Article 2 -Property
Rights and Easements
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2.1 Type of Development. This Development is a planned development within the meaning of Civil Code section 1351(k) during Phase 1 shall consist of the Common Area and 28 Residential Lots. If all the subsequent phases are annexed into the Development as described in Article 13 and Exhibit A, the Development may consist of additional Common Area Lots and approximately 324 Residential Lots and all improvements thereon. Declarant has no obligation to annex any subsequent phase into the Development. Notwithstanding the foregoing, all Lots, including any lots that may be annexed into the Development as described in Article 13, shown on the Map are subject to the provisions of Section 2.16.
2.2 Property Rights. Each Owner shall own a fee interest in a Residential Lot and shall be a Member of the Association. The Association shall own the fee interest in the Common Area, including the Private Driveways and the Recreational Lot.
2.3 Boundary Line Easements. As a part of the original construction of the Development, Declarant may construct certain residential improvements on or within three feet of the boundary line of an adjoining Lot in accordance with the City of Santa's PD approval. Each Lot on which such improvements are constructed as the dominant tenement has an easement over the adjoining Lot as the servient tenement for purposes of maintaining, repairing and replacing any encroachments (such as roof overhangs) into the servient tenement and for purposes of access to that portion of the servient tenement as may be reasonably necessary to maintain (including repainting), repairing or replace any portion of any improvement on the dominant tenement that is located on or within three feet of the common boundary line. Prior to entering the servient tenement for purposes of maintaining, repair or replacement, the Owner or occupant of the dominant tenement shall provide the Owner or occupant of the servient tenement with at least three days' prior notice except in the event of an emergency.
2.4 Shared Fences. As part of the original construction of the Development, Declarant constructed a fence on or about the common boundary line between two adjoining Lots, which fence is a good neighbor fence shared by the adjoining Lot Owners.
The adjoining Owners shall jointly share the maintenance and repair of the shared fence. The cost of the maintenance and repair shall be allocated equally between the Lots unless the circumstances warrant a different allocation for a fair and equitable allocation of such costs. Each Lot as a dominant tenement shall have an easement over the adjoining Lot as the servient tenement for access to that portion of the servient tenement as may be reasonably necessary to maintain, repair or replace the shared fence. Any dispute between the adjoining Lot Owners regarding the need for maintenance or repair of any shared fence, the quality or type of maintenance or repair, the allocation of costs, or any related issues shall be submitted to the American Arbitration Association, or any successor thereto, for resolution in accordance with its commercial rules. In such proceedings, each party shall have full discovery rights as authorized by Code of Civil Procedure section 1283.05 or any successor statute thereto. The decision of the arbitrator shall be binding on the parties and may be enforced in any court of appropriate jurisdiction. The arbitrator in his or her discretion may award costs, including reasonable attorneys' fees, to the prevailing party.
2.5 Drainage Easement. Each Lot and the Common Area as the servient tenement are subject to an easement in favor of each other Lot and the Common Area as the dominant tenement for the retention, maintenance, repair or replacement of any storm drainage system installed on the servient tenement as a part of the original construction of the Development. Unless maintained by the Association, each Owner shall maintain and repair that portion of the drainage system located on the Owner's Lot. Each Owners shall at all times keep the drainage system and any intake drains or catch basins free and clear of debris at all times, and no Owner shall take any action that would in any manner interfere with the operation of the system. No Owner shall alter the grading on any Residential Lot without the prior consent of the Architectural Review Committee.
2.6 Encroachment Easement. Each Lot and the Common Area as the dominant tenement has an easement over any adjoining Lot or Common Area as the servient tenement for the purpose of acommodating any encroachment of eaves, roof overhangs, windows or other residential structure improvements resulting from the original construction of the Improvements or settlement or shifting of structures, and any encroachment easements granted in accordance with Section 2.13. The extent of the encroachment easement shall be the location of the encroaching structure as originally constructed by Declarant. No encroachment easement shall exist in favor of any Lot if the encroachment occurred due to the willful misconduct of the Owner of the dominant tenement. If a structure on any Lot is partially or totally destroyed, the structure may be repaired or rebuilt in accordance with the original plans, including the replacement of any encroaching Improvement.
