COMMON
INTEREST COMMUNITY NO.__
Planned
Community
BEAR
RIDGE AT ASH RIVER
DECLARATION
Page 2
1.50. Limited Allocation Assessments. In addition to annual Assessments and special Assessments, the Board may, at its discretion, levy and allocate limited allocation Assessments among only certain Units in accordance with the following requirements and procedures:
a. Any Assessment associated with the maintenance, repair, or replacement of a Limited Common Element may be assessed exclusively against the Unit or Units to which that Limited Common Element is assigned.
b. Any Assessment or portion thereof benefiting fewer than all of the Units may be assessed exclusively against the Unit or Units benefited.
c. The costs of insurance may be assessed in proportion to the square footage or actual cost per Unit and the costs of utilities may be assessed in proportion to usage.
d. Reasonable attorneys' fees and other costs incurred by the Association in connection with (i) the collection of Assessments and (ii) the enforcement of the Governing Documents, the Act, or the Rules and Regulations, against an Owner or Occupant or their guests, may be assessed against the Owner's Unit.
e. Late charges, fines and interest may be assessed as provided in Section 14.
£ Assessments levied under Section 515B.3-1 16(a) of the Act to pay a judgment against the Association may be levied only against the Units existing at the time the judgment was entered, in proportion to their Common Expense liabilities.
g. If any damage to the Common Elements or another Unit is caused by the act or omission of any Owner or Occupant, or their guests, the Association may assess the costs of repairing the damage exclusively against the Owner's Unit to the extent not covered by insurance.
h. If any Assessment or installment of an Assessment becomes more than 30 days past due, then the Association may, upon 10 days' written notice to the Owner, declare the entire amount of the Assessment immediately due and payable in full.
i. If Common Expense liabilities are reallocated for any purpose authorized by the Act, Assessments and any installment thereof not yet due shall be recalculated in accordance with the reallocated Common Expense liabilities.
Assessments levied under Sections 1.50 a. through g. may, at the Board's discretion, be assessed as a part of, or in addition to, the Assessments levied under 1.47.
1.51. Working Capital Fund. There shall be established a working capital fund to meet unforeseen expenditures or to purchase additional equipment or services during the Association's beginning years of operation. The Board shall include in each subsequent annual budget a reasonable amount of working capital, based upon the anticipated needs of the Association for the year in question. There shall be contributed on a one-time basis for each Unit sold an amount equal to two months installments of the estimated Common Expense Assessment for the Unit. The contribution shall be paid at the earlier of the time of closing of sale of the Unit or the time of termination of the period of Declarant control under Section 1.139. The contributions to this fund are in addition to the regular monthly installments of Assessments. The funds shall be deposited into a segregated Association account no later than the termination of the period of Declarant control. Declarant may not use the funds to defray any of its expenses, reserve contributions or construction costs, or to make up any budget deficit while Declarant is in control of the Association. However, upon the closing of the sale of an unsold Unit, Declarant may reimburse itself from funds collected from the purchaser at the closing for any contributions made by Declarant to the working capital fund with respect to that Unit.
1.52. Liability of Owners for Assessments. The obligation of an Owner to pay Assessments shall commence at the later of (i) the time at which the Owner acquires title to the Unit, or (ii) the due date of the first Assessment levied by the Board, subject to the alternative Assessment program described in Section 1.53. The Owner at the time an Assessment is payable with respect to the Unit shall be personally liable for the share of the Common Expenses assessed against such Unit. Such liability shall be joint and several where there are multiple Owners of the Unit. The liability is absolute and unconditional. No Owner is exempt from liability for payment of Assessments by right of set-off, by waiver of use or enjoyment of any part of the Property, by absence from or abandonment of the Unit, by the waiver of any other rights, or by reason of any claim against the Association or its officers, directors or agents, or for their failure to fulfill any duties under the Governing Documents or the Act. The Association may invoke the charges, sanctions and remedies set forth in Section 14, in addition to any remedies provided elsewhere in the Governing Documents, the Rules and Regulations, or by law, for the purpose of enforcing its rights hereunder.
1.53. Declarant's Alternative Assessment Program. The following alternative Assessment program is established pursuant to Section 5115B.3- 115(a)(2) of the Act. Notwithstanding anything to the contrary in this 1.46, if a Common Expense Assessment has been levied, any unsold Unit owned by Declarant shall be assessed at the rate of 25 percent of the Assessments levied on other Units of the same type until a certificate of occupancy has been issued with respect to such Unit by the municipality or County in which the Unit is located. This reduced Assessment shall apply to each Unit owned by Declarant at the time that the Unit is created, and shall terminate with respect to each such Unit, upon the issuance of the certificate of occupancy for the Unit. Although this alternative Assessment program will not affect the allocated share of replacement reserves attributable to Units owned by Declarant, there are no assurances that there will be no effect on the level of services for items set forth in the Association's budget.
