Covenants Conditions and Restrictions
Declarations of Covenants Conditions and Restrictions
THIS DECLARATION, made on the date hereinafter set forth by DODSON CONSTRUCTION COMPANY, a Missouri Corporation hereinafter referred to as “Declarant”.
- WHEREAS, Declarant is the owner of certain property in Smithville, County of Clay, State of Missouri, which is more particularly described as:
- The SW ¼ of the NW ¼ of Section 12, Township 52, Range 33 in Clay County, Missouri all of which Declarant has or will plat as part of FOREST OAKS ESTATES, a subdivision of land located in Smithville, Clay County, MIssouri.
- NOW, THEREFORE, Declarant hereby declares that all of the properties described above shall be held, sold and conveyed subject to the following easements, restrictions, covenants, and conditions which are for the purpose of protecting the values and desirability of, and which shall run with, said real property and be binding on all parties having any right, title or interest in the described properties or any part thereof, their heirs, personal representatives, successors and assigns, and shall inure to the benefit of each Owner thereof.
- “Association” shall mean and refer to FOREST OAKS ESTATES HOMES ASSOCIATION, INC., a Missouri not-for-profit corporation, and its successors or assigns.
- “Owner” shall mean and refer to the record owner, whether one or more persons or entities, of a fee simple title to any Lot, which is a part of the Properties including contract sellers, but excluding those having such interest merely as a security for the performance of an obligation.
- “Properties” shall mean and refer to that certain real property hereinabove described.
- “Common Area” shall mean all real property (including the improvements thereto) for the common use and enjoyment of the Owners.
- “Lot” shall mean and refer to any plots of land shown as such upon any recorded subdivision map, certificate of survey or other instrument relating to the Properties, with the exception of the Common Area.
- “Declarant” shall mean and refer to DODSON CONSTRUCTION COMPANY its successors and assigns.
Section 7 - Improved Lots
- “Improved Lots” shall mean and refer to Lots on which a single family residence has been erected, all or part of which has been either sold, leased or rented for occupancy purposes.
Section 8 - Unimproved Lots
- “Unimproved Lots” shall mean and refer to all Lots which are not Improved Lots.
Article II - Property Rights
Owners’ Easements of Enjoyment
- Every Owner shall have a right and easement of enjoyment in and to the Common Area which shall be apprutenant to and shall pass with the title of every Lot.
Article III - Membership & Voting Rights
- Every owner of a Lot which is subject to assessment shall be a member of the Association.
- Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment.
- The Association shall have two classes of voting membership.
- Class A
- Class A members shall be all Owners, with the exception of the Declarant
- Each member will be entitled to 1 vote for each lot owned by that member.
- However, there shall be no vote for any Lot for which any then-current or prior assessment has not been paid.
- When more than one persons holds an interest in any lot, all such persons shall be members.
- The vote for such lot shall be exercised as they determine, but in no event shall more than the number of votes described above be cast with respect to any Lot.
- Class B
- The Class B member shall be the Declarant who shall be entitled to 15 votes for each lot owned by it.
- The Class B membership shall cease and be converted to Class A membership when Declarant owns no lots in the subdivision.
Article IV - Covenant for Maintenance Assessments
Section 1 - Creation of the Lien and Personal Obligation of Assessments
- The Declarant for each lot owned within the Properties hereby covenants and each Owner of any lot, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: annual assessments or charges.
- The annual assessments, together with interest, costs, and reasonable attorney's fees, shall be a charge on the land and shall be a continuing lien upon the property against which each such fee or assessment is made as soon as they are due payable.
- The personal obligation for delinquent assessments shall not pass to his successor in title unless expressly assumed by them.
Section 2 - Purpose of Assessments
- The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety, and welfare of the residents of the Properties and for the improvement and maintenance of the Common Area, including entrance markers and any other improvements situated upon the Properties.
