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DECLARATION OF COVENANTS
THIS DECLARATION OF COVENANTS, conditions and restrictions,
hereinafter called “Declaration,” is made and executed in Ruidoso, Lincoln
County, New Mexico, this 2nd day of March, l9,2, by JAMES JAPHET ENTERPRISES, INC.,
hereinafter called “Declarant,” pursuant — to the provisions of the Building
Unit Ownership Act. of the State of
WITNESSETH
WHEREAS Declarant is the
owner of certain real property located in Ruidoso,
Apartments 101 thru 107; and 201 thru 208; and 301 thru 303; and 401 thru 406;
and 501 thru 508; and 601 thru 606; and 701 thru 708; and 801 thru 807, together
with their undivided interest in the common area of Whispering Bluff
Condominiums as shown by the plat filed in the office of the County Clerk and
Ex—Officio Recorder of Lincoln County, New Mexico on the 5th day of March,
1982, in Cabinet No. 0, Slide 62,
and
WHEREAS Declarant is the
owner of the buildings and improvements constructed or hereafter to be
constructed, upon the described real property, and it is the desire and the
intention of the Declarant to submit said real property to the Building Unit
Ownership Act and to sell and convey the same to various purchasers, subject to
the covenants, conditions and restrictions herein reserved to be kept and
observed; and
WHEREAS Declarant desires
and intends by filing this Declaration and the aforesaid plat to submit the
above—described real property and the buildings and other improvements thereon
constructed, together with all future construction upon said real property, and
all appurtenances pertaining to the real property, to the provisions of the
Building Unit Ownership Act and to impose upon said real property mutually
beneficial restrictions under a general plan of improvement for the benefit of
all owners thereof;
NOW, THEREFORE, Declarant
does declare that the real property described above shall be held, conveyed,
hypothecated, encumbered, leased, rented, used, occupied, and improved subject
to the easements, restrictions and reservations of record, as well as the
following covenants, conditions, restrictions, uses, limitations and obligations,
all of which are declared and agreed to be in furtherance of a common plan for
the improvement of said real property and shall be deemed to run with the land
and shall be a burden and a benefit to bo1atant, their successors and assigns,
and any person acquiring or owning an interest in the real property and
improvements, their grantees, successors, heirs, executors, administrators,
devisees and assigns, regardless of the method of acquisition of such interest
or the notice afforded to such person.
1. Definitions:
Certain terms as used in this Declaration shall be defined as follows, unless
the context clearly indicates a different meaning therefore:
(a) “Act”
shall mean the Building Unit Ownership Act of the State of New Mexico, Sections
47—7—1 et seq, N.M.S.A., 1978 Compilation, as amended.
(b)
“Declarant” shall mean JAMES JAPHET ENTERPRISES, INC., who have made and
executed this Declaration.
(c)
“Declaration” shall mean this instrument,
(d)
“Project” shall mean the above described parcel of real property, including all
structures thereon and future phases that may be added thereto in accordance
with Paragraph 6.
(e)
“Plat” shall mean the recorded Plat of WHISPERING BLUFF CONDOMINIUMS filed for
record herewith by Declarant in the Records of the County Clerk and Ex—officio
Recorder of Lincoln County, New Mexico, and such additional phases that
Declarant shall, according to the provisions of Paragraph 6, contemplate a
unity of use and development and designate as being subject to these Declarations.
(f)
“Apartment” shall mean the separate interest of a Unit Owner which is not owned
in common with the other Unit Owners in the project as shown on the plat. The
boundary lines of each Apartment are the interior surfaces of its perimeter
walls, bearing walls, floors, ceilings, windows and window frames, doors and
door frames, and trim, and includes both the portions of the building so
described and the space so encompassed.
(g)
“Common Area” shall mean all land and all portions of the property not located
within any Apartment; and also includes but not by way of limitation, roofs,
foundations, pipes, ducts, flues, chutes, conduits, wires and other utility
installations to the outlets, bearing walls, perimeter walls, columns and
girders, to the interior surfaces thereof, regardless of location, walkways,
porches, patios, storage areas, recreational areas and facilities, offices, all
installations of power, lights, gas, hot and cold water and heating existing
for common use and all other parts of the property necessary or convenient to
its existence, maintenance and safety, or normally in common use.
(h)
“Limited Common Areas and Facilities” means common areas and facilities
designated in the Declaration as reserved for use of certain Apartments to the
exclusion of the others.
(i)
“Condominium” shall mean the entire estate in the real property owned by any
Unit Owner, consisting of an undivided interest in the Common Area and
ownership of a separate interest in an Apartment.
(j) “Unit
Owner” shall mean the person or persons owning an Apartment in fee simple
absolute and its undivided interest in the fee simple or leasehold estate of
the Common Areas and facilities in the percentage established by this
Declaration.
(k)
“Association of Whispering Bluffs Unit Owners, Inc.” (sometimes called “the
Association”) means all of the Unit Owners acting as a group in accordance with
the Articles of Incorporation, Bylaws and Declaration.
(1)
“Common Expenses” includes all sums lawfully assessed against the Unit Owner by
the Association; expenses of administration, maintenance, repair or replacement
of the Common Areas and Facilities and expenses declared common expenses.
(m)
“Common Profits” means the balance of income, rents, profits and revenues from
the Common Areas and Facilities remaining after the deduction of Common
Expenses.
(n)
“Person” means an individual, corporation, partner— ship, combination,
association, trustee, or other legal entity.
