Hearthstone Village Community Association

Covenant

Attached from September, 2019.

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Below is an unofficial copy of the covenant for convenience.

AMENDED AND RESTATED
DEDICATION, PROTECTIVE RESTRICTIONS, COVENANTS,
LIMITATIONS, EASEMENTS AND APPROVALS APPENDED
OF THE PLAT OF HEARTHSTONE VILLAGE, SECTION I AND SECTION II
A SUBDIVISION IN WASHINGTON TOWNSHIP, ALLEN COUNTY, INDIANA

The Department of Planning Services granted approval on September 16, 2019.

The Allen County Recorder recorded the documents on September 23, 2019.

This Amended and Restated Dedication, Protective Restrictions, Covenants, Limitations, Easements and Approvals (“Amended and Restated Covenants”) Appended to the Plat of Hearthstone Village, Section I and Section II (“Subdivision”) is made effective as of August ____, 2019, by the Hearthstone Village Community Association, Inc. and at least seventy-five percent (75%) of the Lot Owners in the Subdivision, all of whom have executed these Amended and Restated Covenants.

The Lots in the Subdivision are numbered from 1 through 218 inclusive, and all dimensions are shown in feet and decimals of a foot on the plats for Section I and Section II.

RECITALS

WHEREAS, on April 19, 1990, the Secondary Plat of Hearthstone Village, Section I (“Section I Plat”) and the Dedication, Protective Restrictions, Covenants, Limitations, Easements and Approvals Appended of the Plat of Hearthstone Village, Section I (“Section I Covenants”) were recorded in the Allen County Recorder’s Office as Document No. 90-014880 in Plat Book B, Page 19; and

WHEREAS, on November 29, 1990, the First Amendment to the Section I Covenants (“First Amendment to Section I Covenants”) was recorded in the Allen County Recorder’s Office as Document No. 90-047532; and

WHEREAS, on May 30, 1991, Articles of Incorporation for the Hearthstone Village Community Association (“Association”) were filed in the Office of the Indiana Secretary of State; and

WHEREAS, on June 3, 1991, the Secondary Plat of Hearthstone Village, Section II (“Section II Plat”) and the Dedication, Protective Restrictions, Covenants, Limitations, Easements and Approvals Appended of the Plat of Hearthstone Village, Section II (“Section II Covenants”) were recorded in the Allen County Recorder’s Office as Document No. 91-022086 in Plat Cabinet B, Page 59; and

WHEREAS, both the Section I Covenants and the Section II Covenants each provide that these restrictive covenants may be altered or amended by the Lot Owners of seventy-five percent (75%) of the Lots in Section I and Section II, respectively; and

WHEREAS, the Lot Owners desire to provide for the preservation and enhancement of the values and amenities in the Subdivision and, to this end, the Lot Owners desire to subject Section I and Section II to the certain rights, privileges, covenants, restrictions, easements, assessments, charges and liens, each and all to the extent provided in these Amended and Restated Covenants, for the benefit of the Subdivision and each Lot and the Lot Owners, and their successors and assigns.

NOW, THEREFORE, at least seventy-five percent (75%) of the Lot Owners of Lots 1 through 131 in Section I and of Lots 132 through 218 in Section II hereby declare that the Subdivision is and shall be owned, held, transferred, sold, conveyed, mortgaged, encumbered, leased, rented, used, improved and occupied subject to the provisions, agreements, conditions, covenants, restrictions, easements, assessments, charges and liens hereinafter set forth, all of which are declared to run with the land and to be in furtherance of a plan for preservation and enhancement of the Subdivision and are established and agreed upon for the purpose of enhancing and protecting the value, desirability and attractiveness of the Subdivision as a whole and of each of the Lots situated therein.

Section 1. DEFINITIONS.

The following words and phrases shall have the meanings stated, unless the context clearly indicates that a different meaning is intended:

1.1 Articles. The articles of incorporation adopted by the Association and approved by the Indiana Secretary of State, and all amendments to those articles.

1.2 Association. Hearthstone Village Community Association, Inc., an Indiana, not-for-profit corporation, and its successors and assigns.

