HomeMy WebLinkAboutWestland Lofts Condominium Delcaration 04 22 2020DECLARATION
for
WESTLAND LOFTS CONDOMINIUM
INDEX
Certificate of Name .................................................... 2
Certificate of Floor Plan ................................................. 3
DECLARATION FOR WESTLAND LOFTS CONDOMINIUM .................... 4
Definitions ..................................................... 4
Real Estate .................................................... 6
Easement, Common Elements -- Interior Remodeling .................... 8
Ownership and Voting -- Exhibits -- Use .............................. 9
The Association ................................................17
Declarant’s Right to Change ......................................22
Amendment ...................................................22
Changes, Repairs and Liens ......................................23
Insurance .....................................................25
Removal or Partition -- Subdivision .................................32
Notice to Mortgagees ............................................33
Remedies .....................................................32
Severability ................................................... 33
Interpretation ..................................................33
Miscellaneous .................................................33
1
CERTIFICATE OF NAME
The undersigned being the duly authorized agent of the Department of Revenue of
the State of Montana within the County of Gallatin, herewith executes the following
certificate relating to WESTLAND LOFTS CONDOMINIUM, situated as follows:
Lot 5 in Block 14 of Baxter Meadows Subdivision, Phase 6 to the City of
Bozeman, Gallatin County, Montana. [Plat J-466]
1.That the name WESTLAND LOFTS CONDOMINIUM, is not the same as,
similar to or pronounced the same as a word in the name of any other
property or subdivision within Gallatin County, except for the word
"Condominium", and
2.All taxes and assessments due and payable for the said WESTLAND LOFTS
CONDOMINIUM, have been paid to date.
Dated: _______________________
______________________________
Montana Department of Revenue
2
CERTIFICATE OF FLOOR PLANS
The undersigned, being a duly registered professional architect in the State of
Montana, herewith certifies the following:
That the floor plans for WESTLAND LOFTS CONDOMINIUM, situated on Lot 5 in
Block 14 of Baxter Meadows Subdivision, Phase 6 to the City of Bozeman, Gallatin County,
Montana [Plat J-466] as duly filed with the Declaration and Bylaws thereof, fully and
accurately depict the layout, location, unit designation and dimensions of WESTLAND
LOFTS CONDOMINIUM as of this date, and that such floor and site plans are an accurate
copy of the plans filed with and approved by the officials and officers of the City of
Bozeman, Montana having jurisdiction to issue building permits. Such floor and site plans
render hand representation of the actual buildings as built.
Dated: ___________________________
______________________________________
Erik Horn
Registered Professional Architect
License No. ____________________________
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DECLARATION FOR
WESTLAND LOFTS CONDOMINIUM
THIS DECLARATION is hereby made and entered into this ______ day of
________________, 2020, by DALLAS FINANCIAL, LLC, of PO Box 12009, Bozeman,
Montana 59719, hereinafter referred to as "Declarant," whereby the lands and property
hereinafter described are submitted to the provisions of Chapter 23, Title 70, MCA, also
known as the "Unit Ownership Act" as a condominium.
The property subject to this Declaration shall be known as WESTLAND LOFTS
CONDOMINIUM. The current address of WESTLAND LOFTS CONDOMINIUM is 2468,
2470, 2472 and 2474 Gallatin Green Boulevard, Bozeman, Montana 59718.
I.
DEFINITIONS
Unless the context expressly provides otherwise, the following definitions shall
pertain throughout this Declaration and in the interpretation thereof :
1.Aggregate Voting shall mean the entire number of votes or persons present
or available to vote in person or by proxy in a particular circumstance.
2.Association or Westland Lofts Condominium Owners Association, Inc. shall
mean all of the Unit Owners acting as a group and in accordance with duly
adopted Bylaws and this Declaration.
3.Board or Board of Directors shall mean the Board of Directors of the
Association as more particularly defined in the Bylaws.
4.Building shall mean a multiple Unit building or buildings comprising a part of
the property.
5.Bylaws shall mean the Bylaws promulgated by the Association under this
Declaration and the Unit Ownership Act.
6.Common Elements shall mean both General Common Elements and Limited
Common Elements.
a.General Common Elements include all those elements which are for
the use of all Unit Owners and guests of Unit Owners of Westland Lofts
Condominium. Specifically included are: grounds surrounding the Buildings,
the land on which the Buildings are located, paths, sidewalks and walkways,
any portion of the parking areas not specifically allocated to a particular Unit,
any irrigation system placed on the property for landscape maintenance, any
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portions of the Buildings designated on the floor plans as common to all
Units, electrical, gas, telephone, water and sewer lines and connections
serving all of the Units, landscaping, plants and other materials and
improvements separate from and outside of the Buildings containing the
Units, and other elements necessary for the safety, maintenance and
existence of WESTLAND LOFTS CONDOMINIUM in which each Unit Owner
shall have his or her designated percentage of interest, as set forth in
Paragraph IV below.
b.Limited Common Elements as used in this Declaration shall mean
those Common Elements which are reserved for the use of fewer than all of
the Owners and guests of Unit Owners of WESTLAND LOFTS
CONDOMINIUM, to the exclusion of other such Owners and guests. As to
any given Unit Owner or Owners, Limited Common Elements shall mean the
Common Elements which are located within or affixed to the Building
containing his or her Unit, and which are for the use of the Unit Owners and
guests of that Unit in which the elements are located or situated on the real
property known as WESTLAND LOFTS CONDOMINIUM.
Specifically included are: flues, chimneys, ducts, cables, conduits, public
utility lines, water, sewer, electrical, gas, cable television lines, hot and cold
water pipes (all such utility pipes and lines are Limited Common Elements
where they service only one or two Units; where they service all Units, they
shall be General Common Elements), stairways, balconies, entrances,
stoops, furnaces, patios, decks, driveways, rooftop terraces, boilers, hot
water tanks, and fixtures, or other portions of the Building servicing only a
particular Unit or less than all of the Units. The percentage of interest in the
Limited Common Elements for each respective Units shall be computed by
taking the square footage of each Unit that has an interest in the Limited
Common Element and dividing it by the total square footage of all the Units
having an interest in such Limited Common Element.
7.Common Expenses shall mean expenses of administration, maintenance,
repair or replacement of General Common Elements, expenses agreed upon
as common by the Association of all Unit Owners, and expenses declared
common by the Unit Ownership Act.
8.Declaration shall mean this document and all parts attached thereto or
incorporated by reference.
9.Limited Expenses shall mean the expenses attributable to the maintenance,
repair and replacement of Limited Common Elements, and are expenses
only for Owners of Units within the respective Building for which the
expenses are accrued.
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10.Manager shall mean the manager, the Board of Directors, management
corporation, or any other person or group of persons retained or appointed
by the Association of Unit Owners for the purpose of conducting the day-to-
day operations of WESTLAND LOFTS CONDOMINIUM.
11.Property shall mean the land, Buildings, improvements and structures
thereon, and all easements, rights and appurtenances belonging thereto,
which are herewith submitted to the provisions of the Unit Ownership Act.
12.Unit shall be the separate condominium Units of WESTLAND LOFTS
CONDOMINIUM and is a parcel of real property including and containing one
or more rooms occupying one or more floors or a part or parts thereof,
intended for any type of independent use, and with a direct exit to a public
street or highway or to a common area or areas leading to a public street or
highway.
13. Recording Officer shall mean the county officer charged with the duty of filing
and recording deeds, mortgages and all other instruments or documents
relating to this Declaration and the property which is its subject.
14.Unit Designation shall mean the combination of letters, numbers, or words
which identifies the designated Units.
15.Unit Owner or Owners shall mean the person or persons owning a fee simple
absolute, or one who is a co-owner in any real estate tenancy relationship
that is recognized under the laws of the State of Montana, in one or more
Units of WESTLAND LOFTS CONDOMINIUM.
II.
REAL ESTATE
Description
The property which is by this Declaration submitted and subject to the Montana Unit
Ownership Act is described as follows:
Lot 5 in Block 14 of Baxter Meadows Subdivision, Phase 6 to the City of
Bozeman, Gallatin County, Montana. [Plat J-466]
The property which is by this Declaration submitted and subject to the Montana Unit
Ownership Act is located within a growth policy area of a first-class municipality. Declarant
certifies that WESTLAND LOFTS CONDOMINIUM is excluded from review by the
Department of Environmental Quality pursuant to 76-4-125 and 76-3-203, MCA.
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76-4-125. Land divisions excluded from review (1) A subdivision
excluded from the provisions of chapter 3 must be submitted for review
according to the provisions of this part, except that the following divisions or
parcels, unless the exclusions are used to evade the provisions of this part,
are not subject to review:
(d) as certified pursuant to 76-4-127 (iii) divisions or parcels of land
that are exempt from the Montana Subdivision and Platting Act review
under 76-3-203.
76-3-203. Exemption for certain condominiums and townhouses.
Condominiums, townhomes, townhouses, or conversions, as those terms are
defined in 70-23-102, constructed on land subdivided in compliance with
parts 5 and 6 of this chapter or on lots within incorporated cities and towns
are exempt from the provisions of this chapter if:
(2) the condominium, townhome, or townhouse proposal is in
conformance with applicable local zoning regulations when local zoning
regulations are in effect.