(o)
“Management Committee” shall mean the Board of Directors elected or authorized
to act for the Association of Whispering Bluffs Unit Owners, Inc., in
accordance with these Declarations, the Articles of Incorporation, and the
Bylaws, as
hereinafter set forth.
(p)
“Property” means the land, the building, improvements and structures owned in
fee simple absolute or long term ground lease, all easements, servitude, rights
and appurtenances belonging thereto, and all chattels intended for use in
connection therewith, which have been or are intended to be submitted to the
provisions of the Building Unit Ownership Act.
(q)
“Unit” means the apartment and its undivided interest in the Common Area.
2. Buildings
and Apartments: There are 53
Apartments proposed to be
constructed in Whispering Bluff Condominiums. The Apartments shall be contained
within eight (8) principal structures as demonstrated on the plat which is
attached hereto as Exhibit “A.” The Apartments contained within the building
shall have various levels of dwelling space, containing approximately the
square footage and room arrangements shown on Exhibit “81” attached hereto.
However, the number of different floor levels, room arrangements, rooms, decks,
or patio arrangements exhibited on said Exhibit “Bl,” maybe varied during the
initial construction, and this Declaration shall be deemed amended by such
construction or the filing and recording of such additional plans as may be
required to adequately describe the improvements as modified. Such plan,
construction or certificate shall in itself constitute an amendment of this
Declaration, notwithstanding the procedures for amendment described elsewhere
in this Declaration. Following the completion of construction of the Unit, the
approval of the Management Committee will be necessary for any changes to any
Unit.
The
location and number of each Unit and its approximate area, the Common Areas,
and a description of the Limited Common Areas and the Apartments to whose use
the same are reserved, are shown on the attached Exhibit “A.”
The
principal construction materials of each Unit shall be wood and concrete. The
construction technique shall be wood frame. Each Unit Owner has an immediate
access from his Apartment to
Common Area.
3. Boundaries and Composition of apartments: The boundaries of each Apartment are and shall be
the interior surfaces of the perimeter walls, floors and ceilings, and the
space so encompassed, excepting the Common Areas located therein. The
individual ownership of each Apartment shall further include the interior
construction, fixtures, equipment and appliances which are designed and
intended solely for the benefit of and to exclusively serve the particular
Apartment in or to which the same are located or attached, and which are not
designed or intended for the benefit, support, service, use or enjoyment of any
other Apartment, such as, for example, the non—bearing interior room walls and
other non— bearing and non—supporting interior partitions, the interior floor
finish (including carpeting and other floor covering), the finished walls and
ceilings, the closets, cabinets and shelves, the sills adjoining the walls, the
individual lighting and electrical fixtures and appliances, the individual
kitchen and bathroom fixtures, equipment, appliances and plumbing, fireplaces,
garages, furnaces and air conditioning appliances and equipment, all glass or
glass plate in any window or forming part of any wall in or of the Apartment
(as hereinafter more particularly provided), and all interior and exterior
doors of the Apartment, including garage door if appropriate.
4. Common
Areas: The Common Areas shall consist of all of the land described herein
as being submitted to the Act, together with all improvements thereon except
the individual Apartments as defined herein, and such Common Areas shall
include all of such land herein, the foundations, bearing walls and columns,
common parking areas, yards, gardens, the compartments or installation of
central services, such as power, light, electricity, pumps, public utility
lines, floors and ceilings (other than the finished interior surfaces thereof
located within the Apartments), perimeter walls of Apartments (other than the
finished interior surfaces thereof located within the Apartments), structural
and supporting parts of all buildings,
outside walks and driveways, and all structures, fixtures, facilities,
equipment and appliances which are designed and intended for the common and
mutual use or benefit of each Apartment and the space occupied by same, and in
general, all other portions of the Project property except the individual
Apartments and the particular elements thereof which are to be individually
owned, as declared and established in this Declaration. Reference is hereby
made to the Act for further definition of the “Common Areas”.
5. Exclusive
Ownership and Possession by Unit Owner: Each Unit Owner shall be entitled
to exclusive ownership and possession of his Apartment. Each Unit Owner shall
be entitled to an undivided interest in the Common Area in the percentage
expressed in Exhibit “C” Of this Declaration. Except as provided in Paragraph 6
below, the percentages of the undivided interest of each Unit Owner in the
Common Area as expressed in Exhibit “C” shall have a permanent character and
shall not be altered without the consent of all Unit Owners expressed in an
amended declaration duly recorded. The percentage of the undivided
interest in the Common Area shall not be separated from the Apartment to which
it appertains and shall be deemed to be conveyed or encumbered or released from
liens with the Apartment even though such interest is not expressly mentioned
or described in the conveyance or other instrument. Each Unit Owner may use the
Common Area in accordance with the purpose for which it is intended, without
hindering or encroaching upon the lawful rights of the other Unit Owners.
A Unit
Owner shall not be deemed to own the undecorated and/or unfinished surfaces of
the perimeter walls, floors, ceilings, windows and doors bounding his
Apartment, nor shall the Unit Owner be deemed to own the utilities running
through his Apartment which are utilized for, or serve more than one Apartment,
except as a tenant in common with the other Unit Owners. A Unit Owner, however,
shall be deemed to own and shall have the exclusive right to paint, repaint,
tile, wax, paper or otherwise refinish and decorate the inner surfaces of the
walls, floors, ceilings, windows, and doors bounding his Apartment.
