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DECLARATION OF
COVENANTS, EASEMENTS
FOR
HUNTER’S BROOK Prepared by, Record & Return to: Christopher Hopkins, Esq. K. Hovnanian at Hackettstown II, L.L.C. 110 Fieldcrest Avenue CN 7825 Edison, New Jersey 08818-7825
TABLE OF CONTENTS
FOR THE AMENDED DECLARATION OF
COVENANTS, EASEMENTS AND RESTRICTIONS
FOR HUNTER’S BROOK ARTICLE 1. DEFINITIONS ARTICLE 2. PROPERTY SUBJECT TO THIS DECLARATION SECTION 1. PROPERTY SUBJECT TO TI-US DECLARATION SECTION 2. VOTING RIGHTS SECTION 3. LOT OWNER’S RIGHT OF ENJOYMENT SECTION 4. TITLE TO COMMON PROPERTY ARTICLE 3. EASEMENTS SECTION 1. MEMBER’S AND ASSOCIATION’S EASEMENTS SECTION 2. DEVELOPER’S EASEMENTS SECTION 3, GOVERNMENTAL EASEMENTS SECTION 4. HOMEOWNER’S EASEMENTS SECTION 5. INSTITUTIONAL LENDER’S EASEMENTS SECTION 6. UTILITY AND CABLE COMMUNICATIONS EASEMENT SECTION 7. DRAINAGE EASEMENT SECTION 8. LANDSCAPE EASEMENT/CONSERVATION EASEMENTS/SHADE TREE EASEMENT SECTION 9. USE SECTION 10. OBSTRUCTION SECTION 11. BUILDING SECTION 12. BUILDING AND ZONING CODES SECTION 13. MAINTENANCE AND REPAIRS SECTION 14. INSURANCE SECTION 15. LAUNDRY SECTION 16. LIVESTOCK AND POULTRY SECTION 17. NUISANCE SECTION 18. SIGNS SECTION 19. COMMERCIAL VEHICLES SECTION 20. GARBAGE AND REFUSE DISPOSAL SECTION 2I. DIGGING SECTION 22. PARKING SECTION 23. UTILITIES SECTION 24. RENTAL SECTION 25. LAWN SECTION 26. USE OF WATER RETENTION AND DETENTION AREAS SECTION 27. SALE OF HOME SECTI0N 28. VIOLATIONS SECTION 29, WELLS SECTION 30. TEMPORARY STRUCTURES SECTION 31. DETACHED BUILDINGS SECTION 32. PAYMENT OF TAXES AND ASSESSMENTS SECTION 33. GARAGES SECTION 34. FENCING SECTION 35. ENFORCEMENT SECTION 36. DEVELOPMENTACTIVITY ARTICLE 4. ASSESSMENTS SECTION 1. CREATION OF THE LIEN SECTION 2. AMOUNT OF ANNUAL ASSESSMENTS SECTION 4. SPECIAL ASSESSMENT SECTION 5 NEW CAPITAL IMPROVEMENT ASSESSMENT SECTION 6 SUBORDINATION OF THE LIEN TO MORTGAGE SECTION 7 LIST OF ASSESSMENTS, NOTICE OF ASSESSMENT AND CERTIFICATE AS TO PAYMENT SECTION 8 ACCELERATION OF ASSESSMENT INSTALLMENTS AND OTHER REMEDIES OF THE ASSOCIATION SECTION 9 INTEREST AND COUNSEL FEES SECTION 10 CONTRIBUTION TO CAPITAL SECTION 11 CONVEYANCE SECTION 12 CONVEYANCE OF COMMON PROPERTY ARTICLE 5. ASSOCIATION DUTIES AND SERVICES SECTION 1. DUTIES OF THE ASSOCIATION SECTION 2. SERVICE WHICH MAY BE PERFORMED AT THE OPTION OF THE ASSOCIATION — PROCEDURE ARTICLE 6. SPECIAL DEVELOPER’S RIGHTS AND OBLIGATIONS SECTION 1. TRANSFER OF RIGHTS SECTION 2. LIABILITY OF TRANSFEROR SECTION 3. FORECLOSURE SECTION 4. LIABILITY OF TRANSFEREE SECTION 5. ACTIVITIES ARTICLE 7. DEVELOPER’S RIGHTS AND OBLIGATIONS ARTICLE 8. GENERAL PROVISIONS SECTION 1. DURATION SECTION 2. NOTICE SECTION 3. ENFORCEMENT SECTION 4. SEVERABILITY SECTIONS. AMENDMENTS SECTION 6. BYLAWs AND ADMINISTRATION; CHANGES IN DOCUMENTS; POWER OF ATTORNEY SECTION 7. WAIVER SECTION 8. RULE AGAINST PERPETUITIES SECTION 9. RATIFICATION, CONFIRMATION AND APPROVAL OF AGREEMENTS SECTION 10. PROTECTIVE PROVISIONS FOR THE BENEFIT OF INSTITUTIONAL LENDER SECTION 11. DAMAGE TO COMMON PROPERTY
DECLARATION OF
COVENANTS, EASEMENTS AND RESTRICTIONS
FOR
HUNTER’S BROOK THIS DECLARATION OF COVENANTS, EASEMENTS AND RESTRICTIONS FOR HUNTER’S BROOK (the “Declaration”), made this 31st day of October, 2006 by K. HOVNANIAN AT HACKETTSTOWN II, L.L.C., a limited liability company of the State of New Jersey, with offices located at 110 Fieldcrest Avenue, CN-7825, Edison, New Jersey 08818-7825 (the “Developer”). WITNESSETH: WHEREAS, the Developer acquired the fee simple title by Deed dated recorded in the Warren County Clerk’s office on - in Deed Book at Page to that certain piece of property located in the Town, Warren County, New Jersey, and as shown on the map entitled “Final Plat — Major Subdivision — Hunter’s Brook — Lots 1 & 82.02 in Block 119, Town of Hackettstown, Warren County, New Jersey,” prepared by Gladstone Design Inc., Gladstone, New Jersey dated September 20, 2002 and as revised through July 18, 2003 to be filed in the Warren County Clerk’s office and annexed hereto as Exhibit A (“Final Map”); and WHEREAS, the Developer proposes to develop a residential community to be known as Hunter’s Brook and intended to ultimately contain up to One Hundred and One (101) lots with single family homes (“Homes”) and other improvements for the benefit of the Community and its residents as shown more particularly on the Final Map as herein defined (the “Community”); and WHEREAS, the aforesaid Property consists of One Hundred and One (101) residential building lots (the “Lots”), four (4) lots to be owned by the Association (as hereafter defined); and WHEREAS, the Property to be subjected to this Declaration is shown on the Filed Map attached hereto as Exhibit A; and WHEREAS, the Developer intends to construct and complete the Common Property, as defined hereinafter, which Common Property includes the detention basin; landscaping and appurtenances, all as depicted as Common Property on the Filed Map attached hereto as Exhibit A; and WHEREAS, the Developer desires to file this Declaration in the Warren County Clerk’s Office (the “Clerk’s Office”) so as to impose upon the Property a uniform scheme of covenants, conditions, restrictions, easements, assessments, obligations, charges and liens, for the purpose of ensuring the protection and value of the Homes to be constructed in the Community and for the further purpose of providing for the ownership, operation, maintenance, repair and replacement of the improvements to be constructed by Developer on the Common Property; and WHEREAS, the Developer has deemed it advisable to create a home owners association to which shall be delegated and assigned the power and authority (i) to own, maintain and operate the Common Property; (ii) to administer and enforce the covenants and restrictions governing the Community; (iii) to collect and disburse all assessments and charges deemed necessary for such maintenance, administration and enforcement; and (iv) to perform such other services as may be deemed desirable to benefit its residents all as hereinafter provided; and WHEREAS, the Developer has incorporated under the laws of the State of New Jersey, a non-profit corporation known as the Hunter’s Brook Home Owners Association, Inc. (the “Association”) as the agency to perform various functions as set forth in this Declaration and the Bylaws of the Association; and WHEREAS, the Developer intends to construct the detention basin, and certain other improvements to be located on the Common Property and, when deemed appropriate by Developer, to convey title to such Common Property to the Association; NOW, THEREFORE, the Developer declares that the Property, as defined hereinafter, is and shall be held, transferred, sold, conveyed, leased, occupied and used subject to the covenants, restrictions, conditions, easements, charges, assessments, obligations and liens hereinafter set forth in this Declaration. ARTICLE 1. DEFINITIONS “Association”: the Hunter’s Brook Home Owners Association, Inc., a New Jersey not-for-profit corporation, formed to enforce the restrictions, covenants and conditions regarding the construction, use and occupancy of Homes in the Community and to maintain, repair, own and replace the Common Property as provided in this Declaration and the Bylaws. “Association Dues” (also “Dues” or “Assessments”): all assessments assessed by the Association against the Owners. “Beneficial Member”: every Owner of a Home in the Community other than Developer. “Board”: the Board of Trustees of the Association. Any reference herein or in the Certificate of Incorporation, Bylaws or Rules and Regulations to any power, duty, right of approval or any other right of the Association shall be deemed to refer to the Board and not the membership of the Association, unless the context expressly indicates to the contrary. “Builder”: Developer or any other builder who is the developer of a Section of the Community exclusive of the Common Property. It is contemplated that the Developer will be a Builder of Sections in the Community. “Bylaws”: the Bylaws of the Association with all future amendments or supplements thereto, which Bylaws are attached hereto as Exhibit B. “Certificate of Incorporation”: shall mean and refer to the Certificate of Incorporation of the Association. “Common Expenses”: all those expenses (including reserves) incurred or assessed by the Association, or its respective directors, officers, agents or employees, in the lawful performance of their respective duties or powers. Common Expenses shall not include expenses incurred by Developer in the maintenance of lands not yet made part of the Property. “Common Property”: all the real property, improvements, detention basins, Other drainage improvements and facilities of the Community owned and operated by the Association, or as may be added to by way of amendment to this Declaration. “Community”: Hunter’s Brook, intended to be developed on the Property (as shown on the Filed Map), and as may be developed on the Additional Lands. “County”: the County of Warren in the State of New Jersey. “Declaration”: this Declaration of Covenants, Easements and Restrictions for Hunters Brook, including the covenants, conditions, and restrictions and all other provisions set forth herein, as may be amended from time to time. “Developer”: K. Hovnanian at Hackettstown II, L.L.C4 a New Jersey limited liability company, its successors and assigns; provided, however, that no successor or assignee of the Developer shall have any rights or obligations of the Developer hereunder unless such rights and obligations are specifically set forth by Developer. “Fair Housing Act”: the Fair Housing Act Amendments Act of 1988, P.L. 100-430 (September 13, 1988) and amendments thereto