The condominium Units in Phase 1 of WESTLAND LOFTS CONDOMINIUM shall
consist of twenty-three (23) separate Units: Eight (8) commercial Units designated as Unit
101, Unit 102, Unit 103, Unit 104, Unit 105, Unit 106, Unit 107 and Unit 108; and fifteen
(15) residential Units designated as Unit 109, Unit 110, Unit 111, Unit 112, Unit 113, Unit
114, Unit 115, Unit 116, Unit 117, Unit 118, Unit 119, Unit 120, Unit 121, Unit 122, and Unit
123. Units in Phase 2 are hereby declared but have not yet been built and shall consist of
sixteen (16) residential Units designated as Unit 124, Unit 125, Unit 126, Unit 127, Unit
128, Unit 129, Unit 130, Unit 131, Unit 132, Unit 133, Unit 134, Unit 135, Unit 136, Unit
137, Unit 138 and Unit 139. The provisions of this Declaration and the Bylaws shall be
construed to be covenants running with the land, and shall include every Unit and shall be
binding upon the Unit Owners, their heirs, successors, personal representatives and
assigns for as long as this WESTLAND LOFTS CONDOMINIUM Declaration and Bylaws
are in effect.
Condominium Units
Each Unit, together with the appurtenant undivided interest in the Common
Elements of WESTLAND LOFTS CONDOMINIUM, shall together comprise one
condominium unit, shall be inseparable, and may be conveyed, leased, rented, devised or
encumbered as a condominium unit. The Units comprising the condominium shall be
contained in four (4) Buildings.
Encroachments
If any portion of the General Common Elements or Limited Common Elements
encroaches upon a Unit or Units, a valid easement for the encroachment and for the
maintenance of the same, so long as it stands, shall and does exist. If any portion of any
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Unit encroaches upon the General Common Elements, or Limited Common Elements, or
upon an adjoining Unit or Units, a valid easement for the encroachment and for the
maintenance of the same, so long as it stands, shall and does exist. Such encroachments
and easements shall not be considered or determined to be encumbrances either on the
General Common Elements, the Limited Common Elements, or on the Units for the
purpose of marketability of title.
Parking Areas
Parking areas may be assigned to particularly Units as Limited Common Elements
as may be set forth on the Site Plan. So long as the Declarant owns at least fifty percent
(50%) of the unit ownership interest, the Declarant reserves the right to assign parking
spaces as Limited Common Elements to particular Units. Those spaces not designated as
Limited Common Elements will be General Common Elements for the use and benefit of
all Unit Owners. Thereafter, subsequent use and assignment of parking space shall be
pursuant to regulation of the Association provided that any assignment shall be made base
on a Unit’s ownership interest percentage or other equitable basis and shall be applied in
a non-discriminatory fashion.
Notwithstanding the foregoing paragraph, a minimum of eleven (11) parking spaces
shall be assigned as Limited Common Elements to the commercial Units and a minimum
of fifty-nine (59) parking spaces shall be assigned as Limited Common Elements to the
residential Units.
Unit Boundaries
Each Unit shall include the part of the Building containing the Unit that lies within the
boundaries of the Unit, which boundaries are as follows:
a.Upper and Lower Boundaries: the upper and lower boundaries of the Unit
shall be the following boundaries extended to an intersection with the perimetrical
boundaries:
1.Upper Boundary: the plane of the lowest surfaces of the ceiling joists
of the uppermost floor for all Units.
2.Lower Boundary: the plane of the lowest surface of the floor joists of
the lowest floor for all Units.
b.Perimetrical Boundaries: the perimetrical boundaries of the Unit shall be the
following boundaries extended to an intersection with the upper and lower
boundaries;
1.Exterior Building Walls: the plane of the innermost interior surface of
the exterior walls of the Buildings except that such boundary shall be
extended so as to include within it all windows and doors in the Unit.
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2.Interior Building Walls: the vertical planes of the centerline of the
walls bounding a Unit extended to an intersection with other perimetrical
boundaries. Where walls between Units are of varying thicknesses, the
plane of the centerline of a boundary wall shall be the median line drawn
between the two outermost boundaries of such wall.
III.
EASEMENT, COMMON ELEMENT--INTERIOR REMODELING
Common Element Easements
A nonexclusive right of ingress, egress and support through the Limited Common
Elements within the Building is appurtenant to each Unit, and all of the General Common
Elements are subject to such rights.
Easement for Utilities
Each Unit may have its air space penetrated by electrical wires and lines, gas lines,
mechanical equipment including air handling ducts, hot and cold water lines, waste water
lines and vents and other utility and mechanical lines, pipes or equipment. A non-exclusive
easement shall exist through, over and across each Unit for inspection, installation,
maintenance, replacement and repair of such utility lines and mechanical equipment for
the use of all of the Unit Owners or the Unit Owners being serviced by the air space being
penetrated by such lines and/or equipment to a minimum, ingress and egress for the
purpose of such inspection, installation, maintenance, replacement or repair of such
easement rights shall only be done under the direction and approval and with the authority
of the Association and/or the Manager unless an emergency exists in which event any
action may reasonably be taken which is justified under the circumstances to minimize
damage which would otherwise occur as a consequence of such emergency.
Easement for Support
Every portion of a Unit which contributes to the structural support of the Building in
which it is located shall be burdened with an easement of structural support for the benefit
of the Common Elements and the other Units located within such Building.
Interior Remodeling
Each Unit Owner shall have the exclusive right to paint, repaint, tile, carpet, brick or
otherwise maintain, refinish and decorate the inner surfaces of the walls, ceilings, floors,
windows and doors bounding his or her own Unit, and the interior thereof, so long as such
Owner does not affect the structural integrity of the Building in which his or her Unit is
located.
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IV.
OWNERSHIP AND VOTING - EXHIBITS - USE
Percentage of Interest
Each Unit Owner shall be entitled to the exclusive ownership, use and possession
(subject to easements as herein provided) of his or her Unit. Additionally, each Unit Owner
shall have a percentage of undivided interest in the General Common Elements of
WESTLAND LOFTS CONDOMINIUM. Such percentage represents his or her ownership
interest in the General Common Elements, his or her voting interest, and his or her liability
for Common Expenses. Notwithstanding the foregoing, until unbuilt Units have been fully
constructed and a Certificate of Floor Plan has been recorded for such Units, such unbuilt
Units shall have no voting interest or liability for Common Expenses. The percentage of
interest in the General Common Elements for the respective Owners shall be computed
by taking the square footage of each Unit at the date of filing this Declaration and dividing
it by the total square footage of all the Units having an interest in the General Common
Elements of WESTLAND LOFTS CONDOMINIUM. Such percentage of interest owned
by each of the Units in WESTLAND LOFTS CONDOMINIUM shall be according to the
percentages set forth below:
UNIT NO.SQUARE FOOTAGE*†PERCENTAGE OF INTEREST IN
GENERAL COMMON ELEMENTS*
Unit 101 341†0.6433%
Unit 102 351†0.6622%
Unit 103 392†0.7395%
Unit 104 351†0.6622%
Unit 105 392†0.7395%
Unit 106 351†0.6622%
Unit 107 392†0.7395%
Unit 108 341†0.6433%
Unit 109 1596†3.0109%
Unit 110 1654†3.1203%
Unit 111 1773†3.3448%
Unit 112 1656†3.1241%
Unit 113 1773†3.3448%
Unit 114 1656†3.1241%
Unit 115 1771†3.3410%
Unit 116 1596†3.0109%
Unit 117 887 †1.6733%
Unit 118 1270†2.3959%
Unit 119 1942 †3.6636%
Unit 120 1991†3.7560%
Unit 121 1924†3.6296%
Unit 122 1991†3.7560%
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Unit 123 1941†3.6617%
Unit 124*874*†1.6488%*
Unit 125*902*†1.7016%*
Unit 126*887*†1.6733%*
Unit 127*1815*†3.4240%*
Unit 128*1850*†3.4900%*
Unit 129*1783*†3.3636%*
Unit 130*1850*†3.4900%*
Unit 131*2361*†4.4540%*
Unit 132*1850*†3.4900%*
Unit 133*1815*†3.4240%*
Unit 134*780*†1.4715%*
Unit 135*1073*†2.0242%*
Unit 136*1759*†3.3184%*
Unit 137*1810*†3.4146%*
Unit 138*1810*†3.4146%*
Unit 139*1457*†2.7486%*
TOTAL 53008†100.00%*
* These Units have not yet been constructed and the size and configuration of such Units
are subject to change, and any change in the size of such Units may effect all Units’
percentage interest in the General Common Elements.
† The actual dimensions and boundaries of the Units are set forth above in Article II, Unit
Boundaries. The square footage measurements set forth in this Article IV may not be the
actual square footage measurements of the Units as said Units are defined in Article II,
Unit Boundaries. The square footage measurements set forth in this Article IV are used
only for the purposes of determining each Unit Owner’s percentage interest in the General
Common Elements and liability for Common Expenses. No representation or warranty of
any kind whatsoever is made that the square footage measurements set forth above are
the actual square footage measurements of any Unit.