6. Additional
Construction and Percentage of Undivided Interest and Restrictions: Declarant
is the owner of additional lands located contiguously or nearby the lands
described herein. Should Declarant elect to undertake additional construction
and contemplate a unity of use and development of said contiguous or nearby land,
the Declarant and each Unit Owner covenant and agree to the reduction of the
percentage of undivided interest as defined in paragraph 5 above, conditioned
upon further construction and acquisition of additional Common Areas. There is
hereby reserved for the benefit of Declarant the right and privilege to utilize
all rights of way, utility easements, Common Areas, and other portions of the
Project or such additional phases thereof, so as to connect with and make use
of the utilities, driveways and walks of this Project, there being granted to
Declarant the right to ingress and egress across the areas of the Common Areas
for purposes of future construction of Declarant.
7. Removal: All Unit Owners may remove the Project from
the provisions of the Building Unit Ownership Act by an instrument to that
effect duly recorded, provided that the holders of liens affecting any
Condominium consent or agree by instrument duly recorded, and further provided
that their liens be transferred to the percentage of the undivided interest of
the debtor Unit Owner in the property. Upon removal of the property from the
provisions of the Building Unit Ownership Act, the property shall be deemed to
be owned in common by the Unit Owners. The undivided interest in the property owned
in common which shall appertain to each Unit Owner shall be the percentage of
undivided interest previously owned by a Unit Owner in the common areas.
8. Limitations
on Use of Apartments and Common Area: The Apartments and Common Area shall
be occupied and used as follows:
(a) Each
Unit Owner shall occupy or use his Apartment for no purpose other than as a
private residence for the Unit Owner and the Unit Owner family or the Unit
Owner’s lessees or guests, it being the intention to permit overnight, weekly
or monthly leasing of the premises, provided that usage of the premises is
residential in nature.
(b) There
shall be no obstruction of the Common Area. Except in the case of designated
storage areas, nothing shall be stored in the Common Area without the prior
consent of the Management Committee.
(c)
Nothing shall be done or kept in any Apartment or in the Common Area which will
increase the rate of insurance on the Common Area, without the prior written
consent of the Management Committee. No Unit
Owner shall permit anything to be done or kept in his Apartment or
in the Common Area which will result in the cancellation of insurance on any
Apartment or any part of the Common Area, or which would be in violation of any
law. No waste will be committed in the Common Area.
(d) No
sign of any kind shall be displayed to the public view on or from any Apartment
or the Common Area, without the prior consent of the Management Committee.
(e) No
animals (including domestic pets), livestock or poultry of any kind shall be
raised, bred, or kept in any Apartment or in the Common Area. All parts of the
property shall be kept in a clean, sanitary condition, and no rubbish or
garbage shall be allowed to accumulate nor any hazard allowed to exist. All
domestic pets shall be leashed or confined when in or upon the Common Area and
shall not be housed, maintained, or confined outside the Apartment of a Unit
Owner.
(f) No
noxious or offensive activity shall be carried on in any Apartment or in the
Common Area, nor shall anything be done therein which may be or become a source
of annoyance or nuisance to the other Unit Owners. Violation of these
Declarations or of the Management Committee’s rules and regulations as adopted
hereafter shall be deemed a noxious or offensive activity.
(g)
Nothing shall be altered, modified or constructed in the Common Area, except
upon the written consent of the Management Committee.
(h) There
shall be no violation of laws, statutes or regulations of the United States of
America, the State of New Mexico, the Village of Ruidoso, or any other lawful
authority, the restrictive covenants, this Declaration, or the rules adopted by
the Management Committee.
(i) None
of the rights and obligations of the Unit Owners created herein, or by the deed
granting to any Unit Owner his Condominium, shall be altered in any way by
encroachments due to settlement or shifting of structures or any other cause.
There shall be valid easements for the maintenance of said encroachments so
long as they shall exist, provided, however, that in no event shall a valid
easement for encroachment be created in favor of a Unit Owner if said
encroachment occurred due to the willful conduct of said Unit Owner.
(j) The
Apartments and Common Area shall be occupied and used in accordance with the
rules and regulations of the Management Committee as adopted by the Management
Committee.
9. Easements:
A valid easement shall exist in the favor of a Unit Owner in each Apartment and
in each portion of the Common Area for the benefit of each Unit Owner and also
in favor of utility companies or the installation, maintenance, repair, removal
or replacement of any and all utility lines, pipes, wires, conduits, facilities
and equipment serving the Project as a whole or any individual Apartment, and
the ownership of a condominium shall be subject to such easements.
Each
Condominium is conveyed together with an easement for the continuance of all
encroachments by the Apartment on any adjoining Apartments or Common Area
existing as the result of construction of the building, or which may come into
existence hereafter as a result of settling or shifting of the building whether
a result of repair or restoration of the building or of the Apartment, after
damage or destruction by fire or other casualty, or after taking in
condemnation or eminent domain proceedings or by reason of an alteration or
repair to the Common Area made by or with the consent of the Management
Committee.
Each
Condominium is conveyed subject to easements in favor of adjoining Apartments
and in favor of the Common Area for the continuance of all encroachments of
such adjoining Apartments or Common Area on the Apartment, now existing as a
result of construction of the buildings, or which may come into existence
hereafter, as a result of settling or shifting of the building, or as a result
of repairing or restoration of the building or of any adjoining Apartment or of
the Common Area after damage or destruction by fire or other casualty, or after
a taking in condemnation or eminent domain proceedings, or by reason of an
alteration or repair to the Common Area made by or with the consent of the
Management Committee.
