4 th Draft 16/02/2009 COMMONWEALTH OF THE BAHAMAS New Providence DECLARATION OF CONDOMINIUM OF BALMORAL PHASE I CONDOMINIUM Name and Description Interest and Intent Definitions THIS DECLARATION is made the day of, A.D. 2009 whereby BALMORAL DEVELOPMENT LIMITED a Company incorporated under the laws of the Commonwealth of The Bahamas (hereinafter called "the Declarant") and ROYAL BANK OF CANADA a company incorporated in Canada and carrying on the business of banking in the Commonwealth of The Bahamas (hereinafter called the Mortgagee ) DOTH DECLARE as follows: 1. The Property (defined below) more particularly described in the First Schedule hereto together with the Buildings (defined below) erected thereon and the easements more specifically described in this Declaration, shall from the date of lodgement of this Declaration for record in the Registry (defined below), be a condominium property in accordance with the Condominium Act (defined below) under the style or name of Balmoral Phase I Condominium (hereinafter called the Condominium ), to which the Condominium Act shall apply, and which shall be subject to this Declaration. 2. The Declarant and the Mortgagee are together the entities having the legal and equitable title in fee simple absolute in the Property pursuant to the terms of Section 4 of the Condominium Act and intend by virtue of this Declaration to subject the Property to the provisions of the Condominium Act; the Mortgagee has joined in this Declaration for the purpose only of evidencing its consent hereto and for complying with the provisions of Section 4 of the Condominium Act without thereby giving any warranty as to the contents hereof or incurring any liability or responsibility under the provisions hereof. 3. Act or Condominium Act means the Law of Property and Conveyancing (Condominium) Act, Chapter 139 of the Statute Laws of The Bahamas, Revised Edition of 2000. Condominium Documents means this Declaration as may be amended from time to time together with all attached exhibits and all other documents incorporated herein by reference. Development means a planned community known as Balmoral situate on Sandford Drive in the Western District of the Island of New Providence. Improvements means all structures and artificial changes to the natural environment (exclusive of landscaping) located on the Property, including the Buildings.
2 Lien means a charge arising by virtue of the provisions of the Condominium Act. Management Agreement means the agreement or agreements between the Condominium Association (as the same is herein defined) and a Management Company pursuant to which the Condominium Association engages a Management Company to perform its responsibilities and duties relating to the management and operation of the Condominium. Management Company means Balmoral Management Limited or any entity engaged to manage the Condominium and perform the obligations of the Condominium Association pursuant to a management agreement or management agreements with the Condominium Association. Master Association means Balmoral Homeowners Association Limited. Master Declaration means a separate Declaration of Covenants, Conditions, Restrictions and Easements for the Development dated, 2009 made by the Declarant and about to be lodged for record in the Registry including any subsequent amendments thereto. Owner or Unit Owner means the owner in fee simple for the time being of any Unit and shall include corporate entities persons owning a Unit as joint tenants or as tenants in common whether individually or as trustees as well as any persons entitled by or under the Act to exercise any powers of a Unit Owner (such as a mortgagee pursuant to Section 16 of the Act). Permittee means a guest, invitee, or lessee of an Owner with respect to the Property. Personal Charges means, in respect of an Owner, any and all: (i) outstanding and unpaid assessments, fines, other moneys owed to the Condominium Association by such Owner, including those set forth in the Byelaws, and other charges and expenses resulting from the act or omission of such Owner or Permittee, including the cost to repair any damage to any portion of the Property (other than damage within such Owner's Unit relating to those items over which Owner has maintenance or insurance obligations under the Condominium Documents) or to repair or replace any Common Property (as the same is herein defined) on account of loss or damage caused by such Owner or Permittee; and the cost to satisfy any expense to any other Owner(s) or to Condominium Association due to any intentional or negligent act or omission of such Owner or Permittee, or resulting from the breach by such Owner or Permittee of any provision of the Condominium Documents, and;
3 Buildings Plans Architect s Certificate Identification of Units (ii) any uncollected interest charges, late payment fees, reasonable attorneys' fees, and expenses incurred or assessed in connection with the enforcement or collection of any Lien. Property means the hereditaments more particularly described in the First Schedule hereto to which this Declaration relates located in the Development. Registry means the Registry of Records in the Commonwealth of The Bahamas. Rules and Regulations means the rules and regulations concerning the use of the Property as promulgated and as amended from time to time by the Association. 4. The Declarant has caused to be constructed on the Property the Buildings listed in the Second Schedule hereto each containing the residential units respectively indicated in the said Second Schedule (hereinafter referred to collectively as "the Units" and individually as "the Unit") comprising four (4) two (2) storey buildings. Building E will comprise two (2) Units, Building F will comprise two (2) Units, Building G will comprise four (4) Units and Building H will comprise two (2) Units, which buildings are and will be constructed principally of concrete block walls with plaster finish with the roof covered with asphalt tiles and the floors of poured concrete at all levels (which said buildings are hereinafter referred to collectively as "the Buildings" and individually as "the Building"). 5. The drawings and plans of the Buildings (hereinafter referred to collectively as "the Plans" and individually "the Plan") showing the distinguishing number, location, approximate floor area, limits and boundaries of each Unit are annexed hereto as "Exhibit " comprising ( ) pages. 6. The Plans were certified by whose professional qualifications have been recognized in writing by The Minister for Works and Utilities for the purposes of Section 5 (3) of the Act (a copy of which said writing is annexed hereto as "Exhibit ") and the said has issued his certificate certifying that the Plans are accurate copies of the drawings and plans of the Buildings as approved by such proper authority as has power to approve plans for the construction of buildings (which said certificate is annexed hereto as "Exhibit "). 7. The units comprising the Buildings are designated on the Plan relating to the respective building. The Units in Building E are designated by the numbers E13 and E14; the Units in Building F are designated by the numbers F15 and F16; the Units in Building G are designated by the numbers G17, G18, G19 and G20; the Units in Building H are designated by the numbers H21 and H22. In order to remove any doubt the boundary of any such Unit which is shown on the Plans as being a floor wall ceiling door or window shall be: (a) In the case of a door or window the exterior surface thereof; (b) In the case of a wall dividing Two (2) Units a line drawn vertically through such wall midway between its external and internal surfaces;
