Westview Homeowners Association, Inc.
of Covenants, Conditions and Restrictions
As of May 2014
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
WESTVIEW HOMEOWNERS ASSOCIATION, INC
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
THIS DECLARATION, made on the date hereinafter set forth by MID-ATLANTIC COMPANIES, INC., a Maryland corporation, hereinafter referred to as "Declarant".
WHEREAS, Declarant is the owner of certain Property in the County of Prince George's, State of Maryland, which is more particularly described on the legal description attached hereto and made part hereof as Exhibit
NOW, THEREFORE, Declarant hereby declares that all of the Property described on "A" hereto shall be held, sold and conveyed subject to the following easements, restrictions, covenants, and conditions, which are for the purpose of protecting the value and desirability of, and which shall run with the real property and be binding on all parties having any right, title or interest in the Property described on Exhibit "A" hereto, or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each Owner thereof.
Section 1.01. "Association" shall mean and refer to Westview Homeowners Association, Inc., a nonstock, nonprofit corporation, its successors and assigns.
Section 1.02. "Common Area" shall mean all real property owned, leased or maintained by the Association (including the improvements thereto) or otherwise available for the common use and enjoyment of the Owners.
Section 1.03. "Common Expenses" shall mean and refer to the actual and estimated expenses of operating the Association, including a reasonable reserve, all as may be found to be necessary or appropriate by the Board of Directors pursuant to this Declaration, the Bylaws and the Articles of Incorporation of the Association.
Section 1.04. "Community-Wide Standard" shall mean the standard of conduct, maintenance or other activity generally prevailing in the Project. Such standard may be more specifically determined and set forth by the Covenant Committee (as such term is defined in Article 6.01).
Section 1.05. "Declarant" shall mean and refer to Mid-Atlantic Companies, Inc., a Maryland corporation, its successors and assigns if such successors or assigns should acquire more than one undeveloped Lot from the Declarant for the purpose of development, but only to the extent that any of the rights, reservations, easements, interests, exemptions, privileges and powers of the Declarant are specifically assigned or transferred to such successors or assigns by an instrument in writing.
Section 1.06. "Development Plan" shall mean the Site Development Plan for Westview dated December, 1989 by Greenhorne & O'Mara, Inc. including all amendments thereto as may be made from time to time.
Section 1.07. "Eligible Mortgage Holder" shall mean a holder of a first mortgage on a Lot who has requested notice from the Association of amendments to the Association documents or other significant matters which would affect the interests of the mortgagee.
Section 1.08. "Lot" shall mean and refer to any plot of land shown upon any recorded subdivision map of the Property upon which it is intended that a dwelling unit be constructed. The term Lot shall not include Common Areas or outlots of property dedicated for public use.
Section 1.09. "Member" shall mean and refer to every person, group of persons, corporation, trust, or other legal entity, or any combination thereof, who holds any class of membership in the Association.
Section 1.10. "Mortgagee" shall mean the holder of any recorded mortgage, or the party secured or beneficiary of any recorded deed of trust, encumbering one or more of the Lots. "Mortgage", as used herein, shall include deed of trust. "First Mortgage", as used herein, shall mean a mortgage with priority over other mortgages. As used in this Declaration, the term "mortgagee" shall mean any mortgagee and shall not be limited to institutional mortgagees. As used in this Declaration, the term "institutional mortgagee" or "institutional holder" shall include banks, trust companies, insurance companies, mortgage insurance companies, savings and loan associations, trusts, mutual savings banks, credit unions, pension funds, mortgage companies, Federal National Mortgage Association ("FNMA"), Federal Home Loan Mortgage Corporation ("FHLMC"), all corporations and any agency or department of the United States Government or of any state or municipal government, or any other organization or entity which has a security interest in any Lot.
In the event any mortgage is insured by the Federal Housing Administration ("FHA") or guaranteed by the Veterans Administration ("VA"), then as to such mortgage the expressions "mortgagee" and "institutional mortgagee" include the FHA or the VA as the circumstances may require, acting, respectively, through the Federal Housing Commission and the Commissioner of Veterans Benefits or through other duly authorized agents.
Section 1.11. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of a fee simple title to any Lot which is a part of the Property, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation.
Section 1.12. "Participating Builder" shall mean and refer to any grantee of a Lot from the Declarant who acquires such Lot in the ordinary course of its business for the purpose of constructing a dwelling unit thereon.
Section 1.13. "Project" and the "Community" as used in this Declaration means that certain community being developed by the Declarant (or affiliates, successors and assigns of the Declarant) in the City of Bowie, Prince George's County, Maryland, known as "Westview".
Section 1.14. "Property" shall mean and refer to that certain real property described on Exhibit "A" hereto, and such additions thereto as may hereafter be brought within the jurisdiction of the Association pursuant to Article II of this Declaration.
Section 2.01. Initial Property Subject to the Declaration. The real property which is, and shall be held, conveyed, hypothecated or encumbered, sold, leased, rented, used, occupied and improved subject to this Declaration is located in Prince George's County, State of Maryland, and is more particularly described on Exhibit "A" attached hereto and by this reference made a part hereof.
Section 2.02. Additions. Additional property, which is part of the property described or shown on the Development Plan or any property adjacent or contiguous thereto, may be annexed to the above-described property by the Declarant without the consent of the Class A members of the Association, if any, for a period of seven (7) years from the recordation of this Declaration. The scheme of the within Covenants and Restrictions shall not, however, be extended to include any such additional property unless and until the same is annexed to the real property described on Exhibit "A" as hereinafter provided. Except as otherwise provided hereinabove, annexations to the Property shall require the consent of two-thirds (2/3) of the Class A members.
Any annexations made pursuant to this Article, or otherwise, shall be made by recording a
Supplementary Declaration of Covenants, Conditions and Restrictions among the Land Records of Prince George's
County, Maryland, which Supplementary Declaration shall extend the scheme of the within Declaration of
Covenants, Conditions and Restrictions to such annexed property.
Any Supplementary Declaration of Covenants, Conditions and Restrictions made pursuant to the provisions of this Article may contain such complementary or supplemental additions and modifications to the covenants and restrictions set forth in the within Declaration as may be considered necessary by the maker of such Supplementary Declaration of Covenants, Conditions and Restrictions to reflect the different character or use, if any, of the annexed property.
Every Owner of a Lot in property to be annexed as provided herein shall have an easement of enjoyment in and to the Common Area, and such other rights of use as provided in Section 3.01 herein.
Section 3.01. Owner's Easements of Enjoyment. Every Owner shall have a right and easement of enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions:
(a) the right of the Association to charge reasonable and uniform admission and other fees for the use of any recreational facility constructed by the Association upon the Common Area;
(b) the right of the Association to suspend the voting rights and right to use of any Common Areas by an Owner for any period during which any assessment against his/her Lot remains unpaid; and, after notice and an opportunity for a hearing, for a period not to exceed sixty (60) days for any infraction of its published rules and regulations; provided, however, that the obligation for such Owner to pay assessments shall continue unabated during such period of suspension of voting rights or right to utilize the Common Areas;
(c) the right of the Association to dedicate or transfer all or any part of the Common Area to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the members. No such dedication or transfer shall be effective unless an instrument signed by two-thirds (2/3) of each class of members and fifty-one percent (51%) of the Eligible Mortgage Holders agreeing to. such dedication or transfer has been recorded, and unless the Maryland-National Capital Park and Planning Commission, or its successor or assigns, has given its prior written approval thereof, which approval shall not be unreasonably withheld or delayed;
(d) the right of the Association to limit the number of guests of Owners utilizing the Common Areas;
(e) the right of the Association to establish uniform rules and regulations pertaining to the use of the Common Area and any facilities thereon;
(f) the right of the Association, the Declarant, utility companies and other owners with respect to the easements established by this Declaration and any public utility easements and public improvements easements benefiting and/or burdening the Property;
(g) the right of the Association, in accordance with its Articles of Incorporation and Bylaws, and with the consent of a majority of each class of the then members of the Association, voting separately, to borrow money for the purpose of improving the Common Area and any facilities thereon in a manner designed to promote the enjoyment and welfare of the members and in aid thereof to mortgage any of the Common Area and any facilities thereon;
(h) the right of the Association to take such steps as are reasonably necessary to protect the property of the Association against mortgage default and foreclosures; provided, however, that the same are in conformity with the other provisions of this Declaration; and
(i) the right of the Association, acting by and through its Board of Directors, to grant easements, licenses or other rights of use to persons or entities who are not members of the Association on and through the Common Area for such consideration and on such terms and conditions as the Board of Directors may from time to time consider appropriate.
Section 3.02. Limitations. Any other provision of this Declaration to the contrary notwithstanding, the Association shall have no right to suspend the right of any member of the Association to use the Common Area for necessary, ordinary and reasonable ingress and egress to and from his/her Lot or to suspend any easement over the Common Area for storm water drainage, electrical energy, water, sanitary sewer, natural gas, CATV or similar service, telephone service or similar utilities and services to the Lots.
Section 3.03. Delegation of Use. Any Owner may delegate, in accordance with the Bylaws and rules of the Association, his/her right of enjoyment to the Common Area and any facilities situated thereon to the members of his/her family, his/her tenants, social invitees, or contract purchasers who reside on the Property.
Section 4.01. Membership. Every Owner of a Lot shall be a member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment.
Section 4 02 Voting Rights. The Association shall have two (2) classes of voting membership;
Class A. With the exception of the Declarant, every person, corporation, partnership, trust or other legal entity, or any combination thereof, who is an Owner of any Lot which is part of the premises described in Article II of this Declaration, or which otherwise becomes subject to the covenants set forth in this Declaration shall be a Class A member of the Association; provided, however, that any such person, group of persons, corporation, partnership, trust or other legal entity who holds such interest solely as security for the performance of an obligation shall not be a Class A member solely on account of such interest. When more than one (1) person holds an interest in any Lot, all such persons shall be members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one (1) vote be cast with respect to any Lot.
Any Owner who leases his/her Lot may, in the lease or other written instrument, assign the voting right appurtenant to that Lot to the lessee, provided that a copy of such instrument is furnished to the Association.
Class B. There shall initially be four hundred seventeen (417) Class B memberships in the Association. This number shall be increased by three (3) memberships for each Lot which is annexed in accordance with Section 2.02 of this Declaration in excess of one hundred thirty-nine (139) Lots, and shall be decreased by three (3) memberships for each Class A membership existing at any one time. The Class B member shall be the Declarant, its nominee or nominees, and shall include every person, group of persons, corporation, partnership, trust or other legal entity, or any combination thereof, who shall obtain any Class B membership by specific assignment from the Declarant.
The Class B member shall be entitled to one (1) vote for each Class B membership. Each Class B membership shall lapse and become a nullity on the first to happen of the following events:
(i) thirty (30) days following the date on which the total authorized and outstanding votes of the Class A members equals one hundred four (104); or
(ii) seven (7) years from the date of recordation of this Declaration; provided, however, that if the Declarant is delayed in the improvement and development of the Property on account of a sewer, water or building permit moratorium or any other cause or event beyond the Declarant's control, then the aforesaid seven (7)-year period shall be extended by a period of time equal to the length of the delays or an additional five (5) years, whichever is less; or
(iii) upon the surrender of said Class B memberships by the then holders thereof for cancellation on the books of the Association.
