DECLARATION OF COVENANTS AND

RESTRICTIONS FOR SUNNYBROOKE

 

ARTICLE I.

 

General Purpose of this Declaration

 

The Real Estate is hereby subjected to the Covenants herein declared to preserve the value of the Real Estate, to ensure proper use and appropriate improvement of the Real Estate, to encourage the construction of attractive buildings and other attractive improvements at appropriate locations on the Real Estate, to prevent haphazard development thereof which may be inharmonious with other improvements on the Real Estate or within Sunnybrooke, to preserve and maintain proper setbacks from streets and adequate free space between structures, to provide for adequate and proper maintenance of the Real Estate so as to ensure a high quality appearance and condition of the Real Estate, all for the purpose of preserving the values of all lots within Sunnybrooke and to ensure desired high standards of maintenance of the Real Estate, to the benefit of all owners within Sunnybrooke.

 

ARTICLE II.

 

Definitions for all Purposes of this Declaration

 

The following terms, whenever used in this Declaration, shall have the meanings assigned to them by this Article II:

 

Section 1. Assessment. "Assessment" means the share of the Common Expenses imposed upon each lot, as determined and levied pursuant to the provisions of Article VII.

 

Section 2. Association.  "Association" means Sunnybrooke Homeowners' Association, Inc., an Indiana not-for-profit corporation, formed or to be formed for the purpose of determining and collecting the Assessments and overseeing and enforcing the terms of this Declaration.

 

Section 3. Sunnybrooke. The term "Sunnybrooke" means and includes all portions of the Real Estate and other real property as may be platted and recorded from time to time by Declarant in accordance with the provisions of this Declaration.

 

Section 4. Committee. "Committee" shall mean the Sunnybrooke Development Control Committee, composed of three (3) associate members appointed by Declarant, who shall be subject to removal by Declarant at any time with or without cause. Any vacancies from time to time existing shall be filled by appointment of Declarant until such time as the subdivision is completely developed, or at such earlier time as Declarant may tum over its responsibilities at which time the Sunnybrooke Homeowner's Association shall appoint from its membership to this Committee; provided, however, such tum over shall occur not later than January 1, 1995.

 

Section 5. Common Areas. "Common Areas" means certain areas which may be designated by Declarant as Common Areas on the plat or plats of Sunnybrooke, as the same may be recorded from time to time, and which is intended for the common benefit of all lots. Common areas may not be developed nor separated from the plat in accordance with the cluster option.

 

Section 6. Common Expense. "Common Expense" means the actual and estimated cost to the Association for maintenance, management, operation, repair, improvement, and replacement of Common Property, and any other cost or expense incurred by the Association for the benefit of the Common Property; provided, however, that there shall not be included in Common Expenses any costs or expenses incurred in connection with the initial installation or completion of the Streets, utility lines and mains, or other improvements constructed by Declarant.

 

Section 7. Common Property. "Common Property" means all real and personal property which is in the nature of common or public improvements or areas, and which is located in, upon, or under the Common Areas, Easements, or Streets within Sunnybrooke. To the extent Common Property is not publicly dedicated, Common Property includes, but is not limited to, all Streets, curbs, water mains, fire hydrants, the Drainage System, the Sewage System, street lights and signs upon the Streets, public sidewalks, landscaping, lakes, parks, and open spaces.

 

Section 8. Declarant. "Declarant" means Crooked Creek at Geist Development Co., an Indiana corporation, or any other person, firm, corporation or partnership which succeeds to the interest of Crooked Creek at Geist Development Co., as developer of Sunnybrooke.

 

Section 9. Drainage System. "Drainage System" means the storm sewers, subsurface drainage tiles, pipes and structures, and other structures, fixtures, properties, equipment and facilities located in, upon, or under the Common Areas, Easements, or Streets and designed for the purpose of expediting the drainage of surface and subsurface waters from, over, and across Sunnyside.

 

Section 10. Easements. "Easements" refer to those areas reserved as easements on the plat or plats of Sunnybrooke, as the same may be recorded from time to time.

 

Section 11. Lot. "Lot" means any of the separate parcels numbered and identified on the plat or plats of Sunnybrooke, as the same may be recorded from time to time.

 

Section 12. Mortgagee. The term "Mortgagee" means any holder, insurer, or guarantor of any first mortgage on any Lot.

 

Section 13. Owner. "Owner" means any person or persons who acquire, after the date of this Declaration, legal and/or equitable title to any Lot; provided, however, that "Owner" shall not include any holder of any mortgage of all or any part of any Lot, so long as such holder does not hold both legal and equitable title thereto.

 

Section 14. Sewage System. "Sewage System" means any sanitary sewer lines, lift stations, equipment, or facilities located in, upon, or under the Common Areas, Easements, or Streets and designed Lots, as the same are or may be constructed at any time, and any replacement thereof or substitute therefor.

 

Section 15. Streets. "Streets" means all of the public and private roadways to the respective right-of-way lines thereof, as shown on the plat or plats of Sunnybrooke, as the same may be recorded from time to time, which have been or hereafter are constructed for the purpose of providing common access for Owners, occupants and their guests and invitees, to any or all Lots.

 

ARTICLE Ill.

 

Use Restrictions

 

Section 1. General. Unless otherwise provided in these restrictions or on the recorded plat, no dwellings or above-grade structure shall be constructed or placed on any Lot except as provided herein.

 

Section 2. Type of Structure. Every Lot in Sunnybrooke, unless otherwise designated by Declarant shall be used exclusively for single family residential purposes.

