FIRST AMENDMENT TO
DECLARATION OF CONDOMIMIUM OWNERSHIP
THIS FIRST AMENDMENT TO DECLARATION OF CONDOMINIUM OWNERSHIP FOR ABERDEEN CONDOMINIUM (“First Amendment”) is made this 25th day of September 1983 by the A-B-C Condominium (formerly Aberdeen Associates, Inc.), a Missouri not-for-profit corporation (hereinafter referred to as “Association”).
W I T N E S S E T H
WHEREAS, Aberdeen Associates, a Missouri partnership (hereinafter referred to as “Developer”) created Aberdeen Condominium (sometimes referred to as “Aberdeen Condominiums”) by the execution and recording of the Declaration of Condominium Ownership for Aberdeen Condominium (the “Declaration”) dated November 21, 1977 and recorded in Book 142M, page 778 of the records of the Recorder of Deeds of the City of St. Louis, Missouri (the Plat of Aberdeen Condominium being separately recorded, simultaneously with the recording of the Declaration, in Plat Book 42, page 1 of the records of the Recorder of Deeds of the City of St. Louis, State of Missouri);
WHEREAS, the By-Laws attached to and being part of the Declaration were amended by document recorded in Book 237M, page 1883 of the records of the Recorder of Deeds of the City of St. Louis, Missouri;
WHEREAS, the Association desires to amend the Declaration to change the name of the Condominium to “The A-B-C Condominium” and to make other changes to the Declaration (and By-Laws) in the manner set forth below and such amendment has been approved by the Association in accordance with Section A of ARTICLE NINETEEN of the Declaration;
NOW, THEREFORE, the Association does hereby amend the Declaration to change the name of the condominium from “Aberdeen Condominium” to “The A-B-C Condominium” and to change other provisions of the Declaration (including By-Laws) so that, as amended, the Declaration shall read in its entirety as follows:
ARTICLE ONE: DEFINITIONS
The following terms, as used herein or elsewhere in any condominium documents relating to The A-B-C Condominium, unless other specifically provided, shall have the meanings set forth below:
A. “Act” – The Condominium Property Act of the State of Missouri, Chapter 448, Revised Statutes of Missouri.
B. “Assessment” – The portion of the Common Expenses to be paid by each Unit Owner.
C. “Association” – The not-for-profit corporation formed pursuant to the Declaration and the General Not-For-Profit Corporation Act of the State of Missouri, now known as The A-B-C Condominium, and its successors and assigns, which shall be the governing body of The A-B-C Condominium as provided in this Declaration.
D. “By-Laws” – The By-Laws of the Association, a copy of which is attached hereto as Exhibit C.
E. “Common Elements” – All portions of the Property except the Units.
F. “Common Expenses” – The actual and estimated cost of:
1. maintenance, management, operation, repair and replacement of the Common Elements; and
2. maintenance, management, operation, repair and replacement of any property as to which, pursuant to other provisions hereof, it is the responsibility of the Board of Managers to maintain, manage, operate, repair and/or replace; and
3. management and administration of expenses of the Property, including without limiting the same, compensation paid by the Board of Managers to a professional manager, and to the accountants, attorneys and other employees; and
4. any other expenses which are defined as Common Expenses by any other provisions of the Declaration, By-Laws, the Act, or any other condominium documents, or which are expenses properly paid by the Association or Board of Managers.
G. “Declaration” – This instrument and all amendments hereto, by which the Property is submitted to the provisions of the Act.
H. “Developer” – Aberdeen Associates, a Missouri partnership, or any person, firm or corporation to whom Aberdeen Associates transfers its rights hereunder prior to the time when all units in The A-B-C Condominium have been initially sold by the Developer.
I. “Majority” or “Majority of the Unit Owners” – The owners of the more than fifty (50%) per cent in the aggregate of the undivided ownership interests of the Common Elements. Any specified percentage of the Unit Owners means such percentage in the aggregate of the undivided ownership interests of the Common Elements.
J. “Occupant” – A Unit Owner or the individual or individuals who occupy a Unit.
K. “Person” – An individual, corporation, partnership, trustee, or other legal entity capable of holding title to real Property.
