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ARTICLE VII
COVENANT FOR MAINTENANCE ASSESSMENTS
7.01 Creation of Lien and Personal Obligation of Assessments. The Declarant, for each Lot within XXX, hereby covenants, and each Purchaser of any Lot by acceptance of a deed therefore, whether or not it shall be so expressed in such deed, as deemed to covenant and agree to pay to the Association such Assessments as may become applicable to their Lots, as provided below. There is hereby created in favor of the association the right to claim a lien for the amount of any such assessment, together with interest, costs with power of sale, and a reasonable attorneyâs fees on each and every Lot within XXX to secure payment to the Association of any and all Assessments levies against such Lot as provided herein. Each such Assessment, together with interest, costs, and attorneyâs fee shall also be the personal obligation of the Owner of such Lot at the time when the Assessment was levied against such Lot. The personal obligation for delinquent Assessments shall not pass to successor Owners unless expressly assumed by them, but shall remain a lien on such Lot (except as provided on Section 7.10 below) and the personal obligation of the Owner who was Owner at the time the Assessment was made.
7.02 Purpose of Assessments. The Assessments levied by the Association shall be used exclusively to promote the recreation, health, safety, and welfare of the residents in XXX, for the maintenance and improvement of the Commons and for maintaining the overall aesthetic beauty of XXX, and to cover the cost incidental to the operation of the Association. The regular Assessment shall include the establishment of adequate reserves for repair and replacement of capital items. No Owner may waive or otherwise escape liability for the Assessments provided for herein by non-use of the Commons or by the abandonment of his Lot.
7.03 Amount of Regular Assessment. Regular Assessments (HOA dues) shall be made on an annual basis and shall be due January 1st of each year. Assessments shall be fixed at a uniform rate per year for all Lots subject to Assessment. The regular Assessment for a calendar year shall be $400.00 per Lot per year. The regular Assessment per Lot per year may be increased only if first recommended by the Board an approved by 2/3rd of the votes of the Lots. When a lot initially is sold, the HOA dues shall be paid at closing and shall be pro-rated for the remainder of the calendar year.
7.04 Regular Assessment Obligation. Lots and the Owners thereof (except for the Declarant and Lots owned by the Declarant) shall be obligated for any regular Assessment per Lot made by the Association.
7.05 Special Assessments. Special Assessments are applicable to all Owners of Lots, and must first be recommended by the Board and then approved by two-thirds (2/3rds) of the votes of all Lots. Special Assessments shall be applicable to not more than three calendar years after the date of Assessment. Special Assessments shall be only for Association purposes including, but not limited to, defraying the cost of any construction, reconstruction, repair, or replacement of roads, paving, culverts, buildings, bridges, fences, signs, and any other improvements in the Commons; the establishment of reserves for such costs; and the provisions of special services such as security patrols.
7.06 Regular and Special Assessment Obligations. Lots and the owners thereof shall be obligated for any regular Assessment or special Assessment per Lot made by the Association, provided that notwithstanding anything herein to the contrary, Declarant shall not be required to pay any regular or special Assessment, except with respect to any Improved Lot owned by Declarant, which is occupied as a Residence. Written notice of any meeting called for the purpose of approving any regular or special Assessment requiring Owner approval shall be sent to all Owners not less than 10 days or more than 30 days in advance of the meeting. At the first meeting called, the presence at the meeting of Owners or of proxies, entitled to cast sixty percent (66%) of all the votes shall constitute a quorum. If the required quorum is not forthcoming at that meeting, another meeting may be called, after five days written notice, and the required quorum at the preceding meeting, provided that no such subsequent meeting shall be held more than sixty days following the preceding meeting.
7.07 Uniform rate of Assessment. Both annual and special Assessments must be fixed at a uniform rate for all Lots to which the Assessment applies, and may be collected on a monthly, quarterly, semi-annual or annual basis.
7.08 Date of Commencement of Assessments and Due Dates. The regular Assessment period shall be the calendar year, commencing January 1st. Written notice of the regular Assessment and each special Assessment shall be sent to every Owner subject thereto. The due date (or dates, if made payable in installments) shall be established by the Board. The Association shall, upon demand, and for reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the Assessments on a specified Lot have been paid.
