Page 4 of 11
4.1 Easement for Use of Common Area.
4.1.1 Every Owner, Lessee and Resident shall have a non-exclusive right and easement of use and enjoyment in and to the Common Area (including, but not limited to, the right to use any streets which may be part of the Common Area for ingress and egress to the Owner’s Lot) which right shall be appurtenant to and shall pass with the title to every Lot, subject to the following:
(i) The right of the Association to dedicate, convey, transfer or encumber the Common Area as provided in Section 5.13 of this Declaration.
(ii) The right of the Board to change the use of a Common Area as provided in Section 5.14.
(iii) The rights and easements granted to the Declarant and Builders in this Declaration, including, without limitation, the rights and easements granted to the Declarant and Builders in Sections 4.3 and 4.4 of this Declaration.
(iv) The right of the Board to impose reasonable Membership requirements and charge reasonable Special Use Fees for the use of any facility situated on the Common Area.
(v) The right of the Board to organize and operate events and programs which utilize the facilities within the Winfield Resort for the purpose of generating funds for the Association, and the right of the Board to exclude Members from using such facilities during special events.
(vi) The right of the Association to regulate the use of the Common Area through the Association Rules and to prohibit access to such portions of the Common Area, such as landscaped areas, not intended for use by the Owners, Lessees or Residents.
(vii) Subject to the provisions of Sections 5.17 and 5.18, the right of the Association to operate the Restaurant as a public facility and to rent or lease the Restaurant, the Tennis Club or any other facility within the Winfield Resort on a short-term or long-term basis to any Person, including, without limitation, the right to permit use of the Tennis Club by the general public, for the purpose of generating funds for the Association.
(viii) The right of the Association to operate any recreational facility within the Winfield Resort through management agreements with Persons designated by the Board.
(ix) The right of the Association, its affiliates or any Restaurant operator to obtain a liquor license for the purpose of selling spirituous liquor within the Winfield Resort.
(x) The right of the Association to suspend the right of an Owner to use the Common Area (other than the right of an Owner and such Owner’s family, tenants and guests to use any streets which are part of the Common Area for ingress or egress to the Owner’s Lot) if such Owner is more than fifteen (15) days delinquent in the payment of Assessments or other amounts due to the Association or if the Owner has violated any other provisions of the Project Documents and has failed to cure such violation within fifteen (15) days after the Association notifies the Owner of the violation. Any suspension of an Owner’s right to use the Common Area shall also extend to the Lessees and Residents of the Owner’s Lot and their guests and invitees.
4.1.2 If a Lot is leased or rented by the Owner thereof, the Lessee and the members of the Lessee’s family residing with such Lessee shall have the right to use the Common Area during the term of the lease, and the Owner of such Lot shall have no right to use the Common Area (other than the right of an Owner to use any streets which are part of the Common Area for ingress or egress to the Owner’s Lot) until the termination or expiration of such lease.
4.2 Utility Easement. There is hereby created an easement upon, across, over and under the Common Area for the benefit of the Declarant and its contractors and the utility companies providing utility service to the Project for reasonable ingress, egress, installation, replacing, repairing or maintaining of all utilities, including, but not limited to, gas, water, sewer, telephone, cable television and electricity. By virtue of this easement, it shall be expressly permissible for the providing utility company to erect and maintain the necessary equipment on the Common Area but no sewers, electrical lines, water lines, or other utility or service lines shall be installed or located on the Common Area except as designed, approved and constructed by the Declarant or as otherwise approved by the Board.
4.3 Declarant’s and Builders’ Use for Sales and Leasing Purposes. Declarant and any Builder shall have the right and an easement to maintain sales or leasing offices, management offices, a design center, model homes and parking areas, for the purpose of accommodating Persons visiting such model homes and sales offices, throughout the Project and to maintain one or more advertising, identification or directional signs on the Common Area or on the Lots owned or leased respectively by Declarant and any Builder while the Declarant and Builders are selling Lots. Declarant reserves the right, for itself and for all Builders, to place model homes, management offices, sales and leasing offices and parking areas on any Lots owned or leased respectively by Declarant and Builders and on any portion of the Common Area in such number, of such size and in such locations as Declarant and Builders deem appropriate. In the event of any conflict or inconsistency between this Section and any other provision of this Declaration, this Section shall control. Notwithstanding anything contained to the contrary in this Section, the rights of any Builder pursuant to this Section shall be subject to review and approval by the Architectural Review Committee.
4.4 Declarant’s and Builders’ Easements. Declarant shall have the right and an easement on and over the Areas of Association Responsibility to construct all Improvements that the Declarant may deem necessary and to use the Areas of Association Responsibility and any Lots or other property within the Project owned by Declarant for construction or renovation related purposes, including the storage of tools, machinery, equipment, building materials, appliances, supplies and fixtures, and the performance of work respecting the Project. The Declarant shall have the right and an easement upon, over, and through the Areas of Association Responsibility as may be reasonably necessary for the purpose of discharging its obligations or exercising the rights granted to or reserved by the Declarant by this Declaration. Any Builder shall have the right and an easement on and over any Lot owned by such Builder for construction or renovation related purposes, including the storage of tools, machinery, equipment, building materials, appliances, supplies and fixtures, as long as such activities have the prior written consent of the Architectural Review Committee. In the event of any conflict or inconsistency between this Section and any other provision of this Declaration, this Section shall control.
4.5 Easement in Favor of Association. The Lots (except for the interior of a Residential Unit or other buildings) are hereby made subject to the following easements in favor of the Association and its directors, officers, agents, employees and independent contractors:
4.5.1 For inspection of the Lots in order to verify the performance by Owners of all items of maintenance and repair for which they are responsible;
4.5.2 For inspection, maintenance, repair and replacement of the Areas of Association Responsibility accessible only from such Lots;
4.5.3 For correction of emergency conditions in, under, upon or over one
or more Lots;
4.5.4 For the purpose of enabling the Association, the Board, the Architectural Review Committee or any other committees appointed by the Board to exercise and discharge their respective rights, powers and duties under the Project Documents;
4.5.5 For inspection of the Lots in order to verify that the provisions of the Project Documents are being complied with by the Owners, their guests, tenants, invitees and the other occupants of a Lot.
4.6 Easement for Access to Restaurant and Tennis Club. The private roadway known as Winfield Drive is hereby burdened with a non-exclusive easement permitting any operator or lessee of the Restaurant, the Tennis Club or any other facility within the Winfield Resort, their invitees, contractors, employees, agents and guests to have the right of access over Winfield Drive to permit ingress and egress to and from the Restaurant and Tennis Club and other facilities from and to Westland Drive and Dove Valley Road.
4.7 Easement for Trail System. Declarant may construct a trail which will be a part of a trail system (the “Trail System”) throughout the Project on any portion of a Lot where, on a Plat or other Recorded document (i) there is designated “NAOS” or “Natural Area Open Space,” or (ii) an easement for landscaping or trail purposes has been granted. Declarant shall construct the Trail System in accordance with applicable laws and ordinances governing NAGS areas. Each portion of a Lot on which the Trail System has been constructed shall be subject to a non-exclusive easement in favor of every Owner, Lessee and Resident for the use and enjoyment of the Trail System, but only to the extent that such Trail System exists upon such Lot. No Owner, Resident or Lessee shall have any right to use any other portion of such Lot except for that portion of the Lot upon which the Trail System is located.