DECLARATION OF RESTRICTIONS FOR DEMI-JOHN ISLAND SUBDIVISION SECTIONS N o 1, N o 2, N o 3 AND N o 4

Transcription

1 DECLARATION OF RESTRICTIONS FOR DEMI-JOHN ISLAND SUBDIVISION SECTIONS N o 1, N o 2, N o 3 AND N o 4 THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF BRAZORIA WHEREAS, various covenants, conditions and restrictions were imposed upon all of the lots in DEMI-JOHN ISLAND Subdivision, Sections N o 1, N o 2, N o 3 AND N o 4, by instruments dated and duly recorded in the Deed Records of Brazoria County, Texas, and more particularly identified below, which were conveyed subject to restrictions (all of such instruments imposing restrictions on lots are hereinafter referred to as "the Old Restrictions"): Section Lots Volume Page Date of Restrictions N o N o N o N o N o N o WHEREAS, all of the Old Restrictions are believed to have expired and consequently are no longer in force; WHEREAS, the owners of at least a majority of the lots in DEMI-JOHN ISLAND Subdivision, Sections N o 1, N o 2, N o 3 AND N o 4 desire to create the restrictions hereinafter set forth ("the Restrictions") in accordance with the provisions of Chapter 201 of the Texas Property Code; NOW, THEREFORE, the following Restrictions are created which are for the purpose of enhancing and protecting the value, desirability and attractiveness of the Properties, being lots in DEMI-JOHN ISLAND Subdivision, Sections N o 1, N o 2, N o 3 AND N o 4, a subdivision in Brazoria County, Texas, according to the maps or plats thereof recorded in Volume 11, Pages (Lots 1 to 24 comprising Section N o 1); Volume 11, Pages ("corrected" plat, Section N o 1); Volume 12, Page 10 (Lots 25 to 44 comprising Section N o 2); Volume 12, Page 88 (Lots 45 to 48 added to Section N o 2); Volume 13, Pages (Lots 1 to 74 in Section N o 3); Volume 13, Page 45 ("replat" of Lots 2, 46, 59, 73 and 74 in Section N o 3); Volume 15, Page 79 (Lots 1 to 26 in Section N o 4), of the Plat Records of Brazoria County, Texas, and which Restrictions, shall run with the land and shall be binding upon all parties having or acquiring any right, title or interest in any of the Properties and shall inure to the benefit of each owner thereof: -1-

2 ARTICLE I Definitions " Architectural Control Committee" shall be a subcommittee of the Association, shall be primarily responsible for observing and enforcing compliance with these Restrictions, and shall act under the supervision of and subject to the control of the Association. " Association" shall mean and refer to Demi -John Property Owner's Association, a non-profit corporation, its successors and assigns. Section 3. "Lot" shall mean and refer to any numbered lot or plot of land shown in a recorded plat for DEMI-JOHNISLAND Subdivision, Sections N o 1, N o 2, N o 3 AND N o 4 which is bound by these Restrictions. Section 4. "Owner" or "Owners" shall mean and refer to the record owner, whether one or more persons or entities, of fee simple title to any Lot which is a part of the Properties, including a contract seller, but excluding those having an interest merely as security for the performance of an obligation. Section 5. "Properties" shall mean and refer to that certain real property known as DEMI-JOHN ISLAND Subdivision, Sections N o 1, N o 2, N o 3 AND N o 4, which are subject to these Restrictions and any additional tracts of land which the Owner thereof has agreed is to be bound by these Restrictions by executing a counterpart hereof. Section 6. Subdivision " shall mean and refer to all of the property described on the plats of DEMI-JOHN ISLAND Subdivision, Sections N o 1, N o 2, N o 3 AND N o 4. ARTICLE II Recorded Subdivision Map of the Properties Section I. The recorded subdivision maps, plats or replats of the Properties dedicates for use as such, subject to the limitations as set forth therein, the street and other easements shown thereon. Such recorded subdivision maps, plats or replats of the Properties in certain instances, establish certain restrictions applicable to the Properties, including without limitation, certain minimum setback lines. All dedications, limitations, restrictions, reservations, and minimum setback lines shown on the recorded maps, plats or replats of the Properties are incorporated herein and made a part hereof as if fully set forth herein. They shall be construed as being adopted in each contract, deed or other instrument conveying a tract of land in the Subdivision, or any part thereof, whether specifically referred to therein or not. -2-

