On the following pages, the Master Deed has been
re-typed in a format that can be posted on our Website. This is not an original
and Little River Resort will not be responsible for any errors or omissions. The
original document can be obtained by visiting the Horry County Register of Deeds,
LITTLE RIVER INN
HORIZONTAL PROPERTY REGIME
TABLE OF CONTENTS
TO MASTER DEED OF
LITTLE RIVER INN
Horizontal Property Regime
LITTLE RIVER GOLF AND HEALTH RESORT JOINT VENTURE,
having its principal office at 200 Broad Street, Gainesville, Georgia, 30501, hereinafter referred to as the GRANTOR:
(1) The Grantor proposes to create and does hereby create, with respect to the property described below, the Regime to be governed by and to be subject to the provisions of this Master Deed and of the Horizontal Property of the State of South Carolina (the Act’);
(2) The Grantor hereby submits the property described below to the Regime; and
(3) The Regime and all property and/or interests in property contained therein, shall be owned, occupied, used, conveyed, encumbered, leased, improved, maintained and governed in accordance with the provisions of the Horizontal Property Act and in accordance with the covenants, restrictions, encumbrances, and obligations set forth or incorporated by reference in this Master Deed, all of which shall be deemed to be covenants, restrictions, encumbrances and obligations running with the land.
In conformity with the Sections of the Horizontal Property Act set forth above, the Grantor sets forth the following particulars with respect to the Regime:
The Property being submitted hereby consists of the following described property:
All that certain piece, parcel or lot, of land being shown and designated on that certain Plat of Sur-Tech, Inc. dated July, 11 1985 and recorded in P1at Book 86, Page 76, Horry County records (the “Plat”).
This being a portion of the Property deeded
by Hazel W.Butler to the Grantor in Deed Book 850 at Page 474, Horry County Records.
The Grantor hereby specifically reserves the right, but not the obligation, to add additional condominiums owned by it to this Master Deed pursuant to Section: 27-31-100(g) of the Act provided that any such additions are added in accordance with the conditions set forth in Exhibit B hereto which is made a part hereof. The property upon which additional condominium units will be built is shown as “Additional Property” on that certain map of Little River Inn property attached hereto as Exhibit E and made a part hereof.
The Grantor also hereby grants and conveys a perpetual, non-exclusive easement to all owners of property in the sixteen condominium units created hereby of ingress and egress for water, sewer, cable, electricity and telephone lines and services on and across that property designated Parcel E on that certain map attached hereto as Exhibit E and incorporated here by reference.
SURVEY AND DESCRIPTION OF IMPROVEMENTS
Annexed hereto and expressly made a part hereof, as Exhibit A, is a plot plan showing the location of the buildings and other improvements and architect’s drawings, a set of floor plans of the buildings which show graphically the dimensions, area and location of each dwelling therein and the area, designation number and location of COMMON ELEMENTS affording access to each APARTMENT.
APARTMENTS AND GENERAL LIMITED COMMON ELEMENTS
The Regime consists of APARTMENTS, General COMMON ELEMENTS and Limited COMMON ELEMENTS, as said terms are hereinafter defined.
APARTMENTS, as the term is used herein, shall mean and comprise the sixteen (16) separate and numbered APARTMENTS which are shown and designated in Exhibit D to this Master Deed, including, but not limited to the space, partition walls, fixtures and appliances therein, excluding, however, all spaces and improvements lying beneath the undecorated and/or unfinished inner surfaces of the perimeter walls and floors, and above the undecorated and/or unfinished inner surfaces of the ceiling’s of each Apartment and further excluding all spaces and improvements lying beneath the undecorated and/or unfinished inner surface of any interior loadbearing columns, and further excluding all pipes, ducts, wires, conduits and other facilities running
through any interior wall or partition for the furnishing of utility services to APARTMENTS and General COMMON ELEMENTS. The general description and number of each APARTMENT appears in Exhibit A. Each APARTMENT has a direct access, through one or more of the General COMMON ELEMENTS and Limited COMMON ELEMENTS as shown on the plans described herein, to a public street or highway.
If applicable, General COMMON ELEMENTS means and includes:
The Real Property (excluding the Limited Common Elements and the Apartments), including but not limited to the
land on which the buildings containing the Apartments are constructed;
The foundations, main walls, roofs, halls, lobbies, stairways, and entrance and exit r communication ways;
The basements, roofs, yards and gardens, except as otherwise provided or stipulated;
The premises for the lodging of janitors or persons in charge of the property, except as otherwise provided
The compartments or installations of central services such as power, light, gas, cold and hot water, refrigeration,
reservoirs, water tanks and pumps, and the like;
In general, all devices and installations existing for common use, including water and sewer pipes and utility
lines whether or not such lines or pipes actually run through an apartment.
All other elements of the property rationally of common use or necessary to its existence, upkeep and safety,
including but not necessarily limited to the following:
additional improvements designated as General Common Elements herein or on any Exhibit attached hereto;
b. All supporting facilities, all parking areas, roads, walkways, paths, trees, shrubs, yards, gardens, bodies of water, bridges, gazebos, and Regime entrance signs and lighting on the Real Property (outside of the Apartments).
Where applicable, Limited Common Elements means and includes:
The patio and/or deck areas abutting each apartment; and
(2) Any additional improvements designated as Limited Common Elements herein or in any Exhibit attached hereto.
The General Common Elements and the Limited Common Elements are hereinafter occasionally collectively referred to as “the Common Elements”.
OWNERSHIP OF APARTMENTS AND APPURTENANT
INTEREST IN COMMON ELEMENTS
Each APARTMENT shall be conveyed and treated as an individual property capable of independent use and fee-simple ownership, and the co-owner or co-owners of each APARTMENT shall own, as an appurtenance to the ownership of each said APARTMENT an undivided interest in all COMMON ELEMENTS, the undivided interest appurtenant to each said APARTMENT being that which is hereinafter specifically assigned thereto. The percentage of undivided interest in all COMMON ELEMENTS assigned to each APARTMENT shall not be changed except with the unanimous consent of all of the co-owners of all of the APARTMENTS.
Each such individually owned APARTMENT may be conveyed and encumbered and may be the subject of ownership, possession or sale and of all juridic acts inter vivos or mortis causa, the same as if each APARTMENT was separate and independent of the other APARTMENTS in the Regime of which it forms a part. All individual titles and interests corresponding to each APARTMENT shall be recordable.
The basic value, (identified as the “Value for Statutory Purposes” on Exhibjt B) which shall be fixed for the sole purpose of this Master Deed and irrespectively of the actual value, shall not prevent each co-owner from fixing a different circumstantial value to his Apartment in all types of acts and contracts.
RESTRICTION AGAINST FURTHER SUBDIVIDING OF
APARTMENTS AND SEPARATE CONVEYANCE OF
APPURTENENT COMMON ELEMENTS ETC.
No APARTMENT may be divided or subdivided into a smaller Apartment Unit or smaller Apartment Units than as shown on Exhibit
A attached hereto, nor shall any APARTMENT, or portion thereof, be added to or incorporated into any other APARTMENT. The undivided interest in the COMMON ELEMENTS declared to be an appurtenance to each APARTMENT shall not be conveyed, devised, encumbered or otherwise dealt with separately from said APARTMENT, and the undivided interest in COMMON ELEMENTS appurtenant to each APARTMENT shall be deemed conveyed, devised, encumbered or otherwise included with the APARTMENT even though such undivided interest is not expressly mentioned or described in the instrument conveying, devising, encumbering, or otherwise dealing with such APARTMENT. Any conveyance, mortgage, or other instrument which purports to affect the conveyance, devise or encumbrance, or which purports to grant any right, interest or lien in, to, or upon, an APARTMENT shall be null, void and of no effect insofar as the same purports to affect any interest in an APARTMENT and its appurtenant undivided interest in COMMON ELEMENTS, unless the same purports to convey, devise, encumber or otherwise trade or deal with the entire APARTMENT. Any instrument conveying, devising, encumbering or otherwise dealing with any APARTMENT which describes said APARTMENT by the APARTMENT Unit Number assigned thereto in Exhibit A without limitation or exception, shall be deemed and construed to affect the entire APARTMENT and its appurtenant undivided interest in the COMMON ELEMENTS. Nothing herein contained shall be construed as limiting or preventing ownership of any APARTMENT and its appurtenant undivided interest in the COMMON ELEMENTS by more than one person or entity as tenants in common, joint tenants, or as tenants by the entirety.
HORIZONTAL PROPERTY REGIME SUBJECT TO RESTRICTIONS, ETC.
