Loading...
HomeMy WebLinkAbout895036 REOEIVED £~'^0~ ~;~ ~ LINCOLN cOUNtY CLERK DECLARATION COVENANTS, CONDITIONS, A OF 5036 RESTRICTIONS FOR THE LOST ELK TOWNHOUSE III RECITALS A. The owner and developer, with their principal office located at 71 West 6'h Avenue, Afton, Lincoln County, State of Wyoming; referred to as owner, is the owner of real property described as follows: Lot numbered 623C of Lakeview Estates, Incorporated Tracts A-F,' A Subdivision within the Town of Alpine', within the NE¼sW¼ Section 29, T37N, R118W, Lincoln County, Wyoming. and described on the official plat of said subdivision, duly recorded in the office of the County Clerk and Ex-Officio Register of Deeds of Lincoln County, Wyoming, together with all improvements thereon, and easements, appurtenances and incidents belonging or appertaining thereto, or used in connection therewith; subject, however, to all mining, mineral and other exceptions, reservations, covenants, subsidence, conditions and rights of way of records. B. It is the desire and intention of the owner to build two townhouses on the above-desCribed real property and create a townhouse association. C. The following declaration is executed to effectuate the desire of owner to impose on the described real property mutual beneficial restrictions under a general plan or scheme of improvement for the benefit of each and all of the included units and of the common area of the future owners of those units and that common area. DECLA RATION Rigo Chaparr0 and Farren Haderlie and Derk Izatt the fee owners of the described real property, makes the following declaration as to divisions, covenants, restrictions, limitations, conditions, and uses to which the described real property and improvements, consisting of two townhouse-unit multifamily structures and appurte- nances, may be put, specifying 'that this declaration shall constitute covenants to run with the land and shall be binding on the owner, and successors, heirs and assigns, and all subsequent owners of all or any part of the real property and improvements, together with their grantees, successors, heirs, executors, administrators, devisees, or assigns. Bowers Law Office, P,C. ' 106 Hospital Lane P.O. Box 1550 Aflon, WY 83110 (307) 885-0640 Page 1 of 11 SECTION oNE DIVISION INTO SEPARATE FREEHOLD ESTATES To establish a plan of townhouse ownership for the described property and improvements, Rigo Chaparro and Farren Haderlie and Derk Izatt, as the fee owners, covenants and agrees that it will divide the real property into the following separate freehold estates: a. Two separately designated and legally described freehold estates consisting of the spaces or areas contained within the perimeter walls of each of the two townhouse units in the multifamily structure constructed on the property, the spaces being defined and referred to as townhouse spaces. b. A freehold estate consisting of the remaining podion of the real property, described and referred to as common areas and facilities, which includes the multifamily structure and the properly on which it is located, and specifically includes, but is not limited to, the land, roof, main walls, slabs, staircases, parking spaces, storage sPaces, community and commercial facilities, water tank, trees, pavement, balconies, pipes, wires, conduits, air conditioners and ducts, or other public utility lines. SECTION TWO FAMILY UNITS For the purpose of this declaration, the ownership of each townhouse space includes the respective undivided interest in the common areas and facilities specified and established in this document, and each townhouse space, together with the undivided interest, is defined and referred to as a family unit. Individual townhouse spaces established by this document, and which shall be individually conveyed, are described as follows: a. Lost Elk Townhouse III Unit A. b. Lost Elk TownhouSe III Unit B. SECTION THREE LIMITED COMMON AREAS AND FACILITIES The undivided interest in the limited common areas as shown on the Lost ~lk Townh°use III Addition Plat duly recorded in the office of the County Clerk and registered deeds of Lincoln County Wyoming established by this document, in which Shall be conveyed with each respective townhouse phase, is as follows: Bowers Law Office, P.C. 106 Hospital Lane P.O. Box 1550 Affon, WY 83110 (307) 885-0640 Page 2 of 11 a. Lost Elk Townhouse Ill, Unit A, as shown on the plat under LCA (A). b. Lost Elk Townhouse III, unit B as shown on the plat under LCA (B). The above respective undivided interests established and to be conveyed with the respective townhouse spaces cannot be changed, Rigo Chaparro and Farren Haderlie and Derk Izatt successors, heirs, assigns, and