Section 3 - Annual and Special Assessment
- A
- The initial annual assessment for improved lots shall be not less than $50 per year payable in advance.
- In consideration of Declarant’s development expenses in the common area, no assessment shall be due on any lot owned by the Declarant.
- B
- From and after January 1 of the year immediately following the conveyance of the first lot to the Owner by the Declarant, and for 10 years thereafter, assessments for improved lots may be increased effective January 1 of each year without a vote of the membership by the Board of Directors of the Association not to more than $100 annum.
- After said 10 year period the assessment may be increased to more than $100 provided that any such change shall have the assent of 51% of the votes of the members who are voting in person or by proxy, at a general membership meeting duly called for this purpose, written notice of which shall be sent to all members not less than 5 days nor more than 40 days in advance of the meeting setting forth the purpose of the meeting.
- C
- The Board of Directors of the Association at any time may fix the annual assessment for each improved lot at an amount not in excess of the maximum.
- D
- In addition to the annual assessments authorize above, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying, in whole or part, the cost of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto, provided that any such assessment shall have the assent of 51% of the votes of members who are voting in person or by proxy at a meeting duly called for this purpose, written notice of which shall be sent to all members not less than 5 days nor more than 40 days in advance of the meeting setting forth the purpose of the meeting.
Section 4 - Uniform Rate of Assessment
- Except as specifically provided herein, annual assessments must be fixed at a uniform rate for all lots and may be collected on a monthly basis, if so provided.
Section 5 - Date of Commencement of Annual Assessments - Due Dates
- The annual assessment provided herein shall commence as to all lots on the first day of the month following the conveyance of the first lot.
- The first annual assessment shall be adjusted according to the number of months remaining in the calendar year.
- The Board of Directors shall fix the amount of any change in the annual assessment against each lot at least 30 days in advance of each subsequent annual assessment period after the initial assessment.
- Written notice of the annual assessment shall be sent to every Owner subject thereto.
- The due dates shall be established by the Board of Directors.
- The Association shall, upon demand and for reasonable charge, furnish a certificate signed by and officer of the Association setting forth whether the assessments on a specified lot have been paid.
- A properly executed certificate of the Association as to the status of assessments on a lot is binding upon the Association as of the date of its issuance.
Section 6 - Effect of Non-Payment of Assessments - Remedies of the Association
- Any assessment not paid within 30 days after the due date shall bear interest from the due date at the then legal rate from the assessment date until paid.
- The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the property.
- No owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his lot.
Section 7 - Subordination of the Lien to Mortgages
- The lien of assessments provided herein shall be subordinate to the lien of any first mortgage.
- Sale or transfer of any lot shall not affect the assessment lien.
- However, the sale or transfer of any lot pursuant to mortgage foreclosures or any proceeding in lieu thereof, shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer.
- No sale or transfer shall relieve such lot from liability for any assessments thereafter becoming due or from the lien thereof.
Section 8 - Exempt Property and Fractional Assessment
- Notwithstanding anything else contained herein the following property shall be exempt from the assessment charge and lien created herein;
- A
- All properties subject to any easement or other interest dedicated and accepted by the local public authority and devoted to public use;
- B
- All properties exempt from taxation by the laws of the State of MIssouri upon the terms and to the extent of such legal exemption;
- C
- All Common Areas.
- All unimproved lots.
- A written or printed notice deposited in the United States mail with postage prepaid thereon, addressed to the Owner at the last address listed with the Association, shall be deemed to be sufficient notice for all purposes whenever notices are required under this document.
Article V - Architectural Control
- No building, fence, wall, patio, deck or other structure shall be commenced, placed, erected or maintained upon the Properties (specifically including but not limited to, on or around any lot) nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing as to the harmony of external design and location in relation to surrounding structures and topography by Declarant so long as Declarant owns any lots in the subdivision.
- Thereafter the Board of Directors of the Association or any architectural committee composed of 3 or more representatives appointed by the Board shall give approval or disapproval.