4 Nature of Unit Dower Common Property Unit Entitlement (c) In the case of any other wall the interior surface thereof; and (d) In the case of a floor or ceiling a line drawn horizontally through such floor or ceiling midway between its external and internal surface notwithstanding that in the case of a ceiling its external surface may constitute the floor of another Unit or in the case of a floor that its external surface may constitute the ceiling of another Unit. The boundary of any Unit which is shown on the Plans shall include the gateway or porch or lanai forming a part thereof (but not the stairway leading to such Unit except in the case of an internal staircase, such staircase is deemed to be apart of such Unit). 8. A Unit comprising part of the Property and the extent of which shall be ascertained by reference to the Plans and Clause 7 hereof shall from the effective date hereof constitute an estate in real property which subject to the Act can be dealt with in exactly the same way as land subject to the restrictions exceptions reservations limitations provisions and conditions herein contained or referred to. 9. The original purchase of each Unit shall be made free of any mortgage or charge which may then exist on the Property and if any purchase is not so made it shall by virtue of Section 6(2) of the Act be void and of no effect. 10. No right to dower shall accrue from the ownership in fee simple of any Unit or any share in the Common Property (as the same is herein defined) appertaining thereto. 11. Those portions of the Property which do not fall within the boundaries of any Unit as defined herein shall be common property and are hereinafter referred to as Condominium Common Property or Common Property and the following provisions shall apply thereto: (a) The Condominium Common Property shall be vested in the various owners for the time being of all the Units as tenants in common in undivided shares in the proportions set out in the Second Schedule hereto; (b) The Condominium Common Property shall be held for the joint use and enjoyment of all the owners of Units for the time being and their interests therein may only be dealt with or disposed of in accordance with Section 22 of the Act; (c) No undivided share in the Condominium Common Property may be disposed of in any way except as appurtenant to the Unit to which it relates and any assurance mortgage charge or other disposition of a Unit shall operate also to assure mortgage charge or otherwise dispose of its appurtenant undivided share in the Condominium Common Property without express reference thereto; and (d) The undivided shares into which the Condominium Common Property is divided shall not be varied without the unanimous consent of all of the Unit Owners affected which shall be given in a manner satisfactory to the Condominium Association. 12. The undivided share of any Unit Owner in the Condominium Common Property is herein referred to as his "unit entitlement" and has been calculated by
5 Conditions and Restrictions Benefit of Easements and other Rights taking the approximate proportion that the floor area of the Unit at the date hereof bears to the aggregate floor area of all of the Units taken together there being no substantially exclusive advantages in the Condominium Common Property that may be enjoyed by a Unit compared with another Unit or Units. The resulting fraction applicable to each Unit is set forth in the Second Schedule hereto and is herein referred to as the "unit entitlement" or "unit fraction" of that particular Unit. The "unit entitlement" (or "unit fraction") shall have a permanent character and shall not be varied unless all Unit Owners affected consent in a manner satisfactory to the Directors of the Condominium Association. 13. In addition to the easements and rights for support shelter and the provision for services made appurtenant to the Units and to the Condominium Common Property by the Condominium Act each Unit shall from the effective date hereof be subject first to the Master Declaration and secondly to the use and occupancy and restrictions set out in the Third Schedule hereto (hereinafter referred to as "the Unit Restrictions"). All the easements rights obligations conditions restrictions contained or referred to in this Declaration, the Master Declaration or in the Byelaws of the Condominium Association (as herein defined) or in any deed relating to the Unit and to which the Unit is made subject shall run with and bind the Unit and be enforceable against the owner thereof for the time being by the Condominium Association and all Unit Owners. 14. In addition to the easements for support and the provision of services contained in the Act each of the Unit Owners for the time being shall be entitled to the following additional easements and/or rights and/or benefits which shall be appurtenant to the Property: (1) A grant of easements from the Declarant contained in a conveyance to a purchaser and also granted in the Master Declaration which shall grant to the Unit Owner or Unit Owners in whose favour the same is issued the easements specified therein over the designated common roadways and the Development (hereinafter referred to as "the Road Easements" and "the Master Common Areas" respectively) and shall have the position shape boundaries marks and dimensions as are so designated and created from time to time pursuant to the provisions of the Master Declaration SUBJECT to the terms therein contained and to the payment of the maintenance fees to be specified therein; (2) The right in fee simple unto the Unit Owners and their successors in title and the owners for the time being of the Property full and free running and passage of the main water and other pipes sewers drains tubes and wires leading to or from or serving the Property or any part or parts thereof as pass through over or under the property retained by the Declarant and defined in the Master Declaration as the Master Common Property (hereinafter referred to as "the Retained Property"); (3) The right for the Unit Owners and their successors in title and the owners from time to time of the Property at all reasonable times and with or without servants and workmen to enter upon the Retained Property for the purpose of repairing maintaining reinstating or renewing the said pipes sewers drains tubes and wires the Unit Owners and their successors in title aforesaid doing no unnecessary
