HomeMy WebLinkAboutCP 99-14; Stine Condominium Conversion; Condo Permit (CP) (6)REQUESTED
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DEC 19, 2OOO 3:50 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SHITH, COUNTY RECORDER
FEES: 79.00
DECLARATION OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
LOT 135 OF LA COSTA SOUTH UNIT NO. 1
THIS DECLARATION made on the date hereinafter set forth by the
undersigned, hereinafter referred to as "Declarant".
WITNESSETH:
WHEREAS, Declarant is the owner of certain property in the City of
Carlsbad, County of San Diego, State of California, which is more
particularly described in Exhibit "A", attached hereto and made a
part hereof, hereinafter called the "Condominium Property"; and
WHEREAS, Declarant has filed, or will hereafter file, a Condominium
Plan with the Office of the County Recorder of San Diego County,
California, covering the Condominium Property described in Exhibit
"A"; and
WHEREAS, Declarant has improved, or intends to improve, the
Condominium Property by constructing thereon two condominium units,
and intends to establish a condominium_project, under the provisions
of the California Condominium Act, providing for separate title to
Units (as hereinafter defined), appurtenant to which will be an
undivided fractional interest in all of the Condominium Property
other than the units.
NOW, THEREFORE, Declarant hereby declares that all of the
Condominium Property described above shall be held, built, sold, and
conveyed subject to the following easements, restrictions,
covenants, and conditions, which are for the purpose of protecting
the value and desirability of, and which shall run with, the real
property, and be binding an all parties having any right, title or
interest in the described properties or any part thereof, their
heirs, successors, and assigns, and shall inure to the benefit of
each Owner thereof.
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ARTICLE I
DEFINITIONS
Section 1.01. "Association" shall mean and refer to a nonprofit
unincorporated association, its successors and assigns, the
membership of which shall be the Owners of Units, and which
association shall be the management body for the project.
Section 1.02. "Owner" shall mean and refer to the grantee and/or
Record Owner, whether one or more persons or entities, of a fee
simple title to any Unit which is a part of the Condominium
Property, including contract sellers, but excluding those having
such interest merely as security for the performance of an
obligation.
Section 1.03. "Condominium Property' shall mean and refer to that
certain real property hereinabove described.
Section 1.04. "Project" means the entire parcel of real property
divided or to be divided-into condominiums, including all structures
thereon.,
Section .1.05. Common Area" shall mean and refer to those portions
of the Condominium Property not located within a Unit.
Section 1.06. 'Unit' shall mean and refer to those portions of the
Condominium Property shown and described as such on the Condominium
Plan; provided, however, that the boundaries of each Unit are the
exterior surfaces of the perimeter walls, roof, ground floors and
foundations rather than any metes and bounds description expressed
in any deed or plan, regardless of settling or lateral movement of
the building, and regardless of any minor variance between
boundaries shown in any deed or plan and those of the exterior of
the building.
Section 1.07. 'Condominium Plan shall mean and refer to the
Condominium Plan recorded pursuant to California Civil Code Section
1351(f) covering the Condominium Property, including such amendments
thereto as may from time to time be recorded.
Section 1.08. "Condominium' shall mean and refer to a fee simple
estate in the Condominium Property, as defined in Section 783 of the
California Civil Code, and shall consist of a separate interest in a
Unit and an undivided fractional interest as tenant-in-common in the
Common Area.
Section 1.09. Restricted Use Area' shall mean and refer to those
portions of the Common Area to which an exclusive right to use is
granted to an Owner as shown and described on the Condominium Plan
as Exclusive Use Area and indicated as EU.
Section 1.10. "Declarant" shall mean and refer to Margaret Jone
Stine and son Robert Allen Stine; both are trustees and
or separating such ownership from any of the other ownerships in the
Condominium Property provided, however, if any Unit shall be owned
by two or more co-tenants, as tenants-in-common, or as joint
tenants, or as community property, nothing herein contained shall be
deemed to prevent a judicial partition of said Unit as between such
co-tenants.
ARTICLE IV
MEMBERSHIP AND VOTING POWERS
Section 4.01. Every Owner of a Unit which is subject to assessment
shall be a Member of the Association. Membership shall be
appurtenant to and may not be separated from ownership of any Unit
which is subject to assessment.
Section 4.01.1. A Member may attend and vote in person, or by an
agent duly appointed by an instrument in writing signed by the
Member and filed with the Secretary of the Association. Any such
designation of any agent may be revoked at any time by written
notice to the Secretary of the Association, and at any time when the
Secretary receives actual notice of the death of a Member, or notice
of a judicial declaration of incompetence.
Section 4.02. When there is more than one record owner, any and all
such persons may attend any meetings of the Association (or Owners)
but, it shall be necessary for those Co-owners present to vote and
they cannot agree, if there are two, each shall have a half vote or,
if more than two, then the majority shall determine who shall cast
the votes to which they are entitled= if only one Co-owner is
present in person or by proxy, that Co-owner may vote all the shares
(or interest) jointly owned. Any designation of an agent by
Co-owners must be signed by both, if two, or by a majority if three
or more.
Section 4.03. Every Member shall have the right to vote, as herein
set forth, on becoming a Member of the Association.
ARTICLE V
MANAGEMENT
Section 5.01. The Owners of the Condominium Project hereby associate
themselves as a nonprofit unincorporated association for the
purposes of being the "management body" of the Condominium Project
under the laws of the State of California.
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Section 5.01.1. The affairs of this Association shall be
managed by a Hoard of Directors, consisting of three (3) persons,
who need not be Members of the Association.
Section 5.01.2. • At the first meeting of the Association,
the Members shall elect three Directors to serve until their
removal, death or resignation.