L. “Plat” – The Plat (and any surveys attached thereto) recorded simultaneously with the Declaration, and any additional plat(s) attached to and recorded with any amendments hereto adding additional land to the Property. The Plat recorded simultaneously herewith sets forth the measurements, elevations, locations and other data, as required by the Act, with respect to (i) the land which presently constitutes the Property, and (ii) each Unit and its horizontal and vertical dimensions, including the elevations of the interior surfaces of the floors and ceilings and the measurements and locations of the interior surfaces of the perimeter walls of each Unit. Each Unit is identified on the Plat by a distinguishing number.
M. “Property” – The land described in Exhibit A hereto, and any land hereafter added to The A-B-C Condominium by amendment hereto, together with all improvements and structures erected or to be erected thereof, including all appurtenances thereto belonging and all fixtures and equipment intended for the mutual use, benefit or enjoyment of the Unit Owners.
N. “Record” – To record in the office of the Recorder of Deeds of the City of St. Louis, Missouri.
O. “Unit” – Each portion of the Property consisting of one or more rooms and one or more floors or a part or parts thereof, designed and intended as an independent living Unit, as more specifically defined in ARTICLE THREE hereof.
P. “Unit Owners” – The person or persons whose estates or interests, individually or collectively, aggregate a fee simple ownership of a Unit.
ARTICLE TWO: SUBMISSION OF PROPERTY TO THE ACT
A. The Developer, as the owner in fee simple of the Property intends to and does hereby submit the Property to the provisions of the Act to be known as The A-B-C Condominium.
ACTICLE THREE: UNITS
A. The legal description of each Unit shall consist of the identifying number or symbol of such Unit as shown on the Plat. Every deed, lease, mortgage, or other instrument may legally describe a Unit by such legal description, and every such description shall be deemed good and sufficient for all purposes, as provided in the Act, and shall be deemed to convey, transfer, encumber or otherwise affect the Unit Owner’s corresponding share of ownership in the common elements even though the same is not expressly mentioned or described therein. Each Unit shall consist of the space enclosed and bounded by interior surfaces of the floors and ceilings and perimeter walls and doors of such Unit as shown on the Plat, excluding the undecorated and unfinished surfaces of (i) the perimeter walls, (ii) the interior, load-bearing walls, (iii) the floors, (iv) the ceilings, and also excluding any pipes, wires, conduits, public utility lines, sanitary sewer lines or other utility lines, or structural components running through any portion of the Unit which are utilized for or serve more than one Unit (the portions thus excluded being portions of the Common Element(s).
B. Each Unit Owner shall be entitled to the share of ownership in the Common Elements appertaining to such Unit. Ownership of such Unit and the Unit Owner’s share of ownership in the Common Elements shall not be separated, nor shall any Unit, by deed, Plat, court decree or otherwise, be subdivided or in any other manner separated into smaller tracts or parcels other than the whole Unit as shown on the Plat. No Unit Owner shall, by deed, Plat or otherwise, subdivide or in any other manner cause his Unit to be separated into any tracts or parcels smaller than the whole Unit as shown on the Plat.
ARTICLE FOUR: COMMON ELEMENTS
A. Each Unit Owner’s share in the Common Elements is shown in Exhibit B attached hereto and each Unit Owner shall bear the same proportionate share of Common Expenses as the share of Common Elements shown bears to 100. The percentage so assigned may be changed by vote of all Unit Owners.
B. Each Unit Owner shall have the right to use the Common Elements in common with all other Unit Owners, as may be required for the purposes of access, ingress and/or egress to and for the use, occupancy and enjoyment of the respective Unit owned by such Owner. Such right to use the Common Elements shall extend to each Unit Owner, the members of the immediate family of each Unit Owner, and the guests and other authorized visitors, occupants and leases of each Unit Owner. Each Unit Owner shall be deemed to have an easement in common with other Unit Owners, in, upon, across, over, under, through, and with respect to the Common Elements to the extent of such right to use the Common Elements. The Board of Managers shall have the authority to lease or rent or to grant licenses or concessions with respect to the laundry or other parts of the Common Elements, subject to the provisions of the Declaration and By-laws, provided that the lease, rental or granting of any license or concession for the use of the Common Elements by other than all Unit Owners shall also require the approval of 66% of the Unit Owners.
