South 7 Haciendas
The Haciendas has its own homeowner association that is separate from SHHA.
These covenants, as presented on the Sandia Heights Homeowners Association's (SHHA's) website, or distributed by SHHA, are solely for the user's convenience, and might not be the official recorded covenants filed with Bernalillo County. There might be changes, updates, and amendments to the attached covenants that an individual Unit has made and recorded with the County but has not provided to SHHA. SHHA accepts no responsibility for any omissions, updates, or errors made in typing and formatting the covenants for use on its website or for other distribution. In the event of any dispute, the covenants formally filed with Bernalillo County will be the final authority.
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR SANDIA HACIENDAS SUBDIVISION, UNIT 2
This Declaration of Covenants, Conditions, Reservations and Restrictions is made this 1st day of September, 1994, by SUNSHINE CONSTRUCTION, INC., a New Mexico Corporation ("Developer")
WHEREAS, Developer is the owner of the property described in Article II of this Declaration situated in Bernalillo County, State of New Mexico; and
WHEREAS, Developer has established a general plan for the improvement and development of the property and desires to provide for the preservation of the values and amenities of the property by subjecting the property to the covenants, conditions, reservations, restrictions and easements hereinafter set forth, each and all of which is and are for the benefit of the property and each owner of the property or any part thereof, and each successor in interest to Developer and any such owner.
NOW, THEREFORE, Developer declares that the property hereinafter described is and shall be held, transferred, sold, conveyed, and occupied subject to the following covenants, conditions, reservations, easements and restrictions (hereinafter sometimes referred to as "Covenants"). All covenants are for the benefit of the property and shall run with the land and shall be binding upon and inure to the benefit of Developer, each owner of the property, or any part thereof, and each successor in interest of Developer and any such owner.
Section 1.1 The following words when used in this Declaration shall have the following meaning:
a. "Lot" means any one of the Lots numbered 18 through 43 SANDIA HACIENDAS SUBDIVISION, UNIT 2, as same are shown and designated on the Plat thereof, filed in the records of Bernalillo County, New Mexico on April 12, 1994.
b. "Declaration" means this declaration of covenants, conditions, reservations, easements and restrictions, and any amendment or modification thereto.
c. "Residence" means any building or a portion of the building situated on a building site designed and intended for use or occupancy as a single family residence.
d. "Owner" means the persons or entities, including Developer, holding legal title or beneficial ownership of the fee, including the purchaser under an installment sales contract of a Lot and any Residence located thereon, or a lessee of a Lot pursuant to a leasehold agreement of a term of twenty (20) years or greater. Owner shall not include a seller under an installment sales contract of a Lot and any Residence located thereon, or the lessor of a Lot pursuant to a leasehold agreement with a term of twenty (20) years or greater.
e. "Development" means all of the real property described in Article II.
f. "Setback" means the shortest distance between a Residence or structure and the property line.
g. "Improvements" shall include, without limitation, buildings, outbuildings, (including sheds and storage buildings), roads, driveways, parking areas, fences, retaining walls, stairs, decks, windbreaks, poles, antennas, signs, utility or communication installations, (whether above or underground), landscaping and any structure and excavation of any type or kind.
h. "Association" shall mean the owners¹ association which shall be organized as a non-profit corporation for purposes of managing, maintaining and owning improvements and/or property within the Development.
i. "Road" shall mean the road easement to be created across, through and over portions of the Development.
j. "Common Areas" shall mean the portions of the Development which are designated as Common Areas on the Plat and including other property designated as common area which is made subject to the Declaration.
k. "Plat" shall mean the plat of the SANDIA HACIENDAS SUBDIVISION, UNIT 2, filed April 12, 1994.
Property Subject to Declaration
The following described property situated in the County of Bernalillo, State of New Mexico is made subject to all easements, covenants, conditions, reservations and restrictions set forth in this Declaration:
The real property described in Exhibit "B" attached hereto and incorporated herein by reference. Additional property may be made subject to the Declaration upon the unanimous approval of the Owners.
Section 3.1 All Residences and Lots within the Development are hereby restricted to townhouses for single family residential use with a minimum of one thousand six hundred (1600) square feet of enclosed heated living area, exclusive of carports, garages, basements and non-enclosed porches or patios. Each Residence shall be occupied by no more than one (1) family and no Residence shall be used as a boarding house or otherwise divided into apartments or rooms for rental purposes. This restriction shall not prevent the rental or lease or the entire Residence by the owner thereof, but any such rental or lease must be .by a written agreement which requires the tenant to observe this Declaration and makes a breach of this Declaration a breach of such rental agreement or lease. No Residence may be leased or rented for a period of less than ninety (90) days.