Supplemental Declaration
At such time as the construction of Units in the other phases is completed,
Declarant shall record in the office of the Clerk and Recorder of Gallatin County, Montana,
for each additional completed phase or phases a Supplemental Declaration containing:
a.A revised site plan showing the location of the completed Building(s) and
Units constructed on the real property;
b.Floor plans showing the Units to be contained within the additional
Building(s)that have been constructed together with each numbers given to the specific
Units;
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c.A description of the Building(s) and the materials of which they are
constructed;
d.In the event the projected measurements of the unbuilt Units change, a
revised schedule of the percentage of undivided ownership in the General Common
Elements for all Units within the Condominium;
e.To be and remain in compliance with the provisions of Section 70-23-306,
MCA, at the time of the filing of such Supplemental Declaration, a revised site plan and
floor plans together with a certificate executed by an architect, land surveyor, or engineer
shall be prepared and recorded, being additions to the exhibits attached hereto, certifying
and showing that the said floor plans fully and accurately depict the layout of the Units in
the Building(s), as built, and that construction of each such additional new Building has
been completed; and
f.A description of any and all Limited Common Elements to the new Units if
there shall be any changes to the description contained in the existing Declaration or any
of the amendments thereto.
The Declarant may file the Supplemental Declaration without the consent of any
other Unit Owner. Declarant reserves the absolute and unfettered right to change the
configuration, size, layout and all other attributes of the unbuilt Units.
Prior to the recording of the Supplemental Declaration, Declarant shall retain sole
control over those portions of the General Common Elements containing the unbuilt Units.
After the recording of the final Supplemental Declaration, all Owners of condominium Units
in the Property shall have a nonexclusive right and license subject to the provisions herein,
to use and enjoy all of the General Common Elements of the Property.
Each Unit Owner acknowledges and recognizes that until construction of all unbuilt
Units is complete, there may be certain inconveniences, and each Unit Owner, upon
acceptance of a deed for the Unit, waives all claims with respect thereto. Until the
construction and sale of all Units is completed, Declarant shall have an easement across
all General Common Elements of the Property for construction, sales and marketing
purposes. During construction of the additional Units, the Declarant shall have the right to
store construction materials on any portion of the General Common Elements provided that
general ingress and egress to any built Unit is not blocked. Each Unit Owner agrees not
to enter into any area of construction on the Property and if any Unit Owner or Unit
Owner’s family, guests, employees, contractors, agents or invitees enter onto any area of
construction, they do so at their own risk, and neither Declarant, nor Declarant’s
contractors, agents or employees shall be liable for any damage, loss or injury to such
persons. Substantial construction-related activities relating to the development of the
remaining Units on the Property may cause considerable noise, dust and other
inconveniences to the Unit Owners purchasing Units in the Condominium.
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Until the unbuilt Units are actually constructed and corresponding amendments to
this Declaration containing the respective certificates of floor plans are recorded, said
unbuilt Units shall not be assessed for any portion of the Common Expenses nor shall such
unbuilt Units have any voting interest and only the built Units for which a certificate of floor
plan has been filed shall be assessed and have a voting interest based upon a percentage
interest calculated by taking the square footage of each Unit as built and dividing it by the
total square footage of all the built Units.
Declarant may sign and record a Supplemental Declaration pursuant to the terms
set forth herein without the consent of any other Unit Owner. Nevertheless, at the time the
Declarant, or its successors or assigns, elect to file such Supplemental Declarations to this
Declaration, all then existing condominium Unit Owners hereby covenant and agree that
they will, upon request, join in the execution of such amendment papers agreeing,
consenting and joining in such Supplemental Declaration, and further agreeing to reduce
their percentage of ownership interest in the General Common Elements. The within
agreement shall be a covenant running with the land, and shall be binding upon the
Owners of the then existing Units, who upon acquiring title to such Unit, by this covenant
agree and consent to the filing of such Supplemental Declaration and join in the same, and
by this covenant agree and consent to the appointment of either of the Declarant as its
attorney-in-fact, coupled with an interest, so that the Declarant may in its discretion simply
file the Declaration on its own initiative, having been herein given the power and authority
to make such amendment for and on behalf of all subsequent condominium Owners in
WESTLAND LOFTS CONDOMINIUM.
After expansion, reallocation of Unit Owners’ percentage of undivided interest in the
General Common Elements shall be calculated by taking the square footage of each Unit
at the date of filing a Supplemental Declaration and dividing it by the total square footage
of all the Units having an interest in the General Common Elements of the Condominium.
Floor Plans and Exhibits
WESTLAND LOFTS CONDOMINIUM will consist of four (4) Buildings and the real
property described in Paragraph II above which contain a total of thirty-nine (39) separate
WESTLAND LOFTS CONDOMINIUM Units as shown on the site plan and floor plans.
For identification and descriptive purposes the following Exhibits are attached and
by reference hereto incorporated into and made a part of this Declaration:
Exhibit A: showing the site plan of WESTLAND LOFTS CONDOMINIUM and
the location of the Buildings containing WESTLAND LOFTS CONDOMINIUM
Units on the Property.
Exhibit B: showing the first floor plans of WESTLAND LOFTS
CONDOMINIUM and the square footage of each and any designated Limited
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Common Elements, as well as the garages that have been assigned to
particular Units as Limited Common Elements.
Exhibit C: showing the second floor plans of WESTLAND LOFTS
CONDOMINIUM and any designated Limited Common Elements and the
square footage for such Unit.
Exhibit D: showing the third floor plans of WESTLAND LOFTS
CONDOMINIUM and the square footage for such Unit.
Storm Water Maintenance Plan
Attached hereto as Exhibit “E” is the Stormwater Maintenance Plan that is binding
upon the Condominium. The Association shall follow and adhere to such plan. The
Association shall maintain all detention ponds, if any.
Construction Materials
The principal materials of construction of the Buildings are concrete for the
foundations, footings, and slabs, wood and wood products for the framing, structural and
finish work, sheet rock, composite board, wood products, and plywood for the interior,
carpet, wood, wood products, or tile for the floors, metal, fiber cement and wood-product
siding for exterior wall surfaces, and PVC finish for the roof of the Buildings.
Use
The use of the Units in WESTLAND LOFTS CONDOMINIUM shall be for residential
and commercial purposes, as limited herein.
Units 101 through 108 shall be used for commercial purposes only including (but not
necessarily limited to) retail use and/or office use.
Units 109 through 139 shall be used for residential purposes only.
Unit Owners and prospective purchasers of Units are advised to carefully consult
all applicable zoning and use regulations of the City of Bozeman.
Except as limited herein, the use of the Common Elements shall be for the
enjoyment of the Unit Owners, their guests, tenants, lessees, employees and business
invitees. The Units and Common Elements shall be limited as follows:
a.There shall be no obstruction of the Common Elements, nor shall anything
be stored in or on the Common Elements without the prior written consent of the
Association. Each Owner shall be obligated to maintain and keep in good order and
repair the interior of his own Unit.
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b.Nothing shall be done or kept in any Unit or in the Common Elements which
will increase the rate of insurance on the building or contents thereof, without the
prior written consent of the Association. No Unit Owner shall permit anything to be
done or kept in his Unit or in the Common Elements which will result in the
cancellation of insurance on the building, or contents thereof, or which would be in
violation of any law. No waste will be permitted on the Common Elements.
c.Except for appropriate signs, as discussed under Miscellaneous below, Unit
Owners shall not cause or permit anything to be hung or displayed on the outside
of windows or placed on the outside walls of a building, and no awning, canopy,
radio or television antenna shall be affixed to or placed upon the exterior walls or
roof of any part thereof, without the prior written consent of the Association.
d.No nuisances shall be allowed upon the Property nor shall any use or
practice be allowed which is a source of annoyance to Unit Owners or which
interferes with the peaceful possession and proper use of the Property by its Unit
Owners, their guests, tenants, lessees, employees and invitees. No offensive or
unlawful use shall be made of the Property nor any part thereof, and all valid laws,
covenants and restrictions of record, zoning ordinances and regulations of all
governmental bodies having jurisdiction thereof shall be observed. Nuisances
include, but are not limited to, excessive or offensive noises and odors.
e.Nothing shall be done in any Unit or in, on or to the Common Elements which
will impair the structural integrity of the Buildings or which would structurally change
the Buildings, except as is otherwise provided herein.
f.No animals of any kind shall be commercially raised or bred in any Unit.
