COVENANTS, CONDITIONS AND RESTRICTIONS
OF THE ESTATES OF APPLE VALLEY
ALL MEN BY THESE PRESENTS:
WHEREAS, David T. Yost and Anna M. Yost,
husband and wife, hereafter referred to as the “Declarant,” are the owners of
certain land and improvements in Oklahoma County, Oklahoma, which property is
more fully described on the attached “Exhibit A,” incorporated herein and made
a part hereof for all purposes, and
WHEREAS, Declarant desires to submit the land
and improvements constructed thereon to Oklahoma’s Real Estate Development Act
(Title 60 O.S. 1971, Sections 851-855, as amended).
NOW, THEREFORE, Declarant does hereby publish
and declare that the land and its improvements are hereby subjected to the
conditions, covenants, and restrictions herein set forth to be established upon
the recording hereof, in accordance with and subject to the provisions of the
Oklahoma Real Estate Development Act, and that the covenants, conditions,
restrictions, use limitations, obligations, and provisions hereof shall be
deemed to run with the land described on “Exhibit A” and shall be for the use
and benefit of the Declarant, their successors and assigns, and of any person
or entity acquiring or owning an interest in the land and improvements, or any
person thereof, their grantees, successors, heirs, personal representatives,
devisees and assigns.
1. Definitions. Unless the context
shall expressly provide otherwise:
means the Homeowners’ Association of the Estates of Apple Valley, Inc. an
Oklahoma corporation, its successors and assigns, the By-Laws of which shall
govern the administration of this Real Estate Development, the members of which
shall be all of the owners of the Lots in The Estates of Apple Valley.
means one or more of the building improvements lying within the real estate
described on Exhibit “A.”
Elements” means all portions of the Real Estate Development other than the
Lots and other than publicly dedicated real property, and includes, but is not
limited to, entryways to the real estate development and improvements,
including, but is not limited to, the pond, the park and the street lamps,
including all landscaping, lighting and signs thereon.
Expenses” means and includes expenses for maintenance, replacement, repair,
operation, improvements, management and administration, and expenses declared
common expenses by the provisions of this Declaration and the By-Laws of the
shall mean and refer to David T. Yost and Anna M. Yost, husband and wife, and
their successors and assigns.
means a portion of the Real Estate Development designated for separate
ownership, the boundaries of which are the lot lines, as shown on the recorded
plat of the real estate described on Exhibit “A.”
means a person or persons, firm, corporation, partnership, trust, association
or other legal entity, or any combination thereof, who owns one or more Lots.
means a natural person, corporation, partnership, association, trust, other
entity, or any combination thereof.
Estate Development” means the real estate described in “Exhibit A,” as
provided for at 60 O.S. Section 851, as amended.
shall mean the Rules and Regulations adopted by the Association as amended from
time to time.
From Neighboring Property” shall mean, with respect to any given object,
that such object is or would be visible to a person six feet tall, standing on
any part of each neighboring property at an elevation of no greater than the
elevation of the base of the object being viewed.
2. Property Rights.
Nonexclusive Easement of Enjoyment; Limitations. Every Owner and his
immediate family shall have a nonexclusive right and easement of enjoyment in
and to the Common Elements, which shall be appurtenant to and shall pass with
the title to the Lot of such Owner, subject to the following rights. No Owner
shall remove, alter, injure, or interfere in any way with any shrubs, trees or
plantings upon the Common Elements without the prior written consent of the
Architectural Control Committee.
Rights to Use and to Grant Easements. There shall exist the nonexclusive
right and easement of the Association to make such use of the Real Estate
Development as may be necessary or appropriate for the performance of the
duties and functions which it is obligated or permitted to perform under this
Declaration. The Association, in its sole discretion, may from time to time
grant easements and rights-of- way on, across, under and over the Common
Elements to any municipal corporation or public utility company, or other
entity providing water, sewer, gas, electricity, telephone, cable television,
or other similar service to the Real Estate Development.
Right to Make Rules. The right of the Association to make reasonable rules
regarding the use of the Common Elements and facilities located thereon by
members and other persons entitled to such use.
Money. The right of the Association, in accordance with its Bylaws to
borrow money for the purpose of improving the Common Elements and, in aid
thereof, to mortgage said Common Elements.
Property. The right of the Association to take such steps as are reasonably
necessary to protect the above described properties against foreclosure.
of Use; Nonresident Owner. Any Owner may delegate his right of enjoyment of
the Common Elements to the members of his family, to his tenants, to guests or
to contract purchasers who may reside on the Lot. All such persons shall be
subject to these covenants concerning such use. Any Owner not residing on his
Lot may not have a right of enjoyment of any Common Elements except as provided
otherwise by these covenants.
Access Easement. Each Owner shall have a nonexclusive easement in, on and
through the Common Elements for access to said Owner’s Lot.
Easements for Utilities or Police, Fire, Etc. For Maintenance and Repair to Common Elements. There is hereby
created a blanket easement in, on, through, upon, across, over and under all of
the Common Elements for ingress and egress, installation, replacement, repair
and maintenance of all Common Element improvements and all utilities, including,
but not limited to, water, sewer, gas, telephones and electricity. By virtue of
this easement, it shall be expressly permissible for the electrical and/or
telephone company providing service to erect and maintain the necessary poles,
underground lines, and other necessary equipment on said Common Elements and to
affix and maintain electrical and/or telephone wires, circuits, and conduits
on, above, across and under the roof and exterior walls of the buildings, if
any, upon the Common Elements. An easement is further granted to all police,
fire protection and ambulance personnel, and all similar persons to enter upon
the Common Elements in the performance of their duties. Further, an easement is
hereby granted to the Declarant and to the Association to enter in, onto,
above, across or under the Common Elements and any Lot to perform the duties of
improvement, maintenance and repair to the Common Elements. Notwithstanding anything
to the contrary contained in this paragraph, no sewers, electrical lines, water
lines, or other utilities may be installed or relocated on said Common Elements
except as approved by Declarant or the Association. Should any utility
furnishing a service covered by the general easement herein provided request a
specific easement, Declarant or the association may grant such an easement to
the Common Elements by a separate recorded instrument without conflicting with
the terms hereof and without consent of the Owners being required. The
easements provided for in this paragraph shall in no way affect any other
recorded easement to said Common Elements.