Section 3.2 All construction upon any Lot (including driveways and walkways) shall be new construction, shall conform to rules adopted by the Architectural Control Committee ("Committee") established pursuant to Article VI below, and all construction shall be completed within eight (8) months after ground is broken for that new construction or remodeling. No existing building or structure may be moved from another site to a Lot.
Section 3.3 No temporary house, trailer, tent, garage or other outbuilding shall be used on any Lot at any time as a Residence, either temporarily or permanently, and no Residence placed or erected on any part of any Lot shall be occupied in any manner at any time prior to it being fully completed provided, however, that during the actual construction or alteration of a Residence on any Lot, necessary temporary buildings for storage of material, etc., may be erected and maintained by the person doing such work.
Section 3.4 The following rules govern the keeping of pets in the Development:
a. No animals, livestock, horses or poultry of any kind shall be raised, bred or kept on or in any Residence or Lot, except a maximum of two (2) domestic dogs and two (2) domestic cats, per Lot, may be kept and maintained in a Residence or Lot provided they are not kept, bred or maintained for any commercial or hobby breeding purposes.
b. All provisions of the Bernalillo County Animal Control Ordinance, as amended, or any other municipal ordinance which subsequently applies to the Lots, will apply in the Development and are adopted by reference and incorporated herein as rules of the Development.
c. Except when on its owner's Lot, an animal permitted to be maintained pursuant to Section 3.4 must be carried or kept an a leash and attended by a reasonable person.
d. No dog shall be permitted to bark, howl or make other loud noises for such a time as disturbs the rest or peaceful enjoyment of the other Owners.
Section 3.5 No vehicles of any type shall be permanently or semi-permanently parked for purposes of repairs, reconstruction or storage on any portion of a Lot visible from other Residences or the Road. A vehicle shall be deemed parked for repairs, reconstruction, or storage if it is not driven off the Lot for fourteen (14) consecutive days.
Section 3.6 Except temporarily during the construction of any improvements, all utility lines, including but not limited to electrical, gas, telephone, cable television, and other communication systems shall be underground, except for access ports and above-ground transformers.
Section 3.7 No trucks or other commercial vehicles, motorcycles, campers, mobile homes, motorhomes, boats, trailers or similar vehicles shall be kept, placed or maintained on any Lot at any time, unless enclosed within garages so as not to be visible from other Lots, except where required for the limited purposes of building, repairing, refinishing, or maintaining the Lot or a Residence on the Lot, for the purpose of moving household goods or other necessary or customary furnishings, equipment or supplies in or out of the Lot.
Section 3.8 No oil drilling, oil development, oil refining, oil derrick or other structure designed for use in drilling for oil or natural gas, quarrying or mining operations of any kind shall be permitted upon or in any Lot, nor shall oil wells, tanks, mineral excavations or shafts be permitted upon or in any Lot.
Section 3.9 No garbage, trash, rubbish, weeds, clippings from trees, shrubs or lawns, ashes or other refuse may be thrown, dumped or allowed to accumulate on any Lot. Provided however, non-commercial compost piles for use in gardens which do not create a nuisance to the Owners of adjoining Lots may be maintained if screened from view from the Road and other Lots. All garbage, trash and rubbish shall be placed and kept in covered sanitary containers screened from view from the Road and other Lots and shall be regularly removed from each Residence or Lot. Refuse placed on the Road for pickup shall not be placed in open view more than twenty-four (24) hours before the scheduled pick-up time. There shall be no burning of refuse out-of-doors. No incinerators or other devices for the burning of refuse indoors shall be constructed, installed or used by any person except in conformity with law and as approved by the Committee. The refuse collection service provided by Sandia Peak Services or their successors or assigns must be used for refuse collection.
Section 3.10 Plans for the installation, placement and maintenance of solar collectors shall be submitted to and approved by the Committee. Solar collectors, air conditioners and air coolers shall be installed so that visibility of such equipment is minimized from the Road and adjoining Residences.
Section 3.11 No exterior radio, television, citizens band, ham or other aerial antenna more than five (5) feet in height, or dish antenna or tower, (or any support thereof), shall be erected, installed, placed or maintained on any Residence or Lot, except those devices which may be erected, installed, placed, or maintained or used entirely under the eaves or enclosed within a building or structure which does not extend above the lowest point of the roof. Dish television antennas not in compliance with these guidelines must be individually approved by the Committee.