Domesticated pets belonging to the tenants or Owners of the Units shall be
permitted under the following conditions: (1) the Unit Owner shall be solely
responsible for any damage or claim resulting from such animal's presence in the
Unit and/or the Condominium and shall indemnify, defend and hold the Association
and all other Unit Owners, tenants, occupants, licensees and invitees harmless from
such damage or claim; (2) all pets must be well-behaved and shall not unreasonably
disturb any other Unit Owner or their tenants, guests or invitees; (3) no more than
two dogs may be present in any residential Unit at any time; and (4) Unit Owners
and their tenants shall be responsible for the immediate clean-up of any pet waste
and the repair of any damage caused by pets to any of the General Common
Elements or Limited Common Elements. Any pet which bites another animal or a
human upon the premises shall be immediately and permanently removed unless
it can be shown by clear and convincing evidence, as determined by the Board, that
the animal was unreasonably provoked into such action. Failure to timely remove
the pet(s) can result in a fine not to exceed $50.00 per day for each day the pet
remains on the Property or in the Unit, which fine shall become part of the
assessments for that Unit. The Board shall be permitted to adopt further rules and
regulations regulating the presence of animals in the Condominium provided such
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rules are consistent with this Declaration. Failure of a Unit Owner or tenant to
adhere to pet regulations and requirements shall be grounds for the Association and
other Unit Owners to maintain a nuisance action to remove the offending pet(s). The
Association shall have the authority to ban certain breeds of pets or individual pets
from the Condominium, provided that such actions are based upon objective criteria
related to aggressive tendencies of the breed or individual pet. In the event that an
Owner leases his or her office or retail Unit to a person who has a pet, the Owner
of the Unit shall be responsible for the enforcement of the pet restrictions and rules,
and any fines imposed shall be a charge against the Unit, for which the Association
may obtain satisfaction in the same manner as if the Unit Owner failed to pay an
assessment imposed against the Unit. The Association shall have the right to file
a lien against the Unit and shall have the right to foreclose said lien in the same
manner as provided herein.
g.Nothing shall be altered or constructed in or removed from the Common
Elements, and no easements, liens or encumbrances placed on the Common
Elements, except upon the written consent of sixty percent (60%) of the aggregate
ownership interest of the Unit Owners affected by such action. The foregoing
restriction does not apply to the Declarant.
h.No immoral, improper, or offensive use shall be made of the Property nor any
part thereof, including, but not limited to, the sale, rental, or use of any type of
pornographic or obscene products. No condominium unit shall be used for the
growing or sale of marijuana (medical or otherwise) or for the sale of marijuana or
tobacco smoking devices.
i.The condominium property shall not be used for the repair of automobiles,
trucks, motorcycles, motorhomes, recreational vehicles, boats, or other vehicles.
This prohibition includes the sale and on-site installation of parts, wheel and brake
shops, body and fender shops, and similar repair and service activities. No junk or
unlicensed vehicles shall be stored on the condominium property. A junk vehicle
is one which cannot be driven away under its own power.
j.Campers, trailers, boats and other recreational vehicles may only be brought
onto the Property or onto any street bordering the Property for loading and
unloading for immediate use. No inoperable vehicles, and no campers, boats,
recreational vehicles, or trailers, shall be left parked in the condominium parking
areas or on driveways or garage parking pads or on any street bordering the
condominium Property for more than 24 hours at one time. Repeated parking of
such vehicles or trailers is also prohibited. No one may reside in any recreational
vehicles, trailers, or motor homes upon the Property. Violators of this paragraph are
subject to towing and fines levied by the Board in the Board's discretion.
Exclusive Ownership
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Each Owner or Owners shall be entitled to exclusive ownership and possession of
their Unit (subject to the easements herein provided). Such Owners may use the General
Common Elements and Limited Common Elements in accordance with the purposes for
which they are intended and as may be limited or restricted by this Declaration and as they
may otherwise agree between themselves, so long as they do not hinder or encroach upon
the lawful rights of other Unit Owners. The right of a Unit Owner to sell, transfer, or
otherwise convey his or her Unit in the Condominium shall not be restricted by a right of
first refusal or similar restriction in the Declaration and Bylaws (or any amendment thereto).
Until all Units have been sold to third-party purchasers, the Declarant may place such signs
and marketing materials upon the Buildings and/or the General Common Elements as the
Declarant deems advisable provided that such signs and other materials comply with laws
of the City of Bozeman.
V.
THE ASSOCIATION
Membership
Any Owner of a Unit in WESTLAND LOFTS CONDOMINIUM shall automatically,
upon becoming the Owner of said Unit, be a member of the WESTLAND LOFTS
CONDOMINIUM OWNERS ASSOCIATION, INC., a Montana nonprofit corporation, herein
referred to as the Association, and shall remain a member of said Association until such
time as his or her membership in said Association shall automatically cease. The
membership shall be limited to Unit Owners as defined in this Declaration.
Function
It shall be the function of the Association to:
a.Adopt Bylaws for the governance of the Association.
b.Make provisions for the general management and/or repairs and
maintenance of WESTLAND LOFTS CONDOMINIUM.
c.Levy fines and assessments as provided for in the Declaration, Bylaws and
Unit Ownership Act.
d.Adopt and implement a policy for the affairs of the Association.
e.Enter into contracts or hire personnel for the management of the affairs of
the Association and the maintenance and repair of the common areas.
f.Be responsible for the perpetual maintenance of the landscaping, common
open space, parking lots, and driving lanes.
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Voting
On all matters, unless excluded by this Declaration, to be decided by the Unit
Owners, each Unit Owner shall have a vote equal to his or her percentage of interest in the
General Common Elements. Multiple owners of a single condominium Unit shall
collectively have such voting interest. In the event that Unit Owners of the same Unit
cannot agree as to how to vote that Unit’s interest, said Unit’s vote shall be suspended for
that particular matter. An owner of a condominium Unit, upon becoming an owner, shall
be a member of the Association and remain a member for the period of his or her Unit
ownership. Except as otherwise provided in the Unit Ownership Act, this Declaration or the
Bylaws, a majority of the Unit ownership percentage present at any meeting or by proxy
shall be sufficient to act on matters brought before the Unit Owners. Meetings of the Unit
Owners shall only be conducted when a quorum is present, as defined in the Association
Bylaws.
Failure to Comply
Each Owner shall comply strictly with the provisions of this Declaration, the Bylaws
of the Association, and the rules, regulations, decisions and resolutions of the Association
adopted pursuant thereto as the same may be lawfully amended from time to time. Failure
to comply with any of the same shall be grounds for an action to recover sums due, for
damages or injunctive relief or both, and for reimbursement of all costs, including attorney
fees incurred in connection therewith, which action shall be maintainable by the Manager
in the name of the Association, on behalf of the Owner, or in the proper case, by an
aggrieved Owner. Each Unit Owner shall also comply with any applicable subdivision
covenants, rules and regulations for the subdivision in which the Condominium is located.
Fines
The Association, acting through the Board or the Manager, shall have the authority
to levy fines against Units for any violation of the covenants set forth herein or for any
violation of the rules and regulations duly adopted by the Board. Violations caused by a
tenant shall be assessed against the occupied Unit and shall be the responsibility of the
Unit Owner. For each violation, the Unit Owner may be fined according to the following fine
schedule:
First Offense: $25.00
Second Offense:$50.00
Third Offense and More:$100.00
Each separate occurrence of a violation, or each day that any Unit remains in
nonconformance, shall be considered a separate violation subject to fine. The Board may
adopt a separate written policy wherein it determines that a particular violation shall occur
less than daily. The fine schedule may be amended by the Board at any duly called
meeting provided it is thereafter approved by at least sixty percent (60%) of the aggregate
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Unit ownership interest at any regular or special meeting of the Association. All fines shall
be considered final and shall be considered an assessment and a lien against the Unit
unless the Unit Owner makes a written appeal to the Board within ten (10) business days
of receiving the fine and the Board subsequently overturns such fine. The Board shall have
thirty (30) days to meet and render its decision regarding the fine, which decision shall be
final. The Unit Owner contesting the fine may present evidence and call witnesses. All fines
may be collected by the Association in the same manner as an assessment as set forth
herein. All fines not paid within thirty (30) days shall accrue interest at the then maximum
current legal rate of interest per annum on the amount of the fine from the due date
thereof. The Board, in its sole discretion, may (but is not required to) issue a warning prior
to levying a fine. However, the Board's decision on whether or not to issue a warning in any
particular case shall not be binding upon any subsequent decision about whether or not
to issue a warning prior to issuing a fine.
Payment of Assessments
All assessments shall be due ten (10) days from the date of mailing such
assessment following the meeting at which time assessments are levied by the
Association, and may be payable in one annual payment, or in quarterly or monthly
installments, as determined by the Board. The amount of the Common Expenses
assessed against each Unit, and the amount of Limited Expenses assessed against each
Unit shall be the personal and individual debt of the Owner or Owners thereof. No Owner
may exempt himself or herself from liability for this contribution toward the Common
Expenses and the Limited Expenses by waiver of the use of enjoyment of any of the
General Common Elements or Limited Common Elements or by abandonment of his or her
Unit.
All assessments which are not paid within thirty (30) days from the date they are due
and payable become delinquent and are subject to interest and penalty charges. The
Association or Manager shall have the responsibility of taking prompt action to collect any
unpaid assessment which becomes delinquent. In the event of delinquency in the payment
of the assessment, the Unit Owner shall be obligated to pay interest at the then maximum
current legal rate of interest per annum on the amount of the assessment from the due
date thereof and any late payment charges assessed, together with all expenses, including
attorney fees incurred, as are provided in the Bylaws of the Association. Suit to recover
a money judgment for unpaid Common Expenses and Limited Expenses may be
maintainable without foreclosing or waiving the lien securing the same.
