HomeMy WebLinkAboutCondo Documents_DeclarationDECLARATION
for
ADDISON PLACE CONDOMINIUM
INDEX
Certificate of Name .................................................... 2
Certificate of Floor Plan ................................................. 3
DECLARATION FOR ADDISON PLACE CONDOMINIUM ...................... 4
Definitions ..................................................... 4
Real Estate .................................................... 6
Easement, Common Elements -- Interior Remodeling .................... 8
Ownership and Voting -- Exhibits -- Use .............................. 9
The Association ................................................16
Declarant’s Right to Change ......................................20
Amendment ...................................................21
Changes, Repairs and Liens ......................................22
Insurance .....................................................24
Removal or Partition -- Subdivision .................................31
Notice to Mortgagees ............................................32
Arbitration Agreement ............................................33
Severability ................................................... 34
Interpretation ..................................................34
Miscellaneous .................................................34
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 ADDISON PLACE CONDOMINIUM, situated as follows:
Lot 4 of Baxter Lane Subdivision No. 1, in Gallatin County, Montana,
according to the official plat thereof on file and of record in the office of the
County Clerk and Recorder, Gallatin County, Montana. (Plat Reference:
H-15)
1.That the name ADDISON PLACE 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 ADDISON PLACE
CONDOMINIUM, have been paid to date.
Dated: _______________________
______________________________
Montana Department of Revenue
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CERTIFICATE OF FLOOR PLANS
The undersigned, being a duly licensed professional architect in the State of
Montana, herewith certifies the following:
That the floor plans for the Units of ADDISON PLACE CONDOMINIUM, situated
on Lot 4 of Baxter Lane Subdivision No. 1, in Gallatin County, Montana, according to the
official plat thereof on file and of record in the office of the County Clerk and Recorder,
Gallatin County, Montana (Plat Reference: H-15) as duly filed with these Declaration and
Bylaws fully and accurately depict the layout, location, unit designation and dimensions of
said Units of ADDISON PLACE 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 building containing Units
of ADDISON PLACE CONDOMINIUM as built.
Dated: ___________________________
________________________________
Jesse Sobrepena
Registered Professional Architect
Number: 2557
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DECLARATION FOR
ADDISON PLACE CONDOMINIUM
THIS DECLARATION is hereby made and entered into this _____ day of
_______________, 202__, by ABS, LLC, a Montana limited liability company of 389 South
Ferguson Avenue, Bozeman, Montana 59718, 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 ADDISON PLACE
CONDOMINIUM. The current address of ADDISON PLACE CONDOMINIUM is 1242
Thomas Drive, 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 Addison Place 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 structure containing one or more Units which is
constructed on the land submitted to condominium ownership pursuant to
the Montana Unit Ownership Act.
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 Addison Place
Condominium that are not included within the definition of Limited Common
Elements. Specifically included are: grounds surrounding the Building, the
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land on which the Building is 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
portions of the Building 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 Building containing the Units, and other
elements necessary for the safety, maintenance and existence of ADDISON
PLACE 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 ADDISON PLACE
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 ADDISON PLACE 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, 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 a Unit’s interest in a particular
Limited Common Element shall be computed by taking the square footage
of such Unit and dividing that number by the total square footage of all Units
with an interest in such Limited Common Element. Limited Common
Elements also include those areas designated on the Site Plan or Floor
Plans as “LCE” and/or “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.Eligible Mortgagee. The holder of a first position mortgage or deed of trust
on a Unit who has submitted a written request that the Association notify it
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of any proposed action requiring the consent of a specified percentage of
eligible mortgage holders.
10.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 for which the expenses are accrued.
11.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 ADDISON PLACE CONDOMINIUM.
12.Property shall mean the land, Building, improvements and structures
thereon, and all easements, rights and appurtenances belonging thereto,
which are herewith submitted to the provisions of the Unit Ownership Act.
13.Unit shall be the separate condominium Units of ADDISON PLACE
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.
