HomeMy WebLinkAboutBozemanCoHousingCovenants_06-25-21
Declaration for the Bozeman Cohousing Condominiums 1 | P a g e
After recording return to:
Griffith & Cummings PC
P.O. Box 160748
Big Sky, Montana 59716
DECLARATION
FOR THE
BOZEMAN COHOUSING CONDOMINIUMS
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TABLE OF CONTENTS
Article 1 - DEFINITIONS .............................................................................................................. 7
1.1 Act ......................................................................................................................... 7
1.2 Articles .................................................................................................................. 7
1.3 Assessments .......................................................................................................... 7
1.4 Association ............................................................................................................ 7
1.5 Board ..................................................................................................................... 7
1.6 Building................................................................................................................. 7
1.7 Bylaws................................................................................................................... 7
1.8 Common House ....................................................................................................... 7
1.9 Common Elements ................................................................................................ 7
1.10 Common Expenses................................................................................................ 9
1.11 Community Agreements ....................................................................................... 7
1.12 Construction Activity ............................................................................................ 9
1.13 Declarant ............................................................................................................... 7
1.14 Declaration ............................................................................................................ 9
1.15 Design Guidelines ................................................................................................. 9
1.16 Driveway ............................................................................................................... 9
1.17 Eligible Holder ...................................................................................................... 9
1.18 Function ................................................................................................................ 9
1.19 Garage Unit ........................................................................................................... 7
1.20 Good Standing .................................................................................................... 10
1.21 Governing Documents ........................................................................................ 10
1.22 Insurance Trustee ................................................................................................ 10
1.23 Limited Expenses ................................................................................................ 10
1.24 Manager .............................................................................................................. 10
1.25 MCA ................................................................................................................... 10
1.26 Percentage of Interest .......................................................................................... 10
1.27 Permitted Household Pets: .................................................................................. 10
1.28 Person .................................................................................................................. 10
1.29 Plans .................................................................................................................... 10
1.30 Project ................................................................................................................. 10
1.31 Property ............................................................................................................... 10
1.32 Public Record ...................................................................................................... 10
1.33 Reserve Assessments .......................................................................................... 10
1.34 Residential Unit(s) ................................................................................................ 7
1.35 Roadway ............................................................................................................. 11
1.36 Site Plan .............................................................................................................. 11
1.37 Unit(s) ................................................................................................................. 11
1.38 Unit Designation ................................................................................................. 11
1.39 Unit Owner or Owner ......................................................................................... 11
1.40 Unit Ownership Act ............................................................................................ 11
1.41 Zoning Regulation .............................................................................................. 11
Article 2 - REAL ESTATE ........................................................................................................... 11
2.1 Purpose ................................................................................................................ 11
2.2 Real Property and Certificate of Exemption ....................................................... 11
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2.3 Certificate of Subdivision Plat Approval ............................................................ 11
2.4 Project ................................................................................................................. 12
2.5 Access to the Project ........................................................................................... 12
2.6 Site Plan .............................................................................................................. 12
2.7 Buildings ............................................................................................................. 12
2.8 Construction Materials ........................................................................................ 12
2.9 Floor Plans .......................................................................................................... 12
2.10 Boundaries of Units ............................................................................................ 12
2.11 Condominium Unit ............................................................................................. 13
2.12 Ownership of Units ............................................................................................. 13
Article 3 - EASEMENTS.............................................................................................................. 13
3.1 Easements for Encroachments ............................................................................ 13
3.2 Common Element Easements ............................................................................. 13
3.3 Easement for Utilities Within Units .................................................................... 14
3.4 Easements for Public Utilities ............................................................................. 14
3.5 Grant of Easements by Association .................................................................... 15
3.6 Easements for Maintenance, Repair, and Replacement ...................................... 15
3.7 Site Plan or Service Easements ........................................................................... 15
3.8 Structural Easements and Interior Remodeling. ................................................. 15
3.9 Specific Written Easements ................................................................................ 16
3.10 Right of Access to the Interior of Units .............................................................. 16
Article 4 - THE ASSOCIATION .................................................................................................. 17
4.1 Association .......................................................................................................... 17
4.2 Board of Directors............................................................................................... 18
4.3 Rights of Association .......................................................................................... 17
4.4 Association Responsibilities ............................................................................... 19
Article 5 - MEMBERSHIP ........................................................................................................... 21
5.1 Regular Membership; Appurtenant Rights. ........................................................ 21
Article 6 - FINANCES.................................................................................................................. 23
6.1 Budget ................................................................................................................. 23
6.2 Assessments ........................................................................................................ 24
Article 7 - USE RESTRICTIONS ................................................................................................ 29
7.1 Common Elements .............................................................................................. 29
7.2 Use ...................................................................................................................... 30
7.3 Alterations ........................................................................................................... 30
7.4 Leasing ................................................................................................................ 31
7.5 Restriction on Number of Occupants per Unit ................................................... 33
7.6 Restriction on Number of Units Owned by One Owner ..................................... 33
7.7 Home Occupation ............................................................................................... 33
7.8 Activities ............................................................................................................. 34
7.9 Animals Living in a Unit .................................................................................... 34
7.10 Animals Allowed to Live Outside of a Unit ....................................................... 34
7.11 Aesthetics ............................................................................................................ 35
7.12 Trash ................................................................................................................... 35
7.13 Advertising and Signage ..................................................................................... 35
7.14 Parking ................................................................................................................ 36
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7.15 Lights .................................................................................................................. 36
7.16 Marijuana and Smoking ...................................................................................... 36
7.17 Satellite Dishes/Antennas ................................................................................... 36
7.18 Handicapped Rights ............................................................................................ 36
7.19 Water & Sewer System ....................................................................................... 37
Article 8 - INSURANCE .............................................................................................................. 38
8.1 Association Policies ............................................................................................ 38
8.2 Coverage ............................................................................................................. 38
8.3 Claims Against the Association’s Insurance Policies ......................................... 40
8.4 Premiums and Deductibles ................................................................................. 40
8.5 Policy Requirements ........................................................................................... 40
8.6 Waiver of Subrogation and Endorsements ......................................................... 41
8.7 Insurance Trustee ................................................................................................ 42
8.8 Unit Owners’ Insurance ...................................................................................... 42
8.9 Distribution of Proceeds ..................................................................................... 43
8.10 Board as Agent .................................................................................................... 44
8.11 Benefit to Mortgagees ......................................................................................... 44
8.12 Notice to Lienholder ........................................................................................... 44
8.13 Reconstruction .................................................................................................... 44
8.14 Condemnation. .................................................................................................... 46
Article 9 - MORTGAGEE PROVISIONS ................................................................................... 47
9.1 Notice of Action. ................................................................................................. 47
Article 10 - REMOVAL, PARTITION, AND SUBDIVISION ................................................... 47
10.1 Board Approval ................................................................................................... 47
10.2 Member Approval ............................................................................................... 48
10.3 Division of Units ................................................................................................. 48
10.4 Common Elements .............................................................................................. 48
10.5 Removal or Partition - Subdivision..................................................................... 48
Article 11 - DECLARANT'S RIGHTS ........................................................................................ 48
11.1 Changes to Project .............................................................................................. 48
11.2 Expansion Provisions .......................................................................................... 48
11.3 Timeframe for Completion ................................................................................. 49
11.4 Assessments ........................................................................................................ 49
11.5 Assignment ......................................................................................................... 49
Article 12 - ENFORCEMENT AND REMEDIES ....................................................................... 49
12.1 Procedure ............................................................................................................ 49
12.2 Discretion ............................................................................................................ 50
12.3 Costs of Enforcement .......................................................................................... 50
12.4 Delegation ........................................................................................................... 50
12.5 Remedies Cumulative ......................................................................................... 51
12.6 Joint and Several Liability .................................................................................. 51
Article 13 - AMENDMENT ......................................................................................................... 51
13.1 Amendment By Decalarant ..................................................................................... 51
13.2 Amendment By Board ........................................................................................ 51
13.3 Amendment By Owners ...................................................................................... 52
13.4 Power of Attorney ............................................................................................... 52
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13.5 Annexation .......................................................................................................... 51
13.6 Withdrawal .......................................................................................................... 52
13.7 Plat Amendment.................................................................................................. 52
13.8 Merger or Consolidation ..................................................................................... 53
13.9 Agreement Regarding Amendments ................................................................... 53
13.10 Recording of Amendment ................................................................................... 53
Article 14 - ANNEXATION, WITHDRAWAL AND REPLATTING OF PROPERTY ............ 53
14.1 Annexation without Approval of Membership ................................................... 53
14.2 Annexation with Approval of Membership ........................................................ 54
14.3 Withdrawal of Property....................................................................................... 54
14.4 Replatting ............................................................................................................ 54
Article 15 - INTERPRETATION ................................................................................................. 55
16.1 Liberal Construction ........................................................................................... 55
16.2 Interpretation of Governing Documents ............................................................. 55
Article 17 - SEVERABILITY ...................................................................................................... 56
Article 18 - MISCELLANEOUS .................................................................................................. 56
18.1 Benefit ................................................................................................................. 56
18.2 Binding Effect ..................................................................................................... 56
18.3 Service of Process ............................................................................................... 56
18.4 Notices ................................................................................................................ 56
18.5 Sale Disclosures .................................................................................................. 56
18.6 Gender ................................................................................................................. 56
18.7 Conflicts .............................................................................................................. 56
EXHIBIT A-1 – LEGAL DESCRIPTION OF PROPERTY ........................................................ 60
EXHIBIT A-2 – CITY OF BOZEMAN EXEMPTION CERTIFICATE ................................... 61
EXHIBIT B – CERTIFICATE OF NAME .................................................................................. 62
EXHIBIT C – SITE PLAN ........................................................................................................... 63
EXHIBIT D – CONSTRUCTION MATERIALS ........................................................................ 64
EXHIBIT E-1 --FLOOR PLANS
EXHIBIT F – UNIT DESIGNATION AND PERCENTAGE OF INTEREST ........................... 68
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DECLARATION FOR THE BOZEMAN COHOUSING CONDOMINIUMS
RECITALS
The foregoing recitals are incorporated into this Declaration as if fully recited herein.
This PRELIMINARY DECLARATION is hereby made and entered into this _______ day of
_______, 20__ by BOZEMAN COHO, LLC, a Montana limited liability company referred to
herein as “Declarant(s),” whereby lands and property hereinafter described are submitted and
subject to the Montana Unit Ownership Act pursuant to Chapter 23, Title 70, MCA 2003, as
amended.
The property subject to this Declaration shall be known as the BOZEMAN COHOUSING
CONDOMINIUMS. (hereinafter referred to as the “Condominium, Property or Project”). The
Condominium is located at Bozeman, Gallatin County, Montana.
NOW, THEREFORE, Declarant hereby declares that the Project and the property in each
subsequent phase to the extent it becomes developed as described herein shall be held, conveyed,
mortgaged, encumbered, leased, rented, used, occupied, sold, and improved subject to the
declarations, limitations, covenants, conditions, restrictions, and easements contained in this
Declaration, all of which are imposed as equitable servitudes pursuant to a general plan for the
development of the Project for the purpose of enhancing and protecting the value and
attractiveness of the Project, and every part of it, in accordance with the plan for the
improvements of the Project and its division into Condominiums. All of the limitations,
covenants, conditions, restrictions and easements shall constitute covenants that run with the land
and are binding upon, and inure to the benefit of, Declarant, the Association, and all parties having
or acquiring any right, title, or interest in or to any part of the Project or the Property in the Project.
This Declaration shall apply to all the real property and improvements placed or constructed
thereon and shall be in existence in perpetuity unless amended or terminated by operation of law.
In the event any provision of this Declaration is judged to be invalid or unenforceable, the
remaining provisions shall remain in full force and effect.
Article 1 - DEFINITIONS
Unless the context expressly provides otherwise, the following definitions shall pertain throughout
this Declaration and in the interpretation thereof:
1.1 Act: Act means the Montana Nonprofit Corporation Act, §35-2-113 et seq., MCA, as
amended.
1.2 Articles: means the Articles of Incorporation of the Association, as the same may be
amended, restated or replaced from time to time.
1.3 Assessments: collectively refers to all assessments as set forth in Article 7 below.
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1.4 Association: means all of the Unit Owners acting as a group and in accordance with duly
adopted Bylaws and this Declaration, also referred to Bozeman Cohousing Condominium
Owner’s Association, Inc. a Montana nonprofit corporation, and any successor thereto.
1.5 Backyard: means the area adjacent to each Residential Unit on the ground floor designated
on the Site Plan. Backyards are Limit Common Elements that may be fenced and otherwise
improved as approved by the Board.
1.6 Bike Storage: means the portion of a Building designated as Bike Storage on the Site Plan.
This space shall be used as determined by the Members and as part of the Community
Agreement.
1.7 Board: means the Board of Directors of the Association as more particularly defined in
the Bylaws.
1.8 Building: means a structure containing Units.
1.9 Bylaws: means the Bylaws of the Association recorded on the _____ day of
________________________ , 20_____ , as Document No. _____________________ ,
records of Gallatin County, Montana, as such may be amended, restated or replaced from
time to time.
1.10 Car Share Program Building means the building used to house the Car Share Program
vehicles.
1.11 Common House means the Building owned by all Owners based on their percentage of
interest identified as the Common House on the Site Plan, Exhibit C.
1.12 Common Elements: means both General Common Elements and Limited Common
Elements. For the avoidance of doubt, the Common Elements do not include the Units or
any portion thereof.
(a) General Common Elements: means all those elements within the Project which
are for the use of all Unit Owners and their guests and invitees (some may be
designated as “GCE” on the floor plans or site plan). The Association may add or
delete General Common Elements by amendments to this Declaration and/or by the
method set forth in the Unit Ownership Act. The General Common Elements
include, but are not limited to, the following to the extent not within a Unit and not
otherwise designated as a Limited Common Element:
(i) the land on which the Buildings are located, except any portion thereof
included in a Unit or made a Limited Common Element by this Declaration
or amendment hereto;
(ii) The Common House;
(iii) Garden Shed and Barn;
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(iv) Association Garage Units;
(v) Bike Storage;
(vi) Work Shop;
(vii) ADU;
(viii) Greenhouses;
(ix) the foundations, columns, girders, beams, supports, main walls, roofs and
other structural components of the Buildings stairs, entrances and exits of
Buildings, and siding and other exterior surfaces of the Buildings;
(x) the sidewalks, parking, right-of-way improvements, the Grasspave2 pavers,
landscaping, paths and other improvements or fixtures on the Property;
(xi) installations of central services existing for common use of all Units within
the Building such as power, light, gas, television, telephone, sewer, and
other utilities and connections to the extent serving all Units.
(xii) public utility lines, water, sewer, electrical, solar, gas, telephone and
television lines, and similar infrastructure and facilities to the extent serving
all Units or all Units within a Building, except those utility lines that are
required pursuant to separate agreement to be maintained by the public
utility;
(xiii) the tanks, pumps, motors, fans, compressors, ducts and in general all
apparatus and installations existing for common use of all Units or of all
Units within a Building;
(xiv) any facilities and improvements constructed on the Property for operation
and maintenance of the Project or use by all Unit Owners; and
(xv) landscaping, landscape and development lighting, security lighting, Project
signage and signage lighting (if installed), other materials and
improvements separate from and outside of the Units, and other elements
necessary for or convenient to the safety, maintenance and existence of the
Project.
(b) Limited Common Elements: means those Common Elements within the Project
designated in this Declaration, site plan, or floor plans (some may be designated as
“LCE” on the floor plans or site plan) or by agreement of the Unit Owners which
are reserved for the use of a certain Unit or number of Units to the exclusion of the
other Units. Specifically, as to any given Unit, Limited Common Elements shall
include, but not be limited to, the following common elements which are outside
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the boundaries of the Unit and which are appurtenant to, affixed to or provide
service or access to the Unit:
(i) Driveways, stoops, decks, porches, fencing, terraces and patios;
(ii) Backyards;
(iii) Areas of land which are designated as a Limited Common Area on the Site
Map;
(iv) any other improvement, facility or item described in the definition of
General Common Elements to the extent the Board, reasonably determines
that such improvement, facility or item should equitably be treated a
Limited Common Element for purposes of this Declaration.
