NOTE: This HTML version of the Declaration of Covenants and Restrictions, which includes the first amendment recorded, has been reformatted for ease of searchability only. The original language has not been modified.
NOTE: This HTML version of the Declaration of Covenants and Restrictions, which includes the first amendment recorded, has been reformatted for ease of searchability only. The original language has not been modified.
Pursuant to the provisions of the Pennsylvania Uniform Planned Community Act, 68 Pa. C.S. §5101 et seq.
Date: September 4, 1998
Max D. Marbain, an adult individual (the "Declarant"), owner in fee simple of the Real Estate described in Exhibit A attached hereto, located in Silver Spring Township, Cumberland County, Pennsylvania, hereby submits the Real Estate, including all easements, rights and appurtenances thereunto belonging and the Buildings and improvements erected or to be erected thereon (collectively, the "Property") to Section 5102(a)(2) of the Pennsylvania Uniform Planned Community Act, 68 Pa. C.S. §5101 et seq. (the "Act"), and hereby creates with respect to the Property a planned community to be known as "Evergreen, A Planned Community" (the "Community").
1.1.1 Declarant intends to construct single family detached and townhouse style dwellings on the Property. Declarant may also sell the unimproved Lots to purchasers who will then contract with builders to construct dwellings on the Lots or to other builders who will complete dwellings on the Lots for sale to third party purchasers. For so long as Declarant owns any Lots within the Community, the plans and specifications of any dwellings to be constructed on the Lots by anyone other than Declarant shall be submitted to Declarant or his designee for approval prior to the commencement of construction. All dwellings and related improvements constructed upon the Lots or elsewhere shall be deemed to be part of the Unit and shall be subject to this Declaration.
1.1.2 Under Section 5201(a)(2) of the Act, only those sections of the Act listed therein are applicable to this Community. In order to insure the orderly creation, construction and administration of the Community, Declarant hereby declares that the Community shall be subject to certain additional sections of the Act, namely Sections 5202, 5203, 5204, 5208, 5209, 5214, 5216, 5217, 5219, 5220, 5222 and 5223. This is not intended to imply nor shall it make the entire Act applicable to the Community.
1.2.1 Capitalized terms not otherwise defined herein or identified on the Plan shall have the meanings specified or used in the Act.
1.2.2 The following terms when used herein shall have the meanings set forth below:
"Allocated Interest" means the Common Expense liability and the votes in the Association allocated to a Unit.
"Annual Assessment" means a Unit's individual share of the anticipated Common Expenses for each fiscal year as reflected in the budget adopted by the Executive Board for such year.
"Association" means the Unit owners' association of the Community, which shall be a Pennsylvania non-profit corporation known as "Evergreen Homeowners Association" and shall have all powers and duties designated by the Act.
"Building(s)" means any or all of the buildings now or hereafter constructed on any Lot within the Property.
"Bylaws" means the document having that name and providing for the governance of the Association, pursuant to Section 5306 of the Act, as such document may be amended from time to time.
"Common Facilities" means as Open Space 1, Open Space 2 and Open Space 3 as depicted on the Plan.
"Common Expenses" means expenditures made by or financial liabilities of the Association, together with any allocations to reserves.
"Community" means the Community described in Section 1.1 above.
"Community Documents" include the Declaration, Plan, Bylaws and Rules and Regulations.
"Controlled Facilities" means the Units, to the extent that the construction, appearance or use is regulated or controlled by the Association pursuant to the provisions of this Declaration.
"Declarant" means the Declarant described in Section 1.1 above and all successors to any Special Declarant Rights.
"Declaration" means this document, as the same may be amended from time to time.
"Dwelling" means the housing unit and related improvements situate upon a Lot. Dwellings consist of two types: (1) a detached housing unit situated on a single family Lot and (2) a housing unit containing one or more Party Walls located within a Townhouse Building.
"Executive Board" means the Executive Board of the Association.
"Notice and Comment" means the right of a Unit Owner to receive notice of an action proposed to be taken by or on behalf of the Association, and the right to comment thereon. The procedures for Notice and Comment are set forth in Section 13.1 of this Declaration.
"Notice and Hearing" means the right of a Unit Owner to receive notice of an action proposed to be taken by the Association, and the right to be heard thereon. The procedures for Notice and Hearing are set forth in Section 13.2 of this Declaration.
"Party Wall" means a wall located at the perimeter of a Unit, which is a common wall shared with the improvements constructed on an adjacent Lot.
"Plan" means the Subdivision Plan for Evergreen Subdivision recorded in Cumberland County Plan Book 76, Page 69, which is incorporated herein by reference, as the same may be amended from time to time.
"Property" means the Property described in Section 1.1 above.
"Rules and Regulations" means such rules and regulations as are promulgated by the Executive Board from time to time, with respect to various details of the use of all or any portion of the Property, either supplementing or elaborating upon the provisions in the Declaration or the Bylaws.
"Security Interest" means an interest in real property or personal property, created by contract or conveyance, which secures payment or performance of an obligation. The term includes a lien created by a mortgage, land sales contract, and any other consensual lien or title retention contract intended as security for an obligation.
"Special Assessment" means a Unit's individual share of any assessment made by the Executive Board in addition to the Annual Assessment.
"Townhouse Building" means any Building containing Dwellings with one or more Party Walls.
"Unit" means a Lot, together with the Dwelling situate thereon.
"Unit Boundaries" means the boundaries of a Unit as set forth on the Plan and shall extend to the centerline of any Party Wall constituting part of a Dwelling.
Section 5102(a)(2) and the specific sections of the Act referenced therein and those set forth in Section 1.1.2 above shall apply to and govern the operation and governance of the Community, except to the extent that contrary provisions, not prohibited by the Act, are contained in one or more of this Declaration, the plan or the Bylaws.