6 Association Easements damage by or in the course of such entry repair maintenance reinstatement or renewal and making good to the full extent thereof all damage done thereby or in the course thereof; (4) A membership right of Unit Owners in the Master Association (hereinafter referred to as "the Members Rights") the Members Rights being at all times appurtenant to the Units and are not to be assigned or transferred or sublet SAVE AND EXCEPT upon or immediately before and in contemplation of a conveyance mortgage discharge or mortgage assignment or transfer of the Unit in question and then only to the party or parties about to take such conveyance mortgage discharge or mortgage assignment or transfer of such Unit but at all times only upon such purchasers entering into a covenant with the Declarant or the Master Association of like effect as are contained in the Master Declaration. (5) A non-exclusive easement shall exist for pedestrian traffic over, through, and across sidewalks, streets, paths, walks, hallways, and other portions of the Common Property as from time to time may be intended and designated for such purpose and use; and for vehicular traffic over, through, and across such portions of the Common Property as from time to time may be paved and intended for such purposes; and for vehicular parking on such portions of the Common Property, if any, as may from time to time be paved, intended, and designated by the Association for such purposes. Such easements shall be for the use and benefit of the Owners, Declarant, the owners of interests in properties located adjacent to the Condominium which are designated by Declarant, those claiming by, through, or under the aforesaid, and the aforesaid's guests, licensees, and invitees; provided, however, that nothing in this Declaration shall be construed to give or create in any person the right to park any vehicle on any portion of the Property except to the extent that space may be specifically designated and assigned for parking purposes as designated by the Association. In addition, further easements shall exist for ingress and egress over such streets, walks, and other rights of way serving the Units as shall be necessary to provide for reasonable access to the public ways. None of the easements specified in this subparagraph (5) shall be encumbered by any leasehold or Lien other than those on the Units. Any such Lien encumbering such easements (other than those on Units) automatically shall be subordinate to the rights of Owners and the Association (as the same is herein defined) with respect to such easements. (6) Association Easements: The Association and the Master Association and its designees are granted all rights, powers, and easements necessary to fulfill their obligations and exercise their rights as set forth in the Condominium Documents and the Master Declaration, including the irrevocable right of access to each Unit for: (i) inspecting, maintaining, repairing, and replacing the Units, the Common Property, or the Property as required to be performed by Association, the Master Association or its designees under the Condominium Documents or Master Declaration; (ii) making emergency repairs to prevent damage to a Unit, the Common Property or the Property; and
7 Condominium Association and Transfer of Control (iii) determining compliance with the Condominium Documents and Master Declaration. The Association on behalf of all Owners (each of whom hereby appoints the Association as its attorney-in-fact for this purpose), shall have the right to grant such additional general ("blanket") and specific electric, gas or other utility, cable television, security systems (if any), communications or service easements (and appropriate bills of sale for equipment, conduits, pipes, lines and similar installations pertaining thereto), or relocate any such existing easements or drainage facilities, in any portion of the Common Property and to grant access easements or relocate any existing access easements in any portion of the Common Property, as the Association shall deem necessary or desirable from time to time, provided that such easements or the relocation of existing easements will not prevent or unreasonably interfere with the reasonable use of the Units for their intended purposes and except as limited by the Act. (7) Declarant Easements: The Declarant reserves the following easements and rights to grant easements: (a) Construction Easements: The Declarant (including its designees, contractors, successors, and assigns) shall have the right, in its (and their) sole discretion from time to time, to enter the Property and take all other action necessary or convenient for the purpose of completing the construction thereof, or any part thereof, or any Improvements or Units located or to be located thereon, provided that such easements will not prevent or unreasonably interfere with the reasonable use of the Units for their intended purposes and except as limited by the Act. (b) Marketing: The Declarant reserves for itself and its designees, affiliates, successors and assigns, the right to use any unsold Units and parts of the Common Property for model apartments and sales, management and construction offices, to show model Units and the Common Property to prospective purchasers and tenants of Units, provided that such easements will not prevent or unreasonably interfere with the reasonable use of the Units for their intended purposes, management by Management Company, and except as limited by the Act. 15. To enable the Unit Owners for the time being to manage and operate the Condominium as an efficient whole a body corporate is hereby constituted by virtue of the Act together with the powers and duties prescribed by the Act and the Condominium Documents; the body corporate hereby constituted shall have the style and title of "Balmoral Phase 1 Condominium Association" which term shall include any managers duly appointed or designated by the body corporate to carry out its functions (herein called "the Condominium Association" or "the Association"); the Byelaws of the Condominium Association in the first instance shall be those set out in the Fourth Schedule hereto. (a) Control of Association: The Declarant shall appoint the first members to the Board of the Association ("the Board") in accordance with the provisions of the Byelaws and shall maintain control of the Board for such period as therein prescribed.