14.Unit Designation shall mean the combination of letters, numbers, or words
which identifies the designated Units. Units are designated by unit number
as Unit 101, Unit 102, Unit 103, Unit 104, Unit 105, Unit 106, Unit 107, Unit
201, Unit 202, Unit 203, Unit 204, Unit 205, Unit 206, Unit 207, Unit 301, Unit
302, Unit 303, Unit 304, Unit 305, and Unit 307.
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 ADDISON PLACE 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 4 of Baxter Lane Subdivision No. 1, in Gallatin County, Montana,
according to the official plat thereof on file and of record in the office of the
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County Clerk and Recorder, Gallatin County, Montana. (Plat Reference:
H-15)
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 and
qualifies for a municipal facilities subdivision review exclusion in accord with Section 76-4-
125(1)(d), Montana Code Annotated.
The condominium Units of ADDISON PLACE CONDOMINIUM consists of twenty
(20) separate Units, designated as Unit 101, Unit 102, Unit 103, Unit 104, Unit 105, Unit
106, Unit 107, Unit 201, Unit 202, Unit 203, Unit 204, Unit 205, Unit 206, Unit 207, Unit
301, Unit 302, Unit 303, Unit 304, Unit 305, and Unit 307. 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 the Declaration and Bylaws for
ADDISON PLACE CONDOMINIUM are in effect.
Condominium Units
Each Unit, together with the appurtenant undivided interest in the Common
Elements of ADDISON PLACE 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 are contained
in one (1) Building.
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
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
Use and assignment of parking areas shall be pursuant to regulation of the
Association provided that no assignment by the Association shall be made for the benefit
of any Unit Owner which discriminates against another Unit Owner without the latter's
consent.
Unit Boundaries
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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 highest 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 Building except that such boundary shall be
extended so as to include within it all windows and doors in the Unit.
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
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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 Owners 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.
Interior Remodeling
Each Unit Owner shall have the exclusive right to paint, repaint, tile, wax, paper,
panel, 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.
IV.
OWNERSHIP AND VOTING - EXHIBITS - USE
Percentage of Interest
Each Unit Owner shall be entitled to the exclusive ownership, use and possession
of his or her Unit. Additionally, each Unit Owner shall have a percentage of undivided
interest in the General Common Elements of ADDISON PLACE CONDOMINIUM. Such
percentage represents his or her ownership interest in the General Common Elements,
voting interest in the Association, and his or her 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 ADDISON PLACE CONDOMINIUM. Such percentage of interest
owned by each of the Units in ADDISON PLACE CONDOMINIUM shall be according to the
percentages set forth below:
UNIT SQUARE FOOTAGE*PERCENTAGE OF INTEREST IN
GENERAL COMMON ELEMENTS
Unit 101 654*4.73%
Unit 102 562*4.07%
Unit 103 654*4.73%
Unit 104 562*4.07%
Unit 105 654*4.73%
Unit 106 562*4.07%
Unit 107 959*6.94%
Unit 201 654*4.73%
Unit 202 562*4.07%
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Unit 203 654*4.73%
Unit 204 562*4.07%
Unit 205 654*4.73%
Unit 206 562*4.07%
Unit 207 959*6.94%
Unit 301 654*4.73%
Unit 302 562*4.07%
Unit 303 654*4.73%
Unit 304 1,121*8.11%
Unit 305 654*4.73%
Unit 307 959*6.94%
TOTAL 15,786*100.00%
* 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.
Floor Plans and Exhibits
ADDISON PLACE CONDOMINIUM consists of one (1) Building and the real
property described in Article II above which contain a total of twenty (20) separate
ADDISON PLACE CONDOMINIUM Units as shown on the 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: the Site Plan of ADDISON PLACE CONDOMINIUM;
Exhibit B: the Floor Plans of the Units within ADDISON PLACE CONDOMINIUM.
Construction Materials
The principal materials of construction of the Units 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, vinyl, or tile for the floors, metal, fiber cement and wood-product siding for
exterior wall surfaces, and and rubber membrane and standing seam metal for the roofing
on the Building.