1.3 Board of Directors. The duly elected board of directors of the Association.

1.4 Bylaws. The bylaws adopted by Hearthstone Village Community Association, Inc., and all amendments to those bylaws.

1.5 Committee. The Architectural Control Committee established under Section 5 of the Amended and Restated Covenants.

1.6 Common Area. All real property owned by the Association for the common use and enjoyment of Owners in the Subdivision, including but not limited to the areas designated as “blocks” on the face of the Section I Plat and the Section II Plat.

1.7 Covenants. These Amended and Restated Covenants and the restrictions, limitations and covenants imposed under it.

1.8 Lot(s). Any of the platted lots in the Section I Plat and the Section II Plat, or any tract(s) of real estate which may consist of one or more Lots or part(s) of them upon which a residence is erected in accordance with the Covenants, or such further restrictions as may be imposed by any applicable zoning ordinance, provided, however, that no tract of land consisting of part of a Lot, or parts of more than one Lot, shall be considered a “Lot” under these Covenants unless the tract has a frontage of at least 70 feet in width at the established front building line as shown on the Section I Plat or the Section II Plat.

1.10 Owner(s). The record owner(s) (whether one or more persons or entities) of fee simple title to the Lots, including contract sellers, but excluding those having an interest in a Lot merely as security for the performance of an obligation.

1.11 Plan Commission. The Fort Wayne Plan Commission, or its successor agency.

1.12 Plat. The Section I Plat and the Section II Plat.

1.13 Subdivision. The platted Subdivision of Hearthstone Village, Section I and Section II.

Section 2. PROPERTY RIGHTS.

2.1 Owners’ Easements of Enjoyment.

Each Owner shall have the right and an easement of enjoyment in the Common Area that is appurtenant to and passes with the title to every Lot, subject to the following rights which are granted to the Association.

2.1.1

To charge reasonable admission and other fees for the use of any recreational facility located in the Common Area.

2.1.2

To suspend the voting rights and the right to the use of the recreational facilities in the Common Area for any period during which any assessment against the owner’s Lot remains unpaid, or an Owner is in violation of the Covenants, the Articles, the Bylaws, or any published rule of the Association.

2.1.3

To dedicate or transfer all or any part of the Common Area to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the Association’s members. No such dedication or transfer shall be effective unless an instrument signed by at least two-thirds (2/3) of each class of Association members agreeing to such dedication or transfer is recorded.

Section 3. MEMBERSHIP AND VOTING RIGHTS.

3.1 Membership.

Every Owner shall be a member of the Association. Membership shall be appurtenant to and may not be separated from ownership of a Lot.

3.2 Voting Rights.

The Association shall have one class of voting memberships.

  • All Owners shall be entitled to one vote for each Lot owned.
  • When more than one person holds an interest in a Lot, all such persons shall be members.
  • The vote for such Lot shall be exercised as its Owners among themselves determine, but in no event shall more than one vote be cast with respect to a Lot.

Section 4. COVENANT FOR MAINTENANCE ASSESSMENTS.

4.1 Creation of the Lien and Personal Obligation of Assessments.

Each Owner, except the Developer, by acceptance of a deed for a Lot, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association:

  1. Annual assessments or charges, and
  2. Special assessments for capital improvements.

Such assessments shall be established and collected as provided in these Covenants and the Bylaws.

  • The annual and special assessments, together with interest, costs, and reasonable attorney fees, shall be a charge on the land and shall be a continuing lien upon the Lot against which each such assessment is made.
  • Each such assessment, together with interest, costs, and reasonable attorney fees, shall also be the personal obligation of the person who was owner of such Lot at the time when the assessment became due.
  • The personal obligation for delinquent assessments shall not pass to an owner’s successors in title unless expressly assumed by them.

4.2 Purpose of Assessments.

The assessments levied by the Association shall be used exclusively for:

  • Promoting the recreation, health, and welfare of the residents in the Subdivision, and
  • Improvement of facilities in the Subdivision.

Additionally, assessments shall be levied to provide for the proportionate burden of the maintenance of the common impoundment basin into which the Subdivision’s surface waters drain.

4.3 Maximum Annual Assessments.

  • Until January 1 of the year immediately following the first conveyance by Developer of a Lot, the maximum annual assessment shall be Eighty-Five Dollars ($85.00) per Lot.
  • Subsequent assessments may be made as follows:

4.3.1

From and after January 1 of the year immediately following such first conveyance of a Lot, the maximum annual assessment may be increased by the Board of Directors, by a percentage not more than 8% above the annual assessment for the previous year, without a vote of the membership.