grantees, covenant and agree that the undivided, interest in the common areas and facilities and the fee titles to the respective townhouse spaces conveyed shall not be separated or separatel'y conveyed. Each such undivided interest shall be deemed to be conveyed or encumbered with its respective townh0use space, even though the description in the instrument of conveyance or encumbrance may refer only to the fee title to the townhouse space. Each townhouse will have exclusive use of those limited common areas as designated within this section. They shall maintain the exclusive control and use of those common areas designated in this section as they shall see fit. All maintenance, improvements and modifications to the limited common areas shall be the sole responsibility of the townhouse given exclusive use of the limited common area.. SECTION FOUR PROFITS AND EXPENSES; VOTING REPRESENTATION The proportionate shares of the separate owners of the respectiVe family units in the profits and common expenses in the common areas and facilities, as well as their proportionate representation for voting purposes in the association of owners, are based on the proportionate share of fifty percent (50%) of the two townhouses. The association shall have two classes of voting members as follows: b. Class A. Class A members shall be all owners of the townhouses with the exception of the owner, and shall be entitled to one vote for each townhouse owned. When more than one person owns an interest in any given townhouse, all such persons shall be members and the vote for such townhouse shall be exercised as they may determine between or among themselves. In no event shall more than one vote be cast with respect to any townhouse owned by a Class A member. c. Class B. -Ehe Class B member shall be the owner, who shall be entitled to exercise three votes for each townhouse owned.. The Class B membership shall cease and be converted to a Class A membership when the last townhouse is sold to another person or entity other than the owner and shall be governed by the Class A voting rights. Bowers Law Office, P.C. 106 Hospital Lane P. O. Box 1550 Afton, WY83110 ¢07) 885-0640 Page 3 of 11 899 SECTION FIVE ASSESSMENT LIENS All unpaid assessments for the share of the common expenses chargeable to any family unit shall constitute.a lien on such family unit prior to all other liens'except (1) tax liens on the family unit in favor of any assessing unit and special district, and (2) all sums unpaid on the first mortgage of record. Such lien may be foreclosed by suit by the manager or board of directors, acting for the owners of the family units, in like manner as a mortgagee of real property. In any such foreclosure, the family unit owner shall be required to pay a reasonable rental for the family unit, if so provided in the bylaws, and the plaintiff in such foreclosure action shall be entitled to the appointment of a receiver to collect the rent. The manager or board of directorS, acting for the owners of the family units, shall have the power, unless otherwise prohibited, to bid in the unit at the foreclosure sale and to acquire and hold, lease, mortgage, and convey the unit. Suit to recover a money judgment for unpaid common expenses shall be maintainable without foreclosing or waiving the lien securing the unpaid expenses. SECTION SIX LIABILITY OF MORTGAGEE Section 1. Mortgagee. The term "Mortgagee" shall mean the holder and owner of a mortgage and shall include a beneficiary under a deed of trust, as well as any insurer, re-insurer, or guarantOr of the mortgage, such as but not limited to FHA, VA, FNMA, or FHLMC. The term "eligible holder, insurer or guarantor" shall mean a mortgagee who has requested notice, in accordance with later provisions hereof. Section 2. Roster. The board of directors shall maintain a roster of townhouse owners, including their mailing addresses, and if the board has been given sufficient information by townhouse owners or their mOrtgagees, it shall maintain another roster which shall contain the name and address of each mortgagee of a townhouse. Section 3. Relief from Lien. A.mortgagee of any townhouse who comes into possession of'a townhouse pursuant to the remedies provided in the mortgage, foreclosure of mortgage, or deed (or assignment) in lieu of foreclosure, shall take the property free of any claims for unpaid assessment or charges against the mortgaged townhouse which occurred prior to the time such mortgagee comes into possession of the townhouse and the sale or transfer of a townhouse pursuant to a foreclosure of a first mortgage shall extinguish a subordinate lien for association assessments and charges which became, payable prior to