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.