1.54. Assessment Lien. The Association has a lien on a Unit for any Assessment levied against that Unit from the time the Assessment becomes due. If an Assessment is payable in installments, the full amount of the Assessment is a lien from the time the first installment thereof becomes due. Fees, charges, late charges, fines and interest charges imposed by the Association pursuant to Section 515B.3-l 02(a) (10), (11) and (12) of the Act are liens, and are enforceable as Assessments, under this Section. Recording of the Declaration constitutes record notice and perfection of any lien under this Section, and no further recordation of any notice of or claim for the lien is required. The release of the lien shall not release the Owner from personal liability unless agreed to in writing by the Association.
1.55. Foreclosure of Lien: Remedies. A lien for Assessments may be foreclosed against a Unit under the laws of the state of Minnesota (i) by action, or (ii) by advertisement in a like manner as a mortgage containing a power of sale. The Association, or its authorized representative, shall have the power to bid in at the foreclosure sale and to acquire, hold, lease, mortgage and convey any Unit so acquired. The Owner and any other Person claiming an interest in the Unit, by the acceptance or assertion of any interest in the Unit, grants to the Association a power of sale and full authority to accomplish the foreclosure. The Association shall, in addition to its other remedies, have the right to pursue any other remedy at law or in equity against the Owner who fails to pay any Assessment or charge against the Unit.
1.56. Lien Priority: Foreclosure. A lien for Assessments is prior to all other liens and encumbrances on a Unit except (i) liens and encumbrances recorded before the Declaration, (ii) any first mortgage on the Unit, and (iii) liens for real estate taxes and other governmental Assessments or charges against the Unit. Notwithstanding the foregoing, if (1) a first mortgage on a Unit is foreclosed, (2) the first mortgage was recorded on or after the date of recording of this Declaration, and (3) no Owner redeems during the Owner's period of redemption provided by Minnesota Statutes, Chapters 580, 581, or 582, then the holder of the sheriff's certificate of sale from the foreclosure of the first mortgage shall take title to the Unit subject to unpaid Assessments for Common Expenses levied pursuant to Sections 515B.3-115(a), (h)(1) to (3), (i), and (1) of the Act which became due, without acceleration, during the six months immediately preceding the first day following the end of the Owner's period of redemption.
1.57. Voluntary Conveyances: Statement of Assessments. In a voluntary conveyance of a Unit, the buyer shall not be personally liable for any unpaid Assessments and other charges made by the Association against the seller or the seller's Unit prior to the time of conveyance to the buyer, unless expressly assumed by the buyer. However, the lien of such Assessments shall remain against the Unit until released. Any seller or buyer shall be entitled to a statement, in recordable form, from the Association setting forth the amount of the unpaid Assessments against the Unit, including all Assessments payable in the Association's current fiscal year, which statement shall be binding on the Association, seller and buyer.
SECTION 7. RESTRICTIONS ON USE OF PROPERTY
All Owners and Occupants, and all secured parties, by their acceptance or assertion of an interest in the Property, or by their occupancy of a Unit, covenant and agree that, in addition to any other restrictions which may be imposed by the Act or the Governing Documents, the occupancy, use, operation, alienation and conveyance of the Property shall be subject to the following restrictions:
1 .58. General. The Property shall be owned, conveyed, encumbered, leased, used and occupied subject to the Governing Documents and the Act, as amended from time to time. All covenants, restrictions and obligations set forth in the Governing Documents are in furtherance of a plan for the Property, and shall run with the Property and be a burden and benefit to all Owners and Occupants and to any other Person acquiring or owning an interest in the Property, their heirs, personal representatives, successors and assigns.
1.59. Subdivision Prohibited. Except as permitted by the Act and as otherwise provided herein, no Unit nor any part of the Common Elements may be subdivided or partitioned without the prior written approval of all Owners and all secured parties holding first mortgages on the Units.
1.60. Residential Use. The Units shall be used by Owners and Occupants and their guests exclusively as private, single-family residential dwellings, and not for transient, hotel, commercial, business or other non-residential purposes, except as provided in Section 1.61. The number of occupants per Dwelling shall be restricted in accordance with the Building Officials and Code Administration (BOCA) occupancy restrictions. Any lease of a Unit (except for occupancy by guests with the consent of the Owner) for a period of less than seven days, or any occupancy which includes services customarily furnished to hotel guests, shall be presumed to be for transient purposes.