including, but not limited to the Housing for Older Persons Act of 1995, HR 660 (signed December 1995); regulations adopted by the U.S. Dept. of HUD implementing the Housing for Older Persons Act, found at 24 CFR Part 100, and any amendments thereto; and any judicial or administrative interpretations or decisions affecting said legislation. “Federal Mortgage Agencies”: those federal agencies who have or may come to have an interest in the Community, including, but not limited to, the Federal Housing Administration, the Veterans Administration, the Federal National Mortgage Association, and the Federal Home Loan Mortgage Corporation, or successors to their interests. “First Mortgagee”: an Institutional Lender who holds the mortgage on a Lot and Home and who has notified the Association of its holdings. “Founding Documents”: the Certificate of Incorporation, the Bylaws, and this Declaration, all as initially drawn by the Developer and filed or recorded with the Clerk, as the case may be, and all as may be duly amended from time to time. “Governing Documents”: the Founding Documents and the Rules and Regulations, as such may be amended from time to time. “Home”: any individual residential dwelling unit located on a fee simple Lot; the defined term Home includes the Lot and the dwelling. “Institutional Lender”: any commercial or savings bank, mortgage banker, savings and loan association, trust company, insurance company, governmental agency, or other financial institution or pension fund, any other lender regularly engaged in financing the purchase, construction or improvement of real estate, or any assignee of loans made by such a lender, or any individual who loans money for home purchase or any combination of the foregoing entities. “Lease”: any agreement for the leasing or rental of any Home in the Community, including any sublease. “Lot”: any plot of land shown upon any recorded subdivision map of a Section intended for development as a Home. “Member” or “Members”: individuals permanently residing in the Community whether as tenants in Homes or as Owners. If a tenant enjoys rights as a Member, the Owner of said Home may not exercise said rights, except for voting rights. “Owner” (also “Lot Owner” or “Homeowner”): those persons or entities in whom record title to any Lot or Home is vested as shown in the records of the Clerk’s Office. It shall include the Developer unless the context expressly indicates otherwise, but, despite any applicable theory of mortgage law, it shall not mean or refer to any mortgagee unless and until such mortgagee has acquired title to any such Lot or Home pursuant to foreclosure proceedings or any proceeding in lieu of foreclosure. The term “Owner” shall not refer to any lessee or tenant of an Owner. “Permitted Mortgage”: any first mortgage lien encumbering a Home held by a bank, mortgage banker, trust company, insurance company, savings and loan association, pension fund, governmental agency, or other Institutional Lender or which is a purchase money mortgage held by the Developer or by the seller of a Home. “Property”: all those lands described in the Deed dated recorded in the Warren County Clerk’s Office on in Deed Book at Page to that certain piece of property located in the Town of Hackettstown, Warren County, New Jersey and as shown on the map entitled “Final Plat — Major Subdivision — Hunter’s Brook Lots 1 and 82.02 in Block 119, Town of Hackettstown, Warren County, New Jersey,” prepared by Gladstone Design Inc., dated September 20, 2002 and as revised through May 5, 2006 and to be filed in the Warren County Clerk’s office. “Rules and Regulations”: the rules and regulations duly adopted by the Association with all future amendments and supplements thereto. “Sections”: the portions of the Property into which the Community shall be divided for the purposes of development, which may be exclusive of the Common Property, but inclusive of designated Lots, sewer, water, electric, gas and cable television transmission facilities, sidewalks, walkways, curbing, drainage facilities, landscaping, street signs, directional signs and monumentation. “Town”: the Town of Hackettstown in Warren County, New Jersey. ARTICLE 2.
PROPERTY SUBJECT TO THIS DECLARATION Section 1. Property Subject to This Declaration The Property, including every Home, Lot and all Common Property contained therein, is now or hereafter expressly subjected to this Declaration and is and shall be held, transferred, sold, conveyed, leased and occupied subject to this Declaration and all amendments or supplements hereto. Section 2. Voting Rights The voting and participation rights of Members in the affairs of the Association shall be subject to the Governing Documents, which are incorporated herein by reference as if they were fully set forth at length herein. Section 3. Lot Owner’s Right of Enjoyment Subject to the provisions of the Governing Documents, every Owner shall have a right and easement of enjoyment in and to the Common Property and such easement shall be appurtenant to and shall pass with the title to every Home. Section 4. Title to Common Property Developer may retain the legal title to the whole or portions of the Common Property until such time as it has substantially completed initial improvements thereon (if any) and until such time as, in the sole judgment of the Developer, the Association is able to maintain the Common Property. Developer shall convey its entire interest in all completed portions of the Common Property to the Association for One Dollar ($1.00) in consideration and free and clear of all liens and encumbrances (except for easements and standard title policy exceptions) and the Association shall be obligated to accept conveyance of the Common Property. Despite the foregoing, Developer reserves the right to convey any portions of the Common Property at an earlier date and the Association shall be obligated to accept such conveyance(s) and shall properly maintain the Common Property in accordance with this Declaration and the Bylaws. Developer further reserves the right to enter upon the Common Property at any time to do the final roadway paving or other improvements or other work that Developer, in its sole discretion, deems necessary or desirable. The beneficial use of various portions of the Common Property will be made available to the Association and its Members within thirty (30) days after completion of each such portion and the cost for maintenance, operation and administration of the Common Property, including insurance premiums and the proportionate allocation of real estate for taxes (“Maintenance Costs”) shall thereupon become a Common Expense of the Association, despite legal title remaining in Developer.
ARTICLE 3. EASEMENTS Section 1.
Member’s and Association’s Easements The Property and rights and easements of enjoyment created hereby shall be subject to the following easements: 3.1.1. Every Owner shall have a perpetual and non-exclusive easement in, over and through the Common Property and to use the walks and other facilities on the Common Property, subject to the right of the Association as provided in the Bylaws to promulgate Rules and Regulations for the use and the enjoyment of the Common Property and voting rights of any Owner for any period during which any assessment, interest or penalty charge (herein sometimes collectively referred to as “Association Dues”) remains unpaid, or for any period during. which any infraction of the published Rules and Regulations continues, it being understood that any suspension for either nonpayment of any Association dues or a breach of the Rules and Regulations of the Association shall not constitute a waiver or discharge of the Member’s obligation to pay the Association Dues. When any Home is not occupied by the Owner, such easement shall be solely for the benefit of the permanent occupants thereof and their guests, and not the Owner or his/her invitees; and 3.1.2. The right of the Association to adopt Rules and Regulations and to charge admission and other fees for the use of the Common Property; and 3.1.3. The right of the Association to dedicate or transfer all or any part of the Common Property to any municipal, County, State, Federal or other public agency, authority or utility, for such purposes and subject to such conditions as may be agreed upon by the Members; however, no such dedication, transfer, or determination as to the purposes of or as to the conditions of such dedication or transfer shall become effective unless such dedication, transfer and determination as to purpose and conditions thereof shall be authorized by the vote in person or by proxy of two-thirds (2/3) of the aggregate votes held by all Members of the Association in good standing. Written notice of the proposed resolution authorizing such action shall be sent to every member at least sixty (60) days in advance of the scheduled meeting at which such action is to be taken. In the case of dedication or transfer to the Town or County, acceptance of such dedication shall be by ordinance or resolution duly adopted by the governing body of the Town or County. A true copy of such resolution together with a certificate showing the result of the vote taken thereon shall be made and acknowledged by the President or Vice President and Secretary or Assistant Secretary of the Association, and such certificate shall be annexed to any instrument of dedication or transfer affecting the Common Property, prior to the recording thereof in the Clerk’s Office. Such certificate shell be conclusive evidence of authorization by the membership. 3.1.4 The right of the Association to maintain landscaping, including, without limitation, grass, driveways, sidewalks and walkways on the Lots pursuant to this Declaration. Section 2.