Section 3.12 Outside clotheslines or other outside clothes drying or airing facilities, ground mounted solar energy collectors and equipment, propane tanks, basketball backboards, woodpiles, ground mounted air conditioners or air conditioning compressors and equipment shall be enclosed within a fenced service area or areas so as to conceal them from the Road and ground floor of neighboring Residences. Fencing or screening must be harmonious with the overall design of the structures on the Lot.
Section 3.13 If a Residence or other structure is destroyed, wholly or partially by fire or other casualty, such Residence or other structure shall be properly rebuilt, repaired or replaced to conform to this Declaration or all remaining debris and foundations shall be removed from the Lot. The Residence or other structure shall be completely rebuilt, repaired or replaced or the debris and foundation shall be removed from the Lot within one hundred eighty (180) days of the date it was wholly or partially destroyed.
Section 3.14 No business activities of any kind whatsoever shall be conducted in Residences or on any portion of the Development; except, home occupations, provided that only members of the family residing on a Lot are employed, the use is incidental and secondary to the use of the Lot as a Residence and no stock and trade is manufactured, displayed or sold on the Lot. Further, there shall be no external evidence of the home occupation activity, such as signs, commercial vehicles, inordinate traffic, outside storage, noise, dust, odors, noxious fumes or other nuisances permitted upon or to emanate from any Lot. Provided, further, that the foregoing restriction shall not apply to the business activities or the construction and maintenance of buildings, if any, of Developer or any owner, their assigns and agents during the construction of Lot improvements and the sale thereof.
Section 3.15 Residential style and design throughout the Development shall be generally a harmonious Southwestern motif.
Section 3.16 Notwithstanding any provision herein contained to the contrary, it shall be expressly permissible for Developer to maintain upon such portion of the Development or Lot as Developer may choose, during the period of Lot sales or construction of improvements or sale of any Residence, such facility or facilities as in the opinion of Developer may be reasonably required, convenient or incidental to the Lot sales or construction of improvements or sale of any Residence, including, without limitation, a business office, storage area, construction yard, sign, model unit and sales office.
Section 3.17 No fences or walls shall be installed on any Lot unless the design and construction plans have been approved by the Committee. Fences and walls shall not be constructed on Lot lines, except party walls for the townhouses. Fencing shall be of the type and character to integrate with the architectural style of the Residence, and shall not exceed eight (8) feet in height. No dog pens or runs otherwise permitted by this Declaration may be constructed unless the design and construction plans have been approved by the Committee. No wire fencing, chain link, plastic, vinyl or unfinished concrete block shall be used or constructed.
Section 3.18 The landscaping of all Lots, exterior to the buildings thereon, shall be finished according to detailed landscape and irrigation plans, which plans shall have been approved by the Committee, within three (3) months of completion of building construction. Such plans shall be prepared according to guidelines furnished by the Committee. Natural vegetation shall be left undisturbed where practical on all Lots, except as required for access, clearing of building sites and establishment of lawns and flower beds adjacent to Residences.
Section 3.19 Except as provided in Section 3.16, no exterior storage areas, storage buildings, portable buildings or utility areas shall be constructed, installed or moved onto Lots.
Section 3.20 The following types of trees and grass shall not be permitted in the Development:
a. Bermuda grass;
b. Cottonwoods (both bearing and non-bearing); and
c. Chinese elms.
Section 3.21 No trees shall be planted to form a screen on a Lot.
Section 3.22 If and when the property of Sandia Haciendas Subdivision Unit II meets the statutory annexation requirements enabling annexation of the property to the City of Albuquerque, such property shall, at the option of the City, be so annexed and become part of the City. At such time of annexation, if ever, all property owners may be required to pay their proportionate share of bringing the water and sewer systems servicing the property into compliance with all applicable standards imposed by the appropriate governmental authorities.
Section 4.1 General Rules of Law to Apply. Each wall built as part of the original construction on a Lot and placed on the dividing line between the Lots, if any, shall constitute a party wall, and to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls and of liability for property damage due to negligent willful acts or omissions shall apply thereof.
Section 4.2 Sharing of Repair and Maintenance. The cost of reasonable repair and maintenance of a party wall shall be share by the Owners who make use of the wall in proportion to such use.
Section 4.3 Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by fire or other casualty, any owner who has used the wall may restore it, and if the other Owners thereafter make use of the wall, they shall contribute to the cost of restoration thereof in proportion to such use without prejudice, however, to the right of any such Owners to call for a larger contribution from the others under any rule of law regarding liability for negligent or willful acts or omissions.