10. Unit
Owner’s Obligation to Repair: Except for those portions which the
Management Committee is required to maintain and repair hereunder (if any),
each Unit Owner shall, at the Unit Owner’s expense, keep the interior of his
Apartment and its equipment and appurtenances in good order, condition and
repair and in a clean and sanitary condition, and shall do all redecorating,
painting and varnishing which may at any time be necessary to maintain the good
appearance and condition of his Apartment. In addition to decorating and
keeping the interior of the Apartment in good repair, the Unit Owner shall be
responsible for the maintenance, repair or replacement of any plumbing
fixtures, water heaters, heating equipment, lighting fixtures, refrigerators,
dishwashers, disposals or ranges that may be in or connected with the
Apartment.
The Unit
Owner shall also, at the Unit Owner’s expense, keep the deck and patio which
have been assigned to his Apartment in a clean and sanitary condition. The
Management Committee and Manager shall not be responsible to the Unit Owner for
loss or damage by theft or otherwise of articles which may be stored by the
Unit Owner in the Apartment.
11. Prohibition
Against Structural Changes by Unit Owner:
The Unit Owner shall not, without first obtaining written consent of the
Management Committee, make or permit to be made any structural alteration,
improvement or addition in or to his Apartment or in or to the exterior of the
buildings or the Common Area. The Unit Owner shall do no act or any work that
will impair the structural soundness or integrity of the buildings or safety of
the property or impair any easement or hereditament without the written consent
of all unit Owners. The Unit Owner shall not paint or decorate any portion of
the exterior of the buildings or other Common Area or any portion of any deck or patio without first
obtaining written consent of the Management Committee.
12. Entry
for Repairs: The Management Committee or its agents may enter any Apartment
when necessary in connection with any maintenance, landscaping or construction
for which the Management Committee is responsible. Such entry shall be made
with as little inconvenience to the Unit Owners as practicable, and any damage
caused thereby shall be repaired by the Management Committee out of the Common
Expense Fund.
13. Association
of Whispering Bluffs Unit Owners: Each Unit Owner shall automatically be a
member of the Association of Whispering Bluffs Unit Owners, Inc., (sometimes
herein called “the Association”), which shall be the governing and
administrative body for all Unit Owners for the protection, preservation,
upkeep, maintenance, repair and replacement of the Common Areas and the
government, operation and administration of the Project property as a whole and
shall remain a member thereof until such time as his ownership ceases for any
reason, at which time his membership shall automatically cease. Upon any
transfer of ownership of any Condominium, regardless of how accomplished, the
new Unit Owner acquiring or succeeding to such ownership interest shall
likewise automatically succeed to such membership in such Association.
14. Articles
of Incorporation and Bylaws of the Association of Whispering Bluffs Unit
Owners, Inc: The Articles of Incorporation and the Bylaws, a true copy of
which is annexed hereto, marked Exhibit “D,” incorporated herein by reference
thereto. No modification or amendment to the Articles of Incorporation or the
Bylaws shall be valid unless set forth in an amendment to the Declaration, and
the amendment duly recorded in the Office
of the County Clerk and Ex—Officio Recorder of Lincoln County, New Mexico, and
the New Mexico State Corporation Commission, when applicable.
15. Management
Committee — Initial Management Committee: It is contemplated that the Association may utilize
a Management Committee to conduct its business. Whenever the term “Management
Committee” is herein set forth, said term may be read as “the Board of
Directors of the Association” if no Management Committee is organized and
conducting Association business; and if there be no Board of Directors of the
Association, then said term may be read as “the Association.” The Declarant
shall be the initial Management Committee for the Association until March 2,
1987, or until Declarant notifies the Association of Declarant’s resignation
from said Management Committee.
16. Delegation
to Management Committee: The rights, powers and duties of the Association
may be delegated to the Management Committee; however, said Committee shall
have only the rights, powers and duties set forth herein or as these
Declarations may be amended.