3 ARTICLE III Use Restrictions Single Family Residences and Composite Building Sites. No building shall be erected, altered, or permitted to remain on any Lot other than one (1) single family dwelling used for residential purposes only, not to exceed three and one-half (31/2) stories in height. As used herein, the term "residential purposes" shall be construed to prohibit mobile homes, motor homes or travel trailers being placed on any Lot as the primary structure, or the use of a Lot for garage apartments or apartment houses. Lots in the Subdivision may be resubdivided into building sites comprised of not less than one entire lot, as platted, and a part or the whole, of one or more additional Lots, in which event the location of the 5 foot setback line for such building site shall be located along the side lot lines of the building site created by the combination of the whole Lot and adjacent additional partial or whole Lots. Dwelling Size. The floor area of all residences, exclusive of open porches and garages, shall be not less than 600 square feet in the primary floor living area. Section 3. Location of the Improvements upon the Lot No structure, fence, or part thereof, shall be located on any Lot nearer than 45 feet from the center line of the adjoining street ( the 45 foot setback line ) or nearer than 5 feet to any side lot line ( the 5 foot setback line ). No structure (exclusive of eaves) shall be erected, placed or altered on any Lot nearer to the street than the 45 foot building setback line, or nearer to the side lot line than the 5 foot setback line, unless approved by the Architectural Control Committee. Fencing will be permitted to be located within the area defined by the 5-foot setback line. The 45-foot building set back line provided for in this Section 3 shall not apply to a Lot as to which access is by an easement rather than by virtue of fronting on a platted street. Any Lot in violation of this Section 3 upon the Effective Date of these Restrictions shall be deemed grandfathered and shall not be required to move or modify any existing structure comply in order to bring such improvements into compliance with this Section 3. Section 4. Prohibition of Business or Offensive Activities. No Lot shall be used for any activity of a commercial or business nature even though the commercial nature shall be incidental to the usage of such Lot. This restriction shall be held and construed to exclude all commercial business, industrial and professional uses, whether from home or otherwise. In addition, no noxious or offensive activity of any sort shall be permitted, nor shall any activity be permitted to occur on any Lot which is an annoyance or a nuisance to the Subdivision, or any adjacent portion of the Subdivision. Section 5. Temporary Facilities. No structure, facility or improvement of a temporary character, such as campers, motor homes, mobile homes, trailers, tents, movable buildings, or any thing of this nature, shall be used on any Lot at any time for residential purposes, either temporarily or permanently, provided that a garage, carport, boat and/or tool shed shall be permitted as a permanent appurtenance to a permanent single family residence. The temporary or permanent residential use of temporary facilities prohibited by this section shall be defined as that which exceeds sixty (60) consecutive hours or more. It shall be permissible for temporary facilities to be used for residential purposes for periods of less than sixty (60) consecutive hours. -3-

