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DECLARATION OF RESTRICTIONS
FOR
SHADOW WOODS SUBDIVISION NO. 1
OVERVIEW
WHEREAS,
the undersigned, BILTMORE PROPERTIES COMPANY, a Michigan Co-Partnership,
of 2900 W. Maple Road, Troy, Michigan 48084, hereinafter referred to as
"Declarant", being the owner of the lands hereinafter described, and hereinafter
referred to as "The Subdivision", desires to create a planned community
with private parks called "Common Area", for the benefit of all residents
of The Subdivision, located in the Township of Avon, Oakland County, Michigan,
and more particularly described as:
Lots 1
through 238 inclusive of SHADOW WOODS SUBDIVISION NO. 1, of part of
the West ½ of Section 8, T. 3 N., R. 11 E., Avon Township, Oakland County,
Michigan, according to the plat thereof as recorded in Liber 160 of
Plats, pages 30 through 35, Oakland County Records; and
WHEREAS,
Declarant desires to provide for the preservation and enhancement of the
property values and amenities in The Subdivision and for the maintenance
of the Common Area, and to this end desires to subject The Subdivision
and the Common Area to the covenants, restrictions, easements, charges
and liens hereinafter set forth, each and all of which is and are for
the benefit of The Subdivision and each owner of a lot therein; and
WHEREAS,
it is necessary for the efficient preservation of the values and amenities
in The Subdivision to create a legal entity to own, maintain and administer
the Common Area and facilities that may be constructed thereon, the storm
water retention areas and The Subdivision entrance gates, and to collect
and disburse the assessments and charges hereinafter created, as well
as to promote the recreation, health, safety and welfare of the residents.
NOW,
THEREFORE, in consideration of the mutual benefits to be derived by the
undersigned, its successors and assigns, and all intending purchasers,
and future owners of the various lots comprising The Subdivision, the
undersigned Declarant for itself, its successors and assigns does hereby
publish and declare and make known to all intending purchasers and future
owners of the various lots comprising The Subdivision, that the same will
and shall be used, held, and/or sold expressly subject to the following
conditions, restrictions, covenants and agreements which shall be incorporated
by reference in all deeds of conveyance and contracts for the sale of
said lots and shall run with the land and be binding upon all grantees
of individual lots in The Subdivision, and on their respective heirs,
personal representatives, successors and assigns.
THERE
IS HEREBY ESTABLISHED the Shadow Woods Association, consisting of the
Owners of lots 1 through 238 inclusive, of Shadow Woods Subdivision No.
1, such Association to be organized within thirty (30) days following
the recording of this Declaration of Restrictions as a non-profit corporation
for a perpetual term under the laws of the State of Michigan. The Association
shall exercise the authority and assume the obligations set forth in a
certain Agreement between the Declarant and the Township of Avon dated
August 9, 1978, and recorded in Liber 7368, pages 289 through 295, inclusive,
Oakland County Records. The Association shall also have such other powers
as are granted to it by this Declaration of Restrictions and as shall
be set forth in its By-Laws.
ARTICLE
I
DEFINITIONS
Section
1 - "Association" shall mean and refer to the Shadow Woods Association,
a Michigan Non-Profit Corporation, its successors and assigns.
Section
2 - "Owner" shall mean and refer to the record owner, whether one
or more persons or entities, of the fee simple title to a lot, including
land contract purchasers, but excluding those having such interest merely
as security for the performance of an obligation.
Section
3 - "Common Area" shall mean those areas of land shown on the recorded
plat of The Subdivision (including the improvements thereto) owned by
the Association for the common use and enjoyment of the Owners. The Common
area to be owned by the Association is described as follows:
"Shadow
Woods Park" and "Winter Park", of SHADOW WOODS SUBDIVISION NO. 1, according
to the plat thereof as recorded in Liber 160 of Plats, pages 30 through
35, Oakland County Records.
Section
4 - "Lot" shall mean and refer to any numbered lot shown on any recorded
plat of The Subdivision.
