DECLARATION OF RESTRICTIVE COVENANTS
BY CHARLEVOIX LAND COMPANY HEREINAFTER CALLED
DEVELOPER.
WITNESSETH:
WHEREAS, Developer is the land contract purchaser of real
property described in Article II of the Declaration and desires to create
thereon a residential community with permanent parks, playgrounds, open spaces,
and other common facilities for the benefit of said community; and
WHEREAS, Developer desires to provide for the preservation of
the values and amenities in said community and for the maintenance of said
parks, playgrounds, open spaces and other common facilities; and, to said end,
desires to subject the real property described in Article II together with such
additions as may hereafter be made thereto (as provided in Article Il) to
provide the covenants, restrictions, easements, charges and liens, hereinafter
set forth, each and all of which is and are for the benefit of said property
and each owner thereof: and
WHEREAS, Developer has deemed it desirable, for the efficient
preservation of the values and amenities in said community, to create an agency
to which should be delegated and assigned the powers of maintenance and
administering the community properties and facilities and administering and
enforcing the covenants and restrictions and collecting and disbursing the
assessments and charges hereinafter created: and
WHEREAS, Developer has incorporated under the laws of the
State of Michigan, as a non‑profit corporation, THE PORT OF ST. JAMES
ASSOCIATION, for the purpose of
exercising the functions aforesaid;
NOW
THEREFORE, the Developer declares
that the real property described in Article II, and such additions thereto as
may hereafter be made pursuant to Article II hereof, is and shall be held,
transferred, sold, conveyed and occupied subject to the covenants,
restrictions, easements, charges and liens (sometimes referred to as
"covenants and restrictions") hereinafter set forth.
ARTICLE I
DEFINITIONS
Section
1. The following words when used in this Declaration or any Supplemental
Declaration (unless the context shall prohibit) shall have the following
meanings:
(a)
"Association" shall mean and refer to The Port of St. James
Association.
(b)
"The properties" shall mean and refer in all such existing
properties, and additions thereto, as are subject to this Declaration or any
Supplemental Declaration under the provisions of Article II, hereof.
(c)
Common Properties" shall mean and refer to those areas of land shown on
any recorded subdivision plot of The Properties and intended to be devoted to
the common use and enjoyment of the owners of The Properties.
(d)
"Original Lot" shall mean and refer to any lot or plot of land shown
upon any original recorded and subdivision map of The Properties after the same
has been sold by the Developer, or its representatives or assigns, by land
contract or by deed but shall not include Common Properties as heretofore
defined or any lot that the Developer has sold in which the contract becomes
default by the purchaser and that the Developer or its assigns take back for
resale.
(e)
"Owner" shall mean and refer to the equitable owner whether one or
more persons or entities holding any original lot situated upon the Properties
whether such ownership be in fee simple title or as land contract vender,
notwithstanding any applicable theory of the mortgage, shall not mean or refer
to the mortgage except if the mortgagee has acquired title pursuant to
foreclosure or any proceeding in lieu of foreclosure.
(f) "Member" shall mean and refer to all those Owners who are members of the Association as provided in Article Ill Section 1, hereof.
ARTICLE
II
PROPERTY SUBJECT TO THIS DECLARATION:
ADDITIONS THERETO
Section
1. Existing Property. The real property which is, and shall be held,
transferred, sold, conveyed, and occupied, subject to this Declaration, is
located in the Township of St. James, County of Charlevoix, Michigan, and is
more particularly described as follows:
1.
Lots 1,2,3,4,9, 10, 13, 14, 15, 16, 18, 19, 20, 21, 27, 28, 29, 30, 32, 33, 35,
37, 38, 39, 40, 41, in the
recorded plot of
Donegal
Bay, Charlevoix County, Michigan.
2.
The entire plat of Font Lake, except Lots 2, 3, 4, 5, 6, 10, 11, 12, 16, 17,
40, 60, 61 and 62. Plat of Port of St. James 1, Charlevoix County, Michigan,
all of which real property shall hereinafter be referred to as "Existing
Property".
Section
2. Additional Lands may become subject to this Declaration.
(a)
The Developer, its successors and assigns, shall have the right in to bring
additional lands located on Beaver Island, Charlevoix County, Michigan, into
the scheme of this Declaration. Such proposed additions, if made, shall become
subject to assessment for their just share of Association expenses. The Common
Properties within all such additions shall be devoted to the common use and
enjoyment of all owners of properties which are subject to this Declaration.