7.09 Effect of Non-Payment of Assessments and Remedies of the Association. Each owner of any Lot shall be deemed to covenant and agree to the enforcement of the assessments in the manner herein specified. If any Assessment, or installment thereof, is not paid by the due date specified by the Board, the Owner or Owners of the Lot for which the delinquent Assessment or installment is unpaid shall lose the right to cast the vote of that Lot in the Association until all amounts due are paid in full. The Association may employ an attorney or attorneys for collection of any delinquent Assessment or installment thereof, whether by suit or otherwise, or to enforce compliance with or for specific performance of the terms and conditions of this Declaration, or for any other purpose in connection with the breach of this Declaration, the Certificate, By-Laws, Architectural and Design Rules or the Association Rules. In addition to any amounts due or any relief or remedy obtained by the association against an Owner, such Owner agrees to pay the Association its reasonable attorneysâ fees, plus interest and costs thereby incurred. Any interest provided on this declaration shall be compounded monthly and charged at an annual rate of Eighteen percent (18%). In the event an Assessment or installment thereof is not paid when due, and this becomes a delinquent obligation, or in the event an Owner fails to perform or comply with any other obligation of this Declaration, the Certificate, By-Laws, Architectural and Design Rules or the Association Rules, then (in addition to any other remedies herein or by law or by equity provided) the Association may enforce each such obligation by either or both of the following procedures:
a. Enforcement by Suit. The Board may cause a suit to be commenced and maintained in the name of the Association against an Owner to collect such delinquent Assessments; to cause a temporary and/or permanent injunction or mandatory injunction to issue for compliance with or performance of said obligations by an Owner and/or his invitees; and to seek damages against an Owner or his invitee for violation of said obligation. Any judgment rendered in favor of the Association in any such action shall include (but not necessarily be limited to) the amount of any delinquency at the rate provided above, court costs, and reasonable attorneysâ fees in such amount as the court may adjudge against the Owner.
b. Enforcement by Lien. There is hereby created a claim of lien, with power of sale, on each and every Lot within XXX to secure payment to the Association of any and all Assessments levied against any and all Owners of such Lots together with interest thereon as specified in this Section from the date of delinquency, and all costs of collection which may be paid or incurred by the Association in connection therewith, including reasonable attorneys, fees. At any time within thirty (30) days after the occurrence of any default in the payment of any such Assessment, the Association, or any authorized representative may, but shall not be required to, make a written demand for payment to the defaulting Owner, on behalf of the Association. Said demand shall state the date and amount of the delinquency. Each default shall constitute a separate basis for a demand or claim of lien or a lien, but any number of
defaults may be included within a single demand or claim of lien. If such delinquency is not paid within ten days after delivery of such demand, or, even without such a written demand being made, the Association may elect to file such a claim of lien on the behalf of the Association, against the Lot of the defaulting Owner. The Association may file of record a lien in favor of the Association, against any Lot with a delinquent Assessment. Such a lien shall be executed and acknowledged by any officer of the Association or its attorney, and shall contain substantially the following information:
1. The name of the owner of the Lot with the delinquent assessment;
2. The legal description and street address of the Lot against which lien is filed;
3. The total amount claimed to be due and owing for the amount of the delinquency, interest thereon, court costs, and reasonable attorneysâ fees all of which constitute the amount of the lien;
4. A recital to the effect that the lien is filed by the Association pursuant to the Declaration.
Upon recordation of a duly executed original or copy of such a lien, then the lien shall immediately attach and become effective in favor of the Association as a lien upon the Lot against which such Assessment was levied, and shall secure the amounts claimed therein. Such a lien shall have priority over any claim of homestead or other exemption and over all liens, mortgages, deeds of trust, or claims or encumbrances created subsequent to the recordation of the lien provided hereby, except only tax liens for real property taxes on any Lot, and assessments on any Lot in favor of any municipal or other governmental assessing unit. Any such lien may be foreclosed by appropriate action on court or in the manner provided by law for the foreclosure of a realty mortgage or trust deed as set forth by the laws of the State of Oklahoma, as the same may be changed or amended. The lien provided for herein shall be in favor of the Association and shall be for the benefit of the Association. The Association shall have the power to bid in at any foreclosure sale and to purchase, acquire, hold, lease, mortgage, and convey any Lot. In the event such foreclosure is by action in court, reasonable attorneysâ fees, court costs, title search fees, interest and all other costs and expenses shall be allowed to the extent permitted by law. Each owner, by becoming an Owner of a Lot in XXX, hereby expressly waives any objection to the enforcement and foreclosure of this lien substantially in the manner provided herein, or in any other manner provided by law.