Developer’s Easements Developer, its successors and assigns, shall have the following easements: 3.2.1. A blanket and non-exclusive easement in, upon, “over, under, across and through the Property (including, without limitation, the Homes and Lots) for the purpose of installation, maintenance, repair and replacement of (i) all sewer, water, power and telephone pipes, lines, mains, gas conduits, waters, production well(s) for irrigation purposes, poles, transformers, master television antennas or cable television facilities and any and all other utility or cable communications systems serving the Property and the. Community; and (ii) any other improvements thereto, including the right of ingress and egress, which easements shall be for the benefit of (a) Developer for so long as Developer, its successors and assigns, shall be engaged in the construction, development and sale of Homes in the Community; and (b) the Association on a perpetual basis in connection with the proper discharge of its responsibilities with respect to the Homes or Common Property. Should any governmental agency or utility or cable communications company furnishing one of the foregoing services hereafter request a specific easement by a separate recordable instrument in connection with the furnishing of any such service, the Board of Trustees of the Association shall have the right to grant such easement, without payment of any consideration and without a prior vote of the members, provided that it does not adversely materially impair the rights of any Homeowner. Section 3.
Governmental Easements There shall be a blanket, perpetual and non-exclusive easement of unobstructed ingress and egress in, upon, over, across and through the Property in favor of the Town, the County, appropriate governmental entities and the Association, the respective officers, agents and employees of the Town, County, appropriate governmental entities. and Association and for all policemen, firemen and first aid and ambulance personnel in the proper performance of their respective duties. In the event that the Association shall fail to undertake its responsibility to maintain the Common Property as set forth herein, the Town may serve written notice upon the Association and upon the Lot Owners setting forth the manner in which the Association has failed to maintain the Common Property. Said notice shall include a demand that the deficiencies be cured within thirty-five (35) days thereof, and will state the date and place of a hearing thereon which will be held within fifteen (15) days of the notice. At such hearing, the designated body or officer of the Town may modify the terms of the original notice as to deficiencies and may give a reasonable extension of time not to exceed sixty five (65) days within which the deficiencies shall be cured. If the deficiency set forth in the original notice or in the modification thereof shall not be cured within said thirty five (35) days or a reasonable extension thereof, the Town, in order to preserve and maintain the Common Property for a period of one (1) year, may undertake the requisite maintenance of the Common Property. Before the expiration of said year, the Town shall upon its initiative or upon the request of the Association, call a public hearing upon fifteen (15) days written notice to the Association and the Lot Owners to be held by the Town at which hearing the Association and Lot Owners shall show cause why such maintenance by the Town shall not, at the election of the Town, continue for a succeeding year. In the event the Town determines that the Association is not ready and able to maintain the Common Property, in a reasonable condition, the Town may, in its discretion, continue to maintain the Common Property during the next succeeding year subject to a similar hearing and determination in each year thereafter. The decision of the Town in any such case shall constitute a final administrative decision subject to judicial review. In the event the Town exercises its right hereunder, it may assess the Lot Owners their percentage contribution for reimbursement of any expenses the Town may have incurred under such circumstances. Such assessment shall become a lien against the Lots and may be enforced and collected as in the case of a lien for taxes on real estate. The Association and individual Lot Owners, their successors and assigns do hereby release and hold harmless the Town, its agents, servants, employees or contractors from any liability of any kind or nature which may arise out of the Town’s enforcement of its rights pursuant to this Declaration of Covenants, Restrictions, Easements, Charges and Liens including but not limited to the performance of maintenance or repair work by the Town, its agents, servants, employees or contractors. An easement is hereby granted to the Town and its assigns over and across Lot 1.16, Block 119 for the purpose of constructing and installing a path for hiking, walking and/or jogging at a location to be determined in the future and for purpose of public access thereto. Section 4.
Homeowner’s Easements Every Homeowner shall have the following easements: 3.4.1. A perpetual and non-exclusive easement to use and maintain all pipes, wires, ducts, cables, conduits, public utility lines and other common facilities located on any portion of the Property which serves the Home of an Owner or Owners. 3.4.2. A blanket perpetual and non-exclusive easement of unobstructed ingress and egress in, upon, over, across, and through the Common Property to the Town, the Association, their respective officers, agents, and employees and all policemen, firemen, and ambulance personnel in the proper performance of their respective duties and for the purposes set forth in this Declaration. Section 5.
Institutional Lender’s Easements Any Institutional Lender (and its officers, agents, and employees) which is the holder of a mortgage which encumbers any Home shall have a blanket, perpetual and non-exclusive easement to enter the Property or any part thereof to inspect the condition and repair of such Home. This right shall be exercised only during reasonable daylight hours, and then, whenever practicable, only after advance notice to and with the permission of the Association. Section 6.
Utility and Cable Communications Easement There shall be a blanket, perpetual and non-exclusive easement of unobstructed ingress and egress in, upon, over, across and through the Property in favor of any utility company, cable communications company or entity furnishing utility service to the Property including, but not limited to, meter or cable television, and electronic security. The Town, its agencies, agents and employees, shall have a blanket, perpetual and non- exclusive easement to enter the Property, or any part thereof, in order to read meters, service or repair utility lines and equipment and do everything and anything else necessary in order to properly maintain and furnish utility or cable communication service to the Property and Homes. Section 7.
Drainage Easement The Town, its agencies, agents and employees shall have a blanket, perpetual and non-exclusive easement to enter the Property or any part thereof in order to construct, install, maintain, repair, restore or replace all underground pipes, lines and appurtenances thereto designed and installed to accept and transmit surface and storm water consistent with and pursuant to a certain Grant of Drainage Easement to the Town. Developer and Homeowners, their successors and assigns, shall have a blanket, perpetual and non-exclusive easement in common in, upon, over, under, across and through the Property for surface water runoff and drainage caused by natural forces and elements, grading, and/or the improvements located upon the Property. No individual Homeowner shall directly or indirectly interfere with or alter the drainage and runoff patterns and systems within the Property, including any such facilities and patterns on any individual Lot. Additionally, the Association has a drainage and maintenance easement for outfall structures of the Association’s detention basins. Section 8.
