Declaration of CovenantsDECLARATION OF COVENANTS
KNOWN ALL MEN BY THESE PRESENT:
Frank Strickland of Lakeside, Montana on behalf of himself and his partners in the partnership known
as GSEN, collectively referred to herein as Developer, hereby impose upon that tract of land owned by them and
more particularly described as Gateway Orchard Villa, a subdivision in Flathead County Montana and any re -
subdivisions or amendments thereof, the following covenants, conditions and restrictions, which shall insure
to the benefit of themselves and all future owners of the said tract or a portion thereof.
Therefore, Developers, do hereby place the following Covenants upon that property:
I. USE OF PREMISES
The premises shall be used primarily for multifamily residential purposes and the residences thereon
shall be constructed on the property and shall not be single family residences or mobile homes or the like.
The property shall be used for town houses.
Type and Style of Horne: The buildings erected on the premises shall contain town houses with each town
house or unit being a minimum of 1000 square feet and each building having a minimum of 3 units.
Expansion. Further these declaration may be applied to that land adjacent to or contiguous with the
property herein described in the Developers discretion.
II. RESTRICTION ON USE
1. The premises may not be used for any purpose other than residential. No portion of an unit (other
than the entire unit) may be rented, and no transient tenants may be accommodated therein.
2. Parking: a) The roads in this property are shown on the final plat of Gateway Orchard Villa.
The area's showing cut -de -sacs and along the roads within the development are closed to parking and no vehicle
shall be parked there upon. This provision shall not apply to the road now known as Glenwood Dr.
b) No trailer, camper or recreational vehicle shall be parked in view of the
public on the premises and if parked in the subdivision must be completely contained within a garage.
3. Fences: No fences or walls shall be erected, placed or altered on any lot until construction plans
and specifications and a plot plan showing the locations of the structure or structures have been approved by
the Board of Directors of the Homeowners Association. In no event shall fences exceed six (6) feet in height.
Further, no fences shall extend into front or side yards nor more than 10 feet into the back yard as measured
from the main walls of the building holding the unit to which the fence is appurtenant. The intent is to
discourage fences but allow dividing walls between patios.
4. Temporary Structures: No structure of a temporary character, or camp trailer, mobile or modular
home, tent, shack, garage, barn shall be permitted on any particular lot. No other outbuilding shall be used
on any lot at any time as a residence either temporary or permanently. Excluded from this provision for
temporary structures are tents placed on tots to give an outdoor camping effect for children. Also excluded
are any items allowed in other provisions provided the same are not used for residential purposes.
5. Garbage, Rubbish: No tot shall be used as a dumping ground for rubbish. Trash garbage, or other
waste materials shall not be kept upon any lot except in sanitary containers approved by the City of Kalispell.
Garbage shalt not be allowed to accumulate for more than a one week period. No garbage container shall be
allowed to stand in open view of the subdivision except on collection days as established by the City of
Kalispell. At all other times the garbage container is to remain in the units garage. This provision can be
changed without amendment should the City of Kalispell require a different disposal system.
6. Yard Lights and Fuel Tanks: Outside yard lights are not permitted upon any of the properties until
the type and location thereof has first been approved by the Board of Directors of the Homeowners Association,
and the owner has received written permission approving the same. Fuel tanks are prohibited. Containers of
flammable material shall not be kept on the premises unless the same complies with the ordinances, rules and
regulations of the County of Flathead, City of Kalispell and the State of Montana. Even if so complying, no
container of flammable material shall be allowed to remain open other than for its immediate use.
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7. Signs: No signs of any kind shalt be displayed to the public view on any lot except one sign of
not more than four square feet advertising the property for sale or rent. A sign not to exceed four square feet
may be used by a builder to advertise the property during the construction or sale.