2.1.1 Attached as Exhibit B hereto is a list of the seventy-six (76) Units being created by Declarant which sets forth their Identifying Numbers and the Allocated Interest appurtenant to each Unit, determined on the basis that all Units shall be assigned a factor of 1.0. Subject to Section 3.2 below, a Unit's Allocated Interest shall be calculated by converting a fraction to a decimal, the numerator of which fraction is one (1) and the denominator of which fraction is the total number of Units then currently existing within the Community.
2.1.2 The Allocated Interest shall determine the number of votes in the Association and the share of Common Expense liability appurtenant to each Unit. A Unit's Allocated Interest shall always be appurtenant to that Unit, and any separate conveyance, encumbrance, judicial sale or other transfer of such Allocated Interest, whether voluntary or involuntary, shall be void unless the Unit to which the Allocated Interest is allocated is also transferred.
The boundaries of each Unit are situated as shown on the Plan, and each Unit consists of all space, fixtures and improvements located within said boundaries.
The Units and Common Facilities shall be maintained and repaired by each Unit Owner and by the Association in accordance with the provisions of Section 5307 of the Act, except as expressly set forth to the contrary in the Community Documents.
Each Unit Owner shall have a perpetual nonexclusive easement of use and enjoyment over, upon and through the Common Facilities. In addition to such and in supplementation of the easements provided for and hereby created pursuant to Sections 5216, 5217, 5218 and 5302(a)(9) of the Act, the following additional easements are hereby created:
Declarant shall have the right to maintain one or more sales offices and models throughout the Property and to maintain one or more directional, promotional and advertising signs on the Common Facilities and on Units owned by Declarant pursuant to Section 5217 of the Act. Declarant reserves the right to place models and sales offices on any portion of the Common Facilities or in a Unit in such a manner, or such size and number and in such locations as Declarant deems appropriate. Declarant may from time to time relocate models and sales offices to different locations within the Property notwithstanding that the Community Documerits may otherwise preclude such use in those locations.
The Units and Common Facilities shall be, and are hereby, made subject to easements in favor of the Declarant, appropriate utility and service companies and governmental agencies or authorities (including Silver Spring Township and municipal and sewer authorities) for such utility and service lines, ducts and equipment as may be necessary or desirable to serve any portion of the Property. The easements created in this Section 4.1.2 shall include, without limitation, rights of Declarant, or the providing utility or service company, or governmental agency or authority to install, lay, maintain, repair, relocate and replace gas lines, pipes and conduits, water mains and pipes, sewer and drain lines, telephone wires and equipment, television equipment and facilities (cable or otherwise), electric wires, conduits and equipment over, under, through, along and on the Units and Common Facilities. Notwithstanding the foregoing provisions of this Section 4.1.2, unless approved in writing by the Unit Owner or Unit Owners affected thereby, any such easement through a Unit shall be located either in substantially the same location as such facilities or similar facilities existed at the time of first conveyance of the Unit by the Declarant or as shown on an approved recorded plan, or so as not to materially interfere with the use or occupancy of the Unit by its occupants.
Declarant reserves an easement on, over and under those portions of the Common Facilities and Units not improved with buildings for the purpose of maintaining and correcting drainage of surface water in order to maintain reasonable standards of health, safety and appearance. The easement created by this Section 4.1.3 expressly includes the right to cut any trees, bushes, or shrubbery, to grade the soil, or to take any other action reasonably necessary to achieve this purpose, following which the Declarant shall restore the affected property as closely to its original condition as practicable.
To the extent necessary, each Dwelling in a Townhouse Building shall have an easement for structural support over each adjoining Unit.
Declarant reserves the right to grant, sell and convey easements for the purpose of benefitting any tract of land adjacent or near to the Property. Without limiting the generality of the preceding sentence, the Declarant may subject the Property to storm water and detention pond easements to be used by or jointly with adjoining properties.
To the extent that Townhouse Building containing Party Walls(s) encroaches upon any other Unit because of the construction, reconstruction, repair, shifting, settlement or other movement of any portion of the improvements, a valid easement for the encroachment and its maintenance shall exist, provided that the physical boundaries of the improvements after construction, reconstruction or repair will be in substantial accord to the descriptions thereof set forth in the Declaration. The easement shall extend for whatever period of time the encroachment continues to exist. This easement does not relieve a Unit Owner of liability in the case of willful misconduct nor the Declarant or its agents of liability for failure to comply with the Plan.
During such time as Declarant is conducting construction activities within the Property, Declarant reserves unto himself, his agents, employees and contractors, the right to enter onto the unimproved portions of any Unit within the Community as may reasonably be necessary to facilitate Declarant's construction, repair or replacement activities, provided however that Declarant shall take reasonable steps to minimize any interference with a Unit Owner's use of his or her Unit and shall promptly repair any damage to a Unit resulting from the Declarant's exercise of the rights he has pursuant to this Article.
Each end townhouse Unit shall be subject to a perpetual non-exclusive pedestrian easement ten (10) feet in width extending along and inside the side boundary line from the street in front of the townhouse Unit to the rear property line and continuing along and inside the rear property line, which easement shall be in favor of the interior townhouse Units, for the purpose of pedestrian ingress and egress necessary to transport large objects from the street to the rear entrances of the townhouse Units located on the interior Lots. The interior townhouse Units shall be subject to a similar pedestrian easement extending along and ten (10) feet inside their rear boundary lines in favor of the remaining interior townhouse Units. The exercise of the easement rights by the owners and occupiers of the benefitted townhouse Units shall be done at reasonable times and in a reasonable manner so as to cause a minimum of damage to the easement area and a minimum of disruption to the owners and occupiers of the burdened Units. In the event of any damage to the easement areas located on any of the burdened townhouse Units, the person or persons causing such damage shall be solely responsible for the prompt repair and restoration of the easement area on the damaged Units.