Levying Assessments - When Made - Purposes
The Association of Unit Owners shall levy assessments upon the Unit Owners in the
following manner and for the following reasons:
a.Assessments shall be made as a part of the regular, annual business
meeting of the Association as provided in the Bylaws of the Association, or
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assessments can be made for special purposes at any other regular or special
meeting thereof. The Board of Directors shall prepare an annual budget for income
and expenses for the condominium. The Board of Directors shall approve the
budget and the amount of assessments. In the event that the members of the Board
cannot agree upon a budget, the annual budget shall be increased by 10% over the
previous budget, until such time as a new budget can be agreed upon. In the event
that the budget is increased automatically, rather than through agreement of the
Board, the Association shall continue to make all payments required to maintain the
services acquired in the previous year, to the extent that funding is available, until
such time as the Board can agree upon a new budget and spending priorities.
Notice of the proposed assessment, amount thereof, and the purpose for which it
is made whether regular or special, including an annual budget for expenditures and
operation, shall be served on each Unit Owner affected by delivering a copy of the
same to the Unit Owner personally or by mailing a copy of the notice to the Unit
Owner at his or her address of record at least ten (10) days prior to the date for
such meeting.
b.Assessments shall be made for the repair, replacement, general
maintenance, management and administration of Common Elements, fees, costs
and expenses of the manager, insurance, taxes for common areas if any, and as
more particularly provided in the Unit Ownership Act (Section 70-23-101, et. seq.,
MCA), sidewalks, driveways, weed control, and any other matters that fall within the
Common Elements of the condominium. In addition, the Association shall be
responsible for all special improvement district (SIDs) applicable to the
condominium, including, but not limited to, lighting districts, street maintenance, tree
maintenance or any other properly created SID, and assessments shall be levied
for the same. Assessments shall be based upon and computed by using the
percentage of interest that each Unit Owner has in the General Common Elements.
c.Assessments shall also be made for the payment of Limited Expenses for
Limited Common Elements such that the Unit Owners are chargeable only for the
expenses relating to their respective Units or Buildings. Unit Owners shall share in
the payment for Limited Expenses for the repair, maintenance and replacement of
Limited Common Elements of their respective Units in accordance with the
percentage the Unit or Units have in the Limited Common Elements for which the
assessment is being made. If only one Unit is associated with the Limited Common
Elements involved, then the entire cost of such repair, maintenance or replacement
shall be borne by that Unit.
d.Assessments may also be made for any purpose contemplated by this
Declaration and for any purpose set out in the Montana Unit Ownership Act.
e.Common expenses and profits, if any, of the condominium shall be
distributed among and charged to, the Unit Owners according to the percentage of
undivided interest of each in the Common Elements.
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f.In a voluntary conveyance of a Unit, the Grantee of the Unit shall be jointly
and severally liable with the Grantor for all unpaid assessments by the Association
against the latter for his or her share of the Common Expenses up to the time of the
grant or conveyance, without prejudice to the Grantee's right to recover from the
Grantor the amounts paid by the Grantee therefor. However, any such Grantee
shall be entitled to a statement from the Manager or Board of Directors of the
Association, as the case may be, setting forth the amount of said unpaid
assessments against the Grantor due the Association and such Grantee shall not
be liable for, nor shall the Unit conveyed be subject to a lien for, any unpaid
assessments made by the Association against the Grantor in excess of the amount
therein set forth.
g.Any lien of the Association for Common Expense charges and assessments
becoming payable on or after the date of recordation of the first mortgage or deed
of trust, shall be subordinate to the first mortgage or deed of trust on the Unit. Such
a lien for Common Expense charges and assessments shall not be affected by any
sale or transfer of a Unit, except that a sale or transfer of a Unit pursuant to a
foreclosure of a first mortgage or deed of trust shall extinguish a subordinate lien
for common expense charges and assessments which became payable prior to
such sale or transfer. Any such sale or transfer pursuant to a foreclosure shall not
relieve the purchaser or transferee of a Unit from liability for, nor the Unit so sold or
transferred from the lien of, any common expense charges thereafter becoming
due.
h.Prior to the initial sales of Units within the Condominium, an initial
assessment amount, including a capital contribution (reserves), may be established
for each Unit. Said assessment amount shall be paid to the Association at the close
of each Unit or upon the transfer of the deed for each Unit. The Association may
establish a reserve account for repair and replacement of Common Elements as
needed to keep such in good condition and repair. Any reserve account established
under this section shall be funded by separate reserve assessments against the
Units in such amount as the Board may approve as a part of the annual Association
budget. Any reserve account shall be established in the name of the Association.
The Association shall be responsible for administering the account. Assessments
paid into the reserve account are the property of the Association and are not
refundable to sellers or Unit Owners.
VI.
DECLARANT’S RIGHT TO CHANGE
The Declarant reserves the right to change the interior design and arrangement of
all Units, and alter the boundaries between Units, so long as the Declarant owns the Unit
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so altered. No such change shall increase the number of Units or alter the boundary of the
General Common Elements without an amendment of this Declaration.
Until ninety percent (90%) of the Units have been sold, Declarant reserves the right
to establish easements, reservations, exceptions and exclusions consistent with the
condominium ownership project.
Notwithstanding any other provisions expressly or impliedly to the contrary contained
in this Declaration, the Articles of Incorporation or Bylaws of the Association, Declarant
reserves the right to exercise the rights, duties and functions of the Board of Directors of
the Association until the earlier of the following:
A.120 days after the date by which seventy-five percent (75%) of the
Units have been conveyed to Unit purchasers; or
B.seven (7) years have elapsed since the Declaration and Bylaws were
recorded.
During the period of development and sale of the remaining condominium Units, the
monthly assessment for Common Expenses for Units owned by the Declarant shall be
based upon the estimate of the actual cost thereof, excluding therefrom any estimated
amount for contingencies, reserves or sinking funds, and Declarant shall pay its pro rata
share thereof only for those condominium Units which have been completed. During the
period when fewer than all of the Units have been erected, the Common Expenses shall
be allocated among the Owners of such existing Units.
VII.
AMENDMENT
Amendment of this Declaration shall be made in the following manner:
This Declaration may be amended at any regular or special meeting of the
Association of Unit Owners provided such amendment receives the favorable vote of at
least seventy-five percent (75%) of the aggregate Unit ownership interest. If so approved,
it shall be the responsibility of the Association to file the amendment with the Clerk and
Recorder's Office of Gallatin County, Montana.
An amendment may be adopted at any time without a meeting if it is approved in
writing by the notarized signatures of one hundred percent (100%) of the Unit Owners.
Notwithstanding the procedure set forth above, the Declarant may amend this
Declaration, or any other project document, prior to any sale or lease of a Unit or interest
thereof. Notwithstanding the procedures set forth above, Declarant reserves the right at
any time, on behalf of itself and on behalf of the Association, to amend this Declaration and
the Bylaws without approval of any Unit Owner for the purpose of correcting survey or other
errors and for any other purpose unless the amendment would materially alter or change
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the rights of a Unit Owner or mortgagee, in which event consent shall be required as
provided in this article. Any right granted or reserved to Declarant may not be changed by
an amendment unless consented to, in writing, by the Declarant. Declarant reserves the
right to assign any and all of its rights reserved or granted herein.
In addition to the amendment requirements set forth above, the approval of eligible
holders of first mortgages on Units to which at least fifty-one percent (51%) of the votes of
Units subject to a mortgage appertain, shall be required to materially amend any provisions
of the Declaration and Bylaws or to add any material provisions thereto, which establish,
provide for, govern or regulate any of the following:
(A) Voting;
(B) Assessments, assessment liens or subordination of such liens;
(C) Reserves for maintenance, repair and replacement of the Common
Elements;
(D) Insurance or fidelity bonds;
(E) Rights to use of the Common Elements;
(F) Responsibility for maintenance and repair of the several portions of the
Condominium;
(G) Expansion or contraction of the Condominium regime or the addition,
annexation or withdrawal of property to or from the regime;
(H) Boundaries of any Unit;
(I) The interests in the General Common Elements or Limited Common
Elements;
(J) Convertibility of Units into Common Elements or of Common Elements
into units;
(K) Leasing of Units;
(L) Imposition of any right of first refusal or similar restriction on the right of
a Unit Owner to sell, transfer, or otherwise convey his or her Unit in the
Condominium;
(M) Establishment of self-management by the Condominium association
where professional management has been required by any of the following:
Department of Housing and Urban Development, the federal Veterans
Administration, the Federal National Mortgage Association, or the Federal Home
Loan Mortgage Corporation.
The approval of eligible holders of first mortgages on units to which at least fifty-one
percent (51%) of the votes of Units subject to a mortgage appertain, shall be required to
amend any provisions included in the Declaration and Bylaws of the Condominium which
are for the express benefit of holders or insurers of first mortgages on Units in the
Condominium. Any proposed amendment to the Declaration and Bylaws shall be deemed
approved by a mortgagee, mortgage insurer, or government agency or corporation if said
entity fails to object or consent to a written proposal for an amendment within sixty (60)
days after receipt of notice of the written proposal by such entity, provided such notice was
delivered by certified or registered mail, with a "return receipt" requested.