Section 4.4 Weatherproofing. Notwithstanding any other provisions of this Article, an Owner who by his negligent or willful act causes the party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements.
Section 4.5 Rights to and obligations of Contribution Run with the Land. The rights to and obligations of contribution created under this Article IV shall be appurtenant to and run with the land.
Section 5.1 No illegal, noxious or offensive activity (determined, as necessary, by the Association) shall be carried on in the Development upon any Lot, nor shall anything be done therein which is, may be or may become a nuisance or cause unreasonable disturbance, or annoyance to Owners in the enjoyment of their Residences.
Section 5.2 No firearms, BB guns or fireworks shall be discharged or used in the Development. Open fires shall not be permitted in the Development.
Section 5.3 No signs or other advertising shall be erected placed or displayed in the Development or upon any Lot unless the size, form and number of the same are first approved in writing by the Committee; provided, however, that any owner may, without such prior approval, erect one sign of not more than two (2) feet by three (3) feet advertising a Lot for sale or rent.
Section 5.4 No portion of the Development or any Lot shall be used or maintained as a dumping ground for rubbish.
Section 5.5 The direct light source for all exterior spot or directional lighting shall not be visible from neighboring Lots.
Maintenance of Landscaping and Improvements
Landscaping and all improvements shall be maintained in good order and repair by the Owners.
Architectural Control Committee
Section 7.1 The Committee is the Architectural Control Committee for Sandia Heights South-Unit 7, as established by the Declaration of Restrictions filed December 1, 1972 in Book Misc. 288, Page 135, as Document No. 22553, records of Bernalillo County, New Mexico, and as it has been amended ("Sandia Heights Declaration".) The current members of the committee are ROBERT MURPHY, CLEVE MATTHEWS and LOUIS ABRUZZO. The business address for the Committee is c/o Sandia Properties Ltd., Co., #10 Tramway Loop, N.E., Albuquerque, New Mexico 87122.
Section 7.2 Before commencing construction, remodeling, additions to, alterations of, or removal of any building, swimming pool, wall, fence, tank, or any other structure whatsoever on any Lot and before commencing any landscaping or landscaping construction, including ponds, waterfalls, statues, retaining walls or other structural components which are visible from the Road, the owner shall apply to the Committee for approval. The Owner shall submit to the Committee:
A complete set of plans, including but not limited to, foundation plans, floor plans, elevations, details, and specifications which identify construction materials and exterior color scheme and location of the structure on the Lot, identifying all construction, including but not limited to, roof overhang lines, all setbacks at a point of minimum distance to each Lot boundary, dimensions of the Lot and all walls, drives, patios, decks and walls and/or fences and their construction materials, and location and features of septic tanks, which set of plans and specifications upon approval will be retained by the Committee to remain on file.
Section 7.3 No building, structure, or improvement of any kind, including walls and landscaping, shall be erected, altered, placed or maintained upon any Lot, unless, and until the complete set of final plans and specifications has been approved in writing by the Committee as to the quality of workmanship and materials, harmony of external design with existing structures, and as to location with respect to Building Envelope, topography and finish grade elevation. Any resurfacing or painting of exterior wall areas shall be completed in a color and texture as close to the original as possible, unless the consent of the committee is obtained in writing as to a different color and/or texture.
Section 7.4 The Committee shall have the right to disapprove any plans, specifications or details submitted to it if such plans or specifications are not in accord with all the provisions of this Declaration, Committee rules (including any design guidelines), or if a design or color scheme for the proposed structure is not in harmony with the general surroundings or in harmony with the Lot or adjacent structures, or if the plans and specifications submitted are incomplete, or if the Committee deems said plans and specifications to be contrary to the spirit and intent of this Declaration, or contrary to the interests and welfare and rights of all or any part of the Development.
Section 7.5 If the Committee fails to approve or disapprove the plans, specifications and other required information within thirty (30) days after submission, then approval shall not be required, provided that no building or structure shall be erected which violates any of the terms of this Declaration.
Section 7.6 Neither the Committee, its members, nor Developer shall be responsible in any manner whatsoever for any defect in any plans or specifications as submitted or as revised by said Committee, or for work done pursuant to the requested changes to said plans and specifications.
Section 7.7 A majority of the Committee may, from time to time, grant exceptions or variances not in substantial conflict with this Declaration, without the consent of the owners, in such cases where strict adherence to those requirements would operate to work a hardship an Owners, or where the requirements cannot reasonably be met due to the topography, location or shape of a particular Lot.