 

Section 3. Lot and Dwelling. All Lots shall be not less than five thousand (5,000) square feet in size. All dwellings will have two (2), three (3) or four (4) bedrooms, a two-car garage and a minimum living area of one thousand two hundred (1,200) square feet.

 

Section 4. Accessory or Temporary Buildings. No temporary house, trailer, tent, garage or other outbuilding shall be placed or erected on any Lot, nor shall any overnight camping be permitted on any Lot.

 

Section 5. Setback Lines. Front yard, side yards and rear yards setback lines shall be located as set forth upon the plats of Sunnybrooke, and as required by zoning.

 

Section 6. Manner of Use. Each Owner shall use and occupy his respective Lot and all Easements and rights-of-way appertaining thereto, in a careful safe, and proper manner and keep his Lot in a clean and safe condition in accordance with this Declaration, applicable zoning ordinances, all health, fire, and police requirements and regulations, state statutes, local ordinances, and the lawful directions of proper public officials. No owner shall conduct, or permit any person to permit, any unlawful activity in Sunnybrooke.

 

Section 7. Outside Grounds. In order to preserve the natural quality and aesthetic appearance of the existing geographic areas within Sunnybrooke, any fence, light fixture, basketball goal, or similar structure must be approved by the Committee as to size, locations, height, and composition before it may be installed. A standard mailbox and post will be adopted for Sunnybrooke by the Declarant and installed by the Builders.

 

Section 8. Exterior Construction. Each driveway in Sunnybrooke will be of concrete or asphalt material and will not exceed in width the side boundaries of the garage associated therewith. No additional parking will be permitted on a Lot other than in the existing driveway. Each dwelling will have a continuous concrete sidewalk from the driveway to the front porch. All metal windows in Sunnybrooke will be factory painted, no raw aluminum windows will be permitted, and all windows will have an approved thermal break. All gutters and downspouts in Sunnybrooke will be painted on a colored material other than gray galvanized. All garage doors within the development will be of a steel, masonite or wood material. All roofing in Sunnybrooke will be of a shingle-type material with weight no less than two hundred twenty (220) pounds and rating of Class A. All vent stacks shall be placed in inconspicuous locations. No two dwellings with the same facade will be placed side by side. No metal (except for copper or metal roofs over box or bay windows), fiberglass or similar type material, awnings or patio covers will be permitted in Sunnybrooke. No above-ground swimming pools will be permitted on any Lot in Sunnybrooke.

 

Section 9. Heating Plants. Every dwelling in Sunnybrooke must contain a heating plant installed in compliance with required codes.

 

Section 10. Damaged Structures. No improvement which has partially or totally been destroyed by fire or otherwise shall be allowed to remain in such state for more than three (3) months from the time of such destruction or damage.

 

Section 11. Used Materials. All structures constructed or placed on any numbered Lot in Sunnybrooke shall be constructed with substantially all new materials, and no used structures shall be relocated or placed on any such Lot.

 

Section 12. Maintenance of Lots and Improvements. The Owner of any Lot in Sunnybrooke shall at all times maintain the Lot and any Improvements situated thereon in such a manner as to prevent the Lot or Improvements from becoming unsightly. Owners shall be responsible for the following:

 

(a)          Mow the Lot at such times as may reasonably be required in order to prevent the unsightly growth of vegetation and noxious weeds.

 

(b)          Remove all debris or rubbish.

 

(c)           Prevent the existence of any other condition that reasonably tends to detract from or diminish the aesthetic appearance of the Development.

 

(d)          Cut down and remove dead trees.

 

(e)          Keep the exterior of all Improvements in such a state of repair or maintenance as to avoid their becoming unsightly.

 

Section 13. Building on Contiguous Lots Having One Owner. Whenever two or more contiguous Lots in Sunnybrooke shall be owned by the same person, and such Owner shall desire to use two or more of said Lots as a site for a single dwelling, he shall apply in writing to the Committee for permission to so use said Lots. If permission for such use shall be granted, the Lots constituting the site for such single dwelling shall be treated as a single Lot for the purpose of applying these Restrictions to said Lots.

 

ARTICLE IV.

 

General Restrictions

 

Section 1.  Nuisances. No nuisance shall be permitted to exist or operate upon the Real

Estate.

 

Section 2. Animals. No farm animals, fowls or domestic animals, other than household pets, shall be permitted in Sunnybrooke. All such pets must be kept under control by their owners and must not become a nuisance to other residents.

 

Section 3. Boats, Trucks, etc. No boats, campers, trailers of any kind, recreations vehicles or commercial vehicles of any kind shall be permitted to park on the Real Estate for more than forty-eight (48) hours unless fully enclosed inside a building.

 

Section 4. Clothes Drying Area. No outdoor clothes drying area or apparatus shall be

allowed.

 

Section 5. Site Visibility. No fences, wall, hedge, or shrub planting which obstructs sight lines shall be placed or permitted to remain on any corner Lot.

 

Section 6. Fences. All fences shall be kept in good repair and erected so as to enclose the property and decorate the same without hindrance, encroachment, or obstruction to any Easement, Street right-of-way line, or adjoining Lot. Prior to erection, the plans for all fences must be approved by the Committee.

 

Section 7. Signs. No billboards or advertising signs of any character shall be exhibited in any way on or above the Real Estate or any part thereof or on any improvement thereon without the written approval of the Committee; provided, however, any Owner may place one sign of not more than six (6) square feet advertising the Lot and Improvements thereon, for sale or rent.

 

Section 8. Oil and Gas Tanks; Air Conditioners. All oil tanks and bottled gas tanks must be underground. No above or below storage of gasoline will be allowed. Any stationary air conditioning units must be similarly walled-in, screened or appropriately landscaped. Appropriate screening shall be determined by the Committee.

