Phase 1, Parcel 1 of Parcel Map No. 79-756
City of Orange, County of Orange
State of California
Covenant for Maintenance Assessments
Section 1. Creation of Lien
Declarant, for each unit owned by it within the project, hereby covenants and each owner of any unit within the project, by acceptance of a deed therefore, whether or not it shall be so expressed in any such deed or other conveyance, is deemed to covenant and agree to pay to the Association:
(1) regular monthly assessments or charges;
(2) special assessments for capital improvements; and
(3) emergency assessments.
Such assessments shall be fixed, established and collected from time to time as hereinafter provided. The regular, special and emergency assessments, together with such interest thereon and costs of collection thereof, as hereinafter provided, shall be a charge on the land and a continuing lien on the unit against which each such assessment is made, which lien shall be created and enforced in accordance with the provisions of this Article VI. Each such assessment and all other assessments levied in accordance with this Declaration, together with late charges, interest, costs, penalties and reasonable attorney's fees, shall also be the joint and several personal obligation of each person who was the owner of such unit when the assessment fell due.
(a) Each owner shall be obligated to pay to the Board or a designated member thereof, or to the manager, if any, an initial monthly maintenance charge as indicated on an exhibit attached hereto and made a part hereof. As and when the Association, budget shall increase or decrease, as hereinafter provided, such assessments shall be adjusted so that the owner of each unit bears the same relative proportion of the total budget as that initially borne. An owner shall also bear the same relative proportion of any special assessment levied pursuant to Section 3 hereof.
(b) The Board nay not, without the vote or written assent of a majority of the voting power of the Association residing in members other than Declarant, impose a regular annual assessment per unit which is more than twenty (20%) percent greater than the regular assessment for the immediately preceding fiscal year.
(c) The Association shall upon demand, furnish to any owner liable for assessments, a certificate or letter signed by an officer of the Association setting forth whether the assessments on a specified unit have been paid and the amount of delinquency, if any. A charge of $10.00 per certificate or letter may be made by the Board for the issuance thereof. Such certificate or letter shall be conclusive evidence of payment of any assessments therein stated to have been paid.
Section 3. Special Assessments for Capital Improvements
In the event the regular assessments described above, are insufficient for any reason, the Board shall have authority to levy a special assessment to make up the deficiency in the maintenance fund on the same basis as a regular assessment. However, on any proposed special assessment in any fiscal year, the Board may not, without the vote or written assent of a majority of the voting power residing in members other than Declarant, levy special assessments to defray costs of any action or undertaking on behalf of the Association which, in the aggregate exceeds five (5%) percent of the budgeted gross expenses of the Association for that fiscal year. The provisions herein with respect to special assessments do not apply where the special assessment against a member is a remedy utilized by the Board to reimburse the Association for costs incurred in bringing the member and his subdivision interest into compliance with the provisions of this Declaration.
Section 4. Payment of Assessments by Declarant
On the first day of the month following the close of the first sales escrow, Declarant shall be obligated to pay the monthly maintenance charge and assessments hereinbefore provided for each unsold condominium.
Section 5. Date of Commencement of Assessments
Regular assessments shall be paid by each owner in equal monthly installments in advance, on the first day of each month, beginning on the first day of the month following conveyance of the first unit to an individual owner. Special and emergency assessments shall be paid within thirty (30) days of receipt of a request to pay same. Declarant shall pay assessments for all unsold condominiums, commencing on the first day of the month following the close of the first sales escrow.
Section 6. Maintenance Fund
Assessment charges so collected shall be promptly deposited in a commercial bank account in a bank to be selected by the Board or by the manager, if any, which shall be clearly designated in the name of the Association. The Board or the manager, as the case may be, shall have exclusive control of the account and shall be responsible to the owners for the maintenance of accurate records thereof at all times. No withdrawal shall be made from the account, except to pay for charges and expenses for the common benefit of all owners.
Any assessment provided for in this Declaration shall become delinquent if not paid on the due date as established by the Board. With respect to each assessment not paid within fifteen (15) days after its due date, the Board may, at its election, require the delinquent owner to pay a late charge of not less than Ten ($10.00) Dollars, or ten (10%) percent of the amount of the delinquent assessment, whichever is greater, together with interest at the maximum rate permitted by law on the delinquent sums, calculated from the date of delinquency to and including the date full payment is received by the Association.