All Unit Owners, including Declarant, shall have the same rights and duties which are appurtenant to each Unit. The occupancy and use of the Units and Common Facilities shall be subject to the following restrictions:
The Buildings in the Community (with the exception of any Units during the time period when they are being used by the Declarant as a sample, model or sales office) are restricted to residential use and may not be used for any other purposes by the Unit Owner or occupant. Notwithstanding the foregoing, Units may also be used for accessory uses which are customarily incidental to the foregoing use, including a professional office; provided that any such use conforms with the applicable zoning regulations of Şilver Spring Township, as the same may be amended from time to time, and further provided that the prior written approval of the Executive Board is obtained.
No Unit Owner may permit his Unit to be used or occupied for any prohibited or unlawful purpose.
Declarant will establish the structural location, architectural style and exterior appearance of each Unit by original construction (whether by Declarant or its designee) which he intends to have preserved for the maintenance of overall appearance and continuing value of the Units within the Community. To accomplish this intention, the following requirements are created and imposed:
(a) The exterior structural appearance and architectural style of all exposed portions (front, rear, sides) of all Units shall not be altered in any way which would result in the modification of appearance of such Units as they are presently constructed.
(b) Exterior masonry elements of all such exposed portions of all Units shall remain as constructed and shall not be painted, covered, enclosed or otherwise obstructed or modified in appearance.
(c) The exterior colors of all such exposed portions, roofs and doorways of all Units shall remain the same as originally installed, including, but not limited to the color of walls, roof shingles, trim materials, doors, windows, shutters, garage doors and driveway/parking surfaces. All replacement materials, whether structural or covering, shall perpetuate the same colors as originally installed in order to provide a consistent color scheme.
Each Owner of a Unit shall be responsible for all maintenance and shall maintain the interior and exterior of such Unit in a clean, sanitary and attractive condition.
The owner of each Unit shall keep such Unit free from rubbish, litter and noxious weeds; maintain, cultivate and keep in good condition and repair shrubs, trees, grass, lawns, plantings and other landscaping located or from time to time placed upon such Unit; and replace dead plants, shrubs, trees, grass or any other landscaping on such Unit with plants, shrubs, trees, grass or landscaping of the same or similar type.
All landscaping in front yards shall consist of natural materials, i.e., shrubs, trees, bushes, rocks, timbers, etc., and shall not include any artificial or man-made articles, i.e., statutes, figures, birdbaths, windmills, etc.
No sign or billboard of any kind shall be displayed to the public view on any Unit, except for directional signs established by the Declarant, signs for each Unit which may be placed thereon by the owner of the particular Unit for the purposes of advertising the Unit for sale or rent, which signs shall not be larger than is reasonable and customary in the are for the purpose of advertising similar property for sale or rent or signs used by Declarant, his successor in title or assigns, to advertise Units.
No structure of a temporary character, trailer, tent, shack, garage, barn, or other out-building shall be constructed or used on any Unit at any time as a residence or storage facility, either temporarily or permanently. No motorhome, truck (except for pickup trucks up to one and one-half ton size), trailer, camper, boat or similar equipment shall be permitted to remain upon any street within the Community or upon any Unit unless placed or maintained within an enclosed garage. Notwithstanding the provisions of this section, Declarant may construct and maintain on any Unit temporary buildings structures and vehicles used for construction and administration purposes for use in connection with the initial construction of improvements on any portion of the Units. Declarant may also construct, operate and maintain sales, rental offices and model homes in the Dwellings, in connection with its continuing sales and rental programs.
No towers, antennas, satellite dishes or other facilities for the receipt or transmission of radio or television broadcasts or other means of communication shall be erected and maintained or permitted to be erected and maintained on any Unit in such a way that any portion of the installation is visible from the street at the front of the Unit constructed upon the said Lot.
No fence shall be constructed or maintained on any Lot which shall project toward the adjoining street beyond the plane of the front of the Dwelling, or beyond the plane of the side of the structure for any Dwelling located on a corner Lot. All fences must contain white vinyl exteriors, either open or closed in appearance. All fences shall not exceed six (6) feet in height measured from the Lot surface.
No animals other than customary household pets shall be housed, maintained or otherwise permitted in any Unit. All permitted pets shall be housed in a Dwelling and no exterior housing of pets shall be permitted on any Lot.
All streets within the Community are intended only for vehicular transportation and pedestrian travel of the owners, occupants and their invitees. Streets are not to be used as playgrounds, and the use thereof is prohibited.
There shall be no obstruction of the Common Facilities. Nothing may be placed or stored on the Common Facilities without the prior consent of the Association. Nothing may be done on the Common Facilities that would in any way interfere with the use and enjoyment of any Unit Owners within the Community. The Association may impose additional restrictions on the use of the Common Facilities as it deems necessary or advisable.
The restrictions set forth herein shall not apply to the Declarant, his agents or employees, or any approved builder or builders, during the course of construction of improvement on the Lots or any portion thereof to the extent that they would interfere with such construction.
Each Owner shall promptly comply with all laws, statutes, ordinances, rules and regulations of federal, state or municipal governments or authorities applicable to the use, occupancy, construction and maintenance of any Unit.
Each Owner hereby covenants and agrees for himself, his heirs, assigns, vendees and successors in interest that he will refrain from interference with the established drainage pattern over his Unit from adjoining or other Units, and that he will make adequate provision for proper drainage from any such other Unit in the event the established drainage over his Unit is changed or altered. For the purpose hereof, "established drainage" is defined as the drainage which will occur at the time the overall grading of the Lots, including the landscaping of each Lot, is completed.
No Unit shall hereafter be subdivided or resubdivided by any Owner, nor shall any Owner transfer or convey title to any part or portion of any Unit, excepting for a transfer or conveyance of title to the whole of said Unit. Any attempt to transfer or convey title to apart or portion of any Unit in violation of the provisions of this Section 5.1.16 shall be null and void and of no effect.
Reasonable Rules and Regulations, not in conflict with the provisions of this Declaration, concerning the use and enjoyment of the Property, may be promulgated from time to time by the Executive Board, subject to the right of the Association to change such Rules and Regulations. Copies of the then current Rules and Regulations and any amendments thereto shall be furnished to all Unit Owners by the Executive Board promptly after the adoption of such Rules and Regulations or any amendments thereto.