such sale or transfer. Bowers Law Offi6e, P.C. 106 Hospital Lane P.O. Box 1550 Alton, WY 83110 (307) 885-0640 Page 4 of 11 Section 4. Insurance Coverage. .insurance requirements: 900 The following provisions shall apply regarding a. Policy Coverage-The board shall secure and maintain in effect a policy of fire and extended coverage insurance in an amount equal to the full replacement value (i.e., 100% of the current "replacement cost" exclusive of land, excavation, and other items normally excluded from coverage) of common area improvements situated in the development, including all buildings, service equipment, etc. b. Location of Policies - The association shall retain the original or conformed copies of all insurance policies specified herein in a place of safe keeping, such as a safe or safety deposit box, and shall provide copies of such policies to mortgagees requesting such copies. c. Mortgagee's Ability to Place Coverage - All first mortgagees of any townhouses may, jointly or singly, pay any overdue premiums on the aforesaid hazard insurance policies, or secure new hazard insurance coverage on the lapse of a policy, for such common area improvements, and such first mortgagees making such payment shall be owed immediate reimbursement therefor from the association. The board shall take appropriate action t° assure such immediate payment and shall provide all necessary parties with an original or certified copy of this provision as evidence of the obligation of the association to make such reimbursement. d. Priority Rights and Insurance Proceeds or Condemnation Awards - The Association agrees, and the board shall require, that all insurance policies shall provide that no townhouse owner or any other party shall have priority over the rights of the mortgagees in the case of distribution of insurance proceeds or condemnation awards for loss to or the taking of the common area or the association's improvements located thereon. Section 5. Management Requirements. a. Reserve Fund - The association agrees that the uniform regular assessments or charges assessed on the Owners shall be sufficient to provide an adequate reserve fund for the maintenance, repair, and replacement of those elements of the Common Area that mUst be replaced, maintained or repaired on a periodic basis. b. Other Contracts - The association and declarant agree that any agreement for professional management of the properties or any other contract providing for the services of the declarant, the developer, sponsor, or builder, may not exceed three (3) years. Any such agreement shall provide for termination by either Bowers Law Office, P.C. 106 Hospital Lane P.O. Box 1550 Alton, WY83110 (307) 885-0640 Page 5 of 11 901 party without cause and without payment of a termination fee upon ninety (90) days or less written notice. Section 6. Notices. The association agrees that a first mortgagor, upon request, is entitled to an shall receive a written notification form the association of any default in the performance by an individual townhouse owner/borrower of any obligation under the development's constituent documents, which is not cured within sixty (60) days. The association further warrants that a request for such notification is deemed to have been made and that all first mortgagors on townhouses known to the association will be provided with the aforestated notice. Section 7. Amendments. Notwithstanding anything herein contained to the contrary, the Declarant, by its own actions, shall have the right to amend this agreement during a two (2) year period commencing on the date of recording of the Declaration solely in order to comply with the rules or requirements of any governmental or quazi-governmental body or any institution holding or insuring or re- insuring a security interest in any portion of the said properties; provided that such amendment shall not modify, waive, or adversely affect any of the rights of mortgagees hereunder, and subject to the written consent of FHA/VA, FHLMC, or FNMA. Section 8. Enforcement. This agreement may be relied upon and enforced by FHA/VA, FHLMC, or FNMA and any lending institution or mortgagor financing any townhouse in the aforesaid development or insuring or purchasing any mortgage of such townhouse. SECTION SEVEN LIABILITY OF GRANTEE In a voluntary conveyance of.a family unit, the grantee of the unit shall be jointly and severally liable with the grantor for all unpaid assessments by the association against the latter for a .share of the common expenses, up to the time of the grant or conveyance, without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantee. However, any such grantee shall be entitled to a statement from the manager