HomeMy WebLinkAboutCP 99-10; Doan Tentative Parcel Map; Condo Permit (CP) (14)RECEIVED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO: AU6 U 7 ZUU1
James Robert Dennis, Esq.
12626 High Bluff Drive, Suite 302
San Diego, California 92130
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR LEVANTE STREET CONDOMINIUMS
THIS DECLARATION is made effective this _ day of August, 2001, by James C.
Doan, Jr. ("Declarant") with respect to the following:
RECITALS
A. Declarant is the owner of that certain real property located in the County of San
Diego, State of California, and more particularly described as Lot 239 of La Costa South Unit
No. 3, in the City of Carlsbad, County of San Diego, State of California, according to Map
thereof No. 6533, filed in the Office of the Recorder of San Diego County, State of California, on
November 3,1969 ("Property").
B. Pursuant to this Declaration, Declarant intends to create two (2) condominiums
(each a "Unit" or collectively the "Units," has hereinafter defined) within the meaning of Section
1351 of the California Civil Code on the Property.
C. In furtherance of this intent, Declarant hereby declares that all of the Property is
and shall continue to be held, conveyed, hypothecated, encumbered, leased, rented, used,
occupied, and improved subject to the declarations, limitations, covenants, conditions,
restrictions, reservations, rights, and easements set forth in this Declaration, as this Declaration
may be amended from time to time, all of which are declared and agreed to be in furtherance of a
general plan established for the purpose of enhancing and perfecting the value, desirability, and
attractiveness of the Property. All covenants and restrictions set forth in this Declaration shall
constitute covenants running with the land and enforceable equitable servitudes upon the
Property, and each Unit situated thereon, and shall be binding on and for the benefit of the
Property, and each Unit situated thereon, and all parties having or acquiring any right, title, or
interest in any Unit, including the heirs, executors, administrators, and assigns of these parties
and all subsequent owners and lessees of any Unit.
D. It is the further intent of the Declarant that all tangible parts of the Property will
be contained in the Units, as defined by this Declaration, and that the "common area" will be
only that part of the Property not situated within a Unit, i.e., being those areas of the Property
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between the Units or situated on the Property outside the horizontal and vertical limits of each
Unit, as herein defined. Accordingly, there is and will be no tangible part of the Property that
requires any management, maintenance or upkeep separate and apart from the obligations of each
Owner with respect to his or her Unit as otherwise prescribed by this Declaration. As such, this
Declaration intentionally omits any provisions for a homeowners association acting as such, and
makes no provision for any governing instruments therefore. Instead, it is the Declarant's intent
that, to the extent that any act is required with respect to the common area of the Property, the
rights and obligations of all parties, including, but not limited to, the Owners of the Units, be
determined by and enforced by each Owner through this Declaration and applicable law.
ARTICLE I. DEFINITIONS
"Common Area"
Section 1.01. "Common Area" means all portions of the Property not situated within a
Unit, as hereinafter defined. Each Owner shall have an undivided one-half interest in the
Common Area.
"Declarant"
Section 1.02. "Declarant" means James C. Doan, Jr.
"Declaration"
Section 1.03 "Declaration" means this Declaration and any amendments thereto.
"Map"
Section 1.04 "Map" means the parcel map for condominium purposes, as approved by
the City of Carlsbad for the Property.
"Mortgage" and "First Mortgage"
Section 1.05. "Mortgage" means a mortgage or deed of trust encumbering a Unit. "First
Mortgage" means a mortgage that has priority over all other mortgages encumbering the same
Unit.