The APARTMENTS and COMMON ELEMENTS shall be, and the same are hereby, declared to be subject to the restrictions, easements, conditions and covenants prescribed and established herein, governing the use of said APARTMENTS and COMMON ELEMENTS, and setting forth the obligations and responsibilities incident to ownership of each APARTMENT and its appurtenant undivided interest in the COMMON ELEMENTS, and said APARTMENTS and COMMON ELEMENTS are further declared to be subject to the restrictions, easements, conditions, and limitations now of record affecting the land and improvements of the Regime.
PERPETUAL NON-EXCLUSIVE EASEMENT
IN GENERAL COMMON ELEMENTS
The GENERAL COMMON ELEMENTS shall be, and the same are hereby declared to be subject to a perpetual non-exclusive easement in favor of all of the co-owners of APARTMENTS in the
Regime for their use and the use of their immediate families, guests, and invitees, or all proper and normal purposes, and for the furnishing of services and facilities for which the same are reasonably intended, for the enjoyment of said co-owners of APARTMENTS. Notwithstanding anything above provided in this Article, Little River Inn Homeowners Association, Inc., hereinafter identified, shall have the right to establish the rules and regulations pursuant to which the co-owner or co-owners of any APARTMENTS may be entitled to the exclusive use of any parking space or spaces.
PERPETUAL EXCLUSIVE EASEMENT
IN LIMITED COMMON ELEMENTS
A Co-owner shall have the exclusive right to use the LIMITED COMMON ELEMENTS allocated to his APARTMENT for his use, the use of his immediate family, guests, and invitees, for all proper and normal purposes. Such right of use shall be a perpetual exclusive easement in favor of each Co-owner.
EASEMENT FOR UNINTENTIONAL AND NON-NEGLIGENT ENCROACHMENTS
If any portion of any of the COMMON ELEMENTS now encroaches upon any condominium APARTMENT or if any condominium APARTMENT now encroaches upon any other condominium APARTMENT or upon any portion of the COMMON ELEMENTS as a result of the construction or repair of any building or if any such encroachment shall occur hereafter as a result of settlement or shifting of any building or otherwise, a valid easement for the encroachment and for the maintenance of the same, so long as the building stands, shall exist. In the event any building, any condominium APARTMENT any adjoining condominium APARTMENT or any adjoining COMMON ELEMENT shall be partially or totally destroyed as the result of fire or other casualty or as the result of condemnation or eminent domain proceedings and the reconstructed encroachments of parts of the COMMON ELEMENTS upon any condominium APARTMENT or over any condominium APARTMENT upon any other condominium APARTMENT or upon any portion of the COMMON ELEMENTS due to such reconstruction shall be permitted and valid easements for such encroachments and maintenance thereof shall exist so long as the building shall stand.
RESTRAINT UPON SEPARATION AND PARTITION
OF COMMON ELEMENTS
Recognizing that the proper use of an APARTMENT by any co-owner or co-owners is dependent upon the use and enjoyment of the COMMON ELEMENTS in common with the co-owners of all other APARTMENTS and that it is in the interest of all co-owners of APARTMENTS that the co-ownership of the COMMON ELEMENTS be retained in common by the co-owners of APARTMENTS in the Regime, it is declared that the percentage of the undivided interest in the COMMON ELEMENTS appurtenant to each APARTMENT shall remain undivided and no co-owner of any APARTMENT shall bring or have any right to bring any action for partition or division.
All the co-owners or the sole owner of the Regime may waive the Regime and regroup or merge the records of the individual apartments with the Real Property, provided that the individual Apartments are unencumbered, or if encumbered, that the creditors in whose behalf the encumbrances are recorded agree to accept as security the undivided portions of the property owned by the debtors.
Subject to the other provisions of this Article X unless all of the first mortgagees and all of the owners of the Apartments have given their prior written approval, the Association shall not be entitled to:
(a) by act or omission, seek to abandon or terminate the Regime;
(b) change the pro rata interest or obligations of any Apartment for the purposes of ( i ) levying assessments or charges or allocating distributions of hazard insurance proceeds or condemnation awards, or (ii) determining the pro rata share of ownership of each Apartment in the Common Elements;
(c) partition or subdivide any Apartment;
by act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer the Common Elements. The
granting of easements for public utilities or for other public purposes consistent with the intended use of the Common Elements
by the Regime shall not be deemed a transfer within the meaning of this subparagraph (d).
PERCENTAGE OF UNDIVIDED INTEREST IN
COMMON ELEMENTS APPURTENANT TO EACH APARTMENT
The undivided interest in GENERAL COMMON ELEMENTS and LIMITED COMMON ELEMENTS appurtenant to each APARTMENT at each stage of development is that percentage of undivided interest which is Set forth and assigned to each APARTMENT in that certain Schedule which is annexed hereto and expressly made a part hereof as Exhibit B.
EASEMENT FOR AIR SPACE
The co-owner of each APARTMENT shall have an exclusive easement for the use of the air space occupied by said APARTMENT as it exists at any particular time and as Said APARTMENT may lawfully be altered or reconstructed from time to time.
ADMINISTRATION OF LITTLE RIVER INN, A HORIZONTAL PROPERTY REGIME
BY LITTLE RIVER INN
HOMEOWNERS ASSOCIATION, INC.
To efficiently and effectively provide for the administration of the Regime by the co-owners of APARTMENTS, a non-profit South Carolina corporation, known and designated as Little River Inn Homeowners Association, Inc. has been organized, and said corporation shall administer the operation and management of the Regime and undertake and perform all acts and duties incident thereto in accordance with the terms, provisions and conditions of this Master Deed, and in accordance with the terms of the Articles of Incorporation of Little River Inn Homeowners Association, Inc., hereinafter referred to as the ASSOCIATION, and By-Laws of said corporation. A true copy of the Articles of Incorporation and By-Laws of said ASSOCIATION are annexed hereto and expressly made a part hereof as Exhibits C and D respectively. The co-owner or co-owners of each APARTMENT shall automatically become members of the ASSOCIATION upon his, their or its acquisition of an ownership interest in title to any APARTMENT and its appurtenant undivided interest in COMMON ELEMENTS, and the membership of such co-owner or co-owners shall terminate automatically upon each co-owner or co-owners being divested of such ownership interest in the title to such APARMENT regardless of the means by which such ownership may be divested. No person, firm or corporation holding any lien, mortgage or other encumbrance upon any APARTMENT shall be entitled, by virtue of such lien, mortgage, or other
encumbrance, to membership in the ASSOCIATION, or to any of the rights of privileges of such membership. In the administration of the operation and management of the Regime, said ASSOCIATION shall have and is hereby granted the authority and power to enforce the provisions of this Master Deed, levy and collect assessments in the manner hereinafter provided, and to adopt, promulgate and enforce such rules and regulations governing the use of the APARTMENTS and COMMON ELEMENTS, as the Board of Directors of the ASSOCIATION may deem to be in the best interest of the Regime.
RESIDENTIAL USE RESTRICTION. APPLICABLE
Each APARTMENT is hereby
restricted to residential use by the co-owner or co-owners thereof, their immediate families, guests, and invitees; provided,
however, that so long as Grantor shall retain any interest in the Regime, it may utilize an APARTMENT or APARTMENTS of its
choice from time to time, for a sales office, model, or other usage for the purpose of selling APARTMENTS in said Regime.
Further still, Grantor may assign this commercial usage right to such other persons or entities as it may choose; provided,
however, that when all APARTMENTS have been conveyed, this right of commercial usage shall immediately cease. All draperies
or other window coverings on a window facing the exterior of any Apartment and visible from any Common Element or public or
private Street or area shall be lined with a white lining with the white lining, exposed to the exterior of the Apartment.
No towels, sheets or blankets may be draped across any exterior balcony, patio, deck or porch railing. No “For
USE OF GENERAL COMMON ELEMENTS SUBJECT TO
RULES OF ASSOCIATION
The use of GENERAL COMMON ELEMENTS by the co-owner or co- owners of all APARTMENTS, and all other parties authorized to use the same, shall be at all times subject to such reasonable rules and regulations as may be prescribed and established governing such use, or which may hereafter be prescribed and established by the ASSOCIATION.
HORIZONTAL PROPERTY REGIME TO BE USED FOR LAWFUL
PURPOSES, RESTRICTION AGAINST NUISANCES, ETC.
No immoral, improper, offensive or unlawful use shall be made of any APARTMENT or of the COMMON ELEMENTS, nor any part thereof, and all laws, zoning ordinances and regulations of all governmental authorities having jurisdiction of the REGIME shall be observed. No co-owner of any APARTMENT shall permit or suffer anything to be done or kept in this APARTMENT, or on the COMMON ELEMENTS, which will increase the rate of insurance on the REGIME, or which will obstruct or interfere with the rights of other occupants of the building or annoy them by unreasonable noises, nor shall any such owner undertake any use or practice which shall create and constitute a nuisance to any other co-owner of an APARTMENT, or which interferes with the peaceful possession and proper use of any other APARTMENT or the COMMON ELEMENTS.