Upon the lapse or surrender of the Class B memberships as provided for in this Article, the Declarant shall thereafter become a Class A member of the Association as to each and every Lot in which the Declarant then holds the interest otherwise required for such Class A membership.
Section 5.01. Creation of the Lien and Personal Obligation of Assessments. There are hereby created assessments for Common Expenses as may be from time to time specifically authorized by the Board of Directors to be commenced at the time and in the manner set forth in this Article V. Each Owner of any Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (1) annual assessments or charges, and (2) special assessments for capital improvements. The annual and special assessments, together with interest, costs, and reasonable attorneys' fees, shall be a charge on the Lot (including all improvements thereon), and shall be a continuing lien upon the property against which each such assessment is made, provided the requirements of the Maryland Contract Lien Act have been fulfilled. 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 Lot at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to his/her successors in title unless expressly assumed by such successors.
(a) The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety, and welfare of the residents in the Property and for the improvement and maintenance of the Common Area, the payment of real estate taxes, assessments and utility services for the Common Area, management fees, administration expenses, insurance (including, but not limited to, any deductible the Association may be responsible for; provided, however, the Association may assess any deductible amount necessitated by the misuse or neglect of an Owner, or such Owner's tenant or such Owner's (or tenant's) household guests, employees, customers, agents or invitees against such Owner) and all other costs and expenses incurred by the Association in the proper conduct of its activities, including, without limitation, reserves for replacements or contingencies, charges accruing under any cross-easement or reciprocal easement agreements, lease agreements, charges or expenses accruing with respect to off-site facilities required to be maintained by the Association by any governmental agency (including, without limitation, the Maryland-National Capital Park and Planning Commission) or which the Association elects to maintain whether such facilities are located within the Property or not, which areas may include, without limitation, entrance ways and/or features, public rights-of-way, off-site hiker/biker paths, and buffer strips.
(b) The assessments levied by the Association shall also be used for maintaining and providing reserves for any and all storm water management facilities, including, without limitation, ponds, storm drainage pipes, inlets, oil grit separator inlets, drainage areas and underground facilities, (if any), whether such storm water management facilities are located within the Property or not, as long as such storm water management facilities are designed to benefit or serve any portion of the Property and are required to be maintained by the Association. Such storm water management facilities may also benefit Property not within the jurisdiction of the Association yet be maintained by the Association or the maintenance of such facilities may be set forth in a cross-easement or other agreement in which event the Association may maintain the facilities pursuant to such agreement. Storm water management facilities serving the Property but dedicated to the public or owned by the County or the City of Bowie shall not be maintained by the Association unless otherwise instructed by such governmental authority.
Section 5.03. Initial Annual Assessment. The initial annual assessment for any Lot shall be as determined by the initial Board of Directors to be appointed by the Declarant, (such initial annual assessment shall not be subject to the budget requirements set forth in this Section 5.03) provided, however, that there shall not at any time be any annual assessment (including any amounts assessed for reserves and special assessments) for Lots owned by Declarant. A Participating Builder shall pay general and special assessments for Lots which such Participating Builder owns at the same rate as the other Class A Members, unless such Participating Builder is assigned the rights of the Declarant under this Article pursuant to the procedure specified in this Declaration. Notwithstanding the foregoing, the Declarant shall pay the full annual and special assessments (including the amounts budgeted to be assessed against each Lot for reserves) for Lots owned by the Declarant upon which a dwelling unit has been completed and is occupied by a party other than the Declarant (including model dwelling units). Notwithstanding any provision contained in this Declaration to the contrary, the Declarant hereby covenants and agrees for the benefit of each Class A member to pay any and all operating expenses incurred by the Association during the Deficit Period (as such term is hereinafter defined) in furtherance of its purposes to the extent that the annual and special assessments levied during the Deficit Period are insufficient to pay such expenses; provided, however, that the Declarant shall not pay any deficit related to reserves of the Association and at such time as the Declarant has paid what would equal one hundred percent (100%) of the assessments for its Lots (excluding any portion of such assessments budgeted or intended for reserves), had it not been exempted from the payment of assessments, then the Declarant shall only be obligated to pay any further assessments during that annual period in an amount equal to what would be due for such Lots had they been owned by a Class A member (excluding any portion of such assessments budgeted or intended for reserves). As used herein, the term "Deficit Period" shall mean that period of time commencing on the date of recordation of this Declaration and ending on the earlier of (i) the date on which the Class B membership lapses and becomes a nullity in accordance with the provisions of this Declaration; or (ii) the date upon which the Declarant, in writing and recorded among the Land Records of Prince George's County, Maryland, declares that it (from the date specified in such recorded writing) waives its right to not pay any assessments on Lots owned by the Declarant in accordance with this Section 5.03. The Declarant may make such Declaration with respect to less than all of the Lots owned, to be owned or to be brought within the jurisdiction of the Association in which event the Deficit Period shall terminate only with respect to those Lots specifically described.
Subsequent to the initial annual assessment, it shall be the duty of the Board of Directors, at least forty-five (45) days before the beginning of the fiscal year and thirty (30) days prior to the meeting at which the budget shall be presented to the membership, to prepare a budget covering the estimated costs of operating the Association during the coming year. The budget shall include an amount sufficient to establish and maintain a reserve fund in accordance with a reserve fund budget separately prepared by the Board of Directors pursuant to Section 5.10. The Board of Directors shall cause a copy of the budget, and the amount of the assessments to be levied against each Lot for the following year, to be delivered to each Owner at least thirty (30) days prior to the meeting. The budget and the assessments shall become effective unless disapproved at the meeting by a vote of at least a majority of both classes of the total Association membership. Any budget adopted by the Board of Directors may be amended or modified in order to meet the expenses of the Association provided that each Owner be given notice of such proposed amendment or modification at least thirty (30) days prior to the Board of Director's meeting at which the Board will vote on the modified or amended budget. The modified or amended budget shall become effective if approved by the Board of Directors unless disapproved at the meeting by a vote of at least a majority of both classes of the total Association membership.
Notwithstanding the foregoing, however, in the event the membership disapproves the proposed budget or any amended budget or the Board of Directors fails for any reason to determine the budget for the succeeding year or approve the amended budget, then and until such time as a budget shall have been determined as provided herein, the budget in effect for the then current year shall continue for the succeeding year.
The Declarant may establish a working capital fund for the initial operation of the Association. Such working capital fund may be funded by a one-time assessment of two (2) times the monthly assessment for a Lot and shall be payable, if established, by the Declarant's grantee upon the earlier of settlement or occupancy of a completed dwelling located on any Lot.
Section 5.04. Special Assessments. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment or special assessments applicable to that year for such purposes as the Board of Directors may deem appropriate, to meet the common expenses of the Association. The Association may also levy a special assessment against any Owner to reimburse the Association for costs incurred in bringing any Owner and his/her Lot into compliance with the provisions of the Declaration, any Supplementary Declaration, the Articles of Incorporation, the Bylaws and the Rules of the Association. Such a special assessment may be levied upon the vote of the Board of Directors after notice to the Owner and an opportunity for a hearing before the Board of Directors.
(a) The Board of Directors may, from time to time, establish by resolution non-uniform rates of assessments for Lots within the Property. Such rates shall be based on actual costs incurred by the Association relating to the operation and maintenance of the Property and the varying amount of benefit received by different Lots from services provided by the Association. For purposes of illustration, the Board of Directors may establish variable rates of assessments for the Lots containing different types of dwelling Units in order to reflect the estimated benefit the Owner of each type of dwelling unit receives from services provided by the Association. The imposition of non-uniform rates of assessment shall rest solely at the discretion of the Board of Directors.
(b) The Board of Directors may also include in the assessment against any Lot and the Owner thereof any costs or Common Expenses incurred by the Association directly caused or related to any activity(ies) of such Owner (or his/her lessee(s), guest(s) or invitee(s)). An Owner shall have ten (10) days from receipt of written notice of any assessment based upon the terms of this Section 5.05(b) to request, in writing, a hearing before the Board of Directors or a committee appointed by such Board to challenge such assessment. The Board of Directors shall have ten (10) days from receipt of such written request to advise the Owner of a hearing date. The Association and the Owner may be represented by counsel at such hearing and evidence (including, but not limited to, witnesses) may be presented. The decision of the Board of Directors or the committee shall be final. Any assessments levied pursuant to the terms of this Section 5.05(b) shall be collectible in the same manner as any other assessment under the terms of this Declaration. Notwithstanding anything herein to the contrary, the Declarant shall not be liable for any assessments against Lots owned by the Declarant or deficits of the Association based on this Section 5.05(b).
Section 5.06. Date of Commencement of Annual Assessments: Due Dates. The annual assessments provided for herein shall commence as to all Lots within the Property on the first day of the month following the conveyance of the initial Lot. The first annual assessment shall be adjusted according to the number of months remaining in the calendar year. Subsequent to the first year, the Board of Directors shall fix the amount of the annual assessment against each Lot at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessment shall be sent to every Owner subject thereto. The due dates shall be established by the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer for the Association setting forth whether the assessments on a specified Lot have been paid. A properly executed certificate of the Association with the status of assessments on the Lots shall be binding on the Association as of the date of its issuance.
Section 5.07. Effect of Non-Payment of Assessments: Remedies of the Association. Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date until paid at a rate determined by the Board of Directors, up to the maximum rate of interest permitted under the laws of the State of Maryland. The Association may also charge a reasonable late fee against any Owner (and/or such Owner's Lot) who is more than ten (10) days delinquent in the payment of any assessment. Additionally, the Board of Directors may accelerate the installment of assessments such that the entire balance of the unpaid annual assessments for the remainder of the fiscal year shall also become due, payable and collectible in the same manner as the delinquent portion of such annual assessment. The Association may bring an action at law against the Owner personally obligated to pay the same, and/or establish and foreclose the lien against the Lot (and all improvements thereon) provided the provisions of the Maryland Contract Lien Act are substantially fulfilled. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his/her Lot. The Owner shall also be obligated to pay all attorneys' fees, late fees and court costs incurred in connection with the collection of assessments if not paid when due.
Section 5.08. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage or deed of trust. The sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to mortgage or deed of trust foreclosure or any proceeding in lieu thereof, shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof. No amendment to this Section shall affect the rights of the holder of any first mortgage on any Lot (or the indebtedness secured thereby); recorded prior to recordation of such amendment unless the holder thereof (or the indebtedness secured thereby) shall join in the execution of such amendment.
Section 5.09. Additional Default. Any recorded first mortgage secured on a Lot shall provide that any default by the mortgagor in the payment of any assessment levied pursuant to this Declaration, or any installment thereof, shall likewise be a default in such mortgage (or the indebtedness secured thereby); but failure to include such a provision in any such mortgage shall not affect the validity or priority thereof and the protection extended to the holder of such mortgage (or the indebtedness secured thereby) by reason of Section 5.10 shall not be altered, modified or diminished by reason of such failure.