1.61. Business Use Restricted. No business, trade, occupation or profession of any kind, whether carried on for profit or otherwise, shall be conducted, maintained or permitted in any Unit or the Common Elements except:
a. An Owner or Occupant residing in a Unit may maintain a home occupation in such Unit and handle matters relating to such home occupation by telecommunications or correspondence therefrom; provided, that such uses are incidental to the residential use; do not involve physical alteration of the Unit visible from the exterior; are in compliance with all governmental laws, ordinances and regulations; and do not involve any observable business activity such as signs, advertising displays, regular deliveries, or pedestrian or vehicular traffic to and from the Unit by customers or employees.
b. The Association may maintain offices on the Property for management and related purposes.
c. Declarant may maintain offices, sales facilities and other business facilities on the Property in connection with the exercise of its special declarant rights.
1.62. Leasing. Leasing of Units shall be allowed, subject to reasonable regulation by the Association, and subject to the following conditions: (i) that no Unit shall be leased for transient or hotel purposes, (ii) that no Unit may be subleased, (iii) that all leases shall be in writing, and (iv) that all leases shall provide that they are subject to the Governing Documents, the Rules and Regulations and the Act, and that any failure of the lessee to comply with the terms of such documents shall be a default under the lease. The Association may impose such reasonable Rules and Regulations as may be necessary to implement procedures for the leasing of Units, consistent with this Section.
1 .63. Delegation of Use. An Owner may delegate, in accordance with the Governing Documents, the Owner's right of use and enjoyment of the Unit to persons living in the Unit pursuant to a legal right of possession; provided, that such persons shall be subject to the Governing Documents and the Rules and Regulations. If lessees, or other persons other than the Owner or the Owner's family, have been given the legal right to possess the Owner's Unit, then those persons shall have the right to use any common recreational facilities, parking, storage and other amenities on the Property in lieu of the Owner and the Owner's family.
1.64. Parking. Garages and parking areas on the Property shall be used only for parking of vehicles owned or leased by Owners and Occupants and their guests, and such other incidental uses as may be authorized in writing by the Association. The use of garages, driveways and other parking areas on the Property, and the types of vehicles and personal property permitted thereon, shall be subject to regulation by the Association, including without limitation the right of the Association to tow illegally parked vehicles or to remove unauthorized personal property.
1.65. Animals. No animal may be bred, or kept or maintained for business or commercial purposes, anywhere on the Property. However, subject to the previous restriction, the Board shall have the exclusive authority to prohibit, or to allow and regulate, by Rules and Regulations, the keeping of animals on the Property. This authority may be exercised so as to permit or prohibit different types of animals, but those animals which are permitted (if any) shall be limited to common domestic house pets such as dogs, cats, fish, birds and the like. The word "animal" shall be construed in its broadest sense and shall include all living creatures except humans.
1.66. Quiet Enjoyment: Interference Prohibited. All Owners and Occupants and their guests shall have a right of quiet enjoyment in their respective Units. The Property shall be occupied and used in such a manner as will not cause a nuisance, nor unduly restrict, interfere with or impede the use and quiet enjoyment of the Property by other Owners and Occupants and their guests.
1.67. Garbage. Neither a Unit nor any portion of the Property shall be used or maintained as a dumping ground for rubbish, trash, garbage or other waste. Garbage, rubbish and trash shall not be kept on the Property except in commercial containers serviced at least once a week by commercial haulers or in sanitary containers kept out of sight, except on day of trash collection. All such containers shall be kept in a clean and sanitary condition.
1.68. Temporary Residence. No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other temporary building shall be used on any portion of the Property at any time as a residence, except that a travel trailer may be used as a temporary residence for up to 18 months after construction is commenced on the primary residential structure on a Unit. Modular and manufactured homes are allowable as a residence, subject to the provisions of Section 8 below.
1.69. Recreational Vehicles. No trailers, boats, buses, motor homes, campers, snowmobiles, golf carts or other similar types of recreational vehicles shall be parked adjacent to or on any Unit unless in a garage or unless such is kept in a neat and clean condition and provided that such are completely screened from adjacent Units and adjacent Common Elements and Limited Common Elements, and provided further that such items are not parked closer than 30 feet from a Common Element or Limited Common Element or 20 feet from any other Unit.
1.70. Abandoned Vehicles. No abandoned motor vehicle shall be permitted to remain upon any Unit, any Common Element or any Limited Common Element. The Association shall have the right to remove any such vehicle at any time, and assess the costs of such removal against the Unit which is owned or occupied by the person in control or possession of such vehicle.
1.71. Fences. No fences or boundary walls shall be erected on any Unit or any Limited Common Element.
1.72. Exterior Lighting. All exterior lighting shall be restrained, limited and subdued so as not to interfere in any way with the use and enjoyment of adjacent Units, Common Elements and Limited Common Elements.
1.73. Garage Doors. No Owner or Occupant of any Unit shall permit door(s) of any garage constructed as part of the improvements to any Unit to remain open, except at such times as such Owner or Occupant is entering or exiting such garage or is present in the garage.