17. Authority
of the Management Committee: The Management Committee, for the benefit of the
Project and the Association, shall enforce this Declaration and shall acquire
and pay from the Common Expense Fund the costs incurred for the following
(a)
Water, sewer, garbage collection, snow removal, electrical, telephone and other
necessary utility service for the Common Area
(and to the extent not separately metered or charged for the
Apartments);
(b) A
policy or policies of fire insurance as the same are more fully set forth in
Paragraph 27 of this Declaration, with extended coverage endorsement, for the
full insurable replacement value of the Apartments and Common Area, payable as
provided in Paragraph 28, or such other fire and casualty insurance as the
Management Committee shall determine gives substantially equal or greater
protection to the Unit Owners and their mortgagees, as their respective
interests may appear, which said policy or policies shall provide for a
separate loss payable endorsement in favor of the mortgagee or mortgagees of
each Condominium, if any;
(c) A
policy or policies as the same are more fully set forth in Paragraph 27 of this
Declaration insuring the Management Committee, the Unit Owners and the Manager
against any liability to the public or to the Unit Owners, their invitees or
tenants, incident to the ownership and/or use of the Project, and including the
personal liability exposure of the Unit Owners. Limits of liability under such
insurance shall not be less than THREE HUNDRED THOUSAND DOLLARS ($300,000.C0)
for any one person injured in any one accident, arid shall not be less than THREE HUNDRED THOUSAND
DOLLARS ($300,000.00) for property damage each occurrence (such limits and
coverage to be reviewed at least annually by the Management Committee and
increased in its discretion). Said policy or policies shall be issued on a
comprehensive liability basis and shall provide cross liability endorsement
wherein the rights of named insured under the policy or policies shall not be
prejudiced as respects his, her or their action against another named insured;
(d)
Workmen’s Compensation insurance to the extent necessary to comply with any
applicable laws;
(e) The
services of a person or firm to manage its affairs (herein called “the
Manager”) to the extent deemed advisable by the Management Committee as well as
such other personnel as the Management Committee shall determine necessary or
proper for the operation of the Common Area, whether such personnel are
employed directly by the Management Committee or are furnished by the Manager;
(f) Legal
and accounting services necessary or proper in the operation of the Common Area
or the enforcement of this Declaration;
(g) A
fidelity bond naming the Manager and such other persons as may be designated by the Management Committee as
principals, and the Unit Owners as
obligees, for the first year in an amount at least equal to fifty percent (50%)
of the estimated cash requirement for that year as determined under Paragraph
21 hereof, and for each year thereafter in an amount at least equal to fifty
percent (50%) of the total sum collected through the Common Expense Fund during
the preceding year;
(h) Painting, maintenance, repair and all landscaping of the Common Area, and such
furnishings and equipment for the Common Area as the Management Committee shall
determine are necessary and proper. The Management Committee shall have the exclusive
right and duty to acquire the same for
the Common Area, provided, however, that the interior surfaces of each Apartment shall be painted, maintained and repaired
by the Unit Owner thereof, all such maintenance to be at the sole cost and
expense of the particular Unit Owner;
(i)Any other materials, supplies, labor,
services, maintenance, repairs, structural alterations, insurance, taxes or
assessments which the Management Committee is required to secure or pay for
pursuant to the terms of this Declaration or by law or which in its opinion
shall be necessary or proper for the operation of the Common Area or for the
enforcement of this Declaration, provided that if any such materials, supplies,
labor, services, maintenance, repairs, structural alterations, insurance, taxes
or assessments are provided for particular Apartments, the cost thereof shall
be specially assessed to the Unit Owners of such Apartments;
(j) Maintenance
and repair of any Apartment, if such maintenance or repair is reasonably
necessary in the discretion of the Management Committee to protect the Common
Area or preserve the appearance and value of the Project, and the Unit Owner or
Owners of said Apartment have failed or refused to perform said maintenance or
repair within sixty (60) days after written notice of the necessity of said
maintenance or repair has been delivered by the Management Committee to said
Unit Owner or Owners, provided that the Management Committee shall levy a
special assessment against the condominium of such Unit Owner or Owners for the
cost of said maintenance or repair.
Unless
approved by Unit Owners holding a majority of the total votes, the Management
Committee’s power hereinabove enumerated shall be limited in that the
Management Committee shall have no authority to acquire and pay for out of the
Common Expense Fund capital additions and improvements (other than for purposes
of replacing portions of the Common Area, subject to all the provisions of this
Declaration) having a cost in excess of FOUR THOUSAND DOLLARS ($4,000.00)
except as expressly provided herein.
18. Management
Committee Powers, Exclusive: The Management Committee shall have the
exclusive right to contract for all goods, services and insurance, payment for
which is to be made from the Common Expense Fund.
19. Alterations,
Additions and Improvements of Common Area:
There shall be no structural alterations, capital additions to, or capital
improvements of the Common Area requiring expenditure in excess of TEN THOUSAND
DOLLARS ($10,000.00) without the prior approval of Unit Owners holding a
majority of the total votes.
20. Common
Expenses, Assessments:
a) Within
thirty (30) days prior to the beginning of each calendar year, the Management
Committee shall estimate the net charges to be paid during such year (including
a reasonable provision for contingencies and replacements and less any expected
income and any surplus from the prior year’s fund). Said “estimated cash
requirement” shall be assessed to the Unit Owners pursuant to the percentages
set forth in the schedule attached hereto and marked Exhibit “C.” Declarant
will be liable for the amount of any assessment against completed Apartments
owned by Declarant. If said sum estimated proves inadequate for any reason
including non—payment of any Unit Owner’s assessment, the Management Committee
may at any time levy a further assessment, which shall be assessed to the Unit
Owners in like proportions, unless otherwise provided herein. Each Unit Owner
shall be obligated to pay assessments made pursuant to this Paragraph to the
Management Committee in equal monthly installments on or before H the first day of each month during such year, or in such
other reasonable manner as the Management Committee shall designate;
(b) The
rights, duties and functions of the Management Committee set forth in this
Paragraph shall be exercised by Declarant for the period ending thirty (30)
days after the election of the first Management Committee hereunder;
(c) All funds
collected hereunder shall be expended for the purposes designated herein;
(d) The
omission by the Management
Committee, before the expiration of any year, to fix the assessments hereunder
for that or the next year, shall not be deemed a waiver or modification in any
respect of the provisions of this Declaration, or a release of the Unit Owner
from the obligation to pay the assessments, or any installment thereof for that
or any subsequent year, but the assessment fixed for the preceding year shall continue
until a new assessment is fixed. Amendments to this Paragraph shall be
effective only upon unanimous written consent of the Unit Owners and their
mortgagees. No Unit Owner may exempt himself from liability for his
contribution toward the Common Expense Funds by waiver of the use or enjoyment
of any of the Common Area or by abandonment of his Apartment;
(e) The
Manager or Management Committee shall keep detailed, accurate records in
chronological order of the receipts and expenditures affecting the Common Area,
specifying and itemizing the maintenance and repair expenses of the Common Area
and any other expenses incurred. Records and vouchers authorizing the payments
involved shall be available for examination by the Unit Owner at convenient
hours of week days.