Section 5.10. Reserve Fund Budget and Contribution. The Board of Directors shall annually prepare a reserve fund budget which shall take into account the number and nature of the replaceable assets of the Association, the expected life of each asset, and the expected repair or replacement cost of each asset. Such assets shall include, but not be limited to, storm water drainage facilities situated within the Common Area (e.g., storm drainage pipes, inlets and oil grit separator inlets) any equipment, machinery or apparatus appurtenant or related thereto. The Board of Directors shall set the required reserve fund contribution, in an amount sufficient to meet the projected reserve needs of the Association, as shown on the reserve fund budget, with respect both to amount and timing by the imposition of annual assessments over the period of the budget. The reserve fund contribution shall be fixed by the Board of Directors and included within the budget and assessment, as provided in Section 5.03. Such reserve fund contribution shall be payable as part of the general assessment, applicable to all Lots (except as otherwise provided with respect to Lots owned by the Declarant in Section 5.03), to the extent such reserve fund wilt be utilized to replace assets which are determined by the Board of Directors to benefit substantially all Owners. A copy of the reserve fund budget shall be distributed to each Owner in the same manner as the operating budget.
Section 5.11. Lots Added During the Fiscal Year. Notwithstanding any other provision of this Article, whenever any property is added to the Property pursuant to Article II hereof, the assessment against each Lot being added (other than unoccupied Lots which are owned by the Declarant and exempt from assessment in accordance with Section 5.03 hereof) shall be calculated in the same manner and due in the same number of installments as the assessment for the remainder of the fiscal year against Lots already a part of the Property. In addition, the Owner of the Lot being added shall pay a prorated portion of any amount payable for the period between the later of (i) the date the Lot was conveyed to an Owner other than the Declarant or the date the Lot becomes subject to assessment pursuant to the terms hereof or (ii) the date such Lot was added to the Property and the due date of the next installment. Such probation of the assessment due for any Lot shall be based upon the total assessment due and a 365-day fiscal year. Payment of the prorated portion will be due no later than the due date of the first installment to be paid by the Owner of any Lot added.
Section 6.01. Architectural Change Approval. No building, fence, wall, mailbox or other structure shall be commenced, erected or maintained upon the Property, nor shall any exterior addition to or change or alteration therein be made (including, but not limited to, changes in color, changes or additions to driveway or walkway surfaces and landscaping modifications) until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved In writing as to harmony of external design and location in relation to surrounding structures and topography and conformity with the design concept for the Property by the Board of Directors of the Association, or by a covenant committee composed of three (3) or more representatives appointed by the Board of Directors of the Association ("Covenant Committee"). In the event said Board, or its designated committee, fails to approve or disapprove such design and location within sixty (60) days after said plans and specifications have been submitted to it, approval will not be required and this Article will be deemed to have been fully complied with. Design approval by the Covenant Committee or by the Board shall in no way be construed as to pass judgment on the correctness of the location, structural design, suitability of water flow or drainage, location of utilities, or other qualities of the item being reviewed. The Board or the Covenant Committee shall have the right to charge a reasonable fee for reviewing each application in an amount not to exceed Fifty Dollars ($50.00). Any exterior addition to or change or alteration made without application having first been made and approval obtained as provided above shall be deemed to be in violation of this covenant and the addition, change or alteration may be required to be restored to the original condition at the Owner's cost and expense. In any event, no such exterior addition to or change or alteration shall be made without approvals and permits therefor having first been obtained by the Owner from the applicable public authorities or agencies. Notwithstanding any provision of this Declaration to the contrary, the provisions of this Article VI shall not be applicable to (i) the Declarant or any part of the Property owned by the Declarant, or (ii) any Participating Builder, provided however that the Declarant reserves the right to exercise any approval rights otherwise granted to the Declarant by the Participating Builder.
Section 6.02. Initiation and Completion of Approved Changes. Construction or alterations in accordance with plans and specifications approved by the Covenant Committee pursuant to the provisions of this Article shall be commenced within six (6) months following the date upon which the same are approved by the Covenant Committee (whether by affirmative action or by forbearance from action as provided in Section 6.01), and shall be substantially completed within twelve (12) months following the date of commencement, or within such longer period as the Covenant Committee shall specify in its approval. In the event construction is not commenced within the period aforesaid, then approval of the plans and specifications by the Covenant Committee shall be conclusively deemed to have lapsed and compliance with the provisions of this Article shall again be required. There shall be no deviations from plans and specifications approved by the Covenant Committee without any prior consent in writing of the Covenant Committee. Approval of any particular ~ and specifications or design shall not be construed as a waiver of the right of the Covenant Committee to disapprove such plans and specifications, or any elements or features thereof, in the event such plans and specifications are subsequently submitted for use in any other instance.
Section 6.03. Certificate of Compliance. Upon completion of any construction or alterations or other improvements or structures in accordance with plans and specifications approved by the Covenant Committee in accordance with the provisions of this Article, the Covenant Committee shall, at the request of the Owner thereof, issue a certificate of compliance which shall be prima facie evidence that such construction, alteration or other improvements referenced in such certificate have been approved by the Covenant Committee and construction or installation in full compliance with the provisions of this Article and with such other provisions and requirements of this Declaration as may be applicable.
Section 6.04. Covenant Committee Rules and Regulations. Appeal of Covenant Committee Decision. The Covenant Committee may from time to time adopt and promulgate such rules and regulations regarding the form and content of plans and specifications to be submitted for approval and may publish such statements of policy, standards, guidelines and/or establish such criteria relative to architectural styles or details, or other matters, as it may consider necessary or appropriate. No such rules, regulations, statements, criteria or the like shall be construed as a waiver of the provisions of this Article or any other provision or requirement of this Declaration. The decisions of the Covenant Committee shall be final except that any member who is aggrieved by any action or forbearance from action by the Covenant Committee may appeal the decision of the Covenant Committee to the Board of Directors and, upon the request of such member, shall be entitled to a hearing before the Board of Directors. Two thirds (2/3) of the Board of Directors shall be required to reverse the decision of the Covenant Committee.
Section 6.05. Exterior Appearance. Except as specifically provided herein to the contrary, and without limiting the generality of this Article VI, the following shall apply to every Lot and dwelling unit within the Property, unless otherwise expressly provided by the Covenant Committee or the Board of Directors:
(a) storm windows installed by any Owner or resident, provided such installation is approved by the Covenant Committee or the Board of Directors, shall be painted the same color as the window trim.
(b) the installation of any storm door(s) must receive prior approval of the Board of Directors or the Covenant Committee, including, but not limited to, the style, color and material of said storm door(s). Storm doors must be of traditional design, must be either full or three-quarters view clear glass, and must be painted to match the front door or the trim around the front door.
Notwithstanding anything to the contrary contained in this Section 6.05, the provisions of said Section 6.05 shall not apply to any Lot or dwelling unit owned by the Declarant.
In addition to all other covenants contained herein, the use of the Property and each Lot therein is subject to the following:
Section 7.01. Permitted Uses. The Lots shall be used for residential purposes exclusively, and no building shall be erected, altered, placed or permitted to remain on any such Lot other than one used as a single-family dwelling, except that a professional office may be maintained in a dwelling, provided that (i) such maintenance and use is limited to the person actually residing in the dwelling; (ii) no employees or staff other than a person actually residing in the dwelling are utilized; (iii) such maintenance and use is in strict conformity with the provisions of any applicable zoning law, ordinance or regulation and (iv) the person utilizing such office maintains a principal place of business other than the dwelling. As used in this Section, the term "professional office" shall mean rooms used for office purposes by a member of any recognized profession, including doctors, dentists, lawyers, architects and the like, but not including medical or dental clinics. Nothing contained in this Article, or elsewhere in this Declaration, shall be construed to prohibit the Declarant from the use of any Lot or dwelling, or improvement thereon, for promotional or display purposes, or as "model homes", a sales and/or construction office, or the like.
