SECOND AMENDMENT TO THE AMENDED DECLARATION OF COVENANTS, EASEMENTS, CONDITIONS AND RESTRICTIONS FOR BURTON CROSSING
1. Article VIII, Section K is herby deleted in it entirety and replace with the Following:
Section K. Vehicles. The Board shall have the power to create and enforce reasonable rules regarding the storing and parking of any vehicle within the Real Estate. The Board shall be entitled to remove any vehicle violating any rule created by the Board. No truck, commercial vehicle, boat, trailer, recreational vehicle, van, camper, machinery, or mobile home shall be parked or stored, unless parked or stored wholly inside a garage or other approved structure and shielded from view, for more than forty-eight (48) hours in any thirty (30) days period in any area of the Real Estate. The word trailer shall include, trailer coach, house trailer, mobile home, automobile trailer, camp car, camper, fifth wheel, or any other similar type of vehicle, regardless if it is self-propelled or not. Trailer shall also include any vehicle that could be used for the storage or conveyance of tools machinery, regardless if it has tires, wheels, or is simply resting on its own foundation. The word camper shall also include any type of vehicle that once constructed or as existing in its present state, could be used as occupancy. Truck shall mean any type of truck other than a truck classified as a light truck and is used as a personal automobile for the Owner or the Owner’s immediate family. A van shall mean any van over than a mini-van or regular sized SUV and is used as a personal automobile by the Owner or the Owner’s immediate family. Commercial vehicle shall include any automobile with commercial decals, logos, names, or other business advertisements on it. Commercial vehicle shall also include any vehicle with exterior racks for equipment, or equipment on the exterior of the vehicle.
2. A new Article XI shall be added to the Declaration and shall state as follows:
Article XI. Leasing Restrictions: The Association’s members recognize that an owner-occupant is both psychologically and financially invested in a home to a greater extent than a renter, and thus owner occupants maintain their property better than renters generally. The Association’s members wish to insure that the residents within Burton Crossing share the same proprietary interest in and respect of the Lots and the Common Areas, and to encourage residents to not only maintain property values but also to improve them by recognizing that owner occupants have more incentive to do so compared to non-owner occupants. Thus, the provisions of this Article XI shall be applicable.
A. Ten Year Waiting Period. Any Owner who wishes to lease or rent their Lot, must first own and occupy the Lot for a period of ten (10) consecutive years. After such time, said Lot will be eligible to be leased if all other conditions of this Article XI are satisfied and provided further that the Owner is not delinquent in the payment of any assessments or other charges to the Association. Notwithstanding this Subsection A, if an Owner wishes to lease a Lot prior to the end of the ten (10) year waiting period, the Owner may apply to the Board of Directors for a waiver. The Board may, in writing, approve an earlier lease if the Owner establishes to the Board’s satisfaction that the waiting period will cause undue hardship in the manner as defined in Subsection C above. If a Lot enjoys status as a “Grandfathered Lot” as described in Subsection B, then the ten (10) year waiting period will not apply as long as the Lot is considered to be a “Grandfathered Lot.”
B. Effective Date of “Rental Cap” on Existing Rentals. Within fifteen (15) days after the date on which this Amendment is recorded in the Office of the Recorder of Marion County (the “Recording Date”), the Board of Directors shall provide written notice to all Owners setting forth the Recording Date. The Rental Cap provisions of subsection A shall not apply to the Owner of any Lot in Burton Crossing which, as of the Recording Date, is rented or leased by its Owner to a non-owner occupant, so long as the Owner-landlord mails or otherwise delivers to the Board (at the address shown in the notice of the Recording Date), within sixty (60) days after the Recording Date, a copy of each executed lease of such Owner-landlord’s Lot (or Lots) which is in effect as of the Recording Date. Those Lots will be referred to as “Grandfathered Lots.” Such lease copies may have the rental amount deleted, together with any personal identifying information such as social security numbers. The Owners of Grandfathered Lots shall not be subject to the provisions of subsection A but shall be subject to the remaining provisions of this Article XI. However, when the legal owners of record of any Grandfathered Lot sells, transfers or conveys such Lot(s) to another Owner after the Recording Date, such Lot(s) shall immediately become subject to the Rental Cap.
If any such Owner-landlord of a leased or rented Lot fails to deliver a copy of such pre-Recording Date lease within said sixty-day period to the Board of Directors, that will result in said Owner-landlord’s Lot being subject to the ten (10) year waiting period (from and after the date of expiration of such pre-Recording Date lease). However, in no event shall the ten (10) year waiting period apply to any lease executed prior to the Recording Date or to any renewals thereof provided for in any such leases, so long as the Lot continues to be occupied by one or more of the non-Owner occupants in possession of the Lot as of the Recording Date.