 

Section 9. Easements for Utilities and Public and Quasi-Public Vehicles. All public and quasi-public vehicles, including, but not limited to police, fire, ambulance and other emergency vehicles, trash and garbage collection, post office vehicles, and privately owned delivery vehicles shall have the right to enter upon the Real Estate and any Lot therein in performance of their duties.

 

Section 10. Utility Easements. Declarant hereby reserves unto itself, its successors and assigns for purpose of installing and maintaining municipal and public utility facilities and for such other purposes incidental to the development of Sunnybrooke, full facilities, sanitary sewer and water lines, gas and electric lines, communication lines (which shall include cable TV), and such other further public service facilities as Declarant may deem necessary. Provided, however, the disturbed area shall be restored as nearly as is possible to the condition in which it was found. No permanent structures shall be constructed within an easement area.

 

Section 11. Landscape Easements. The Landscape Easements, if any, are for the construction, maintenance and improvement of landscaping and earth mounding on certain Lots. Such easements shall be in favor of the Sunnybrooke Homeowners' Association for improvements and maintenance.

 

Section 12. Utility Lines. All electrical service, telephone and other utility lines shall be placed underground, except where required to be placed above ground by the individual utility supplier or when approved by the Committee. No utility services shall be installed under finished streets except by jacking, drilling, or boring unless specifically approved by the Committee.

 

Section 13. Lot Access. All Lots shall be accessed from the interior streets of this subdivision. No access is permitted from Sunnyside Road.

 

Section 14. Obstruction of Common Property. No Owner shall unreasonably interfere with, damage, or obstruct the use of maintenance of any Common Property.

 

Section 15. Outdoor Lighting. All outdoor lighting on any Lot shall be subject to the

approval of the Committee or the Association and all applications for such approval shall be in writing.

 

Section 16. Construction Easements. An easement, not to exceed five (5) feet from the perimeter of any Lot upon which a building is being constructed, is hereby reserved by Declarant and granted to each builder who is constructing a home upon such Lot, for the sole purpose of entering upon such adjacent Lot if and to the extent necessary to perform such construction.

 

Section 17.  Garbage, Trash and Other Refuse. No Owner of a Lot in Sunnybrooke shall burn or permit the burning out-of-doors of garbage or other refuse, nor shall any such Owner accumulate or permit the accumulation out-of-doors of such refuse on his Lot except as may be permitted in subparagraph 19 below. All dwellings built in the Development shall be equipped with a garbage disposal unit.

 

Section 18. Trash Receptacles. Every outdoor receptacle for ashes, trash, rubbish or garbage shall be so placed and kept as not to be visible from any street within Sunnybrooke at any time, except at the times when refuse collections are being made.

 

Section 19. Model Homes. No Owner of any Lot in Sunnybrooke other than Declarant shall build, or permit the building upon said Lot any dwelling that is to be used as a model home or exhibit house.

 

Section 20. Ditches and Swales. It shall be the duty of every Owner of every Lot in Sunnybrooke on which any part of an open storm drainage ditch or swale is situated to keep such portion thereof as may be situated upon his Lot continuously unobstructed and in good repair.

 

Section 21. Wells and Septic Tanks. No water wells shall be drilled on any of the Lots in Sunnybrooke without the approval of the Committee. No septic tanks shall be installed on any of the Lots.

 

Section 22. Antennas, Poles, Heat Panels, Etc. No outside antennas, satellite dishes, poles (except for flag poles approved by the Committee), masts, towers, heat panels or other similar structures shall be allowed on any Lot.

 

 

ARTICLE V.

 

Development Control Committee

 

Section l. Powers of Committee

 

(a) In General. No dwelling or improvement of any type or kind shall be repainted, constructed or placed on any Lot in Sunnybrooke, and no existing trees shall be removed, without the prior approval of the Committee. Such approval shall be obtained only after written application has been made to the Committee by the Owner of the Lot requesting authorization from the Committee. Such written application shall be in the manner and form prescribed from time to time by the Committee, and shall be accompanied by two (2) complete sets of plans and specifications for any such proposed construction or improvement. Such plans shall include plot plans showing the location of all improvements existing upon the Lot and the location of the improvement proposed to be constructed or placed upon the Lot, each properly and clearly designated. Such plans and specifications shall set forth the color and composition of all exterior materials proposed to be used and any proposed landscaping. Together with any other material or information which the Committee may require. All plans and drawings required to, the submitted to the Committee shall be drawn to a scale of one inch (1") equals ten feet (10'), or to such other scale as the Committee may require. There shall also be submitted, where applicable, the permits or plat plans which shall be prepared by either a registered land surveyor, engineer or architect. Plat plans submitted for Improvement Location Permit shall bear the stamp or signature of the Committee acknowledging the approval thereof.

 

(b) Power of Disapproval. The Committee may refuse to grant permission to remove trees repaint, construct, place or make the required improvement, when:

 

1. the plans, specifications, drawings, or other material submitted are themselves inadequate or incomplete, or show the proposed improvement to be in violation of these Restrictions;

 

1. the design or color scheme of a proposed repainting or improvement is not in harmony with the general surroundings of the Lot or with adjacent buildings or structures;

 

1. the proposed improvement, or any part thereof, or proposed tree removal, would, in the opinion of the Committee, be contrary to the interests, welfare or rights of all or any part of other Owners.

 

Section 2. Duties of Committee. The Committee shall approve or disapprove proposed improvements within fifteen (15) days after all required information shall have been submitted to it. One copy of submitted materials shall be retained by the Committee for its permanent files. All notifications to applicants shall be in writing, and, in the event that such notification is one of disapproval, it shall specify the reason or reasons for such disapproval.