A Unit Owner may submit a written request to the Executive Board for approval to do anything that is forbidden under Section 5.1. The Executive Board shall answer any written request for such approval, after Notice and Hearing, within sixty (60) days after the request thereof. Failure to do so within such time shall not constitute a consent by the Executive Board to the proposed action. The Executive Board shall review requests in accordance with the provisions of the Community Documents.
Any applications to any department or to any governmental authority for a permit to make any addition, alteration or improvement in or to any Unit which shall have been approved by the Executive Board shall be the responsibility of and executed by the Unit Owner. Such execution will not, under any circumstances, create any liability on the part of the Association or any of its members to any contractor, subcontractor or materialman on account of such addition, alteration or improvement or to any person having any claim for injury to person or damage to property arising therefrom. All costs incurred for such additions, alterations and improvements to a Unit shall be the responsibility of the Unit Owner.
A Unit Owner may lease or sublease his Unit (but not less than his entire Unit) at any time and from time to time provided that:
6.1.1 all leases and rental agreements shall be in writing;
6.1.2 all leases and rental agreements shall state that they are subject to the requirements of the Community Documents and the Association;
6.1.3 a Unit Owner shall deliver a copy of the Declaration, the Bylaws and Rules and Regulations to the Unit Owner's tenant at the time any lease or rental agreement is executed, and the tenant shall sign a receipt therefor. Copies of any amendments to the Declaration, the Bylaws and Rules and Regulations received by the Unit Owner during the term of the lease shall be forwarded to the tenant upon receipt if the said amendment(s) affect the tenant's occupancy of the Unit;
6.1.4 the rights of any lessee of a Unit shall be subject to, and each lessee shall be bound by the Community Documents, and a default thereunder shall constitute a default under the lease;
6.1.5 notwithstanding that a lease may require the lessee to be responsible for the payment of the Common Expense assessments during the term of the lease, any such provision shall not relieve the Unit Owner of his obligation for payment of same in the event that the lessee fails to do so;
6.1.6 a copy of such lease or rental agreement and a copy of the receipt referred to in Section 9.1.3 [sic 6.1.3] shall be furnished to the Executive Board within ten (10) days after execution of the lease; and
6.1.7 a Unit Owner leasing his Unit shall provide his then current mailing address to the Executive Board, if at a location other than his Unit.
Notwithstanding the foregoing, the provisions of this Article shall not apply to Units leased or subleased by the Declarant.
Common Expenses shall include:
7.1.1 Expenses of administration, maintenance, and repair or replacement of the Common Elements;
7.1.2 Expenses declared to be Common Expenses by the Community Documents or the Act;
7.1.3 Expenses agreed upon as Common Expenses by the Association; and
7.1.4 Such reserves as may be established by the Association, whether held in trust or by the Association, for repair, replacement or addition to the Common Elements or any other real or personal property acquired or held by the Association.
Except as provided in Section 7.3. all Common Expenses shall be assessed against all Units in accordance with their Allocated Interests as shown on Exhibit B of this Declaration.
7.3.1 Any Common Expense benefitting fewer than all of the Units shall be assessed exclusively against the Units benefitted.
7.3.2 Any Common Expense for services provided by the Association to an individual Unit at the request of the Unit Owner shall be assessed against the Unit which benefits from such service.
7.3.3 Assessments to pay a judgment against the Association may be made only against the Units in the Community at the time the judgment was rendered, in proportion to their Common Expense liabilities, except as provided in Section 5319(c) of the Act.
7.3.4 If any Common Expense is caused by the negligence or misconduct of a Unit Owner, the Association may, after Notice and Hearing, assess that expense exclusively against his or her Unit.
7.3.5 Fees, including attorneys' fees, late charges, fines and interest charged against a Unit Owner pursuant to the Community Documents and the Act are enforceable as Limited Common Expense assessments.
7.4.1 The Association has a statutory lien on a Unit for any assessment levied against that Unit or fines imposed against its Unit Owner from the time the assessment or fine becomes delinquent. Fees, including attorneys fees, late charges, fines and interest charged pursuant to the Act and the Community Documents are enforceable as assessments under this Şection. If an assessment is payable in installments, and one or more installments is not paid when due, the entire outstanding balance of the assessment becomes effective as a lien from the due date of the delinquent installment.
7.4.2 Any lien for delinquent Common Expense assessments or other charges that the Association has on a Unit will be subordinate to a first mortgage on the Unit, if the mortgage was recorded before the due date of the assessment or the due date of the unpaid installment, if the assessment is payable in installments.
7.4.3 Recording of this Declaration constitutes record notice and perfection of the lien. No further recordation of any claim of lien for assessment under this Section is required.
7.4.4 A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within three (3) years after the assessments becomes payable; provided, that if an Owner of a Unit subject to a lien under this Section files a petition for relief under the United States Bankruptcy Code, the period of time for instituting proceedings to enforce the Association's lien shall be tolled until thirty days after the automatic stay of proceedings under Section 362 of the Bankruptcy Code is lifted.
7.4.5 This Section does not prohibit actions to recover sums for which Section 7.4.1. creates a lien or prohibit the Association from taking a deed in lieu of foreclosure.
7.4.6 A judgment or decree in any action brought under this Section shall include costs and reasonable attorney's fees for the prevailing party.
7.4.7 The Association's lien may be foreclosed in like manner as a mortgage on real property.
7.4.8 If a holder of a first or second Security Interest in a Unit forecloses that Security Interest, the purchaser at the foreclosure sale is not liable for any unpaid assessments against that Unit which became due before the sale, other than the assessments which are prior to that Security Interest in accordance with the provisions of the Act. Any unpaid assessments not satisfied from the proceeds of sale become Common Expenses collectible from all the Unit Owners, including the purchaser.
7.4.9 Any payments received by the Association in the discharge of a Unit Owner's obligation may, at the Association's discretion, be applied to the oldest balance due.