Landscape Easement/Conservation Easements/Shade Tree Easement/ Sight
Easements 3.8.1 The Association, its agents and employees shall have a blanket perpetual and non-exclusive easement upon, over, under, across and through the Property for the purpose of maintaining all landscaping including, without limitation, all grass, sidewalks, walkways on the lots and/or common areas. 3.8.2 There shall be a non-exclusive Conservation Easement in favor of the Association in and upon the lands situate, lying and being in the Town, County of Warren and State of New Jersey and depicted on Exhibits C through K attached to and made a part of this Declaration (said land being referred to herein as the “Easement Areas”). For the purpose of insuring that those portions of the Easement Areas will remain in their natural and open state in perpetuity and, without limiting the generality of the foregoing, the Developer, for themselves, their heirs, successors and assigns hereby specifically agree: a. There shall be no construction of buildings, fences, pavements, playgrounds, sports field, tree houses or other structures; b. There shall be no live tree cutting, pruning or trimming, except as expressly authorized by the Town Environmental Officer; c. There shall be no selective clearing or trimming or grubbing of underbrush or other natural vegetation, except as expressly authorized by the Town Environmental Officer; d. There shall be no construction or creation of bikeways, pedestrian paths or walkways except for a pedestrian path that may be constructed by the Town within the Easement Area; e. There shall be no dumping or placing of soil or other substance or material as landfill, and no dumping or placing of trash, waste or unsightly or offensive materials on any portion of the property; f. There shall be no composting of materials; and g. There shall be no grading, removal, excavation or dredging of top soil, sand, gravel, loam, rock or other materials from the property. The Easement Areas to which the Conservation Easements apply include portions of the Lots and Blocks, as more particularly described and graphically depicted on a certain set of plans entitled “Final Major Subdivision Plat, Hunters Brook, Town, Warren County, New Jersey” prepared by Gladstone Design, Inc., Gladstone, New Jersey dated September 20, 2002 and as revised through July 18, 2003 and which are shown on Exhibits C through K, as follows: Exhibit C: Block 119, a portion of Lots 1.49 through 1.53 inclusive Exhibit D: Block 119, a portion of Lots 1.29 through 1.43 inclusive Block 119, a portion of Lots 1.45 and 1.46 Exhibit E: Block 119, a portion of Lots 1.54 and 1.55 Exhibit F: Block 119, a portion of Lots 1.02 and 1.03 Exhibit G: Block 119, a portion of Lots 1.23 and 1.24 Block 119, a portion of Lots 1.26 through 1.28 inclusive Exhibit H: Block 119.04, a portion of Lots 1 through 5 inclusive Exhibit I: Block 119, a portion of Lots 1.17 through 1.22 Exhibit J: Block 119, a portion of Lot 1.01 through 1.03 inclusive Exhibit K: Block 119, a portion of Lot 1.16 The Association shall maintain such easements in accordance with the manner in which such easements are intended and is hereby afforded the following rights and privileges: (i) The right of access to the property for the purpose of inspection by municipal officials designated by the Town to determine compliance herewith; and (ii) The right to promulgate enforcement provisions for repair and replacement of any features within the Easement Area due to prohibited activities to be corrected by the Association. 3.8.3 •The Town, its agencies, agents and employees shall have a blanket perpetual and non-exclusive easement to enter the Property or any part thereof in order to install, maintain, remove, restore and replace within designated Shade Tree Easement Areas any trees or other plant life, consistent with and pursuant to a certain Grant of Shade Tree Easement given to the Town. 3.8.4 The Town, its agencies, agents and employees shall have a blanket perpetual and non-exclusive easement to enter the Property or any part thereof in order to keep all brush, hedges and other plant life, growing upon or within designated Sight Easement Areas to a prescribed height of not more than two and one half (2 ½ ) feet above the adjacent road elevation when necessary for the preservation of public safety or for the purpose of establishing clear sight or view for operations of vehicles or pedestrians traversing the abutting streets, roads or highways consistent with and pursuant to a certain Grant of Sight Easement given to the Town. To the extent any landscape easements, conservation easements, shade tree and/or sight easements exist on the Common Property and/or the Lots, the Association shall maintain such easements in accordance with the manner in which such easements are intended unless the Town assumes such responsibilities. Section 9.
Use No Home or Lot, except those owned by Developer or a Builder or the Association and/or used by Developer or a Builder for sales, administration, construction, maintenance or similar purposes, shall be used for any purpose other than as a private residence. Further, the Common Property shall not be utilized for any residential or commercial purpose not expressly permitted by this Declaration. Section 10.
Obstruction There shall be no obstruction of access to any Common Property. Section II.
Building No Homeowner or occupant shall build, plant, or maintain any matter or thing upon, in, over or under the Common Property without the prior written consent of the Association and subject to the Rules and Regulations of the Association. The Homeowner is prohibited from making any changes to the Common Property including, without limitation, adding or removing any plant material, stones, mulch, etc. This restriction shall not be applicable to construction by Developer or a Builder. Section 12.
Building and Zoning Codes All construction on Lots shall be undertaken in accordance with any and all applicable building and zoning codes and ordinances. Section 13.
Maintenance and Repairs Lot owners shall be responsible for maintenance, repair and decoration of their Lot, Home and all improvements on the Lot. Section 14.
Insurance Nothing shall be done or kept in or on any Lot or in any Home on a Lot which will increase the rate of insurance maintained by other Owners, nor result in the cancellation of such insurance. Section 15.
Laundry No laundry, wash, bedding or similar item shall be dried or hung on any Lot. Section 16.
Livestock and Poultry No animals, livestock, pigeons or poultry of any kind shall be raised, bred or kept on any Lot or in any Home, except that dogs, cats and other common household pets (no exotic pets) may be kept, provided that they are not kept, bred or maintained for any commercial purpose. Animals shall not be housed outside of any Home. Section 17.
Nuisance No noxious, hazardous, or offensive activities shall be carried on, in or upon the Property or in any Home nor shall anything be done therein either willfully or negligently which may be or become an annoyance or nuisance to the other residents or which interferes with the peaceful possession and proper use of the Property by the other Homeowners. All valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction over the Property shall be observed. Section 18.
Signs Other than signs advertising the Lot as being for sale or rent, no signs of any nature whatsoever shall be erected or displayed upon the Lots. Excepted from this provision are signs used by the Declarant or any Developer during the construction and sales period, and signs erected by Declarant or any Developer such as entrance signs, directional signs, etc. Section 19.
Commercial Vehicles No vehicle of a size larger than a family van and no mobile home, recreation vehicle, boat, any type of commercial vehicle larger than can fit in the garage on the property, or the like, shall be parked on any Lot or on the street in front of any Lot except for those vehicles temporarily on a Lot or on the street for the purpose of constructing or repairing any building or improvement, except if such vehicle is parked wholly within the garage Section 20.
Garbage and Refuse Disposal No Lot shall be used or maintained as a dumping ground for rubbish or any type of waste, including garden waste. Trash, garbage or other waste shall not be kept except in sanitary containers. All equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition. Section 21.
Digging There shall be no digging or earth removal or re-grading operations of any nature whatsoever on any Property without first obtaining permission from the Town. This section is intended as a protection against inadvertent disruption of underground services and creation of a nuisance to adjoining Homeowners. Section 22.
Parking No Owner shall park, store or keep any vehicle, except wholly within the driveway or garage located upon his Lot. All inoperable vehicles shall be parked wholly within the garage. Section 23.
Utilities All electrical, gas, telephone, and television service and other utilities shall be supplied by underground service and no poles or above ground wires shall be permitted. No radio or television aerials, antennae, tower or transmitting or receiving aerial, antennae, tower or support thereof shall be erected, installed, placed or maintained upon any portion of any Lot which is closer to the street than the rear wall (or side wall if fronting the street) of the residential structure located on such Lot. Section 24.
Rental No Home shall be rented by the Homeowner(s) thereof or otherwise be utilized for transient or hotel purposes, which shall be defined as “(i) rental for any period less than 180 days; or (ii) any rental if the occupants of the Home are provided customary hotel services, such as room service for food and beverages, maid service, furnishing laundry and linen, and bellboy service”, provided,, however, that any Homeowner including Developer or any Builder may rent a Home for a period of less than 180 days to a contract purchaser, but in no event for transient or motel purposes. No Homeowner may lease less than an entire Home. The Developer and any successor Developer, however, shall have the right to rent any unsold homes without regard to the limitation aforesaid. Section 25.
Lawn All Lots must have grassed front lawns and grassed side and rear yards. No gravel or similar type ground covers are permitted. No weeds, vegetation, rubbish, debris, garbage, waste materials shall be placed or permitted to accumulate on any Lot which would be unsanitary, unsightly or offensive. Landscaping is positioned by the Developer in a number of locations according to the approved Landscaping Plan, not randomly, and is to be preserved and maintained by the Homeowner so as to provide breaks and screens between individual lots shown on the Landscaping Plan. Section 26.
Use of Water Retention and Detention Areas Swimming, bathing, boating and other use of the water retention and detention areas in the Community shall be prohibited except when in accordance with Rules and Regulations adopted by the Association. No docks, bulkheads or other structures shall be erected in the water retention and detention areas in the Community without the prior written approval of the Town. Section 27.
Sale of Home Each Homeowner shall give the Secretary of the Association timely notice of the Homeowner’s intent to list the Home for sale. Upon closing of title, such selling Homeowner shall immediately notify the Secretary of the Association of the name and address of the new Homeowner. Section 28.
Violations The Board shall have the power to make such rules and regulations as may be necessary to carry out the intent of these restrictions and shall have the right to bring lawsuits to enforce the Rules and Regulations promulgated by it. The Board shall further have the right to levy fines for violation of any such Rules and Regulations, which continue to be violated for more than fourteen (14) days, provided that the fine for a single violation may not, under any circumstances, exceed $100.00 for a first violation or $250.00 for any subsequent violation. Each day a violation continues after notice shall be considered a separate violation. Any fine so levied is to be considered as an assessment to be levied against the particular Homeowner involved, and collection may be enforced by the Board in the same manner as the Board is entitled to enforce collection of other assessments. Fines may be levied against a Homeowner’s tenant, and the Homeowner shall be jointly and severally liable with his/her tenant for the payment of same. In the event the Board institutes legal action for collection of any fines, the defendant(s) shall be responsible for payment of reasonable attorneys’ fees of the Association plus interest and costs of suit. Section 29.
Wells No individual or entity shall have the right to drill a well on the Property for any purpose other than those wells, if any, constructed by Developer in conjunction with the development of the Property. The Developer shall have the right, but not the obligation, to install well(s) on Common Property for irrigation purposes. Section 30.