4 Section 6. Animal Husbandry. No animals, livestock or poultry of any kind shall be raised, bred, or kept on any Lot, except that dogs and cats (not to exceed two of each category) may be kept, provided they are not kept, bred, or maintained for any commercial purposes, but only for the use and pleasure of the Owner or occupant of such Lot and provided they do not violate any statute or ordinance or are not an annoyance or a nuisance to the Subdivision, or any adjacent portion of the Subdivision. Section.7. Lot Maintenance. a) The Owners and occupants of all Lots herein described shall at all times keep all grass, or other vegetation thereon cut, trimmed, or maintained in a sanitary, healthful and attractive manner. b) No Lot shall be used for storage of material and equipment except for normal residential requirements. c) No Owner or occupant of any Lot shall permit the accumulation of garbage, trash or rubbish of any kind thereon or permit any dangerous structures or conditions to exist on a Lot. d) In the event of any casualty which damages improvements located on a Lot, or deterioration in the condition of any improvements on any Lot so as to threaten the structural integrity of the improvement, constitute a nuisance, or adversely affect the market value of adjoining or nearby Properties, the Owner of such Lot is responsible for the repair of any such improvements, or for removal of such improvements, if the Owner has elected not to rebuild or repair, including removal of all debris, to the reasonable satisfaction of the Architectural Control Committee. Section 8. Any time that these Restrictions impose a use or maintenance limitation or obligation on an Owner, such shall also apply to all occupants of the Lot by virtue of authorization by the Owner thereof. Section 9. Enforcement. In the event of default on the part of the Owner of any Lot on complying with the requirements set forth herein, or any of them, the Architectural Control Committee may notify the Owner of such Lot of such non-compliance by written notice which is either hand delivered to the Owner, or mailed in a postage prepaid wrapper, certified or registered, addressed to such Owner at the current address according to the records of the Association. After notification, such Owner shall remedy and correct the conditions identified in the Notice and bring in compliance with provisions hereof, within thirty (30) days of the date of such notice. In the event of default on the part of the Owner of any Lot in observing the above requirements, such default continuing for more than thirty (30) days after the aforesaid notice, then the Architectural Control Committee may, without liability to the Owner, or occupant, in trespass or otherwise, enter upon (or authorize one or more others to enter upon) such Lot, and cause any such weeds and grass to be cut, and/or remove or cause to be removed any such garbage, trash, debris and rubbish or do any other thing necessary to secure compliance with these Restrictions, so as to place said Lot and all improvements thereon in a neat, attractive, healthful and sanitary condition. The Architectural Control Committee may charge the Owner of such Lot for the reasonable cost of such work and any reasonably necessary materials. Should it elect to charge any such Owner for the cost of obtaining compliance with these Restrictions, -4-

5 the Architectural Control Committee shall issue written notice of such decision and costs to the Owner, also either by hand delivery or certified registered mail, postage prepaid, properly addressed, and the affected Owner shall remit payment to the Architectural Control Committee within fourteen (14) days after the date on which the notice is hand delivered or deposited in the mail, as applicable. Payment for the cost of obtaining compliance shall be secured by an Assessment Lien, against the Lot or Lots which are affected, as set forth in Section 1 of Article VI of these Restrictions. Section 10. Utilities. Utility easements on the front ten (10) feet of each Lot adjacent to a street in the Subdivision are reserved in favor of utility service operators or providers to lay, construct, maintain, and remove utility lines and facilities (including without limitation, water lines, sewer lines, gas lines, electric lines and telephone lines). The right to grant further franchises and easements to utility service operators or providers to lay, construct, maintain, and remove utility lines under such utility easements shall be exercised by the Association. The utility service operators or providers using any such utility easement shall not be liable for any damage done by them or their assigns, agents, employees or servants to any improvements located on any such utility easements. It is required that all residences be connected to and purchase water from the water contractor for Demi- John Island. Toilet facilities for all residences shall be installed inside of the residence and connected, before use. The overnight occupancy of residential property within the Subdivision, is prohibited until toilet 'facilities have been completed as herein required and the residence is connected to the central water system for the Subdivision. Section 11. Lots in Violation of Restrictions. Except as otherwise specifically provided in this Article ill, the Owner of any Lot in violation of these Restrictions upon the Effective Date hereof or thereafter, shall immediately cause such Lot to be in compliance with these Restrictions, unless waived by the Architectural Control Committee in writing, within thirty (30) days of receipt of written notice to remedy and correct any such violation. ARTICLE IV Architectural Control Committee Committee Membership. The Architectural Control Committee shall be comprised of three (3) members appointed by the Board of Directors of the Association, at least two (2) of whom shall be members of the Board of Directors of the Association. Approval of Building Plans. No improvement shall be erected, placed, or altered on any Lot until the construction plans and specifications, and a plot plan showing the location of the improvement on the Lot with reference to the perimeter boundaries of the Lot, and the 45 foot and 5 foot setback lines, have been approved in writing by the Architectural Control Committee. A copy of the construction plans and specifications and a plot plan, together with such other information as may be deemed pertinent, shall be submitted to the Architectural Control Committee, or its designated representative a sufficient time prior to commencement of construction to permit their review and, if appropriate, approval. The Architectural Control Committee may require the submission of such plans, specifications, and plot plans, together with such other documents as it deems appropriate, in such form and detail as it may elect in its discretion. In the event the Architectural Control Committee fails to approve or disapprove such plans and specifications within thirty (30) days after the receipt thereof, this Section will be deemed to have been fully complied with -5-