RIGHT OF ENTRY INTO APARTMENTS
In case of any emergency originating in or threatening any APARTMENT, regardless of whether the co-owner is present at the time of such emergency, the Board of Directors of Association or any other person authorized by it, or the building Superintendent or Managing Agent, shall have the right to enter such APARTMENT for the purpose of remedying or abating the cause of such emergency, and such right of entry shall be immediate, and to facilitate entry in the event of any such emergency, the co-owner of each APARTMENT, if required by the ASSOCIATION, shall deposit under the control of the ASSOCIATION a key to such APARTMENT.
RIGHT OF ENTRY FOR MAINTENANCE
OF COMMON ELEMENTS
Whenever it is necessary to enter any APARTMENT for the purpose of performing any maintenance, alteration or repair to any portion of the COMMON ELEMENTS, the co-owner of each APARTMENT shall permit other co—owners or their representatives, or the duly constituted and authorized Agent of the ASSOCIATION, to enter such APARTMENT, provided that such entry shall be made only at reasonable times and with reasonable advance notice.
LIMITATION UPON RIGHT OF CO-OWNERS
TO ALTER AND MODIFY APARTMENTS
No co-owner of a APARTMENT shall make any structural modification or alterations therein without first obtaining the written consent of the ASSOCIATION, which consent may be withheld in the event that a majority of the Board of Directors of said ASSOCIATION determine, in their sole, discretion, that such structural modifications or alterations would affect or in any manner endanger the Building in part or in its entirety. If the modification or alteration desired by the co-owner of any APARTMENT involves the removal of any permanent interior partition, the ASSOCIATION shall have the. right to permit such removal so long as the permanent interior partition to be removed is not a load-bearing partition, and so long as the removal thereof would in no manner affect or interfere with the provision of utility services constituting any COMMON ELEMENTS located therein. No co-owner shall cause the balcony or patio abutting his APARTMENT to be enclosed, or cause any improvements or changes to be made on the exterior of the Building, including painting or other decoration, or the installation of electrical wiring, television antennae, machines or air conditioning units, which may protrude through the walls or roof of the Building, or in any manner change the appearance of any portion of the building, nor shall storm panels or awnings be affixed, without the written consent of the ASSOCIATION being first obtained.
RIGHT OF ASSOCIATION TO ALTER AND
IMPROVE COMMON ELEMENTS AND ASSESSMENT THEREFOR
The ASSOCIATION shall have the right to make or cause to be made such alterations, modifications and improvements to the COMMON ELEMENTS, provided such alterations, modifications or improvements are first approved in writing by the Board of Directors of the Association and also by the co-owners of sixty (60%) percent or more of the Common Elements of the entire Regime; and the cost of such alterations, modifications or improvements shall be assessed as common expenses and collected from the co-owners of all Apartments according to their percentage of ownership of the Common Elements.
MAINTENANCE AND REPAIR BY CO-OWNERS
Every co-owner must perform promptly all maintenance and repair work within his APARTMENT which, if omitted, would affect
the REGIME in its entirety or in a part belonging to other co- owners being expressly responsible for the damages and liability which his failure to do so may engender. The co-owner of each APARTMENT shall be liable and responsible for the maintenance, repair and replacement, as the case may be, of all air conditioning and heating equipment, stoves, refrigerators, fans, or other appliances or equipment, including any fixtures and/or their connections required to provide water, light, power, telephone, sewage and sanitary service to his APARTMENT and which may now or hereafter be situated in his APARTMENT. Such co-owner shall further be responsible and liable for maintenance, repair and replacement of any and all window glass, doors, wall, ceiling and floor exterior surfaces, painting, decorating and furnishings, and all other accessories which such co-owner may desire to place or maintain in his APARTMENT. Wherever the maintenance, repair and replacement of any items for which the co-owner of an APARTMENT is obligated to maintain, repair or replace at his own expense is occasioned by any loss or damage which may be covered by any insurance maintained in force by the ASSOCIATION, the proceeds of the insurance received by the ASSOCIATION, or the Insurance Trustee hereinafter designated, shall be used for the purpose of making such maintenance, repair or replacement, except that the co-owner of such APARTMENT shall be, in said instance, required to pay such portion of the costs of such maintenance, repair and replacement as shall, by reason of the applicability of any deductibility provision of such insurance, exceed the amount of the insurance proceeds applicable to such maintenance, repair or replacement. Any balcony floor, any walls facing the balcony, and any balcony railings attached to an APARTMENT shall be maintained by the co-owner at his expense, except as may be covered by insurance. Provided, however, said co-owner shall take no action that will alter the exterior appearance of the building. Should the co- owner fail to provide the maintenance and/or repairs as required, the ASSOCIATION shall have the right to enter the APARTMENT to accomplish same at the sole cost and expense of the co-owner and said cost and expense shall be charged against the co-owner and shall become a lien on his APARTMENT in like manner as a monthly assessment. Reference is made to § 27-31-250, Code of Laws of South Carolina, (1976), which Code Section is controlling as to insurance proceeds when said Code Section is applicable by its terms.
MAINTENANCE AND REPAIR OF GENERAL AND LIMITED COMMON ELEMENTS BY THE ASSOCIATION
The ASSOCIATION at its expense, shall be responsible for the maintenance, repair and replacement of all of the COMMON ELEMENTS, including those portions thereof which contribute to the support of the building, and all conduits, ducts, plumbing,
wiring and other facilities located in the COMMON ELEMENTS for the furnishing of utility services to. the APARTMENTS and said COMMON ELEMENTS, and should any incidental damage be caused to any APARTMENT by virtue of any work which may be done or caused to be done by the ASSOCIATION in the maintenance, repair, or replacement of any COMMON ELEMENTS, the said ASSOCIATION shall, at its expense, repair such incidental damage.
PERSONAL LIABILITY AND RISK OF LOSS
OF CO-OWNER OF APARTMENT AND SEPARATE
INSURANCE COVERAGE, ETC.
The co-owner of each APARTMENT may, at his own expense, obtain insurance coverage for loss of or damage to any furniture, furnishings, personal effects and other personal property belonging to such co-owner and may, at his own expense and option, obtain insurance coverage against personal liability for injury to the person or property of another while within such owner’s APARTMENT or upon the COMMON ELEMENTS. All such insurance obtained by the co-owner of each APARTMENT shall, wherever such provision shall be available, provide that the insurer waives its right of subrogation as to any claims against other co-owners of APARTMENTS, the ASSOCIATION, and the respective servants, agents and guests of said other co-owners and the ASSOCIATION, and such other insurance coverage should be obtained from the insurance company from which the ASSOCIATION obtains coverage against the same risk, liability or peril, if said ASSOCIATION has such coverage. Risk of loss of or damage to any furniture, furnishings, personal effects and other personal property (other than such furniture, furnishings and personal property constituting a portion of the COMMON ELEMENTS) belonging, or carried on the person of the co-owner of each APARTMENT, or which may be stored in any APARTMENT, or in, to or upon COMMON ELEMENTS shall be borne by the co-owner of each such APARTMENT. All furniture, furnishings and personal property constituting a portion of the COMMON ELEMENTS and held for the joint use and benefit of all co-owners of all APARTMENTS shall be covered by such insurance as shall be maintained in force and effect by the ASSOCIATION as hereinafter provided. The co-owner of an APARTMENT shall have no personal liability for any damages caused by the ASSOCIATION or in connection with the use of the COMMON ELEMENTS. The co-owner of an APARTMENT shall be liable for injuries or damage resulting from an accident in his own APARTMENT, to the same extent and degree that the co-owner of a house would be liable for an accident occurring within the house.
INSURANCE COVERAGE TO BE MAINTAINED BY ASSOCIATION;
INSURANCE TRUSTEE, APPOINTMENT. AND DUTIES;
USE AND DISTRIBUTION OF INSURANCE PROCEEDS, ETC.
The following insurance coverage shall be maintained in full force and effect by the ASSOCIATION covering the operation and management of the REGIME and the said REGIME meaning the APARTMENTS and COMMON ELEMENTS, to-wit:
(a) Casualty insurance covering all of the APARTMENTS, and COMMON ELEMENTS, in an amount equal to the maximum insurance replacement value thereof, exclusive of excavation and foundation costs, as determined annually by the insurance carrier, such coverage to afford protection against (i) loss or damage by fire or other hazards covered by the standard extended coverage or other perils endorsements; and (ii) such other risks of a similar or dissimilar nature as are or shall be customarily covered with respect to buildings similar in construction, location, and use of the REGIME, including but not limited, to vandalism, malicious mischief, windstorm, water damage and war risk insurance, if available.