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VIII.
CHANGES, REPAIRS AND LIENS
Alterations by Unit Owners Association
The interior plan of a Unit may be changed by the Owner. The boundaries between
Units may be changed only by the Owners of the Units affected. Except as specifically
allowed in this Declaration, no Units may be subdivided. Subject to the expansion
provisions above, no change in the boundaries of Units shall encroach upon the
boundaries of the Common Elements.
Boundary walls must be equal in quality of design and construction to the existing
boundary walls. A change in the boundaries between Units shall be set forth in an
amendment to this Declaration. No load bearing walls shall be altered or removed without
the written permission of the Association. In addition to compliance with the provisions of
Paragraph VII above, such amendment must further set forth and contain plans for the
Units concerned showing the Units after the change in boundaries, which plans shall be
drawn by an architect, surveyor or engineer licensed to practice in Montana, and attached
to the amendment as exhibits, together with the certificate of architect, surveyor or
engineer required by the Unit Ownership Act. Such an amendment shall be signed and
acknowledged by the Owners of the Units concerned, as well as those Owners with an
interest in any Common Element affected. The amendment shall also be approved by the
Board of Directors of the Association, and signed and acknowledged by all lienors and
mortgagees of the Units concerned.
Maintenance by Unit Owners
Each Owner shall maintain and keep in repair the interior of his or her own Unit,
including the fixtures thereof. All fixtures and equipment installed in the Unit, commencing
at a point where the utilities enter the Unit, shall be maintained and kept in repair by the
Owner thereof. An Owner shall do no act nor any work that will impair the structural
soundness or integrity of the Buildings or impair any easement.
Each Owner shall also keep any balcony, patio, entrance or deck area appurtenant
to his or her Unit in a clean and sanitary condition. The right of the each Owner to repair,
alter, and remodel is coupled with the obligation to replace any finishing or other materials
removed with similar type or kinds of materials. All glass replacement shall be with similar
quality, shade and design. No act or alteration, repairing or remodeling by any Unit Owner
shall impair in any way the integrity of the adjoining Units or the integrity of Limited
Common Elements or General Common Elements.
Exterior Alterations
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No Owner may change, alter or remodel the exterior of his or her Unit without the
prior written approval of the Association.
Liens for Alterations
Labor performed and materials furnished and incorporated into a Unit with the
consent of or at the request of the Unit Owner, his or her agent, his or her contractor or
subcontractor shall be the basis for the filing of a lien against the Unit of the Unit Owner
consenting to or requesting the same. Each Unit Owner shall indemnify and hold harmless
each of the other Owners from and against all liability arising from the claim of any lien
against the Unit or any other Owner or against the general or Limited Common Elements
for construction performed or for labor, materials, services or other products incorporated
in the Owner's Unit at such Owner's request.
Liens and Foreclosure
All sums assessed but unpaid for the share of Common Expenses and Limited
Expenses chargeable to any Unit shall constitute a lien on such Unit superior to all other
liens and encumbrances, except only for tax and special assessment liens on the Unit in
favor of any assessing authority, and all sums unpaid on a first mortgage, a first deed of
trust, or contract for deed, of record. To evidence such lien, the Association shall prepare
a written notice of lien assessment setting forth the amount of such unpaid indebtedness,
the amount of accrued interest and late charges thereon, the name of the Unit Owner, and
a description of the Unit. Such notice shall be signed and verified by one of the officers of
the Association or by the Manager, or his or her authorized agent, and shall be recorded
in the office of the Clerk and Recorder of Gallatin County, Montana. Such lien shall attach
from the date of recording such notice. Such lien may be enforced by the foreclosure of
the defaulting Owner's Unit by the Association as provided in the Unit Ownership Act in like
manner as foreclosure of a mortgage on real property. In any foreclosure, the Unit Owner
shall be required to pay a reasonable rental for the Unit, if so provided in the Bylaws, and
the plaintiff in such foreclosure action shall be entitled to the appointment of a receiver to
collect the same. Suit to recover a money judgment for unpaid Common Expenses and
Limited Expenses shall be maintainable without foreclosure or waiving the lien securing the
same. In any such proceeding the Owner shall be required to pay the costs, expenses and
attorney's fees incurred in filing a lien, and in the event of foreclosure proceedings,
additional costs, expenses and attorney's fees incurred.
Bidding at Foreclosure
The Association shall have the power to bid on the Unit at a foreclosure or other
legal sale, and to acquire and hold, lease, mortgage and vote the votes appurtenant to,
convey or otherwise deal with the same. Any lienholder holding a lien on the Unit may pay,
but shall not be required to pay, any unpaid General Common Expenses or Limited
Expenses payable with respect to any such Unit, and upon such payment such lienholder
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shall have a lien on said Unit for the amounts paid of the same priority as the lien of his or
her encumbrance without the necessity of having to file a notice or claim of such lien.
IX.
INSURANCE
Purchase
All insurance policies upon WESTLAND LOFTS CONDOMINIUM property shall be
purchased by the Association and shall be issued by an insurance company authorized to
do business in Montana.
a.Named Insured: The named insured shall be the Association individually and
as agent for the Unit Owners without naming them. Such policies shall provide that
payments for losses thereunder by the insurer shall be paid to the insurance
Trustee hereinafter designated, and all policies and endorsements thereon shall be
deposited with the insurance Trustee. Unit Owners may obtain insurance coverage,
at their own expense, upon their own personal property and for their personal
liability and living expense.
b.Copies to Mortgagees: One copy of each insurance policy and of all
endorsements thereon shall be furnished by the Association to each mortgagee of
a Unit Owner on request.
Coverage
a.Casualty: All Buildings and improvements upon the land shall be insured in
an amount equal to the full insurable replacement value, and all personal property
included in the Common Elements shall be fully insured, with all such insurance to
be based on current replacement value, as determined annually by the Board of
Directors, but subject to such deductible clauses as are required in order to obtain
coverage at reasonable costs. The Association shall obtain, maintain, and pay the
premiums upon, as a Common Expense, a "master" or "blanket" type policy of
property insurance covering all of the Common Elements and Limited Common
Elements, (except land, foundation, excavation and other items normally excluded
from coverage) including fixtures, to the extent they are part of the Common
Elements of the Condominium, building service equipment and supplies, and other
common personal property belonging to the Association. All references herein to a
"master" or "blanket" type policy of property insurance, are intended to denote
single entity condominium insurance coverage. In addition, any fixtures, equipment
or other property within the units which are to be financed by a mortgage to be
purchased by FNMA or FHLMC (regardless of whether or not such property is a part
of the common elements) must be covered in such "blanket" or "master" policy.
Such insurance policy must be consistent with state and local insurance laws and
26
at least equal to such coverage as is commonly required by prudent institutional
mortgage investors in Gallatin County, Montana. The policy shall be in an amount
equal to 100% of current replacement cost of the Condominium exclusive of land,
foundation, excavation and other items normally excluded from coverage.
Certificates of insurance shall be issued to each Unit Owner and mortgagee upon
request. Such policies shall contain the standard mortgage clause, or equivalent
endorsement (without contribution), which is commonly accepted by private
institutional mortgage investors in the area in which the property is located and
which appropriately names FNMA and FHLMC if such corporations are holders of
first mortgages on Units within the Condominium. Such policies must also provide
that they may not be cancelled or substantially modified, without at least 10 days'
prior written notice to the Association and to each holder of a first mortgage listed
as a scheduled holder of a first mortgage in the policies. Policies are unacceptable
where: (i) under the terms of the insurance carrier's charter, by-laws, or policy,
contributions or assessments may be made against borrowers, FNMA, FHLMC, or
the designee of FNMA or FHLMC; or (ii) by the terms of the carrier's charter,
by-laws or policy, loss payments are contingent upon action by the carrier's board
of directors, policyholders, or members, or (iii) the policy includes any limiting
clauses (other than insurance conditions) which could prevent FNMA, FHLMC, or
the borrowers from collecting insurance proceeds. The policies must also provide
for the following: recognition of any, Insurance Trust Agreement; a waiver of the
right of subrogation against Unit Owners individually; that the insurance is not
prejudiced by any act or neglect of individual Unit Owners which is not in the control
of such Owners collectively; and that the policy is primary in the event the Unit
Owner has other insurance covering the same loss. The requirements stated in this
paragraph are generally provided by the insurer in the form of a "Special
Condominium Endorsement" or its equivalent. The insurance policy shall afford, as
a minimum, protection against the following:
(1) loss or damage by fire and other perils normally covered by the standard
extended coverage endorsement;
(2) in the event the condominium contains a steam boiler, loss or damage
resulting from steam boiler equipment accidents in an amount not less than
$50,000 per accident per location (or such greater amount as deemed
prudent based on the nature of the Property);
(3) all other perils which are customarily covered with respect to
condominiums similar in construction, location and use, including all perils
normally covered by the standard "all-risk" endorsement, where such is
available.