8. Nuisance: No noxious or offensive activity or the discharging of firearms shall be carried out
or permitted upon any of the Lots, nor shall anything be done thereon which may be or may become an annoyance
to the neighborhood. Nor shalt the premises be used in annoyance to the neighborhood. Nor shall the premises
be used in any way or for any purpose which may endanger the health or safety of, or unreasonably disturb, the
residents of any lots. Outdoor barbecues are not considered nuisances under this section. Motorcycles, trail
bikes, snowmobiles or like vehicles shall be considered nuisances and are prohibited. It shall be further
considered a nuisance to have children under the age of 10 not under adult supervision and out in the common
areas or roadways of the subdivision.
9. Pets: The only pets allowed shall be birds and fish as retained in each unit and a house dog or
a cat per unit provided the dog or cat is kept primarily within the units confines and that the owner remains
liable for any and all damage caused to the property of others or common property by the dog or cat. Further
the owner is responsible for the immediate clean up of animal waste and must not allow the dog or cat off their
premises un Leashed.
10. Miscellaneous: There shall be no washing or repairing or overnight parking of vehicles in the
cuL-de-sac or streets at any time, nor shall there be burning of leaves or trash at the curb or on the pavement
of any street.
11. Use easements and cross easements. A. Road: The parties recognize that there are various roads
as shown on the present plat or amended plats now filed or latter to be filed, which cause an encroachment on
two adjoining lots. The affected lots are : 1,4,5,8,9,12,13,15,18,and 19. Each of these lots has placed upon
it and the adjacent lot that the plat or amended plat shows a roadway crossing both, cross easements appurtenant
to each affected tot and over the other for the use thereof.
B: Utility easements: Common utility services are provided to building lines and at time to separate
unit Lines. ALL property covered hereby is subject to an easement for such utility Lines and the maintenance
thereof. The right and easement to maintain said easements rests primarily with the Homeowner's Association
and inures to the benefit of the Association, which may assess maintenance costs pursuant to this Declaration
and the Bylaws. Should any units utility service tines, pipes, or wires pass over, under or through another
unit, both the Homeowners Association and the Unit whose service passes through another unit are by these
covenants granted a permanent right of use, access for maintenance and repair of said wires, Lines and pipes.
Should repair only beneficially affect one unit, that unit will bear the cost of repair or maintenance whether
conducted by the Association or the unit owner. Should repair or maintenance be of mutual benefit to more than
one unit, the cost of the repair shall be assessed to those units beneficially affected.
13. Alternations by Unit Owners. The interior plan of a unit may be changed by its owner with the
exception of the bearing wall which may not be moved and aLL two hour fire walls which may not be penetrated
or modified in any manner. No unit may be subdivided.
14. Maintenance by Unit Owner. An owner shalt maintain and keep in repair the interior of each unit
and its fixtures. ALL fixtures, utility Lines and equipment installed in the unit commencing at a point where
the utilities enter the unit shall be maintained and kept in repair by the owner thereof. An owner shall do
no act nor any work which will impair the structural soundness or integrity of the building or impair any
easement. An owner shall keep all areas appurtenant to his unit in a clean and sanitary condition. The right
of each owner to repair, alter and remodel is coupled with the obligation to replace any finishing or other
materials removed with similar types or kinds of materials. No acts of alteration, repairing or remodeling by
any unit owner shall impair in any way the structural integrity of the units of adjoining owners. Nothing
contained in this Declaration or the By-laws will be construed as to make the homeowner's association liable
or responsible for any interior repairs. These repairs are the responsibility of the owner subject to any
warranty from his/her builder.
15. Exterior Alterations. No owner may change, alter or remodel the exterior of his unit without the
prior written approval of the Association. Exterior siding is 49 year none maintenance siding.
16. Maintenance by Town House Association. The Association shall take all necessary steps, including,
but not Limited to, exterior painting, roof repairs, concrete, exterior brick and stone repairs, repairs to
common and fire walls, sidewalk maintenance, repair, snow removal and replacement or repair of all broken or
worn exterior parts, to insure that the building does not unnecessarily deteriorate. The Association reserves
the right to repair and charge back to the unit owner such interior repairs as are necessary to avoid adverse
affects on the other units or the building as a whole. The Association shall annually inspect the building and
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proceed with any necessary exterior maintenance or repairs. The Association is also responsible for landscaping
of front yards and the maintenance thereof.