2.7 Maintenance and Repair Easement. Each Lot as the servient tenement is subject to an easement in favor of each other Lot as the dominant tenement for purposes of providing the agents of the Association such access as may be necessary to perform the Association's maintenance and repair duties as described in Section 4.3.
2.8 Recreation and Use Easements. Certain Lots as the servient tenement are subject to recreation and use easements in favor of an adjoining Lot as the dominant tenement. The location of the area on the servient tenement that is subject to the easement will be described in the initial grant deeds in favor of the adjoining Lot as the dominant tenement. The easement is subject to the following terms and conditions:
(i) the Owner of the dominant tenement shall install and maintain the landscaping in the Easement Areas;
(ii) the Owner of the dominant tenement may install the following Improvements in the Easement Area: landscaping, irrigation lines, drainage and connector lines, concrete terrace or deck not exceeding 12 inches in height with railings not exceeding 42 inches in height, and normal and customary patio structures that will not unreasonably interfere with the rights retained by the Owner of the servient tenement as described herein;
(iii) the Owner of the servient tenement retains the right to enter the Easement Area on such notice as may be reasonable under the circumstances to repair, maintain (including repainting) or replace the abutting building wall or roof (including windows, eaves, gutters, leaders, and drain pipes) and any other Improvements located in or immediately adjacent to the Easement Area that serve the servient tenement;
(iv) the Owner of the servient tenement retains the right to encroach onto the Easement Area with eaves, overhangs, gutters, leaders, the opening of windows, and similar encroachments that were part of or replacements to the original improvements placed on the servient tenement;
(v) the Owner of the servient tenement may retain and maintain any connections into any drainage lines in the Easement Area that were installed as a part of the original construction of the Development to provide drainage from the servient tenement;
(vi) any fence separating the Easement Area from the Servient and dominant tenements shall be considered a shared improvement subject to the provisions of Section 2.4; and
2.9 Avigation Easements. The Lots described on the subdivision map entitled "Tract No. 8815" described in recital A will be subject to an avigation easement in favor of the City of San Jose for the passage of aircraft through the airspace above a designated elevation above the Tract No. 8815 property for aircraft traffic to and from the San Jose International Airport. The easement includes the right to create such noise, vibration, current and other effects of air, illumination and fuel consumption as may arise from the operation of aircraft of any kind. The avigation easement will be recorded in the records of Santa Clara County, California.
2.10 Other Easements. Each Lot and the Common Area are subject to such other easement(s), right-of-way, or dedications as may be granted or reserved on the Map, any deed to the Lot or Common Area, or any other appropriate public record.
2.11 Appurtenant Easements. Each easement described herein is an easement that is appurtenant to the dominant tenement, and any transfer of the dominant tenement automatically transfers the easement appurtenant thereto regardless of whether the instrument of transfer describes the easement.
2.12 Reservation of Rights. Notwithstanding any property rights, including easements, granted or reserved herein, each Lot and the Common Area, as the case may be, are subject to each of the following:
(i) the right of Declarant or its agents to enter on any portion of the Development to construct the Improvements that Declarant intends to construct on the Property, to advertise and sell Lots in the Development, to make repairs, and to correct any construction problems thereon, provided that such entry does no unreasonably interfere with the use or occupancy of any occupied Lot unless authorized by its Owner, which authorization shall not be unreasonably withheld:
(ii) the right of the Association's agents to enter any Lot to cure any violation or breach of this Declaration or the Bylaws or the Rules, provided that at least 30 days' prior written notice of such violation or breach (except in the cases of emergency) has been given to the Owner and provided that within the 30-day period such Owner has not acted to cure such violation or breach;
(iii) the right of the Association's agents to enter any Lot to perform its obligations and duties under this Declaration, including the obligations and the duties with respect to maintenance or repair of any improvement or landscaping located on the Lot;
(iv) the rights reserved in Sections 2.13, 2.15, and 2.16;
(v) the right of the Association to adopt and enforce Rules as described in Section 5.6; and
(vi) the right of the Association to suspend an Owner's right to use any recreational facilities as described in Section 5.6; limit the number of guests to use the Common Area and any improvements therein; and assign, rent, license or otherwise designate and control the use of any recreational facilities located on the Common Area.