C. The Board of Managers shall have the right from time to time to purchase, accept, take title to or otherwise acquire, in the name of the Association and on behalf of the Unit Owners, additional parcels of real Property contiguous to the Property, and upon the acquisition of any such parcel, the Board of Managers shall prepare, execute (on behalf of the Association) and record an amendment to the Declaration and an amendment to the Plat adding such parcel to the Property and thus making such parcel part of the Common elements of The A-B-C Condominium. The Board of Manager shall not exercise any power under this Section C. without the prior written consent of at least 66% of the Unit Owners. The purchase price for any such parcel shall constitute a Common Expense within the meaning of the Declaration and the Act and the Board of Managers, upon such consent by the Unit Owners, is hereby authorized to assess each Unit Owner for such Unit Owner’s proportionate share of such purchase price in an amount equal to such Unit Owner’s share of ownership in the Common Elements.
ARTICLE FIVE: COVENANTS AGAINST PARTITION
A. As long as the Property is subject to the provisions of the Act, the Common Elements shall, except as provided in Section 448.140 of the Act, remain undivided and no Unit Owner shall bring any action for partition or division of the common Elements. A covenant or agreement to the contrary shall be null and void. Nothing contained herein, however, shall prevent partition of a Unit as between co-owners there, if such right of partition shall otherwise be available, but such partition shall not be in kind.
ARTICLE SIX: EASEMENTS
A. The Board of Managers, as hereinafter provided, may hereafter grant easements for utility purposes for the benefit of the Property, including, but not by way of limitation, the right to install, lay, maintain, repair, and replace gas mains, water mains, sewer lines, pipes, wires, ducts, conduits, public utility lines, telephone lines, equipment, or structural components in, upon, across, over, under, through and with respect to any portion of the Common Elements, and each Unit Owner hereby grants the Board of Managers and their successors in interest an irrevocable power of attorney to execute, acknowledge and record, for and in the name of such Unit Owner, such instruments as may be necessary to effectuate the foregoing.
B. Easements are hereby declared and granted to install, lay, maintain, repair and replace any gas mains, water mains, sewer lines, pipe, wires, ducts, conduits, public utility lines, telephone lines equipment, or structural components in, upon, across, over, under or through the walls, floors or ceilings of the Units, whether or not such walls lie in whole or in part within the Unit boundaries. In connection with said easements, the Board of Managers and its agents shall be entitled to reasonable access to the Units as may be required in connection with maintenance, management, operation, repair and replacement of or to anything set forth herein or any other equipment, facilities or fixtures affecting or servicing other Units or the Common Elements.
C. If any portions of the Common Elements shall actually encroach upon any Unit, of if any Unit shall actually encroach upon any portions of the Common elements, as the Common Elements and Units are shown by the Plat, there shall be deemed to be mutual easements in favor of the owners of the Common Elements and the respective Unit Owners involved to the extent of such encroachments so long as the same shall exist.
D. All easements and rights described herein are easements appurtenant, running with the land, perpetually in full force and effect, and at all times shall inure to the benefit of and be binding on the Developer, its successors and assigns, and any owner, purchaser, mortgagee, trustee and other person having any interest in the Property or any part or portion thereof. Reference in the deeds of conveyance, or in any mortgage or trust deed or other evidence of obligation, to this Declaration or the easements and rights described in this Article, or described in any other part of this Declaration, shall be sufficient to create and reserve such easements and rights to the such respective successors and assigns, grantees and any Owners, purchasers, mortgagees and trustees as fully and completely as though such easements and rights were recited fully and set forth in their entirety in such documents.
ARTICLE SEVEN: RESTRICTIONS
The use of each Unit and Common Elements is subject to the following restrictions which are perpetual and appurtenant to the Units and Common Elements:
A. No part of any Unit shall be used for a purpose other than residential. Use of any Unit must be in compliance with the ordinances and regulations of the City of St. Louis as to the use of Units and occupancy thereof. Use of any Unit must be in compliance with the Rules and Regulations adopted by the Board of Managers.
B. Except for storage spaces designated by the Board of Managers, there shall be no obstruction of any portion of the Common Elements without prior written consent of the Board of Managers. Except for laundry areas designated by the Board of Managers or as authorized by said Rules and Regulations, no clothes, laundry, window air conditioning unit or other articles shall be hung or exposed on or about any portion of the common Elements or on or about the windows or exteriors of buildings.
C. Each Unit Owner shall maintain and keep his Unit (including exclusive areas) in good order and repair and shall do nothing which will prejudice the structural integrity or will increase the rate of insurance on the building in which his Unit is situated or which would be in violation of law.