4.3.2

From and after January 1 of the year immediately following such first conveyance of a Lot, the maximum annual assessment may be increased by a percentage in excess of 8%, only by the vote or written assent of a majority of each class of members of the Association.

4.4 Special Assessments for Capital Improvements.

In addition to the annual assessments authorized in Section 4.3, the Association may levy, in any assessment year, a special assessment applicable to that year for the purpose of:

  • Defraying, in whole or in part, the cost of any new construction, or
  • Repair or replacement of an existing capital improvement, in the Common Area, including fixtures and related personal property.

Any such special assessment requires the vote or written assent of 75% of each class of members of the Association.

Furthermore, no such special assessment for any purpose shall be made if the assessment in any way jeopardizes or affects the Association’s ability to:

  • Improve and maintain its Common Area, or
  • Pay its pro rata share of the cost of maintaining the common impoundment basin.

4.5 Notice and Quorum for Any Action Authorized Under Subsections 4.3 and 4.4.

  • Any action authorized under Sections 4.3.2 and 4.4 shall be taken at a meeting of the Association called for that purpose, with written notice sent to all members not less than 30 days, nor more than 60 days, in advance of the meeting.
  • If the proposed action is favored by a majority of the votes cast at such meeting, but the vote is less than the requisite majority of each class of members, members who were not present in person or by proxy may give their assent in writing, provided the same is obtained by an officer of the Association within 30 days of the date of such meeting.

4.6 Uniform Rate of Assessment.

  • Both annual and special assessments must be fixed at a uniform rate for all Lots and may be collected on a monthly or yearly basis.

4.7 Date of Commencement of Annual Assessments/Due Dates.

  • The annual assessments allowed under Section 4.3 shall commence as to all Lots then subject to an assessment, on the first day of the month following the conveyance of the Common Area.
  • The first annual assessment shall be prorated 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 Lot at least 30 days in advance of the date the annual assessment is due.
  • Written notice of the annual assessment shall be given to every Owner.
  • The due dates shall be established by the Board of Directors.

The Association shall, upon demand and for a reasonable charge, furnish a certificate stating whether an assessment on a Lot has been paid.

Section 5. ARCHITECTURAL CONTROL

5.1 Approval of Structures.

No building, fence, wall, in-ground swimming pool, or other structure shall be commenced, erected, or maintained upon a Lot, nor shall any exterior addition, change, or alteration be made to a structure until the plans and specifications showing the structure’s nature, kind, shape, height, materials, and location are submitted to and approved by the Committee in writing.

The Committee shall determine harmony of external design and location in relation to surrounding structures and topography in the Subdivision.

  • The Board of Directors shall appoint the members of the Committee annually.
  • If a member of the Committee dies or resigns, the Board of Directors shall appoint a successor to fulfill the remaining term of that member.

5.2 Authority of the Committee.

The Committee shall have the exclusive authority and responsibility to review plans for construction of all primary residences in the Subdivision.

  • The Committee may delegate to the Board of Directors (or to another entity designated in the Articles or Bylaws) the authority and responsibility to review plans for construction of fences and other structures (excluding primary dwellings).
  • Any delegation shall be in writing, signed by a majority of the Committee members, and delivered or mailed to the Association’s registered office.

5.3 Failure to Act by the Committee.

  • If the Committee fails to approve or disapprove the design and location of a proposed structure within thirty (30) days after plans and specifications have been submitted, approval shall not be required, and approval under this Section shall be deemed to have been given.

Section 6. GENERAL PROVISIONS

6.1 Use.

  • Lots may not be used except for single-family residential purposes.
  • No building shall be erected, altered, placed, or permitted to remain on any Lot other than one detached single-family residence not to exceed two and one-half stories in height.
  • Each residence shall include not less than a two-car garage, which shall be built as part of the residence and attached to it.

6.2 Dwelling Size.

  • No residence shall be built on a Lot having a ground floor area upon the foundation, exclusive of one-story open porches, breezeways, or garages, of:
    • Less than 1,300 square feet for a one-story residence, or
    • Less than 900 square feet on the ground floor of a residence that has more than one story.