Section 7.8 The Committee is authorized and shall have the right to charge a fee in a minimum amount of $300.00 for review of each set of plans and specifications and other required information submitted to the Committee in connection with an application for construction approval required pursuant to Section 7.2, above. The Committee, in its discretion, shall have the right to charge a fee in excess of $300.00 for such review in instances where, due to unusual circumstances, an inordinate amount of time is required for the review.
Section 7.9 Any terms of this Declaration related to the committee which are inconsistent and contrary to the terms of the Sandia Heights Declaration shall be governed by the Sandia Heights Declaration.
Road and Common Areas
Section 8.1 The Road within the Development is a private road.
Section 8.2 The initial construction costs of the Road shall be paid by Developer. Any and all costs of subsequent improvements and all maintenance costs and expenses related to the Road and Common Areas shall be assessed against the Owners in accordance with Article IX of this Declaration.
Section 9.1 The Association shall be organized to manage and maintain the Road, landscaping and other improvements within the Common Areas. The Association shall be organized as a nonprofit corporation under the laws of the state of New Mexico. The Association's affairs shall be governed by this Declaration, articles of incorporation and bylaws.
Section 9.2 The affairs of the Association shall be managed by an elected board of directors, which shall exercise all the rights and powers and perform all the duties and responsibilities set out in this Declaration and the articles and bylaws of the Association.
Section 9.3 Each owner shall be a member of the Association for so long as such ownership of a Lot continues. Rights, duties, privileges and obligations of an owner as a member of the Association shall be those set forth in, and shall be exercised and imposed in accordance with, the provisions of this Declaration, and the articles and the bylaws of the Association. The rights and obligations of an owner and membership in the Association shall not be assigned, transferred, pledged, conveyed or alienated in any way except upon transfer of ownership to the Owner's Lot and then only to the transferee of ownership of such Lot, or by intestate succession, testamentary disposition, foreclosure of a mortgage of record, or other legal process now in effect or as may hereafter be established. Any attempt to make a prohibited transfer is void and shall not be recognized by the Association.
a. The Association shall initially own and hold title to the Common Areas. The Association may acquire interests in other real property within the Development, construct improvements thereon, and manage, maintain and operate said real property and improvements if members of the Association approve thereof by unanimous consent. Any additional acquisitions or functions undertaken by the Association shall be funded by assessments as provided for hereinafter.
b. The Association may contract for such services, facilities and maintenance as may be deemed necessary or desirable by the board of directors thereof.
c. The Association may employ the services of a secretary, manager, architect, engineer, consultant, other employee or employees, and attorneys and accountants, to manage and carry out the affairs of the Association.
d. The Association shall obtain and maintain in force such policies of insurance, including board of director's liability insurance, as may be deemed necessary or advisable by the board of directors.
e. The Association may, from time to time, subject to the provisions of this Declaration, adopt, declare, amend modify and repeal rules and regulations, by a majority vote of the members of the Association. Said rules may relate to any matter or thing involving the Association, the board of directors, any committee thereof, any residential area, Common Area, any property managed or maintained by the Association, the articles and bylaws of the Association or this Declaration. Said rules shall become effective when passed upon by the members.
f. In the event of dissolution of the Association, its common property, if any, shall then be dedicated to a governmental body.
g. The Association shall have such other rights, powers, authority and duties as set forth in its articles and bylaws.
Section 9.5 Members shall be entitled to one vote for each Lot owned. Members may vote in person or by proxy executed in writing by the member or by his duly authorized attorney-in-fact. If an owner casts a vote for a certain Lot, it will thereafter be conclusively presumed for all purposes that he was acting with the authority and consent of any other Owners of the same Lot.
Section 9.6 Developer for each Lot owned by it, hereby agrees to pay, and each Owner by the acceptance of a deed or contract of sale therefore, whether or not so expressly provided in any such deed or contract or other conveyance, is deemed to agree to pay to the Association:
a. Maintenance assessments;
b. Assessments for capital improvements;
c. Assessment for property taxes for Common Areas; and
d. All other fees or other monies due to the Association from such Owner.
The maintenance assessments, assessments for capital improvements, and assessments for property taxes for common Areas, plus interest, late charges, costs and attorney's fees, shall be a charge against the Lot and shall be a continuing lien upon the Lot against which each such assessment is made, and shall also be the personal obligation of the Owner or Owners of such Lot on the assessment date. The personal obligation to pay assessments shall not pass to successors in title unless expressly assumed by them.
