Swiss Village East
A Residential Recreational Community
Declaration and Covenant
Published by: Swiss Village East Property Owners Association, Inc.
THIS DECLARATION, BY MID-WEST RESORT PROPERTIES, INC., a Michigan Corporation, having its principal office and place of business in Mancelona, Michigan, hereinafter called “Developer”’
WHEREAS, Developer is the owner of the real property described in Article II of this Declaration and desires to create thereon a residential community with permanent parks, playgrounds, open spaces, and other common facilities for the benefit of said community; and
WHEREAS, Developer desires to provide for the preservation of the values and amenities in said community and for the maintenance of said parks, playgrounds, open spaces and other common facilities; and, to this end, desires to subject the real property described in Article II together with such additions as may hereafter be made thereto (as provided in Article II) to the covenants, restrictions, easements, charges, and liens, hereinafter set forth, each and all of which is and are for the benefit of said property and each owner thereof; and
WHEREAS, Developer has deemed it desirable, for the efficient preservation of the values and amenities in said community, to create an agency to which should be delegated and assigned the powers of maintaining and administering the community properties and facilities and administering and enforcing the covenants and restrictions and collection and disbursing the assessments and charges hereinafter created; and
B, Developer will cause to be incorporated under the laws of the State of Michigan, as a non-profit corporation, a corporation to be known as Swiss Village East Association, or by some other suitable name, for the purpose of exercising the functions aforesaid, and
WHEREAS, Developer desires to provide for a common water source for the community to be developed, and to establish a rate structure and tap fees for such utility;
NOW, THEREFORE, the Developer declares that the real property described in Article II, and such additions thereto as may hereafter be made pursuant to Article II hereof, is and shall be held, transferred, sold, conveyed and occupied subject to the covenants, restrictions, easements, charges and liens (sometimes referred to as “Covenants and Restrictions” hereinafter set forth:
Article I – Definitions
Section I. The following words when used in this Declaration or any Supplemental Declaration (unless the context shall prohibit) shall have the following meanings:
“Association” shall mean and refer to Swiss Village East Association, or some other suitable name selected for incorporation.
“The Properties” shall mean and refer to all such existing properties and additions thereto, as are subject to this Declaration or any Supplemental Declaration under the provisions of Article II, hereof.
“Common Properties” shall mean and refer to those areas of land shown on any recorded subdivision plat of The Properties and intended to be devoted to the common use and enjoyment of the owners of the Properties.
“Lot” shall mean and refer to any plot of land shown upon any original recorded subdivision map of The Properties with the exception of Common Properties as heretofore defined.
“owner” shall mean and refer to the equitable owner whether one or more persons or entities holding any interest in any lot situated upon The Properties whether such ownership be in fee simple title or as land contract vendee, notwithstanding any applicable theory of the mortgage, shall not mean or refer to the mortgagee except if the mortgagee has acquired title pursuant to foreclosure or any proceeding in lieu of foreclosure.
“Member” shall mean and refer to all those owners who are members of the Association as provided in Article III, Section I hereof.
Article II – Property Subject to this Declaration: Additions Thereto
Section I. Existing Property. The real property which is, and shall be held, transferred, sold, conveyed, and occupied subject to this Declaration is located in Custer-Kearney Township, Antrim County, Michigan, and is more particularly described as follows:
Plats of Mid-West Resort Properties, Inc.
All of which real property shall hereinafter be referred to as “Existing Property”.
Section II. Additional Lands may become subject to this Declaration.
The Developer, its successors and assigns, at any time prior to December 31, 1980, shall have the right to bring additional lands into the scheme of this Declaration. Such proposed additions if made shall become subject to assessment for their just share of Association expenses. The Common Properties within all such additions shall be devoted to the common use and enjoyment of all owners of properties which are subject to this Declaration. The Developer’s rights to bring additional lands into the Declaration shall not be held to bind the Developer, its successors or assigns, to make the proposed additions or to adhere to the scheme in any subsequent development of the land described herein. The additions authorized under this and the succeeding sub-sections shall be made by filing of record a Supplementary Declaration of Covenants and Restrictions with respect to the additional property which shall extend the scheme of the Covenants and Restrictions of this Declaration to such property. Such Supplementary Declaration may contain such complementary 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 properties and as are not inconsistent with the scheme of this Declaration. In no event, however, shall such Supplementary Declaration revoke, modify or add to the Covenants established by this Declaration within the existing property.