Section 5.01.3. A Director shall not receive any com-
pensation for any service he may render to the Association; pro-
vided, however, that any Director may be reimbursed for actual
out-of-pocket expenses incurred by him in the performance of his
duties.
Section 5.01.4. The Board shall have the powers and duties,
and shall be subject to the limitations on any such powers as
enumerated in this Declaration, including the following powers which
shall not be by way of limitation.
Section 5.01.4.1. File and publish a certificate of
fictitious name.
Section 5.01.4.2. Sue and be sued in the name of the
Association.
Section 5.01.4.3. Deposit the funds of the Association
to the credit of the Association in such banks or other depositories
as the Board may elect.
Section 5.01.4.4. Authorize, by resolution, the
execution and delivery of any instrument in the name of and on
behalf of the Association, any contracts, checks, drafts, notes or
orders for the payment of monies.
Section 5.01.4.5. Cause to be maintained a full set of
books and records showing the financial condition of the
Association, and shall provide an annual audit thereof within ninety
(90) days after the close of the fiscal year for any year in which
the annual income of the Association shall exceed $75,000, and shall
regularly prepare and distribute financial statements in accordance
with the following:
(a) A proforma operating statement for each fiscal
year shall be distributed not less than sixty (60) days before the
beginning of the fiscal year.
(b) A balance sheet, as of an accounting date which is
the last day of the month closest in time to six (6) months from the
date of closing of the first sale of a Unit in the Condominium
Project, and an operating statement for the period from the date of
the first closing to said accounting date, shall be distributed
within sixty (60) days after the accounting date. This operating
statement shall include a schedule of
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assessments received and receivable, identified by the number of the
Unit, and the name of the Owner assessed.
(c) A balance sheet as of the last day of the Association's fiscal
year and an operating statement for said fiscal year shall be
distributed within ninety (90) days after the close of the fiscal
year.
Section 5.02. Election
Section 5.02.1. Each Owner shall elect one Director, and the two
Directors so elected shall elect a third who shall not be an owner
and* shall have no interest in the Condominium Project.
Section 5.02.2. Voting for Directors shall be by secret written
ballot and may be conducted in person or by proxy.-
Section 5.02.3. In the event that at any time the two Directors
elected by the Members cannot agree as to the third Director, a
third Director shall be appointed by the Presiding Judge of the
North County Division of the San Diego Superior Court upon the
petition of any Owner under the procedures for appointment of a
neutral arbitrator pursuant to California Code of Civil Procedure,
Section 1281.6. Said Director shall serve until the next annual
meeting of the Members.
Section 5.03. Removal
Section 5.03.1. The Director elected by an Owner may be removed from
office at any time by the Owner so electing him at any meeting
called for that purpose. The close of Bale or either Unit shall be
deemed to automatically remove the Director elected by that Unit
Owner.
Section 5.03.2. The third Director elected by the two Directors may
be removed by the vote of both Owners.
Section 5.04. In the event of a vacancy on the Board caused by the
death, resignation, or removal of a Director, the Owner of the unit
so electing the Director shall elect a successor and, in the event
of such a vacancy of the office of the third Director, the remaining
Directors shall elect a successor.
Section 5.05. Meetings of Directors
Section 5.05.1. Regular meetings of the Board of Directors shall be
held quarterly at such place within the Project, and at such time as
may be fixed from time to time by resolution of the Board. Notice of
the time and place of such meeting shall be posted at a prominent
place or places within the Common Area. The first meeting shall be
held within forty-five (45) days after the sale of the first Unit.
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Section 5.05.2. Special meetings of the Board of Directors shall be
held when called by written notice signed by any Director. The
notice shall specify the time and place of the meeting, and the
nature of any special business to be considered. Notice of any
special meeting must be given to each Director not less than three
(3) days, nor more than ten (10) days, prior to the date fixed for
such meeting by written notice delivered personally or sent by mail
or telegram to each Director at his address as shown in the records
of the Association. A copy of such notice shall be posted in a
prominent place or places in the Common Area of the Project within
three (3) days prior to said meeting.
Sedtion 5.06. A majority of the Board shall constitute a quorum and,
if a quorum is present, the decision of a majority of the Members
present shall be the act of the Board.
Section 5.07. Regular and special meetings of the Board shall be
open to all Members of the Association provided, however, that
Association Members who are not on the Board may not participate in
any deliberation or discussion unless expressly so authorized by the
vote of a majority or a quorum of the Board.
ARTICLE VI
COVENANT FOR MAINTENANCE FUND; ASSESSMENTS
A. Creation of the Lien and Personal Obligation of Assessments.
Section 6.01. The Declarant, for each Unit owned within the
properties, hereby covenants, and each Owner of any Unit, by
acceptance of a deed therefore, whether or not it shall be so
expressed in such deed, is deemed to covenant and agree to pay to
the Association:
(I) annual assessment or charges, and (2) special assessments for
capital improvements to the overall Condominium Project Units to the
extent such improvement is needed for the Condominium Project as a
whole, the Common Area, and the exterior of the Units; such
assessment to be established and collected as hereinafter provided.
The annual and special assessments, together with interest, costs,
and reasonable attorney's fees, shall be a charge on the Unit, and
shall be a continuing lien upon the property against which each such
assessment is made. Each such assessment, together with interest,
costs, and reasonable attorney's fees, shall also be the personal
obligation of the person who was the Owner of such property at the
time when the assessment fell due. The personal obligation for
delinquent assessments shall continue even though there is a
transfer to a bona fide and for value successor in title. Any bona
fide and for value successor shall also expressly assume joint and
several responsibility for any delinquent installments, and the
liability as between them shall not be the concern of the
Association.
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B. Purpose of Assessments.