7.4.10 Any fees, including attorneys' fees, late charges, fines and interest which may be levied by the Executive Board pursuant to Sections 5302(a)(10), (11) and (12) of the Act, shall be subordinate to the lien of a Security Interest on a Unit.
Immediately after adoption of any proposed budget or approval of any capital expenditure for the Community, the Executive Board shall provide a copy or summary of the budget and notice of any capital expenditure approved by the Executive Board to all the Unit Owners. Unless a majority of all Unit Owners vote to reject the budget or any capital expenditure approved by the Executive Board, within thirty (30) days after the approval, the budget or capital expenditure is ratified. In the event the proposed budget is rejected, the periodic budget last ratified by the Unit Owners shall be continued until such time as a subsequent budget is adopted by the Executive Board, and such subsequent budget is not rejected in accordance with this Section and Section 5303(b) of the Act.
If the Executive Board votes to levy a Common Expense assessment not included in the current budget, other than one enumerated in Section 7.3 of this Declaration, the Executive Board shall immediately submit a copy or summary of such Common Expenses to the Unit Owners and such Common Expenses shall be subject to rejection in the same manner as a budget under Section 10.5. Notwithstanding the foregoing, the Unit Owners shall not have the power to reject the imposition of Common Expense assessments due to the actual cost of a budgeted item being in excess of the amount originally budgeted.
On written request, the Association shall furnish to a Unit Owner a statement in recordable form setting forth the amount of unpaid assessments currently levied against the Unit as required by Section 5315(h) of the Act and any credits of surplus in favor of his or her Unit pursuant to Section 5313 of the Act. The statement shall be furnished within ten (10) business days after receipt of the request and is binding on the Association, the Executive Board and every Unit Owner.
All Common Expenses and Limited Common Expenses assessed under Sections 7.2 and 7.3 shall be due and payable either on a monthly, quarterly or annual basis, as the Executive Board deems advisable. Special Assessments shall be due and payable in one or more installments at such times determined by the Executive Board to be advisable.
In the event of default for a period of ten (10) days by any Unit Owner in the payment of any Common Expense assessment levied against his or her Unit, the Executive Board shall have the right, after Notice and Hearing, to declare all unpaid assessments for the pertinent fiscal year to be immediately due and payable.
Common Expense assessments shall begin as of the date of the conveyance of the first Unit to a Unit Owner other than Declarant (the "First Settlement"). However, Declarant shall be entitled to pay a reduced assessment for unimproved Units and to receive a pro rata reimbursement from Unit purchasers for Common Expense assessments prepaid for the then current year by Declarant. Notwithstanding the foregoing, Declarant may elect to delay the commencement of Common Expense Assessments until a date later than the First Settlement, provided that he shall be solely responsible for all Association expenses prior to such commencement.
The Owner of a Unit at the time a Common Expense assessment or portion thereof is due and payable is personally liable for the assessment. Personal liability for the assessment shall not pass to a successor in title to the Unit unless he or she agrees to assume the obligation.
No Unit Owner may exempt himself or herself from liability for payment of the Common Expenses by waiver of the use or enjoyment of the Common Elements or by abandonment of the Unit against which the assessments are made.
Commencing as of the First Settlement and upon the initial transfer of title from the Declarant to each purchaser of a Unit, the Association shall have the right to collect from such purchasers an amount equal to a minimum of one-sixth of the estimated annual Common Expense liability allocated to a Unit, which monies shall be deposited and held in a separate account and shall be used by the Association for proper Association purposes. Declarant shall not use the working capital fund to defray any of his own expenses, contributions or construction costs, but it may be used by the Association to make up any budget deficits of the Association. Any amount paid hereunder shall not be considered as advance payments of regular Common Expense assessments. No Unit Owner is entitled to a refund of these monies from Association upon the subsequent conveyance of his or her Unit or otherwise.
Any excess amounts accumulated from Assessments for Common Expense assessments or Limited Common Expense assessments or from reserves, together with and any income related thereto, which exceed the amounts required for each, shall be credited to each Unit in accordance with Section 5313 of the Act and shall be applied to subsequent assessments against each such Unit until exhausted.
During the period of Declarant control, the Association shall keep detailed financial records, including, without limitation, a record of expenses paid by the Declarant until the commencement of Common Expense assessments by the Association under Section 5314(a) of the Act, and, for the period commencing on such date, a record for each Unit in the Community, including those owned by Declarant of his Common Expense assessments and the payments thereof. The Association shall keep financial records sufficiently detailed to enable the Association to comply with Section 7.7 of the Declaration and Section 5407 of the Act. All financial and other records shall be made reasonably available for examination by any Unit Owner and his authorized agents.
8.1.1 Until the sixtieth (60th) day after conveyance of seventy-five percent (75%) of the Units to Unit Owners other than Declarant, Declarant shall have the right to appoint and remove any and all officers and members of the Executive Board, except that Declarant may not unilaterally remove any members of the Executive Board elected by Unit Owners other than Declarant.
8.1.2 Not later than sixty (60) days after conveyance of twenty-five percent (25%) of the Units to Unit Owners other than Declarant, one (1) of the three (3) members of the Executive Board shall be elected by Unit Owners other than Declarant.
8.1.3 Not later than the earlier of (1) five (5) years after the date of the First Settlement; (ii) sixty (60) days after seventy-five percent (75%) of the Units which may be created have been conveyed to Unit Owners other than Declarant; or (iii) two (2) years after Declarant has ceased to offer Units for sale in the ordinary course of business, all members of the Executive Board shall resign, and the Unit Owners (including Declarant to the extent of Units owned by Declarant) shall elect a new three (3) member Executive Board.
8.1.4 Within sixty (60) days of the termination of control, Declarant shall deliver to the Association all property of the Unit Owners and of the Association, together with all applicable items designated in Section 5320 of the Act.
8.1.5 Following the transfer of control of the Executive Board by the Declarant to the Unit Owners pursuant to Section 8.1.3 above, the Unit Owners shall have the right to increase or decrease from time to time the number of members comprising the Executive Board.
