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DECLARATION OF
COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS
FOR PEPPER HILLS
ARTICLE IX. COVENANT FOR MAINTENANCE ASSESSMENT;
LIENS AND ENFORCEMENT
- 9.1
- Creation of the Lien and Personal
Obligation of Assessments: The Declarant for each Lot owned
within the Development, 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 when due all
Assessments or charges made by the Association, including Regular
and Annual Special and Limited Assessment and charges made against
such owner pursuant to the provisions of this Declaration or other
applicable instrument. Such Assessments, together with interest,
costs, and reasonable attorney's fees which may be incurred in
collecting the same, shall be a charge on the Lot and shall be a
continuing lien upon the Lot against which each such Assessment or
charge is made. Each such Assessment, together with interest, costs,
and reasonable attorney's fees shall also be the personal obligation
of the Owner of such Lot beginning with the time when the Assessment
falls due. The personal obligation for delinquent Assessments shall
not pass to such Owners successors in title unless expressly assumed
by them but shall remain such Owner's personal obligation regardless
of whether he remains an Owner.
- 9.2
- Regular or Annual Assessments: All owners are obligated to pay Regular Assessments to the treasurer
of the Association on a schedule of payments established by the
Board.
- (a)
- The proceeds from Regular
Assessments are to be used to pay for all costs and expenses incurred
by the Association, including legal and other professional fees, for
the conduct of its affairs, including without limitation the costs
and expenses of construction, improvement, protection, maintenance,
repair, management and operation of Association Property, as well
as other property managed and maintained by the Association and
an amount allocated to an adequate reserve fund to be used for
repairs, replacement, maintenance and improvement of those elements
of the Common Area and Common Facilities, or other property of the
Association or managed by the Association that must be replaced and
maintained on a regular basis (collectively "Expenses").
- (b)
- Until January of the year
immediately following the conveyance of the first lot to an Owner,
the Regular Assessment shall be Fifty and no/100 Dollars ($50.00)
for each Lot.
- (c)
- The Board of Directors shall
fix the amount of the Regular Assessment against each Lot at
least thirty (30) days in advance of each fiscal year, bases on
its estimate of Expenses for that year. The Regular Assessment to
be paid by any particular Owner for any given fiscal year shall be
computed by multiplying the net amount of the Association's total
advance estimate of Expenses by the fraction produced by dividing
the number of Lots attributed to the Owner by the total number of
Lots in the Project.
- (d)
- An initial one time assessment
of $200.00 to the first Owner of each Lot will be assessed as an
initial set-up fee.
- 9.3
- Special Assessments: In
the event the Board shall determine that the Regular Assessment for a
given calendar year is or will be inadequate to meet the expenses of
the Association for any reason, including but not limited to the cost
of any construction, reconstruction, unexpected repairs or replacement
of capital improvements upon the Common Area or attorney's feed and/or
litigation costs, other professional fees, or for any other reason,
the Board shall determine and approximate amount necessary to defray
such expenses and levy a Special Assessment against the portions
of the Project within its jurisdiction which shall be computed in
the same manner as Regular Assessments. No Special Assessment shall
be levied which exceeds twenty percent (20%) of the budgeted gross
expenses of the Association for the fiscal year, without the vote
or written assent of the Owners representing a two-thirds majority
of the votes of the Members of the Association voting in person or
by proxy at any meeting at which a quorum is present as provided
for in Section 9.9. Every Special Assessment levied by and for the
Association shall be levied and paid upon the same basis as that
prescribed for the levying and payment of Regular Assessments.
- 9.4
- Limited Assessments: Notwithstanding the above provisions with respect to Regular and
Special Assessments, the Board may levy a Limited Assessment against
a Member as a remedy to reimburse the Association for costs incurred
in bringing the Member and/or the Member's Lot into compliance with
the provisions of the governing instruments for Pepper Hills, or for
damage to Association Property which is attributable to a Member as
provided in this Declaration.