(b) Public liability and property damage insurance in such amounts and in such form as shall be required by the ASSOCIRON to protect said ASSOCIATION and the co-owners of all APARTMENTS, including but not limited to, water damage, legal liability, hired automobile, non-owned automobile and of off premises employee coverage.
(c) Workmen’s Compensation insurance to meet the requirements of law.
(d) Such other insurance coverage, other than title insurance, as the Board of Directors of the ASSOCIATION, in its sole, discretion may determine from time to time to be in the best interests of the ASSOCIATION and the co—owners of all of the APARTMENTS or as an institutional type lender may reasonably require so long as it is the owner of a mortgage on any APARTMENT.
All liability insurance maintained by the ASSOCIATION shall contain cross liability endorsements to cover liability of all co-owners of APARTMENTS as a group to each APARTMENT co-owner.
All insurance coverage authorized to be purchased shall be purchased by the ASSOCIATION for itself and for the benefit of all of the co-owners of all APARTMENTS. The cost of obtaining the insurance coverage authorized above is declared to be a common expense, as are any other fees and expenses incurred which may be necessary or incidental to carrying out the provisions hereof.
All policies of casualty insurance covering the REGIME shall provide for the insurance proceeds covering any loss to be payable to the Insurance Trustee named as hereinafter provided, or to its successor, and the insurance proceeds from any casualty loss shall be held for the use and benefit of the ASSOCIATION and all of the co-owners of all APARTMENTS and their respective Mortgagees, as’ their interests may appear, and such insurance proceeds shall be applied or distributed in the manner herein provided. The ASSOCIATION is hereby declared to be and appointed as Authorized Agent for all of the co-owners of all APARTMENTS for the purpose of negotiating and agreeing to a settlement as to the value and extent of any loss which maybe covered under any policy of casualty insurance, and is granted full right and authority to execute in favor of any insurer a release of liability arising out of any occurrence covered by any policy or policies of casualty insurance and resulting in loss of damage to insured property.
The company or companies with whom such casualty insurance may be placed shall be selected by .the ASSOCIATION, and all parties daily interested in such insurance coverage shall be bound by selection of insurance company or companies made by the ASSOCIATION.
The ASSOCIATION shall have the right to designate an Insurance Trustee if the majority of the Board of Directors so approve all parties beneficially interested in such insurance coverage shall be bound thereby.
The Insurance Trustee, if designated, shall
be a banking institution having trust powers and doing business in the State of
The sole duty of the Insurance Trustee shall be to receive such proceeds of casualty insurance as are paid and to hold same in trust for the purposes herein stated, and for the benefit of ASSOCIATION and the co-owners of all APARTMENTS and their respective mortgages, such insurance proceeds to be disbursed and paid by the Insurance Trustee as hereinafter provided. The ASSOCIATION, as a common expense, shall pay a reasonable fee to said Insurance Trustee for its services rendered hereunder, and shall pay such costs and expenses as said Insurance Trustee may incur in the performance of any duties and obligations imposed upon it hereunder. Said Insurance Trustee shall be liable only
for its willful misconduct, bad faith or gross negligence, and then for only such money which comes into the possession of said Insurance Trustee. Wherever the Insurance Trustee may be required to make distribution of insurance proceeds to co-owners of APARTMENTS and their Mortgagees, as their respective interests may appear, the Insurance Trustee may rely upon a Certificate of the President and Secretary of the ASSOCIATION, executed under oath, and which Certificate will be provided to said Insurance Trustee upon request of said Insurance Trustee made to the ASSOCIATION, such Certificate to certify unto said Insurance Trustee the name or names of the co-owners of each APARTMENT, the name or names of the Mortgagee or Mortgagees who may hold a mortgage or mortgages encumbering each APARTMENT, and the respective percentages of any distribution which maybe required to be made to the co-owner or co-owners of any APARTMENT or APARTMENTS, and his or their respective Mortgagee or Mortgagees, as their respective interests may appear. Where any insurance proceeds are paid to the Insurance Trustee for any casualty loss, the holder or holders of any mortgage or mortgages encumbering a APARTMENT shall not have the right to determine or participate in the determination of repair or replacement of any loss or damage, and shall not have the right to elect to apply insurance proceeds to the reduction of any mortgage or mortgages, unless such insurance proceeds represent a distribution to the co-owner or co-owners of any APARTMENT or APARTMENTS, and their respective mortgagees, after such insurance proceeds have been first applied to repair, replacement or reconstruction of any loss or damage, or unless such casualty insurance proceeds are authorized to be distributed to the co-owner or co-owners of any APARTMENT or APARTMENTS, and their respective mortgagee or mortgagees, by reason of loss of or damage to personal property constituting a part of COMMON ELEMENTS and as to which a determination is made not to repair, replace or restore such personal property. So long as Lenders shall have the right to approve the company or companies with whom said casualty insurance coverage is placed, Lenders shall also have the right to approve the amount of such insurance coverage to be maintained.
In the event of the loss of or damage only to COMMON ELEMENTS, real or personal, which loss or damage is covered by the casualty insurance, the proceeds paid to the Insurance Trustee to cover such loss or damage shall be applied to the repair, replacement or reconstruction of such loss or damage. If the insurance proceeds are in excess of the cost of the repair, replacement or reconstruction of such COMMON ELEMENTS, then such excess insurance proceeds shall be paid by the Insurance Trustee to. the co-owners of all of the APARTMENTS and their respective Mortgagees, the distribution to be separately made to the co-owner of each APARTMENT and his respective mortgagee or mortgagees, as their interests may appear, in such proportion that the share of
such excess insurance proceeds paid to the co-owner of each
APARTMENT and his said mortgagee or mortgagees, if any, shall bear the same ratio to the total excess insurance proceeds as does the undivided interest in COMMON ELEMENTS appurtenant to each APARTMENT bear to the total undivided interests in COMMON ELEMENTS appurtenant to each APARTMENT bear to the total undivided interests in COMMON ELEMENTS appurtenant to all APARTMENTS. If it appears that the insurance proceeds covering the casualty loss or damage payable to the Insurance Trustee are; not sufficient to pay for the repair; replacement or reconstruction of the loss or damage, or that the insurance proceeds when collected will not be so sufficient, then the ASSOCIATION shall deposit with the Insurance Trustee a sum which, together with the insurance proceeds received or to be received, will enable said Insurance Trustee to completely pay for the repair, replacement or reconstruction of any loss or damage, as the case may be. The monies to be deposited by the ASSOCIATION with the Insurance Trustee, in said latter event, may be paid by the ASSOCIATION out of its Reserve for Replacements Fund, and if the amount in such Reserve for Replacements Fund is not sufficient, then the ASSOCIATION shall levy and collect an assessment against the owners of all APARTMENTS and said APARTMENTS in an amount which shall provide the funds required to pay for said repair, replacement or reconstruction.
