THIS DECLARATION made on
the date hereinafter set forth by the undersigned, hereinafter referred
to as “Declarant”:
WHEREAS, Declarant is the owner of certain real property in the county
of Deschutes, state of Oregon, hereinafter referred to as “Said
Property,” more particularly described on the attached Exhibit A by this
reference hereby incorporated herein.
WHEREAS, Declarant desires to subject said property to certain
protective covenants, conditions, restrictions, reservations, easements,
liens, and charges for the benefit of said property, and its present and
subsequent owners as hereinafter specified, and will convey said
property subject thereto.
NOW, THEREFORE, Declarant hereby declares that all of the said property
is and shall be held and conveyed upon and subject to the easements,
conditions, covenants, restrictions, and reservations hereinafter set
forth; all of which are for the purpose of enhancing and protecting the
value, desirability, and attractiveness of said property. These
easements, covenants, restrictions, conditions, and reservations shall
constitute covenants to run with the land and shall be binding upon all
persons claiming under them and also that these conditions, covenants,
restrictions, easements, and reservations shall inure to the benefit of
and be limitations upon all future owners of said property, or any
Whenever used in this Declaration, the following terms shall have the
(1) “Association” shall mean THE TUMALO RIM PROPERTY OWNERS ASSOCIATION,
a nonprofit corporation organized under the laws of the state of Oregon,
its successors and assigns.
(2) “Said Property” shall mean and refer to that certain real property
hereinbefore described, and such additions thereto as may be hereafter
brought within the jurisdiction of the Association by recorded
declarations in the manner hereinafter set forth.
(3) “Common Area” shall mean all of the land and
appurtenances thereto, now or hereafter owned by the Association and
intended to be devoted for the common use and enjoyment of the members
of the Association.
(4) “Lot” shall mean any numbered plot of land shown upon any recorded
subdivision plat of said property.
(5) “Member” shall mean every person or entity who holds membership in
(6) “Owner” shall mean the record owner, whether one or more persons or
entities, of fee simple title to any lot situated upon said property, or
a contract purchaser if his record owner retains such title merely to
secure an obligation and is registered as a purchaser in the Association
(7) “Roadway” means any street, highway or other thoroughfare as shown
on the recorded plat of said property.
SUBJECTING ADDITIONAL PROPERTY TO THIS DECLARATION
Section 1. At any time before January 31, 1999, Declarant, its
successors and assigns, shall have the right to bring within the scheme
of this Declaration additional properties in future stages of
development if such additions are in accord with a general plan of
development prepared prior to the sale of any lot and made known to
every purchaser prior to a sale to such purchaser.
Such general plan of development shall show the proposed additions to
said property and contain:
(a) The general indication of size and location of each additional
development stage and proposed land uses in each;
(b) The approximate size and location of the common area proposed for
(c) A statement that proposed additions if made will become subject to
assessment for their just share of Association expenses.
Unless otherwise stated therein such general plan shall not bind
Declarant, its successors and assigns, to make the proposed additions or
to adhere to the plan in any subsequent development of the land shown
Section 2. Method of Making Additions. Additions are authorized under
this Article by filing of record a supplemental declaration of covenants
and restrictions with respect to the additional property. Such
supplemental declaration may contain such additions and modifications of
the covenants and restrictions contained in this Declaration as may be
necessary to reflect the different character, if any, of the added
property. In no event, however, shall such supplemental
declaration revoke, modify, or add to the covenants established by this
Declaration with respect to Said Property.
Section 3. Additions Not in Accordance With the General Plan
of Development. Additions which are not in accord with the
general plan of development may be made by the Declarant or any other
owner of property, who with Declarant’s consent desires to add such
property to the scheme of this declaration and to subject it to the
jurisdiction of the Association, upon approval of the Association
pursuant to a vote of its members.
Members of the Association shall be every Owner and shall be subject by
covenants of record to assessment by the Association. There shall be no
other qualification for membership except as set forth above. Membership
shall terminate on transfer of fee simple title by owner or the contract
purchaser’s interest by a contract purchaser who qualifies as a member.
If an owner sells the Lot by contract of sale, upon written notification
to the Association the owner’s membership shall terminate and the
contract purchaser’s membership shall commence.
All members shall be entitled to one vote for each Lot in which they
hold the interest required for Membership by Article III. When more than
one person holds such interest in any Lot, all such persons shall be
members. The vote for each Lot shall be exercised as they themselves
determine, or if unable to agree, they may cast fractional votes
proportionate to their ownership interests, but in no event shall more
than one vote be cast with respect to any one Lot.
Section 1. Members’ Easements of Enjoyment. Every member of the
Association shall have a right and easement of enjoyment in and to the
Common Area and such easement shall be appurtenant to and shall pass
with the title to every Lot; subject, however to the following
(a) The right of the Association to limit the number of members
permitted to use the Common Area.