- 9.5
- Assessment Period: The
Assessment provided for herein shall commence as to each Lot on the
first day of the month following the recordation of the deed from
Declarant for that Lot or, as to the remaining Lots owned by Declarant,
when such Lots are no longer offered for sale to the general public. The
Owner shall be required to notify the Board of a change in ownership
of the Lot within thirty (30) days following closing of the sale of
the Lot. The initial Assessment against each Lot shall be adjusted
according to the number of months remaining in the calendar year and
shall be payable in advance for the balance of that year.
- 9.6
- Uniform Rate of Assessment: Unless otherwise specifically provided herein, both Regular and Special
Assessments shall be fixed at a uniform rate per Lot for all Members
of the Association.
- 9.7
- Notice and Assessment Due Date: Written notice of Regular and Special Assessment shall be sent to the
Owner of every Lot subject thereto prior to the Assessment Period or
to the due date for any Special Assessment. The due dates for payment
of Regular and Special Assessments allowed by the Board to be made in
installments shall be the first day of each installment period (month or
quarter) unless some other due date is established by the Board. Each
installment shall become delinquent if not paid on or before the due
date. There shall accrue with each delinquent installment payment a late
charge equal to ten percent (10%) of the delinquent installment. In
addition, each installment payment which is delinquent for more than
ten (10) days shall accrue interest at eighteen percent (18%) per annum
calculated from the date of delinquency to and including the date full
payment is received by the Association. The Association may bring an
action against the delinquent Owner and may foreclose the lien against
the Owner's Lot as more fully provided herein. No Owner may waive or
otherwise escape liability for the Assessment provided for herein by
non-use of the Common Area or abandonment of his Lot.
- 9.8
- Estoppel Certificate: The
Association shall, upon at least twenty (20) days prior written
request, and for a reasonable charge, furnish a certificate signed by
the officer of the Association setting forth whether the Assessments
on a specific 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. Reliance of such
certificate may not extend to any default as to which the signor shall
have had no actual knowledge.
- 9.9
- Special Notice and Quorum
Requirements: The Regular Assessment for any year may be
increased by not more than twenty percent (20%) over the previous year,
by action of the Board, without a vote of the membership. A Special
Assessment maybe made if it does not exceed twenty percent (20%) of
the budgeted gross expenses of the Association for that fiscal year,
by action of the Board, without a vote of membership. Written notice
of any meeting called for the purpose of levying a Special Assessment
which exceeds twenty percent (20%) of the budgeted gross expenses of
the Association for that fiscal year, or for the purpose of obtaining a
membership vote in connection with an increase in the Regular Assessment
by more than twenty percent (20%) over the previous year, shall be
sent to all Members of the Association not less than fifteen (15)
days nor more than thirty (30) days before such meeting. At the first
such meeting called, the presence of Members or of proxies entitled
to cast sixty percent (60%) of the total votes of the Association
shall constitute a quorum. If such quorum is not present, subsequent
meeting maybe called subject to the same notice requirement and the
required quorum at the subsequent meetings shall be fifty percent (50%)
of the quorum required at the preceding meeting. No such subsequent
meeting shall be held more than thirty (30) days following the preceding
meeting. Action to approve any assessment requiring membership approval
shall require the affirmative vote of (2/3) of the Members voting in
person or by proxy at any meeting of the Members at which a quorum
is established.
- 9.10
- Subordination of the Lien to First
Mortgage: The lien for the Assessments provided for herein
shall not be subordinate to the lien of any deed of trust or mortgage
except the lien of the first deed of trust or first mortgage given and
made in good faith and for value that is on record as an encumbrance
against such Lot prior to the recordation of a claim of lien for the
Assessments. Except as expressly provided herein with respect to a
first mortgagee who acquires title to a Lot, the sale or transfer of
any Lot shall not affect the Assessment lien provided for herein, nor
the creation thereof by the recordation of a claim of lien on account
of the Assessment becoming due whether before, on or after the date
of such sale or transfer, nor shall such sale or transfer diminish or
defeat the personal obligation of any Owner for delinquent Assessment
as provided for in this Declaration.