Temporary Structures No structure of a temporary character including, without limiting the generality thereof, trailer, tent, shack, garage, barn, or other outbuilding shall be used on any Lot at any time as a residence. Section 31.
Detached Buildings No detached accessory buildings, including, but not limited to, detached garages and storage buildings, decks and fencing shall be erected, placed or constructed upon any Lot unless prior approval of the Town has been received and then only if such structures are within the rear of the lot. Section 32.
Payment of Taxes and Assessments All property taxes, special assessments and other charges imposed by any taxing authority on the Common Property shall be paid by Homeowners either in accordance with this Declaration or as otherwise provided by law. Section 33.
Garages No garage shall be converted or renovated for any residential living purpose. All garages shall be kept usable as a garage for passenger motor vehicles or other permitted vehicles. Section 34.
Fencing No fence, wall or other obstruction shall be allowed forward of the front building set-back line nor in the front yard of any Lot. In addition to the above, for corner lots, no fence, wall or other obstruction shall be allowed forward of the side yard building setback line fronting on any street nor in the side yard fronting on any street. Fences shall be a maximum height of six (6) feet. All such fences shall be natural wood, stained or painted white, or white vinyl. Chain link fences are not permitted. Notwithstanding anything to the contrary in this Section 35, Owners shall be permitted to construct such fences, walls or similar structures as may be permitted under the ordinances of the Town. Section 35.
Enforcement The board shall have the power to make such Rules and Regulations as may be necessary to carry out the intent of these restrictive covenants and shall have the right to bring lawsuits to enforce the Rules and Regulations promulgated by it. Section 36.
Development Activity Notwithstanding any other provision herein, Developer shall be entitled to conduct on the Property all activities normally associated with and convenient to the development of the Property. To the extent that such activities are inconsistent with the provisions hereof, the Developer will be exempt from such provision.
ARTICLE 4.
ASSESSMENTS Section 1.
Creation of the Lien Every Homeowner, by acceptance of a deed or other conveyance for a Lot and Home, whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree to pay Association Dues, by way of annual or special assessments or charges as hereinafter more particularly described. All Association Dues, together with such interest thereon, late charges, and cost of collection thereof (including reasonable attorneys’ fees) shall be a continuing lien upon the Lot and Home against which each such assessment is made and shall also be the personal obligation of the Homeowner of such Lot and Home at the time when the assessment fell due. Further the Town shall have a continuing lien against each such Lot and Home for its pro rata share of all real estate taxes due and payable to the Town by the Association for real estate taxes assessed against the Common property. Such lien shall be apportioned equally among all Homes and shall be enforceable by the Town in the manner provided by law with respect to the real estate taxes: assessed directly against each such Lot and Home. In the event that the Association shall at any time fail to discharge its obligations to maintain any portion of the Common Property, or other portions of the Property it is obligated to maintain, as required by this Declaration, or to enforce the provisions hereof, the Town shall have the right to so maintain the Common Property, or other portions of the Property it is obligated to maintain, or to enforce such provisions in the same place and stead of the Association. The assumption of such maintenance responsibility shall be in accordance with the procedures set forth in N.J.S.A. 40:55D-43(b). The cost of same shall be assessed, enforced and collected in accordance with the provisions of N.J.S.A. 40:55D-43(c). No Homeowner may waive or otherwise avoid liability for the aforesaid Association Dues by non-use of the Common Property, or otherwise. Section 2.
Amount of Annual Assessments It shall be an affirmative obligation of the Association and the Board to fix assessments in a sufficient amount. Common Expenses will include all budgeted expenses of the Association and will be allocated by the Board in accordance with Article VI of the Bylaws which establishes the manner in which the Board of Trustees is to manage the fiscal matters of the Association. Thereafter, each Homeowner shall be obligated to pay an assessment equal to that fraction of the total Common Expenses, the numerator of which is one and the denominator of which is that number of Homes located within the Property for which a Certificate of Occupancy has been issued by the Town, as of the date the assessment is established. Despite anything to the contrary herein, no assessment shall be made by the Association with respect to any Home owned by Developer for which a Certificate of Occupancy has not been issued by the Town. However, Developer shall reimburse the Association for the actual costs incurred by the Association for any services which Developer specifically requests in writing that the Association perform on its behalf with regard to any other property which the Developer owns in the Community including, without limitation, the provision of security and Lot maintenance. In addition, the distribution of any proceeds from any insured casualty loss, eminent domain proceeding affecting the Common Property of the Association or any distribution of common surplus of the Association shall be prorated in accordance with the formula set forth above with respect to the determination of Association Dues. Until such time as the Association and Board shall make an assessment for Association Dues, Developer shall pay all Common Expenses. Except as stated above, the amount of monies for Association Dues deemed necessary by the Board to discharge the responsibility of the Board and the manner of expenditure thereof, including, but not limited to, the allocation thereof, shall be a matter for the sole discretion of the Board. Section 3.
Date of Commencement of Annual Assessments and Due Dates The annual assessments provided for herein shall commence on the date fixed by the Board to be the date of commencement and shall be due and payable on such dates and in such installments as may from time to time be prescribed by the Board. Section 4.
Special Assessment In addition to the annual Association Dues authorized by this Article, the Board 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 Property, including the necessary furniture, fixtures, equipment and other personal property related thereto, or for other lawful purposes, provided that any such special assessment shall be apportioned in the same manner as a regular assessment and shall receive the assent of two-thirds (2/3) of all of the votes eligible to be cast by all of the members at an Association meeting duly called for this purpose, written notice of which shall be sent to all members at least thirty (30) days in advance and which notice shall set forth the purpose of the meeting. The due date(s) of any special assessment, or any installment(s) thereof, shall be fixed in the resolution authorizing such special assessment. While Developer maintains a majority of the Board, it shall make no additions, alterations, improvements or purchases which would necessitate a special assessment or a substantial increase in the monthly assessment unless required by a government agency, title insurance company, mortgage lender or in the event of an emergency. Section 5.
New Capital Improvement Assessment In addition to the other Assessments herein authorized, the Board may levy, in any Assessment year, a New Capital Improvement Assessment for the purpose of acquiring or constructing a new capital improvement, provided that the acquisition or construction of any new capital improvement, the cost of which exceeds the sum of $10,000.00 increased by the percentage of increase in the Consumer Price Index since 2005, shall have been authorized by the assent of two-thirds (2/3) of all the eligible votes at an Association meeting duly called for this purpose. Written notice of such a meeting, stating the purpose of the meeting, shall be sent to all Homeowners entitled to vote or to be represented no less than thirty (30) days in advance. The due date(s) of any New Capital Improvement Assessment, or any installment(s) thereof, shall be fixed in the resolution authorizing the New Capital Improvement Assessment. Section 6.
Subordination of the Lien to Mortgage The lien of the assessments provided for herein shall be subordinate to any lien for past due and unpaid taxes and the lien of any first mortgage or mortgages held by an Institutional Lender now or hereafter placed upon any Home; provided, however, that such subordination shall apply only to the assessments which have become due and payable prior to a sale or transfer of any such Home pursuant to judgment of foreclosure or a deed in lieu of foreclosure. Such sale or transfer shall not relieve any such Home from liability for any assessments thereafter becoming due, nor from the lien of any such subsequent assessment. If an Institutional Lender or other purchaser of a Home obtains title to such Home as a result of foreclosure of such first mortgage (or by a deed of conveyance in lieu thereof), such acquirer of title, his/her successors and assigns, shall not be liable for the assessments by the Association pertaining to such Home or chargeable to the former Homeowner thereof which became due prior to acquisition of title as a result of the foreclosure. Such unpaid sums shall be deemed to be Common Expenses collectible from all of the remaining Homeowners, including such acquirer, his/her successors and assigns. Liens for unpaid assessments may be foreclosed by suit brought in the name of the Association in the same manner as a foreclosure of a mortgage on real property. Subject to the foregoing exceptions, suit to recover a money judgment for unpaid assessments may be maintained against the record Owner of the Home as of the effective date of the assessment or against all subsequent record Owners thereof, without waiving the lien securing same, all of which record Owners shall be jointly and severally liable with respect to same. Section 7.
List of Assessments, Notice of Assessment and Certificate as to Payment The Board shall cause to be prepared, at least thirty (30) days in advance of the due date of each annual or special assessment, a list of the Lots and Homes and the assessments applicable thereto, in alphabetical order, according to the names of the Owners thereof, which list shall be kept in the office of the Association and shall be open to inspection, upon request, by any Owner. Written notice of the assessments shall be sent to every Owner subject thereto. The Association shall, upon the request of any Owner liable for an assessment or of the mortgagee of any Home, furnish to such Owner or mortgagee a certificate in writing, signed by an officer of the Association, setting forth whether or not such assessment has been paid. Such certificate shall constitute conclusive evidence of the payment of any assessments therein stated to have been paid. If an annual assessment is not made as required, an assessment shall be presumed to have been made in the amount equal to one hundred ten (110%) percent of the last prior years assessment except while the Developer maintains control of the Board, and any installments on such assessment shall be due upon each installment payment date until changed by an amended assessment. In the event the annual assessment proves to be insufficient, the budget and annual assessment may be amended at any time by the Board, provided, that nothing herein shall serve to prohibit or prevent the Board from imposing a lump sum assessment in the case of any immediate need or emergency without the consent of the Members. Section 8.