(b) The right of the Association to charge reasonable admission fees for
the use of any recreational facility situated upon the Common Area.
(c) The right of the Association to suspend any member’s voting rights
and/or right to use of any of the recreational facilities owned by the
Association, for any period during which any assessment against said
member’s property remains unpaid, and for a period not to exceed thirty
(30) days for each infraction of its published rules and regulations.
(d) The right of the Association to dedicate or transfer all or any part
of the Common Area to any public agency, authority or utility for such
purposes and subject to such considerations as may be agreed to by the
members. No such condition or transfer shall be effective unless an
instrument signed by members entitled to cast two-thirds of the votes of
the membership has been recorded in the appropriate records of Deschutes
County, Oregon, agreeing to such dedication or transfer, and unless
written notice of the proposed action is sent to every member not less
than thirty (30) days nor more than ninety (90) days prior to such
dedication or transfer.
(e) The right of the directors of the Association to promulgate
reasonable rules and regulations governing such rights of use, from time
to time, in the interest of securing maximum safe usage of such Common
Area by the members of the Association without unduly infringing upon
the privacy or enjoyment of the owner or occupant of any part of said
Section 2. Delegation of Use. Any member may delegate, in
accordance with the rules and regulations adopted from time to time by
the Directors, his right of enjoyment to the Common Area and facilities
to the members of his family, his guests or his tenants, provided they
reside on the property.
Section 3. Title to the Common Area. The Declarant hereby
covenants that it will convey to the Association title to the Common
Area, subject to any necessary reservations of an easement or easements
for utilities including but not limited to water, electricity, gas,
sewage, telephone, and television.
COVENANT FOR MAINTENANCE ASSESSMENT
Section 1. Creation of the Lien and Personal Obligation
of Assessments. The Declarant hereby covenants for all of
said property, each Owner of any Lot by acceptance of a deed or contract
of purchase therefor, whether or not it shall be so expressed in any
such deed or other conveyance or agreement for conveyance, is deemed to
covenant and agree to pay to the Associations (1) Regular annual or
other regular periodic assessments or charges, and (2) Special
assessments for capital improvements, such assessments to be fixed,
established, and collected from time to time as hereinafter provided.
The regular and special assessments, together with such interest thereon
and costs of collection thereof, as hereinafter provided, shall be a
charge on the land and shall be a continuing lien upon the property
against which each such assessment is made. Each such assessment,
together with such interest, costs, and reasonable attorney’s fees,
shall also be the personal obligation of the person who was the Owner of
such property at the time such assessment was levied. The obligation
shall remain a lien on the property until paid or foreclosed, but shall
not be a personal obligation of successors in title unless expressly
assumed by them.
Section 2. Purpose of Assessments. The assessments levied by
the Association shall be used exclusively for the improvement and
maintenance of the Common Area and the payment of taxes and insurance on
all or any part of the Common Area.
Section 3. Annual Assessments. After consideration of
current maintenance costs and future needs of the Association, the Board
of Directors may fix a regular flat assessment upon a monthly,
quarterly, or annual basis. Any annual assessment paid within 30 days of
the date billed shall be entitled to a three percent discount.
Section 4. Special Assessments for Capital Improvements. In
addition to the annual assessments authorized above, the Association may
levy in any assessment year a special assessment applicable to that year
only, for the purpose of defraying in whole or in part the cost of any
construction or reconstruction, unexpected repair or replacement of a
described capital improvement upon the Common Area, including the
necessary fixtures and personal property related thereto, provided that,
except for repairs or replacements, any such assessment for structural
alterations, capital additions or capital improvements reflecting an
expenditure of in excess of $500 shall require the assent of a
two-thirds (2/3) majority of the votes of the members who are voting in
person or by proxy at a meeting duly called for this purpose, written
notice of which shall be sent to all members not less than thirty (30)
days nor more than sixty (60) days in advance of the meeting setting
forth the purpose of the meeting.
Section 5. Uniform Rate of Assessment. Both regular periodic flat
charges and any special assessments must be fixed at a uniform rate for
all Lots and may be collected on an annual, quarterly, or monthly basis
in the discretion of the Directors.
Section 6. Quorum For Any Action Authorized Under Sections 3 and 4. At
the meeting called, as provided in Section 4 hereof, the presence
at the meeting of members or of proxies entitled to cast sixty percent
(60%) of all the votes of the membership shall constitute a quorum. If
the required quorum is not forthcoming at any meeting, another meeting
may be called, subject to the requirement of notice set forth in
Sections 3 and 4, and the required quorum at such subsequent meeting
hall be one-half of the required quorum at the preceding meeting. No
such subsequent meeting shall be held more than sixty (60) days
following the date of the meeting at which no quorum was forthcoming.
