DECLARATION
(as amended by Supplemental Declaration dated March 13, 1979, at Article 1, Section 1.5)
THIS DECLARATION, made this 21st day of December A.D. 1977, by NEVERSINK ROAD, INC., a Pennsylvania Corporation (Developer).
THE BACKGROUND OF THIS DECLARATION IS AS FOLLOWS:
Developer is the owner of the real property described in Exhibit “A” of this Declaration and desires to create thereon a residential community with open spaces, and other common facilities for the benefit of the community.
Developer desires to provide for the preservation of values in the community and for the maintenance of said open spaces and other common facilities; and to this end, desires to subject the tract described in Exhibit A:, together with and additions as provided in Article II, to the covenants, restrictions, easements, charges and liens, hereinafter set forth, all of which are for the benefit of the tract and each owner. Developer has deemed it desirable to create an agency to which should be delegated all of the powers of administering the community properties and facilities and administering and enforcing the covenants and restrictions and collecting and disbursing the assessments and charges hereinafter created. Developer has incorporated under the laws of the State of Pennsylvania, as a non-profit corporation, THE LAUREL HOMEOWNERS ASSOCIATION, for the purpose of exercising these functions. Developer declares that the tract and any additions as may hereafter be made to the tract shall be held, transferred, sold, conveyed and occupied subject to the covenants, restrictions, easements, charges and liens (sometimes referred to as “covenants and restrictions”) hereinafter set forth.
ARTICLE I
Definitions
The following words when used in this Declaration or any Supplemental Declaration (unless the context shall prohibit) shall have the following meanings:
1.1 “Association” shall mean and refer to the Laurel Homeowners Association.
1.2 “Common Properties” shall mean those areas of land shown on any recorded subdivision plot of the tract and intended to be devoted to the common use and enjoyment of the owners of residential properties within the tract. Common properties shall also include sanitary sewers or laterals not owned by any sewer authority: storm sewer systems, debris basins, berms and swales, underground cables for electricity, telephone and television not owned by any utility or cable television company; and water mains and water laterals or other water pipes not owned by any utility.
1.3 “Exclusive Easement” shall mean that land contiguous to a lot as defined in Article 1.5, which area shall be for the exclusive use and enjoyment of the owner and shall be maintained by the owner.
1.4 “Existing Property” shall mean the real property described in Exhibit “A”.
1.5 “Lot” shall mean any plot of land shown upon any recorded subdivision map of the tract together with an exclusive easement to the lands contiguous to the said lot which area shall extend (a) distance of five (5) feet for the length of and from and along the front property line of the real estate, and (b) a distance of ten (10) feet for the length of, and from and along, the back or rear property line of the real estate; and plus (c) as to any side property line (that does not have a party wall constructed on it) a distance of ten (10) feet for the length of, and from and along, said side property line extended by five (5) feet from the front property line end thereof and extended by ten (10) feet from the back or rear property line thereof.
1.6 “Multifamily Structure” shall mean a building containing two or more living units under one roof.
1.7 “Owner” shall mean the record, whether one or more persons or entities, of the fee simple title to any lot situated upon the tract but shall not mean or refer to the mortgagee unless and until such mortgagee has acquired title pursuant to foreclosure or any proceeding in lieu of foreclosure.
1.8 “Member” shall mean and refer to all those owners who are members of the Association as provided in Article III, Section 1.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
AND ADDITIONS
2.1 Existing Property. The real property which is, and shall be, held, transferred, sold and conveyed, and occupied subject to this Declaration is located in Exeter Township, Berks County, Pennsylvania, and is more particularly described in Exhibit “A’.
2.2 Additions to Existing Property. Additional lands may become subject to this Declaration in the following manner:
(a) The Developer, its successors and assigns, shall have the right to bring within the scheme of this Declaration additional properties by gift, bequest, devise, sale or lease. The additions authorized under this and the succeeding subsection, shall be made by filing of record a Supplementary Declaration of Covenants and Restrictions with respect to the additional property which shall extend the scheme of the covenants and restrictions of this Declaration to such property.
(b) Other Additions. Upon approval in writing of the Association pursuant to a vote of its members as provided in its by-laws, the owner of any property who desires to add it to the scheme of this Declaration and to subject it to the jurisdiction of the Association, may file of record a Supplementary Declaration of Covenants and Restrictions, as described in 2.2(a) hereof.
(c) Mergers. Upon a merger or consolidation of the Association with another association as provided in its By-laws, the properties, rights and obligations of the Association may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law, be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer the covenants and restrictions established upon any other properties as one scheme. No such merger or consolidation, however, shall effect any revocation, change or addition to the covenants established by this Declaration within the existing property except as hereinafter provided.
