Antelope Hills Declaration of protective covenants
ARTICLE V ASSESSMENTS
Section 5.1. Creation of the Lien and Personal Obligation for Assessments: Each Owner, including Declarant and each Builder, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, covenants and agrees and shall be personally obligated to pay to the Association; annual assessments or charges, special assessments, and other charges, fines, fees, user fees, interest, late charges, and other amounts, all as provided in this Declaration; with such assessments and other amounts to be established and collected as hereinafter provided. All amounts payable by Owners to the Association pursuant to this Declaration, together with interest, late charge, costs, and reasonable attorney’s fees, shall be a charge on the land and shall be a continuing lien upon the lot to which each such amount is applicable. The obligation for such payments by each Owner to the Association is an independent covenant with all amounts due, from time to time, payable in full when due without notice or demand (except as otherwise expressly provided in this Declaration), and without set-off or deduction. All Owners of each Lot shall be jointly and severally liable to the Association for the payment of all assessments. fees, user fees, charges and other amounts attributable to their Lot. Each amount, together with interest, late charges, costs, and reasonable attorney’s fees, shall also be the personal obligation of each Person who was the Owner of such Lot at the time when the amount became due. The personal obligation for delinquent amounts (including assessments) shall not pass to such Owner’s successors in title unless expressly assumed by them. The Association’s lien on a Lot for assessments and other amounts shall be superior to any homestead exemption now or hereafter provided by the laws of the United States. The acceptance of a deed to land subject to this Declaration shall constitute a waiver of the homestead and any other exemption as against said Association lien.
Section 5.2. Purpose of Assessments: The assessments levied by the Association shall be used to promote the recreation, health, safety and welfare of the residents of the Lots, and for all of those purposes and activities which may be required of the Association or which the Association may be empowered to pursue pursuant to this Declaration or the Articles of incorporation or Bylaws of the Association, or by law. At a minimum, the Association is empowered to contract for solid waste collection for the residents of the Community, a power pre-emptive of any individually or group of Lot Owners in the Community. However, assessments levied during the Period of Declarant Control may not be used for the purpose of constructing capital Improvements.
Section 5.3. Initial Annual Assessment: Until the effective date of an Association budget ratified by the Owners, the initial assessment shall be set by Declarant not less than sixty (60) days following the recording of this Declaration and ratified by the Board of Directors upon their appointment to office.
Section 5.4. Rate of Assessment: Annual and special assessments shall be fixed at a uniform rate for all Lots. Assessments levied according to this Section 5 are intended to be sufficient to meet the expected need of the Association. Annual assessments shall include an adequate reserve fund for the maintenance, repair and replacement of those items that must be maintained, repaired or replaced on a periodic basis, and for the payment of insurance deductibles. All Common Expenses shall be assessed against all Lots in accordance with the Allocated Interests set forth in this Declaration. If the Common Expense Liability is reallocated, annual assessments and any installment thereof not yet due shall be recalculated in accordance with the reallocated Common Expense Liability.
Section 5.5. Date of Commencement of Annual Assessments: The annual assessment shall commence at such time as the Board of Directors may determine in its discretion, but in no event later than the first closing conveyed a Lot to an Owner other than Declarant or a Builder. After any annual assessment has been made initially by the Declarant and ratified by the Board of Directors after their appointment; thereafter, assessments shall be based on a budget adopted by the Association as provided in this Declaration. A budget shall be so adopted by the Association no less frequently than annually. The annual assessments shall be due and payable upon ratification by the membership, but may be paid in no more than twelve (12) installments over the ensuing year. All assessments shall be payable in advance, or on such other dates, and with such frequency, but not less frequently than annually, as the Board of Directors determines in its discretion from time to time; provided that the first annual assessment passed by the Board of Directors pursuant to a budget shall be adjusted to reflect the time remaining in the first Association fiscal year. Any Owner purchasing a Lot between installment due dates shall pay a pro rata share of the last payment due.
Section 5.6. No Waiver:. The omission or failure to fix any Assessment or deliver or mail a statement for any period shall not be deemed a waiver, modification, or release of the Members from their obligations to pay the same.
Section 5.7. Reserve Fund(s): The Master Association shall be obligated to establish a reserve fund or funds for the maintenance, repair, and replacement of those Common Areas and facilities that must be replaced periodically and such reserve fund or funds shall be funded through the monthly payments of the Common Expense Assessments and not by extraordinary special assessments.
