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AFTER RECORDING RETURN TO:
SSHI LLC
11241 SLATER AVE NE, SUITE 200
KIRKLAND, WA 98033
ATTN: HOA DEPARTMENT
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
TOWNS ON 12TH
Grantor: SSHI LLC, a Delaware limited liability company dba D.R.
Horton
Grantee: Towns on 12th Homeowners Association, a Washington
nonprofit corporation
Abbr. Legal Description: PTN SE QTR OF SE QTR OF SEC 4-23N-5E, AND LTS 1-5 CITY
OF RENTON LLA NO. LUA-04-106-LLA, REC# 20050822900009
(Full Legal on Schedule A)
Assessor’s Parcel No.: 042305-9063, 042305-9067, 042305-9099, 042305-91100,
042305-9101, 042305-9140, 042305-9247
THE PLAT FOR THIS COMMUNITY WAS FILED WITH THE AUDITOR OF KING COUNTY,
WASHINGTON UNDER AUDITOR’S FILE NO. ______________________________.
THIS COMMON INTEREST COMMUNITY IS SUBJECT TO THE WASHINGTON UNIFORM
COMMON INTEREST OWNERSHIP ACT (CHAPTER 64.90 RCW)
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TABLE OF CONTENTS
Page
ARTICLE 1 CONSTRUCTION AND VALIDITY OF DECLARATIONError! Bookmark not defined.
ARTICLE 2 DEFINITIONS ................................................................ Error! Bookmark not defined.
ARTICLE 3 NAME OF COMMUNITY ............................................. Error! Bookmark not defined.
ARTICLE 4 DESCRIPTION OF REAL ESTATE AND BUILDINGSError! Bookmark not defined.
ARTICLE 5 DESCRIPTION OF UNITS ............................................ Error! Bookmark not defined.
ARTICLE 6 ALLOCATED INTERESTS .......................................... Error! Bookmark not defined.
ARTICLE 7 COMMON ELEMENTS ................................................ Error! Bookmark not defined.
ARTICLE 8 LIMITED COMMON ELEMENTS ............................... Error! Bookmark not defined.
ARTICLE 9 EASEMENTS ................................................................. Error! Bookmark not defined.
ARTICLE 10 USE RESTRICTIONS AND CONDUCT RESTRICTIONSError! Bookmark not defined.
ARTICLE 11 MAINTENANCE, CONSTRUCTION AND ALTERATIONSError! Bookmark not defined.
ARTICLE 12 SPECIAL DECLARANT RIGHTS .............................. Error! Bookmark not defined.
ARTICLE 13 OWNERS ASSOCIATION .......................................... Error! Bookmark not defined.
ARTICLE 14 TRANSITION TO OWNER CONTROL ..................... Error! Bookmark not defined.
ARTICLE 15 THE BOARD OF DIRECTORS .................................. Error! Bookmark not defined.
ARTICLE 16 BUDGET AND ASSESSMENTS ................................ Error! Bookmark not defined.
ARTICLE 17 LIEN AND COLLECTION OF ASSESSMENTS ....... Error! Bookmark not defined.
ARTICLE 18 ENFORCEMENT OF GOVERNING DOCUMENTS Error! Bookmark not defined.
ARTICLE 19 TORT AND CONTRACT LIABILITY ....................... Error! Bookmark not defined.
ARTICLE 20 INSURANCE ................................................................ Error! Bookmark not defined.
ARTICLE 21 DAMAGE AND REPAIR OF DAMAGE TO PROPERTYError! Bookmark not defined.
ARTICLE 22 CONDEMNATION ...................................................... Error! Bookmark not defined.
ARTICLE 23 PROCEDURES FOR SUBDIVIDING OR COMBINING UNITSError! Bookmark not defined.
ARTICLE 24 AMENDMENT OF DECLARATION OR MAP ......... Error! Bookmark not defined.
ARTICLE 25 TERMINATION OF COMMUNITY ........................... Error! Bookmark not defined.
ARTICLE 26 NOTICES ...................................................................... Error! Bookmark not defined.
ARTICLE 27 ASSIGNMENT BY DECLARANT ............................. Error! Bookmark not defined.
ARTICLE 28 DISPUTE RESOLUTION ............................................ Error! Bookmark not defined.
SCHEDULES: A Description of Real Estate Subject to Declaration
B Schedule of Maintenance Responsibilities
C Description of Withdrawable Property
D Schedule of Maintenance Responsibilities
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
TOWNS ON 12TH
ARTICLE 1 CONSTRUCTION AND VALIDITY OF DECLARATION
Section 1.1 Purpose. The Declarant has recorded this Declaration to create a single-
family residential community of the real estate described in Schedule A, to enhance the value of
the Community, to establish a system for governance of the Community, and to protect the
interests of Persons having any right, title or interest to real estate in the Community, pursuant to
the CIC Act. This Declaration shall be effective as of the date that it is recorded.
Section 1.2 Construction. The creation and operation of the Community are governed
by this Declaration, the Map and the CIC Act. In the event a provision of the Declaration is
inconsistent with a provision of the CIC Act, the provisions of the CIC Act will prevail. In the event
of a conflict between a provision of this Declaration and the Bylaws, the Declaration will prevail
except to the extent the Declaration is inconsistent with the CIC Act. An insignificant failure of the
Declaration or the Map, or any amendment thereto, to comply with the CIC Act will not, however,
invalidate the creation of the Community, nor will it make unmarketable or otherwise affect the title
to a Unit and its Common Ownership Interest.
Section 1.3 Covenant Running with Land. This Declaration shall operate as servitude
and shall bind the Declarant, the Association, all Owners and any other Persons having any right,
title or interest in the real estate subject to this Declaration, or any portion thereof, together with
their grantees, successors, heirs, executors, administrators, devisees or assigns.
Section 1.4 Severability. The provisions of this Declaration shall be independent and
severable, and the unenforceability of any one provision shall not affect the enforceability of any
other provision if the remaining provision or provisions comply with the CIC Act. In the event a
provision of the Declaration is rendered unenforceable or superseded by any federal, state, local
statute, ordinance, rule, regulation, or other law now or hereafter in effect pertaining to Community
(collectively “Applicable Law”), the Applicable Law will prevail.
Section 1.5 Percentage of Owners or Mortgagees. For purposes of determining the
percentage of Owners, Mortgagees or voting power necessary to approve a proposed decision or
course of action where an Owner owns, or a Mortgagee holds Mortgages on, more than one Unit,
an Owner shall be deemed a separate Owner for each Unit so owned and a Mortgagee shall be
deemed a separate Mortgagee for each first Mortgage so held.
Section 1.6 Inflationary Increase in Dollar Limits. Any dollar amounts specified in this
Declaration in connection with any proposed action or decision of the Board or Association shall be
proportionately increased on July 1 of each year by the percentage change in the consumer price
index specified in Section 114(1) of the CIC Act, as if Section 114 applied to such amounts.
ARTICLE 2 DEFINITIONS
Section 2.1 Words Defined. For the purposes of this Declaration and any
amendments hereto, the following definitions shall apply. The singular form of words includes the
plural and the plural includes the singular. Masculine, feminine and neutral pronouns are used
interchangeably.
“Allocated Interests” means the Common Ownership Interest, if any, as to any Common
Elements owned in common by the Unit Owners, the Common Expense Liability and the Voting
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Interest allocated to each of the Units in the Community. The formulas used to determine the
Allocated Interests are set forth in Article 6.
“Arbitration Demand” is defined in Section 28.1.
“Architectural Control Committee” or “ACC” means any committee established or
designated by the Board for the purpose of carrying out some or all of the Board functions set forth
in Article 11.
“Articles” means Articles of Incorporation for the Association.
“Assessments” means all sums chargeable by the Association against a Unit, including,
without limitation: (a) general and special assessments for Common Expenses; (b) charges and
fines imposed by the Association; (c) interest and late charges on any delinquent account; and
(d) costs of collection, including reasonable attorneys’ fees, incurred by the Association in
connection with the collection of a delinquent Owner’s account.
“Association” is defined in Section 13.1.
“Authorized Users” means the agents, servants, Tenants, family members, invitees, and
licensees of an Owner who are accorded rights, directly or indirectly, by that Owner to use or
access all or a portion of that Owner’s Unit and its appurtenant interest in the Common Elements.
“Board” means the board of directors of the Association, as described in Article 15 and in
the Articles and the Bylaws.
“Books and Records of the Association” means the books and records that the Association
is required to maintain pursuant to Section 320 of the CIC Act.
“Bylaws” means the bylaws of the Association as they may from time to time be amended.
“CIC Act” means the Washington Uniform Common Interest Ownership Act, Chapter 277,
Laws of 2018, codified as chapter 64.90 RCW, as it may be from time to time amended.
“Common Elements” means (i) any real estate, other than a Unit, within the Community
that is owned or leased by either (A) by the Association or, (B) in common by the Unit Owners, and
(ii) any other interests in real estate for the benefit of any Unit Owners that are subject to this
Declaration. The term includes the Limited Common Elements.
“Common Expenses” means expenditures made by or financial liabilities of the
Association, including expenses related to the maintenance, repair and replacement of the
Common Elements, allocations to reserves, and expenses related to any utility services provided
by or billed through the Association to the Unit Owners. Some Common Expenses are allocated to
the Units according to the Common Expense Liability of the Unit. Other Common Expenses are
Specially Allocated Expenses.
“Common Expense Liability” means the liability for Common Expenses (other than
Specially Allocated Expenses) allocated to each Unit, as described in Article 6. The Common
Expense Liability may change if additional Units are added to the Community.
“Common Ownership Interest” means the undivided ownership interest in any Common
Elements that are owned in common by the Unit Owners, allocated to each Unit, as described in
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Article 6. The Common Ownership Interest may change if additional Units are added to the
Community.
“Community” means the Units and Common Elements created by this Declaration and the
Map, as they may be amended.
“Community-Wide Standard” means the standard of conduct, maintenance, or other activity
generally prevailing in the Community, or the minimum standards established by the Board
pursuant to any Rules adopted by the Board, whichever is the higher standard. Declarant shall
establish initially such standard and it may contain both objective and subjective elements. The
Community-Wide Standard may evolve as development progresses and as the needs and desires
within the Community change.
“Control Termination Date” means the date that is the earlier of (i) 60 days after
Conveyance of 75% of the Units that may be created in the Community, including Units later
created, to Owners other than the Declarant, (ii) two years after the last Conveyance or transfer of
record of a Unit except as security for a debt, (iii) two years after any Development Right to create
Units was last exercised, or (iv) the date on which Declarant records a Record terminating all rights
to appoint or remove any director or officer of the Association or any master association or to veto
or approve a proposed action of any Board or Association.
“Conveyance” means any transfer of the ownership of a Unit, including a transfer by deed
or by real estate contract and, with respect to a Unit created from a leasehold estate, a transfer by
lease or assignment thereof. Conveyance does not mean a transfer solely as security for a debt or
other obligation.
“Dealer” means a person who, together with such persons’ affiliates, owns or has a right to
acquire six or more units in the Community.
“Declarant” means SSHI LLC, a Delaware limited liability company dba D.R. Horton,
and its successors and assigns, to the extent such successor or assign is expressly designated as
the successor Declarant or assignee of certain Special Declarant Rights by the immediately
preceding Declarant.
“Declaration” means this Declaration of Covenants, Conditions and Restrictions as it may
from time to time be amended.
“Development Right” means any right or combination of rights reserved in this Declaration,
or an amendment thereto, for the benefit of the Declarant, or its successors or assigns to: (a) add
real estate or improvements to the Community; (b) create Units, Common Elements or Limited
Common Elements within any real estate initially included or subsequently added to the
Community; (c) subdivide or combine Units or convert Units into Common Elements; (d) withdraw
real estate from the Community; or (e) reallocate Limited Common Elements with respect to Units
that have not been conveyed by the Declarant.
“Electronic Transmission” or “electronically transmitted” means any electronic
communication (a) not directly involving the physical transfer of a Record in a Tangible Medium
and (b) that may be retained, retrieved, and reviewed by the sender and the recipient of the
communication, and that may be directly reproduced in a Tangible Medium by a sender and
recipient.
“Eligible Mortgagee” means an “eligible mortgagee” as defined in the CIC Act.
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“Entry Monuments” means any entry monuments, signs, landscaping, lighting and other
improvements, including water and electricity, installed by the Declarant or Association to mark an
entry to the Community.
“Fannie Mae” means the Federal National Mortgage Association, a federally chartered
corporation.
“Fire Lanes” means any areas within any public right-of-way, easement or on private
property that is designated for the use, travel and parking of fire trucks and other fire fighting or
emergency equipment.
“Foreclosure” means a forfeiture or judicial or non-judicial foreclosure of a Mortgage or a
deed in lieu thereof.
“Freddie Mac” means the Federal Home Loan Mortgage Corporation, a federally chartered
corporation.
“Governing Documents” means this Declaration, the Map, and the Articles, Bylaws, and
Rules of the Association, as they may be amended from time to time.
“Home” means a single-family residence, and its associated improvements, located on a Unit.
“HUD” means the United States Department of Housing and Urban Development.
“Limited Common Element” means a portion of the Common Elements allocated in this
Declaration, or by operation of law, for the exclusive use of one or more but fewer than all of the
Units.
“Managing Agent” means the Person, if any, designated by the Board under Section 15.3.
“Map” or “Plat” means the plat for the Community recorded under Auditor’s File Number
___________________ (“Map” or Plat”). The Map includes any recorded amendments,
corrections, and addenda thereto.
“Mortgage” means a recorded mortgage, deed of trust or real estate contract.
“Mortgagee” means any holder, insurer or guarantor of a Mortgage on a Unit.
“Notice and Opportunity to Be Heard” means the procedure described in Section 15.10.
“Owner” or “Unit Owner” means the Declarant or other Person who owns a Unit, but does
not include any Person who (i) has an interest in a Unit solely as security for an obligation,
monetary or regulatory, (ii) is the beneficiary of rights under easements and/or covenants granted
by an Owner, or (iii) is an Authorized User.
“Party Wall” means one or more shared walls between two Units and related structures as
defined and described in Articles 9 & 11.
“Person” means a natural person, corporation, partnership, limited partnership, trust,
governmental agency or other legal entity.
“Qualified Financial Institution” means a bank, savings association, or credit union whose
deposits are insured by the federal government.
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“RCW” means Revised Code of Washington.
“Record”, when used as a noun, means information inscribed on a Tangible Medium or
contained in an Electronic Transmission.
“Rules” means the rules or regulations adopted by the Association, as they may be
amended from time to time.
“Special Declarant Rights” means all rights identified in ARTICLE 12 , together with as any
right right or combination of rights reserved in this Declaration for the benefit of the Declarant to:
(a) complete improvements indicated on the Map, described in the Declaration or the public
offering statements; (b) exercise any Development Rights; (c) maintain sales offices, management
offices, signs advertising the Community and models; (d) use easements through the Common
Elements for the purpose of making improvements within the Community or within real estate that
may be added to the Community; (e) make the Community subject to a master association; (f)
merge or consolidate the Community with any other community of the same type; (g) appoint or
remove any director or officer of the Association or any master association, or veto or approve a
proposed action of any Board or Association; (h) control any construction, design review, or
aesthetic standards committee or process; (i) attend meetings of the Units Owners and, except
during an executive session, the Board; or (j) have access to the records of the Association to the
same extent as a Unit Owner.
“Specially Allocated Expenses” means those Common Expenses described in Section 16.6
of this Declaration.
“Street” shall mean any public or private road, drive lane or driveway lane (if located in a
public right of way or Common Elements), alley, or similar place or other thoroughfare either as
shown on the Map or Plat of the Property, however designated, or as so used as a part of the
Common Elements; but not any access-way designated on the Map or otherwise as a Limited
Common Element for the private use between specific Owners.
“Street Landscaping” means the street trees, grass, landscaping and vegetation located
within or along the streets in the Community.
“Street Lighting” means the lighting for streets within or adjacent to the Community.
“Structure” means any improvement on any Unit, including without limitation, any Home,
building, garage, carport, porch, shed, greenhouse, deck, pool, pool cover, curbing, fence, wall,
rockery, antenna, dish or other receiving device.
“Tangible Medium” means a writing, copy of a writing, facsimile, or a physical reproduction,
each on paper or on other tangible material.
“Tenant” means an occupant of Unit other than the Unit Owner, or its personal guests,
family members, care givers or roommates. The term includes renters, lessees, tenants and
subtenants.
“Tract” means any of Tract’s A through C, G, H, and J through O identified on the Map.
“Transition Date” means the date that is (i) 30 days after the Control Termination Date, or
(ii) in the absence of a Special Declarant Right to appoint or remove directors and officers or veto
or approve Board or Association actions, 60 days after the Conveyance of 75% of the Units that
may be created to Unit Owners other than a Declarant.
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“Transition Meeting” means the Association meeting called after the Transition Date to
elect a new Board pursuant to Section 304(4) of the CIC Act.
“Unit” means a physical portion of the Community designated for separate ownership, the
boundaries of which are shown on the Map, as amended. Each lot shown on the Map, as such
Map may be amended, is a Unit.
“VA” means the United States Veterans Administration.
“Voting Interest” means the proportionate number of votes in the Association allocated to
each Unit, as described in Section 6.4. The Voting Interest may change if additional Units are
added to the Community.
“Yard” means the outdoor area within the Unit and includes any fences installed by Declarant
or an Owner therein.
Section 2.2 Statutory Definitions. Some of the terms defined above are also defined in
the CIC Act. The definitions in the Declaration are not intended to limit or contradict the definitions
in the CIC Act. If there is any inconsistency or conflict, the definition in the CIC Act will prevail.
ARTICLE 3 NAME OF COMMUNITY
The name of the Community is Towns on 12th. The Community is a plat community, as that
term is defined in the CIC Act.
ARTICLE 4 DESCRIPTION OF REAL ESTATE AND BUILDINGS
Section 4.1 Description of Real Estate. The real estate subject to this Declaration is
described in Schedule A, as such Schedule may be amended consistent with this Declaration and
the Act.