21. Default
in Payment of Assessments: Each monthly assessment and each special
assessment shall be separate, distinct and personal debts and obligations of
the Unit Owner against whom the same are assessed at the time the assessment is
made and shall be collectible as such. Suit to recover a money judgment for
unpaid Common Expenses shall be maintainable without foreclosing or waiving the
lien securing the same. The
amount of any assessment, whether regular or special, assessed to the Owner of
any Condominium plus interest at the prime rate quoted by the Chase Manhattan
Bank of New York, and costs including reasonable attorney fees shall become a
lien upon such Condominium upon recordation of a Notice of Assessment as
provided in Section 47—7—24 of the Building Unit Ownership Act. The said lien
for non—payment of Common Expenses shall have priority over all other liens and
encumbrances, recorded or unrecorded, except:
(a) Tax
and special assessment liens on the Apartment in favor of any assessment
authority or special district; and, (b) Encumbrances on the Unit Owner’s
Condominium recorded prior to the date such notice is recorded which by law
would be a lien prior to subsequently recorded encumbrances.
A
certificate executed and acknowledged by a majority of the Management Committee
stating the indebtedness secured by the lien upon any Condominium created
hereunder shall be conclusive upon the Management Committee and the Unit Owners
as to the amount of such indebtedness on the date of the certificate, in favor
of all persons who rely thereon in good faith. Such certificate shall be
furnished to any Unit Owner or any encumbrancer or prospective encumbrancer of
a Condominium upon request at a reasonable fee. Unless the request for a
certificate of indebtedness shall he complied with within ten (10) days, all
unpaid Common Expenses which become due prior to the date of the making of such
request shall be subordinate to the lien held by the person making the request.
Any encumbrancer holding a lien on a Condominium may pay any unpaid Common
Expenses payable with respect to such Condominium and upon such payment such
encumbrancer shall have a lien on such Condominium for the amounts paid of the
same rank as the lien of his encumbrance.
Upon payment
of a delinquent assessment concerning which such a certificate has been so
recorded or other satisfaction thereof, the Management Committee shall cause to
be recorded in the same manner as the certificate of indebtedness a further
certificate stating the satisfaction and the release of the lien thereof. Such
lien for non—payment of assessment may be enforced by sale by the Management
Committee or by a bank or trust company or title insurance company authorized
by the Management Committee, such sale to be conducted in accordance with the
provisions of law applicable to the exercise of powers of sale or foreclosure
in deeds of trust or mortgages or in any manner permitted by law. In any
foreclosure or sale, the Unit Owner shall be required to pay the costs and
expenses of such proceedings and reasonable attorney fees.
In case
of foreclosure, the Unit Owner shall be required to pay a reasonable rental for
the Condominium and the plaintiff in the foreclosure action shall be entitled
to the appointment of a receiver to collect the rental without regard to the
value of the mortgage security. The Management Committee or Manager shall have
the power to bid in the Condominium at foreclosure or other sale and to hold,
lease, mortgage and convey the Condominium.
22. Mortgage
Protection: Notwithstanding all other provisions hereof:
(a) The
liens created hereunder upon any Condominium shall be subject and subordinate
to and shall not affect the rights of the holder of the indebtedness secured by
any recorded first mortgage (meaning a mortgage with first priority over other
mortgages) upon such interest made in full faith and for value, provided that
after the foreclosure of any such mortgage there may be a lien created pursuant
to these Declarations hereof on the interest of the purchaser at such
foreclosure sale to secure all assessments, whether regular or special,
assessed hereunder to such purchaser as a Unit Owner after the date of such
foreclosure sale, which said lien,
if any claimed, shall have
the same effect and be enforced in the same manner as provided herein;
(b) No
amendment to this Paragraph shall
affect the rights of the holder of any such mortgage recorded prior to recordation of such amendment who does not join in the execution
thereof;
(c) By subordination
agreement executed by a majority of the Management Committee, the benefits of
(a) and (b) above may be extended to mortgages not otherwise entitled thereof.
23. Deletion
to Manager : The
Management Committee may delegate any of its duties, powers or functions,
including but not limited to, the authority to give the subordination
agreements provided for in Paragraph 22 hereof, to any person or firm, to act
as Manager of the Project, provided that any such delegation shall be revocable
upon notice by the Management Committee. The members of the Management
Committee shall not be liable for any omission or improper exercise by the
Manager of any such duty, power or function so delegated by written instrument
executed by a majority of the Management Committee. In the absence of any
appointment, the Chairman of the Management Committee shall act as Manager.
24. Failure
of Management Committee to Insist on Strict Performance No Waiver: The
failure of the Management Committee or Manager to insist in any one or more
instances upon the strict performance of any of the terms, covenants,
conditions or restrictions of this Declaration, or to exercise any right or
option herein contained, or to serve any notice or to institute, any action,
shall not be construed as a waiver or a relinquishment for the future of such
term, covenant, condition or restriction, but such term, covenant, condition or
restriction shall remain in full force and effect. The receipt by the
Management Committee or Manager of any assessment from a Unit Owner with
knowledge of the breach of any covenant hereof shall not be deemed to have been
made unless expressed in writing and signed by the Management Committee or
Manager.