Deemed Appurtenant. The easements and rights herein created for an Owner
shall be appurtenant to the Lot of that Owner, and all conveyances and
instruments affecting title to a Lot shall be deemed to grant and reserve the
easements and rights as provided herein, as though set forth in said document
in full, even though no specific reference to such easements or restrictions
4. Use and Occupancy. After the initial
sale or transfer of a Lot or Lots by Declarant, all such Lots shall thereafter
be used and occupied only for single-family residence purposes by the Owner, by
the Owner’s family, the Owner’s tenants or the Owner’s guests.
Business Office; Model Homes. Declarant, and with their permission, any
builder, and their employees, representatives, and agents may maintain a
business and sales office, model homes, and other sales facilities necessary or
required until all of the improved lots are sold.
or Noxious Use. The Owner of any Lot shall not use or allow the use of such
Lot for any purpose which will be noxious, offensive or detrimental to the use
of the other Lots or which will create or emit any objectionable, offensive or
noxious odors, dust, gases, fumes or other such material or which will in any
manner violate any applicable zoning ordinance or other regulations enacted by
~any duly constituted governmental authority.
Drilling. No drilling or puncturing of the surface for oil, gas or other
minerals or hydrocarbons within the Real Estate Development shall’ be
The keeping of any poultry, cattle, horses or other livestock of any kind or
character is prohibited within the Real Estate Development. “No other animals,
birds, fowl or poultry shall be maintained on any of said Lots, other than a
reasonable number of generally recognized house or yard pets, and then only if
they are kept, bred, or raised thereon solely as domestic pets and not for commercial
purposes. All house or yard pets in the Estates of Apple Valley including but
not limited to dogs and cats shall be kept inside, penned or on leash at all
times on any Lot, and shall not be allowed in the Common Elements unless on
leash. No house or yard pets or other animals shall be allowed to swim or
exercise in the pond in the Common Elements. No animal, bird, fowl or poultry shall be allowed to make an
unreasonable amount of noise, or to become a nuisance. No structure for the
care, housing exercise or confinement of any animal, bird or fowl shall be
maintained on any of said Lots so as to be Visible From Neighboring Property
without the prior written consent of the Architectural Control Committee.”
Storage; Growth. The storage of trash, ashes, or other refuse, except in
normal receptacles, is prohibited. Further, no trash, garbage cans or
receptacles of any kind shall be left in sight, except on days so designated
for collection thereof. Weeds or other unsightly growths shall not be permitted
to grow or remain on any Lot or Common Elements. No trash, ashes or other
refuse may be thrown on any other Owner’s Lot or in or on Common Elements.
and Billboards; Declarant’s Right. No signs or billboards exceeding six (6)
square feet in area shall be permitted on any Lot or Common Element without the
prior written consent of the Association; however, this prohibition shall not
apply to the Declarant.
Parking and Storage. Except where adequate screening has been previously
provided and an Owner has received prior written approval from the
Architectural Control Committee (hereafter defined), no boats, trucks, campers,
recreational vehicles, motor homes or large commercial vehicles, nor any
vehicle in the process of being repaired or otherwise presently inoperable,
shall be stored or parked a) in front of the front building line b) on Common
Elements, or c) on the publicly dedicated streets within the Real Estate
Development; no vehicle shall park on publicly dedicated streets for more than
48 hours, and parking shall be allowed only in designated parking areas. The
operation and parking of all vehicles on the Real Estate Development are
subject to the By-Laws and the rules and regulations of the Association.
from Common Elements or Lot. All garbage cans, equipment, or storage piles
shall be located so as not to be Visible From Neighboring Property or from the
Common Elements or any other Lot within the Real Estate Development.
Except with the prior written approval of the AGO, no tanks of any kind shall
be erected, placed or permitted on any Lot or Common Elements.
or Television Transmitting Device; Wind Powered Generators. No radio or
television transmitting or receiving device which extends more than ten (10)
feet above the peak of a roof shall be allowed unless approved in writing by
the Architectural Control Committee. Further, no wind powered generators shall
be erected or maintained. No satellite dish or receiver shall be Visible From Neighboring
Property, except the device utilized by Antenna Vision or a device approved by
No waste shall be committed on the Common Elements.
Structure. No outbuilding, storage shed, trailer, tent, shack or any structure
of a temporary character shall be used at any time as a residence.