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Use
The use of all of the Units in ADDISON PLACE CONDOMINIUM shall be for
residential purposes only and there shall be no commercial use whatsoever, except that
a Unit Owner may lease or rent his or her Unit to third persons for residential use provided
that the Owner Occupancy Restrictions set forth below are followed. The use of the
General Common Elements shall be for the recreation and enjoyment of the Unit Owners,
their guests, tenants, lessees and 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 General 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 or her own Unit.
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 Owner shall permit anything to be done
or kept in his or her 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.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 sign,
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. Seasonal decorations that are promptly removed after the season and
reasonable name plates or identification signs for individual Units may be allowed.
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
residents. No offensive or unlawful use shall be made of the property nor any part
thereof, and all valid laws, zoning ordinances and regulations of all governmental
bodies having jurisdiction thereof shall be observed.
e.Nothing shall be done in any Unit or in, on or to the Common Elements which
will impair the structural integrity of the Building or which would structurally change
the Building, except as is otherwise provided herein.
f.No animals of any kind shall be raised, bred, or kept in any Unit, except that
no more than a total of two (2) household pets may be kept subject to rules and
regulations from time to time adopted or amended by the Association. All dogs must
be kept on a leash while on the condominium property. Additionally, Unit Owners,
their tenants, and any guests, shall be responsible for the immediate clean-up of
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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. For
purposes of the foregoing sentence, any animal which is restrained in some
reasonable fashion but is approached by another animal or human shall be
presumed to be the non-aggressor. Failure to timely remove the pet(s) can result
in a fine not to exceed $20.00 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. Failure
to immediately pick up after a Unit Owner’s animal or an animal belonging to a
tenant of the Unit on the common area will result in a $25.00 fine for each offense,
which shall also become a part of the assessment for Unit, regardless of whether
the offending animal is owned by the Unit Owner or by a tenant of the Unit. Failure
of an Owner 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
dogs or individual dogs from the Condominium, provided that such actions are
based upon objective criteria related to aggressive tendencies of the breed or
individual dogs. In the event that an Owner leases his or her Unit to a person who
has pets, 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 two-thirds (b) of the aggregate voting
interest of the Unit Owners affected by such action. The foregoing restriction does
not apply to the Declarant while the Declarant owns any Unit.
h.No junk, garbage, trash, equipment, parts, metals, lumber, debris, or other
waste shall be allowed on the sidewalk, balcony, or entrance for any Unit, nor on
any Common Element. All garbage and trash requirements of any government
agencies shall be observed.
i.Campers, trailers, boats and other recreational vehicles may only be brought
onto the condominium property or onto any street bordering the condominium
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 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
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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
Each Owner or Owners shall be entitled to exclusive ownership and possession of
their Unit. Such Owners may use the General Common Elements and Limited Common
Elements in accordance with the purposes for which they are intended and 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).
Owner Occupancy Restrictions
The ability of any Unit Owner, other than Declarant, to use his or her Unit for any
purpose other than owner-occupancy is hereby restricted by the covenants and restrictions
set forth herein. However, these Owner Occupancy Restrictions shall not in any way
restrict the Declarant from leasing any Unit owned by the Declarant. These covenants and
restrictions may limit the ability of other Unit Owners to use their Units for investment
and/or rental purposes.
a. Before any Unit Owner uses his or her Unit for any purpose other than
owner-occupancy, said Unit Owner must obtain written authorization from the Board
for such use. A Unit is considered owner occupied if it is occupied by at least one
person on the deed to the Unit for the majority of the calendar year. No Unit may be
used for any purpose other than owner-occupancy without receiving prior written
approval from the Board as herein provided. The date that the Board receives an
application to use a Unit for any purpose other than owner-occupancy shall be that
Unit's priority date ("Priority Date").
b. At least fifty percent (50%) of the Units in ADDISON PLACE Condominium
must be owner-occupied. Although the Declarant is not limited in its use of the Units
it owns by these Owner Occupancy Restrictions, Units owned by the Declarant shall
be counted when calculating owner occupancy requirements applicable to other
Units.
c. The Board shall maintain a list ("Approved List") of all Units that the Board
has approved for any use other than owner-occupancy. The Approved List shall
contain the following information: (i) Unit designation; (ii) Unit Owner of record; and
(iii) the Unit's Priority Date.