The Developers rights to bring additional lands into the Declaration shall not
be held to bind the Developer; its successors and assigns, to make the proposed
additions or to adhere in the scheme in any subsequent development of the land
described herein. The additions authorized under this and the succeeding sub‑sections
shall be made by filing of record a Supplementary Declaration of Covenants and
Restrictions with respect to the additional property which shall extend the
scheme of the Covenants and Restrictions of this Declaration to such property.
Such Supplementary Declarations may contain such complimentary additions and
modifications of the Covenants and restrictions contained in this Declaration
as may be necessary to reflect the different character, if any, of the added
properties and as are not inconsistent with the scheme of this Declaration. In
no event, however, shall such Supplementary Declaration revoke, modify or add
to the Covenants established by this Declaration within the existing property.
(b)
Other Additions. Upon approval in writing of Association pursuant to a vote of
its members as provided in its Articles of Incorporation the owner of any
property who desires to add it to the scheme of this Declaration and to subject
it to the jurisdiction of the Association, may file of record a Supplementary
Declaration of Covenants and Restrictions, as described is subsection (a)
hereof.
(c) Mergers. Upon a merger or consolidation of the Association with another association as provided in its Articles of Incorporation its properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law, be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer the covenants and restrictions established by this Declaration within the Existing Property together with the covenants and restrictions established upon any other properties as one scheme. No such merger or consolidation, however, shall effect any revocation, change or addition to the Covenants established by this Declaration within the Existing Property except as hereinafter provided.
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS IN THE
Section 1. Membership
(a)
Every person or entity who holds an equitable interest or an undivided equitable
interest, including the Developer, in any lot or lots included within "The
Properties" as herein defined, whether as land contract vendee or fee
holder being subject to these covenants, shall be a member of the Association
provided that any such person or entity who holds such interest merely as a
security for the performance of an obligation shall not be a member.
(b)
Persons not holding an interest in any Lot in said Properties may become non‑voting
members of the Association under the terms and conditions prescribed by the
Board of Directors.
Section
2. Voting rights
The
Association shall have one class of voting membership. Voting members shall be
all those members who hold the interest required for Membership in Article Ill
in Section 1 (a) above. When more than once person holds such interest or
interests in any lot in said Properties, all such persons shall be members and
the vote for each such Lot shall be exercised as they among themselves
determine. Each member shall be entitled to one vote for each lot that he owns
or in which he owns in fee or in which he has an interest as a land contract
purchaser.
ARTICLE
IV
PROPERTY
RIGHTS IN THE COMMON PROPERTIES
Section
1. Members' Easements of Enjoyment. Subject to the provisions of Article IV in
Section 3, every member shall have a right and easement of enjoyment in and to
the Common Properties and such easement shall be appurtenant to and shall pass
with the title to every Original Lot.
Section
2. Title to Common Properties. The Developer may retain the legal title to the
Common Properties until such time as, in the opinion of the Developer, the
Association is able to maintain the same and to meet any existing obligations
which may be a lien thereon, notwithstanding any provisions herein, the
Developer hereby covenants, for itself, its successors and assigns, that it
shall convey the Common Properties to the Association not later than January 1,
1975.
Section
3, Extent of Members' Easements. The rights and easements of enjoyment created
hereby shall be subject to the following:
(a)
The right of the Developer and of the Association, in accordance with its
Articles and By‑laws, to borrow money for the purpose of improving the Common
Properties and in and thereof to mortgage said properties. The members' rights
and easements in the Common Properties shall be subordinate to any mortgage
given by the Developer or Association as security for funds borrowed for said
improvements. Any indebtedness which shall be created for the purpose of making
improvements to the Common Properties shall be an obligation of the
Association. In the event of a default upon any such mortgage, the lender or
mortgagee shall have all the rights afforded under the mortgage or security
agreement and under the laws of the State of Michigan, including the right
after taking possession of The Properties, to charge admission and other fees
as a condition to continued enjoyment by the members, and if necessary to open
the enjoyment of said properties to a wider public. If the mortgage
indebtedness is satisfied and possession of The Properties returned to the
Association, all rights of the members hereunder shall be restored: and
(b)
the right of the Association to take such steps as are reasonably necessary to
protect the above described properties against foreclosure: and
(c)
the right of the Association, as provided in its Articles and By‑laws, to
suspend the enjoyment rights of any member for any period during which any
assessment remains unpaid, and for any period not to exceed thirty (30) days
for any infraction of its published rules and regulations, and
(d) the right of the Association to
charge reasonable admission and other fees for the use of the Common
Properties.