6 and no further approval of such plans shall be required; provided, however, that this provision shall not be construed to allow the construction of any improvements which were not described and set forth in such plans and specifications. The Architectural Control Committee shall have full and complete discretion and authority to approve or disapprove the proposed construction of any improvement on any Lot, and its judgment shall be final. ARTICLE V Demi-John Island Property Owners Association Non-Profit Corporation. Demi-John Property Owners Association is an existing non-profit corporation which was organized under the laws of the State of Texas. Articles, Bylaws and Minutes of Association. The Association may make whatever articles, rules or bylaws it may choose to govern the organization; provided, however, that same are not in conflict with the terms and provisions hereof. All powers and functions of the Board of Directors of the Association shall be conducted in accordance with the then current bylaws, rules and regulations of the Association. Any matters of dispute or disagreement between an Owner with respect to interpretation or application of the provisions of these Restrictions shall be determined by the Board of Directors of the Association, which determination shall be final and binding upon all Owners, unless modified as hereafter provided. The Owners hereby grant the Association all powers expressed or implied by these Restrictions to enforce and carry out these Restrictions and to manage and establish rules, regulations and fees with respect to the activities managed thereby. Except when otherwise provided in these Restrictions, or the Articles or Bylaws of the Association that vote of the Owners is required, all actions to be taken by the Association: shall be determined by the Board of Directors of the Association, unless later modified by vote of at least fifty-one percent (51 %) of the votes cast in person or by proxy at a special meeting duly called for such purpose. Section 3. Inspection of Records. The members of the Association shall have the right to inspect the books and records of the Association at reasonable times during normal business hours and upon reasonable notice. The members shall also have the right to obtain copies of such books and records upon payment of the reasonable cost of reproduction. Section 4. Membership and Voting. Every Owner of a Lot shall be a member of the Association. Each Lot shall be entitled to one (1) vote, except that (i) the Owners of Lot 48 of Section N~ [which Lot has been divided in half and has two (2) separate dwellings and owners thereof] shall be treated as two (2) Lots and is entitled to two (2) votes, which the Owners thereof may vote separately and (ii) the unsubdivided property on the east property line of Lot 69 of DEMI-JOHN ISLAND Subdivision, Section N o 3, which unsubdivided property was formerly the residence of Houston McClain, developer of DEMI-JOHN ISLAND Subdivision, which Owner thereof shall be treated as two (2) Lots, is entitled to two (2) votes, which must be voted the same, should said property ever become subject to these Restrictions. Except as provided above, when more than one person owns an interest in a Lot, all such persons shall be members. The vote for a Lot shall be exercised as the Owners may determined, but in no event shall more than one vote be cast with respect to any Lot, except as otherwise provided herein. When more than one person holds an interest in any Lot and a dispute exists as to who can exercise the right to vote for such Lot, the vote associated with such Lot shall be suspended until the Owners thereof can agree upon one person to vote for such Lot. In the -6-