Section 7.02. Prohibited Uses and Nuisances. Except for the activities of the Declarant and Participating Builders during the construction or development of the community, or except with the prior written approval of the Board of Directors or the Association or the Covenant Committee, or as may be necessary in connection with reasonable and necessary repairs or maintenance to any dwelling or upon the Common Area:
(a) no noxious or offensive trade or activity shall be carried on upon any Lot or within any dwelling or any other part of the Property, nor shall anything be done therein or thereon which may be or become an annoyance or nuisance to the neighborhood or other members. Without limiting the generality of the foregoing, no speaker, horn, whistle, siren, bell, amplifier or other sound device, except such devices as may be used exclusively for security purposes, shall be located, installed or maintained upon the exterior of any dwelling or upon the exterior of any other improvements constructed upon any Lot1 if such device is offensive to other members;
(b) the maintenance, keeping, boarding or raising of animals, livestock, or poultry of any kind, regardless of number, shall be and is hereby prohibited on any Lot or within any dwelling, or other part of the Property, except that this shall not prohibit dogs, cats, caged birds or other small domestic pets provided (i) they are not kept, bred or maintained for commercial purposes; (ii) such domestic pets are not an unreasonable source of annoyance or nuisance to the neighborhood or other members; and (iii) such pets are maintained in strict conformance to all laws and ordinances. The Board of Directors or, upon resolution of the Board of Directors, the Covenant Committee, shall have the authority, after a hearing, to determine whether a particular pet is a nuisance or a source of annoyance to other members, and such determination shall be conclusive. Dogs and cats shall be attended at all times and shall be registered, licensed and inoculated as may from time to time be required by law. Dogs and cats shall not be permitted upon the Common Area unless accompanied by a responsible person and unless they are carried or leashed. The Board of Directors shall have the right to adopt such additional rules and regulations regarding pets as it may from time to time consider necessary or appropriate;
(c) no burning of any trash and no accumulation or storage of litter, lumber, scrap metals, refuse, bulk materials, waste, building materials, or trash of any other kind shall be permitted on any Lot or other part of the Property;
(d) except for parking within garages, and except as herein elsewhere provided, no junk vehicle, commercial vehicle (including vans used for commercial use), truck (as defined by the Maryland Department of Motor Vehicles and/or by common usage and practice except for light pick-up trucks of one-half (1/2) ton capacity or less which are not used for commercial purposes), unlicensed or inoperable motor vehicle (which shall include, without limitation, any vehicle which would not pass applicable state inspection criteria), trailer, camp truck, house trailer, boat, recreational vehicles with sleeping accommodations or other similar vehicle or equipment of any kind or character (except for such vehicle equipment as may be reasonable, customary and usual in connection with the use and maintenance of any dwelling and except for such equipment and machinery as the Association may require in connection with the maintenance and operation of the Common Area) shall be kept upon the Property (unless within an enclosed garage) nor (except for bona fide emergencies) shall the repair or extraordinary maintenance of automobiles or other vehicles be carried out thereon;
(e) trash and garbage containers shall not be permitted to remain in public view except on the evenings prior to and the days of trash collection. Trash, garbage and all refuse must be placed in securely fastened plastic bags which are contained within rigid, plastic containers with secure lids. No incinerator shall be kept or maintained upon any Lot;
(f) no Lot shall be divided or subdivided and no portion of any Lot (other than the entire Lot) shall be transferred or conveyed for any purpose. The provisions of this subsection shall not apply to the Declarant and, further, the provisions hereof shall not be construed to prohibit the granting of any easement or right-of-way to any municipality, political subdivision, public utility or other public body or authority, or to the Association, the Declarant or any other person;
(g) no tree, hedge or other landscape feature shall be planted or maintained in a location which obstructs sight-lines for vehicular traffic on public streets or on private streets and roadways;
(h) no decorative lawn ornaments, decorative wire fencing, no structure of a temporary character, and no trailer, tent, shack, barn, pen, kennel, run, stable, shed or other buildings shall be erected, used or maintained on any Lot at any time;
(i) except for entrance signs, directional signs, signs for traffic control or safety, community "theme areas" and such promotional sign or signs as may be maintained by the Declarant or the Association, no signs or advertising devices of any character shall be erected, posted or displayed upon, in or about any Lot or dwelling, provided, however, that one temporary real estate sign not exceeding six (6) square feet in area may be erected upon any Lot or attached to any dwelling placed upon the market for sale or rent. Any such temporary real estate sign shall be removed promptly following the sale or rental of such dwelling. The provisions and limitations of this subsection shall not apply to any institutional first mortgagee of any Lot who comes into possession of the Lot by reason of any remedies provided by law or in such mortgage or as a result of a foreclosure sale or other judicial sale or as a result of any proceeding, arrangement, assignment or deed in lieu of foreclosure;
(j) no water pipe, sewer pipe, gas pipe, drainage pipe, television cable or other similar transmission line shall be installed or maintained upon any Lot above the surface of the ground and no wire, cable or other similar transmission line may be attached to the exterior of any structure on any Lot;
(k) play equipment, including, without limitation, playhouses, swinging or climbing apparatus, and other equipment associated with either adult or juvenile recreation, shall not be attached in any manner to the exterior of any dwelling and shall only be permitted in the rear yard of a Lot. Basketball poles, backboards, courts and hoops may only be erected within the rear yard of a Lot, behind the dwelling unit. All such recreational equipment or improvements must be approved in accordance with Article VI of this Declaration, and must be maintained in good condition by the Lot Owner;
(m) no outside or exterior television aerial or radio antenna, or other aerial or antenna, including, without limitation, satellite dishes or antenna, for either reception or transmission, shall be maintained upon the Property except that such aerials or antennae may be erected and maintained entirely within the interior of dwellings located upon the Property;
(n) vegetable gardens shall be maintained only within the rear yard of Lots and shall be maintained in a neat and attractive manner;
(o) lawn furniture shall be used and maintained on porches, decks or in rear yards only;
(p) no equipment or machinery (including, without limitation, equipment or machinery for use in connection with the maintenance of any dwelling) shall be stored in the front, rear or side yard on any Lot;
(q) no member shall make any private or exclusive or proprietary use of any of the Common Areas except with the specific approval of the Covenant Committee and then only on a temporary basis, and no member shall engage or direct any employee or agent of the Association on any private business of the member during the hours such employee or agent is employed by the Association, nor shall any member direct, supervise or in any manner attempt to assert control over any employee or agent of the Association;
(r) no fence shall be more than forty-two inches (42") in height. Fences may only consist of rustic split rail, Mount Vernon Dip Pickett, standard picket or three board paddock fencing. Chain link or any other wire fencing is specifically prohibited. Six feet (6') wood fences shall only be permitted when approval is granted for a swimming pool in the rear yard behind the rear of a dwelling unit;
(s) bed sheets, plastic sheets, newspapers, plastic storm windows or other similar window treatments shall not be hung or placed in or on any window on any dwelling located on any Lot;
(t) except as provided in subsection (v) of this Section 7.02, no garage or outbuilding properly erected on a Lot shall at any time be used for human habitation, temporarily or permanently, nor shall any structure of a temporary character be used for human habitation;
(u) no drying or airing of any clothing or bedding shall be permitted outdoors within any Lot or the Common Area;
(v) notwithstanding anything to the contrary contained in this Declaration, no garage may be altered, modified or changed in any manner which would inhibit or in any way limit its function as a parking area for vehicles without the approval of the Board of Directors or the Covenant Committee and, except when being used for the parking and exiting of motor vehicles, garage doors shall be kept in the closed position at all times. Notwithstanding the foregoing, in the event the Declarant or a Participating Builder modifies a garage in compliance with the terms of this Declaration for use as living area, the Lot upon which such improvements are situated and the grantee thereof shall be exempt from the provisions of this subsection (v) until such time as the garage is restored to function as a storage area for motor vehicles;
(w) only in ground swimming pools are permitted and must be located in the rear yard behind the rear building line of a dwelling unit. Portable toddler pools twelve feet or less in diameter may be temporarily located above ground provided they are located in the rear yard and placed as inconspicuously as possible. Hot tubs, Jacuzzis or spas may be located in the rear yard provided they are adequately screened from view. The installation of in ground pools, hot tubs, Jacuzzis and spas are subject to approval by the Covenant Committee in accordance with Article VI of this Declaration and the appropriate governmental officials or agencies of Prince George's County, Maryland and/or the City Bowie (as applicable). Pools, hot tubs, Jacuzzis and spas must be surrounded by fencing approved by the County and the Covenant Committee; and
(x) exterior floodlights will only be permitted to illuminate rear yard areas of Lots containing single family detached dwelling units and shall be directed so as to minimize illumination of adjacent yards and buildings. High wattage commercial/industrial type fixtures and sodium vapor quartz or similar lights are not permitted;
(y) no Lot Owner (or lessee, guest or invitee thereof) may remove or relocate any tree situated within the Common Area nor may any street tree situated on a Lot be removed or relocated without the consent of the Board of Directors of the Association unless such tree is dead or diseased, in which event it must be replaced (by the Association in the Common Area and Lot Owner for trees within a Lot) by a tree of the same type and substantially the same size and quality (subject to a standard of reasonableness regarding the size of such replacement tree related to the cost of acquiring and planting the replacement tree); and (2) the entrance features, monuments and fences or retaining walls constructed by the Declarant shall not be materially changed by the Association or any Owner (or his lessee, guest or invitee) including, but not limited to the removal of the name of the Declarant. This subsection shall not be amended without the prior written consent of the Declarant; and
(z) for so long as the Declarant owns any portion of the Property or is subject to any bonds or completion agreements with respect to any portion of the Property, no lot Owner (or lessee, guest or invitee thereof) shall grant any easement, licenses or similar rights of use for utilities, cable television or similar purposes without the express written consent of the Declarant, which consent may be withheld in Declarant's sole discretion. The purpose of the foregoing provision is to insure that no rights are granted to others which would in any way interfere with the timely, efficient and cost effective completion of Declarant's construction activities with respect to the Property. This subsection shall not be amended without the prior written consent of the Declarant.
(a) No portion of a dwelling unit, other than an entire dwelling unit, may be leased or rented. All leases shall be on forms approved by the Association and shall (i) contain provisions advising the tenant of his/her obligation to comply with all provisions of this Declaration, the Bylaws and the rules and regulations of the Association and (ii) provide that the Association shall have the right to terminate the lease upon default by the tenant in observing any of the provisions of this Declaration, the Bylaws or rules and regulations of the Association, or of any other document, agreement or instrument governing the dwelling units and/or the Property. The Owner(s) of a leased Lot shall notify the Association in writing of the Owners' current address. The Owner(s) of a leased or rented dwelling unit shall be jointly and severally liable with his/her tenant(s) to the Association to pay any claim for injury or damage to persons or property caused by any action or omission, including, without limitation, the negligence of the tenant(s). Every lease shall be subordinate to any lien filed by the Association, whether before or after such lease was entered into. The minimum term any dwelling unit may be rented or leased shall be six (6) months, and in no event may a transient tenant be accommodated in any dwelling unit.
(b) Prior to the sale, conveyance or transfer of any Lot or dwelling unit to any person, the Owner shall notify the Board of Directors in writing, by certified mail, return receipt requested of the name and address of the person to whom the proposed sale, conveyance or transfer is to be made and provide to it such other information as the Board of Directors may reasonably require. Failure to comply with the provisions of this Section 7.03(b) shall not void, prohibit or otherwise invalidate the sale, conveyance or transfer of any Lot or dwelling unit nor may it have any affect upon any mortgage or deed of trust thereon.
(c) No Lot shall be subjected to or used for any timesharing, cooperative, licensing or other arrangement that would entail weekly, monthly, or any other type of revolving or periodic occupancy by multiple Owners, cooperators, licensees or timesharing participants.
Section 7.04. House Rules. Etc. There shall be no violation of any reasonable rules for the use of the Common Area or "house rules" or other community rules and regulations not inconsistent with the provisions of this Declaration which may from time to time be adopted by the Board of Directors of the Association and promulgated among the membership by them in writing, and the Board of Directors is hereby and elsewhere in this Declaration authorized to adopt such rules. In order to adopt rules and regulations regarding the use of the Common Area, the Board of Directors must provide a copy of the proposed rule(s) or regulation(s) to each Owner not less than ten (10) days prior to the Board of Directors meeting at which such rule(s) or regulation(s) are scheduled to be discussed and/or adopted. If a majority of the Owners disapprove the proposed rule(s) or regulation(s), such rule(s) or regulation(s) shall not adopted or be effective. In order to be effective, the proposed rule(s) or regulation(s) must be adopted by a resolution of the Board of Directors at the aforesaid meeting and a copy of the same provided to each Owner. Ea6h Owner is responsible to provide the tenants or other occupants of his/her Lot, if applicable, with a copy of such rule(s) and regulation(s)\.
Section 7.05. Exemptions. None of the foregoing restrictions shall be applicable to improvements constructed by or to the activities of:
(a) Declarant, its officers, employees, agents or assigns, in their development, marketing, leasing and sale of Lots or other parcels within the Property; or
(b) To the Association, its officers, employees and agents, in connection with the proper maintenance, repair, replacement and improvement of the Common Areas.
Section 7.06. Declaration of Easements and Rights. The following easements and rights are hereby declared or reserved:
(a) For a period of ten (10) years from the recordation of this Declaration, Declarant reserves the right to grant easements, both temporary and permanent, to all public authorities and utility companies over any part of the Lots or Common Areas.
(b) Each Lot within the Property is hereby declared to have an easement, not exceeding one foot (1') in width, over all adjoining Lots and Common Areas for the purpose of accommodating any encroachment due to engineering errors, errors in original construction, settlement or shifting of improvements such as driveways and fences, or any other similar cause. There shall be valid easements for the maintenance of said encroachments so long as they shall exist, and the rights and obligations of Owners shall not be altered in any way by said encroachment, settlement or shifting; provided, however, that in no event shall a valid easement for encroachment be created in favor of an Owner or Owners if said encroachment occurred due to the willful misconduct of said Owner or Owners.