or board of directors of the association, as the case may be, setting forth the amount of the unpaid assessments against the grantor due the association; and such grantee shall not be liable for, nor shall the family unit conveyed be subject to a lien for, any unpaid assessments made by the association against the grantor in excess of the amount set forth in the statement. Bowers Law Office, P.C. 106 Hospital Lane P.O. Box 1550 Affon, WY 83110 (307) 885-0640 Page 6 of 11 SECTION EIGHT ACTIONS OF ASSOCIATION; BINDING EFFECT All agreements and determinations lawfully made by the association in ac- cordance with the voting percentages established in these covenants, conditions and restrictions, or in the bylaws, shall be deemed to be binding on all owners of family units, their successors and assigns. SECTION NINE EFFECT OF DAMAGE OR DESTRUCTION If the property subject to this enabling declaration is totally or substantially damaged or destroyed, the repair, reconstruction, or disposition of the property shall be agreed on by all townhouse owners. SECTION TEN COVENANT OF DECLARANT So long as the declarant owns one or more of the family units established and described in this document, and the owner covenants to take no 'action that Would adversely affect the rights of the association with respect to assurances against latent defects in the property or other right assigned to the association by reason of the establishment of this .townhouse association. SECTION ELEVEN COVENANTS OF OWNERS AND ASSOCIATION MEMBERS The owner, members and their successors, heirs, and assigns, by this declara- tion, and all future owners of the family units, by their acceptance of their deeds or other identifying documents, agree as follows: a. The common areas'and facilities shall remain undivided; no owner shall bring any action for partition, it being agreed that this restriction is necessary to preserve the rights of the owners in the operation and management of the townhouse. b. Each townhouse space shall be occupied and used only as a private dwelling for the owner, the owner's family, tenants, and social guests, and for no other purpose. Bowers Law Office, P.C. 106 Hospital Lane P. O. Box 1550 Afton, WY83110 (307) 885-0640 Page 7 of 11 903 c. The owner of each townhouse space shall not be deemed to own the undecorated and/or unfinished surfaces of the perimeter walls, floors, and ceilings surrounding the townhouse space, nor shall such owner be deemed to own pipes, wires, conduits, or other public utility lines running through the townhouse spaces and utilized for or serving more than one townhouse space, except as tenants in common with other family unit owners as provided in this document. Such owner, however, shall be deemed to own the walls and partitions that are contained within the t°wnhouse space, and also shall'be deemed to own the inner decorated and/or finished surfaces of the perimeter walls, floors, and ceilings, including plaster, paint, wallpaper, and the like. d. If any portion of the common areas and facilities encroaches on the townhouse spaces, a valid easement exists for the encroachment and its maintenance, so long as it stands. If the muttifamily structure is partially or totally destroyed and then rebuilt, the owners of the townhouse spaces agree that minor encroachment of parts of the common areas and facilities due to the construction shall be permitted and that a valid easement for the encroachment and its maintenance exiSts. e. An owner of a family unit shall automatically, on becoming the owner of a family unit or units, be a member of the Lost Elk Townhouse III Association, referred to as the association, and shall remain a member of the association until ownership ceases for any reason, at which time the membership in the association shall automatically cease. f. The administration of the townhouse shall accord with the provisions of the declaration and the bylaws of the association, which are made a part of this document and attached as Exhibit A. g. Each owner, tenant, or occupant of a family unit shall comply with the Provisions of this declaration, the bylaws, decisions, and resolutions of the association or its representative, as lawfully amended from time to time; and failure to comply with any such provisions, decisions, or resolutions shall be grounds for an action to recover sums due, for damages, or for injunctive relief. h. This declaration shall not be revoked or any of the provisions amended unless all of the owners and the mortgagees of all of the mortgages covering the family units unanimously agree to such revocation or amendment by recorded instruments. Bowers Law Office, P.C. 106 Hospilal Lane P.O. Box 1550 Alton, WY 