Older Additions. Upon approval in writing of the Association pursuant to a vote of its members as provided in its Articles of Incorporation, the owner of any property who desires to add it to the scheme of this Declaration and to subject it to the jurisdiction of the Association, may file of record a Supplementary Declaration of Covenants and Restrictions, as described in subsection (a) hereof.
Mergers. Upon a merger or consolidation of the Association with another association as provided in its Articles of Incorporation, its properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law, be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer the Covenants and Restrictions established by this Declaration within the Existing Property together with the covenants and restrictions established upon any other properties as one scheme. No such merger or consolidation, however, shall effect any revocation, change or addition to the covenants established by this Declaration within the Existing Property except as hereinafter provided.
Article III – Membership and Voting Rights in the Association
Section I. Membership
Every person or entity who holds an equitable interest or an undivided equitable interest in any lot whether as land contract vendee or fee holder being subject to these covenants and to assessment by the Association shall be a member of the Association provided that any such person or entity who holds such interest merely as a security for the performance of an obligation shall not be a member.
Persons not holding an interest in any Lot may become non-voting members of the Association under terms and conditions prescribed by the Board of Directors.
Section II. Voting Rights.
The Association shall have two classes of voting membership.
Class A. Class A members shall be all those owners as defined in Section I with the exception of the Developer. Class A members shall be entitled to one vote for each Lot in which they hold the interests required for membership by Section I. When more than one person holds such interest or interests in any Lot all such persons shall be members, and the vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any such Lot.
Class B. Class B members shall be the Developer. The Class B member shall be entitled to three votes for each Lot in which it holds the interest required for membership by Section I, and for every Living Unit in any Multifamily Structure owned by it until such Unit is first sold or leased, provided that the Class Be membership shall cease and become converted to Class A membership on the happening of any of the following events, whichever occurs earlier:
When the total votes outstanding in the Class A membership equal the total votes outstanding in the Class B membership; or
On December 31, 1975.
From and after the happening of these events, whichever occurs earlier, the Class B member shall be deemed to be a Class A member entitled to one vote foreach Lot in which it holds the interests required for membership under Section I.
Article IV—Property Rights in the Common Properties
Section 1. Members’ Easements and Enjoyment
Subject to the provisions of Article IV in Section 4, every member shall have a right and easement of enjoyment in and to the Common Properties and such easement shall be appurtenant to and shall pass with the title to every Lot.
Section 2. Title of Common Properties. The Developer may retain the legal title to the Common Properties until such time as, in the opinion of the Developer, the Association is able to maintain the same and to meet any existing obligations which may be a lien thereon, notwithstanding any provision herein, the Developer hereby covenants, for itself, its successors and assigns, that it shall convey the Common Properties to the Association not later than January 1, 1976.
Section 3. Improvements of Common Properties. The Developer shall improve the Common Properties during its retention of the legal title by developing parks, recreational facilities, and other like facilities for the use and benefit of the Association. To this end, Developer shall contract and undertake for expenditures on such improvements charging such property with their cost of development, which costs shall become the debt and liability of the Association after title to such properties its conveyed to it.
Section 4. Extent of Members’ Easements. The rights and easements of enjoyment created hereby shall be subject to the following:
The right of the Developer and of the Association, in accordance with its Articles and By-Laws, to borrow money for the purpose of improving the Common Properties and in aid thereof to mortgage said properties. The members’ rights and easements in the Common Properties shall be subordinate to any mortgage given by the Developer or Association as security for funds borrowed for said improvements. Any indebtedness which shall be created for the purpose of making improvements to the Common Properties shall be an obligation of the Association. In the event of a default upon any such mortgage, the lender or mortgagee shall have all the rights afforded under the mortgage or security agreement and under the laws of the State of Michigan, including the right after taking possession of The Properties, to charge admission and other fees as a condition to continued enjoyment by the members, and if necessary to open the enjoyment of such properties to a wider public. If the mortgage indebtedness is satisfied and possession of The Properties returned to the Association, all rights of the members hereunder shall be restored; and
The right of the Association to take such steps as are reasonably necessary to protect the above described properties against foreclosure; and
The right of the Association as provided in its Articles and By-laws, to suspend the enjoyment rights of any member for any period during which any assessment remains unpaid, and for any period not to exceed thirty (30) days for any infraction of its published rules and regulations; and
The right of the Association to charge reasonable admission and other fees for the use of the Common Properties.