4.13 Drainage Easement Maintenance. The Owner of a Lot crossed
by the Private Drainage Easements reflected in the Plat of the Estates of Apple
Valley has the obligation of maintaining that portion of his Lot within said
easement free of accumulations of grass cuttings, brush, deadwood, and any
other debris so as to permit the unhindered natural flow of drainage, and to
prevent the downstream clogging on drainage openings under roads or at points
where water flows off of the Estates of Apple Valley.
and Alterations; Plans and Specifications. No dwelling, fence, building,
wall, storage shed, cabana, greenhouse, playhouse, pergola, or other
improvement or structure shall be commenced, erected or placed upon the Real
Estate Development until the complete plans and specifications showing the
precise and exact nature, kind, shape, height, set-back, materials, color and
location of such improvements shall have been submitted in duplicate to and
approved in writing as to harmony of external design, color and location in
relation to surrounding structures and topography and conformity with the
design concept for the Real Estate Development by the Architectural Control
Committee, as more fully described below. Alterations to improvements after the
residence is occupied (as distinguished from approval of new construction) must
also be approved by the Architectural Control Committee. The Architectural
Control Committee shall be composed of three (3) or more natural persons
designated from time to time by the Board of Directors of the Association, and
such persons shall serve at the pleasure of the Board of Directors. The ACC
shall initially be composed of David T. Yost, Anna M. Yost and Lori A. Yost.
Plans and Specifications; Approval. No dwelling, building, fence, wall,
storage shed, cabana, greenhouse, playhouse, pergola, or other improvements or
structure shall be commenced, erected, or placed upon the Real Estate
Development until the complete plans and specifications showing the precise and
exact nature, size, kind, shape, height, set-back, materials, color and
location of the same shall have been submitted in duplicate to and approved in
writing by the ACC (see above definition in paragraph 4.14) as to harmony of
external design, color and location in relation to surrounding structures and
topography and conformity with the design concept for the Real Estate
The following guidelines, unless hereafter
amended by ACC or waived in writing by ACC, shall be adhered to by ACC.
may be one story, one and one-half story, split level, two, two and one-half or
three stories in height. Eaves, steps and open porches shall be considered a part
of the dwelling; provided, however, that this shall not be construed to permit
any portion of a dwelling on a Lot to encroach upon another Lot.
building or other structure shall he constructed or maintained upon any Lot
which would in any way impede natural drainage without the prior written
consent of the ACC. No grading, scraping, excavation or other rearranging or
puncturing of the surface of any Lot shall be commenced which will or may
intend to interfere with, encroach upon, or alter, disturb or damage any
surface or subsurface utility line, wire or easement, or which will or may tend
to disturb the minimum or maximum subsurface depth requirement of any utility
line, pipe, wire or easement.
single-family residence constructed on all Lots in the Real Estate Development
shall contain a minimum of 2,400 square feet of floor space. However, as to
those lots located in the section of the Estates of Apple Valley known as The
Enclave, said lots being described as Lots 1 through 22 in Block One, the
minimum shall be 3,000 square feet of floor space. In computing the square
footage of floor space of a residence, the basement, open porches, and garages
shall be excluded. In the case of a one and one-half story, two, two and
one-half or three story structure, the ground floor shall in no event be less
than 1,800 square feet and in The Enclave shall be no less than 2,200 square
building, or any part thereof, shall be located nearer to the front lot line or
side street lot line than the building set-back lines shown on the recorded
plat. The side lot limit line of a one story structure, each side of the main
structure, shall be a minimum of twenty five feet (25’). If one structure is
placed on two Lots, then only the distance from the outside boundary lines
mail boxes shall be encased in brick or rock to match the house.
fence, garage or enclosure of any type or nature whatsoever shall be
constructed, erected, placed, or maintained forward of the front building limit
or setback line on each Lot, as same is shown on the recorded plat thereof,
approved fences may be placed adjacent to the property line beginning at the
required setback point, or inside lot lines; however, a fence erected on a
corner lot that parallels the side lot line that is exposed to the street must
be setback at least fifteen feet from the property line. Use of barbed wire or
other agricultural type fencing material such as “hog wire” or “horse wire” is
specifically prohibited. No double fencing is allowed. If there is an existing
fence that abuts a lot, the fences must join. If brick or stone columns are
used, they must match the house.
backboards may be erected at the residences in the Real Estate Development. Backboards
must not be attached to the front of the house or garage. All such backboards
must be located behind the front corner of the house on any Lot. The supporting
structure must be kept completely painted and free of dirt and any markings giving
it an unsightly appearance. The backboard must also be kept clean and free of
any marking which gives it an unsightly appearance. A backboard which is
cracked must be removed or replaced immediately and the net must be free of all
rips and tears and shall be replaced whenever it becomes unsightly. The rim
must be kept perpendicular to the backboard in a standard basketball
installation. Homeowners are to obstruct the view, to the extent possible, of
the backboard from all Common Elements and other Lots. No offensive activity is
permitted which results from use of the basketball backboard.
dwelling shall be constructed on any Lot unless it has an attached garage with
a capacity sufficient for at least two (2), but not more than four (4) cars.
outside wall structure of the ground floor living area of any dwelling shall be
at least seventy five percent (75%) brick veneer, stone or masonry approved in
writing by ACC. Any stone above the eight foot plate shall count toward the minimum.
Under special circumstances an exception to the masonry requirement may be
granted by consent of the Declarant. Such an exception shall be made only when
and if the plans and specifications clearly show the proposed dwelling to meet
or exceed all the intended quality and value requirements; and when an exterior
material other than masonry is clearly an architectural or design necessity. However,
in no event will artificial stone materials be acceptable.
fireplaces shall be of masonry construction approved by ACC.
building of any nature shall be permitted in the easements reserved for
utilities, and there shall be no retaining wall permitted in easements unless
approved by the ACC.
installation must be completed within thirty (30) days of occupancy, weather
and growing season permitting. If installation of a lawn is delayed due to the
dormant season, it must be undertaken as soon as possible.
