HomeMy WebLinkAboutAV 85-08; Marichu Beilbey Fence; Administrative Variance (AV) (9)I r.avc found tilt fol~owin~ articles and paragraphs .to.be ..- apglicab4e to the lssce of encroachment:
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.. I.. TW preania3.e (pqe 1)'. references "protective iimitatj.ons, . . ,. .
.I ' restrictions, conflitions and covenants." This by its very nature sets the stage for acts from which the awners and . - .:'. su-ccesors must refrain. In other words, its purposc is to establish tnat wlnch may not be aone.
2. Psrra9rapn' 1.1.5 states tnat "Dalconi,es" ar.e pars of each unit, rather than a part of .tne Common Area. ,Pa'ragragh' '. ' '. 1.1.6 states that ''lawns" are part of .the Cammon .-Area: kitn su'cn clarity and detail, it cannot be construed. that. ' ' . ,. any portion of tne lawn'wak int.enaed to oe a part OX any .. ; unit,
3. barayraph 2.1.2 pr0hirsit.s any and .all ad;ditions.'ka. .:' !' "w;i;-ndowS" witnouk the permission of the Board. . A.basi.s ',. ' :": €gr. a-dding an encroaching Structure, such as an enclosed . .. . i-
ps%~~.~ .:wau'l.~~~~~~~~*~~~~.~~.f. 4uc.n a. poss ibi 1 ity
were ever contemplated.
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4.. Parayrapn 2.2 prohibits. acts adversely, affecting i'nsur8b.iIit.y. If tne actual present encroachment restricts the movem-ent of firefighters and/or their cyuipmcnt, tney probably violate this provision..
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5. Parayrapn 2.3.4 prohibits tne'use of patios for storage
purposes and speclfies winiiow coverings approved by the -Board.. An en-closed patio clearly violates and vitiates tnis' provision.
6. Paragraph 2.4 'states that "The Common Area...shall be
improved and used gcly_ for ...p edestrian
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movement, ... recreational use... and beautification. It
also provides for an easement for ingress and egress throughout the Common Area.
Parayrash 2.6 prohibits activity in the Common Area that
1s contrary to the rules and reyulations of the Association.
Paragraph 2.7 prohibits alterations and improvements to
tne Common Area without the written consent of the Association. This does not mean-That the Association may permit alterations and/or improvements contrary to the Declaration!
Paragraph 2.8 rna~es Unit owners liable for
aamayes/improvements to the Common Area.
Paragraph 4.1 prohibits division of the Common Area.
Parabraah 5.1 calls €or management, maintenance and preservation of the Common Area.
paragraph 7.1.2 allows tne board to adopt by-laWS and/or rules not inconsistent with the crovisions of the Deciaration.
Paracjrapn 7.1.5 allows any Owner as we1 1 as the -Board to
enforce the Declaration (CC&R's).
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i?arayraph 10.2 requires tne Association to maintain liability insurance for occurrences "in or about the Common Area". Since physical encroachments do not constitute a cnanye in the definition of Common Area, the
Association could be held liable for any and all injuries tnat occur within these "structures". Furthermore, use
of tne Common Area in a manner not Contemplated or disclosea to the insurance carrier could affect the valiaity of said insurance and/or premium payments.
Parayrapn 12.1 states that tne Declaration 1s a "general
plan for ...p rotection and enhdnqeme of value of the
ProJect and are for the benefit of every other
Condominium and the present and future Owners."
Parayra2h 12.3 allows any owner and tne mortgagee (as
weil as others) to enjoin breach of the Declaration. Paragrapn 12.7 proviaes for tne recovery of attorneys' fees for the enforcement of said Declaration.
Paragraph 14.2 requires the Association to maintain the
Common Area anii prohibits owners from interfering with
said maintenance. This again leaves tne Association
vulnera~le to liability for injuries that could occur
within an enclosed patio while simultaneously interfering with the the Association's ability to
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discover or protect itself from such situations.
18. Paragraph 16.1 provides for Amendment of the Declaration ana the procedures for accomplishing same.
In summation, the tneme of salci Declaration is to preserve the
Common Area for tne use and enjoyment of all and the protection
of each and every Owners' financial interest. This is most
cleariy supported by the references in paragraphs 6 ana 10 above.
The present situation leaves the Boaru and Owners vulnerable to
the liability expressed in para9raphs 4,14 and 17 above. Correction of tnese violations could De enforced at tne expense
of tne Owners/fissociation as referenced in paragrapns 13 ana 16
aDove.
Ali owners ana the Association run a certain risjc until such time
as tne violations are corrected or tne Declaration is amended. I
stroncjly recommend tnat eacn owner consider tne above and satisfy
nilnseif tnat he is not Unduly exposed to a risk that he is unprepared to accommodate.
Harry L. Haubert!
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