The Declarant reserves unto himself all Special Declarant Rights as defined in the Act for as long as Declarant owns any Unit within the Community. These Special Declarant Rights include, inter alia, the right to transfer any or all of Declarant's Special Declarant Rights to one or more successors, provided that the transfer(s) shall be effected in accordance with the provisions of this Declaration and Section 5304 of the Act. Any successor to any Special Declarant Right shall have the liabilities and obligations set forth in Section 5304(e) of the Act.
To the fullest extent permitted by Pennsylvania law, as now in effect and as modified from time to time, an Executive Board Member of the Association shall not be personally liable for monetary damages for any action taken or any failure to take any action.
The Association shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Association) by reason of the fact that the person is or was an Executive Board member or officer of the Association, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement, actually and reasonably incurred by the person in connection with such threatened, pending or completed action, suit or proceeding.
The Association shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Association to procure a judgment in its favor by reason of the fact that the person is or was an Executive Board member or officer of the Association, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement, actually and reasonably incurred by the person in connection with such threatened, pending or completed action or suit by or in the right of the Association.
Indemnification under Subsections 13.2.1 and 13.2.2 shall be automatic and shall not require any determination that indemnification is proper, except that no indemnification shall be made in any case where the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted willful misconduct or recklessness.
The Association shall advance expenses incurred by an Executive Board member or officer of the Association who is entitled to be indemnified pursuant to the provisions of this Section 9.2 in advance of the final disposition of such action, suit or proceeding, upon receipt of an undertaking by or on behalf of such person to repay such amount if it shall ultimately be determined by a court of competent jurisdiction that such person is not entitled to be indemnified by the Association.
The Association may, at the discretion of, and to the extent and for such persons as determined by the Executive Board of the Association, (i) indemnify any person who neither is nor was an Executive Board member or officer of the Association but who is or was a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (and whether brought by or in the right of the Association), by reason of the fact that the person is or was a representative of the Association, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement, actually and reasonably incurred by the person in connection with such threatened, pending or completed action, suit or proceeding and (ii) pay such expenses in advance of the final disposition of such action, suit or proceeding, upon receipt of an undertaking by or on behalf of such person to repay such amount if it shall ultimately be determined by a court of competent jurisdiction that such person is not entitled to be indemnified by the Association.
The Executive Board may obtain insurance to satisfy the indemnification obligations set forth in Section 9.2 above, if and to the extent available at a reasonable cost.
Commencing no later than the date of the First Settlement and to the extent reasonably available, the Executive Board shall obtain and maintain insurance coverage as set forth in Sections 10.2 and 10.3 and in accordance with the provisions of Section 5312 of the Act. If such insurance is not reasonably available, and the Executive Board determines that any insurance described herein will not be maintained, the Executive Board shall cause notice of that fact to be hand-delivered or sent prepaid by United States mail to all Unit Owners at their respective last known addresses.
The Association does not own any property for which property and casualty insurance is required pursuant to Section 5312 of the Act. However, in the event that the Association ever acquires such property or makes improvements to any Common Facilities which it owns, the Association shall obtain and maintain all property and casualty insurance required by Section 5312 of the Act.
The Association shall obtain and maintain comprehensive general liability insurance, including medical payments insurance, in an amount: determined by the Executive Board but in no event less than $1,000,000, covering all occurrences commonly insured against for death, bodily injury and property damage arising out of or in connection with the use, ownership or maintenance of the Common Facilities.
Insurance policies carried pursuant to this Article shall provide that:
10.4.1 Each Unit Owner is an insured person under the policy with respect to liability arising out of his membership in the Association.
10.4.2 The insurer waives its rights to subrogation under the policy against any Unit Owner or member of his household.
10.4.3 No act or omission by any Unit Owner, unless acting within the scope of his authority on behalf of the Association, will void the policy or be a condition to recovery under the policy.
10.4.4 If, at the time of a loss under the policy, there is Other insurance in the name of a Unit Owner covering the same risk covered by the policy, the Association's policy provides primary insurance.
10.4.5 The insurer may not cancel or refuse to renew the policy until thirty (30) days after notice of the proposed cancellation or non-renewal has been mailed to the Association, each Unit Owner and each holder of a Security Interest to whom a certificate or memorandum of insurance has been issued, at their respective last known addresses.
The Association may maintain a blanket fidelity bond for anyone who either handles or is responsible for funds held or administered by the Association, whether or not they receive compensation for their services. The bond shall name the Association as obligee and shall cover the maximum funds that will be in the custody of the Association or the manager at any time while the bond is in force, and in no event less than the sum of three months' assessments plus reserve funds. The bond shall include a provision that calls for thirty (30) days written notice to the Association before the bond can be canceled or substantially modified for any reason; except that if cancellation is for nonpayment of premiums, only ten (10) days' notice shall be required.
Each Unit Owner shall be solely responsible for obtaining all property and liability insurance on his Unit in compliance with Section 5312 of the Act, if and to the extent that the Act applies to the Units.
The Executive Board shall obtain and maintain Workmen's Compensation Insurance to meet the requirements of the laws of the Commonwealth of Pennsylvania.
The Association may carry other insurance which the Executive Board considers appropriate to protect the Association or the Unit Owners.
Insurance premiums and deductibles for policies maintained by the Association shall be a Common Expense.
Any portion of the Property for which insurance is required to be maintained by the Association under Section 5312 of the Act or for which insurance carried by the Association is in effect, whichever is more extensive, shall be repaired or replaced promptly by the Association in accordance with Section 5312 of the Act.
Any portion of the Property for which insurance is required to be maintained by a Unit Owner under Section 5312 of the Act or for which insurance carried by the Unit Owner is in effect, whichever is more extensive, shall be repaired or replaced promptly by the Unit Owner in accordance with Section 5312 of the Act.