(c) There is hereby reserved unto the Declarant [and to such other party(ies) as the Declarant may specifically, and in writing, assign such rights3, for the benefit of the real property shown on the Development Plan (the "Benefited Property"), a blanket easement upon, across and under the Property (provided such easement does not encroach upon any building within the Property or unreasonably interfere with the use and enjoyment of the Property), for vehicular and pedestrian ingress and egress, curb cuts, slope, or grading easements, as well as for the installation, replacement, repair and maintenance of all utilities, including, but not limited to, water, sewer, drainage, storm water detention and/or siltation, gas, cable television, telephones and electricity, and further including the right to connect to and use any such utilities which may exist or be located upon the Property from time to time. By virtue of this easement, it shall be expressly permissible to erect and maintain the necessary poles, pipes, lines and other equipment on the Property, to affix and maintain electrical or telephone wires and conduits, sewer and water drainage lines, on, above, or below any portion of the Property, including any improvements constructed thereon, and to have construction vehicles, equipment and the like exercise the aforesaid right of ingress and egress over the Property. Further, without limiting the generality of the foregoing, the Declarant reserves the right to unilaterally execute and record such additional easements and agreements as may be necessary in order to give effect to the foregoing easements and other rights, which additional easements and other agreements need not be consented to or joined in by any party having an interest in the Property; provided, however, that if requested by the Declarant, any party having an interest in the Property shall promptly join in and execute such confirmatory easements and other agreements. Declarant also reserves the right to enter any part of the Property for the purpose of carrying out any obligations it may have, or assume, with respect to the curing of any defects in workmanship or materials in the Property or the improvements thereon.
(d) An easement is hereby reserved to Declarant to enter the Common Area during the period of construction and sale on the Property, and to maintain such facilities and perform such operations as in the sole opinion of Declarant may be reasonably required, convenient or incidental to the construction and sale of residences, including, without limitation, a business office, sales office, storage area, construction yards, signs, displays and model units.
(e) Declarant also reserves the right to enter into the Common Area for the purpose of carrying out any obligations it may have, or assume, with respect to the curing of any defects in workmanship or materials in the Property or the improvements thereon. There is further reserved unto the Declarant and its agent(s) a non-exclusive easement over, across and through all of the Common Areas for the purpose of access, the storage of building supplies and materials and equipment and, without any limitation, for any and all purposes reasonably related to the completion of the development, construction or rehabilitation and repair of the Property.
(f) For a period of ten (10) years from the date of conveyance of the first Lot, the Declarant reserves a blanket easement and right on, over and under the Property to maintain and to correct drainage of surface water in order to maintain reasonable standards of health, safety and appearance. Such right expressly includes the right to cut any trees, bushes or shrubbery, make any gradings of the soil, or to take any other similar action reasonably necessary, following which the Declarant shall restore the affected property to its original condition as near as practicable. The Declarant shall give reasonable notice of intent to take such action to all affected Owners, unless in the opinion of the Declarant an emergency exists which precludes such notice. There is further reserved unto the Declarant the right to grant specific easements, both temporary and permanent, to any person or entity, including all public authorities and utility companies, over any part of the Property in furtherance of the blanket easement created by this subsection (f).
(g) The rights and duties with respect to sanitary sewer and water, storm drains, downspouts, yard drains, cable television, electricity, gas and telephone lines and facilities shall be governed by the following:
(i) Whenever water, sanitary sewer and water, storm drains, downspouts, yard drains, electricity, gas, cable television or telephone connections, lines, cables or any portion thereof, have been installed within the Property, the Owner of any Lot, or the Association shall have the right, and are hereby granted an easement to the extent necessary therefor, to enter upon or have a utility company enter upon any portion of the Property in which said installations lie, to repair, replace and generally maintain said installations.
(ii) The rights granted in Subparagraph (i) above shall be only to the extent necessary to entitle the property of the Owner or Association serviced by said installation to its full and reasonable use and enjoyment, and provided further that anyone exercising said right shall be responsible for restoring the surface of the easement area so used to its condition prior to such use. Furthermore, the rights granted in subparagraph (i) above shall be subject to the express approval of the Declarant if the Declarant owns or is developing any portion of the Property. Declarant reserves the right to require that any utility, cable television or similar companies desiring access to any portion of the Property or the roads adjacent to the Property either (i) defer such access until the completion of all development work by Declarant or (ii) post a bond or such other assurances deemed desirable by Declarant to insure satisfactory completion of the utility work.
(iii) In the event of a dispute between Owners with respect to the repair or rebuilding of said connections, or with respect to the sharing of the cost thereof, upon written request of one of such Owners addressed to the Association, the matter shall be submitted to its Board of Directors, who shall decide the dispute, and the decision of the Board shall be final and conclusive as to the parties.
(h) The Association shall have an easement to enter any portion of the Property for the performance of its duties hereunder; provided that such easement shall not entitle the entry within the interior portion of any dwelling located on the Property, but (by way of illustration only and not in limitation of the rights granted herein) shall permit the entry into fenced, or other similar areas of the Property.
(i) A mutual right and easement for utility services is hereby established for the benefit of all Owners, such that no Owner shall take any action which would in any way interfere with utility services being provided to or serving other Owners within the Project. If a Lot contains any utility pipes, ducts, conduits, wires or the like which are for the benefit, in whole or in part, of other Owners within the Project, then the Owner of such Lot shall promptly, at his/her expense, repair any damage to such utilities caused by the Owner, his/her guests or invitees.
(j) The Association, its agents and employees, shall have an irrevocable right and an easement to enter the Lots for the purposes of exercising the rights and fulfilling the obligations established by this Declaration and any Supplementary Declarations recorded hereafter.
(k) The Declarant hereby reserves to itself and its successors and assigns, an easement and the right to grant and reserve easements over and through the Property. These easements shall be for the purpose of construction, installation, irrigation and maintenance of landscaping features, including without limitation plants, trees and earth berms and other earth contouring and signs and shall include access as necessary to perform such tasks. The Owner of a Lot burdened by the easement shall not construct any improvements within the easement without the permission of the Declarant, during the period the Class B memberships exist, or the Association, thereafter. The Declarant or the Association, as appropriate, may require the Owner of the Lot to maintain the easement area located on such Owner's Lot. Maintenance of these easement areas by the Association shall be a Common Expense and, at the election of the Board of Directors, shall be assessed against the Lot burdened by the easement.
(l) The Property contains certain conservation or "limit of disturbance" areas which are more particularly shown on the Site Plan attached hereto as Exhibit "B" (the "Limits of Disturbance Areas"). Such Exhibit shall be deemed to be automatically amended as the Site Plan is amended from time to time. The Owners of Lots, and their guests, lessees and invitees, whose Lot is affected by a Limit of Disturbance Area may not disturb such area without the prior written consent of the governmental authority having jurisdiction with respect thereto.
(m) The Property is subject to certain Public Improvements Easements for the benefit of the City of Bowie for installing and maintaining certain public improvements including, but not limited to, street paving, curb and gutter, sidewalks, street signs, traffic control signs and devices, storm drainage and street lights. The Public Improvements Easements are described on the Declaration of Easements which is attached hereto and made part hereof as Exhibit "C".
(n) The Declarant shall install and complete certain public improvements within the Property pursuant to the Public Improvements Agreement attached hereto and made part hereof as Exhibit "D".
(o) Lot 1, Block "A" and Lot 1, Block "D" are subject to perpetual, non-exclusive easements for the placement and maintenance of entrance features, including the landscaping thereof pursuant to an easement as shown on the subdivision plat upon which such Lots are depicted. The Association shall have a perpetual, non-exclusive easement to maintain, repair and replace such entrance features. The Owner(s) of the Lots encumbered by these easements shall not alter or destroy the entrance features, nor take any action to limit or obstruct the exercise of such easements. The Association shall maintain hazard and liability insurance with respect to such entrance features.
(p) Lot 2, Block "A" Lots 2 and 3, Block "B", Lots 127 through 130, inclusive, Block "C" and Lots 3 and 4, Block D are subject to a conservation easement which is more particularly shown on the subdivision plat of such property. No trees may be cut or disturbed within the conservation easement area without the approval of the appropriate governmental authorities) of the City of Bowie and/or Prince George's County, Maryland.
Section 8.01. Owners' Rights and Responsibilities. Except as otherwise specifically provided in this Declaration, each Owner shall keep each Lot owned by him, and all improvements therein or thereon, in good order and repair and free of debris in a manner and with such frequency as is consistent with good property management and the Community-Wide Standard. Each Owner of a Lot is required to maintain the Lawn areas and street trees within the public street right of ways adjacent to the Owner's Lot. Each Owner is also responsible for the full maintenance responsibility of maintaining any driveway apron, pipe and headwalls related thereto which serve the Owner's Lot. In the event an Owner of any Lot in the Property shall fail to maintain the foregoing areas and the improvements situated thereon, the Board of Directors or its agent shall have the right to enter upon said Lot to correct drainage and to repair, maintain and restore the Lot and the exterior of the buildings and any other improvements erected thereon. Whenever entry is not required in an emergency situation, the Association shall afford the Owner reasonable notice and an opportunity to cure the problem prior to entry. All costs related to such correction, repair or restoration shall be collectible from the Owner of such Lot in the same manner as assessments as provided in Article V herein.
Section 8.02. Association Maintenance. The Association shall maintain and keep in good order the Common Areas, such maintenance to be funded as hereinafter provided. In addition, except as provided in Section 8.01, the Association shall maintain and keep in good repair rights-of-way and entry strips, whether owned as part of a Lot, an outlot parcel or dedicated for public use, so long as the rights-of-way or entry strips are within or appurtenant to or directly serve the Project. This obligation shall include, but not be limited to, maintenance, repair and replacement, subject to any insurance then in effect, of all landscaping and other flora, structures and' improvements situated upon such areas. The Association shall maintain and replace, as needed in the judgment of the Board of Directors, all "street trees" situated within the Common Area and Lots, the location of which are shown on the approved landscape plan attached hereto and made part hereof as Exhibit "E". Such Exhibit shall be deemed to be automatically amended as the landscape plan is amended from time to time. The Association shall maintain any property, equipment, machinery, apparatus or other real or personal property (or fixtures) which is the responsibility of the Association pursuant to any easement or lease agreement. The expenses of such maintenance shall be a Common Expense of the Association, including, but not limited to, reserves for the maintenance, repair or replacement of any such property or improvements. The Association shall also maintain, repair and replace any storm drainage facilities, including, but not limited to, storm drainage pipes, inlets and oil grit separator inlets whether located within the Property or not, if such equipment, apparatus or facilities serve or benefit the Property and is/are not maintained by Prince George's County or the City of Bowie. Storm water management facilities or areas owned by the City of Bowie or Prince George's County and serving the Property shall be maintained by the applicable governmental authority unless otherwise provided by such governmental authority. Notwithstanding the foregoing, the Association shall maintain, repair and replace, as needed, certain fencing surrounding the storm water management pond or facilities serving and benefiting the Property.
