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HomeMy WebLinkAbout04-1983IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LISA A. FITTING, Plaintiff V. VILLAS HOMEOWNERS ASSOCIATION, INC., Defendants : CIVIL ACTION -,.EQUITY :NO. 04- 19~ C4¥tL TERM NOTICE You have been sued in court, If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIR/NG A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR RATE Cumberland County Bar Association Lawyer Referral Service 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 AVISO Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en law paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, ia corte tomara medidas y puede continuer ia demanda en contra suya sin previo aviso o notificacion. Ademas, la torte puede decidir a favor del demandante y requiem que usted cumpla con todas law provisiones de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFIClNA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVlCIOS DE UN ABOGADO, ES POSlBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMAClON SOBRE AGENClAS QUE OFREZCAN SERVlCIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUAMFICAN. Cumberland County Bar Association Lawyer Referral Service 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 HANFT & KN GHT, P.C. James I. Nelson, Esquire Attorney I.D. No. 91144 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 (717) 249-5373 LISA A. FITTING, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. VILLAS HOMEOWNERS ASSOCIATION, INC., Defendants CIVIL ACTION - EQUITY NO. 04-/~7,3 CXe~E-TERM COMPLAINT AND NOW, this 4th day of May, 2004, comes the Plaintiff, Lisa A. Fitting, by and through her Counsel, Hanft & Knight, P.C., and files the following Complaint, and in support thereof avers as follows: 1. individual who resides at 11 Abbey Court, Carlisle, Cumberland County, Pennsylvania 17013. 2. The Defendant, Villa Homeowners Association, Inc., (hereinafter referred to as "Defendant"), is a non-profit corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at 37 Abbey Court, Carlisle, Cumberland County, Pennsylvania 17013. 3. The Defendant maintains and administers the community properties and facilities known as "The Villas," and administers and enforces the covenants and restrictions that apply to said community. 4. The Plaintiff' s residence is part of the community that is maintained and administered by the Defendant. The Plaintiff, Lisa A. Fitting (hereinafter referred to as "Plaintiff'), is an adult 5. On or about December 29, 2003, the Defendant executed a document which it characterized as "The Villas Homeowners Association, Inc., Amended and Restated Declaration of Covenants and Restrictions" (hereinafter referred to as "Amended Declaration"). A copy of the Amended Declaration is attached hereto as Exhibit "A" and by reference incorporated herein and made a part hereof as if fully set forth herein. 6. Article II, Section 2, subsection (a) of the Amended Declaration states that "Occupants shall be limited to individuals the age of forty (40) years or older. Exceptions to this age restriction shall be governed by the Bylaws of the Association." 7. The age restriction referenced in Paragraph 5 above was not included in the original Declaration of the community, entitled "The Villas Associates Declaration of Covenants and Restrictions," (hereinafter referred to as the "Original Declaration"), executed on July 16, 1987. A copy of the Original Declaration is attached hereto as Exhibit "B" and by reference incorporated herein and made a part hereof as if fully set forth herein. 8. The Plaintiff's daughter, age 13, lives with the Plaintiff and, accordingly, the Plaintiff's rights are directly affected by the aforementioned age restriction in the Amended Declaration. 9. The execution of the Amended Declaration was not proper as it did not comply with the requirements of both the Original Declaration and, also, the statutory requirements contained in 68 Pa. C.S.A. {5219. A copy of 68 Pa. C.S.A. §5219 is attached hereto as Exhibit "C" and by reference incorporated herein and made a part hereof as if fully set forth herein. 10. Article VIII, Section 1 of the Original Declaration states that: The Covenant and Restrictions of this Declaration shall mn with and bind the land, and shall inure to the benefit of and be enforceable by The Association, or the Owner of any land subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term often (10) years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods often (10) years unless an instrument signed by the then-Owners of two-thirds (2/3) of the Lots or Living Units has been recorded, a~reeing to change said covenants and restrictions in whole or in part. (For purposes of meeting the two-thirds requirement, when Living Units are counted, the Lot or Lots upon which such Living Units are situated shall not be counted.) Provided, however, that no such agreement to chan~e shall be effective unless made and recorded three (3) years in advance of the effective date of such change, and unless written notice of the proposed agreement is sent to every Owner at least ninety (90) days in advance of any action taken. [Emphasis added.] 10. The Original Declaration automatically extended, for an additional ten (10) year term in 1997, pursuant to Article VIII, Section 1, quoted in the preceding paragraph. I I. The Original Declaration was in effect on December 29, 2003. 12. The Amended Declaration is null and void since it was: (a) Not signed by 2/3 of the owners of the lots or living units within the community; (b) Not publicized via written notice to every owner at least ninety (90) days in advance of December 29, 2003; and (c) Could not be effective in any event since the newly added age restriction was not made and recorded three (3) years in advance of its ostensible effective date. 13. Notwithstanding the statement in the Amended Declaration (page 25) that the Defendant's Board of Directors "sought, and received the opinion of independent legal counsel, Stephanie E. Chertok, R.N., Esq. and John C. Porter, Esq., to the effect that the Amendments are permitted by the terms of §5219(f) of Pennsylvania's Uniform Planned Communities Act," the Amended Declaration does not comply with the requirements of 68 Pa. C.S.A. §5219. 14. Section 5219(f) of Permsylvania's Uniform Planned Communities Act is captioned "Technical Corrections," and provides limited exceptions to the stringent voting requirements cont~fined in §5219(a), among which is the requirement that a Declaration "may be amended only by a vote of at least 67% of the association." 15. Section 5219(1), entitled "Technical Corrections," applies only in three limited circumstances: Technical corrections. - Except as otherwise provided in the declaration, if any amended to the declaration is necessary in the judgment of the executive board to do any of the following: (1) cure an ambiguity; (2) correct or supplement any provision of the declaration, including the plats and plans, that is defective, missing or inconsistent with any other provision of the declaration or with this subpart; or (3) conform to the requirements of any agency or entity that has established national or regional standards with respect to loans secured by mortgages or deeds of trust or units in planned community or so-called "PUD" projects, such as Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation; the executive board may affect an appropriate corrective amendment without the approval of the unit owners or the holders of liens on the planned community, upon receipt of an opinion from independent legal counsel to the effect that the proposed amended is permitted by the terms of this subsection. 16. The age restriction in the Amended Declaration cannot be considered a technical correction as defined in § 5219(1) of the Uniform Planned Communities Act and, as a result, it cannot be used by the Defendant to prevent the Plaintiff's daughter from living in the Plaintiff's residence. 17. In light of the foregoing, the Plaintiff is faced with the prospect of irreparable harm to her property rights, and the use and enjoyment of her property, that cannot adequately be remedied with damages. WHEREFORE, the Plaintiff seeks declarative and injunctive relief in the form of an Order by this Honorable Court declaring that "The Villas Homeowners Association, Inc., Amended and Restated Declaration of Covenants and Restrictions" is null and void and that the Defendant is barred from preventing the Plaintiff' s daughter from living in the Plaintiff" s residence. Respectfully submitted, HANFT & KNIGHT, P.C. James I. Nelson, Esquire Attorney I.D. No. 91144 19 Brookwood Avenue, Suite 106 Carlisle, Pennsylvania 17013 (717) 249-5373 Counsel for Plaintiff VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. Section 4904, relating to unswom falsification to authorities. Date: May 4, 2004 EXHIBIT A .C AFFIDAVIT I, Margaret Marchl, acting in my capacity ns the duly elected President of The Vi[las Homeowners Association, Inc., hereby arrest that the attached document, TH~ VILLAS HOMEOWNERS ASSOCIATION. INC., AMENDED AND RESTATED ]DECLARATION OF COVENANTS AND RESTRICTIONS, was properly executed by the Board of Directors of the Villas Homeowner's Association, Inc., on December 29, 2003. Accordingly, the Amendments to the Covenants and Restrictions are an Official Act of the Association. · -STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND Margar~ Marchi, President The Villas Homeowners Association, Inc. SS. On this, the 31= day of December, 2003, before me, a Notary Public, personally' appeared MARGARET MARCHI, known to me (or satisfactorily proven) to be the PRINCIPAL whose name is subscribed to the within instrument, and she acknowledged that she was the declarant who executed the same for the purposes therein contained. IN WITNESS WHEREOF I hereunto set my hand and official seal. BOOK 705 G85 AMENDED AND RESTATED DECLARATION OF COVENANTS AND RESTRICTIONS OF THE VILLAS HOMEOWNERS ASSOCIATION. INC. ~oon 705 ~CE 666 Article !. II. HI. IV. V. VI. VII. TABLE O1~ CONTENTS D~fmitions .................................................................. Property subject to thi~ Declaration: Additions thereto ...........4 Member~hip and voting rights in the Association .................... 9 Property right~ in the Common Properties ............................ I0 Covenant for maintenance assessment~ ................................. 13 Party walls for townhouses ................................................ 23 General provisions ........................................................... 