d.The Board shall maintain a list ("Waiting List") of all Units that have applied
to use their Unit for any purpose other than owner-occupancy but which were
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prohibited from doing so by the Board due to the Condominium reaching its
maximum allowable level of non-owner-occupied Units. The Waiting List shall
contain the following information: (i) Unit designation; (ii) Unit Owner of record; and
(iii) the Unit's Priority Date.
e. When a space becomes available on the Approved List due to removal of a
Unit from the Approved List or for any other reason, the Board shall transfer to the
Approved List the Unit on the Waiting List with the earliest Priority Date.
f. A Unit shall be removed from the Approved List upon the occurrence of any
of the following events: (i) the Unit Owner notifies the Board in writing to remove his
or her Unit from the Approved List; (ii) the Unit becomes owner-occupied as defined
herein; or (iii) equitable or legal title to the Unit is transferred to any third party,
however, the following transfers shall not be considered as a transfer for purposes
of being removed from the Approved List: a transfer made pursuant to testate or
intestate succession; or a transfer made to a business entity or trust in which the
current owner(s) is/are an owner(s) or beneficiary(ies) of said entity or trust. After
removal from the Approved List, the current Unit Owner or the new Unit Owner must
make new application to the Board as herein provided, and the Unit shall receive
a new Priority Date.
g.If a Unit comes off of the Waiting List and onto the Approved List, such Unit
must be non-owner-occupied within ninety (90) days of being added to the
Approved List or such Unit shall be removed from the Approved List and must make
new application to be added to the Waiting List and receive a new Priority Date.
h.In the event that two or more Units have the same Priority Date and not all
such Units can be removed or added to any list, the Board shall determine the Unit
to be removed or added by means of lottery to be conducted pursuant to the
Board's discretion.
i.All written requests to be added to the Approved List shall be reviewed by the
Board within ten (10) business days. In the event no written decision is made within
ten (10) business days, the application shall be deemed denied. A Unit may not be
denied listing on the Waiting List.
j.All decisions of the Board shall be considered final unless the Unit Owner
makes a written appeal to the Board within five (5) business days of receiving the
Board's decision and the Board subsequently overturns such decision. The Board
shall have thirty (30) days to meet and render its decision on the Unit Owner's
appeal, which decision shall be final.
k.The Board shall make the Approved List and the Waiting List available to all
Unit Owners and their mortgagees and to all prospective purchasers of Units who
request the same in writing.
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l.The Board may adopt such additional rules and regulations as shall be
reasonable and necessary to carry out its authority and duties under these owner
occupancy provisions, provided such rules and regulations are consistent with and
are in compliance with the covenants and restrictions set forth herein. Originals of
all duly adopted rules and regulations shall be kept by the Board and copies thereof
shall be provided to each Unit Owner and prospective purchaser of a Unit upon
request.
m.The Board shall have the authority to levy fines against Units for any violation
of the owner-occupancy covenants set forth herein. Upon finding a violation of these
owner-occupancy covenants, the Board may fine the Unit up to $100.00 per day of
violation. 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 five (5) 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. All fines may be collected
by the Association in the same manner as an assessment as set forth in this
Declaration. 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.
n.In the event that any Unit Owner violates these owner-occupancy covenants,
the Board or any aggrieved Unit Owner shall have the right, in addition to any other
rights and remedies it may have, at law, in equity or otherwise, and without the
requirement of posting a bond or other security, to injunctive relief in any court of
competent jurisdiction to restrain any breach or threatened breach of the covenants
set forth herein and to specifically enforce the terms hereof. If it is determined by the
Court that a Unit Owner has violated these owner-occupancy covenants, the Court
shall have as an available remedy the ability to compel the violating Unit Owner to
occupy the Unit or sell the Unit to a purchaser who shall occupy the Unit within
ninety (90) days of such order. The prevailing party in such court action shall be
entitled to its attorney's fees and costs.