4. 14.1.13 No building shall be erected on
any Lot unless it shall have a roof of wood shingles, clay tile, slate and
composition shingles with a weight of at least 360 lbs. per square in two
approved colors commonly known as “weathered wood” and “antique slate”. All
composition shingle roofs must be approved by the ACC as to quality, weight and
color. Also, all composition roofs must have pre-painted “W” formed valleys and
dimensional ridge with no felt underlayment of less than 30 lbs.
to those residential structures erected on any Lot located in The Enclave, the
following construction elements are required unless otherwise approved by the
featured security alarm systems
light fixtures atop the required masonry mail box
or rear-entry garages
shall be of wood, brick or masonry construction.
outdoor clothes lines or similar facilities shall be allowed.
outbuilding erected on any Lot shall be approved in writing by the ACC. Any
such structure shall be constructed of the same primary materials used in the
skateboard ramps may be constructed in any yard or on any Common Element.
septic and water well systems, and all the components thereof, shall be
installed and maintained in accordance with the then existing applicable city,
county, state and federal laws, rules, regulations, and codes. Septic tank
laterals shall be installed according to the applicable requirements of the
Oklahoma County Health Department pursuant to required “percolation” tests in
order to determine the location and extent of “lateral” distribution lines for
Copy of Plans and Specifications Deposited; Lapse of Time Paramount to Approval.
Upon approval by the ACC of any plans and specifications submitted pursuant to
the provisions of these covenants, a copy of such plans and specifications, as
approved, shall be deposited among the permanent records of such Committee, and
a copy of such plans and specifications bearing such approval, in writing,
shall be returned to the applicant submitting the same. In the event the ACC
fails to approve or disapprove any plans and specifications which may be
submitted to it within sixty (60) days after submission, then approval will not
be required, and this paragraph 4.14 shall be deemed to have been fully
Limitations; Deviations from Plans and Specifications. Construction in
accordance with plans and specifications approved by ACC pursuant to the
provisions of this paragraph 4.14 shall be commenced within six (6) months
following the date upon which the same are approved by the ACC (whether by affirmative
action or by forbearance from action, as provided in paragraph 4.12.2) and
shall be substantially completed within twelve (12) months following the date
of commencement, or within such longer period as the ACC shall specify. In the
event construction is not commenced within the period aforesaid, then approval
of the plans and specifications by the ACC shall be conclusively deemed to have
lapsed, and compliance with the provisions of this paragraph 4.14 shall again
be required. There shall be no deviations from plans and specifications
approved by the ACC without the prior consent in writing of the ACC. Approval
for use on any Lot of any particular plans and specifications or design shall
not be construed as a waiver of the right of the ACC to disapprove such plans
and specifications, or any elements or features thereof, in the event such plans
and specifications are subsequently submitted for use upon any other Lot or
and Regulations of Architectural Control Committee. ACC shall from time to
time adopt and promulgate such rules and regulations regarding the form and
content of plans and specifications to be submitted for approval and may
publish such statements of policy, standards, or guidelines and establish such
criteria relative to architectural styles or details, or other matters, as it
may consider necessary and appropriate.
Right to Correct Violations. In the event any dwelling, building, fence, wall
or other improvement or structure shall be commenced, erected, or placed upon
any Lot otherwise than in accordance with the provisions and requirements of
this paragraph 4.14, then the same shall be considered to have been undertaken
in violation of this paragraph 4.14 and without the approval of the ACC
required herein. Upon written notice from the ACC, such dwelling, building,
fence, wall or other structure or improvements shall be promptly removed. In
the event the same is not removed, or the violation is not otherwise
terminated, within fifteen (15) days after notice of such violation is
delivered to the Owner of the Lot upon which such violation exists, then the
Association shall have the right, through its agents and employees, to enter
upon such Lot and to take such steps as may be necessary to remove or otherwise
terminate such violation, and the costs thereof shall be assessed against the
Lot upon which such violation occurred. A statement for the amount thereof
shall be rendered to the Owner of said Lot, at which time the assessment shall
become due and payable and a continuing lien upon said Lot and an obligation of
the Owner, and may be enforced as provided herein. The Association shall have
the further right, through its agents, employees or committees, to enter upon
and inspect any Lot at any reasonable daylight hour for the purpose of
ascertaining whether any violation of the provisions of this paragraph 4.14 or
any of the other provisions or requirements herein, exist on such Lot; however,
no such entry and inspection shall be taken without a resolution of ACC or the
Board of Directors, and after reasonable notice to the Owner of such lot. Neither the Association nor any such agent
or employee shall be deemed to have committed a trespass or other wrongful act
by reason of such entry or inspection.
Pets; Care and Restraint; Limit on Number; Indemnification by Owners. No
animal shall be kept within the Real Estate Development except household pets.
Such pets may not be kept or bred for any commercial purpose and shall have
such care and restraint as not to be obnoxious or offensive on account of
noise, odor or unsanitary conditions. No savage or dangerous animal shall be
kept. No more than three household pets may be kept without written permission
of the Association. No pets may be permitted to run loose within the Real
Estate Development, and any Owner who causes any animal to be brought or kept
within the Real Estate Development shall indemnify and hold harmless the
Association for any loss, damage or liability which the Association may sustain
as a result of the presence of such animal on the premises, whether or not the
Association has given its permission therefore.
Applicable to Common Elements. The Common Elements are available to, and
restricted to, members of the Association and accompanied guests (and
Declarant, for Common Element improvements). All litter must be placed in
litter receptacles. Vehicular parking shall be in designated parking areas. No
wildlife, boats, swimming, trotlines, motorcycles, ATVs, dune buggies, tree
houses, tents, or forts shall be allowed in the Common Elements.