24 705 AO[ 667 THE VILLAS HOMEOWNERS ASSOCIATION. INC.. AMENDED AND RF,,STA~D DECLARATION OF COVENANTS AND RESTRICTIONS THIS DECLARATION, as Amended this 29* day of December, 2003, by the Villas Homeowners Association, mc., hereinafter called.thc Association, located in South Middleton Township, Cumberland County, Permsylvazda: WITNESSETH, the Association is the manager of the real property described in Article II of this declaration and desires to preserve the amenities of the residential community known as the Villas for the benefit of the said community; and WHEREAS, the Association desires to provide for the maintenance of said parks, playgrounds, open spaces and'other common areas; and, to this end, desires to subject thc real propert~ described in Article II to the covenants, restrictions, easements, charges and liens, bereinaRer set forth, each and all of which is and are for the benefit of said property and each owner thereof; and WHEREAS, the Association has been assigned thc powers of m~int~ining and administering thc common areas and facilities and administering and enforcing the covenants and restrictions and collecting and disbursing thc assessments and charges hereinafter created; and WHEREAS, the Association is incorporated under the laws of the Comrnonwe, a]th of Pennsylvania, as a nonprofit corporation, THE VILLAS HOIVI~OWNERS ASSOCIATION, INC., for the purpose of exerclsing the functions aforesaid. NOW ~FORE, the Association deolares that the real property described in Article II is and shall be held, transferred, sold, conveyed and occupied subject to thc covenants, 70.5 668 NOW THEREFORE, the Association declares that the real property described in Article II is and shall be held, transferred, sold, conveyed and occupied subject to thc covenants, restrictions, easements, charges and liens (sometimes referred to as "covenants and restrictions") hereinafter set forth. ARTICLE I DEFINITIONS The following words when used in this Declaration or any Supplemental Declaration (unless the context sh:~ll prohibit) -~h~!l have the following meaningS: a) "Association" shall mean and refer to The Villas Homeowners Association, a nonprofit corporation. b) "The Properties" shall mean and refer to all such existing properties, and additions thereto, as are subject to this Declaration or any Supplemental Declaration under the provisions of Article II, hereof. c) "Common Areas" shall mean a~d refer to those areas of land shown on any recorded subdivision plan of The Propenles and intended to be devoted to the common used and enjoyment of the owners of Tbe Properties, and may include the land and improvements for streets, easements, parks, playground, swimming 669 2 e) g) h) pools, pedestrianways and any buildings, structures or appurtenances incident to "Limited Common Areas" shall mean Common Properties designated on the plan and intended for the exclusive use by the owner of the Lot (or Living Unit) such as yards, private drives and walks surrounding the Living Unit and underground lateral pipes and/or coiaduits for water, sewer, gas, electric, telephone, television and such other underground lines. "Lot" shall mean and refer to any plot of land shown upon any recorded subdivision map of The Properties with the exception of Common Properties as heretofore defined. ~'Living Unit" shall mean and refer to any portion of a building situated upon The Properties designated and intended for use and occupancy as a residence by a single family. "Occupants~' shall mean and refer to all those individuals who live within a Unit and who must be related to the Owner and of the age of forty (40) years old or older, unless otherwise approved-of by thc Association, and who shall not exceed four (4) per UniC uOwaer" shall mean and refer to the record Owner, whether one or more persons or entities, of a fee or undivided fc~ interest in any Living Unit which is subject to Covenants and Restrictions of record, but notwithstanding any applicable theory of the mortgage, shall not mean or refer to the mortgagee unless such mortgagee has acquired title pursuant to foreclosure of any proceeding in lieu of foreclosure. 705 670 TI~ Owner, if also aa Occupaat, mnst he [he age of forty (40) years or older. Use of the term Owner or Owner~ shall be deemed to include their prox7 or proxies. "Member" shall mean aad refer to Owners and Occupaats. ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION: ADDITIONS THERETO Existinz PropelW. Thc re. al property which is, and shall be h~ld, transferred, sold, conv~yed and occupied subject to this Declaration is located in South Middleton Township, and is known and described as Abbey Court, more particularly described on the plans recorded in Cumberland County Plan Book 67, Page 63, (and attached hereto as Exhibit "A"). Restrictions for Use and Dev¢looment. The Lots outlined on the Plan shall be subject to the following restrictions: a) No Living Unit shall be used for any purpose other than a private dwelling for an Owner or an Occupant. Occupants shall be limited to individuals the age of forty (40) years or older. Exceptions to thi~ age restriction shall be govemccl by the Bylaws of the Association. b) No professional business or home occupation of any nature shall be permitted, even if accessory to the main residential use of the Living Unit. c). Neither the Owner nor the Occupaal of any Unit shall permit or suffer aaything to be done or kept upon the Lot, Living Uult, and Common Areas which will interfere with the rights of the other Owners, annoy them with unreasonable 4 '705 671 e) noises or otherwise, nor will any Owner or occupant conunit or po-mit any n~ or COllllllit or Rifler ally immoi'al or illegal act to be commitfed ill or on the Lot, Livln~ Unit or Common Areas. Each Owner shall maintain the interior of his, her or their Living Unit in good condition, order and repair at the Owner's expense. Each Owner shall maintain the extdrior &his, her, or their Living Unit in good condition, order and repair at the Owner's expense. Such maintenance shall not vary fi'om the uniform/Vd of colors and mater/als currently in use. Each Owner sh~ll consult with the Board of Directors prior to affecting exterior maintenance, thus ensuring uniform/ty of colors and materials. All requests for variances from ~ uniformity o£colors and materials shall bc made in writing to the Board of Directors of the Association. Only prior written approval of thc Board of Directors shall suffice to grant a variance. F_~h Owner shul! paint in the original color all exterior portions of thc Living Unit including bu! not lira/ted to, windows, shutters, doors, fences, light-posts, light fixtures, mailboxes, eaves, soffit, trim, and siding. All requests for variances from the uniformity of colors and materials shall be made in writing to the Board of Directors of thc Association. Only prior written approval of the Board of Dire~rs shall suffice to grant a variance. No Owner or Occupant shall decorate or otherwise alter or modify in any way the exterior ora Living Unit. No Owner or Occupant of any Living Unit ,h~,!l display, hang, store or use any sign or articles whatsoever outside tbe Livi~ Unit, with tbe cxueption of the J) 1) Amc'rican Flag and a"For Sale" sign, which sig~ shall be removed upon settlement of thc sale. "Sold" signs shall not be permitied. Drapes, cur~us or shades shall be p~rmRted in accordance with Rules and regulations e~-tablished by the Board of Directors of the Associations. No Owner or Occupant shall install outside his, her, or their Living Unit, any canopy, awning, cover, radio or tel~wision antenna, satellite dish, or other structure or addition of any kind whatsoever wigaout thc prior written approval of the Board of Directors of the Associalion. Trash, garbage or other waste, pending removal, shall be stored in the designated containers or areas in accordance with the collection service. No Owner or Occupant shall permit or suffer any article of personal property to be s~ored on the Common Property except automobiles or vehicles, which may be parked only in the designated parking spaces. The Common Areas shall be tlsed oIlly for the furnishing of services and facilities for which they are reasonably suited and which are incident to the use and occupancy of the Living Units. No Owner or Occupant shall place or cause to be placed in the public walkways, parking Lots, or other Common Areas, any furniture, packages, or objects of any kind. The only exceptions shall be deliveries, which shall be removed immediately upon the Owner's or Occupant's arrival home. Ifihe Owner or Occupant will not be home for a period ora day or more, an'angemcnts ,h,l! be made by the occupant to have deliveries removed. 705 eA £ 673 a MEMBERSHIP AND VOTING RIGHTS IN TIlE ASSOCIATION uOccupants" shall mean and refer to all those individuals who live within a Unit and who must be related to the Owner and of the age of forty (40) years old or older, unless otherwise approved of by the Association, and whose occupancy shall not exceed four (4) per Unit. "Owner" shall mean and refer to the record Owner, whether one or more pemons or entities, ora fee or undivided fee interest in any Living Unit which is subject to Covenants and Restrictions of record, but notwithstanding any applicable theory of the mortgage, shall not mean or refer to the mortgage unless such mortgage has acquired title pursuant to foreclosure of any proceeding in lieu of foreclosure. The Owner, if also an Occupant, must be the age of forty (40) years or older. Usc of the term Owner or Owners shall be deemed to include their proxy or proxies. "Member" shall mean and refer to Owners and Occupants. Voting Riv. hts - Each Living Unit will be credited with one vote and that one vote shall inure to the Owner of that Living Unit. If there are multiple Owners of one Living Unit then the one vote for that Unit inures to the Owners and is split between them -. they do not receive multiple votes. If two (2) or more Living Units have the same Owner or Owners, then one vote for each Living Unit will inure to the Owner or Owners. In no event shall more thnn one vote be cast with respect to any Living Unit. ~ o In all instances where Owners may vote, each Owner may vote in person or by proxy. Proxies may only be held by Occupants or Ovmers of Living Units or their legal representatives. All proxies shall be in writln5 and filed with the S~retary of the 705 676 Association. No proxy shall extend beyond a period of eleven (1 !) months and every proxy shall automatically cease upon sale by the Owncr of his Living Unit. Vo'tina - The instances when Owners or tbeir pwxles may vote include: a) b) c) d) e) 0 Annual Election of the Board ofDirecwrs oftbe Association; Owner's nomination of a candidate to the Board of Directors; Removal cfa Director, at an Annual or Special Meeting, for documented cause; Owners' call for a Special Meeting; Approval of Annual Assessments; Approval of Capital Improvement Assessments; and D~cisions to dedicate or transfer all or any part oftbe Common Properties to any public agency, authority or utility, ARTICLE IV PROPERTY RIGHTS IN TIIE COMMON pROPERTIES Owners' Easements of Enioymcnt- Every Owner shall have aa easement of, and be entitled to the, use and enjoyment oftbe Common Areas and stwh easement ~hMI be aPl~urten~nt to and shall pass with the title to every Living Unit Title to Common and Limited Common Properties. Thc Association holds legal title to the Common Areas. a) Rights-of-way and easements for water -nd sanitary sewers with completed improvements in place, arc &xiicated to South Middleton too 70.5 Plc£ 677 b) The title to common opea space fol' parks, ~pmv~ ~ p~e is hdd by ~o~ibi~u to ~ter eo~on f~ilifi~ ~d ~ ~ ~on open c) ~men~ for cleero, ~lcphone, ~le~sion prodded ~ ~ m~five o~mfi~ ~m~. E~nt of Mem~m' ~m~ts. ~e fi~ ~ e~men~ of enjo~ent ~a~d hereby ~1 ~ ~bject ~ ~e follo~ng: a) ~e fi~t of ~c ~iafion to ~w money for Co.on Pm~es ~d ~ ~d ~mofto mo~gage ~d prop~es, h ~e event of a &fa~t u~n ~y ~eh mo~gage. ~e leMer's figh~ h~d~ s~l ~ l~ted to a fi~ ~ ~ po~on of such proxies, ~ c~ge ~dm;~io~ ~d o~er fees ~ a coition to eon~u~ enjo~ent of such pw~es ~ a ~ public. ~fil &e mong~e debt ~ ~fisfi~. ~eu~n ~ ~ re.ed to ~e ~s~iation ~d ~y ggo~; b) ~e fi~t of&e ~i~on ~ ~e such steps ~ ~ ~mbly n~s~ to pmgct ~e above-d~fi~ ~es g~ fo~los~; c) ~e fi~t of ~e ~s~on, ~ pro~ded in i~ Bylaw, ~ s~nd ~ ~jo~em ~ of~y Mem~r for ~y ~od d~g w~ch ~y ~t ~ ~ f~ ~y ~od not to ~c~ ~ (30) &ys for ~y in--on of ~s ~0g 705 vigt 678 d) the right of the Association to charge reasonable adm~sdon and other flees flor the use of the Common Areas; thc right of individual Members to the exclusive use of i~king spaces a~ provided in Section 4 hereof; end the right of the Association to dedicate or uunsfer al! or any part of ~hc Common Areas to any public agency, authority or utility for such purposes and subject to such conditions as may bc aEreed to by the Owners, provided that no such dedication or wansfer, determination as to thc pm-poses or as to the conditions thereof, shall be effective unless an instrument si/ned by Owners entitle to cast two-thh'ds (2/3) of thc votes of the entire Owners has been recorded, a~rc¢ing to such dedication, trausffer, purpose or condition, and unless written notice of the proposed e~'cement and action thereunder is sent to every Member at ]ea.