Section 9.7 There shall be an operating fund, into which the Association shall deposit all monies paid to it as:
a. Maintenance assessments;
b. Assessments for capital improvements;
c. Assessments for property taxes on Common Areas;
d. Miscellaneous income; and
e. Income and profits attributable to the operating funds;
and from which the Association shall make disbursements in performing the functions for which the foregoing assessments are levied.
Section 9.8 Maintenance Assessments and Assessments for Property Taxes for Common Areas.
a. Within thirty (30) days prior to the commencement of each fiscal year the Association shall estimate the costs and expenses to be incurred by the Association for maintenance and taxes during such year, including a reasonable provision for contingencies, and reserves for major repairs and replacements, and shall subtract from such estimate an amount equal to the anticipated balance, exclusive of any reserves for contingencies and reserves for major repairs and replacements, in the operating fund at the start of such year. The sum or net estimate so determined shall be assessed against the Owners. The amount of each Owner's assessment shall be determined as follows:
Total Estimated Assessments
divided by Total Number of Lots in the Development.
b. If, at any time and from time to time, during any fiscal year, the assessments prove or appear likely to prove inadequate for any reason, including non-payment of any Owner's share thereof, the Association may levy a further assessment in the amount of such actual or estimated inadequacy, which shall be assessed to all owners apportioned as provided in subsection (a)
c. Assessments shall be due and payable to the Association when levied or in such installments during the year, and such due dates as the board of directors shall designate.
Section 9.9 The Association may also levy in any year an assessment for paying or returning, in whole or in part, the cost or proposed cost of acquisition and construction of a described capital improvement (whether the improvements constitute real or personal property), in an amount greater than can be included in the maintenance assessment, provided it has been approved by a majority of the voting power of the members, which assessment shall be assessed to Owners in the same manner as provided for in Section 9.8(a).
Section 9.10 Each assessment under this Article shall be the separate, distinct and personal debt and obligation of the Owner against whom it is assessed. Any assessment provided for in this Article, which is not paid when due, shall be delinquent. With respect to each assessment not paid within ten (10) days after its due date, the Association may, at its election, require the Owner to pay a late charge, interest, plus the reasonable costs of collection, including attorney's fees. Such charges shall be considered an additional assessment and collectible with the assessment for which it was charged. If any such assessment is not paid within ten (10) days after the delinquency date, the Association may, at its option, file in the real property records of Bernalillo County, New Mexico, a notice of delinquent assessment specifying the particulars thereof, including (i) name of Owner, (ii) date and amount of assessment and (iii) the description of each Lot as to which the assessment is delinquent, and bring an action at law against the Owner or Owners personally obligated to pay the same, and upon compliance with the provisions of this Article to foreclose the lien against the Lot, and there shall be added to the amount of such assessment the late charge, the costs of preparing and filing the lien and complaint in such action, and in the event a judgment is obtained, such judgment shall include interest at the rate provided for herein and a reasonable attorney's fee, together with the costs of action. Each Owner vests in the Association, or its assigns, the right and power to bring all actions at law or equity against such owner or owners and each Lot for the collection of such delinquent assessments.
Section 9.11 No action shall be brought to foreclose an assessment lien less than thirty (30) days after the date a notice of claim is deposited in the United States Mail, certified or registered, postage prepaid, to the Owner of said Lot, and a copy thereof is recorded by the Association in the office of the County Clerk; said notice of claim must recite a good and sufficient legal description of such Lot, the record owner or reputed owner thereof, the amount claimed (which shall include the interest and late charges, costs and attorney's fee recoverable by an action at law) and the name and address of the Association.
Section 9.12 Any sale pursuant to a foreclosure action is to be conducted in accordance with the customary practice of the courts of the State of New Mexico, applicable to the foreclosure of mortgages, or in any other manner permitted or provided by law. The Association, through its duly authorized agents, shall have the power to bid on the Lot at the foreclosure sale, and to acquire and hold, lease, mortgage, and convey the same.
Section 9.13 Upon the timely curing of any default for which a notice of claim of lien was filed by the Association, the officers of the Association are hereby authorized to file for record, as the case may be, an appropriate release of such notice, upon payment by the defaulting Owner of a fee, to be determined by the Association, in an amount sufficient to cover the actual costs of preparing and filing or recording such release, together with the payment of such other costs, interest or fees as shall have been incurred.