5. Easements for Encroachments. If any
portion of, or improvements on, the Common Elements encroaches upon a Lot or
Lots, a valid easement for the encroachment and for the maintenance of same, so
long as it stands, shall and does exist, regardless of whether such easement is
shown on the recorded plat. If any portion of a Lot encroaches upon the Common
Elements, or upon an adjoining Lot or Lots, a valid easement for the
encroachment and for the maintenance of same, as long as it stands, shall and
does exist. Such encroachments and easements shall not be considered or
determined to be, encumbrances either on the Common Elements or on the Lots.
6. Administration and Management;
Mandatory Membership. The administration and management of this Real Estate
Development shall be governed by these Covenants, Conditions and Restrictions
and by the By-Laws of the Association. An Owner of a Lot, upon becoming an
Owner, shall mandatorily become a member of the Association and shall remain a
member for the period of his ownership. The Association shall be governed by a
Board of Directors as is provided in the By-Laws of the Association. The
Association may employ agents, servants and employees and any person or firm to
act as Managing Agent at any agreed compensation.
7. Records; Inspection by Owners and
The Board of Directors shall keep or cause to be kept current certified copies
of the recorded Declaration, the executed By-Laws, and the books and records
with detailed accounts of the receipts and expenditures affecting the Real
Estate Development and its administration. The records so kept shall be
available for inspection, with reasonable notice, by all Owners, lenders, and
the holders, insurers, and guarantors of first mortgages at convenient hours on
working days or under other reasonable circumstances.
8. Owner’s Maintenance Responsibility of
Lot. For purposes of maintenance, repair, alteration and remodeling, an
Owner shall be deemed to be responsible for all portions, whether interior or
exterior, of the Lot and its improvements, and for maintenance and upkeep of
the Lot in a presentable condition, as determined by the ACC, or the ACC may,
at its discretion, mow said Lot, maintain improvements thereon, trim trees, and
remove trash or debris, the cost of which shall be borne by the Owner.
9. Association’s Maintenance, Operation,
Repair and Alterations
Responsibility. Except as provided in
paragraph 8 herein, the Association shall be responsible only for the
maintenance, operation and repair of the Common Elements.
10. Compliance with Provisions of
Declaration, By-Laws and Rules and Regulations. Each Owner shall comply
strictly with the provisions of this Declaration, the By-Laws of the
Association and the rules, regulations, decisions and resolutions of the
Association adopted pursuant thereto as the same may be lawfully amended from
time to time. Failure and refusal after written notice to comply with any of
the same shall be grounds for an action to recover sums due, for damages or
injunctive relief or both, and for reimbursement of all attorney’s fees
incurred in connection therewith and interest on all of such amounts at the
highest lawful rate, which action shall be maintainable by the Managing Agent
or Board of Directors in the name of the Association on behalf of the Owners
or, in a proper case, by an aggrieved Owner.
11. Voting Rights in the Association.
Voting in the Association shall be on a per Lot basis. The Declarant shall have
four votes for each Lot owned by them, developed or not. All other Owners shall
have one vote per Lot.
12. Revocation or Amendment to Declaration;
Amendment of Undivided Interest in Common Elements. This Declaration shall
not be revoked unless all of the Owners unanimously consent and agree to such
revocation by instrument(s) duly recorded. This Declaration shall not be
amended unless the Owners representing an aggregate ownership interest of
eighty percent (80%), or more, of the Lots together with the Declarant consent
and agree to such amendment by instrument(s) duly recorded. However, Declarants
may amend this Declaration at any time.
13. Assessment for Common Expenses.
to Pay Pro-rata Share. All Owners of Lots shall be obligated to equally pay
the assessments, either estimated or actual, imposed by the Board of Directors
of the Association to meet the Common Expenses.
Due Date. Beginning with the conveyance of each Lot from the Builder to any
Owner, assessments for the estimated Common Expenses shall be due quarterly in
advance on the first day of each quarter unless another date is specified by
written notice from the Board of Directors. In the event the ownership of a Lot
commences on a day other than the first day of a quarter, the assessment for
that quarter shall be prorated.
Assessments; Adjustment. For the purpose of fixing and determining the
annual assessments or charges, the Board of Directors of the Association shall
determine in advance for each calendar year the estimated aggregate amount of
such assessments and charges as may be necessary for such year. The Board of
Directors may from time to time during each year make reasonable adjustments in
said estimated aggregate amount.
Assessments for Capital Improvements; Majority Assent; Notice. In addition
to the quarterly assessments hereof, the Board of Directors 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 cost, repair, or replacement of a described capital
improvement, including the necessary fixtures and personal property related
of Common Expenses; Increases. The assessments made for Common Expenses
shall be based upon estimated expenses growing out of or connected with the
maintenance, repair, operation, additions, alterations and improvement
responsibilities of the Association. In the event the cash requirement for
Common Expenses exceeds the aggregate assessments made pursuant to this
paragraph, the Board of Directors for the Association may from time to time and
at any time increase, prorata, the yearly assessments set forth in this
13.6. Benefit of Assessment or Association
Earning. No part of the assessments or net earnings of the Association
shall inure to the benefit of any Lot Owner or individual, except to the extent
that Lot Owners receive the benefits from the maintenance, repair, operations,
additions, alterations and improvement responsibilities of the Association.