~ ninety (90) clays in advance of any action taken. It is herein understood that no such public atency or authority is oblitated to accept any such dedication or transfer. Parkir~, Ri~ht~. Thc Association shall mnlntain UpOn the Cotrlmon ~ at least two (2) parking spaces for each Living Unit except where an enclosed garage is part of the. realty of the Living Unit. Subject to reasonable ru/es and conditions, except when garages are pwvided as mentioned above; the Association shall designate only one (1) parking space conveniently located with respect to each Living Unit for the exclusive use of the Occupants of each Living Unit The use of such space by any other pc~on may be enjoined by the As,~)ciation or the Members entitled thereto. The right to the exclus/ve 705 679 t:z use of such piu~ing space and to its mainteannce and designation by the Association sl~/l be appurtenant to and shall pass ~th the title to each Living UUl~ COVENANT FOR ASSESSMENTS Creation of the Lien and Personal Oblii~ation of Assessments. Each Owner shall be subject to annual and non-annuai assessments levied by the Association. The resulting financial obligations shall be charged to each Owner of the prop,m'y against which such assessments were made. Any unpaid assessments shall become liens upon the property. Tvp~s of Assessments There shall be four types of assessments -- one annual and three non-annuaL The non-annual assessments are to be levied on an as n~ded basis. They shall Ig tiffed the Capital Improvement Assessment, tl~ Emergency Assessment, and thc Living Unit Special Assessment. 705 680 ·~ ~en~ ~ ~ ~ ~d for: i) ~ ~ ~ciat~ ~ ~gement ~d o~on of~e ~afion; ii) ~;~, ~l~emen~ or e~blis~ent of la~ ~d pl~s on ~d i~i) ~e, ~pl~ement, or e~lis~ent of side~ ~ ~ys on ~d ~ou~out ~e Pm~es; iv) m~te~cc, mpl~emen~ or c~blis~ent of outdoor ~gh~g ~ public v) m~ce, ~l~m~ or e~blis~ent of fi~f-~y ~d m~ys ~u~out ~c ~pe~cs; ~) ~ce, mpl~ement, or e~lis~ent ofmc~ffon f~i~fies ~cl-d~g but not limi~d to, g~s, t~s co~, pu~ng gcens, playgo~d ~pm~ pic~c faculties, ~d ~y ~ or app~e~s related ~emto; ~1 o~ es~nfi~ ~p~vemen~ ~d m~nt~ of ~e ~cl~g b~ not ~ ~, Common ~, ~v~, ~ ~w~, ~r l~es, ~ hy~, ~ow mmo~, ~ ~ov~, ~ ~te ~, b) c) d) x) xii) xiii) prOlgrty and liability insurance rela~ing to the Common Areas; accumulation of capital reserves deemed necessary for the replacement, or establishment of thc Common Areas; trash collection service; Association management services; cleaning of Common Area~; and the cost of labor, equipment, materials, and supervision for all of the foregoing. Thc Annual Assessment must be paid during the year for which it was levied, in any of the following m~nners: i) one ~nnual lump sum due when levied; or ii) twelve installments duc by the first of each month and paid no later than the tenth of each month; and iii) in the case ora mid-year purchaser of a Living Unit a) one pro rata lump sum due upon real estate closing on a Living Unit; or b) monthly pro rata im'tailments commencing the date of the real estate closing on the Living Unit and due by ~he firs~ of each month thereafter and paid no/ater than the tanth of each month. The mmual asse~me~ts ~h.l! mn for the fiscal year of the Association wMch begins the First (lst) of October ench year. Written notice contah~ an explanat/on of how the proposed annual assessment 705 682. annual budget for the Association shall be sent to all Owne~ at l~st thirty (30) day~ in advan~ of the me.nE at which the ratification vote fortbe *nnusl assessment will be taken. e) The quorum requked for a ratification vote on the ,A. nnllal Assessment shall be as follows: i) At the first meeting called, the presence at the meeting of twenty-five percent (25%) of all Owners or their proxies shall constitut~ a quorum. ii) If the requ/red quorum is not forthcoming at the first meeting called, another meeting shall be called and the required quorum at any such subsequent meeting shall be one-half (1/2) of the required quorum of the preceding meeting, provided that no such subsequent meeting shall be held more than s/xty (60) days following tho preceding meeting. 0 Once a quorum/s present, ratification of the Annual Assessment shall requ/re the a/ru'mafive votes of fifty-one percent (51%) of the quorum. Capital Iml)rovemcnt Assessment a) Purpose - This assessment shall be levied by the Association as often as is neeessa~ so that unan~/cipated Association expeas~s may be paid and unant/¢ipated capital/mprovemente may be made upon the Common Areas and the related necessary fixtures and personal pwperty. The revenue collected shall be used for:. i) unexpected consm~tion or reconstruction; fi) unexpecexi .repe/r~; 70.5 esi 683 ;6 ¢) iii) unexpected mainumanca; iv) uncxpec~f replacument; end v) unexl:~ed expenses of the Association All Capitel Improvement Assessments must be paid during the year for which they were levied, in any of thc following manners: i) on~ annual lump sum due when levied; ii) twelve installments due by the f~rs~ of each month and paid no later tl~.n the tenth of each month, commencing the month at%r the assessment was levied; iii) in the case of a mid-year purchaser of a Living Unit a) one pro rata lump sum due upon real estate ClOSing On a Living Unit; or b) monthly pro rata installments commencing the date of the real estate closing on the Living Unit and due by the first of each month thereafter and paid no later ths~ the tenth of each month, The quorum required for a ratification vote on Capital Improvement Assessments shall be as follows: i) At the first meeting called, the presence at the meeting of twenty-five percent (25%) of all Owners or their proxies shall coost/tute a quorum, i/) If the required quorum is not forthcoming at the first meeting called, another meeting shall be called and the required quorum at any such subsequent meeting shall be one-half(I/2) ofthe required quorum of the eoo '7'05 684 preceding meetln~ providcd that no such subsequent meeting shall be held more fh,,,, sixty (60) days following the preceding meeting. d) Once a quorum is present, ratification of the Capital Improvement Assessments shall require the affirmative voles of fifty-one percent (~ 1%) of the quorum. Emergency Assessment - a) Pur~o_ se - This assessment shall be'levied by the Board of Directors of the Association, in the event of emergency, when immediate funds are needed by the Association to pwmote the health, safety, and welfare of thc Members of, and visito~ to, the Properties. The revenue collected shall be used exclusively for the Association's reaction to the Emergency. b) The due date of the Emergency Assessment shall be fixed in the notice to Owners and in ~ resolution authorizing such assessment. The Board of Di_~ctors shall allow for flexible payment arrangements on an Owner by Owner basis for Emergency Assessments. Owners shall make reasonable efforts to pay the assessment within ten days if possible. c) Written notice containing an explanation of how the proposed Emergency Assessment shall be spent and the amount clue ~om each Owner shsll be sent to all Owners as soon as possible aiter the assessment has been levied. d) The Board of Directors of the Association ~h~l! have full discretion to levy an Emergency Assessment while keeping in mind the sevcrity of the emergency and the availability of, and prudence ofob~g, outside funding sources for the Association, such as loans. BOOK ?05 PAGE 685 b) Unit $~'i~l A.msessment - Pu~ose- This assessment shall be l~ied by the Board of Direaors of the A__-~ocJm/on against a Living Unit when the Owner has failed to ma/ntniu or tepa/r the exterior of the Living Unit and thc Association has decided to undertake such maintenance and repair on its own. Thc revenue collec~xd ~h~ll be used exclusively for: i) ma{ntenance of the exterior of the Living Unit ii) repair of the exterior of the Living Unit iii) preservation of the unifozmity of colors and materials of the exterior oft. he Living Unit iv) other necessary and reasonable purposes ns deemed by the Board The Living Unit Special Assessment shall be due: i) us fixed in the notice to the Owner and in the resolution authorizing such ii) ussessment; or at the discretion of the Board of Directors the estimated cost of the exterior maintenance or repairs contemplated in this subparagraph shall be added to and become part ofibe Annual Assessment to which such Living Unit is subject. The Board of Directors shall, thereafter, make such adjustment with the Owner as is necessary to reflect the actual cost thereof. Ifa Living Unit Special Assessment is to be added to the Annual Assessment for a Living Unit, the Living Unit Special Assessment shall not be subject to ratiticatinn through vote by the Owners. 7,0.5 686 19 c) Written notice containing an acoo,miin~ of the Living Unit Special Assessment and the amount due shall be sent to the Owucr ia que,slion as soon as possible after the ass,~*ment has been levied. No notice of this assessment shall be given to other Owners. d) The Board of Directors of the Association ~ha~l have full discretion to levy a Liv~ Unit Special Assessment after giving the Owner thirty (30) days notice that such an assessment is being considered and after affording the Owner an oppommiiy to be heard at a Board of Dkectors meeting. e) For the purpose solely of performing the cxterior maintenance or repair contemplated in this subparagraph, the Association, through its duly authorized agents or employees shall have the fight, after reachable notice to the Owner, to enter upon any part of the Properties or the extezlor of any Living Unit at reasonable hours on any day except Saturday or Sunday. 