ARTICLE 5 DESCRIPTION OF UNITS
Section 5.1 Number and Identification of Units. There are 88 Units in the Community.
The location and configuration of each Unit are shown on the Map. The Declarant has the right to
create a total of 88 Units in the Community.
ARTICLE 6 ALLOCATED INTERESTS
Section 6.1 Allocated Interests.
6.1.1 This Declaration allocates certain interests in the Community to each
Unit. Those interests are: a Common Ownership Interest, a Common Expense Liability and a
Voting Interest. The formulae used for allocating these interests are set forth in Section 6.2.
The allocation of these interests to each Unit can only be changed as provided in this
Declaration. The Allocated Interests and the title to a Unit may not be separated or separately
conveyed, whether voluntarily or involuntarily, except in conformity with this Declaration. The
Allocated Interests shall be deemed to be conveyed with the Unit to which they are allocated
even though the description in the instrument of Conveyance may refer only to the title to the
Unit.
6.1.2 The Declarant shall have the right to recalculate the Allocated
Interests and amend the Declaration and the Map if the Allocated Interests are incorrect for
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any reason, including changes in the data used to calculate the Allocated Interests,
changes in Unit boundaries, the combination or subdivision of Units, or clerical errors in the
Map or Declaration.
Section 6.2 Common Ownership Interest. The Common Ownership Interest of each
Unit is equal to the fraction, the numerator of which is the Unit, and the denominator of which is the
total number of Units in the Community. The formula for allocating the Common Ownership
Interests is: equally among the Units.
Section 6.3 Common Expense Liability. The Common Expense Liability of each Unit
is equal to the fraction, the numerator of which is the Unit, and the denominator of which is the total
number of Units in the Community. Except for Specially Allocated Expenses, the Common
Expenses are allocated to the Units according to the Common Expense Liability, the formula for
which is: equally among the Units. Specially Allocated Expenses are allocated according to
Section 16.6.
Section 6.4 Voting Interest. The Voting Interest of each Unit is equal to the fraction,
the numerator of which is the Unit, and the denominator of which is the total number of Units in the
Community. The formula for allocating votes to the Units is: equally among the Units.
ARTICLE 7 COMMON ELEMENTS
Section 7.1 Description. The Common Elements include, without limitation, the
following portions of the Community: Tracts A, B, C, G, J, M, N, and O, private roads, curbs, planter
strips and street lights, sidewalks, Street Landscaping, Entry Monuments, recreational facilities, tot
lots, parks, open spaces, trails, mail kiosks, storm water detention and treatment facilities, and
common utility systems.
Section 7.2 Use of Common Elements. Except as otherwise stated in this Declaration,
no Owner may alter any Common Element or construct or remove anything in or from any
Common Element except with the prior written consent of the Board. The right to use the Common
Elements, including the Limited Common Elements, shall be governed by the provisions of the CIC
Act and the Governing Documents. [The Owners have no right, however, to use or occupy the
Additional Property except the roadways and sidewalks. The Declarant and its Authorized Users
shall have the exclusive right to use and occupy the Additional Property and improvements thereon
until Units are created on the property.] [The Declarant’s Authorized Users of the Additional
Property shall also have the right to use the Common Elements in common with the Owners,
including the common amenities such as the ____, _____ and ________.] If any portion of the
Additional Property is withdrawn from the Community the Owners in other portions of the
Community will have no right to use any portion of the property withdrawn.
Section 7.3 Native Growth Protection Area. Tract [___] is subject to a Native Growth
Protection Easement (“NGPE”) as set forth on the Plat. The development and use of the NGPE
area is restricted by the terms of the Plat. [The Declarant has installed fences between the NGPE
area and adjoining Units. The fences are part of the Common Elements and no owner may modify
or remove any such fence. In addition, no Owner may erect any solid fence, wall or other barrier
greater than three feet high that serves to separate an adjoining Unit from such Tract.]
Section 7.4 Obstruction of Fire Lanes Prohibited. Parking will only be allowed along
one side of Road A (where shown on Approved Civil Plans. There shall be no parking on the other
side of those streets as designated by the Renton Regional Fire Authority. The purpose of this
restriction is to provide adequate road width for the access of emergency vehicles. The obstruction
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of a designated fire lane by a parked vehicle or any other object is prohibited and constitutes a
traffic hazard as defined in state law and an immediate hazard to life and property.
Section 7.5 Conveyance or Encumbrance of Common Elements. Any conveyance,
encumbrance, judicial sale or other transfer (voluntary or involuntary) by a Unit Owner of its interest
in the Common Elements shall be void unless the Unit to which that interest is allocated is also
transferred. The Association may not convey or subject to a security interest any portion of the
Common Elements unless Owners of Units to which at least 80% of the Voting Interests in the
Association are allocated, including 80% of the votes allocated to Units not owned by the
Declarant, agree to that action. All Owners of Units to which any Limited Common Element is
allocated must, however, agree in order to convey that Limited Common Element or subject it to a
security interest. Any agreement to convey Common Elements or subject them to a security
interest must be evidenced by the execution of an agreement, or ratifications of an agreement, in
the same manner as a deed, by the requisite number of Unit Owners. The agreement must specify
a date after which it will be void unless recorded before that date. The agreement and all
ratifications of the agreement must be recorded in every county in which a portion of the
Community is located and will only be effective upon recordation.
ARTICLE 8 LIMITED COMMON ELEMENTS
Section 8.1 Description and Allocation of Limited Common Elements. The following
portions of the Common Elements are Limited Common Elements:
8.1.1 [Identify any portions of the Common Elements that only some
owners have the right to use. Utility installations outside of the Unit that serve only that
Unit? Mailboxes? Woonerfs? Alleys? Joint Driveways? Confirm who maintains and who
pays. Revise this section, Article 11 and Section 16.6 accordingly].
Section 8.2 Change in Status of Common Elements. Except for the Development
Rights of the Declarant, no Common Element may be reallocated as a Limited Common Element,
and no Common Element or Limited Common Element may be incorporated into an existing Unit
without the approval of Owners of Units holding 67% of the Voting Interest in the Association,
including the Owner of the Unit to which the Limited Common Element will be allocated or
incorporated. Such reallocation or incorporation shall be reflected in an amendment to the
Declaration and the Map.
Section 8.3 Reallocation Between Units. An allocation of a Limited Common Element
may not be altered without the consent of the Owners of the Units from which and to which the
Limited Common Element is allocated. Except in regard to the Development Rights of the
Declarant, a Limited Common Element may be reallocated between Units only with the approval of
the Board and by an amendment to the Declaration executed by the Owners of the Units to which
the Limited Common Element was and will be allocated. The Board shall approve the request of
the Owner or Owners under this Section 8.3 within 30 days, unless the reallocation does not
comply with the CIC Act or the Declaration. The failure of the Board to act upon a request within
such period shall be deemed approval thereof. The amendment shall be recorded in the names of
the parties and of the Community.
Section 8.4 Right to Use Limited Common Elements. Each Owner of a Unit to which a
Limited Common Element is allocated shall have the exclusive right to use the Limited Common
Element in common with the other Owners, if any, to which that Limited Common Element is
allocated. The right to use the Limited Common Element extends to the Owner’s Authorized
Users, but is governed by the provisions of the CIC Act and the Governing Documents.
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ARTICLE 9 EASEMENTS
Section 9.1 Unit Owners. Subject to the Governing Documents and to the
Association’s rights to regulate the use, maintenance, repair, replacement and modification of the
Common Elements, and convey or encumber the Common Elements, each Unit Owner has (i) an
easement in and through the Common Elements for access to its Units and (ii) a right to use the
Common Elements that are not Limited Common Elements for the purposes for which the Common
Elements were intended. The foregoing easement shall terminate upon the termination of this
Community pursuant to Article 25 of this Declaration.
Section 9.2 Driveway Maintenance Easements. Certain Units may have driveways
that abut or are close to the boundary line of the adjacent Unit. Each Unit that has any portion of a
driveway within one foot of the boundary line of an adjacent Unit has an easement over and across
that portion of the adjacent Lot as necessary for the maintaining, repairing or replacing the
driveway on the benefited Lot. The benefited Owner must repair any damage to the adjoining Lot
and must restore the adjoining Lot to a condition similar to that immediately before use of the
adjoining Lot.
Section 9.3 Easement for Encroachments. To the extent not provided by the definition
of “Unit” in the Declaration and in the CIC Act, each Unit and all Common Elements have an
easement over all adjoining Units and Common Elements for the purpose of accommodating any
present or future encroachment overhang or intrusion of (i) eaves, bay windows, gutters,
downspouts, utility meters, vents and other similar portions of the Owner’s Home, or (ii) any
encroachment caused by the construction, reconstruction or repair of the improvements, or the
settlement, shifting, or movement of the improvements or land. Such easements shall exist so long
as the encroachments shall exist or the Unit Owner has the right to cause them to be replaced,
provided, however, that no valid easement shall exist if the encroachment was caused willfully by
the Owner. Such encroachments shall not be construed to affect the marketability of title to any
Unit, nor shall they alter the rights and obligations of the Owners.
Section 9.4 Association Functions Easement. The Association has such easements
throughout the Community as are necessary to perform the duties and obligations of the
Association as are set forth in the Governing Documents.
Section 9.5 Entry Monument Easement. The Association has an easement on, under,
over and across Unit [___] for the purpose of installing, modifying, maintaining, repairing and
replacing, entry monuments or signs and associated landscaping and utilities, together with a non-
exclusive right of ingress and egress thereto.
Section 9.6 Signage Easement. The Association has an easement on, under, over
and across the exterior [___] feet parallel with and abutting all streets and alleys in the Community
in which to install and maintain street signs, directional signs, no parking signs, other types of signs
and address columns or monuments.
Section 9.7 Easement for Entry by Security Patrol. If the Board contracts for security
patrol service, said service, and its employees, shall in have the right to enter onto any of the Lots
and the Common Element in order to carry out their duties under such security patrol agreement;
provided, however, that, said patrol service can enter a Lot only if it is either (i) doing so with
reasonable cause; or (ii) acting with the consent of the Owner or tenant of such Lot.
Section 9.8 Public Utility Easements. The Plat creates various easements within the
Community for the installation, maintenance, repair and replacement of utilities. No structure,
planting, or other material that may damage the utilities or interfere with the use of the easement
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may be placed within these easement areas. The Owners of the Units subject to utility easements
shall not use or alter their Units in any way that would interfere with the proper operation of the
storm drainage system. The Association may adopt Rules regarding use of the portions of the
Units subject to these easements.
Section 9.9 Private Storm Drainage Easements. The Plat creates various private
storm drainage easements and drainage tracts as part of the overall storm water drainage system
in the Community. No structure, planting, or other material that may damage the utilities or
interfere with the use of the easement may be placed within these easement areas The Owners of
the Units subject to private storm drainage easements shall not use or alter their Units in any way
that would interfere with the proper operation of the storm drainage system. Vegetation within the
Tracts and Easements shall be routinely maintained and replaced as needed. The Association
shall have an easement for the maintenance, repair and replacement of any portion of the private
storm drainage system. The Association may adopt Rules regarding use of the portions of the Units
subject to these easements.
Section 9.10 Private Fence Easements. Declarant has constructed certain rockeries,
walls and fences between certain Units and Common Elements. The intention of the Declarant is
that each fence, when constructed, shall be located wholly within one Unit or another and not on
the property line between Units or Common Elements. Due to obstructions or topography,
however, a fence may not be wholly within a Unit or Common Element or immediately adjacent to
the property line. Therefore, Declarant reserves an easement on each side of each boundary line,
for the Association and each Unit Owner for the installation, maintenance, repair and replacement
of walls and fences installed by the Declarant for as long as the wall or fence exists. The owner of
such a fence shall have the right to maintain, repair and replace any portion of such fence and shall
have reasonable access over the adjoining Unit or Common Element for such purposes. Neither
the location of any fence or wall installed by Declarant, nor any conduct of the fence owner in
maintaining the land between a neighboring fence and the property line shall be construed as
modifying the property line. The owner of a fence shall be responsible for keeping the fence in
good condition and repair.
Section 9.11 Declarant. The Declarant has an easement through the Common
Elements as is reasonably necessary for the purpose of developing and discharging the
Declarant’s obligations or exercising Special Declarant Rights, and as is necessary to conduct
inspections and tests from time to time of all or any parts of the Units or Common Elements, and to
determine whether maintenance, repairs or replacements of any such improvements are indicated.
The Declarant shall restore the affected portion of the property to substantially the condition
immediately prior thereto, and shall indemnify the Association and Owners of any affected Units
from any damage resulting therefrom.
Section 9.12 Utility and Municipal Easements Granted by the Declarant. The Declarant
reserves the right to grant and record easements to any utility provider or municipality (i) for the
installation, construction, maintenance, repair and reconstruction of all utilities serving the any
portion of the Community, including, without limitation, such utility services as water, sanitary
sewer, storm sewer, electricity, cable television, internet access and telecommunications; (ii) for
access through the Common Elements to the utility installations; and (iii) for rights of way, slopes,
cuts, fills, environmentally critical areas, native growth protection areas, public facilities or any other
purpose or improvement as may be required for the development, construction or sale of the
Community.
Section 9.13 Easement for Maintenance. Each Owner shall have a right to enter upon
the Common Elements and the Yard of an adjacent Unit, as necessary to perform maintenance,
repair or replacement of the Owner’s Unit and improvements and to read utility meters. The Owner
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shall give the Owner of an adjacent Unit reasonable advance notice (except in an emergency),
shall only enter the adjoining Unit at reasonable times and shall promptly repair any damage
caused thereby and restore the property to the condition it was in prior to the entry and shall
otherwise indemnify the Association and Owner of the adjacent Unit from any damage caused by
such entry.
Section 9.14 [Easements for Withdrawable Property. The Declarant reserves the right
to grant easements over, across, and through the Common Elements of the Community for the
benefit of the Declarant and its successors and assigns as present and future owners of the
Withdrawable Property, (i) for ingress to and egress over the roadways and parking lots and
sidewalks of the Community, (ii) to have access to and to tie into and use any water, sanitary
sewer, storm sewer, electricity, gas, telephone, cable, television, or other utility facilities now or
hereafter established in the Community, and (iii) for the right to use the mail kiosk, the club house
and the trash facilities located on such properties. The easements reserved hereby shall not be
exercised in a manner that will overload or materially impair the use and enjoyment of the
roadways, pathways, and utilities by Unit Owners or the present and future owners of the
Development Rights.] [Use if right to withdraw is reserved and the withdrawn property needs to be
able to use other parts of the community.] [Modify as appropriate.]
ARTICLE 10 USE RESTRICTIONS AND CONDUCT RESTRICTIONS
Section 10.1 Use Restrictions. The following use restrictions shall apply to all Units.
10.1.1 Allowed Use. The Units are restricted to use as single-family
residences and for social, recreational, or other reasonable activities normally incidental to
such use. For purposes of this Declaration such use includes use as a home office, artist
studio or other live-work space, as long as the use (i) does not involve the regular
presence of employees, customers or clients, (ii) is not open to the trade or public, and (iii)
complies with the other use restrictions in this Declaration. The Units may also be used for
the purpose of operating and managing the Community. The determination of whether or
not a use is incidental to residential uses shall be made by the Board and shall be binding
on all Owners. The Board may, by Rule, specify the limits of residential use in general and
also in particular cases. Notwithstanding the foregoing, the Units may also be used for the
purpose of operating and managing the Community, and the Declarant may use any of the
Units owned by Declarant as allowed by the CIC Act or this Declaration.
10.1.1.1 Licensed In-Home Child Care Providers. Notwithstanding
anything to the contrary in the Declaration, Owners who wish to operate an in-
home child day care center, child care center or family day care (collectively “In-
Home Child Care Service”) must do so in strict compliance with RCW 64.90, and
the licensure requirements of RCW 43.216. Prior to commencing operation of any
In-Home Child Care Service, the Owner shall provide a copy of the family home
license (referenced in subsection (i) below) and written proof of insurance
(referenced in subsection (iv) below) to the Association and failure to do so shall
allow the Board to automatically make a determination that the Owner’s operation
of the In-Home Child Care Service is not incidental to residential use as provided
in Section 10.1.1.
Any Owner who desires to operate an In-Home Child Care Service shall strictly
comply with each of the following requirements:
(i) Obtain and maintain during all hours of operation, a current family
home license in accordance with RCW 43.216 from the
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Washington State Department of Children, Youth and Families or
its successor, and provide a copy to the Association prior to
commencing any business operations. Before the expiration of
such license, Owner shall provide the Association with a copy of a
new or renewed license. Owner shall immediately notify the
Association of the expiration, suspension or termination of such
license.
(ii) Indemnify and hold harmless the Association against all
claims, whether brought by judicial or administrative action,
relating to the operation of the In-Home Child Care Service,
excluding claims arising in Common Elements that the Association
is solely responsible for maintaining under the Governing
Documents. If requested by the Association, Owner shall provide
the Association with a signed document agreeing to indemnify and
hold harmless the Association against such claims.
(iii) Obtain and deliver to the Association signed waivers of liability
from each parent, guardian, or caretaker of each child under care
with the In-Home Child Care Service. The obligation to provide
such waivers to the Association is ongoing. An Owner shall not
commence care of any new child in the Unit prior to obtaining and
delivering to the Association a signed waiver of liability for such
child.
(iv) Obtain day care insurance as defined in RCW 48.88.020 or
provide self-insurance pursuant to chapter RCW 48.90, consistent
with the requirements in RCW 43.216.700, and provide written
proof of insurance to the Association prior to commencing any
business operations. The obligation to provide insurance is
ongoing. An Owner must provide the Association with written proof
of insurance prior to the expiration of any insurance previously
provided to the Association.
(v) During all hours of operation, limit the number of children under care
to the maximum number allowed per the capacity restrictions
specified in the Owner’s family home license and in accordance
with Washington Administrative Code 110-300-0355.
(vi) Comply with all other in-home business rules or restrictions
contained in the Rules.