D. No signs shall be hung or displayed on the outside of windows or placed on walls of any building except for signs authorized by said Rules and Regulations and no awnings, storm windows, screens, canopy, shutter or radio or television antenna shall be affixed to or placed upon an exterior wall or roof without prior written consent of the Board of Managers.
E. Except as authorized by the Board of Managers, no animals, reptiles, birds, rabbits, livestock, fowl or poultry of any kind shall be kept, raised or bred in any portion of the Property. There shall be no structure for any such animal outside any Unit at any time. Fish maintained in a household aquarium shall not be deemed to be “animals” as defined herein.
F. No noxious, offensive activity or nuisance shall be carried on in any Unit or in the Common Elements nor shall anything be done which will become an annoyance or a nuisance to the Unit Owners or Occupants.
G. No business, trade or occupation of any kind shall be conducted, maintained or permitted on any part of the Property. Nothing contained herein shall prevent any Unit Owner from conducting work within his Unit as long as the Unit does not constitute that person’s place of business.
H. Trash, garbage and other waste shall be kept only in sanitary containers, and shall be disposed of in a clean and sanitary manner as prescribed from time to time in said Rules and Regulations.
I. No Unit Owner shall overload the electric wiring in the building, or operate machines, appliances, accessories or equipment in such manner as to cause, in the judgement of the Board, an unreasonable disturbance to others, or connect any machines, appliances, accessories or equipment to the heating or air conditioning system or plumbing system, without the prior written consent of the Association, Board of Managers, or professional managing agent.
J. The Board of Managers shall have the right to regulate the occupancy of the Units.
ARTICLE EIGHT: SALE, LEASING OR OTHER ALIENATION
A. Except with respect to a transfer described in Section B. of this ARTICLE EIGHT, if any Unit Owner (other than a mortgagee or beneficiary under a mortgage or deed of trust who has acquired a Unit by foreclosure or deed in lieu of foreclosure) shall desire at any time to sell, lease or otherwise voluntarily transfer his Unit (including a transfer without consideration but subject to an existing indebtedness), he shall first give the Association at least thirty (30) days prior written notice (“Offer Notice”) of the proposed sale, lease or transfer, which notice shall state the name and address and financial and character references of the proposed purchaser, lessee or transferee and the terms of the proposed sale, lease or transfer. During the period of thirty (30) days following the receipt by the Association of such Offer Notice, the association shall have the first right at its option to purchase or lease such Unit upon the same terms as the proposed sale, lease or transfer described in such Notice. If the Association shall give written notice to such Unit Owner within said 30-day period that it has elected not to exercise such option, or if the Association shall fail to give written notice to such Unit Owner within said 30-day period that it does or does not elect to purchase or lease such Unit upon the same terms as provided in the Offer Notice, then, such Unit Owner may proceed to close said proposed sale, lease or transfer at any time within the next ninety (90) days thereafter; and if he fails to close said proposed transaction within said 90 days, his Unit shall again become subject to the Association’s right of first option as herein provided. If the Association shall give written notice to such Unit Owner within said 30-day period of its election to purchase or lease such Unit upon the same terms as described in the Offer Notice, then such purchase or lease by the Association shall be closed upon such terms.
B. Any Unit Owner (other than a mortgagee or beneficiary under a mortgage or deed of trust who has acquired a Unit by foreclosure or deed in lieu of foreclosure) who wishes to (i) make a gift of his Unit or any interest therein, or (ii) transfer his Unit or any interest therein for a consideration other than cash, or notes (secured or unsecured) of such transferee, or the assumption of an existing indebtedness, in each case to any person or persons who would not be a spouse or one or more of the heirs at law of the Unit Owner (were he or she to die domiciled in the State of Missouri on the date sixty (60) days prior to the contemplated date of such gift or other transfer), shall give to the Association not less than sixty days written notice of his or her intention to make such gift or other transfer prior to the contemplated date thereof. Said notice shall state the contemplated date of said gift or other transfer, the intended donee or transferee, and the terms in detail of such proposed transfer. The Association shall have the first right and option to purchase said Unit or interest therein for cash at fair market value which shall be determined by arbitration as herein provided. Within fifteen (15) days after receipt of said written notice by the Association, the Association and the Unit Owner desiring to make such gift or other transfer shall each appoint a qualified real estate appraiser to act as arbitrators. The two arbitrators so appointed shall within ten (10) days after their appointment, appoint another qualified real estate appraiser to act as the third arbitrator. Within fifteen (15) days after the appointment of said third arbitrator, the three arbitrators shall determine, by majority vote, the fair market value of the Unit or interest therein which the Unit Owner contemplates conveying, and shall thereupon give written notice of such determination to the Unit Owner and the Association. The Association’s option to purchase the Unit or interest therein shall expire forty-five (45) days after the date of receipt by it of such notice from the arbitrators. If said option is not exercised by the Association within said forty-five (45) day period, the Unit Owner, at the expiration of said 45-day period and within sixty (60) days thereafter, may complete, or contract to complete, the proposed gift or other transfer upon the terms stated in the notice to the Association. Notwithstanding anything set forth above, the Association may elect not to exercise the option described above at any time prior to the appraisal by the arbitrators.
