Paradise Lake Declaration
PARADISE LAKE DECLARATION
THIS DECLARATION, is made and entered into this the ______day of ______, 2008, by PARADISE LAKE PROPERTY OWNERS ASSOCIATION, INC., a West Virginia Corporation (“Declarant”) and each and all of the undersigned Unit Owners, and otherwise as provided for pursuant to Chapter 36B of the West Virginia Code, and is made specifically subject thereto in accordance with Section 36B-1-206.
Article I
RECITALS & PRELIMINARY STATEMENTS
1.01.Recitals:
WHEREAS, Declarant and Unit Owners own and hold title to certain real property situate and located in Paradise Lake Subdivision, Clinton District, Monongalia County, West Virginia, which has developed into a planned community known as Paradise Lake prior to the imposition and enactment of Chapter 36B of the West Virginia Code, as amended; and,
WHEREAS, no lots having been sold by Paradise Lake, Inc. ("Original Declarant") in the regular course of business for many years, and remaining lots having been conveyed by the Original Declarant to The Paradise Lake Property Owners Association, Inc., eliminating Original Developer control of the Unit Owners Association pursuant to 36B-3-103; and,
WHEREAS, the requisite number (67%) of all Unit Owners having voting rights having voted for the within Declaration pursuant to due notice and otherwise as provided in 36B-2-117(7); and,
WHEREAS, there is no increase in Original Declarant rights, no increase in the number of units, no change in unit boundaries or unit allocated interests or uses such as to require the consent of all lot unit interest holders pursuant to 36B-2-117(d), nor does this Declaration require approval of secured lenders nor act such as to invalidate or alter the rights of pre-existing shareholders pursuant to 36B-2-119; and,
WHEREAS, Declarant and Unit Owners desire to subject the Property to the conditions, covenants, restrictions, reservations, limitations, and easements set forth herein, each and all of which shall apply to, be binding upon, and inure to the benefit of Declarant, Unit Owners, the Association, their successors and assigns, and any and all other parties having an interest in the Property.
NOW, THEREFORE, WITNESSETH: Declarant and Unit Owners hereby declare that the Property is and shall be held, transferred, sold, granted, conveyed, leased, and occupied subject to the conditions, covenants, restrictions, reservations, limitations, and easements set forth herein.
1.02. Applicability of the Act: Declarant and Unit Owners hereby subject and submit the Property, as a Planned Community, to the provisions of the Act.
1.03. Any prior Declaration and Amendment of record in the Clerk's Office is hereby supplanted and replaced IN FULL by this Declaration.
Article II
DEFINITIONS
In this Declaration, and other related documents and instruments, unless specifically provided otherwise, or the context otherwise requires, the terms and words of art below shall mean as follows:
2.01.Act: The Uniform Common Interest Ownership Act, Chapter 36B of the West Virginia Code, as amended to the effective date hereof.
2.02.Architectural Review Committee (ARC): The committee which shall ensure quality development of the CIC and maintain an attractive general character or scheme of development by approving or disapproving virtually all proposed improvements to the Units.
2.03.Articles: The Articles of Incorporation of the Association.
2.04.Association: Paradise Lake Property Owner’s Association, Inc., a non-profit corporation, organized under the laws of the State of West Virginia, and any wholly-owned subsidiary thereof, its successors and assigns.
2.05.Board: The Board of Directors of the Association.
2.06.Bylaws: The Bylaws of the Association.
2.07Clerk’s Office: The office of the Clerk of the County Commission of Monongalia County, West Virginia.
2.08Common Elements: All CIC property now owned or hereinafter acquired, including, but not limited to, that certain real estate referenced and described in Section 3.02, together with rights-of-way and use and access, for recreational purposes of the lake, all streets, roads, improvements, appurtenances, and other permanent fixtures now and hereafter situated thereon, thereof, and thereto, and all rights and privileges thereto, excluding, however, and not including, the individual Units. References to Common Elements on the Plat are solely for general information purposes and shall not define, limit, or prescribe, in any manner, the Common Elements.
2.09.Common Expenses: Expenditures made by, or financial liabilities of, the Association, together with any allocations to reserves, a fraction of which may be allocated to individual Units.
2.10.Common Expense Liabilities: The liability for Common Expenses allocated each year.
2.11.Common Interest Community (CIC): The real estate with respect to which a Person, by virtue of his ownership of a Unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or improvement of other real estate described in this Declaration. For the purposes of this Declaration, the real estate comprising the CIC shall be the Property.
2.12.Declarant: Paradise Lake Property Owner's Association, Inc., a West Virginia corporation, its successors and assigns, excluding as successors and assigns, all Purchasers and lienholders of any Unit, and their successors and assigns.
2.13:Declaration: This instrument, and any amendments or modifications hereto, properly recorded in the Clerk’s Office. This Declaration, in combination with other instruments and documents referenced herein, and any amendments or modifications hereto or thereto, shall be deemed to create a CIC.
2.14.Development Rights: The right or combination of rights reserved by Declarant to:
(1)Add real estate to the CIC;
(2)Create additional or Common Elements within the CIC;
(3)Subdivide Units or convert Units into Common Elements;
(4)Withdraw real estate from the CIC; or
(5)convert Common Elements, or any portion thereof, into Units or add the same to Units.