Section 6.02. The assessment levied by the Association shall be used
exclusively to promote the recreation, health, safety, and welfare
of the, residents in the properties, and for the improvement and
maintenance of the Common Area, and of the Units situated upon the
properties.
C. Maximum Annual Assessment.
Section 6.03. Until January 1 of the year immediately following the
conveyance of the first Unit to an Owner, the maximum annual
assessment shall be $- - 0 - per Unit.
Section 6.03.1. From and after January 1 of the year immediately
following the conveyance of the first Unit to an owner, the maximum
annual assessment may not be increased each year more than ten
percent (10%) above the maximum assessment for the previous year,
and no special assessments to defray the costs of any action or
undertaking on behalf of the Association which, in the aggregate,
exceed five percent (5%) of the budgeted gross expenses of the
Association for that fiscal year, may be made without the vote or
the written assent of a majority of all Members.
Section 6.03.2. The Board of Directors may fix the annual assessment
at an amount not in excess of the maximum.
D. Special Assessment for Capital Improvements.
Section 6.04. In addition to the annual assessments authorized
above, the Association may levy, in any assessment year, a special
assessment applicable to that year only for the purpose of
defraying, in whole or in part, the cost of any construction,
reconstruction, repair, or replacement of a capital improvement in
or to the overall condominium project as 'a whole, common walls, and
upon the Common Area, including fixtures and personal property
related thereto, provided that any such assessment which exceeds
five percent (5%) of the annual budgeted expense of the Association
shall have the vote or written assent of fifty-one percent (51%) of
all Members.
Section 6.04.1. Every special assessment shall be levied on the same
basis as that prescribed for regular assessments. These provisions
regarding special assessments do not apply in the case where the
special assessment is a remedy used by the Board of Directors to
reimburse the Association for costs incurred in enforcing compliance
with the governing instruments.
Section 6.04.2. Special assessments shall be paid as set forth in
the notice of assessment.
Section 6.04.3. A special assessment may be made as provided in
Section 10.03 below.
Notice and Quorum for any Action Authorized Under Sections 6.03,
6.04.
Section 6.05. Any action authorized under Section 6.03 or 6.04 shall
be taken at a meeting called for that purpose, written notice of
which shall be sent to all Members not less than thirty (30 nor more
than sixty (60) days in advance of the meeting. Notice of special
assessment shall be sent not less than ten (10) nor more than twenty
(20) days in advance of the meeting. If the proposed action is
favored by a majority of the votes cast at such meeting, but such
vote is less than the requisite fifty-one percent (51%) of all
Members (considering the number of votes each such Member has),
Members who are not present in person or by proxy may give their
assent in writing, provided the same is obtained by the appropriate
officers of the Association not later than thirty (30) days from the
date of such meeting.
8. Uniform Rate of Assessment.
Section 6.06. Both annual and special assessments must be fixed at
an annual rate for both Units, based on the square footage of the
Unit and the Restricted Use Area appurtenant thereto, and may be
collected on a monthly basis; provided, however, should any Owner
conduct any activity or construct or maintain any improvement in his
Unit or in his Exclusive Use Area which shall result in any increase
in insurance premiums for the project, such additional cost shall be
assessed exclusively to such Owner. The Declarant and his successor
in interest, if any, is an Owner subject to payment of the above for
the interests he owns.
F. Date of Commencement of Annual Assessments.
Section 6.07. Due Dates. The annual assessments provided for herein
shall commence on the first day of the month following the close of
escrow of the first sale of a condominium. The first annual
assessment shall be adjusted according to the number of months
remaining in the calendar year. The Board of Directors shall fix the
amount of the annual assessment against each Unit at least sixty
(60) days in advance of each annual assessment period unless, in the
first year, less than sixty (60) days remain; then, in such event,
the time shall be a reasonable time. Written notice of the annual
assessment shall be sent to every Owner subject thereto. The due
dates and dates of each monthly installment payment shall be
established by the Board of Directors. The Association shall, upon
demand, and for a reasonable charge, furnish a certificate signed by
an officer of the Association setting forth whether the assessments
on a specified Unit have been paid.
G. Effect of Nonpayment of Assessments.
Section 6.08. Remedies of the Association. Any assessment not paid
within thirty (30) days after the due date shall bear interest from
the due date at the rate of ten percent (10%) per
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annum. The Association may bring an action at law against the owner
personally obligated to pay the same and/or foreclose the lien
against the property. No Owner may waive or otherwise escape
liability for the assessments provided for herein by nonuse of the
Common Area or abandonment or sale of his Unit.
Section 6.08.1. At any time after any assessments levied by the
Association, affecting any Condominium, have become delinquent, the
Board of Directors may file for recording in the Office of the Ban
Diego County Recorder a notice of delinquency as to such
Condominium, which notice shall state all amounts which have become
delinquent with respect to such Condominium, and the costs
(irfcluding attorney's fees) and interest which have accrued thereon,
the amount of any assessments relating to such Condominium which are
due and payable although not delinquent, and the name of the record
or reputed record owner of such Condominium. Such notice shall be
signed by a majority of the members of the Board of Directors, or by
the Association's attorney. In the event the delinquent assessments
and all other assessments which have become due and payable with
respect to the same Condominium, together with all costs (including
attorney's fees), penalties and interest which have accrued on such
amount, are fully paid or otherwise satisfied prior to the
completion of any sale held to foreclose the lien provided for in
this Article, the Hoard of Directors shall record a further notice,
similarly signed, stating the satisfaction and releasing of such
lien. Immediately upon recording of any notice of delinquency
pursuant to the foregoing provisions of this Section, the amounts
delinquent, as set forth in such notice, together with the costs,
including attorney's fees, penalties, and interest accruing thereon,
shall be and become a lien upon the Condominium following such
recording, and all costs, including attorney's fees, penalties and
interest accruing thereon.