In-Home Child Care Services not operated in accordance with this Section, other
provisions of the Declaration, or the Rules may be considered an intrusive activity
and/or a nuisance, and the Board shall be permitted to exercise all rights under the
law regarding enforcement under the Governing Documents including, but not
limited to, imposing reasonable regulations on In-Home Child Care Services, so
long as those regulations are identical to those applied to all other units within the
Association.
Except as provided under Washington state law and regulations, such reasonable
regulations may involve regulations regarding any activity that unreasonably
interferes with the other residents’ use or enjoyment of their Units or the Common
Elements. This includes, but is not limited to, any failure to operate In-Home Child
Care services in accordance with this Section or engaging in any use or activity
associated with In-Home Child Care Services that generates noise or traffic that
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unreasonably interferes with other residents’ use or enjoyment of their Units or the
Common Elements.
10.1.2 Prohibited Uses. The Units may not be used for Timesharing, as
defined in chapter 64.36 RCW. The Units may not be used for hotel or transient purposes,
which shall be defined as: (i) rental for a period of less than 30 days, (ii) rental under which
occupants are provided customary hotel services such as room service for food and
beverages, maid service, the furnishing of laundry and linen, busboy service, and similar
services, or (iii) the overnight accommodation of business invitees on a temporary or
transient basis (such as a hotel, motel or corporate suites operation). The Board shall
have the authority to enact Rules permitting the occasional rental of Units via Airbnb,
vrbo.com or other vacation rental websites in a manner that will not violate the
requirements of Fannie Mae, Freddie Mac, FHA or VA and to prohibit such use if advisable
to obtain project approval from such agencies.
Section 10.2 Conduct Restrictions. The following conduct restrictions shall apply to all
Owners and Authorized Users, except that they shall not apply to prohibit any conduct of Declarant
authorized by the CIC Act or the Governing Documents.
10.2.1 Roads, Sidewalks, Walkways, Etc. The roads, sidewalks and
walkways used for access shall be used exclusively for normal ingress and egress. No
obstructions shall be placed therein unless permitted by the Board or the Rules.
10.2.2 Parking on Common Elements. Parking is not allowed on any
portion of the sidewalks, planter strips or any other portion of the Common Elements,
except on one-side of Road A and in designated parking spaces. No commercial vehicles,
motor homes, trailers, campers, boats and other recreational vehicles may be parked on
any Common Element except on a temporary basis for loading or unloading. The
Association may direct that any vehicle or other thing improperly parked or kept on any portion
of the Common Elements be removed at the risk and cost of the Owner thereof.
10.2.3 [Guest Parking Spaces. The Guest Parking Spaces are reserved
for the exclusive use of invitees of the Owners, on a first-come, first-serve basis. Owners
and residents may not park in the Guest Parking Spaces. The parking spaces which are
not Guest Parking Spaces are Common Elements open to the use of the Owners and their
invitees on a first-come, first-serve basis.] [If there are guest parking spots that owners
may not use.]
10.2.4 Parking in Units. No vehicle may be parked in any Unit except in
driveways and garages. No vehicle parked in any driveway may extend into the streets or
sidewalks of the Community or otherwise inhibit vehicular or pedestrian traffic or access to
any Unit. Owners may not use garages in their Units for storage or other purposes in a way
that interferes with the daily use of the garage for parking of vehicles.
10.2.5 Regulated Vehicles. No Owner may store any trailers, boats,
motor homes, recreational vehicles, or trucks over two tons or any disabled or inoperable
motor vehicle on its Unit unless any such vehicle is completely enclosed and hidden from
view within a garage or within such other enclosure as may be allowed by the Board or the
Rules. Motor homes, trailers, campers, boats and other recreational vehicles may not be
kept in driveways or parking spaces except on a temporary basis for loading or unloading,
subject to such rules and regulations concerning parking as may be adopted by the Board.
No in-operative vehicle of any type may remain in any driveway or private road for more
than 72 hours. Violations of this Section 10.2.5 shall subject such vehicles to impound, at
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the expense and risk of the owner thereof. The Association may adopt rules and
regulations to implement these restrictions and provide guidance to Owners
10.2.6 Further Regulation. The Board may adopt Rules further regulating
conduct on roads, sidewalks, driveways, parking spaces and other Common Elements,
including the parking and storage of recreational vehicles, campers, boats and the like, and
safe operation of vehicles. The Board may direct that any unsightly or inoperative vehicle
or any thing improperly parked or kept in a parking space, garage or elsewhere in the
Community be removed, and if it is not removed the Board may cause it to be removed at
the risk and cost of the Owner thereof.
10.2.7 Trash and Garbage. Each Owner must store trash and garbage
inside the Home and set it out for collection in such locations and receptacles as are
authorized by the Board only on designated trash collection days, or as otherwise allowed
by the Rules. The Board shall determine what trash and garbage removal service, if any, to
provide for the Community. Each Owner is responsible for removing from the Community
all trash and garbage generated by that Owner that is not required to be picked up by such
service. The Board may adopt such Rules pertaining to such matters as in the judgment of
the Board are necessary for the safe, sanitary and efficient operation of the Community.
10.2.8 Signs. No sign of any kind may be displayed to the public view on
or from any Unit or Common Elements without the prior consent of the Board or pursuant
to the Rules. The Board may erect on the Common Elements a master directory of Units
and residents, including Units that are for sale or lease, and may regulate the size,
appearance and location of signs advertising Units for sale or lease.
10.2.9 Pets. Domesticated animals, birds or small reptiles (herein
referred to as “pets”) may be kept in the Units, subject to Rules adopted by the Board.
Pets are not allowed on the Common Elements unless they are on a leash and are being
walked to or from the Unit to a public street. Each Owner must pick up any waste matter
left by a pet. No dog houses, kennels or dog runs are permitted outside of any Home
without the prior approval of the Board. When outside a Home or fenced Yard each pet
must be on a leash or under the physical control (voice command is hereby declared not to
be adequate), of a person capable of physically controlling the pet. No Owner may keep a
pet that unreasonably interferes with the rights of other Owners to enter a Yard under
Section 9.4 of this Declaration. Pets shall not be allowed to leave waste on any Common
Element. Each Owner must pick up any waste matter left by a pet. The Board may at any
time require the removal of any pet which it finds is disturbing other Owners unreasonably,
and may exercise this authority for specific pets even though other pets are permitted to
remain. The Board may adopt additional Rules governing the keeping of pets and the size,
number, nature, conduct and impact of pets or other animals.
10.2.10 Intrusive Activity. No Owner may conduct, permit or allow any
activity or the keeping of anything in the Community that may unreasonably interfere with
the other residents’ use or enjoyment of their Units or the Common Elements; threaten the
comfort, safety or security of any Owner; or be or become a nuisance to other Owners. No
use or activity that generates noise, vibration, odors or traffic that would generally be
considered unacceptable to households in a single family neighborhood is allowed. The
Board may adopt such Rules pertaining to such matters as in the judgment of the Board
are necessary.
10.2.11 Hazardous Substances. No Owner may permit any Hazardous
Substance to be generated, processed, stored, transported, handled, or disposed of on,
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under, in, or through the Owner’s Unit or any portion of the Common Elements. Each
Owner must indemnify, defend, and hold harmless the other Owners and the Association
from all fines, suits, procedures, claims, and actions of any kind arising out of or in any way
connected with any spills or discharges of Hazardous Substances or wastes arising from
the operation or use of the Unit or the property by the Owner, Tenants, or invitees of the
Unit. As used herein, the term “Hazardous Substance” means any hazardous, toxic, or
dangerous substance, waste, or material which is or becomes regulated under any federal,
state, or local statute, ordinance, rule, regulation, or other law now or hereafter in effect
pertaining to environmental protection, contamination, or cleanup, including without
limitation any substance, waste, or material which now or hereafter is designated as a
“Hazardous Substance” under the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. §9601, et seq.); or under any local or state rule
or regulation.
10.2.12 Conveyance by Owners; Notice Required. The right of an
Owner to transfer the Unit is not subject to any right of approval, disapproval, first refusal,
or similar restriction by the Association or the Board, or anyone acting on their behalf. An
Owner intending to convey a Unit must, however, deliver a written notice to the Board at
least two weeks before closing specifying (a) the Unit being sold; (b) the name and
address of the purchaser, the closing agent, and the title insurance company insuring the
purchaser’s interest; and (c) the estimated closing date. The Board has the right to notify
the purchaser, the title insurance company, and the closing agent of the amount of unpaid
Assessments and charges outstanding against the Unit, whether or not such information is
requested. Promptly upon the Conveyance of a Unit, the new Unit Owner must notify the
Association of (i) the date of the Conveyance; (ii) the Unit Owner’s name and address; and
(iii) the name and notice address of every first Mortgagee of the Unit. The Association
must notify each insurance company that has issued an insurance policy under Article 20
of the name and address of the new Owner and request that the new Owner be made an
additional insured under such policy.
ARTICLE 11 MAINTENANCE, CONSTRUCTION AND ALTERATIONS
Section 11.1 Owner’s Maintenance and Repair Responsibilities. Except for
maintenance and repairs to be performed by the Association under this Article 11, each Owner
must, at the Owner’s sole expense, maintain, repair and replace (i) its Home and Yard, (ii) all
Structures, other improvements and landscaping on its Unit, (iii) to the extent not included in the
foregoing, any fences or walls on its Unit and (iv) that portion of the utility installations (including
without limitation power, water, gas, telephone and data lines, sanitary sewers) and storm drainage
installations that are located outside of the Unit but that serve only that Unit. Each Owner must
keep all such items in good repair and in neat, clean and sanitary condition, in compliance with
applicable Laws, the Governing Documents and the Community-wide Standard. [Revise as
needed if you plan to have association maintain yards, landscaping, driveways, sidewalks, or other
items in the Unit. If you revise this section, revise 16.6 (cost allocation) if necessary.]
Section 11.2 Association’s Maintenance and Repair Responsibilities. The Association
is responsible for the maintenance, repair, and replacement of the Common Elements, including,
without limitation, (i) the Street Landscaping, (ii) the Street Lighting, (iii) the Entry Monuments, (iv)
all Structures, other improvements and landscaping on the Common Elements, (v) all utility
installations and storm water facilities serving the Community and not the responsibility of an
Owner or a governmental entity.[, and (vi) all Limited Common Elements unless maintenance of a
Limited Common Element is delegated to the Owners benefited by such Limited Common
Element.] [If there are LCE’s and the Association will maintain them, identify them here.] The
Association must keep such items in good repair and in a neat, clean and sanitary condition, in
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compliance with applicable Laws, the Governing Documents and the Community-wide Standard.
[The Declarant, not the Association, however, is responsible for the actual costs of the
maintenance, repair and replacement and insurance of the buildings and improvements on the
Additional Property while they are subject to Development Rights to add Units, Common Elements
or Limited Common Elements. The Association shall become responsible for the maintenance,
repair and replacement of those items upon the exercise or expiration of such Development Rights.
The Declarant may pay such costs directly or through the Association. The Declarant is also
entitled to all income from the Additional Property until Units thereon are created and sold.]
[Consider whether the association will maintain or use any features of the Additional Property, such
as landscaping or other LCE’s. If so, revise this section and section 16.6 as appropriate]
Section 11.3 Summary of Maintenance Responsibilities. The maintenance
responsibilities of the Owners and Association are summarized in Schedule [D] attached hereto. In
the event of any conflict between the text of this Article 11 and the schedule, the text shall control.
Section 11.4 Transfer of Responsibility. The Board may adopt Rules transferring
responsibility to maintain certain Limited Common Elements to the Owners if it determines that the
Owners will regularly, properly and consistently maintain the Limited Common Elements, and that
there is little risk of damage to the Community or cost to the Association from such transfer of
maintenance responsibility. The Association may modify or revoke any such Rules if it determines
that modification or revocation is in the best interest of the Community.
Section 11.5 Construction and Alterations; Architectural Control. Although the Owners
have the responsibility for maintenance, repair and replacement of their Units, Homes and Yards
as set forth in this Article 11, the Board shall have the right to regulate any new Structures and any
alterations to existing Structures to ensure that they (i) comply with the Governing Documents and
(ii) are harmonious with the other Homes and improvements in the Community. Accordingly,
except as set forth in Governing Documents, no Owner may construct or install a new Structure or
alter any portion of an existing Structure, without the prior written approval of the Board.
11.5.1 Scope of Regulation and Authority. For the avoidance of doubt,
the authority of the Board under this Section 11.5 includes regulation of: (i) the location,
size, design and appearance of Structures, (ii) the materials and colors of exterior features
and surfaces of Structures, including siding, roofing, windows and doors, (iii) the placement
and appearance of ancillary items such as antennae, security devices, and hardscaping,
and (iv) other factors relating to compliance with the Governing Documents or harmony
with the other Homes and improvements in the Community. The Board shall not have
authority to (i) regulate the maintenance, repair or reconstruction of a Structure that does
not change its location, size or appearance, (ii) prohibit the installation of basketball hoops
to be used in a driveway or (ii) regulate any landscaping (other than hardscaping) on a
Unit. The Board shall have the authority to adopt Rules to implement and clarify the scope,
standards and processes under this Section 11.5 and to appoint, pursuant to the Bylaws,
an architectural control committee to exercise some or all of its authority hereunder or to
advise it as to matters hereunder.
11.5.2 Particular Standards. The following standards shall apply to all
Structures and alterations of Structures in the Community.
11.5.2.1 The maximum height of any Home shall be [35] feet.
11.5.2.2 The maximum height of any fence shall be [6] feet. No
fence may be closer than two feet to a Common Element road, drive or sidewalk and an
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Owner must install a landscape buffer between the fence and any Common Element road,
driveway or sidewalk.
11.5.2.3 No radio, television or satellite antenna, dish or
receiving device other than a “protected antenna” (as defined in 47 C.F.R. §1.4000, as it
may be amended) may be installed in a Unit.
11.5.3 Approval Process. Subject to any Rules adopted by the Board, an
Owner desiring to construct or install any new Structures or the alter any existing
Structures on its Unit must apply to the Board for approval. The Board may require the
submission of plans and specifications and other data relating to the proposal. The Board
may require that plans and specifications be prepared by a competent professional and
may establish requirements for the format and content of materials submitted to it. The
Board may require evidence that the Owner has obtained all permits necessary for the
proposed work. Construction, alteration or repair shall not be started until written approval
thereof is given by the Board. The Board shall act promptly to process applications and
render a decision. The failure of the Board to approve a proposal within 30 days after
receiving a complete application, shall be deemed to constitute the Board’s approval of the
proposal.
11.5.4 Declarant Exempt. The Declarant (including any successor in
interest to Declarant’s status as Declarant) shall not be subject to the restrictions of this
Section 11.5. Declarant reserves the right to exempt any Dealer to whom Declarant
conveys Units from the restrictions of this Section 11.5.
Section 11.6 Construction Work – Common Elements. Except as otherwise allowed by
the Conversion Documents, or the Board, no owner may alter any portion of the Common
Elements.
Section 11.7 Landscaping. The Board may require, at the Owner’s expense, the
trimming, topping or, removal of any tree, hedge or shrub on an Owner’s Unit that it determines is
interfering with travel on roads, sidewalks or trails in the Community, or presents a safety hazard
related to the Common Elements.
Section 11.8 Declarant Inspections. Until the expiration of all warranties given by the
Declarant and the time period for filing any claims against the Declarant, the Declarant shall have
the right, but not the obligation, to conduct inspections and tests from time to time of all or any parts
of the Common Elements, including the Limited Common Elements, in order to ascertain the
physical condition of the improvements in the Community and to determine whether maintenance,
repairs or replacements of any such improvements are indicated. The Declarant shall pay all costs
of such inspections and tests and restore the affected portion of the property to its condition
immediately prior thereto, and shall indemnify the Association and Owners of any affected Units
from any damage resulting therefrom. The Declarant shall have such rights of entry on, over,
under, across and through the property as may be reasonably necessary to exercise the rights
described in this Section 11.8.
ARTICLE 12 SPECIAL DECLARANT RIGHTS
Section 12.1 Declarant’s Right to Complete Improvements. The Declarant and its
agents, employees and contractors have the right to complete any improvements and otherwise
perform work that is authorized by the Declaration, indicated on the Map, authorized by building
permits, provided for under any purchase and sale agreement, necessary to satisfy any express or
implied warranty, or otherwise authorized or required by law. The Declarant also has the right to
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make any modifications, improvements or changes to the Common Elements as the Declarant
determines are appropriate to increase the appeal of the Community to potential buyers, to correct
problems in the design or construction of the Community, or for the benefit of one or more Units. In
conjunction with the foregoing rights, until construction of the Community is completed, the
Declarant shall have the right to use any unassigned parking spaces and any portion of any garage
or parking lot for staging, storage, parking and other construction-related purposes. The foregoing
rights shall terminate [_____] years from the date this Declaration is recorded.
Section 12.2 Declarant’s Right to Maintain Sales Facilities. The Declarant, its agents
and its employees have the right to install and maintain in any Units owned by the Declarant and in
any of the Common Elements any facilities that the Declarant deems necessary or convenient to
the construction, marketing, sale or rental of Units. These facilities may include but are not limited
to business offices, management offices, sales offices, construction offices, storage areas, signs,
model units and parking areas for Declarant and its employees, agents and contractors, and
prospective Tenants or purchasers and their agents. The Declarant may install and maintain as
many of such facilities as it deems necessary or convenient in such locations as it deems
necessary or convenient. The Declarant may relocate such facilities as it determines is appropriate
in its sole discretion. The right to install and maintain such facilities will expire when the Declarant
ceases to be a Unit Owner and has no further Development Rights in the Community (including no
more right to add property to, or create additional Units in, the Community). The Declarant will
have a reasonable time, but in no event less than 60 days after such expiration, to remove any
such facilities from the Community.