 

Section 3. Liability of Committee. Neither the Committee nor any agent thereof, nor Declarant, shall be responsible in any way for any defects in any plans, specifications or other materials submitted to it, nor for any defects in any work done according thereto.

 

Section 4. Inspection. The Committee may inspect work being performed with its

permission to assure compliance with these Restrictions and applicable regulations.

 

ARTICLE VI.

 

Property Rights

 

Section 1. Rights to Common Property. Title to all Common Property shall be held by the Association and each Owner shall have, as non-exclusive, reciprocal easements appurtenant to his Lot; a right of access to his Lot over all streets; the right of access to and use of the drainage system, the sewage system, and all utility lines and mains abutting or adjacent to his Lot; the right to use of all Common Areas for their intended purposes; provided, however, that no Owner's use of any Common Property shall materially interfere with any other Owner's use thereof.

 

Section 2. Owner's Easements of Enjoyment. Every Owner shall have a right and easement of enjoyment in and to the Common Areas which shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions:

 

1. the right of the Association to suspend the voting rights and right to use of the recreational facilities by an Owner for any period during which any Assessment against his Lot remains unpaid;

 

1. the right of the Association to dedicate or transfer all or any part of the Common Areas to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the members.

 

Section 3. Delegation of Use. Any Owner may delegate, in accordance with the Bylaws of the Association, his right of enjoyment to the Common Areas and facilities of the Association to the members of his family, his tenants, or contract purchasers who reside on the property.

 

Section 4. Limited Common Area. There is hereby reserved by the Declarant for the benefit of the Owner of any Lot, a limited common area for the purpose of entering and encroaching upon an adjoining Lot as designated on the plat hereof. Said limited common area is reserved for the limited purpose of performing maintenance and repair work on the dwelling benefited by such easement, and for the encroachment, if any, of the roofs, gutters, overhangs or other improvements resulting from the original construction of the adjacent dwelling. The owner of any house built within three (3) feet of a side-yard property line, shall have an express right of access and use for the limited purposes described above, in the limited common area as measured from the side-yard property line. Said easement area shall be five (5) feet in width as measured from said side-yard property line and as designated on the plat hereof.  Any persons entering upon an adjacent Lot under the rights granted hereunder shall be responsible for repair of any damage resulting from the use of such area.

 

ARTICLE VII.

 

Covenants for Maintenance Assessments

 

Section 1. Purpose of the Assessments. The Assessments levied by the Association shall be used exclusively for the purpose of preserving the values of the Lots within Sunnybrooke and promoting the health, safety, and welfare of the Owners, users, and occupants of Sunnybrooke and, in particular, for the improvement, repairing. operating, and maintenance of the Common Property, including. but not limited to, the payment of taxes and insurance thereon and for the cost of labor, equipment, material, and management furnished with respect to the Common Property; provided that the Association shall not be responsible for the replacement, repair or maintenance of any Common Property which is or hereafter may be dedicated to the public. Each Owner hereby covenants and agrees to pay to the Association:

 

1. A Pro-rata Share (as hereinafter defined) of the annual Assessments fixed, established,

and determined from time to time, as hereinafter provided.

1. A Pro-rata Share (as hereinafter defined) of any special Assessments fixed, established, and determined from time to time, as hereinafter provided.

 

Section 2. Liability for Assessment. Each Assessment, together with any interest thereon and any costs of collection thereof, including attorneys' fees, shall be a charge on each Lot and shall constitute a lien from and after the due date thereof in favor of the Association upon each Lot. Each such Assessment, together with any interest thereon and any costs of collection thereof, including attorneys' fees, shall also be the personal obligation of the Owner of each Lot at the time when the Assessment is due. However, the sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof shall extinguish the lien of such Assessments as to payments which become 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, nor shall any sale or transfer relieve any Owner of the personal liability hereby imposed. The personal obligation for delinquent Assessments shall not pass to any successor in title unless such obligation is expressly assumed by such successor.

 

Section 3. Pro-rata Share. The Pro-rata Share of each Owner for purposes of this Article VII shall be the percentage obtained by dividing one by the total number of Lots shown on the plat or plats of Sunnybrooke ("Pro-rata Share").

 

Section 4.  Basis of Annual Assessments. The Board of Directors of the Association shall establish an annual budget prior to the beginning of each fiscal year, setting forth estimates of all Common Expenses for the coming fiscal year, together with a reasonable allowance for contingencies and reserves of the Association. A copy of this budget shall be delivered to each Owner prior to the beginning of each fiscal year of the Association.

 

Section 5. Basis of Special Assessments. Should the Board of Directors of the Association at any time during the fiscal year determine that the Assessment levied with respect to such year are insufficient to pay the Common Expenses for such year, the Board of Directors of the Association may, at any time, and from time to time levy such special Assessments as it may deem necessary for meeting the Common Expenses. In addition, the Board of Directors of the Association shall have the right to levy at any time, and from time to time, one or more special Assessments for the purpose of defraying, in whole, or in part, any unanticipated Common Expense not provided for by the Annual Assessments.

 

Section 6. Fiscal Year; Date of Commencement of Assessments; Due Dates. The fiscal year of the Association shall be established by the Association and may be changed from time to time by action of the Association. The annual Assessments of each Lot in each section of Sunnybrooke shall commence on the first day of the second month following the month in which Declarant first conveys ownership of any Lot in such section to an Owner. The first annual Assessment within each section of Sunnybrooke shall be made for the balance of the Association's fiscal year in which such Assessment is made and shall become due and payable commencing on any date fixed by the Association. The annual Assessment for each year after the first assessment year shall be due and payable on the first day of each fiscal year of the Association. Annual Assessments shall be due and payable in full as of the above date, except that the Association may from time to time by resolution authorize the payment of such Assessments in installments.