14. Owner’s Personal Obligation for Payment
From Payment; Board Responsibility to Collect; Interest, Costs, and Attorney
Fees; Suit; Notice to Mortgagee. The
amount of Common Expenses assessed against each Lot shall be the personal and
individual debt of the Owner thereof. No Owner may exempt himself from
liability for his contribution toward the Common Expenses by waiver of the use
of the enjoyment of any of the Common Elements or by abandonment of his Lot. The
Board of Directors shall have the responsibility to take prompt action to
collect any unpaid assessment which remains unpaid more than fifteen (15) days
from the due date for payment thereof. In the event of a default by an Owner in
the payment of the assessment, such Owner shall be obligated to pay interest at
the rate of fifteen percent (15%) per annum, or such higher rate (provided the
same shall not be usurious) as the Board of Directors may from time to time
determine on the amount of the assessment from due date thereof, together with
all expenses, including attorney’s fees incurred to collect such assessment
together with late charges as provided by the By-Laws of the Association. Suit
to recover a money judgment for unpaid Common Expenses may be instigated in
Oklahoma County, Oklahoma, and may be maintainable without foreclosing or
waiving the lien securing same. Additionally, in the event that the mortgage on
a Lot should so provide, a default in the payment of an assessment shall be a
default in such mortgage, and if required by the mortgagee by written notice to
the Association, the Board of Directors shall give notice of any default in
payment of an assessment to the mortgagee.
Lot Assessments. Declarant shall not be responsible for payment of
assessments for any Lots in which title is held by Declarant.
and Working Capital. The Association shall establish and maintain an
adequate reserve fund for the periodic maintenance, repair and replacement of
improvements to the Common Elements which the Association may be obligated to
maintain. The fund shall be maintained out of regular assessments for Common
15. Assessment Lien: Priority; Notice of
Lien; Recording; Enforcement; Receiver; Mortgagee May Pay Assessment. All sums
assessed but unpaid for the share of Common Expenses chargeable to any lot,
including any fees, late charges, fines or interest, shall constitute a lien on
such Lot prior to all other liens except the following: (1) assessments, liens
and charges for taxes past due and unpaid on the Lot, (2) judgments entered in
a Court of record prior to the date of Common Expense assessment, (3) mortgage
instruments of encumbrance duly recorded prior to the date of such assessment,
(4) mechanic’s and material men’s liens arising from labor performed or
material furnished upon a Lot prior to the date of such assessment, and (5)
mechanic’s and material men’s liens for labor performed or material furnished
upon the Common Elements to the extent of the proportionate part chargeable to
the Lot Owners which constitute a part of an assessable charge for Common
Expenses, satisfaction of which shall discharge the assessment to the extent of
the payment made. To evidence such lien, the Board of Directors shall prepare a
written notice of assessment lien setting forth the amount of such unpaid
indebtedness, the name of the Owner of the Lot and a description of the Lot.
Such a notice shall be signed by one of the Board of Directors or by one of the
officers of the Association and shall be recorded in the office of the County
Clerk of Oklahoma County, Oklahoma. Such lien for the Common Expenses shall
attach from the due date thereof and impart notice to third parties from the
date of the recording thereof. Such lien may he enforced by the foreclosure of
the defaulting Owner’s Lot subsequent to the recording of a notice or claim thereof
by the Association in like manner as a mortgage on real property. In any such
proceedings, the Owner shall be required to pay the costs, expenses and attorney’s
fees incurred for filing the lien and, in the event of foreclosure proceedings,
the additional costs, expenses and attorney’s fees incurred. The Owner of the
Lot being foreclosed shall be required to pay to the Association the yearly
assessment for the Lot during the period of foreclosure, and the Association
shall be entitled to the appointment of a receiver to collect the same. The
Association shall have the power to purchase a Lot at foreclosure or other
legal sale and to acquire and hold, lease, mortgage, vote the votes appurtenant
to, convey or otherwise deal with the same. Any mortgagee holding a lien on a
Lot may pay, but shall not be required to pay, any unpaid Common Expenses
payable with respect to such Lot, and such payment shall not be deemed a waiver
by the Association of default by the Lot Owner.
16. Assessments Collectible Upon Sale.
Upon the sale or conveyance of a Lot, all unpaid assessments against the
seller-Owner for his prorata share of the Common Expenses, including interest, and
reasonable attorney’s fees incurred in collection, shall be first paid out of
the sales price or by the purchaser in preference of any other assessments or
charges of whatever nature, except the following:
liens and charges for taxes past due and unpaid on the Lot;
entered in a Court of record prior to the date of Common Expense assessment;
instruments of encumbrance duly recorded prior to the date of such assessments,
and material men’s liens arising from labor performed or material furnished
upon a Lot prior to the date of such assessment; and Mechanic’s and material
men’s liens for labor performed or material furnished upon the Common Elements
to the extent of the proportionate part chargeable to the Lot Owners which
constitute a part of an assessable charge for Common Expenses, the satisfaction
of which shall discharge the assessment to the extent of the payment made.
In a voluntary conveyance of a Lot, the
grantee of the Lot shall be jointly and severally liable with the grantor of
all unpaid assessments by the Association against the latter for his share of
the Common Expenses up to the time of the grant or conveyance, without
prejudice to the grantee’s right to recover from the grantor the amounts paid
by the grantee therefore. However, any such grantee shall be entitled to a
statement from the manager or Board of Directors of the Association, as the
case may be, setting forth the amount of the unpaid assessments against the
grantor due the Association, and such grantee shall not be liable for, nor
shall the Lot conveyed be subject to a lien for, any unpaid assessments made by
the Association against the grantor in excess of the amount therein set forth.
17. Mortgaging a Lot Priority; Mortgage
Subject to Declaration; Mortgagee in Title; Unpaid Assessment. An Owner shall have the right from time to
time to mortgage or encumber his Lot and the interests appurtenant thereto by
deed of trust, mortgage or other instrument, but the lien created thereby shall
be subject to the terms and provisions of this Declaration, and any mortgagee
or other lien holder who acquires a Lot through judicial foreclosure, public
sale or other means shall be subject to the terms and conditions of this
Declaration except as specifically excepted here from. Where the holder of a
first mortgage of record or other purchaser obtains title to the Lot as a
result of foreclosure of the first mortgage or deed in lieu of foreclosure,
such acquirer of title shall not be liable for the share of the Common Expenses
or assessments chargeable to such Lot which became due prior to acquisition of
title to such Lot by such acquirer. Such unpaid share of Common Expenses or
assessments shall be deemed to be Common Expenses collectible from the Owners
of all of the Lots, including such acquirer, his successors and assigns.