8 Ownership of Condominium Association Powers of Condominium Association Duties of Condominium Association (b) Management Agreement: The Association is authorized to contract for management of the Condominium, and to delegate to such contractors all powers and duties of the Association in accordance with the Condominium Documents or applicable law. 16. Each Unit Owner shall by virtue of his ownership of a Unit be as of right a member of the Condominium Association and be entitled to exercise his voting rights in the manner prescribed by the Act subject to the provision of Clause 25 hereof; each Unit Owner shall also be subject to all obligations of a member in accordance with and by virtue of the Act. 17. The Condominium Association shall have the following powers together with those conferred upon it by the Act: (a) To enforce the Unit Restrictions in the event of any breach thereof by any Unit Owner; (b) To enforce compliance by all Unit Owners with its Byelaws (as amended from time to time by Special Resolution passed by its Members in general meeting); (c) To enter into a long-term Management Agreement with the Management Company; (d) To establish funds for the operation and maintenance of the Property; (e) To make demand upon and recover from each Unit Owner his contribution in respect of common expenses ascertained in accordance with Clause 21 hereof and to enforce any charge in respect of unpaid contributions; (f) To recover from any Unit Owner any sum of money expended by the Condominium Association for repairs or at its direction in complying with any Notice or Order issued by a competent public authority in respect of any part of the Property or the Building comprising the Unit of any Unit Owner. 18. In addition to the duties imposed on it by the Act the Condominium Association shall be responsible for: (a) Maintaining and repairing the Condominium Common Property including the structure of each of the Units together with any porches or terraces comprising a part thereof and all conduits ducts pipes cables drains plumbing wiring and other service facilities located on the Property or serving the same and for this purpose its servants agents or contractors shall have the right to enter any Unit provided (save in an emergency) such entry shall be made only at reasonable times and upon reasonable notice and any damage caused to a Unit by virtue of any of the work which may be done in pursuance of such maintenance and repair shall be remedied by the Condominium Association at its own expense; (b) Subject to Sections 24 and 25 of the Act insuring the Units and all other insurable property comprising a portion of the Property to the full replacement value thereof against fire hurricane sea wave and public liability and against such other risks as are standard in respect of buildings similar in construction site and use or as may be prescribed by a Special Resolution of the members of the Condominium
9 Insurance Provisions Association without prejudice to the right of any Unit Owner to insure his own Unit or its contents thereof for such risks as he shall think fit. Except as specifically provided in this Declaration or by the Act, the Association shall not be responsible to Owners to obtain insurance coverage on the Property lying within the boundaries of their Units, including their personal property, and for their personal liability and living expense, and for any other risks not otherwise insured in accordance herewith. The Association shall comply with any insurance standards set by the Master Association to the extent they are higher than standards set in the Condominium Documents or the Act; (c) Producing on demand to any Unit Owner the policy of insurance and the receipt for any premium payable in respect thereof; (d) Ensuring that the Condominium Common Property together with any buildings structures or machinery thereon are maintained in a good state of repair and kept clean and tidy paying so far as the amenity areas are concerned the cost of any water or electricity used in connection therewith; (e) Such other duties as may from time to time be prescribed by the members of the Condominium Association in General Meeting; and (f) Maintaining detailed and accurate accounts and records in chronological order of the receipts and expenditures arising from its operation of the Property; such accounts and records and any vouchers authorizing any payments shall be available for inspection by any Unit Owner at all reasonable times and accounts duly audited by a qualified auditor shall (unless waived in writing by a majority of the Unit Owners for the time being) be rendered to all Unit Owners at least once in every year. 19. (a) In the event of damage to or destruction of the Buildings or insurable Improvements (hereinafter referred to as "the Insured Property") as a result of fire or other casualty, whether resulting from an insured or uninsured casualty, the Association shall arrange for the prompt repair and restoration of the Insured Property in accordance with the provisions of Section 26 of the Act and the Association shall disburse the proceeds of all insurance policies to the contractors engaged in such repair and restoration in appropriate progress payments. (b) Whenever in this Clause the words "prompt repair" are used, it shall mean that repairs are to begin not more than sixty (60) days after the date the Association notifies the Owners that it holds proceeds of insurance on account of such damage or destruction sufficient to pay the estimated cost of such work, or not more than ninety (90) days after the Association notifies the Owners that such proceeds of insurance are insufficient to pay the estimated costs of such work. The Association may rely on a Certificate of the Association made by its President and Secretary to determine whether or not the damaged property is to be reconstructed or repaired. (c) Any reconstruction or repair must be made substantially in accordance with the plans and specifications for the original Improvements and in accordance with applicable building and other codes. Where it becomes the duty of the Association pursuant to Section 26 of the Act to reconstruct or repair the Building the plans,