7. Procedures, Rights, and Responsibilities Regarding Liens and Personal Obligations a) The annual and non-annual assessments together with iater~st clu~ged due to delinquent payments and the cost of collection shall be a charge on the land and shall be a continuing lien upon the property against which such assessment is m~de. Such li~n is authorized and governed by The Uniform Planned Communities Act, specifically 6g Pa. C.S. ~$315. The automatic placement ora lien pursuant to §5315 shall not preclude the Asseciation from purs~in~ collection of th~ assessment from the Owucr who held title to the Living Unit s~ the time the assessment was levied. If the assessment is successfully collated, the lien shall 70.5 PACE 687 20 c) The Association ~hnll have the duty to furnish upon demand at any time to any Owner liable for any assessment, a Statement of Unpaid ~ents in wri6n~ signed by the President or Vice President and Treasurer of th~ Association, se~ting forth the amount of unpaid assessments levied against his, her, or its Living Unit. Such Statement shall be rum/shed within I0 business days from the da~e of the request. All assessments are obligations imposed against each Owner and constitute a lien upon the property against which they were levied. i) Creation of the Lien and Personal Obligation of the Assessments - Each Owner of any Living Unit, by acceptance ora deed therefore, whether or not it shsll b~ so expressed in any such deed or other conveyance, is deemed to covenant and agree to pay to the Association any assessments levied. ii) Effect of Non-Payment of Assessment: the Personal Obligation of the Owner:. the Lien: Remedies of thc Association - If any assessment is not paid on the date when due, it shall become delinquent. When delinquent, the unpaid portion of the assessment, together with interest on the unpaid portion, and the cost of collection become a continuing lien on the prop~/y which shall bind such property in the hands of the then Owner, his h~hs, devisees, personal represenU~ives and assigns. The personal obligation of the then Owner to pay such as~*-*m~t shall mnain his personal obligation. 70.5 PAct f 88 21 ii0 ~tere~ on the Lien - If the a,~essment is no~ paid within g~'ty (30) d~ys after thc delinquency date, the assessment ~ bear interest from the date of delinquency at the ram of twelve 10ercent (12%) per annum. In such au event, the Association may bring au action at law or equity ags!n.~t thc Owner personally obligated to pay the assessment or to foreclose the lien against the property, and there shall be added to the amount of such assessment, the costs of preparing and filing the complaint in such action, and in the event a judgment is obtained, such judgment shall include interest on the assessment, a reasonable attorney fee to be fixed by the court, together with the costs of the action. iv) Subordination of the Lien to Mortgages - The lien of the ~ssessments provided for herein shall be subordinated as provided by The Uniform planned Communities Act, specifically 68 Pa. C.S. §$315, attached as Appeud/x II. v) Exempt Pwverty - The following pw~erty subject to these Bylaws shall be exempted from thc assessments, charge and Ben created therein: a) all properties to thc cxtcnt of any easements or other interest thcrein tied/cared and accepted by the local public author/ty and devoted to public'use; b) all Common Areas as defined in ARTICLE I, Section l(c ) of th/s Declar~on; and c) nil properties exempted from taxation by the laws of thc Commonwealth of Penn~y]vafl/a, t/poD the ~ arid to the exte/lt of such legal exempt/on. Notwithstanding any provisions herein, no land or improvements devoted to dwelling use shall be exempt from said assessments, charges or liens. ARTICLE VI PARTY WALLS FOR LIVING UNITS General Rules of Law to Apoly. Each wall which is buih as part of the original co~ztrucfion of the homes upon the Pro!c~ties and placed on the dividing line between the Lots shall cor~tute a party wall, and to the extent not inconsistent with the pwvisions of this Article, the general rules of law regarding party wails and of liability for property damage due to negligent or willful acts or omissions shall apply thereto. Sharing of Repair and Maintenance. The cost of reasonable repair and maintenance of a party wail shall be ~h~red by the Owners who make use of the wall in proportion to such Destruction of Fir~ or Other Casualty. If a pa~y wall is d~'ixoyed or damaged by rue or other caanaiv], any Owner who has u.~d the wall may restore it, and if the other Owners thereafter make use of the wall, they shall conuibute to the cost ofrestom6on thereof in proportion to such us~ withou~ prejudice, however, to the right of any such Owner~ to call for a larger coniribufion from the others under any rule of law regarding l~*~ili~y for negligent or willful acts or omJ~ions. 70.5 eAc£ 690 Weat. bervroofmg· Notwithstandi~ any other provision of this AiXicle, an Owner who, by his negligent or willful act, causes the party wail to be exposed to the elements shall bear the whole cost of fumish~g the necessary proteedon egah~ such elements. Riebt lo Contribution Runs with Land. The tight of any Owner io contribution from any other Owner under this Article shall be appurte~umt to the land and shall pass to such Owner's successors in title. As such, any obligation incurr~ by the Owner of a Living Unit will become the obligation of the new owner of that Unit in the event that the Uni! is sold prior to satisfaction of the obligation, ~. In the event of any dispute arising concerning a party wall, or under the provisions of this Article, each party ,shall choose one arbitrator, and the a~bitrators shall choose one additional arbitrator, and the decisions of a majority of all the arbitrators ~,ll be final and conclusive of the question involved. If the arbitrators selected are unable to select a third arbitrator within thirty (30) days, either party to the dispute may request a Judge of Court of Common Pleas of Cumberland County, Pennsylvania to appoint same. ARTICLE VII GENERAL PROVISIONS Duration, The Covenants and P. esUictions of this D~laration shall run with a~d bind the land, and shall inur~ to the befell! of and be enforceable by the Association, or the Owner of any land subject to this Declaration, their respective legal ~-prcsentatives, heirs, successors and assigns, for a term often (10) years from the date this Declaragon is recorded, after which lime said Covensn~s a~d Restrictions ~:h~,]! be atitomatlcally for successive lx iods often (10) yeats u-,leas aa iasuumem signed by the then- Own~s of two-thirds C2J3) of the Living U~s has ~ recorded, ~ lo e. baage said B 0K 705 PA [ fi.q1 24 Covenants and Resh'ict/ons in whole or in part Provided, however, that no such agreement to change shall be effective unless made and rmor&xl three (3) years in advance of the effective date of such chAn~e, and unless notice of the proposed agreement is Sen! to cvc~y Owner at Ica.st ninet~ (90) days in advance of any action taken. Notice~. Any notice required to be sent to any Member or Owner under thc provisions of this Declaration shall be deemed to have been properly sent when delivered to the Unit or mailed, postpaid, to thc last known address of the per,on who appears as Member or Owner on thc records of the Association at the time of such ma/ling, if said member or Owner is not living there at the time, ~Enforcement. Enforcement of these Covenants and Restrictions shall be by any proceeding at law or ki equ/ty agaln~t any person or persons violating or attempting to vinlate any Covenant or Restr/cfion, either to restrain violation or to recover damages', and against the land W enforce any lien created by these Covenants and Restrictions; and failure by the Association or any owner to enforce any covenant or restriction her~in contained shall in no event be dcemed a wa/ver of the right to do so thereaz%r. Severabilitv. Invalidation ofany one o£ these covaaants or restrictions by judgment or Court Order shall in no wise affect any other provisions which shah remain in full force and effect ~ AMEqDMEN'I'S made this 29~ day of December, 2003, are corrective Amendments pure,nm to § 5219(0 of Pennsylvania's Uniform Planned Communities Act, 68 Pa,C.S § 5101 et seq. The unders/~ed Board olD/rectors sought, and received the opinion of independent legal counsel, Stepbanie E. Chertok, R.N., Esq. and John C. Porter, Esq., to the 70.5 692 effect that the Amendments ~re perm/tted by the tt~ms of § 5219(/) of Penmylvania's Uniform Pl/~[led Comm~litie~ Act. IN WITNESS WHEREOF, THE UNDERSIGNED I)i~rs adopt these Amended and Restated Cov~mnts and Restrictions of the Villas Homeowners A~ociation, Inc., this d,yof-2) Ce ,2oo . TI~ VILLAS HOMEOWNERS ASSOCIATION, 1NC. MaYga~ March/, President (SEAL) (SE,~L) Esther Miller, Vice President William Boldossel~ £~ .'a ~y~~. (SE,~L) (SEAL) Beverly Olover (SE,~L) 1 Certify this to be recorded In Cu~: ~bcrtand County PA ~ '" Recorder of'Deeds EXHIBIT B OECLARATZON OF. COVEN.AH,TS ANO RESTRICTIONS THIS DECLARATION, made this /~ day of~ , A,D., 1987, by THE VILLAS ASSOCIATES, hereinafter called Developer of ' The Villas Development, hereinafter called The Villas, located in South Middleton Township, Cumberland County, Pennsylvania. WITNESSETH: WHEREAS, Developer is the legal owner of the real property described in Article II of this declaration and desires to create thereon a residential community with permanent parks, playgrounds, open spaces, and other common facilities for the benefit of the said community; and WHEREAS, Developer desires to provide for the preservation of the values and amenities in said community and for the maintenance of said parks, playgrounds, open spaces and other common facilities; and, to this end, desires to subject the real .property described in Article II together with such additions as may hereafter be made thereto (as provided in Articl~ II) to the covenants, restrictions, easements, charges and liens, hereinafter set forth, each and all of which is and are for the benefit of said property and each owner thereof; and .