinquent assessment pursuant to the procedures set forth in article III.
(b) Violations identified by an owner. In the event that an owner alleges that another owner, his family, guests, or tenants, is violating the restrictions (other than nonpayment of any type of assessment), the owner must first submit the matter to the Board pursuant to the notice and hearing procedure established in the Bylaws before the complaining owner may resort to a court of law for relief with respect to the alleged violation.
(c) Legal proceedings. Failure to comply with any of the terms of the restrictions by an owner, his family, guests, employees, invitees or tenants, shall be grounds for relief which may include, without limitation, an action to recover sums due for damages, injunctive relief, foreclosure of any lien, or any combination thereof; provided, however, that the procedures established in sections 12.1(a) and (b) above must first be followed, if they are applicable.
(d) Limitation on expenditures. The association shall not incur litigation expenses, including, without limitation, attorneys’ fees, where the association initiates legal proceedings or is joined as a plaintiff in legal proceedings without the approval of a majority of the voting power of the association, excluding the voting power of any owner who would be defendant in such proceedings. Such approval shall not be necessary if the legal proceedings are initiated to (i) enforce the use restrictions contained in article VI hereof, (ii) enforce the architectural control provisions including architectural guidelines promulgated by the Board under section 6.3 of this declaration.
(e) Schedule of fines. The Board may adopt a schedule of reasonable fines or penalties which, in its reasonable discretion, it may assess against an owner for the failure of such owner, or of a resident of or visitor to such owner’s unit, to comply with any provisions of the restrictions. Such fines or penalties may only be assessed by the Board, against the unit of the violating owner, after notice and hearing.
(f) No waiver. Failure to enforce any provision hereof shall not constitute a waiver of the right to enforce that provision, or any other provision hereof.
(g) Right to enforce. The Board or any owner (not at the time in default hereunder) shall be entitled to enforce the restrictions as described in this article. Each remedy provided for in this declaration shall be cumulative and not exclusive or exhaustive.
(h) Attorneys’ fees. Any judgment rendered in any action or proceeding pursuant to this declaration shall include a sum for attorneys’ fees in such amount as the court may deem reasonable, in favor of the prevailing party, as well as the amount of any delinquent payment, interest thereon, costs of collection and costs of court.
The provisions hereof shall be deemed independent and severable, and a determination of invalidity or partial invalidity or unenforceability of any one provision or portion hereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provisions hereof.
The provisions of this declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the operation of a residential development and for the maintenance of common elements. The article and section headings have been inserted for convenience only, and shall not be considered or referred to in resolving questions of interpretation or construction. As used herein, the singular shall include the plural and the plural the singular; and the masculine, feminine and neuter shall each include the other, unless the context dictates otherwise.
12.4 Mergers or Consolidations
Upon a merger or consolidation of the association with another association, its properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law, be added to the properties, rights and obligations of the association as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer and enforce the covenants, conditions and restrictions established by this declaration governing the project, together with the covenants and restrictions established upon any other property, as one (1) plan. Any such merger or consolidation shall be accomplished pursuant to Nevada Revised Statutes Section 116.2121, as may be amended, and shall also require the prior written approval of theVA.
12.5 No Public Right or Dedication
Nothing contained in this declaration shall be deemed to be a gift or dedication of all or any part of the project to the public, or for any public use.
12.6 No Representations or Warranties
No representatives or warranties of any kind, express or implied, other than the standard warranty required by the VA and the FHA, have been given or made by declarant or its agents or employees in connection with the project or any portion thereof, or any improvement thereon, its physical condition, zoning, compliance with applicable laws, fitness for intended use, or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or regulation thereof, except as specifically and expressly set forth in this declaration and except as may be filed by declarant from time to time with any governmental authority.
12.7 Nonliability and Indemnification
(a) General Limitation. Except as specifically provided in the restrictions or as required by law, no right, power, or responsibility conferred on the Board by this declaration, the articles or the bylaws shall be construed as a duty, obligation or disability charged upon the Board, any member of the Board or any other officer, employee or agent of the association. Such persons are subject to the insulation from liability provided for directors of corporations by the laws of the State of Nevada. Members of the Board are not personally liable to the victims of crimes occurring on the project.
(b) Indemnification. When liability is sought to be imposed on a member of the Board for actions undertaken in such person’s role as a member of the Board, the association shall indemnify him for his losses or claims, and undertake all costs of defense, unless and until it is proven that he acted with willful or wanton misfeasance or with gross negligence. After such proof the association is no longer liable for the cost of defense, and may recover costs already expended from the member of the Board who so acted. Punitive damages may not be recovered against the association, but may be recovered from persons whose activity
gave rise to the damages. This section 12.7(b) shall be construed to authorize payments and indemnification to the fullest extent now or hereafter permitted by applicable law. The entitlement to indemnification hereunder shall inure to the benefit of the estate, executor, administrator, heirs, legatees, or devisees of any person entitled to such indemnification.
Except as otherwise provided in this declaration, notice to be given to an owner shall be in writing and may be delivered personally to the owner. Personal delivery of such notice to one (1) or more co-owners of a unit or to any general partner of a partnership owning a unit shall be deemed delivery to all co-owners or to the partnership, as the case may be. Personal delivery of such notice to any officer or agent for the service of process on a corporation shall be deemed delivery to the corporation. In lieu of the foregoing (and unless the provisions of Nevada law, including without limitation the provisions of Section 116.31162 of the Nevada Revised Statutes, as may be amended, require delivery by registered or certified mail), such notice may be delivered by regular United States mail, postage prepaid, addressed to the owner at the most recent address furnished by such owner to the association or, if no such address shall have been furnished, to the street address of such owner’s unit. Such notice shall be deemed delivered three (3) business days after the time of such mailing, except for notice of a meeting of members or of the Board in which case the notice provisions of the bylaws shall control. Any notice to be given to the association may be delivered personally to any member of the Board, or sent by United States mail, postage prepaid, addressed to the association at such address as shall be fixed from time to time and circulated to all owners.
12.9 Priorities and Inconsistencies
If there are conflicts or inconsistencies between this declaration and either the articles of incorporation or the bylaws of the association, the terms and provisions of this declaration shall prevail.
12.10 Constructive Notice and Acceptance
Every person who owns, occupies or acquires any right, title, estate or interest in or to any unit or other portion of the project does hereby consent and agree, and shall be conclusively deemed to have consented and agreed, to every limitation, restriction, easement, reservation, condition and covenant contained herein, whether or not any reference to these restrictions is contained in the instrument by which such person acquired an interest in the projects, or any portion thereof.
This Declaration is dated for identification purposes.
Braewood Heritage Association, Inc.
Its: President, Mark Smith Its: Vice-President, Bernard Williams
Its: Secretary, Kay Dwyer Its: Treasurer, Mel Tepper
Its: Board Member, Nancy Heltzel Its: Board Member, Jack Barnes
Its: Board Member, Bea Ratliffe Its: Board Member, William Voorheis
Its: Board Member, William Broussard