o.No action by the Board and nothing set forth herein shall constitute a
representation, warranty, or guarantee by the Board or any other person or entity
that the Condominium or any particular Unit or Units qualify or will qualify for
mortgage insurance or any other loan insurance program. Neither the Board, nor
any member thereof, shall be liable to any person, party or entity for the failure of
any Unit to qualify for any mortgage insurance program for any reason whatsoever.
p.If leasing of a Unit is permitted hereunder, the Unit Owner and the leased
Unit shall remain strictly liable to the Association and other Unit Owners for all
damages, claims and liabilities incurred, including, but not limited to, any damage
caused to other Units and/or Common Elements by said leased Unit's lessees,
guests and/or invitees. A leased Unit and its Unit Owner shall be responsible for the
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violations of any rule, regulation and/or covenant by the leased Unit's lessees,
guests or invitees, including, but not limited to the payment of any penalties or fines
levied by the Association which shall be considered an assessment and a lien
against the Unit. If a Unit is authorized to be leased as herein provided, the written
lease for said Unit shall affirmatively require all lessees, occupants and guests of
the Unit to strictly comply with all rules and regulations adopted by the Association
and all covenants, conditions and restrictions of the ADDISON PLACE
Condominium.
V.
THE ASSOCIATION
Membership
Any Owner of a Unit in ADDISON PLACE CONDOMINIUM shall automatically, upon
becoming the Owner of said Unit, be a member of the ADDISON PLACE CONDOMINIUM
OWNERS ASSOCIATION, a Montana nonprofit corporation, hereinafter 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 ADDISON PLACE 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.
Voting
On all matters, unless excluded by this Declaration, to be decided by the Unit
Owners, each Unit shall have shall have a vote equal to its percentage of interest in the
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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 voting interest 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: $50.00
Second Offense:$100.00
Third Offense and More:$200.00
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 Unit voting 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 five (5) business days of receiving the fine and
the Board subsequently overturns such fine. The Board shall have thirty days to meet and
render its decision regarding the fine, which decision shall be final. 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.
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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 business of the Board
of Directors of the Association at any regular or special meeting thereof as provided
in the Bylaws of the Association. 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. The Board of Directors shall
approve the budget and the amount of assessments.
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
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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 may 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. 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.
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.
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h.Prior to the initial sales of Units within the Condominium, an initial
assessment amount, including a capital contribution (reserves), shall 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 shall
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
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.
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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 voting 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
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;
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(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.
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. No Units may be
subdivided. 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. In addition to compliance with the provisions of Article 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.
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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 Building 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
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
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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
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 ADDISON PLACE 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
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a.Casualty: The Building 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
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
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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:
(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 the Building 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
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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.
Blanket fidelity bonds shall be maintained by the Association for all officers,
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.
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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.
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
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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
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
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specifications approved by: (1) the Board of Directors; (2) more than seventy-five percent
(75%) of the aggregate unit voting 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
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.
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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 voting 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 voting 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 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 must require the
approval of the eligible holders of first mortgages on Units to which at least sixty-seven
percent (67%) of the votes of Units subject to mortgages held by such eligible holders are
allocated.
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
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
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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
(E) Any lapse, cancellation or material modification of any insurance
policy maintained by the Association.
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XII.
ARBITRATION AGREEMENT
The Declarant, the Association and all Owners agree that any claim arising from or
related to the sale of any Unit or the Common Elements, or to any defect in or to any Unit
or any real property on which such Unit is situated, or which is part of the Common
Elements, including without limitation, any claim of breach of contract, negligent or
intentional misrepresentation or nondisclosure in the inducement, execution or
performance of any contract, including this Arbitration Agreement, any alleged statutory
violation, and any claim of bodily injury, shall be settled by arbitration.
Any dispute concerning the interpretation or enforceability of this Arbitration
Agreement, including without limitation, its revocability or voidability for any cause, the
scope of arbitrable issues, and any defense based upon waiver or estoppel, shall be
decided by the arbitrator. The decision of the arbitrator shall be final and binding and may
be entered as a judgment in any court of competent jurisdiction.
This Arbitration Agreement shall inure to the benefit of, and be enforceable by,
Declarant's subcontractors, agents, vendors, suppliers, design professionals, insurers and
any other person alleged to be liable for any defect in or to any Unit or the Common
Elements; and shall be binding upon all family members and tenants of all Owners. Any
party shall be entitled to recover reasonable attorney's fees and costs incurred in enforcing
this Arbitration Agreement.