1.13 Common Expenses: means expenses of administration, maintenance, repair or
replacement of General Common Elements, expenses of administration, maintenance,
repair or replacement of those Limited Common Elements that the Board votes to treat as
General Common Elements, and all other expenses agreed upon by the Association of all
Owners, and expenses declared common by the Unit Ownership Act. Such expenses shall
include dues payable to the Association, and any reserve established by the Board to the
extent relating to the General Common Elements, the Limited Common Elements for
which the Association is responsible.
1.14 Community Agreements: means the specific rules, regulations, agreements and policies
that may be adopted by the Board from time to time for governance and management of
the Project or any portion thereof, as the same may be amended from time to time.
1.15 Construction Activity: means any site preparation, landscaping, sign erection,
construction, reconstruction, change, modification, alteration, enlargement or material
maintenance of any improvements or real property, or any physical changes in the use of
any Unit or other property or building or structure thereon, interior or exterior.
1.16 Declarant: means Bozeman Coho, LLC and its successors and assigns.
1.17 Declaration: means this document.
1.18 Design Guidelines: means any Community Agreements adopted by the Board for the
regulation and management of the Property or any portion thereof.
1.19 Driveway: means, with respect to each Building, those Limited Common Elements used
for ingress and egress between a Roadway and the Building serving one or more Units.
1.20 Eligible Holder: has the meaning given in Article 9 - Mortgagee Provisions.
1.21 Function: means any activity, function or service listed in this Declaration which is
required to be or may be undertaken or performed by the Association as well as any
activity, function or service otherwise undertaken or performed by the Association.
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1.22 Garage Unit. means the separate condominium units of the Project, each of which is a
parcel of property including and containing one space intended for garage use and with a
direct exit leading to a public street or to Common Elements leading to a public street,
whether directly or indirectly by way of an easement or private street or way connecting to
a public street. In this Declaration such Garage Units refer to those Units which are
designated in Exhibit F and shown on the Site Plan.
1.23 Garden Shed and Barn: means the Building designated as Garden Shed and Barn on the
Site Plan. This space shall be used as determined by the Members and as part of the
Community Agreement.
1.24 Good Standing: means that a Member is current on the payment of such Member’s
Assessments, is not deemed by the Board to be in violation of the Governing Documents
and is current on any other payments deemed by the Board to be due and owing to the
Association.
1.25 Governing Documents: means this Declaration, the Articles, the Bylaws, any Community
Agreements and any and all other documents necessary for the formation of the Project,
including, but not limited to, any surveys, plats, or site plans as the same may be amended,
restated or replaced from time to time.
1.26 Insurance Trustee: has the meaning given in Section 8.7.
1.27 Limited Expenses: means the expenses attributable to the construction, administration,
operation, maintenance, repair and replacement of Limited Common Elements, including
any expenses incurred by the Association, and are expenses only for owners of units within
the respective building for which the expenses are accrued, unless otherwise determined
by the Board.
1.28 Manager: means the Board, a manager, a management corporation or any other person or
group of persons retained or appointed by the Board, or by the Association, for the purpose
of conducting the day-to-day operations of the Project.
1.29 MCA: means the Montana Code Annotated 2019 and any subsequent amendments.
1.30 Percentage of Interest: means each Unit Owner’s undivided interest in the Common
Elements and such Unit Owner’s pro rata liability to the Association. The Percentage of
Interest with respect to each Unit is specified on Exhibit F attached hereto.
1.31 Permitted Household Pets: has the meaning given in Section 7.9.
1.32 Person: means any natural person, corporation, partnership, limited liability company,
association, trust, or any other legal entity.
1.33 Plans: has the meaning given in Section 2.9.
1.34 Project: means the Property and all buildings, improvements and structures thereon and
all easements, rights and appurtenances belonging thereto, which are herewith submitted
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to the Unit Ownership Act.
1.35 Property: means the real property located in Gallatin County, Montana and described on
Exhibit A-1 attached hereto, along with any property subsequently annexed or otherwise
subjected to this Declaration.
1.36 Public Record: means the office of the Clerk and Recorder of Gallatin County where land
records are recorded or filed.
1.37 Reserve Assessments: has the meaning given in Section 6.2(a)(ii).
1.38 Residential Unit(s): means the separate condominium units of the Project, each of which
is a parcel of property including and containing one or more rooms, intended for
independent residential use and with a direct exit leading to a public street or to Common
Elements leading to a public street, whether directly or indirectly by way of an easement
or private street or way connecting to a public street. In this Declaration such Units refer
to those Units which are designated in Exhibit F.
1.39 Roadway: means a street or roadway (but excluding driveways) within the Property or a
street or roadway providing primary or secondary access to the Property.
1.40 Site Plan: has the meaning given in Section 2.6.
1.41 Unit(s): means either a Garage Unit or a Residential Unit.
1.42 Unit Designation: means the combination of letters, numbers and words which identify
the designated Units.
1.43 Unit Owner or Owner: means the person owning a Unit in fee simple absolute individually
or as co-owner in any real estate tenancy relationship recognized under the laws of the
State of Montana. Each Unit has only one owner for any voting purposes described herein.
1.44 Unit Ownership Act: means and refers to the Montana Unit Ownership Act, Section 70-
23-101, et seq., MCA (2019), as amended.
1.45 Work Shop: means the Building designated as Work Shop on the Site Plan. This space
shall be used as determined by the Members and as part of the Community Agreement.
1.46 Zoning Regulation: means the regulations adopted by Gallatin County, Montana.
Article 2 - REAL ESTATE
2.1 Purpose. The purpose of this Declaration is to divide the Property into Units by submitting
the Property and those improvements that exist and to be constructed on the Property to
the condominium form of ownership and use in the manner provided by the Unit
Ownership Act.
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2.2 Real Property and Certificate of Exemption. The Property which is by this Declaration
submitted and subject to the Unit Ownership Act is legally described in Exhibit A-1. The
division of property is exempt from subdivision review as evidenced by the Certificate of
Exemption from Subdivision Review attached as Exhibit A-2.
2.3 Certificate of Subdivision Plat Approval. This Project has received a Municipal
Facilities Exemption for the real property for use of Eleven (11) Residential Buildings and
Forty-Three Residential (43) Units as recorded on _____________________ as Document
No. ________________________ in the office of the Clerk and Recorder, Gallatin County,
Montana. NOTE: The Garage Units do not have water and sewer and thus are not
part of the MFE.
2.4 Project. The Project shall be known by the name Bozeman Cohousing Condominiums.
The Certificate of Name is attached hereto as Exhibit B. The Project is established in
accordance with the Unit Ownership Act.
2.5 Access to the Project. Access to the Project from Wagon Wheel Road, referred to as
“Common Roads.” Unit Owners, by purchasing and owning Units within the Project, agree
that they will waive their right to protest the creation of a special improvement district
(SID) for the maintenance of the Common Roads.
2.6 Site Plan. The site plan of the Project showing the Buildings and Units, as well as, the
dimensions and the designation of each Unit in relation to the Property (“Site Plan”) is
attached hereto as Exhibit C.
2.7 Buildings. The Units comprising the condominium will be contained in a total of
Eleven(11) buildings, as specified in Exhibit F.
2.8 Construction Materials. The principal materials of construction of the Buildings are
described on Exhibit D attached hereto.
2.9 Floor Plans. The floor plans showing the layout of each Unit, the area of each, the
dimensions and the designation of each Unit and the location of each Unit in the Building,
the elevations of the Building and showing the common areas or Limited Common
Elements contained within or attached to the Building and the respective certificates of
floor plans are attached hereto as Exhibit E.
2.10 Boundaries of Units.
(a) Residential Unit: Each Residential Unit shall be bounded by the interior surfaces of
its perimeter walls, floors, suspended ceilings, and trim. A Residential Unit shall
include all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, paint,
finished flooring, unfinished flooring of a garage, and any other materials
constituting any part of its finished surfaces, including unit access door(s), so
described. All other portions of the walls, floors, or ceilings shall be a part of the
Common Elements. In addition, each Residential Unit shall include the following:
(a) all spaces, interior partitions, windows, window frames, interior doors, door
frames, and all other fixtures and improvements within the boundaries of the Unit,
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and (b) all outlets of utility service lines, including, but not limited to, power, light,
gas, hot and cold water, heating, refrigeration, air conditioning, and waste disposal
within the boundaries of the Residential Unit, but shall not include any part of such
lines or ducts themselves. In interpreting deeds, mortgages, deeds of trust, and other
instruments for any purpose whatsoever or in connection with any matter, the
existing physical boundaries of the Residential Unit or of a Residential Unit
reconstructed in substantial accordance with the original plans hereof shall be
conclusively presumed to be the boundaries regardless of settling, rising, or lateral
movement of the Building and regardless of variances between boundaries as shown
on the plat and those of the actual Building or Buildings.
(b) Perimetrical Boundaries of the Residential Units. The perimetrical boundaries of
the Residential Units shall be the following boundaries extended to an intersection
with the upper and lower boundaries:
(i) Exterior Building Walls. The plane formed by the centerline of the exterior
walls of the buildings except that such boundary shall be extended so as to
include within it all windows in the Residential Unit.
(ii) Interior Building Walls. The Vertical planes of the centerline of the exterior
walls between the Residential Units extended to an intersection with the
other perimetrical boundaries.
(c) Garage Unit: Each garage structure is a two-car garage. There will be two separate
Garage Units within each garage structure. Each Garage Unit shall be bounded by
the interior surfaces of its perimeter walls, floors, suspended ceilings, and trim
except for the centerline, which shall be the open air equidistant from the studs
within the two opposing walls that do not contain the garage door(s). A Garage Unit
shall include all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, paint,
unfinished or finished flooring, and any other materials constituting any part of its
finished surfaces, including garage access door(s), so described. All other portions
of the walls, floors, or ceilings shall be a part of the Common Elements. In addition,
each Garage Unit shall include the following: (a) all spaces, interior partitions,
windows, window frames, interior doors, door frames, and all other fixtures and
improvements within the boundaries of the Garage Unit, and (b) all outlets of utility
service lines, including, but not limited to, power, light and heating, within the
boundaries of the Garage Unit, but shall not include any part of such lines or ducts
themselves. In interpreting deeds, mortgages, deeds of trust, and other instruments
for any purpose whatsoever or in connection with any matter, the existing physical
boundaries of the Garage Unit or of a Garage Unit reconstructed in substantial
accordance with the original plans hereof shall be conclusively presumed to be the
boundaries regardless of settling, rising, or lateral movement of the Building and
regardless of variances between boundaries as shown on the plat and those of the
actual Building or Buildings.
(d) Perimetrical Boundaries of the Garage Units. The perimetrical boundaries of the
Garage Units shall be the following boundaries extended to an intersection with the
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upper and lower boundaries:
(i) Exterior Building Walls. The plane formed by the centerline of the exterior
walls of the buildings except that such boundary shall be extended so as to
include within it all windows in the Garage Unit.
(ii) Interior Building Walls. The Vertical planes of the centerline of the exterior
walls between the Garage Units extended to an intersection with the other
perimetrical boundaries.
2.11 Condominium Unit.
(a) Each Residential Unit, together with the appurtenant undivided interest in the
Common Elements of the Project, shall together comprise one Residential Unit,
shall be inseparable, and may be conveyed, leased, rented devised or encumbered
as a fee simple interest in a parcel of real property.
(b) Each Garage Unit, together with the appurtenant undivided interest in the Common
Elements of the Project, shall comprise one Garage Unit. Only the Owners of a
Residential Unit may own one or more Garage Units.
2.12 Ownership of Units. Each Owner shall be entitled to the exclusive ownership, use and
possessions of his/her/their Unit and the percentage of the undivided interest of each Owner
in the Common Elements as set forth in Exhibit F. Such percentage represents the Owner’s
ownership interest in the general common elements, and Owner’s liability for common
expenses.
Article 3 - EASEMENTS
3.1 Easements for Encroachments. Easements for 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 a 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. In the event a
Building or any portion thereof is destroyed and then rebuilt, the Owners agree that minor
encroachments of parts of the General Common Elements or Limited Common Elements
because of such construction shall be permitted and that an easement for such
encroachment and the maintenance and repair of the same shall and does exist.
3.2 Common Element Easements. A perpetual, nonexclusive easement and right of ingress
and egress and support through the General Common Elements is appurtenant to each Unit
for the benefit of each Owner and all the General Common Elements are subject to such
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rights. Every Owner shall have the right to use and enjoy the Limited Common Elements
appurtenant to such Owner’s Unit. The foregoing easements and rights are subject to the
limitations and restrictions set forth in this Declaration and the other Governing
Documents.
3.3 Easement for Utilities Within Units. Each Unit may have its air space penetrated by
electrical wires and lines, gas lines, wastewater lines and other utility and mechanical lines,
pipes or equipment. These lines, where they serve only one Unit shall be appurtenant to
such Unit, but where they serve more than one Unit shall be part of the Common Elements
– either limited or general depending on how many Units are being served thereby. Such
items shall be so installed and maintained so that they shall not unreasonably interfere with
the use of the Unit by the Owners of the same. A non-exclusive easement shall exist
through, over and across each Unit for the use, inspection, installation, maintenance,
replacement and repair of such utility lines for the use of all of the Owners or the Owners
being serviced by the air space being penetrated by such lines and/or equipment. After
completion of construction of build out of a Unit an easement for ingress and egress for the
purpose of such inspection, installation, maintenance, replacement or repair of such
easement rights shall only be exercised 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 could otherwise occur as a consequence of such emergency. There shall be
easements to, through and over those portions of the land, structures, buildings,
improvements and walls (including interior building walls) contained therein for the
continuing maintenance and repair of all utilities in the Building. The foregoing easements
are all permanently reserved to the Declarant, the Association and the Owners. In the event
the Board or the Manager must enter or cause to have an agent enter a Unit for such reasons
as listed above, other than emergency, The Board or Manager must provide at least one
week notice to the Owner or the Owner’s agent or lessee. Notice can be provided either in
writing, facsimile, electronic mail, or posting. Upon entering the Unit, the Board member
or Manager shall provide documentation of their entry through written notification left at
the premises of the time, date and work done in the Unit.
3.4 Easements for Public Utilities. There are hereby reserved unto the Association, and its
designees access and maintenance easements upon, across, over, and under all the General
Common Elements (provided that such access may not be across, over or under any
Building) to the extent reasonably necessary for the purpose of installing, replacing,
repairing, and maintaining security and similar systems, roads, walkways, bicycle
pathways, drainage systems, street lights, signage, wells, drainfields, and all utilities,
including, but not limited to, water, sewer, meter boxes, telephone, gas, and electricity, and
for the purpose of installing any of the foregoing within easements designated for such
purposes on recorded plats of the Property. The Board specifically reserves unto itself the
right to convey to the local water and sewer district, electric company, natural gas supplier,
or communications systems supplier easements across the General Common Elements
(provided that such easements may not be across, over or under any Building or other
structures or buildings) for ingress, egress, installation, reading, replacing, repairing, and
maintaining utility meters and boxes. The exercise of this easement shall not extend to
permitting entry into any Unit, nor shall any utilities or improvements be installed or
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relocated on the Property, except as approved by the Board.
Should any entity furnishing a service covered by the general easement herein provided
request a specific easement by separate recordable document, the Board shall have the right
to grant such easement over any portion of the Property without conflicting with the terms
hereof.