Policy; General Liability. The Association shall carry a blanket insurance
policy in an amount not less than one hundred percent (100%) of the insurable
value (based upon replacement cost) from an insurance company qualified to do
and conduct business in the State of Oklahoma and holding a rating of Best’s
Insurance Reports of Class XV or better (the limits of coverage of which
insurance shall be reviewed annually by the Board of Directors), of fire,
lightning, extended coverage, vandalism and malicious mischief, all risk,
agreed amount and inflation guard endorsement and replacement cost covering the
Common Elements (except land, foundation, excavation and other items normally
excluded from coverage), including fixtures and building service equipment to
the extent they are part of the Common Elements, as well as common personal
property and supplies, and, if required by law, workmen’s compensation
insurance (all of which hereinafter referred to as the “Master Policy”), with
respect to the Real Estate Development and the Association’s administration
thereof in accordance with the following. The name of the insured must be
stated in form and substance similar to the following: the Homeowners’
Association of the Estates of Apply Valley, Inc. for use and benefit of the
individual owners.” Such policy must contain the standard mortgagee clause
(without contribution) which must be endorsed to provide that any proceeds
shall be paid to the Homeowners’ Association of the Estates of Apple Valley,
Inc. for the use and benefit of mortgagees, their successors and assigns, as
their interest may appear.
The Board of Directors shall also obtain and
maintain, to the extent obtainable, comprehensive general liability insurance
in such limits as may from time to time be determined necessary covering all of
the Common Elements in the Real Estate Development. The scope of coverage must
include all other coverage in the kinds and amounts required by private institutional
mortgage investors for projects similar in construction, location and use.
Coverage shall be for at least One Million Dollars ($1,000,000.00) per
occurrence, for personal injury, including death of persons, and/or property
damage. The Association shall use its best efforts to see that the liability
insurance carried by the Association shall contain appropriate provisions to
cover liability of the Owners, individually, and as a group, to another Owner.
Such policies must provide that they may not be canceled or substantially
modified, by any party, without at least ten (10) days’ prior written notice to
the Association and to each holder of a first mortgage which is listed as a
scheduled holder of a first mortgage in the insurance policy.
Insured; Mortgagee Clause. The Master Policy shall be purchased by the
Association naming the Association as the insured, as attorney-in-fact or
trustee (for all of the Owners), which policy or policies must contain or have
attached the standard mortgagee clause commonly accepted by private
institutional mortgage investor~ in the area in which the mortgaged premises
Insurance. The Board of Directors shall also obtain and maintain fidelity
insurance coverage against dishonest acts on the part of officers, directors,
managers, trustees, employees or volunteers responsible for handling funds
belonging to or administered by the Association. The fidelity bond or insurance
must name the Association as the named insured and shall be written in an
amount sufficient to provide protection which is in no event less than one and
one-half (1 1/2) times the estimated annual operating expenses and reserves or
(ii) the estimated maximum of funds, including reserve fund, in the custody of
the Association or the management agent, as the case may be, at any given time
during the term of each bond, or (iii) a sum equal to three (3) months’
aggregate assessments on all Lots plus reserve funds. In connection with such
coverage, an appropriate endorsement to the policy to cover any persons who
serve without compensation shall be added if the, policy would not otherwise
cover volunteers. The fidelity insurance policy shall provide it may not be
canceled or substantially modified (including cancellation for nonpayment of
premium) without at least ten (10) days’ prior written notice to the
Association or to any Insurance Trustee and each servicer on behalf of FNMA and
for Lot Owner. Each Owner shall be required to obtain insurance, at his own
expense, on his Lot, improvements, and on all furnishings and decorations and
other items of personal property belonging to an Owner. Casualty and public
liability insurance coverage within each Lot are specifically made the
responsibility of the Owner thereof.
Trustee; Power of Attorney. Notwithstanding any of the foregoing provisions
and requirements relating to property or liability insurance, there may be
named as an insured, on behalf of the Association, the Association’s authorized
representative, including any trustee with whom such Association may enter into
any Insurance Trust Agreement or any successor to such trustee (each of whom
shall be referred to herein as the “Insurance Trustee”), who shall have
exclusive authority to negotiate losses under any policy providing such
property or liability insurance. Each Lot Owner appoints the Association or any
Insurance Trustee or substitute Insurance Trustee designated by the Association
as attorney-in-fact for the purpose of purchasing and maintaining such
insurance, including: the collection and appropriate disposition of the
proceeds thereof; the negotiation of losses and execution of releases of
liability; the execution of all documents; and the performance of all other
acts necessary to accomplish such purpose. The Association or any Insurance
Trustee shall receive, hold or otherwise properly dispose of any proceeds of
insurance in trust for Lot Owners and their first mortgage holders, as their
interests may appear.