Article V -- Covenant for Maintenance Assessments
Section 1. Creation of the Lien and Personal Obligation of Assessments.
The Developer being the owner of all The Properties hereby covenants and each subsequent owner by acceptance of a deed therefore, whether or not it shall be expressed in any such deed or conveyance, be deemed to covenant and agree to pay to the Association: (1) Annual assessments or charges; (2) Special assessments for capital improvements, such assessments to be fixed, established, and collected from time to time as hereinafter provided. The annual and special assessments, together with such interest thereof and costs of collection there of as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon the property against which each assessment is made. Each such assessment, together with such interest thereon and cost of collection thereof as hereinafter provided, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due.
Section 2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively for the purpose of promoting the recreation, health, safety and welfare of the residents in The Properties and in particular for the amortization of improvement and maintenance of properties, services, and facilities devoted to this purpose and related to the use and enjoyment of the Common Properties and of the homes situated upon The Properties, including but not limited to, the payment of taxes and insurance thereon and repair replacement and additions thereto, and for the cost of labor, equipment, materials, management and supervision thereof.
Section 3. Basis and Amount of Annual Assessments. The annual assessment shall be
$60.00 per lot for all owners as of April 1, 1970
80.00 per lot for all owners as of April 1, 1971
100.00 per lot for all owners as of April 1, 1972
The Board of Directors of the Association may, after consideration of current maintenance costs and future needs of the Association, fix the actual assessment for any year whether before or after January 1, 1975, at a lesser amount.
Section 4. Special Assessment for Capital Improvements. In addition to the annual assessments authorized by Section 3 hereof, 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 construction or reconstruction, unexpected repair or replacement of a described capital improvement upon the Common Properties, including the necessary fixtures and personal property related thereto, provided any such assessment shall have the affirmative of two-thirds (2/3) of the votes of all voting 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 at least thirty (30) days in advance and shall set forth the purpose of the meeting.
Section 5. Change in Basis and Maximum of Annual Assessments. Subject to the limitations of Section 3 hereof, and for the periods therein specified, the Association may change the maximum and basis of the assessments fixed by Section 3 hereof prospectively for any such period provided that any such change shall have the assent of two-thirds (2/3) of the voting 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 at least thirty (30) days in advance and shall set forth the purpose of the meeting, provided further that the limitations of Section 3 hereof shall not apply to any change in the maximum and basis of the assessments undertaken as a incident to a merger or consolidation in which the Association is authorized to participate under its Articles of Incorporation and under Article II, Section 2, hereof.
Section 6. Quorum for Any Action Authorized Under Sections 4 and 5. The Quorum required for any action authorized by Sections 4 and 5 hereof shall be as follows:
At the first meeting called, as provided in Section 4 and 5 hereof, the presence at the meeting of Members or of proxies, entitled to cast sixty (60) percent of all the votes of the membership shall constitute a quorum. If the required quorum is not forthcoming at any meeting, another meeting shall be called, subject to the notice requirement set forth in Section 4 and 5, and the required quorum at any such subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting, provided that subsequent meeting shall be held more than sixty (60) days following the preceding meeting.
Section 7. Date of Commencement of Annual Assessments: Due Dates. The annual assessments provided for herein shall commence on the first day of April, 1969. The assessment for each succeeding year shall become due and payable on the first day of April of each year. No adjustments or pro-rations of assessments shall be made by the Association. For the purposes of levying the assessment, assessments shall be considered as paid in advance and shall be levied against any property which is subject to this Declaration or Supplementary Declarations. The due date of any special assessment under Section 4 hereof shall be fixed in the Resolution authorizing such assessment.
Section 8. Duties of the Board of Directors. The Board of Directors of the Association shall prepare a roster of the properties and assessment applicable thereto at least thirty (30) days in advance of such assessment due date. Such assessment roster shall be kept in the office of the Association and shall be open to inspection by any owner.