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS
IN THE ASSOCIATION
3.1 Membership. Every person of entity who is a record owner of a fee or undivided fee interest in any lot which is subject by covenants of record to assessment by the Association shall be a member of the Association, provided that any such person or entity who holds such interest merely as a security for the performance of an obligation shall not be a member. Any member may delegate his rights of enjoyment (not his membership) in the common properties to the members of his family who reside upon the properties or to any of his tenants who reside thereon.
3.2 Voting Rights. The Association shall have two classes of voting membership:
Class A. Class A members shall be all those owners as defined in 3.1 with the exception of the Developer. Class A members shall be entitled to one vote for each lot in which they hold the interests required for membership by 3.3. When more than one persons holds such interest or interests in any lot all such persons shall be members, and the vote for such lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any lot.
Class B. Class B members shall be the Developer. The Class B member shall be entitled to three votes for each lot in which it holds the interest required for membership by 3.1 provided that the Class B membership shall cease and become converted to Class A membership when the total votes outstanding in the Class A membership equal the total votes outstanding in the Class B membership. After the conversion of Class B membership to Class A membership, the Class B member shall be deemed to be a Class A member entitled to one vote for each lot in which it holds the interests required for membership under 3.1.
ARTICLE IV
PROPERTY RIGHT IN THE TRACT
4.1 Members’ Easement of Enjoyment. Subject to the provisions of 4.3, every member shall have a right and easement of enjoyment in and to the common properties and such easement shall be appurtenant to and shall pass with the title to every lot which shall include the right of ingress, agress and regress over the roads and common properties.
4.2 Title to Common Properties. The Developer may retain the legal title to the Common Properties until such time as it has completed improvements thereon and until such time as, in the opinion of the Developer, the Association is able to maintain the same but, notwithstanding any provision herein, the Developer hereby covenants, for itself, its successors and assigns that it shall convey the common properties to the Association, on or before that time when its Class B membership is converted to Class A membership.
4.3 Extent of Member’s Easements. In addition to any affirmative rights stated elsewhere in this Declaration each owner shall have the following rights:
(a) The right to enter or authorize others to enter any lot for the purpose of oil and milk delivery, garbage and trash collections, and other normal service function connected with residences; and
(b) The right to enter any lot of authorize others to enter and repair and excavate any sanitary or storm sewer main or lateral, water mains or pipes, underground cable for electricity, telephone and television when said function is located in a lot.
4.4 Association Easements. The Developer and/or the Association or those authorized by it or them shall have the right to enter any lot for the purposes stated in Paragraph 4.3 when there is a function of the Association which arises which may require this right; and, in addition, to enter or cross any lot for the purpose of maintaining the common properties including but not limited to grass cutting, road parking space and walkway maintenance, and landscaping.
4.5 Limitations of Member’s Easements. The rights and easements of enjoyment created hereby shall be subject to the following:
(a) The right of the Association, as provided in its By-Laws, to suspend the enjoyment rights of any member for any period during which any assessment remains unpaid, and for any period not to exceed sixty (60) days for any infraction of its published rules and regulations: and
(b) The right of the Association to charge reasonable admission and other fees for the use of the common properties; and
(c) The right of the Association to dedicate or transfer all or any part of the common properties to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the members, provided that no such dedication or transfer shall be effective unless an instrument signed by the members entitled to cast two-thirds (2/3) or the votes of each class of membership has been recorded, agreeing to such dedication, transfer, purpose or condition, and unless written notice of the proposed agreement and action thereunder is sent to every member at least ninety (90) days in advance of any action taken.
(d) The right of the Association to promulgate rules and regulations effecting the use and enjoyment of the common properties and community properties.
4.6 Lease Approval. All tenancies must be in writing and the lease agreements must be submitted to the Association for approval prior to the commencement of the tenancy. All leases shall contain provisions to the effect that all tenants shall be subject to these Declarations of Covenants, the By-Laws and the Rules and Regulations of the Association.
ARTICLE V
COVENANTS FOR MAINTENANCE ASSESSMENTS
5.1 Creation of the Lien and Personal Obligation of Assessments. Each owner of any lot by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree to pay to the Association: (1) Annual assessments or charges in the manner specified upon presentment; (2) special assessments for capital improvement, such assessments to be fixed, established, and collected from time to time. The annual and special assessments, together with interest and costs of collection shall also be a charge on the land and shall be a continuing lien upon the property against which each assessment is made. Each such assessment, together with interest and cost of collection shall also be the personal obligation of the person who was the owner of the property at the time when the assessment fell due.
