Oram Court HOA
Oram Court Declaration
Condominium Declaration
CONDOMINIUM DECLARATION
FOR ORAM COURT CONDOMINIUMS
THE STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS
THAT, CAO REALTY INC., nominee for AVONDALE LIMITED PARTNERSHIP an Ontario registration, dba Texas Avondale Limited Partnership, having its principal office at Suite 400, 70 University Avenue, Toronto, Ontario M5J2M4, hereinafter called "Declarant", is the Owner of that certain real property and the improvements located thereon, consisting of two (2) buildings and containing a total of twenty (20) apartment units and certain other improvements located thereon, situated in the County of Dallas, State of Texas, being described more fully on Exhibit "A" attached hereto and made a part hereof for all purposes; and
WHEREAS, Declarant desires to establish a Condominium Regime under the Uniform Condominium Act of the State of Texas according to the provisions of Chapter 82 of the Texas Property Code, herein called the "Act"; and
WHEREAS, Declarant does hereby establish a plan for the individual ownership in fee simple of estates consisting of the area or space contained in each of the Units, herein called the "Condominium Regime", in the two (2) buildings and the co-ownership by the separate Unit Owners thereof, as tenants in common, of all the remaining property, which includes both the Limited Common Elements and General Common Elements, as hereinafter defined in Paragraph 1.1 hereof, and which are hereinafter collectively referred to as the "Common Elements" or "Common Areas".
NOW, THEREFORE, Declarant does hereby submit the real property and all easements located thereon, said property and easements being described on the attached Exhibit "A", and all improvements thereon, to the provisions of the Act and the Condominium Regime, and does hereby publish and declare that the following terms, covenants, conditions, easements, restrictions, laws, limitations and obligations shall be deemed to run with the land and shall be a burden and a benefit to Declarant, its successors and assigns and to any person acquiring or owning an interest in the real property and improvements, its grantees, successors, heirs, executors, administrators, devises and assigns.
ARTICLE I
1.1 DEFINITION OF TERMS
As used in this Declaration, the following terms shall have the following meanings unless the context shall expressly provide otherwise:
a. "Association or Condominium Owners Association" means the Oram Court Homeowners Association, formed or to be formed, the By-Laws of which shall govern the administration of this Condominium Project and the membership of which shall be composed of all the Owners of the Condominium Units according to such By-Laws.
b. "Board" or "Board of Directors" shall refer to the Board of Directors of the Association.
c. “Budget” shall mean the accounting attached to the By-Laws as of the date hereof, and thereafter, as defined in the By-Laws and as determined by the Board of Directors of the Association.
d. "Buildings" are those buildings shown on the plat for the Condominium Regime and numbered “1” and “2” thereon.
e. The "By-Laws" are the set of rules adopted by the Association governing the administration of the Association's rights and responsibilities regarding this Condominium Regime.
f. "Common Assessment" means the charge against each Unit Owner and his or her Unit, representing a portion of the total costs to the Association of maintaining, improving, repairing, replacing, managing and operating the Property, which are to be paid by each Unit Owner of the Association, as provided herein. This shall also include charges assessed against each Unit Owner to maintain a reserve for replacement funds and to cover costs incurred by the Association to participate in any condemnation suit, as provided in Paragraph 6.3 hereof.
g. "Common Elements" means and includes all of the Property described in Exhibit "A" and all of the improvements thereto and thereon located, excepting all Units. Common Elements shall consist of the General Common Elements and the Limited Common Elements.
h. "Common Expenses" means and includes:
(1) All sums lawfully assessed against the Common Elements by the Managing Agent or Board;
(2) All expenses of administration and management, maintenance, operation, repair of replacement of the additions to the Common Elements (including unpaid special assessments);
(3) Expenses agreed upon as Common Expenses by the Unit Owners;
(4) Expenses declared to be Common Expenses by this Declaration or by the By-Laws; and
(5) Expenditures made or liabilities incurred by or on behalf of the Association, together with any assessments for the creation and maintenance of reserves.
i. "Condominium Unit" shall mean an individual Unit together with the interest in the Common Elements (General or Limited) appurtenant to such Unit.
j. "Declarant" shall mean CAO REALTY INC., nominee for AVONDALE LIMITED PARTNERSHIP an Ontario registration, dba Texas Avondale Limited Partnership, or its successors or assigns, which is dedicating the Property as a Condominium Regime.
k. "Declaration" shall mean this Condominium Declaration instrument.
l. "General Common Elements" means a part of the Common Elements and includes:
(1) the real property described in Exhibit "A" attached hereto and made a part hereof for all purposes, less and except the Units;
(2) the foundation, bearing walls and columns, roofs, halls, lobbies, stairways and entrances and exits or communication ways;
(3) the basement, flat roofs, yards and gardens, except as otherwise herein provided or stipulated;
(4) all premises for the lodging of janitors or persons in charge of the Buildings, except as otherwise herein provided or stipulated;
(5) all compartments or installations of central services, such as power, light, gas, cold or hot water, refrigeration, central air conditioning and central heating reservoirs, water tanks and pumps, swimming pools and the like;
(6) all the elevators and shafts, garbage incinerators and, in general, all devices or installations existing for common use; and
(7) all other elements of the Buildings desirably or rationally susceptible to common use or necessary to the existence, upkeep and safety of the Condominium Regime established by this Declaration.
m. "Lienholder(s)" and "First Mortgagee(s)" shall mean the holder of a first mortgage lien on any Unit in the Condominium Project.
n. "Limited Common Elements" means and includes those Common Elements which are reserved for the exclusive use of an individual Owner of a Unit or certain number of individual Owners of Units, for the exclusive use of those Owners, which may include:
(1) "Air handlers", pipes, ducts, electrical wiring and conduits located entirely within a Unit or adjoining Units and serving only such Unit or Units, and such portions of the perimeter walls, floors and ceilings, doors, vestibules, windows, entryway, and all associated fixtures and structures therein, as lie outside the Unit boundaries;
(2) covered parking spaces designated as an appurtenance to a Unit; and
(3) balconies, patios, storage spaces designated as an appurtenance to a Unit.
o. "Managing Agent" means any independent contractor hired by Declarant or the Association to act on behalf of the Declarant or the Association in the management and operation of the Project.
p. "Majority of Unit Owners" means those Owners with fifty-one percent (51%) of the votes entitled to be cast.
q. "Occupant" means a person or persons in possession of a Unit, regardless of whether said person is a Unit Owner.
r. "Owner" or "Unit Owner" means a person, firm, corporation, partnership, association, trust or other legal entity or any combination thereof, who owns, of record, title to one or more Condominium Units.
s. "Plat", "Survey Map", "Map" and "Plans" means or includes the engineering survey of the land, locating thereon all of the improvements, the floor and elevation plans and any other drawing or diagrammatic plan depicting a part of, or all of, the improvements, same being herewith filed, consisting of sheets, labeled Exhibit "B" and attached hereto and made a part hereof for all purposes. It is expressly agreed and each and every purchaser of a Unit, his heirs, executors, administrators, successors, assigns and grantees hereby agree that the square footage, size and dimensions of each Unit as set out or shown in this Declaration or in the Survey Maps exhibited hereto are approximate and are shown for descriptive purposes only. The Declarant does not warrant, guarantee or represent that any Unit actually contains the area, square footage or dimensions shown by the Plat thereof. Each purchaser and Owner of the Unit or interest therein agrees that the Unit has been or will be purchased as actually and physically existing at the time such purchase is closed. Each purchaser of a Unit expressly waives any claim or demand which he or she may have against the Declarant or any person whomsoever on account of any difference, shortage or discrepancy between the Unit as actually and physically existing and as it is shown on the respective Plat thereof exhibited hereto. It is specifically agreed that in interpreting deeds, mortgages, deeds of trust and other instruments for any purposes whatsoever or in connection with any matter, the existing physical boundaries shall control, regardless of settling, rising or lateral movements of the Buildings, and regardless of variances between boundaries as shown on the Plat and those of the Buildings.
t. "Premises", "Project" or "Property" means and includes the land described on Exhibit "A", the Buildings and all improvements and structures thereon and all rights, easements and appurtenances belonging thereto.
u. “Rules” shall mean the Rules as promulgated by the Association, pursuant to the Bylaws, as amended from time to time.
v. "Special Assessments". In addition to the common assessments described above, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of deferring, in whole or in part:
(1) the cost of any construction, repair or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto; or
(2) the expense of any other contingencies or unbudgeted costs;
provided that any such assessment shall have the assent of sixty seven percent (67%) of the votes of the Unit Owners who are voting in person or by proxy at a meeting duly called for this purpose. Any amounts assessed pursuant hereto shall be assessed to Owners in proportion to the interest in the Common Elements owned by each. The Association, after due notice and hearing, shall also have the authority to establish and fix a special assessment upon any Unit to secure the liability of the Owner of such Unit to the Association for any breach by such Owner of any of the provisions of this Declaration, which breach shall require an expenditure by the Association for repair or remedy. Special assessments may be billed or collected on a monthly basis.