17. Liens for Alterations. Labor performed and materials furnished and incorporated into a unit with
the consent of or at the request of the unit owner, his agent, his contractor or subcontractor shall be the
basis for the filing of alien against the unit or the unit owner consenting to or requesting the same. Each
unit owner shall indemnify and hold harmless each of the other owners from and against all liability arising
from the claim of any lien against the unit or building for construction performed or for labor, materials,
services or other products incorporated in the owner's unit at such owner's request.
18. TAXES ON COMMON AREAS: The taxes on the common areas shall be assesses against each unit in a proportion
with the number of units built being the denominator and one being the numerator.
III. DEFINITIONS
Unless the context expressly provides otherwise, the following definitions shall pertain throughout
this declaration and in its interpretation:
3.1 Aggregate Voting: Means the entire number of votes or persons present or available to
vote in person or by proxy in a particular circumstance.
3.2 Association or Association of Unit Owners: Means at[ of the Unit Owners acting as a group
and in accordance with duly adopted by-laws and this declaration.
3.3 Board or Board of Directors: Means the Board of Directors of the Association as more
particularly defined in the by-laws, which shall be recorded separately.
3.4 Building: Means the building containing the individual town houses to which the tots for
the town houses are contiguous.
3.5 By-laws: Means the by-laws and any amendments thereof promulgated by the Association
under this declaration and hereafter recorded.
3.6 Common Elements: Means those areas upon which the Association has primary responsibility
for care and maintenance or over which the unit owners have rights of access or use.
3.7 Common Expenses: Means the expenses of administration, maintenance, repair, or replacement
of the general common elements, expenses agreed upon by the Association of all unit owners, or made so by this
Declaration.
3.8 Declaration: Means this document and all parts attached hereto and incorporated by
reference.
3.9 Manager: Means the manager, board of directors, management corporation or any other
person or group of persons retained or appointed by the board, or by the Association of Unit Owners for the
purpose of conducting the day-to-day operation of the Gateway Orchard Villa Estates.
3.10 Property: Means all the land, buildings, improvements and structures thereon and all
easements, rights and appurtenances belonging thereto or which are annexed.
3.11 Unit: Unit shall mean the individual town house and the lot appurtenant thereto because
of the fitting of the re -subdivision plat for that phase of this development.
3.12 Unit Designation: Is the number which identifies each designated unit.
3.13 Unit Owner or Owner: Means the person or persons owning a unit in fee simple absolute,
individually or as a co-owner in any real estate tenancy relationship recognized under the laws of the State
of Montana.
IV. SET -BACK RESTRICTIONS
All structures erected on any premises covered herein shalt be erected so as to comply with the Plat
of Gateway Orchard Villa, and any amendments or re -subdivisions thereof.
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V. ASSOCIATION : ESTABLISHMENT, POWERS AND DUTIES
1. For the purposes of maintaining any park land, visible yards and common space, which is under the
control of the association, and shared by the owners, and for the purpose of providing for the collection and
payment of necessary common expenses, an Association is hereby formed under the name of GATEWAY ORCHARD VILLA
HOMEOWNERS ASSOCIATION.
2. Membership: As owner of a unit in Gateway Orchard Villa Estates shall automatically upon becoming
the owner of such unit be a member of the Gateway Orchard Villa Estates, hereinafter referred to as the
Association, and shall remain a member of such association until such time as his ownership ceases for any
reason, at which time his membership in the ASsociation shall automatically cease. The membership shall be
Limited to unit owners as defined in this declaration.
3 Voting: On all matters to be decided by the Association, unless excluded by this declaration, each
unit owner shall have one vote. A majority of the unit owners or a majority of unit votes represented by the
owner of the votes present at any meeting or by proxy shall be sufficient to act on matters brought before the
Association. Meetings of the Association shall only be conducted when a quorum, as defined in the by-laws,
is present.
Each unit or apartment in the described property shall have one (1) vote, but that vote shall be
proportionally distributed between all owners. As used herein, the owners of the property shall be the person
holding possession and title (including herein a purchaser under direct contract for deed), but shall not
include a mortgagee or a contract seller. Until 90% of the presently proposed units are built and sold,
developer shall have two votes for each unit be retained. The presently proposed units number 88.