If available and commonly required by prudent institutional mortgage investors in
Gallatin County, Montana, such policies shall also include an "Agreed Amount
Endorsement" and an "Inflation Guard Endorsement".
Insurance coverage shall afford protection against:
27
(1)Loss or damage by fire and other hazards covered by a standard
extended coverage endorsement; and
(2)Such other risks as from time to time shall be customarily covered with
respect to Buildings similar in construction, location and use as the Building
on the land, including, but not limited to, vandalism and malicious mischief.
(3)Errors or Omissions Insurance for the Directors, Officers and
Managers, if the Association so desires, in amounts to be determined by the
Board.
The policies shall state whether air handling or service equipment,
interior fixtures and carpets are included within the coverage in order that
Unit Owners may insure themselves if the items are not insured by the
Association.
b.Public Liability: The Association shall maintain comprehensive general
liability insurance coverage covering all of the Common Elements, commercial
space owned and leased by the Association, and public ways of the condominium
project. Coverage limits shall be in amounts generally required by private
institutional mortgage investors for projects similar in construction, location, and
use. However, such coverage shall be for at least $1,000,000 for bodily injury,
including deaths of persons and property damage arising out of a single occurrence.
Coverage under this policy shall include, without limitation, legal liability of the
insureds for property damage, bodily injuries and deaths of persons in connection
with the operation, maintenance or use of the Common Elements, and legal liability
arising out of lawsuits related to employment contracts of the Association. Such
policies must provide that they may not be cancelled or substantially modified, by
any party, without at least 10 days' prior written notice to the Association and to
each holder of a first mortgage on any Unit in the Condominium which in listed as
a scheduled holder of a first mortgage in the insurance policy.
c.Other Insurance: Such other insurance as the Board of Directors of the
Association shall determine from time to time to be desirable and as may be
required by Federal and State laws.
d.For all insurance policies, the Association shall only use generally acceptable
insurance carriers
Fidelity Bonds.
In the event that the Condominium is expanded to include twenty (20) or more Units
and in the event the regulations of any holder, insurer or guarantor of a first mortgage so
require, blanket fidelity bonds shall be maintained by the Association for all officers,
28
directors, and employees of the Association and all other persons handling, or responsible
for, funds of or administered by the Association. If the Manager has the responsibility for
handling or administering funds of the Association, the Manager shall be required to
maintain fidelity bond coverage for its officers, employees and agents handling or
responsible for funds of, or administered on behalf of, the Association. Such fidelity bonds
shall name the Association as an obligee and shall not be less than the estimated
maximum of funds, including reserve funds, in the custody of the Association or the
Manager, as the case may be, at any given time during the term of each bond. However,
in no event may the aggregate amount of such bonds be less than a sum equal to 3
months aggregate assessments on all Units plus reserve funds. The bonds shall contain
waivers by the issuers of the bonds of all defenses based upon the exclusion of persons
serving without compensation from the definition of "employees", or similar terms or
expressions. The premiums on all bonds required herein, except those maintained by the
Manager, shall be paid by the Association as a Common Expense. The bonds shall provide
that they may not be cancelled or substantially modified (including cancellation for
non-payment of premium) without at least 10 days' prior written notice to the Association
or Insurance Trustee. Such bonds shall provide that the FNMA Servicer, on behalf of
FNMA, also, receive such notice of cancellation or modification.
Premiums
Premiums for insurance policies purchased by the Association shall be paid by the
Association as a Common Expense, except that the amount of increase in the premium
occasioned by use, misuse, occupancy or abandonment of a Unit or its appurtenances or
of the Common Elements by a Unit Owner shall be assessed against the Owner. Not less
than ten (10) days prior to the date when a premium is due, evidence of such payment
shall be furnished by the Association to each mortgagee listed in the roster of mortgagees.
Insurance Trustee
All insurance policies purchased by the Association shall be for the benefit of the
Association and the Unit Owners and their mortgagees as their interests may appear, and
shall provide that all proceeds covering property losses shall be paid to such bank in
Montana with trust powers as may be designated as insurance trustee by the Board of
Directors of the Association, which trustee is herein referred to as the insurance trustee.
The insurance trustee shall not be liable for payment of premiums, nor for the renewal or
the sufficiency of policies, nor for the failure to collect any insurance proceeds. The duty
of the insurance trustee shall be to receive such proceeds as are paid and hold the same
in trust for the purposes elsewhere stated in this instrument and for the benefit of the Unit
Owners, and their mortgagees in the following shares, but which shares need not be set
forth on the records of the insurance trustee:
a.Unit Owners - An undivided share for each Unit Owner, such share being the
same as the undivided share in the Common Elements appurtenant to his or her
Unit.
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b.Mortgagees - In the event a mortgagee endorsement has been issued as to
a Unit, the share of the Unit Owner shall be held in trust for the mortgagee and the
Unit Owner as their interests my appear; provided, however, that no mortgagee
shall have any right to determine or participate in the determination as to whether
or not any damaged property shall be reconstructed or repaired, and no mortgagee
shall have any right to apply or have applied to the reduction of a mortgage debt any
insurance proceeds except distributions thereof made to the Unit Owner and
mortgagee pursuant to the provision of this Declaration.
Distribution of Proceeds
Proceeds of insurance policies received by the insurance trustee shall be distributed
to or for the benefit of the beneficial Owners in the following manner:
a.Miscellaneous: Expenses of administration, the insurance trustee, and
construction or remodeling supervision shall be considered as part of the cost of
construction, replacement or repair.
b.Reconstruction or Repair - If the damage for which the proceeds are paid is
to be repaired or reconstructed by the Association, the remaining proceeds shall be
paid to defray the cost thereof as elsewhere provided. Any proceeds remaining
after defraying such costs shall be distributed to the beneficial Owners, remittances
to Unit Owners and their mortgagees being payable jointly to them.
c.Failure to Reconstruct or Repair - If it is determined in the manner elsewhere
provided that the damage for which the proceeds are paid shall not be
reconstructed or repaired, the remaining proceeds shall be distributed to the
beneficial owners, remittances to Unit Owners and their mortgagees being payable
jointly to them.
d.Certificate - In making distribution to Unit Owners and their mortgagees, the
insurance trustee may rely upon a certificate from the Association made by its
representative or Manager as to the names of the Unit Owners and their respective
shares of the distribution.
Association as Agent
The Association is irrevocably appointed agent for each Unit Owner and for each
Owner of a mortgage or other lien upon a Unit and for each Owner of any other interest in
the condominium property to adjust all claims arising under insurance policies purchased
by the Association and to execute and deliver releases upon the payment of claims.
Benefit to Mortgagees
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Certain provisions in this paragraph entitled "Insurance" are for the benefit of
mortgagees or trust indenture beneficiaries of condominium parcels, and all such
provisions are covenants for the benefit of any mortgagee of a Unit and may be enforced
by such mortgagee or beneficiary.
Reconstruction
A. Repair After Casualty
If any part of the condominium property shall be damaged by casualty, whether or
not it shall be reconstructed or repaired shall be determined in the following manner:
1.Lesser Damage - If a Unit or Units are found by the Board of Directors of the
Association to be tenantable after the casualty, the damaged property shall be
repaired.
2.Greater Damage - If a Unit or Units are found by the Board of Directors to be
not tenantable after the casualty, the damaged property shall be reconstructed or
rebuilt.
3.Certificate - The insurance trustee may rely upon a certificate of the
Association made by its president and secretary to determine whether or not the
damaged property is to be reconstructed or repaired.
B. Plans and Specifications
Any reconstruction or repair must be substantially in accordance with the plans for
specifications and the original improvements, or if not, then according to plans and
specifications approved by: (1) the Board of Directors; (2) more than seventy-five percent
(75%) of the aggregate unit ownership interest, including the Owners of all Units the plans
for which are to be altered; and (3) the eligible holders of first mortgages on Units to which
at least fifty-one percent (51%) of the votes of Units subject to mortgages held by such
eligible holders are allocated. No reallocation of interests in the General Common
Elements resulting from a partial condemnation or partial destruction of the condominium
project may be effected without the approval of the eligible holders of first mortgages on
units to which at least fifty-one percent (51%) of the votes of units subject to mortgages
held by such eligible holders are allocated. Any such reconstruction not in accordance with
the original plans and specifications must be set forth in an amendment to the Declaration,
which amendment shall be prepared and filed of record in accordance with the provisions
of such amended filing, more particularly set forth in Article VII and Article VIII, paragraph
1, hereinabove.
C. Responsibility
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The responsibility for reconstruction or repair after casualty shall be the same as for
maintenance and repair of the condominium property, and the Association shall work with
the insurance trustee to carry out the provisions of this Article.
D. Assessments
If the proceeds of insurance are not sufficient to defray the estimated costs of
reconstruction or repair for which the Association is responsible, or if at any time during
such reconstruction or repair, or upon completion of such reconstruction or repair, the
funds for the payment of the costs thereof are insufficient, assessments shall be made
against all Unit Owners in sufficient amounts to provide funds to the payment of such
costs. Such assessments shall be in proportion to the Owner's percentage of interest in
the General Common Elements.