w. "Unit" shall mean the elements of an individual residential apartment located in the Project which elements are not owned in common with the Owners of the other residential apartments in the Project as shown on the Maps, and each Unit shall include the air space assigned thereto. The boundaries of each such Unit shall be and are the interior surfaces of the perimeter walls, floors, ceilings, window frames and trim, the exterior surfaces of the Unit's balconies and terraces, if any; and the space includes both the portions of the Building so described and the air space so encompassed, excepting the Common Elements. In interpreting deeds, mortgages, deeds of trust and other instruments, the existing physical boundaries of the Unit shall be conclusively presumed to be its boundaries, regardless of settling, rising or lateral movement of the Buildings and regardless of variances between boundaries when on the Plat and those of the Buildings. The individual ownership of each Unit space herein defined shall further include the interior construction, partitions, appliances, fixtures and improvements which are intended to exclusively serve each Unit space, such as interior room walls, floor coverings or finish, closets, cabinets, shelving, individual bathroom and kitchen fixtures, plumbing and appliances, individual lighting and electrical fixtures and other separate items or chattels belonging exclusively to such Unit, any of which may be removed, replaced, disposed of or otherwise treated without affecting any other Unit space or ownership, use or enjoyment thereof. None of the land in this Project on which any unit space is located shall be separately owned, as all land in this Project shall constitute part of the "Common Elements" of the Property as herein defined, and shall be owned in common by the Owners of the Units in this Condominium Project. It is intended the term "Unit", as used in this Declaration, shall have the same meaning as the term "Unit" as used in the Act.
ARTICLE II
CONDOMINIUM UNIT DESIGNATIONS AND DESCRIPTIONS
2.1 DESIGNATION OF UNITS
The property is hereby divided into twenty (20) separately designated Units contained within the two (2) Buildings. Each Unit is identified by number and each Building is identified by number “1” and “2” on the Map. The remaining portion of the Premises, referred to as the Common Elements, shall be owned in common by the Owners. The Owners of each Unit shall own an undivided interest in said Common Elements, the percentage or fraction thereof for each Unit being as shown on the attached Exhibit "C". The undivided interest of the Common Elements, the Common Expense liability and votes in the Association allocated to each Unit have been allocated as follows:
a. The undivided interest in the Common Elements is based upon a ratio, the denominator of which is the total square footage of the Property and the numerator of which is the estimated square footage of each particular Unit;
b. The percentage of liability for each Owner for the Common Expenses is on the same basis as determined in 2.1a above;
c. The number of votes in the Association is determined on the basis of the total number of Units, ie, one vote per Unit.
2.2 LIMITED COMMON ELEMENTS
Portions of the common elements are set aside and reserved for the exclusive use of the individual Owners, such areas being Limited Common Elements. The Limited Common Elements reserved for the exclusive usage of the individual Owners are the assigned garages, covered parking spaces, patios, balconies and storage spaces, if any such spaces and structures are allocated and assigned by the Declarant to the respective Units, as indicated on the Plat. Such Limited Common Elements shall be used in connection with the particular Unit, exclusive of the use thereof by other Owners, except by invitation.
2.3 REGULATION OF COMMON AREAS
Portions of the Common Areas are intended as recreation areas, and are improved with green areas, swimming pool(s) and other facilities. The rules governing the use of such facilities by Owners and by their guests and invitees. The rules shall be permanently posted at the office and/or elsewhere in said recreational areas, and all Owners shall be furnished with a copy thereof. Each Owner shall be required to strictly comply with the rules and shall be responsible to the Association for the compliance therewith by the members of their respective families, relatives, guests or invitees, both minor and adult.
2.4 INSEPARABLE UNITS
Each unit and its corresponding pro-rata interest in and to the Common Elements appurtenant thereto shall be inseparable and may not be conveyed, leased or encumbered separately, and shall at all times remain indivisible.
2.5 DESCRIPTIONS
Every deed, lease, mortgage, trust deed or other instrument may legally describe a Condominium Unit by its identifying Building Letter and Unit Number, as shown on the Map, followed by the words "Oram Court Condominiums", and by reference to this recorded Declaration and Map. Every such description shall be deemed good and sufficient for all purposes to convey, transfer, encumber or otherwise affect the Common Elements.
2.6 ENCROACHMENTS
If any portion of the Common Elements encroaches upon a Unit or Units, a valid easement for the encroachment and for the maintenance of same, so long as it stands, shall and does exist. If any portion or portions of a Unit or Units encroach upon the Common Elements, a valid easement for the encroachment and for the maintenance of same, so long as it stands shall and does exist. A valid easement also exists to that portion of the General Common Elements occupied by any part of an Owner's Unit not contained within the physical boundaries of such Unit, including, but not limited to, space occupied by heating and air conditioning equipment, utility lines and similar equipment which serve only one Unit. For title or other purposes, such encroachments and easements shall not be considered or determined to be encumbrances either on the Common Elements or the individual Units.
2.7 GOVERNMENTAL ASSESSMENT
Declarant shall give written notice to the Assessor's Office of the creation of Condominium Ownership of this Property, as is provided by law, so that each Unit and its percentage or fraction of undivided interest in the Common Elements shall be deemed a separate parcel and subject to separate assessment and taxation.
2.8 USE AND OCCUPANCY RESTRICTIONS
a. Subject to the provisions of this Declaration, the By-Laws and the Rules, no part of the Property may be used for purposes other than housing and the related common purposes for which the Property was designed. Each Unit or any two (2) or more adjoining Units used together shall be used for residential purposes or such other uses permitted by this Declaration, and for no other purposes.
b. That part of the Common Elements separating and located between and exclusively serving two (2) or more adjacent Units used together (including, without limitation, portions of any hallway and any walls) may be altered with the written consent of the Board, as provided in Paragraph 3.8 herein, to afford ingress to and egress from such Units and to afford privacy to the Occupants of such Units when using such Common Elements, and that part of the Common Elements so altered may be used by the Unit Owner or Owners of such Units as a licensee pursuant to a license agreement with the Association, provided:
(1) The expense of making such alterations shall be paid in full by the Unit Owner or Owners making such alterations;
(2) Such Unit Owner or Owners shall pay in full the expense of restoring such Common Elements to their condition prior to such alteration in the event such Units shall cease to be used together, as aforesaid; and
(3) Such alteration shall not interfere with the use and enjoyment of the Common Elements (other than the aforesaid part of the Common Elements separating such adjacent Units), including, without limitation, reasonable access and ingress to and egress from the other Units in the hallway affected by such alteration.
c. The Common Elements shall be used only by the Unit Owners and their agents, servants, tenants, family members, customers, invitees and licensees for access, ingress to and egress from the respective Units and for other purposes incidental to use of the Units; provided, however, receiving rooms, swimming pools and any other areas designed for specific use shall be used for the purposes approved by the Board.
d. The use, maintenance and operations of the Common Elements shall not be obstructed, damaged or unreasonably interfered with by any Unit Owner, and may be subject to lease, concession or easement, presently in existence or entered into by the Board at some future time.
e. Without limiting the generality of the foregoing provisions of this Paragraph 2.8, use of the Property by the Unit Owners shall be subject to the Rules as amended from time to time.
f. In order that Declarant may establish the Property as a fully occupied Condominium, no Unit Owner nor the Association shall do anything to interfere with, and nothing in the Declaration shall be understood or construed to:
(1) Prevent Declarant, its successors or assigns, or its or their contractors or subcontractors, from doing in any Unit owned by them whatever they determine to be necessary or advisable in connection with the completion of any work thereon;
(2) Prevent Declarant, its successors or assigns, or its or their representatives, from erecting, constructing and maintaining on the Common Elements or any Unit owned or controlled by Declarant, its successors or assigns, or its or their contractors or subcontractors, such structures as may be reasonably necessary for the conduct of its or their business of completing any work and establishing the Property as a condominium and disposing of the same by sale, lease or otherwise;
(3) Prevent Declarant, its successors or assigns, or its or their contractors or subcontractors, from maintaining a sign or signs for marketing Units in the Property.
ARTICLE III
RIGHTS AND OBLIGATIONS OF OWNERSHIP
3.1 OWNERSHIP
A Condominium Unit will be a fee simple estate and may be held and owned by any person, firm, corporation or other entity singularly, as joint tenants, as tenants in common, or in any real property tenancy relationship recognized under the laws of the State of Texas.
3.2 PARTITION
The Common Elements (both General and Limited) shall be owned in common by all of the Owners of the Condominium Units and shall remain undivided, and no Owner shall bring any action for partition or division of the Common Elements other than that as specifically provided for hereinafter in Paragraph 6.2, "Judicial Partition".