Section 6.08.2. Each assessment lien of the Association may be
foreclosed as, and in the same manner, the foreclosure of a mortgage
upon real property under the laws of the State of California, or may
be enforced by sale pursuant to Section 2924 of the California Civil
Code and, to that end, a power of sale is hereby conferred upon the
Association.
H. Subordination of the Lien to Mortgages.
Section 6.09. The lien of the assessments provided for herein shall
be subordinate to the lien of any first mortgage made in good faith
and for value. Sales or transfer of any Unit shall not affect the
assessment lien. However, the sale or transfer of any Unit pursuant
to mortgage foreclosure which has priority over the assessment lien
shall extinguish the lien of such assessments as to payments which
become due prior to such sale or transfer. No sale or transfer shall
relieve such unit from liability for, any assessments thereafter
becoming due or from the lien thereof, and any purchaser at a
foreclosure sale, after its date, shall become liable for the
assessments upon said Unit.
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I. Exempt Property.
Section 6.10. All properties dedicated to, and accepted by, a local
public authority,, and all properties owned by a charitable or
nonprofit organization exempt from taxation by the laws of the State
of California, shall be exempt from the assessments created herein.
However, no condominium Units shall be exempt from said assessments.
J. Nonwaiver
Section 6.11. No Owner may waive or escape liability for the
assessments above by nonuse of the Common Area, his Unit, or
abandonment of his Unit.
H. Amendment.
Section 6.12. No amendment of this Article shall affect the rights
of a holder of any mortgage, recorded prior to the recordation, who
does not join in such amendment.
ARTICLE VII
ARCHITECTURAL CONTROL
A. Architectural Control Committee.
Section 7.01. The Board of Directors of the Association shall serve
as the Architectural Committee.
B. Alteration Limitations.
Section 7.02. No owner shall make any alteration, modifications or
changes in the exterior of any building, fence, wall, common wall,
or other structure erected and placed in or upon any Unit or upon
the Common Area, nor make any alteration, modification or change as
to any tree, shrub, plant or other landscaping upon any unit or upon
the Common Area, unless and until such change shall have been
approved, in writing, by the then owners of both of the Units in the
subdivision, as to quality of workmanship and materials, harmony of
exterior design with existing structures, and as to location with
respect to topography and finish grade elevations.
Section 7.03. The changing of the interior design, materials or
color within any building or structure, except a common wall or
garage, in such a manner that such change is not visible from
outside of such building, shall not constitute "alteration1 within
the meaning of Paragraph 7.02.
Section 7.04. Decisions of the Committee under this Article shall be
solely advisory in nature, and not binding except upon the written
assent of both of the Owners. The Committee's approval or
disapproval shall be in writing. In the event the
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Committee fails to recommend approval or recommend disapproval
within thirty (30) days after plans, specifications, and plats have
been submitted to it, such failure will constitute neither a
recommended approval nor a recommended disapproval.
ARTICLE VIII
USES
Section 8.01. No outdoor television or radio antenna shall be
erected, altered, placed or permitted on any of the Units or on the
Common Area, without the prior approval or consent thereto of the
Hoafrd of Directors.
Section 8.02. The Common Area shall not be obstructed and shall not
be used except for the purposes of installing, erecting,
constructing, and maintaining thereof (1) swimming pool(e) and other
recreational facilities, (ii) grass, flowers, shrubs, trees and
other landscaping appurtenances, (iii) utilities' transmission
facilities, provided the same (except for transformer boxes and
similar equipment not erected on poles, derricks, or similar
supports) are installed underground, (iv) the construction,
installation, and the maintenance thereof of utility and trash
storage area(s), structures arid fencing, and (v) lighting, sewers,
drainage, irrigation, television cables, and gates.
Section 8.03. None of the Units shall be used except for residential
purposes= no building shall be erected, altered, placed or permitted
to remain on any of the Units other than one single-family dwelling
and a private garage for automobiles. No unit shall be rented for a
period of less than twenty six (26) consecutive days.
Section 8.04. As to each Unit and Common Area:
Section 8.04.1. No improvement shall be erected, altered, placed or
permitted to remain in violation of any applicable ordinance.
Section 8.04.3. No structure of a temporary character, basement,
shack, garage, or other outbuilding, shall be used for residential
purposes, either temporarily or permanently.
Section 8.04.3. No truck trailer, boat or camper shall be permitted
to remain unless the same be within a garage.
Section 8.04.4. No Owner shall park any automobile, other vehicle,
or motor vehicle, except in the garages or designated
parking spaces, and said Owner shall be responsible for the cleaning
of any oil or similar streaks caused by leaking vehicles. All garage
doors shall be kept closed except when entering and leaving.
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Section 8.04.5. Temporary parking shall be permitted only
for loading and unloading.
Section 8.04.6. No animals or birds of any kind shall be
raised, bred, or kept, excepting household pate. No owner shall keep
in or upon any Unit, any household pet or pets which shall
constitute, either by reason or its nature, size, or number, a
nuisance to the other Unit owners. Further, the Hoard of Directors
of the Association shall have the right to promulgate, from time to
time, rules regulating household pate, including, without
restriction, rules relating to the number of pets, specie of pets,
size of pets, and control of pets.
Section 8.04.7. No noxious or offensive activities shall be
carried on nor shall anything be done which may be or may become an
annoyance or nuisance; normal and usual construction activities
associated with the installation or repair of any improvement
permitted by this Declaration shall not constitute noxious or
offensive activity or any annoyance or nuisance within the meaning
of this paragraph.
Section 8.04.8. No oil drilling development operations, oil
refining, quarrying, or mine operations of any kind shall be
permitted, nor shall oil wells, tanks, tunnels, or mineral
excavations or shafts be permitted. No derrick or other structure
designed for use in boring oil or natural gas shall be erected,
maintained, or permitted.