- In the event said Board, or its designated committee or the Declarant fails to approve or disapprove such design and location within 90 days after said plans and specifications have been submitted to it, approval with not be required and this Article will be deemed to have been fully satisfied.
Article VI - Restrictions
- For itself, its successors and assigns and its future grantees, Declarant does hereby further declare that all of the Properties shall be and are hereby restricted as to their use in the manner hereinafter set forth:
- None of the said lots may be improved, used or occupied for other than private residence purposes (except for model homes used by the Developer) and no flat or apartment house, although intended for residential purposes, may be erected thereon.
- Any residence erected or maintained on any of said lots shall be designed and used for occupancy by a single family.
- No trailer, basement, tent, shack, garage, or any outbuilding as set forth above shall at any time be used as a residence, temporarily or permanently, nor shall any residence of a temporary character be permitted.
Section 2 - Height Limitations
- Any residence erected on any of said lots shall not be more than 2 story in height above ground, provided that a residence more than 2 stories in height may be erected on any said lots with the written consent of the Declarant.
- All wood exteriors, except roofs, shall be covered with paint or stain.
- No building shall be permitted to stand with its exterior in an unfinished condition for longer than 5 months after commencement of construction.
- In the event of fire, windstorm or other damage, no building shall be permitted to remain in such damaged condition longer than 1 month.
- No fuel storage tank shall be erected above the surface of the ground.
- No business structure shall be erected or business or profession of any nature be conducted on the land herein described, nor shall anything be done thereon which may in the opinion of the Declarant so long as there is a Class B membership or thereafter the Board of Directors of the Association be deemed a nuisance to the neighborhood.
- No animals, livestock, or poultry of any kind shall be raised, bred, or kept on the Properties, except that no more than a total of 3 dogs, cats or other household pets may be kept provided that they are not kept, bred, or maintained for any commercial purpose and they are restrained on a leash or in a fenced in back yard.
- Easements for installation and maintenance of utilities and drainage facilities are reserved as may be shown on the record plat, or as reflected in the records of the Recorder of Deeds of Clay County, Missouri.
- Within these easements, no structure, planting or other material shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities, or which may change the direction or flow of drainage channels in the easements, or which may obstruct or retard the flow of water through drainage channels in the easements.
- No water from roof down spouts or surface drainage shall be placed in any sanitary sewer line.
- The easement area of each lot and all improvements in it shall be maintained continuously by the Owner of the lot except for those improvements for which a public authority, utility company or the Association is responsible.
- The land between any structures and the front street line shall be used solely for lawn and residence purposes, driveways and walks.
- No truck, school bus, boat or water borne vehicles, trailer, camper, recreational vehicle, machinery, commercial vehicles or other equipment shall be repaired or customarily or habitually parked, kept or stored on the streets or alleys or in the yards or driveways around any of the buildings within the Properties, unless they are parked or stored in and enclosed garage or other enclosure approved by Declarant, except only during periods of approved construction on the lot, nor shall any external television or radio antennae, solar panel, reception dish, or device, or windmill be erected or kept on or about any of the property, buildings or yards of the Properties except as may be approved by the Declarant or its successors after considering proposed location, size, landscaping and screening.
- Except as specifically provided herein, each Owner at the Owner’s sole expense shall keep the exterior of the Owner’s building structure, including but not limited to doors, walls, windows, roofs, patios, fences and other improvements, in good maintenance and repair.
- The Owner shall decorate or redecorate such exterior only in such color or manner as has received prior approval of the Declarant or the Board of the Directors of the Association or the architectural committee thereof if so created and designated, whose decision shall be made final and binding.
- No restrictions herein contained shall be personally binding on any corporation, person or persons except in respect to breaches committed during its, his or their seizin of, or title to, said land.