2.15.Member: Any and every Person holding membership in the Association in accordance with Section 4.01.
2.16.Person: An individual, corporation, business trust, estate, trust, partnership, limited partnership, association, joint venture, limited liability company, limited liability partnership, government, governmental subdivision or agency, or other legal entity.
2.17.Plat: That plat of survey and plan of the CIC recorded in the Clerk’s Office, together with any amendments or modifications thereto, and any subsequent plats or plans that may be recorded in the Clerk’s Office. Whenever the terms “Plat,” “Plan,” “plat,” or “plan,” or the same in the plural sense, appear, they shall be deemed to include such amendments or modifications to the Plat as may be recorded pursuant to Declarant’s reserved right to make and record amendments or modifications to the Plat at any time subsequent to the effective date of this Declaration.
2.18.Property: That certain real estate referenced and described in Section 3.02, together with rights of use of Common Elements, including but not limited to the lake, all streets, roads, improvements, appurtenances, and other permanent fixtures now and hereafter situated thereon, thereof, and thereto, and all rights and privileges thereto.
2.19.Purchaser: A Person, other than Declarant or a dealer (as that term is defined in the Act), who by means of a voluntary transfer acquires a legal or equitable interest in a Unit other than (1) a leasehold interest, including renewal options, of less than twenty (20) years; or (2) as security for an obligation.
2.20.Restrictions: Those certain conditions, covenants, restrictions, reservations, limitations, and easements imposed upon and subject to which the Property is and shall be held, transferred, sold, granted, conveyed, leased, and occupied.
2.21.Special Declarant Rights: Rights reserved for the benefit of Declarant to:
(1)complete improvements indicated on Plats and Plans;
(2)exercise any Development Right;
(3)maintain, management offices, and signs advertising the CIC;
(4)use easements through the Common Elements for the purpose of making improvements within the CIC or within real estate which may be added to the CIC;
(5)make the CIC subject to a master association;
(6)merge or consolidate the CIC with another CIC of the same form of ownership or merge the CIC with a master association; or
(7)appoint or remove any officer, director, or committee member of the Association or any master association.
2.22Unit: A physical portion of the CIC designated for separate ownership or occupancy; a lot. In addition, a Unit shall include, as an appurtenance, an undivided fractional interest in the Common Elements as determined pursuant to Section 10.01.
2.23Unit Owner: Any and every record owner, whether Declarant or another Person, whether one or more Persons, of any undivided interest in any Unit within the CIC, but excluding those Persons having (1) a leasehold interest in a Unit, including renewal options, of less than twenty (20) years, or (2) an interest in a Unit solely as security for an obligation.
Article III
THE PROPERTY
3.01.Subject to Declaration: Declarant and Unit Owners, being the owners of certain real property situate and located in Clinton District, Monongalia County, West Virginia, hereby declare that the Property is and shall be held, transferred, sold, granted, conveyed, leased, and occupied subject to the Restrictions.
3.02.Legal Description: The real property which is and shall be held, transferred, sold, granted, conveyed, leased, and occupied subject to the provisions of this Declaration is situate in Clinton District, Monongalia County, West Virginia, and shall be known and designated as Paradise Lake. Such real property is more fully shown and delineated on the Plat. Such Plat, and any amendments or modifications thereto, and any subsequent plats or plans that may be recorded in the Clerk’s Office, are hereby made an integral part of this Declaration for all pertinent purposes, including, but not limited to, a legal description of such real property. Such real property is further described as follows:
All that lot, piece or parcel of land, situate, lying, and being in Clinton District, Monongalia County, West Virginia, lying approximately seven (7) miles south of Morgantown, West Virginia, more particularly described as set forth in those certain Unit Deeds now or formerly of record in said Clerk's Office. The exterior dimensions of said real estate are as follows:
Beginning at a ½-inch iron pin,found in easterly line of U. S. Route 119, a common corner to a parcel designated as “Lot 1 or property subdivided for Yvonne Roach, as surveyed by McCoy Surveying Company, Inc., dated January 1990, and recorded in Deed Book No. 1007, at Page 223; thence running along easterly line of said U. S. Route 119, 1085.00 feet, more or less, crossing Sunset Drive to a 1½-inch copper pin found, a common corner between Paradise Lake property and the lands of Lawrence W. Giles; thence leaving said highway and running with the original division line between Paradise Lake, Lawrence Giles, Mary Palmer and Dale Neva Staley, 1236.00 feet, more or less, to a point, corner to Wildwood Lake, Inc.; thence running with the division line between Wildwood Lake, Inc., Joe Filandino and Olin and Erin Hartman and Paradise Lake, Inc., 1,473.00 feet, more or less, to a ½-inch iron pin, the southernmost corner of Lot B-21 in Paradise Lake Addition, also corner to a parcel containing 9.853 acres; thence running with seven lines of the said 9.583 acre parcel along the rear or southern line of Lots B-21 through B-29 to a 3/8-inch iron pin, corner between lot B-29, B-30, and B-46 ti a ½-inch iron pin; thence leaving the 9.583 acre parcel and running with another line of Lot B-46 in a northwesterly direction to a ½-inch iron pin, a common corner between said lot and Lot B-45; thence running with the easternmost line of said Lot B-45 to a point, a common corner of said Lot B-31; thence running with the rear or southerly line of Lots B-31 through B-44 to a point, a common corner between Lot B-44 and Lot J-1; thence running with the rear line of Lots J-1 through J-3 to the southeasten most corner of Lot J-3; thence running along the souther line of said lot, 147.12 feet, more or less, to a point in the easterly line of Maple Drive; thence crossing said roadway in a southwesterly direction 110.00 feet, more or less, to a point in the original division line between the lands of Paradise Lake, Inc. with a tract owned by Rose E. McBee; thence running along said division line with the McBee lands and Lots 1, 2, and 3 of the aforesaid Yvonne Roach Subdivision, in a northerly direction 800 feet, more or less, to the place of beginning, containing 66.50 acres, more or less. Being part of the same real estate conveyed to Paradise Lake, Inc. by deed from Iva M. Englehart, widow, dated the 26th day of April 1961, and recorded in the Office of the Clerk of the County Commission of Monongalia County, West Virginia, in Deed Bood No. 594, at page 590.