3.3 EXCLUSIVENESS OF OWNERSHIP
Each Owner shall be entitled to exclusive ownership and possession of his Unit. Each Owner shall use the Common Elements for the right of ingress to and egress from the Owner's Unit and otherwise, in accordance with the purpose for which they are intended, without hindering or encroaching upon the lawful rights of the other Owners. Such rights are perpetual and appurtenant to the Unit ownership.
3.4 ONE-FAMILY RESIDENTIAL DWELLING
Each Condominium Unit shall be occupied and used or leased by the Owner only as and for a residential dwelling for the Owner, his family, his social guest or his tenants.
3.5 MECHANIC'S AND MATERIALMAN'S LIENS
No labor performed or materials furnished and incorporated in a Unit, notwithstanding the consent or request of the Owner, his agent, contractor or subcontractor, shall be the basis for filing of a lien against the Common Elements owned by such other Owners. Each Owner shall indemnify and hold harmless each of the other Owners from and against all liability arising from the claim of any lien against the Unit of any other Owner or against the Common Elements for construction performed or for labor, materials, services or other products incorporated in the Owner's Unit at such Owner's request.
3.6 RIGHT OF ENTRYWAY
The Association shall have the irrevocable right to have access to each Unit from time to time during reasonable hours as may be deemed necessary for the maintenance, repair or replacement of the Unit or any of the Common Elements therein or accessible here from, or at any time for making emergency repairs therein necessary to prevent damage to the Common Elements or to another Unit or Units.
3.7 OWNER MAINTENANCE
An Owner shall maintain and keep in repair the interior of his own Unit, including the fixtures thereof. All fixtures and equipment installed with the Unit, commencing at a point where the utility lines, pipes, wires, conduits or systems (which for brevity are hereafter referred to as "utilities") enter the Unit, shall be maintained and kept in repair by the Owner thereof; and an Owner shall be obligated to promptly repair and replace any broken or cracked glass in windows and doors. An Owner shall be totally responsible for his own heating and cooling system.
3.8 ALTERATION
An Owner shall do no act nor any work that will impair the structural soundness and integrity of the Building or impair any easement or hereditament. No Owner shall in any way alter, modify, add to or otherwise perform any work whatever upon any of the Common Elements, Limited or General, without the prior written consent and approval in writing by the Board of Directors. Any such alteration or modification shall be in harmony with the external design and location of the surrounding structures and topography, and shall not be considered until submission to the Association of complete plans and specifications showing the nature, kind, shape, size, materials, color and location for all proposed work. The Board shall have the obligation to answer within forty (40) days after receipt of notice of the proposed alterations. Failure to so answer within the stipulated time shall mean that there is no objection to the proposed alteration or modification.
3.9 RESTRICTION OF OWNERSHIP
As a restriction of the ownership provisions set forth in Paragraph 1.1w, "Unit", an Owner shall not be deemed to own the unfinished surfaces of the perimeter walls, floors, ceilings and roofs surrounding the Unit, nor shall such Owner be deemed to own the utilities running though his Unit which are utilized for, or serve, more than one (1) Unit, except as a tenant in common with the other Owners. An Owner shall be deemed to own and shall maintain the inner, finished surfaces of the perimeter and interior walls, floors, and ceilings, doors, windows and other such elements consisting of paint, wallpaper and other such finishing material.
3.10 LIABILITY FOR NEGLIGENT ACTS
In the event the need for maintenance or repair is caused through the willful or negligent act of an Owner, his family, guests or invitees, and is not covered or paid for by insurance, either on such Unit or the Common Elements, the cost of such maintenance or repairs shall be added to and become a part of the assessment to which such Unit is subject, pursuant to Article V hereof. Such liability is limited to the liability Owner has under Texas law.
3.11 SUBJECT TO DECLARATION AND BY-LAWS
Each Owner and the Association shall comply strictly with the provisions of this Declaration, the By-Laws and the decisions and resolutions of the Association adopted pursuant thereto, as the same may be lawfully amended from time to time. Failure to comply with any of the same shall be grounds for an action to recover sums due for damages or for injunctive relief, or both, maintainable by the Association on behalf of the Owners or, in proper case, by an aggrieved Owner against another Owner or against the Association.
3.12 DECLARANT AS OWNER
When there are unsold Units, the Declarant shall enjoy the same rights and assumes the same duties as any other Unit Owner, subject to Article IV hereof.
ARTICLE IV
MANAGEMENT AND ADMINISTRATION
4.1 BY-LAWS
The administration of this Condominium Property shall be governed by the By-Laws of the Association. An Owner of a Condominium Unit, upon becoming an Owner, shall be a member of the Association and, prior to the sale of the first Unit, a Board of Directors shall be formed with Directors being duly appointed or elected, pursuant to the terms and conditions of the By-Laws. In addition, the Association may enter into a management agreement upon the terms and conditions established in the By-Laws, and said management agreement shall be consistent with this Declaration.
4.2 DECLARANT CONTROL
Paragraph 4.1 notwithstanding, and for the benefit and protection of the Unit Owners and any First Mortgagees of record for the sole purpose of insuring a timely sellout of the Condominium Project, the Declarant will retain control of and over the Association for a maximum period not to exceed a) three (3) years after the conveyance of the first (1st) Unit; or b) One Hundred Twenty (120) days after seventy five percent (75%) of the Units have been sold; or c) when in the sole opinion of the Declarant, the Project becomes viable, self-supporting and operational, whichever occurs first ("Declarant Control Period"). Provided, however, that upon the expiration of One Hundred Twenty (120) days from the date that fifty percent (50%) of all Units are sold, one half (1/2) of the Board shall be elected by Unit Owners. It is expressly understood that Declarant will not use said control for any advantage over the Unit Owners by way of retention of any residual rights or interests in the Association or through the creation of any management agreement with a term longer than one (1) year without majority Association approval, upon relinquishment of Declarant Control.
4.3 TEMPORARY MANAGING AGENT
During the period of administration of this Condominium Regime by Declarant, the Declarant may employ or designate a temporary manager or managing agent, who shall have and possess all of the skills, powers, authority, functions and duties as may be specified in the contract of employment or as may be delegated by Declarant to him. The Declarant may pay such temporary manager or managing agent such compensation it may deem reasonable for the services to be rendered, which compensation shall constitute a part of the Common Expenses of this Condominium Regime and shall be paid out of the Association budget.
4.4 DECLARANT RIGHTS
Declarant hereby reserves the right to (i) maintain sales, management and leasing offices, as well as to erect signs advertising the Units and for the purpose of operating the Project; (ii) to use easements through the Common Elements for the purpose of making improvements within the Project; (iii) appoint or remove any officer or board member of the Association during any period of Declarant Control.
4.5 SPECIFIC POWER TO RESTRICT USE AND ENJOYMENT
Every Owner and the Declarant shall have a beneficial interest of use and enjoyment in the Common Elements subject to the following limitations, restrictions and provisions:
a. The right of the Association to publish rules and regulations governing use of the Common Areas and the Improvements and facilities located thereon, and to establish and enforce sanctions and penalties for infractions thereof, which may include the power to suspend the right of an Owner or Occupant to the use of the recreational facilities;
b. The right of the Association to charge reasonable fees for the use of facilities within the Common Area, if such facilities are not used by all Owners equally;
c. The right of the Association to borrow money and mortgage the Common Area and improvements for the purpose of improving the Common Area and facilities and in aid thereof to mortgage said Property; providing, however, that the rights of any such Mortgagee in such Property shall be subordinate to the rights of the Owners hereunder, and in no event shall any such Mortgagee have the right to terminate the Condominium Regime established by this Declaration;
d. The right and duty of the Association to suspend the voting rights of an Owner, and the right to the use of the recreational facilities by an Owner or utility service to an Owner for any period during which any assessment against the Owner's Condominium Unit remains unpaid;
e. The right of Declarant or the Association after the Declarant Control Period to dedicate or transfer all or any part of the Common Area for utility easements to any public agency, authority or utility for the purpose, and subject to the conditions, of such agency, authority or utility which are reasonably necessary to the ongoing development and operation of the Condominium Project. No such dedication or transfer shall be effective unless approved by all First Mortgagees and two-thirds (2/3) vote of the quorum of Owners present at a meeting of the Association specifically called for the purpose of approving any such dedication or transfer, and unless an instrument signed by the Board of Directors reflecting such vote of the Owners agreeing to such dedication or transfer and First Mortgagee approval has been duly recorded in the Real Property Records of Dallas County, Texas;
f. The right of the Association to adopt, implement and maintain a private security system for the Premises consistent with applicable laws;
g. The right of the Association to establish rules and regulations governing traffic within the Common Area, and to establish sanctions for any violation or violations of such rules and regulations;
h. The right of the Association to regulate noise within the Premises, including, without limitation, the right of the Association to require mufflers or engines and prohibit the use of devices producing excessive noise; and
i. The right of the Association to control the visual attractiveness of the Property, including, without limitation, the right to require Owners to eliminate objects which are visible from the Common Area and which, in the Association's judgment, detract from the visual attractiveness of the Property.
j. The right of the Association to enter onto into any Unit to perform emergency repairs, or do other work necessary for the maintenance of the Project.
k. The right of the Association to grant permits, licenses and easements over the Common Elements for utilities, roads, and other purposes necessary for the proper operation of the Project.
l. All other rights set forth in the Bylaws, the Rules and the Act.