10 Common Expenses specifications and scheme for reconstruction or repair shall be approved in accordance with the provisions of Section 26 of the Act and shall additionally be subject to the prior written approval of the Management Company. Any plans and specifications for reconstruction or repair shall also be subject to the prior written approval of the Management Company such approval not to be unreasonably withheld. (d) notwithstanding anything contained in the Condominium Documents, the Association shall not be liable or responsible for, or in any manner a guarantor or insurer of, the health, safety, or welfare of any owner, occupant, or user of any portion of the Property including residents and their families, guests, invitees, agents, servants, contractors, or subcontractors or for any property of any such persons. Without limiting the generality of the foregoing: (i) it is the express intent of the Condominium Documents that the various provisions thereof which are enforceable by the Association and which govern or regulate the uses of the Property have been written, and are to be interpreted and enforced, for the sole purpose of enhancing and maintaining the enjoyment of the Property and the value thereof; (ii) the Association is not empowered, and has not been created, to act as an entity which enforces or ensures the compliance with the laws of the Commonwealth of The Bahamas. (iii) any provisions of the Condominium Documents setting forth the uses of assessment funds which relate to health, safety, or welfare shall be interpreted and applied only as limitations on the uses of assessment funds and not as creating a duty of the Association to protect or further the health, safety, or welfare of any person(s), even if assessment funds are chosen to be used for any such reason. (iv) each Owner (by virtue of his acceptance of title to his Unit) and each other person having an interest in or lien on, or making any use of, any portion of the Property (by virtue of accepting such interest or lien or making such uses) shall be bound by this provision and shall be deemed automatically to have waived any and all rights, claims, demands, and causes of action against the Association arising from or connected with any matter for which the liability of the Association has been disclaimed in this provision. (v) as used in this paragraph, "Association" shall include within its meaning all of the Association's directors, officers, committee, employees, agents, managers, contractors, subcontractors, successors, and assigns and their respective directors, officers, and employees and shall also include the Declarant, which shall be fully protected hereby. 20. All expenses incurred by the Condominium Association in connection with the discharge of the duties referred to in Clause 18 hereof any administrative or operational costs incurred by the Condominium Association and all costs and expenses arising under the Master Declaration and assessed by the Master Association against the Property are hereinafter referred to as "Common Expenses" which shall include the cost of complying with any Notice or Order issued by a
11 Assessments and Common Expenses competent public authority and any rates charges taxes or assessments on the Property and as a whole and the Condominium Association shall be entitled to recover such Common Expenses from the Unit Owners for the time being by contributions to be made by each Unit Owner at whatever intervals the Directors of the Condominium Association may think fit and the amount of which is to be calculated in accordance with Clause 21 hereof save and except that until a contrary resolution is passed by the said Directors each Unit Owner shall pay in advance to the Condominium Association one quarter's contribution to maintenance. Provided however that: (a) The Condominium Association if authorized by its members in General Meeting may from time to time agree that expenditure for any other purposes may be considered Common Expenses and any expenses declared to be Common Expenses by the provisions of the Act or by this Declaration, the Byelaws or the Master Declaration may be charged as Common Expenses and recovered from the Unit Owners; and (b) The expression "Common Expenses" shall not include the cost of repairs and maintenance work carried out by the Condominium Association to: (i) any Unit at the request of the Unit Owner thereof; (ii) any conduit duct pipe cable drain wire or plumbing or sanitary apparatus situate within any Unit which was installed only for the benefit and use of the occupiers for the time being of that Unit and no other; or (iii) any portion of the Condominium Common Property or any conduit duct pipe cable drain wire plumbing or sanitary apparatus situate within the Unit damaged due to the act neglect or carelessness of the Unit Owner or his guests employees agents or lessees; and all such moneys so expended shall be recoverable from the Owner of the relevant Unit. 21. (1) Assessments: The Owner of each Unit shall be liable for that share of the Common Expenses which equals the Unit Entitlement. The Association shall invoice each Owner for the portion of the Common Expenses which are attributable to the Owner's Unit. The mailing and collection of assessments against each Owner for Common Expenses, for the costs or expenses for which an individual Owner may be solely responsible pursuant to the Condominium Documents, and for reserves as may from time to time be established by the Board, shall be pursuant to the Byelaws, subject to the following provisions: (a) Interest; Application of Payments: Assessments and installments on assessments paid on or before twenty (20) days after the date when due shall not bear interest, but all sums not paid on or before twenty (20) days after the date when due shall bear interest at the rate of 18% per annum or the highest rate permitted by law from the date when due until paid. In addition, the Association may charge an administrative late fee for each delinquent installment in the amount of twenty-five dollars (US$25.00). The Association may use the services of a collection agency for collection of delinquent accounts. All payments shall be first applied to interest, administrative late fees, costs, and reasonable attorneys' fees incurred in collection