4. Function: The Association shall have the following functions:
(a) To adopt by-laws for the governance of the Association.
(b) To make provisions for the general management of the development.
(c) To levy assessments as provided for in the declaration and by-laws. The Association shall have
the power to collect assessments and cause to be filed a notice of assessment at the office of the Clerk and
Recorder all as provided in the by-laws. Such notice of assessment shall constitute a lien on the property.
(d) To adopt and implement a policy for the affairs of the town houses.
(e) To enter into contracts to hire personnel for the management of the affairs of the Association
and the maintenance and repair of the properties under its control.
5. Failure to Comply: Each owner shall strictly comply with the provisions of this declaration, the
by-laws of the Association and the rules, regulations, decisions and resolutions of the Association adopted
pursuant there to as the same may be lawfully amended from time to time. Failure to comply with any of the same
shall be ground for an action to recover suns due, for damages or injunctive relief or both, and for
reimbursement of all costs, including attorneys fees incurred in connection therewith, which action shall be
maintained by the Association owner where there has been a failure of the Association to being such action
within a reasonable time.
6. Payment of Assessments when Due: All assessment shall be due 30 days from the date of mailing of
such assessment following the meeting at which time assessments are levied by the Association and may be payable
in installments monthly or quarterly, at the option of the Association, which may charge interest on deferred
payments. No owner may exempt himself from liability for this contribution toward the common expenses by waiver
of the use or enjoyment of the property or by abandonment of his unit. All assessments which are not paid
within thirty days from the date they are due and payable become delinquent and are subject to interest and
penalty charges. The Association or manager shall have the responsibility of taking prompt action to collect
any unpaid assessment which becomes delinquent. In the event of delinquency of the payment of the assessment,
the unit owner shall be obligated to pay interest at a rate to be determined by the Association on the amount
of the assessment from the due date thereof, together with such late charges as are provided in the by-laws of
the Association. Suit to recover a money judgment for unpaid common expenses and limited expenses may be
maintained without foreclosing or waiving the lien securing the same. The Board of Directors after an
assessment is unpaid for 30 days may cause to be filed a lien in the amount then due plus accruing interest.
A copy of the lien shall be sent to the owner at his last known address and to any mortgage holder who within
the six months before requested notice of lien.
7. Levying Assessments. The Association shall levy assessments upon the unit owners in the following
manner and for the following reasons:
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7.1 Assessments shalt be made as a part of the regular, annual business meeting of the Association
as provided in the by -taws of the Association, or assessments may be made for special purposes at any other
regular or special meeting thereof. ALL assessments shalt be fixed by resolution of the Association. Notice
of an intended assessment, whether regular or special, the amount thereof, and the purpose for which it is to
be made, including an annual budget for expenditures and operation for regular annual assessments, shalt be
served on each unit owner affected, by delivering a copy to the owner personally or by mailing a copy to the
owner at his address of any special meeting to levy the same.
7.2 Assessments shall be made for the repair, replacement, insurance (if acquired by the Association),
general maintenance, management and administration of the properties, fees, costs and expenses of the manager.
7.3 Assessments may also be made for the payment of expenses chargeable relating to each owner's
respective unit. If only one unit is associated with the expense, then the entire cost of such repair,
maintenance or replacement shalt be borne by that unit.
7.4 Assessments may also be made for any purpose contemplated by this declaration.
7.5 Common expenses and profits, if any, of the Gateway Orchard Villa Estates shalt be distributed
among and charged to the unit owners according to the percentage of units owned by them as contrasted with the
percentage built and occupied.
7.6 In a voluntary conveyance of a unit, the grantee of the unit shalt be jointly and severally liable
with the grantor for all unpaid assessments by the Association against the latter for his share of the common
expenses up to the time of the grant or conveyance, without prejudice of the grantee's right to recover from
the grantor the amounts paid by the grantee therefor. However, any such grantee shall be entitled to a
statement from the manager or Association, as the case be, setting forth the amount of such unpaid assessments
against the grantor due the Association, and such grantee shall not be liable for, nor shall the unit conveyed
be subject to a lien for, any unpaid assessments made by the Association against the grantor in excess of the
amount therein set forth.