C. In the event that any Unit Owner dies leaving a will devising his Unit, or any interest therein, to any person(s), firm(s) or other entity(ies) who is not either the surviving spouse or any one or more of the persons who would be the heirs at law of the deceased Unit Owner if he had died domiciled in Missouri, and said will is admitted to probate, the Association shall have an option to purchase said Unit from the estate of the deceased Unit Owner, or from the devisee(s) named in such will if the personal representative(s) named therein is (are) not authorized or is (are) unwilling to transfer the Unit to the Association, for cash at fair market value which shall be determined by arbitration as herein provided. Within sixty (60) days after the appointment of a personal representative(s) for the estate of the deceased Unit Owner, the Association shall appoint a qualified real estate appraiser to act as an arbitrator and shall give written notice of such appointment to the said devisee(s), or personal representative(s) as the case may be. Within fifteen (15) days thereafter, said devisee(s), or personal representative(s), as the case may be, shall appoint a qualified real estate appraiser to act as an arbitrator. Within ten (10) days after the appointment of said arbitrators, the two so appointed shall appoint another qualified real estate appraiser to act as the third arbitrator. Within fifteen (15) days thereafter, the three arbitrators shall determine, by majority vote, the fair market value of the Unit of the deceased Unit Owner and shall thereupon give written notice of such determination to the Association and said devisee(s), or personal representative(s), as the case may be. The Association’s right to purchase the Unit at the price determined by the three arbitrators shall expire sixty (60) days after the date of receipt by it of such notice if the transfer to the Association is to be from the personal representative(s), and shall expire seven (7) months after the first publication of notice of the appointment of the personal representative(s), if the transfer to the Association is to be from the devisee(s). The Association shall be deemed to have exercised its option if it tenders the required sum of money to said devisee(s) or to said personal representative(s), as the case may be, within said option periods. If the devisee(s) is (are) to transfer the Unit to the Association, said tender may be in escrow if such devisee(s) is (are) unable at the time of the tender to transfer title to the Unit to the Association. Nothing herein contained shall be deemed to restrict the right of the Association or its authorized representative to bid at any auction or sale of the Unit of interest therein of any deceased Unit Owner which said auction or sale is held pursuant to an order of direction of the court having jurisdiction over that portion of the deceased Unit Owner’s estate which contains his Unit or interest therein. Notwithstanding anything set forth above, the Association may elect not to exercise the option described above at any time prior to the appraisal by the arbitrators.
D. In the event any Unit or interest therein is sold at a judicial or execution sale (other than a mortgage foreclosure sale or a foreclosure sale pursuant to a power of sale in a deed of trust), the person acquiring title through such sale shall, before taking possession of the Unit so sold, give thirty (30) days written notice to the Association of his intention so to do, whereupon the Association shall have an irrevocable option to purchase such Unit or interest therein at the same price for which it was sold at said sale. If said option is not exercised by the Association within said thirty (30) days after receipt of such notice it shall thereupon expire and said purchaser may thereafter take possession of said Unit. The Association shall be deemed to have exercised its option if it tenders the required sum of money to the purchaser within said thirty (30) day period.
E. If the Association shall make any such purchase or lease of a Unit as herein provided, the Association (acting through the Board of Managers) shall have the authority at any time thereafter to sell or sublease such Unit upon such terms as the Association shall deem desirable, without complying with the foregoing provisions relating to the Association’s right of first option.