Section 9.14 The assessment lien and the rights to foreclosure and sale thereunder shall be in addition to and not in substitution for all other rights and remedies which the Association and its assigns may have hereunder and by law, including a suit to recover a money judgment for unpaid assessments, as above provided.
Section 9.15 The Association shall, upon demand, furnish to any Owner liable for assessments, a certificate in writing signed by an officer of the Association, setting forth whether the assessments on a specified Lot have been paid, and the amount of the delinquency, if any. A reasonable charge may be made by the board of directors for the issuance of these certificates. Such certificate shall be conclusive evidence of payment of any assessment therein stated to have been paid.
Section 9.16 The maintenance and tax assessments provided for in this Article shall commence as to each Lot the first day of the month following the sale and closing of the twentieth (20th) Lot by Developer. The first such annual assessment shall be prorated for each Lot for the period from the commencement as provided in this section to the start of the next fiscal year following such commencement.
Section 9.17 The lien for assessments shall be subordinate to the lien of any first mortgage placed upon a Lot in good faith and for value; however, such subordination applies only to assessments for which a notice of claim of lien has not been filed in the records of the real estate records of the County Clerk of Bernalillo County, New Mexico prior to recording the lien of the first mortgage in said records and the assessments before the sale or transfer of the Lot pursuant to a decree of foreclosure, or any transfer in lieu of foreclosure. The sale or transfer does not release the Lot from the liability or lien for assessments thereafter becoming due.
Term of Restrictions and Amendment
Section 10.1 All of the covenants set forth herein shall be binding upon the owners and their heirs, personal representatives, successors and assigns and all persons claiming by, through or under them, for a period of twenty (20) years from the date of the filing of this instrument in the office of the County Clerk of Bernalillo County, New Mexico, at which time the Covenants shall be automatically extended for successive periods of twenty (20) years, unless revoked or amended by an instrument in writing, executed and acknowledged by the owners of not less than seventy-five percent (75%) of the Lots in the Development, which instrument shall be recorded in the office of the County Clerk of Bernalillo County, New Mexico, within ninety (90) days prior to the expiration of the initial term hereof or any twenty year extension.
Section 10.2 During the initial twenty (20) year term of the Covenants, and thereafter, the Owners of not less than seventy-five percent (75%) of the Lots in the Development may at any time and from time to time release all of the Lots hereby restricted from any one or more, or all of the Covenants, or may modify, change or amend the Covenants as to all of the Lots by executing and acknowledging an appropriate agreement or agreements in writing for such Purposes and filing the same for record in he office of the County Clerk of Bernalillo County, New Mexico.
Section 11.1 A six inch tolerance by reason of mechanical variance of construction is hereby automatically allowed for any distance requirements imposed by this Declaration or by the Committee.
Section 11.2 Invalidation of any one of these covenants by judgment or court order, shall in no way affect any of the other provisions of the Declaration, which shall remain in full force and effect.
Section 12.1 All provisions of this Declaration shall be binding on all Lots and the Owners, regardless of the source of title of such Owners, and any breach thereof, if continued for a period of fifteen (15) days from and after the date that the Committee, Association or Owner of a Lot notifies the Owner or party breaching this Declaration to refrain from the continuance of such action and to correct such breach, shall warrant the Committee, the Association or another Lot Owner to apply to any court of law or equity having jurisdiction thereof for an injunction or other relief. The prevailing party in such action shall be entitled to its reasonable expenses in prosecuting such suit, including attorney's fees from the non-prevailing party.
Section 12.2 No delay or omission on the part of the Committee, Association or any Owner or Owners of a Lot or Lots in exercising any right, power, or remedy herein provided for in the event of any breach of this Declaration shall be construed as a waiver thereof or acquiescence therein.
Section 12.3 No right of action shall accrue, nor shall any action be brought or maintained by anyone against Developer for or on account of the failure or neglect of Developer to exercise any right, power or remedy herein provided for in the event of any breach of this Declaration.
IN WITNESS WHEREOF, the undersigned has hereunto set its hand and seal the date first above written.
SUNSHINE CONSTRUCTION, INC.,
a New Mexico Corporation
HERSHEL STOLEBARGER AS ATTORNEY IN FACT FOR JOSEPH SANTANGELO PRESIDENT OF SUNSHINE CONSTRUCTION, INC., A NEW MEXICO CORPORATION
ACKNOWLEDGMENTSTATE OF NEW MEXICO
COUNTY OF BERNALILLO
This instrument was acknowledged before me this 1ST day of SEPTEMBER 1994, by HERSHEL STOLEBARGER, ATTORNEY IN FACT FOR JOSEPH SANTANGELO, PRESIDENT of SUNSHINE CONSTRUCTION, INC., a New Mexico Corporation.