Section 8.05. Nothing shall be done or kept in the Common Area
or in a Unit which will increase the rate of insurance in the Common
Area or in other Units without prior written consent of the Board of
Directors.
Section 8.06. No signs shall be displayed in the Common Area
except to advertise the Unit for sale or lease, and then such signs
shall be in the form and format as designated by the Board of
Directors from time to time, and at a place or places designated by
the Board of Directors.
Section 8.07. None of the rights and obligations of the Owners
shall be altered by encroachments due to settling or shifting of
structures or any other cause. There shall be valid easements for
such encroachments and for the maintenance of such encroachments as
long as they exist, but there shall be no valid easement for
encroachments caused by any willful act or conduct of Owner.
Section 8.08. Except as provided herein, the Common Area shall
be used for open space and recreational facilities for the use and
benefit of the Members of the Association and their guests.
Section 8.09. Each Owner shall be legally liable to the
Association for all damages to the Common Area or to any Improvement
thereof or thereto, including but not limited to the buildings,
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recreation facilities, and landscaping caused by such owner or any
occupant of such Owners Unit.
Section 8.10. Each Owner shall have the right, at his sole cost and
expense, to maintain, repair, paint, paper, panel, plaster, tile and
finish the interior surfaces of the ceilings, floors, window frames,
door frames, trim and perimeter walls of his Unit and the surfaces
of the bearing walls and partitions located within the Unit. Said
Owners shall have the right to substitute new finished surfaces in
place of those existing on said ceiling, floors, walls, and doors of
said Unit. Each Owner shall have the obligation to keep in good
repair all items mentioned in this Section. No Owner shall paint,
altfsr or modify in any way the exterior of his Unit without the
prior written consent of the Board of directors.
Section 8.11. Each Restricted Use Area shall be (1) appurtenant to
the Condominium, the Unit of which bears the same number as the
Restricted Use Area as set forth on the Condominium Plan, and (ii)
used only for the purposes set forth in the Declaration. The right
to so use an Restricted Use Area shall be exercisable only by the
Owner(s) of the Unit appurtenant thereto and/or said Owner's
tenants. Conveyance of a Unit shall effect conveyance of Restricted
Use Areas appurtenant thereto, and transfer of all rights thereto to
the vested Owner of the Unit. No Restricted Use Area or any rights
thereto shall be transferred or conveyed apart from conveyance of
the Condominium to which it is appurtenant. Each Restricted Use Area
shall be deemed to be common Area for all those purposes set forth
in this Declaration which are not inconsistent with this Article or
the next Article.
Section 8.12. Each Owner shall have the following rights with regard
to the Restricted Use Area which he has the exclusive right to uses
(a) To place furniture and potted plants upon said area.
(b) To maintain flowers and shrubs and other landscaping installed
in a manner which does not unreasonably interfere with the enjoyment
of adjacent Units and Restricted Use Areas.
ARTICLE IX
RESPONSIBILITIES OF OWNERS
Section 9.01. Each Owner of a Unit shall be responsible for the
maintenance and repair of his Unit, including the glass doors and
windows enclosing his Unit, the frames and tracks of glass doors and
windows, the interior and exterior of his Unit, except the exterior
surfaces thereof, and all appliances, whether "built-in" or
freestanding, within the Unit, and shall also be responsible for the
maintenance and repair of the sewer, plumbing, lighting, electrical,
and heating systems servicing his Unit, and located either within or
without the outside perimeter of the exterior bearing walls thereof,
so long as those systems
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are used exclusively by such Owner and not in common, including
television cable equipment and connections, and all appliances and
equipment located in said Unit. Each Owner shall also be responsible
for the maintenance of the areas he has the exclusive right to use,
and shall make repairs in such manner as shall be deemed necessary
in the judgment of the Board of Directors to preserve the attractive
appearance thereof and protect the value thereof, excluding the
maintenance of the exterior surfaces thereof.
Section 9.02. In the event an owner fails to maintain the areas as
set forth above, and the plumbing, electrical and heating systems
thereof, as provided above, or make repairs thereto in such manner
as "shall be deemed necessary in the judgment of the Board of
Directors to preserve the attractive appearance thereof and protect
the value thereof, the Board of Directors shall give written notice
to such Owner, stating with particularity the work of maintenance or
repair which the Board of Directors finds to be required and
requesting that the same be carried out within a period of thirty
(30) days from the giving of such notice. In the event the Owner
fails to carry out such maintenance or repair within the period
specified by the notice, the Board of Directors shall cause such
work to be done and shall assess the cost thereof to such Owner. In
the event any Owner fails to maintain the exterior of his Unit,
except the surfaces thereof and Restricted Use Areas, as provided
herein, the Board of Directors, or its agents, shall have the right
to enter the Unit to the extent such entry is necessary to perform
such repair or maintenance.
Section 9.03. No Owner may sell, assign, lease or convey (1) his
interest in the Common Area, separate and apart from his Unit, nor
(ii) his interest in any Restricted Use Area separate and apart from
his interest in the Common Area and Unit.
Section 9.04. Party Walls. Each wall which is built as part of the
original construction of the Units, and placed on the dividing line
between the Units, shall constitute a party wall and, to the extent
not inconsistent with the provisions of this Section 9.04, the
general rules of law regarding party walls and liability for
property damage due to negligence or willful acts or omissions shall
apply thereto.
Section 9.04.1. The cost of reasonable repair and maintenance of a
party wall shall be shared by the Owners of adjacent Units in
proportion to such use.