Section 12.3 Declarant’s Right to Use Easements. The Declarant and its agents,
employees and contractors have an easement over, across, under and through the Common
Elements of the Community as reasonably necessary for the purpose of completing construction,
exhibiting and preparing Units for sale, making repairs required pursuant to any contract of sale,
discharging the Declarant’s obligations, or exercising Special Declarant Rights within the
Community or within any real estate that may be added to the Community. The foregoing rights
shall terminate [_____] years from the date this Declaration is recorded. [The Declarant further
reserves mutual nonexclusive easements over, across, and through the Common Elements of the
Community for the benefit of the Declarant and its successors and assigns as present and future
owners of buildings on the Additional Property, and for the benefit of the Association and all
Owners of Units in the Community as follows: (i) for ingress to and egress over the roadways and
pathways of the Community and the Additional Property, (ii) to have access to and to tie into and
utilize any water, sanitary sewer, storm sewer, electricity, gas, telephone, cable, television, or other
utility lines now or hereafter established in the Community and on the Additional Property, and (iii)
for the right to use the mail kiosk and trash facilities located on such properties. The easements
reserved hereby shall not be exercised in a manner that will overload or materially impair the use
and enjoyment of the roadways, pathways, and utilities by Unit Owners or the present and future
owners of the buildings on the Additional Property.] [Use this if you need to integrate the
communities even after separation. Modify as appropriate.]
Section 12.4 Declarant’s Right to Subject the Community to a Master Association. The
Declarant has the right to make the Community subject to a master association with authority over
[___]. To exercise this right, the Declarant may amend this Declaration to delegate powers to the
master association and address other matters relevant to the master association. The foregoing
rights shall terminate [_____] years from the date this Declaration is recorded. The foregoing rights
shall terminate [_____] years from the date this Declaration is recorded. [Delete if not anticipated. If
appropriate, describe mater association, communities over which it will have authority and scope of
authority. Refer to Act for requirements relating to delegation of authority.]
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Section 12.5 Declarant’s Right to Merge the Community. The Declarant has the right to
merge the Community with [___]. To exercise this right, the Declarant may execute and record or
file one or more merger agreements consolidating the communities and such other documents as
are advisable to merge the associations. Such documents shall comply with the requirements of
Section 223 of the CIC Act. The foregoing rights shall terminate [_____] years from the date this
Declaration is recorded. [Delete if not anticipated. If appropriate, describe communities to be
merged and plan of merger. Refer to Act for requirements relating to delegation of authority.]
Section 12.6 Declarant’s Right to Appoint, Remove and Veto. Until the Control
Termination Date, the Declarant shall have the right to appoint and remove all officers and
members of the Board. Notwithstanding the foregoing, not later than 60 days after Conveyance of
25% of the Units that may be created to Owners other than the Declarant, at least one member and
not less than 25% of the members of the Board must be elected by Owners other than the
Declarant; and not later than 60 days after Conveyance of 50% of the Units that may be created to
Owners other than the Declarant, not less than one-third of the members of the Board must be
elected by Owners other than the Declarant. The Declarant may at any time voluntarily terminate
its right to appoint and remove officers and members of the Board by recording an amendment to
the Declaration surrendering such right. If the Declarant does so, it may, for the duration of the
period ending on the Control Termination Date, retain the right to veto or approve proposed actions
of the Association or Board before they become effective. To exercise this right, the Declarant
must execute and record an instrument that specifies the proposed actions that may be vetoed or
approved by the Declarant. The foregoing rights shall terminate on the Control Termination Date.
Section 12.7 Declarant’s Right to Control Architectural Committees. Until the Declarant
no longer owns any Unit in the Community and no longer has a Development Right to create any
Units in the Community or real estate added to the Community, the Declarant has the right to
appoint and remove all officers and members of any construction, design review or aesthetic
standards committee of the Association. In addition, during the period set forth in this Section 12.7,
the Declarant shall have the right to control any construction, design review or aesthetic standards
review or approval process. The Declarant may voluntarily terminate its right to appoint and
remove officers and members of any such committee or control any process by recording an
amendment to the Declaration surrendering the right to appoint and remove officers and members
of such committee. If the Declarant does so, it may, for the duration of the period set forth in this
Section 12.7, exercise the right to approve certain actions of any such committee before they
become effective. The foregoing rights will terminate on the later of the date the Declarant no
longer owns any Unit in the Community, or the date the Declarant no longer has a Development
Right to create any Units in the Community or in real estate added to the Community.
Section 12.8 Declarant’s Right to Attend Association Meetings. The Declarant has the
right, whether or not it owns any Units in the Community, to attend all meetings of the Association,
except during any executive session when Owners are excluded. The Association shall send the
Declarant notices of all meetings and copies of all minutes of all meetings at the same time that
such items are sent to Unit Owners. Notices and minutes shall be delivered to the Declarant in a
Tangible Medium at the address specified in Section 26.1 or in such other manner as the Declarant
shall specify in a Record from time to time. The foregoing rights shall terminate [_____] years from
the date this Declaration is recorded.
Section 12.9 Declarant’s Right to Association Records. The Declarant has the right,
whether or not it owns any Units in the Community, to have access to the Books and Records of
the Association to the same extent as a Unit Owner, including, without limitation, pursuant to
Section 13.7 and Section 13.8 of this Declaration. The foregoing rights shall terminate [_____]
years from the date this Declaration is recorded.
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Section 12.10 Declarant’s Right to Add Real Estate to the Community. The Declarant
has the right to add some or all of the Additional Property to the Community. The foregoing rights
shall terminate [_____] years from the date this Declaration is recorded. [Only use if additional
land will be added.] [Any future improvements on the Additional Property will be generally of the
same quality as the existing improvements. All future improvements on the Additional Property will
be substantially complete before the Additional Property is added to the Community. Any liens that
arise in connection with the Declarant’s ownership of and construction of improvements on the
Additional Property shall not adversely affect the rights of other Unit Owners or the priority of
Mortgages on the Units. All taxes and costs relating to improvements on the Additional Property
before it has been added to the Community shall be paid by or allocated to the Declarant. [FHA
Requirement]
Section 12.11 Declarant’s Right to Add Improvements to the Community. The Declarant
has the right to add the following improvements to the Community: __________________ on the
following real estate: ______________. The foregoing rights shall terminate [_____] years from the
date this Declaration is recorded. [Use for phasing or additional construction. Describe
improvements and the land, area or building where they may be built. Use Additional Property if the
improvements will be on other land, as appropriate.]
Section 12.12 Declarant’s Right to Create Units, Limited Common Elements and
Common Elements. The Declarant has the right to create up to ________ additional Units on the
following real estate: ______________.The Declarant will be the Owner of any Unit so created.
The Declarant is not required to create any additional Units. The Declarant has the right to create
up to ________ on the following real estate: ______________ and to allocate them as Limited
Common Elements to ______ Units. The Declarant is not, however, required to create any such
Limited Common Elements or to allocate them to any particular Unit. The Declarant has the right
to create up to ________ on the following real estate: ______________ as Common Elements.
The Declarant is not, however, required to create any such Common Elements. The foregoing
rights shall terminate [_____] years from the date this Declaration is recorded. [Use as appropriate.
Describe number of units, specify LCEs and units to which they will be allocated, describe CEs.
Describe the land, area or building where they can be created. If appropriate, use Additional
Property. This section must be consistent with Section 5.1]
Section 12.13 Declarant’s Right to Subdivide or Combine Units or Convert Units to
Common Elements. The Declarant has the right to subdivide _________ any Unit that has not
been conveyed to an Owner other than a Declarant, or to convert _________ any Unit that has not
been conveyed to an Owner other than a Declarant into Common Elements. The Declarant will be
the Owner of any new Unit so created. The foregoing rights shall terminate [_____] years from the
date this Declaration is recorded. [Use if units might be subdivided or combined. Not likely to apply
to lots themselves. If used, describe which units, how many can be created, and how Allocated
Interests will be reallocated.]
Section 12.14 Declarant’s Right to Withdraw Property. The Declarant has the right to
withdraw any portion of the Withdrawable Property from the Community subject to the following
limitations: __________________________________. The foregoing rights shall terminate
[_____] years from the date this Declaration is recorded. [Describe which land (use a legal
description?) and any conditions on the withdrawal. Refer to Act for relationship to mortgages and
liens.]
Section 12.15 Declarant’s Right to Reallocate Limited Common Elements Allocated to
Unsold Units. The Declarant has the right to reallocate any Limited Common Element allocated to
any Unit that has not been conveyed to an Owner other than the Declarant. The foregoing rights
shall terminate [_____] years from the date this Declaration is recorded. [This may not be
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appropriate if there are no LCEs or there is no reason to think you need to reallocate them. If
appropriate, specify LCEs and units, or keep it general.]
Section 12.16 Exercise of Development Rights.
12.16.1 General. To exercise any Development Right reserved under this
Article 12, the Declarant shall prepare, execute and record an amendment to the Declaration.
In conjunction therewith, the Declarant shall record an amendment or supplement to the Map
if the previous Map lacks the required detail, certification or other matters required under the
CIC Act.
12.16.2 Creation of New Units or Limited Common Elements. An amendment
creating Units will (i) show any new Unit(s) created, (ii) reallocate the Allocated Interests
among all the Units in the Community, (iii) describe any Limited Common Elements thereby
created and designate the Units to which they are allocated (to the extent required by RCW
64.34.228), and (iv) reallocate the Allocated Interests of all Units in the Community using the
formulae set forth in Article 6 of the Declaration. [The amendment will reallocate the Allocated
Interests of all Units in the Community using the formulae set forth in Article 6 of the
Declaration] [If Units are added, the Allocated Interests for single-family residential Units will
be reallocated using the formulae set forth in Article 6. If one or more Units containing
multiple single-family residential dwellings are added, the Allocated Interests of the existing
Units will be reallocated as follows: the Common Ownership Interest, Common Expense
Liability and Voting Interest will be allocated to each such Unit based on the ratio of single
family dwellings in the Unit to the number of single family dwellings in the entire Community.
(modify as needed)] [If Units are withdrawn, the Allocated Interests for the remaining single-
family residential Units will be determined using the formulae set forth in Article 6 (or Section
12.16.2 for Units containing more than one single-family residential dwelling)].
12.16.3 Subdivision of Units or Conversion of Common Elements. Whenever
the Declarant exercises the Development Right to subdivide or convert a Unit into additional
Units, Common Elements, or both, if the Declarant converts the Unit entirely to Common
Elements, the amendment to the Declaration must reallocate all the Allocated Interests of that
Unit among the other Units as if that Unit had been taken by condemnation under Section 22.
If the Declarant subdivides the Unit into two or more Units, whether or not any part of the Unit
is converted into Common Elements, the amendment to the Declaration must reallocate all
the Allocated Interests of the Unit among the Units created by the subdivision in any
reasonable and equitable manner prescribed by the Declarant.
Section 12.17 Use of Property Subject to Development Rights. The Owners shall have
the right to use the driveways, sidewalks, garage, parking spaces, and open spaces of the
Community, subject to the Declarant’s Special Declarant Rights.
Section 12.18 Responsibility for Expenses. The Declarant shall be responsible for all
expenses incurred in connection with real estate subject to Development Rights. Notwithstanding
the foregoing, all expenses associated with the operation, maintenance, repair and replacement of
any Common Element that the Owners have a right to use (including, without limitation, amenities,
parking spaces, drives, roads, sidewalks, trails and open spaces) must be paid by the Association
as a Common Expense. The Declarant’s responsibility shall cease upon the exercise or expiration
of such Development Rights, whichever is earlier. The Declarant may pay such costs directly or
through the Association. The Declarant is also entitled to all income from such portions of the
property and any improvements thereon until the exercise or expiration of such Development
Rights.
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Section 12.19 Different Parcels; Different Times. Any Development Right may be
exercised with respect to different parcels of real estate at different times. No assurances are
made as to final boundaries of such parcels or as to the order in which those parcels may be
subject to the exercise of each Development Right. Even though a Development Right is exercised
in any portion of the real estate subject to that right, that right need not be exercised in all or in any
other portion of the remainder of that real estate. [Modify as needed]
Section 12.20 Liens. Any liens that arise in connection with the Declarant’s ownership of
or construction of additional improvements shall attach only to the Declarant’s interest in any
improvements owned by the Declarant or against the Declarant’s Special Declarant Rights and
shall not adversely affect the rights of other Unit Owners or the priority of Mortgages on the Units.
All taxes and costs relating to improvements before the Units therein have been created shall be
paid by or allocated to the Declarant.
Section 12.21 Transfer of Special Declarant Rights. The rights described in this Article
12 shall not be transferred except by instrument evidencing the transfer executed by the Declarant
or the Declarant’s successor and the transferee and recorded in the county in which the
Community is located. The rights and liabilities of the parties involved in such a transfer and of all
Persons who succeed to any Special Declarant Right are set out in the CIC Act.
Section 12.22 Termination of Special Declarant and Development Rights. Each Special
Declarant Right and Development Right shall terminate as set forth above. The Declarant may,
however, voluntarily terminate any or all aspects of its Special Declarant Rights or Development
Rights at any time by recording an amendment to the Declaration specifying which rights are
thereby terminated.
Section 12.23 Liability for Damage. The Declarant is subject to liability for the prompt
repair and restoration, to a condition compatible with the remainder of the Community, of any
portion of the Community damaged by the exercise of rights reserved by the Declarant pursuant to
or created by this Declaration or the CIC Act.
ARTICLE 13 OWNERS ASSOCIATION
Section 13.1 Form of Association. The Owners of Units shall constitute an owners
association to be known as the Towns on 12th Owners Association (the “Association”). The
Association shall be organized as a non-profit corporation, no later than the date the first Unit in the
Community is conveyed. Except where expressly reserved to the Owners under the CIC Act or the
Governing Documents, the affairs of the Association shall be managed by a Board. The rights and
duties of the Board and the Association shall be governed by the provisions of the CIC Act, the
Washington Nonprofit Corporations Act, chapter 24.03A RCW, the Declaration and the Bylaws.
Section 13.2 Bylaws. The initial directors appointed in the Articles will adopt initial
Bylaws to supplement the Declaration and to provide for the administration of the Association and
the property and for other purposes not inconsistent with the CIC Act or the Governing Documents.
The Bylaws may be amended pursuant to the procedures set forth in Article 24.
Section 13.3 Qualifications for Membership. Each Owner of a Unit (including the
Declarant as to Units it owns) shall be a member of the Association and shall be entitled to one
membership for each Unit owned. Only Owners may be members of the Association. Ownership
of a Unit shall be the sole qualification for membership in the Association. Corporations,
partnerships, associations, and other legal entities, trustees under an express trust, and other
fiduciaries, as well as natural persons, may be members of the Association.
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Section 13.4 Transfer of Membership. The membership of an Owner in the Association
is appurtenant to the Unit giving rise to the membership. The membership may not be transferred
in any way except upon the transfer of title to the Unit and then only to the transferee of title to the
Unit, provided that if a Unit has been sold on contract, the contract purchaser shall, except as
otherwise set forth in the Governing Documents, exercise all rights of the Owner under the
Governing Documents, and shall be the voting representative unless otherwise specified. Any
attempt to make a prohibited transfer shall be void. Any transfer of title to a Unit will automatically
transfer the membership in the Association to the new Owner.
Section 13.5 Voting.
13.5.1 Number and Classes of Votes. The allocation of Voting
Interests in the Association is set forth in Section 6.4. Other matters concerning voting are
set forth in the Bylaws.
13.5.2 [Arbitration. If the votes are tied on any matter voted upon by
the members of the Association, the matter shall be submitted to arbitration and mediation
as provided in Article 28 of this Declaration.] [Use if there is an even number of directors.]
Section 13.6 Powers of Association.
13.6.1 General Powers. Except to the extent limited by the Governing
Documents, the Association shall have (i) all powers authorized under the CIC Act and the
Washington Nonprofit Corporation Act; (ii) all powers necessary for the operation of the
Community or governance of the Association; (iii) any other powers authorized by this
Declaration; and (iv) all powers that may be exercised by any corporation of the same type
as the Association.
13.6.2 Capital Improvements. The Association may cause additional
improvements to be constructed within the Common Elements and may acquire, hold,
encumber, convey, and dispose of, in the Association’s name, any additional tangible or
intangible personal property. If the estimated cost of any such improvements or personal
property to the Community exceeds [$25,000], the approval of the Owners holding a
majority of the votes in the Association shall be required; and if such estimated cost
exceeds [$50,000], the approval of the Owners holding 67% of the votes in the Association
shall be required. This Section 13.6.2 does not apply to maintenance, repair or
replacement of existing Common Element improvements. [May be changed]
13.6.3 Rules. The Board shall have the power to adopt Rules for any
purpose authorized under the CIC Act, including the power to adopt Rules to establish and
enforce construction and design criteria and aesthetic standards pertaining to the
improvements and alterations to the Community. In adopting, amending or rescinding
Rules, the Board (i) shall give consideration to the matters brought to its attention after
notice to the Unit Owners; and (ii) shall give consideration to the interests of individual
Owners and Authorized Users as well as the interests of the Association. All Rules must
be reasonable. All Rules must treat similarly situated Units, Owners and Authorized Users
similarly. No Rules shall be inconsistent with or violate the provisions of the Governing
Documents. Before, adopting, amending or repealing any Rule, the Association must give
all Owners notice of: (i) its intention to adopt, amend, or repeal a Rule and provide the text
of the Rule or the proposed change; and (ii) a date on which the Board will act on the
proposed Rule or amendment after considering comments from Owners. Following
adoption, amendment, or repeal of a Rule, the Association must give notice to the Owners
of its action and provide a copy of any new or revised Rule.