2.13 Authority Over Common Area. The Board or Declarant (as long as Declarant owns 25% or more of the Lots in the Development) shall have the power and the right in the name of the Association and all of the Owners as their attorney-in-fact, to grant, convey or otherwise transfer to any Owner any other Person fee title, easements, exclusive use easements or rights, rights-of-way and/or dedications in, on, over or under the Common Area, in order to: (i) construct, erect, operate, maintain or replace lines, cables, wires, conduits or other devices for electricity, cable, television, power, telephone and other purposes, public sewers, storm water drains and pipes, water systems, sprinkling systems, water, heating and gas lines or pipes and any similar public or quasi-public Improvements or facilities; (ii) accommodate any encroachment that in the sole discretion of the Board does not unreasonably interfere with the use and enjoyment of the Common Area; or (iii) accomplish any other purpose that in the sole discretion of the Board is in the best interest of the Association and its Members and does not unreasonably interfere with the use and enjoyment of the Common Area. Each Owner in accepting a deed to a Lot expressly consents to such action and authorizes and appoints the Association and Declarant (as long as Declarant owns 25% or more of the Lots in the Development) as attorney-in-fact of such Owner to execute and deliver all documents and interests to accomplish the action, including, but not limited to, grant deeds, easements, subdivision maps, and lot-line adjustments. Notwithstanding anything herein to the contrary, in no event shall the Board or Declarant take any action authorized hereunder that would permanently and unreasonably interfere with the use, occupancy and enjoyment by any Owner of his or her Lot or the use of any recreational facilities located on the Common Area without the prior written consent of the Owner. Furthermore, the conveyance of fee title to any portion of the Common Area as authorized in this Section 2.13 shall require the consent of a majority of the total voting power of the Association other than Declarant.
2.14 Delegation of Use Rights. An Owner's family members and guests and any such other Persons as may be permitted by the Rules may use and enjoy any Common Area Improvements, including any recreational facilities. All such use shall be subject to restrictions contained in this Declaration and Rules. If an Owner has rented or leased his or her Lot, the Owner, members of the Owner's family and the Owner's guest shall not be entitled to use any Common Area Improvements, including the recreational facilities (other than such use as is directly related to the Owner's rights and duties as a landlord). Such right may be enjoyed by the tenant or tenant's family members and guests.
2.15 Conveyance of Common Area. The Common Area in each phase shall be conveyed to the Association on or before the date the Declarant first conveys title to a Lot in that phase. The Common Area as the servient tenement is subject to the rights reserved in Section 2.12 and to an easement in favor of each Lot shown on the Map, whether or not the Lot has been annexed into the Development, as the dominant tenement for ingress and egress over the walkways situated on the servient tenement, for support from any Common Area land adjacent to any Improvements on any Lot, and for access to and use of (including the right to install, maintain, repair or replace) any utility lines, cables, wires, pipes, meters or other equipment installed within, on or over the servient tenement in order to provide utility or related service to the dominant tenement, including water, electricity, telephone, gas, cable television and sanitary sewer or storm drainage lines and equipment, and for access to and use of the Common Area by Declarant and its subcontractors and agents to construct, maintain and sell the Lots and all related Improvements in the subsequent phases. The rights retained by Declarant and its subcontractors and agents include the right to restrict access to any portion of the Common Area that is undergoing construction or development activity for safety or other reasons by the construction of fences or other barriers, or by the adoption of such other measures that restrict access to authorized personnel only, and the right to use portions of the Common Area as a staging or storage areas for materials and equipment to be used in connection with the construction of Improvements within the Development and to restrict access thereto by means of a fence or otherwise. The Board may adopted Rules regulating the use of the Common Area provided such Rules do not interfere with the exercise of the foregoing easement rights and are consistent with the restrictions contained in this Declaration.