The Association has entered into an agreement with the City to provide water and sewer
services. This easement will run under special surfaces (grass pavers, stamped concrete,
etc.) that will be installed by the Declarant “Special Surface Finishes” As part of the site
plan approval process, the City required the Declarant to enter into an agreement regarding
replacement of the Special Surface Finishes. This agreement is binding on the assigns and
heirs. Therefore, if the City is required to remove these the Special Surface Finishes for
maintenance, repair and/or replacement of the City’s utilities, it is the responsibility of the
Association to replace the Special Surface Finishes once the City’s work is complete.
3.5 Grant of Easements by Association. The Board shall be empowered and obligated to
grant such easements, licenses, rights-of-entry and rights-of-way over, under and across
the Property for utility purposes, access purposes or other lawful purposes as may be
necessary for the benefit of the Condominium. The Board shall also have the power to
grant such easements through the General Common Elements for utilities that may serve
less than all Units.
3.6 Easements for Maintenance, Repair, and Replacement. The Board, and all public or
private utilities shall have such easements over, under, across and through the Property,
including all Units and Common Elements, as may be necessary to fulfill any
responsibilities of maintenance, repair, or replacements which they or any of them are
required or permitted to perform under this Declaration or Bylaws of the Association or by
law. These easements include, without any implication of limitation, the right of the
Association to obtain access at all times to meters, controls, valves, pipes, conduits, and
other Common Elements located within or to which access may be gained through any
Unit or to its appurtenant Limited Common Elements. In the event the Board and/or the
Manager must enter or cause to have an agent enter a Unit for such reasons as listed above
it shall be done in accordance with Section 3.10 below.
3.7 Site Plan or Service Easements.
(a) The Project shall be subject to all easements as shown on the Site Plan and to any
other easements of record or of use. In addition, the Project is subject to all
easements created by this Declaration. Each Owner by accepting a deed to a Unit,
agrees for themselves and their invitees and successors and assigns, to be subject
to such easements and the Community Agreements from time to time in effect
governing the use of such easement areas.
(b) The Owners hereby grant a non-exclusive perpetual easement across and over the
Project for ingress and egress to all police, sheriff, fire protection, ambulance and
similar emergency agencies or persons, now or hereafter serving the Project, to
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enter the Project in the performance of their duties, subject, however, to limitations
generally imposed by local, state and federal law.
3.8 Structural Easements and Interior Remodeling. Every portion of a Unit which
contributes to the structural support of the Building, other Units or the Common Elements
shall be burdened with an easement of structural support for the benefit of the Building,
Common Elements and other Units. Each Owner shall have the exclusive right to paint,
repair, tile wallpaper, panel, carpet, brick or otherwise maintain, refinish and decorate the
inner surfaces of the walls, ceilings, floors, windows and doors bounding his own Unit,
and the interior thereof, so long as such work does not affect the structural integrity of the
building.
3.9 Specific Written Easements. The Association may, in its sole discretion without the
necessity of consent by any interested party, prepare and record a subsequent instrument
to specifically define by legal description the easements created by or in accordance with
this Article. Nothing in this paragraph shall be construed to give Declarant the right to
create easements not otherwise created by or in accordance with this Article. The
easements provided for in this Article shall in no way adversely affect any other recorded
easement on the Property.
3.10 Right of Access to the Interior of Units. The Association shall have the irrevocable right,
to be exercised by the Board or the Manager, of access to each Unit from time to time
during reasonable working 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 for the maintenance repair or replacement
of any of the Limited Common Elements therein necessary to prevent damage to the
General or Limited Common Elements or to any Unit. It shall be the responsibility of each
Owner to provide the Association or its Manager with means of access to their Unit.
(a) 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 a Common Expense by the Association and
assessed in accordance with such designation.
(b) In the event the Board or the Manager must enter or cause to have an agent enter a
Unit for such reasons as listed above other than emergency must provide at least
one week notice to the Owner or the Owner’s agent or lessee. Notice can be
provided either in writing, facsimile, electronic mail, or posting. Upon entering the
Unit, the Board member or Manager shall provide documentation of their entry
through written notification left at the premises of the time, date and work done in
the Unit.
Article 4 - THE ASSOCIATION
4.1 Association. The Project is governed by Bozeman Cohousing Condominium Owner’s
Association, Inc. a non-profit corporation formed with the Montana Secretary of State,
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hereinafter referred to as the Association.
4.2 Board of Directors.
(a) Number and Qualifications. The business and affairs of the Association shall be
managed by a Board which will be comprised of the same number of directors as
Residential Units, which is at this time 43 Residential Units. Directors are not
required to be Members of the Association. Each Residential Unit will have one
director unless all potential directors for a Residential Unit have been removed
pursuant to the Bylaws, at which time the number of directors will be less than the
number of Residential Units.
(b) Tenure. Directors shall serve on the Board for the entirety of their Ownership
unless removed pursuant to the Bylaws.
4.3 Rights of Association. The Association, by and through its duly appointed Board of
Directors, shall have and may exercise any right or privilege given to it expressly by the
Governing Documents or reasonably implied from or reasonably necessary to effectuate
any such right or privilege. Except as otherwise specifically provided in the Governing
Documents or by law, all rights and powers of the Association may be exercised by the
Board without a vote of the Members. The powers and rights of the Association include,
but are not limited to, the right to:
(a) adopt Bylaws for the governance of the Association;
(b) make provisions for the general management, repairs and maintenance of the
General Common Elements, Limited Common Elements, and any other provisions
for the benefit of the Association. The Association in conformance with this
Declaration, has the right to treat Limited Common Elements as General Common
Elements for the purpose of funding repairs and maintenance and the right to repair
and maintain limited common elements;
(c) enter into agreements with adjacent owners’ associations and expend Association
funds for the maintenance of Common Roads, snow removal, and the storage and
removal of garbage;
(d) express authority to review, accept, condition, modify or deny all plans for all
Construction Activity on the Property;
(e) adopt Design Guidelines and/or reasonable Community Agreements for the
administration and procedures for carrying out its duties including but not limited
to the authority to require reasonable fees and deposits to be paid to the Association;
(f) make capital expenditures, incur liabilities, enter into contracts and agreements, and
provide services and functions as are necessary to affect the business of the
Association, including, but not limited to, hiring and discharging managing agents
and other employees, agents, and independent contractors;
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(g) perform any function as set forth in this Declaration, including, without limitation,
by, through or under contractual agreements, licenses, or other arrangements with
any governmental, quasi-governmental, private entity or any non-profit
organization, as may be necessary or desirable;
(h) enter any Unit in accordance with this Declaration;
(i) adopt and amend budgets for revenues, expenditures and reserves and levy and
collect Assessments from Members;
(j) pay the expenses of the Association, and provide for the use and disposition of any
insurance proceeds in the event of loss or damage;
(k) purchase insurance policies to protect the real and personal property of the
Association, including the General Common Elements, against casualty or loss and
to protect the Association, officers, directors, and Staff (when acting in their official
capacity) from liability (the extent and specific nature of coverage shall be
determined by the Board in accordance with this Declaration);
(l) provide for the indemnification of the Association’s officers and directors;
(m) borrow funds in order to pay for any expenditure or outlay authorized by the
Governing Documents, including, but not limited to, funds borrowed from
Declarant or an affiliate thereof, and to execute all such instruments evidencing
such indebtedness as may be necessary or advisable; and assign its right to future
income, including, without limitation, the right to receive Assessments, as security
for any borrowed funds; provided, however, that the Association shall not use in
excess of seventy-five percent (75%) of the Association’s total reserve funds or
pledge assets with a value in excess of seventy-five percent (75%) of the total value
of all Association assets as collateral for any borrowed funds without the
affirmative vote of a majority of the Members;
(n) pay or cause to be paid all ad valorem real estate taxes, special improvement and
other assessments (ordinary and extraordinary), ad valorem personal property
taxes, and all other taxes, duties, charges, fees and payments, if any, required to be
made to any governmental or quasi- governmental entity which shall be imposed,
assessed or levied upon, or arise in connection with, the real or personal property
owned by the Association;
(o) obtain and pay for legal, accounting and other professional and expert services;
(p) deal with agencies, officers, boards, commissions, departments, and other
governmental bodies on a local, state and federal basis to carry out the powers,
duties and responsibilities herein;
(q) institute, defend or intervene in litigation, arbitration, mediation, or an
administrative proceeding in its own name on behalf of itself on matters affecting
the Property or take such action as it deems necessary to enforce the Governing
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Documents;
(r) in its discretion, appoint Persons to generally supervise and control the business of
the Association and delegate certain powers, duties and responsibilities to such
Persons;
(s) has the power to adopt, amend, enforce and repeal Community Agreements
applicable that apply to the Project, Unit Owners and their guests and invitees.
Such Community Agreements may govern use of the Common Elements and Units,
the personal conduct of Unit Owners and their family members, guests and invitees,
and may govern construction and design criteria and aesthetic standards so as to
further the use, enjoyment and aesthetics of the Project for the Owners, including,
but not limited to, Community Agreements: to (i) prevent or reduce fire hazard; (ii)
prevent disorder and disturbances of the peace, including regulation of
Construction Activity; (iii) regulate pedestrian and vehicular traffic; (iv) regulate
household animals, the environment and environmental practices; (v) regulate
signs; (vi) regulate any use of the General Common Elements to assure fullest
enjoyment of use by the Persons entitled to enjoy and use the same; (vii) promote
the general health, safety and welfare of persons within the Property; and (viii)
protect and preserve property and property rights. Such Community Agreements
may also establish enforcement mechanisms, including penalties and monetary
fines for violation thereof. Following adoption, amendment or repeal of any
Community Agreements the Board shall provide Unit Owners with notice thereof.
Copies of all such Community Agreements and amendments thereto in effect from
time to time shall be furnished to Unit Owners upon request; and
(t) exercise all the powers that may be exercised by the Association under the Act
and/or the Unit Ownership Act.
4.4 Association Responsibilities. The Association, by and through its duly elected Board of
Directors shall have the following responsibilities:
(a) Records. The Association shall maintain its records in accordance with applicable
law and the Bylaws.
(b) Maintenance of General Common Elements. The Association shall maintain and
keep in repair the General Common Elements of the Condominium.
(c) Maintenance of Grasspave2 product. The Grasspave2 product is not supported
by the City of Bozeman. Therefore, should the City of Bozeman damage the
product while maintaining the areas that the Grasspave2 is installed, then the
Association shall repair and replace it.
(d) Maintenance of Limited Common Elements. All fixtures, utility lines 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. The Association
shall do no act or any work that will impair the structural soundness or integrity of
the Building or impair any easement. Except as the Association may determine
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pursuant to Sections (i and ii) below, the Owners that benefit from the Limited
Common Elements shall maintain and keep in repair the Limited Common
Elements of the Condominium.
(i) Ability of the Board to Treat Limited Common Elements as General
Common Elements. The Board may determine that it is in the best interests
of the Association to treat any or all of the Limited Common Elements as a
General Common Element. If the Board votes by a majority to treat any or
all Limited Common Elements as General Common Elements, then the
Board will maintain and keep in repair those Limited Common Elements
chosen to be treated as General Common Elements and the cost will be pass
onto the Owners as a whole pursuant to the Percentage of Interest.
(ii) Ability of the Board to Repair and/or Maintain Limited Common
Elements. Each Owner shall also keep all Limited Common Elements
appurtenant to his/her/their Unit in a clean and sanitary condition and in
good repair. If the Owner(s) fail to maintain or repair the Limited Common
Elements, then the Association has the right to maintain and/or repair the
Limited Common Element. All costs of repairing Limited Common
Elements on behalf of the Owners who benefit from the Limited Common
Elements, including costs of notice and attorney’s fees will be a Special
Assessment against the Owner(s)’ Unit(s).
(e) The right of the Association 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.
Article 5 - MEMBERSHIP
5.1 Regular Membership; Appurtenant Rights.
(a) Owners. Each Owner shall automatically, upon becoming the Owner of a Unit,
be a member of the Association and shall remain a member for the period of the
Owner’s ownership of the Unit. There shall be only one Membership attributable
to fee simple ownership of a Unit.
(b) Memberships Appurtenant. Membership in the Association shall be limited to
Owners. A Person may hold more than one Membership in the Association.
(i) Each Membership and the benefits and burdens relating to that
Membership shall be appurtenant to the fee simple title to the Unit held by
an Owner. The Owner shall hold the Membership appurtenant to that Unit
as set forth herein and title to and ownership of the Membership shall pass
automatically with fee simple title of a Unit, no matter how such title or
interest is acquired. Membership may not be transferred separately from
the fee simple title of a Unit.
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(ii) No such Person who is an Owner shall be entitled to opt out, resign, or
withdraw from being a Member, regardless of whether any Person uses or
does not use the Common Elements or is the beneficiary of any function
of the Association. The obligations of each Owner under this Declaration
are mandatory, including, but not limited to, the payment of ongoing
Assessments, and all obligations of each Owner set forth herein, regardless
of when specific obligations arise or become payable during the term of
any Owner’s ownership of a Unit are deemed to be an obligation incurred
and a commitment made as of the date of such Person becoming an Owner.
(c) Evidence of Membership and Registration of Mailing Address. Any Person,
upon becoming a Member, shall furnish to the Association a copy of the
instrument vesting that Person with the interest required to make such Person a
Member. Each such Member at the same time shall give a single name and address
to which notices to such Member may be sent, as well as an e-mail address and
telephone number by which that Person can be contacted. In the event of any
change in the facts reported in the original written notice, including, without
limitation, any change of ownership, the Member shall give a new written notice
to the Association containing all the information required to be contained in the
original notice. As against any Member, and any Person claiming by, through, or
under such Member, the Association may, but shall not be obligated to, for any
and all purposes, rely on the information reflected in the most recent written notice
furnished with respect to such Member. In no event will the Association have any
obligation to investigate the address or contact information of any Member.
(d) Joint Ownership; Joint and Several Liability. If a Unit Owner’s or other
person’s ownership interest in a Unit is held by more than one person or entity (in
tenancy in common, as joint tenants, or otherwise), the membership in the
Association appurtenant to such Unit shall be shared by all such persons or entities
in the same proportionate interest and by the same type of ownership as the Unit
is held, subject to reasonable Board regulation and restrictions on voting, notices,
and assessment obligations as set forth in the Bylaws or otherwise. All such
persons and entities shall be jointly and severally obligated to perform the
responsibilities of the specific Unit Owner under the Governing Documents,
including, without limitation, payment of assessments and other amounts owed
pursuant to the Governing Documents. The membership rights of a Unit Owner
that is not a natural person may be exercised by any officer, director, partner,
trustee, member, manager, or other individual designated from time to time in a
written instrument describing and certifying the authority of such person provided
to the Secretary of the Association. In a multiple interest owner situation, if more
than one person seeks to exercise the vote, the voting privilege shall be suspended.
Neither the Association nor Declarant shall have any obligation to confirm, as
among such multiple interest owners, which of the persons has the right to exercise
a vote. In the case where a Unit Owner is not a natural person, or where there are
multiple owners of a Unit, written notice shall be provided to the Secretary of the
Association stating which person has authority to act on behalf of the Unit Owner
and include that person’s name, mailing and physical address, telephone number
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and e-mail address. The Association may rely on such notice until such notice is
updated by a Unit Owner.
(e) Right to Examine Books. Every Owner and Eligible Holder shall have the right
to examine the books and records of the Association and of any Manager for the
Project by giving a written notice requesting such examination. Upon receipt of
such notice the party receiving the notice shall schedule a mutually agreeable date
and time during normal business hours for the examination which date shall not
be more than fifteen (15) days following the receipt of the notice requesting the
examination.
(f) Voting Rights of Members. On all matters to be decided by the Association,
unless excluded by this Declaration, each Owner shall have one vote per
Residential Unit owned as set forth in this Declaration. When more than one
person owns any Unit, all such persons shall be Members. The vote for such Unit
shall be exercised as the Owners among themselves determine, but in no event
shall more than the onevote be cast with respect to any Unit.
(g) Meetings. Meetings of the Membership shall be conducted in accordance with
the Bylaws.
(h) Member Responsibilities.