7 event of a dispute, membership in the Association shall be appurtenant to and may not be separated from ownership of any Lot. All matters which these Restrictions provide are to be voted on by the membership of the Association, after establishing a quorum as provided for in the Bylaws of the Association, shall require the vote of at least fifty-one percent (51 %) of the votes of present in person or represented by proxy at a meeting duly called. Section 5. Notification of Transfer of Lot. If at any time an Owner of a Lot, his/her heirs, personal representatives, successors or assigns, desires to sell or gift a Lot, or any part thereof, such Owner shall provide the Association with new owner's name, mailing address, and residence phone number. This requirement notwithstanding, it shall be the obligation of the (new) Owner of a Lot to provide the Association with written notice of the new Owner's name, mailing address and residence phone number. Notwithstanding the foregoing provisions of Section 4 of this Article V, only an Owner of a Lot who has complied with this Section 5 shall be entitled to cast the vote with respect to the such Lot. ARTICLE VI Maintenance Assessments and Liens Creation of the Lien and Personal Obligation of Assessments. The Owner of each Lot subject to these Restrictions is deemed to covenant and agree to pay to the Association: (1) annual assessments or charges and (2) special assessments. To secure payment of any such assessment, there is hereby reserved against each Lot subject to these Restrictions, or, as appropriate, conveyed by the Owner of such Lot by virtue of the creation of these Restrictions, an Assessment Lien for the benefit of the Association, said lien to be enforceable through appropriate proceedings at law by the Association. All assessments are to be established and collected as herein provided. The annual and any special assessments, together with interest, costs of court, if applicable ("costs") and reasonable attorney's fees, shall be a charge on the Lot. The payment of which shall be secured by a continuing Assessment Lien upon the Lot against which each such assessment is made. Each such assessment, together with interest, costs and reasonable attorney's fees, shall also be the personal obligation of the person who was the Owner of the Lot at the time when any such assessment became due. The personal obligation to discharge delinquent assessments shall not pass to the successor in title of any Owner unless expressly assumed by such successor. Subordination of Lien. The Assessment Lien, described in Section I of this Article VI shall be subordinate to (i) any mortgage lien for purchase of the Lot and improvements and/or the construction of improvements on any such Lot recorded prior to the date any such assessments become due and (ii) any liens in effect upon the Effective Date of these Restrictions; (The holder of any lien described in this sentence being herein referred to as "superior mortgage lienholder" or by similar references). Sale or transfer of any Lot shall not affect the Assessment Lien. No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien securing payment thereof. Notwithstanding the foregoing provisions of this Section 2, each superior mortgage lienholder on a Lot who comes into possession of the Lot by virtue of foreclosure of a prior mortgage lien, or any purchaser at a foreclosure sale, will take the Lot free of any claims for unpaid assessments and charges against the Lot which accrued prior thereto. -7-

8 Section 3. Purpose of Assessments. The assessments levied by the Association 'shall be used exclusively to promote the safety and welfare of the residents of the Properties and for the necessary acquisition, improvement and maintenance of any property owned by the Association. The purposes for which such assessments may be used by the Association shall include, but not be limited to, the acquisition, construction and/or maintenance of right -of-ways, easements and other public areas or areas of common benefit not maintained by Brazoria County; the operation of all street lights; the payment of all legal and other expenses incurred in connection with the enforcement of. The Restrictions, and conditions affecting the Properties; the payment of all reasonable and necessary expenses in connection with the collection and disposal of garbage, debris or dangerous material on any Lot or for the Owners of Lots; the payment of all reasonable and necessary expenses incurred in connection with the collection and administration of the assessments; the employment of policemen and/or security personnel, if determined by the Association to be desirable; the mowing of vacant lots; and doing other things necessary or desirable in the opinion of the Board of Directors of the Association to enforce these Restrictions. It is understood that the judgment of the Association in the expenditure of said funds shall be final and conclusive so long as such judgment is exercised in good faith; provided that, the expenditure of funds or the incurring of any liability in excess of $10,000 during any fiscal year of the Association for any single category of expenditures (excluding expenditure of funds for street lighting and garbage collection and disposal, and the expenditure of funds of the (Crab Claw Club) shall require approval of at least fifty-one (51 %) of the Owners of Lots. Section 4. Rate of Assessment. The initial annual assessment on each Lot shall be $ The rate at which each Lot will be assessed will be determined annually, and may be adjusted from year to year by the Board of Directors as the needs of the Properties may, in the judgment of the Board of Directors, require; provided that, such assessment shall be uniform and in no event shall such assessment or charge be increased more than 6 % in any year, except if approved by the vote of at least fifty-one percent (51 %) of the Owners of Lots. In addition to the annual assessments and the special assessments provided for in Article VI of these Restrictions, the Association may levy and collect special assessments, payable as determined by the Association, if approved by majority vote. Section 5. Commencement of Annual Assessments. The annual assessment shall be payable in advance and shall commence as to all lots on May 15 of each year beginning in May, 1999, the assessment year to commence on May 15 of a given year and end May 14 of the next calendar year. The Association shall give each Owner of a Lot at least thirty (30) days notice in advance of the due date for payment of the assessment. Such assessments may be made payable annually or otherwise, as determined by the Board of Directors of the Association. Section 6. Effect of Non-payment of Assessments. Any assessment not paid within thirty (30) days after the due date shall bear interest from such date at the rate of ten percent (10%) per annum. The Association may bring an action at law against the Owner personally obligated to pay the same, and may also seek foreclosure of the lien which secures the payment of such assessments against the Lot. The Association may cause to be recorded in the Real Property Records which are maintained in the office of the County Clerk of Brazoria County a list of delinquent assessments, including a description of the Lot or Lots involved, and the name of the Owner hereof. As of the date of recordation, said list shall give notice of the delinquent assessment on the Lots described therein. The Association shall, on demand and for a reasonable charge, furnish a certificate signed by an Officer of the Association setting forth whether the assessment(s) against a specific Lot have been paid. -8-