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Section 13.7 Accounts, Records, Financial Statements, Audits and Funds. The
Association must keep all of its funds in accounts in the name of the Association with a Qualified
Financial Institution. The Association shall keep financial records in accordance with accrual-
based accounting principles. The Association must establish and maintain its accounts and records
in a manner that will enable it to credit assessments for common expenses and specially allocated
expenses, including allocations to reserves, and other income to the association, and to charge
expenditures, to the account of the appropriate units in accordance with the provisions of this
Declaration. To assure that the unit owners are correctly assessed for the actual expenses of the
association, the accounts of the association must be reconciled at least annually unless the board
determines that a reconciliation would not result in a material savings to any unit owner. [Any
surplus funds of the association remaining after the payment of or provision for common expenses
and any prepayment of reserves must be paid annually to the unit owners in proportion to their
common expense liabilities or credited to them to reduce their future common expense
assessments.] [May be changed] At least annually, the Association shall prepare, or cause to be
prepared, a financial statement of the Association in accordance with accrual-based accounting
principles. The annual financial statement shall be audited at least annually by a certified public
accountant who is not a member of the Board or an Owner unless the annual Assessments for the
year were less than $50,000.00 and Owners holding a majority of the votes, excluding votes held
by the Declarant, waive the audit for that year. The financial statement shall be completed in time
for the Association’s annual meeting and in any event within 120 days following the end of the
fiscal year. Any Mortgagee of a first Mortgage, and Declarant pursuant to Article 12, will be entitled
to receive the audited financial statement upon written request. The Board, or Persons having 35%
of the voting power of the Association, may require that an audit of the Association and
management books be presented at any special meeting. An Owner or Mortgagee, or Declarant
pursuant to Article 12, at such Person’s expense, may at any reasonable time conduct an audit of
the books of the Board and Association. Upon written request of Freddie Mac, Fannie Mae, HUD
or VA, if it is a Mortgagee or prospective Mortgagee, the Association shall provide within a
reasonable time an audited financial statement of the Association for the preceding fiscal year.
Section 13.8 Inspection of Documents, Books and Records. The Association shall
make available for inspection upon request, during normal business hours or under other
reasonable circumstances to Owners, Mortgagees, prospective purchasers and their prospective
Mortgagees, and Declarant pursuant to Article 12, and the agents or attorneys of any of them,
current copies of the Books and Records of the Association. The Association may require the
requesting party to pay a reasonable charge to cover the cost of making the copies.
ARTICLE 14 TRANSITION TO OWNER CONTROL
Section 14.1 Election of New Board. No later than the Transition Date, the Board shall
call a Transition Meeting to elect a new Board. The Persons elected to the Board at the Transition
Meeting shall take office upon such election. Nothing shall prevent previously elected or appointed
directors from being elected at such election.
Section 14.2 Transfer of Association Property. No later than 30 days after the
Transition Meeting, the Declarant shall deliver to the Board elected at the Transition Meeting, or the
management agent of the Association, all property of the Owners and of the Association held or
controlled by the Declarant pursuant to the CIC Act.
Section 14.3 Audit of Association Records. No later than 60 days after the Transition
Meeting, the Board shall engage an independent certified public accountant to audit the records of
the Association in accordance with generally accepted auditing standards, unless the Owners,
other than the Declarant, by majority vote, elect to waive the audit. The cost of the audit shall be a
Common Expense.
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Section 14.4 Termination of Contracts and Leases Made by the Declarant. Within two
years after the Transition Meeting, the Association may terminate, without penalty, upon not less
than 90 days’ notice to the other party, any of the following if it was entered into before the
Transition Meeting: (a) any management, maintenance, operations or employment contract, or
lease of recreational or parking areas or facilities or (b) any other contract or lease between the
Association and the Declarant or an affiliate of the Declarant, as defined in Section 102(1) of the
CIC Act. The Association may terminate, without penalty, at any time after the board elected at the
Transition Meeting takes office, upon not less than 90 days’ notice to the other party any contract
or lease that is not bona fide or was unconscionable to the Unit Owners at the time entered into.
This Section 14.4 does not apply to any lease, the termination of which would terminate the
Community or reduce its size, unless the real estate subject to that lease was included in the
Community for the purpose of avoiding the right of the Association to terminate a lease under this
Section 14.4.
ARTICLE 15 THE BOARD OF DIRECTORS
Section 15.1 Qualifications of Directors and Officers. The qualifications, number,
method of election, removal and terms of service of the directors and officers shall be as specified
in the Bylaws
Section 15.2 Powers of the Board. Except where expressly reserved to the Owners
under the CIC Act or the Governing Documents, the affairs of the Association shall be managed by
the Board. The Board may exercise all powers of the Association, except as otherwise provided in
the CIC Act, or the Governing Documents. The Board shall arrange for, and shall have the
exclusive right to contract for, goods and services necessary for the proper functioning of the
Community. Those goods and services may include, but are not limited to, the following:
15.2.1 Utilities. All necessary utility services for the Common Elements
and the Units.
15.2.2 Additions to Common Elements. The addition of improvements
or personal property to the Common Elements.
15.2.3 Professional Services. Legal and accounting services
necessary or proper for the operation of the Community or enforcement of Governing
Documents; services of a hearing officer for quasi-judicial disputes; or services of an
architect or other professional to assist with applications for changes to the Community.
15.2.4 Maintenance. The maintenance, repair and replacement of the
Common Elements including the Limited Common Elements (such as the parking areas,
landscaping, and common utility facilities).
15.2.5 Other Necessary Expenditures. Any other materials, supplies,
furniture, labor, services, insurance, taxes or assessments which the Board is required to
secure or pay for pursuant to the terms of this Declaration or the Bylaws, or under law, or
which, in its opinion, is necessary or proper for the operation of the Community, or for the
enforcement of this Declaration or the Bylaws.
15.2.6 Liens. The Board may also pay any amount necessary to
discharge any lien or encumbrance levied against the entire property or any part thereof
which may or is claimed to, in the opinion of the Board, constitute a lien against the
property or against the Common Elements, rather than merely against the interest therein
of particular Owners. Where one or more Owners are responsible for the existence of
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such lien, they shall be jointly and severally liable for the cost of discharging it, and any
costs and expense incurred by the Board by reason of such lien or liens shall be assessed
against the Owners and the Units responsible to the extent of their responsibility and shall
be immediately due and payable to the Association.
Section 15.3 Managing Agent. The Declarant or Board may contract with an
experienced professional Managing Agent to assist the Board in the management and operation of
the Community and may delegate such of its powers and duties to the Managing Agent as it deems
to be appropriate, except as limited herein. Any contract with a Managing Agent shall have a term
no longer than one year (but may be renewable by agreement of the parties for successive one-
year periods) and shall be terminable by the Board without payment of a termination fee, either
(a) for cause, on 30 days’ written notice; or (b) without cause, on not more than 90 days’ written
notice.
Section 15.4 Authority to Borrow. If the Board determines that the funds of the
Association are or will be insufficient to pay the expenses of the Association, the Association may
borrow funds to pay such expenses. To secure the repayment thereof, the Association may,
subject to Section 7.3, encumber (subject to the limitations set forth in this Declaration) any portion
of the Common Elements. Proceeds of the conveyance or financing are an asset of the
Association. In addition, to secure the repayment thereof, the Association may assign (subject to
the limitations set forth in this Declaration) its right to receive future income of the Association,
including any receivable, right to payment, and special and general Assessments from the Unit
Owners. Prior to making such an assignment, the Board shall provide a notice of intent to borrow
to all the Owners. The notice must include the purpose and maximum amount of the loan, the
estimated amount and term of any assessments required to repay the loan, a reasonably detailed
projection of how the money will be expended, and the interest rate and term of the loan, and must
set a date for a meeting of the Owners to consider ratification of the borrowing not fewer than 14 or
more than 60 days after mailing of the notice. Unless at that meeting, whether or not a quorum is
present, the Owners to which a majority of the votes in the Association are allocated reject the
proposal to borrow funds, the Association may proceed to borrow the funds in substantial
accordance with the terms contained in the notice. In connection with the encumbrance of future
income of the Association, the Association may execute such loan documents and undertake such
obligations as the lender may require to realize on the encumbrance including powers of attorney,
control over deposit accounts, the right to file or foreclose Assessment liens, and the right to
contact account debtors (including the Unit Owners) and require that payment be made directly to
the lender.
Section 15.5 Standard of Conduct. In the performance of their duties, the officers and
directors are required to exercise the degree of care and loyalty to the Association required of an
officer or a director of a corporation organized, and are subject to the conflict of interest rules
governing directors and officers, under chapter 24.03A RCW.
Section 15.6 Limitations on Board Authority. The Board shall act reasonably, in light of
the facts determined by the Board, in making all determinations, exercising its discretion, granting
or withholding consent, or taking any action on behalf of the Association. The Board shall not,
without the vote or agreement of the Unit Owners, (i) amend the Declaration except as set forth in
Article 24, (ii) amend the organizational documents of the Association, (iii) terminate the
Community, (iv) elect members of the Board, or (v) determine the qualifications, powers, duties, or
terms of office of members of the Board. The Board may, in accordance with the Bylaws, fill
vacancies in its membership for the unexpired portion of any term.
Section 15.7 Limitation of Liability; Indemnification. The liability of each director, officer
and committee member, including the Declarant when acting in any such capacity, shall be limited
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as set forth in the Association’s Articles. Each director, officer and committee member, including
the Declarant when acting in any such capacity, shall be entitled to indemnity, reimbursement of
expenses and advances of expenses as set forth in the Association’s Articles.
Section 15.8 Lawsuits or Arbitration Proceedings.
15.8.1 General. The Association may institute, defend, or intervene in
litigation or in arbitration, mediation, or administrative proceedings or any other legal
proceeding (“Proceedings”) in its own name on behalf of itself or on behalf of two or more
Unit Owners, in a representative capacity, on matters affecting the Community, but any
action on behalf of Unit Owners shall not convert any individual claims or legal rights that
the Unit Owners may have into claims or rights of the Association.
15.8.2 Notice. The Board must carefully evaluate the potential costs
and risks to the Unit Owners before committing the Unit Owners to a course of action in
any Proceedings. The Board shall evaluate those matters and promptly provide notice in a
Record to the Units Owners about any legal proceedings in which the Association is a
party other than Proceedings involving the enforcement of Rules or to recover unpaid
Assessments due to the Association. The notice shall describe: (i) the principal amount
sought to be recovered; (ii) the estimated attorneys’ fees which will be chargeable to the
Association; (iii) the basis on which the attorneys’ fees will be paid (for example, hourly, flat
fee or contingent); (iv) the estimated cost of all witnesses or investigators including
bookkeepers, accountants, consultants, investigators, contractors, and experts; (v) the
nature of the Association’s claims and defenses and the amount at issue; and (vi) the
negative consequences the Unit Owners could suffer by reason of the proposed
Proceedings, including the likelihood of special Assessments and the impact of the
litigation on Unit sales or refinancings while the Proceedings are pending.
ARTICLE 16 BUDGET AND ASSESSMENTS
Section 16.1 Fiscal Year. The Board may adopt such fiscal year for the Association as
it deems to be convenient. Unless another year is adopted, the fiscal year will be the calendar
year.
Section 16.2 Preparation of Budget. Not less than 30 days before the end of the fiscal
year in which Assessments are collected, the Board shall prepare a budget for the Association for
the coming year. The budget must include: (i) the projected income to the Association by category,
(ii) the projected Common Expenses and those Specially Allocated Expenses that are subject to
being budgeted, both by category, (iii) the amount of Assessments per Unit and the date the
Assessments are due, (iv) the amount of regular Assessments budgeted for contribution to the
reserve account, (v) a statement of whether the Association has a reserve study that meets the
requirements of the CIC Act and, if so, the extent to which the budget meets or deviates from the
recommendations of that reserve study, and (vi) the current deficiency or surplus in reserve funding
expressed on a per unit basis. The Budget shall also take into account any surplus or deficit
carried over from the preceding year, and make provision for reasonable reserves for
contingencies. The Board need not reserve for items that can reasonably be funded from cash
flow or borrowing, and need not adopt a “fully funded” plan or contribution and may adopt such plan
and contribution rate as it deems appropriate in its reasonable discretion. The Board may at any
suitable time require the commencement of contributions to such reserve accounts. The Board
need not adopt a new budget prior to the Transition Date, and any budget adopted during such
period may be based on the actual expenses for the Association and need not provide for
accumulation of reserves.
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Section 16.3 Ratification of Budget. Within 30 days after adoption of any proposed
budget for the Community, the Board shall provide a copy of the budget to all the Owners and shall
set a date for a meeting of the Owners to consider ratification of the budget not fewer than 14 or
more than 50 days after mailing of the summary. Unless at that meeting the Owners to which a
majority of the votes in the Association are allocated reject the budget, the budget and the
Assessments against the Units included in the Budget is ratified, whether or not a quorum is
present. In the event the proposed budget is rejected or the required notice is not given, the
periodic budget last ratified by the Unit Owners shall be continued until such time as the Unit
Owners ratify a subsequent budget proposed by the Board. If the Board proposes a supplemental
budget during any fiscal year, such budget shall not take effect unless ratified by the Unit Owners
in accordance with this Section 16.3.
Section 16.4 Revisions to Budget. The Board may revise the budget and any
Assessments based thereon, from time to time for any reason, including non-payment of any
Owner’s Assessments. Any revision to the budget is, however, subject to the notice requirements
and the right of Owners to ratify the revised budget set forth in Section 16.3.
Section 16.5 Assessments for Common Expenses. The sums required by the
Association for Common Expenses as reflected in the annual budget and any supplemental budget
shall be divided into installments to be paid each month over the period to be covered by the
budget or supplemental budget. The monthly Assessment for Common Expenses for each Unit
shall be the sum of (a) the Common Expense Liability of that Unit multiplied by the total monthly
installment for Common Expenses (except Specially Allocated Expenses) for all Units; and (b) any
Specially Allocated Expenses of that Unit. Monthly Assessments shall commence against all Units
that have been created by this Declaration no later than the date of the first Conveyance of a Unit
to an Owner other than Declarant. [Monthly Assessments shall commence against each later
created Unit no later than the date of the first Conveyance of such Unit to an Owner other than
Declarant.] [Use if you will add later Units.] Notwithstanding the foregoing, the Declarant may delay
the commencement of monthly Assessments for some or all Common Expenses or Specially
Allocated Expenses beyond such date, in which event the Declarant must pay all of the Common
Expenses or Specially Allocated Expenses that have been delayed during the period of delay. The
Declarant may exercise the right to delay Assessments for any Units whether initially created or
subsequently created pursuant to a Development Right to create Units. If Declarant has paid
insurance premiums prior to the commencement of Assessments, it shall be entitled to a refund
from the Association of any unearned premium for the period after commencement of
Assessments. If the Association does not have adequate working capital at the commencement of
Assessments to reimburse the Declarant for the unearned premiums, it may deliver a promissory
note to the Declarant and pay the balance due over time.
Section 16.6 Specially Allocated Expenses. The Common Expenses described in this
Section 16.6 shall be assessed against the Units as described herein, and not on the basis of the
Unit’s Common Expense Liability. [The Act requires assessments to be based on the CEL except it
allows certain types of expenses to be assessed on a different basis if the Declaration says so.
Those expenses MUST be assessed on the alternative basis set forth in the Declaration. The
following can be written differently. For instance, there could be one section on a neighborhood
park, another section on a neighborhood detention facility, one section on the costs of a
neighborhood pool, one section on the homes receiving data services, etc. Only the following costs
can be specially allocated: (i) costs of operation, maintenance, repair, or replacement of any
specified limited common element, (ii) expenses specified in the declaration as benefiting fewer
than all of the units or their unit owners, (iii) costs of insurance in proportion to risk, and (iv) costs of
one or more specified utilities in proportion to respective usage or upon the same basis as such
utility charges are made by the utility provider.]
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16.6.1 [Limited Common Elements. Any Common Expense associated
with the operation, maintenance, repair, or replacement of the _____________ Limited
Common Element shall be [paid by the Owner(s) of the Unit to which the Limited Common
Element is allocated] [assessed against the Unit(s) to which that Limited Common Element
is allocated]. If the Limited Common Element is allocated to more than one Unit, the
Common Expenses shall be assessed [equally] [specify other basis if desired] among the
Units to which it is allocated.]
16.6.2 [Unequal Benefit. The Board must assess any Common
Expense, or portion thereof, associated with ________________ solely against the Units
receiving the benefit thereof.]
16.6.3 [Insurance. The expense of procuring and maintaining
insurance will be assessed against the Units according to their Common Expense Liability
unless the Board determines, based on advice from the Association’s insurance broker,
agent or company, that differences in the value or replacement cost of improvements
within individual Units or in the activities conducted within Units make it appropriate to
assess the cost of insurance in accordance with risk.]
16.6.4 [Capacity Charges and Assessments. Any Common Expenses
for the sewer capacity charge, business improvement district assessments, local
improvement district assessments and other similar charges or assessments be assessed
against the Units on the same basis, or in accordance with the same formula, as the
assessments or charges are imposed by the governmental authority.]
Section 16.7 Misconduct. To the extent that any Common Expense is caused by the
negligence of any Owner or Authorized User of any Unit, the Association may assess that expense
against the Owner’s Unit. [Optional]
Section 16.8 Special Assessments. For those Common Expenses which cannot
reasonably be calculated and paid on a monthly basis, the Board may levy special Assessments
for such expenses against the Units, subject to ratification by the Owners pursuant to Section 16.3.
Section 16.9 Reserve Studies. The Association shall obtain reserve studies and
updated reserve studies as required by the CIC Act. An initial reserve study must be prepared by a
reserve study professional and based upon either a reserve study professional’s visual site
inspection of completed improvements or a review of plans and specifications of or for unbuilt
improvements, or both when construction of some but not all of the improvements is complete. An
updated reserve study must be prepared annually. An updated reserve study must be prepared at
least every third year by a reserve study professional and based upon a visual site inspection
conducted by the reserve study professional. Until the expiration of all warranties given by or
imposed upon the Declarant, and the time period for filing any claims against the Declarant, the
Board shall contemporaneously send a copy of each reserve study to the Declarant at the address
specified in Section 26.1, or such other address as the Declarant may specify in a Record to the
Association from time to time. [Make sure Reserve Study and HOA Budget include expenses of
these items.]
Section 16.10 Creation of Reserve Account. Once Assessments for replacement
reserves are collected, the Board shall establish one or more accounts for the deposit of reserve
contributions. Any reserve account must be an income-earning account maintained under the direct
control of the Board, and the Board is responsible for administering the reserve account. The
operation of the reserve account and any Assessments for contribution to the reserve account shall
be further governed by this Article 16 and the Bylaws.