ARTICLE
V
COVENANT FOR MAINTENANCE ASSESSMENTS
Section
1. Creation of the Lien and Personal Obligation of Assessments.
The
Developer being the owner of all The Properties hereby covenants and each
subsequent owner by acceptance of a deed thereafter, whether or not it shall be
expressed in any such deed or conveyance, be deemed to covenant and agree to
pay in the Association: (1) annual assessments or charges; (2) special
assessments for capital improvements, such assessments to be fixed,
established, and collected from time to time as hereinafter provided. The
annual and special assessments, together with such interest thereon and costs
of collection thereof as hereinafter provided, shall be charged on the land and
shall be a continuing lien upon the property against which each assessment is
made. Each such assessment, together with such interest thereon and cost of
collection thereof as hereinafter provided, shall be a charge on the land and
shall be a continuing lien upon the property against which each such assessment
is made. Each such assessment, together with such interest thereon and cost of
collection thereof as hereinafter provided, shall also be the personal
obligation of the person who was the Owner of such property at the time when
the assessment fell due.
Section
2. Purpose of Assessments. The assessments levied by the Association shall be
used exclusively for the purpose of promoting the recreation, health, safety,
and welfare of the residents in The Properties and in particular for the
improvement and maintenance of properties, services, and facilities devoted to
this purpose and related to the use and enjoyment of the Common Properties and
of the home situated upon The Properties, including, but not limited to, the
payment of taxes and insurance, thereon and repair, replacement and additions
thereto, and for the cost of labor, equipment, materials, management and
supervision thereof.
Section
3. Basis and Amount of Annual Assessments. The annual assessment shall be $28.00 $50.00* per each Original Lot sold by
Developer, its representatives or assigns, by Land Contract or Deed and the
assessments shall be distributed evenly against each Original Lot with
one assessment made per lot. The Board of Directors of the Association may,
after consideration of current maintenance cost and future needs of the
association, fix the actual assessment for any year whether before or after
January 1, 1975 at a lesser amount. * By vote of the membership at a special
meeting held on November 12, 2005 and pursuant to the provisions of this
article, the maximum assessment was raised to $50.00.
Section
4. Special Assessments for Capital Improvements. In addition to the annual
assessments authorized by Section 3 hereof, the Association may levy in any
assessment year on each Original Lot sold by the Developer, its representatives
or assigns, a special assessment, applicable to that year only, for the purpose
of defraying, in whole or in part, the cost of any construction or
reconstruction, unexpected repair or replacement of a described capital
improvement upon the Common Properties, including the necessary fixtures and
personal property related thereto, provided any such assessment shall have the
affirmative of two‑thirds (2/3) of the votes of all voting members who
are voting in person or by proxy at a meeting duly called for this purpose,
written notice of which shall be sent to all members at least thirty (30) days
in advance and shall set fourth the purpose of the meeting.
Section
5. Change in Basis and Maximum of Annual Assessments. Subject to the
limitations of Section 3 hereof and for the periods therein specified, the
Association may change the maximum and basis of the assessments fixed by
Section 3 hereof prospectively for any such period provided that any such
change shall have the assent of two‑thirds (2/3) of the
voting members who are voting in person or by proxy at a meeting duly called
for this purpose written notice of which shall be sent to all members at least
thirty (30) days in advance and shall set fourth the purpose of the meeting,
provided further that the limitations of Section 3 hereof shall not apply to
any changes in the maximum and basis of the assessments undertaken as an
incident to a merger or consolidation in which the Association is authorized to
participate under its Articles of Incorporation and under Article II, Section
2, hereof.
Section
6. Quorum for Any Action Authorized Under Sections 4 and 5. The quorum required
for any action authorized by Sections 4 and 5 hereof shall be as follows:
At
the first meeting called, as provided in Sections 4 or 5 hereof, the presence
at the meeting of Members or of proxies, entitled to cast sixty (60) percent of all the votes of the members shall
constitute a quorum. If the required quorum is not forthcoming at any meeting,
another meeting may be called, subject to the notice requirements as set fourth
in Section 4 and 5, and the required quorum of any such subsequent meeting
shall be one‑half (1/2) of the required quorum of the preceding meeting,
provided that no such subsequent meeting shall be held more than sixty (60)
days following the preceding meeting.
Section
7. Date of Commencement of Annual Assessments Due Dates. The Annual assessments provided for herein shall
commence on the first day of April, 1968. The assessment for each succeeding
year shall become due and payable on the first day of April of each year. No
adjustments or prorations of assessments shall be made by the Association. For
purposes of levying the assessment, assessments shall be considered as paid in
advance and shall be levied against any Original Lot which is subject to this
Declaration or Supplementary Declarations The due date
of any special assessment under Section 4 hereof shall be fixed in the
Resolution authorizing such assessment.