Section 9.04.2. if a party wall is destroyed or damaged by fire or
other casualty, any Owner who has used the wall may restore it, and
if the other Owners thereafter make use of the wall, they shall
contribute to the cost of restoration in proportion to such, use
without prejudice, however, to the right of any such Owners to call
for a larger contribution from the
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others under any rule of law regarding liability for negligent or
willful acts or omissions.
Section 9.04.3. ' The right of any owner to contribution from any
other-Owner under this Section 9.04 shall be appurtenant to each
Unit and shall pass to such owner's successors in title.
Section 9.04.4. In the event of any dispute arising concerning a
party wall, or under the provisions of this Section 9.04, each party
shall choose one arbitrator who shall chose one additional
arbitrator, and the decision shall be by a majority of all of the
arbitrators. Any such arbitration shall be binding and be governed
by t:he provisions of the California Code of Civil Procedure.
ARTICLE X
COMMON AREA - CONVEYANCE AND IMPROVEMENTS
A. Conveyance.
Section 10.01. Each Owner of a Unit shall, upon acquiring fee title
to said Unit (or title under contract), automatically become a
Member of the Association. The membership in the Association shall
be appurtenant to and may not be separated from ownership of any
Unit and any Restricted Use Area appurtenant thereto which is
subject to assessment, and any lender (mortgagee-beneficiary) having
a lien upon any unit shall also have a lien upon the appurtenant
membership in the Association. Declarant may reserve easements in
the Common Area unto itself for a reasonable duration for common
driveway purposes, for drainage and encroachment purposes, and for
ingress to and egress from the Common Area for the purpose of
completing improvements.
B. Maintenance by Association.
Section 10.02. The Association has been created to act as the
"management body" for the maintenance, preservation, improvement and
architectural control of the Units and the Common Area, and, in
addition to the duties and powers enumerated in this Declaration and
contract limiting the generality thereof, the Association, under the
direction of the Board, shall have the powers set forth herein
below.
Section 10,02.1. To levy assessments and otherwise act as set forth
in Article VI.
Section 10.02.2. Maintain and manage the Common Area not subject to
the exclusive use of each Owned provided, however, that if an owner
shall fail to maintain or make necessary repairs thereto, the
Association shall have the right (but not the obligation) to provide
such maintenance or to make such
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repairs, at the Owner's cost which shall be subject to assessment on
said Owner's Unit.
Section 10.02.3. Maintain, in good repair, the exterior of all
buildings, improvements and appurtenances thereto. Exterior
maintenance of a Unit shall be limited to painting of all exterior
surfaces of the buildings, and' repairing and replacement of roofs,
exclusive of waterproofing. All other maintenance, replacements and
repairs shall be the responsibility of each owner; provided,
however, that if an owner shall fall to maintain or make repairs or
replacements which are the responsibility of such Owner, the
Association shall have the right (but not the obligation) to provide
sudh maintenance or to make such repairs or replacements at the
Owner's cost which shall be subject to assessment on said Owner's
Unit.
Section 10.02.4. Enter into any contracts and perform any other acts
as may be reasonably necessary to perform any duties or obligations
provided in this Declaration.
Section 10.02.5. Contract for fire and extended coverage insurance
for no less than one hundred percent (100%) of the replacement cost
of Common Areas and the Units (as defined herein). Such insurance
shall name the Association and the Owners as their interests appear.
Section 10.02.6. Contract for a comprehensive policy of public
liability insurance covering all the Common Area and public ways.
Such insurance policy shall contain a "Severability of Interest"
clause or endorsement which shall preclude the insurer from denying
a claim of an Owner because of the negligent acts of the
Association, or of the other Unit Owner. The coverage shall be for
at least $300,000 per occurrence for personal injury, and $50,000
for property damage.
C. Damage, Destruction, and Condemnation of Common Area,
Section 10.03. If any portion of the Common Area is damaged or
destroyed by fire or other casualty, there
Section 10.03.1. if the cost of repairing or rebuilding does not
exceed the amount of available insurance proceeds by more than
$5,000.00, the Board of Directors shall thereupon contract to repair
or rebuild the damaged portions of the Common Area substantially in
accordance with the original plans and specifications therefore.
Section 10.03.2. If the cost of repairing or rebuilding exceeds the
amount of available insurance proceeds by more than fifteen percent
(15%) of the current replacement cost, and the Board of Directors
and the owners agree to the repair or restoration of the project,
then the Board of Directors shall contract as provided in Section
10.03.1 above. If said Owners do not so agree, then all insurance
proceeds shall be paid to the
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account of the Association to be held for the benefit of the Owners
and their mortgagees as their respective interests shall appear.
Section 10.3.3. If a bid to repair or rebuild is accepted, the Hoard
of Directors shall levy a special assessment in proportion to the
interest of each Owner in the Common Area, a portion of which has
been damaged or destroyed, to make up any deficiency between the
total insurance proceeds and the contract price for such repair and
rebuilding, and such assessment and all insurance proceeds, whether
or not subject to liens of Mortgagees, shall be paid to the account
of the Association to be used for such rebuilding.
D. " Condemnation.
Section 10.04. If any portion of the Condominium Property is taken
by condemnation, eminent domain, or any proceeding in lieu thereof,
them
Section 10.04.1. In the event of any taking of a Unit or Restricted
Common Area the Owner (and his Mortgagee, as their interests may
appear) of the Unit shall be entitled to receive the award for such
taking and, after acceptance thereof, he and his Mortgagee shall be
divested of all further interest in the Condominium Property if such
Owner shall vacate his Unit as a result of such taking. In such
event, said Owner shall grant his interest in the Common Area, if
any, to the other Owners owning a fractional interest in the same
Common Area, such grant to be in proportion to the fractional
interest in the Common Area then owned by each.