In the event of the loss of or damage to COMMON ELEMENTS and any APARTMENT or APARTMENTS which loss or damage is covered by the casualty insurance, the proceeds paid to the Insurance Trustee to cover such loss or damage shal1 be first applied to the repair, replacement or reconstruction, as the case may be, of COMMON ELEMENTS; real or personal, and then any remaining insurance proceeds shall be applied to the repair, replacement or reconstruction of any APARTMENT or APARTMENTS which may have sustained any loss or damage so covered. If the insurance proceeds are in excess of the cost of the repair, replacement or reconstruction of the COMMON ELEMENTS then the insurance proceeds shall be paid and distributed by the Insurance Trustee to the co-owners of all APARTMENTS, and to their mortgagee or mortgagees, as their respective interests may appear, such distribution to be made in the manner and in the proportions as are provided hereinbefore. If it appears that the insurance proceeds covering the casualty loss or damage payable to the Insurance Trustee are not sufficient to pay for the repair, replacement or reconstruction of the loss or damage, or that the insurance proceeds when collected will not be so sufficient, then the Board of Directors of the ASSOCIATION shall, based upon reliable and detailed estimates obtained by it from competent and qualified parties, determine and allocate the cost of repair, replacement or reconstruction between the COMMON ELEMENTS and the APARTMENT or APARTMENTS, sustaining any loss or
damage. If the proceeds of said casualty insurance are sufficient to pay for the repair, replacement or reconstruction of any loss of or damage to COMMON ELEMENTS, but should the same not be sufficient to repair, replace or reconstruct any loss of or damage to any APARTMENT or APARTMENTS, then the ASSOCIATION shall levy and collect an assessment from the co-owner or co-owners of the APARTMENT or APARTMENTS sustaining any loss or damage, and the assessment so collected from said co-owner or co-owners shall be deposited with said Insurance Trustee so that the sum on deposit with said Insurance Trustee shall be sufficient to completely pay for the repair, replacement or reconstruction of all COMMON ELEMENTS and APARTMENT or APARTMENTS. In said latter event, the assessment to be levied and collected from the co-owner or co-owners of each APARTMENT or APARTMENTS sustaining loss or damage shall be apportioned between such co-owner or co-owners in such manner that the assessment levied against each co-owner of a APARTMENT and his APARTMENT shall bear the same proportion to the total assessment levied against all of said co-owners of APARTMENTS sustaining loss or damage as does the cost of repair, replacement or reconstruction of each co-owner’s APARTMENT bear to the cost applicable to all of said APARTMENTS sustaining loss or damage. If the casualty insurance proceeds payable to the Insurance Trustee in the event of the loss of or damage to COMMON ELEMENTS and APARTMENT or APARTMENTS is not in an amount which will pay for the complete repair, replacement or reconstruction of the COMMON ELEMENTS, it being recognized that such insurance proceeds are to be first applied to payment for repair, replacement or reconstruction of said COMMON ELEMENTS before being applied to the repair, replacement or reconstruction of an APARTMENT or APARTMENTS, then the cost to repair, replace or reconstruct said COMMON ELEMENTS in excess of available casualty insurance proceeds shall be levied and collected as an assessment from all of the co-owners of all APARTMENTS in the same manner as would such assessment be levied and collected had the loss or damage sustained been solely to COMMON ELEMENTS and the casualty insurance proceeds been not sufficient to cover the cost of repair, replacement or reconstruction, and the cost of repair, replacement or reconstruction of each APARTMENT or APARTMENTS sustaining loss or damage shall then be levied and collected by assessment of the co-owner or co-owners of APARTMENT or APARTMENTS sustaining the loss or damage in the same manner as is above provided for the apportionment of such assessment between the co-owner or co-owners of APARTMENT or APARTMENTS sustaining such loss or damage.
In the event of loss of or damage to property covered by such casualty insurance, the ASSOCIATION shall, within sixty (60) day after any such occurrence, obtain reliable and detailed estimates of the cost to place the damaged property in condition as good as that before such loss Or damage, such estimates to contain and include the cost of any professional
fees and premium for such Bond as the Board of Directors of the ASSOCIATION may deem to be in the best interests of the membership of said ASSOCIATION.. Wherever it shall appear that the insurance proceeds payable for such loss or damage wilt not be sufficient to defray the cost of the repair, replacement or reconstruction thereof, the additional monies required to completely pay for such repair, replacement or reconstruction of said loss or damage, whether to be paid by all of the co-owners of APARTMENTS or only by the co-owner or co-owners If any APARTMENT or APARTMENTS sustaining loss or damage or both, shall be deposited with said Insurance Trustee not later than thirty (30) days from’ the date on which said Insurance Trustee shall receive the monies payable under the policy or policies of casualty insurance.
In the event of the loss of or damage to personal property belonging to the ASSOCIATION, the insurance proceeds, when received by the Insurance Trustee, shall be paid to the ASSOCIATION. In the event of the loss of or damage to personal property constituting a portion of the COMMON ELEMENTS, and should the Board of Directors of the ASSOCIATION determine not to replace such personal property as may be lost or damaged, then the insurance proceeds received by the Insurance Trustee shall be paid to all of the co-owners of all APARTMENTS and their respective mortgagee or mortgagees, as their interests may appear, in the manner and in the proportions hereinbefore provided for the distribution of excess insurance proceeds.
(1) Whenever any proceeding is instituted that could result in the temporary or permanent taking, Injury, or destruction of all or part of the Common Elements or one or more Apartments or portions thereof by the exercise of the power of or power in the nature of eminent domain or by an action or deed in lieu of condemnation, the Board of Directors of the Association and each Apartment owner shall be entitled to notice thereof and the Board of Directors shall, and the Apartment owners at their respective expense may participate in the proceedings incident’ thereto.
(2) With respect to Common Elements, any damages or awards shall be determined for such taking, injury or destruction as a whole and not for each Apartment owner’s interests therein. After such determination, each Apartment owner shall be entitled to a share in the damages in the same proportion as his percentage of undivided interest in the Common Elements and facilities. This provision does not prohibit a majority of Apartment owners from authorizing the Board of Directors to use such damages or awards for replacing or restoring the common areas and facilities so taken on the remaining land, land, provided that this Master Deed and Regime Plans are duly amended.
(3) With respect to one or more Apartments or portions thereof, the damages or awards for such taking shall be deemed to be proceeds from insurance on account of damage or destruction and pursuant to the By-Laws of the Association, and shall be deposited with the Insurance Trustee, if there is an Insurance Trustee, as defined therein. The proceeds of the damages or awards shall be distributed or used in the manner provided for in the By-Laws of the Association and the owners of affected Apartments shall have the rights provided in the By-Laws of the Association for insurance proceeds provided the property is removed from the Regime and from the provisions of the Act as may be allowed by applicable law. If the property is not removed from the Regime and from the provisions of the Act, and one or more Apartments are taken, in whole or in part, the taking shall have the following effects:
(a) If the taking reduces the size of an Apartment and the remaining portion of the unit may be made tenantable, the Apartment shall be made tenantable. If the cost of such work exceeds the amount of the award, the additional funds required shall be assessed against the owner of the Apartment. The balance of the award, if any, shall be distributed to the mortgagor (if any) of the Apartment to the extent of the unpaid balance on its mortgage and the excess, if any, shall be distributed to the Apartment owner. If there is a balance of the award distributed to the Apartment owner or a mortgagor, the Apartment owner’s percentage of undivided interest in the Common Elements and facilities shall be equitably reduced to the extent allowed by law. This reduction shall be done by reducing such interest in the proportion by which the floor area of the Apartment is reduced by the taking, and then by computing the percentages of undivided interests of all Apartment owners in the Common Elements.
(b) If the taking destroys or so reduces the size of an Apartment that it cannot be made tenantable, the award shall be paid to the mortgagor (if any) of the Apartment to the extent of the unpaid balance of its mortgage and the excess, if any, shall be distributed to the Apartment owners in the manner approved by the Board of Directors. If the cost of such work shall
exceed the balance of the fund from the award for the taking, such work shall be done only if approved by a majority of the Apartment owners. The percentages of undivided interests in the common area and facilities appurtenant to the Apartment that continue as part of the property shall, to the extent allowed by law, be equitably adjusted to distribute the ownership of the Common Elements among the reduced number of Apartment owners.
(c) Changes in Apartments. in the Common Elements, and in the ownership of the Common Elements that are affected by the taking referred to in this Article XXIII shall be evidenced by an appropriate amendment to this Master Deed and Regime Plans, which must be approved by majority of the owners of the Apartments.
APPORTIONMENT OF TAX OR SPECIAL ASSESSMENT IF LEVIED AND ASSESSED AGAINST THE REGIIME AS A WHOLE
In the event that any taxing authority having jurisdiction over the REGIME shall levy or assess any Tax or Special Assessment against the REGIME as a whole, as opposed to levying and assessing such Tax or Special Assessment against each APARTMENT and its appurtenant undivided interest in COMMON ELEMENTS as now provided by law, then such Tax or Special Assessment so levied shall be paid as a common expense by the ASSOCIATION, and any Taxes or Special Assessments which are to be so levied shall be included, wherever possible, in the estimated Annual Budget of the ASSOCIATION, or shall be separately levied and collected as an assessment by the ASSOCIATION against all of the co-owners of all APARTMENTS and said APARTMENTS if not included in said Annual Budget. The amount of any Tax or Special Assessment paid or to be paid by the ASSOCIATION in the event that such Tax or Special Assessment is levied against the REGIME, as a whole, instead of against each separate APARTMENT and its appurtenant undivided interest in. COMMON ELEMENTS shall be apportioned among the co-owner of all APARTMENTS so that the amount of such Tax or Special Assessment so paid or to be paid by the ASSOCIATION and attributable to and to be paid by the co- owner or co-owners of each APARTMENT shall be that portion of such total Tax or Special Assessment which bears the same ratio to said total Tax or Special Assessment as the undivided interest in COMMON ELEMENTS appurtenant to each APARTMENT bears to the total undivided interest in COMMON ELEMENTS appurtenant to all APARTMENTS. In the event that any Tax or Special Assessment shall be levied against the REGIME in its entirety,
without apportionment by the taxing authority to the APARTMENTS and appurtenant undivided interests in COMMON ELEMENTS, then the assessment by the ASSOCIATION, which shall include the proportionate share of such Tax or special Assessment attributable to each APARTMENT and its appurtenant undivided interest in COMMON ELEMENTS, shall separately specify and identify the amount of such assessment attributable to such Tax or Special Assessments, and the amount of such Tax or Special Assessment so designated shall be and constitute a lien prior to all mortgages and encumbrances upon any APARTMENT and its appurtenant undivided interest in COMMON ELEMENTS, regardless of the date of the attachment and/or recording of such mortgage or encumbrance, to the same extent as though such Tax or Special Assessment had been separately levied by the taxing authority upon each APARTMENT and its appurtenant undivided interest in COMMON ELEMENTS.