Section 8. Duties of the Board of Directors. The Board of Directors of the Association shall
prepare a roster of the properties and assessments applicable thereto at least
thirty (30) days in advance of such assessment due date. Such assessment roster
shall be kept in the office of the Association and shall be open to inspection
by any owner.
Written
notice of the assessment shall thereupon be sent to every owner‑subject
thereto.
The
Association shall upon demand at any time furnish to any owner liable for said
assessment a certificate in writing signed by an officer of the Association,
setting forth whether said assessment has been paid. Such certificate shall be
conclusive evidence of payment of any assessment therein stated to have been
paid.
Section
9. Effect of Non‑Payment of Assessment; The Personal Obligation of the Owner;
The Lien; Remedies of Association. If the assessments are not paid on the date
when due (being the dates specified in Section 7 hereof), then such assessment
shall become delinquent and shall, together with such interest thereon and cost
of collection thereof as hereinafter provided, thereupon becoming a continuing
lien on the property which shall bind such property in the hands of the then
owner, his heirs, devises, personal representatives and assigns. The personal obligation
of the then owner to pay such assessment, however, shall remain his personal
obligation for the statutory period. and shall
not pass to his successors in title unless expressly assumed by them.
If
the assessment is not paid within thirty (30) days after the delinquency date,
a penalty fee not to exceed $2.00 shall be added thereto and from that date
interest at the rate of six (6) percent per annum may be added to the
delinquent balance and penalty and the Association may bring an action at law against
the owner personally obligated to pay the same or to foreclose the lien against
the property. There shall be added to such assessment, delinquent fee and
interest and the cost of preparing and filing a Complaint in such action and in
the event that judgment is obtained, such judgment shall include interest on
the total amount as above provided and reasonable attorney's fee to be fixed by
the court together with the cost of the action.
Section
10. Subordination of the Lien to Mortgages. The lien of the assessment provided for herein shall be
subordinate to the lien of any mortgage or mortgages now or hereafter placed
upon the properties subject to assessment: provided, however, that such
subordination shall apply only to the assessments which have become due and
payable prior to a sale or transfer of such properties pursuant to a decree of
foreclosure, or any other proceeding in lieu of foreclosure. Such sale or
transfer shall not relieve such property from liability for any assessments
thereafter becoming due, nor from the lien of any such subsequent assessment.
Section
11. Exempt Property. The following property subject to this Declaration shall
be exempted from the assessments, charge and lien created herein; (a) all
properties to the extent of any easement or other interest therein dedicated
and accepted by the local public authority and devoted to public use; (b) all
Common Properties as defined in Article 1. Section 1 hereof (c) all properties
exempted from taxation by laws of the State of Michigan, upon the terms and to
the extent of such legal exemption.
Notwithstanding
any provisions herein, no land or improvements devoted to dwelling use shall be
exempt from said assessments, charges or liens.
ARTICLE
VI
ARCHITECTURAL CONTROL COMMITTEE
Section
1. Review by Committee, No building, fence, wall or other structure shall be
commenced, erected or maintained upon The Properties, nor shall any exterior
addition to or change or alteration therein be made until the plans and
specifications showing the nature, kind, shape, height, materials, and location
of same shall have been submitted to and approved in writing as to harmony of
external design and location in relation to surrounding structures and
topography by the Board of Directors of the Association, or by architectural
committee composed of three (3) or more representatives appointed by the Board.
In the event said Board or its designated committee fail to approve or
disapprove such design and location within thirty (30) days after said plans
and specifications have been submitted to it, or in any event, if no suit to
enjoin the addition, alteration or change has been commenced prior to the
completion thereof, approval will not be required and this Article will be
deemed to have been fully complied with.
ARTICLE VII
BUILDING AND USE LIMITATIONS
Section
1. All lots shall be used for residential purposes only, and no business,
commercial or manufacturing enterprise shall be conducted on said premises. No
building shall be erected, altered, placed or permitted to remain on any lot
other than one single family dwelling not exceeding two and one‑half stories in
height, and on private garage or boathouse, or combination garage and boathouse
for family automobiles and boats, in keeping with the dwelling so erected. The
existing structures in the Donegal Bay Subdivision and the Font Lake
Subdivision are to remain and be used for residential purposes only.