6.3 Building Lines.

  • No structure shall be located on a Lot nearer to the front Lot line or side street line than the minimum building setback lines shown on the Plat.
  • No building shall be located nearer than 7 feet to an interior Lot line.
  • No dwelling shall be located on an interior Lot nearer than 25 feet to the rear Lot line.

6.4 Minimum Lot Size.

  • No residence shall be erected or placed on a Lot having:
    • A width of less than 70 feet at the minimum building setback line.
    • A total area of less than 7,500 square feet.

6.5 Utility Easements.

  • Easements for the installation and maintenance of utilities and drainage facilities are reserved as shown on the Plat and over the rear 10 feet of each Lot.
  • No Owner of a Lot shall erect, grant, or permit the use of overhead wires, poles, or overhead facilities of any kind for electrical, telephone, or television service.
  • Exceptions:
    • Poles and overhead facilities required at places where distribution facilities enter and leave the Subdivision.
    • Street lighting or ornamental yard lighting serviced by underground wires or cables is permitted.
  • Electrical service entrance facilities for any residence shall be provided by the Owner of the Lot.

6.6 Surface Drainage Easements.

  • Surface drainage easements and Common Area used for drainage purposes, as shown on the Plat, are intended for conducting surface water runoff to a suitable outlet.
  • Such easements shall be maintained in an unobstructed condition.
  • The County Surveyor (or public authority having jurisdiction over storm drainage) shall have the right to determine if any obstruction exists and require repairs.

6.7 Nuisance.

  • No noxious or offensive activity shall be carried on upon any Lot.
  • Nothing shall be done that may be or become an annoyance or nuisance to residents in the Subdivision.

6.8 Temporary Structures.

  • No structure of a temporary character, including but not limited to:
    • Trailers, boat trailers, campers, camping trailers
    • Basements, tents, shacks, garages, barns, or other outbuildings
    • Any structure used as a residence

shall be constructed, erected, located, or used on any Lot, either temporarily or permanently.

  • Exception: Basements may be constructed in connection with the construction and use of a single-family residence.

6.9 Outside Storage.

  • No boat, boat trailer, recreational vehicle, motor home, truck, camper, or any other wheeled vehicle shall be permitted to be parked ungaraged on a Lot:
    • For more than 48 hours, or
    • For a total exceeding 8 days per calendar year.
  • Definition of “Truck”: A motor vehicle used for property transportation, rated one-ton or more.

6.10 Free-Standing Poles.

  • No clothes lines, clothes poles, or any other free-standing, semi-permanent, or permanent poles, rigs, or devices shall be constructed, erected, located, or used on a Lot.

6.11 Signs.

  • No sign of any kind shall be displayed to public view on a Lot except:
    • One professional sign no more than one square foot, or
    • One sign no more than five square feet advertising a Lot for sale or rent, or
    • Signs used by a builder to advertise a Lot during construction and sales periods.

6.12 Antennas.

  • No radio or television antenna with more than 30 square feet of grid area, or that attains a height in excess of 6 feet above the highest point of the roof of a residence, shall be attached to a residence on a Lot.
  • No free-standing radio or television antenna shall be permitted, unless the Owner can show that reception would be impossible or substantially degraded if attached to the residence.
  • No satellite receiving dish exceeding one (1) meter in diameter shall be permitted on a Lot.
  • No freestanding solar panels are permitted on a Lot, and all solar panels must be attached to the roof of the residence.

6.13 Oil Drilling.

  • No oil drilling, oil development operations, oil refining, quarrying, or mining operations of any kind shall be permitted on or in a Lot.
  • No derrick or other structure designed for boring for oil or natural gas shall be erected, maintained, or permitted on a Lot.

6.14 Animals.

  • No animals, livestock, or poultry of any kind shall be raised, bred, or kept on a Lot, except:
    • Dogs, cats, or other household pets may be kept, provided that they are not kept, bred, or maintained for any commercial purpose.

6.15 Dumping.

  • No Lot shall be used or maintained as a dumping ground for rubbish.
  • Trash, garbage, and other waste shall not be kept except in sanitary containers.
  • No incinerators shall be kept or allowed on a Lot.

6.16 Workmanship.

  • All structures on a Lot shall be constructed in a substantial, good, and workmanlike manner and of new materials.
  • Prohibited materials for exterior construction:
    • Roof siding, asbestos siding, or siding containing asphalt or tar as one of its principal ingredients.
    • Roll roofing of any description shall not be used on the roof of any residence or attached garage.