The arbitration shall be conducted by the American Arbitration Association or by
DeMars & Associates, Ltd., pursuant to their applicable arbitration rules not inconsistent
with this Arbitration Agreement. The choice of arbitration service shall be that of the
claimant. All administrative fees of the arbitration service and fees of the arbitrator shall be
borne equally by the parties to the arbitration, subject to the discretion of the arbitrator to
reallocate such fees in the interests of justice.
The parties expressly agree that this Declaration and this Arbitration Agreement
involve and concern interstate commerce and are governed by the provisions of the
Federal Arbitration Act (9 U.S.C. § 1, et seq.) to the exclusion of any different or
inconsistent state or local law, ordinance or judicial rule; and to the extent that any state
or local law, ordinance or judicial rule shall be inconsistent with any provision of the rules
of the arbitration service under which the arbitration proceeding shall be conducted, the
latter rules shall govern the conduct of the proceeding.
No participation by any party in any judicial proceeding involving a matter which is
arbitrable under this Arbitration Agreement shall be deemed a waiver of the right of such
party to enforce this Arbitration Agreement.
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If any provision of this Arbitration Agreement shall be determined by the arbitrator
or by any court to be unenforceable or to have been waived, the remaining provisions shall
be deemed to be severable therefrom and enforceable according to their terms.
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 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 ADDISON PLACE 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.
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 or Limited Common Elements or to
any other Unit.
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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 $50,000.00 may be made or incurred by
the Association or Manager 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.
Service of Process
The name and address of the person to receive service of process for ADDISON
PLACE CONDOMINIUM until another designation is filed of record shall be:
W. J. Applebee III
389 South Ferguson Avenue
Bozeman, Montana 59718
Municipal Facilities Exemption
Declarant certifies that Addison Place Condominium is excluded from review by the
Department of Environmental Quality pursuant to 76-4-125 and 76-3-203, MCA.
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
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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.
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.
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:
ABS, LLC, a Montana limited liability company, by
________________________________________________________________
Jason Basye, Member David Kent Simonson, Member
________________________________
W. J. Applebee III, Member
STATE OF MONTANA )
: ss.
County of Gallatin )
On this _____ day of _____________, 202__, before me, a Notary Public in and for
said State, personally appeared JASON BASYE, DAVID KENT SIMONSON, and W. J.
APPLEBEE, III, Members of ABS, LLC, a Montana limited liability company, known to me
to be the persons whose names are 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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CONSENT OF MORTGAGEE
COMES NOW, FIRST MONTANA BANK, INC., as the Beneficiary/Lender under that
certain Deed of Trust wherein ABS, LLC was Grantor, SECURITY TITLE COMPANY was
Trustee, and FIRST MONTANA BANK, INC. was Beneficiary/Lender recorded on August
25, 2020 as Document No. 2696826 in the office of the Clerk and Recorder of Gallatin
County, Montana against the following described real property:
Lot 4 of Baxter Lane Subdivision No. 1, in Gallatin County, Montana,
according to the official plat thereof on file and of record in the office of the
County Clerk and Recorder, Gallatin County, Montana. (Plat Reference:
H-15)
AND HEREBY CONSENTS to the submission of the above described real property to
condominium ownership and to the recording of the Declaration and Bylaws for Circle F
Condominium set forth herein.
DATED this ____ day of _____________, 202__.
FIRST MONTANA BANK, INC., by
______________________________________
______________________,_______________
STATE OF MONTANA )
: ss.
County of Gallatin )
On this ____ day of _________________, 202__, before me, a Notary Public in and
for said State, personally appeared ______________________________________,
________________________ of FIRST MONTANA BANK, INC., known to me to be the
person whose name is subscribed to the within instrument and acknowledged to me that
the corporation executed the same.
____________________________________________
Printed Name: _________________________________
Notary Public for the State of Montana.
Residing at __________________________, Montana.
My commission expires: ________________________
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