The Association may, in the discretion of the Board of Directors, assume additional maintenance responsibilities upon all or any portion of the Property. In such event, all costs of such maintenance shall be assessed only against those Owners residing within the portion of the Property receiving the additional services. This assumption of responsibility may take place either by contract (including, but not limited to a contract between the Association and any Lot Owner or group of Lot Owners) or because, in the opinion of the Board, the level and quality of service then being provided is not consistent with the Community-Wide Standard of the Project. The provision of services in accordance with this Section shall not constitute discrimination within a class.
The Association shall also have the right to enter any Lot, including the dwelling unit located on such Lot, without the consent of the Owner and/or occupant thereof, to conduct any emergency repairs as are deemed necessary by the Board of Directors. The costs of such repairs shall be collectible from the Owner of such Lot in the same manner as assessments as provided in Article V herein.
Section 9.01. Individual Coverage. By virtue of taking title to a Lot, each Owner covenants and agrees with all other Owners and with the Association that each individual Owner shall carry blanket all risk casualty insurance on the dwelling and all structures located upon the Lot, at a minimum, such coverage shall provide coverage against loss or damage by fire or other hazards in an amount sufficient to cover the full replacement cost of any repair or reconstruction work in the event of damage or destruction from any insured hazard. The Board of Directors of the Association, or its duly authorized agent, shall have the authority to obtain insurance for all or any of the dwellings located on the Property, unless the Owners thereof have supplied proof of adequate coverage to the Board of Directors' satisfaction. Each Owner further covenants and agrees that in the event of a partial loss or damage and destruction resulting in less than total destruction to the dwelling and other structures constructed on the Lot, the Owner shall proceed promptly to repair or to reconstruct the dwelling and other damaged structures in a manner consistent with the original construction. Each Owner of a Lot upon which a dwelling unit and/or other structure constructed by the Declarant is situated covenants and agrees that in the event that such dwelling and/or structure is totally destroyed, the Owner shall proceed promptly to repair or to reconstruct the dwelling in a manner consistent with the original construction, unless approval to do otherwise is obtained from the Covenant Committee.
Section 9.02. Required Coverage. The Board of Directors of the Association, or its duly authorized agent, shall be required to obtain, maintain and pay the premiums, as a Common Expense, upon a policy of property insurance covering all the Common Areas and any property required to be insured by the Association pursuant to any easement or lease agreement (except land, foundation, excavation and other items normally excluded from coverage) including fixtures and building service equipment, to the extent that they are a part of the Common Areas of the Association or such other property which the Association may insure, as well as common personal property and supplies.
The insurance policy shall afford, as a minimum, protection against loss or damage by fire and other perils normally covered by the standard extended coverage endorsement, as well as all other perils which are customarily covered with respect to projects similar in construction, location and use, including all perils normally covered by the standard "All Risk" endorsement, where such is available. The policy shall be in an amount equal to one hundred percent (100%) of the current replacement cost of the Common Areas (less a deductible deemed reasonable by the Board of Directors) and shall name the Association as the named insured.
Each hazard insurance policy must be written by a hazard insurance carrier which has a current rating by Best's Insurance Reports of A/VI or better (or its equivalent). Each insurer must be specifically licensed or authorized by law to transact business within the State of Maryland. The policy contract shall provide that no assessment may be made against the mortgagees, and that any assessment made against others may not become a lien on the mortgaged premises superior to the first mortgage. The deductible on any hazard policy should be no greater than one percent (1%) of the face value of the policy, unless the State of Maryland permits a higher amount.
All policies of hazard insurance must contain or have attached the standard mortgagee clause commonly acceded by private institutions as mortgage investors in the area in which the mortgaged premises are located. The mortgagee clause must provide that all property insurance policies must provide an Agreed Amount and Inflation Guard Endorsement, if available, and a Construction Code Endorsement if the Common Areas in the Association are subject to a construction code provision which would become operative and require changes to undamaged portions of the building(s), thereby imposing significant costs in the event of partial destruction of the project by an insured peril.
If any portion of the Common Areas are in a special flood hazard area, as defined by the Federal Emergency Management Agency, the Board of Directors of the Association, or its duly authorized agent, shall be required to obtain, maintain and pay, as a common expense, the premiums upon a "master" or "blanket" policy of flood insurance on Common Area buildings and any other Common Area property. The policy shall be in an amount deemed appropriate, but not less than the maximum coverage available under the NFIP for all buildings and other insurable property within any portion of the Common Areas located within a designated flood hazard area or one hundred percent (100%) of current replacement cost of all such buildings and4other insurable property. Unless a higher maximum amount is permitted under the laws of Maryland, the maximum deductible for flood insurance shall be the lesser of Five Thousand Dollars ($5,000.00) or one percent (1%) of the policy face amount.
The Association shall maintain comprehensive general liability insurance coverage covering all of the Common Areas, public ways of the project, and other areas that are under its supervision. Coverage limits shall be in amounts generally required by private institutional mortgage investors for projects similar in construction, location and use. However, such coverage shall be for at least One Million Dollars ($1,000,000.00) for bodily injury and property damage arising out of a single occurrence. Coverage under this policy shall include, without limitation, legal liability of the insured for property damage, bodily injuries and deaths of persons in connection with the operation and maintenance or use of the Common Areas, and legal liability arising out of lawsuits related to employment contracts in which the Association is a party. Such insurance policy shall contain a "severability of interest" clause or endorsement which shall preclude the insurer from denying the claim of an Owner because of negligent acts of the Association or other Owners. Such policies must provide that they may not be canceled or substantially modified, by any party, without at least ten (10) days' prior written notice to the Association.
Blanket fidelity bonds shall be required to be maintained by the Association for all officers, directors, managers, trustees, employees and volunteers of the Association and all other persons handling or responsible for funds held or administered by the Association, whether or not they receive compensation for their services. Where the Association has delegated some or all of the responsibility for the handling of funds to a management agent, such management agent shall be covered by its own fidelity bond. All fidelity bonds, including those entered into by, and/or on behalf of or for the benefit of a management agent and its personnel, should name the Association as an obligee (for bonds entered into by or on behalf of, or for the benefit of a management agent and its personnel, the Association should be named as an additional obligee). Fidelity bonds entered into by the Association shall have their premiums paid as a common expense of the Association. The total amount of fidelity coverage required shall be sufficient to cover the maximum funds that will be in the custody of the Association or management agent at any time, but must at least equal the sum of three (3) months' assessments on all Lots within the Property, plus the Association's reserve funds. The bonds shall provide that they cannot be canceled or substantially modified (including cancellation for nonpayment of premium) without at least ten (10) days' prior written notice to the Association and to all Eligible Mortgage Holders.
Section 9.03. Repair and Reconstruction of Common Areas After Fire or Other Casualty. Except as hereinafter provided (and inconsistent herewith), in the event of damage to or destruction of any portion of the Common Areas covered by insurance payable to the Association as a result of fire or other casualty, the Board of Directors shall arrange for the prompt repair and restoration thereof, and the Board of Directors or the Insurance Trustee (as hereinafter defined), as the case may be, shall disburse the proceeds of all insurance policies to the contractors engaged in such repair and restoration, as provided below.
The Insurance Trustee may rely upon a certificate of the Board of Directors which certifies whether or not the damaged Property is to be reconstructed or repaired. The Board of Directors, upon request of the Insurance Trustee, shall deliver such certificate as soon as practicable.
Immediately after a casualty causing damage to the Common Areas for which the Association has the responsibility of maintenance, repair, and/or replacement, the Board of Directors shall obtain reliable and detailed estimates of the cost to place the damaged portions of the Common Areas in as good a condition as existed before the casualty. Such costs may include professional fees and premiums for such bonds as the Board of Directors desire.
In the event of reconstruction or repair (as estimated by the Board of Directors) which shall exceed Twenty-Five Thousand Dollars ($25,000.00), all proceeds of insurance shall be paid over to a trust company or bank having trust powers and authorized to engage in the trust business in the State of Maryland (hereinafter the "Insurance Trustee1'), selected by the Board of Directors and shall be paid out from time to time as the reconstruction and repair progresses in accordance with the provisions of an Insurance Trust Agreement and which contains inter alia, the following provisions:
(a) the reconstruction or repair shall be in the charge of an architect or engineer, who may be an employee of the Association, and hereinafter called the "Architect";
(b) any restoration or repair of the project shall be performed substantially in accordance with the Declaration and the original plans and specifications, unless other action is approved by at least fifty-one percent (51%) of the Eligible Mortgage Holders (based upon one vote for each first mortgage owned), and two thirds (2/3) of the owners (other than the Declarant);
(c) each request for an advance of the proceeds of insurance shall be made to the Insurance Trustee and shall be accompanied by a certificate from the Architect and Board of Directors to the effect that (i) all work then completed has been performed in accordance with the plans and specifications; and (ii) the amount requested to be advanced is required to reimburse the Board of Directors for payments previously made by the Board of Directors or is due to the contractor responsible for the restoration or repair, or to subcontractors, material men, laborers, engineers, architects or to other persons responsible for services or materials in connection with such restoration or repair, or for fees or the like necessarily incurred in connection with the same; and (iii) when added to amounts previously advanced by the Insurance Trustee, the amount requested to be advanced does not unreasonably exceed the value of the work done and materials delivered to the date of such request;
(d) each request for an advance of the proceeds of insurance shall be accompanied by satisfactory waivers of liens covering that portion of the repair or reconstruction for which payment or reimbursement is being requested, together with appropriate evidence from a title insurance company or the like to the effect that there has not been filed with respect to the Common Areas, or any part thereof, any mechanics' or other lien, or notice of intention to file the same, which has not been dismissed, bonded, or satisfied of record;
(e) the fees and expenses of the Insurance Trustee, as agreed upon by the Board of Directors and the Insurance Trustee, shall be paid by the Association as a common expense, and such fees and expenses may be deducted from any insurance proceeds in the hands of the Insurance Trustee, pro rata, as the reconstruction or repair progresses; and
(f) such other provisions not inconsistent with the provisions hereof as the Board of Directors or the Insurance Trustee may reasonably require.
Upon completion of the reconstruction or repair and payment in full of all amounts due on account thereof, any proceeds of insurance then in the hands of the Insurance Trustee shall be paid to the Board of Directors if such funds relate to Common Areas, or (ii) to the Owner of any Lot to which Thy such proceeds may relate.
The rights and duties of the Owners of Lots with respect to party fences and party driveways shall be governed by the following:
Section 10.01. General Rules of Law to Apply. Each fence or driveway which is constructed as a part of the original construction on the Property and any part of which is placed on the dividing line between separate Lots (or is designed for the use of two or more Lots), shall constitute a party fence or party driveway, as applicable, and with respect to such fence or driveway, each of the adjoining Owners shall assume the burdens, and be subject to an easement for that portion of the fence or driveway on his or her Lot, and be entitled to the benefits of these restrictive covenants and, to the extent not inconsistent herewith, the general rules of law regarding party fences and driveways and of liability for property damage due to negligence or willful acts or omissions, shall apply thereto.