 

Section 7. Duties of the Association.

 

(a) The Board of Directors of the Association shall keep proper books and records of the levy and collection of each annual and special Assessment, including a roster setting forth the identification of each and every Lot and each Assessment applicable thereto, which books and records shall be kept by the Association and shall be available for the inspection and copying by each Owner (or duly authorized representative of any Owner) at all reasonable times during regular business hours of the Association. The Board of Directors of the Association shall cause written notice of all Assessments levied by the Association upon the Lots and upon the Owners to be mailed to the Owners or their designated representatives as promptly as practicable and in any event not less than thirty (30) days prior to the due date of such Assessment or any installment thereof. In the event such notice is mailed less than thirty (30) days prior to the due date of the Assessment to which such notice pertains, payment of such Assessment shall not be deemed past due for any purpose if paid by the Owner within thirty (30) days after the date of actual mailing of such notice.

 

(b) The Association shall promptly furnish to any Owner or Mortgagee upon request a certificate in writing signed by an officer of the Association, setting forth the extent to which Assessments have been levied and paid with respect to such requesting Owner's or Mortgagee's Lot. As to any person relying thereon, such certificate shall be conclusive evidence of payment of any Assessment therein stated to have been paid.

 

(c) The Association shall notify any Mortgagee from which it has received a request for notice of any default in the performance by any owner of any obligation under the By-laws or this Declaration which is not cured within sixty (60) days.

 

Section 8. Non-payment of Assessments; Remedies of Association.

 

(a) If any Assessment is not paid on the date when due, then such Assessment shall be deemed delinquent and shall, together with any interest thereon and any cost of collection thereof, including attorneys' fees, become a continuing lien on the Lot against which such Assessment was made, and such lien shall be binding upon and enforceable as a personal liability of the Owner of such Lot as of the date of levy of such Assessment, and shall be enforceable against the interest of such Owner and all future successors and assignees of such Owner in such Lot; provided, however, that such lien shall be subordinate to any mortgage on such Lot recorded prior to the date on which such Assessment becomes due.

 

(b) If any Assessment upon any Lot is not paid within thirty (30) days after the due date, such Assessment and all costs of collection thereof, including attorneys' fees, shall bear interest from the date of delinquency until paid at an annual rate which is two times the rate in effect for ninety-day U.S. Treasury Bills at the time such Assessment is due, but in no event greater than the maximum rate allowable under any applicable usury laws, and the Association may bring an action in any court having jurisdiction against the delinquent Owner to enforce payment of the same and/or to foreclose the lien against said Owner's Lot, and there shall be added to the amount of such Assessment all costs of such action, including the Association's attorneys’ fees, and in the event a judgement is obtained, such judgement shall include such interest, costs, and attorneys' fees.

 

Section 9. Adjustments. In the event that the amounts actually expended by the Association for Common Expenses in any fiscal year exceed the amount budgeted and assessed for Common Expenses for that fiscal year, the amount of such deficit shall be carried over and become an additional basis for Assessments for the following fiscal year. Such deficit may be recouped either by inclusion in the budget for annual Assessments or by the making of one or more special Assessments for such purpose, at the option of the Association. In the event that the amounts budgeted and assessed for Common Expensed in any fiscal year exceed the amount actually expended by the Association for Common Expenses for that fiscal year, a Pro-rata Share of such excess shall be a credit against the Assessment(s) due from each Owner for the next fiscal year(s).

 

 

ARTICLE VIII.

 

Organization and Duties of Association

 

Section 1. Organization of Association. The Association shall be organized as a not-for­ profit corporation under the laws of the State of Indiana, to be operated in accordance with the Articles of Incorporation which have been filed or will be filed by Declarant. The membership of the Association shall consist of one class of voting members, with each member having equal voting rights. The members of the Association shall consist of the Owners of Lots in Sunnybrooke, as the same may be platted from time to time, provided that, in the event that any one Lot shall be owned by more than one person, partnership, trust, corporation, or other entity, they shall be treated collectively as one member for voting purposes, so that as to any matter being considered by the Association. only one vote appertains to each Lot.

 

Section 2. General Duties of the Association. The Association is hereby authorized to act and shall act on behalf of, and in the name, place, and stead of, the individual Owners in all matters pertaining to the maintenance, repair, and replacement, of the Common Property, the determination of Common Expenses, the collection of annual and special Assessments, .and the granting of any approvals whenever and to the extent called for by this Declaration. The Association shall also have the right, but not the obligation to act on behalf of any Owner or Owners in seeking enforcement of the terms, covenants, conditions and restrictions contained in Article III and Article IV of this Declaration. Neither the Association nor its officers or authorized agents shall have any liability whatsoever to any Owner for any action taken under color of authority of this Declaration, or for any failure to take any action called for by this Declaration, unless such act or failure to act is in the nature of a willful or reckless disregard of the rights of the Owners or in the nature of willful, intentional, fraudulent, or reckless misconduct.

 

Section 3. Amendment of Declaration. The association shall have the right to amend this Declaration at any time, and from time to time, upon the recommendation of an amendment to the Association by its Board of Directors, and the subsequent approval of such the Mortgagees of at least two-thirds of the Mortgagees requesting notice of such action; provided, however, that any such amendment of this Declaration shall require prior written approval of Declarant so long as Declarant owns at least six (6) Lots within Sunnybrooke. Each such amendment must be evidenced by a written instrument, signed and acknowledged by duly authorized officers of the Association, and by Declarant when its approval is required, setting forth facts sufficient to indicate compliance with this paragraph, including as an exhibit or addendum thereto a certified copy of the minutes of the Association meeting at which the necessary actions were taken, and such amendment shall not be effective until recorded in the Office of the Recorder of Marion County.