Acceleration of Assessment Installments and Other Remedies of the
Association If an Owner shall be in default in the payment of an installment upon an assessment, the Board may accelerate the remaining installments of the assessment upon notice to the Owner, and the then unpaid balance of the assessment shall become due upon the date stated in the notice, but not less than five (5) days after delivery of the notice to the Owner, or not less than ten (10) days after the mailing of such notice to him by regular mail, whichever shall first occur, If such default shall continue for a period of thirty (30) days, then the Board may, at the Board’s sole discretion (i) accelerate the remaining installments of the assessment and (ii) file a lien for such accelerated assessment and (iii) notify any mortgagee of the Home affected of such default if such mortgagee has requested such notice from the Association in writing. If said default continues for a period of ninety (90) days, then the Board may, in the Board’s discretion, foreclose the foregoing lien pursuant to law and/or to commence a suit against the appropriate Owner(s) to collect said assessment. Section 9.
Interest and Counsel Fees The Board, at its option, shall have the right in connection with the collection of this, or any other, charge to impose a late fee, or an interest charge at the legal maximum rate if such payment is made after a certain date stated in such notice. In the event that the Board shall effectuate collection of said charges by resort to counsel, the Board may add to the aforesaid charge or charges a sum or sums of twenty (20%) percent of the gross amount due as counsel fees, in addition to such costs allowable by law. Section 10.
Contribution to Capital Each Homeowner shall, at the time he acquires title to his/her Lot and Home, be obligated to pay to the Association a one time non-refundable and non-transferable contribution equal to three (3) months of the then current annual maintenance fees for the home at the time of acquisition which may be utilized for any lawful purpose which the Board may deem appropriate. Section 11.
Conveyance Upon any voluntary conveyance of a Home, the grantor and grantee of such Home shall be jointly and severally liable for all unpaid assessments pertaining to such Home duly made by the Association or accrued up to the date of such conveyance without prejudice to the right of the grantee to recover from the grantor any amounts paid by the grantee. The grantor shall be exclusively liable for those accruing while he is the Homeowner. Section 12.
Conveyance of Common Property. The Association shall not dispose of any Common Property, by sale or otherwise, except to an organization conceived and established to own and maintain the Common Property for the benefit the Community and thereafter such organization shall not be dissolved or dispose of any of its Common Property without first offering to dedicate the same at no charge to the municipality wherein the land is located. Such dedication or transfer shall not become effective unless such dedication, transfer, and determination as to purpose and conditions thereof shall be authorized by the vote in person or by proxy of two-thirds (2/3) of all of the votes eligible to be cast by all of the Members of the Association, and unless written notice of the proposed resolution authorizing such action is sent to every member at least ninety (90) days in advance of the scheduled meeting, at which such action is taken. A true copy of such resolution together with a certificate of a result of the vote taken shall be made and acknowledged by the President or Vice President and Secretary or Assistant Secretary of the Association and such certificate shall be annexed to any instrument of dedication or transfer affecting the Common Property, prior to the recording thereof in the office of the Warren County Clerk. Such certificate shall be conclusive evidence of authorization by the membership. Any transfers referred to herein shall require municipal consent.
ARTICLE 5.
ASSOCIATION DUTIES AND SERVICES Section 1.
Duties of the Association The annual assessments levied by the Association shall be used exclusively for promoting the health, safety, pleasure and welfare of the Homeowners and for the costs and expenses incident to the operation of the Association, including, without limitation, the following, if applicable: 5.1.1. maintenance and repair of all facilities on the Common Property, including parking areas, drives, paths, right-al-ways, drainage ways, storm pipes and outfall structures (even if such outfall structures are within an easement outside of the Common Property), catch basins, ponds and streams, fences and retaining walls (even if such retaining walls are on a privately owned Lot; in that case, the Owner shall not do anything to destroy or compromise the structural integrity of such a wall); 5.1.2. payment of the cost of lighting, where appropriate, for the Common Property including maintenance and repairs thereof; 5.1.3. payment of all taxes and insurance premiums required to be paid by the Association; 5.1.4. retaining a management firm or manager to maintain the Common Property and carry out the duties of the Association, provided, however, that any management agreement for the Property will be terminable by the Association with or without cause upon thirty (30) days prior written notice thereof, and the term of any such agreement shall not exceed one (1) year; 5.1.5. lawn and landscape maintenance on the Common Property; 5.1.6. lawn care, cutting and sprinkler system maintenance (including the cost of water and electricity therefor) of the Common Property; 5.1.7. providing such other items as may from time to time be deemed appropriate by the Board. Section 2. Service Which May Be Performed at the Option of the Association — Procedure Developer shall have the right to make such improvements and provide such facilities on the Common Property as it considers to be advantageous to the Common Property and to the Owners of Homes. The Association shall be obligated to accept such improvements and facilities and to properly maintain the same at its expense. The Association, at its expense, also shall maintain and carry on the services instituted, from time to time, by Developer for the benefit of the Common Property and the Owners. In addition to the required maintenance of the Common Property and of the improvements and facilities thereon and the aforesaid services required to be performed, the Association may furnish (but shall not be required to furnish) such services as the Board from time to time, by resolution, may propose, unless the projected cost of such additional services exceeds, in the aggregate, the amount equal to one-sixth (1/6) of the current annual Association Dues per Home, in which event such proposed additional services must first be authorized by a vote in person or by absentee ballot of two thirds (2/3) of all the votes eligible to be cast at a meeting of Members duly called for this purpose.
ARTICLE 6. SPECIAL
DEVELOPER’S RIGHTS AND OBLIGATIONS Section 1.
Transfer of Rights No special rights created or reserved to the Developer under this Declaration (“Special Developer Rights”) may be transferred except by an instrument evidencing the transfer recorded in the Clerk’s Office. The instrument shall not be effective unless executed by the transferee. Developer may convey part or all of the Lots and Homes or the Property in the Community. Developer shall retain all Special Developer Rights subject to Developer’s right to grant a revocable license to any Builder (“Builder’s License”). Builders shall not be deemed transferees of these Special Developer Rights except as Developer may so grant by Builder’s License. No Builder’s License shall be deemed to have been granted by Developer unless (i) contained in or incorporated as part of Developer’s deed conveying Lots to such Builder or (ii) set forth in a separate agreement executed by Developer and the Builder and recorded in the Clerk’s Office. No obligation otherwise imposed upon Developer by this Declaration shall be deemed to have been assigned to a Builder unless specifically set forth in the Builders License. Section 2.
Liability of Transferor Upon transfer of any such Special Developer Rights by a Builder’s License, the liability of the transferor is as follows: 6.2.1. A transferor is not relieved of any obligation or liability arising before the transfer and remains liable for warranty obligations imposed upon him. 6.2.2. A transferor who retains no such Special Developer Rights under a Builder’s License has no liability for any act or omission or any breach of a contractual or warranty obligation arising from the exercise of any such Special Developer Rights by a successor Developer who is not an affiliate of the transferor. Section 3.
Foreclosure 6.3.1. Unless otherwise provided in a mortgage instrument, in case of foreclosure of a mortgage, or sale under bankruptcy laws or receivership proceedings of any Home owned by Developer in the Property, a person or entity acquiring title to all the Homes being foreclosed or sold, but only upon his/her request, succeeds to all such Special Developer Rights, or only to any such Special Developer Rights to maintain models, sales offices and signs. The judgment or instrument conveying title shall provide for transfer of only the Special Developer Rights requested. 6.3.2. Upon foreclosure, sale by a trustee under a deed of trust, or sale under bankruptcy laws or receivership proceedings of all Homes in the Property owned by Developer: 6.3.2.1. Developer ceases to have any such Special Developer Rights; and 6.3.2.2. The period of Developer control terminates unless the judgment or instrument conveying title provides for transfer of ll such Special Developer Rights to a successor Developer. Section 4.