7.7 At the time the Association holds its first meeting, a reserve account shall be set up to which
initial assessments shall then be deposited and which assessments shall be a sum that is equal to two times the
monthly assessment fee for that year multiplied by the number of units in the condominium. Such amount shall
be divided equally among all unit owners, and if the declarant still holds title to one or more units, he shall
pay the amount assessed against each unit so owned.
8. Insurance. Each unit owner shalt insure his premises at value and further shalt have liability
coverage in the amount of not less than $100,000 per occurrence. In addition, each owner will carry medical
payment insurance as part of their homeowners insurance in an amount of not less than $5,000 per occurrence.
Proof of insurance shall be deliver to the Secretary for the association each year. All insurance policies upon
the property shalt prohibit subrogation against the Association and or other unit owners.
8.1 Reconstruction or Repair: ALL units are to be repaired or replaced if there is
insured destruction or damage unless the Association through its board of directors waives such
replacement. This clause protects the values of all units in the building and is to inure
to the common benefit. Should a unit owner fail to abide by this provision, the Association
may cause repair or rebuilding and charge the same to the unit owner.
8.1.2. Plans and Specifications: Any reconstruction or repair must be substantially in
accordance with the plans and
specifications for the original
improvements, or if no, then
according to plans and specifications
approved by not less than 75% of the
unit owners, including the owners
of all units the plans for which are
to be altered. Any such
reconstruction not in accordance wit
the original plans and specifications
must be set forth in an amendment
to the declaration.
VI. ENFORCEMENT
1. General Statement. These Covenants may be enforced by an action to enjoin, abate or to collect in
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any Court of law. It is understood that any violation of the Covenants is to be deemed a nuisance and subject
to abatement subject to equitable arguments. Any person taking subject to these Covenants hereby recognizes
the same and by accepting and recording a deed hereof accepts to be governed by the same.
2. Liens and Foreclosure. All sums assessed but unpaid for the share expenses chargeable to any
unit shall constitute a lien on such unit superior to all other liens and encumbrances, except only for tax and
special assessment liens on the unit in favor of any assessing authority, and all sums unpaid on a first
mortgage or a first trust indenture of record, including all unpaid sums as may be provided by such encumbrance.
To evidence such lien, the Association shall prepare a written notice of lien assessment setting forth the
amount of such unpaid indebtedness, the amount of accrued interest and late charges thereon, the name of the
owner of the condominium unit and a description of the condominium unit. such notice shall be signed and
verified by one of the officers of the Association or by the manager, if any, or their authorized agent, and
shall be recorded in the office of the Clerk and Recorder of Flathead County, Montana. Such lien shall attach
on the date of recording of such notice. Such lien may be enforced by the foreclosure of the defaulting owner's
town house unit by the Association as provided for by the foreclosure proceedings on real property upon the
recording of a notice of claim thereof. In any such foreclosure the unit owner shall be required to pay a
reasonable rental for the unit and the plaintiff in such foreclosure action shall be entitled to the appointment
of a receiver to collect the same. Suit to recover a money judgment for unpaid common expenses shall be
maintainable without foreclosure or waiving the lien securing the same. In any such proceeding the owner may
be required to pay the costs, expenses, and attorney's fees incurred in filing the lien, and in the event of
foreclosure proceedings, additional costs, expenses and attorney's fees incurred.
3. Bidding at Foreclosure. The Association on behalf of the other unit owners shall have the power,
but need not, to bid on the town house unit at a foreclosure or other legal sale and to acquire and hold, lease,
mortgage and vote the votes appurtenant thereto, convey or otherwise deal with the same. Any lienhotder holding
a lien on a town house unit may pay, but shall not be required to pay, any unpaid general common expenses, or
Limited common expenses payable with respect to such unit and upon such payment such lienhotder shalt have a
Lien on said unit for the amounts paid of the same rank sa the lien of his encumbrance without the necessity
of having to file a notice or claim of such lien.