6.17 Driveways.

  • All driveways on Lots, from the street to the garage, shall be poured concrete and not less than 16 feet in width.

6.18 Individual Utilities.

  • No individual water supply system or individual sewage disposal system shall be installed, maintained, or used on a Lot in the Subdivision.

6.19 Street Utility Easements.

In addition to the utility easements designated in this document, easements in the streets, as shown on the Plat, are reserved and granted to:

  • All public utility companies,
  • The owners of the Real Estate, and
  • Their respective successors and assigns.

These easements allow for the installation, laying, erection, construction, renewal, operation, repair, replacement, maintenance, and removal of:

  • Gas mains,
  • Water mains,
  • Sewer mains (sanitary and storm),
  • All necessary appliances associated with these utilities.

These activities are subject to all reasonable requirements of any governmental body having jurisdiction over the Subdivision regarding maintenance and repair of streets.

6.20 Storm Water Runoff.

  • No rain and storm water runoff, including roof water, street pavement runoff, and surface water caused by natural precipitation, shall be discharged or permitted to flow into the sanitary sewage system serving the Subdivision.
  • The sanitary sewage system shall be separate from the storm water and surface water runoff sewer system.
  • No sanitary sewage shall at any time be discharged or permitted to flow into the Subdivision’s storm and surface water runoff sewer system.

6.21 Completion of Infrastructure.

Before any residence on a Lot shall be used and occupied, all infrastructure improvements serving the Lot, as shown on the approved plans and specifications for the subdivision filed with the Plan Commission and other governmental agencies, shall be completed and installed.

This covenant shall run with the land and be enforceable by the Plan Commission or by any aggrieved owner.

6.22 Certificate of Occupancy.

Before a Lot may be used or occupied, the user or occupier shall first obtain from the Fort Wayne Zoning Administrator:

  • The improvement location permit, and
  • The certificate of occupancy required by the Fort Wayne Zoning Ordinance.

6.23 Enforcement.

  • The Association and any Owner (individually or collectively) shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and charges imposed by these Covenants.
  • Failure by the Association or any Owner to enforce any provision in the Covenants shall not be deemed a waiver of the right to do so later.

6.24 Invalidation.

  • Invalidation of any one of these Covenants by judgment or court order shall not affect any other provisions, and such provisions shall remain in full force and effect.

6.25 Duration of Covenants.

  • These Covenants shall run with the land and be effective for a period of 20 years from the date the Plat and these Covenants are recorded.
  • After 20 years, the Covenants shall automatically renew for successive periods of 10 years.

6.26 Amendments.

  • Amendments to these Amended and Restated Covenants shall be proposed and adopted in the following manner:

6.26.1 Notice.

  • Notice of the subject matter of any proposed amendment shall be included in the notice of the Association meeting at which the proposed amendment is to be considered.

6.26.2 Resolution.

A resolution to adopt a proposed amendment may be proposed by the Board of Directors or a majority of the Lot Owners.

6.26.3 Meeting.

The resolution concerning a proposed amendment must be adopted by the designated vote at an Association meeting duly called and held in accordance with the provisions of the By-Laws and these Amended and Restated Covenants.

6.26.4 Adoption.

Any proposed amendment to these Amended and Restated Covenants must be approved by a vote of not less than seventy-five percent (75%) of the Lot Owners.

6.26.5 Recording.

Each amendment to these Amended and Restated Covenants shall be executed by the President and Secretary of the Association and recorded in the office of the Recorder of Allen County, Indiana.

Such amendment shall not become effective as to bona fide purchasers without actual notice thereof until so recorded.

6.27 Subdivision.

No Lot or combination of Lots may be further subdivided until approval for such subdivision has been obtained from the Plan Commission.

6.28 Discretion of the Board of Directors or the Association.

Whenever these Amended and Restated Covenants refer to an act, omission, consent, approval, denial, or any other action taken by the Board of Directors or the Association in its discretion, all such acts shall be construed to mean actions taken in the Board of Directors’ or the Association’s sole and absolute discretion.

In the event the Association, or any Owner, is successful in any proceeding, whether at law or in equity, brought to enforce:

  • Any restriction, covenant, limitation, easement, condition, reservation, lien, or charge
  • Now or subsequently imposed by the provisions of these Covenants

The successful party shall be entitled to recover from the opposing party:

  • Attorney fees
  • Related costs and expenses incurred in such proceeding

Section 8. SIDEWALKS.