Liability of Transferee The liabilities and obligations of persons who succeed to Special Developer Rights are as follows: 6.4.1. A successor to all Special Developer Rights under a Builder’s License who is an affiliate of the Developer is subject to all obligations and liabilities imposed on any Developer by law or by the Declaration. 6.4.2. A successor to all such Special Developer Rights under a Builder’s License, other than a successor described in subsections 9.4.3 and 9.4.4 hereof who is not an affiliate of Developer, is subject to all obligations and liabilities imposed upon Developer by law or the Declaration, but he is not subject to liability for misrepresentations or warranty obligations on improvements made, by any previous Developer or predecessor in title or for a breach of fiduciary obligation by any previous Developer. 6.4.3. A successor to the sole Special Developer Right to maintain models, sales offices and signs, if he is not an affiliate of Developer, may not exercise any other Special Developer Rights but is not subject to any liability or obligation as a Developer. 6.4.4. A successor to all Special Developer Rights who is not an affiliate of Developer and who succeeded to those rights pursuant to a deed in lieu of foreclosure or a judgment or instrument conveying title to Homes under subsection 9.4.3 aforesaid, may declare his/her intention in a recorded instrument to hold those rights solely for transfer to another party. Thereafter, until transferring all such Special Developer Rights to any person acquiring title to any Lot or Home owned by the successor, or until recording an instrument permitting exercise of all those rights, that successor may not exercise any of those rights other than right to control the Board for the duration of any period of Developer control, and any attempted exercise of those rights is void. So long as a successor Developer may not exercise Special Developer Rights under this subsection he is not subject to any liability or obligation as a Developer other than liability for the successor’s acts and omissions under the Declaration. 6.4.5. Nothing in this Article subjects any successor to Special Developer Rights to any claims against or other obligations of a transferor other than claims and obligations arising under the Declaration. Section 5.
Activities Developer may conduct real estate sale and resale activities, which may include the promotion of Developer’s other projects. ARTICLE 7.
DEVELOPER’S RIGHTS AND OBLIGATIONS 7.01. Ratification, Confirmation and Approval of Agreements. The fact that some or all of the officers, trustees, members or employees of the Association and the Developer may be identical, and the fact that the Developer or its nominees, have heretofore or may hereafter enter into agreements with the Association or with third parties, will not invalidate any such agreements and the Association and its members, from time to time, will be obligated to abide by and comply with the terms and conditions thereof. The purchase of a Lot, and the acceptance of the Deed therefor by any party, shall constitute the ratilication, confirmation and approval by such purchaser, his/her heirs, legal representatives, successors and assigns, of the propriety and legality of said agreements or said agreement, or any other agreements authorized and permitted by this Declaration, the Certificate of Incorporation or the Bylaws. 7.02 Rights Reserved to the Developer. Despite anything to the contrary herein or in the Certificate of Incorporation or Bylaws of the Association, the Developer hereby reserves for itself, its successors and assigns, for so long as it owns one or more Lots n the Property, the right to sell, lease, mortgage or sublease any unsold Lots. ARTICLE 8.
GENERAL PROVISIONS Section 1. Duration This Declaration shall run with and bind all of the Property perpetually and shall inure to the benefit of and be enforceable by the Association and the Owners, their respective successors, assigns, heirs, executors, administrators and personal representatives, except that the restrictions contained in Article 5 hereof shall have a duration of twenty (20) years, at the end of which period said restrictions shall be automatically extended for successive periods of ten (10) years each, unless at least two- thirds (2/3) of the Owners at the time of the expiration of the initial period, or of any extension period, shall sign an instrument or instruments, in which they shall agree to change said restrictions in whole or in part, effective upon recording by the County Clerk. Section 2.
Notice Unless otherwise provided in this Declaration, any notice required to be sent to any Owner under the provisions of the Governing Documents shall be deemed to have been properly sent, and notice thereby given, when mailed, by regular post, with postage prepaid, addressed to the member or Owner at the last known post office address of the person who appears as a member or Owner on the records of the Association at the time of such mailing. Notice to one of two Owners shall constitute notice to all Owners thereof. It shall be the obligation of every Owner to immediately notify the Secretary of the Association in writing of any change of address. Valid notice may also be given to Owners (i) personal delivery to any occupant of any Home over nineteen (19) years of age or older; or(ii) by affixing said notice to or sliding same under the front door of any Home. Section 3.
Enforcement Enforcement of this Declaration shall be by any appropriate proceeding in law or equity in any court or administrative tribunal having jurisdiction, against any person or persons, firm or corporation, violating or attempting to violate or circumvent any provision herein contained, either to restrain or enjoin such violation or threatened violation or to recover damages, and against any Home and Lot to enforce any lien created by this Declaration, and failure by the Association or any Owner to enforce any covenant or restriction herein contained for any period of time, shall in no event be deemed a waiver or estoppel of the right to thereafter enforce same. If the Association, at any time, fails to discharge its obligations to maintain any portion of the Property as required by this Declaration or to enforce the provisions hereof, any Owner shall have the right to enforce such obligations by any proceeding at law or equity. A failure to so enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. Also, in such event, the Town shall have the right to so maintain the Property or to enforce such provisions in the name, place and stead of the Association. The assumption of such maintenance responsibility shall be in accordance with the procedures set forth in N.J.S.A. 40:55D-43 (b). The cost of same shall be assessed, enforced and collected in accordance with the provisions of N.J.S.A. 40:55D-43 (c). Despite any limitations as to the applicability of N.J.S.A. 40:55D-43 (b) and (c) aforesaid to the maintenance of “open space”,. the provisions of this subparagraph shall apply to all maintenance obligations of the Association as set forth in this Declaration or otherwise. Should either the Association or any of its Members at any time fail to enforce the provisions hereof, the Town upon thirty (30) days notice to the Association, shall have the right to institute appropriate legal proceedings in the name of the Association to effect such enforcement. Section 4.
Severability Should any covenant or restriction herein contained, or any Article, section, subsection, sentence, clause, phrase or term of this Declaration be declared to be void, invalid, illegal or unenforceable, for any reason, by the adjudication of any court or other tribunal having jurisdiction over the parties hereto and the subject matter hereof, such judgment shall in no way affect the other provisions hereof which are hereby declared to be severable, and which shall remain in full force and effect. Section 5.
Amendments This Declaration may be amended at any time after the date hereof by a vote of at least two-thirds (2/3) of the fully authorized membership of the Association at any meeting of the members established by the Board for such purpose and previous to which written notice to every Owner of the exact language of the amendment shall have been sent at least thirty (30) days in advance; and further provided, that no amendment may be so effected which would permit (i) any Owner to be exempted from the payment of any assessment or Association Dues; (ii) the obligation or proportionate responsibility for the payment of assessments with respect to Homes or Common Property to be changed; or (iii) the modification of any easements or restrictions in Articles 4 or 5 hereof except as therein set forth; (iv) revocation of any of the powers of attorney reserved herein or in the Bylaws; and further provided, that in no event may the Common Property be conveyed to any third person, firm or corporation nor may the rights of the Town, be modified in any manner, without the express consent, by ordinance, or otherwise of the governing body of the Town. Developer may, in Developer’s sole discretion, amend this Declaration prior to the conveyance of a Home to a Homeowner other than Developer or any Builder. Developer shall not be permitted to cast any votes held by him, for unsold lots, Homes or interests for the purpose of amending the Declaration, Bylaws or any other document in order to change the permitted use of a Lot or Home or to reduce the Common Property or facilities. No amendment shall be effective until recorded in the County Clerk’s Office. In the alternative, an amendment may be made by an agreement, signed and acknowledged by all of the Owners including Developer, in the manner required for the execution of a deed, and such amendment shall be effective when recorded in the Clerk’s Office. Section 6.