7.10 Priority of Lien. The lien of the Assessments provided for herein shall be subordinate to the lien of any first mortgage or deed of trust. The sale or transfer of any Lot shall not affect the Assessment lien. However, the sale, transfer, acceptance of a deed in lieu of foreclosure, a judicial foreclosure, or foreclosure by Power of Sale of any Lot pursuant to the foreclosure of any prior lien shall extinguish all existing liens of such Assessments as to payments which became due or accrued prior to sale, transfer, deed in lieu of foreclosure or foreclosure. No sale or transfer shall relieve such Lot from liability for any Assessments thereafter becoming due or from the lien thereof, nor shall the Owner or Owners prior to foreclosure sale or transfer be relieved of his or their personal liability for the Assessments unpaid prior to such sale or transfer. Any other sale or transfer of any Lot shall not affect the Assessment lien.
13.01 Assessments.
a. Assessments. Assessments shall be due yearly in advance on the first day of each year. After Yearly Assessments have been set by the Board, the Board shall prepare and deliver or mail to each Owner and individual statement of the Ownerâs yearly Assessment; thereafter, yearly statements shall be prepared and delivered or mailed annually, or more often in the event of a change in the Assessment or the levying of a special Assessment and/or if deemed desirable or necessary by the Board.
b. Basis for Assessments. The Assessments made for common expenses shall be based upon the estimated cash requirements as the Board determines is to be paid by all of the Owners to provide for the payment of all estimated expenses growing out of or connected with the maintenance, repair, operation, additions, alterations and improvements of an to the Common Elements, which sum may include, but shall not be limited to, expenses of management, taxes and special Assessments until separately assessed, premiums for fire insurance with extended coverage and vandalism and malicious mischief (with endorsements issued in the amount of the maximum replacement value of all o the Common Elements), casualty and public liability and other insurance premiums, landscaping and care of the grounds, repair and replacement of the entrance gate, common lighting, repairs and renovations, removal of pollutants and trash collection, wages, utility charges for Common Elements, beautification and decoration, professional fees, legal and accounting fees, management fees, expenses and liabilities incurred by the managing agent or Board on behalf of the Owners under or by reason of the Declaration of Covenants and Restrictions and the By-Laws of the Homeownersâ Association, for any deficit arising or any deficit remaining from a previous period, the creation of a reasonable contingency fund, reserves, working capital as well as other costs and expenses relating to the Common Elements. In the event the cash requirements for Common Elements exceed the aggregate Assessments made pursuant to this Article, the Board may from time to time and at any time make pro rata increases or decreases in the yearly Assessments and/or shall be authorized to change the frequency of Assessments, with the prior approval of two-thirds (2/3rds) of the Lot Owners. The omission or failure to fix the Assessment for any period shall not be deemed a waiver, modification or a release of the Owner form their obligations to pay the same.
c. Special Assessments. In addition to those Assessments described in paragraph (a) above, special Assessments may be made from time to time by the Board to meet other needs or to construct or establish other facilities deemed of benefit to the Homeownersâ Association and the Owners by the Board or to overcome deficits in the operating budgets, however there shall be no special Assessments for additions, alterations or improvements of or to the Common Elements without the prior approval of two-thirds (2/3rds) of the Lot Owners. Such limitations shall not be applicable, however, to special Assessments for the replacement, repair, maintenance or restoration of any Common Elements which are to be paid for by the Homeowners Association according to the Declaration of Covenants and Restrictions and these By-Laws.
d. Ownerâs Personal Obligation for Payment of Assessments. The amount of total Assessments against such Lot shall be the personal and individual debt of the Owner thereof. The Board shall have the responsibility to take prompt action to collect any unpaid Assessment in accordance with the terms of the Declaration of Covenants and Restrictions.