"Mortgagee," "Institutional Mortgagee,"
and "First Mortgagee"
Section 1.06. "Mortgagee" means a Person to whom a Mortgage is made and includes
the beneficiary of a deed of trust and any guarantor or insurer of a mortgage. "Institutional
Mortgagee" means a mortgagee that is a financial intermediary or depository, such as a bank,
savings and loan, or mortgage company, that is chartered under federal or state law and that lends
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money on the security of real property or invests in such loans, or any insurance company or
governmental agency or instrumentality, including the Federal National Mortgage Association
(FNMA), the Federal Home Loan Mortgage Corporation (FHLMC), and the Government
National Mortgage Association (GNMA). "First Mortgagee" means a Mortgagee that has
priority over all other mortgages or holds of mortgages encumbering the same Unit. The term
"Beneficiary" shall be synonymous with the term "Mortgagee."
"Mortgagor"
Section 1.07. "Mortgagor" means a Person who mortgages his, her, or its property to
another (i.e., the maker of a mortgage), and shall include the trustor of a deed of trust. The term
"Trustor" shall be synonymous with the term "Mortgagor."
"Owner"
Section 1.08. "Owner" means the record holder or holders of record fee title to a Unit,
including Declarant, and any contract sellers under recorded contracts of sale. "Owner" shall not
include any persons or entities that hold an interest in a Unit merely as security for performance
of an obligation.
"Person"
Section 1.09. "Person" means a natural individual, a corporation, or any other entity with
the legal right to hold title to real property.
"Plan"
Section 1.10. "Plan" means the condominium plan for the Property prepared by Sowards
& Brown Engineering, Inc., dated , 2001, as approved by the City of Carlsbad. The
Plan is composed of two (2) Units.
"Property"
Section 1.11. "Property" means the real property described in the Recitals.
"Residential Building"
Section 1.12. "Residential Building" means all portions of the structure comprising the
residential building depicted on the Plan, including, without limitation, the foundation, bearing
walls, roof and all components of each such improvement.
"Restricted Use Area"
Section 1.13. "Restricted Use Area" means those portions of a Unit that, by the terms of
this Declaration, are dedicated for a specific purpose, any other use of which is restricted or
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qualified, including, but not limited to, the exterior surfaces of the Residential Building of each
Unit, all walls, fences, decks and similar structures or improvements situated on the exterior of
any Residential Building within a Unit (including, but not limited to, those areas depicted as
"Recreation Area," "Landscaped Area," "Parking Area," or "Off-Street Parking" on the Plan or
Map).
"Unit"
Section 1.14. "Unit" means and consists of a Residential Building, together with a
garage, deck, patio, and a yard, as depicted on the Plan. There shall be two (2) Units, being
identified as Residential Unit 1 and Residential Unit 2, as shown on the Plan. For purposes of
this Declaration, the term Unit shall have the same meaning as the term "Residential Unit" in the
Plan. Each Unit consists of all space, real property and improvements located within the area
shown as a "Residential Unit" on the Plan, the dimensional boundaries of which are as set forth
on the Plan, the terms of which are herein incorporated by reference.
ARTICLE II. THE PROPERTY
Property Subject to Declaration
Section 2.01. The entire Property shall be subject to this Declaration.
Annexation of Additional Property
Section 2.02. Unless lawfully approved by way of amendment to this Declaration, no
additional property may be annexed to the Development.
Common Area
Section 2.03. All tangible parts of the Property will be contained in the Units, as defined
by this Declaration, and the Common Area will be only that part of the Property not situated
within a Unit, i.e., being those areas of the Property between the Units or situated on the Property
outside the horizontal and vertical limits of each Unit, as herein defined.
ARTICLE III. NO COMMON AREA REQUIRING MANAGEMENT
Section 3.01. As the Common Area will not be tangible or physically accessible by any
person or third party, no part of the Common Area will require management of any kind and, as a
result, the Declarant and each Owner, by accepting title to a Unit through a recorded deed, jointly
recognize that there is no purpose or need for any homeowner's association to manage the
Common Area of the Property, and agree, the provisions of the Davis-Sterling Common Interest
Development Act (California Civil Code Section 1350 et seq.) ("Act") notwithstanding, that all
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management rights and obligations of the Property otherwise prescribed by the Act shall be
exercised by each Owner, acting in such capacity, through the enforcement of this Declaration,
and that each Owner waives the right to have the Property otherwise managed by an association,
nor shall any Owner have any obligation to prepare any budget or provide any document to any
prospective purchaser of any Unit other than a copy of this Declaration and any amendment
hereto, the provisions of California Civil Code Section 1368 to the contrary notwithstanding.