Section
5 - "Declarant" shall mean and refer to Biltmore Properties Company,
a Michigan Co-Partnership, its successors and assigns.
Section
6 - "Member" shall mean and refer to those persons entitled to membership
in the Association, as provided in this Declaration.
ARTICLE
II
DEDICATION
Declarant
hereby dedicates and conveys to each Owner a right and easement of enjoyment
in and to the Common Area and hereby covenants that it will convey fee
simple title to the Common Area to the Association free and clear of all
encumbrances and liens within one (1) year from the date the plat of The
Subdivision has been recorded. Title to the Common Area shall vest in
the Association subject to the rights and easement of enjoyment in and
to such Common Area by the Owners. Said easement of enjoyment shall not
be personal, but shall be considered to be appurtenant to the lots and
shall pass with the title to said lots whether or not specifically set
forth in the deeds of conveyance of the said lots.
ARTICLE
III
PROPERTY RIGHTS
Section
1 - Owners' Easement of Enjoyment.
The Owner's right and easement of enjoyment in and to the Common Area
shall be subject to the following provisions:
a. the
right of the Association to charge reasonable admission and other fees
for the use of any recreational facilities situated upon the Common
Area;
b.
the right of the Association to suspend the voting rights and right
to use the recreational facilities by an Owner for any period during
which any assessment against his lot remains unpaid; and for a period
not to exceed 60 days for any infraction of its published rules and
regulations;
c.
the right of the Association to dedicate or transfer all or any part
of the Common Area to any publish agency, authority, or utility for
such purposes and subject to such conditions as may be agreed to by
the members. No such dedication or transfer shall be effective unless
an instrument agreeing to such dedication or transfer signed by two-thirds
of the members has been recorded, and provided further, that no such
dedication or transfer or determination as to the conditions thereof
shall be effective unless the prior consent thereto of the Township
of Avon by and through its Township Board of Trustees shall have first
been obtained.
Section
2 - Delegation of Use.
Any Owner may delegate, in accordance with the By-Laws, his right of enjoyment
to the Common Area and facilities to the members of his family, his tenants,
or purchasers who reside on a lot.
ARTICLE
IV
MEMBERSHIP AND VOTING RIGHTS
Section
1 - Every Owner of a lot in The Subdivision shall be a mandatory
member of the Association. Membership shall be appurtenant to and may
not be separated from ownership of any lot which is subject to assessment.
Section
2 - All members shall be entitled to one vote for each lot owned.
When more than one person holds an interest in any lot, all such persons
shall be members. The vote for such lot shall be exercised as they among
themselves shall determine, but in no event shall more than one vote be
cast with respect to any one lot.
ARTICLE
V
COVENANT FOR MAINTENANCE ASSESSMENTS
Section
1 - Creation of the Lien and Personal Obligation of Assessments.
Each Owner of a lot, by acceptance of a deed therefore, whether or not
it shall be so expressed in such deed, is deemed to covenant and agree
to pay to the Association: (1) annual general assessments or charges,
and (2) special assessments for capital improvements, such assessments
to be established and collected as hereinafter provided. The annual general
and special assessments, together with interest thereon, collection costs,
including reasonable attorney's fees, shall be a charge on the lot and
shall be a continuing lien upon the lot against which each such assessment
is made. Each such assessment, together with interest thereon, costs of
collection thereof, including reasonable attorney's fees, shall also be
the personal obligation of the person who was the Owner of such lot at
the time when the assessment fell due. The personal obligation for delinquent
assessments shall not pass to his successors in title unless expressly
assumed by them. For the purpose of assessment, the term "Owner" shall
3exclude Declarant and any builder or developer who purchases a lot for
the purpose of constructing a residence thereon for sale to an Owner.
Section
2 - Purpose of Assessments.
The assessments levied by the Association shall be used exclusively to
promote the recreation, health, safety, and welfare of the residents in
The Subdivision and in particular for the improvement and maintenance
of the Common Area and facilities thereon, the storm water retention areas
and all other property and easements under the jurisdiction of the Association;
for planting and maintenance of trees and shrubbery; for expenses incident
to the construction, operation and maintenance of recreational facilities;
for caring of vacant property; for providing community services; and for
maintenance of all subdivision entrance gates abutting roads leading into
The Subdivision.