Section
2. No trailer, mobile home, or similar type structure, basement, tent, shack,
garage, barn or other outbuilding shall at any time be used as a residence,
temporarily or permanently, nor shall any structure of a temporary character or
any building in the process of construction, be used as a residence.
No animals, livestock, or poultry of any
kind shall be raised, bred or kept on any lot, except that dogs, cats or other
household pets may be kept provided that they are not kept, bred or maintained
for any commercial purposes.
No
lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage
or other waste shall not be kept except in a sanitary container. All
incinerators or other equipment for the storage or disposal of such material
shall be kept in a clean and sanitary condition.
The
outside finishing of all buildings must be completed within one (1) years after
construction has started, and no asphalt shingles, imitation brick, building
paper, insulation board or sheathing or similar non‑exterior materials shall be
used for the exterior finish of any such building; exterior finish shall be
wood or asbestos shingles or siding, logs, brick, stone or concrete
Every
dwelling house shall have not less than 400 square feet of enclosing living
space exclusive of porches, breezeways, carports, patios, pool areas, garages
and other accessory uses.
Section
3. Building Location. No building shall be located on any property nearer than
25 feet to the front property line or nearer than 20 feet to any side street
line. No building shall be located nearer than 10 percent to the width of the property
on which such building is to be placed to any sideline, except that a three
foot minimum side yard shall be permitted for a garage or other permitted
accessory building which is located toward the rear of the property. For the
purposes of this Covenant, eaves, steps and open porches shall not be
considered as a part of the building provided, however, that this shall not be
constructed to permit any portion of the building to encroach upon adjoining
property.
Section 4. Easements are reserved along and within five feet of the rear line and sidelines of all original lots in the subdivision for the construction and perpetual maintenance of conduits, poles, wires and fixtures for electric lights, telephones and other public and quasi‑public utilities and drainage and to trim any trees which at any time may interfere or threaten to interfere with the maintenance of such lines with right of ingress to and egress from and across said premises to employees of said utilities. Said easement to also extend along any owners side and rear property lines in case of fractional lots. The person owning more than one lot may build on such lot line and the easement shall be inoperative as to said line provided that such building shall be placed thereon prior to the instigation of use of this easement for one of the foregoing purposes.
It
shall not be considered a violation of the provision of easement if wires or
cables carried by such pole lines pass over some portion of said properties not
within the five food wide easement as long as such line do not hinder the
construction of buildings on the property.
Each
residence shall be provided with and maintain only inside sanitary toilets with
septic tanks and drain fields or dry well installations meeting the
requirements of the Michigan Board of Health.
Any
owner of real property in said Plat of Port of St. James shall have the right
to prosecute any proceedings at law or in equity against any person or persons
violating or attempting to violate any covenant contained herein, either to
prevent him or them from doing so or to recover damages or other dues for such
violations. Invalidation of any one of these covenants by judgment or court
order shall in no way affect any other provisions which shall remain in full
force and effect.
The
foregoing Building and Use Limitations shall not apply to Common Properties.
ARTICLE VIII
GENERAL PROVISIONS
Section
1. Duration. The covenants and restrictions of this Declaration shall run with
and bind the land and shall inure to the benefit of and be enforceable by The
Association, or the owner of any land subject to this Declaration, their
respective legal representatives, heirs, successors and assigns, for a term of
twenty years from the date of this Declaration is recorded after which time
said covenants shall be automatically extended for successive periods of ten
(10) years unless an instrument signed by the then owners of two‑thirds of the
lots, subject to this Declaration, including all lots if any still owned by the
Developer or its successors or assigns, has been recorded, agreeing to change
said covenants and restrictions in whole or in part. Provided, that no such
agreement to change shall be effective unless made and recorded three (3) years
in advance of the effective date of such change, and unless written notice of
the proposed agreement is sent to every owner at least ninety (90) days in
advance of any action taken.
Section
2. Notices. Any notice required to be sent to any member or owner under the
provisions of this Declaration shall be deemed to have been properly sent when
mailed, postpaid, to the last known address of the person who appears as member
or owner on the records of the Association at the time of such mailing.
Section
3. Enforcement, Enforcement of these covenants and restrictions shall be by
proceeding at law or in equity against any person or persons violating or
attempting to violate any covenant or restriction either to restrain violation or to recover
damages and against the land to enforce any lien created by
these covenants; and failure by Association or any owner to enforce any
covenant or restriction herein contained shall in no event be deemed a waiver
of the right to do so thereafter.
Section
4. Severability. Invalidation of any one of these covenants or restrictions by
judgment or court order shall in no wise affect any other provisions which
shall remain in full force and effect.