ARTICLE IV. USE RESTRICTIONS AND COVENANTS
General Restrictions on Use
Section 4.01. In exercising the right to occupy or use a Unit and its improvements, the
Owner and the Owner's family, guests, employees, tenants, and invitees shall not do any of the
following:
(a) Attempt to further subdivide a Unit.
(b) Occupy or use a Unit, or permit all or any part of a Unit to be occupied or used,
for any purpose other than as a private residence. Nothing in this Declaration shall prevent an
Owner from leasing or renting out his or her Unit, provided that it is not for transient or hotel
purposes, is for a period of at least 30 days, and such rental by its terms is subject to this
Declaration.
(c) Permit any act in a Restricted Use Area not permitted by this Declaration.
(d) Perform any act or keep anything on or in any Unit that will increase the rate of
insurance on the other Unit without the prior written consent of the Owner of the other Unit.
Further, no Owner shall permit anything to be done or kept in his or her Unit that would result in
the cancellation of insurance on any Unit or that would violate any law.
(e) Display any sign to the public view on or from any Unit without the prior written
consent of the Owner of the other Unit, except a sign advertising the property for sale, lease, or
exchange, or advertising directions to the property, as provided in Section 712 of the California
Civil Code.
(f) Raise, breed, or keep animals, livestock or poultry of any kind on or in a Unit,
except dogs, cats, or other household pets, which may be kept on or in a Unit.
(g) Engage in any noxious or offensive activity in any part of a Unit.
(h) Alter or modify the exterior or the exterior appearance of the Residential Building
of any Unit without first obtaining the written consent of the Owner of the other Unit.
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(i) Alter, construct, or remove anything on or from any Restricted Use Area, except
for purposes of maintenance or replacement.
(j) Park any automobile or other motor vehicle in other than a "Parking Area" or
within an interior garage designated in a Unit. Under no circumstances shall the parking of a
motorhome or other non-passenger vehicle be permitted. In addition, under no circumstances
shall the parking of any vehicle block vehicular access to a Unit or impede pedestrian access to
or use of a sidewalk.
(k) Display or put into public view any clothing or garments, whether for the purpose
of drying or otherwise.
(1) Attach, affix or otherwise install any television satellite dish or radio antenna on
any Unit, except one (1) television satellite dish (not exceeding 24 inches in diameter) may be
attached to the exterior of a Residential Building of a Unit.
Damage Liability
Section 4.02. Each Owner shall be liable to the other Owner for all damage to the
Property that is sustained by reason of the negligence or willful misconduct of that Owner or his
or her family, guests, employees, tenants, and invitees. Each Owner, by accepting the deed to his
or her Unit, agrees to provide and maintain insurance to the extent required by Article VI of this
Declaration.
Equitable Servitudes
Section 4.03. The covenants and restrictions set forth in this Declaration shall be
enforceable equitable servitudes and shall inure to the benefit of and bind all Owners. These
servitudes may be enforced by any Owner.
ARTICLE V. ARCHITECTURAL AND DESIGN CONTROL
Architectural and Design Approval
Section 5.01. No Unit, nor any part thereof, shall be rebuilt or improved except in
substantial conformity with the architectural design and construction standards of the Residential
Building as of the date of this Declaration (taking into account and conforming to then current
and applicable building codes), without the prior written consent of each Owner.