All personal property taxes levied or assessed against personal property owned by the ASSOCIATION shall be paid by said ASSOCIATION and shall be included as a common expense in the Annual Budget of the ASSOCIATION.
ASSOCIATION TO MAINTAIN REGISTRY
OF CO-OWNERS AND MORTGRGEES
The ASSOCIATION shall at all times maintain a Register setting forth the names of the co-owners of all of the APARTMENTS, and in the event of the sale or transfer of any APARTMENT to a third party, the purchaser, or transferee shall notify the ASSOCIATION in writing of his interest in such APARTMENT together with such recording information as shall be pertinent to identify the instrument by which such purchaser or transferee has acquired his interest in any APARTMENT. Further the co-owner of each APARTMENT shall at all times notify the ASSOCIATION of the names of the parties holding any mortgage or mortgages on any APARTMENT, the amount of such mortgage or mortgages, and the recording information which shall be pertinent to identify the mortgage or mortgages. The holder of any mortgage or mortgages upon any APARTMENT may, if he so desires, notify the ASSOCIATION of the existence of any mortgage or mortgages held by such party on any APARTMENT, and upon receipt of such notice, the ASSOCIATION shall register in its records all pertinent information pertaining to the same.
ASSESSMENTS: LIABILITY, LIEN AND ENFORCEMENT
The ASSOCIATION, as and for the Council of Co-owners, is given the authority to administer the operation and management of the REGIME, it being recognized that the delegation of such duties to one entity is in the best interests of the co-owners of all APARTMENTS. To properly administer the operation and management of the project, the ASSOCIATION will incur, for the mutual benefit of all of the co-owners of APARTMENTS, costs and expenses which will be continuing or nonrecurring costs, as the case may be, which costs and expenses are sometimes herein referred to as “common expense.” To provide the funds necessary for such proper operation and management, the said ASSOCIATION has heretofore been granted the right to make, levy and collect assessments against the co-owners of all APARTMENTS and said APARTMENTS. In furtherance of said grant of authority to the ASSOCIATION to make, levy and collect assessments to pay the costs and expenses for the operation and management of the REGIME, the following provisions shall be operative and binding upon the co-owners of all APARTMENTS, to-wit:
A. All assessments levied against the co-owners of APARTMENTS and said APARTMENTS shall be uniform and, unless specifically otherwise provided for in this Master Deed, the assessments made by the ASSOCIATION shall be in such proportion that the amount of assessment levied against each co-owner of a APARTMENT and his APARTMENT shall bear the same ratio to the total assessment made against all co-owners of APARTMENTS and their APARTMENTS as does the undivided interest in COMMON ELEMENTS appurtenant to each APARTMENT bear to the total undivided interest in COMMON ELEMENTS appurtenant to all APARTMENTS. Should the ASSOCIATION be the co-owner of any APARTMENT or APARTMENTS, the assessment which would otherwise be due and payable to the ASSOCIATION by the co-owner of such APARTMENT or APARTMENTS, reduced by an amount of income which may be derived from the leasing such APARTMENT or APARTMENTS by the ASSOCIATION shall be apportioned and assessment therefor levied ratably among the co-owners of all APARTMENTS which are not owned by the ASSOCIATION, based upon their proportionate interests in the COMMON ELEMENTS exclusive of the interests therein appurtenant to any APARTMENT or APARTMENTS owned by the ASSOCIATION.
B. The assessment levied against the co-owner of each APARTMENT and his APARTMENT shall be payable in annual, quarterly or monthly installments, or in such other installments and at such times as may be determined by the Board of Directors of the ASSOCIATION.
C. The Board of Directors of the ASSOCIATION shall establish an Annual Budget in advance for each fiscal year which shall correspond to the calendar year, and such Budget shall project all expenses for the forthcoming year which may be required for the proper operation, management and maintenance of the REGIME, including a reasonable allowance for contingencies and reserves, such Budget to take into account projected anticipated income which is to be applied in reduction of the amount required to be collected as an assessment each year. Upon adoption of such Annual Budget by the Board of Directors of the ASSOCIATION, copies of said Budget shall be delivered to each co-owner of an APARTMENT and the assessment for said year shall be established based upon such Budget, although the delivery of a copy of said Budget to each co-owner shall not affect the liability of any co-owner for such assessment. Should the Board of Directors at any time determine, in the sole discretion of said Board of Directors, that the assessments levied are or may prove to be insufficient to pay the costs of operation and management of the REGIME, or in the event of emergencies, said Board of Directors shall have the authority to levy such additional assessment or assessments as it shall deem to be necessary.
D. The Board of Directors of the ASSOCIATION, in establishing said Annual Budget for operation, management and maintenance of the Project shall include therein a sum to be collected and maintained as reserve fund for replacement of COMMON ELEMENTS, which reserve fund shall be for the purpose of enabling the ASSOCTATION to replace structural element, and mechanical equipment constituting a part of the COMMON ELEMENTS as well as the replacement of personal property which may constitute a portion of the COMMON ELEMENTS held for the joint use and benefit of all of the co-owners of all APARTMENTS. The amount to be allocated to such Reserve Fund for Replacements shall be established by said Board of Directors so as to accrue and maintain at all times a sum reasonably necessary to anticipate the need for replacements of said COMMON ELEMENTS. The amount collected and allocated to the Reserve Fund for Replacements from time to time shall be maintained in a separate account by the ASSOCIATION, although nothing herein contained shall limit the ASSOCIATION from applying any monies in such Reserve Fund for replacements to meet other needs or requirements of the ASSOCIATION in operating or managing the Project in the event of emergencies, or in the event that the sums collected from the co-owners of APARTMENTS are insufficient to meet the then fiscal financial requirements of the ASSOCIATION, but it shall not be a requirement that these monies be used for such latter purposes, as a separate assessment may be levied therefor if deemed to be preferable by the Board of Directors of the ASSOCIATION in the sole discretion of said Board of Directors.
E. The Board of Directors of the ASSOCIATION, in establishing said Annual Budget for operation, management and maintenance of the Project, shall include therein a sum to be collected and maintained as a general operating reserve which shall be used to provide a measure of financial stability during periods of special stress when such sums may be used to meet deficiencies from time to time existing as a result of delinquent payment of assessments by co-owners of APARTMENTS, as a result of emergencies or for other reason placing financial stress upon the ASSOCIATION.
F. All monies collected by the ASSOCIATION shall be treated as the separate property of the said the ASSOCIATTON, and such monies may be applied by the said the ASSOCIATION to the payment of any expense of operating and managing the REGIME, or to the proper undertaking of all acts and duties imposed upon it by virtue of this Master Deed and the Articles of Incorporation and By-Laws of said ASSOCIATION and as the monies f or any assessment are paid unto the ASSOCIATION by any co-owner of an APARTMENT the same may be co-mingled with the monies paid to the said ASSOCIATION by the other co-owners of APARTMENTS. Although all funds and other assets of the ASSOCIATION, and any increments thereto or profits derived therefrom, or from the leasing or use of COMMON ELEMENTS, shall be held for the benefit of the members of the ASSOCIATION, who shall own any common surplus in the proportions of their percentage of undivided interest in the REGIME, no member of said ASSOCIATION shall have the right to assign, hypothecate, pledge or in any manner transfer this membership interest therein, except as an appurtenance to his APARTMENT.
G. The payment of any assessment or installment thereof due to the ASSOCIATION shall be in default if such assessment, or any installment thereof, is not paid unto the ASSOCIATION, on or before the due -date for such payment. When in default, the Board of- Directors may accelerate the remaining installments of the annual assessment upon notice thereof to the APARTMENT co-owner, whereupon the entire unpaid balance of the annual assessment shall become due upon the date stated in the notice, which shall not b less than ten (10) days after the date of the notice. In the event any assessment, installment, or accelerated assessments are not paid within twenty (20) days after their due date, the ASSOCIATION, through its Board of Directors, may proceed to enforce and collect the said assessments against the APARTMENT co-owner owing the same in any manner provided for by the Act, including the right of foreclosures and sale. When in default, the delinquent assessment or delinquent installment thereof due to the ASSOCIATION shall bear interest at the rate of 12% per annum until such delinquent assessment or installment thereof, and all interest due thereon, has been paid to the ASSOCIATION.