(b) Notice of Lien
The Board may cause to be recorded in the Office of the County Recorder, a Notice of Claim of Lien ("Notice of Lien") securing the payment of any delinquent sums due the Association from any owner, as provided in Section 1356 of the Civil Code. Such Notice of Lien shall state the amount of the delinquent sums and other authorized charges and interests, including the cost of recording the notice, the expense of collection in connection with delinquent sums, reasonable attorneys' fees, a sufficient description of the condominium against which the same has been assessed, the name and address of the Association and the name of the unit owner thereof. Such Notice of Lien shall be signed by an authorized representative of the Association.Upon payment to the Association of the delinquent sums and charges in connection therewith, or other satisfaction therein, the Board shall cause to recorded a Notice of Satisfaction and Release of Lien ("Notice of Release") stating the satisfaction and release of the delinquent sums and charges. The Board may demand and receive the cost of recordation of the Notice of Release before recording the same.Any purchaser or encumbrancer who has acted in good faith and extended value may rely on the Notice of Release as conclusive evidence of the full satisfaction of the sums stated in the Notice of Lien. In the event of default by the unit owner in the payment of any assessments, the Board shall notify in writing the unit owner within thirty (30) days following the due date and all persons and firms holding a mortgage or deed of trust by any unit owner on any condominium in the project who have requested notice by delivering a written request to the Board in accordance with the provisions of this Declaration.
(c) Enforcement of Liens
All sums assessed in accordance with the provisions of this Declaration, shall constitute a lien on the respective condominium prior and superior to all other liens, except (1) all taxes, bonds, assessments and other levies which, by law, would be superior thereto; and (2) the lien or charge of any first mortgage of record (meaning any recorded mortgage or deed of trust with first priority or seniority over other mortgages or deed of trust) made in good faith and for value and recorded prior to the date on which the lien became effective. Notwithstanding the foregoing, any assessment lien provided for hereunder shall be prior and superior to any Declaration of Homestead recorded after the recordation of this Declaration. Said lien shall become effective upon recordation of the Notice of Lien in the manner provided in (b) above. Such lien shall relate only to the individual condominium against which the assessment was levied and not to the project as a whole. It shall be the duty of the Board to enforce the collection of any amounts due under this Declaration by one or more alternative means of relief afforded by this Declaration. Such lien, when delinquent, may be enforced by sale of the condominium by the Association, its attorney or other persons authorized to make the sale, after failure of the unit owner to pay an assessment as provided for herein. Such sale shall be conducted in accordance with provisions of the California Civil Code applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any manner permitted by law. An action may be brought to foreclose the lien of the Association by the Board or by any unit owner if the Board fails or refuses to act, after the expiration of thirty (30) days from the date on which the Notice of Lien was recorded, provided that at least ten (10) days have expired since a copy of the Notice of Lien was mailed to the unit owner affected therein. In any such foreclosure, the unit owner shall be required to pay a reasonable rental for the condominium and the plaintiff in the foreclosure action shall be entitled to the appointment of a receiver to collect the same. The Association, through its agent, shall have the power to bid on the condominium at foreclosure sale, and to acquire, hold, lease, mortgage and convey the same. Suit to recover a money judgment for unpaid common expenses shall be maintainable without foreclosing or waiving the lien securing the same, and this provision or any institution of suit to recover a money judgment shall not constitute an affirmation of the adequacy of money damages. Any recovery resulting from a suit in law or in equity, initiated pursuant to this section, may include reasonable attorney's fees as fixed by the court.
(d) Priority of Assessment Lien
Any lien created or claimed under the provisions of this Declaration, is expressly made subject and subordinate to the rights of the beneficiary of any first deed or trust or first mortgage on the entire project, or on any condominium therein, made in good faith and for value, and such lien shall, in no way, defeat, invalidate or impair the obligation or priority of such first deed of trust or first mortgage, unless the beneficiary thereof shall expressly subordinate his interest in writing to such lien. Each holder of a first mortgage lien on a condominium who comes into possession of the condominium by virtue of foreclosure of the mortgage or by deed or other arrangement in lieu of foreclosure, or any purchaser at a foreclosure sale, shall take the condominium free of any claim for unpaid assessments and charges against the condominium which accrue prior to the time such holder comes into possession of the condominium, except for claims resulting from a pro rata reallocation to such assessments or charges to all project units, including the mortgaged unit.
Section 8. Rights of Board - Waiver of Owners
Each owner hereby vests in and delegates to the Board or its duly authorized representatives, the right and power to bring all actions at law or lien foreclosures, whether judicially or by power of sale, against any owner(s) for the collection of delinquent assessments in accordance herewith, and hereby expressly waives any objection to the enforcement of the obligation to pay assessments as set forth herein.
Section 9. Rate of Assessment
Both regular and special assessments shall be fixed in the same proportionate share as the owners respective interests in the Common Area and may be collected on a monthly basis.
Section 10. Purpose of Assessments
The assessments levied by the Association shall be used exclusively for the purpose of promoting the health, recreation, safety and welfare of the members thereof, their guests and invitees and in particular, shall be used for the purpose of improving, protecting, operating and maintaining the Common Area and facilities, improvements, landscaping and structures located thereon and providing for the acquisition and maintenance of the Common Area and the condominiums, and otherwise providing for the performance by the Board of each and every one of the powers and duties of said Board.