(i) Maintenance of Unit by Owners. An Owner shall maintain and keep in
repair the interior of his/her/their own Unit. All fixtures, utility lines 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. An
Owner shall do no act, nor any work that will impair the structural
soundness or integrity of a Building or impair any easement. An Owner
shall also keep all areas and Limited Common Elements appurtenant to his
Unit in a neat, clean and sanitary condition. No acts of alteration, repairing
or remodeling by the Owner shall impair in any way the structural integrity
of Limited Common Elements or General Common Elements.
(ii) Community Agreements. Each Member and their licensee and/or invitee
is hereby deemed to have notice of all Community Agreements adopted
by the Association, whether or not the same have been recorded, and shall
be obligated to and shall comply with and abide by such Community
Agreements, and pay such Default Assessments which shall be
enforceable in accordance with this Declaration. Any current or potential
Member, investor, lender or purchaser in relation to the Property may
request that the Association provide a copy of the Community Agreements
to such Member, potential Member, investor, lender or purchaser. Upon
the new adoption or material amendment of Community Agreements, the
Association shall provide all current Members affected by such
Community Agreements with copies of such documents or notification of
the adoption of such documents and notice as to where copies may be
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obtained. Copies of such documents may be made available at offices of
the Association or its agents or on an electronic or otherwise generally
accessible medium. Each Member is obligated to inform all licensees and
invitees of the obligations and restrictions set forth in the Governing
Documents and to cause such licensees and invitees to comply with such
obligations and restrictions; provided, however, that failure to so inform
any licensees or invitees shall not impair the enforceability of any
Governing Document.
(iii) Notice of Sale of Unit. Upon entering a contract for sale of a Unit, the
Member owning such Unit shall, within a reasonable time thereafter,
notify the Board in writing of the sale. Such notice shall include the name
and phone number or email address of the purchaser and the proposed
closing date.
Article 6 - FINANCES
6.1 Budget. The Association shall establish a budget in the following manner:
(a) Preparation. At least sixty (60) days before the beginning of each fiscal year, the
Board shall prepare a budget covering the estimated Common Expenses during
the coming year, including, without limitation, a capital contribution to establish
a reserve fund in accordance with a budget separately prepared. The Board may
create separate budgets and separate assessments for those budgets as they
determine is necessary (for example, one budget for Residential Units, one for
Garage Units and one for Reserves.)The Board shall annually prepare the reserve
budget which takes into account the number and nature of depreciable assets
owned by the Association, the expected life of each asset, and their expected repair
or replacement cost.
(b) Notices. The Board shall send a copy of the preliminary annual budget(s) and
notice of the amount of the assessments for the upcoming year to be delivered to
each Owner at least thirty (30) days prior to the beginning of the fiscal year for
which it is to be effective.
(c) Approval. The preliminary annual budget(s) and assessments shall automatically
become effective at the adjournment of the annual meeting unless disapproved at
the annual meeting by at least fifty-one percent (51%) of the Owners in the
Association.
(d) Failure to Approve Budget. If the preliminary budget(s) and assessments are
disapproved or the Board fails for any reason to determine a budget for any year,
then until such time as a budget is determined, the budget in effect for the
immediately preceding year shall continue for the next year.
6.2 Assessments. The Association shall levy assessments upon the Owners in the following
manner and for the following purposes:
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(a) Types of Assessments.
(i) Annual Assessments. The Board shall establish and levy “Annual
Assessments” in the amount that the Board estimates will be sufficient to
raise the funds needed to perform the duties of the Association during each
fiscal year.
(ii) Reserve Assessments. The Board shall establish and levy annually
“Reserve Assessments” in the amount that the Board estimates will be
sufficient to raise the funds needed to build reserves to maintain and
replace the Common Elements. This amount shall be at least 10% of the
total yearly budget, unless a lower amount is deemed sufficient by the
Board based upon an acceptable reserve study. The Board may levy
Reserve Assessments against the Units that are specific to meet the needs
of the respective unit types. By way of example but not limitation, the
Board may levy Reserve Assessments and maintain a specific line item in
the budget to reserve for the roofing needs of the Units as they were built
at the same time with the same materials. Reserve Assessments may be
collected for use by the Association for the repair and replacement of
capital expenditures, including but not limited to: insurance deductible,
roof, siding, equipment, infrastructure and other amenities related within
the Project.
(iii) Special Assessments. The Board at any time may levy a “Special
Assessment” in order to raise funds for unexpected operating or other
costs, insufficient operating or reserve funds, or such other purposes as the
Board in its discretion considers appropriate.
(iv) Specific Assessments. The Board shall have the power to specifically
assess those Units that receive benefits, items, or services that are
specifically related to those Units that are not provided to all Units within
the Project that are incurred for the benefit of those Owners for specific
items or services relating to their specific Limited Common Elements, as
determined by the Board in good faith. All such assessments shall be
“Specific Assessments.”
(v) Default Assessments. Notwithstanding anything to the contrary
contained herein, if any cost or expense of the Association is caused by (a)
the negligence or misconduct of an Owner or an Owner’s family member,
employee, agent, licensee or invitee, or a violation of any covenant or
condition of a Governing Document by an Owner or an Owner’s family
member, employee, agent, licensee or invitee, the Association may, if the
Board deems necessary or advisable, levy a default assessment against
such Owner. The Association may also, in the discretion of the Board,
levy a default assessment against any Unit to reimburse the Association
for costs incurred in bringing the Unit into compliance with the provisions
of the Governing Documents, provided the Association gives prior notice
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to the Owner and an opportunity to respond to the Board. Any such
assessment levied by the Association pursuant to this section, and each
fine, penalty, fee, or other charge imposed upon an Owner for the Owner
or an Owner’s family member, employee, agent, licensee or invitee
violation of any covenant or condition of any Governing Document, are
each referred to herein as a “Default Assessment.”
(b) Purpose.
(i) Assessments shall be made for the maintenance, repair, replacement,
insurance, management, and administration of General Common Elements
if any, utilities, reserves for contingent liabilities and other related items
and assessments for the Owner’s percentage share of any assessment from
the Community Association. Assessments for General Common Element
Expenses shall be based upon and computed by using the percentage of
interest that each Owner has in relation to the common elements.
(ii) Assessments shall also be made for the maintenance, repair, and
replacement of Limited Common Elements if any, such that the Owners
are chargeable only for the expenses relating to Limited Common
Elements serving their respective Units in accordance with the percentage
of the Unit or Units have in the Limited Common Element which serves
the Units and for which the assessment is being made. If only one Unit is
associated with the Limited Common Element, then the entire cost of such
repair maintenance or replacement shall be borne by that Unit. The Board
may choose to treat a Limited Common Element as a General Common
Element for the purpose of this section if the Board determines it is in the
best interests of the Owners to do so.
(iii) Assessments may also be made for any purpose contemplated by this
Declaration and for any purpose set out in the Unit Ownership Act.
(iv) The Reserve Assessment shall be assessed as the Board considers
appropriate to adequately meet the costs of the future repair, replacement
or additions to Common Element improvements and fixtures that the
Association is obligated to maintain and repair, but no less than every five
(5) years. Reserves for General Common Elements shall be assessed
according to the Unit’s percentage interest. Reserves for Limited Common
Elements shall be assessed to the Unit(s) to which they are appurtenant.
The Board may choose to treat a Limited Common Element as a General
Common Element if it is in the best interests of the Owners to do so.
(v) Damage to any part of a Unit resulting from maintenance, repair,
emergency repair or replacement of any of the General Common Elements
or Limited Common Elements or as a result of an emergency repair within
another Unit at the instance of the Association (other than damage caused
by a Unit Owner or a family member, guest or invitee thereof) shall be
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designated Common Expenses by the Association and assessed in
accordance with such designation.
(c) Payment of Assessments. All Assessments shall be due ten days (10) from the
date of mailing notice of such Assessments to the Owners. Any Assessment may
be payable in installments, monthly or quarterly, at the option of the Board. The
amount of the General 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 thereof. If the Owner is a corporation, limited
liability company, limited partnership, trust or similar entity then the underlying
shareholders, unitholders, beneficiaries, limited partners, etc. agreed that by
purchasing a Unit that waive all protections given by their entity and agree that
they are personally liable for any debt owed to the Association. (For example, if
the entity is a corporation, the Association may automatically pierce the corporate
veil to hold the shareholders personally liable for the debt). No Owner may
exempt himself from liability for these contributions toward the Common
Expenses by waiver of the use of enjoyment of any of the common elements or by
abandonment or lease of his Unit.
(i) Common Expenses of the Association shall be levied against the Units
on a pro rata basis based upon Percentage of Interest.
(ii) Limited Expenses shall be levied against Units as a Specific Assessment,
against the Unit Owner(s) that benefit from the use of the Limited
Common Element except in cases where the Board has determined the
Limited Common Element should be treated as a Common Element.
(iii) All monies owed the Association by an Owner, including but not limited
to judgment awards and judgment interest and costs of collection are also
Default Assessments against the Unit Owner(s)’ Unit that run with the land
and attach upon notice from the Association that the monies are due/or
upon award by the Court.
(d) Owner Liability. In a voluntary conveyance of a Unit, the grantee is jointly and
severally liable with the grantor for all unpaid charges against the latter for
grantee’s proportionate 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 therefore.
(e) Waiver of Homestead. By purchasing a Unit a Unit Owner agrees that any filed
Homestead Exemption does NOT apply to any amounts owed under the
Governing Documents, including but not limited to Assessments and all court
costs, monies, attorney’s fees and judgment interest owed to the Association as a
result of any case involving the Association where the Association is awarded
such case, including the costs of collection.
(f) Verification of Assessments Due. Upon written request, the Association or its
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Manager will furnish to a Member or such Member’s title or mortgage company
written verification of the amount of such Assessments owing and whether the
Member has paid such Assessment. The Association or its agent may charge a
reasonable fee for the verification of assessments due.
(g) Restrictions on Assessments and Expenditures. The Board may not impose an
Annual Assessment on any Unit which is more than twenty percent (20%) greater
than the Annual Assessment for the immediate preceding fiscal year, or levy
Special Assessments which in the aggregate exceed twenty percent (20%) of the
total budget of the Association for that fiscal year, without the vote and/or written
consent of a majority of the aggregate voting interests of the Association. In
addition, with the exception of expenditures required for emergency situations or
expenditures that were included in the Association’s budget for the fiscal year, no
single expenditure or debt in excess of Twenty Thousand Dollars and Zero Cents
($20,000.) may be made or incurred by the Association in a fiscal year without the
prior approval of the Board. The limitation on single expenditures may be
modified by the Board without amendment to this Declaration.
(h) Unpaid Assessment. All assessments that are not paid within thirty (30) days
from the date they are due and payable become delinquent and are subject to
interest charges to be determined by the Board and penalty charges equal to ten
percent (10%) of the delinquent Assessment. The Board or Manager shall have
the responsibility of taking prompt action to collect any unpaid Assessments that
become delinquent, such action shall be any remedy available at law to the
Association including but not limited to the rights set forth in this Declaration.
However, as the obligation to pay Assessments is a covenant that runs with the
land, the Association is not required to lien the Unit in order to recover past due
amount(s), regardless of any sale of the Unit. Suit to recover a money judgment
for unpaid Common Expenses and Limited Expenses may be maintainable
without foreclosing or waiving any lien securing the same.
(i) Unpaid Assessments - Mortgagee. Where a lienholder or other purchaser of a
Unit obtains title to the Unit as a result of foreclosure of the first mortgage or trust
indenture, such acquirer of title, his successors and assigns, shall not be liable for
the share of assessments by the Association chargeable to such Unit which became
due prior to the acquisition of title to such Unit by such acquirer. Such unpaid
assessments shall be deemed to be Common Expenses collectable from all of the
Units including such acquirer and such acquirer’s successors and assigns.
(j) Enforcement For Failure to Pay Assessments.
(i) Liens. All sums assessed but unpaid for the share of General Common
Expenses and Limited Common Expenses chargeable to any Unit shall
constitute an automatic 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
or a first trust indenture of record, including all unpaid obligatory sums as
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may be provided by such encumbrance. Since the obligation to pay
Assessments is a covenant that runs with the land, the Association is not
required to lien the Unit in order to recover past due amount(s), regardless
of any sale of the Unit. Should the Association desire, the Manager or
Board’s agent may prepare a written notice of lien assessment setting forth
the amount of such unpaid indebtedness, the amount of accrued interest
and penalties thereon, the name of the Owner of the Unit and the legal
description of the Unit. Such notice may be signed and verified by one of
the officers of the Association or by the Manager, or his authorized agent,
and it may be recorded in the office of the Clerk and Recorder of Gallatin
County, Montana. Regardless of the filing date, the assessment lien
attaches from the date the Assessment is first levied.
(ii) Foreclosure and Bidding at Foreclosure. Such lien may be enforced by
the foreclosure of the defaulting Owner’s Unit by the Association in the
manner provided in the Act and as provide by the foreclosure of a
mortgage on real property upon the recording of a notice of a claim thereof.
In any such foreclosure, the Owner shall be required to pay a reasonable
rental for the Unit and the Plaintiff in such foreclosure actions shall be
entitled to the appointment of a receiver to collect the same. Suit to recover
a money judgment for unpaid Common Expenses shall be maintainable
without foreclosure or waiving the lien securing the same. In any such
proceeding the Owner may 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. The
Board on behalf of the other Owners shall have the power to bid on the
Unit at a foreclosure or other legal sale and to acquire and hold, lease,
mortgage and convey or otherwise deal with the same. Any lienholder
holding a lien on a Unit may pay, but shall not be required to pay, any
unpaid general Common Expenses, or Limited Common 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
rank as the lien of his encumbrance without the necessity of having to file
notice or claim of such lien.
Article 7 - USE RESTRICTIONS
All of the Units and the Common Elements shall be held, used and enjoyed subject to the
Governing Documents, Zoning Regulations and the following limitations and restrictions:
7.1 Common Elements. Each Owner may use the General Common Elements and Limited
Common Elements in accordance with this Declaration and the other Governing
Documents for the purposes for which they are intended, so long as they do not hinder or
encroach upon the lawful rights of other Unit Owners.
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(a) Except as otherwise set forth in this Declaration, there shall be no obstruction of
the Common Elements nor shall anything be stored in or on the Common Elements
without the prior consent of the Association. “Obstruction of the Common
Elements” includes, but is not limited to, parking and storage of any vehicle,
machinery, equipment, campers, trailers, boats, motor homes, recreational vehicles,
or other personal property upon landscaped, paved and undeveloped portions of the
Property. Any item identified by the Association as an obstruction of Common
Elements may be removed from the Property and disposed of without liability to
the Owners at the Owner’s expense. The Board shall adopt Community
Agreements governing this removal process. Each Owner shall be obligated to
maintain and keep in good order and repair the interior of their Unit. No Unit or
parking space (designated or common) shall be used for the storage of any
inoperable vehicle, machinery or equipment, or other personal property of any
quality in excess of the immediate needs and personal use of the Owner of a Unit
or the occupants thereof. Recreational equipment or vehicles, including, but not
limited to, campers, trailers, motorboats, drift boats, rafts, motor homes,
snowmobiles and four wheelers shall be allowed on the Property, but only pursuant
to the rules established in the Community Agreement. The Directors have the right
to ban any and all Recreational Vehicles on the Property by doing so in the
Community Agreement.
(b) Nothing shall be done in , on or to the Common Elements which will impair the
structural integrity of a Building or any Common Element or which would
structurally change a Building or Common Element, except as is otherwise
provided herein and in accordance with the Governing Documents.
(c) Except as otherwise set forth in this Declaration or as approved by the Board or
Declarant, nothing shall be altered or constructed in or removed from the Common
Elements.
7.2 Use. The Residential Units shall be used only for residential occupancy by Unit Owners,
their licensees, guests and invitees, consistent with the restrictions contained herein and in
the other Governing Documents and may not be used for any other purposes whatsoever.