F. The Board of Managers of the Association shall have the authority, on behalf of and in the name of the Association, to elect to exercise or not to exercise any option of the Association described above and to give written notice of such election. A certificate executed by the President or Secretary of the Association, certifying that the Association by its Board of Managers has elected not to exercise such option to purchase or lease such Unit shall be conclusive evidence of such election by the Association and of the compliance with the provisions hereof by the Unit Owner proposing to make such proposed sale, lease or transfer. Such certificate shall be furnished to such Unit Owner upon his compliance with the provisions hereof. Notwithstanding anything set forth above, before the Association exercises its option to purchase any Unit or interest therein, the Board shall promptly call a meeting of all of the Unit Owners for the purpose of acting upon such option, which meeting shall be held within the appropriate period for the exercise of such option. If Unit Owners owning not less than sixty-six percent (66%) in the aggregate of the total ownership interests in the Common Elements, by affirmative vote at such meeting, elect to exercise such option to make such purchase, then the Board of Managers shall promptly give written notice of such election as herein provided. In such event, such purchase by the Association shall be closed and consummated, and, for such purpose, the Board of Managers shall have the authority to make such mortgage or other financing arrangements, and to make such assessments proportionately among the respective Unit Owners, and to make such other arrangements, as the Board of Managers may deem desirable in order to close and consummate such purchase or lease of such Unit by the Association. All expenses incurred in connection with the purchase or lease of any Unit or interest therein pursuant to the provisions of this ARTICLE EIGHT (including the expenses of, and any payments pursuant to, any financing used for any such acquisition) shall constitute Common Expenses and the Board of Managers shall have the authority to assess each Unit Owner for such Unit Owner’s proportionate share of such expenses in an amount equal to such Unit Owner’s share of ownership in the Common Elements.
G. If a proposed lease of any Unit is made by any Unit Owner, after compliance with the foregoing provisions, a copy of the lease as and when executed shall be furnished by such Unit Owner to the Board of Manages, and the lessee thereunder shall be bound by and be subject to, all of the obligations of such Unit Owner with respect to such Unit as provided in this Declaration and the By-Laws, and the lease shall expressly so provide. The Unit Owner making any such lease shall not be relieved thereby from any of his obligations. Upon the expiration or termination of such lease, or in the event of any attempted subleasing thereunder, the provisions hereof with respect to the Association’s right of first option shall again apply to such Unit.
H. If any sale or lease or transfer of a Unit is made or attempted by any Unit Owner without complying with the foregoing provisions, such sale or lease or transfer shall be voidable by the Association and shall be subject to each and all of the rights and options of the Association hereunder and each and all of the remedies and actions available hereunder or at law, or in equity in connection therewith.
I. The foregoing provisions with respect to the Association’s right of first option as to any proposed sale, lease or transfer shall be and remain in full force and effect until the Property as a whole shall be sold or removed from the provisions of the Act, as provided in the Act, unless sooner rescinded or amended by the Unit Owners in the manner herein provided for amendment of this Declaration. The Board of Managers of the Association may adopt rules and regulations from time to time not inconsistent with the foregoing provisions, for the purpose of implementing and effectuating the foregoing provisions.
ARTICLE NINE: COMMON EXPENSES
A. Each Unit Owner shall pay his proportionate share of the Common Expenses in such amounts and at such times as determined in the manner provided in the Declaration and By-Laws. If any Unit Owner shall fail or refuse to make such payment of the Common Expenses when due, the amount thereof shall constitute a lien on the interest of such Unit Owner in the Property as provided in the Act.
B. Without limiting the rights of the Board of Managers to collect Common Expenses or enforce the lien resulting from the failure to pay Common Expenses as set forth in the Act, if a Unit Owner is in default in the payment of his share of Common Expenses for 30 days after such payment is due, the Board of Managers may bring suit to enforce collection thereof or to foreclose the lien created by such default and there shall be added to the amount due to cost of suit, together with legal interest, late charges and reasonable attorney’s fees. In the event of any foreclosure sale, the Board of Managers shall have the power to purchase the interest foreclosed and to acquire and hold, lease, mortgage and convey the same; provided, however, the Board of Manages shall not exercise the power to bid in at any foreclosure sale without the prior written consent of at least 66% of the Unit Owners.
C. No Unit Owner may waive or otherwise escape liability for his share of the Common Expenses provided for herein by non-use of the Common Elements or abandonment of his Unit.