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Section 16.11 Withdrawals from Reserve Accounts. The Board may withdraw funds from
the Association’s reserve accounts to pay for unforeseen or unbudgeted costs that are unrelated to
replacement costs of the reserve components. Any such withdrawal must be recorded in the
minute books of the Association. The Board must give notice of any such withdrawal to each Unit
Owner and adopt a repayment schedule not to exceed twenty-four months unless the Board
determines that repayment within twenty-four months would impose an unreasonable burden on
the Unit Owners. The Board must provide to Unit Owners along with the annual budget adopted in
accordance with Section 16.2 of this Declaration (a) notice of any such withdrawal, (b) a statement
of the current deficiency in reserve funding expressed on a per Unit basis, and (c) the repayment
plan. The Board may withdraw funds from the reserve account without satisfying the notification of
repayment requirements under this section to pay for replacement costs of reserve components not
included in the reserve study.
Section 16.12 Payment of Monthly Assessments. On or before the first day of each
calendar month, or such other date as the Board may establish by Rule, each Owner shall pay or
cause to be paid to the treasurer or designated agent of the Association all Assessments against
the Unit for that month. Any Assessment that is not paid when due will be subject to late charges,
interest charges and collection adopted by the Board pursuant to Section 17.8.
Section 16.13 Proceeds Belong to Association. All Assessments and other receipts
received by the Association on behalf of the Community shall belong to the Association.
Section 16.14 Failure to Assess. Any failure by the Board or the Association to make the
budgets and Assessments hereunder before the expiration of any year for the ensuing year shall
not be deemed a waiver or modification in any respect of the provisions of this Declaration, or a
release of the Owner from the obligation to pay Assessments during that or any subsequent year,
and the monthly Assessments amounts established for the preceding year shall continue until new
Assessments are established.
Section 16.15 Certificate of Unpaid Assessments. Upon the request of any Owner or
Mortgagee of the Owner’s Unit, the Board must furnish a statement signed by an officer or
authorized agent of the Association stating the amount of unpaid Assessments against that Unit.
The Association must furnish the statement within 15 days after receiving the request. The
statement shall be binding on the Association, the Board and every Unit Owner, unless and to the
extent known by the recipient to be false. The Board may establish a reasonable fee to be charged
to reimburse it for the cost of preparing the statement.
Section 16.16 Recalculation of Assessments. If Common Expense Liabilities are
reallocated, Assessments and any installment thereof not yet due shall be recalculated in
accordance with the reallocated liabilities. The Board shall have the discretion to determine when
to impose the recalculated Assessments, but in no event shall the Board delay imposition beyond
the fiscal year during which the Common Expense Liabilities were reallocated.
Section 16.17 Initial Contribution to Working Capital. The first purchaser of any Unit
shall, at the time of closing, pay to the Association (or the Declarant as set forth below), in addition
to other amounts due, an amount equal to [two] times the initial monthly Assessment against the
Unit as a non-refundable initial contribution to the Association’s working capital. The Declarant
shall not use any such contributions to defray expenses that are the obligation of Declarant. [Two
months is the usual amount.]
ARTICLE 17 LIEN AND COLLECTION OF ASSESSMENTS
Section 17.1 Assessments Are a Lien; Priority.
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17.1.1 The Association has a lien on a Unit for any unpaid Assessment
levied against a Unit from the time the Assessment is due.
17.1.2 A lien under this Article 17 shall be prior to all other liens and
encumbrances on a Unit except: (i) liens and encumbrances recorded before the
recording of this Declaration; (ii) a Mortgage on the Unit recorded before the date on which
the unpaid Assessment became due; and (iii) liens for real estate taxes and other
governmental assessments or charges against the Unit.
17.1.3 Except as provided in this Section 17.1.3, the lien shall also be
prior to the Mortgages described in Section 17.1.2(ii) to the extent of an amount equal to:
17.1.3.1 Assessments (whether specially allocated or not) for
Common Expenses, excluding any amounts for capital improvements, based on the
periodic budgets adopted by the Association pursuant to Article 16, which would have
become due in the absence of acceleration during the six months immediately preceding
the institution of proceedings to foreclose either the Association’s lien or a Mortgage
described in Section 17.1.2(ii); plus
17.1.3.2 The Association’s actual costs and reasonable attorneys’
fees incurred in foreclosing its lien but incurred after the giving of the notice described in
Section 17.1.3.3; provided, however, that the costs and reasonable attorneys’ fees that will
have priority under this Section 17.1.3.2 shall not exceed $2,000 or an amount equal to the
amounts described in Section 17.1.3.1, whichever is less
17.1.3.3 The notice must satisfy the requirements of Section
318(3)(a)(iii) of the CIC Act.
17.1.4 Recording of this Declaration constitutes recorded notice and
perfection of the lien for Assessments; however, the Association may record a notice of
claim of lien for Assessments in the real estate records of the county in which the
Community is located. Such recording shall not constitute the notice referred to in Section
17.1.3.3.
Section 17.2 Judicial Foreclosure. A lien arising under this Article 17 may be enforced
judicially by the Association or its authorized representative in the manner set forth in chapter 61.12
RCW, subject to any rights of redemption under chapter 6.23 RCW. Upon an express waiver in the
complaint of any right to a deficiency judgment in a judicial foreclosure action, the period of
redemption shall be eight months.
Section 17.3 Non-Judicial Foreclosure. A lien arising under this Article 17 may be
foreclosed non-judicially in the manner set forth in chapter 61.24 RCW for non-judicial foreclosure
of deeds of trust. For the purpose of preserving the Association’s non-judicial foreclosure option,
this Declaration shall be considered to create a grant of each Unit in trust to [Title Co Name] or its
successors or assigns (“Trustee”), to secure the obligations of each Unit Owner to the Association
for the payment of Assessments. Each Unit Owner shall retain the right to possession of its Unit so
long as Grantor is not in default of an obligation to pay Assessments. The Trustee shall have a
power of sale with respect to each Unit, which becomes operative in the case of a default in a Unit
Owner’s obligation to pay Assessments. The Units are not used principally for agricultural or
farming purposes. If the Association forecloses its lien non-judicially pursuant to this Section 17.3,
it shall not be entitled to the lien priority over Mortgages provided in Section 17.1.3 and shall be
subject to the limits on deficiency judgments under chapter 61.24 RCW.
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Section 17.4 Receiver During Foreclosure. In an action to collect Assessments or to
foreclose on a lien on a Unit, the Association shall be entitled to the appointment of a receiver to
collect all sums due and owing to the Unit Owner before commencement of the action or during the
pendency of the action. The receivership shall be governed by chapter 7.60 RCW. During the
pendency of the action, the court may order the receiver to pay sums held by the receiver to the
Association for any Assessments against the Unit. The exercise by the Association of the
foregoing rights shall not affect the priority of preexisting liens on the Unit.
Section 17.5 Effect of Foreclosure. The Association or its authorized representative
shall have the power to purchase the Unit at the Foreclosure sale and to acquire, hold, lease,
mortgage, or convey the same. Nothing in this Article 17 shall prohibit the Association from taking
a deed in lieu of Foreclosure. Except as provided in Section 17.1.3, the holder of a Mortgage or
other purchaser of a Unit who obtains the right of possession of a Unit through Foreclosure shall
not be liable for any Assessments or installments thereof that became due prior to such right of
possession. Such unpaid Assessments shall be deemed to be Common Expenses collectible from
all the Owners, including such Mortgagee or other purchaser of the Unit. Foreclosure of a
Mortgage does not relieve the prior Owner of personal liability for Assessments accruing against
the Unit prior to the date of such sale.
Section 17.6 Assessments Are Personal Obligations. In addition to constituting a lien
on the Unit, all sums assessed by the Association chargeable to any Unit, including all charges in
this Article 17, shall be the personal obligation of the Owner of the Unit when the Assessments are
made. Suit to recover personal judgment for any delinquent Assessments shall be maintainable
without foreclosing or waiving the liens securing them.
Section 17.7 Extinguishment of Lien and Personal Liability. A lien for unpaid
Assessments and the personal liability for payment of Assessments are extinguished unless
proceedings to enforce the lien or collect the debt are instituted within six years after the full
amount of the Assessments sought to be recovered becomes due.
Section 17.8 Joint and Several Liability. In addition to constituting a lien on the Unit,
each Assessment shall be the joint and several obligation of the Owner or Owners of the Unit to
which the same is assessed as of the time the Assessment is due. In a voluntary Conveyance,
other than by foreclosure, the grantee of a Unit shall be jointly and severally liable with the grantor
for all unpaid Assessments against the grantor up to the time of the grantor’s Conveyance, without
prejudice to the grantee’s right to recover from the grantor the amounts paid by the grantee
therefore. Suit to recover a personal judgment for any delinquent Assessment shall be
maintainable in any court of competent jurisdiction without foreclosing or waving the lien securing
such sums.
Section 17.9 Late Charges and Interest on Delinquent Assessments. The Association
may from time to time establish reasonable late charges and a rate of interest to be charged, not to
exceed the maximum rate calculated under RCW 19.52.020 on all subsequent delinquent
Assessments or installments thereof. If the Association has not established such a rate, delinquent
Assessments shall bear interest from the date of delinquency at the maximum rate permitted under
RCW 19.52.020 on the date on which the Assessments became delinquent.
Section 17.10 Recovery of Attorneys’ Fees and Costs. The Association shall be entitled
to recover any costs and reasonable attorneys’ fees incurred in connection with the collection of
delinquent Assessments, whether or not such collection activities result in a suit being commenced
or prosecuted to judgment. In addition, the prevailing party shall be entitled to recover costs and
reasonable attorneys’ fees if it prevails on appeal and in the enforcement of a judgment.
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Section 17.11 Limitations on Foreclosure Proceedings. The Association may not
commence an action to Foreclose a lien on a Unit under this Article 17 unless: (i) the Unit Owner,
at the time the action is commenced, owes a sum equal to a at least three months of Assessments,
and (ii) the Board approves commencement of a Foreclosure action specifically against that Unit.
Every aspect of a collection, Foreclosure, sale or other conveyance under this Article 17, including
the method, advertising, time, date, place and terms must be commercially reasonable.
Section 17.12 Security Deposit. An Owner who has been chronically delinquent in
paying its monthly Assessments may, from time to time, be required by the Board, after Notice and
Opportunity to be Heard, to make and maintain a security deposit not in excess of three months’
estimated monthly Assessments, which shall be collected and shall be subject to penalties for non-
payment as are other Assessments. The deposit shall be held in a separate fund, credited to such
Owner, and may be resorted to at any time when such Owner is 10 days or more delinquent in
paying Assessments.
Section 17.13 Remedies Cumulative. The remedies provided herein are cumulative, and
the Board may pursue them, and any other remedies which may be available under law although
not expressed herein, either concurrently or in any order.
ARTICLE 18 ENFORCEMENT OF GOVERNING DOCUMENTS
Section 18.1 Rights of Action. Each Owner and its Authorized Users and the
Association shall comply with the Governing Documents and the proper decisions of the Board.
The Declarant shall enjoy all the rights and assume all the obligations of an Owner as to each
unsold Unit in the Community owned by the Declarant. The Association acting on behalf of the
Owners or any Owner acting on its own behalf may bring an action to recover sums due or
damages, or for injunctive relief, or any or all of them, against any party who fails to comply with the
Governing Documents and the proper decisions of the Board.
Section 18.2 Additional Rights. In addition to any rights authorized by the CIC Act, the
Board may, after Notice and Opportunity to Be Heard, take any of the following actions against any
party who fails to comply with the Governing Documents and the proper decisions of the Board:
18.2.1 Require an Owner, at its own expense, to stop work on, and
remove, any improvement from such Owner’s Unit or other areas of the Community in
violation of the Governing Documents and to restore the property to its previous condition
and, upon failure of the Owner to do so, the Board or its designee shall have the right to
enter the property, remove the violation and restore the property to substantially the same
condition as previously existed and any such action shall not be deemed a trespass;
18.2.2 Levy Assessments to cover costs incurred by the Association to
cure a violation of the Governing Documents;
18.2.3 Apply a security deposit posted by an Owner to any unpaid
charges or Assessments;
18.2.4 Suspend any right or privilege of a Unit Owner who fails to pay
an Assessment, but the Association may not (i) deny a Unit Owner or other occupant
access to the Owner’s Unit, (ii) suspend a Unit Owner’s right to vote, or (iii) withhold
services provided to a Unit or a Unit Owner by the Association if the effect of withholding
the service would be to endanger the health, safety, or property of any Person; and
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18.2.5 Exercise self-help or take action to abate any violation of the
Governing Documents.
Notice and Opportunity to Be Heard shall not be required in an emergency situation or in regard to
the removal of vehicles or items that are in violation of parking Rules.
Section 18.3 Remedies Cumulative; Attorneys’ Fees. All remedies set forth in the
Governing Documents shall be cumulative of any remedies available at law or in equity. In any
action to enforce the Governing Documents, if the Association or Owner prevails, it shall be entitled
to recover all costs, including, without limitation, its attorneys’ fees and court costs, reasonably
incurred in such action.
Section 18.4 Enforcement Discretion; No Waiver. The decision to pursue enforcement
action in any particular case shall be left to the judgment of the Board, except that the Board shall
not be arbitrary or capricious in taking enforcement action. Without limiting the generality of the
foregoing sentence, the Board may determine that, under the circumstances of a particular case:
18.4.1 The Association’s position does not justify taking action or
further action;
18.4.2 The covenant, restriction or Rule being enforced is, or is likely to
be, construed as inconsistent with applicable law;
18.4.3 Although a violation may exist or may have occurred, it is not so
material as to be objectionable to a reasonable Person or to justify expending the
Association’s resources; or
18.4.4 It is not in the Association’s best interests to pursue enforcement
action.
Such a decision shall not be construed to be a waiver of the right of the Association to enforce such
provision at a later time under other circumstances or preclude the Association from enforcing any
other covenant, restriction or Rule. The receipt by the Board of payment of an Assessment from an
Owner, with knowledge of a breach by the Owner, shall not be a waiver of the breach. No waiver
by the Board of any requirement shall be effective unless expressed in a Record and signed for by
the Board. This Section 18.4 also extends and applies to the Declarant.
Section 18.5 Notice and Opportunity to Be Heard. Whenever this Declaration requires
that an action of the Board be taken after Notice and Opportunity to Be Heard, the following
procedure shall be observed: The Board shall give written notice of the proposed action to all
Owners, Tenants or occupants of Units whose interest would be significantly affected by the
proposed action. The notice shall include a general statement of the proposed action and the date,
time and place of the hearing, which shall be not less than five days from the date notice is
delivered by the Board. At the hearing, the affected Person shall have the right, personally or by a
representative, to give testimony orally, in a Record or both (as specified in the notice), subject to
reasonable Rules of procedure established by the Board to ensure a prompt and orderly resolution
of the issues. Such evidence shall be considered in making the decision but shall not bind the
Board. The affected Person shall be notified of the decision in the same manner in which notice of
the meeting was given.
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ARTICLE 19 TORT AND CONTRACT LIABILITY
Section 19.1 Declarant Liability. An Owner is not liable, solely by reason of being an
Owner, for an injury or damage arising out of the condition or use of the Common Elements.
Neither the Association nor any Owner except the Declarant is liable for the Declarant’s torts in
connection with any part of the Community which the Declarant has the responsibility to maintain.
An action alleging a wrong done by the Association must be brought against the Association and
not against any Owner. An Owner is not precluded from bringing an action contemplated by this
Section 19.1 because it is a Unit Owner or a director or officer of the Association.
Section 19.2 Limitation of Liability for Utility Failure. Except to the extent covered by
insurance obtained by the Association, neither the Association, the Board, the Managing Agent nor
the Declarant shall be liable to any Unit Owner for:
19.2.1 the failure of any utility or other service to be obtained and paid
for by the Board;
19.2.2 injury or damage to Person or property caused by the elements,
or resulting from electricity, water, rain, dust, mold or mildew which may leak, travel or flow
from outside of any building; from any Unit, Common Element or part of the building; from
any pipes, drains, conduits, appliances, or equipment; or from any other place; or
19.2.3 inconvenience or discomfort resulting from any action taken to
comply with the Governing Documents or any law, ordinance or orders of a governmental
authority. No diminution or abatement of Assessments shall be claimed or allowed for any
such utility or service failure, or for such injury or damage, or for such inconvenience or
discomfort.
Section 19.3 Non-Liability for Design Approval. If Declarant or the ACC approves any
plans, such approval only constitutes approval of the architectural design and does not constitute
approval of: (a) engineering design; (b) compliance with Applicable Laws; (c) compliance with
regulations of any public utility; or (d) any easements or other agreements affecting the applicable
Unit. By approving such plans, Declarant and/or the ACC assume(s) no liability or responsibility for
such plans, or for any defect in any of the Structure or other improvement subject to the ACC
review (“Improvement”), or for any obstruction or impairment of view caused or created as a result
of any Improvement. Each Owner, by acceptance of a deed to a Unit, agrees: (i) that Declarant
and the ACC shall not be responsible for any damages or injuries that may result from the
installation or maintenance of Improvements by such Owner; and (ii) to indemnify and hold
Declarant, the Board, the ACC, and associated parties, harmless form and against any and all
liabilities, claims, damages, costs, losses, proceedings, and causes of action, including, without
limitation, attorneys’ fees, arising from such Owner’s construction, installation, demolition, repair or
use of the Improvements.
Section 19.4 Limitation of Personal Liability; Indemnification. Each director and officer
of the Association shall be insulated from liability for its conduct as a director or officer of the
Association to the extent set forth in Article 8 of the Articles and shall be entitled to indemnification
to the extent set forth in Article 9 of the Articles.
ARTICLE 20 INSURANCE
Section 20.1 Required Insurance. Commencing not later than the time of the first
Conveyance of a Unit to a Person other than the Declarant, the Association shall maintain in its
own name, to the extent reasonably available and subject to reasonable deductibles, insurance
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meeting the requirements of this Article 20. The Association may, however, delay procurement of
fidelity insurance until the election of the Board at the Transition Meeting. All insurance must be
obtained from insurance carriers who are generally acceptable for similar projects, are authorized
to do business in the State of Washington and meet the acceptability criteria of Fannie Mae,
Freddie Mac, HUD and VA. The Board shall review at least annually the adequacy of the
Association’s insurance coverage. The Board shall promptly notify the Unit Owners if the required
property or liability insurance is not reasonably available.