4.6 MEMBERSHIP, VOTING, QUORUM, PROXIES
a. Membership. Any person, on becoming an Owner of a Condominium Unit, shall automatically become a member (“Member”) of the Association. Such membership shall terminate without any formal Association action whenever such person ceases to own a Condominium Unit, but such termination shall not relieve or release any such former Owner from any liability or obligation incurred under or in any way connected with the Condominium Regime, the Unit previously owned, or the terms and provisions hereof, during the period of such ownership and membership in the Association, or impair any rights or remedies which the Board of Directors of the Association or others may have against such former Owner and Member arising out of or in any way connected with such ownership and membership and the covenants and obligations incident thereto. No certificates of stock shall be issued by the Association, but the Board of Directors may, if it so elects, issue one (1) membership card to the Owner(s) of a Condominium Unit. Such membership card shall be surrendered to the Secretary whenever ownership of the Condominium Unit designated thereon shall terminate.
b. Voting. Unit ownership shall entitle the Owner(s) to cast one (1) vote per Unit in the affairs of the Association, which vote will be weighted to equal the proportionate share of ownership of the Unit Owner in the Common Elements. Voting shall not be split among more than one (1) Unit Owner.
c. Quorum. Twenty percent (20%) or more of the Unit Owners as defined in Article I shall constitute a quorum.
d. Proxies. Votes may be cast in person or by proxy. Proxies may be filed with the Secretary before the appointed time of each meeting.
4.7 INSURANCE
a. The Association shall obtain and maintain at all times insurance of the type and kind provided by Sections 82.111 of the Act and as provided hereinafter, including such other risks, of a similar or dissimilar nature, as are or shall hereafter customarily be covered with respect to any Buildings, fixtures, equipment and personal property, similar in construction, design and use, issued by responsible insurance companies authorized to do business in the State of Texas. The insurance shall be carried in blanket policy form naming the Association as Trustee of the Unit Owners and all mortgagees as the insured. In addition, each policy or policies shall identify the interest of each Condominium Unit Owner and shall provide for a standard, noncontributory mortgage clause in favor of each First Mortgagee. Further, the policy shall insure against loss or damage by fire, vandalism, malicious mischief or such other hazards as are covered under standard extended coverage provisions for the full insurable replacement cost of the Common Elements and the Units , and against such other hazards and for such amounts as the Board may deem advisable or as a Lienholder may require. Each Owner irrevocably designates the Association, as Attorney-In-Fact, to purchase and maintain such insurance and to administer and distribute such proceeds in the amount and manner as is elsewhere provided in this Declaration. Such insurance policy shall also provide that coverage cannot be canceled by either the insured or the insurance company until after thirty (30) days prior written notice has been given to the Association and each First Mortgagee. The Board of Directors shall, upon request of any Owner or First Mortgagee, furnish a certified copy of each blanket policy and a separate certificate identifying the interest of the mortgagor.
b. The Association shall keep a comprehensive policy or policies of public liability insurance covering the Common Elements of the Project and such policy or policies shall include a "Severability of Interest Endorsement" or equivalent coverage which will preclude the insurer from denying the claim of a Unit Owner because of negligent acts by the Association, its Board of Directors or a Unit Owner. Such policy or policies shall be in amounts of not less than One Million Dollars ($1,000,000.00) per person, Three Hundred Thousand Dollars ($300,000.00) per accident and Fifty Thousand Dollars ($50,000.00) property damage, plus an umbrella policy for not less than the Board recommends, or as required by a Lienholder, for all claims for personal injury, including death, and/or property damage arising out of a single occurrence; and the policy shall include water damage liability, liability for non-owned and hired automobiles, liability for property of others, host liquor liability and such other coverage as is customarily deemed necessary with respect to projects similar in nature.
c. The Association shall keep a policy or policies of (i) liability insurance insuring the Board of Directors, officers and employees of the Association against any claims, losses, liabilities, damages or causes of action arising out of , or in connection with, or resulting from any act done or omission to act by any such person or entities, (ii) worker's compensation as required under the laws of the State of Texas, and (iii) such other insurance as deemed reasonable and necessary in order to protect the Project, the Unit Owners and the Association.
d. The Association shall be responsible for obtaining insurance upon the Units, including all fixtures, installations or additions thereto contained within the unfinished interior surfaces of the perimeter walls, floors and ceilings of such Units, as initially installed or replacements thereof. The Association shall not be responsible for procurement or maintenance of any insurance covering the liability of any Unit Owner not caused by or connected with the Association's operation or maintenance of the Project. Each Unit Owner may obtain additional insurance at his own expense for his own benefit. Insurance coverage on the furnishings and other items of personal property belonging to a Unit Owner and casualty and public liability insurance coverage within each Unit are specifically made the responsibility of each Unit Owner, and each Unit Owner must furnish a copy of his insurance policy to the Association.
e. Any insurance obtained by the Association or a Unit Owner shall contain appropriate provisions whereby the insurer waives its right of subrogation as to any claims against the Unit Owners, the Association or their respective servants, agents or guests.
ARTICLE V
MAINTENANCE ASSESSMENTS
5.1 ASSESSMENTS FOR COMMON ELEMENTS
All Owners shall be obligated to pay the estimated assessments imposed by the Association to meet the Common Expenses. Assessments for the estimated Common Expenses shall be due monthly in advance on or before the first (1st) day of each month. Failure to pay by the tenth (10th) day of each month shall require the imposition and assessment of a late charge of Ten and No/100 Dollars ($10.00). Contribution for monthly assessments shall be prorated if the ownership of a Condominium Unit commences on a day other than the first (1st) day of a month.
5.2 PURPOSE OF ASSESSMENTS
The assessments levied by the Association shall be used exclusively for the purposes of promoting the health, safety, welfare and recreation of the residents in the Property, and in particular for the improvement, maintenance and preservation of the Property, the services of the facilities devoted to said purposes that are related to the use and enjoyment of both Common Elements and the Units situated upon the Property. Such uses may include, but are not limited to , the cost to the Association of the following: fire, extended coverage, vandalism, malicious mischief and liability insurance for the Condominium Units; management costs; taxes, legal and accounting fees as may from time to time be authorized by the Association; construction of other facilities; maintenance of easements upon, constituting a part of, appurtenant to , or for the benefit of the Property; mowing grass, caring for the grounds and landscaping; caring for the swimming pool(s) and equipment; caring for the roof and exterior surface of the Building; garbage pickup; pest control; street maintenance; outdoor lighting; security service for the Property; water and sewer service furnished to the Property by or through the Association; discharge of any liens on the Common Elements ; and other charges required by this Condominium Declaration, or other charges that the Association is authorized to incur. In addition, the Association shall establish an adequate reserve for repair, maintenance, replacement and other charges as specified herein.
5.3 DETERMINATION OF ASSESSMENTS
The assessments shall be determined by the Board of Directors based upon the cash requirements necessary to provide for the payment of all estimated expenses growing out of or connected with the maintenance and operation of Common Elements. Upon the recordation of this Declaration, the initial Board of Directors shall establish a budget for the operation and maintenance of the Project, which budget shall set forth the Board’s reasonable estimate of all expenses which the Association will incur in such operation and maintenance for the remainder of the year. This determination may include, among other items, taxes, governmental assessments, landscaping and grounds care, Common Area lighting, repairs and renovation, garbage collections, wages, water charges, legal and accounting fees, management costs and fees, expenses and liabilities incurred by the Association under or by reason of this Declaration, expenses incurred in the operation and maintenance of recreation and administrative facilities, payment of any deficit remaining from a previous period and the creation of a reserve contingency fund. The omission or failure of the Board to fix the assessment for any month shall not be deemed a waiver, modification or a release of the Owners from the obligations to pay.