~HEREAS, Oeveloper has deemed it desirable, for efficient preservation of the values and amenities in community, to create an agency, to which should be delegated assigned the powers of maintaining and administering the said and the community properties and facilities and administering and enforcing the covenants and restrictions and collecting and disbursing the assessments and Charges hereinafter, created; and WHEREAS, Developer has incorporated under the laws of the Commonwealth of Pennsylvania, as a nonprofit corporation, TNE VILLAS NOHEOWNERS ASSOCIATION, INC., for the purpose of exer- cising the functions aforesaid. NOW T~REFORE, the Developer declares that the real property described in Article II, and such additions thereto as may hereafter be made pursuant to Article II hereof, is and shall be held, transferred, sold, conveyed and occupied subject to the covenants, restrictions, easements, charges and liens {sometimes referred to as 'covenants and restrictions') hereinafter set forth. AR~[CL~ ~ DEFZNIT~ONS Section I. The following words when used in this Declaration or any Supplemental Declaration {unless the context shall prohibit) shall have the following meanings: ia) 'Association' shall mean and refer to The Villas Homeowners Association, a nonprofit corporation. (b) 'The Properties' shall mean and refer to all such existing properties, and additions thereto, as are subject to this Oeclaration or any Supplemental Oeclaratton under OOK 337 2 the provisions of Arttcle ZZ, hereof. (c) 'Con~on Properties' shall mean and refer to those areas of land shown on any recorded subdivision plan of The Properties and tntended to be devoLed to the common use and enjoyment of the owners of The Properties, and may tnclude the land and improvements for streets, easements, parks, play, ground, swimming pools, pedestrianways, ~nd any buildings, structures or appurtenances incident thereof. id) 'Limited Common Properties' shall mean Common Properties designated on the plan and intended for the exclusive use by the owner of the lot (or Living Unit) such as yards, private drives and walks surrounding the Living Unit and underground lateral pipes' and/or conduits for water, sewer, gas, electric, telephone, television and such other underground lines. (e) 'Lot' shall mean and refer to any plot of land shown upon any recorded subdivision map of The Properties with the exception of Common Properties as heretofore defined. (f) 'Living Unit' shall mean and refer to any portion of a building situated upon The Properties designed and intended family. (g) building for use and occupancy as a residence by a single 'Single Family Detached Dwelling' shall mean a used by one family, having only one dwelling unit 337 J, C[ 3 and two side yards. (h) "Stngle Famtly Attached O~elllng (Townhouse)' shall mean a building used by one family and having one dwelling unit and one or two party walls in common with other Living Unit{s) {such as Townhouses). (i) 'Owner' shall mean and refer to the record owner, whether one or more persons or entities, of the fee simple title t~ any lot or Living Unit situated upon The Properties -but, notwithstanding any applicable theory of the mortgage. shall not mean or refer to the mortgagee unless and until such mortgagee has acquired title pursuant to foreclosure or and proceeding in lieu of foreclosure. {j) 'Hember' shall mean and refer to all those Owners who are Members of the Association as provided in Article III, Section 1, hereof. {k) 'Oeveloper' shall mean and refer to The Villas Associates. ARTICLE II PROPERTY ~U@~E,CT TO ~UI~ DECLARAT[ON: ADDZTZONS THERETO Section 1. Existi.ng Propert~. The real property which is, and shall be held, transferred, sold, conveyed and occupied subject to this Declaration ii located in South Mtddleton Township, and is known and described as Abbey Court, more particularly described on the plans recorded in Cumberland County Plan Book ,.Page (and attached hereto as Exhibit "A"). Section 2. Restrictions fo~ Use and Development. The Lots outlined on the Plan shall be subject to the following restrictions: {a) No Townhouse shall be used for any purpose other than a private 'dwelling for the Owner or Owners and his, her or their immediate family, or by a person's or persons' immediate family to whom the Owner has leased the Townhouse. {b) No professional business or home occupation of any nature shall be permitted, even if accessory to the main residential use of the Townhouse. However, one or mare madel townhouse units may be maintained by the villas Associates upon the property. (c) No Owner nor an occupant of any Unit shall permit or suffer anything to be done or kept upon the lot which will interfere with the rights of the other Owners, annoy them with unreasonable noises or otherwise, nor will any Owner or oqcupant of any Townhouse commit or permit any nuisance or commit or suffer any immaral or illegal act to be committed in or on the lot or Townhouse, or both. (d) Each Owner shall maintain ~is, her or their Townhouse in good condition, order and repair at the OwneP's expense. (e) No Owner shall paint any exterior portion of the Townhouse, including, but not limited to, windows, shutters, ~00~ 33'7 ~AC[ ~.()~ 5 doors, fences, ltghtposts, light fixtures, ~ailboxes, eaves, soffit, trim and siding, except in the original color, with- out the prior written approval of the Board of Directors of the Association. (f) No Owner or any occupant of any Townhouse shall display, hang, store or use any sign or articles whatsoever outside the Townhouse. (g) Orapes, curtains or shades shall be permitted in accordance with Rules and Regulations established by the Board of Directors of the Association. (h) No Owner may paint, decorate or otherwise alter or modify in any way the exterior of the Townhouse, or install outside his, her or their Townhouse any 'canopy, awning, cover, radio or television antenna, or other structure or addition of any kind whatsoever without the prior written approval of the Board of Directors of the Association. (i) Trash, garbage or other waste, pending removal, shall be stored in the designated containers or areas in accordance with the collection service. {j) No article of personal property belonging to any Owner or otherwise shall be stored in the commOn property, except automobiles or vehicles may be parked in the designated parking spaces. (k) The Conlnon Property shall be used only for the furnishing of services and facilities for which they are reasonably suited and which are incident to the use and $ occupancy of the Townhouses shall publtc walkways, Townhouses; Owners or occupants of not place or cause to be placed tn the parking lots or other Common ?ropert~es, any furniture, packages or objects of any kind, (1) No trailers, mobile homes, boats, recreational vehicles, vehicles that are unlicensed or inoperable shall be parked by the Owners or occupants of any of the Townhouses oC their guests. · (m) Animals, livestock or poultry, excepting household pets, shall not be raised, bred or kept in any Townhouse. Household pets may be kept, provided they are not kept, bred or maintained for any commercial purpose and shall at all ' times be on a leash or have some other appropriate means of control and be accompanied by the Unit Owner, or by a member of his family, or by a custodian designated by the Unit Owner when in the common or limited common facilities. In such cases, the pet custodian shall be equipped with a suitable container a~d pooper scooper to .remove all droppings or litter deposited on the common or limited common facilities. Should there be a question as to what constitutes a household pet, shall make the determination. in) No signs shall be erected or maintained Lot. the Developer or tls successor on any (o) No Owner or occupant shall erect, install, paint, 7 or maintain any fence on the front or rear yards of a Lot or along the boundary lines of a Lot, except as originally installed by Developer, unlessapproved by the Board of Oirectors of the Association. Further, no hedges or shrubs shall be planted along the Lot boundary of the front, side or rear yards of any T~wnhouse without the approval of the Board of Oirectors of the Association. Hedges, shrubs or other plants may be planted within eight (8) feet of"the front or rear of any Townhouse with the approval of the Board of Directors of the Association; (p) The Board of Directors of the Association may, from time to time, promulgate rules and regulations not in conflict with the provisions of this Declaration concerning the use and enjoyment of the ¢ommen property, subject to the right of He Hembers to change such Board of Oirectors rules and regulations. (q) By virtue of taking title to a Lot subject to the terms of this Declaration, each Owner covenants and agrees with all the other Owners and the Association that in the event that the Association does not carry blanket all risk casualty insurance on the Lots and the structures thereon as provided for in this instrument that each individual Owner shall carry such insurance. Each individual Owner further covenants that and agrees that in the event of a partial loss or damage and destruction resulting in less than total B destruction, the individual- Unit Owner shall proceed Rromptly to repair or reconstruct the damaged structure in a manner consistent with the original construction, subject to the approval of the Board of Directors of the "Association'. ARTICLE III NENBERSHIP AND VOTXNG RIGHTS IN THE ASSOCIATION Section 1. ~mqership. Every person or entity who is a record Owner of ~ fee or undivided fee interest in any Living Unit which is subject by the covenants of record to assessment by the Association shall be a Hember of the Association, provided that any such person or entity who holds such interest merely as a security for the performance of an obligation shall not be a Hember. Section 2. Votin~ Rights. The Association shall have two classes of voting membership: Classy.. Class A Members shall be all those Owners as defined in Section l, with the exception of the Oeveloper. Class A Members shall be entitled to one vote for each Living Unit in which they hold the interests required for Nembershtp by Section I. When more than one person holds such interest or interests in any Living Unit, all such persons shall be Hembers, and the ~ote for such Living Unit shall be exercised as they among themselves determine, but in no event shall more than one vole be cast with respect to any such Living Unit. 33'/PACE .I.O g Class ~. Class B Hembers shall be The ¥tllas Associates, and any successor of The Villas Associates or the Oeveloper who takes title for the purpose of development and sale end who is designated es such in a recorded instrument. The Class B Kember shall originally he entitled to Two Hundred Forty-Six (246) votes; this number shall be decreased by one (I) vote for each Class A Member existing at any one time. The Class B Membership shall terminate and be converted to Class A Membership upon the happening of the earlier of the following: (a) when the total Class k votes equal or exceed the total number of Class B votes; or (b) The Villas, the Developer, or any successor named b~ The Villas and the Developer and specifically given the right ~y them so to do in a written instrument decide to terminate the Class B Membership. From end after the happening of these events, whichever occurs earlier, the Class B Kember shall be deemed to be Class A ~ember entitled to one vote for each Living Unit in which it holds the interests required for Membership under Section 1. (For the purpose of determining the votes allowed under this Section, when Living Units are counted, the Lot or Lots upon which such Living Units are situated shall not be counted.) 33'7 r c£ lO ART][CLE IV PROPERTY RIGNT,S IN THeE COI~NON PROPERTIES Section 1. Nembers' Easements of Enjoyment. Subject to the provisions of Section 3., every Member shall have a right and easement of enjoyment in and to the Common and Limited Common Properties and such easement shall be appurtenant to and shall pass with the title or lease to every Living Unit. Section 2. Title t~o Comm?q ap~ Limited Commg.