C. Hardship Exceptions and Waiver. Notwithstanding subsection A above, if an Owner wishes to rent or lease his or her Lot, but the Owner has not owned and occupied the Lot for the required ten (10) years, the Owner may request the Board of Directors to waive the “Waiting Period” and approve a proposed lease if the Owner establishes to the Board’s satisfaction that the “Waiting Period” will cause undue hardship. If a majority of the entire Board of Directors approves in writing of the Owner’s request, the Board of Directors shall permit the Owner to rent or lease said Lot, subject to any further conditions or limitations imposed by the Board, in the Board’s discretion, but only if the Owner satisfies all other requirements of this Article XI. Such decision shall be at the sole discretion of the Board. Examples of an undue hardship include:
(1) death, dissolution or liquidation of an Owner;
(2) divorce or marriage of an Owner;
(3) necessary relocation of the residence of an Owner to a point outside of a fifty (50) mile radius of the perimeter of Burton Crossing due to a change of employment or retirement of at least one (1) of such Owners;
(4) necessary relocation of the residence of an Owner due to mental or physical infirmity or disability of at least one (1) of such Owners;
(5) difficult real estate market conditions;
(6) other similar circumstances.
D. General Lease Conditions. All leases, including renewals, shall be in writing, and no lease shall be entered into for an initial term of less than one (1) year without the prior written approval of the Board of Directors. However, in no event will an Owner be permitted to rent his or her Lot for an initial term of thirty (30) days or less. No portion of any Lot other than the entire Lot shall be leased for any period. No subleasing shall be permitted. All leases shall be made expressly subject and subordinate in all respects to the terms of this Declaration, the By-Laws, Articles of Incorporation, and any rules and regulations promulgated by the Board of Directors, as amended, to the same extent as if the tenant were an Owner and a member of the Association, and shall provide for direct action by the Association and/or any Owner against the tenant with or without joinder of the Owner of such Lot. If such provision is not in the lease, it will be deemed to be in such lease. The Owner shall supply copies of such legal documents to the tenants prior to the effective date of the lease. The Owner cannot be delinquent in the payment of any assessments or other charges to the Association. If at any time an Owner becomes delinquent, the Board shall have the right to revoke said Owner’s right to lease the Owner’s Lot, even if during the term of a lease. All Owners who do not reside in the home shall provide the Board of Directors with the name of the tenant(s) and any other residents living in the home, together with the phone number of the tenant(s). Also, the Owner must provide the Board of Directors or its managing agent with the Owner’s contact information such as address, phone number and email. To be eligible to lease his or her Lot, the Owner cannot be in violation of any provisions of this Declaration, the By-Laws, or the rules and regulations adopted by the Board, all as amended. If at any time an Owner violates any such provisions through the actions or omissions of the Owner’s tenant, the Board shall have the right to revoke said Owner’s right to lease the Owner’s Lot, even if during the term of a lease.
E. Owner is Still Liable. No lease shall provide, or be interpreted or construed to provide, for a release of the Owner from his or her responsibility to the Association and the other Owners for compliance with the provisions of the Declaration, the Articles of Incorporation, these By-Laws, and any rules and regulations promulgated by the Board of Directors, or from the Owner's liability to the Association for payments of assessments or any other charges.
F. Association’s Copy of Lease. A copy of each executed lease by an Owner which identifies the tenant (but which may have the rental amount deleted as well as any personal identifying information) shall be provided to the Board of Directors by the Owner within thirty (30) days after execution.
G. Violations. Any lease or attempted lease of a Lot in violation of the provisions of this Article XI shall be voidable at the election of the Association’s Board of Directors or any other Owner, except that neither party to such lease may assert this provision of this Article XI to avoid its obligations thereunder. In the event of a violation, the Board of Directors, on behalf of the Association, or any Owner, shall have the right to exercise any and all available remedies at law or equity.
H. Institutional Mortgagees. The provisions set forth in this Article XI shall not apply to any institutional mortgagee of any Lot which comes into possession of the Lot by reason of any remedies provided by law or in equity or in such mortgage or as a result of a foreclosure sale or other judicial sale or as a result of any proceeding, arrangement, or deed in lieu of foreclosure. However, when a Lot is sold or conveyed by such an institutional mortgagee to a subsequent purchaser, that subsequent purchaser shall be bound by the provisions of this Article XI.
I. Burden of Proof. Anything to the contrary herein notwithstanding, if at any time a Lot is not occupied by one of the Owners thereof, there shall be a presumption that the Lot is being leased and subject to the provisions of this Article XI and the Owners shall have the burden of proving to the satisfaction of the Board of Directors that the occupancy is not in violation of the terms of this Article XI, including but not limited to the delivery to the Board of directors of a written statement of the nature and circumstances of the occupancy and any written document or memorandum that is the legal basis for the occupancy. For purposes of this Article XI and this Subsection I, any occupancy (including occupancy pursuant to a rent-to-buy contract or similar arrangement or pursuant to any option to purchase) by anyone other than an Owner shall be deemed to be a lease, rental or other similar arrangement.
J. Certain Lots Not Counted as Rentals. The provisions of this Article XI will not apply to any situation where a Lot is occupied by one or more family members of the Lot Owner. Thus, this kind of occupancy will not be considered a “rental”. Likewise, any Lot owned by a Trust or an Estate will not be considered a “rental” if the resident is (i) the Trustee, (ii) the Fiduciary of an Estate, or (iii) a beneficiary of the Trust or Estate.