5.4 INITIAL ASSESSMENT AND MAXIMUM MONTHLY ASSESSMENT
a. The monthly assessments shall be made according to each Owner's proportionate or percentage interest in and to the Common Elements provided in Exhibit "C" attached hereto.
b. There is hereby assessed against each Unit and the Owners thereof, an initial Common Assessment equal to twice the respective percentage ownership interest in and to the Common Elements provided in Exhibit "C" hereto, multiplied by the first annual budget initially adopted by the Board of Directors, for the purpose set forth hereinabove, divided by twelve (herein called the "Working Capital Fund"). Within sixty (60) days after the first Unit is sold, Declarant shall pay into the Working Capital Fund the amount chargeable to each unsold Unit. Such payments by Declarant shall, however, be reimbursed to the Declarant pro rata at the closing of the sale of said unsold Units by the Purchaser thereof. The Declarant shall be prohibited from using the Working Capital Fund, or any portion thereof, to defray any of its expenses, reserve contributions, or construction costs, to make up any budget deficits, while it is in the control of the Association.
c. As of January 1st of any year following the conveyance of the first (1st) Condominium Unit to an Owner other than the Declarant, the Board of Directors may set the monthly assessment for the next succeeding twelve (12) month period at an amount which shall not exceed one hundred twenty percent (120%) of the monthly assessment allowed for January of the preceding year. If the Board determines at any time during the calendar year that a greater increase of the monthly assessment is required to adequately perform the duties and responsibilities of the Association and pay all expenses thereof, then the Board may call a special meeting of the Owners. By the assent of a sixty seven percent (67%) vote of the quorum of Owners, present at such meeting, the monthly assessment may be set at whatever level such Owners approve. The new assessment shall become the basis for future annual increases, using the one hundred twenty percent (120%) formula, as above outlined.
d. The Board of Directors shall have authority to lower the monthly assessment, if it deems feasible.
5.5 SPECIAL ASSESSMENTS FOR IMPROVEMENTS
In addition to the annual assessments authorized above, at any time the Association may levy in any calendar year a Special Assessment. The Declarant will be treated as all other Unit Owners for purposes of Special Assessments.
5.6 COMMENCEMENT OF ASSESSMENTS
The monthly assessments provided for herein shall be due on the first (1st) day of the month commencing on a date established by Declarant. The Board shall fix the amount of the monthly assessments against such Unit at least thirty (30) days prior to January 1st of each year; provided, however, that the Board shall have a right to adjust the monthly assessments, as long as any such adjustment does not exceed the provisions hereof. Written notice of the monthly assessment adjustment shall be sent to each Unit Owner subject thereto. The due date shall be established by the Board, and unless otherwise provided or unless otherwise agreed by the Association, the Board shall collect the assessments monthly in accordance with Paragraph 5.1 hereof.
5.7 NO EXEMPTION
No Owner may exempt himself from liability for his contribution towards the Common Expenses by waiver of the use or enjoyment of any of the General or Limited Common Elements or by abandonment of his Unit.
5.8 LIEN FOR ASSESSMENTS
a. All sums assessed but unpaid by a Unit Owner for its share of Common and Special Assessments, including interest thereon at the highest rate allowed by law, shall constitute a lien on such Unit superior (prior) to all other liens and encumbrances except only for:
(1) All taxes and special assessments levied by governmental and taxing authorities; and
(2) All liens securing sums due or to become due under any duly recorded mortgage, vendor's lien or deed of trust.
b. To evidence such lien the Association may, but shall not be required to, prepare written notice setting forth the amount of such unpaid indebtedness, the named Owner of the Condominium Unit and a description of the Condominium Unit. Such notice shall be signed by one (1) of the Board of Directors and may be recorded in the Office of the Clerk and Recorder of Dallas County, Texas. Such lien for the Common and/or Special Assessments shall attach from the date of the failure of payment of the assessment. Such lien may be enforced by nonjudicial or judicial foreclosure of the defaulting Owner's Condominium Unit by the Association. Any such nonjudicial foreclosure sale is to be conducted in accordance with the provisions applicable to the exercise of powers of sale in deeds of trust, as set forth in Section 51.002 of the Texas Property Code of the Revised Civil Statutes of the State of Texas, or in any manner permitted by law. Each Owner, by accepting a deed to his Unit, expressly grants to the Association a power of sale, as set forth in said Section 51.002 of the Texas Property Code, in connection with the assessment lien. In any such foreclosure, the Owner shall be required to pay the costs and expenses of such proceedings, the costs and expenses for filing the notice or claim of lien and all reasonable attorney's fees. The Owner shall also be required to pay to the Association a reasonable rental for the Condominium Unit during the period of foreclosure, and the Association shall have the power to bid on the Condominium Unit at foreclosure sale and to acquire and hold, lease, mortgage and convey same.
c. The amount of any Common and Special Assessments assessed each Condominium Unit shall also be a debt of the Owner thereof at the time the assessment is made. Suit to recover a money judgment for unpaid Common and Special Assessments shall be maintainable without foreclosing or waiving the lien securing same.
d. In addition, to the extent permitted by law, Declarant reserves and assigns to the Association, without recourse, a vendor's lien against each Unit to secure payment of a Common Assessment or Special Assessment which is levied pursuant to the terms hereof. Said liens may be enforced by appropriate judicial proceedings and the expenses incurred in connection therewith, including, but not limited to, interest, costs and reasonable attorney's fees, shall be chargeable to the Owner in default. Such lien shall be subordinate and inferior to those liens listed in Subparagraphs 5.8a(1) and (2).
e. Any encumbrancer holding a lien on a Condominium Unit may pay any unpaid Common Expenses payable with respect to such Unit, and upon such payment, such encumbrancer shall have lien on such Unit for the amount paid of the same rank as the lien of his encumbrance.
5.9 SUBORDINATION OF THE LIEN TO MORTGAGES
The lien of the assessments provided for herein shall be subordinate to the lien of any recorded mortgage or mortgages or vendor's lien granted or created by the Owner of any Condominium Unit to secure the payment of monies advanced and used for the purpose of purchasing and/or improving such Unit. Sale or transfer of any Unit shall not affect the assessment lien; provided, however, that the sale or transfer of any Condominium Unit pursuant to a foreclosure, a deed in lieu of foreclosure, reassignment in lieu of foreclosure under such purchase money or improvement mortgages or deeds of trust shall extinguish the lien of such assessments as to payments thereof coming due prior to such sale or transfer, except for claims for its pro-rata share of such assessments resulting from a reallocation among all Units, which reallocation, if necessary, will require a readjustment of the common assessment as provided in Paragraph 5.4c. No sale or transfer shall relieve such Condominium Unit, or the Owners thereof, from liability for any assessments thereafter becoming due or from the lien thereof.
5.10 STATEMENT OF ASSESSMENTS
Upon the written request of any encumbrancer or prospective encumbrancer of a Condominium Unit or the guarantor or insurer of said encumbrance, the Association, by its Board of Directors, shall issue a written statement setting forth the unpaid assessments, if any, with respect to the subject Unit, the amount of the current monthly assessments, the date of such assessment and the due date, credit for advance payments or for prepaid items, including, but not limited to, insurance premiums, which shall be conclusive upon the Association in favor of all persons who rely thereon in good faith. Unless such request for a statement of indebtedness shall be complied with within ten (10) days, all unpaid assessments which become due prior to the date of making such request shall be subordinate to the lien of the person requesting such statement. The purchaser, donee or other transferee of a Unit, by deed or other writing (herein called "Grantee"), shall be jointly and severally liable with the transferor of such Unit (therein called "Grantor") for all unpaid assessments against the latter of his proportionate share of the Common Expenses up to the time of the grant or conveyance, without prejudice to the Grantee's rights to recover from Grantor the amounts paid by the Grantee, but such transferee shall be personally liable only if he expressly assumes such liability. The Grantee shall be entitled to a statement from the Board of Directors, setting forth the amount of unpaid assessments, if any, with respect to the subject Unit, the amount of the current monthly assessment and the date such assessment becomes due, as well as any credit for advanced payments or for prepaid items, including, but not limited to, insurance premiums. This statement shall be conclusive upon the Association. Unless such request for a statement of indebtedness shall be complied with within ten (10) days of such request, such Grantee shall not be liable for, nor shall the Unit conveyed be subject to a lien for, any unpaid assessments against the subject Condominium Unit accruing prior to such ten (10) day period.
ARTICLE VI
DESTRUCTION OR OBSOLESCENCE OF IMPROVEMENTS
6.1 DESTRUCTION OR OBSOLESCENCE
a. This Declaration hereby makes mandatory the irrevocable appointment of an Attorney In Fact to deal with the Property upon its destruction, obsolescence or condemnation. Title to any Condominium Unit is declared and expressly made subject to the terms and conditions hereof, and acceptance by any Grantee of a deed from Declarant or from any Owner shall constitute appointment of the Attorney In Fact herein provided. All of the Owners irrevocably constitute and appoint the Association, or its successor non-profit corporation, if same be hereafter organized, their true and lawful Attorney in their name, place and stead, for the purpose of dealing with the Property upon its destruction, obsolescence or condemnation, as hereinafter provided. As Attorney In Fact, the Association, by its authorized officers shall have full and complete authorization, right and power to make, execute and deliver any contract, deed or any other instrument with respect to the interest of a Condominium Unit Owner which is necessary and appropriate to exercise the powers herein granted.
b. Repair and reconstruction of the improvement(s), as used in the succeeding subparagraphs, means restoring the improvement(s) to substantially the same condition in existence prior to the damage, with each Unit and Common Elements having the same vertical and horizontal boundaries as before. The proceeds of any insurance collected shall be made available to the Association for the purpose of repair, restoration or replacements, unless all of the Owners and all of the First Mortgagees agree not to rebuild in accordance with the provisions set forth hereinafter:
(1) In the event of damage or destruction due to fire or other disaster, the insurance proceeds, if sufficient to reconstruct the improvement(s) shall be applied by the Association, as Attorney In Fact, to such reconstruction, and the improvement(s) shall be promptly repaired and reconstructed.