  • Plans and specifications for the Subdivision, as approved by and on file with the Plan Commission, require the installation of concrete sidewalks within the street rights-of-way in front of the following Lots:
    • Lots 19 through 27
    • Lots 52 through 59
    • Lots 73 through 80
    • Lots 94 through 116
    • Lots 125 through 131
    • Lots 143 through 150
    • Lots 151 through 155
    • Lots 167 through 184
    • Lots 198 through 206
  • These sidewalks must be installed in accordance with approved plans and specifications.
  • The Owner of each Lot shall be responsible for ensuring that the sidewalk is completed before issuance of a certificate of occupancy for the Lot.
  • Failure to install the sidewalk shall be a violation of this Covenant.

Section 9. FLOOD PROTECTION GRADES.

  • To minimize potential damage to residences from surface water, minimum flood protection grades of 826.00 feet Mean Sea Level are established for the following Lots:
    • Section I:
      • Lots 1, 8, 9, 29, 30, 115 through 121, and 131
    • Section II:
      • Lots 140 through 142 and 164 through 166
  • All residences shall be constructed so that:
    • The minimum elevation of a first floor, or
    • The minimum sill elevation of any opening below the first floor

Equals or exceeds the applicable minimum floor protection grade established in this Section 9.

Section 10. OWNER OCCUPANCY/LEASING/RENTAL.

10.1 Additional Definitions.

The following definitions shall apply to these Amended and Restated Covenants:

10.1.1 “Application”

An Application shall mean any written submission for approval to:

  • The Committee, pursuant to Section 5 above, and
  • The Board of Directors, pursuant to this Section 10.

10.1.2 “Disguised Lease Land Contract”

A Disguised Lease Land Contract shall mean a land contract where:

  1. The Lot Owner has not received in cash, at the time the land contract is entered into with the land contract buyer, an amount equal to ten percent (10%) of the land contract purchase price, and/or
  2. The land contract was not recorded within thirty (30) days after the date the land contract was entered into between the Lot Owner and the land contract buyer.

10.1.3 “Residence”

A Residence shall mean and refer to the single-family residential structure and related improvements constructed and located upon a Lot, including:

  • The garage
  • Any appurtenances

10.1.4 “Nonowner Occupied Residence”

A Nonowner Occupied Residence shall mean:

10.1.4.1

A Residence that is rented or leased by the Lot Owner, where during the rental period:

  • (A) The Lot Owner of the Residence, or
  • (B) The Lot Owner’s spouse, or
  • (C) One or more of the Lot Owner’s parents or a parent of the spouse of the Lot Owner, or
  • (D) One or more of the Lot Owner’s children or a spouse of one of the Lot Owner’s children

is NOT a full-time occupant of the Residence.

Additionally, in the case of a Residence owned by a trust, a Nonowner Occupied Residence applies if:

  • A settlor or material beneficiary of such trust is not a full-time occupant of the Residence during the rental period.

In the case of a Residence owned by a for-profit corporation, a limited liability company, or other entity (but excluding a not-for-profit corporation), a Nonowner Occupied Residence applies if:

  • A person who directly or indirectly holds at least fifty and one one-hundredth percent (50.01%) of the ownership and voting power of such entity is not a full-time occupant of the Residence.
10.1.4.2

A Residence that is being sold on a “Disguised Lease Land Contract” basis.

10.1.4.3

Notwithstanding anything herein to the contrary, when a former Lot Owner rents back to a purchaser of the Lot after closing, pursuant to a bona fide real estate residential purchase agreement, for a period of less than sixty (60) days prior to delivering possession to the purchaser, this transaction shall not be deemed a Nonowner Occupied Residence and shall be expressly permitted by these Amended and Restated Covenants.

10.2 Purpose.

The purpose of this Section 10 is to:

  1. Be in the best interest of all Lot Owners in the Subdivision, all of whom have similar proprietary (property) interests in their Residences.
  2. Protect the Lot Owner’s long-term investment in their Residence and Lot.
  3. Preserve high standards of accountability and responsibility for the maintenance and care of the Subdivision between and among the Lot Owners.
  4. Avoid the temporary and transient nature of leasing property and encourage a low turnover of occupancy.
  5. Encourage and realize the benefits of restricting the Subdivision to single-family residential use and avoid any commercial transition of the Subdivision caused by using or occupying the Lots solely for rental or leasing purposes.