Except in cases of amendments that may be executed by the Declarant in the exercise of its Special Declarant Rights or by the Association pursuant to Section 12.6 below, or as otherwise permitted by the Act or other provisions of this Declaration, or by certain provisions of the Act, this Declaration, including the Plan, may be amended only by vote or agreement of Unit Owners of Units to which at least sixty-seven percent (67%) of the votes in the Association are allocated.
No action to challenge the validity of an amendment adopted by the Association pursuant to this Article may be brought more than one year after the amendment is recorded.
Every amendment to this Declaration shall be recorded in the county in which the Property is located and is effective only on recording. An amendment shall be indexed in the name of the Community in both the grantor and grantee index.
Amendments to this Declaration required by the Act to be recorded by the Association, which have been adopted in accordance with this Declaration and the Act, shall be prepared, executed, recorded and certified on behalf of the Association by any officer of the Association designated for that purpose or, in the absence of designation, by the president of the Association.
Provisions in this Declaration or in the Act creating Special Declarant Rights may not be amended without the consent of the Declarant.
If any amendment is necessary in the judgment of the Executive Board to cure any ambiguity or to correct or supplement any provision of this Declaration, including the Plan, that is defective, missing or inconsistent with any other provisions contained therein or with the Act, or if such amendment is necessary to conform to the requirements of the Federal Housing Administration, Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation or other agency or entity with national or regional standards for mortgage loans with respect to planned community projects, then at any time and from time to time the Executive Board may effect an appropriate corrective amendment without the approval of the Unit Owners or the holders of any Security Interest in all or any part of the Property, upon receipt by the Executive Board of an opinion from independent legal counsel to the effect that the proposed amendment is permitted by the terms of this Section.
Before the Executive Board amends the Bylaws or the Rules and Regulations, whenever the Community Documents require that an action be taken after "Notice and Comment", and at any other time the Executive Board determines, the Unit Owners have the right to receive notice of the proposed action and the right to comment orally or in writing. Notice of the proposed action shall be given to each Unit Owner in writing and shall be delivered personally or by mail to all Unit Owners at such address as appears in the records of the Association, or published in a newsletter or similar publication which is routinely circulated to all Unit Owners. The notice shall be given not less than five (5) days before the proposed action is to be taken. The right to Notice and Comment does not entitle a Unit Owner to be heard at a formally constituted meeting.
Whenever the Community Documents require that an action be taken after "Notice and Hearing", the following procedure shall be observed: The party proposing to take the action (e.g., the Executive Board, a committee, an officer, the manager, etc.) shall give written notice of the proposed action to all Unit Owners or occupants of Units whose interest would be significantly affected by the proposed action. The notice shall include a general statement of the proposed action and the date, time and place of the hearing. At the hearing, the affected person shall have the right, personally or by a representative, to give testimony orally, in writing or both (as specified in the notice), subject to reasonable rules of procedure established by the party conducting the meeting to assure a prompt and orderly resolution of the issues. Such evidence shall be considered in making the decision but shall not bind the decision makers. The affected person shall be notified of the decision in the same manner in which notice of the meeting was given.
Any Person having a right to Notice and Hearing shall have the right to appeal to the Executive Board from a decision of persons other than the Executive Board by filing a written notice of appeal with the Executive Board within ten (10) days after being notified of the decision. The Executive Board shall conduct a hearing within thirty (30) days, giving the same notice and observing the same procedures as were required for the original meeting.
Subject to the provisions of this Declaration, the Association shall have all of the powers designated in Section 5302 of the Act, including the right to assign its right to future income, including the right to receive the payments made on account of the assessments for Common Expenses.
The Association shall have the right to assign or delegate any of its powers listed in Section 5302 of the Act to a master association, provided that such assignment or delegation is made subject to the provisions of Section 5222 of the Act. The Association shall also have the right to accept any assignment or delegation of powers from one or more condominium or other associations.
The Association shall have the power to merge or consolidate with any other planned community into a single planned community provided that such merger or consolidation is made in accordance with the provisions of Section 5223 of the Act.
Provided that Unit Owners entitled to cast at least eighty percent (80%) of the votes in Association, including eighty percent (80%) of the votes allocated to Units not owned by Declarant, agree, portions of the Common Elements may be conveyed or subjected to a security interest by the Association. Any conveyance or encumbrance of the Common Elements by the Association shall be effected in strict accordance with Section 5318 of the Act.
Any creditor of the Association pursuant to a security interest obtained under Section 14.1 above shall exercise its rights against the Common Elements before its judgment lien on any Unit may be enforced. Otherwise, as a general rule, any judgment for money against the Association, upon perfection as a lien on real property, shall not be a lien on the Common Elements, but shall constitute a lien against all of the Units in the Community at the time the judgment was entered. Any Unit Owner may have his or her Unit released from the lien of the judgment upon payment of that portion of the lien attributable to his Unit in accordance with Section 5319(c) of the Act. After payment, the Association may not assess or have a lien against that Unit Owner's Unit for any portion of the Common Expense incurred in connection with that lien. A judgment indexed against the Association must be indexed against the Community and the Association, and when so indexed, shall constitute notice of the lien against the Units.
The Association shall have the power to allocate a Common Element not previously allocated as a Limited Common Element appurtenant to a Unit, provided that such allocation is effective in accordance with Section 5209(c) of the Act.
Unit Owners desiring to relocate the boundaries between adjoining Units shall submit an application to the Association in accordance with Section 5214 of the Act, and the Association shall have the powers and duties with respect to such application for relocation as set forth therein.
Except in the case of a taking of all of the Units in the Community by eminent domain, the Community may be terminated by agreement of Unit Owners of Units to which at least eighty percent (80%) of the votes in the Association are allocated.