(2) If the insurance proceeds are insufficient to repair and reconstruct the improvement(s), and if such damage is less than sixty-six and two thirds percent (66-2/3%) of all the Common Elements not including land, such damage or destruction shall be promptly repaired and reconstructed by the Association, as Attorney In Fact, using the proceeds of insurance and the proceeds of an assessment to be made against all the Owners and their Condominium Units. Such deficiency assessment shall be a Special Assessment made pro rata according to each Owner's proportionate interest in and to the Common Elements and shall be due and payable within thirty (30) days after written notice thereof. The Association shall have the authority to cause the repair or restoration of the improvements using all of the insurance proceeds for such purpose notwithstanding the failure of an Owner to pay the assessment. The assessment provided for herein shall be a debt of each Owner and a lien on his Condominium Unit and may be enforced and collected as is provided in Article V hereof. The lien provided for herein shall be subordinate to any recorded first mortgage lien, as provided in Paragraph 5.9 of this Declaration. Should the Association choose to foreclose said lien, as provided in Article V, the proceeds derived from the sale of such Condominium Unit shall be used and disbursed by the Association, as Attorney In Fact, in the following order:
(a) For payment of taxes and special assessments lien in favor of any governmental assessing entity;
(b) For payment of the balance of the lien of any first mortgage;
(c) For payment of unpaid Common Assessments and unpaid Special Assessments;
(d) For payment of junior liens and encumbrances in the order and extent of their priority; and
(e) The balance remaining, if any, shall be paid to the Condominium Unit Owner. Any distribution of such balance shall be based on the relative value of each such Unit and in accordance with the formula that is used to determine the Unit Owner’s undivided interest on the Common Elements
(3) If the insurance proceeds are insufficient to repair and reconstruct the improvements and if such damage is more than sixty-six and two-thirds percent (66-2/3%) of all of the Common Elements, not including land, are destroyed or damaged, and if the Owners representing the aggregate ownership of sixty seven percent (67%) of the Common Elements and fifty one percent (51%) of the Lienholders, do not voluntarily, within one hundred (100) days after such damage, make provisions for reconstruction (in the form of Special Assessments or otherwise), the Association shall forthwith record a notice in the records of the Association and by delivery to each Unit Owner setting forth such fact or facts, and upon the recording of such notice by the Association's President and Secretary, the entire remaining Premises shall be sold by the Association, as Attorney In Fact for all of the Owners, free and clear of the provisions contained in this Declaration, the Plat and the By-Laws. The insurance settlement proceeds shall be collected by the Association, and such shall be divided by the Association according to each Unit Owner's interest (as such interests appear on the policy or policies), and such divided proceeds shall be paid into separate accounts, each such account representing one (1) of the Condominium Units in the total Project. Each such account shall be in the name of the Association, and shall be further identified by the number of the Unit and the name of the Owner. From each separate account, the Association, as Attorney In Fact, shall use and disburse the total amount (of each) of such accounts, without contribution from any one (1) account to another, toward the full payment of the lien of any first mortgage against the Condominium Unit represented by such separate account. There shall be added to each such account, the apportioned amount of the proceeds derived from the sale of the entire Property. Such apportionment shall be based upon each Condominium Unit Owner's proportionate interest in the Common Elements. The total funds of each account shall be used and disbursed, without contribution from one (1) account to another, by the Association, as Attorney In Fact, for the same purposes and in the same order as is provided in Subparagraphs b(2)(a) through (e) of Paragraph 6.1 hereof.
(4) If the insurance proceeds are insufficient to repair and reconstruct the improvements, but the Owners representing a total ownership interest of sixty seven percent (67%) of the Common Elements adopt a plan for reconstruction, then all of the Owners shall be bound by the terms and provisions of such plan. Any assessment made in connection with such plan shall be a Common Expense and made pro rata according to each Owner's proportionate interest in the Common Elements and shall be due and payable as provided by the terms of the plan. The Association shall have the authority to cause the repair and restoration of the improvements using all of the insurance proceeds for such purpose notwithstanding the failure of an Owner to pay the assessment. The assessment provided for herein shall be a debt of each Owner and a lien on his Condominium Unit and may be enforced and collected as is provided in Paragraph 5.8 hereof, but will be subordinate to any prior recorded first mortgage lien, as provided in Paragraph 5.9 hereof. Should the Association foreclose said assessment lien, as provided in said Paragraph 5.8 the proceeds derived from sale of such Condominium Unit shall be used and disbursed by the Association, as Attorney In Fact, for the same purposes and in the same order as is provided in Subparagraphs b(2)(a) through (e) of Paragraph 6.1 hereof.
(5) The Owners representing an aggregate ownership interest of sixty-seven percent (67%) of the Common Elements or more, may agree that the Common Elements of the Property are obsolete and that the same should be renewed or reconstructed. In such instance, the expenses thereof shall be payable by all of the Owners as Common Expenses.
(6) Any restoration, reconstruction or repair of the Project shall be performed substantially in accordance with this Declaration and the original plans and specifications, unless other action is approved by Owners representing an aggregate ownership interest of sixty seven percent (67%) and by the holders of mortgages on Units which have at least fifty-one percent (51%) of the votes of the Association.
(7) The Owners representing an aggregate ownership interest of one hundred percent (100%) of the Common Elements and all holders of first mortgages may agree that the Common Elements of the Property are obsolete and that the same should be sold. In such instance, the Association shall record a notice setting forth such fact or facts, and upon the recording of such notice by the Association's authorized officers, the entire Premises shall be sold by the Association, as Attorney In Fact, for all of the Owners, free and clear of the provisions contained in this Declaration, the Plat and the By-Laws. The sales proceeds shall be apportioned between the Owners and First Mortgagees as their interests may appear on the basis of each Owner's percentage or fraction of interest in the Common Elements, and such apportioned proceeds shall be paid into separate accounts, each such account representing one (1) Condominium Unit. Each such account shall be in the name of the Association, and shall be further identified by the number of the Unit and the name of the Owner. From each separate account, the Association, as Attorney In Fact, shall use and disburse the total amount of each of such funds, without contribution from one (1) fund to another, for the same purposes and in the same order as is provided in Subparagraphs b(2)(a) through (e) of Paragraph 6.1 hereof.
6.2 JUDICIAL PARTITION
There shall be no judicial partition of the Common Elements, nor shall Declarant or any person acquiring any interest in the Project or any part thereof seek any such judicial partition unless the Property has been removed from and not reinstated into the provisions of the Texas Uniform Condominium Act. In any event, no person may initiate an action for partition of the Limited Common Elements until consent is had from all First Mortgagees or all First Mortgagees are paid in full.
6.3 CONDEMNATION
a. If all or any part of the Property is taken or threatened to be taken by eminent domain or by power in the nature of eminent domain (whether permanent or temporary), the Association, as Attorney In Fact, and each Owner shall be entitled to participate in proceedings incident thereto at their respective expenses. The Association shall give timely written notice of the existence of such proceedings to all Owners and to all First Mortgagees known to the Association to have an interest in any Condominium Unit. The expense of participation in such proceedings by the Association shall be borne as a Common Expense. The Association, as Attorney In Fact, is specifically authorized to obtain and pay for such assistance from attorneys, appraisers, architects, engineers, expert witnesses and other persons as the Association in its discretion deems necessary or advisable to aid or advise it in matters relating to such proceedings. All damages or awards for any such taking shall be deposited with the Association, as Attorney In Fact, and such damages or awards shall be applied as provided herein. In the event that an action in eminent domain is brought to condemn a portion of the Common Elements (together with or apart from any Condominium Unit), the Association, as Attorney In Fact, in addition to the general powers set out herein, shall have the sole authority to determine whether to defend or resist any such proceeding, to make any settlement with respect thereto, or to convey such property to the condemning authority in lieu of such condemnation proceeding.
b. With respect to any such taking, all damages and awards shall be determined for the taking of the individual Units and for the taking of the Common Elements and for each Owner's interest therein. After the damages or awards for such taking are determined, such damages or awards shall be paid to the account of each Owner for the loss of the individual Unit plus an amount in proportion to his percentage or fractional ownership interest in the Common Elements to be applied or paid as set forth in Subparagraphs 6.1b(2)(a) through (e) hereof, unless restoration takes place as herein provided. The Association, if it deems advisable, may call a meeting of the Owners, at which meeting the Owners, by a majority vote of a quorum of the Owners, shall decide whether to replace or restore, as far as possible, the Common Elements so taken or damaged. In the event it is determined that such Common Elements should be replaced or restored by obtaining other land or building additional structures, this Declaration and the Map attached hereto shall be duly amended by instrument executed by the Association, as Attorney In Fact, on behalf of the Owners. In the event that such eminent domain proceeding results in taking of or damage to one (1) or more, but less than sixty-six and two-thirds percent (66-2/3%) of the total number of Condominium Units, then the damages and awards for such taking shall be determined for each Condominium Unit and the following shall apply:
(1) The Association shall determine which of the Condominium Units damaged by such taking may be made tenantable for the purposes set forth in this Declaration, taking into account the nature of this Condominium Project and the reduced size of each Condominium Unit so damaged.