ARTICLE TEN: ASSOCIATION OF UNIT OWNERS
A. There has been formed, prior to the recording hereof, a not-for-profit corporation under the General Not-For-Profit Corporation Act of the State of Missouri, having the name THE A-B-C-CONDOMINIUM (formerly Aberdeen Associates, Inc.), which corporation (herein referred to as the “Association”) shall be the governing body for all the Unit Owners for the maintenance, management, operation, repair and replacement of the Property as provided in the Act, Declaration and By-LawsThe Board of Directors of the Association shall be deemed to be the “Board of Managers” for the Unit Owners referred to in the Declaration, By-Laws and in the Act.
B. The Association shall not be deemed to be conducting a business of any kind, and all funds received by the Association shall be held and applied by it for the Unit Owners in accordance with the provisions of the Declaration and By-Laws.
C. Each Unit Owner shall be a member of the Association so long as he shall be a Unit Owner, and such membership shall be non-transferable and shall automatically terminate when he ceases to have an interest as a Unit Owner, and upon the transfer of part or all of his ownership interest, the person succeeding to such ownership interest shall automatically succeed to such corresponding membership in the Association.
D. The Association may, but need not, issue certificates evidencing membership in the Association. The aggregate number of votes for all members of the Association shall be One Hundred (100) which shall be divided among the respective Unit Owners in accordance with their respective share of ownership in the Common Elements.
E. In the event of any dispute or disagreement between any Unit Owners, or any questions of interpretation or application of the provisions of the Declaration or By-Laws, the determination thereof by the Board of Managers shall be final.
F. Notwithstanding the duty of the Association to maintain, manage, operate, repair and replace parts of the Property, the Association shall not be liable for any act, omission, injury or damage, except that which is due to the willful or gross negligence of the Association.
ARTICLE ELEVEN: MORTGAGE OF UNIT OWNERSHIP
A. Each Unit Owner shall have the right to make a separate mortgage or encumbrance on his respective Unit together with his respective share of ownership in the Common Elements. No Unit Owner shall have the right or authority to make or create or cause to be made or created any mortgage or encumbrance or other lien on or affecting the Property or any part thereof, except only to the extent of his Unit and his respective share of ownership in the Common Elements.
B. In the event any Unit Owner shall default in the payment of any sums of money required to be paid under the provisions of any mortgage or deed of trust against his Unit, the Association shall have the right to cure such default (in accordance with the provisions of, and during the time period provided in, such mortgage or deed of trust) by payment of the amount so owing to the party entitled thereto and shall thereupon have a lien therefor against such Unit, which lien shall have the same force and effect and may be enforced in the same manner as provided in ARTICLE NINE hereof and the Act. In the event the Association does not elect to cure such default, then the lienholder may proceed to foreclose such lien and then sell the Property in accordance with the mortgage or deed of trust. Nothing herein contained shall be construed to require the holder of a mortgage or deed of trust to furnish notice of default under said mortgage or deed of trust to the Association.
ARTICLE TWELVE: SEPARATE REAL ESTATE TAXES
A. The real estate taxes of each Unit are to be separately paid by each Unit Owner as provided in the Act. If, for any reason, the tax bills are not separately issued by the taxing authorities, then each Unit Owner shall pay his pro-rata share of the taxes in accordance with the respective share of ownership in the Common Elements.
B. The Association shall have the right to estimate the annual real estate taxes and require each Unit Owner not escrowing real estate tax payment with a mortgagee to escrow one-twelfth (1/12th) of said estimated real estate tax bill for such Unit with the Association each month and the Association will then make the payment of said taxes.
ARTICLE THIRTEEN: UTILITIES
A. Each Unit Owner shall pay for his own telephone, electricity and other utilities which are separately metered or billed to his Unit by the respective utility company.
B. Utilities which are not separately metered or billed shall be treated as part of the Common Expenses.
ARTICLE FOURTEEN: INSURANCE
A. The Board of Managers shall have the authority to and shall obtain insurance for the Property against loss or damage by fire and such other hazards as the Board of Managers may deem advisable for the full insurable replacement cost of the Property. Such insurance coverage shall be payable to the Association or the Board of Managers as the trustee for each of the Unit Owners in their respective share of ownership in the Common Elements as established in the Declaration. Premiums for such insurance shall be Common Expenses. The policy of insurance may contain a loss payable clause containing the woods: “To the holder or holders of mortgages or deeds of trust of record, if any, as their interests may appear” without specifically naming the holder or holders in the clause, in which event the proceeds shall thereupon be payable jointly to the Board of Managers and the holder of mortgages or deeds of trust of record, as trustees for each of the Unit Owners. The Board of Managers shall have full power to adjust all insurance losses by suit or otherwise and payment accepted by the Board of Managers hereunder shall constitute a discharge to the insurer.