12 including any incurred in all insolvency bankruptcy and probate proceedings, and then to the assessment payment first due. The Board shall have the discretion to increase or decrease the amount of the administrative late fee or interest rate within the limits imposed by law; provided, however, that the increase or decrease shall be made effective by amending the Rules and Regulations and notifying the Owners of same by regular mail addressed to each Owner at the last known address of each Owner as set forth in the Association's books and records. Notwithstanding any provision of this paragraph to the contrary, the Board shall have the right to waive any late fees or interest that accrue as a result of delinquent payment. (b) Lien for Assessments: The Association shall have a Lien against each Unit for any unpaid assessments and for interest thereon relative to such Unit, which Lien shall also secure all late charges, reasonable attorneys' fees and costs incurred by the Association incident to the collection of the assessment or enforcement of such Lien, whether or not legal proceedings are initiated and including those incurred in all bankruptcy and probate proceedings, and all sums advanced and paid by the Association for taxes and payments on account of superior mortgages, liens, or encumbrances which may be advanced by the Association in order to preserve and protect its Lien and such said costs, fees and expenditures shall constitute a common expense under the provisions of the Act for the purpose of creating a charge on such Unit. The Association shall lodge for recording a claim of Lien in the Registry stating: (i) (ii) (iii) the name of the Association and address of the Property, the volume and page number of the record of this Declaration, and the legal description of the Unit and the name of the Owner of record, the amount claimed to be due and the due dates. The Lien shall continue in effect until all sums secured by the Lien shall have been fully paid or until such time as is otherwise permitted by law. Claims of Lien shall be signed and verified by an officer or by an authorized agent and under the common seal of the Association. On receipt of full payment, the party making payment shall be entitled on demand to the Association to a recordable Discharge Certificate within a reasonable period of time after such demand, to be prepared and recorded at such party's expense. The Association may also sue to recover a money judgment for unpaid assessments or may exercise all the powers of sale of a mortgagee pursuant to the provisions of the Conveyancing and Law of Property Act, Chapter 138, the Statute Laws of The Bahamas, Revised Edition of 2000. Nothing in this Declaration shall be construed as a modification of any rights or remedies of the Association pursuant to applicable law, except to the extent that the Condominium Documents allow additional remedies, to the extent that such additional remedies are permitted by law. (c) Personal Liability for Unpaid Assessments: Each Owner is personally liable for all assessments made against the Unit pursuant to this Declaration and applicable law, and the Association may bring an action for a money judgment against a delinquent Owner to collect all sums due the Association, including interest,
13 Obligations of Unit Owner late charges, costs, and reasonable attorneys' fees, including those incurred in all bankruptcy and probate proceedings. If a Unit is owned by more than one Person such owners shall be jointly and severally liable for all assessments made against their respective Unit. The liability for assessments may not be avoided by waiver of the use or enjoyment of any Common Property or by abandonment of the Unit for which the assessments are made. Any Person acquiring title shall pay the amount owed to the Association within thirty (30) days after transfer of title. (d) Payments of Assessments: No Owner may withhold payment of any regular or special assessment or any portion thereof because of any dispute which may exist between that Owner and the Association, the Management Company, or Declarant, or among any of them, but rather each Owner shall pay all assessments when due pending resolution of any dispute. (e) Suspension of Services: If an Owner is more than thirty (30) days in arrears with respect to any assessments or any other payments due from such Owner to Association, Management Company may, but is not obligated to, suspend services to such Owner without notice. (2) No conveyance of a Unit shall be recognized as valid by the Association unless accompanied by a certificate of the Association stating that all Personal Charges due the Association are paid in full. 22. Each Unit Owner shall: (a) during the occupancy of his Unit observe the Master Declaration and the Unit Restrictions and do nothing to obstruct or interfere with the conditions restrictions and easements in favour of other Units set out in the Act, in the Master Declaration or in this Declaration; (b) in his use and enjoyment of his Unit and the Condominium Common Property observe the Byelaws set out in the Schedule to the Act and herein (as amended from time to time by the Condominium Association) or such Byelaws as may be from time to time in force; (c) punctually pay all contributions demanded of him by the Condominium Association in respect of Common Expenses in accordance with Clause 21 hereof. (d) promptly to report to the Association any defect or need for repairs for which the Association is responsible; (e) to bear in their entirety any expenses of repairs or replacements to the Property occasioned by the specific use or abuse by any Owner or any licensee, guest, or tenant of any Owner; (f) to permit the Association and its agents, at all reasonable times on notice (except in case of emergency when no notice shall be required), to enter the Owner's Unit for the purpose of inspecting the same and maintaining, repairing, or renewing pipes, wires, cables, and ducts for the time being existing in the Unit and capable of being used in connection with the enjoyment of any other Unit or Common Property, or for the purpose of maintaining, repairing, or renewing Common Property,