~ Properties. The Developer may retain the legal title to the Common and Limited Common Properties until such time as improvements are completed thereon. Notwithstanding any provision herein, the Developer hereby covenants, for itself, its heirs and assigns, that it shall convey the Common and Limited Common Properties as follows: (ay Rights-of-way and easements for streets, water and sanitary sewers with completed improvements in place, shall be dedicated to South Niddleton Township. {.b) The title to common open space, for parks, recreation, storm drainageways and storm water management facilities and other common facilities with improvements in place shall be transferred to the ~Association under the · condition that the Association shall have or hire adequate staff to administer common facilities and maintain the common open space. (c) Easements for electric, telephone, television and ~0~ 33'] r~'~1.~ 11 other utility services, shall be provided to the respective operating companies. Section 3. ' Extent o.~f Hembers' Ea~emeQts. easements of enjoyment created hereby shall following: ia) The rights and be subject the The right of the Developer and of the Association to borrow money for the purpose of improving the Common Properties and in aid thereof to mortgage said properties. in the event of a default upon any such mortgage, the lender's rights hereunder shall be limited to a right, after taking possession of such properties, to charge admission, and other fees as a condition to continued enjoyment by the Nembers and, if necessary, to open the enjoyment of such properties to a wider public until the mortgage debt is satisfied thereupon the possession of such properties shall be returned to the Association and all rights of the ~embers hereunder shall be fully restored; {b) the right of the Association to take such steps as are reasonable necessary to protect the above-described properties against foreclosure; {c) the right of the Association, as provided in its Bylaws, to suspend the enjoyment rights of any ~ember for any period during which any assessment remains unpaid, and for any period not to exceed thirty (30) days for any infraction of its published rules and regulations; 337, 1.3 12 (d) the rtght of the Association to charge reasonable admission and other fees for the use of the Co~n Properties; (e) the right of Individual Hembfrs to the exclusive use of parking spaces as provided in Section 4 hereof; (f) the right of the Association to dedicate or transfer all or any part of the Common Properties to any public agencY, authority, oK utility for such purposes and subject to such conditions as may be agreed to by the Hembers, provided that no such dedication or transfer, determination as to the purposes or as to the conditions thereof, shall be effective unless an instrument signed by Hembers entitled to cast two-thirds (2/3) of the votes 'of the Combined Class of Hembership has been recorded, agreeing to such dedication, transfer, purpose or condition, and unless written notice of the proposed agreement and action thereunder is sent to every Member at least ninety {90) days in advance'of any action taken. It is herein understood that no such public agency or authority is obligated to accept any such dedication or transfer; and (g) In the event that the Association shall, at any time, fail to maintain the Common Properties under its Jurisdiction in reasonable order and condition in accordance with the development plan, South Middleton Township may serve written notice on the Association or the Owners 13 setting forth the manner in which the Association has failed to maintain the common open space in reasonable condition; and said notice shall include a demand that such deficiencies ofmeintenance be cured within thirty (30) days thereof and shall state the date and place of a hearing thereon which shall be held within fourteen (14) days of the noticek At such hearing, the Township maymadify the terms of the original notice as to the deficiencies and may give an extension of time within which they shall be cured. If · the deficiencies set forth in the original notice or the modifications thereof shall not be cured within said thirty (30) days or any extension thereof, the Township, in order to preserve the taxable values of the properties within The Villas and prevent the common open space from becoming a public nuisance,' my enter upon said common open space and maintain the same for a period of one year. Said entry and maintenance shall not vest in the public any rights to use the common open space except when the same is voluntarily dedicated to the public by the residents and Owners. Before the expiration of said year the Township shall, upon its initiative or upon the request of the Association, call a public hearing upon notice to the Association and Owners to be held by the Township, at.which hearing such Association and Owners shall show cause why such matntainance by the Township shall not, at the election of the Township, conttnue for a succeeding year, Zf the Townshtp shall determine that the Association ts ready and able to maintain said common open space in a reasonable condition, the Township shall cease to maintain said common open space at the end of said year. If the Township shall determine the. Association is not ready and able to maintain said common open space inca reasonable condition, the Townshipmay, at its discretion, continue to maintain said common open space during the next succeeding year and, subject to a similar hearing and determination, in each year thereafter. The decision of the Township in any such case shall constitute a final administrative decision subject to judicial review.. The cost of such maintenance by the Township shall be assessed ratably against the properties within The Villas that have a right of enjoyment of the common open space and shall become a tax lien on said properties. Said assessments or charges shall be subordinate in'lien to the lien of any mortgage or mortgages on the property which is subject to such assessments or charges, regardless of when said mortgage or mortgages were created or when such assess- meots or charges accrued, provided such subordination shall apply only to assessments or charges that have become payable prior to the passing of ~itle under foreclosure of such mortgage or mortgages and the transferee shall not be liable for payment of any assessments or charges accruing prior to said foreclosure; but nothing heFetn shall be held to affect the rights herein given to enforce the collection of such assessments or charges accruing after sale under foreclosure of such mortgage or mortgages~ and provided, further, that such charges accruing after sale shall also be subordinate in lien to the lien of any further mortgage or mort~ges which are placed on property subject to such assessments or charges, with the intent that no such charges sh~ll at any time be prior in lien of any mortgage or mortgages whatsoever on such property. The Township, at the time of entering on said common open space for the purpose of maintenance, shall file a notice of such lien in the Office of the Prothonotary of the County on the properties affected by such lien within the planned residential development. Section 4. Parking Rights. The Association shall maintain upon the Common Properties at least two (2) parking spaces for each Living Unit in areas developed with Townhouses unless enclosed garage spaces are provided and specified on the plan along with the ~iving unit. Subject to reasonable rules and conditions, except when garages are provided as mentioned above, the Association shall designate only one {1) parking space con- veniently located with respect to each Living Unit for the exclusive use of the Members residing therein, their families and guests. The use of such space by any other ~ember or person may be enjoined by the Association or the ~embers entttled thereto. The rtght to the exclusive use of such parking space and to its maintenance and designation by the Association shall be appurtenant to and shall pass with the title to each Living Unit. ARTZCLE ~ COVENANT FO~RNAZNTENANCE A$SESSNENTS Section 1. ~reation o_~.f the Lien and Persona~lObligationof Assessments. lhe Developer for each completed Living Unit owned by him within The Properties hereby covenants and each Owne~ of any Living Unit by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed or other conveyance, be deemed to covenant and agree to pay to the Association: (I) annual assessments or charges; {2) special assessments for capital improvements, such assessments to be fixed, established, and collected from time to time as hereinafter provided. The .annual and special assessments, together with such interest thereon and costs of collection thereof as hereinafter provided shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with such interest thereon and cost of collection thereof as hereinafter provided, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due. Section 2. Purpose of Assessments. The assessments levied 17 t by the Association shall be used exclusively for the purpose of promoting the recreation, health, safety, and welfare of the residents in The Properties and, in particular, for the improve- merit and maintenance of properties, services and facilities devoted to this purpose and related to the use and enjoyment of the Commo~ Properties and of the homes situat~d upon The Properties, including, but not limited to, the payment of taxes and insurance thereon., and repair, replacement and additions thereto, and for the cost of labor, equipment, materials, manage- ment and supervision thereof. Section 3. Basis o._~f Annual Assessments. The Association, through its Board of Directors, shall fix the annual assessment per lot based upon the estimated cost of carrying out the responsibilities of the Association. There shall be annual assessments as follows: General assessments applicable to all record Owners of ~ots upon which are constructed Townhouses. Said properties shall be assessable for the following purposes only: (al The lawns and planting as outlined on the Final Subdivision Plans under the title of Conmnon Open Space. (b) The sidewalks and pedestrtanways in the public rights-of-way easements and in common open space as outlined ' on the Final Subdivision Plans. {c) Outdoor lighting in public rights-of-way and on common properties. 337 18 (d) Essential improvements such as drtves, sanitary sewers, water lines, fire hydrants, storm sewers, drainage- ways and storm water management facilities, fences, signs and other facilities essential for the use and maintenance of Common Properties. (e) Recreation facilities such tennis court~, playground equipment, · any structures or appurtenances related thereto. if) Liability and Property Damage Insurance to the aforementioned Common Properties. merit as swimming pools, picnic facilities and relating (g) Capital Reserves as deemed necessary for replace- of the aforementioned Common Properties. (h) Trash Collection Service. (t) Hanagement Services. (j) Parking lots and related improvements. (k) Lawns and Planting. il) Exterior of Townhouse buildings. (m) Insurance on (Fiveplex) Townhouse common lobbies. In the event of.assessments for exterior maintenance of the Town- house, insurance on dwellings, or replacement reserves which pertain to a particular Townhouse, such assessments that are for the use and benefit of a particular :Got and Unit shall be levted on a pro-rata basis among benefited Owners. Section 4. Special Assessments .