25. Limitation
of Management Committee’s Liability: The Management Committee shall not be
liable for any failure of any service to be obtained and paid for by the
Management Committee hereunder, or for injury or damage to person or property
caused by the elements or by another Unit Owner or person in the Project, or
resulting from electricity, water, rain, snow or ice which may leak or flow
from outside or from any parts of the buildings, or from any of its
pipes, drains, conduits, appliances, or equipment, or from any other place
unless caused by gross negligence of the Management Committee. No diminution or
abatement of common expense assessments shall be claimed or allowed, for inconvenience or discomfort arising from the making of repairs or
improvements to the Common area or from any action taken to comply with any
law, ordinance or orders of a governmental authority.
26. Indemnification
of Management Committee Members: Each member of the Management Committee
shall be indemnified by the Unit Owners against all expenses and liabilities,
including attorney fees, reasonably incurred by or imposed upon him in
connection with any proceeding to which he may be a party, or in which he may
become involved, by reason of his being or having been a member of the
Management Committee, or any settlement thereof, whether or not he is a member
of the Management Committee at the time such expenses are incurred, except in
such cases wherein the member of the Management Committee is adjudged guilty of
willful misfeasance or malfeasance in the performance of his duties; provided that
in the event of a settlement the indemnification shall apply only when the
Management Committee approves such settlement and reimbursement as being in the
best interests of the Management Committee.
27.
Insurance: The Management Committee shall obtain and maintain at all times
insurance of the type and kind and in at least the amount provided hereinabove,
and including insurance for such other risks, of a similar or dissimilar
nature, as are or shall hereafter customarily be covered with respect to other
projects similar in construction, design and use, which insurance shall be
governed by the following provisions:
(a) All
policies shall be written with a company licensed to do business in the State
of
(b)
Exclusive authority to adjust losses under policies hereafter in force in the
Project shall be vested in the Management Committee or its authorized
representatives.
(c) In no
event shall the insurance coverage obtained and maintained by the Management
Committee hereunder be brought into contribution with insurance purchased by
individual Unit Owners or their mortgagees;
(d) Each
Unit Owner may obtain additional insurance at his own expense, provided,
however, that no Unit Owner shall be entitled to exercise his right to maintain
insurance coverage in such a way as to decrease the amount which the Management
Committee, on behalf of all of the Unit Owners, may realize under any insurance
policy which the Management Committee may have in force on the Project at any
particular time;
(e) Each
Unit Owner shall be required to notify the Management Committee of all
improvements made by the Unit Owner of his Apartment, the value of which is in
excess of ONE THOUSAND DOLLARS ($1,000.00);
(f) Any
Unit Owner who obtains individual insurance policies covering any portion of
the Project other than personal property belonging to such Unit Owner shall be
required to file a copy of such individual policy or policies with the Management
Committee within thirty (30) days after purchase of such insurance;
(g) The
Management Committee shall be required to make every effort to secure insurance
policies that will provide for the following:
(1) A
waiver of subrogation by the insurer as to any claims against the Management
Committee, the Manager, the Unit Owners and their respective servants, agents,
and guests;
(2) That
the master policy on the Project cannot be cancelled, invalidated or suspended
because of the conduct of any one or more individual Unit Owners;
(3) That
the master policy on the Project cannot be cancelled, invalidated or suspended
because of the conduct of any officer
or employee of the Management Committee or Manager without a prior demand in
writing that the Management Committee or Manager cure the defect;
(4) That
any “no other insurance” clause in the master policy exclude individual Unit
Owners’ policies from consideration.
(h) The annual
insurance review which the Management Committee is required to conduct as
provided in Paragraph 18 above shall include an appraisal of the improvements
in the Project by a representative of the insurance carrier writing the master
policy.
28. Damage
and Destruction: In case of fire, casualty or any other disaster, the
insurance proceeds, if sufficient to reconstruct the buildings, shall be
applied to such reconstruction. Reconstruction of the buildings, as used in
this paragraph, means restoring the buildings to substantially the same
condition in which they existed prior to the fire, casualty or other disaster,
with each Apartment and the Common Area having the same vertical and horizontal
boundaries as before. Such reconstruction shall be accomplished by the Manager
or Management Committee.
If the
insurance proceeds are insufficient to reconstruct the building, damage to or
destruction of the building shall be promptly repaired and restored by the
Manager or Management Committee, using proceeds of insurance, if any, on the
buildings for that purpose, and the Unit Owners shall be liable for assessment
for any deficiency. However, if two—thirds or more of the buildings are
destroyed or substantially damaged and if the Unit Owners, by a vote of at
least three—fourths of the voting power, do not voluntarily, within one hundred
(100) days after such destruction or damage, make provision for reconstruction,
the Manager or Management Committee shall record, with the county recorder, a
notice setting forth such facts., and upon the recording of such notice:
(a) The
property shall be deemed to be owned in common by the Unit Owners;
(b) The
undivided interest in the property owned in common which shall appertain to
each Unit Owner shall be the percentage of undivided interest previously owned
by such Unit Owner in the Common Area;
(c) Any
liens affecting any of the Condominiums shall be deemed to be transferred in
accordance with the existing priorities to the undivided interest of the Unit
Owner in the property; and
(d) The
property shall be subject to an action for partition at the suit of any Unit
Owner, in which event the net proceeds of sale, together with the net proceeds
of the insurance on the property, if any, shall be considered as one fund and
shall be divided among all the Unit Owners in a percentage equal to the
percentage of undivided interest owned by each Unit Owner in the Common Area,
after first paying out of the respective shares of the Unit Owners, to the
extent sufficient for the purposes, all 1ien on the undivided interest in the property owned
by each Unit Owner.