- The Association in its own name or in the name of any or all Owners, and any Owner or Owners of any of the above land in their own names, shall have the right to sue for and obtain an injunction, prohibitive or mandatory to prevent the breach of or to enforce the observance of the restrictions set forth herein, in addition to ordinary legal action for damages, and the failure of the association or the Owner or Owners to enforce any of the restrictions set forth herein at the time of the violation shall in no event be deemed to be a waiver of the right to do so thereafter.
- The Association may pay the costs of any such enforcement by the Association out of the general fund, but no Owner or Owners shall be entitled to receive reimbursement from the Association for the cost of any such enforcement.
Section 12 - Garbage and Refuse
- No lot shall be used or maintained as a dumping ground for rubbish, including trees and brush.
- Trash, garbage or other waste shall be kept in sanitary containers, in clean and sanitary condition and appropriately housed and screened.
- No air conditioning apparatus or unsightly projection shall be attached or affixed to the front of any residence.
- All exterior basement foundations and walls which are exposed in excess of 18 inches above final grade level shall be painted the same color as the house, or covered with siding compatible with the structure.
- No residential structure which has previously been at another location shall be moved onto any lot in this subdivision without the prior written approval of Declarant.
- The materials used in any replacement of the original roof of any residential structure must be approved in writing by Declarant or after termination of Class B membership, the Board of Directors of the Association or their assigns prior to any roof replacement.
- Nothing contained herein shall in any way be constructed to abrogate, nullify or otherwise affect the application of the ordinances of the City of Smithville, Missouri, to the heretofore described subject property.
- Residential construction shall begin on any lot purchased by the Declarant within 6 months of the date of purchase.
- No owner shall plant trees within 20 feet of any paved street or bushes within 15 feet of any curb without obtaining prior approval of Declarant or in its absence the Board of Directors of the Association.
Article VII - General Provisions
Section 1 - Board of Directors
- The Board of Directors of the Association elected in accordance with its Articles of Incorporation and Bylaws shall be charged with the management of the Association.
- The Board of Directors shall have the right to make such reasonable rules and regulations as will enable it to adequately and properly carry out the provisions of this Declaration.
- All Common Areas shall be under the management and control of the Association, except that such management and control shall at all times be subject to that had and exercised by the City of Smithville, the County of Clay, the State of Missouri and any other appropriate governmental body.
- The Association, or any Owner, including Declarant, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration.
- Failure by the Association or by any Owner or Declarant to enforce any covenant or restriction contained herein shall in no event be deemed a waiver of the right to do so thereafter.
- Invalidation of any one of these covenants or restrictions by judgement or court order shall in no way effect any other provisions which shall remain in full force and effect.
- The covenants and restrictions of this Declaration shall run with and bind the land for a term of 25 years from the data this Declaration is recorded, after which time unless terminated as provided below, they shall be automatically extended for successive periods of 10 years.
- This Declaration may be amended during the first 20 year period by and instrument signed by the holders of not less than 90% of the voting rights of total membership, and thereafter may be amended or terminated as of the end of the then current term by an instrument signed by the holders of not less than 75% of the voting rights of the membership.
- Any amendment must be recorded.
- Property and Common Area may be annexed to the Properties with the consent of Declarant.
- Any such extension of the Properties shall be accomplished by and take effect on the filing in the Office of the Recorder of Deeds for the country in which such land is located of an appropriate document extending this Declaration.
- The Association shall be deemed to have all of the powers of authority to perform the actions required or permitted of it hereunder.
- All provisions in this Declaration, specifically including but not limited to the protective covenants, shall be deemed to be covenants running with the land and shall be binding upon the Declarant and its successors and assigns.
- All parties claimed by, through or under the Declarant shall be taken to hold, agree and covenant with the Declarant and its successors and assigns, and with each of them, to conform to and observe all restrictions herein as to the use of the land and the construction and use of improvements thereon.
- In witness whereof, the undersigned, being the Declarant herein, has hereunto set its hand and seal this 22nd day of July, 1996.