- 9.11
- Rights of Mortgagees: Notwithstanding any other provision of this Decimation, no amendment of
this Declaration shall operate to defeat the rights of the Beneficiary
under any deed of trust upon a Lot made in good faith and for value,
and recorded prior to the recordation of such amendment, provided that
after the foreclosure of any such deed of trust such Lot shall remain
subject to this Declaration as amended.
- 9.12
- Right to Enforce: The
Association has the right to collect and enforce its Assessments
pursuant to the provisions hereof. Each Owner of a Lot, upon becoming
an Owner of such Lot, shall be deemed to covenant and agree to pay each
and every Assessment provided for in this Declaration and agrees to the
enforcement of all Assessment in the manner herein specified. In the
event an attorney or attorneys are employed for the collection of any
Assessment, whether by suit or otherwise, or to enforce compliance with
or specific performance of the terms and conditions of this Declaration,
each Owner agrees to pay reasonable attorney's fees in addition to any
other relief or remedy obtained against such Owner. The Board or its
authorized representative may enforce the obligations of the Owner to
pay such Assessments by commencement and maintenance of a suit at law
or in equity, or the Board may exercise the power of foreclosure and
sale pursuant to enforce the liens created hereby. A suit to recover a
money judgment for an unpaid Assessment shall be maintainable without
foreclosure or waiving the lien hereinafter provided.
- 9.13
- Assessment Liens:
- (a)
- There is hereby created a claim of
lien with power of sale on each and every Lot to secure payment of any
and all Assessments levied against such Lot pursuant to this Declaration
together with interest thereon at the maximum rate permitted by law and
all costs of collection which maybe paid or incurred by the Association
making the Assessment in connection therewith, including reasonable
attorney's fees. All sums assessed in accordance with the provisions
of this Declaration shall constitute a lien on such respective Lots
upon recordation of a claim of lien with the Ada County Recorder. Such
lien shall be prior and superior to all other liens or claims created
subsequent to the recordation of the notice of delinquency and claim
of lien except for tax liens for real property taxes on any lot and
Assessment on any Lot in favor of any municipal or other governmental
assessing body which, by law, would be superior thereto.
- (b)
- Upon default of any Owner in
the payment of any Regular, Special, or limited Assessment issued
hereunder, or payment of any installment pursuant to an approved
installment plan, the Association may cause to be recorded in the
office of the Ada County Recorder a claim of lien. The claim of lien
shall state the amount of such delinquent sums and other authorized
charges (including the cost of recording such notice), a sufficient
description of the Lot(s) against which the same have been assessed,
and the name of the recorded Owner thereof. Each delinquency shall
constitute a separate basis for a notice and claim of lien, but any
number of defaults may be included within a single notice and claim
of lien, including defaults which occur after the notice and claim
of lien and before satisfaction of the defaults is recorded. Upon
Payment to the Association of such delinquent sums and charges in
connection therewith or other satisfaction thereof, the Association
shall cause to be recorded a further notice stating the satisfaction
of relied of such delinquent sums and charges. The Association may
demand and receive the cost of preparing and recording such release
before recording the same.
- 9.14
- Method of Foreclosure: Such lien
maybe foreclosed by appropriate action in court or by sale by the
Association establishing the Assessment, its authority or other person
authorized to make the sale. Such sale shall be conducted in accordance
with the provisions of the Idaho Code applicable to the exercise of
powers of sale permitted by law. The Board is hereby authorized to
appoint its attorney, any officer or director of the Association, or
any title company authorized to do business in Idaho as trustee for
the purpose of conducting such power of sale or foreclosure.
- 9.15
- Required Notice: Notwithstanding anything contained in this Declaration to the contrary,
no action may be brought to foreclose the lien created by recordation
of the notice of delinquency and claim of lien, whether judicially,
by power of sale or otherwise, until the expiration of thirty (30)
days after a copy of such claim of lien has been deposited in the
United States mail certified or registered, postage prepaid, to the
Owner of the Lot(s) described in such notice of delinquency and claim
of lien, and to the person in possession of such Lot(s), and a copy
thereof is recorded by the Association in the Office of the Ada County
Recorder.
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