Bylaws arid Administration; Changes in Documents; Power of Attorney The administration of Common Property shall be by the Association in accordance with the provisions of the Governing Documents, and of any other agreements, documents, amendments or supplements to the foregoing which may be duly adopted or subsequently be required by any Institutional Lender, any governmental agency having regulatory jurisdiction over the Property or by any title insurance company selected by Developer to insure title to any Lot(s) or Home(s). Developer hereby reserves for itself, its successors and assigns, for a period of twenty (20) years from the date the first Home is conveyed to an individual Purchaser, the right to execute on behalf of all contract purchasers, Owners, mortgagees, other lienholders or parties claiming a legal or equitable interest in the Property, any such agreement, documents, amendments or supplements to the above described documents which may be so required by any such Institutional Lender, governmental agency or title insurance company; provided, however, that no such agreement, document, amendment or supplement which adversely affects the value or increases the financial obligations of the Owners or reserves any additional or special privileges shall be made without the prior written consent of the affected Owner(s) and all owners of any mortgage(s) encumbering same; or if such agreement, documents, amendment or supplement adversely affects the priority or validity of any mortgage which encumbers any Home, without the prior written consent of such mortgages. In addition, the Developer hereby reserves for itself, its successors and assigns, for a period of twenty (20) years from the date the first Home is conveyed to an individual Purchaser, the right, but not the obligation, to effectuate the following changes, enumerated by way of description and not limitation: 8.6.1. Changing Lots. Before the closing of title to any Lot, the Developer may amend and supplement the Declaration to alter or fix the location, configuration, shape and size of any Lot and the size, shape, number and configuration of any Home(s) on any Lot(s). 8.6.2. Easements. To grant, add or alter the location, size or purpose of easements and lands for utilities, roads, access, ingress or egress, drainage or financing purposes; or to convey or assign such easements to the appropriate governmental authority, utility agency or company, title insurance company or as otherwise set forth in this Declaration. 8.6.3. Use of Easements. To permit the Developer, its agents, affiliates, employees or subcontractors to utilize easements, roads, drainage facilities, utility lines and the like within or servicing the Property. 8.6.4. Technical Changes. To correct, supplement or provide technical changes to the Declaration, Bylaws or other Governing Documents or other documents that implement the creation ol the Community or Association. 8.6.5. Miscellaneous Changes. To amend the Declaration, Bylaws, Governing Documents or other documents that create or implement the creation of the Community or the Association to qualify the Property for programs and requirements of the secondary mortgage market and lenders in same, such as the Federal National Mortgage Association, Federal Unit Loan Mortgage Corporation or any other similar secondary mortgage lender; or as required by governmental or quasi-governmental agencies with regulatory jurisdiction over the Community; by any title insurance company insuring title to a Lot; or to comply with a court order or decree. 8.6.6. Change Prohibited. The Developer is not permitted to cast votes held by it for unsold Lots for the purpose of amending the Declaration, Bylaws or any other document to change the permitted use of a Lot. However, the Developer is permitted to cast its votes on all other matters as permitted by law. 8.6.7. Effective Date of Amendment. Any Amendment or Supplement to the Declaration is effective on its being recorded in the Office of the Warren County Clerk. The powers of attorney aforesaid are expressly declared and acknowledged to be coupled with an interest in the subject matter hereof and the same shall run with the title to any and all Homes and be binding upon the heirs, personal representatives, successors and assigns of any of the foregoing parties. Further, said powers of attorney shall not be affected by the death or disability of any principal and are intended to deliver all right, title and interest of the principal inand to said powers. In furtherance of these provisions, at the time of acceptance of a deed to any Home or at the time of acceptance of any other instrument conveying any legal or equitable interest in the Property, each and every contract purchaser, Homeowner or occupant or holder of any mortgage or other liens, agrees to execute an instrument which will expressly grant, ratify and confirm the foregoing power of attorney. Section 7.
Waiver No provision contained in this Declaration shall be deemed to have been abrogated or waived by reason of any failure to enforce same, irrespective of the number of violations or breaches which may occur. Section 8.
Rule Against Perpetuities If any provisions of this Declaration or the Bylaws shall be interpreted to constitute a violation of the rule against perpetuities, then such provision shall be deemed to remain in effect until the death of the last survivor of the now living descendants of Richard Hughes, former Governor of the State of New Jersey, plus twenty-one (21) years thereafter. Section 9.
Ratification, Confirmation and Approval of Agreements The fact that some or all of the officers, Trustee, Members or employees of the Association and the Developer may be identical, and the fact that the Developer or its nominees, have heretofore or may hereafter enter into agreements with the Association or with third parties, will not invalidate any such agreements and the Association, and its members, from time to time, will be obligated to abide by and comply with the terms and conditions thereof. The purchase of a Home and the acceptance of the Deed therefor by any party, shall constitute the ratification, confirmation and approval by such purchaser, his/her heirs, legal representatives, successors and assigns, of the propriety and legality or said agreements or said agreement, or any other agreements authorized and permitted by the New Jersey Planned Real Estate Development Full Disclosure Act, this Declaration, the Certificate of Incorporation or the Bylaws. Section 10.
Protective Provisions for the Benefit of Institutional Lender 8.10.1 General. Anything to the contrary in the Governing Documents, the provisions of this section shall apply with respect to each First Mortgagee. 8.10.2 Notice. Any First Mortgagee shall be entitled to timely written notice of: a) any condemnation or casualty loss that affects either a material portion of the Common Property or the Home securing the First Mortgagee’s mortgage; and no Owner or other party shall have priority over such First Mortgagee with respect to the distribution to such Home(s) of the proceeds of any condemnation award or settlement in the event of condemnation or with respect to the distribution to such Home(s) of any insurance proceeds in the event of casualty loss; and b) any sixty (60) day delinquency in the payment of Common Expense assessment installments or other assessments or charges owed to the Association by an Owner of any Home upon which the First Mortgagee holds a mortgage; and c) a lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association; and d) any proposed action that requires the consent of
a specified percentage of First
Mortgagees. 8.10.3 Amendments Requiring Approval of 51% of First Mortgagees. The prior written approval of at least fifty-one (51%) percent of the First Mortgagees is required for any material amendment to the Governing Documents including, but not limited to, any amendment which would change any provision relating to: a) voting rights; b) reserves for maintenance, repair and replacement of Common Property; c) responsibility for maintenance and repairs; d) reallocation of interests in the Common Property or rights to their use; e) boundaries of any Home; f) convertibility of Homes into Common Property or vice-versa; g) insurance or fidelity bonds; h) leasing of Homes; I) imposition of any restrictions upon an Owner’s right to sell or transfer his/her or her Home; j) assessment liens or the priority of assessment liens; k) restoration or repair of the Common Property (after damage, destruction or condemnation) in a manner other than that specified in this Declaration; I) any provisions that expressly benefit First Mortgagees. 8.10.4 Amendments Requiring Approval of 67% of First Mortgagees. The prior written approval of at least sixty-seven (67%) percent of the First Mortgagees is required before the effectuation of any decision by the Owners to terminate the legal status of the Community for reasons other than substantial destruction or condemnation of the Property. 8.10.5 Common Expense Lien Subordinate. Any lien the Association may have on any Home for the payment of Common Expense assessments attributable to each Home is subordinate to the lien or equivalent security interest of any first mortgage on the Home recorded prior to the date any such Common Expense assessment became due. 8.10.6 Inspection of Records. Any First Mortgagee shall upon request, (a) be permitted to inspect the books and records of the Association during normal business hours; and (b) receive an annual audited financial statement of the Association within ninety (90) days following the end of any fiscal year of the Association. The Association shall maintain current copies of the Governing Documents and Rules and Regulations, and any respective amendments thereto. 8.10.7 Notice of Meetings. Any First Mortgagee shall receive written notice of all meetings of the Association and be permitted to designate a representative to attend all such meetings. 8.10.8 Liability for Common Expense Assessments. Any First Mortgagee holding a first mortgage lien on a Home that obtains title to a Home as a result of foreclosure of the first mortgage, or by deed or assignment in lieu of foreclosure, or any purchaser in a foreclosure sale, or their respective successors and assigns, is not liable for the share of Common Expenses or other assessments by the Association pertaining to such Home or chargeable to the former Owner which became due prior to acquisition of title. Such unpaid share of Common Expenses, outstanding water bills and other assessments shall be deemed to be Common Expenses collectible from all of the remaining Owners including such acquirer, his/her successors and assigns. 8.10.9 Management Agreements. Any management agreement for the Community will be terminable by the Association without cause upon ninety (90) days’ prior written notice thereof and with cause upon thirty (30) days’ prior written notice thereof, and the term of any such agreement shall not exceed one (1) year. 8.10.10 Common Expense Default: Despite the absence of any express provision to such effect in the mortgage instrument, in the event that there is any default in the payment of any installment of a Common Expense assessment with respect to any Home, either regular or special, the First Mortgagees of such Home shall be entitled to declare such mortgage in default in the same manner that is permitted by such mortgage with respect to any default in the payment of real estate taxes. 8.10.11 Implied Approval. Approval of any action requiring consent hereunder will be implied when a First Mortgagee fails to submit a response to any written proposal within thirty (30) days after it receives proper notice of the proposal provided that notice was delivered by certified or registered mail, with a return receipt requested. Section 11.
Damage to Common Property If, due to the negligent act or misuse by an Owner, or a member of his/her family or household pet, guest, occupant, visitor, or tenant (whether authorized or unauthorized by the Owner), damage shall be caused to the Common Property or maintenance, repairs or replacements shall be required which would otherwise be a Common Expense, the Owner so responsible shall pay for such damage and be liable for any damages, liability, costs and expense, including attorney’s fees, caused by or arising out of such circumstances. Such maintenance, repairs and replacements to the Common Property shall be subject to the Bylaws and the Rules and Regulations. In the event of the failure of any Owner to perform any such maintenance or to make any such repairs or replacement as shall be required, the Association shall have the right, but not the obligation, to do so on the Owner’s behalf and to assess the costs of same against such Owner as a Miscellaneous Expense under Article 7 of this Declaration. If the Owner fails within ten (10) days after any such damage, then the Association shall have the right, but not the obligation, to make repairs. IN WITNESS WHEREOF, the Developer has caused these presents to be duly executed by its proper officers the day and year first above written.
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