Signatures on file in the SHHA office
FIRST AMENDMENT TO DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR SANDIA HACIENDAS SUBDIVISION, UNIT 2
THIS AMENDMENT is made this 24th day of February, 1995, by SUNSHINE CONSTRUCTION, INC., a New Mexico Corporation ("SUNSHINE"), EUGENE W. SMITH and ELFRIEDA A. SMITH, husband and wife ("SMITHS"), and MICHAEL L. MORGAN, a single man ("MORGAN").
WHEREAS, SUNSHINE is the owner of the following described real property located in the County of Bernalillo, State of New Mexico, to-wit:
Lots numbered Eighteen (18) through Twenty-seven (27), Twenty-nine (29) through Thirty-one (31), and Thirty-three (33) through Forty-three (43), SANDIA HACIENDAS SUBDIVISION, UNIT 2, as the same are shown and designated on the Plat thereof, filed in the office of the County Clerk of Bernalillo County, New Mexico on April 12, 1994.
("Sunshine's Lots"); and
WHEREAS, SMITHS are the owners of the following described real property located in the County of Bernalillo, State of New Mexico, to-wit:
Lot numbered Twenty-eight (28), SANDIA HACIENDAS SUBDIVISION, UNIT 2, as the same are shown and designated on the Plat thereof, filed in the office of the County Clerk of Bernalillo County, New Mexico on April 12, 1994.
("Smiths' Lot"); and
WHEREAS, MORGAN is the owner of the following described real property located in the County of Bernalillo, State of New Mexico, to-wit
Lot numbered Thirty-two (32), SANDIA HACIENDAS SUBDIVISION, UNIT 2, as the same are shown and designated on the Plat thereof, filed in the office of the County Clerk of Bernalillo County, New Mexico on April 12, 1994.
("Morgan's Lot,'); and
WHEREAS, the Sunshine's Lots, Smiths' Lot and Morgan's Lot comprise the entire Sandia Haciendas Subdivision, Unit 2; and WHEREAS, a Declaration of Covenants, Conditions and Restrictions for Sandia Haciendas Subdivision, Unit 2, dated September 1, 1994 was filed September 2, 1994, in Book BCR 94-25, Pages 7266-7283, as Document No. 94-109424, records of Bernalillo County, New Mexico ("Declaration"); and
WHEREAS, the parties hereto desire to amend certain terms and conditions of the Declaration.
NOW, THEREFORE, in consideration of the above and other good and valuable consideration, the receipt of which is hereby acknowledged, it is agreed as follows:
1. Contrary to the provisions of Section 3.1 of the Declaration, Lots 42 and 43 of Sandia Haciendas Subdivision, Unit 2 shall have a minimum of 1,500 square feet of enclosed heated living area, exclusive of carports, garages, basements and non-enclosed porches or patios.
2. The following provisions are substituted for the corresponding sections of Article VII:
Section 7.1 The Committee is hereby established and shall be composed initially of the following three (3) persons: Joe Santangelo, Anna Santangelo and Hershel Stolebarger. The members of the Committee shall serve for a term of five (5) years from the date hereof, or until twenty (20) days after the date Developer has conveyed title to its last Lot, whichever is longer, and until their successors have been duly qualified; provided the Developer may, for cause stated, remove any member of the Committee prior to the expiration of such term. In the event of the death of a Committee member within five (5) years from the date hereof, or twenty (20) days after Developer has conveyed its last Lot, whichever is longer, Developer shall have full authority to designate a successor. Vacancies occurring after five (5) years from the date hereof, or twenty (20) days after Developer has conveyed its last Lot, whichever is longer, shall be filled by members of the Association by a majority vote.
Section 7.3 No building, structure, or improvement of any kind, including walls and landscaping, shall be erected, altered, placed or maintained upon any Lot, unless, and until the complete set of final plans and specifications has been approved in writing by the Committee as to the quality of workmanship and materials, harmony of external design with existing structures, and as to location with respect to topography and finished grade elevation. Any resurfacing or painting of exterior wall areas shall be completed in a color and texture as close to the original as possible, unless the consent of the Committee is obtained in writing as to a different color and/or texture.
Section 7.9 Deleted.
3. Except as herein modified and amended, the remaining terms and conditions of the Declaration shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals the day and year first above written.
Signatures on file in the SHHA office