(a) The Association may not dispose of the Common Facilities by sale or otherwise, except to Silver Spring Township (the "Township"), unless the Township has given its prior written approval. If not conveyed to the Township, the Common Facilities may only be transferred to another organization which shall agree to maintain the Common Facilities as previously maintained and in compliance with all Township ordinances. In the event that the Common Facilities are conveyed to another organization, if the Township so requests, the organization and the Unit Owners shall enter into a maintenance agreement with the Township and shall agree to be bound by the provisions of Article VII of the Pennsylvania Municipalities Planning Code regarding the maintenance of deteriorating common open space by municipalities. In addition, the Township may require that the said maintenance agreement include the requirement that a reserve fund for maintenance of or capital improvements to the Common Facilities be established.
(b) Otherwise, following termination of the Community and the dissolution of the Association, the Common Facilities shall be held by all Unit Owners in the Community as tenants in common pursuant to Section 5220(d) of the Act.
(c) The terms of this section of the Declaration shall survive the termination of the Community, and each Unit within the terminated Community shall be held and conveyed subject to this section of the Declaration.
The provisions of this Declaration shall be liberally construed in order to effectuate Declarant's desire to create a uniform plan for development and operation of a the Community. The headings preceding the various paragraphs of this Declaration and the Table of Contents are intended solely for the convenience of readers of this Declaration.
The provisions of this Declaration shall be deemed independent and severable, and the invalidity or unenforceability of any provision or portion thereof shall not affect the validity or enforceability of any other provision or portion thereof unless such deletion shall destroy the uniform plan for development and operation of the condominium project which this Declaration is intended to create.
This Declaration shall become effective when it has been recorded.
ALL THAT CERTAIN tract or parcel of ground situate in Silver Spring Township, Cumberland County, Pennsylvania, being shown on Final Subdivision Plan for Evergreen Subdivision Phase I prepared by Hartman and Associates, Inc. dated July 22, 1997, as subsequently revised and recorded in Cumberland County Plan Book 76, Page 69, as more particularly described as follows, to wit:
BEGINNING at a point on the northern right-of-way line of State Road (S.R. 2012), said point being on the southeast corner of lands now or formerly of Janet K. Hess (Deed Book Z, Volume 33, Page 502); thence along said lands of Hess North 08 degrees 00 minutes 00 seconds West a distance of 189.26 feet to a point; thence along same South 82 degrees 00 minutes 00 seconds West a distance of 224.37 feet to a point on line of lands now or formerly of Michael J. McClean; thence along lands of McClean and others North 20 degrees 42 minutes 31 seconds West a distance of 1,414.16 feet to a point at corner of lands now or formerly of Allenview, Inc.; thence along same and crossing South Madder Drive North 57 degrees 12 minutes 29 seconds East a distance of 98.00 feet to a point on the northern right-of-way line of proposed South Madder Drive (50 feet wide) at corner of future Phase 3 of Evergreen; thence along future Phase 3 of Evergreen, the following nineteen (19) courses and distances: (1) South 75 degrees 12 minutes 31 seconds East a distance of 159.16 feet to a point at the western terminus of an arc connecting the northern side of proposed South Madder Drive with the western side of proposed Longwood Drive; (2) along an arc to the left having a radius of 25.00 feet, an arc distance of 39.27 feet to a point on the western side of proposed Longwood Drive aforementioned; (3) crossing proposed Longwood Drive South 75 degrees 12 minutes 31 seconds East a distance of 50.00 feet to a point on the eastern side of proposed Longwood Drive; (4) South 14 degrees 47 minutes 29 seconds West a distance of 133.87 feet; (5) along same by a curve to the left having a radius of 125.00 feet, an arc distance of 17.07 feet; (6) North 73 degrees 10 minutes 16 seconds East a distance of 192.27 feet; (7) North 07 degrees 50 minutes 57 seconds West a distance of 112.87 feet; (8) North 61 degrees 29 minutes 57 seconds West a distance of 125.00 feet; (9) along an arc to the right having a radius of 125.00 feet, an arc distance of 29.91 feet; (10) South 61 degrees 29 minutes 57 seconds East a distance of 110.00 feet; (11) North 28 degrees 30 minutes 03 seconds East a distance of 334.07 feet; (12) North 11 degrees 29 minutes 57 seconds West a distance of 113.71 feet; (13) North 78 degrees 30 minutes 03 seconds East a distance of 30.00 feet; (14) South 11 degrees 29 minutes 57 seconds East a distance of 120.00 feet; (15) South 72 degrees 03 minutes 32 seconds East a distance of 98.69 feet; (16) South 36 degrees 29 minutes 57 seconds East a distance of 251.74 feet; (17) South 16 degrees 49 minutes 44 seconds East a distance of 99.44 feet; (18) North 73 degrees 10 minutes 16 seconds East a distance of 302.52 feet; and (19) North 54 degrees 05 minutes 16 seconds East a distance of 62.52 feet to a point on line of lands now or formerly of Gary W. Karkuff (Deed Book N, Volume 31, Page 712); thence along lands of Karkuff the following four (4) courses and distances: (1) South 35 degrees 54 minutes 44 seconds East a distance of 354.95 feet; (2) South 73 degrees 10 minutes 16 seconds West a distance of 981.34 feet; (3) South 25 degrees 21 minutes 50 seconds East a distance of 642.96 feet; and (4) South 08 degrees 08 minutes 00 seconds West a distance of 275.78 feet to a point at comer of lands now or formerly of Vere S. Lehman (Deed Book S, Volume 27, Page 955; and Deed Book 126, Page 1146); thence along same South 08 degrees 00 minutes 00 seconds East a distance of 238.68 feet to a point on the northern right-of-way line of State Road aforementioned; thence along same South 82 degrees 00 minutes 00 seconds West a distance of 51.85 feet to a point on the southeast corner of lands now or formerly of Janet K. Hess aforementioned, said point being the point and place of BEGINNING.
BEING Phase 1 of the Evergreen Subdivision and CONTAINING 21.979 acres, more or less.
BEING the same premises which Charles R. Hess and Dorothy R. Hess, husband and wife, by deed dated March 23, 1998 and recorded in Cumberland County Deed Book 173, Page 1127, granted and conveyed unto Max D. Marbain.