H. The co-owner or co-owners of each APARTMENT shall be personally liable to the ASSOCIATION for the payment of all assessments, regular or special, which may be levied by the ASSOCIATION while such party or parties are co-owner or co-owners of an APARTMENT in the REGIME. In the event that any co-owner or co-owners are in default in payment of any assessment or installment thereof owed to the ASSOCIATION, such co-owner or co-owners of any APARTMENT shall be personally liable for interest on such delinquent assessment or installment thereof as above provided, and for all cost of collecting such assessment or installment thereof and interest thereon, including a reasonable attorney’s fee, whether suit be brought or not.
I. No co-owner of an APARTMENT may exempt himself from liability for any assessment levied against such co-owner and his APARTMENT by waiver of the use or enjoyment of any of the COMMON ELEMENTS, or by abandonment of the APARTMENT, or in any other manner.
J. Recognizing that the necessity of providing proper operation and management of the Project entails the continuing payment of costs and expenses therefor, which results in benefit to all of the co-owners of APARTMENTS, and that the payment of such common expense represented by the assessments levied and collected by the ASSOCIATION is necessary in order to preserve and protect the investment of the co-owner of each APARTMENT, the ASSOCIATION is hereby granted a lien upon such APARTMENT and its’ appurtenant undivided interest in COMMON ELEMENTS, which lien shall secure and does secure the monies due for all assessments now or hereafter levied against the co-owner of each APARTMENT, which lien shall also secure interest, if any, which may be due on the amount of any delinquent assessments owing to the ASSOCIATION, and which lien shall also secure all costs and expenses, including a reasonable attorney’s fee, which may be incurred by the ASSOCIATION in enforcing this lien upon said APARTMENT and its appurtenant undivided interest in the COMMON ELEMENTS. The lien granted to the ASSOCIATION may be foreclosed in the same manner as mortgages may be foreclosed in the State of South Carolina, and in any suit for the foreclosure of said lien, the ASSOCIATION shall be entitled to rental from the co-owner of any APARTMENT from the date on which the payment of any assessment or installment thereof became delinquent and shall be entitled to the appointment of a Receiver for said APARTMENT The rental required to be paid shall be equal to the rental charged on comparable type of APARTMENT units in the geographical area. The lien granted to the ASSOCIATION shall further secure such advances for taxes, and payments on account of superior mortgages, liens, or encumbrances which may be required to be advanced by’ the ASSOCIATION in order to preserve and protect its lien, and the ASSOCIATION shall further be entitled to interest at the rate of 12% per annum on any such advances made for such purpose.
Any person, firm, or corporation who shall acquire, by whatever means, any interest in the co-ownership of any APARTMENT, or who maybe given or acquire a mortgage, lien or other encumbrance thereon, is hereby placed on notice of the lien granted to the ASSOCIATION, and shall acquire such interest in any APARTMENT expressly subject to such lien.
K. The lien herein granted unto the ASSOCIATION shall be effective from and after the time of recording in the Public Records of Horry County, South Carolina, a claim of lien stating the description of the APARTMENT encumbered thereby, the name of the record co-owner, the amount due and the date when due, and the lien shall continue in effect until all sums secured by said lien, as herein provided, shall have been fully paid. Such claims of lien shall include only assessments which are due and payable when the claim of lien is recorded, plus interest, coats,’ attorney’s fees, advances to pay taxes and prior encumbrances and interest thereon, all as above provided. Such claims of lien shall be signed, and verified by an officer or agent of the ASSOCIATION. Upon full payment of all sums secured by such claim of lien, the same shall be satisfied of record. The claim of lien filed by the ASSOCIATION shall be subordinate to the lien of any mortgage or any other lien recorded prior to the time of recording of the ASSOCIATION’S Claim of Lien.
In the event that any person, firm or corporation shall acquire title to any APARTMENT and its appurtenant undivided interest in COMMON ELEMENTS by virtue of any foreclosure, or judicial sale, such person, firm or corporation so acquiring title shall only be liable and obligated, for assessments as shall accrue and become due and payable for said APARTMENT and its appurtenant undivided interest in COMMON ELEMENTS subsequent, to the date of acquisition of such title, and shall not be liable for the payment of any assessments which were in default and delinquent at the time it acquired such title subject to the lien of any assessment by the ASSOCIATION representing an apportionment of Taxes of Special Assessment levied by taxing authorities against the REGIME in its entirety. In the event of the acquisition of title to an APARTMENT by foreclosure or judicial sale, any assessment or assessments as to which the party so acquiring title shall not be liable shall be absorbed and paid by all co-owners of all APARTMENTS as a part of the common expense, although nothing herein contained shall be construed as releasing the party liable for such delinquent assessment from the payment thereof or the enforcement of collection of such payment by means other than foreclosure.
L. Whenever any APARTMENT may be sold or mortgaged by the co-owner thereof, which sale shall be concluded only upon compliance with other provisions of this Master Deed, the ASSOCIATION, upon written request of the co-owner of such APARTMENT, shall furnish to the proposed purchaser or mortgagee, a statement verifying the statue of payment of any assessment which shall be due and payable to the ASSOCIATION by the co-owner of such APARTMENT. Such statement shall be executed by any Officer of the ASSOCIATION and any purchaser or mortgagee may rely upon such statement in concluding the proposed purchase or mortgage transaction, and the ASSOCIATION shall be bound by such statement.
In the event that an APARTMENT is to be sold or mortgaged at the time when payment of any assessment against the co-owner of said APARTMENT and APARTMENT due to the ASSOCIATION shall be in default (whether or not a claim of lien has been recorded by the ASSOCIATION) then the proceeds of such purchase or mortgage proceeds, shall be applied by the purchaser or mortgagee first to payment of any then delinquent assessment or installment thereof due to the ASSOCIATION before the payment of any proceeds of purchase or mortgage proceeds to the co-owner of any APARTMENT who is responsible for payment of such delinquent assessment.
In any voluntary conveyance of an APARTMENT, the Grantee shall be jointly and severally liable with the Grantor for all unpaid assessments against Grantor made prior to the time of such voluntary conveyance, without prejudice the rights of the Grantee to recover from the Grantor the amounts paid by the Grantee therefor.
Institution of a suit at law to attempt to effect collection of the payment of any delinquent assessment shall not be deemed to be an election by the ASSOCIATION which shall prevent its thereafter seeking enforcement of the collection of any sums remaining owing to it by foreclosure, nor shall proceeding by foreclosure to attempt to effect such collection be deemed to be an election precluding the institution of suit at law to attempt to effect collection of any sums then remaining owing to it.
Notwithstanding anything in this Master Deed to the contrary, Grantor shall be exempt from the assessment created herein until such time as seventy-five percent (75%) of the total number of dwellings in all phases contemplated herein and hereby have been conveyed by Grantor to co-owners. Grantor, after conveyance of the seventy-five percent (75%) of the total number of dwellings contemplated herein and hereby shall be liable for the assessment provided for hereunder and shall be deemed a “Grantee” or “co-owner” hereunder. Except as expressly provided herein, no APARTMENT and its appurtenant percentage interest shall be exempt from said assessment. Moreover, until
such time as seventy-five percent (75%) of the total number of dwellings contemplated herein and hereby are conveyed by the grantor to a co-owner (grantees), the Grantor shall be assessed and shall pay to the ASSOCIATION in lieu of an assessment thereof, a sum equal to the actual amount of actual operating expenditures for the calendar year less an amount equal to the total assessments made by the ASSOCIATION against co-owners of APARTMENTS other than those owned by Grantor. The actual operating expenditures for this purpose shall also include any reserve for replacements or operating reserves.
AMENDMENT OF MASTER DEED
Subject to the provisions of Article X of this
Master Deeds neither this Master Deed nor any of its provisions shall be revoked or amended without the approval of the co-owners
owning at least two-thirds of the Apartments and at least two-thirds of the total interest in the Common Elements and the
record holders of first mortgages affecting at least two-thirds of the Apartment and at least two-thirds of the total interest
in the Common Elements, provided that the system of administration as set forth in the Charter and By-Laws of the Association
may be amended and modified from time to time in accordance with the provisions of the Act and other applicable terms of the
Articles of Incorporation and By-Laws of the Association and provided further that the Grantor reserves the right to make
clarifying amendments to this Master Deed for a period of 270 days from the date hereof without a vote of owners as herein
provided as long as such changes do not materially adversely affect individual owners’ rights. Any such amendment shall
be executed and subscribed with the same formalities required in
REMEDIES IN EVENT OF DEFAULT
The co-owner or co-owners of each APARTMENT shall be governed by and shall comply with the provisions of this Master Deed, and the Articles of Incorporation and the By-Laws of the ASSOCIATION and its rules and regulations as any of the same are now constituted or as they may be adopted and/or amended from time to time. A default by the co-owner or co-owners of any APARTMENT shall entitle the ASSOCIATION or the co-owner or co-owners of other APARTMENT or APARTMENTS to the following relief:
A. Failure to comply with any of the terms of this Master Deed or other restrictions and regulations contained in the Articles of Incorporation, By-Laws of the ASSOCIATION, or its rules and regulations, shall be grounds for relief which may include without intending to limit the same, an action to recover sums due for damages, injunctive relief, foreclosure of lien or any combination thereof and which relief may be sought by the ASSOCIATION, or, if appropriate, by an aggrieved co-owner of an APARTMENT.