[o~ Capital Improvements. In addition to the annual assessments authorized by Section 3 33'7 i hereof, the Association may levy in any assessment year a special assessment, applicable to that year only', for the purpose of defraying in whole or in part, the cost of any constuction or reconstruction, unexpected repair or replacement of a described capital improvement upon the Common Properties, including the necessary fixtures and personal property related thereto, provided tRat any such assessment shall have the assent of fifty- one' percent of the votes of each Class of Hembers who are voting in person or by proxy at a meeting duly called for this purpose, written notice of which shall be sent to all Hembers at lea'st thirty {30} days in advance and shall set forth the purpose of the meeting. Section 5. Quorum fo.__crAn~ Actio_.._..~nAuthorized Under Section 4..:. The quorum required for any action authorized by Section 4 hereof shall be as follows: At the first meeting called, as provided in Section 4 hereof, the presence at the meeting of ~embers, or of proxies, entitled to cast twenty-five {25) percent of all the votes of each Class of Membership shall constitute a quorum. If the required quorum is not forthcoming at any meeting, another meeting may be called, subject to the notice requirements set forth in Section 4 and the required quorum at any. such subsequent meeting shall be one-half of the required quorum at the preceding meeting, provided that no such subsequent meeting shall be held 20 .mere than sixty (60) days following the preceding meeting. Sectton 6, ~at~ of Commencement of A~nual Assessments: Du_~e Dates. The annual assessments provided for herein shall commence on the date (which shall be the first day of a month) fixed by the Board of Directors of the Association to be the date of commencement. The first annual assessments shall be made for the balance of the calendar year and shall become due and payable on the day fixed for commencement, The assessments for any year, after the first year, shall become due and payable on the first day of March of said year. The amount of the annual assessment which may be levied for the balance remaining in the first year of assessment shall be an amount which bears the same relationship to the annual assessment provided for in Section 3 hereof as the remaining number of months in that year bear to twelve. The same reduction in the amount of the assessment shall apply to the first assessment levied against any property which is hereafter added to' the properties now subject to assessment at a time other than the beginning of any assessment period. The Board of Directors may' provide that the annual assessment may be paid in monthly installments. The due date of any special assessment under Section 4 hereof shall be fixed in the resolution authorizing such assessment. 33'7 21 Section 7. Out, ies of the Boar~ of Directors. The Board of Otrectors of the Association shall fix the date of commencement and the a~ount of the assessment against each ~ot (or Living Unit) for each assessment period of at.least thirty (30) days in advance of such date or period and shall, at that time, prepare a roster of the properties and assessments applicable thereto which shall be kept in the office of the Association and shall be open to inspection by any Owner. Written notice of the assessment shall thereupon be sent to every Owner subject thereto. The Association shall upon demand at any time furnish to any Owner liable for said assessment a certificate in writing signed by an officer of the Association, setting forth whether said assessment has been paid. Such certificate shall be conclusive evidence of payment of any assessment therein stated to have been paid. Section 8. Effect o._~f Non-Payment PePsonal Obliqation of the Owner~ ~he of Assessment: .Thee Lien; Remedies o..~.f Association. If the assessments are not paid on the date when due (being the dates specified in Section 7 hereof}, then such assessment shall become delinquent and shall, together with such interest thereon and cost of collection thereof as hereinafter provided, thereupon become a continuing lien on the property which shall bind such property in the hands of the then Owner, his heirs, devisees, personal representatives and assigns. The 22 personal obligation of the then Owner to l~Y such assessment, however, shall remain hts personal obligation for the statutory period. ]f the assessment is not paid within thirty (30) days after the delinquency date, the assessment shall bear tnterest from the date of delinquency at the rate of twelve (12Z) percent per annum, and the Association may bring an action at law agains~ the Owner personally obligated to pay the same or to foreclose the lien against the property, and there shall be added to the amount of such assessment the costs of preparing and filing Lhe complaint in such action, and in the event .a judgment Is obtained, such judgment shall include interest on the assessment as above provided and a reasonable attorney's fee to be fixed'by the Court, Logether with the costs of the action. Section 9. Subordination of the .~!~ to ~ortgages. The lien of the assessments provided for herein shall be subordinate to the'lien of any mortgage or mortgages now or hereafter placed upon the properties subject to assessment; provided, however. that such subordination shall apply only to the assessments which have become due and payable prior to a sale or transfer of such property pursuant to a decree of foreclosure, or any other proceeding in lieu of foreclosure. Such sale or transfer shall not relieve such property from liability for any assessments thereafter becoming due, nor from the lien of any such subsequent. assessment. Sectfon lO. .E~empt Property. The following property subject to this Declaration shall be exempted from the assessments, charge and lien created heretn: (al all properties to the extent of any easement or other interest theretn dedicated and accepted by the local public authority and devoted to public use; (b) all Common Properties as defined tn Article Z, Section 1 hereof; %(c) all properties exempted from taxatto~ by the laws of .the Commonwealth of Pennsylvania, upon the terms and to the extent of such legal exemption. Notwithstanding any provisions heretn, no completed Living Untt devoted to dwelling use shall be exempt from satd assessment, charges or liens. ARTZCLE ¥._~I ,pA~,Ty WALLS FOuR TOWNHOUSES Section 1. Genera~l Rules o~ Law to Apply. Each wall which is built as part of the original construction of the homes upon The Properties and placed on the dividing line between the Tots shall constitute a party wall, and to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls and of liability for property damage due to negligent or willful acts or omissions shall apply thereto. Section Z. shattng of.R~p~ir andMaintenance. The cost of reasonable repair and maintenance of a party wall shall be shared by the Owners who make use of the wall in proportion to such use. 33'? ~ection 3.' Destruction byF~reor Other Casualty. Zf a party wall ts destroyed or damaged by fire or other casualty, any O~ner who has used the wall may restore it, and if the other O~ners thereafter ~ake use of the wall, they shall contribute to the cost of restoration thereof In proportion to such use without prejudice, however, to the right of any such Owners to call for a larger contribution from the others under any rule o~ law regarding liability for negligent or willful acts or omissions. Section' 4. Weatherproofing. Notwithstanding any other provision of this Article, an Owner who, by his negligent or wt]lful act, causes the party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements. Section 5. yght to Contribution ~?s with Land. The right of any Owner to contribution from any other Owner under this Article shall be appurtenant to the land and shall pass to such Owner's successors in title. Section 6. Arbitration. In the event of any dispute arising concerning a party wall, or under the provisions of this Article, each party shall choose one arbitrator, and such arbitrators shall choose one additional arbitrator, and the decisions of a majority of all the arbitrators shall be final and conclusive of the question involved. If the arbitrators selected are unable to select a third arbitrator within thirty (30) days, either party to the dispute may request a Judge of Court of .,) Common Pleas of Cumberland County, Pennsylvania to appoint same. ARTICLE VII EXTERIOR MAINTENANCE Section 1. CxtertoK. Maintenance. In addition to maintenance upon the Common and Limited Com~on Properties, the Association shall provide additional exterior maintenance, upon each Lot anQ Living Unit which is subject to Limited Assessments under Article V, Section 3 (b) hereof, as follows: paint, repair, replace and care for roofs, gutters, downspouts, exterior building surfaces, trees, shrubs, grass, walks and ~ther exterior improvements. Section 2. Assessment o~f Cost. The cost of soch exterior maintenance shall be assessed against the ~ot or Living Unit upon which such maintenance is done and shall be added to and become part of the annual maintenance assessment or charge to which such Zot or Living Unit is subject under Article V hereof and, as part of such annual assessment or charge it shall be a lien and obligation of the Owner and shall become due and payable in all respects as provided in Article V hereof. Provided that the Board of Oirectors of the Association, when establishing the annual assessment, against each Lot or Living Unit for any assessment year as required under Article V hereof, may add thereto the estimated cost of the exterior maintenance for that year but shall, thereafter, make such adjustment with the Owner 337 ' as ts necessary to tel)eot the actual cost thereof. Sectton 3. Accesser Reasonable Hours. For the purpose so~e~y of performing the extertor mtntenance'requtred by th~s Artec;e, the Association. through Its du;y authorized agents or employees shall have the right, after reasonable notice to the Ouner. to enter upon any ~ot or exterior of any Livtng Unit at reasonable hours ~ any day except $~turday or Sunday. ENERAL PROVXSXON$ Section 1. Duration. The Covenant and Restrictions of thts Declaration shall run with and btnd the land, and shall tnu're to the benefit of and be enforceable by The Xssoctatton, or the g~ner of any land sub~ect to this Oeclaratton, their respective legal representatives, 'heirs, successors and assigns, for a term of ten (lO~ years from the date this Declaration Js recorded, after ~htch t~me said covenants shall be automatically extended for successtve periods of ten (lO) years unless an Instrument stgned .by the then-Owners of t~o-thJrds (g/3) of the ~ots or LtvJng Units has been recorded, agreeing to change said covenants and restrJcttons tn whole or In part. (For purposes of meeting the