Garage Units shall be used only as a garage by Unit Owners, their licensees, guests and
invitees, consistent with the restriction contained herein and in the other Governing
Documents and may not be used for any other purposes whatsoever.
7.3 Alterations.
(a) Exterior Alterations. No Owner may change, alter or remodel the exterior of his
Unit without the prior written approval of the Board. It is anticipated that Owners
may improve the areas designated as Backyards on the Site Plan by installing
improvements like decks, patios and fencing. All improvements must be submitted
to the Board for approval before engaging in any Construction Activity. The Board
may adopt guidelines regarding Backyard improvements, including but not limited
to location, size, materials, notification and approval of neighbors and an approval
process in the Community Agreement. Should a fence be erected, the Owner must
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mow and otherwise maintain the landscape that is fenced.
(b) Interior Alterations and Modifications by Owner. The interior plan of the Unit
may be changed by its Owner, with the exception of the bearing walls which may
not be moved, although no Units may be subdivided. Prior to such alterations,
however, the Owner(s) of the unit to be altered shall give at least thirty (30) days
notice to the Association of the intent to alter the Unit, together with all necessary
information to conclusively establish that such alteration shall not impair the
structural integrity or any of the Common Elements of the Building. No change in
the boundaries of the Units shall encroach upon the boundaries of the Common
Elements, except by amendment to this Declaration. Altered boundary walls must
be equal to the quality of design and construction of the existing boundary walls.
A change in the boundaries between Units shall be set forth in an amendment to
this Declaration. In addition, to comply with the provisions of Article 13 below,
such an amendment must further set forth and contain plans for the Units
concerned, showing the Units after the change in boundaries, which shall be
attached to the amendment as exhibits. 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 elements affected, together with words of conveyance
in the amendment conveying interests acquired in the Units or Common Elements
by such change. The amendment shall also be approved by the Board and signed
and acknowledged by all lienholders and mortgagees of the Units concerned.
(c) Change in Unit Boundaries. No change in the boundaries of existing Units shall
encroach upon the boundaries of the Common Elements or other Units except by
amendment to this Declaration. Any such change will be set forth in an amendment
showing the revised plans of the Unit(s) which amendment shall be approved,
signed and acknowledged by the Association, the Owner(s) of the applicable
Unit(s) and all lien holders and mortgagees of the Units concerned, to the extent
required by the Unit Ownership Act. Boundary walls must be equal in quality of
design and construction to the existing boundary walls.
(d) Load Bearing Walls. Notwithstanding any rights to remodel the Units, load
bearing walls may not be moved or structurally altered.
(e) Liens for Alterations or Modifications. Labor performed and materials furnished
and incorporated into a Unit with the consent of or at the request of the Unit Owner,
or such Unit Owner’s agent, contractor or subcontractor, may be the basis for the
filing of a lien against the Unit or the Unit Owner consenting to or requesting the
same. Each Unit Owner and any other person having an ownership interest in a
Unit shall indemnify and hold harmless each of the other Owners against any lien
against the Unit or against the General Common Elements or Limited Common
Elements for construction performed or for labor, materials, services or other
products incorporated in the applicable Unit at such Owner’s or such other person’s
request.
7.4 Leasing.
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(i) The leasing of Residential Units is subject to the Montana Human Rights Act and
all the provisions of the applicable Gallatin County Zoning and applicable codes.
Residential Units may be leased according to the conditions set forth in this Article
and the rules adopted within the Community Agreement.
(ii) “Lease” is defined as allowing a person(s) to occupy all or any part of a Residential
Unit for a monetary consideration or its equivalent. Nothing herein shall preclude
a Unit Owner from retaining a live-in health care provider.
(iii) Lease Term is the length of time of the Lease (for example, a two-day Lease or a
one year Lease). Lease Term restrictions, limits on the number of Units allowed to
be rented, and other rules regarding Leasing may be adopted by the Board and
recorded in the Community Agreement.
(iv) Owners may rent or leaseve theirre Garage Units only to those who are renting the
Garage Unit Owner’s Residential Unit
(v) The Association is not responsible for Leases negotiated by any of its members, nor
is it responsible for its members’ advertisements seeking Lessees. It is the
responsibility of individual owner/lessors to comply with local, state, and federal
laws relative to the leasing process.
(vi) In the event a lessee, house sitter, and/caretaker fails to comply with the Bylaws,
Covenants, Community Agreements, or becomes a public nuisance, the
Association, after notification to the Owner, may initiate action against the Owner’s
offending Lessee or occupant. The Association is specifically granted the power to
step into the shoes of the Owner to bring an eviction action against the Lessee/house
sitter/caretaker for breach of the Lease agreement. This shall in no way limit the
Association’s other legal remedies. Any and all proceedings shall be taken in
accordance with Bozeman Cohousing Condominium Owner’s Association rules,
policies, regulations, covenants and declarations. The prevailing party in such
proceedings shall be entitled to an award of reasonable attorney’s fee, cost of
collection of the judgment and related costs.
(vii) Owners may rent or lease their Residential Units to others for residential purposes.
The Owner shall have a written lease with their lessee that complies with the
governing laws of Montana, including remitting applicable taxes to the State of
Montana and the City of Bozeman and shall reference compliance by the lessee
with this Declaration, Bylaws, and Community Agreements as adopted and
subsequently amended. Such written lease shall include a copy of the Community
Agreements. Owners shall be responsible for any violation by their lessees of the
Governing Documents.
7.5 Restriction on Number of Occupants per Unit. All Residential Units may be used only
for residential dwelling purposes and typical residential activities. No portion of the
Property or Residential Unit shall be used for living or sleeping purposes other than rooms
designed for living or sleeping in a Unit. Occupancy of each Unit shall be limited to two
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persons per designated bedrooms in the Unit (as those bedrooms are labeled and depicted
on the floor plans attached as Exhibit E), except that this restriction shall not be applied to
preclude occupancy of a Residential Unit by a family consisting of two persons and one or
more children under the age of 18 for whom either or both of such persons are the parent,
legal guardian or designee authorized in writing by the child’s parent or legal custodian to
care for the child. For purposes of this Section, “occupancy” means staying overnight in a
Unit. Vehicles parked in excess of the limit set in the Community Agreements or in areas
not permitted under the Community Agreements shall be towed at their owners’ expense.
Garage Units may not be used for occupancy, only for incidental residential purposes.
7.6 Restriction on the Number of Units Owned by One Owner. Any single Owner may not
own more than ten percent (10%) of the total number of Residential Units. This restriction
does not apply to the Declarant.
7.7 Home Occupation. Notwithstanding anything to the contrary contained in this Section, a
gainful home occupation, profession, trade or other non-residential use will be a
permissible use of a Unit, so long as: (i) such use is conducted in compliance with the
applicable Zoning Regulations and is not prohibited by law, (ii) such use is not restricted
by this Declaration, (iii) such use is carried on entirely within a Unit and is secondary and
incidental to its use as a residence, (iv) there is no generation of pedestrian or vehicular
traffic beyond that customary or incidental to residential use of the Unit, (v) there is no use
of commercial vehicles for deliveries to or from the premises, (vi) there is no on-premises
sales of products, (vii) there is no external evidence of any such activity being conducted,
including, but not limited to, no signs or structures advertising the occupation and no
excessive or unsightly storage of materials or supplies, and (viii) the home occupation does
not employ any non-resident of the Unit, nor does it attract any non-resident customers.
For guidance, the following uses are examples of potentially permissible home
occupations: the making of clothing; the giving of music lessons; a sole practitioner
professional practice; service or product providers who maintain a telephone and office
within the residence but the services and products are not provided or sold from the Unit;
the pursuit of artistic endeavors, provided that the products are not marketed and sold from
the Unit, and no kilns or foundries are used in the Unit.
7.8 Activities.
(a) Nothing shall be done or kept in any Unit or in the Common Elements which will
increase the rate of insurance on the Buildings or contents thereof, without the prior
written consent of the Association. No 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 Buildings, or contents thereof, or which would be in violation of
any law, this Declaration, or the Association Bylaws. No waste will be permitted
in the Common Elements.
(b) No nuisances shall be allowed upon the Property, nor shall any use or practice be
allowed which is a source of annoyance to the Owners, or which interferes with the
peaceful possession and proper use of the property by its Owners. No immoral,
improper, offensive or unlawful use shall be made of the property, nor any part
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thereof, and all valid laws, zoning ordinances and regulations or all governmental
bodies having jurisdiction thereof shall be observed.
(c) 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.
(d) Nothing shall be altered or constructed in or removed from the Common Elements,
except upon the written consent of the Association.
(e) Use by the Owners of the Units in the Project shall at all times be in compliance
with all of the laws of the State of Montana. Such compliance shall also include
and extend to any repair, remodeling or refurbishing of the units.
7.9 Animals Living in a Unit. No animals shall be kept, raised, or bred in any Unit.
Notwithstanding the foregoing, a reasonable number of birds, dogs, cats, tortoises or other
customary household pets may be brought or kept in a Residential Unit (“Permitted
Household Pets”) as determined by the Board and defined in the Community Agreements.
Permitted Household Pets shall not be kept, bred or maintained for any commercial
purpose, nor in unreasonable quantities nor in violation of any other provision of this
Declaration. No Permitted Household Pet shall be permitted to harass any wildlife.
Permitted Household Pets are not to be kept outside of the Residential Unit, inside a Garage
Unit or chained up. Any Permitted Household Pet that is on the Property shall be
accompanied by the Unit Owner, or their guest or invitee, and kept under control at all
times. Unit Owners are responsible for damage and waste caused by any Permitted
Household Pet associated with a Unit. The Board may establish such other reasonable
Community Agreements (including but not limited to the number of Permitted Household
Pets and the requirement to charge pet deposits) concerning Permitted Household Pets and
other animals as it deems necessary. Any Unit Owner who causes any animal to be brought
or kept on the Property shall indemnify and hold harmless the Association from any loss,
damage or liability that the Association may sustain as the result of the presence of such
animal on the Property. Nothing in this Section shall be construed to limit or prohibit
therapy or service animals.
7.10 Animals Allowed to Live Outside of a Unit. The Property is unique as the raising of
certain Livestock and Poultry is a grandfathered use. Those grandfathered Livestock and
Poultry (including but not limited to Goats, Chickens and Ducks) are allowed. The
Association shall make rules regarding the Livestock and Poultry, including but not limited
to numbers, gender, care and waste removal and designate areas where the Livestock may
be maintained on the Property in the Community Agreement.
7.11 Aesthetics. The Common Elements (including Limited Common Elements appurtenant to
the Units) shall not be used for storage of supplies, recreational equipment, materials,
personal property or trash or refuse of any kind, except as provided in duly adopted
Community Agreements. No unsightly conditions shall be maintained on the patio, porch,
terrace or deck of any Unit or in any other area that is visible from the exterior of the Unit
and only furniture and equipment consistent with the normal and reasonable use of such
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areas shall be permitted to remain there. During seasons when not reasonably in use, such
furniture and equipment may be neatly covered and stored on the patio, porch, terrace, or
deck of a Unit. The Board may adopt Community Agreements from time to time
addressing the exterior appearance of Units and Buildings and the use of porches, decks,
balconies, terraces and patios. In general, no activity shall be carried on nor condition
maintained by a Unit Owner, either in a Unit or upon the Common Elements, which is
detrimental to the appearance of the Project.
7.12 Trash. No trash, waste, garbage, litter, junk, refuse, or unused items of any kind shall be
kept, stored, thrown, dumped, allowed to accumulate, left or burned on any portion of the
Property. No incinerator or other device for burning of trash or garbage shall be installed
or used. Each Member shall store household trash within his, her, or its Unit and/or the
appurtenant garage, and shall dispose of their trash at the location(s) designated by the
Association. At no time should trash be stored outdoors.
7.13 Advertising and Signage. 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 . No
signs, flags or other advertising devices of any kind shall be displayed which are visible
from the exterior of a Unit or on the Common Elements, including, but not limited to, any
real estate sign, “for rent” sign, without written permission from the Board.
7.14 Parking.
(a) No vehicles may be stored anywhere on the Property except in Garage Units,
garages, unassigned parking and guest parking spots. However, if a vehicle is
parked in a driveway, it cannot be parked in such a way that it impedes the existing
sidewalk. The Board may adopt Community Agreements regulating parking. The
Board has the authority to tow any vehicle that violates the Community
Agreements.
(b) Emergency Access Fire Lane (Fire Lane). A portion of the Common Roads is a
Fire Lane. Parking is prohibited along the Fire Lane. Parking within the Fire Lane
may result in immediate towing. Because of the nature of the fire lane, notice
regarding the violating is not necessary. The Board may adopt Community
Agreements regulating fines, towing and other matters within the Fire Lane.
7.15 Lights. Except as otherwise regulated in the Zoning Regulations or Governing
Documents, the Board may adopt Community Agreements regulating exterior lighting or
seasonal or holiday lighting.
7.16 Marijuana and Smoking. No part of the Property may be used for the growing of, storage
of, sale, dispensing, or other transfer of marijuana (medical or recreational) for any
purpose, including, but not limited to, marijuana which is grown, harvested, and distributed
pursuant to any law that authorizes or licenses any of the foregoing activities. The
Association may establish rules in the Community Agreement regarding Smoking outside
of a Unit.
7.17 Satellite Dishes/Antennas. No external antennas are allowed. Satellite dishes up to
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eighteen inches (18”) are allowed. An Owner shall use his best efforts to shield satellite
dishes from ground level view and shall integrate such dish into the overall roof design (if
roof mounted) or external siding. Owners shall receive approval from the Board prior to
the placement of any satellite dish. Association approval will not be unreasonably
withheld, but is required to make sure the placement of the satellite dish complies with its
Community Agreements and to make sure that placement does not violate the health,
safety, and welfare of any other Owner. Any damage to the Common Elements will be paid
for by the Unit Owner.
7.18 Handicapped Rights. Subject to the review rights of the Association and applicable law,
each Owner shall have the right to modify his Unit and the route to his Unit (as applicable
and necessary) leading to the entrance of his Unit, at his sole cost and expense, in order to
facilitate access by Persons who are blind, visually handicapped, deaf or physically
disabled, or to alter conditions which could be hazardous to such Persons.
7.19 Water & Sewer System. All Residential Units shall be served by the water and sewer
departments of the City of Bozeman Montana, or their successors and assigns. All Owners
and other persons having an ownership interest in a Residential Unit shall be obligated to
pay the required water and wastewater fees for those services. Failure to pay the fees for
services may result in services being shut off to the Residential Unit.
7.20 Car Sharing Program. The Car Sharing Program was approved pursuant to the Bozeman
City Administrative Policy No 2017-01, currently Section 38.25.040.A.1.b(3) of the
Bozeman Municipal Code. The Car Sharing Program requires that the Association provide
three (3) shared vehicles.
(a) The Car Share Program means a community program where vehicles must be
available to the Members 24 hours and 7 days a week on an incremental basis of
less than one day to its Members and which does not exceed one day of use and
where the Association may charge its Members for time/miles.
(b) Each year, prior to December 31st, the Board must report to the Bozeman City
Director of Community Development regarding the use of the car share program.
(c) The Association must provide the Car Share Program vehicles, automobile liability
insurance for the vehicles and set up and maintain an advance reservation system
for the Car Sharing Program.
(d) The Board has the authority to amend this section for the purpose of compliance if
City amends the Car Sharing Code and this section no longer complies with the
new Code.
(e) Termination. The Car Share Program may not be terminated unless the following
conditions are met:
(i) The Members must amend this section to terminate the Car Sharing
Program pursuant to the amendment language in this Declaration.
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(ii) Prior to the vote to terminate, the Director of Community Development (or
assign) must approve of the termination pursuant to the current Car Sharing
Program Code.
Article 8 - INSURANCE
8.1 Association Policies. All insurance policies upon the Common Elements and the Units
shall be purchased by the Association and shall be insured by an insurance company
authorized to do business in Montana.