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ARTICLE VI. INSURANCE
General Liability Insurance
Section 6.01. Each Owner shall obtain and maintain a policy or policies insuring such
Owner, Declarant (for so long as Declarant is an Owner of a Unit), and the Owners' invitees,
guests, employees, and their agents against any liability for bodily injury, death, and property
damage arising from the activities occurring on or within each Unit. Limits of liability under the
insurance shall not be less than $1,000,000 covering all claims for death, personal injury, and
property damage arising out of a single occurrence. The Owner of the other Unit shall be named
as an additional insured under each such policy. Upon request, the Owner of a Unit shall
provide a copy of each such insurance policy to the other Owner.
Fire Insurance
Section 6.04. Each Owner shall obtain and maintain fire and casualty insurance for his or
her Unit in an amount adequate to fully replace all components of the Unit in the event of total
destruction. Such replacement cost shall be determined by conventional industry standards. The
Owner of the other Unit shall be named as an additional insured under each such policy. Upon
request, the Owner of a Unit shall provide a copy of each such insurance policy to the other
Owner.
ARTICLE VII. DAMAGE OR DESTRUCTION
Duty to Restore or Replace
Section 7.01. If any Unit, or any portion or component thereof, is destroyed or damaged,
the Owner shall restore and replace the damaged or destroyed portion of the Unit in a manner
that substantially conforms to the architectural design and construction standards of the
Residential Building and other elements of the Unit as of the date of this Declaration (taking into
account and conforming to then current and applicable building codes), using the proceeds of
insurance maintained pursuant to Article V of this Declaration, subject to the provisions of this
Article. The availability or absence of insurance coverage shall not, however, relieve the Owner
of the damaged or destroyed Unit of any responsibility under this Declaration.
ARTICLE VIII. RIGHTS OF MORTGAGEES
Warranty
Section 8.01. Declarant hereby warrants that Mortgagees of each Unit shall be entitled to
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the rights and guaranties set forth in this Article. No amendment of this Article shall affect the
rights of the holder of any First Mortgage recorded prior to the recordation of the amendment
who does not join in the execution of the amendment.
Subordination
Section 8.02. Notwithstanding any other provision of this Declaration, liens created
under this Declaration upon any Unit shall be subject and subordinate to, and shall not affect the
rights of the holder of, the indebtedness secured by any recorded First Mortgage upon such an
interest made in good faith and for value, provided that any transfer of a Unit as the result of a
foreclosure or exercise of a power of sale shall not relieve the new Owner from liability for
obligations pertaining to such Unit arising after the transfer.
Inapplicability of Right of First Refusal
Section 8.03. Should this Declaration or any amendment thereof provide for a "right of
first refusal," this right shall not impair the rights of a First Mortgagee to:
(a) Foreclose or take title to a Unit pursuant to the remedies provided in the
Mortgage;
(b) Accept a deed (or assignment) in lieu of foreclosure in the event of default by a
Mortgagor; or
(c) Interfere with a subsequent sale or lease of a Unit so acquired by the Mortgagee.
Notice of Default
Section 8.04. A First Mortgagee, upon request, shall be entitled to written notification
from any Owner of any default in the performance by the Mortgagor of any obligation under this
Declaration that is not cured within 60 days.
Mortgagee Approval of Material Amendments
Section 8.05. Notwithstanding Article IX of this Declaration, any amendments governing
any of the following shall require the prior written approval of the First Mortgagee of each Unit:
(a) Responsibility for maintenance, repair, and replacement of any Unit;
(b) Boundaries of any Unit;
(c) Leasing of Units;
(d) Annexation, addition, or withdrawal of real property to or from the Property;
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(e) Casualty and liability insurance; or
(f) Any provisions expressly benefiting First Mortgagees or insurers or governmental
guarantors of First Mortgages.
Notwithstanding the foregoing, any First Mortgagee who receives a written request from an
Owner to approve a proposed amendment or amendments requiring consent under this Section
who does not deliver a negative response to such Owner within 30 days of the receipt of the
request shall be deemed to have approved the proposed amendment or amendments.