9 ARTICLE VII General Provisions Term. These Restrictions shall run with the land and shall be binding upon all parties and Owners and Lots for a period of twenty (20) years from the effective Date after which time these Restrictions shall be automatically extended for successive periods of ten (10) years each, unless an instrument signed by the then Owners of a majority of the Lots is recorded agreeing to change or terminate these Restrictions in whole or in part. The terms and provisions of these Restrictions may be amended at any time when an instrument setting forth said changes and signed by the then Owners of a majority of the Lots is filed of record in the Real Property Records of Brazoria County, Texas, or as otherwise provided by law. Enforcement. The Association acting by and through its Board of Directors; shall have the right to enforce, by a proceeding at law or in equity, as appropriate any provision of these Restrictions, or to collect any assessment(s) or foreclosure the lien or liens securing the payment of same. The Owner of any Lot shall also have authority to enforce the provisions of these Restrictions or any obligation now or hereafter imposed by the provisions of these Restrictions. The failure of the Association or any Owner to enforce any provision of the Restrictions herein shall in no event be deemed a waiver of the right to do so thereafter. Section 3. Rights of Owner of Lot Not Subject to Restriction. The owner of any tract of land which is not bound by these Restrictions shall not be entitled to any rights to enforce or benefit from these Restrictions or from the assessments collected by the Association, including, but not limited to, the right (i) to notice of any meetings of the Association, (ii) to attend any meetings of the Association, (ill) to vote by proxy or otherwise on any matter voted on at any such meeting, (iv) to take or to request the Association to take action against an Owner of a Lot who is violating these Restrictions or (v) to receive services or other benefits from the Association (if the Association elects to make them available thereto) at the same price at which such services are available to an Owner of a Lot. Such owner of any tract of land which is not bound by these Restrictions may become entitled to all of the rights and privileges of an Owner of a Lot subject to these Restrictions by agreeing that such Lot or tract of land not heretofore bound by these Restrictions is to be subject to and bound by these Restrictions by executing a counterpart hereof or other writing which adopts the provision of the Restrictions and describes 'the tract(s) of land to be subjected to these Restrictions, which writing shall be recorded in the Real Property Records of Brazoria County, Texas and a copy thereof delivered to the Association by certified mail, return receipt requested. Any such Lot or tract of land must be in compliance with these Restrictions at such time and the owner thereof shall pay to the Association as to each such Lot or tract of land all of the assessments which such Lot or tract of land would have been required to pay if subject to these Restrictions since the Effective Date hereof (to the extent not previously paid by the Owner of such Lot or tract of land), except to the extent payment of such back assessments is waived by the Board of Directors of the Association, in its sole discretion. The Association may from time to time file a notice in the public Real Property Records of Brazoria County, Texas describing the property in the Subdivision which is not bound by or entitled to the benefit of these Restrictions. -9-

10 Section 4. Severability. Invalidation of anyone or more provisions of these Restrictions by the judgment of a court of competent jurisdiction shall in no way affect any of the other provisions which shall remain in full force and effect. Section 5. Effective Date. These Restrictions shall become effective upon successful completion of the process prescribed by Section 201, et seq. of the Texas Property Code, and recording by the County Clerk of the Certificate of Compliance in the Real Property Records of Brazoria County, Texas. The "Effective Date" shall be the date on which the County Clerk records said Certificate of Compliance. Section 6. Notices. Any notice required to be given to any Owner of the provision of these Restrictions shall unless otherwise herein expressly provided be deemed to have been delivered when deposited in the United States mail, postage prepaid, addressed to an Owner at his or her last known address as such appears on the records of the Association at the time of such mailing, provided that if certified or registered mal is required by other provisions of these Restrictions, said requirement shall be complied with. (The Remainder of this Page Intentionally Left Blank) REVISED NOVEMBER 2002 DEMI-J0HN.FIN -10-