B. The co-owner or co-owners of each APARTMENT shall be liable for the expense of any maintenance, repair or replacement rendered necessary by his act, neglect or carelessness, or by that of any member of his family, or his or their guests, employees, agents or lessees, but only to the extent that such expense is not met by the proceeds of insurance carried by the ASSOCIATION. Such liability shall include any increase in fire insurance rates occasioned by use, misuse, occupancy or abandonment of an APARTMENT or its appurtenances. Nothing herein contained, however, shall be construed so as to modify any waiver by insurance companies of rights of subrogation.
C. In any proceeding arising because of an alleged default by the co-owner of any APARTMENT, the ASSOCIATION, if successful, shall be entitled to recover the costs of the proceedings, and such reasonable attorney’s fees as may be determined by the Court, but in. no event shall the co-owner of any APARTMENT be entitled to such attorney’s fees.
D, The failure of the ASSOCIATION or of the co-owner of an APARTMENT to enforce any right, provision, covenant, or condition which may be granted by this Master Deed or other above mentioned documents shall not constitute a waiver of the right of the ASSOCIATION or of the co-owner of an APARTMENT to enforce such right, provision, covenant or condition in the future.
E. All rights, remedies and privileges granted to the ASSOCIATION or the co-owner or co-owners of an APARTMENT pursuant, to any terms, provisions, covenants or conditions of this Master Deed or other above mentioned documents, shall be deemed to be cumulative and the exercise of any one or more shall not be deemed to constitute an election of remedies nor shall it preclude the party thus exercising the same from exercising such other and additional right, remedy or privilege as may be available to such party at law or in equity.
F. The failure of the Grantor, or the Lender to enforce any right, privilege, covenant or condition which may be granted to them, or either of them, by this Master Deed or other above mentioned document shall not constitute waiver of the right of either of said parties to thereafter enforce such right, provision, covenant or condition in the future.
USE OR ACQUISITION OF INTEREST IN THE REGIME TO RENDER USER OR ACQUIRER SUBJECT TO PROVISIONS OF MASTER DEED, RULES AND REGULATIONS
All present or future co-owners, tenants, or any other person who might use the facilities of the REGIME in any manner,
are subject to the provisions of this Master Deed and all documents, appurtenant hereto and incorporated herewith, and the mere acquisition or rental of any APARTMENT, or the mere act of occupancy of any APARTMENT, shall signify that the provisions of this Master Deed are accepted and ratified in all respects.
RIGHT OF GRANTOR TO SELL OR LEASE APARTMENT
OWNED BY IT AND RIGHT OF GRANTOR TO
REPRESENTATION ON BOARD OF DIRECTORS OF ASSOCIATION
So long as the grantor herein shall own any APARTMENT, the said grantor shall have the absolute right to lease or sell any such APARTMENT to any person, firm or corporation, upon any terms and conditions as it shall deem to be in its own best interest. Further, until seventy-five percent (75%) of the total number of dwellings in all phases of the Regime contemplated hereby and herein have been conveyed by the Grantor to co-owners, the said grantor shall have the right to designate and select a majority of the persons who shall serve as members of each Board of Directors of the ASSOCIATION; and so long as the said grantor is the owner of at least one but not more than three APARTMENTS, the said grantor shall have the right to designate and select one of the persons who shall serve as a member of each Board of Directors of the ASSOCIATION. Any Director designated and selected by the grantor need not be a resident in the REGIME.
Any representative of Grantor, serving on the Board of Directors of the ASSOCIATION shall not be required to disqualify himself upon any vote upon any management contract or other matter between Grantor, and the ASSOCIATION where the said Grantor, may have a pecuniary or other interest. Similarly, Grantor, as a member of the ASSOCIATION, shall not be required to disqualify itself in any vote which may come before the membership of the ASSOCIATION upon any management contract or other matter between Grantor, and the ASSOCIATION where Grantor, may have a pecuniary or other interest.
In the event that any of the terms, provisions or covenants of this Master Deed are held to be partially or wholly invalid or unenforceable for any reason whatsoever, such holding shall not affect, alter, modify or impair in any manner whatsoever any of the other terms, provisions or covenants hereof or the remaining portions of any terms, provisions or covenants held to be partially invalid or unenforceable.
LIBERAL CONSTRUCTION AND ADOPTION
OF PROVISIONS OF CONDOMINIUM ACT
The provisions of this Master Deed shall be liberally construed to effectuate its purpose of creating a uniform plan of Condominium co-ownership. The South Carolina Horizontal Property act, 1976 Code of Laws, as the same may be amended from time to time thereafter is hereby adopted and expressly made a part hereof. In the event of any conflict between the provisions of this Master Deed and the said South Carolina Horizontal Property Act of South Carolina, as the same may be amended, the provisions of the said act shall take the place of the conflicting provisions of this Master Deed.
MASTER DEED BINDING UPON GRANTOR,
ITS SUCCESSORS AND ASSIGNS, AND SUBSEQUENT OWNERS
The restrictions and burdens imposed by the covenants of this Master Deed are intended to and shall constitute covenants running with the land, and shall constitute an equitable servitude upon each APARTMENT and its appurtenant undivided interest in COMMON ELEMENTS and this Master Deed shall be binding upon Grantor, its successors and assigns, and upon all parties who may subsequently become co-owners of APARTMENTS in the REGIME, and their respective heirs, legal representatives, successors and assigns.
A. The term “Apartment” or “Apartments” shall be synonymous with the term “Apartment”, “Apartments” as those terms are used under the Horizontal Property Act of the 1976 Code of Laws of South Carolina, as amended.
B. “Bui1ding” means a structure or structures containing in the aggregate two or more apartments comprising a part of the property.
C. “Co-owner” means a person, firm, corporation, partnership, association, trust, or other legal entity or any combination thereof, who owns an apartment within the building.
D. “Assessment” means an apartment co-owner’s prorata share of the common expenses which from time to time is assessed against an apartment or co-owner by the Association.
E. “Association” means council of co-owners as defined by the Horizontal Property Act and also means the corporate form by which the council of co-owners shall operate.
F. “Common Expense” means the expenses for which the co- owners are liable to the Association and include:
1. Expenses of administration, expenses of maintenance, insurance, operation, repair or replacement of the common elements and of the portions of dwellings which are the responsibility of the Association,
2. Expenses declared common expenses by provisions of this Master Deed;
3. Any valid charges against the Regime as a whole.
G. “Common Surplus” means the excess of or receipts of the ASSOCIATION, including, but not limited to assessments over the amount of common expenses.
H. “Condominium” means the form of individual co-ownership of a particular apartment in a building and the common right to a share with other co-owners in the general common elements.
1. Easements through apartments for conduits, ducts, plumbing, chimneys, wiring, and other facilities for the furnishing of utility services to apartments and the general common elements; provided, however, such easements through an apartment shall be only according to the plans and specifications for the apartment building, or as the building is constructed unless approved in writing by the apartment owner.
2. An easement of support in every portion of an apartment which contributes to the support of a building.
3. Easements through the apartments and general common elements for maintenance, repair and replacement of the apartment and general common elements.
4. Installations for the furnishing of utility services to more than one apartment or to the general common elements or to an apartment other than the one containing the installation, which installation shall include ducts, plumbing, wiring and other facilities for the rendering of such services.
5. The tangible personal property required for the maintenance and operation of the Regime, even though owned by the Association.
J. The definitions contained in Section 27-31-20, Code of Laws of South Carolina- (1076) are incorporated herein and made a part and parcel by reference.
IN WITNESS WHEROF, Little River Golf and Health Resort Joint Venture has caused these presents to be executed this ____5th___ day of ___July_____ , 1985.
NOTE: Throughout this reprint, there are places that were filled in by hand. Those places are represented herein by Italics and in some cases may not actually or accurately represent the individual whose signature appear on the original document. An actual copy may be obtained at the Horry County Register of Deeds office.