 

Section 4. Insurance. The Association shall maintain in force adequate public liability insurance protecting the Association against liability for property damage and personal injury. The Association shall also maintain in force adequate officers and directors insurance covering the officers and directors of the Association. If appropriate, the Association shall also maintain in force adequate fire and extended coverage insurance, insuring all Common Property against fire, windstorm, vandalism. and such other hazards as may be insurable under standard "extended coverage" provision, in an amount equal to the full insurable value of such Common Property. The Association shall notify all Mortgagees which have requested notice of any lapse, cancellation, or material modification of any insurance policy. All policies of insurance shall contain an endorsement or clause whereby the insurer waives any right to be subrogated to any claim against the Association, its officers, Board members, the Declarant, any property manager, their respective employees and agents, the Lot Owners and occupants, and also waives any defenses based on co-insurance or on invalidity arising from acts of the insured, and shall cover claims of one or more parties against other insured parties.

 

                The Association shall maintain a fidelity bond indemnifying the Association, the Board of Directors and the Lot Owners for loss of funds resulting from fraudulent or dishonest acts of any director, officer, employee or anyone who either handles or is responsible for funds held or administered by the Association, whether or not they cover the maximum amount of funds which will be in the custody of the Association or its management agent at any time, but in no event shall such fidelity bond coverage be less than the sum of three (3) months' assessments on all Lots in Sunnybrooke, plus the Association's reserve funds.

 

                The Association shall cause all insurance policies and fidelity bonds to provide at least ten (10) days written notice to the Association, and all Mortgagees who have requested such notice, before the insurance policies or fidelity bonds can be cancelled or substantially modified for any reason.

 

Section 5. Condemnation, Destruction. In the event that any of the Common Property shall be condemned or taken by any competent public authority, or in the event the same shall be damaged or destroyed by any cause whatsoever, the Association shall represent the interests of the Owners in any proceedings, negotiations, insurance adjustments, settlements, or agreements in connection with such condemnation, damage, or destruction. Any sums recovered by the Association shall be applied, first, to the restoration and repair of any Common Property condemned, damaged, or destroyed, to the extent such restoration or repair is practicable, and the balance of such sums shall either be held as a reserve for future maintenance of the Common Property or turned over to the Owners in proportion to their Pro-rata Shares, whichever may be determined by a majority vote of the members of the Association. Each Owner shall be responsible for pursuing his own action for damages to his Lot, either by reason of direct damage thereto or by reason of an impairment of value due to damage to the Common Property. The Association shall notify all Mortgagees of which it has notice of any condemnation, damage, or destruction of any Common Property.

 

Section 6.  Transfer of Control of the Association. Declarant shall transfer control of the Association to the Lot Owners no later than the earlier of; (a) four (4) months after three-fourths (3/4) of the Lots in Sunnybrooke have been conveyed to Lot purchasers or; (b) live (5) years after the first Lot is conveyed in Sunnybrooke.

 

Section 7. Mortgagees' Rights. The Mortgagees shall have the right, at their option, jointly or severally, to pay taxes or other charges which are in default or which may or have become a charge against the Common Property and to pay overdue premiums on hazard insurance policies, or secure new hazard insurance coverage on the lapse of a policy for the Common Property, and Mortgagees making such payment shall be owed immediate reimbursement therefor from the Association. In addition, neither the Owners nor the Association shall materially impair the rights of any Mortgagee holding, insuring, or guaranteeing any mortgage on all or any portion of the Real Estate.

 

ARTICLE IX.

 

Expansion of Subdivision

 

Method and Scope of Expansion. Declarant, at its option, and from time to time, may expand Sunnybrooke to include all or any parts of the tract described in the attached Exhibit "C", by the addition of further sections consisting of one or more Lots and any Common Property which in the discretion of Declarant is appropriate for addition with such section. such further sections, if added, shall be added by the recordation of a plat of such section, consistent in detail and layout with plats of sections previously recorded, and by the recordation of an amendment to this Declaration imposing upon such section covenants substantially similar in form and substance to this Declaration.

 

 

ARTICLE X.

 

Term

 

This Declaration shall be effective until January 1, 2000, and shall automatically renew for terms of ten (10) years each, in perpetuity, unless as of the end of any term the Owners of two-thirds (2/3) of the Lots vote to terminate this Declaration, in which case this Declaration shall terminate as of the end of the term during which such vote was taken.

 

ARTICLE XI.

 

General Provisions

 

Section 1. Covenants run with the Land. The Covenants created by this Declaration shall attach to and run with the Real Estate and shall be binding upon every person who may hereafter come into ownership, occupancy, or possession of any portion of the Real Estate.

 

Section 2. Scope of Covenants. Declarant and each Owner of any Lot by acceptance of a deed therefor whether or not it shall be so expressed in such deed, are deemed to have agreed to each and every one of the various terms, Covenants and conditions, contained in this Declaration, and the same shall be of mutual and reciprocal benefit to Declarant and each Owner of each Lot. Declarant and each Owner shall be entitled to enforce this Declaration against any Owner to the full extent permitted herein under applicable law; provided, that Declarant shall not be liable for damages of any kind to any person for failing to abide by, enforce or carry out any of the rights or remedies set forth herein. Each Owner shall be liable for any failure to fully comply with all of the terms, Covenants, and conditions, contained in this Declaration only so long as each such Owner shall have any interest in any Lot; provided, however, that the relinquishing of all of such interest shall not operate to release any Owner from liability for a failure to comply with this Declaration which occurred while said Owner had such interest.