Mortgagee Approval of Other Actions
Section 8.07. Unless each First Mortgagees has given its prior written approval, the
Owners shall not be entitled to:
(a) By act or omission, seek to abandon or terminate the Property as a condominium
project;
(b) Change any obligation of an Owner with respect to a Unit;
(c) Partition or subdivide the Property of any Unit;
(d) Use hazard insurance proceeds for losses to any Unit for other than the repair,
replacement, or reconstruction of that Unit, except as provided by statute.
Liens
Section 8.08. All taxes, assessments, and charges that may become liens prior to the First
Mortgage under local law, shall relate only to the individual Unit and not to the Property as a
whole.
Priority
Section 8.09. No provision of this Declaration shall give any Owner, or any other party,
priority over any rights of the First Mortgagee of the Unit pursuant to its Mortgagee in the case
of a distribution to the Unit Owner of insurance proceeds or condemnation awards for losses to,
or a taking of, all or a portion of a Unit.
ARTICLE IX. AMENDMENTS
Amendment or Revocation Before Close of First Sale
Section 9.01. At any time before the close of the first sale of a Unit to a purchaser other
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than Declarant, Declarant and any Mortgagee of record may, by executing an appropriate
instrument, amend or revoke this Declaration. The executed instrument shall be acknowledged
and recorded in the Office of the Recorder of San Diego County.
Amendments by Owners After Close of First Sale
Section 9.02. At any time after the close of the first sale of a Unit to a purchaser other
than Declarant, this Declaration may be amended by the vote or written consent of all Owners.
An amendment becomes effective after (1) the approval of the required Owners has been given,
(2) that fact has been certified in a writing executed and acknowledged by an officer designated
by the Association for that purpose and (3) that writing has been recorded in San Diego County.
ARTICLE X. GENERAL PROVISIONS
Term
Section 10.01. The provisions of this Declaration shall continue in effect for a term of
twenty (20) years from the date of execution. Thereafter, it shall be automatically extended for
successive periods often (10) years, until the membership of the Association decides to
terminate it.
Nonwaiver of Remedies
Section 10.02. Each remedy provided for in this Declaration is separate, distinct, and
nonexclusive. Failure to exercise a particular remedy shall not be construed as a waiver of the
remedy.
Attorneys' Fees
Section 10.03. In any action to enforce this Declaration, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs, in addition to such other legal and
equitable relief as may be awarded or obtained.
Severability
Section 10.04. The provisions of this Declaration shall be deemed independent and
severable, and the invalidity or partial invalidity or unenforceability of any one provision shall
not affect the validity or enforceability of any other provision.
Binding
Section 10.05. This Declaration, as well as any amendment to it and any valid action or
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directive made pursuant to it, shall be binding on the Declarant and the Owners and their heirs,
grantees, tenants, successors, and assigns.
Interpretation
Section 10.06. The provisions of this Declaration shall be liberally construed and
interpreted to effectuate its purpose of creating a condominium project. Failure to enforce any
provision of this Declaration shall not constitute a waiver of the right to enforce that provision or
any other provision of this Declaration.
Limitation of Liability
Section 10.07. The liability of any Owner for performance of any of the provisions of
this Declaration shall terminate upon sale, transfer, assignment, or other divestment of the
Owner's entire interest in his or her Unit with respect to obligations arising from and after the
date of the divestment.
Fair Housing
Section 10.08. Neither Declarant nor any Owner shall, either directly or indirectly, forbid
the conveyance, encumbrance, renting, leasing, or occupancy of the Owner's Unit to any person
on the basis of race, color, sex, religion, ancestry, or national origin.
Number and Headings
Section 10.09. As used in this Declaration, the singular shall include the plural, unless
the context requires the contrary. The headings are not a part of this Declaration, and shall not
affect the interpretation of any provision
Consents
Section 10.10. Whenever the consent of a Person is required by this Declaration, such
Person shall not unreasonably withhold or delay the provision of such consent.
Executed on August _, 2001, at San Diego, California.
James C. Doan, Jr.
Declarant
[Attach notary jurat]
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