Section 20.2 Property Insurance Requirements. The Association shall maintain
property insurance written on a “special form” of coverage. The property insurance shall cover (i)
all Common Elements (including Limited Common Elements) and all real estate that must become
Common Elements, (ii) to the extent not described in the foregoing clause, all installed machinery
and equipment and personal property owned by the Association and located outside of a Unit
(including but not limited to furniture, media equipment, and appliances used for refrigerating,
ventilating, cooking, dishwashing or laundering), and (iii) all other personal property of the
Association. The property insurance shall insure against all risks of direct physical loss and may,
but need not, include damage caused by earthquakes or terrorism. The amount of insurance shall
not be less than [100%] [Can be reduced to 80%] of the current replacement cost of the insured
property at the time the insurance is purchased and at each renewal date, exclusive of land,
excavations, foundations and other items normally excluded from property policies. To ensure
adequate property insurance coverage, the Board shall periodically obtain insurance replacement
cost appraisals of any buildings and personal property for which insurance is required under this
Section 20.2.
Section 20.3 Liability Insurance Requirements. The Association shall maintain
commercial general liability insurance, including medical payments insurance, which provides
coverage for bodily injury and property damage resulting from the operation, maintenance or use of
the Common Elements in an amount of at least $1,000,000 for any single occurrence and
$2,000,000 aggregate and which contains a specific endorsement to preclude the insurer’s denial
of a Unit Owner’s claim because of the negligent act of the Association or other Unit Owners.
Section 20.4 Fidelity Insurance Requirements. The Association shall maintain, or
require its Managing Agent to maintain, fidelity insurance naming the Association and its officers,
directors, trustees and employees, any Managing Agent, and all other Persons who handle or are
responsible for handling funds held or administered by the Association, whether or not the Person
receives compensation for services, as insured. The bond shall contain waivers of any defense
based upon the exclusion of Persons who serve without compensation from any definitions of
“employee” or similar expression. The policy must provide minimum limits at least equal to the
larger of (i) the highest amount of funds, including reserve funds, that the Association is expected
to hold at any time while the policy is in force, or (ii) three months of the expected aggregate
Assessments for the policy term, plus reserve funds. There shall be no requirement to obtain a
fidelity bond prior to the Transition Meeting.
Section 20.5 Additional Insurance Requirements. The insurance policies obtained
pursuant to Section 20.2 shall:
20.5.1 Provide that the Association is the named insured, and that each
Unit Owner is an insured under the policy with respect to liability arising out of the Owner’s
interest in the Common Elements or membership in the Association;
20.5.2 Provide that the insurer waives its right to subrogation under the
policy as to any and all claims against the Association, the Owner of any Unit and/or their
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respective agents, employees or Tenants, and members of their household, and of any
defenses based upon coinsurance or upon invalidity arising from the acts of the insured;
20.5.3 Provide that no act or omission by any Unit Owner, unless
acting within the scope of the Owner’s authority on behalf of the Association, or any failure
of the Association to comply with any warranty or condition regarding any portion of the
premises over which the Association has no direct control, will void the policy or be a
condition to recovery under the policy; and
20.5.4 Provide that if, at the time of a loss under the policy, there is
other insurance in the name of a Unit Owner covering the same risk covered by the policy,
the Association’s policy provides primary insurance, and that the liability of the insurer
thereunder shall not be affected by, and the insurer shall not claim any right to set-off,
counterclaims, apportionment, proration, contribution or assessment by reason of, any
other insurance obtained by or for any Unit Owner or any Mortgagee.
Section 20.6 Adjustment of Losses; Insurance Trustee; Power of Attorney. Any loss
covered by the insurance described in Section 20.2 must be adjusted with the Association, but the
proceeds for that loss are payable to any insurance trustee designated for that purpose, or
otherwise to the Association, and not to any holder of a Mortgage. The insurance trustee or the
Association must hold any insurance proceeds in trust for the Association, Unit Owners and lien
holders as their interests may appear. Subject to the provisions of Sections 20.9 and 21.4, the
proceeds must be disbursed first for the repair or restoration of the damaged property, and the
Association, Unit Owners and lien holders are not entitled to receive payment of any portion of the
proceeds unless there is a surplus of proceeds after the property has been completely repaired or
restored or the Community is terminated. Each Owner appoints the Association, or any insurance
trustee or successor trustee designated by the Association, as attorney-in-fact for the purpose of
purchasing and maintaining such insurance, including the collection and appropriate disposition of
the proceeds thereof, the negotiation of losses and execution of releases of liability, the execution
of all documents and the performance of all other acts necessary to accomplish such purposes.
Each Owner and the Owner’s Mortgagee, if any, are beneficiaries of the policy in accordance with
percentages established by the Common Ownership Interest of Owner’s Unit. Certificates of
insurance shall be issued to each Owner and Mortgagee upon request. [Provided, however, that
prior to the creation of additional Units pursuant the Declarant’s Development Rights, the Declarant
shall be solely entitled to any insurance proceeds for any improvements created by the Declarant
pursuant to its Development Rights unless and until such improvements have been created as
Units, Limited Common Elements or Common Elements.]
Section 20.7 Additional Insurance. The Association may maintain such other insurance
as the Board deems advisable; provided that notwithstanding any other provisions herein, the
Association shall continuously maintain in effect such casualty, flood, loss of monthly maintenance
fees and liability insurance and a fidelity bond meeting the insurance and fidelity bond requirements
for similar projects established by Fannie Mae, Freddie Mac, HUD or VA, or other governmental
agencies involved in the secondary mortgage market, so long as any such agency is a Mortgagee
or an Owner of a Unit within the Community or an insurer of a Mortgage encumbering a Unit,
except to the extent such coverage is not reasonably available or has been waived in a Record by
such agency.
Section 20.8 Owners’ Individual Insurance. Each Unit Owner shall maintain special
cause-of-loss coverage in an amount equal to [100%] of the replacement cost of its Home
(exclusive of such items as land, foundations, excavations, and other items normally excluded from
property policies). Each Unit Owner and Tenant shall maintain a liability policy insuring against
liability for property damage or bodily injury caused by the Unit Owner or Tenant or those for
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whom each is legally responsible, and cover any obligation to pay or reimburse the Association
for any deductible under the Association’s property insurance or for any portion of loss caused by
the insured and not covered by the Association’s property insurance. The liability policy shall
have a limit of liability of at least $[300,000]. Owners must obtain the required insurance from
insurance carriers authorized to do business in the State of Washington. All policies must provide
that coverage may not be canceled without 30 day’s written notice to the Association. The Board
may adopt Rules that establish greater or more specific requirements for such policies, including
minimum amounts and types of coverage. [Not mandatory. This paragraph can be deleted.]
Section 20.9 Use of Insurance Proceeds. Any portion of the Community, for which
insurance is required under Section 20.2 which is damaged or destroyed must be repaired or
replaced promptly by the Association pursuant to Article 21.
Section 20.10 Certificate. An insurer that has issued an insurance policy under this
Article 20 shall issue certificates or memoranda of insurance to the Association and, upon written
request, to any Unit Owner or Mortgagee. The insurer issuing the policy may not modify the
amount or the extent of the coverage of the policy or cancel or refuse to renew the policy unless
the insurer has complied with all applicable provisions of chapter 48.18 RCW pertaining to the
cancellation or non-renewal of contracts of insurance.
Section 20.11 Notification of Sale of Unit. Promptly upon Conveyance of a Unit, the new
Unit Owner shall notify the Association of the date of the Conveyance and the Unit Owner’s name
and address. The Association shall notify each insurance company that has issued an insurance
policy to the Association for the benefit of the Owners of the name and address of the new Owner
and request that the new Owner be made a named insured under such policy.
ARTICLE 21 DAMAGE AND REPAIR OF DAMAGE TO PROPERTY
Section 21.1 Definitions: Damage, Substantial Damage, Repair, Emergency Work. As
used in this Article 21:
21.1.1 “Damage” shall mean all kinds of damage, whether of slight
degree or total destruction, caused by casualty or other occurrence, but shall not include
construction defects, deterioration or wear and tear.
21.1.2 “Substantial Damage” shall mean that in the judgment of a
majority of the Board the estimated Assessment determined under Section 21.2.4 for any
one Unit exceeds 3% of the full, fair market value of the Unit before the Damage occurred,
as determined by the then current assessed value for the purpose of real estate taxation.
21.1.3 “Repair” shall mean restoring the damaged improvements to
substantially the condition they were in before they were damaged, with the Unit and the
Common Elements having substantially the same boundaries as before. “Repair” does
include restoration of improvements or betterments installed after Conveyance by the
Declarant if those improvements or betterments are not insured because the Owner failed
to notify the Board of their installation. Modifications to conform to applicable
governmental Rules or available means of construction may be made.
21.1.4 “Emergency Work” shall mean work that the Board deems
reasonably necessary to avoid further Damage or substantial diminution in value to the
improvements and to protect the Owners from liability from the condition of the site.
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Section 21.2 Initial Board Determination. In the event of Damage to any portion of the
Community that the Association is required to insure by this Declaration, the Board shall promptly
take the following actions. In doing so, the Board shall obtain such advice from professionals (such
as engineers, architects, contractors, insurance consultants, lenders and attorneys) as the Board
deems advisable and shall consider the information then known to the Board.
21.2.1 Determine the nature and extent of the Damage to the insured
property and loss to the Association, together with an inventory of the improvements and
property directly affected thereby.
21.2.2 Obtain as reliable an estimate as possible of the cost and time
to Repair the Damage, which estimate shall, if reasonably practicable, be based upon two
or more firm bids obtained from responsible contractors.
21.2.3 Determine the insurance proceeds and reserves, if any, that will
likely be available to pay for the Damage.
21.2.4 Determine (i) the amount, if any, by which the estimated cost of
Repair is likely to exceed the expected insurance proceeds, the reserves available to
Repair the Damage, other available funds of the Association, and the deductibles owed by
Owners; and (ii) the likely amount of the Assessments that would have to be made against
each Unit if the excess cost were to be paid as a Common Expense.
Section 21.3 Notice of Damage. The Board shall provide each Owner with a written
notice summarizing the initial Board determinations made under Section 21.2, explaining any
further information needed by the Board to make a final decision on the cost and schedule for
Repairs. If the Board determines that the Damage is Substantial Damage then the notice shall also
explain any further information needed by the Board to allow the Owners to make an informed
decision about Repairs to the Community, and shall call a special meeting to consider whether to
Repair the Damage. If the Damage affects a material portion of the Community, the Board shall
also send the notice to each Mortgagee. If the Board fails to call a meeting within 30 days of the
Damage, any Owner or Mortgagee may call such a meeting. The Board may, but is not required
to, call such a meeting in other circumstances.
Section 21.4 Execution of Repairs.
21.4.1 The Association shall promptly Repair any damaged portion of
the Community that the Association is responsible to insure and to maintain or repair
unless:
21.4.1.1 The Community is terminated by vote at a special
meeting called in accordance with Section 21.3 and taken in accordance with the
termination provisions of the Declaration and CIC Act;
21.4.1.2 Repair would be illegal under any state or local health
or safety statute or ordinance; or
21.4.1.3 Owners holding at least 80% of the votes in the
Association, including every Owner of a Unit or Limited Common Element which will not be
rebuilt, and the Declarant if the Declarant has the right to create Units in the Community,
vote not to Repair the Damage.
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21.4.2 The Board shall have the authority to employ architects and
engineers, advertise for bids, let contracts to contractors and others and take such other
action as is reasonably necessary to make the Repairs. Contracts for the Repair work
shall be awarded when the Board, by means of insurance proceeds and sufficient
Assessments, has provided for paying the cost. The Board may authorize the insurance
carrier to make the Repairs if the Board is satisfied that the work will be done satisfactorily,
and if such authorization does not contravene any insurance trust agreement or
requirement of law.
21.4.3 The Board may enter into a written agreement with a reputable
financial institution or trust or escrow company that the institution or company shall act as
an insurance trustee to adjust and settle any claim for casualty loss in excess of $50,000,
or for the institution or company to collect the insurance proceeds and carry out the
provisions of this Article 21.
The Board may expend so much of the insurance proceeds and Association funds as the
Board deems reasonably necessary for Emergency Work (which Emergency Work may include but
is not necessarily limited to removal of the damaged improvements and clearing, filling, and
grading the land), and the remaining funds, if any, and the property shall thereafter be held and
distributed as provided in Section 21.5. The cost of Repair or replacement in excess of insurance
proceeds, reserves, and deductibles paid by Owners, is a Common Expense.
Section 21.5 Effect of Decision Not to Repair. If all of the damaged or destroyed
portions of the insured property are not repaired or replaced:
21.5.1 The insurance proceeds attributable to the damaged Common
Elements shall be used to restore the damaged area to a condition compatible with the
remainder of the Community;
21.5.2 The insurance proceeds attributable to Units and Limited Common
Elements that are not repaired or replaced shall be distributed to the Owners of those Units
and the Owners of the Units to which those Limited Common Elements were allocated or to
lien holders, as their interests may appear; and
21.5.3 The remainder of the proceeds shall be distributed to all the Unit
Owners or lien holders, as their interests may appear, in proportion to their Common
Ownership Interests.
If the Unit Owners vote not to rebuild any Unit, that Unit’s Allocated Interests are automatically
reallocated upon the vote as if the Unit had been condemned under Article 22, and the Association
promptly shall prepare, execute, and record an amendment to this Declaration reflecting the
reallocations. Notwithstanding the provisions of this Section 21.5, Article 25 governs the
distribution of insurance proceeds if the Community is terminated.
ARTICLE 22 CONDEMNATION
Section 22.1 Power of Attorney. The Association shall represent the Unit Owners in
any legal proceedings related to the condemnation of all or part of the Common Elements, and
shall have the sole authority to control, negotiate and settle such matters on behalf of the Unit
Owners. Each Owner appoints the Association as attorney-in-fact for the purpose of representing
the Owners in any proceedings, negotiations, settlements or agreements regarding a
condemnation of any part of the Common Elements. Any proceeds from a condemnation shall be
paid to the Association for the benefit of affected Units and their Mortgagees, as set forth herein.
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Should the Association not act, based on their right to act pursuant to this Section 22.1, the
affected Owners may individually or jointly act on their own behalf.
Section 22.2 Consequences of Condemnation; Notices. If any Unit or portion thereof or
the Common Elements or Limited Common Elements or any portion thereof is made the subject
matter of any condemnation or eminent domain proceeding or is otherwise sought to be acquired
by a condemning authority, the Association shall promptly give notice of the proceeding or
proposed acquisition to each Owner and Mortgagee and to the Declarant unless each and every
Development Right and Special Declarant Right has expired.
Section 22.3 Condemnation of a Unit. If a Unit is acquired by condemnation, or if part
of a Unit is acquired by condemnation leaving the Unit Owner with a remnant of a Unit that may not
practically or lawfully be used for any purpose permitted by this Declaration, the award must
compensate the Owner for the Owner’s Unit and its Allocated Interests, whether or not any
Common Elements are acquired. The award shall be distributed to the Owner or lien holder of the
Unit, as their interests may appear. Upon acquisition, unless the decree otherwise provides, that
Unit’s Allocated Interests are automatically reallocated to the remaining Units in proportion to the
respective Allocated Interests of those Units before the taking, and the Association shall promptly
prepare, execute, and record an amendment to this Declaration reflecting the reallocations. Any
remnant of a Unit remaining after part of a Unit is taken under this Section 22.3 is thereafter a
Common Element.
Section 22.4 Condemnation of Part of a Unit. Except as provided in Section 22.3, if part
of a Unit is acquired by condemnation, the award must compensate the Unit Owner for the
reduction in value of the Unit and its Common Ownership Interest, whether or not any Common
Elements are acquired. The award shall be distributed to the Owner or lien holders of the Unit, as
their interests may appear. Upon acquisition, unless the decree otherwise provides: (a) that Unit’s
Common Ownership Interest and Common Expense Liability are reduced in proportion to the
reduction in the size of the Unit; and (b) the portion of the Allocated Interests divested from the
partially acquired Unit is automatically reallocated to that Unit and the remaining Units in proportion
to the respective Allocated Interests of those Units before the taking, with the partially acquired Unit
participating in the reallocation on the basis of its reduced Allocated Interests.
Section 22.5 Condemnation of Common Element or Limited Common Element. If part
of the Common Elements is acquired by condemnation, any portion of the award attributable to the
acquisition of a Limited Common Element must be equally divided among the Owners of the Unit to
which that Limited Common Element was allocated at the time of the acquisition, or to lien holders,
as their interests may appear, and the portion of the award attributable to the other Common
Elements shall be distributed to the Association. If the Board determines that a particular Owner’s
interest in the Common Elements will be diminished with respect to other Owners by the acquisition
of a Common Element, the Declaration may be amended to adjust that Owner’s Common Expense
Liability allocation, or to remove the allocation of a Limited Common Element to that Owner’s Unit,
as the case may be.
Section 22.6 Reconstruction and Repair. Any reconstruction and repair necessitated by
condemnation shall be governed by the procedures specified in Article 21.
Section 22.7 Taking of Special Declarant Rights. The Association will have no power to
represent the Declarant in any condemnation or eminent domain proceedings relating to any
Development Rights or Special Declarant Rights. The Declarant, and not the Association, will be
entitled to receive all awards attributable to any Development Rights or Special Declarant Rights.
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ARTICLE 23 PROCEDURES FOR SUBDIVIDING OR COMBINING UNITS
Section 23.1 Subdivision or Combination of Units; Additional Homes. Except for
additional Units or Homes, such as middle housing or accessory dwelling units that may be created
upon a Unit under Applicable Law now or hereafter in effect, a Unit may not be subdivided into a
greater number of Units, and two or more Units may not be combined into a lesser number of
Units. This Section 23.1 does not apply to the exercise of Development Rights.