 

Section 3. Failure to Enforce not a Waiver of Rights. the failure of Declarant, the Association, or any Owner to enforce any term, Covenant, or conditions, herein contained shall in no event be deemed to be waiver of the right to do so thereafter, nor of the right to enforce any other such term, Covenant, or condition.

 

Section 4. Effect of Invalidation. If any provision of this Declaration is held to be invalid by any court, the invalidity of such provision shall not affect the validity of the remaining provisions hereof.

 

Section 5. Section Headings. Section headings used herein are used for convenience only and are not intended to be a part of this Declaration or in any way to define, limit, or describe the scope and intent of the particular sections to which they refer.

 

Section 6. Notices. All notices in connection with this Declaration shall be made in writing and shall be deemed delivered; (a) upon personal delivery to the individual person, or; (b) seventy-two hours after the deposit thereof in any United States main or branch post office, first class postage prepaid, properly addressed to the individual person.

 

Section 7. Enforcement. In the event of a violation, or threatened violation, of any of the Covenants, restrictions or conditions set forth in this Declaration or in the Association’s By-Laws, the Association or any Owner shall have the right to enforce such Covenants, restrictions and conditions and to pursue any and all remedies, at law or in equity, available under applicable Indian law, with or without proving any actual damages, including the right to secure injunctive relief or secure removal by due process of any structure not in compliance with such Covenants, restrictions and conditions. The cost of enforcement of any of such Covenants, restrictions or conditions, including any expenses, court costs and attorney fees shall be charged to the Owner in violation, and such expenses, costs and attorney fees shall be collectible in the same manner as Assessments as described in Article VII, Section 8 herein.

 

Section 8. Reservations of Declarant. Declarant hereby reserves the right to make such amendments to this Declaration as may be deemed necessary or appropriate by Declarant, so long as Declarant owns at least six (6) Lots within Sunnybrooke; provided that Declarant shall not be entitled to make any amendment which has a material adverse effect on the rights of any Mortgagee, nor which substantially impairs the benefits of this Declaration to any Owner, or substantially increases the obligations imposed by Declaration on any Owner.

 

 

Article XII

 

Rental Restrictions

 

The Association's members recognize that an owner-occupant is both psychologically and financially invested in a home to a greater extent than a renter, and thus owner-occupants maintain their property better than renters generally. The Association's members wish to ensure that the residents within Sunnybrooke share the same proprietary interest in and respect of the Lots and the Common Areas, and to encourage residents to not only maintain property values but also to improve them by recognizing that owner-occupants have more incentive to do so compared to non-owner-occupants. Thus, the provisions of this Article XII shall be applicable.

 

Section 12.1. Rental Ban. No Owner who wishes to lease or rent their Lot may do so without express written permission from the Board of Directors, unless that Lot enjoys "Grandfather Status" as described in Section 12.2 below. The Board may, in writing, approve a lease agreement if the Owner establishes to the Board's satisfaction that denying the lease agreement will cause undue hardship in the manner as defined in Section 12.3 below. If a Lot enjoys "Grandfather Status" as described in Section 12.2, then the rental ban will not be in effect for that Unit for as long as the Lot has the same Owner as it did when it first received "Grandfather Status". The Lot will be subject to the remaining Sections of this Article XII.

 

Section 12.2. Effective Date of "Rental Ban" on Existing Rentals. Within thirty (30) days after the date on which this Amendment is recorded in the Office of the Recorder of Marion County (the "Recording Date"), the Board of Directors shall provide written notice to all Owners setting forth the Recording Date. The Rental Ban provisions of Section 12.1 shall not apply to any Lot in Sunnybrooke which, as of the Recording Date, is rented or leased by its Owner to a non-owner occupant, so long as the Owner-landlord mails or otherwise delivers to the Board (at the address shown in the notice of the Recording Date), within sixty (60) days after the Recording Date, a copy of each executed lease of such Owner-landlord's Lot which is in effect as of the Recording Date. Those Lots will enjoy "Grandfather Status". Such lease copies may have the rental amount deleted, together with any personal identifying information such as social

security numbers. The Owners of Lots that enjoy Grandfathered Status shall not be subject to the provisions of Section 12.1 but shall be subject to the remaining provisions of this Article XII. However, when the legal owners of record of any Lot that enjoys Grandfathered Status sells, transfers, or conveys such Lot to another Owner after the Recording Date, such Lot shall immediately become subject to the Rental Ban.

 

If any such Owner-landlord of a leased or rented Lot fails to deliver a copy of such pre­ Recording Date lease within said sixty-day period to the Board of Directors, that will result in said Owner-landlord's Lot being subject to the Rental Ban (from and after the date of expiration of such pre-Recording Date lease).  However, in no event shall the Rental Ban apply to any lease executed prior to the Recording Date or to any renewals thereof provided for in any such leases, so long as the Lot continues to be occupied by one or more of the non-Owner occupants in possession of the Lot as of the Recording Date.