10.3 No Nonowner-Occupied Residences in Subdivision.

In accordance with the purposes set forth in Section 10.2 above, no Residence shall be used or occupied as a Nonowner-Occupied Residence, unless the Board of Directors, in its discretion, first approves a Residence to be a Nonowner-Occupied Residence in accordance with this Section 10.

10.4 Guidelines.

In determining whether to approve a Residence to be a Nonowner-Occupied Residence, the Board of Directors may consider, at its discretion, the following factors, but is not limited to:

  1. The total number of Nonowner-Occupied Homes at the time of consideration of the request.
  2. Observations and opinions of the Board of Directors or Lot Owners concerning whether Residences inside or outside the Subdivision are maintained substantially the same as Lot Owner-occupied Residences when they are:
    • Rented or leased, or
    • Sold under a Disguised Lease Land Contract.
  3. Whether the disapproval of the Nonowner-Occupied Residence would create an unnecessary hardship on the Lot Owner due to circumstances outside the Lot Owner’s control.
  4. Any other factors or circumstances that the Board of Directors believes appropriate for consideration, in its discretion.
Non-Consideration Factors:

The Board of Directors shall not consider:

  • The age, race, color, creed, religion, sex, sexual orientation, familial status, disability, or national origin of:
    • The Lot Owner submitting the Application.
    • The persons to whom the Residence is proposed to be rented, leased, or sold under a Disguised Lease Land Contract.
    • Any other person related to the rental or lease.

In all instances, whether a person is a full-time occupant of a Residence shall be determined by the Board of Directors, at its discretion.

10.5 Review of Nonowner-Occupied Residence.

If a Lot Owner requests a Residence to be approved as a Nonowner-Occupied Residence, the Lot Owner must submit an Application to the Board of Directors.

The Application shall:

  • Be on a form prescribed by the Board of Directors from time to time.
  • Provide detailed information, including:
    1. The reasons and basis for the Lot Owner’s request to rent, lease, or sell under a Disguised Lease Land Contract.
    2. Contact information of the Lot Owner.
    3. The name and address of the proposed tenant/occupant and any other persons who will regularly occupy the Residence.
    4. Any other information the Board of Directors may lawfully request.

10.6 Action by the Board of Directors.

The Board of Directors shall have the right, in its discretion, to:

  1. Approve or disapprove any Application for a Residence to be authorized as a Nonowner-Occupied Residence.
  2. Make determinations necessary or appropriate in determining whether to approve or disapprove an Application.

The Board of Directors shall in good faith attempt to meet to begin consideration of an Application within twenty (20) days of receipt, provided it meets the required form.

10.7 Limitation on Authority of Board of Directors.

The Board of Directors shall not have any authority to:

  1. Approve a lease term of less than twelve (12) consecutive months.
  2. Approve more than two (2) Nonowner-Occupied Residences under these Amended and Restated Covenants.

10.8 Appeal of Board of Director’s Decision.

Any Lot Owner may appeal the Board of Director’s decision to approve or disapprove a Nonowner-Occupied Home to the members of the Association.

  • The Association shall review the decision and have all the powers, duties, and authority of the Board of Directors.
  • The Association shall not be deemed to have taken action on an Application unless at least seventy-five percent (75%) of all members vote and sign a resolution.

10.9 Approval Shall Run with the Occupant/Lot Owner.

  • Any approval granted by the Board of Directors shall apply only to the specific tenant or buyer listed in the approved Application.
  • Any renewal or extension of a lease shall require a new Application.
  • The lease term shall not exceed twelve (12) months or extend beyond the lease termination date submitted in the Application.

10.10 Existing, Leased, and Occupied Nonowner-Occupied Residences.

  • Lot Owners with existing Nonowner-Occupied Residences at the time of these Covenants must apply for registration within sixty (60) days.
  • If approved, the Lot Owner must update lease and tenant information within 30 days of any change.

10.11 Existing Land Contracts.

  • No land contract entered into prior to the recording of these Covenants shall at any time be deemed a Disguised Lease Land Contract.