14 or for the purpose of ensuring that the provisions of this Declaration and the Byelaws are being observed. (g) (i) (ii) each Owner shall have the primary obligation and liability to: maintain the Owner's Unit as well as all items that comprise such Unit or that are contained therein or that exclusively service such Unit in compliance with all applicable laws, this Declaration and the Master Declaration, and in good order, condition, and repair; maintain (i.e., keep such areas in a clean, attractive, and sanitary condition, free from rubbish and litter, but not paint) the patio appurtenant to the Owner's Unit (if any), and the top, side, and lower surfaces of the interior and exterior balcony appurtenant to the Owner's Unit (if any), with the Association being responsible for painting the same and for the outward facing surface and actual structure and structural components of such patios and balconies. (h) no Owner shall make any addition, alteration, or improvement in or to the Owner's Unit without the prior written consent of: (i) (ii) the Association; and the Master Association pursuant to the provisions of the Master Declaration. The Association shall have the obligation to answer any written request by an Owner for approval of such an addition, alteration, or improvement in such Owner's Unit within forty-five (45) days after the earlier date of such request and the date on which all additional information requested is received, and the failure to do so within the stipulated time shall constitute the Association's consent. The proposed additions, alterations, and improvements by the Owner shall be made in compliance with all laws, rules, ordinances, and regulations of all governmental authorities having jurisdiction (although the Association shall in no manner be required to enforce same) and with any conditions imposed by the Association with respect to design, structural integrity, aesthetic appeal, construction details, Lien protection, or otherwise. An Owner making or causing to be made any such additions, alterations, or improvements agrees, and shall be deemed to have agreed, for such Owner, and his heirs, personal representatives, successors, and assigns, as appropriate, to hold the Association and all other Owners harmless from and to indemnify them from any liability, obligation, loss, claim, suit, charges, or damage and expenses arising therefrom, and shall be solely responsible for the cost and expense of maintenance, repair, and insurance thereof from and after that date of installation or construction thereof as may be required by the Association. (i) the foregoing restrictions of this Clause (Clause 22) shall not apply to Declarant-owned Units. The Declarant shall have the additional right subject to the terms of the Act and this Declaration, without the consent or approval of the Association, Master Association or other Owners, to make alterations, additions, or improvements, structural and non-structural, interior and exterior, ordinary and extraordinary, in, to, or on any Unit owned by it or by another Owner consenting to
15 Management Agreement Register of Unit Owners Mortgages Rules and Regulations the applicable change(s), and immediately adjacent Common Property (including the removal or addition of walls, floors, ceilings, or other structural portions of the Improvements), provided, however, that there shall be no adverse impact on any other Owners. 23. Management Agreement: As set forth in Clause 15, the Association may enter into such management contracts, from time to time, as it deems necessary to engage the services of third parties to carry out all or part of the maintenance and operational duties and obligations of the Association in accordance with this Declaration. The Association will enter into Management Agreements with the Management Company for such purposes. If a Management Agreement is terminated, the maintenance duties and other obligations of the Condominium will be the exclusive responsibility of the Association. 24. The Condominium Association shall at all times maintain a register containing the names of the Unit Owners of all of the Units together with an address for service which unless the Unit Owner shall reside permanently in the Unit shall be one which is not within the Property and in the event of sale or transfer of any Unit the purchaser or transferee shall notify the Condominium Association in writing of his interest in such Unit together with such recording information as shall enable the instrument by which such purchaser or transferee has acquired his interest to be identified in the Registry of Records. 25. Any person to whom a Unit or Units may be conveyed by way of legal mortgage (hereinafter referred to as "the Legal Mortgagee") shall subject to the recording of such Mortgage in the Registry of Records and upon the service of written notice thereof on the Condominium Association be considered the Unit Owner in respect of that Unit including membership in the Condominium Association which is appurtenant to such Unit; the Legal Mortgagee may give a proxy to his mortgagor enabling the mortgagor to exercise the voting rights in respect of such membership and such proxy shall (so far as may be necessary) constitute a notice of waiver for the purposes of Section 16(3) of the Act and may be revoked by the Legal Mortgagee at any time. 26. Rules and Regulations: Each Owner shall comply with the Rules and Regulations. Reasonable Rules and Regulations concerning the use of the Property may be promulgated and amended from time to time by the Association in the manner provided by the Byelaws. Association reserves the right to make such other Rules and Regulations as, in its judgment, may from time to time be needed for care and cleanliness of the Property, the preservation of good order in and on the Property and for the proper governance of the Property. Association may delegate any or all of its rights set forth in the Rules and Regulations to the Management Company as its agent and, to the extent that this is the case: (i) Owners shall deliver to Management Company (on behalf of Association) all notices, reports, or other materials to be delivered by Owner to the Association under these Rules and Regulations; and (ii) Any instruction, approval, other communication, discretion, or action to be given, exercised, or undertaken by or on behalf of the Association under the