Section 7. Date of Commencement of Annual Assessments. Due
Dates. All Lots shall be subject to the annual or monthly
assessments provided for herein on the date specified by the Board of
Directors. The Board of Directors shall fix the amount of the regular
assessment at least thirty (30) days in advance of each assessment
period. Written notice of the assessment shall be sent to every owner
subject thereto. The due dates shall be established by the Board of
Directors. When Declarant has sold ninety percent (90%) of the Lots it
shall advise the Association in writing.
Section 8. Effect of Nonpayment of Assessments:
Remedies of the Association. Any assessments
which are not paid when due shall be delinquent. If the assessment is
not paid within thirty (30) days after the due date, the assessment
shall bear interest from the date of delinquency at the rate of six
percent (6%) per annum. The Secretary of the said Association shall file
in the office of the Director of Records, County Clerk, or appropriate
recorder of conveyances of Deschutes County, state of Oregon, within
thirty (30) days after delinquency, a statement of the amount of any
such charges or assessments, together with interest as aforesaid, which
have become delinquent with respect to any Lot on said property, and
upon payment in full thereof, shall execute and file a proper release of
the lien securing the same. The aggregate amount of such assessments,
together with interest, costs, and expenses and a reasonable attorney’s
fee for the filing and enforcement thereof, shall constitute a lien on
the Lot, with respect to which it is fixed from the date the note of
delinquency thereof is filed in the office of said Director of Records
or County Clerk, or other appropriate recording office until the same
has been paid or released as herein provided. Such lien may be enforced
by said Association in the manner provided by law with respect to liens
upon real property. The owner of said property at the time said
assessment is levied shall be personally liable for the expenses, costs,
and disbursements, including reasonable attorney’s fees of the Declarant
or of the Association, as the case may be, of processing and, if
necessary, enforcing such liens, all of which expense, costs,
disbursements, and attorney’s fees shall be secured by said lien,
including fees on appeal, and such Owner at the time such assessment is
levied, shall also be liable for any deficiency remaining unpaid after
any foreclosure sale. No owner may waive or otherwise escape liability
for the assessments provided for herein by non-use of the Common Area or
abandonment of his dwelling unit, Lot, or building site.
Section 9. Subordination of the Lien to Mortgages. The lien
of the assessments provided for herein shall be inferior, junior, and
subordinate to the lien of all mortgages and trust deeds now or
hereafter placed upon said property or any part thereof. Sale or
transfer of any Lot shall not affect the assessment lien. However, the
sale or transfer of any Lot which is subject to any mortgage or trust
deed, pursuant to a decree of foreclosure under such mortgage or any
proceeding in lieu of foreclosure thereof, shall extinguish the lien of
such assessments as to amounts thereof which became due prior to such
sale or transfer; and such lien shall attach to the net proceeds of
sale, if any, remaining after such mortgages and other prior liens and
charges have been satisfied. No sale or transfer shall relieve such Lot
from liability for any assessments thereafter becoming due or from the
RESTRICTION ON USE OF PROPERTY
Section 1. Use and Occupancy of Private Areas. Each owner shall be
entitled to the exclusive use and benefit of each lot owned by him,
except as otherwise expressly provided herein. Each lot shall be used
for residential purposes only, nor shall more than one detached single
family dwelling not to exceed two (2) stories in height and not more
than one triple garage or carport and one accessory building such as a
workshop be constructed or placed upon each Lot in the subdivision.
Section 2. Driveways. All driveways must be composed of asphalt.
Section 3. Floor Area. The floor area of constructed residences shall
not be less than 1100 square feet exclusive of one story porches and
Section 4. Type of Buildings. Roofs must be of wood shingle or shake,
vitreous clay tile or I.C.B.O. approval equal tile. All buildings,
fences, and improvements must be constructed in workmanlike manner and
kept in a condition of good repair. Exposed portion of foundation must
be painted or sided if more than 12” above the ground. Pumice or
concrete block foundations shall not be allowed.
Section 5. Setbacks. Setback lines shall be at least twenty-five (25)
feet back from all Lot lines to any structure upon the Lot with the
exception of a fence, not to exceed 72 inches in height. Fences must be
constructed of properly finished material and shall harmonzie with the
Section 6. No Subdividing. No lot shall be subdivided.
Section 7. Maintenance of Lots. Each lot and its improvements
shall be maintained in a clean and attractive condition, in good repair,
and in such fashion as not to create a fire hazard.
Section 8. Appearance. All garbage, trash, cuttings, refuse, refuse or
garbage containers, fuel tanks, clothes drying apparatus or lines, and
other service facilities shall be screened from view from neighboring
lots and common areas.