(2) The Association shall determine whether it is reasonably practicable to operate the remaining Condominium Units of the Project, including those taken or partially taken Units which may be made tenantable, as a Condominium, in the manner provided in this Declaration.
(3) In the event that the Association determines that it is not reasonably practicable to operate the remaining Condominium Units and the taken or partially taken Units which can be made tenantable, then the Condominium Project shall be deemed to be regrouped and merged into a single estate owned jointly in undivided interest by all Owners, as tenants in common, in the proportionate ownership interest previously owned by each Owner in the Common Elements. Any decision to terminate the condominium status of the Project must have the approval of First Mortgagees holding the mortgages on Units which have at least fifty-one percent (51%) of the votes in the Association.
(4) In the event that the Association determines that it is not reasonably practicable to operate the remaining Condominium Units and the taken or partially taken Units which can be made tenantable as a Condominium Unit, then the damage awards made with respect to each Unit which has been determined to be capable of being made tenantable shall be applied to repair and to reconstruct such Condominium Unit so that it is made tenantable. The restoration shall be performed in accordance with this Declaration and the original Plans and specifications, unless other action is approved by holders of mortgages on the remaining Units which have at least fifty-one percent (51%) of the votes in the Association. If the cost of such work exceeds the amount of the award, the additional funds required shall be assessed against those Condominium Units which are tenantable. With respect to those Units which may not be tenantable, the award made shall be disbursed as; and the remaining portion of such Units, if any, shall become part of the Common Elements. Upon the payment of such award for the account of such Owner as provided herein, such Condominium Unit shall no longer be a part of the Condominium Project and the proportionate ownership interest in the Common Elements appurtenant to each remaining Condominium Unit which shall continue as part of the Condominium Project shall be equitably adjusted to distribute the ownership of the undivided interest in the Common Elements among the reduced number of Owners based upon the square footage of the individual remaining Units in proportion to the total square footage of all the remaining Units.
(5) If sixty-six and two-thirds percent (66-2/3%) or more of the Condominium Units are taken or damaged by such taking, all damages and awards shall be paid to the accounts of the Owners of Units, as provided herein; and this Condominium Regime shall terminate upon such payment. Upon such termination, the Condominium Units and Common Elements shall be deemed to be regrouped and merged into a single estate owned in undivided interest by all Owners as tenants in common in the proportionate ownership interest previously owned by each Owner in the Common Elements. The Owners representing an aggregate ownership interest of sixty-seven percent (67%) of the Common Elements and holder of first mortgages on Units which have at least fifty-one percent (51%) of the votes on Units subject to first mortgages may agree that the Property should be sold. In such instance, the Association shall record a notice setting forth such fact or facts and upon recording of such notice by the Association's authorized officers, the entire Property shall be sold by the Association, as Attorney In Fact, for all of the Owners, free and clear of the provisions contained in the Declarations, the Plat and the By-Laws. The sales proceeds shall be apportioned between the Owners and First Mortgagees as their interests may appear on the basis of each Owner's proportionate ownership interest in the regrouped estate. Any damages, awards, or sales proceeds provided in this paragraph to be paid to or for the account of any Owner by the Association shall be applied as set forth in Subparagraphs 6.1b(2)(a) through (e) hereof.
ARTICLE VII
PROTECTION OF MORTGAGE
7.1 NOTICE TO ASSOCIATION
An Owner who mortgages his Unit shall notify the Association, giving the name and address of his mortgagee. Each mortgagee shall be permitted to notify the Association of the fact that such mortgagee holds a deed of trust or mortgage on a Condominium Unit. The Board shall maintain such information in a book entitled "Mortgagees of Condominium Units".
7.2 NOTICE OF DEFAULT; LAPSE IN INSURANCE
The Association shall notify a First Mortgagee and any guarantor or insurer of the mortgage, in writing, upon written request of such First Mortgagee, identifying the name and address of the First Mortgagee, guarantor or insurer and the Unit number, of any default by the Mortgagor in the performance of such Mortgagor's obligations, as set forth in this Declaration, which is not cured within sixty (60) days. The Association, upon written request, shall notify a First Mortgagee and the guarantor or insurer of the mortgage of any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association as well as any proposed action requiring the consent of a specified percentage of eligible mortgage holders and any condemnation or casualty loss affecting a material portion of the Project or the Unit secured by its mortgage.
7.3 EXAMINATION OF BOOKS
The Association shall permit any Unit Owner and First Mortgagees and the guarantors and/or insurers of the First Mortgagee to examine current copies of the Condominium Declaration, Articles of Incorporation, By-Laws, Rules and Regulations and the books and records of the Association during normal business hours, upon request.
7.4 RESERVE FUND
The Association shall establish adequate reserve funds for replacement of Common Element components and fund the same by regular monthly payments rather than by extraordinary special assessments.
7.5 ANNUAL AUDITS
Upon written request, the Association shall furnish a First Mortgagee as well as any agency and/or corporation having an interest in the Condominium Project annual financial statement of the Association within ninety (90) days following the end of such fiscal year of the Association. Audited financial statements will be made available at the expense of the requesting party.
7.6 NOTICE OF MEETINGS
The Association shall furnish each First Mortgagee upon request of such Mortgagee, prior written notice of all meetings of the Association and permit the designation of a representative of such First Mortgagee to attend such meetings, one (1) such request to be deemed to be a request for prior written notice of all subsequent meetings of the Association.
7.7 NOTICE OF DAMAGE OR DESTRUCTION
The Association shall furnish the First Mortgagees timely written notice of any substantial damage or partial destruction of any Unit on which the First Mortgagee hold the mortgage if such loss exceeds One Thousand Dollars ($1,000.00) and of any part of the Common Elements if such loss exceeds Ten Thousand Dollars ($10,000.00).
7.8 MANAGEMENT AGREEMENTS
Any management agreement and/or service contract entered into by the Association will be terminable by the Association without cause and without payment of a termination fee or penalty upon ninety (90) days' or less written notice, and the term of such management agreement will not exceed the period of three (3) years, renewable by agreement of the parties to such agreement for successive one (1) year periods. In the event of the termination of the management agreement, as provided herein, the Association shall enter into a new management agreement with a new management agent prior to the effective date of the termination of old management agreement. Any decision to establish self-management by the Association shall require the prior consent of Owners of Units to which at least sixty-seven percent (67%) of the votes are allocated and the approval of First Mortgagees holding mortgage on Units which have at least fifty-one percent (51%) of the votes of the Association.
7.9 TAXES, ASSESSMENTS AND CHARGES
All taxes, assessments and charges which may become liens superior or inferior to the first mortgage under local law shall relate only to the individual Condominium Units and not to the Condominium Project as a whole.
ARTICLE VIII
AMENDMENTS TO DECLARATION
8.1 APPROVAL OF OWNERS AND MORTGAGEES
a. The consent of the Owners of Units to which at least sixty-seven percent (67%) of the votes in the Association are allocated, the approval of First Mortgagees holding mortgages on Units which have at least fifty-one percent (51%) of the votes of Units subject to mortgages and, upon written request, notice to all First Mortgages holding mortgages on Units, insurers or guarantors of such mortgages shall be required to add or amend any material provisions to this Declaration or to the By-Laws which establish, provide for, govern or regulate any of the following:
(1) Voting rights;
(2) Increase in assessments that raise the previously assessed amount by more than twenty five percent (25%), assessment liens or the priority of such liens;
(3) Reductions in reserves for maintenance, repair and replacement of the Common Elements;
(4) Responsibility for maintenance and repair of the Units and Common Elements;
(5) Reallocation of the interests in the General or Limited Common Elements, or rights to their use;
(6) Redefinition of the Boundaries of any Unit or General or Limited Common Elements or the easement rights appertaining thereto, if any;
(7) Convertibility of Units into Common Elements, or Common Elements into Units;
(8) Expansion or contraction of the Property, or the addition, annexation or withdrawal of property to or from the Property;
(9) Hazard or Fidelity Insurance or fidelity requirements;
(10) Imposition of any restriction (not referred to in this Declaration) with respect to the Leasing of Units;
(11) Imposition of any restriction on the right of a Unit Owner to sell, transfer, or otherwise convey his Unit not referenced in this Declaration or the Bylaws;
(12) Establishment of self-management by the Association where professional management has been required by any of the agencies or corporations having an interest in the Condominium Project;
(13) Rights to use of the Common Area;
(14) Restoration or repair of the Property after damage or partial condemnation in a manner other than specified herein;
(15) Any provisions which are for the express benefit of first mortgage holders, insurers or guarantors of first mortgages;
(16) Purposes to which any Unit or the Common Elements are restricted; and
b. The consent of Owners of Units to which at least sixty-seven percent (67%) of the votes in the Association are allocated and the approval of First Mortgagees holding mortgages on Units which have at least sixty-seven percent (67%) of the votes of Units subject to First Mortgages, shall also be required to:
(1) Alter, destroy, partition or subdivide any Unit or a Limited Common Element. In addition to the approval of the Owner affected, the approval of the mortgage holder, if any, must be obtained.