1.74. Commercial Vehicles. Commercial vehicles are prohibited on the Property except for temporary loading and unloading or as may be designated by the Board. Parking spaces located on the Property may not be used for any purpose other than to park motor vehicles, excluding, specifically, heavy trucks (i.e., trucks larger than 3/4 ton pickup trucks), commercial vehicles, trailers or boats without the prior express approval of the Board.
1.75. Compliance with Law. No use shall be made of the Property which would violate any then existing municipal codes or ordinances, or state or federal laws, nor shall any act or use be permitted which could cause waste to the Property, cause a material increase in insurance rates on the Property, or otherwise cause any unusual liability, health or safety risk, or expense, for the Association or any Owner or Occupant.
1.76. Improvements. Except for those made by Declarant in consideration of its initial sale of a Unit, no improvements (as defined in Section 8) shall be made, or caused or allowed to be made, in any part of the Common Elements, or in any part of the Unit which affects the Common Elements or another Unit or which is visible from the exterior of the Unit, without the prior written authorization of the Board, or a committee appointed by it, as provided in Section 8.
1.77. Ponds: Wetlands and Trees. Ponds, marshes, wetland areas, vegetation and trees, whether located on the Units or the Common Elements, and whether natural or otherwise, shall be maintained in substantially the same condition as originally established, subject only to (i) changes authorized by the Association consistent with all statutes, requirements, rules and regulations imposed on such areas and items by governmental authorities having jurisdiction and (ii) the prior approval of any such governmental authorities, if required. No cutting, mowing, trimming, draining, dredging or other alteration of such areas and items shall be permitted, except as authorized by this Section 1.77, it being the intention that such areas and items remain and be maintained in substantially their condition as of the date of recording of this Declaration, and subject to natural changes.
1.78. Time Shares Permitted. The time share form of ownership, or any comparable form of lease, occupancy rights or ownership which has the effect of dividing the ownership or occupancy of a Unit into separate time periods, is permitted.
1.79. Access to Units. In case of emergency, all Units and Limited Common Elements are subject to entry, without notice and at any time, by an officer or member of the Board, by the Association's management agents or by any public safety personnel. Entry is also authorized for maintenance purposes under Section 9 and Section 13 and for enforcement purposes under Section 14.
SECTION 8. ARCHITECTURAL STANDARDS
1.80. Restrictions on Improvements. One of the purposes of this Declaration is to ensure that those parts of the Units which are visible from the exterior be kept architecturally attractive and uniform in appearance. Therefore, the following restrictions and requirements shall apply to improvements on the Property:
a. Except as expressly provided in this 1.80, no Dwelling, structure, building, addition, deck, patio, fence, wall, enclosure, window, exterior door, antenna or other type of sending or receiving apparatus, sign, display, decoration, color change, shrubbery, material topographical or landscaping change, nor any other exterior improvements to or alteration of any Dwelling or any other part of a Unit which affects the Common Elements or another Unit, or which is visible from the exterior of the Unit (collectively referred to as "improvements"), shall be commenced, erected or maintained, unless and until the plans and specifications showing the nature, kind, shape, height color, materials and locations of the improvements shall have been approved in writing by the Board or a committee appointed by it. Notwithstanding the foregoing, Declarant's written consent shall also be required for improvements until the expiration of the Declarant control period described in Section 1.139.
b. The Board may appoint, supervise and disestablish an architectural committee, and specifically delegate to it part or all of the functions which the Board exercises under this Section 8, in which case the references to the Board shall refer to the architectural committee where appropriate. The architectural committee shall be subject to the supervision of the Board.
c. The Board shall establish the criteria for approval of improvements, which shall include and require, at a minimum:
(1) substantial uniformity of color, size, location, type and design in relation to existing Dwellings and topography,
(2) comparable or better quality of materials as used in existing Dwellings,
(3) ease of maintenance and repair,
(4) adequate protection of the Property, the Association, Owners and Occupants from liability and liens arising out of the proposed improvements,
(5) substantial preservation of other Owners' sight lines, if material, and
(6) compliance with governmental laws, codes and regulations.
The Board, or the appointed committee if so authorized by the Board, shall be the sole judge of whether the criteria are satisfied.
d. Approval of improvements which encroach upon another Unit or the Common Elements shall create an appurtenant easement for such encroachment in favor of the Unit with respect to which the improvements are approved, notwithstanding any contrary requirement in the Governing Documents or the Act. A file of the resolutions approving all improvements shall be maintained permanently as a part of the Association's records.
e. Notwithstanding the foregoing, the installation of an antenna one meter or less in diameter for the purpose of receiving direct broadcast/satellite service or video programming services, or any antenna for receiving television broadcast signals, may be installed on a Dwelling, as permitted by applicable federal law; provided, that the antenna shall be installed so as to minimize its visibility and otherwise camouflage its appearance, and so as not to impose a greater maintenance burden on the Association or damage any Dwelling. The Board shall have authority to impose further, reasonable requirements consistent with law.