Section 9. Utilities. No above-ground utilities, pipes, or
wires shall be used to connect improvements with supplying facilities.
Section 10. Offensive or Commercial Activities. No offensive
or commercial activity shall be carried on in any lot nor shall anything
be placed or constructed on any lot or anything done on a lot which
interferes with or jeopardizes the enjoyment of other lots or common
Section 11. View. The height of improvements or vegetation and trees on
a lot shall not materially restrict the view of other lot owners. This
section is not to be read as justification to create views not present
when the lot was originally purchased.
Section 12. Independent Water System Prohibited. Independent water wells
and systems are prohibited without the consent of the Association.
Section 13. Parking. A minimum of two parking places must be
provided for each lot.
Section 14. Rules and Regulations. All land owners
must comply with the laws and regulations of the state of Oregon, county
of Deschutes, and any municipality applicable to fire protection,
building construction, water, sanitation, and public health.
Section 15. Mobile homes. Mobile homes are not to be permitted for use
as a residential or accessory building on any lot in the
Section 16. Trees. The cutting or removal of living trees will only be
permitted where necessary for the construction of buildings or thinning
for the beautification of the property. Such cutting or removal must be
approved by the Association, or by a committee designated by the
Association, before it is actually begun. A plan showing the lot,
location, and identification of the tree or trees to be cut or removed
must be submitted to the Association or its designated committee at
least 30 days in advance of the intended cutting or removal date.
Failure of the Association or its designated committee to respond within
25 days after the receipt of such plan shall be deemed approval.
Section 17. Household Pets. No animals other than domestic
household pets shall be kept on any part of said property and household
pets shall be under the control of their owners at all times.
Section 18. Septic Tanks. Septic tanks and drain-fields must meet
County Health Department and Oregon Department of Environmental
Section 19. Use of Vehicles. No motorized vehicles other
than automobiles may be operated on property without prior approval of
the Board of Directors of the Association.
Section 20. Use of Firearms. No firearms shall be discharged
on the property.
Section 1. Enforcement. The Association, or any owners or
the owner of any recorded mortgage upon any part of Said Property, shall
have the right to enforce, by any proceeding at law or in equity, all
restrictions, conditions, covenants, reservations, liens, and charges
now or hereafter imposed by the provisions of this Declaration. Failure
by the Association, or by any Owner, to enforce any covenant or
restriction herein contained shall in no event be deemed a waiver of the
right to do so thereafter. If any owner constructs or permits to be
constructed on his property any improvement or allows the condition of
his property to violate any provision of this Declaration the
Association may, no sooner than 60 days after delivery to such owner of
written notice of the violation enter upon the offending property and
remove the cause of such violation, or alter repair, or change the item
which is in violation of such Declaration in such manner as to make it
conform thereto with the reasonable cost of such action to be a charge
against the owner’s land.
Section 2. Severability. Invalidation of any one of these covenants or
restrictions by judgment or court order shall in nowise affect any other
provisions which shall remain in full force and effect.
Section 3. Amendment. The covenants and restrictions of this Declaration
shall run with and bind the land, and shall inure to the benefit of and
be enforceable by the Association, or the Owner of any Lot subject to
this Declaration, their respective legal representatives, heirs,
successors, and assigns, for a term of twenty-five (25) years from the
date this Declaration is recorded, after which time said covenants shall
he automatically extended for successive periods of ten (10) years. Any
of the covenants and restrictions of this Declaration except the
easements herein granted may be amended during the first twenty-five
(25) year period by an instrument siqned by not less than 75 percent of
the Lot Owners. All such amendments must be recorded in the appropriate
Deed Records of Deschutes County, Oregon, to be effective.
Section 4. No Right of Reversion. Nothing herein contained in this
Declaration, or in any form of deed which may be used by Declarant, or
its successors or assigns, in selling said property, or any part
thereof, shall be deemed to vest or reserve in Declarant or the
Association any right of reversion or re-entry for breach or violation
of any one or more of the provisions hereof.
Section 5. Books and Records. The books and records of the
Association, upon demand in writing, stating the purpose thereof, may be
inspected by any member, or his attorney or agent, for any proper
purpose, at any reasonable time.
Section 6. Benefit of Provisions; Waiver. The provisions
contained in this Declaration bind and inure to the benefit of and be
enforceable by Declarant, the Association, and the Owner or owners of
any portion of said property, and their heirs and assigns, and each of
their legal representatives, and failure by Declarant or by the
Association or by any of the property owners or their legal
representatives, heirs, successors, or assigns, to enforce any of such
conditions, restrictions or charges herein contained shall in no event
be deemed a waiver of the right to do so.