 

Section 12.3. Hardship Exceptions and Waiver. Notwithstanding Section 12.1 above, if an Owner wishes to rent or lease his or her Lot, the Owner may request the Board of Directors to waive the Rental Ban and approve a proposed lease if the Owner establishes to the Board's satisfaction that the Rental Ban will cause undue hardship. If a majority of the entire Board of Directors approves in writing the Owner's request, the Board of Directors shall permit the Owner to rent or lease said Lot, subject to any further conditions or limitations imposed by the Board, in the Board's discretion, but only if the Owner satisfies all other requirements of this Article XII. Such decision shall be at the sole discretion of the Board.  Examples of an undue hardship include:

 

1. death, dissolution or liquidation of an Owner;

 

1. divorce or marriage of an Owner;

 

1. necessary relocation of the residence of an Owner to a point outside of a fifty (50) mile radius of the perimeter of Sunnybrooke due to a change of employment or retirement of at least one (1) of such Owners;

 

1. necessary relocation of the residence of an Owner due to mental or physical infirmity or disability of at least one (1) of such Owners;

 

1. difficult real estate market conditions;

 

1. other similar circumstances.

 

The above examples do not guarantee that the Board of Directors will grant a hardship exemption but are merely illustrative as to what might be considered a hardship by the Board of Directors.

 

Section 12.4.  General Lease Conditions.  All leases, including renewals, shall be in writing, and no lease shall be entered into for an initial term of less than one (1) year without the prior written approval of the Board of Directors. However, in no event will an Owner be permitted to rent his or her Lot for an initial term of thirty (30) days or less. No portion of any Lot other than the entire Lot shall be leased for any period. No subleasing shall be permitted. All leases shall be made expressly subject and subordinate in all respects to the terms of this Declaration, the By-Laws, Articles of Incorporation, and any rules and regulations promulgated by the Board of Directors, as amended, to the same extent as if the tenant were an Owner and a member of the Association, and shall provide for direct action by the Association and/or any Owner against the tenant with or without joinder of the Owner of such Lot. If such provision is not in the lease, it will be deemed to be in such lease. The Owner shall supply copies of such legal documents to the tenants prior to the effective date of the lease. The Owner cannot be delinquent in the payment of any assessments or other charges to the Association. If at any time an Owner becomes delinquent, the Board shall have the right to revoke said Owner's right to lease the Owner's Lot, even if the term of the lease has not expired. All Owners who do not reside in the Lot shall provide the Board of Directors with the name of the tenant(s) and any other residents living in the Lot, together with the phone number of the tenant(s). Also, the Owner must provide the Board of Directors or its managing agent with the Owner's contact information such as address, phone number and email. To be eligible to lease his or her Lot, the

Owner cannot be in violation of any provisions of this Declaration, the By-Laws, or the rules and regulations adopted by the Board, all as amended.  Ifat any time an Owner violates any such provisions through the actions or omissions of the Owner's tenant, the Board shall have the right to revoke said Owner's right to lease the Owner's Lot, even if the term of the lease has not expired.

 

Section 12.5. Owner is Still Liable. No lease shall provide, or be interpreted, or construed to provide for a release of the Owner from his or her responsibility to the Association and the other Owners for compliance with the provisions of the Declaration, the Articles of Incorporation, the By-Laws, and any rules and regulations promulgated by the Board of Directors, or from the Owner's liability to the Association for payments of assessments or any other charges.

 

Section 12.6. Association's Copy of Lease.  A copy of each executed lease by an Owner which identifies the tenant (but which may have the rental amount deleted as well as any personal identifying information) shall be provided to the Board of Directors by the Owner within thirty (30) days after execution.

 

Section 12.7. Violations.  Any lease or attempted lease of a Lot in violation of the provisions of this Article XII shall be voidable at the election of the Association's Board of Directors or any other Owner, except that neither party to such lease may assert this provision of this Article XII to avoid its obligations thereunder. In the event of a violation, the Board of Directors, on behalf of the Association, or any Owner, shall have the right to exercise any and all available remedies at law or equity.

 

Section 12.8. Institutional Mortgagees.  The provisions set forth in this Article XII shall not apply to any institutional mortgagee of any Lot which comes into possession of the Lot by reason of any remedies provided by law or in equity or in such mortgage or as a result of a foreclosure sale or other judicial sale or as a result of any proceeding, arrangement, or deed in lieu of foreclosure.  However, when a Lot is sold or conveyed by such an institutional mortgagee to a subsequent purchaser, that subsequent purchaser shall be bound by the provisions of Article XII.

 

Section 12.9. Burden of Proof. Anything to the contrary herein notwithstanding, if at any time a Lot is not occupied by one of the Owners thereof, there shall be a presumption that

the Lot is being leased and subject to the provisions of this Article XII and the Owners shall have the burden of proving to the satisfaction of the Board of Directors that the occupancy is not in violation of the terms of this Article XII, including but not limited to the delivery to the Board of Directors a written statement of the nature and circumstances of the occupancy and any written document or memorandum that is the legal basis for the occupancy. For purposes of this Article XII and this Section 9, any occupancy (including occupancy pursuant to a rent-to-buy contract or similar arrangement or pursuant to any option to purchase) by anyone other than an Owner shall be deemed to be a lease or rental.

 

Section 12.10. Certain Lots Not Counted as Rentals. The provisions of this Article XII will not apply to any situation where a Lot is occupied by one or more family members of the Lot Owner. Thus, this kind of occupancy will not be considered a "rental". Likewise, any Lot owned by a Trust or an Estate will not be considered a "rental" if the resident is (i) the Trustee, (ii) the Fiduciary of an Estate, or (iii) a beneficiary of the Trust or Estate.

 

2.            All other terms and provisions of the Declaration and the exhibits thereto shall remain unchanged and in full force and effect.  Any capitalized term not defined herein shall have the meaning prescribed to it in the Declaration.

 

3.            Certification.  The undersigned officers of the Association hereby represent and certify that all requirements for and conditions precedent to this Third Amendment to the Declaration of Covenants and Restrictions of Sunnybrooke have been fulfilled and satisfied.