Section 10.02. Sharing of Repair and Maintenance and Destruction by Fire or Other Casualty. If any such party fence or driveway is damaged or destroyed by fire or other casualty or by some cause other than the act of one of the adjoining Owners, his/her agents, or family (including ordinary wear and tear and deterioration from lapse of time), then, in such event, all such adjoining Owners shall proceed forthwith to rebuild or repair the same to as good condition as formerly, in proportion to their respective use of the party fence or driveway.
Section 10.03. Repairs of Damage Caused by One Owner. If any such party fence or driveway is damaged or destroyed through the act of one adjoining Owner or any of his/her agents or guests or members of his/her family (whether or not such act is negligent or otherwise culpable) so as to deprive the other adjoining Owners of the full use and enjoyment of such fence or driveway, then the Owner responsible for such damage shall forthwith proceed to rebuild and repair the same to as good condition as formerly, without cost to the adjoining Owners.
Section 10.04. Encroachments. If any portion of a party fence or driveway shall encroach upon any adjoining Lot, or upon the Common Area by reason of reconstruction, settlement or shifting of any building, or otherwise, a valid easement for the encroachment and for the maintenance of the same as long as the fence or driveway shall exist.
Section 10.05. Easement for Use of Party Driveway. The adjoining Owners (and their lessees, guests and invitees) of Lots sharing a party driveway have a perpetual, reciprocal, non-exclusive easement of use of such driveway for ingress and egress to and from their Lot which may not be obstructed or limited in any manner except for temporary repairs to such driveway. The City of Bowie shall also have an easement to use the party driveway for access to the storm water management pond owned by the City and serving the Property. Such right of access may not be obstructed by any Lot Owner or his lessee, guest or invitee.
Section 10.06. Right to Contribution Runs with Land. The right of any Owner to contribution from any other Owner under this Article shall be appurtenant to the land and shall pass to such Owner's successors in title.
Section 10.07. Dispute. In the event of a dispute between Owners with respect to the repair or rebuilding of a party fence or driveway or with respect to the sharing of the cost thereof, then, upon written request of one of such Owners addressed to the Association, the matter shall be submitted to its. Board of Directors who shall decide the dispute, and the decision of such Board of Directors shall be final and conclusive upon the parties.
Section 11.01. Management Agent. The Board of Directors may employ for the Association a professional management agent or manager (the "Management Agent") at a rate of compensation established by the Board of Directors to perform such duties and services as the Board of Directors shall from time to time authorize in writing, including, but not limited to, the following:
(b) to provide for the care, upkeep, maintenance and surveillance of the Common Area and community facilities; and
(c) to designate, hire and dismiss such personnel as may be required for the good working order, maintenance and efficient operation of the Common Area and community facilities; and
(d) to promulgate (with the approval of the Board of Directors of the Association) and enforce such rules and regulations and such restrictions or requirements, "house rules" or the like as may be deemed proper respecting the use of the Common Area and community facilities; and
(e) to provide such other services (including legal and accounting services) for the Association as may be consistent with law and the provisions of this Declaration.
When professional management has been previously required by any Eligible Mortgage Holder, any decision to establish self-management by the Association shall require the consent of sixty-seven percent (67%) of the Owners and the approval of fifty-one percent (51%) of the votes of the Eligible Mortgage Holders (based upon one (1) vote per mortgage or deed of trust held by such Eligible Mortgage Holder).
Section 11.02. Duration of Management Agreement. Any management agreement entered into by the Association shall provide, inter alia, that such agreement may be terminated for cause by either party upon thirty (30) days' written notice thereof to the other party. The term of any such management agreement shall not exceed one (1) year; provided, however, that the term of any such management agreement may be renewable by mutual agreement of the parties for successive one (1)-year periods.
Any Management Agreement entered into by the Declarant, his/her nominee or nominees, assigns, successor(s) or agent thereof, prior to transfer of control of the Association must be terminable, without cause, any time after transfer of control, on not less than thirty (30) nor more than ninety (90) days' notice, and no charge or penalty may be associated with such termination.
Section 12.01. Common Area Responsibility. The Association, subject to the rights of the Owners as set forth in this Declaration, shall be responsible for the exclusive management and control of the Common Areas and any property, real or personal, which the Association is delegated the responsibility for pursuant to any easement or lease agreement, and all improvements thereon (including, without limitation, furnishings and equipment related thereto, private drainage facilities and common landscaped areas), and shall keep the Common Areas and such other property in good, clean, attractive, and sanitary condition, order, and repair, pursuant to the terms and conditions hereof. The Association shall accept title to any real estate or personal property offered to the Association by the Declarant.
Section 12.02. Personal Property and Real Property for Common Use. The Association may acquire, lease, hold, and dispose of tangible and intangible personal property and real property, subject to the requirements of this Declaration. The Board of Directors, acting on behalf of the Association, will accept any real or personal property, leasehold, or other property interests within the Property conveyed to it by the Declarant.
Section 12.03. Implied Rights. The Association may exercise any other right or privilege given to it expressly by this Declaration or the Bylaws or any lease, easement or other agreement or document affecting the Association, and every other right or privilege reasonably to be implied from the existence of any right or privilege given to it herein or reasonably necessary to effectuate any such right or privilege.
Section 12.04. Limitation of Liability. The Association shall not be liable for any failure of any services to be obtained by the Association or paid for out of the common expense funds, or for injury or damage to persons or property caused by the elements or resulting from water which may leak or flow from any portion of the Common Areas or community facilities or other property within the control or supervision of the Association, or from any wire, pipe, drain, conduit or the like. The Association shall not be liable to any member for loss or damage, by theft or otherwise, of articles which may be stored upon the Common Areas or other property within the control or supervision of the Association. No diminution or abatement of assessments, as herein elsewhere provided for, shall be claimed or allowed for inconvenience or discomfort arising from the making of repairs or improvements to the Common Areas or other property within the control or supervision of the Association, or from any action taken by the Association to comply with any of the provisions of this Declaration or with any law or ordinance or with the order or directive of any municipal or other governmental authority.
Section 12.05. Enforcement. The Association, or any Owner, or any Mortgagee of any Lot shall have the right to enforce, by any proceeding at law and/or in equity, all restrictions, conditions, covenants, reservations, easements, liens, charges or other obligations or terms now or hereafter imposed by the provisions of this Declaration, or the Articles of Incorporation or Bylaws of the Association or any rule or regulation promulgated by the Association pursuant to its authority as provided in the Declaration, Articles of Incorporation or Bylaws. Failure by the Association or by any Owner or by any mortgagee of any Lot to enforce any covenant or restrictions herein contained or any provision of the Bylaws, Articles of Incorporation or rules and regulations of the Association shall in no event be deemed a waiver of the right to do so thereafter. There shall be and there is hereby created and declared to be a conclusive presumption that any violation or breach or attempted violation or breach of any of the within covenants or restrictions or any provision of the Bylaws or Articles of Incorporation of the Association cannot be adequately remedied by action at law or exclusively by recovery of damages If the Association, or any Owner or Mortgagee of any Lot, successfully brings an action to extinguish a violation or otherwise enforce the provisions of this Declaration or the Articles of Incorporation or Bylaws of the Association, the costs of such action, including legal fees, shall become a binding, personal obligation of the Owner committing or responsible for such violation, and such costs shall also be a lien upon the Lot of such Owner, provided that the requirements of the Maryland Contract Lien Act are substantially fulfilled.
Without limiting the generality of the foregoing, and in addition to any other remedies available, the Association after reasonable notice, in writing, provided to the Owner, may enter any Lot to remedy any violation of the provisions of this Declaration, the Bylaws, Articles of Incorporation or rules and regulations of the Association provided, however, that the Association may not enter the interior of any dwelling unit except in an emergency. The costs of such action shall become a binding, personal obligation of the Owner otherwise responsible for such violation and shall also be a lien upon the lot of such Owner.
Section 12.06. Fines. In addition to the means for enforcement provided elsewhere herein, the Association shall have the right to levy fines against an Owner or his/her guests, relatives, lessees or invitees, in the manner set forth herein, and such fines shall be collectible as any other assessment such that the Association shall have a lien against the Lot of such Owner as provided in this Declaration, the Bylaws and the Articles of Incorporation and such fine(s) shall also become the binding personal obligation of such Owner.
(a) The Board of Directors, or a duly appointed Covenants Enforcement Committee, shall be charged with determining where there is probable cause that any of the provisions of this Declaration, the Bylaws, Articles of Incorporation or the rules and regulations of the Association, regarding the use of the dwelling units, Lots, Common Area or other Association property, are being or have been violated. In the event that the Board of Directors or the Covenants Enforcement Committee determines an instance of such probable cause it shall cause the Board of Directors to provide written notice to the person alleged to be in violation, and the Owner of the Lot which that person occupies or is visiting if such person is not the owner, of the specific nature of the alleged violation and of the opportunity for a hearing before the Board of Directors upon a request made within five (5) days of the sending of the notice. The notice shall also specify, and it is hereby provided, that each recurrence of the alleged violation or each day during which it continues shall be deemed a separate offense, subject to a separate fine not to exceed a reasonable amount established by the Board of Directors from time to time for each offense. The amount of the fine shall be based upon the costs and inconvenience caused to the Association and shall not be a penalty. The notice shall also specify, and it is hereby provided, that in lieu of requesting a hearing, the alleged violator or Owner may respond to the notice within five (5) days of its sending, acknowledging in writing that the violation occurred as alleged and promising that it will henceforth cease and will not recur, and that such acknowledgment and promise, and performance in accordance therewith, shall terminate the enforcement activity of the Association with regard to such violation.
(b) If a hearing is timely requested, the Board of Directors shall hold the same, and shall hear any and all defenses to the charges, including any witnesses that the alleged violator, Owner or the Board of Directors or Covenants Enforcement Committee may produce. Any party at the hearing may be represented by counsel.
(c) Subsequent to any hearing, or if no hearing is timely requested and if no acknowledgment and promise is timely made, the Board of Directors shall determine whether there is sufficient evidence of a violation or violations as provided herein. If the Board of Directors determines that there is sufficient evidence, it may levy a fine for each violation in the amount provided herein.
(d) A fine pursuant to this Section 12.06. shall be assessed against the Lot which the violator occupied or was visiting at the time of the violation, whether or not the violator is an owner of that Lot, and shall be collectible in the same manner as any other assessment, including by the Association's lien rights as provided in this Declaration and the Bylaws. Nothing herein shall be construed to interfere with any right that an Owner may have to obtain from a violator occupying or visiting his/her Lot payment of the amount of any fine(s) assessed against that Lot.
(e) Nothing herein shall be construed as a prohibition of or limitation on the right of the Association to pursue any other means of enforcement of the provisions of this Declaration, the Bylaws, Articles of Incorporation or rules and regulations, including, but not limited to, legal action for damages or injunctive relief.
Section 12.07. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no wise affect any other provisions, which shall remain in full force and effect.