Section
3 - Maximum Annual Assessment.
Until January 1, 1982, the maximum annual assessment shall be Twenty-Four
($24.00) Dollars per lot.
a. From
and after January 1, 1982, the maximum annual assessment may be increased
each year not more than five percent (5%) above the maximum assessment
for the previous year without a vote of the membership.
b. From and after January 1, 1982, the maximum annual assessment may
be increased above five (5%) percent by a vote of two-thirds (2/3) of
the members who are voting in person or by proxy, at a meeting duly
called for that purpose.
Section
4 - Special Assessments for Capital Improvements.
In addition to the annual assessments authorized above, 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 construction, reconstruction, repair or replacement of The
Subdivision entrance gates, the storm water retention areas and any improvement
upon the Common Area, including fixtures and personal property, provided
that any such assessment shall have the assent of two-thirds (2/3) of
the votes of the members who are voting in person or by proxy at a meeting
duly called for this purpose.
Section
5 - Notice and Quorum for Actions Authorized Under Section 3 and
4.
Written notice of any meeting called for the purpose of taking any action
authorized under Section 3 or 4 shall be sent to all members not less
than 15 days nor more than 30 days in advance of the meeting. At the first
such meeting called, the presence of members or of proxies entitled to
case sixty (60%) percent of all the votes shall constitute a quorum. If
the required quorum is not present, another meeting may be called subject
to the same notice requirement, and the required quorum at the subsequent
meeting shall be one-half (1/2) of the required quorum at the preceding
meeting. No subsequent meeting shall be held more than 60 days following
the preceding meeting.
Section
6 - Uniform Rate of Assessment.
Both annual and special assessments must be fixed at a uniform rate for
all lots and may be collected on a monthly or an annual basis.
Section
7 - Date of Commencement of Annual Assessments: Due Dates.
The annual assessments provided for herein shall commence as to all lots
on the first day of the month following the convenance of the first lot
in The Subdivision to an Owner who is not the Declarant, a builder or
a developer under the provisions of Section 1, of this Article. The first
annual assessment shall be adjusted according to the number of months
remaining in the calendar year and shall be collected at the time of the
Owner's permanent loan closing. The Board of Directors shall fix the amount
of the annual assessment against each lot at least thirty (30) days in
advance of each annual assessment period. Written notice of the annual
assessment shall be sent to every Owner subject thereto. The due dates
shall be established by the Board of Directors. The Association shall,
upon demand, and for a reasonable charge, furnish a certificate signed
by an officer of the Association setting forth whether the assessments
on a specified lot have been paid. A properly executed certificate of
the Association as to the status of assessments on a lot is binding upon
the Association as of the date of its issuance.
Section
8 -
Effect of Nonpayment of Assessments: Remedies of the Association.
Any assessment not paid within thirty (30) days after the due date shall
bear interest from the due date at the rate of six (6%) percent per annum.
The Association may bring an action at law against the owner personally
obligated to pay the same, or foreclose the lien against the lot. No owner
may waive or otherwise escape liability for the assessments provided for
herein by non-use of the Common Ar4ea or abandonment of his lot.
Section
9 - Exempt Property.
All Common Area and all other property exempt from taxation by state or
local governments and dedicated for public use shall be exempt from the
assessments, charge and lien created herein.
Section
10 - Subordination of the Lien to Mortages.
The lien of the assessments provided for herein shall be subordinate to
the lien of any first mortgages. Sale or transfer of any lot shall not
affect the assessment lien. However, the sale or transfer of any lot pursuant
to mortgage foreclosure or any proceeding in lieu thereof, shall extinguish
the lien of such assessments as to payments which became due prior to
such sale or transfer. No sale or transfer shall relieve such lot from
liability for any assessments thereafter becoming due or from the lien
thereof.
ARTICLE
VI
BUILDING AND USE RESTRICTIONS FOR THE SUBDIVISION
Section
1 - Use of Lot.
All lots shall be used for single residence purposes only, and no building
of any kind whatsoever shall be erected, re-erected, moved, or maintained
on any lot except one detached single family dwelling and appurtenant
buildings on each lot, as hereinafter provided. Such dwelling shall be
designed and erected for occupation by a single private family. A private
garage for the sole use of the respective owner or occupant of the lot
upon which said garage is erected may also be erected and maintained.
All portions of a lot lying in front of the residential building shall
be used for ornamental purposes only.
Section
2 - Size of Buildings
a. No dwelling
shall be permitted on lots 193 through 210 inclusive unless the living
area thereon shall not be less than 1600 square feet;
b. No dwelling shall be permitted on any of the balance of the lots
unless the living area thereof shall be not less than 1400 square feet.
In the case of any multi-level dwelling, the first floor living area shall
be not less than 650 square feet; in any dwelling constructed without
a basement an aditional one hundred (100) square feet shall be added to
the minimum required first floor area requirement. All computations of
square footage for determination of the permissibility of erection of
a residence shall be exclusive of garages, porches, or terraces. All garages
must be attached or architecturally related to the dwelling. No garage
shall provide space for less than two (2) automobiles. Carports are specifically
prohibited.
Section
3 - Minimum Yard Requirements.
No building on any lot in The Subdivision shall be erected nearer than:
a. Thirty
(30) feet from the front lot line; nor
b. Thirty-Five (35) feet from the rear lot line; nor
c. Twenty-Five (25) feet from the side lot line abutting a street on
corner lots; nor
d. Ten (10) feet from each side lot line as to lots 193 through 210
inclusive, only; nor
e. Seven (7) feet from one side lot line with a minimum total of fifteen
(15) feet from both side lot lines as to al lots not listed in subparagraph
d, above.
Approval
of a variance by the Avon Township Zoning Board of Appeals permitting
rear or side yards smaller than the above minimums shall be deemed a valid
waiver of this restriction.
Section
4 - Animals.
No farm animals, livestock or wild animals shall be kept, bred or harbored
on any lot or on the Common Area. No animals shall be kept, bred or maintained
on any lot excepting household pets for the use by the owner and members
of his family. No animal shall be kept on any lot for any commercial purpose.
Household pets shall have such care so as not to be objectionable or offensive
due to noise, odor or unsanitary conditions.
Section
5 - Wells.
No well shall be dug, installed or constructed on any lot.
Section
6 - Sight Distance at Intersections.
No fence, wall, hedge, or shrub planting which obstructs sight lines at
elevations between two (2) and six (6) feet above the roadways shall be
placed or permitted to remain on any corner lot within the triangular
area formed by the street property lines and a line connecting them at
points twenty-five (25) feet from the intersection of the street lines,
or in the case of a rounded property corner, from the intersection of
the street property lines extended. No tree shall be permitted to remain
within such distances of such intersections unless the foliage line is
maintained at sufficient height to prevent obstruction of such sight lines.
Section
7 - Easements.
a. Easements
for the installation and maintenance of utilities, underground television
master antenna line, and underground sewage, water and drainage lines,
and surface drainage swales, are reserved to Declarant, its successors
and assigns, as shown on the recorded plat, and also in, on, under and
over a strip of land (6) feet in width on each side of, and along all
rear and side lot lines. The use of all or a part of such easements
may at any time or times hereafter be granted or assigned by Declarant,
its successors or assigns, to any person, firm, corporation, governmental
unit or agency which furnishes such services or utilities. No building
may be constructed or maintained over or on any easements; however,
after the aforementioned utilities have been installed, planting, fencing,
or other lot line improvements shall be allowed, so long as they do
not interfere with, obstruct, hinder, or impair the drainage plan of
The Subdivision and so long as access be granted, without charge or
liability for damages, for the maintenance of the utilities or the underground
drainage lines so installed, and/or for the installation of additional
facilities.
b. Private easements for public utilities have been granted and reserved
on the plat of The Subdivision.
Section
8 - Temporary Structures.
Trailers, tents, shacks, barns, or any temporary building of any description
whatsoever, are expressly prohibited within The Subdivision, and no temporary
residence shall be permitted in unfinished residential buildings. However,
the erection of a temporary storage building for materials and supplies
to be used in the construction of a dwelling, and which shall be removed
from the premises upon completion of the building is permitted.
Section
9 - General Conditions.
a. No lot
shall be used or maintained as a dumping ground for rubbish, trash,
garbage or other waste, and the same shall not be kept except in
sanitary
containers properly concealed from public view.
Garbage containers shall
not be left at the road for more than twenty-four (24) hours in any
one week.
b. No housetrailers, commercial vehicles, boat trailers,
boats, camping
vehicles or camping trailers may be parked on or stored on any lot in
The Subdivision, unless stored fully enclosed within an attached garage.
Commercial vehicles and trucks shall not be parked in The Subdivision,
or on any lot therein, except while making normal deliveries or pickups
in the normal course of business.
c. No laundry shall be hung for drying in such a way as to be visible
from the street on which the lot fronts, and in the case of corner lots,
such laundry shall not be hung so that it will be visible from the strets
on which the lot fronts and sides.
d. The yard drainage and grade of all lots in The Subdivision shall
be maintained in accordance with the grading plan on file with the Township.
e. No "through the wall" air conditioners may be installed on the front
wall of any building in The Subdivision.
f. No outside compressors for central air conditioning units may be
located other than in the rear yard and must be installed and maintained
in such a manner so as to create no nuisance to the residents of adjacent
dwellings.
g.
No above-ground swimming pools which project eighteen
(18) inches or more above the lot grade on any side will be permitted
on any lot, except that children's wading pools which do not exceed
a height of eighteen (18) inches above the lot grade at the top of the
retaining wall, cover not more than 125 square feet of ground surface,
use no filtering equipment and are of a type that can be readily emptied,
may be used during the period from June 1st through September 1st of
any year.
Section
10 - Sales Agency and/or Business Office.
Notwithstanding anything to the contrary elsewhere herein contained, Declarant
and/or any builder or builders which it may designate, may construct and
maintain a sales agency and a business office on any lot or lots which
it or they may select, or may use a model house for such purposes, and
Declarant and such designated builder or builders may continue to do so
until such time as all of the lots in which Declarant or such other designated
builder or builders have an interest, are sold.
Section
11 - Lease Restrictions.
No one shall lease and/or sublet less than the whole of any dwelling on
any lot.
Section
12 - Exterior Surface of Dwellings.
The visible exterior walls of all dwelling structures built on any lot
shall be made of wood, brick, brick veneer, aluminum or vinyl siding and/or
stone. Stucco, and/or ledge rock may also be used, so long as any combination
of these materials does not exceed fifty (50%) percent of the total of
all visible exterior walls. The use of cement block, slag, imitation brick,
cinder bock and/or asphalt siding is expressly prohibited. Windows and
doors shall not be included in calculating the total area of visible exterior
walls.
Section
13 - Fences.
a.
No fence,
wall or solid hedge may be erected, grown or maintained in front of
or along the front building line of any lot; provided, however, that
low ornamental fencing along the front lot line in architectural harmony
with the design of the house, may be erected. The side lot line of each
corner lot which faces a street shall be deemed to be a second front
building lot line and shall be subject to the same restrictions as to
the erection, growth or maintenance of fences, walls or hedges as is
hereinbefore provided for front building lines.
b. No fence or wall may be erected or maintained on or along the side
lines of any lot, and/or on or along the rear line of any lot, except
fences which are required by local ordinance to enclose swimming pools,
or are otherwise required or permitted by the Township of Avon.
c. No enclosures, fences or hedge rows shall be permitted to separate
the rear of any yard from an abutting Common Area.
d. No dog run or pen shall be permitted to be erected or maintained
on any lot unless it is attached to the rear of the main dwelling, does
not extend beyond the side building lines and does not exceed fifty-four
(54) inches in height.
Section
14 - Signs.
No sign or billboard shall be placed, erected, or maintained on any lot
except:
a. One
sign advertising the lot, or the house and lot for sale or lease, which
said sign shall have a surface of not more than five (5) square feet,
and the top of which shall be not more than three (3) feet above the
ground; provided, however, that such sign shall have been constructed
and installed in a professional manner; and
b. Political signs erected in compliance with the applicable Avon Township
Ordinance.
The
provisions of this paragraph shall not apply to such signs as may be installed
or erected on any lot by Declarant, or any builder which it may designate
during the construction period, or during such periods as any residence
may be used as a model or for display purposes.
Section
15 - Destruction of Building by Fire, etc.
Any debris resulting from the destruction in whole or in part of any dwelling
or building on any lot shall be removed with all reasonable dispatch from
such lot and property in order to preserve the sightly condition of The
Subdivision.
Section
16 - Landscaping.
Upon the completion of a residence on any of the lots the owner thereof,
(and the word "owner", as used in this connection, means the party who
purchases a residence from the builder thereof and each subsequent purchaser),
shall cause the lot owned by him to be finish-graded and seeded or sodded
and suitably landscape as soon after the completion of construction as
weather permits. The lot and the drainage ditch, if any, contiguous to
each lot shall be kept free of weeds by the owner thereof. All landscaping
and lawns shall be well-maintained at all times.
ARTICLE
VII
GENERAL PROVISIONS
Section
1 - Enforcement.
The Association, or any Owner, shall have the right to enforce, by any
proceeding at law or in equity, all restrictions, conditions, covenants,
reservations, liens and charges now or thereafter imposed by the provisions
of this Declaration. Failure by the Association or by any Owner to enforce
any covenant or restriction herein contained shall in no event be deemed
a waiver of the right to do so thereafter.
Section
2 - 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.
Section
3 - Amendment.
The covenants and restrictions of this Declaration shall run with and
bind the land, for a term of twenty (20) years from the date this Declaration
is recorded, after which time they shall be automatically extended for
successive periods of ten (10) years. This Declaration may be amended
during the first twenty (20) year period by an instrument signed by not
less than ninety percent (90%) of the lot Owners and thereafter by an
instrument signed by not less than seventy-five (75%) percent of the lot
Owners, except that an amendment made by Declarant for the purpose of
adding residential lots and Common Area to the Association shall not require
the vote, signature or consent of any Owners or members. Any amendment
must be recorded.
Section
4 - Annexation of Additional Lots and Common Area.
Additional residential lots and Common Area may be annexed by Declarant
without the consent or approval of the Association, or any Owner or member,
so long as the prior approval of the Board of Trustees of the Township
of Avon has been obtained. Any annexation by the Association shall require
the consent of two-thirds (2/3) of the members.
Section
5 - Assignment or Transfer of Rights and Powers.
Any or all of the rights and powers, titles, easements and estates hereby
reserved or given to Declarant, may be assigned by it to the Association
composed of the Owners of the lots in The Subdivision. Any such assignment
or transfer shall be made by appropriate instrument, in writing, in which
the assignee shall join for the purpose of evidencing its consent to the
acceptance of such powers and rights, and such assignee shall thereupon
have the same rights and powers, and be subject to the same obligations
and duties as herein given and reserved to and assumed by Declarant in
connection with the rights, powers, and easements so assigned, and such
instrument, when executed by such assignee shall without further act,
release said Declarant from the obligations and duties in connection therewith.
IN WITNESS
WHEREOF, the undersigned, being all of the parties with an ownership interest
in the lots hereinabove described, have caused these presents to be executed
on this 25th day of May, 1978
Signers:
BILTMORE PROPERTIES COMPANY, a Michigan Co-Partnership
Norman J. Cohen, President
MANUFACTURERS
NATIONAL BANK OF DETROIT, a National Banking Association
James D. Preston, Vice President
James O. Dishman, Jr., Mortgage Officer
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