5.2 Purpose of Assessments. The Assessments levied by the Association shall be used exclusively for the purpose of promoting the recreation, health, and safety and welfare of the residents and in particular for the acquisition, improvement and maintenance of common properties, services, and facilities devoted to this purpose and related to the use and enjoyment of the common properties and of the homes situated upon the tract including, but not limited to the cost of the common properties, the payment of taxes and insurance thereon and repair, replacement, and additions to the common properties, and for the cost of the labor equipment, materials, management and supervision relating thereto.
5.3 Basis of Annual Assessments. The Board of Directors of the Association shall, after consideration of current maintenance costs and future needs of the Association fix the annual assessment from time to time. The Board of Directors shall have the power to differentiate the assessments from time to time upon standards set in their sole discretion.
5.4 Special Assessments for Capital Improvements. In addition to the annual assessments authorized by 5.3 hereof, the Association may levy in any assessment year a special assessment, applicable to that year only, for the purpose of defraying in whole or in part, the cost of any construction or reconstruction, unexpected repair or replacement of a described capital improvement upon the common properties, including the necessary fixtures and personal property related thereto, provided that any such assessment shall have the assent of two-thirds of the votes of each class of members who are voting in person or by proxy at a meeting duly called for this purpose, written notice of which shall be sent to all members at least thirty (30) days in advance and shall set forth the purpose of the meeting.
5.5 Date of Commencement of Annual Assessments: Due Dates. Other than the assessments specified in 5.3, the annual assessments provided for herein shall commence on the date fixed by the Board of Directors of the Association and payable as set forth by the Board of Directors.
5.6 Effect of Non-Payment of Assessment: The Personal Obligation of the Owner; The Lien; Remedies of Association. If the assessments are not paid on the date when due (being the dates specified in 5.7 hereof), then such assessment shall become delinquent and together with such interest thereon and cost of collection thereof as hereinafter provided, shall thereupon become a continuing lien on the property which shall bind such property in the hands of the then owner, his heirs, devisees, personal representatives and assigns. The personal obligations of the then owner to pay such assessment, however, shall remain his personal obligation for the statutory period and shall not pass to his successors in title unless expressly assumed by them.
If the assessment is not paid within thirty (30) days after the delinquency date, the assessment shall bear interest from the date of delinquency at the legally permissible rate, and the Association may bring an action at law against the Owner personally obligated to pay the same or to foreclose the lien against the property, and there shall be added to the amount of such assessment the costs of preparing and filing the complaint in such action, and in the event a judgment is obtained, such judgment shall include interest on the assessment and a reasonable attorney fee to be fixed by the court together with the costs of the action.
5.7 Subordination of the Lien to Certain Mortgages. The lien of the assessments provided for herein may be subordinated to the lien of any mortgage or mortgages now or hereafter placed upon the properties subject to assessment. Any such mortgagee may collect monthly and escrow the assessments set forth herein and may remit same monthly to the Association. In such event the subordination shall apply only to the assessments which have become due and payable prior to a sale or transfer of such property pursuant to a decree of foreclosure, or any other proceeding in lieu of foreclosure. Such sale or transfer shall not relieve such property from liability for any assessments thereafter becoming due, nor from the lien of any such subsequent assessment. However, the sale or transfer of any property which is subject to any mortgage placed or guaranteed by the Veterans Administration or United States Department of Housing and Urban Development, pursuant to a decree of foreclosure thereof, or deed to the Veterans Administration or United States Department of Housing and Urban Development, the mortgagee, in lieu of foreclosure, shall extinguish the lien of such charge imposed by the Association as to payments thereof which became due prior to such sale or transfer. No sale or transfer shall relieve such property from any liability from any assessment thereafter becoming due or from the lien thereof.
5.8 Exempt Property. The following property subject to this Declaration shall be exempted from the assessments, charge and lien created herein; (a) all properties to the extent of any easement or other interest therein dedicated and accepted by the local public authority and devoted to public use; (b) all common properties as defined in Article I, 1.1 hereof; (c) all properties exempted from taxation by the laws of the State of Pennsylvania, upon the terms and to the extent of such legal exemptions; and (d) all lots owned by the Developer.
Notwithstanding any provisions herein, except as to the Developer, no land or improvements devoted to dwelling use shall be exempt from said assessments, charges or liens.
ARTICLE VI
PARTY WALLS
6.1 General Rules of Law to Apply. Each wall which is built as part of the original construction of the homes upon the properties and placed on the dividing line between the lots shall constitute a party wall, and to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls and of liability for property damage due to negligent or willful acts or omissions shall apply thereto.
6.2 Sharing of Repair and Maintenance. The cost of reasonable repair and maintenance of a party wall shall be shared by the owners who make use of the wall in proportion to such use.