(a) Named Insured – Association Insurance. The named insured under all policies
purchased by the Association shall be the Association individually as agent for the
Unit Owners. However, the property insurance maintained by the Association shall
include, where so required, each Unit Owner and their lenders or mortgagees as
additional insureds as their interests may appear, with standard mortgagee clause
in favor of each listed mortgagee, subject however, to loss payment and other
provisions as are set forth by these documents. Such property insurance 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.
(b) Copies to Owners. Upon written request by a Unit Owner, the Association shall
furnish one copy of each insurance policy and of all endorsements to such Unit
Owner. The Association shall also provide, upon written request, certificates of
insurance evidencing property and liability insurance to each Unit Owner and/or
their lender/mortgagee where required.
8.2 Coverage. The Association shall obtain and continue in effect the following types of
insurance, if reasonably available, or if not reasonably available, the most nearly equivalent
coverages as are reasonably available (as determined by the Board):
Bare Walls.
(a) Property Insurance. All Units and Buildings, including the Common Elements
and such portions of the Units as are for insurance purposes normally deemed to
constitute part of the Common Elements and such other improvements to land as
may be included in the Common Elements and where such improvements are
reasonably insurable under a property policy, shall be fully insured to an amount
equal to the full replacement cost thereof with all such insurance to be based on
current replacement cost value, as determined annually by the Board, but subject
to such deductible clauses as are required in order to obtain and maintain coverage
at reasonable costs, and which coverage shall be increased by the Board as may be
necessary to provide that the insurance proceeds will be sufficient to cover
replacement, repairs or reconstruction. Such coverage for the Units shall be
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pursuant to so called “bare walls” property insurance policies (except as itemized
below). Such coverage shall afford protection against the following:
(i) loss or damage by fire and other hazards typically covered by a
standard special cause of loss property policy form or its equivalent; and
(ii) specifically, such other perils, including flood and earthquake, as
from time to time may be customarily covered with respect to buildings
similar in construction, location and use as the Buildings, if the Association
so desires, in amounts to be determined by the Board; and
(iii) the policies shall cover the Units as initially installed in accordance with
Declarant’s original plans and specifications or a replacement of like kind
and quality, such property to include, but not be limited to, the
building/structure, air-handling equipment for space cooling and heating,
service equipment such as dishwasher, disposal, laundry, fireplaces,
refrigerator, stove, oven, interior fixtures such as electrical and plumbing
fixtures, installed floor coverings, inside paint and other wall finishing, each
of which become part of the building, regardless of whether such items are
included within the definition of Common Elements. Alterations,
betterments or improvements added by or at the request of Owners after
initial construction and installation of the Unit which are greater than Ten
Thousand Dollars and Zero Cents ($10,000.00) in value shall not be
automatically covered by the Association master property insurance
policies unless such alterations, betterments and improvements are true
replacements of like kind and quality to that of the initial installation and
any alterations, betterments and improvements beyond that must be
specifically presented to and accepted in writing by the Association (as
determined by the Board) in order to be added to the Association policy.
Prior to any such acceptance by the Association, the Owner shall be fully
responsible for such alterations, betterments and improvements and all
related insurance. In addition, the Association’s property policy shall not
include insurance coverage for any Unit Owner’s personal property,
furnishings and/or contents and none of the Association, the Board, the
Manager or Declarant shall have any responsibility or liability with respect
to such items.
(iv) During any period when any repair or reconstruction of a Building or Unit
is taking place, and to the extent such coverage is not included in the above
required property insurance policy, a Builders Risk policy shall be
maintained for the completed value of the Building or Unit with coverages
equivalent to those included in the paragraph above.
(v) All property insurance policies carried by the Association shall provide for
waivers of subrogation of claims against the Unit Owners and occupants of
any Unit.
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(b) Workers Compensation. Workers compensation as required by law and
employer’s liability insurance with respect to officers and employees of the
Association, if applicable.
(c) Director’s and Officer’s Liability. Unless otherwise determined by the Board, a
directors and officers liability insurance policy with a limit of not less than Three
Hundred Thousand Dollars and Zero Cents ($300,000.00) (or such higher limit as
may be determined by the Board) to insure against liability for actions taken by
individuals in their capacity as officers or directors of the Association.
(d) General Liability. Commercial general liability insurance on an occurrence form
covering bodily injury, including death, and property damage with a limit of not
less than One Million Dollars and Zero Cents ($1,000,000.00) per occurrence and
Two Million Dollars and Zero Cents ($2,000,000.00) in the aggregate and including
coverage for personal injury, products and completed operations and contractual
liability. Such insurance shall cover and indemnify the Association, the Board, the
Manager, if any, and each director, officer and employee of the foregoing against
liability for all tort claims arising out of or relating to the Association’s ownership,
operation, use and maintenance of the Project; and such policy may include, where
available, the Unit Owners as additional insureds; provided, however, that such
insurance is not intended to contribute to or be in lieu of any individual Unit
Owner’s liability policies required to be carried by each Unit Owner as stipulated
below and under which each Unit Owner’s liability insurance shall be primary for
each respective Unit Owner.
(e) Fidelity Bond. Fidelity and crime insurance with a limit of Three Hundred
Thousand Dollars and Zero Cents ($300,000.00) or such other limit as may be
determined by the Board, covering officers and employees of the Association who
handle or are responsible for its funds, if applicable.
(f) Other Insurance. Such other insurance as the Board shall determine from time to
time to be desirable and as may be required by Federal and State laws.
(g) Insurance Changes. If the Board determines that it is not in the best interest of
the Association for the Association to maintain property insurance on the Units,
due to cost or otherwise, the Board may amend this Declaration to reduce or
eliminate the Association’s obligation to maintain such insurance and to require
each Unit Owner to maintain property insurance on such Unit Owner’s Unit for full
replacement value. Such amendment may include such additional requirements
and limitations relating to such insurance as the Board deems reasonable and may
include provisions addressing use of insurance proceeds and repair or
reconstruction in the event damage to or destruction of a Unit. The Board may
cause such amendment to be prepared and recorded without the consent of the Unit
Owners; provided, however, notice shall be provided to each Unit Owner a
reasonable time, not to be less than forty-five (45) days, in advance of such change
in order to allow each Unit Owner time to obtain such newly required property
insurance.
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8.3 Claims Against the Association’s Insurance Policies. Unless otherwise provided in this
Declaration or the Bylaws, the Board may adopt a resolution that:
(a) Prescribes a procedure for processing insurance claims. The procedure may require
that all claims against the Association’s insurance policy be processed through and
coordinated by the Board or the Manager, if authorized by the Board.
(b) Assigns the responsibility for payment of charges for handling claims, including
any charges by a Manager.
8.4 Premiums and Deductibles. Premiums upon insurance policies obtained by the
Association shall be paid by the Association as a Common Expense, except that the amount
of increase in the premium that is incurred or occasioned by the negligence, willful
misconduct, occupancy, or abandonment of a Unit or its appurtenances or of the Common
Elements by a Unit Owner (or a Unit Owner’s invitees or guests) shall be assessed against
that Owner or any other person having an ownership interest in the Unit. Any unpaid
amounts shall be treated as an unpaid assessment in accordance with this Declaration. 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 lienholder listed in the roster of lienholders if
requested in writing by such lienholder. In the event of an insured loss, the amount of any
deductible paid in connection therewith shall, in the discretion of the Board, either (a) be
treated in the same manner as the premiums for the applicable coverage, (b) be assessed to
one or more Unit Owners or other persons having an ownership interest in the applicable
Unit(s) as such loss circumstances may equitably warrant, or (c) be assessed to a specific
Unit Owner or other person having an ownership interest in the applicable Unit(s) if the
loss resulted from the negligence or willful misconduct of a Unit Owner or such other
person (or a Unit Owner’s or such other person’s family, invitees or guests). The Board is
authorized to collect as part of the Common Expense an amount to fund a reserve equal to
the deductible for each insurance policy maintained by the Association. The intent is to
therefore, reduce the annual premium for said policies by allowing for a higher deductible.
8.5 Policy Requirements. From time to time, the Association shall arrange for a review of
the sufficiency of its insurance coverage by one or more qualified persons, at least one of
whom must be familiar with insurable replacement costs in Gallatin County, Montana. The
policies may contain a reasonable deductible. All insurance coverage obtained by the
Board shall (if reasonably available):
(a) Be written with a company authorized to do business in Montana;
(b) Be written in the name of the Association as trustee for the benefitted parties.
Policies on the Condominium shall be for the benefit of the Association and its
Owners;
(c) Not be brought into contribution with insurance purchased by Owners, occupants
or their mortgagees individually;
(d) Contain an inflation guard endorsement;
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(e) Include an agreed amount endorsement, if the policy contains a co-insurance
clause;
(f) Provide that each Owner is an insured person under the policy with respect to
liability arising out of such Owner’s interest as a member of the Association in the
Condominium (provided, this provision shall not be construed as giving an Owner
any interest in the Condominium other than that of an Owner);
(g) Include an endorsement precluding cancellation, invalidation, suspension, or non-
renewal by the insurer on account of any act or omission of one or more Owners,
or on account of any curable defect or violation of any Owner without prior written
demand to the Association to cure the defect or violation and allowance of a
reasonable time to cure; and
(h) Include an endorsement precluding cancellation, invalidation, or condition to
recovery under the policy on account of any act or omission of any one or more
individual Owners, unless such Owner is acting with the scope of its authority on
behalf of the Association.
8.6 Waiver of Subrogation and Endorsements. In addition, the Board shall use reasonable
efforts to secure insurance policies which name the Owners, collectively, as additional
insureds for claims arising in connection with the ownership, existence, use or management
of the Condominium and provide:
(a) A waiver of subrogation as to any claims against the Association’s Board, staff,
officers, and any manager, the Owners and their invitees;
(b) A waiver of the insurer’s rights to repair and reconstruct instead of paying cash;
(c) An endorsement excluding Owners’ individual policies from consideration under
any “other insurance” clause;
(d) An endorsement requiring at least thirty (30) days’ prior written notice to the
Association of any cancellation, substantial modification, or non-renewal;
(e) A cross-liability endorsement that provides cross-liability coverage; and
(f) A provision vesting in the Board exclusive authority to adjust losses; provided
however, no Mortgagee having any interest in such losses may be prohibited from
participating in the settlement negotiations, if any related to the loss.
8.7 Insurance Trustee. The Board shall have the exclusive authority to make a claim and
adjust a loss under policies purchased by the Association. Upon such election being made
by the Board, the Board 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, 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
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Trustee shall be to receive such proceeds as are paid and hold the same in trust for the
purposes elsewhere stated in this Declaration and for the benefit of the Unit Owners and
their mortgagees in the following shares, but which shares need not be set forth in the
records of the Insurance Trustee.
(a) Unit Owners. Where all Units are destroyed, an undivided share for each Unit
Owner, such share being the same as the Percentage of Interest appurtenant to each
Unit. In the event less than all Units are damaged or destroyed, then such proceeds
shall be held only for the Owner(s) of the damaged or destroyed Unit(s) to the extent
of the repair costs of the damage or in the event of destruction, to the extent of the
fair market value of the Unit before the destruction. In the event Common Elements
are damaged are destroyed, then the proceeds with respect to such Common
Elements shall be held for the Owners in accordance with their interests in such
Common Elements.
(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 may 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 a Unit Owner and
mortgagee pursuant to the provisions of this Declaration.
8.8 Unit Owners’ Insurance. Each Unit Owner shall procure and maintain, and shall provide
the Board upon request with a certificate of insurance showing that the Unit Owner has in
full force and effect (provided that the Board shall have no obligation to request such
certificates or to monitor Unit Owner insurance, and none of the Association, the Board or
Declarant shall have any liability with respect thereto), the insurance itemized below,
which shall be maintained on a primary basis, and the cost of which shall be the sole and
exclusive responsibility of the Unit Owner:
(a) Property insurance for the Unit that provides coverage for what is not covered by
the policy maintained by the Association as referenced above.
(b) Liability insurance on an occurrence form against claims for bodily injury, death or
property damage occurring on, in or about the Unit and insuring the Unit Owner’s
liability with a limit of not less than One Million Dollars and Zero Cents
($1,000,000.00).
Each Unit Owner shall have the right to carry other insurance for such Unit Owner’s
own benefit. All policies carried by the Unit Owners (a) shall contain waivers of
subrogation of claims against the Association, its officers and directors; and (b)
shall not adversely affect or diminish any liability under any insurance obtained by
the Association. Each Unit Owner may seek to add Deductible Assessment
coverage to their personal insurance policy form, where available and at the sole
cost of such Unit Owner, to cover those potential Association deductibles which
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may be assessed to any one or more Unit Owner.
8.9 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, Insurance Trustee and construction or
remodeling supervision shall be considered as part of the cost of construction,
replacement or repair.
(b) Reconstruction or Repair. Any balance remaining shall be used for
reconstruction and repair as hereafter provided.
(c) Partial Reconstruction. If the Unit or Units or Common Elements are destroyed
and partially rebuilt, distribution shall be made to Unit Owners or the Insurance
Trustee as their interests appear based on the reconstruction of the Units and
Common Elements.
(d) No Reconstruction or Repair. If there is no reconstruction or repair, the first
proceeds for distribution after paying the Insurance Trustee shall be made to the
first lienholders for such Units before distribution to the Unit Owners.
(e) Remaining Proceeds. After distribution of the insurance proceeds as set forth
above, any remaining proceeds shall be distributed to the Units Owner(s) as such
Owner(s) interest shall appear. In the event less than all Units are damaged or
destroyed, then such proceeds shall be held only for the Owner(s) of the damaged
or destroyed Unit(s) to the extent of the repair costs of the damage or in the event
of destruction, to the extent of the fair market value of the Unit before the
destruction. To the extent Common Elements are damaged or destroyed then
remaining proceeds shall be held for the Owners in accordance with their interests
in such Common Elements.
(f) Certificate. In making distribution to Unit Owners and their lienholders, the
Insurance Trustee may rely upon a certificate of the Association made by the Board
or Manager as to the names of the Unit Owners and their respective shares of the
distribution.
8.10 Board as Agent. The Board 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 Project to adjust all claims arising under insurance policies purchased by the
Association and to execute and deliver releases upon the payment of claims.
8.11 Benefit to Mortgagees. Certain provisions in this Article are for the benefit of mortgagees
or trust indenture beneficiaries, and all such provisions are covenants for the benefit of any
mortgagee or trust indenture beneficiary of a Unit and may be enforced by such mortgagee
or beneficiary.
8.12 Notice to Lienholder. The Unit Owners, and not the Board nor the Association, shall
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notify the holder of any first lien on any of the Units of the occurrence of any loss in excess
of Ten Thousand Dollars and Zero Cents ($10,000.00) within thirty (30) days of such loss.
8.13 Reconstruction.
(a) Repair after Casualty. If any part of the Project shall be damaged by casualty,
whether or not it shall be reconstructed or repaired shall be determined in the
following manner:
(i) Lesser Damage. If a Unit or Units (or other damaged property within the
Project) is found by the Board to be tenantable after the casualty, the
damaged property shall be repaired.
(ii) Greater Damage. If a Unit or Units (or other damaged property within the
Project) is found by the Board to be not tenantable after the casualty, the
damaged property may be reconstructed or rebuilt as provided in the
applicable provisions of the Act. If the decision is made not to rebuild then
the property shall be subject to the applicable provisions of the Act.
(iii) Election not to Rebuild. If a Unit or Units (or other damaged property
within the Project) is found by the Board to be not tenantable after the
casualty and the Association elects not to rebuild as herein provided and set
forth in 70-23-803, MCA, and less than all of the Units have been damaged
or destroyed, following any payments required by 70-23-805, MCA, the
Insurance Trustee shall be instructed to disburse the proceeds in accordance
with paragraph 9.9(d) and 9.9(e).