Section 10.04.2. In the event of any taking of the Common Area
exclusive of Restricted Common Area, the Owners of the Common Area,
and their Mortgagees, shall be entitled to receive the award for
such taking in proportion to the interest of each in the Common
Area= provided, however, that should it be determined to repair or
rebuild any portion of the Common Area, such proceeds shall be paid
to the Association for that purpose in the same manner and subject
to the same terms, conditions and limitations as provided above in
Section 10.03 for determining whether to rebuild or repair following
damage or destruction.
S, Damage and Destruction of Units.
Section 10.05. In the event of damage or destruction to any Unit,
the Owner thereof shall reconstruct the same as soon as reasonably
practicable, and substantially in accord with the original plans and
specifications therefore; provided, however, that any such Owner
may, with the written consent of the Board, reconstruct or repair
the same pursuant to new or changed plans and specifications. In the
event the Board of Directors fails to approve or disapprove such
changed plans and specifications within sixty (60) days of the
receipt thereof, they shall be deemed to have been approved.
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ARTICLE XI
BREACH
Section 11.01. A breach of any of the covenants, conditions, and
restrictions contained in this Declaration which is not cured within
fifteen (15) days from the date of notice of such breach as given by
the Board of Directors or Declarant to the Owner on whose property
such breach occurs, or whose act or omission constitutes such
breach, shall give to Declarant, an Owner and the Board of Directors
or its successors, the remedies herein after set forth.
Section 11.02. A breach, as set forth in section 11.01 above, and
the continuation of any such breach, may be enjoined, abated or
remedied by appropriate proceedings in law or equity by any owner,
by Declarant or the successors in interest of Declarant, or by the
Board of Directors, it is hereby agreed that damages at law for such
breach are inadequate.
Section 11.03. The results of every act or omission which are a
breach, as set forth in Section 11.01 above, are hereby declared to
be and constitute a nuisance and every remedy allowed by law or
equity against a nuisance, either public or private, shall be
applicable against every such result and may be exercised by any
owner, by Declarant or its successor in interest as the Owners of
said right of re-entry, or by the Board of Directors.
Section 11.04. The remedies herein provided for breach of the
covenants contained in this Declaration shall be deemed cumulative,
and none of such remedies shall be deemed exclusive.
Section 11.05. The failure of Declarant, the Board of Directors, or
any Owner to enforce any of the covenants contained in the Articles
or this Declaration shall not constitute a waiver of the right to
enforce the same thereafter, nor shall such failure result in or
impose any liability on Declarant.
Section 11.06. A breach of covenants contained in the Articles or
this Declaration shall not affect or impair the lien or charge of
any bona fide mortgage or deed of trust made in good faith and for
value on any property= provided, however, that any subsequent Owner
of such property shall be bound by said covenants, whether such
Owner's title was acquired by foreclosure or in a trustee's sale or
otherwise. A lender who acquired title by foreclosure or deed in
lieu of foreclosure shall not be obligated to cure any breach of the
covenants which occurred prior to such acquisition of title if such
breach was or is noncurable or was a type of breach which is not
practical or feasible to cure.
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ARTICLE XII
GENERAL PROVISION RE: COVENANTS
A. Enforcement.
Section 12.01. The Association, or any Owner, shall have the right
to enforce, by any proceeding at law or in equity, all restrictions,
conditions, covenants, reservations, liens, and charges now or
hereafter imposed by the provisions of the Declaration. Failure by
the Association or by any owner to enforce any covenant or
restriction herein contained shall, in no event, be deemed a waiver
of "the right to do so thereafter.
Section 12.02. There is no purported power in the Association to
cause a forfeiture or abridgement of an Owner's right to the full
use and enjoyment of his individually owned subdivision interest on
account of a failure by the comer to comply with provisions of the
governing instruments or of duly enacted rules of operation for
Common Areas and facilities, except where the lose or forfeiture is
the result of the judgment of a court or a decision arising out of
arbitration or on account of a foreclosure or sale under a power of
sale for failure of the Owner to pay assessments levied by the
Association.
Section 12.03. The Board of Directors may impose monetary penalties,
temporary suspensions of an Owner's rights as a member of the
Association (including the right to vote) or other appropriate
discipline for failure to comply with the governing instruments,
provided that the accused is given notice and the opportunity to be
heard by the Board of Directors with respect to the alleged
violations before a decision to impose discipline is reached.
8. Severability.
Section 12.04. Invalidation of any one of these covenants or
restrictions by judgment or court order shall in no wise affect any
other provisions which shall remain in full force and effect.
C. Amendment.
Section 12.05. The covenants and restrictions of this Declaration
shall run with and bind the land, for a term of twenty (20) years
from the date this Declaration is recorded, after which time they
shall be automatically extended for successive period: of ten (10)
years. This Declaration may be amended by the vote or written
consent of members representing all of the voting power of the
membership= provided all First Mortgagees consent, in writing, to
such amendment if such amendment would affect the rights, powers,
privileges, interests or security of said First Mortgagees.
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ARTICLE XIII
SEVERABILITY
Section 13.00. The provisions hereof shell be deemed to be
independent and severable, and the invalidity or partial invalidity
or unenforceability of any one provision or portion thereof shall
not affect the validity or enforceability of any other provisions
hereof.
ARTICLE XIV
RIGHTS OF MORTGAGEES
Section 14.01. Any Owner may, voluntarily or involuntarily, encumber
his Condominium with or by a real property mortgage, deed of trust,
or other instrument of hypothecation.
Section 14.02: A breach of any of the foregoing limitations,
restrictions, conditions, or covenants except as provided in this
Article with respect to a breach by failure to pay any assessment),
shall not defeat or render invalid the lien of any mortgage or deed
of trust made in good faith and for value as to a Condominium=
provided, however, such limitations, restrictions, conditions, and
covenants shall be binding upon and effective against any person
whose title to said Condominium is acquired by foreclosure,
trustee's sale or otherwise.