(2) By act or omission, seek to abandon, partition, subdivide, encumber, or transfer the Common Elements, other than the granting of easements for public utilities or other public uses; or
(3) Use hazard insurance proceeds for losses to any Condominium Unit for other than the repair, replacement or reconstruction of such Unit, except as provided by statute in the case of substantial loss, and as provided in Paragraph 6.1b(3).
c. The consent of Owners of Units to which at least one hundred percent (100%) of the votes of the Association are allocated and the approval of One Hundred Percent (100%) of all First Mortgagees holding mortgages on Units shall be required to terminate or abandon the condominium status of the Project by act or omission, except for a termination due to destruction or condemnation. Notice to all insurers or guarantors of mortgages on Units shall be required for any proposed termination of the Condominium Regime.
d. Any amendment which would change the percentage or fraction of interest of the Unit Owners in the Common Elements will require the consent of Owners of sixty-seven percent (67%) of the votes allocated in the Association and the approval of First Mortgagees holding mortgages on Units which have at least fifty-one percent (51%) of the votes of Units subject to mortgages, provided that the change of percentage or fraction of ownership must have the approval of each Unit Owner affected by said amendment.
e. Any First Mortgagee who receives a written request by certified or Registered mail, return receipt requested, to approve additions or amendments to the Declaration or By-Laws, and who does not deliver or post to the requesting party a negative response within thirty (30) days, shall be deemed to have approved such request.
f. Unless otherwise provided in this Paragraph 8.1 or elsewhere in this Declaration, any of the provisions herein may be amended by the consent of Owners of Units to which at least sixty-seven percent (67%) of the votes in the Association are allocated, but no amendment shall affect the rights given to the Declarant, herein, without the consent of the Declarant.
g. It is understood and agreed that Declarant intends that the Condominium Regime comply with all requirements of the Federal National Mortgage Association (“Fannie Mae”) Federal Home Loan Mortgage Corporation (“FHLMC”), Federal Housing Administration (“FHA”) or Veterans Administration (“VA”) and any other Mortgagees willing to make, purchase, or guarantee loans, or other extensions of credit secured by Mortgages against any Units on the Project and that all references to Lienholder or First Mortgagee shall also include Fannie Mae, FHLMC, FHA and VA, so long as such entity holds a lien against any one of the Units. In this regard, and pursuant to Section 82.067 of the Act, Declarant may, at any time prior to the last Unit being sold or if Declarant has no interest remaining in the Project, shall nonetheless have the power (on behalf of the Association and each and every Owner), to amend the terms of this Declaration or the Bylaws and/or to enter into any agreement with any institutional lenders (or their designee) reasonably required by any of such institutional lenders to allow the Project to comply with such requirements or regulations
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 CORRECTION OF ERROR
Declarant reserves, and shall have the continuing right, without the consent of the other Owners or any Mortgages to amend this Declaration or the By-Laws for the purpose of resolving or clarifying any ambiguities or conflicts herein, or correcting any inadvertent misstatements, errors or omissions herein, or to comply with the requirements of Federal Home Loan Mortgage Corporation, Federal National Mortgage Association, Veterans Administration or Federal Housing Administration.
9.2 OWNERSHIP OF COMMON PERSONAL PROPERTY
Upon termination of Declarant Control Period, Declarant shall execute and deliver a bill of sale to the Association transferring all items of personal property located on the Premises, furnished by Declarant, and intended for the common use and enjoyment of the Condominium Unit Owners and occupants. No Owner shall have any other interest and right thereto, and all such right and interest shall absolutely terminate upon the Owner's termination of possession of his Condominium Unit.
9.3 CHANGE IN DOCUMENTS
Upon written request, the holder of any mortgage covering any of the Condominium Units shall be entitled to written notification from the Association thirty (30) days prior to the effective date of any change in the Condominium documents.
9.4 NOTICE
All notices, demands or other notices intended to be served upon an Owner shall be sent by ordinary or certified mail, postage prepaid, addressed in the name of such Owner in care of the Unit number and Building address of such Owner. All notices, demands or other notices intended to be served upon the Board of Directors of the Association, shall be sent by ordinary or certified mail, postage prepaid, to First Worthing Company, 8144 Walnut Hill Lane, Suite 550-LB6, Dallas, Texas 75231, until such address is changed by a notice of address change duly recorded in the Dallas County Real Property Records.
9.5 CONFLICT BETWEEN DECLARATION AND BY-LAWS
Whenever the application of the provisions of this Declaration conflict with the application of any provisions of the By-Laws adopted by the Association, the provisions or application of this Declaration shall prevail.
9.6 INVALIDATION OF PARTS
If any of the provisions of this Declaration or any paragraph, sentence, clause, phrase or word or the application thereof in any circumstance be invalidated, such invalidity shall not affect the validity of the remainder of this Declaration and the application of any provision, paragraph, sentence, clause, phrase or word in any other circumstance shall not be affected thereby.
9.7 OMISSIONS
In the event of the omission from this Declaration of any word, sentence, clause, provision or stipulation which shall be necessary for the accomplishment of the intent and purposes hereof, or any part hereof, then such omitted matter shall be supplied by inference and/or by reference to the Act.
9.8 UNIFORM CONDOMINIUM ACT
The provisions of this Declaration shall be by addition and supplemental to the Texas Uniform Condominium Act as set forth in Chapter 82 of the Texas Property Code and to all other provisions of law.
9.9 GENDER
Whenever used herein, unless the context shall otherwise provide, the singular number shall include the plural, the plural the singular, and the use of any gender shall include all genders.
IN WITNESS WHEREOF, the Declarant has caused this instrument to be adopted, sealed and delivered the ______ day of May, 1996.
DECLARANT:
CAO REALTY, INC., nominee for
AVONDALE LIMITED PARTNERSHIP
an Ontario registration
dba Texas Avondale Limited Partnership
By:_______________________________
Its:_______________________________
APPROVED AS TO FORM AND CONTENT
LIENHOLDER:
THE MUTUAL TRUST COMPANY
an Ontario Corporation
By:_________________________________
Its:_________________________________
THE STATE OF __________________ §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ______________________ §
BEFORE ME, the undersigned authority, on this day personally appeared ______________________________________________________________, known to me to be the person(s) whose name (s) is subscribed to the foregoing instrument, and he/she/they acknowledged to me that he/she/they executed the same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of ____________, 1996.
________________________________
NOTARY PUBLIC IN AND FOR THE
STATE OF ______________________
My Commission Expires: Notary's Printed Name:
_________________________ ____________________________
THE STATE OF ____________________ §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _______________________ §
BEFORE ME, the undersigned authority, on this day personally appeared ______________________________________________________________, known to me to be the person(s) whose name (s) is subscribed to the foregoing instrument, and he/she/they acknowledged to me that he/she/they executed the same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of ____________, 1996.
___________________________________
NOTARY PUBLIC IN AND FOR THE
STATE OF ___________________________
My Commission Expires: Notary's Printed Name:
_________________________ ____________________________
EXHIBIT “A”
Legal Description
Being Lots 3, 4, and 5 in Block 1/2143 of Donnelly’s Summit Hill, ad Addition to the City of Dallas, according to the map thereof recorded in Volume 1, Page 49 Map Records, Dallas County, Texas, and being more particularly described as follows:
Beginning at an iron pipe found for corner situated in the South line of Oram Street (60 foot right-of-way) said iron pipe being West a distance of 100.000 feet from West line of Empire Drive;
Thence South 00 degrees 06 minutes 15 seconds East, departing sold South line of Oram Street and along the common lot line of 5 and 6 a distance of 174.98 feet to an “x” cut found for corner;
Thence South 89 degrees 45 minutes 39 seconds West, a distance of 150.02 feet to an “x” cut found for corner;
Thence North 00 degrees 07 minutes 35 seconds West, along the common lot line of 2 and 3 a distance of 175.61 feet to an iron rod set for corner situated in the South line of said Oram Street;
Thence East along the South line of said Oram Street a distance of 150.09 feet to the point of beginning and containing 26,304 square feet or 0.6039 acres of land more or less.
Posted
by beevans on 04/15/2003
- Advertise Here!
-
Promote Your Business or Product for $10/mo
For just $10/mo you can promote your business or product directly to nearby residents. Buy 12 months and save 50%!