83110 (307) 885-0640 Page 8 of 11 904 i. No owner of a family unit may exempt such owner from liability for contri- bution to the common expenseS by waiver of the use or enjoyment of any of the common areas and facilities or by the abandonment of the family unit. SECTION TWELVE USE OF FAMILY UNIT The respective family units sl~all not be rented by the owners for transient or hotel purposes, which shall be defined as (a) rental for a period less than 30 days. Other than the foregoing obligations, the owners of the respective family units shall have the absolute right to lease the units, provided that the lease is made subject to the covenants and restrictions contained in this declaration and fudher subject to the bylaws attached. Townhouses shall be used only for single family residential purposes by an owner or his lessees. The term "family" shall mean one or more persons related by blood, adoption, or marriage living together as a single housekeeping unit. Two unrelated adults (and any number of children of either of them) shall also be deemed a family for the purposes of these covenants. SECTION THIRTEEN ARCHITECTURAL DESIGN AND MODIFICATION No building, fence, wall, or other structure shall be commenced, erected or maintained upon the Properties, nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to an approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the board of directors of the association or by an architectural committee composed of three (3) or more representatives appointed by the board. In'the event said board, or its designated committee, fails to approve or disapprove such deSign and location within thirty (30) days after said plans and specifications have been submitted to it, approval will not be required and this section will be deemed to have been fully complied with. SECTION FOURTEEN PARTY WALLS Section 1. General Rules of Law to Apply. Each wall which is built as a part of the original construc, tion of the homes upon the properties and placed on the line between the townhouses shall constitute a party wall, and, to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls and Bowers Law Office, P.C. 106 Hospital Lane P.O. Box 1550 Alton, WY83110 (307) 885-0640 Page 9 of 11 9O5 liability for property damage due to negligence or willful acts or omissions shall apply thereto. Section 2. Sharin.q of Repair and Maintenance. The cost of reasonable repair and maintenance of a party wall shall be shared by the owners who make use of the all in proportion to such.dse. Section 3. DestructiOn by Fire or Other Casualty. If a party wall is destroyed or damaged by fire or other casualty, any owner who has used the wall may restore it, and if the other owners thereafter make use of the wall, they shall contribute to the cost of restoration thereto in proportion to such use without prejudice, however, to the right of any such owners to call for a larger contribution from the others under any law regarding liability for negligent or willful acts or omissions. Section 4. WeatherproOfing. Notwithstanding any other provisions of this section, an owner who, by his negligent or willful act causes the party wall to be exposed to the elements, shall bear the whole cost of furnishing the. necessary protection against such elements. Section 5. Right to Contribution Runs with Land. The right of any Owner to contribution from any other owner under this section shall be appurtenant to the land and shall pass to such owners successors in title. Section 6. Arbitration. In the event of anY dispute arising concerning a party wall, or under the provisions of this section, each party shall choose one arbitrator and these two shall choose a third, and the decision shall be by a majority of all of the arbitrators. IN wITNEsS WHEREOF the underS~.ned, being the Declarant herein, has caused this instrument to be executed this ~ day~003. DERK IZATT Bowers Law Office, p.C. 106 Hospital Lane P.O. Box 1550 Alton, WY 83110 (307) 885-0640 Page l O of 11 STATE OF WYOMING ) ) ss. COUNTY OF LINCOLN ) The foregoing instrument ~vas acknowledged before CHAPARRO thisL-J'~ day of~~)"03. WITNESS my hand and official seal. Ion Explre~ me by RIGO ..~TARY PUBLIC STATE OF WYOMING ) ) SS. .COUNTY OF LINCOLN ) The foregoing instrument was acknowledged before me by FARREN HADERLIE this :~)S'rday of October, 2003. r~~ my hand and official seal. - ~~- STATE OF WYOMING ) ) SS. COUNTY OF LINCOLN ) The foregoing instrument was acknowledged this ,~!~ day of October, 2003. WITNESS my hand and official seal. dam~e DeCora - NO'~A~ ! .C~r~nc~ PUBLIC before me by DERK IZATT ,~RY PUBLIC Bowers Law Office, P.C. 106 Hospital Lane P.O. Box 1550 Afton, WY83110 (307) 885-0640 Page l l of 11