6.3 Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by fire or other casualty, any owner who has used the wall shall restore it, and if the other owners thereafter make use of the wall, they shall contribute to the cost of restoration thereof in proportion to such use without prejudice, however, to the right of any such owners to call for a larger contribution from the others under any rule of law regarding liability for negligent or willful acts of omissions.
6.4 Weatherproofing. Notwithstanding any other provision of this Article, an owner who by his negligent or willful act causes the party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements.
6.5 Right to Contribution Runs with Land. The right of any owner to contribution from any other owner under this Article shall be appurtenant to the land and shall pass to such owner’s successors in title.
6.6 Arbitration. In the event of any dispute arising concerning a party wall, or under the provisions of this Article, each party shall choose one arbitrator, and such arbitrators shall choose one additional arbitrator, and the decision of a majority of all the arbitrators shall be final and conclusive of the question involved.
ARTICLE VII
COVENANTS RESTRICTING USE OF
EXISTING PROPERTY, LOTS AND COMMON PROPERTIES
7.1 Alterations and Additions. No owner or any other person, firm, corporation or entity acting by, through or under an owner shall build or cause to be built any building, fence, wall or structure on any lot nor shall any exterior addition to or change or alteration thereof or exterior color scheme or the use (which shall be limited to residential use) be changed unless and until the plans and specifications showing the nature, kind, shape, height, materials, colors and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Directors of the Association, or by an architectural control committee composed of three (3) or more representatives appointed by the Board. In the event said Board of committee shall fail to approve or disapprove such plans and specifications within thirty (30) days after the same have been submitted to it, approval will not be required. It shall be the responsibility of the owner to obtain all necessary permits from Exeter Township to the end that such work does not violate any regulations or ordinance of said Township.
7.2 (a) At no time hereafter shall any owner or any person or persons acting under him use any object or thing which creates noise, smoke, odor, soot or vibrations in such manner as to disturb any other owner or lawful user of the grounds nor shall they have any signs, flags, banners, pennants, flashing lights, wires, clothes or any other unsightly object beyond the interior walls of the premises so that they are in any way visible from the outside, provided, however, that American Flags and other patriotic type flags will be permitted to be flown or hung on appropriate occasions and further provided that lights of a steady or flashing nature will be permitted to be used during the year-end holiday season;
7.2 (b) No owner shall erect or maintain a television antenna on any lot or building erected thereon;
7.2 (c) No sign or device of any kind shall be placed upon any of the Common Properties except those specifically approved by the Association in writing and the Association shall have the power to remove any such sign or device and to charge to the person or persons causing the erection of the same the cost thereof. In the event that the persons so responsible cannot be ascertained or the funds cannot be collected, the Association shall be permitted to pay the same from the funds in their possession.
7.2 (d) No owner shall allow nay pets or animals to roam at large beyond the confines of the exterior privacy court fence of the lot belonging to the Owner and in no event will more than one pet or animal of any kind or nature whatsoever be brought upon the premises of a Owner. No pets or animals whether under control or leash or otherwise shall at any time create a nuisance by the discharge of bodily waste on any part of the premises not owned in fee by the Owner.
7.3 Insurance. In the event of fire or any other catastrophe which damages the property of any Owner subject to this Declaration, said Owner shall restore the said property to or the same condition as when destroyed, using the same or substantially the same material, architectural style, position area, height and location and to provide lateral support pending construction. All such construction or reconstruction shall first be subject to the Association approval in writing and the Owner herein agrees that any proceeds from any insurance policies shall be held by such Owner as Trustee for that purpose and if, misapplied, Owner shall e treated as a Trustee ex maleficio. The Association may require Owners to submit annually proof of maintenance of fire and extended coverage insurance on properties subject to this Declaration, such insurance to be in an amount at least equal to 100% of the replacement value of such property.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Duration. The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Association, or the owner of any land subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of thirty (30) years from the date this Declaration is recorded. At which time said covenants shall be automatically extended for successive periods of ten (10) years unless on instrument signed by the then-owners of two-thirds of the lots has been recorded, agreeing to change said covenants and restrictions in whole or in part.
8.2 Notices. Any notice required to be sent to any member or owner under the provisions of this Declaration shall be deemed to have been properly sent when mailed, postpaid, to the last known address of the person who appears as member or owner on the records of the Association at the time of such mailing.
8.3 Enforcement. Enforcement of these covenants and restrictions shall be by any proceeding at law or in equity against any person or persons violating or attempting to violate any covenant or restriction, either to restrain violation or to recover damages, and against the land to enforce any lien created by those covenants, and failure by the Association or any owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
8.4 Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall be no wise affect any other provisions which shall remain in full force and effect.
IN WITNESS WHEREOF, NEVERSINK ROAD, INC., has caused this Declaration to be executed under seal the day and year first above written.
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