two-thirds requirement, when Living Units are counted, the ~ot or ~ots upon which such Living U~tts are situated shall not be counted.) Provided, hoNever, that no such agreement to change shall be effective unless made and recorded three (3) years tn 27 advance of the effective date of such change, and unless mitten notice of the proposed agreement is sent to every Owner at least ninety (90) days in advance of any action taken. Section 2. Nq,~ice_s. Any notfce required to be sent to any HeAd)er or O~ner under the provisions of this Declaration shall be deemed to have been properly sent when matled, postpaid, to the last knoNn address of the person who appears as ~ember or O~ner on the records of the Association at the time of such metltng. Section 3. Enforcement. Enforcement of these covenants and restrictions shall be by any proceeding at la~ or Jn equity agatnst any person or persons violating or attempting to violate any covenant or restriction, either to restrain violation or to recover damages, and against the. land to enforce any lien created by these covenants; and failure by the Association or any Owner to enforce any covenant or restriction herein contained shall tn no event be deemed a waiver of the right to do so thereafter. Section 4. Reservation. The Developer has submitted to the authorities of South ~tddleton Township certain plans for the future development of the real property described In Article of this Declaration and such additions thereto as may hereafter have to be made pursuant to Article [[, said plans having been submitted in order to fulfill the requirements of Township Ordinances and the Pennsylvania Hunictpaltties Planntng Code. Said plans are on file with South ~lddleton Township. The Developer may be required to make additional submissions of plans 28 to s&td authorities. All such plans are p~rt of the publtc controls imposed by the Towoshtp Board, the Developers, O~ners, residents and users of the project and they do not create, and are not intended to create, any private property or contract rights in the Owners and residents of the project. The plans which the Developer has submitted to the Township Authorities represent a plan of development which the Developer believes will provide maximum benefits to the residents, Owners and the public. During the extended development program, however, various factors can intervene which may hinder the effectiveness of such long- range plans and which may threaten the benefits to be derived by the residents, Owners and the public unless such plans can be modified as prescribed by the applicable Township Ordinances. Accordingly, this Declaration is not intended to, nor does it grant or create any private property or contract rights under any of the above described plans, and such plans continue to remain subject to modification by the proper Township Authorities in accordance with the procedures set forth in the Ordinances of the Township and the Pennsylvania municipalities Planning Code. Section 5. Coordination of Finish Grad~Q an~d Landscaping Operations. To permit the coordination of finish grading and landscaping operations and the provision of permanent and/or temporary storm drainage facilities as development work progresses from I at to I, ot, the Developer, .at his expense, shall have the right to change, alter, modify and/or revise the finish 33'7 2g grade and to complete landscape work of the yard within ten (10) feet of any Lot line and in drainage swales beyond said ten (10) feet after title to a Lot and the dwelling thereon has been transferFed to another Owner. Section 6. Severability. Invalidation of any one of these covenants or restrictions by Judgment or Court Order shall in no wise affect any other provisions which shall remain in full force and effect. THE VILLAS ASSOCIATES SEAL) (SEAL)' Hurle~' ~ COllllON~EALTN OF PENNSYLVANIA COUNTY OF CUHBERLANO SS this. th, of ~ , x98~. before ,,., Notary Public, the undersigned officer, personally appeared Jeffrey H. Boatrtght, John E. Hurley, Raymond C. Bobb, Jr., and Ronald V. Stehman, Partners of The Villas Associates, known to me {or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and that they executed same for the purpose therein contained. EXHIBIT C Page 2 of 4 PA ST 68 Pa,C.S.A. § 5219 68 Pa.C.S.A. § 5219 Purdon's Pennsylvania Statutes and Consolidated Statutes Annotated Currentness Purdon's Pennsylvania Consolidated Statutes Annotated Title 68. Real and Personal Property Part II. Real Property ~ Subpart D. Planned Communities 'a Chapter 52. Creation, Alteration and Termination of Planned Communities · -* § 5219. Amendment of declaration Page 1 (a) Number of votes required.- (1) The declaration, including the plats and plans, may be amended only by vote of at least: (i) 67% of the association; (ii) a larger percentage of the association specified in the declaration; or (iii) a smaller percentage of the association specified in the declaration if all units are restricted exclusively to nonresidential use. (2) Paragraph (I) is limited by subsection (d). (3) Paragraph (1) shall not apply to any of the following: (i) Amendments executed by a declarant under: (A) section 5210(e) or (f) (relating to plats and plans); (B) section 5211 (a) (relating to conversion and expansion of flexible planned communities); or (C) section 5212(a) (relating to withdrawal of withdrawable real estate). (ii) Amendments executed by the association under: (A) subsection (f); (B) section 5107 (relating to eminent domain); (C) section 5207(d) (relating to leasehold planned communities); (D) section 5209 (relating to limited common elements); or (E) section 5215 (relating to subdivision or conversion of units). Copr. © West 2004 No Claim to Orig. U,S. Govt, Works http://print.west~aw.c~m/de~ivery.htm~?dest=atp&dataid=A~~558~~~~~~499~~~~4636585... 4/29/2004 Page 3 of 4 PA ST 68 Pa.C.S.A. § 5219 68 Pa.C.S.A. § 5219 (iii) Amendments executed by certain unit owners under: (A) section 5209(b); (B) section 5214(a) (relating to relocation of boundaries between units); (C) section 5215; or (D) section 5220(b) (relating to termination of plauned community). Page 2 (b) Limitation of action to challenge amendment.--No action to challenge the validity of an amendment adopted by the association under this section may be brought more than one year after the amendment is recorded. (c) Recording amendment.--Every amendment to the declaration must be recorded in every county in which any portion of the planned community is located in the same records as are maintained for the recording of deeds of real property and shall be indexed in the name of the planned community in both the grantor and grantee index. An amendment is effective only upon recording. (d) When unanimous consent or declarant joinder required.-Except to the extent expressly permitted or required by other provisions of this subpart, without unanimous consent of all unit owners affected, no amendment may create or increase special declarant rights, alter the terms or provisions governing the completion or conveyance or lease of common facilities or increase the number of units or change the boundaries of any unit, the common expense liability or voting strength in the association allocated to a unit or the uses to which any unit is restricted. In addition, no declaration provisions pursuant to which any special declarant fights have been reserved to a declarant shall be amended without the express written joinder of the declarant in such amendment. (e) Officer authorized to execute amendment.-Amendments to the declaration required by this subpart to be recorded by the association shall be prepared, executed, recorded and certified by an officer of the association designated for that purpose or, in the absence of designation, by the president of the association. (f) Technical corrections.-Except as otherwise provided in the declaration, if any amendment to the declaration is necessary in the judgment of the executive board to do any of the following: (1) cure an ambiguity; (2) correct or supplement any provision of the declaration, including the plats and plans, that is defective, missing or inconsistent with any other provision of the declaration or with this subpart; or (3) conform to the requirements of any agency or entity that has established national or regional standards with respect to loans secured by mortgages or deeds of trust or units in planned community or so-called "PUD" projects, such as Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation; Copr. © West 2004 No Claim to Orig. U.S. Govt. Works http://print.westlaw.com/delivery.html?dest=atp&dataid=A0055800000049900004636585... 4/29/2004 PA ST 68 Pa.C.S.A. § 5219 68 Pa.C.S.A. § 5219 Page 4 of 4 Page 3 the executive board may effect an appropriate corrective amendment without the approval of the unit owners or the holders of liens on the planned community, upon receipt of an opinion from independent legal counsel to the effect that the proposed amendment is permitted by the terms of this subsection. CREDIT(S) 1996, Dec. 19, P.L. 1336, No. 180, § 1, effective in 45 days. RESEARCH REFERENCES 2004 Eleclxonic Update Encyclopedias Summ PA Jur. 2d Property § 7:140, Amendment o£Declaration. 68 Pa.C.S.A. § 5219, PA ST 68 Pa.C.S.A. § 5219 Current through Act 2003-67(END) Copt. © 2004 West, a Thomson business END OF DOCUMENT Copt. © West 2004 No Claim to Orig. U.S. Govt. Works http://print.westlaw.com/delivery.html?dest=atp&dataid=A0055800000049900004636585... 4/29/2004 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LISA A. FITTiNG, Plaintiff VILLAS HOMEOWNERS ASSOCIATION, INC., Defendants CIVIL ACTION - EQUITY No. 04- 1983 CERTIFICATE OF SERVICE AND NOW, this 6th day of May, 2004, I, Michael J. Hanfi, Esquire, hereby certify that on May 5, 2004, at 7:40 p.m., I served a copy of the Complaint in the above-captioned matter upon Margaret Marchi, the President of Defendant Villas Homeowners Association, Inc. Service was made pursuant to Pennsylvania Rule of Civil Procedure 400(b). Attorney ID No. 57976 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 Counsel for Plaintiff' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LISA A. FITTING, : Plaintiff : VILLAS HOMEOWNERS ASSOCIATION, INC., Defendant CiVIL ACTION - EQUITY NO. 04-1983 CIVIL TERM PRAECIPE TO DISCONTINUE To The Prothonotary: Please mark the above-captioned matter Settled, Discontinued, and Ended. (/Micha~J. Hanff, Esquire ~--ATC6~mey I.D. No. 5;7976 James I. Nelson, Esquire Attorney I.D. No. 91144 19 Brookwood Aw~nue, Suite 106 Carlisle, PA 17013 (717) 249-5373 Attorneys for Plaintiff Date: July 23, 2004 LISA A. FITTING, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. VILLAS HOMEOWNERS ASSOCIATION, INC., Defendant CIVIL ACTION - EQUITY No. 04- 1983 CERTIFICATE OF SERVICE AND NOW, this 23~a day of July, 2004, I, James I. Nelson, Esquire, hereby certify that on July 23, 2004, I served a copy of the Praecipe to Discontinue in the above-captioned matter upon John Porter, Esquire, counsel for Defendant Villas Homeowners Association, Inc. HANFT & ~qlGHT, P.C. elson, Esquire Attorrrep ID No. 91144 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 Attorneys for Plaintiff