3.03. Sewage Treatment Lot: No sewage treatment lot is designated.
Article IV
THE ASSOCIATION
4.01.Membership: Each and every Unit Owner shall be a Member of the Association, and shall be subject to the Act, this Declaration, the Articles, the Bylaws, and the rules and regulations adopted or promulgated by the Association. Following termination of the CIC, all former Unit Owners entitled to distribution of proceeds pursuant to the Act, or their heirs, successors, or assigns, shall be Members of the Association.
4.02.Powers of the Association: Subject to the provisions of the Act and this Declaration, the Association may:
(1)Adopt and amend the Bylaws, rules, and regulations;
(2)Adopt and amend budgets for revenues, expenditures, and reserves, and collect assessments for Common Expenses from Unit Owners;
(3)Hire and discharge managing agents and other employees, agents, and independent contractors;
(4)Institute, defend, or intervene in litigation or administrative proceedings in its own name or on behalf of itself or two or more Unit Owners on matters affecting the CIC;
(5)Make contracts and incur liabilities;
(6)Regulate the use, maintenance, repair, replacement, and modification of Common Elements;
(7)Cause additional improvements to be made to or as part of the Common Elements;
(8)Acquire, hold, encumber, and convey in its own name any right, title, or interest to real estate or personal property; provided, that Common Elements in the CIC may be conveyed or encumbered only pursuant to Section 4.09;
(9)Grant and convey easements, rights-of-way, leases, licenses, and concessions through or over the Common Elements;
(10)Impose and receive payments, fees, or charges for the use, rental, or operation of the Common Elements and for services provided to Unit Owners;
(11)Cause property and liability insurance to be maintained or kept in effect;
(12)Impose charges for the late payment of assessments, dues, fees, or fines;
(13)Impose reasonable charges for the preparation and recordation of amendments to this Declaration, resale certificates, and statements of unpaid assessments;
(14)Provide for the indemnification of its officers, directors, and committee members;
(15)Assign its right to future income, including the right to receive Common Expense assessments, but only to the extent provided for in this Declaration;
(16)Employ and retain such professionals and other experts whose services and knowledge may be required to effectively perform and execute these powers;
(17)Exercise any other powers conferred by this Declaration, the Articles, or the Bylaws;
(18)Exercise all other powers that may be exercised in the State of West Virginia by legal entities of the same type as the Association;
(19)Exercise any other powers necessary and proper for the governance and operation of the Association.
4.03. Board of Directors:
(1) Except as otherwise provided in the Act, the Articles, the Bylaws, or subsection (2), the Board may act in all instances on behalf of the Association. In the performance of their duties, officers, directors, and committee members shall exercise (i) if appointed by Declarant, the care required of fiduciaries of the Unit Owners and (ii) if elected by the Unit Owners, ordinary and reasonable care.
(2)The Board may not act on behalf of the Association to amend this Declaration, to terminate the CIC, or to elect directors of the Board or determine the qualifications, powers and duties, or terms of office of directors, but the Board may fill vacancies on the Board pursuant to the Bylaws.
(3)Within thirty (30) days after adoption of any proposed budget for the CIC, the Board shall provide a summary of the budget to all the Unit Owners, and shall set a date for a meeting of the Unit Owners to consider ratification of the budget not less than fourteen (14) nor more than thirty (30) days after mailing of the summary. Unless at that meeting a majority of all Unit Owners reject the budget, the budget shall be deemed ratified, whether or not a quorum is present. In the event the proposed budget is rejected, the periodic budget last ratified by the Unit Owners shall be continued until such time as the Unit Owners ratify a subsequent budget proposed by the Board.
(4)The Unit Owners shall elect a Board of at least five (5) members, all of which must be Unit Owners.
4.04. Bylaws: The Bylaws, and any and all amendments or modifications thereto, shall provide:
(1)The number of directors of the Board and the titles of the officers of the Association;