19 Eminent Domain.
of All or Substantially All of a Lot. If a Lot is acquired by eminent
domain, or if part of a Lot is acquired by eminent domain leaving the Lot Owner
with a remnant which may not practically or lawfully be used for any purpose
permitted by this Declaration, the award must compensate the Lot Owner and
mortgagees, if any, as their interest may appear, for the Lot and its Common
Element interest, whether or not any Common Element interest is acquired. Upon
acquisition, unless the decree otherwise provides, that Lot’s entire Common
Element interest, votes in the Association, and Common Expense liability are
automatically reallocated to the remaining Lots in proportion to the respective
interests, votes, and liabilities of those Lots before the taking.
of Part of Common Elements. If part of the Common Elements is acquired by
eminent domain, the award must be paid to the Association. The Association
shall divide any portion of the award not used for any restoration or repair of
the remaining Common Elements among the Lot Owners in proportion to their
respective Common Element interests before the taking.
to Represent Owners. The Association shall represent the Lot Owners in any
condemnation proceedings or in negotiations, settlements and agreements with
the condemning authority for acquisition of the Common Elements, or part
thereof. Each Lot Owner appoints the Association as attorney-in-fact for such
20. Registration of Mailing Address of Lot
Owners. Each Owner shall register his mailing address with the Association,
and notices or demands intended to be served upon an Owner shall be sent by
mail, postage prepaid, addressed in the name of the Owner at such registered
21. Period of Ownership. The Real Estate
Development created by this Declaration shall continue until this Declaration
is revoked in the manner as is provided for in this Declaration.
22. General Reservations. Declarant
reserves the right to establish within the Common Elements future easements,
reservations, exceptions and exclusions consistent with the ownership and
development of the Common Elements and of the Real Estate Development and for
the best interests of the Lot Owners and the Association in order to serve the
entire Real Estate Development.
23. Waiver Clause. Except as to the
payment of assessments, the Association shall have the power to grant to any
Owner a waiver, variance or exception of and from any of the provisions of this
Declaration, so long as said waiver, variance or exception is approved by the
Declarant, if the Declarant is the owner of any Lots, and so long as said
waiver, variance or exception is approved by a majority of the Board of Directors
of the Association.
If any of the provisions of this Declaration or any paragraph, sentence,
clause, phrase or word, or the application thereof in any circumstance be
invalidated, such invalidity shall not affect the validity of the remainder of
this Declaration, and the application of any such provisions, paragraph,
sentence, clause, phrase or word in any other circumstances shall not be
to Enforce Not Waiver. No provision contained in this Declaration or the
By-Laws shall be deemed to have been abrogated or waived by reason of any
failure to enforce the same irrespective of the number violations or breaches
which may occur.
The captions herein are inserted only as a matter of convenience, and for
reference, and in no way define, limit or describe the scope of this
Declaration or exhibits or the intent of any provision hereof.
The use of the masculine gender in this Declaration shall be deemed to refer to
the feminine or neuter gender, and the use of the singular shall be deemed to
refer to the plural, and vice versa, whenever the context so requires.
to Run With the Land. The covenants, conditions and restrictions of this
Declaration shall run with and bind the Real Estate Development and shall inure
to the benefit of and be enforceable by the Association or any member, their
respective legal representatives, heirs, successors and assigns.
Easement. Declarant has an easement through the Common Elements as may be
reasonably necessary for the purpose of discharging Declarant’s obligations or
exercising Declarant’s rights reserved herein.
at Law or In Equity; Notice to Mortgagee of Uncured Default. The Association, or any Owner or Declarant,
so long as Declarant has a record interest in the Real Estate Development,
shall have the right to enforce by proceedings, at law or in equity, all
restrictions, conditions, covenants, or reservations and the right to recover
damages or other dues for such violation; however, with respect to assessment
liens and Association Rules, the Association shall have the exclusive right to
the enforcement thereof. The Association or any Owner shall also have the right
to enforce, by proceedings at law or in equity, the provisions of this
Declaration or the By-Laws and any amendments thereto. A first mortgagee, upon
request, will be entitled to written notification from the Association of any
default in the performance by the individual Lot Borrower of any obligation
under the Real Estate Development documents which is not cured within sixty
Fees. In the event an action is instituted to enforce any of the provisions
contained in this Declaration, the party prevailing in such action shall be
entitled to recover from the other party thereto, as part of the judgment,
reasonable attorneys’ fees and costs of such suit. In the event the Association
is a prevailing party in such action, the amount of such attorneys’ fees and costs
shall be a special assessment with respect to the Lot involved in the action.
Amendment. Declarant (and their successors) hereby reserves and is granted
the right and power to record a Special Amendment to this Declaration at any time
and from time to time which amends this Declaration (i) to comply with
requirements of the Federal National Mortgage Association, the Government National
Mortgage Association, the Federal Home Loan Mortgage Corporation, the
Department of Housing and Urban Development, the Federal Housing
Administration, the Veteran’s Administration, or any other governmental agency
or any other public, quasi-public or private entity which performs (or may in
the future perform) functions similar to those currently performed by such
entities and/or (ii) to induce any of such agencies or entities to make,
purchase, sell, insure or guarantee first mortgages covering Lots and
improvements thereon. In furtherance of the ‘foregoing, a power coupled with an
interest is hereby reserved and granted to the Declarant to make or consent to
a Special Amendment on behalf of each Owner, each deed, mortgage, trust deed,
other evidence of obligation or other instrument affecting a Lot and the
acceptance thereof shall be deemed to be a grant and acknowledgment of, and a
consent to the reservation of, the power of the Declarant to make, execute, and
record special amendments. No special amendment made by Declarant shall affect
or impair the lien of any first mortgage upon a Lot and improvements thereon or
any warranties made by an Owner or first mortgagee in order to induce any of
the above agencies or entities to make, purchase, insure, or guarantee the
first mortgage on such Owner’s Lot and improvements thereon.
24.10 City of Oklahoma City a Beneficiary.
In order that the public interest may be protected, the City of Oklahoma City
shall be a beneficiary of any of the covenants herein pertaining to location of
uses, maintenance of Common Elements, and access. The City of Oklahoma City may
enforce compliance therewith.