Written notice of the assessment shall thereupon be sent to every owner subject thereto.
The Association shall upon demand at any time furnish to any owner liable for said assessment a certificate in writing signed by an officer of the Association, setting forth whether said assessment has been paid. Such certificate shall be conclusive evidence of payment of any assessment therein stated to have been paid.
Section 9. Effect of Non-Payment of Assessment: The personal obligation of the Owner; The Lien; Remedies of Association. If the assessments are not paid on the date when due(being the dates specified in Section 7 hereof), then such assessment shall become delinquent and shall, together with such interest thereon and cost of collection thereof as hereinafter provided, thereupon become a continuing lien o the property which shall bind such property in the hands of the then owner, his heirs, devisees, personal representatives and assigns. The personal obligations of the then owner to pay such assessment, however, shall remain his personal obligation for the statutory period and shall not pass to his successors in title unless expressly assumed by them.
If the assessment is not paid within thirty (30) days after the delinquency date, a penalty fee not to exceed $5.00 shall be added thereto and from the date interest at the rate of two (2%) per cent per month may be added to the delinquent balance and penalty and the Association may bring an action at law against the owner personally obligated to pay the same or to foreclose the lien against the property There shall be added to such assessment, delinquent fee and interest and the cost of preparing and filing Complaint in such action and in the event that Judgment is obtained, such Judgment shall include interest on the total amount as above provided and reasonable attorney’s fee to be fixed by the court together with the costs of the action.
Section 10. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any mortgage or mortgages now or hereafter placed upon the properties subject to assessment; provided, however, that such subordination shall apply only to the assessments which have become due and payable prior to a sale or transfer of such property pursuant to a decree of foreclosure, or any other proceeding in lieu of foreclosure. Such sale or transfer shall not relieve such property from liability for any assessments thereafter becoming due, nor from the lien of any such subsequent assessment.
Section 11. Exempt property. The following property subject to this declaration shall be exempted from the assessments, charge and lien created herein: (a) all properties to the extent of any easement or other interest therein dedicated and accepted by the local public authority and devoted to public use; (b) all Common Properties as defined in Article 1, Section 1 hereof; (c) all properties exempted from taxation by the laws of the State of Michigan, upon the terms and to the extent of such legal exemption; (d) all properties whose ownership is still with Developer.
Notwithstanding any provisions herein, no land or improvements devoted to dwelling use shall be exempt from said assessments, charges or liens.
Article VI – Water Service
Section 1. Availability Charge. The Owner of each lot in The Properties, his heirs, administrators, executors, grantees, successors, assigns, lessees, and/or licensees agrees to pay, to a privately owned water utility duly authorized by the Michigan Public Service Commission in accordance with the laws of the State of Michigan to devote to public use to operate a waterworks system for the use and benefit of The Properties and The Common Properties, a minimum monthly availability charge of Five ($5.00) Dollars for water and water service commencing upon the availability of water in a main in front of owner’s lot and continuing thereafter so long as water is available for use whether or not tap or connection is made to a system main and whether or not said Owner actually uses or takes water. The amount of said availability charge and other matters shall be as provided in Tariffs or Rate Schedules and Regulations and Conditions of service published and filed by said utility with said Michigan Public Service Commission, in accordance with passed to file or formally approved by said Commission as the then effective Rate Schedule or Tariff of said Public Utility. Provided, however, that such utility, with the approval of the Michigan Public Service Commission, shall have the right to install meters for service to each lot and to charge for water service in accordance with rates filed and approved by such Commission.
Section 2. Tap fee. Upon written request in accordance with said Regulations and Conditions of Service, and payment to said public utility of not less than Two Hundred and Fifty ($250) Dollars in cash or such other amount approved by said Michigan Public Service Commission, or its successor, a tap to a system main and connection to the lot line will be installed. The amount of said availability charge and other charges, including changes in the structure of said charge or rate from an availability charge to another type of rate or rate of structure for water, are subject to change by order of the Michigan Public Service Commission in accordance with then existing law. Unpaid charges shall become a lien upon the lot or lots served as of the same become due.