Section 12.08. Duration and Amendment. Except where permanent easements or other permanent rights or interests are herein created, the covenants and restrictions of the Declaration shall run with and bind the land for a term of twenty (20) years from the date this Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years. This Declaration may be amended during the first twenty (20)-year period by the vote or written agreement of not less than the Owners of seventy-five percent (75%) of the Lots, and thereafter, by the vote or written agreement of the Owners of not less than sixty-six and two-thirds percent (66 2/3%) of all the Lots. Any amendment must be recorded in the Land Records of Prince George's County, Maryland.
Section 12.09. Rights of the Maryland-National Capital Park and Planning Commission ("Commission" herein). Any other provision of this Declaration or the Bylaws or Articles of Incorporation of the Association to the contrary notwithstanding, neither the members, the Board of Directors nor the Association shall, by act or omission, take any of the following actions without the prior written consent of the Commission, which consent shall not be unreasonably withheld or delayed:
(a) abandon, partition, dedicate, subdivide, encumber, sell or transfer any of the Common Areas or community facilities; provided, however, that the granting of rights-of-way, easements and the like for public utilities or for other purposes consistent with the use of the Common Areas and community facilities by the members of the Association shall not be considered a transfer within the meaning of this Section; or
(b) abandon or terminate the Declaration; or
(c) modify or amend any material or substantive provision of this Declaration, or the Bylaws or the Articles of Incorporation of the Association; or
(d) merge or consolidate the Association with any other entity or sell, lease, exchange or otherwise transfer all or substantially all of the assets of the Association to any other entity; or
(e) substantially modify the method of determining and collecting assessments as provided in this Declaration.
The Commission shall have the right to bring action for any legal or equitable relief necessary to enforce the rights and powers granted to the Commission hereunder.
Section 12.10. Consents. Any other provision of this Declaration or the Bylaws or Articles of Incorporation of the Association to the contrary notwithstanding, neither the members, the Board of Directors nor the Association shall, by act or omission, take any of the following actions:
(a) abandon, partition, alienate, release, hypothecate, dedicate, subdivide, encumber, sell or transfer any of the Common Areas directly or indirectly owned by the Association unless at least fifty-one percent (51%) of the Eligible Mortgage Holders (based upon one vote for each first mortgage owned) and Lot Owners representing sixty-seven percent (67%) of the votes in the Association have given their prior written approval; provided, however, that the granting of rights-of-way, easements and the like for public utilities or for other purposes consistent with the use of the Common Areas by members of. the Association shall not be considered a transfer within the meaning of this Section; or
(b) abandon or terminate this Declaration unless at least sixty-seven percent (67%) of the Eligible Mortgage Holders (based upon one vote for each first mortgage owned) and Lot Owners representing ninety percent (90%) of the votes of the Association have given their prior written approval; or
(c) conversion of Lots into Common Area or vice versa unless sixty-seven percent (67%) of the Eligible Mortgage Holders (based upon one vote for each first mortgage owned) and Lot Owners representing ninety percent (90%) of the votes of the Association have given their prior written approval; or
(d) unless the prior written consent of fifty-one percent (51%) of the Eligible Mortgage Holders (based upon one vote for each first mortgage owned) and the requisite number of Lot Owners as~r6vided in Section 12.08 of this Declaration has been obtained, modify or amend any material provision of this Declaration, which establish, provide for, govern or regulate any of the following:
(i) voting rights;
(ii) assessments, assessment liens or subordination of such liens;
(iii) reserves for maintenance, repair and replacement of the Common Areas;
(iv) insurance or fidelity bonds;
(v) rights to use of the Common Areas by any Owner, except in accordance with Section 3.01(b);
(vi) responsibility for maintenance and repairs;
(vii) expansion or contraction of the property subject to this Declaration or the addition, annexation or withdrawal of property to or from this Declaration, except in accordance with Article II;
(viii) boundaries of any Lot;
(ix) a decision by the Association to establish self management when professional management had been previously required by an Eligible Mortgage Holder;
(x) leasing of Lots;
(xi) imposition of any restrictions on the rights of an Owner to sell or transfer his or her Lot;
(xii) restoration or repair of the project (after a hazard damage or partial condemnation) in a manner other than that specified in the documents;
(xiii) any provisions which expressly benefit mortgage holders, Eligible Mortgage Holders or insurers or guarantors.
An addition or amendment to the Declaration shall not be considered material if it is for the purpose of correcting technical errors, or for clarification only. An Eligible Mortgage Holder who receives a written request to approve such a non-material additions or amendments who fails to submit a response within thirty (30) days shall be deemed to have approved such request.
(e) substantially modify the method of determining and collecting assessments against an Owner or his/her Lot as provided in this Declaration, unless at least sixty-seven percent (67%) of the first mortgagees (based upon one vote for each first mortgage owned) or Owners (other than the Declarant) of the individual Lots in the Association have given their prior written approval; or
(f) waive or abandon any scheme of regulations, or enforcement thereof, pertaining to the architectural design or the exterior appearance of buildings or structures on the Lots, the exterior maintenance of buildings or structures on the Lots, the maintenance of the Common Areas, party walkways or common fences and driveways, or the upkeep of lawns and plantings within the Property unless at least sixty-seven percent (67%) of the first mortgagees (based upon one vote for each first mortgage owned) or Owners (other than the Declarant) of the individual Lots in the Association have given their prior written approval; or
(g) fail to maintain insurance in accordance with Section 9.02 of this Declaration unless at least fifty-one percent (51%) of the Eligible Mortgage Holders (based upon one vote for each first mortgage owned) and sixty-seven percent (67%) of the Owners have given their prior written approval; or
(h) use hazard insurance proceeds for losses to any Association Common Area for other than the repair, replacement or reconstruction of such Common Area or property, unless at least fifty-one percent (51%) of the Eligible Mortgage Holders (based upon one vote for each first mortgage owned) and sixty-seven percent (67%) of the Owners have given their prior written approval.
Section 12.11. Additional Rights of Mortgagees - Notice. The Association shall promptly notify all Eligible Mortgage Holders who hold first mortgages on any Lot for which an assessment levied pursuant to the Declaration, or any installment thereof, becomes delinquent for a period in excess of sixty (60) days and the Association shall promptly notify any Eligible Mortgage Holder who holds a first mortgage on any Lot with respect to which any default in any other provision of this Declaration remains uncured for a period in excess of sixty (60) days following the date of such default. Any failure to give any such notice shall not affect the validity or priority of any Eligible Mortgage Holder on any Lot and the protection extended in this Declaration to the holder of any such mortgage shall not be altered, modified or diminished by reason of such failure.
No suit or other proceeding may be brought to foreclose the lien for any assessment levied pursuant to this Declaration except after ten (10) days' written notice to the holder of the first mortgage on the Lot which is the subject matter of such suit or proceeding.
Any first mortgagee of any Lot may pay any taxes, utility charges or other charge levied against the Common Areas and community facilities which are in default and which may or have become a charge or lien against any of the Common Areas and community facilities and any such first mortgagee may pay any overdue premiums on any hazard insurance policy or secure new hazard insurance coverage on the lapse of any policy, with respect to the Common Areas and community facilities. Any first mortgagee who advances any such payment shall be due immediate reimbursement of the amount so advanced from the Association.
Section 12.12. Casualty Losses. In the event of substantial damage or destruction to any of the Common Areas, the Board of Directors of the Association shall give prompt written notice o~ such damage or destruction to the Eligible Mortgage Holders who hold first mortgages of record on the Lots. No provision of this Declaration or the Articles of Incorporation or the Bylaws of the Association shall entitle any member to any priority over the holder of any first mortgage of record on his/her Lot with respect to the distribution to such member of any insurance proceeds paid or payable on account of any damage or destruction of any of the Common Areas.
Section 12.13. Condemnation or Eminent Domain. In the event any part of the Common Areas is made the subject matter of any condemnation or eminent domain proceeding, or is otherwise sought to be acquired by any condemning authority, then the Board of Directors of the Association shall give ,prompt written notice of any such proceeding or proposed acquisition to the Eligible Mortgage Holders who hold first mortgages of record on the Lots. No provision of this Declaration or the Articles of Incorporation or the Bylaws of the Association shall entitle any member to any priority over the holder of any first mortgage of record on his/her Lot with respect to the distribution to such member of the proceeds of any condemnation or settlement relating to a taking of any of the Common Areas.
Section 12.14. Changes Required by Lenders. Notwithstanding any provision to the contrary contained in the Articles of Incorporation or Bylaws of the Association or this Declaration, the Declarant shall have and hereby reserves the right to make modifications, additions or deletions to the Declaration, the Articles of Incorporation and the Bylaws of the Association if such modifications, additions or deletions are required or deemed desirable by VA, FHA, FHLMC or FNMA. The Declarant further reserves the right to waive in writing any exemption, right or privilege granted or reserved to the Declarant by this Declaration or the Articles of Incorporation or the Bylaws of the Association.
Section 12.15. Taxes and Assessments. It is the intent of this Declaration that insomuch as the interests of each Owner to use and enjoy the Common Area (and any other property to which such Owner may have a right of use and enjoyment) is an interest in real property appurtenant to each Lot, the value of the interest of each Owner in such Common Area (or other property) shall be included in the assessment for each such Lot and as a result, any assessment directly against such Common Area (or other property if the Association is responsible for the real estate taxes levied thereon) should be of a nominal nature reflecting that the full value of the same should be included in the several assessments of the various Lots.
Section 12.16. Successors of Declarant. Any and all rights, reservations, easements, interests, exemptions, privileges and powers of the Declarant hereunder, or any part of them, may be assigned and transferred (exclusively or non-exclusively) by the Declarant by an instrument, in writing, without notice to the Association.
Section 12.17 No Dedication to Public Use. Nothing herein contained shall be construed as a dedication to public use or as an acceptance for maintenance of any Common Areas or community facility by any public or municipal agency, authority, or utility and no public or municipal agency, authority or utility shall have any responsibility or liability for the maintenance or operation of any of the Common Areas or community facilities.
Section 12.18. Incorporation by Reference on Resale. In the event any Owner sells or otherwise transfers any Lot, any deed purporting to effect such transfer shall contain a provision incorporating by reference the covenants, restrictions, servitudes, easements, charges and liens set forth in this Declaration.
Section 12.19. Declarant Reserved Rights. No amendment to this Declaration may remove, revoke, or modify any right, reservation or privilege of the Declarant without the prior written consent of the Declarant or any successors or assignees (pursuant to Section 12.16) of the Declarant.
Section 12.20. Streets and Roads. The roads and streets within the Community and serving the Lots will be constructed pursuant to the standards applicable to tertiary roads as required by the applicable governmental authorities of the City of Bowie as shown on the Typical Roadway Section attached hereto as Exhibit "F".
Section 12.21. Perpetuities. If any of the covenants, restrictions, or other provisions of this Declaration shall be unlawfully void, or voidable for violation of the rule against perpetuities, then such provision shall continue only until twenty-one (21) years after the death of the last survivor of the now living descendants of Elizabeth II, Queen of England.
Section 12.22. Captions and Gender. The captions contained in this Declaration are for convenience only and are not a part of this Declaration and are not intended in any way to limit or enlarge the terms and provisions of this Declaration. Whenever the context so requires, the male shall include all genders and the singular shall include the plural.
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