Section 5.8. Special Assessment: In addition to the Assessments authorized above, the Master Association may at anytime and from time to time determine, levy, and assess in any Assessment year, which determination, levy, and assessment shall be determined solely in the discretion of the Board of Directors, with the consent of Declarant, a special assessment applicable to that particular Assessment year for the purpose of defraying, in whole or in part, payments for any deficit remaining from a previous period and the unbudgeted costs, fees, and expenses of any construction, renewal and reconstruction, repair, demolition, replacement, or maintenance of the Common Area, specifically including any fixtures and personal property relating thereto; provided, however, such consent shall not be required if such acts are otherwise specifically covered by Article IV of this Declaration, in which case the specific provisions of Article IV shall apply. The amounts determined, levied, and assessed pursuant hereto shall be assessed to each Lot equally, and shall be due and payable as set forth in the Notice of Assessment promulgated by the Board.
Section 5.9. Individual Assessments: The Board shall levy against particular Lots Individual Assessments to cover the Master Association’s cost of providing services which benefit only those particular Lots, or which otherwise are properly allocable to these Lots. By way of example only, the Board may levy Individual Assessments against a Lot to reimburse the Master Association for the expense of performing maintenance required to be performed by that Lot’s Owner but which such Owner has failed to so perform. By way of further example only, upon demand by the Committee and receipt of reasonably satisfactory evidence supporting the same, the Board promptly shall levy Individual Assessments against a Lot to reimburse the Committee for its costs in removing nonconforming improvements, and upon collection of the same, promptly shall remit the amount of such costs to the Committee. Individual Assessments shall be levied in addition to all other Assessments levied by the Association and shall not be subject to the provisions of Section 5.7 of this Declaration.
Section 5.10. Joint Liability: All Owners of a particular Lot shall be jointly and severally liable to the Master Association for the payment of all Assessments attributable to such Lot, including without limitation the annual Common Expense Assessments, Individual Assessments, special assessments and penalty assessments assessed against their particular Lot.
Section 5.11. Penalty Assessments: In addition to the Assessments authorized by this Article, the Master Association may levy penalty assessments which will include penalties or fines imposed against individual Owners for violations of the provisions of this Declaration or the Articles, the Bylaws, or the Rules and Regulations. Any such penalty assessments will be levied only after compliance with the Notice and Hearing procedures set out in the Bylaws. Any penalty assessment not paid within thirty (30) days of the date on which it is due will bear interest at a rate equal to the lesser of (a) the maximum rate permitted by applicable law (if any), or (b) eighteen percent (18%) per annum commencing retroactively on the date the Assessment was due and continuing until the Assessment, together with any accrued interest thereon, is paid in full. All penalty assessments shall be enforced and collected in the same manner as all other Assessments required to be paid by such Owner(s).
Section 5.12. Lien for Nonpayment of Assessments:
(a) All sums assessed by the Association but unpaid by the Owner of any Lot, shall accrue interest at a rate equal to the lesser of (i) the maximum rate permitted by applicable law (if any), or (ii) eighteen percent (18%) per annum commencing the first day after the due date, except in the case of Special Assessments wherein such interest shall commence thirty (30) days after the due date. Said sums shall constitute a lien on such Lot superior (prior) to all other liens and encumbrances, except only for all sums unpaid on a First Lien of record, including all unpaid obligatory sums as may be provided by such encumbrance and including additional advances made thereon prior to the arising of such lien, and except for tax and special assessment liens in favor of a governmental assessing entity. Each Owner hereby agrees that the Master Association’s lien on a Lot for Assessments shall be superior to any homestead exemption provided by Section 38-41-201, C.R.S., or by other state or federal law and each Owner agrees that the acceptance of the deed or other instrument of conveyance in regard to any Lot within the Project shall signif~’ such grantee’s waiver of such homestead rights with respect to such lien.