(iv) Certificate. The Insurance Trustee may rely upon a certificate of the
Association made by the Board or Manager to determine whether or not the
damaged property is to be reconstructed or rebuilt.
(b) Plans and Specifications. Any reconstruction or repair must be substantially in
accordance with the plans and specifications for the original improvements, or if
not, then according to plans and specifications approved by not less than seventy-
five percent (75%) of the Unit Owners, including the Owners of all Units the plans
for which are to be altered, and in accordance with the review and approval
requirements set forth in the Design Guidelines. Any such reconstruction not in
accordance with the original plans and specifications must be set forth in an
amendment to the Declaration. Provided that any consents required by the
Governing Documents in connection with reconstruction not in accordance with
the original plans and specifications have been obtained, the Board may cause to
such amendment to be prepared and recorded without the consent of the Unit
Owners.
(c) Responsibility. The responsibility for reconstruction or repair after casualty shall
be that of the Association which shall work with the Insurance Trustee to carry out
the provisions of this Article 9.
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(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 cover the payment of such costs. Such assessments
shall be in proportion to the Owner’s Percentage of Interest, unless such
reconstruction or repair resulted from the negligence or willful misconduct of an
Owner or the family member, guest or invitee of an Owner, in which case such
amounts may, in the discretion of the Board, be assessed against such Owner or
other person having and ownership interest in the applicable Unit.
(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 Insurance Trustee and
according to the contract of reconstruction or repair, which contract must have the
approval of the Board.
(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.
8.14 Condemnation.
(a) In the event the Common Elements, or any portion thereof, shall be taken for any
public or quasi-public use, under any statute, by right of eminent domain or by
purchase in lieu thereof, each Owner will be entitled to notice thereof, but the
Association (acting through the Board) will act as attorney-in-fact for all Owners
in the proceedings incident to such taking unless otherwise prohibited by law. The
award for such taking will be payable to the Association as trustee for all of the
Owners to be used as follows:
(i) If the taking involves a portion of the Common Elements on which
improvements (not including a Unit) have been constructed, then, unless (a)
restoration or replacement of such improvements would be illegal under any
applicable law, rule, regulation or ordinance or (b) within sixty (60) days
after such taking, the Board elects not to restore or replace such
improvements, the Association shall restore or replace such improvements
so taken on the Common Elements to the extent lands are available
therefore, in accordance with plans approved by the Board and, to the extent
required by applicable law, any governmental or quasi-governmental entity
having jurisdiction over the Property. If such improvements are to be
restored or replaced, and the award for the taking is insufficient to restore
or replace such improvements, the Board shall levy a special assessment,
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payable by the Unit Owners in accordance with their Percentage of Interest,
in the aggregate amount of such deficiency and shall proceed to restore or
replace such improvements.
(ii) If the taking does not involve any Common Elements including
improvements, or if there is a decision made not to restore or replace as set
forth above, or if there are net funds remaining after any such restoration or
replacement of improvements is completed, then the Association shall
retain such excess proceeds and place them in the Association’s reserve
account.
(b) In the event any Unit or any portion thereof shall be taken, the condemnation award
for such taking shall be paid solely to the Unit Owner(s) of such Unit(s). If an
entire Unit shall be condemned, the Unit Owner thereof shall automatically cease
to be an Owner or a member of the Association with respect to such Unit, but
obligations arising prior to such taking shall remain the obligation of such person
or entity regardless of the termination of membership.
Article 9 - MORTGAGEE PROVISIONS
9.1 Notice of Action. Any institutional holder, insurer, or guarantor of a first mortgage that
provides a written request to the Association in accordance with this Article shall thereby
become an “Eligible Holder” for so long as such Person remains an institutional holder,
insurer or guarantor of a first mortgage and will be entitled to timely written notice of:
(a) Any condemnation loss or any casualty loss of which the Association has notice
which affects a material portion of the Common Elements; or
(b) Any foreclosure by the Association of a lien resulting from a delinquency in the
payment of any Assessment, charge, fine, penalty or other amount payable by an
Owner with respect to a Unit subject to the mortgage of such Eligible Holder. Such
notice shall be given at least thirty (30) days prior to the foreclosure.
(c) The written request as required under this Article shall clearly state the legal
description and address of the Unit as well as the name, mailing address, telephone
number and e- mail address of the person who should receive the notices for the
above listed actions. It is the sole obligation of the Eligible Holder to keep this
information up to date with the Association and deliver notice as provided herein
to the Association when this information changes. The Association will not be in
default for failure to provide the above-listed notices if the Eligible Holder does not
provide the Association with accurate information.
9.2 Any written notice required under this Article to be provided by the Association to an
Eligible Holder shall be in writing and shall be deemed to have been duly given if delivered
personally or if sent by certified mail, first-class, postage pre-paid, return receipt requested
to the address provided by the Eligible Holder or by an acknowledged email.
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9.3 Fannie Mae required language. Any right of first refusal in the condo project documents
will not adversely impact the rights of a mortgagee or its assignee to:
(a) Foreclose or take title to a condo unit pursuant to the remedies in the mortgage,
accept a deed or assignment in lieu of foreclosure in the event of default by a
mortgagor, or Sell or lease a unit acquired by the mortgagee or its assignee.
(b) No provision of the condo project documents gives a condo unit owner or any other
party priority over any rights of the first mortgagee of the condo unit pursuant to its
mortgage in the case of payment to the unit owner of insurance proceeds or
condemnation awards for losses to or a taking of condo units and/or common
elements.
10 REMOVAL, PARTITION, AND SUBDIVISION
The Project may only be removed from condominium ownership, and may only be partitioned or
sold upon compliance with each of the conditions hereof:
10.1 Board Approval. The Board must approve the plans of removal, partition or sale, except
for the rights reserved to Declarant contained in this Declaration. Such approval shall
include the details of how any partition or sale, and the distribution of property or funds,
shall be accomplished.
10.2 Member Approval. The plan of removal, partition, subdivision, abandonment,
termination or sale must be approved as provided in the Act. If approval for any of the
forgoing is not required by the Act, then approval shall be required from Owners
representing one hundred percent (100%) of the Percentage of Interest and any related first
lienholder in the Project. Upon obtaining such approval, the Board shall be empowered to
implement and carry out the plan of removal, partition, subdivision, abandonment,
termination or sale. This provision is subject to the rights reserved to Declarant contained
in this Declaration.
10.3 Division of Units. No Unit may be divided or subdivided into a smaller Unit, nor any
portion thereof sold or otherwise transferred, except as provided above.
10.4 Common Elements. The Common Elements shall not be abandoned, partitioned,
subdivided, encumbered, or sold or transferred (except to the Association) without
compliance with all of the above requirements. This provision does not apply to fixtures
attached to the General Common Elements that may be disposed of pursuant to the Board’s
discretion. By way of example but not limitation, the Board may decide to dispose of a
park bench that has become unsafe or exceeded its useful life.
10.5 Removal or Partition – Subdivision. The plan of removal or partition, abandonment,
termination or sale, other than condemnation, shall be agreed to by: (1) eligible mortgage
holders that represent at least sixty-seven percent (67%) of the votes of the mortgaged
Units, or by the votes specified in the Act, whichever is greater; and (2) at least seventy-
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five percent (75%) of the Unit Owners by the votes specifies in the Act, whichever is
greater. Upton obtaining such approvals, the Board shall be empowered to implement and
carry out the plan of removal, partition, abandonment, termination or sale.
11 DECLARANT’S RIGHTS
In addition to those rights contained throughout this Declaration, the Declarant specifically
reserves the following:
11.1 Changes to Project. The Declarant reserves the right to change the exterior design,
interior design, arrangement of and number of Units, so long as the Declarant owns the
Units so altered. No such change shall alter the boundary of the general common elements
without an amendment of this Declaration, but may alter Owners’ Percentages of Interest
based on the final square footage of the Condominium Units. Until seventy-five percent
(75%) of the units, including the expansion Units, have been built and sold, Declarant
reserves the right to establish easements, reservations, exceptions and exclusions consistent
with the Bozeman Cohousing Condominiums project. Further, notwithstanding any other
provision(s) 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
seventy-five percent (75%) of the all the Units, including expansion Units, in Bozeman
Cohousing Condominiums have been built and sold. During the period of development
and sale of the Units, the monthly assessment from Common Expenses 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 Units which have been completed. During the period of time when fewer
than all of the Units, including expansion Units, have been built and approved for
occupancy: (1) the Common Expenses shall be allocated based on each Unit Owners
Percentage of Interest in the General Common Elements; and (2) Declarant shall pay the
real estate taxes and assessments on that portion of the Property which remains
undeveloped but on which Units will be subsequently constructed.
11.2 Expansion Provisions. The Declarant intends from time to time to construct additional
Units on the Property, for a final total not to exceed Fourty-Three units. At such time as
Declarant wishes to add such additional Units, Declarant shall record in the office of the
Clerk and Recorder of Gallatin County, Montana, a supplemental declaration containing
the following information which is not mentioned herein:
(a) If different from the attached Exhibit C:
11.2.a.1 A site plan showing the Building or Buildings to be
constructed on the Common Elements as the same is set forth
herein showing the site plan and common elements of the
condominium; and
11.2.a.2 A designation of the Buildings to be constructed with the
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same to be shown on the site plan to be so recorded.
(b) If different from the attached Exhibit E:
11.2.b.1 Floor plans showing the Units to be contained within the
additional Buildings to be constructed and added to this
Project together with the numbers given to the specific Units.
11.2.b.2 A description of the Buildings and materials of which they
are constructed;
(c) A schedule of the percentage of undivided ownership of the specific Units
to be added to the Project in the General Common Elements, computed for
each Unit which, when added to the number of Units as a whole, will give
the additional Units, as well as the previously existing Units, their
respective percentages of interest in the expanded or new Project.
(d) To be and remain in compliance with the provision of M.C.A. § 70-23-306
at the time of the filing of such amendment or amendments, floor plans and
a certificate of floor plans shall additionally be prepared and recorded, being
additions to Exhibit E, certifying and showing that the said floor plans fully
and accurately depict the layout of the Units in the floors of the Buildings
and that construction of each such additional new Building will be
completed as depicted or was completed as depicted; and
(e) 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.
(f) At the time the Declarant, or its successors or assigns, elects to file such
amendment to this Declaration, all then existing condominium owners
hereby covenant and agree that they will upon request, join in the execution
of such amendment papers agreeing, consenting and joining in such
amendment, and further agreeing to reduce their percentage of ownership
interest in the Common Elements.
(g) The within agreement shall be a covenants running with the land, and shall
be binding upon the Owner of the then existing Units, who upon acquiring
title to such Unit, by this Covenants agree and consent to the filing of such
amendment and join in the same, and by this covenant agree and consent to
the appointment of the Declarant as their attorney-in-fact so that the
Declarant may in his discretion simply file the supplemental Declaration on
his own initiative, having been herein given the power and authority to make
such amendment for and on behalf of all subsequent condominium owners
in Bozeman Cohousing Condominiums.
(h) After the recording of such supplemental and amended Declarations, all
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owners of Units in the Property shall have a non-exclusive right and license
subject to the provisions herein, to use and enjoy all of the General Common
Elements of the property and all of the General Common Elements added
to the Project by such amendment. In addition, the owners of the respective
Units shall further have the nonexclusive right and license to use and enjoy
the Limited Common Elements which are appurtenant and part of their
respective Units which may be added to the Project which are limited to the
use of less than all of the Unit Owners.
(i) Except as otherwise specifically provided in this Declaration or in such
Supplemental Declaration, all of the provisions, terms and definitions
herein contain shall, upon recording of the same, be deemed expanded to
include the additional Units.
11.3 Timeframe for Completion. Declarant shall not be required to construct all proposed
Condominium Units (including Annexable Property) within any set time frame. Declarant
reserves the right to build the Condominium Units in accordance with the floor plans and
site plan attached hereto and as the same may be amended in accordance with this
Declaration. When a Condominium Unit is completed, the Declarant shall record in the
Public Record an amendment to this Declaration to which shall be attached a verified
certificate or statement of a registered architect, registered professional engineer, or
registered land surveyor certifying that the floor plan previously filed or being filed
simultaneously with the amendment fully and accurately depicts the layout of the Units
and the date of construction completion. If there is any change in the Floor Plans, Site
Plan, or Owners’ Percentage of Interest in the Common Elements, then the amendment
shall include such changes.
11.4 Assessments. Until a Condominium Unit is complete, and the amendment is recorded, the
Declarant shall not be charged for Assessments on the Condominium Unit. Declarant may
voluntarily subsidize the Association’s budget. Such subsidy shall be limited to Common
Expenses for the General Common Elements relating to the land, including real estate
taxes, public liability insurance, road maintenance (including snow plowing), landscaping
maintenance, and other Common Expenses relating to the General Common Elements, but
not including Common Expenses for maintenance, fire and casualty insurance, or other
Limited Common Expenses relating to the Limited Common Elements applicable to or
servicing only completed Condominium Units.
11.5 Assignment. Any or all of the rights and powers granted or reserved to Declarant in this
Declaration or by law, including the power to approve or disapprove any act, use, or
proposed action, or any other matter or thing, may be assigned by Declarant to any other
entity or to the Association. Any such assignment or transfer shall be made by appropriate
instrument in writing duly recorded in the office of the Clerk and Recorder of Gallatin
County, Montana.
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12 ENFORCEMENT AND REMEDIES
12.1 Procedure. The Association shall have the right (but not the obligation) to enforce the
provisions of any of the Governing Documents, through procedures adopted by resolution
of the Board, abatement of the violation by the Association, or by proceedings either at law
or in equity against any Person(s) violating or attempting to violate any of the Governing
Documents.
12.2 Discretion. The decision to have the Association pursue enforcement action in any
particular case shall be left to the Board’s discretion, except that the Board shall not be
arbitrary or capricious in taking enforcement action. Without limiting the generality of the
foregoing sentence, the Board may determine that, under the circumstances of a particular
case:
(a) the Association’s position is not strong enough to justify taking any or further
action; or the covenant, restriction or rule being enforced is, or is likely to be
construed as, inconsistent with applicable law; or although a technical violation
may exist or may have occurred, it is not of such a material nature as to be
objectionable to a reasonable person or to justify expending the Association’s
resources; or it is not in the Association’s best interest, based upon hardship,
expense, or other reasonable criteria, to pursue enforcement action. Such a decision
shall not be deemed a waiver of the right of the Association to enforce such
provision at a later time under other circumstances or preclude the Association from
enforcing any other covenant, restriction or rule, nor shall it preclude any Owner
from taking action at law or in equity to enforce this Declaration.
12.3 Costs of Enforcement. Costs incurred for enforcing the provisions of the Governing
Documents (inclusive of giving notice of the violation), costs of correcting the defect or
undoing the violation, if undertaken by the Association, or any fines levied against the
Owner after the Owner or his/her tenants, guests and/or invitees is determined by the Board
to be in violation of the Governing Documents shall be paid by the Owner. Any costs
incurred for enforcing the provisions of Governing Documents, for correcting the defect or
undoing the violation, or fine assessed against the Owner that is not paid within sixty (60)
days as provided herein shall result in a lien being recorded against the Unit and/or the
Owner’s interest therein, such lien to be enforceable by sale under the laws of the State of
Montana. Such lien will be recorded in the office of the Clerk and Recorder in Gallatin
County, Montana. Should any lawsuit, arbitration or other legal proceeding be instituted
by the Association against an Owner alleged to have violated one or more of the provision
of the Governing Documents and should the Association be wholly or partially successful
in such proceeding, the offending Owner shall be obligated to pay the costs of such
proceeding, including reasonable attorney’s fees, costs, and cost of collecting the judgment.
12.4 Delegation. The Board may delegate any of its rights or obligations with respect to
enforcement as set forth above to its appointed agent, or any committee of the Board,
including, but not limited to, the Manager; except that any decision to pursue or not pursue
any legal proceeding may not be delegated, and shall be determined by the Board.