4. Unpaid Assessments, Mortgagees. When a lienhotder of other purchaser of a unit obtains title to
the unit as a result of foreclosure of the first mortgage or trust indenture, such acquirer of title, his
successors and assigns, shall not be liable for the share of common expenses or assessment by the Association
chargeable to such unit which became due prior to the acquisition of title to such unit by such acquirer. Such
unpaid share of common expenses or assessments shall be deemed to be common expense collectible from all of the
unit owners including such acquirer, his successors and assigns.
These Covenants inure to benefit all owners of units which are on tracts described above, either in
existence now or as later divided and, may be enforced by any one of them or, by the Association as above
created. The Association so acting may act in its own name but in doing so is acting for the owners of all the
property except for the owner which is seeking relief.
In any action maintained under these Covenants, the Court shall have authority and shall award
reasonable attorneys fees to the availing party.
VIII. OWNERSHIP
1. Exclusive Ownership. Each owner or owners shall be entitled to exclusive ownership and possession
of their unit. But it is understood that the maintenance of the building exterior and the landscaping and
maintenance of the front lawns is vested in the Association which shall by this declaration be granted and is
granted and easement for such maintenance.
2. Removal Partition and Subdivision. Any unit or portion of Gateway Orchard Villa may only be
removed from these conditions, restrictions and covenants or partitioned or sold upon compliance with each of
the following conditions:
(a) The Association must approve the plans of removal, partition or sale, including the details of
how any partition or sale and the distribution of property or funds shall be accomplished.
(b) No unit may be divided or subdivided into a smaller unit, nor any portion there of sold or
otherwise transferred, except as provided herein. It is understood that the Plat of Gateway Orchard Villa will
be amended to accomplish the 19 phases of this development and this paragraph refers to divisions after these
plats are filed.
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(c) This section shalt not apply to the sale of, individual and shall not be considered as aright of
first refusal.
(d) No unit owner shalt execute any deed, mortgage, or other instrument conveying or mortgaging title
to his unit without including therein the appurtenant interest, it being the intention hereof to prevent any
severance of such combined ownership. Any such deed, mortgage, or other instrument purporting to affect one
or more of such interest, without including all such interest, shall be deemed and taken to include the interest
or interests so omitted, even though the tatter shall not be expressly mentioned or described therein. No part
of the appurtenant interest of any unit may be sold, transferred, or otherwise disposed of, except as part of
a sale, transfer or other disposition of the unit to which such interests are appurtenant, or as part of a
sale,transfer, or their disposition of such part of the appurtenant interest of all units. No unit may be
partitioned or subdivided.
IX. AMENDMENTS
At any regular or special meeting of the Association an amendment of this declaration may be proposed by a
resolution by any unit owner. Upon adoption of the resolution by a majority vote of those present the amendment
shall be made a subject for consideration at the next succeeding meeting of the Association with notice thereof,
together with a copy of the amendment to be furnished to each owner no later than thirty days in advance of
such meeting. At such meeting, the amendment shall approved upon receiving the favorable votes of 75% of the
unit owners. If so approved, it shall be the responsibility of the Association to file the amendment with the
Clerk and Recorder's Office in Flathead County, Montana. To record such amendment, the President and Secretary
of the Association shall certify on the face of the amendment the vote. The Association will maintain for four
years records of the unit owners votes. The signature of no other party is necessary on the amendment.
DATED this '2 3 day of 1993�i '
Frank Strickla , individually
and as a partner in and for
GSEN, a partnership
STATE OF MONTANA )
SS.
County of Flathead )
On the day of _ 1993, before me, the undersigned, Notary Public for the State of Montana,
personally appeared Frank Strickland, known to me to be a partner in GSEN and appeared individually and
acknowledged to me that he executed the same both individually and as a partner in GSEN.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seat the day and year in this
certificate first above written.
�'22-
Notary Pu4eic for the St of Montana
Residing at Kalispell, Montana
My Commission Expires: z--c' �s
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