E. Construction Funds
The funds for payment of costs of reconstruction or repair after casualty, which shall
consist of proceeds of insurance held by the insurance trustee and funds collected by the
Association from assessments against Unit Owners, shall be disbursed in the sound
discretion of the trustee and according to the contract of reconstruction or repair, which
contract must have the approval of the Board and the Unit Owners involved.
F. Surplus
It shall be presumed that the first monies disbursed in payment of costs of
reconstruction and repair shall be from the insurance proceeds. If there is a balance in a
construction fund after payment of all costs of the reconstruction and repair for which the
fund is established, such balance shall be paid to the Association for the use and benefit
of the Unit Owners.
Commercial Unit Owners’ Commercial General Liability Insurance
Each Unit that is being used for a commercial purpose shall, at its own cost and
expense, maintain a comprehensive general liability insurance policy on the occurrence
basis in the amount of not less than $1,000,000.00 in respect to bodily injury or death to
any one person, and not less than $2,000,000.00 in respect to bodily injury or death to any
number of persons in any occurrence or accident, with the Association named as an
additional insured and shall cover all risks incident to the use of the Unit and business in
connection therewith. The Association may increase the required policy limits under this
section by majority vote of the unit ownership interest. Said insurance shall cover general
liability for injuries to invitees and employees (portions not covered by worker's
compensation insurance) and damage to property. Insurance shall be purchased from a
company licensed to do business in the state of Montana (with an "A" rated or better
classification). The Unit Owner shall deliver to the Association certificates of insurance
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evidencing compliance with this insurance requirement upon written request from the
Board or Manager.
X.
REMOVAL OR PARTITION - SUBDIVISION
Consent to Removal
All of the Unit Owners may remove the Property from condominium ownership by
executing and recording an instrument to that effect if the holders of all liens affecting any
of the Units consent thereto or agree, in either case by instruments duly recorded, that their
liens be transferred to the undivided interest of the Unit Owner in the Property after
removal from condominium ownership.
Obsolescence, Damage and Destruction
If ninety percent (90%) of the aggregate ownership interest of the Unit Owners
agree that the Property is obsolete in whole or in part and that the Property should be
renewed and restored, the expense thereof shall be paid by all the Unit Owners as
Common Expenses. If ninety percent (90%) of the aggregate ownership interest of the Unit
Owners agree that the Property is obsolete in whole or in part and that the Property should
be sold, the Property shall be considered removed from condominium ownership. If within
sixty (60) days after the date of the damage to or destruction of all or part of the Property
the Association does not decide to repair, reconstruct, or rebuild, the Property shall be
considered removed from condominium ownership.
Consent of Mortgagees
Any election to terminate the Condominium regime after substantial destruction or
a substantial taking in condemnation of the Condominium property shall require the holders
of all liens affecting any of the Units consent thereto or agree, in either case by instruments
duly recorded, that their liens be transferred to the undivided interest of the Unit Ownerin
the property after termination of the Condominium regime.
Condemnation Representation
For all condemnation issues concerning the Condominium, the Association shall
represent the Unit Owners in the condemnation proceedings or in negotiations, settlements
and agreements with the condemning authority for acquisition of the Common Elements,
or part thereof, by the condemning authority. Each Unit Owner hereby appoints the
Association as attorney-in-fact for such purpose.
Effect of Removal - Ownership in Common - Liens - Sale
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If the Property is removed from condominium ownership as provided in this Article,
the Property shall be considered owned in common by all the Unit Owners. The percentage
of undivided interest of each Unit Owner in the Property owned in common shall be the
same as the percentage of undivided interest previously owned by such Owner in the
Common Elements. Liens affecting any Unit shall be liens, in accordance with the then
existing priorities, against the undivided interest of the Unit Owner in the Property owned
in common. If the Property is removed from condominium ownership as provided in this
Article, it shall be subject to an action for partition at the suit of any Unit Owner. 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 the Unit Owners in proportion
to their respective undivided interests after first paying out of the respective shares of the
Unit Owners, to the extent sufficient for the purpose, all liens on the undivided interest in
the Property owned by each Unit Owner.
XI.
NOTICE TO MORTGAGEES
A holder, insurer or guarantor of a first mortgage, upon written request to the
Association, (such request to state the name and address of such holder, insurer or
guarantor and the unit number), will be entitled to timely written notice of:
(A) Any proposed amendment of the Condominium instruments effecting a
change in:
(i) the boundaries of any Unit or the exclusive easement rights
appertaining thereto,
(ii) the interests in the General Common Elements or Limited
Common Elements appertaining to any Unit or the liability for Common
Expenses appertaining thereto,
(iii) the number of votes in the Association appertaining to any Unit,
or
(iv) the purposes to which any Unit or the Common Elements are
restricted;
(B) Any proposed termination of the Condominium regime;
(C) Any condemnation loss or any casualty loss which affects a material
portion of the Condominium or which affects any Unit on which there is a first
mortgage held, insured or guaranteed by such eligible holder;
(D) Any delinquency in the payment of assessments or charges owed by an
Owner of a Unit subject to the mortgage of such eligible holder, insurer or guarantor,
where such delinquency has continued for a period of sixty (60) days; and
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(E) Any lapse, cancellation or material modification of any insurance policy
maintained by the Association.
XII.
REMEDIES
All remedies provided in this Declaration and Bylaws shall not be exclusive of any
other remedies which may be available to the parties hereto as provided for by law. The
Association and any aggrieved Unit Owner has a right of action against Unit Owners for
failure to comply with the provisions of the Declaration and/or Bylaws or with decisions of
the Association which are made pursuant to authority granted the Association by the
Declaration and Bylaws. Unit Owners also have a right of action against the Association
for failing to comply with the provisions of the Declaration and/or Bylaws.
XIII.
SEVERABILITY
The provisions hereof shall be deemed independent and severable and the
invalidity, partial invalidity or unenforceability of any one or more provisions shall not affect
the validity or enforceability of any other provision hereof.
XIV.
INTERPRETATION
The provisions of the Declaration and of the By-Laws to be promulgated and
recorded herewith, shall be liberally construed to effectuate the purpose of the Declaration
and By-Laws and to create a Building or Buildings subject to and under the provisions of
the Unit Ownership Act.
XV.
MISCELLANEOUS
Utility Easements
In addition to the easements provided for herein, easements are reserved through
the condominium property as may be required for utility services, including heat, air
conditioning, water, sewer, power, telephone, natural gas and cable television, in order to
serve WESTLAND LOFTS CONDOMINIUM adequately. However, such easements
through the property or Units shall be only according to the plans and specifications for the
Unit Building, as set forth in the recorded plat, or as the Building is constructed, unless
approved in writing by the Unit Owner.
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Right of Access
The Association shall have the irrevocable right, to be exercised by the Manager or
Board of Directors, to have access to each Unit from time to time during reasonable hours
as may be necessary for the maintenance, repair or replacement of any of the Limited
Common Elements therein or accessible therefrom, or for making emergency repairs
therein necessary to prevent damage to the General Common Elements or Limited
Common Elements or to any other Unit.
Damage to the interior or any part of the Unit resulting from maintenance, repair,
emergency repair or replacement of any of the general or Limited Common Elements, or
as a result of an emergency repair within another Unit at the instance of the Association,
shall be designated either limited or general Common Expenses by the Association and
assessed in accordance with such designation.
Expenditures
No single expenditure or debt in excess of $25,000.00 may be made or incurred by
the Association without the prior approval of the majority of the Unit ownership percentage.
Benefit
Except as otherwise provided herein, this Declaration shall be binding upon and
shall inure to the benefit of the Declarant, the Association and each Unit Owner, and the
heirs, personal representatives, successors and assigns of each.
Signs
The size, location and placement of all signs must be approved by the Board before
installation. All signs must be in conformity with any zoning and sign ordinances then in
effect.
Service of Process
The name and address of the person to receive service of process for WESTLAND
LOFTS CONDOMINIUM until another designation is filed of record shall be:
Stephen P. McGough
2813 W. Babcock, Unit C
Bozeman, Montana 59718
Warranties
The Declarant expressly makes no warranties or representations concerning the
property, the Units, the Declaration, Bylaws, or deeds of conveyance except as specifically
set forth therein, and no one may rely upon such warranty or representation not so
specifically expressed therein. Estimates of Common Expenses are deemed accurate, but
no warranty or guarantee is made or is intended, nor may one be relied upon.
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IN WITNESS WHEREOF, the Declarant has caused this Declaration to be made
and executed according to the provisions of the Montana Unit Ownership Act, Title 70,
Section 23, MCA.
DECLARANT:
DALLAS FINANCIAL, LLC,
________________________________
Stephen P. McGough, Member
STATE OF MONTANA )
: ss.
County of Gallatin )
On this ____ day of ________________, 2020, before me, a Notary Public in and
for said State, personally appeared STEPHEN P. McGOUGH, Member of DALLAS
FINANCIAL, LLC, known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that the company executed the same.
___________________________________________
Printed Name: _______________________________
Notary Public for the State of Montana
Residing at __________________________, Montana
My commission expires: ________________________
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