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12.5 Remedies Cumulative. All remedies provided for in this Declaration and the other
Condominium Documents shall not be exclusive of any other remedies which may now be,
or are hereafter, available to the parties hereto as provided for by law.
12.6 Joint and Several Liability. In the case of joint ownership of a Unit, in any form, the
liability of each Owner thereof in connection with the liabilities and obligations of Owners
as set forth in or imposed by the Governing Documents shall be joint and several.
13 AMENDMENT
13.1 Amendment By Declarant. The Declarant may unilaterally amend this Declaration or
any other project document (i.e. Bylaws, Community Agreements) until seventy-five
percent (75%) of all of the Units, including the expansion Units, in the Project, have been
sold.
13.2 Amendment By Board. The Board may unilaterally amend this Declaration if such
amendment is (i) necessary to bring any provision in compliance with any applicable
governmental statutes, necessary governmental registrations, rule, regulation, or judicial
determination; (ii) necessary to enable any reputable title insurance company to issue title
insurance coverage on the Units; (iii) required by an institutional or governmental lender
or purchaser of mortgage loans, to enable such lender or purchaser to make or purchase
mortgage loans on the Units; (iv) necessary to enable any governmental agency or
reputable private insurance company to insure mortgage loans on the Units or to insure the
Project or any portion thereof, including any individual Unit; (v) necessary to allow the
Association to obtain insurance contemplated by this Declaration, including, without
limitation, property or liability insurance, at a reasonable price and on reasonable terms; or
(vi) otherwise necessary to satisfy the requirements of any governmental or quasi-
governmental agency.
13.3 Amendment By Owners.
(a) This Declaration may be amended by the affirmative vote or written consent, or
any combination thereof, of at least sixty percent (60%) of the Unit Owners. If the
Declarant still Controls the Project, the amendment must be approved by the
Declarant.
(b) Application. Owners are on notice that by virtue of taking title to a Unit subject to
the Governing Documents that they are subject to and agree to the amendment
provisions contained in this Article. Owners waive their rights to any statutory
remedies provided for under Title 70, Chapter 23 of the Montana Code Annotated
with regard to duly adopted amendments pursuant to this Article.
13.4 Power of Attorney. Each Unit Owner hereby appoints the Declarant as his/her/their
attorney-in-fact, and grants the Declarant all necessary authority so that the Declarant may
record any amendment authorized by the process described herein.
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13.5 Annexation. During the Declarant Control Period, Declarant may from time to time
unilaterally (a) annex property to the Project, and/or (b) add Condominium Units to the
Project. Annexation of property and addition of Condominium Units shall be
accomplished by filing a supplement to this Declaration with the office of the Clerk and
Recorder of Gallatin County, Montana. Such supplement shall not require the consent of
the Owners or the Board. The supplement shall include a revised version of Exhibit F
showing the recalculated Percentage of Interest in the Common Elements for each
Condominium Unit and an updated Site Plan and Floor Plans to the extent required by the
Unit Ownership Act.
13.6 Withdrawal. During the Declarant Control Period, Declarant may from time to time
unilaterally amend this Declaration for the purpose of removing property then owned by
Declarant or its affiliates from the coverage of this Declaration. Any property removed
from this Declaration shall be subject to whatever easements, if any, are reasonably
necessary for access to or operation of the Project and each of the Condominium Units. In
addition, during the Declarant Control Period, Declarant may from time to time unilaterally
amend this Declaration for purposes of decreasing the number of Condominium Units
within the Project by removing certain Condominium Units from the coverage of this
Declaration; provided that Declarant may make any such decrease only with respect to
Condominium Units then owned by Declarant which have not been constructed. Any
amendment pursuant to this Section shall not require the consent of the Owners or the
Board. Any amendment to remove one or more Condominium Units shall include a revised
version of Exhibit F showing the recalculated Percentage of Interest in the Common
Elements for each Condominium Unit and an updated Site Plan to the extent required by
the Unit Ownership Act.
13.7 Plat Amendment. Declarant may unilaterally amend the Plat without the additional
consent of any Owner or the Board; provided, however, that nothing in this paragraph
allows Declarant to replat the property underlying a Condominium Unit (i.e., change a
boundary line or platted easement under a Condominium Unit) without the consent of the
Owner of such Condominium Unit.
13.8 Merger or Consolidation. During the Declarant Control Period, Declarant may merge or
consolidate the Association with a property owners association of the same form of
ownership. Upon written request from Declarant during the Declarant Control Period, the
Board and each Unit Owner shall execute such documents and take such actions as shall
reasonably be requested by Declarant to approve and effect any such merger or
consolidation.
13.9 Agreement Regarding Amendments. The Unit Owners, the Association, lienholders,
mortgagees, and all others acquiring any interest in or lien on the Condominium Units, the
Common Elements, or any other portion of the Project shall be bound by the rights of
Declarant to amend and supplement this Declaration (and Bylaws if required) and the Plat
as set forth in this Declaration, including, without limitation, in connection with any
annexation of Annexed Property, removal of property from this Declaration, reduction or
increase in the number of Condominium Units, completion of construction of
Condominium Units, and any change in the Percentage of Interest, Site Plan, or Floor Plans
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in connection therewith, and their consent to such amendments and supplements is implied
and agreed to by the acceptance or acquisition of any interest in or lien on the
Condominium Units, the Common Elements, or any other portion of the Project. Declarant
is hereby appointed the Unit Owners’, Association’s, lienholders’, and mortgagees’ agent
and attorney-in-fact to execute and record such amendments, supplements, and related
documents.
13.10 Recording of Amendment. Any amendment adopted pursuant to this Article must be
recorded with the office of the Clerk and Recorder of Gallatin County, Montana in order
to be effective. If an Owner consents to any amendment to this Declaration or the Bylaws,
it will be conclusively presumed that such Owner has the authority to consent, and no
contrary provision in any mortgage or contract between the Owner and a third party will
affect the validity of such amendment.
14 ANNEXATION, WITHDRAWAL AND REPLATTING OF PROPERTY
14.1 Annexation Without Approval of Membership.
(a) Until December 31, 2040, Declarant may, from time to time, unilaterally
subject to the provisions of this Bozeman Cohousing Condominiums
Declaration all or any portion of other property owned by Declarant
(“Annexed Property”). Declarant may transfer or assign this right to annex
property, provided that the transferee or assignee is the developer of at least
a portion of the Property and that such transfer is memorialized in a written,
recorded instrument executed by Declarant. A Supplemental Declaration
shall include a revised Percentage of Interest Exhibit F showing the
percentage of undivided interest in the Common Elements for each Unit
Owner effective upon recording of the Supplemental Declaration.
(b) Annexation shall be accomplished by filing a Supplemental Declaration
annexing the Annexed Property in the public records of Gallatin County,
Montana. A Supplemental Declaration annexing property shall not require
the consent of the Owners, but it shall require the consent of the owner of
the Annexed Property, if other than Declarant. Any other person and/or
entity with a property interest in any real property submitted to this
Declaration shall not be a “Declarant” unless designated as Declarant in a
recorded instrument signed by the preceding Declarant. Any annexation
shall be effective upon the filing of record a Supplemental Declaration
unless otherwise provided therein.
14.2 Annexation With Approval of Membership. The Association may annex real property
pursuant to the provisions of this Declaration with the consent of the owner of the Annexed
Property, the affirmative vote of a majority of the Owner votes of the Association
represented at a meeting duly called for such purpose, the consent of the Declarant so long
as Declarant owns property subject to this Declaration or which may become subject to
this Declaration in accordance with Section 15.1 and the consent of the Bozeman
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Cohousing Condominium Owners Association Board of Directors. Annexation shall be
accomplished by filing a Supplemental Declaration describing the Annexed Property in the
public records of Gallatin County, Montana. Any such Supplemental Declaration shall be
signed by the President and the Secretary of the Association, and by the owner of the
Annexed Property. Any such annexation shall be effective upon filing unless otherwise
provided therein. A Supplemental Declaration shall include a revised Percentage of
Interest Exhibit F showing the percentage of undivided interest in the Common Elements
for each Unit Owner effective upon recording of the Supplemental Declaration.
14.3 Withdrawal of Property. The Declarant reserves the right to amend this Declaration so
long as it has a right to annex additional property pursuant to this Article and without prior
notice and without the consent of any Person, for the purpose of removing property then
owned by the Declarant, its affiliates, or the Association from the coverage of this
Declaration, to the extent originally included in error or as a result of any changes in the
Declarant’s plans for the Property, provided such withdrawal is not unequivocally contrary
to the overall, uniform scheme of development for the Property. Common Areas
designated as open space on any final plat for the Property, as approved by the County of
Gallatin and recorded in the public records of Gallatin County, Montana, may be
withdrawn only if restricted as permanent, open space upon which future inconsistent
development would not be permitted.
14.4 Replatting. Declarant may unilaterally amend the plat of the Property without the
additional consent of Owners. Amended plats may include, but are not limited to, the
creation of additional Units within the General Common Elements and changes to
percentage ownership interest in the Common Elements. By accepting a deed to their Unit,
Owners are deemed to have consented to any replatting of the Property that is consistent
with the provisions of this Article and authorize Declarant to execute on their behalf any
documents necessary for such replatting. Notwithstanding the above provisions, Declarant
may not amend the Plat of the Property initially subject to this Declaration.
15 INTERPRETATION
15.1 Liberal Construction. The provisions of this Declaration and of the Bylaws shall be
liberally construed to effectuate the purposes of this Declaration and Bylaws and to create
Buildings subject to and under the provisions of the Unit Ownership Act.
15.2 Interpretation of Governing Documents. The Association, by and through its Board, shall
have the exclusive right to construe and interpret the provisions of this Declaration and
the other Governing Documents. In the absence of any adjudication to the contrary by a
court of competent jurisdiction, the Board’s construction or interpretation shall be final,
conclusive and binding as to all persons and property benefitted or bound by the covenants
and the provisions hereof.
16 SEVERABILITY
The provisions hereof shall be deemed independent and severable and the invalidity or partial
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invalidity or unenforceability of any one or more provision or any portion thereof shall not affect
the validity or enforceability of the remainder of such provision or of any other provision hereof.
17 MISCELLANEOUS
17.1 Benefit. Except as otherwise provided herein, this Declaration shall be binding upon and
shall inure to the benefit of the Association and each Unit Owner, and the heirs, estates,
personal representatives, successors and assigns of each.
17.2 Binding Effect. 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 (and any other person having an ownership interest in a Unit), their heirs,
personal representatives, successors and assigns for as long as this Declaration and the
Bylaws are in effect.
17.3 Service of Process. The name and address of the person to receive service of process for
the Association until another designation is filed of record shall be the registered agent for
the Association on file with the Montana Secretary of State.
Alanah Griffith
Griffith & Cummings, P.C.
P.O. Box 160748
Big Sky, MT 59716
17.4 Notices. All writings required or permitted to be given or delivered under this Declaration
shall be deemed to have been given or delivered when deposited in the United States mail,
postage prepaid, or by delivering it personally to an officer of the Association or Declarant
or directly to a Unit Owner.
17.5 Sale Disclosures. At any time that a Person owns a majority of the Units, the Person shall
provide to any purchaser the disclosure required by Montana Code Annotated § 70-23-613.
17.6 Gender. Whenever any reference herein is made to one gender, the same shall include a
reference to any and all genders where the same would be appropriate; similarly, whenever
a reference is made herein to the singular, a reference shall also be included to the plural
where the same would be appropriate and vice versa.
17.7 Conflicts. In the event that there is any conflict or inconsistency between or among the
provisions of Montana law, this Declaration, the Articles, the Bylaws and the Community
Agreements, the provisions of Montana law, this Declaration, the Articles, the Bylaws and
the Community Agreements (in that order) shall prevail.
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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, Section 70-23-101, et seq., MCA
(2019).
DECLARANT:
Bozeman Coho, LLC
BY: ____________________________________
___________________________, Manager
State of Montana )
: ss.
County of Gallatin )
On this _____ day of _________________________, 2021, before me, a Notary Public in
and for said State, personally appeared ___________________________, Manager of Bozeman
Coho, LLC, and acknowledged to me that he executed the same on behalf of the limited liability
company pursuant to the power and authority vested in him.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial seal the day
and year written above.
____________________________________
____________________________________ (print name)
Notary Public for the State of Montana
Residing at ________________, Montana.
My commission expires: ______________
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EXHIBIT A-1 – LEGAL DESCRIPTION OF PROPERTY
The following described real property located in Gallatin County, Montana:
PARCEL 1: Tract B of Certificate of Survey No. 526, a tract of land located in the SW% of Section
19, Township 2 South, Range 6 East, P.M.M., Gallatin County, Montana, according to the official
plat there of on file and of record in the office of the county Clerk and Recorder of Gallatin County,
Montana.
PARCEL 2: All that part of the Southwest Quarter of Section 19, Township 2 South, Range 6 East
P.M.M., Gallatin County, Montana, more particularly described as follows, to-wit: Beginning at
the Northwest corner of the Southwest Quarter of said Section 19: thence East 30 feet: thence
South 316.25 feet to the place of beginning; thence East parallel with the North line of the said
Southwest Quarter of said Section 19, 729 feet: thence South 258.75 feet: thence West parallel
with the North line of said Southwest Quarter of Section 19, 729 feet: thence North 258.75 feet to
the place of beginning, as recorded in Film 65 of Deeds, Page 1961.
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EXHIBIT A-2 – CITY OF BOZEMAN EXEMPTION CERTIFICATE
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EXHIBIT B – 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 the
BOZEMAN COHOUSING CONDOMINIUMS. situated as follows:
The following described real property located in Gallatin County, Montana:
PARCEL 1: Tract B of Certificate of Survey No. 526, a tract of land located in the
SW% of Section 19, Township 2 South, Range 6 East, P.M.M., Gallatin County,
Montana, according to the official plat there of on file and of record in the office of
the county Clerk and Recorder of Gallatin County, Montana.
PARCEL 2: All that part of the Southwest Quarter of Section 19, Township 2
South, Range 6 East P.M.M., Gallatin County, Montana, more particularly
described as follows, to-wit: Beginning at the Northwest corner of the Southwest
Quarter of said Section 19: thence East 30 feet: thence South 316.25 feet to the
place of beginning; thence East parallel with the North line of the said Southwest
Quarter of said Section 19, 729 feet: thence South 258.75 feet: thence West parallel
with the North line of said Southwest Quarter of Section 19, 729 feet: thence North
258.75 feet to the place of beginning, as recorded in Film 65 of Deeds, Page 1961.
1) That the name the BOZEMAN COHOUSING CONDOMINIUMS 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(s)”, and
2) All taxes and assessments due and payable for the said BOZEMAN COHOUSING
CONDOMINIUMS have been paid to date.
Dated:
By:
Title:
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EXHIBIT C – SITE PLAN
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EXHIBIT D – CONSTRUCTION MATERIALS
The principal materials of each Building as constructed are as follows:
Wood for the framing, structural, finish work,
Cement Board and Wood Siding
Cedar accents on the exterior wall surfaces;
Sheetrock for the interior walls and ceilings;
Carpet, wood, and tile for floors;
Concrete for foundations, slabs (including garage floor);
Asphalt shingles, metal, and membrane on the roof; and
Concrete patios.
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EXHIBIT E – FLOOR PLANS & CERTIFICATE OF FLOOR PLANS (BUILDING A)
FORM OF CERTIFICATE TO BE SIGNED TO DECLARE BUILDINGS/UNITS
The undersigned, being a duly registered professional architect, engineer or land surveyor in the
State of Montana, herewith certifies the following:
Dated: ______________________
____________________, _______________________
Check Registered Professional Architect
applicable Registered Professional Engineer
box: Registered Professional Land Surveyor
Number: ___________________
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EXHIBIT F – UNIT DESIGNATION AND PERCENTAGE OF INTEREST
Unit Designation
Percentage of Interest