ARTICLE 24 AMENDMENT OF DECLARATION, MAP, ARTICLES OR BYLAWS
Section 24.1 Procedures. Except in cases of amendments that may be executed by the
Declarant, the Association or certain Owners under other provisions of this Declaration or under the
CIC Act, the Declaration, the Map, the Articles and the Bylaws may be amended only by vote or
agreement of the Owners as specified in this Article 24. Provisions in this Declaration pertaining to
Special Declarant Rights that have not expired may not be amended without the consent of
Declarant.
24.1.1 Any Owner or Owners may propose amendments to the Board.
If approved by a majority of the Board, the amendment shall be submitted to the members
of the Association for their consideration. If an amendment is proposed by Owners with
20% or more of the votes in the Association, the Board shall submit the amendment to the
members of the Association for their consideration at the next regular or special meeting
for which timely notice can be given. The notice for any meeting at which an amendment
will be considered shall include the text of the amendment.
24.1.2 Amendments may be adopted at a meeting of the members of
the Association or by such alternative methods as allowed by the Bylaws, after such notice
as is required by the Bylaws and this Declaration has been given to all Persons (including
Mortgagees) entitled to receive notices.
24.1.3 Upon its adoption and the receipt of any necessary consent
under this Article 24, an amendment to the Declaration or the Map will become effective
when it is recorded or filed in the real estate records in the county in which the Community
is located. The amendment shall be indexed in the name of the Community and shall
contain a cross-reference by recording number to the Declaration and each previously
recorded amendment thereto. No action to challenge the validity of an amendment to the
Declaration or Map adopted by the Association pursuant to this Article 24 may be brought
more than one year after the amendment is recorded. An amendment to the Articles shall
be effective upon filing the amendment with the Secretary of State. An amendment to the
Bylaws shall be effective upon adoption.
24.1.4 Amendments under this Section 24.1 shall be prepared,
executed, recorded and certified on behalf of the Association by any officer of the
Association designated for that purpose or, in the absence of designation, by the president
of the Association.
Section 24.2 Consent Required. Except in cases of amendments that may be executed
by a Declarant, the Association, or certain Owners under the CIC Act pursuant to different
standards, including as specified in RCW 64.90.285, the percentages of consent of Owners and
Mortgagees required for adoption of amendments to the Declaration, the Articles and the Bylaws
are as follows:
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24.2.1 General. Except as set forth elsewhere in this Section 24.2, an
amendment to the Declaration, the Map, Articles or Bylaws shall require the vote or
agreement of Unit Owners holding at least 67% of the Voting Interest in the Association.
24.2.2 Creation of Special Declarant Rights; Increase in Units; Boundary
Changes; Changes in Allocated Interests Except to the extent permitted or required under the
CIC Act or this Declaration, an amendment to the Declaration that creates or increases
Special Declarant Rights, increases the number of Units, changes the boundaries of any Unit,
or changes the Allocated Interests of a Unit shall require the vote or agreement of the Owners
holding at least 90% of the Voting Interest in the Association, including the consent of any
Owner of a Unit, the boundaries or Allocated Interests of which will be changed by the
amendment.
24.2.3 Modification of Allowed and Prohibited Uses Except to the extent
permitted or required under the CIC Act or this Declaration, an amendment to the Declaration
that allows any use of the Units other than residential use or that prohibits the residential use
of the Units shall require the vote or agreement of the Owners holding at least 90% of the
Voting Interest in the Association. Any such amendment must provide reasonable protection
for a use permitted at the time the amendment is adopted.
24.2.4 Director and Officer Indemnification. No amendment to any provision
in the Declaration, Articles or Bylaws may restrict, eliminate or modify (i) any right of a director
or officer of an Association to indemnification or any (ii) limitation of liability of such persons,
as to conduct that occurred prior to the amendment. Any current or former director or officer
affected by such amendment, who is not a Unit Owner is a third party beneficiary of this
provision entitled to enforce it.
24.2.5 Special Declarant Rights No amendment may restrict, eliminate, or
otherwise modify any Special Declarant Right that has not expired without the consent of the
Declarant and any Mortgagee of record with a security interest in the Special Declarant Right
or in any real estate subject thereto. No amendment may restrict, eliminate, or otherwise
modify any right of directors or officers to indemnification for conduct that occurred prior to the
amendment, without the consent of that director or officer.
Section 24.3 Amendments by the Declarant. In addition to any other rights to amend
the Governing Documents in the CIC Act or this Declaration, the Declarant may at any time, upon
30 days advance notice to the Association, adopt, execute and record an amendment or
supplement to the Governing Documents to correct a mathematical mistake, an inconsistency, or a
scrivener’s error, all within five years after the recordation or adoption of the Governing Document
containing or creating the mistake, inconsistency, error or ambiguity. The Declarant may execute
and record any such amendment itself and need not otherwise comply with the requirements of this
Article 24.
ARTICLE 25 TERMINATION OF COMMUNITY
Section 25.1 Action Required. Except in the case of the taking of all Units by
condemnation or a judicial termination of the Community pursuant to the CIC Act, the Community
may be terminated only by (i) agreement of Owners of Units to which at least 80% of the Voting
Interest in the Association is allocated, and (ii) the consent of all the holders, including Declarant, of
any unexpired Development Rights or Special Declarant Rights.
Section 25.2 Limitation on Termination. The Community may not be terminated while
the Declarant has any Development Right or Special Declarant Right without the consent of the
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Declarant and any Mortgagee of record with a security interest in the Development Right or Special
Declarant Right or in any real estate subject thereto, excluding Mortgagees of Units owned by
Persons other than the Declarant.
Section 25.3 CIC Act Governs. The applicable provisions of the CIC Act relating to
termination of common interest communities, contained in Section 219 of the CIC Act, as it may be
amended, shall govern the termination of the Community, including, but not limited to, the
disposition of real estate in the Community and the distribution of proceeds from the sale of real
estate.
ARTICLE 26 NOTICES
Section 26.1 Form and Delivery of Notice. Notices to the Association, Board, any
Owner or any occupant of a Unit must be provided in such manner as provided in the CIC Act.
Notices to the Declarant must be provided in a Tangible Medium and must be transmitted by mail,
private carrier or personal delivery to the following address, or such other address as the Declarant
may specify in written notice to the Board or the Owners:
[Declarant Notice Address]
ARTICLE 27 ASSIGNMENT BY DECLARANT
The Declarant reserves the right to assign, transfer, sell, lease, or rent all or a portion of
the property then owned by it and reserves the right to assign all or any of its rights, duties and
obligations created under this Declaration.
ARTICLE 28 DISPUTE RESOLUTION
Section 28.1 Mediation and Binding Arbitration of Claims. Any and all claims, disputes
or controversies (whether under federal, state or local law) between or between or among any of
the Association, the Board or one or more Unit Owners or Authorized Users arising from or related
to (i) the Governing Documents, (ii) the Community, or (iii) the management or operation of the
Community or the Association, including, without limitation, any such claim of breach of contract,
negligence, breach of any duty under the Washington Uniform Common Interest Ownership Act or
breach of any alleged duty of good faith and fair dealing (collectively, “Claims”), shall be resolved
exclusively by binding, non-appeable, arbitration as set forth herein. Notwithstanding the foregoing,
the following matters shall not be Claims subject to mandatory mediation or arbitration under this
Article 28: (i) any action or remedy initiated by or against any Mortgagee, (ii) judicial Foreclosure
actions, (iii) non-judicial trustee’s sales, (iv) the appointment of a receiver during Foreclosure, or (v)
actions to collect or enforce any order, decision or award rendered by arbitration.
Section 28.2 Initiation of Arbitration; Mediation. If any party to a Claim determines that
the Claim cannot be resolved without intervention, then that party shall give notice in a Tangle
Medium to all other parties to the Claim demanding that the Claim be submitted to mediation and
arbitration pursuant to this Article 28. The parties shall attempt to resolve any Claims in good faith
through mediation at the outset of any arbitration proceeding. Any administrative fees of the
mediation service and fees of the mediator shall be borne equally by the parties to the mediation.
Each party shall pay its own attorneys’ fees and costs in connection with the mediation.
Section 28.3 Arbitrator’s Authority. This Article 28 shall be deemed to be a self-
executing arbitration agreement. Without limiting the authority of the arbitrator under the applicable
arbitration rules, the arbitrator shall have the authority to decide (i) the substance of the Claim and
any defenses and counterclaims relating thereto, (i) procedural or evidentiary issues, (ii) issues
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relating to discovery, (iii) issues relating to applicable law, and (iv) issues as to the interpretation or
the enforceability of this arbitration agreement, including, without limitation, its revocability,
unconscionability or voidability for any cause, the scope of arbitrable issues. The arbitrator shall
have the authority to award both damages and injunctive relief and to enforce the arbitration award.
The arbitrator shall not have the authority to award punitive or exemplary damages.
Section 28.4 Arbitration Fees. All administrative fees of the arbitration service and fees
of the arbitrator shall be borne equally by the parties to the arbitration, subject to the discretion of
the arbitrator to reallocate such fees in the interests of justice.
Section 28.5 Arbitration Service; Arbitrator. The arbitration shall be conducted by the
American Arbitration Association pursuant to its Construction Industry Arbitration Rules in effect as
of the date of the arbitration demand. The arbitrator shall possess sufficient knowledge in single
family plat communities as determined by the arbitration service.
Section 28.6 Arbitration Procedures and Hearing. All arbitration hearings and meetings
shall occur in the county in which the Community is located. The arbitrator shall apply the
substantive law of the State of Washington. The arbitrator may allow factual discovery of
information from the parties and witnesses to the extent reasonably relevant to claims and
damages at issue but shall protect the parties from irrelevant, burdensome or unreasonable
discovery. Prior to the arbitration hearing, the parties must agree upon a written statement of the
claim theories to be arbitrated. The arbitrator shall schedule the arbitration hearing for the earliest
possible time that is consistent with fairness to the parties and the complexity of the issues. A
party may request a stenographic record of the arbitration hearing. At the conclusion of the hearing
in making the award, the arbitrator shall state in writing the theories raised by the parties and on
which the award is based.
Section 28.7 Attorneys’ Fees and Costs. The arbitrator shall have the authority to
award actual reasonable attorneys’ fees and costs to the prevailing party. An attorneys’ fee award
shall be calculated based upon the actual reasonable hours spent multiplied by a reasonable
hourly rate given the experience and knowledge of the biller, without adjustment for risk, delay or
difficulty. An attorneys’ fee award must be reasonable under the Washington Rules of Professional
Conduct. For purposes of this section, a party is a prevailing party if it recovers the majority of the
relief it has claimed, or if it prevents another party from recovering the majority of the relief it has
claimed, including the enforcement of this Article 28. It may be appropriate in some cases to
determine the prevailing party on a claim by claim basis. In some cases there may be no prevailing
party.
Section 28.8 Finality. The decision and award of the arbitrator shall be final and binding
and may not be appealed to an arbitration panel or a court. The arbitrator’s decision and award
and may be entered as a judgment in any state or federal court of competent jurisdiction, and a
party may institute judicial proceedings to enforce the arbitration award.
Section 28.9 Applicability of Arbitration Acts. The parties expressly agree that the use,
operation, management, development, maintenance, repair and replacement of the Community
involve and concern interstate commerce and are governed by the provisions of the Federal
Arbitration Act (9 U.S.C. § 1, et seq.) and the Washington Uniform Arbitration Act (Chapter 7.04A
RCW) now in effect and as the same may from time to time be amended, to the exclusion of any
inconsistent state or local law, ordinance or judicial rule. To the extent that any state or local law,
ordinance or judicial rule shall be inconsistent with any provision of the rules of the arbitration
service under which the arbitration proceeding shall be conducted, the rules of the arbitration
service shall govern the conduct of the arbitration.
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Section 28.10 Applicability of Statutes of Limitations. No Claim can be asserted in
arbitration after the date such claim could be asserted in a judicial proceeding under applicable
statutes of limitation and repose.
Section 28.11 Enforceability. This Article 28 shall inure to the benefit of, and be
enforceable by, the Association, the Board, the Unit Owners and Authorized Users and their
respective members, managers, officers, directors, employees, agents, attorneys and insurers.
The initiation by any party who reserves the right to arbitrate of a judicial proceeding concerning
this arbitration agreement or any matter arbitrable hereunder, or the filing of a lis pendens, shall not
be deemed a waiver of the right to arbitrate or to enforce this arbitration agreement, and,
notwithstanding any provision of law to the contrary, shall not be asserted or accepted as a reason
to delay or refuse to participate in arbitration, or to refuse to enforce this arbitration agreement.
Section 28.12 Severability. If any provision of this Article 28 shall be determined by the
arbitrator or by any court to be unenforceable or to have been waived, the remaining provisions
shall be deemed to be severable therefrom and enforceable according to their terms.
Section 28.13 Waiver of Right to Judicial Proceedings. Each person subject to this
Declaration waives any right it may have to institute a judicial proceeding to decide a Claim, to
demand arbitration under chapter 64.55 of the Revised code of Washington, or to demand a trial de
novo after arbitration under chapter 64.55 of the Revised Code of Washington.
Section 28.14 Waiver of Right to Jury Trial. Each person subject to this Declaration
waives any right it may have to a jury trial under federal or state law as to any dispute between
them arising from or involving a Claim. In addition, if the arbitration provisions of this Article 28 are
deemed entirely or partially invalid, void or unenforceable by the arbitrator or a judge, such that the
parties are not required to resolve their disputes through binding arbitration for any reason, any and
all Claims shall be tried before a judge in a court of competent jurisdiction in the State of
Washington in the county where the Community is located, and not before a jury, and all parties
waive any right to a trial by jury.
Section 28.15 Survival. The provisions of this Article 28 shall survive the transfer by any
party of its interest or involvement in the Community or any Unit and the termination of this
Declaration.
ARTICLE 29 BOARD MEMBER REPORTING
Section 29.1 Financial Crimes Enforcement Network (“FinCEN”) Reporting. As of
January 2024, following adoption of the federal Corporate Transparency Act, beneficial owners of
entities including homeowners’ associations are required to file certain identifying information with
FinCEN, a bureau of the U.S. Department of the Treasury. This includes all current and
subsequently elected and appointed Board members of the Association. In order to be eligible to
serve on the Board, individuals who are current Board members or those elected or appointed to fill
a vacant position, shall obtain a FinCEN Identifier by registering with FinCEN online at
https://fincenid.fincen.gov/landing. The issued FinCEN Identifier shall be promptly provided to the
current Board along with all other necessary identifying information to allow the Board to update its
Beneficial Ownership Information Report (“BOI Report”). If for any reason, the FinCEN Identifier is
not timely provided or the Board is unable to register and update its BOI Report within the
deadlines established by FinCEN, then such individual shall not be eligible to serve on the Board
and will be removed if currently serving on the Board.
DECLARATION – TOWNS ON 12TH SIGNATURE PAGE
97594568.1 0203935-00001
DECLARANT’S SIGNATURE PAGE FOR DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
Date: __________________ [GRANTOR NAME]
By: [MANAGING MEMBER/MANAGER
NAME], [managing member/manager]
By:
Name:
Title:
SAMPLE NOTARY ACKNOWLEDGEMENT:
STATE OF WASHINGTON )
) ss.
COUNTY OF ____________ )
This record was acknowledged before me on by
as the of
.
DATED: ______________________.
(Print Name)
Notary Public for the State of Washington
My commission expires:
DECLARATION -TOWNS ON 12TH SCHEDULE A
97594568.1 0203935-00001
[DRAFT SUBJECT TO CHANGE]
SCHEDULE A
TOWNS ON 12TH
DESCRIPTION OF REAL ESTATE SUBJECT TO DECLARATION
[INSERT LEGAL DESCRIPTION OF COMMUNITY]
DECLARATION -TOWNS ON 12TH SCHEDULE B
97594568.1 0203935-00001
[DRAFT SUBJECT TO CHANGE]
SCHEDULE B
TOWNS ON 12TH
DESCRIPTION OF ADDITIONAL PROPERTY
[INSERT LEGAL DESCRIPTION OF PROPERTY THAT DECLARANT ANTICIPATES MAY BE
ADDED—EVEN IF DECLARANT DOES NOT OWN OR CONTROL THAT PROPERTY. IF NOT
SPECIFIC LEGAL DESCRIPTION OR PROPERTY EXISTS, BUT DECLARANT ANTICIPATES
THE POSSIBILITY OF WANTING TO ADD ADJACENT PROPERTY, THEN DECLARANT CAN
SIMPLY STATE: “Declarant reserves, as Development Right, the right to add additional real estate
to the Community, consistent with RCW 64.90.315 and the provisions of this Declaration.”]
DECLARATION -TOWNS ON 12TH SCHEDULE C
97594568.1 0203935-00001
[DRAFT SUBJECT TO CHANGE]
SCHEDULE C
TOWNS ON 12TH
DESCRIPTION OF WITHDRAWABLE PROPERTY
[INSERT LEGAL DESCRIPTION]
DECLARATION -TOWNS ON 12TH SCHEDULE D 97594568.1 0203935-00001 SCHEDULE D TOWNS ON 12TH MAINTENANCE RESPONSIBILITY CHART UNIT IMPROVEMENT: OWNED BY: MAINTAINED BY: PAID FOR BY: Home and Structures on Unit Unit Owner Unit Owner Unit Owner Yards, improvements and landscaping on Unit Unit Owner Unit Owner Unit Owner Portions of Utility Installations serving only one Home Unit Owner Unit Owner Unit Owner LIMITED COMMON ELEMENT OWNED BY: MAINTAINED BY: PAID FOR BY: COMMON ELEMENTS OWNED BY: MAINTAINED BY: PAID FOR BY: Tract [___] Association Association: Assessed to all Units Roads, Sidewalks, Trails, Open Spaces Association Association: Assessed to all Units Parking Spaces Association Association: Assessed to all Units Landscaping and Fences outside Units Association Association: Assessed to all Units Entry Monuments, Mail Kiosk Association Association: Assessed to all Units PUBLIC PROPERTY OWNED BY: MAINTAINED BY: PAID FOR BY: Public Street Landscaping Public Public Public Utility Installations Serving Multiple Homes Public Public Public Storm Water Detention and Drainage Public Public Public Parkway Trail Lighting Public Public Public