Notwithstanding all other provisions hereof, the Unit
Owners may, by an affirmative vote of at least three—fourths of the voting
power at a meeting of Unit Owners duly called for such purpose, elect to sell
or otherwise dispose of the property. Such action shall he binding upon all
Unit Owners and it shall thereupon become the duty of every Unit Owner to
execute and deliver such instruments and to perform all acts as
in manner and form may be necessary to effect the sale.
29. Enforcement : Each Unit Owner shall comply
strictly with the provisions of this Declaration and with the administrative
rules and regulations drafted pursuant thereto as the same may be lawfully amended
from time to time with decisions adopted pursuant to said Declaration and
administrative rules and regulations, and failure to comply shall be grounds
for an action to recover sums due for damages or injunctive relief or both,
maintainable by the Management Committee or Manager on behalf of the Unit
Owners, or in a proper case, by an aggrieved Unit Owner.
30. Personal Property: The Management Committee or
Manager may acquire and hold, for the benefit of the Unit Owners, tangible and
intangible personal property and may dispose of the same by sale or otherwise;
and the beneficial interest in such personal property shall be owned by the
Unit Owners in the same proportion as their respective interests in the Common
Area, and shall not be transferable except with a transfer of a Condominium. A
transfer of a Condominium shall transfer to the transferee ownership of the
transferor’s beneficial interest in such personal property.
Within thirty (30) days following the completion of
construction of the Project, the Declarant shall execute and deliver a bill of
sale to the Management Committee on behalf of all the Unit Owners, transferring
all items of personal property located on the Project and furnished by the
Declarant, which property is intended for the common use and enjoyment of the
Unit Owners.
31. Audit: Any Unit Owner may at any time at his
own expense cause an audit or inspection to be made of the books and records of
the Manager or Management Committee. The Management Committee, at the expense of
the Common Expenses, shall obtain an audit of all books and records pertaining
to the Project at no greater than annual intervals and furnish copies thereof
to the Unit Owners.
32. Interpretation: The provisions of this
Declaration shall be liberally construed to effectuate its purpose of creating
a uniform plan for the development and operation of this Project. Failure to
enforce any provision hereof shall not constitute a waiver of the right to
enforce said provision or any other provisions hereof,
33. Amendment: The provisions of this Declaration may be
amended by instrument in writing, signed and acknowledged by the Unit Owners
holding seventy—five percent (75%) of the total vote hereunder, which amendment
shall be effected upon recordation in the Office of the County Clerk and
Ex—Officio Recorder of Lincoln County,
New Mexico. Nonetheless, Declarant reserves until September 1, 1983, the
absolute power to amend this Declaration at any time and such amendment shall
be binding upon all Unit Owners and all persons claiming by, through, or under
them.
34. Agent: The
name and address of the agent for service of process is William S. Pitman,
35. Severability: The
provisions hereof shall be deemed independent and severable, and the invalidity
or partial invalidity or unenforceability of any one provision or portion
hereof shall not affect the validity or enforceability of any other provision
hereof.
36. Effective Date: This
Declaration shall take effect upon recording.
IN WITNESS WHEREOF, the undersigned have executed this instrument this instrument this 2nd day of March, 1982.
JAMES F.JAPHET, President
JAMES H.JAPHET, Vice President
WILLIAM S. PITMAN, Secretary
.:-
STATE OF
The foregoing instrument was acknowledged
before me this 2nd
day
of March , 1982, by JAMES F. JAPHET
My Commission Expires: 9-17-82
STATE OF
.
The foregoing instrument was
acknowledged before me this 2nd
day of March, 1982 by JAMES H. JAPHET, Vice
president.
My Commission Expires
6/18/85
STATE OF
Martha McKnight Proctor by Charlotte Emmeon Deputy
Rec. 1 89—05466
Fees: $ 25.00
AMENDMENT
TO DECLARATION OF COVENANTS,
ASSOCIATION of
WHISPERING BLUFFS UNIT OWNERS,
INC.
COMES NOW, the ASSOCIATION OF
WHISPERING BLUFFS UNIT OWNERS,
INC., and hereby amends the ‘Declaration of Covenants” recorded May 11, 1982,
in Book 78 at Pages 1063 through 1098, inclusive, of the Miscellaneous Records
of Lincoln County, New Mexico.
The amendment changes the
Bylaws of the Corporation to the form attached hereto. All other portions of
the Declarations
remain the same.
ASSOCIATION
OF WHISPERING
BLUFFS UNIT OWNERS, INC.
By:_____
REX ANDERSON
President
ATTEST:
Lois MORAN
Secretary
THE STATE OF
The foregoing instrument
was acknowledged before me on this the day of 10th day or July, 1989, by REX ANDERSON, President
of the ASSOCIATION OF WHISPERING BLUFFS UNIT OWNERS, INC., for and behalf of
said Corporation.
My Commission Expires: