Declaration (Outlot A)Document Number: A730783
Filed and/or Recorded on
Aug 13, 2021 9:39 AM
Office of the County Recorder/Registrar of Titles
Carver County, Minnesota
Kaaren Lewis, County Recorder
Deputy CS Pkg ID: 7343594
Document Recording Fees $ 46.00
Document Total $ 46.00
Requesting Party: CUSTOM HOME BUILDERS TITLE, LLC
Pages: 33
This cover page has been added to this document by Carver County Land Records
and is now an official part of this recorded document
(Above Space Reserved for Recording Data)
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS
AND EASEMENTS OF
DEER HAVEN
This Declaration of Covenants, Conditions, Restrictions and Easements of Deer Haven
(the "Declaration") is made as of the //tP day of , 2021, by Schaefco
Development, LLC, a Minnesota limited liability company he "Developer"), for the purpose of
establishing Deer Haven, as a single-family residential housing community.
WHEREAS, Developer, as the owner or with consent of the owner(s) attached hereto,
desires to submit certain real property located in Carver County, Minnesota, legally described in
Exhibit A attached hereto and all improvements thereon (collectively the "Property") to this
Declaration; and
WHEREAS, Developer desires to establish on the Property, and any additional property
added thereto, a plan for a permanent, single-family residential community to be owned,
occupied and operated for the use, health, safety and welfare of its resident Owners and
Occupants (as defined below), and for the purpose of preserving the quality and character of the
Property; and
WHEREAS, the Property is not subject to the Minnesota Common Interest Ownership
Act, Minnesota Statutes Chapter 515B ("MCIOA"), by reason of the exemption contained in
Section 51513.1-102(e)(2) of MCIOA, and is not subject to a master association as defined in
MCIOA.
NOW, THEREFORE, Developer makes this Declaration and submits the Property to
this Declaration as a residential community under the name "Deer Haven," consisting of the Lots
referred to in Section 2, declaring that this Declaration shall constitute covenants to run with the
Property, and that the Property, and any additional property added thereto, shall be owned, used,
occupied and conveyed subject to the covenants, conditions, restrictions, easements, charges and
liens set forth herein, all of which shall run with the land and be binding upon all Persons (as
defined below) owning or acquiring any right, title or interest therein, and their heirs, personal
representatives, successors and assigns.
Custom Home Builders Title, LLC
10850 Old County Road 15, 11100
plymouth, MN 55441
SECTION 1
DEFINITIONS
The following words when used in the Governing Documents shall have the following
meanings (unless the context indicates otherwise):
1.1 "Act" means the Minnesota Nonprofit Corporation Act, Minnesota Statutes
Chapter 317A, as amended.
1.2 "Assessments" means all assessments levied by the Association pursuant to
Section 6, including annual Assessments, special Assessments and limited Assessments.
1.3 "Association" means Deer Haven Association, a Minnesota nonprofit corporation
created pursuant to the Act, whose members consist of all Owners.
1.4 "Board" means the Board of Directors of the Association as provided for in the
Bylaws.
1.5 "Bylaws" means the Bylaws governing the operation of the Association, as
amended from time to time.
1.6 "City„ means the City of Chanhassen, Minnesota.
1.7 "Common Expenses" means all expenditures made or liabilities incurred by or on
behalf of the Association or otherwise identified as Common Expenses in this Declaration or the
Bylaws.
1.8 "Common Property" means any parts of the Property, including all Improvements
thereon, except the Lots, owned by the Association for the common benefit of the Owners and
Occupants. The Common Property, as of the date of this Declaration, is legally described in
Exhibit B attached hereto.
1.9 "Developer Control Period" means the time period during which Developer has
the exclusive right to control the operations of the Association and to appoint the members of the
Board, as provided in Section 15.6.
1.10 "Developer Rights„ means those exclusive rights reserved to Developer, its
successors and assigns, as described in Section 15.
1.11 "Dwelling" means a building consisting of one (1) floor, designed and intended
for occupancy as a detached, single-family residence, and located within the boundaries of a Lot.
The Dwelling includes any garage attached thereto or otherwise located within the boundaries of
the Lot upon which the Dwelling is located.
1.12 "Governing Documents" means this Declaration, and the Articles of Incorporation
and Bylaws of the Association, as amended from time to time, all of which shall govern the use
and operation of the Property.
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1.13 "Improvement" means any physical improvement of any kind to any part of the
Property, temporary or permanent, structural, aesthetic or otherwise including, but not limited to,
any Dwelling, structure, enclosure, building, addition, retaining wall or other wall, fence, sign,
enclosure, deck, patio, screening, sport court, basketball hoop, fire pit, exterior lighting, gazebo,
utilities system, antenna or other type of sending or receiving apparatus or communications
system, irrigation or drainage system, pond, roadway, trail, planting, landscaping, or any other
type of structure or physical improvement or any alteration, modification or change involving
any such physical improvement.
1.14 "MCIOA" means the Minnesota Common Interest Ownership Act, Minnesota
Statutes Chapter 51513, as amended.
1.15 "Member" means all Persons who are members of the Association by reason of
being Owners. The words "Owner" and "Member" may be used interchangeably in the
Governing Documents.
1.16 "Mortgagee" means any Person owning a mortgage on a Lot, which mortgage is
first in priority upon foreclosure to all other mortgages that encumber such Lot.
1.17 "Occupant" means any person or persons, other than an Owner, in possession of a
Lot or residing in or otherwise occupying a Dwelling on a Lot.
1.18 "Owner" means a Person who owns a Lot, but excluding contract for deed
vendors, Mortgagees and other Persons holding a security interest in a Lot, and Persons holding
a reversionary or remainder interest in a Lot. The term "Owner" includes, without limitation,
contract for deed vendees and holders of life estates.
1.19 "Person" means a natural individual, corporation, limited liability company,
partnership, limited liability partnership, trust, or other legal entity capable of holding title to real
property.
1.20 "Plat" means the recorded plat or part thereof depicting the Property pursuant to
the requirements of Minnesota Statutes Chapter 505, including any replat thereof recorded from
time to time.
1.21 "Private Street" means the private street located or to be located on the Common
Property which provides access to the Lots.
1.21 "Property" means all of the real property now or hereafter subjected to this
Declaration, including the Lots, Dwellings and all other structures and Improvements located
thereon now or in the future. The Property, as of the date of this Declaration, is legally described
in Exhibit A attached hereto.
1.22 "Rules" means the Rules and Regulations of the Association as approved from
time to time pursuant to Section 5.6, if any.
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1.23 "Lot" means any platted lot subject to this Declaration upon which a Dwelling is
located or intended to be located, as described in Section 2.1 and shown on the Plat, including all
Improvements thereon, but excluding any Common Property.
References to section numbers shall refer to sections of this Declaration, unless otherwise
indicated. References to the singular may refer to the plural, and conversely, depending on
context.
SECTION 2
DESCRIPTION OF LOTS AND RELATED EASEMENTS
2.1 Lots. There are four (4) Lots, subject to the right of the Developer to add other
property thereto as described in Section 3.2 or to deannex portions of the Property as described
in Section 3.3. All Lots are restricted to single-family residential use, except as otherwise
provided herein. Each Lot constitutes a separate parcel of real estate. The Lots are identified by
lot and block numbers and subdivision name, as shown on the Plat, which is incorporated herein
by reference. The legal description of the Lots is set forth in Exhibit A attached hereto.
2.2 Lot Boundaries. The front, rear and side boundaries of each Lot are the boundary
lines of the platted lot upon which the Dwelling is located or intended to be located. The Lots
have no upper or lower boundaries. All Improvements within the boundaries of a Lot are a part
of the Lot.
2.3 Appurtenant Easements. The Lots shall be subject to and benefited by the
easements described in Section 12.
SECTION 3
COMMON PROPERTY AND OTHER PROPERTY
3.1 Common Property. The Common Property and its characteristics shall be as
follows:
3.1.1 Any parts of the Property, including all Improvements thereon, except the
Lots, owned by the Association for the common benefit of the Owners and Occupants
constitute Common Property. The Common Property is legally described on Exhibit B.
3.1.2 The Common Property is subject to (i) easements as described in this
Declaration and the Governing Documents, reflected on the Plat or in other instruments
recorded against the Common Property, and (ii) the right of the Association to establish
reasonable Rules governing the use thereof.
3.1.3 Except as otherwise expressly provided in the Governing Documents, all
maintenance, repair, replacement, management and operation of the Common Property
shall be the responsibility of the Association.
3.1.4 Common Expenses for the maintenance, repair, replacement, management
and operation of the Common Property shall be assessed and collected from the Owners
in accordance with Section 4.2 and Section 6.
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3.2 Annexation of Other Property. Other real property may be annexed to the
Property and subjected to this Declaration subject to the following requirements: (i) the parcel
shall be owned by the Developer; (ii) the annexation shall be approved by the Board; and (iii) an
amendment to this Declaration describing the annexation and the parcel being annexed,
subjecting said parcel to this Declaration, and reallocating Common Expense obligations, voting
rights and memberships, shall be executed by the Developer, consented to by any mortgagee of
the annexed parcel, and recorded. Any property so annexed may be designated as Common
Property or Lots.
3.3 Dedication and Deannexation of Property. Portions of the Property may be
deannexed and withdrawn from this Declaration subject to the following requirements: (i) the
Property shall be owned by the Developer; (ii) the deannexation shall be approved by the Board;
and (iii) an amendment to this Declaration describing the deannexation and the parcel being
deannexed shall be executed by the Developer, consented to by any mortgagee of the deannexed
parcel, and recorded. The Association shall also have the power to deannex and dedicate or
convey reasonable portions of the Property owned by it to any governmental or private Person
for private or public purposes, subject to the written consent of the Developer so long as the
Developer owns an unsold Lot for sale. The portion of the Property which is deannexed shall be
automatically released from and no longer subject to this Declaration, and any rights or
obligations accruing thereto shall terminate, effective upon the recording of such instrument;
provided that such instrument shall reference this Declaration and the authority contained in this
Section.
3.4 Interest Subject to Plan of Development. Every Owner and any secured party or
other Person holding or acquiring an interest in a Lot, shall take title or hold such interest subject
to the Developer's rights pursuant to this Declaration. Notwithstanding anything to the contrary
in this Declaration, the Developer's rights or obligations under the Governing Documents may
not be changed in whole or in part without the prior written consent of the Developer, which
consent may be granted or denied in the Developer's sole and absolute discretion.
SECTION 4
ASSOCIATION MEMBERSHIP: RIGHTS AND OBLIGATIONS
Membership in the Association, and the allocation to each Lot of a portion of the votes in
the Association and a portion of the Common Expenses of the Association, shall be governed by
the following provisions:
4.1 Membership. Each Owner shall be a Member of the Association by reason of Lot
ownership, and the membership is automatically transferred with the conveyance of the Owner's
title to the Lot. An Owner's membership terminates when the Owner's Lot ownership
terminates. When more than one (1) Person is an Owner of a Lot, all such Persons are Members
of the Association, but multiple ownership of a Lot does not increase the voting rights allocated
to the Lot nor authorize the division of the voting rights.
4.2 Voting and Common Expenses. Voting rights and Common Expense obligations
are allocated among the Lots as follows:
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4.2.1 Each Lot is allocated one (1) vote in the affairs of the Association.
4.2.2 Subject to Sections 6.4 and 6.5, the Common Expense obligations shall be
allocated and assessed against the Lots equally.
Said rights and obligations shall be automatically reallocated on the same basis among the Lots
as and if additional Lots are added to the Property.
4.3 Appurtenant Rights and Obligations. The ownership of a Lot includes the voting
rights and Common Expense obligations described in Section 4.2. Said rights and obligations,
and the title to the Lots, cannot be separated or conveyed separately, and any conveyance,
encumbrance, judicial sale or other transfer of any allocated interest in a Lot, separate from the
title to the Lot shall be void. The allocation of the rights and obligations described in this
Section may not be changed, except in accordance with the Governing Documents.
4.4 Authority to Vote. The Owner, or some natural person designated to act as proxy
on behalf of the Owner, and who need not be an Owner, may cast the vote allocated to such Lot
at meetings of the Association. However, if there are multiple Owners of a Lot, only the Owner
or other person designated pursuant to the provisions of the Bylaws may cast such vote. The
voting rights of Owners are more fully described in Section 3 of the Bylaws.
SECTION 5
ADMINISTRATION
The administration and operation of the Association and the Property, including but not
limited to the acts required of the Association, shall be governed by the following provisions:
5.1 General. The operation and administration of the Association and the Property
are governed by the Governing Documents and the Rules. Subject to the rights of the Owners set
forth in the Governing Documents, the Association is responsible for the operation, management
and control of the Property in accordance with the Governing Documents and shall have all
powers described in the Governing Documents and the Act. All power and authority of the
Association shall be vested in the Board, unless action or approval by the Owners is specifically
required by the Governing Documents or the Act. All references to the Association means the
Association acting through the Board, unless specifically stated to the contrary.
5.2 Operational Purposes. The Association shall operate and manage the Property for
the purposes of (i) administering and enforcing the covenants, restrictions, easements, charges
and liens set forth in the Governing Documents; (ii) enforcing the Rules; (iii) maintaining,
repairing and replacing those portions of the Property and other Improvements (if any) for which
the Association is responsible pursuant to Section 9; and (iv) preserving the architectural and
environmental character of the Property.
5.3 Binding Effect of Actions. All agreements and determinations made by the
Association in accordance with the Governing Documents and/or the Act shall be binding upon
all Owners and Occupants, and their lessees, guests, heirs, personal representatives, successors
and assigns, and all secured parties.
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5.4 Bylaws. The Association shall have Bylaws. The Bylaws govern the operation
and administration of the Association, and are binding upon all Owners, Occupants and other
Persons owning or acquiring any interest in the Property.
5.5 Mana ems. The Board has authority to select a manager or managing agent and
to delegate the management duties imposed upon the Association's officers and directors by the
Governing Documents and the Act. However, such delegation shall not relieve the officers and
directors of the ultimate responsibility for the performance of their duties as prescribed by the
Governing Documents and the Act.
5.6 Rules. The Board has exclusive authority to approve, amend and implement such
reasonable Rules as it deems necessary from time to time for the purpose of operating and
administering the affairs of the Association and regulating the use of the Property in accordance
with the Governing Documents, subject to approval by the Developer in accordance with Section
15.7. The Rules shall be consistent with the Governing Documents and any ordinances,
governmental laws, codes, ordinances or regulations of any governmental entity having
jurisdiction over the Property. The inclusion in other parts of the Governing Documents of
authority to approve Rules is in furtherance, and not in limitation, of the authority granted by this
Section. New or amended Rules are effective only after reasonable notice thereof has been given
to the Owners.
5.7 Association Assets. All funds and real or personal property acquired by the
Association shall be held and used for the benefit of the Owners for the purposes stated in the
Governing Documents.
SECTION 6
ASSESSMENTS
6.1 General. A budget shall be established and Assessments shall be determined and
levied against the Lots subject to the requirements and procedures set forth in this Section 6 and
the requirements of the Bylaws. Assessments shall include annual Assessments under
Section 6.2, and may include special Assessments under Section 6.3 and limited Assessments
under Section 6.4. Annual and special Assessments shall be allocated among the Lots in
accordance with the allocation formula set forth in Section 4.2; provided, that the Board may
allocate a reduced share of an annual or special Assessment against those Lots which are
unimproved or unoccupied to reflect reduced services received from the Association. Limited
Assessments under Section 6.4 shall be allocated to Lots as set forth in that Section.
6.2 Annual Assessments. Annual Assessments shall be established and levied
annually by the Board, subject to the limitations set forth hereafter. Each annual Assessment
shall cover all of the anticipated Common Expenses of the Association for that year, which are to
be shared by all Lots in accordance with the allocation formula set forth in Section 4.2. Annual
Assessments shall be payable in equal monthly, quarterly or annual installments, as directed by
the Board.
6.3 Special Assessments. In addition to annual Assessments, and subject to the
limitations set forth hereafter, the Board may levy in any Assessment year a special Assessment
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against all Lots in accordance with the allocation formula set forth in Section 4.2, and for the
purposes described in this Declaration. Among other things, special Assessments shall be used
for the purpose of defraying in whole or in part the cost of any unforeseen and unbudgeted
Common Expense.
6.4 Limited Assessments. In addition to annual Assessments and special
Assessments, the Board may, at its discretion, or shall, as indicated below, levy and allocate
limited Assessments among only certain Lots in accordance with the following requirements and
procedures:
6.4.1 Any Common Expense or portion thereof benefiting fewer than all of the
Lots shall be assessed exclusively against the Lot or Lots benefited.
6.4.2 Any Common Expense or portion thereof incurred in connection with the
performance of the Association's maintenance obligations pursuant to Section 9.1.2 shall
be assessed exclusively against Lots 1 through 3, inclusive, Block 1; Deer Haven,
according to the recorded plat thereof, Carver County, Minnesota.
6.4.3 The costs of insurance shall be assessed equally or by actual cost per Lot,
and the costs of utilities may be assessed equally, in proportion to usage or such other
reasonable allocation as may be approved by the Board. Fees for the use of common
amenities (if any) may be assessed equally or in proportion to use.
6.4.4 Reasonable attorneys' fees and other professional fees and other costs
incurred by the Association in connection with (i) the collection of Assessments, and
(ii) the enforcement of the Governing Documents and the Rules, against an Owner or
Occupant or their guests, may be assessed against the Owner's Lot.
6.4.5 Late charges, fines and interest may be assessed as provided in Section 13.
6.4.6 Assessments levied to pay a judgment against the Association may be
levied only against the Lots existing at the time the judgment was entered, in proportion
to those Lots' Common Expense liabilities.
6.4.7 If any damage to the Common Property or another Lot is caused by the act
or omission of an Owner or Occupant, or their guests, the Association may assess the
costs of repairing the damage exclusively against the Owner's Lot to the extent not
covered by insurance.
6.4.8 If any Assessment or installment of an Assessment becomes more than
thirty (30) days past due, then the Association may, upon ten (10) days written notice to
the Owner, declare the entire amount of the Assessment immediately due and payable in
full.
6.4.9 If Common Expense liabilities are reallocated for any purpose,
Assessments and any installment thereof not yet due shall be recalculated in accordance
with the reallocated Common Expense liabilities.
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Assessments levied under Sections 6.4.1 through 6.4.6 may, at the Board's discretion, be
assessed as a part of, or in addition to, other Assessments levied under this Section 6.
6.5 Liability of Owners for Assessments/Developer Exemption. Subject to
Section 6.5.3, the obligation of an Owner to pay Assessments is as follows:
6.5.1 The Owner at the time an Assessment is payable with respect to that
Owner's Lot is personally liable for the share of the Common Expenses assessed against
such Lot. Such liability shall be joint and several where there are multiple Owners of the
Lot.
6.5.2 The Owner's liability is absolute and unconditional, unless otherwise
modified by law or this Declaration. Except as provided in Section 6.5.3, no Owner is
exempt from liability for payment of Assessments by right of set-off, by waiver of use or
enjoyment of any part of the Property, by absence from or abandonment of the Lot, by
the waiver of any other rights, or by reason of any claim against the Developer, the
Association or their respective officers, directors or agents, or for their failure to fulfill
any duties under the Governing Documents or the Act.
6.5.3 The Developer, and any Lot owned by Developer, are exempt from
Assessments and Assessment liens until a certificate of occupancy (or similar approval)
has been issued by the City with respect to a Dwelling located on such Lot.
6.6 Assessment Lien. Subject to Section 6.5, the Association has a lien on a Lot for
any Assessment levied against that Lot from the time the Assessment becomes due. If an
Assessment is payable in installments, the full amount of the Assessment is a lien from the time
the first installment thereof becomes due. Fees, charges, late charges, fines and interest charges
imposed by the Association are liens, and are enforceable as Assessments, under this Section 6.
Recording of this Declaration constitutes record notice and perfection of any lien under this
Section 6, and no further recordation of any notice of or claim for the lien is required. The
release of the lien shall not release the Owner from personal liability unless agreed to in writing
by the Association. The attorneys' fees and costs incurred by the Association to prepare and
record a lien notice or a satisfaction or release of the lien shall be the personal obligation of the
Owner of the Lot that is subject to the lien, and shall be part of the amount of the lien.
6.7 Foreclosure of Lien; Remedies. A lien for Assessments may be foreclosed
against a Lot under the laws of the State of Minnesota (i) by action, or (ii) by advertisement in
substantially the same manner as a mortgage containing a power of sale; provided, however, that
in a foreclosure by advertisement, the foreclosing party shall be entitled to costs and
disbursements of foreclosure and attorneys' fees authorized by this Declaration or the Bylaws,
notwithstanding the provisions of Minnesota Statutes Section 582.01, subdivisions 1 and la., and
in a foreclosure by action, the foreclosing party shall be entitled to costs and disbursements of
foreclosure and attorneys' fees as the court shall determine. The Association, or its authorized
representative, shall have the power to bid at the foreclosure sale and to acquire, hold, lease,
mortgage and convey any Lot so acquired. The Owner and any other Person claiming an interest
in the Lot, by the acceptance or assertion of any interest in the Lot, grants to the Association a
power of sale and full authority to accomplish the foreclosure. The Association shall, in addition
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to its other remedies, have the right to pursue any other rernedy at law or in equity against the
Owner who fails to pay any Assessment or charge against the Lot.
6.8 Lien Priority; Foreclosure. A lien under this Section 6 is prior to all other liens
and encumbrances on a Lot except (i) liens and encumbrances recorded before the Declaration;
(ii) any first mortgage on the Lot; and (iii) liens for real estate taxes and other governmental
assessments or charges against the Lot. A Mortgagee that acquires title to the Lot by foreclosure
or a deed in lieu of foreclosure shall take title to the Lot free and clear of all Assessment liens
encumbering the Lot and Assessments payable in the period prior to the acquisition of title to the
Lot by the Mortgagee. At such time as the Mortgagee takes title to the Lot, it shall be obligated
to pay Assessments levied against the Lot and payable during the period when it holds title to the
Lot.
6.9 Voluntary Conveyances; Statement of Assessments. In a voluntary conveyance
of a Lot, the transferee of the Lot shall not be personally liable for any unpaid Assessments or
other charges made by the Association against the transferor of that Lot or that Lot prior to the
time of conveyance to said transferee, unless expressly assumed by said transferee. However,
the lien of such Assessments shall remain against the Lot until released or satisfied. Any such
transferor or transferee shall be entitled to a statement, in recordable form, from the Association
setting forth the amount of the unpaid Assessments against the Lot, including all Assessments
payable in the Association's current fiscal year, which statement shall be binding on the
Association, such transferor and/or such transferee.
6.10 Real Estate Taxes and Assessments. Real estate taxes, governmental special
assessments, and other charges and fees which may be levied against the Common Property by
governmental authorities, shall be allocated equally among and levied against the Lots, and shall
be a lien against each Lot in the same manner as a lien for real estate taxes and special
assessments levied against the Lot alone.
6.11 Working Capital Fund. There shall be established a working capital fund to meet
unforeseen expenditures or to purchase additional equipment or services for the Association.
From and after the date of recording of this Declaration, there shall be contributed to the working
capital fund, on a one-time basis for each Lot sold to a purchaser other than the Developer, an
amount equal to two (2) months installments of the annual Assessment for the Lot. The
contribution shall be paid by the purchaser of the Lot at the time of closing of the initial sale of
the Lot to the purchaser. The contributions to this fund are in addition to the regular installments
of annual Assessments.
SECTION 7
RESTRICTIONS ON USE OF PROPERTY
All Owners and Occupants, and all secured parties, by their acceptance or assertion of an
interest in the Property, or by their occupancy of a Lot, covenant and agree that, in addition to
any other restrictions which may be imposed by the Governing Documents, the occupancy, use,
operation, alienation and conveyance of the Property shall be subject to the following
restrictions:
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7.1 General. The Property shall be owned, conveyed, encumbered, leased, used and
occupied subject to the Governing Documents and the Rules, all as amended from time to time.
All covenants, restrictions, obligations, conditions and easements set forth in the Governing
Documents are in furtherance of a plan for the Property, and shall run with the Property and be a
burden and benefit to all Owners and Occupants and to any other Person acquiring or owning an
interest in the Property, their heirs, personal representatives, successors and assigns.
7.2 Subdivision Prohibited. Except as otherwise provided herein, no Lot nor any part
of the Common Property may be subdivided or partitioned without the prior approval by a vote
of the Owners, any governmental authorities having jurisdiction over the Property, and any
Mortgagees of the affected Lots. The dedication or de -annexation of a portion of the Property
pursuant to Section 3 shall not be deemed a subdivision or partition.
7.3 Residential Use. Except as provided in Section 7.4, the Lots shall be used by
Owners and Occupants and their guests exclusively as private, single family residential Lots. An
Owner may delegate, in accordance with the Governing Documents, the Owner's right of use
and enjoyment of the Lot to persons living in the Lot pursuant to a legal right of possession;
provided, that such persons shall be subject to the Governing Documents and the Rules.
7.4 Permitted Business Activities. No business, trade, occupation or profession of
any kind, whether carried on for profit or otherwise, shall be conducted, maintained or permitted
on any Lot or the Common Property except:
7.4.1 An Owner or Occupant residing in a Dwelling may maintain an office or
home occupation in such Owner or Occupant's Dwelling; provided, that such use (i) is
incidental to the residential use; (ii) does not involve physical alteration of the Dwelling
visible from the exterior; (iii) is permitted by and in compliance with applicable
governmental laws, ordinances and regulations; (iv) does not involve observable business
activity such as signs, advertising displays, business -related deliveries, or unusual levels
of pedestrian or vehicular traffic to and from the Lot; and (v) does not otherwise involve
activity which disturbs the quiet enjoyment of the Property by other Owners or
Occupants.
7.4.2 The Association may maintain offices and other facilities on the Property,
including the Common Property, for management, operations and related purposes.
7.4.3 Developer may maintain offices, sales facilities, model homes and other
related facilities on the Property, including the Common Property, in connection with the
exercise of their rights under the Governing Documents.
7.5 Leasiniz. Leasing of Lots and Dwellings is allowed, subject to reasonable
regulation by the Association, and subject to the following conditions: (i) that no Lot or Dwelling
shall be leased for transient or hotel purposes, including, without limitation, Airbnb, VRBO and
the like; (ii) that no Lot or Dwelling may be subleased; (iii) that a Dwelling must be leased in its
entirety, not by room or other part, unless the Dwelling is simultaneously occupied by the
Owner; (iv) the lease shall be in writing; (v) the lease shall provide that it is subject to the
Governing Documents and Rules and that any failure of the lessee to comply with the terms of
such documents shall be a default under the lease; and (vi) the lease is permitted by and in
compliance with all governmental laws, ordinances and regulations. The Association may
impose such reasonable Rules as may be necessary to implement non-discriminatory procedures
for the leasing of Dwellings.
7.6 Parking/Vehicles/Personal Property. The outside storage or parking of buses,
trucks (other than pick-ups, SUVs and similar small trucks used for the Owner's or Occupant's
personal vehicles), trailers, unlicensed automobiles, aircraft, tractors, motorcycles, snowmobiles,
motorhomes, all -terrain vehicles, or watercraft is prohibited, except for temporary parking as
authorized by the Association. Garages shall not be used for storage or other purposes so that
they become unavailable for parking vehicles and keeping incidental personal property. No
Person shall perform maintenance, repair or restoration work on any vehicle on the Property
except for their own vehicles, and then only (i) within the Owner's garage, or (ii) for emergency
repairs. Notwithstanding anything to the contrary in this Section, commercial vehicles shall not
be parked or stored on the Property, except within a garage or on a temporary basis in connection
with construction work on a Lot or deliveries.
7.7 Traffic Regulations. All vehicular traffic on the Property is subject to federal,
state and local laws and regulations. All vehicles operated on the Property shall be operated in a
careful, prudent, and safe manner; and with due consideration for the rights of all Owners and
Occupants. The Association shall have the authority to establish Rules to further regulate the use
of and parking on the Private Street located on the Common Property.
7.8 Animals. In addition to all federal, state and local laws, ordinances and
regulations, the Board shall have the authority to regulate by Rules, the keeping of animals on
the Property, but those animals which are permitted shall be limited to common domestic house
pets such as dogs, cats, fish, birds and the like. However, no animal may be bred, or kept or
maintained for business or commercial purposes, anywhere on the Property. The word "animal"
shall be interpreted in its broadest sense and shall include all living creatures except humans.
Notwithstanding the foregoing, no Rule may prohibit the keeping of a qualified service dog or
similar animal by a person who is disabled within the meaning of the Fair Housing Amendments
Act of 1988 or comparable state law.
7.9 Sim. In addition to all federal, state and local laws, ordinances and regulations,
no sign or comparable device of any kind shall be placed, erected or maintained on the Property
except (i) one (1) sign per Lot of a size and style approved by the Association, advertising the
Lot for sale or rent; (ii) signs placed by the Developer to advertise the Property, Lots or
Dwellings or for other business or construction related purposes during the construction,
development or sales period; (iii) the permanent entrance signs and monuments erected by the
Developer to identify the Property; and (iv) other signs that are expressly authorized by and in
compliance with all governmental laws, ordinances and regulations.
7.10 Quiet Enjoyment; Interference Prohibited. All Owners and Occupants and their
guests have a right of quiet enjoyment in their respective Lots. The Property shall be occupied
and used in such a manner as will not cause a nuisance, nor unduly restrict, interfere with or
12
impede the use and quiet enjoyment of the Property by other Owners and Occupants and their
invitees.
7.11 Compliance with Law. No use shall be made of the Property which would violate
any then existing municipal codes or ordinances, or state or federal laws, nor shall any act or use
be permitted which could cause waste to the Property, cause a material increase in insurance
rates on the Property, or otherwise cause any unusual liability, health or safety risk, or expense,
for the Association or any Owner or Occupant.
7.12 Improvements. Except for those made by Developer in connection with the sale
of a Lot or construction of the first Dwelling thereon, no Improvement may be made, or caused
or allowed to be made, on any part of the Common Property, or on any part of a Lot which is
visible from the exterior of a Dwelling, except in accordance with Section 8.
7.13 Time Shares Prohibited. The time share form of ownership, or any comparable
form of lease, occupancy rights, ownership, or right -to -use plans, which has the effect of
dividing the ownership or occupancy of a Lot into separate time periods, is prohibited.
7.14 Storage of Trash, Recycling and Yard Waste Bins. Owners are prohibited from
storing trash, recycling and yard waste bins outside of the garage area of the Dwellings, except
for reasonable periods of time before and after collection.
7.15 Wetland Buffer Areas. The Common Property and certain of the Lots contain
wetland buffer areas which shall be marked with appropriate signage. No Owner or Occupant
shall take any action of any kind to change, alter, disturb, build upon or otherwise improve the
landscaping, open spaces, vegetation and signage within the wetland buffer areas.
7.16 Access to Lots. In case of emergency, the yard areas of all Lots are subject to
entry, without notice and at any time, by an officer or member of the Board, by the management
agent of the Association, or by any public safety personnel. Reasonable access is also authorized
for maintenance purposes under Sections 9 and 12 and for enforcement purposes under Section
13.
SECTION 8
ARCHITECTURAL STANDARDS
8.1 Restrictions on Improvements. One of the purposes of this Declaration is to
ensure that the exterior portions of the Dwellings and the Lots are kept and maintained in an
architecturally attractive condition, consistent with the overall architectural character of the
Property. Therefore, except as set forth in Section 8.6, the following restrictions and
requirements shall apply to Improvements to the Property:
8.1.1 Except as expressly provided in Section 8.6, no Improvements to a Lot, or
any design or color change, or other alteration, modification or Improvement of any
Dwelling or any other part of a Lot which is visible from the exterior of the Dwelling,
shall be commenced, constructed, erected, removed, planted or maintained, nor shall any
addition to or change, replacement or alternation thereof be made, unless and until the
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plans and specifications showing the nature, kind, shape, height, color, materials and
locations of the Improvement shall have been approved in writing by the Board or a
committee appointed by it. In addition, Developer's written consent shall also be
required for Improvements for so long as Developer owns a Lot for sale.
8.1.2 The Board may appoint, supervise and disestablish an architectural review
committee, and specifically delegate to it part or all of the functions which the Board
exercises under this Section 8, in which case the references to the Board shall refer to the
architectural review committee where appropriate. The architectural review committee
shall be subject to the supervision of the Board.
8.1.3 The Board shall establish criteria for approval of Improvements, which
shall include and require, at a minimum: (i) compatibility of color, location, type and
design in relation to existing Dwellings in the vicinity and topography, (ii) adequate
protection of the Property, the Association, other Owners and Occupants from liability
and liens arising out of the proposed Improvements, and (iii) compliance with
governmental laws, codes and regulations. The Board, or the appointed architectural
committee if so authorized by the Board, in its sole discretion, may impose Rules or
guidelines establishing standards for design, appearance, construction, or development
which are greater or more stringent than standards prescribed by the Governing
Documents, or by building, zoning, or other governmental laws, codes, or regulations;
provided that such standards shall be consistent with the architectural character and use
of the Property as planned and developed by the Developer. The Board, or the appointed
architectural committee if so authorized by the Board, shall be the sole judge of whether
such criteria are satisfied and its determination shall be binding upon the Owners,
Occupants and any other Person holding or acquiring an interest in the Lot.
8.2 Review Procedures. The following procedures shall govern requests for each
Improvement under this Section:
8.2.1 Detailed plans, specifications and related information regarding any
proposed Improvement, in form and content acceptable to the Board, shall be submitted
to the Board and to Developer (if applicable) at least thirty (30) days prior to the
projected commencement of construction. No Improvement shall be commenced prior to
approval.
8.2.2 The Board and Developer (if applicable) shall give the Owner written
notice of approval or disapproval. The Board shall have the right and authority to
approve, conditionally approve or deny requests for Improvement in its sole absolute
discretion. If the Board and Developer (if applicable) fail to approve or disapprove
within thirty (30) days after receipt of said plans and specifications and all other
information requested by the Board and Developer (if applicable), then approval shall be
deemed to be granted; provided, that the Improvement is done in accordance with the
plans, specifications and related information which were submitted.
denied.
8.2.3 If no request for approval is submitted, approval shall be deemed to be
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8.3 Remedies for Violations. The Association may undertake any measures, legal,
equitable or administrative, to enforce compliance with this Section and shall be entitled to
recover from the Owner causing or permitting the violation all attorneys' fees and other
professional fees and costs of evaluation, investigation and enforcement incurred by the
Association, regardless of the type of action taken or whether or not an action is taken. Such fees
and costs shall be a lien against the Owner's Lot and a personal obligation of the Owner. In
addition, the Association shall have the right to enter upon the Owner's Lot and to restore any
part of the Dwelling or Lot to its prior condition if any Improvements were made in violation of
this Section, and the cost of such restoration shall be a lien against the Owner's Lot and the
personal obligation of the Owner.
8.4 Owner Responsibility/Indemnity. The Owner who causes an Improvement to be
made, regardless of whether the Improvement is approved by the Board, shall be responsible for
the construction work and any claims, damages, losses or liabilities arising out of the
Improvement, and to ensure that the work approved by it satisfies all applicable municipal
requirements. The Owner shall hold harmless, indemnify and defend the Association and the
Developer, and their respective officers, directors and committee members, from and against any
expenses, claims, damages, losses or other liabilities, including without limitation attorneys' fees
and other professional fees and costs, arising out of (i) any Improvement which violates any
governmental laws, codes, ordinances or regulations; (ii) the adequacy of the specifications or
standards for construction of the Improvement; and (iii) the construction of the Improvement.
8.5 Additional Restrictions. The Board may adopt reasonable Rules further
restricting Improvements or other material alterations to the Lots or Dwellings.
8.6 Exemptions. The requirements set forth in this Section 8 (except Section 8.4)
shall not apply to the following:
8.6.1 Original construction of the Dwellings and other Improvements approved
or undertaken by the Developer, or approved by the City, in connection with the sale of
the Lots and the Improvement thereof.
8.6.2 The installation of certain satellite dishes and antennas, which shall be
governed by federal law and rules consistent therewith.
8.6.3 Other Improvements expressly permitted by state or federal law.
SECTION 9
MAINTENANCE
9.1 Maintenance by Association. The Association shall not, and has no obligation to,
maintain any portion of the Dwellings. The maintenance obligations of the Association are as
follows:
9.1.1 The Association shall maintain, repair and replace the Common Property
and related Improvements located thereon, including, without limitation, the Private
Street, landscaping and related Improvements located.
ILI
9.1.2 The Association shall maintain, repair and replace the storm water ponds,
filtration basins and related stormwater facilities, wetland buffer areas and related
signage, that are located on and serve the Property subject to and in accordance with the
requirements of the Stormwater Maintenance Agreement with the City and the
Declaration in favor of the Minnehaha Creek Watershed District recorded against the
applicable portions of the Property, and all related conditions and permits applicable
thereto.
9.1.3 The Association shall maintain, repair and replace the common entrance
sign or monument and related Improvements identifying the development whether
located on the Common Property, a Lot or other property.
9.1.4 The Association may, at the discretion of the Board, provide for (a)
removal of trash and recyclables from the Lots; and/or (b) the maintenance, repair and/or
replacement of other Improvements within the yard areas of the Lots, but in no case shall
the Association maintain the exterior or interior of any Dwelling or other structure on a
Lot.
9.1.5 The Association shall perform any maintenance obligation it may have
under any agreement, now or hereafter entered into, with the City.
9.2 Maintenance by Owner. The maintenance obligations of the Owners are as
follows:
9.2.1 Subject to Section 9.1, all maintenance, repair and replacement of the
Dwellings, Lots and all other Improvements located within the Lots shall be the sole
obligation and expense of the Owners thereof. Exterior maintenance for which the
Owners are obligated must be performed in accordance with any standards established by
the Association.
9.2.2 The Owners or Occupants shall maintain, trim and replace trees, shrubs
and similar plantings located in such Owner's Lot.
9.2.3 All drainage easement areas within a Lot as shown on the Plat for the
Property or as described in other recorded instruments shall be maintained by the Owner
or Occupant of the Lot in a condition that will continuously permit the free flow of water
over the drainage easement without change of direction or impediment.
9.2.4 Notwithstanding anything to the contrary in the Governing Documents,
the expense of any maintenance, repair or reconstruction of the Property or other areas
maintained by the Association necessitated by the acts or omissions of an Owner or
Occupant shall be paid by the responsible Owner.
9.3 Maintenance by the City. In the event the Association fails or refuses to maintain
or repair the Common Property or other property that the Association is obligated to maintain
hereunder, the City may, with ten (10) days written notice to the Association and without regard
to the formalities of Minnesota Statutes Section 429, perform the work and assess each Lot for
the cost of the work.
In,
SECTION 10
INSURANCE
10.1 Required Coverage. The Association shall obtain and maintain, at a minimum, a
master policy or policies of insurance in accordance with the insurance requirements set forth
herein, issued by a reputable insurance company or companies authorized to do business in the
State of Minnesota, as follows:
10.1.1 Property insurance in broad form covering all risks of physical loss in an
amount equal to one hundred percent (100%) of the insurable "replacement cost" of
insurable Improvements to the Common Property or other property which the
Association is obligated to maintain, less deductibles, exclusive of land and other items
normally excluded from coverage. The policy or policies shall also cover personal
property owned by the Association.
10.1.2 Commercial general liability insurance covering the use, operation and
maintenance of the Common Property, and other lands or Improvements which the
Association is obligated to maintain against claims for death, bodily injury and property
damage, and such other risks as are customarily covered by such policies for projects
similar in type, location and use to the Property. The policy shall have minimum limits
of One Million Dollars ($1,000,000.00) per occurrence. The policy shall, if reasonably
available, contain a "severability of interest" endorsement which shall preclude the
insurer from denying the claim of an Owner or Occupant because of negligent acts of the
Association or other Owners or Occupants.
10.1.3 Insurance coverage against dishonest acts on the part of directors, officers,
managers, trustees, employees or other persons responsible for handling funds belonging
to or administered by the Association, if deemed to be advisable by the Board or required
as a precondition to the purchase, insuring or financing of a mortgage on a Lot. The
insurance shall name the Association as insureds, as their interests may appear.
10.1.4 Directors and officers liability insurance if deemed to be advisable by the
Board with such reasonable limits and coverages as the Board shall determine from time
to time.
10.1.5 Workers' compensation insurance as required by law.
10.1.6 Such other insurance as the Board may determine from time to time to be
in the best interests of the Association and the Owners.
10.2 Premiums; Improvements; Deductibles. All insurance premiums shall be assessed
and paid as annual Assessments, and allocated among the Lots as determined by the Board
consistent with the Governing Documents. The Association may, in the case of a claim for
damage or personal injury with respect to Improvements (if any) which the Association
maintains (i) pay the deductible amount as a Common Expense; (ii) assess the deductible amount
against the Lot or Lots affected in any reasonable manner; or (iii) require the Owners of the Lot
or Lots affected to pay the deductible amount directly.
I'?
10.3 Loss Payee; Insurance Trustee. All insurance coverage maintained by the
Association shall be written in the name of, and the proceeds thereof shall be payable to, the
Association (or a qualified insurance trustee selected by it). The Association, or any insurance
trustee selected by it, shall have exclusive authority to negotiate, settle and collect upon any
claims or losses under any insurance policy maintained by the Association.
10.4 Required Policy Provisions. All policies of property insurance carried by the
Association shall, if such provisions are reasonably available, provide that:
10.4.1 Each Owner and Mortgagee is an insured Person under the policy with
respect to liability arising out of the Owner's interest or membership in the Association.
10.4.2 The insurer waives its right to subrogation under the policy against any
Owner or member of the Owner's household and against the Association and members of
the Board.
10.4.3 No act or omission by any Owner or Mortgagee of a Lot, unless acting
within the scope of authority on behalf of the Association, shall void the policy or be a
condition to recovery under the policy.
10.4.4 If at the time of a loss under the policy there is other insurance in the name
of an Owner covering the same property covered by the policy, the Association's policy
is primary insurance.
10.5 Cancellation; Notice of Loss. All policies of property insurance and
comprehensive liability insurance maintained by the Association shall provide that the policies
shall not be canceled or substantially modified, for any reason, without at least thirty (30) days'
prior written notice to the Association, and all of the insureds.
10.6 Restoration in Lieu of Cash Settlement. All policies of property insurance
maintained by the Association shall provide that, despite any provisions giving the insurer the
right to elect to restore damage in lieu of a cash settlement, such option shall not be exercisable
(i) without the prior written approval of the Association (or any insurance trustee), or (ii) when in
conflict with provisions of any insurance trust agreement to which the Association may be a
party, or any requirement of law.
10.7 Owner's Personal Insurance. It is the obligation of each Owner to obtain personal
insurance coverage at his or her own expense covering fire and other casualty to the Owner's
Dwelling and other insurable Improvements located within the Owner's Lot, and public liability
insurance covering the Owner's Lot. All insurance policies maintained by Owners shall, if
possible, provide that they are without contribution as against any insurance purchased by the
Association, except as to deductibles under Section 10.2.
10.8 Notice to Developer. The Association shall give Developer at least thirty (30)
days prior written notice of any change in the Association's insurance policies until Developer
no longer owns any Lot for initial sale.
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SECTION 11
RECONSTRUCTION, CONDEMNATION AND EMINENT DOMAIN
11.1 Reconstruction. In the event of a casualty on or to any portion of the Property, the
obligations and procedures for the repair, reconstruction or disposition of the damaged
Improvements shall be governed by the following provisions:
11.1.1 All repair and reconstruction of the damaged Improvements shall be
commenced promptly following the casualty and shall be carried through diligently to
conclusion. The Association shall be responsible for the repair and reconstruction of any
Improvements to the Common Property and the Owners shall be responsible for the
repair and reconstruction of Improvements to their respective Lots.
11.1.2 All repair and reconstruction shall be approved pursuant to Section 8. The
repair and reconstruction shall be in accordance with the requirements of all applicable
zoning, subdivision, building, and other governmental regulations.
11.1.3 Notice of substantial damage or destruction to any portion of the Property
shall be promptly given to the Association by the Owner of the damaged Improvements.
11.1.4 Notwithstanding the foregoing, repair and reconstruction of a Dwelling
need not be undertaken if the Association, the Owner and the Owner's Mortgagee agree
in writing that the damaged Improvements need not be repaired and reconstructed. If
such an agreement is made, the ruins and debris of any damaged Improvements shall
promptly be cleared away and the Property shall be left in an orderly, safe and sightly
condition.
11.2 Condemnation and Eminent Domain. In the event of a taking of any part of the
Common Property by condemnation or eminent domain, the Association shall have authority to
act on behalf of the Owners in all proceedings, negotiations and settlement of claims. All
proceeds shall be payable to the Association to hold and distribute for the benefit of the Owners
and their Mortgagees, as their interests may appear. With respect to the taking of all or part of a
Lot, the Owner of the Lot shall negotiate and settle all claims, subject to the rights of any
Mortgagee of the Lot.
SECTION 12
EASEMENTS
Each Lot and the Common Property, and the rights of the Owners and Occupants therein,
shall be subject to or beneficiary of (i) the appurtenant easements and rights granted and reserved
in this Section 12; and (ii) other appurtenant easements and rights of record as referenced herein.
12.1 Drainaize. The Common Property and the yard areas of the Lots shall be subject
to nonexclusive easements for storm water drainage over those parts of the Property which are
designed, improved or graded for such purposes.
12.2 Access. Each Lot is the beneficiary of a non-exclusive easement for access to a
public street or highway on or across the Private Street and any other portions of the Common
20
Property designed and intended for use as streets, sidewalks or trails, or otherwise designated for
such uses by the Association, subject to any restrictions imposed pursuant to the Governing
Documents.
12.3 Use and Enjoyment. Each Lot is the beneficiary of a nonexclusive easement for
use and enjoyment on and across the Common Property, subject to any restrictions authorized or
imposed pursuant to the Governing Documents.
12.4 Encroachments. If there is a minor encroachment by a Dwelling, or other
Improvement onto another Lot or the Common Property as a result of the construction,
reconstruction, repair, shifting, settlement or movement of any part of the Property, an
appurtenant easement for the encroachment, for the use, enjoyment and habitation of the
encroaching Dwelling or other Improvement, and for the maintenance thereof, shall exist;
provided, that with respect to Improvements added pursuant to Section 8, no easement shall exist
unless the same have been approved, and the proposed Improvements constructed, as required by
this Declaration. Such easements shall continue for as long as the encroachment exists and shall
not affect the marketability of title.
12.5 Maintenance, Repair, Replacement and Reconstruction. Each Lot, and the rights
of the Owners and Occupants thereof, are subject to the rights of the Association to a non-
exclusive easement on and over the yard areas of Lots for the purposes of access to and
maintenance, repair, replacement and reconstruction of utilities and other common
Improvements serving more than one Lot and all other Improvements which the Association is
obligated to maintain, repair and/or replace pursuant to Section 9.1 hereof, to the extent
necessary to fulfill the Association's maintenance and other obligations hereunder.
12.6 Utilities. The Property is subject to non-exclusive, appurtenant easements in
favor of all public utility companies, other utility providers and the Association for the
installation, use, maintenance, repair and replacement of all utilities, such as natural gas,
electricity, cable TV, telephone, data and other electronic communications, water, sewer,
irrigation, wells, and similar services, and metering and control devices, which exist or are
constructed as part of the development of the Property, or which are referred to in the Plat, this
Declaration or otherwise described in any other duly recorded instrument. Each Lot, and the
rights of the Owners and Occupants thereof, shall also be subject to a non-exclusive, appurtenant
easement in favor of the other Lots for all such utilities and services; provided, that the utilities
and services shall be installed, used, maintained and repaired so as not to interfere with the
reasonable use and quiet enjoyment of the Lots by the Owners and Occupants, nor affect the
structural or architectural integrity of the Lots or Dwellings.
12.7 Developer Rights. Developer shall have and be the beneficiary of exclusive
easements for the exercise of its Developer Rights.
12.8 Association Access. There is a non-exclusive easement in favor of the
Association, including without limitation any management agent or service vendor retained by
the Association, for access on and across the Common Property and the yard areas of Lots, for
the purpose of performing the Association's obligations under the Governing Documents.
Except in the event of emergencies, this easement shall be exercised only during normal business
21
hours and then, whenever practicable, only upon advance notice to the Owner or Occupant
directly affected.
12.9 Emergency Access to Lots. In case of emergency, the yard areas of all Lots are
subject to an easement for access, without notice and at any time, by officers or members of the
Board, by the Association's management agents, or by any public safety personnel.
12.10 Project Signs. Developer shall have the right to erect and maintain monument
signs and related Improvements identifying the community on the Common Property or on Lots
subject to sign easements. Those parts of the Property on which monument signs or related
decorative Improvements are located are subject to exclusive easements in favor of the
Association for the placement and continuing use, maintenance, repair and replacement of said
monument sign and related Improvements. Any Person exercising the rights granted under said
easements shall take reasonable care to avoid damaging the Improvements to the Property and
shall repair any damage caused by it.
12.11 Other Easements. Portions of the Property are subject to such other easements as
may be recorded against such portion of the Property or otherwise shown on the Plat.
12.12 Continuation, Scope and Conflict of Easements. Notwithstanding anything in this
Declaration to the contrary, no Owner or Occupant shall be denied reasonable access to his or
her Lot or the right to utility services thereto. The easements set forth in this Section shall
supplement and not limit any easements described elsewhere in this Declaration, or otherwise
recorded, and shall include reasonable access to the easement areas through the yard areas of
Lots and the Common Property for purposes of maintenance, repair, replacement and
reconstruction.
12.13 Easements Are Appurtenant. All easements and similar rights burdening or
benefiting a Lot or any other part of the Property shall run with the land, and shall be permanent,
subject only to termination in accordance with law or the terms of the easement. Any recorded
easement benefiting or burdening the Property shall be construed in a manner consistent with,
and not in conflict with, the easements created by this Declaration.
12.14 Impairment Prohibited. No person shall materially restrict or impair any
easement benefiting or burdening the Property, subject to the Declaration and the right of the
Association to establish and enforce reasonable Rules governing the use of the Property.
12.15 Benefit of Easements. All easements benefitting a Lot shall benefit the Owners
and Occupants of the Lot, and their families and guests. However, an Owner who has delegated
the right to occupy the Lot to an Occupant or Occupants, whether by a lease or otherwise, does
not have the use and other easements rights in the Property during such delegated occupancy,
except as a guest of an Owner or Occupant or in connection with the inspection of the Lot or
recovery of possession of the Lot from the Occupant pursuant to law.
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SECTION 13
COMPLIANCE AND REMEDIES
Each Owner and Occupant, and any other Person owning or acquiring any interest in the
Property, shall be governed by and comply with the provisions of the Act, the Governing
Documents, and the Rules, and such amendments thereto as may be made from time to time, and
the decisions of the Association with respect to matters over which each has authority.
13.1 Entitlement to Relief. Legal relief may be sought by the Association against any
Owner, or by an Owner against the Association or another Owner, to enforce compliance with
the Governing Documents, the Rules, the Act or the decisions of the Association. However, no
Owner may withhold any Assessments payable to the Association, nor take or omit other action
in violation of the Governing Documents, the Rules, or the Act, as a measure to enforce such
Owner's position, or for any other reason.
13.2 Remedies. In addition to any other remedies or sanctions, expressed or implied,
administrative or legal, the Association shall have the right, but not the obligation, to implement
any one or more of the following remedies against Owners and Occupants and/or their guests,
who violate the provisions of the Governing Documents or the Rules:
13.2.1 Commence legal action for damages or equitable relief in any court of
competent jurisdiction.
13.2.2 Impose late fees or charges as determined by the Board from time to time
for each past due Assessment or installment thereof, and impose interest at the highest
rate permitted by law accruing beginning on the first day of the first month after the
Assessment or installment was due.
13.2.3 In the event of default of more than thirty (30) days in the payment of any
Assessment or installment thereof, all remaining installments of Assessments assessed
against the Lot owned by the defaulting Owner may be accelerated and shall then be
payable in full if all delinquent Assessments or installments thereof, together with all
attorneys' fees and other professional fees, costs, interest and late charges, are not paid in
full prior to the effective date of the acceleration. Not less than ten (10) days' advance
written notice of the effective date of the acceleration shall be given to the defaulting
Owner.
13.2.4 Impose reasonable fines, penalties or charges for each violation of the
Governing Documents or the Rules.
13.2.5 Suspend the rights of any Owner to vote when the Assessments due with
respect to the Owner's Lot are past due, and suspend the rights of any Owner or
Occupant and their guests to use any Common Property amenities; provided, that the
suspension of use rights shall not apply to those portions of the Common Property
providing utilities service and access to the Lot. Such suspensions shall be limited to
periods of default by such Owners and Occupants in their obligations under the
Governing Documents, and for up to thirty (30) days thereafter, for each violation.
23
13.2.6 Restore any portions of the Common Property used, damaged or altered,
or allowed to be used, damaged or altered, by any Owner or Occupant or their guests in
violation of the Governing Documents, and to assess the cost of such restoration against
the responsible Owners and their Lots.
13.2.7 Foreclose any lien arising under the provisions of the Governing
Documents or under law, in the manner provided by the Governing Documents.
13.3 Rights to Hearing. Before the imposition of any of the remedies authorized by
Sections 13.2.4 or 13.2.5, the Board shall, upon written request of the offender, grant to the
offender an opportunity for a fair and equitable hearing. The Association shall give to the
offender notice of the nature of the violation and the right to a hearing, and the offender shall be
given at least ten (10) days within which to request a hearing. The hearing shall be scheduled by
the Board and held within thirty (30) days of receipt of the hearing request by the Board, and
with at least ten (10) days' prior written notice to the offender. If the offender fails to timely
request a hearing or to appear at the hearing, then the right to a hearing shall be deemed waived
and the Board may take such action as it deems appropriate. The decision of the Board and the
rules for the conduct of hearings established by the Board shall be final and binding on all
parties. The Board's decision shall be delivered in writing to the offender within ten (10) days
following the hearing, if not delivered to the offender at the hearing.
13.4 Lien for Charges, Penalties, Etc. Any Assessments, charges, fines, expenses,
penalties or interest imposed under this Section shall be a lien against the Lot of the Owner or
Occupant against whom the same are imposed and the personal obligation of such Owner in the
same manner and with the same priority and effect as Assessments under Section 6. The lien
shall attach as of the date of imposition of the remedy, but shall not be final as to violations for
which a hearing is held until the Board makes a written decision at or following the hearing. All
remedies shall be cumulative, and the exercise of, or failure to exercise, any remedy shall not be
deemed a waiver of the Association's right to pursue any others.
13.5 Costs and Fees. With respect to any collection measures, or any other measure or
action, legal, administrative, or otherwise, which the Association takes to enforce the provisions
of the Governing Documents or the Rules, whether or not finally determined by a court or
arbitrator, the Association may assess the violator and his or her Lot with any expenses incurred
in connection with such enforcement, including without limitation fines or charges previously
imposed by the Association, attorneys' fees and other professional fees and costs, and interest (at
the highest rate allowed by law) on the delinquent amounts owed to the Association. Such
expenses shall also include any collection or contingency fees or costs charged to the Association
by a collection agency or other Person acting on behalf of the Association in collecting any
delinquent amounts owed to the Association by an Owner or Occupant. The foregoing fees and
costs shall be the personal obligation of such Owner and shall be a lien against such Owner's
Lot.
13.6 Liability for Owners' and Occupants' Acts. An Owner shall be liable for the
expense of any maintenance, repair or replacement of any part of the Property rendered
necessary by such Owner's acts or omissions, or by that of Occupants or guests in the Owner's
Lot, to the extent that such expense is not covered by the proceeds of insurance carried by the
24
Association or such Owner or Occupant. However, any insurance deductible amount and/or
increase in insurance rates, resulting from the Owner's acts or omissions may be assessed against
the Owner responsible for the condition and against his or her Lot.
13.7 Enforcement by Owners. The provisions of this Section shall not limit or impair
the independent rights of other Owners to enforce the provisions of the Governing Documents,
the Rules or the Act as provided therein.
13.8 Pre -Litigation Requirement. Notwithstanding anything to the contrary contained
herein, any litigation, administrative proceeding or other legal action instituted or intervened in
by or in the name of the Association, exclusive of (i) any action to collect Assessments or
foreclose Assessment liens, or (ii) to enforce the Governing Documents or the Rules, is subject
to prior approval by the Owners of Lots to which are allocated in excess of fifty percent (50%) of
the total votes in the Association.
SECTION 14
AMENDMENTS
14.1 Approval Requirements. Except for amendments by Developer authorized by this
Declaration, this Declaration may be amended only with the approval of:
14.1.1 The Board;
14.1.2 Owners who have the authority to cast in excess of fifty percent (50%) of
the total votes in the Association;
14.1.3 Developer as to certain amendments as provided in Section 15.7; and
14.1.4 Mortgagees as to certain amendments as provided in Section 16.1.
14.2 Procedures. If any provision of this Declaration, the Bylaws, or the Articles
requires the vote or consent of the Owners as a condition for the approval or effectiveness of an
amendment to this Declaration, the Bylaws, or the Articles, the affirmative vote or consent of an
Owner shall be deemed to be granted if the Association sends notice and a copy of the
amendment, by certified United States mail, postage prepaid and return receipt requested, and (i)
if a vote is conducted, the Owner's vote is not cast against the proposed amendment, or (ii) if
consent is requested, the Owner's written refusal to consent is not received by the Association
within sixty (60) days after notice is mailed. Subject to the foregoing, approval of the Owners
shall be obtained in accordance with the procedures set forth in the Bylaws and other required
approvals shall be in writing. Any amendment shall be subject to any greater requirements
imposed by this Declaration. The amendment shall be effective when recorded in the office of
the appropriate recording office in the county in which the Property is located. An affidavit by
the President or Secretary of the Association as to the outcome of the vote, or the execution of
the foregoing agreements or consents, shall be adequate evidence thereof for all purposes,
including without limitation, the recording of the amendment.
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SECTION 15
DEVELOPER RIGHTS
Developer hereby reserves the exclusive and unconditional authority to exercise the
following rights for as long as it owns a Lot, or for any shorter period indicated:
15.1 Complete Improvements. To complete the Dwellings and other Improvements
included in Developer's development plans or allowed by this Declaration, and to make
Improvements to the Lots and the Common Property, to accommodate the exercise of any
Developer Rights, exempt from the requirements of Section 8.
15.2 Relocate Boundaries and Alter Lots. To relocate boundaries between Lots and to
otherwise alter Lots owned by it, to the extent permitted by the City. The Developer shall have
the right and authority to unilaterally execute and record an amendment to this Declaration for
the purpose of relocating the boundaries between Lots and/or subdividing Lots.
15.3 Leasing, Sales and Rental Facilities. To engage in the sale and leasing of Lots,
and to construct, operate and maintain a sales office, management office, model Dwellings, and
other development, sales and rental facilities within the Common Property, and/or any Lots
owned or leased by Developer from time to time, located anywhere on the Property.
15.4 Si ns. To erect and maintain signs and other sales displays offering the Lots for
sale or lease and for other business and/or construction related purposes, in or on any Lot owned
or leased by Developer and on the Common Property.
15.5 Easements. To have and use easements, for itself, its employees, contractors,
representatives, agents, prospective purchasers and other invitees through and over the Common
Property and the yard areas of the Lots for the purpose of exercising its rights under this Section.
15.6 Control of Association. To control the operation and administration of the
Association, including without limitation the power to appoint and remove the members of the
Board, until the earliest of: (i) voluntary surrender of control by the Developer, or (ii) the date
when Developer no longer owns a Lot for sale.
15.7 Consent to Certain Amendments. To approve or withhold approval of any
amendment to the Governing Documents or Rules which affect Developer's rights under the
Governing Documents.
15.8 Developer's Liability for Assessments. To have the benefit of the exemption
from Assessments as provided in Section 6.5.3.
15.9 Other Rights. To have the exclusive right and authority to have and exercise such
other rights as are afforded Developer under the terms of this Declaration.
15.10 Transfer of Developer Rights. To transfer some or all of the Developer Rights,
temporarily or permanently, by a separate instrument signed by the Developer and the transferee,
and recorded against the portions of the Property owned by the Developer or the transferee and
affected by the transfer, subject to the following qualifications.
K
15.10.1 Upon transfer of any of the Developer Rights, the liability of the
Developer shall be as follows: (i) the Developer shall be liable for any obligation or
liability arising out of its acts or omissions occurring before the transfer; (ii) the
Developer shall be liable for any obligation or liability relating to any Developer Rights
retained by the Developer; and (iii) the Developer shall not be liable for any act or
omission arising from the exercise of Developer Rights by the transferee of the
Developer Rights.
15.10.2 Any transferee of the Developer Rights shall be entitled to exercise
such Developer Rights from and after the date of recording of the instrument transferring
the rights. The transferee shall thereafter be subject to all of the obligations with respect
to the rights transferred; except (i) misrepresentations of the Developer; (ii) warranty
obligations of the Developer; (iii) breach of fiduciary obligations by the Developer or by
any officers or members of the Board appointed by the Developer; (iv) any liability or
obligation imposed on the Developer as a result of the Developer's acts or omissions after
the transfer; and (v) any liability arising out of any Developer Rights retained by the
Developer.
SECTION 16
RIGHTS OF MORTGAGEES
It is important that individual mortgage loans on the Lots be available to Owners and
prospective Owners, and that, in order to enhance the availability of such financing, the
Governing Documents contain qualification provisions that are acceptable to lenders, guarantors
and insurers of Lot mortgage loans, such as FNMA, FHLMC and FHA. Accordingly,
Mortgagees shall have the rights and protections set forth in this Section 16, which rights and
protections shall control as against any other provisions of the Governing Documents.
16.1 Consent to Certain Amendments and Actions. In addition to any additional
requirements imposed by this Declaration or by law, the consent of Mortgagees representing at
least fifty-one percent (51 %) of the votes allocated to Lots that are subject to first mortgages held
by Mortgagees (based upon one vote per Lot financed) shall be required for (i) any amendment
to this Declaration or other Governing Documents of a material adverse nature to Mortgagees;
and (ii) any action to terminate the common interest community after substantial destruction or
condemnation occurs or other reasons agreed to by the foregoing percentage of Mortgagees. A
Mortgagee shall be deemed to consent to and approve of any such amendment or action in the
event the Mortgagee fails to submit a written objection to the Association within sixty (60) days
after the Mortgagee receives notice of the same from the Association, by registered or certified
mail, with a return receipt requested.
16.2 No Limitations on Sale/Rijzht of First Refusal. The right of a Mortgagee to
foreclose or accept a deed in lieu of foreclosure on a Lot, or to sell, lease, transfer, or otherwise
convey a Lot which it acquires by foreclosure or deed in lieu of foreclosure, shall not be subject
to any right of first refusal or similar restrictions.
16.3 Priority of Lien. Any Mortgagee that comes into possession of a Lot by
foreclosure of its first mortgage on a Lot, or by deed or assignment in lieu of foreclosure of the
27
first mortgage on the Lot, takes the Lot free of any claims for unpaid Assessments or any other
charges or liens imposed against the Lot by the Association which have accrued against such Lot
prior to the acquisition of possession of the Lot by said Mortgagee, (i) except that the Mortgagee
will be liable for any fees or costs of collection of the unpaid Assessments if the Association's
lien priority includes such fees and costs, and (ii) except that any unreimbursed Assessments or
charges may be reallocated among all Lots in accordance with their interests in the common
interest community.
16.4 Priority of Taxes and Other Charges. All governmental taxes, assessments, and
charges which may become liens against the Lots prior to the first mortgage under state law shall
relate only to the individual Lots and not to the Property as a whole.
16.5 Priority for Insurance/Condemnation Proceeds. No provision of this Declaration
or any other Governing Documents shall give an Owner, or any other Person, priority over any
rights of the Mortgagee of a Lot pursuant to its mortgage in the case of a distribution to such
Owner of insurance proceeds or condemnation awards for losses to or a taking of the Lot and/or
the Common Property. The Association shall give written notice to all Mortgagees of any
condemnation or eminent domain proceeding affecting the Property, promptly upon receipt of
notice from the condemning authority, in accordance with Section 16.6.
16.6 Notice Requirements. Mortgagees shall be entitled to timely written notice of.
16.6.1 a condemnation loss or any casualty loss which affects a material portion
of the Property or the Lot securing the mortgage;
16.6.2 a sixty (60) day delinquency in the payment of Assessments or charges
owed by the Owner of a Lot on which it holds a mortgage;
16.6.3 a lapse, cancellation, or material modification of any insurance policy
maintained by the Association; and
16.6.4 a proposed action which requires the consent of a specified percentage of
Mortgagees pursuant to Section 16.1.
Any institutional insurer or guarantor of a mortgage on a Lot shall also be entitled to
notice of the foregoing events or actions.
SECTION 17
MISCELLANEOUS
17.1 Severability. If any term, covenant, or provision of this instrument or any exhibit
attached hereto is held to be invalid or unenforceable for any reason whatsoever, such
determination shall not be deemed to alter, affect or impair in any manner whatsoever any other
portion of this Declaration or exhibits attached hereto.
17.2 Construction. Where applicable the masculine gender of any word used herein
shall mean the feminine or neutral gender, or vice versa, and the singular of any word used
herein shall mean the plural, or vice versa. References to the Act, or any section thereof, shall be
28
deemed to include any statutes amending or replacing the Act, and the comparable sections
thereof.
17.3 Notices. Unless specifically provided otherwise in the Governing Documents or
the Act, all notices required to be given by or to the Association, the Board, the Association
officers, or the Owners or Occupants shall be (i) in writing and shall be effective upon hand
delivery, or mailing if properly addressed with postage prepaid and deposited in the United
States mail, or (ii) by electronic communication and shall be effective when sent, as and if
authorized by the Bylaws and the Act; except that registrations pursuant to Section 2.2 of the
Bylaws shall be effective upon receipt by the Association.
17.4 Conflicts Among Documents. In the event of any conflict among the provisions
this Declaration, the Bylaws or the Rules, this Declaration shall control. As between the Bylaws
and the Rules, the Bylaws shall control.
17.5 Duration of Covenants. The covenants, conditions, restrictions, easements, liens
and charges contained in this Declaration shall be perpetual, subject only to termination as
provided in this Declaration.
17.6 Agreement with the City. The Developer and/or Association may enter into
certain agreements with the City with respect to the Property. Notwithstanding anything to the
contrary herein, the Association and Developer shall perform all of their respective obligations
under any agreement either or both may have (at any time) entered into with the City, and to the
extent there are any inconsistencies between any such agreement with the City and this
Declaration, such agreement with the City shall control. The Developer's and/or the
Association's obligations under agreements with the City may include obligations that involve
Common Expenses.
[Signature page follows.]
9t
IN WITNESS WHEREOF, the undersigned has executed this Declaration the day and
year first set forth above.
SCHAEFCO DEVELOPMENT, LLC,
a Minnesota 144edAj,�bility company
in
T/moth/ 1. Brown
Its: Vice President
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this Zlvday of
d r , 2021, by Timothy J. Brown, the Vice President of Schaefco Development,
LLC, Afinnescita limited liability company, on behalf of said entity.
`` A o '
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
FELHABER LARSON (MSR)
Attorneys at Law
220 South Sixth Street, Suite 2200
Minneapolis, MN 55402
(612)373-8409
GALE E. LARSON
Notary Public -Minnesota
4i
;'ii;s • MY cOTMiafWn Expires Jan 31, 2025
30
DEER HAVEN
EXHIBIT A TO DECLARATION
DESCRIPTION OF PROPERTY AND LOTS
Lots ] through 4, inclusive, Block l; and Outlot A; Deer Haven, according to the recorded plat
thereof, Carver County, Minnesota.
DEER HAVEN
EXHIBIT B TO DECLARATION
DESCRIPTION OF COMMON PROPERTY
Outlot A; Deer Haven, according to the recorded plat thereof, Carver County, Minnesota.
DEER HAVEN
CONSENT AND JOINDER BY OWNER
Kenneth Ashfeld and Barbara Bersie-Ashfeld, the owners of portions of real property
described in the Declaration of Covenants, Conditions, Restrictions and Easements of Deer
Haven to which this Consent and Joinder is attached (the "Declaration"), hereby consent to and
join in the Declaration; provided, that by consenting to and joining in the Declaration, the
undersigned do not in any manner constitute themselves or obligate themselves as a Developer as
defined therein.
IN WITNESS WHEREOF,
the //rklay of — , 2021.
STATE OF MINNESOTA )
SS.
COUNTY OF� ' )
the undersigned has caused this Consent to be executed on
Kenneth Ash eld
Barbara Bersie-Ashfeld
The foregoing instrument was acknowledged before me this // day of�
2021, by Kenneth Ashfeld and Barbara Bersie-Ashfeld, husband and wife.
,....
GALE E. CARBON
C Notary Public -Minnesota
My, caMnWWm Eww Jan 31. 2025
This instrument was drafted by:
Felhaber Larson (MSR)
220 South Sixth Street, Suite 2200
Minneapolis, Minnesota 55402
(612)373-8409
Notary Public