(b) To evidence such lien for unpaid Assessments, the Master Association shall prepare a written notice setting forth the amount, the name of the Owner of the Lot, and a description of the Lot. Such notice shall be signed on behalf of the Master Association by an officer of the Master Association and shall be recorded in the real estate records of the County. Such lien shall attach from the date of the failure of payment of the Assessment, and may be enforced by foreclosure by the Master Association of the defaulting Owner’s Lot in like manner as Liens on real property. The lien provided herein shall be in favor of the Master Association and for the benefit of all of the Owners. In any such foreclosure or lawsuit to recover a money judgment, the Owner shall be required to pay the costs and expenses of such proceedings, the costs, expenses, and attorneys’ fees for filing the notice or claim of lien, and all reasonable attorneys’ fees in connection with such foreclosure or lawsuit. The Owner shall also be required to pay the Master Association the Assessments for the Lot during the period of foreclosure and the Master Association shall be entitled to a receiver to collect such sums. The Master Association, on behalf of the Owners, shall have the power to bid on the Lot at foreclosure sale and to acquire and hold, lease, Lien, and convey such Lot.
Section 5.13. Member’s Obligation for Payment of Assessments:All amounts assessed by the Master Association against each Lot, whether as a Common Expense, special assessment, or penalty assessment, including interest thereon at eighteen percent (18%) per annum commencing the first day after the due date [except in the case of special assessments wherein such interest commences thirty (30) days after the due date] shall be the personal and individual debt of each Owner at the time the Assessment is made. Suit to recover a money judgment for unpaid Assessments shall be maintainable without foreclosing or waiving any lien securing the same. No Owner may exempt himself from liability for his contribution toward the expenses of the Master Association by a waiver of the use or enjoyment of any of the Common Area or by abandonment of his Lot.
Section 5.14. Liability for Common Expenses Upon Transfer of Lot:
(a) Upon payment of a reasonable fee not to exceed Fifty and No/100ths Dollars ($50.00),subject to increase as provided in this Declaration, and upon the written request of any Owner, any Lienholder, or any prospective Lienholder, the Master Association shall issue a written statement setting forth the amount of the unpaid Assessments, if any, with respect to such Lot, the amount of the current monthly Assessments and the date that such Assessments become due, any credits for advanced payments or for prepaid items, including, but not limited to, insurance premiums, which statement shall be conclusive upon the Master Association in favor of all persons who rely thereon in good faith. Unless such request for a statement of indebtedness shall be complied with within fourteen (14) days, all unpaid Assessments which become due prior to the date of making such request shall be subordinate to the interest of the Owner requesting such statement, or to the lien of the Lienholder, or prospective Lienholder requesting such statement.
(b) The grantee of a Lot, including a first Lienholder who comes into possession of a Lot pursuant to the remedies provided in its Lien or becomes an Owner of a Lot pursuant to foreclosure of its Lien or by the taking of a deed in lieu thereof, and any purchaser at a foreclosure sale, shall not be liable with the grantor for unpaid Assessments against the latter for the grantor’s proportionate share of Common Expenses up to the time of the grant or conveyance of a Lot, unless the grantee expressly assumes such liability. Any such express assumption shall be without prejudice to the grantee’s right to recover from the grantor the amounts paid by the grantee therefor. Upon payment of a reasonable fee not to exceed Fifty and No/100ths Dollars ($50.00) subject to increase as provided in Section 8.15 of this Declaration, and upon written request, any prospective grantee shall be entitled to a statement from the Master Association setting forth the amount of the unpaid Assessments, if any, with respect to the subject Lot, the amount of the current monthly Assessments and the date that such Assessments become due, any credits for advanced payments or for prepaid items, including, but not limited to, insurance premiums, which statement shall be conclusive upon the Master Association. Unless such request for a statement of indebtedness shall be complied with within fourteen (14) days of such request, then a grantee shall not be liable for, nor shall the Lot conveyed be subject torn a lien for any unpaid Assessments against the subject Lot which become due prior to the date of making such request.
(c) Notwithstanding any terms and conditions of this Declaration, the sale or transfer of any Lot shall not affect the lien for said Assessments, except that the sale or transfer of a Lot pursuant to foreclosure of a First Lien, or any proceeding in lieu thereof, including a deed in lieu of foreclosure shall extinguish the lien of Assessments which became due prior to any such sale, transfer, foreclosure, or any proceeding in lieu thereof, including deed in lieu of foreclosure. Further, no First Lienholder shall be liable for any unpaid Assessments accruing prior to the time such Lienholder becomes the Owner of any Lot or takes possession of a Lot pursuant to the remedies provided in its Lien, whichever event is later. No such sale, transfer, foreclosure, or any proceeding in lieu thereof, including deed in-lieu of foreclosure, shall relieve any Owner from liability for any Assessments thereafter becoming due, nor from the lien thereof.