On the conveyance of the Recreational Lot to the Association, Declarant automatically reserves the easements and rights over the Recreational Lot described in this Article 2 in favor of the Lots in the Development for access and use of the recreational facilities located therein subject to the rights reserved in Section 2.12. If a Lot is not subject to the Declaration at the time of the conveyance of the Recreational Lot to the Association, the reserved easements and rights shall become effective automatically as of the date the Lot is annexed into the Development as Development as described in Article 13, provided that the easements described in Section 2.16 are effective on the date Declarant conveys the Common Area to the Association.
2.16 Phasing.
(i) Additional Phases. The property that may be annexed into the Development as a part of a subsequent phase is described in Exhibit A attached hereto. Declarant reserves the right to determine the number of phases, the number of lots in a phase, and the building types in a phase. Declarant makes no representation or warranty that any subsequent phase will be annexed into the Development and has no obligation to annex any subsequent phase into the Development. All phases shall benefit and be bound by the provisions of this Section 2.16 on recordation of this Declaration. The other restrictions, rights and duties described herein shall benefit and bind Phase 1 on recordation of this Declaration and each subsequent phase on the recordation of a declaration of annexation annexing that phase into the Development as described in Article 13 and Exhibit A.
(ii) Reservation of Easements. Declarant reserves easements over the Common Area as the servient tenements in favor of the property described in Exhibit A as the dominant tenements, for support from the land under and adjacent to each residential structure and for access to and use of (including the right to install, maintain, repair or replace) any utility lines, cables, wires, pipes, meters or other equipment installed within, on or over the servient tenements in order to provide utility or related service to the dominant tenements, including water, electricity, telephone, gas, cable television, sanitary sewer or storm drainage lines or equipment and for such access over the private streets as may be reasonably necessary to construct, maintain, repair and replace the residential structures and other Improvements in the Development.
(iii) Allocation of Maintenance and Repair Costs. Pending annexation and line commencement of assessments, if the Owner of any property to be annexed in a subsequent phase uses the easement rights reserved in subparagraph (ii) above for the benefit of the property to be annexed, the Owner of the property in that phase shall pay an equitable share of the cost of the maintenance, repair, replacement and insurance of any Improvements located within the Common Area that are used by occupants of the property in that phase. The Owner's allocable share shall be based on the amount of use, type of use and other relevant factors. The Owner shall remit to the Association its share of the costs within 30 days after receipt of demand for same. If Owner fails to pay its share when due, the Association may bring an action in any court of competent jurisdiction to recover the cost, together with interest thereon at the rate of 12% per annum, but in no event greater than the maximum rate authorized by law. In such action, the prevailing party shall be entitled to recover costs and attorneys' fees.
If there are any disputes regarding the Owner's allocable share of the cost, the dispute shall be submitted to the American Arbitration Association, or any successor thereto, for resolution in accordance with its commercial rules. The parties shall be entitled to the discovery rights provided by Code of Civil Procedure section 1283.05. The arbitrator may award costs and attorneys' fees to the prevailing party. The arbitrator's decision shall be binding on the parties and may be enforced in any court of competent jurisdiction. If the Owner fails to initiate arbitration within the 30-day period after receipt of demand from the Association for payment of the Owner's share of the cost, it shall be presumed conclusively that the Owner has waived its arbitration rights with respect to that demand.
2.17 Construction Activity. Each Owner acknowledges that: (i) the construction of the Development may occur over an extended period of time; (ii) the quiet use and enjoyment of the Owner's Lot may be disturbed as a result of the noise, dust, vibrations and other effects of construction activities; and (iii) the disturbance may continue until the completion of the construction of the Development.
2.18 San Jose International Airport. The Development is locates within 2.25 miles of the San Jose International Airport. The Development will be susceptible to aircraft noise and vibration from takeoffs and landings at the airport.
2.19 As-Built, On-site Plans. As-built, on-site plans for the utilities serving the Development are on file with the City of Santa Clara.