16 Service of Documents Amendments to Declaration Copies of Declaration Rights of Declarant Termination of Declaration Marginal Notes Rules and Regulations shall be given or exercised by a Management Company on behalf of the Association. The Association reserves the right to enforce and to initiate legal and any other proceedings against any Owner or Permittee for breach of any of the Rules and Regulations. 27. Service on Unit Owners shall be by prepaid registered post to the address for service shown in the Register maintained under the provisions of Clause 24 hereof and when such address is outside the said Commonwealth the notice shall be sent by prepaid registered airmail; service on the Condominium Association shall be made in accordance with Section 29 of the Act. 28. Save as herein otherwise stipulated this Declaration may be amended from time to time by a Special Resolution of the Condominium Association passed by Unit Owners representing a minimum of Seventy five percent (75%) of the unit entitlement subject to the same being lodged in the Registry of Records within Twenty-one (21) days from the date thereof AND the Condominium Association shall immediately after the passing of such resolution notify all Unit Owners thereof. 29. The Condominium Association shall at its Principal Office keep copies of this Declaration (including the Byelaws) and all amendments thereto and such copies shall be available for inspection at reasonable hours by any Unit Owner (including any mortgagee) or other interested party or by any person duly authorized in writing by any of them. 30. From the effective date of this Declaration each completed Unit together with its unit entitlement shall until sale be vested in the Declarant subject to the Unit Restrictions and otherwise pursuant to the provisions of the Act, this Declaration and the Master Declaration. 31. The Property may only be removed from the provisions of the Act pursuant to the provisions of Section 31 thereof. If any provision of this Declaration shall be prohibited by law or declared by a court to be unlawful, void or unenforceable, the provisions shall, to the extent required, be severed from this Declaration and rendered ineffective as far as possible without modifying the remaining provisions of this Declaration, and shall not in any way affect any other circumstances of or the validity or enforcement of this Declaration. 32. The marginal notes are for the purpose of ease of reference only and do not form part of this Declaration.
17 THE FIRST SCHEDULE HEREINBEFORE REFERRED TO (description of the Property) THE SECOND SCHEDULE HEREINBEFORE REFERRED TO BUILDING UNIT UNIT ENTITLEMENT E E13 E14 F F15 F16 G G17 G18 G19 G20 H H21 H22
18 THE THIRD SCHEDULE HEREINBEFORE REFERRED TO Use and Occupancy Restrictions 1. Occupancy: Subject to Owners' rental rights set forth in this Declaration, Units may only be occupied and used by their respective Owners and Permittees as private dwellings or guest accommodation only, and for no other purpose. 2. Pets and Other Animals: (a) No pets, reptiles, wildlife, or other animals, other than dogs or cats will be allowed anywhere on the Property (including the Units) without the prior written consent of the Association (except those pets licensed to provide aid to and which are accompanied by a disabled person), nor will any animals be kept, bred, or maintained for any commercial purposes. (b) The conduct of all pets must not interfere with the rights and privileges of the neighbors of pet-owning Owners or Permittees or any person or owner within the Development ("Development Owner"). If there are any nuisances or disturbances caused by a pet, or complaints from other Owners, Permittees, or Development Owner regarding a pet, the Association may require that such pet be removed from the Property. All Owners are responsible for the actions of their pets and the pets of Permittees and the costs of any and all damage caused by such pets shall be a Personal Charge of the Owner. 3. Alterations: Without limiting the generality of Clause 22 of this Declaration, no Owner shall cause or allow improvements or changes to any Unit or Common Property, including, painting or other decorating of any nature (other than to the interior of the Unit), installing any electrical wiring, television antenna, machinery, or air-conditioning units or in any manner changing the appearance of any portion of the Building, without obtaining the prior written consent of the Association and the Master Association. 4. Use of Common Property: The Common Property shall be used only for the furnishing of the services and facilities for which they are reasonably suited and which are incident to the use and occupancy of Units. 5. Nuisances and Objectionable Practices: (a) No nuisances (as reasonably determined by the Association) shall be allowed on the Property, nor shall any use or practice be allowed which is a source of annoyance to residents or occupants of Units or which interferes with the peaceful possession or proper use of the Property by its residents or occupants. (b) Neither Owners nor Permittees shall (i) use or keep in or about the Property any kerosene, gasoline, or flammable or combustible fluid or material; (ii) use, keep, or permit to be used or kept any foul or noxious gas or substance in or about the Property; or (iii) permit any unusual or objectionable odors to emanate from their Units; (iv) with respect to such Owners or Permittees, permit or suffer the Property to be occupied or used in a manner offensive or objectionable to others because of noise, odors, vibrations, or otherwise; or (v) interfere in any way with