Section 14.03. Each and every lien created by or pursuant to this
Declaration, including, but not limited to, the assessment liens
described in Article VI, in and shall be subordinate, inferior, and
subject to the lien and charge of any (i) first mortgage or deed of
trust encumbering any Condominium, given for value and of record
prior to the date of said assessment lien, and (ii) any blanket
construction (including acquisition) mortgage e) or deeds) of trust
encumbering all—or-any pact of the Project, which mortgage(s) or
deeds) of trust may have been expressly subordinated to this
Declaration.
Section 14.03.1. Any person who acquires title to any Condominium by
purchasing the same at & foreclosure or trustee's sale of any
mortgage or deed of trust described in Section 14.03 above, shell
take title to such Condominium free of any claims by or on behalf of
the Association for unpaid assessments, charges, and/or-fines (if
any) levied by the Association which accrue prior to the time such
purchaser takes title to such Condominium, and any assessment lien
and/or other lien of the Association then encumbering any such
Condominium shall be subordinate, inferior and subject to said
purchaser's title to such Condominium. Such unpaid assessments shall
be reallocated among the Owners (other than said purchaser).
Section 14.03.2. In the event any First Mortgagee (1) shall acquire
title to any Condominium by judicial foreclosure,
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exercise of power of sale contained in any real property mortgage or
deed of trust, or deed in lieu of foreclosure, and (ii) shah
thereafter sell and convey-such Condominium, any real property
mortgage or deed of trust received by such lender as security for
all or a portion of the purchase price of such Condominium ail be
incontrovertibly deemed "given for value". Notwithstanding the
providence of Section 14.03.1 above, any lien created by or pursuant
to this Declaration, which lien arises from the failure to pay
assessment(s) accruing during the period of such Mortgagee's holding
of title to said Condominium, shall be a lien superior to the lion
of said real property mortgage or deed of trust received to secure a
portion of said purchase price.
*•
Section 14.04. In the event of any breach or default hereunder by
any Owner, and in the further event such breach or default is not
cured within 60 days after its occurrence, the Board shall, if any
First Mortgagee of such Owner shall have so requested of the
Association, immediately notify, in writing, such First Mortgagee of
said default; provided, however, failure to give such notice shall
in nowise affect any right or remedy of any enforcing person under
the Article entitled "Scope; Enforcement".
ARTICLE XV
INTERPRETATION
Section 15.00. The provisions of this Declaration shall be liberally
construed to effectuate its purpose of creating a uniform plan for
the development and operation of a condominium project. Failure to
enforce any provision hereof shall not constitute a waiver of the
right to enforce said provisions or any other provision hereof.
ARTICLE XVI
LIMITATION OF LIABILITY
Section 16.00. The liability of any Owner for performance of any of
the provisions hereof shall terminate upon sale, transfer,
assignment, or other divestiture of said Owner's entire interest in
his or her Unit with respect to obligations arising hereunder from
and after the date of such divestiture.
ARTICLE XVII
MISCELLANEOUS
Section 17.01. The plural shall include the singular, and the
masculine the feminine when required for interpretation.
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Section 17.02. Any Owner may, at any time during business hours, at
his own expense, cause an audit or inspection to be made of the
books and records of the Board of Directors.
Section 17.03. Except as otherwise provided heroin, the provisions
of this Declaration, before the closing of title on the first unit,
shall be amended by the Record Owners of the Properties. Thereafter,
it may be amended by an instrument, in writing, signed and
acknowledged by Records Owners holding seven- percent (751) of the
total vote hereunder and, if otherwise required by law, with the
consent of the Department of Real Estate, the Amendment to be
effective upon recordation at the office of the Recorder of San
Die*go County, California.
Section 17.01. Nothing herein shall be construed to grant the City
of Carlsbad, California, power or authority to enforce the
provisions of this Declaration nor constitute the City an enforcing
agent of any owner.
IN WITNESS WHEREOF, the undersigned, being the Declarant
herein, has hereunto set its hand and seal this 19 day of
?nnn
DECLARANT:
u
STATE OF CALIFORNIA)
) ss
COUNTY OF SAN DIEGO)
On before me, the,undersigned, a
r said State, personally appeared RobertNotary Public in and
Stine and Margare£5.Stih~e, personally known^tfo me, or proved to me on
the basis of satisfactory evidence, to he^the persons whose names
are subscribed to the within instrumeprlf7 and acknowledged to me that
they executed the same
WITNESS my hand and official
(Seal)
DO
/"PUBLIC-CALIFORNIA
-'SAN DIEGO COUNTY o)
My CoKm Expire. Apr* 12,2003 „
-23-
EXHIBIT A
Lot 135 of La Costa South Unit No. 1, in the City of Carlsbad,
County of San Diego, State of California, according to map there-
of No. 6117 filed in the office of the San Diego County Recorder
On November 3, 1969.
ALL PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF San Diego
}
}SS.
.}attach to Declaration of Covenants
Conditions and Restrictions Lot 135 of
La Costa South Unit No. 1
Matilda LepaOn December 19, 2000 before ^ _
personally appeared *Robert A. Stine and Margaret J. Stine*
.personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is(7are)subscribed to the within
instrument and acknowledged to me that he/shffiheyJBxecuted the same in his/herffiejrjauthorized capacity(ies)-
and that by his/hertftaiiysignaturete) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature flrffl/fa/ffl.
MATILDA LEPA
COMM. #1215813
NOTARY PUBUOCAUFOBNIA
SAN DIEGO COUNTY
MyComm ExpketApriM2,2003
(This area for official notarial seal!
4/W
*H1 1