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DECLARATION OF
COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS
FOR PEPPER HILLS
ARTICLE XI. ENFORCEMENT
- 11.1
- Authority to Enforce: The
provisions of this Declaration may be enforced by any of the following
persons or entities under the procedure outlined herein:
- (a)
- The Association as to all
matters, and the Architectural Control Committee as to matters
subject to its enforcement.
- (b)
- The Declarant as long as it has
any retained ownership of any of the Property.
- (c)
- The Owner or Owners of any Lot
adversely affected, but, except for enforcement of the provisions of
Article XIV, XV or XVI relating to solar access, only after written
demand is made on the Association and its failure to act, provided
that no such Owner shall have the right to enforce independently
of the Association any assessment or lien herein.
- 11.2
- Methods of Enforcement: Subject to the provisions of Paragraph 11.3 hereof, the following
methods of enforcement may be utilized:
- (a)
- Legal or equitable action for
damages, injunction, abatement, specific performance, foreclosure,
rescission, cancellation of any contracts of an executory nature,
or such other remedies at law and equity which may be available in
a court of law;
- (b)
- Eviction for trespass by police
action;
- (c)
- Monetary penalties and
temporary suspension from Association membership rights and
privileges in accordance with the Bylaws of the Association
provided that, except for late charges, interest, and other
penalties for failure to pay, as and when due, assessments levied
by the Association as provided in this Declaration, no discipline
or sanction shall be effective against a Member unless:
- (i)
- The Member is given
fifteen (15) days written notice of the proposed compliance
action and a timely opportunity to be heard on the matter. The,
opportunity to be heard may, at the election of such Member,
be oral or in writing. The notice shall be given personally to
such Member or sent by first-class or certified mail to the last
address of such Member as shown on the records of the Association
and shall state the place, date and time of the hearing, which
shall not be less than five (5) days before the effective date of
the proposed expulsion, termination, or suspension.
- (ii)
- The hearing shall
be conducted by a committee composed of not less than three (3)
persons, appointed by the president of the Association, which shall
conduct the hearing in good faith and in a fair and reasonable
manner and shall not reach a decision regarding appropriate
compliance measures until conclusion of the meeting.
- (iii)
- Any Member
challenging the compliance measures taken by the Board, including
any claim alleging defective notice, must commence court action
within one (1) year after the date of the contested compliance
measure taken by the Board.
- 11.3
- Limitation on
Enforcement: The Association may not cause a forfeiture or
abridgement of an Owner's right to the full use and enjoyment of his
individually owned subdivision interest on account of the failure
of the Owner to comply with provision of this Declaration except by
judgment of a court or a decision arising out of arbitration or on
account of a foreclosure for failure of the owner to pay assessment
duly levied by the Association.
- 11.4
- Fees and Costs: The
Association, or any person entitled to enforce any of the terms
hereof, by any of the means contained herein, who obtains a judgment
of decree form any court or arbitrator enforcing any of the provisions
hereof, shall be entitled to reasonable attorney's fees and all
costs incurred or anticipated to be incurred in remedying or abating
the offensive condition as a part of his or its judgment or decree
against the party in violation hereof.
- 11.5
- Failure to Enforce: Neither
the Association nor the Architectural Control Committee shall be
liable to any person for failure to enforce any of the terms hereof,
for personal injury, lost of life, damage to property, economic
detriment of for any other loss caused either by their enforcement
or non-enforcement. The failure to enforce any of such matters,
including any covenants contained in this Declaration, shall not be
deemed a waiver of the right of subsequently do so.
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