B. The Board of Managers shall also have the authority to and shall obtain comprehensive public liability insurance, in such limits as it may deem desirable, and workman’s compensation insurance and other insurance as it may deem desirable, insuring each Unit Owner and the Association, Board of Managers, manager and professional managing agent from liability in connection with the Common Elements, and the premiums for such insurance shall be a Common Expense.
C. Each Unit Owner shall be responsible for his own insurance on the contents of his own Unit, and his additions and improvements hereto and decorating and furnishings and personal Property therein, and his personal liability to the extent not covered by the liability insurance for all of the Unit Owners obtained as part of the Common Expenses as above provided.
ARTICLE FIFTEEN: MAINENANCE, REPAIRS AND REPLACEMENT
A. Each Unit Owner shall furnish and be responsible for, at his own expense, all of the maintenance, repairs and replacements within his own Unit including, but not limited to, air conditioning, plumbing fixtures, windows, window screens, refrigerators, ranges and other kitchen appliances, provided, however, such maintenance repairs and replacements as may be required for the functioning of the plumbing fixtures within the Unit, and for the bringing of water, gas or electricity to or through the Unit or any existing plumbing fixtures shall be furnished by the Association, as part of the Common Expenses. The Association may provide, by its Rules and Regulations, for ordinary maintenance and minor repairs and replacements to be furnished to Units by building personnel as a Common Expense.
B. If, due to a household pet, or other negligent act or omission of a Unit Owner, or of a member of his family or of a guest or other authorized visitor, Occupant or lessee of such Unit Owner, damage shall be caused to the Common Elements or to a Unit or Units owned by others, or maintenance, repairs or replacements shall be thereby required which would otherwise be a Common Expense, then such Unit Owner shall pay for such damage and such maintenance, repairs and replacements, as may be determined by the Association. Maintenance, repairs and replacements to the Common Elements or the Units shall be subject to the Rules and Regulations adopted by the Board of Managers.
C. To the extent that equipment, facilities and fixtures within any Unit or Units shall be connected to similar equipment, affecting or serving other Units or the Common Elements, then the use thereof by the individual Unit Owners shall be subject to the Rules and Regulations adopted by the Board of Managers. The authorized representatives of the Association or Board of Managers, or of the professional managing agent for the Property, shall be entitled to reasonable access to the individual Units as may be required in connection with maintenance, repairs or replacements of or to the Common Elements or any equipment, facilities or fixtures affecting or serving other Units or the Common Elements.
ARTICLE SIXTEEN: ALTERATIONS, ADDITIONS AND IMPROVEMENTS
A. Each Unit Owner shall furnish and be responsible for, at his own expense, all of the decorating within his own Unit from time to time, including painting, wall papering, washing, cleaning, paneling, floor covering, draperies, window shades, window screens, curtains, lamps and other furnishings, and interior decorating. The maintenance responsibilities in this Article shall be subject to the Rules and Regulations adopted by the Board of Managers. All interior and exterior surfaces of all windows forming part of the perimeter wall of a Unit shall be cleaned or washed at the expense of each respective Unit Owner. The use of and the covering of the interior surfaces of such windows, whether by draperies, shades or other items visible on the exterior of the Property shall be subject to the Rules and Regulations adopted by the Board of Managers.
B. Decoration of the Common Elements and any redecoration of Units to the extent made necessary by any damage to existing decoration of such Unit caused by maintenance, repair or replacement work on the Common Elements by the Association, shall be furnished by the Association as part of the Common Expenses.
C. No alterations of any Common Elements or any additions or improvements thereto, shall be made by any Unit Owner without the prior written approval of the Board of Managers.
ARTICLE SEVENTEEN: DAMAGE, DESTRUCTION AND RECONSTRUCTION
A. In case of fire or other disaster, if the insurance proceeds are insufficient to reconstruct the Property and the Unit Owners and all other parties in interest do not voluntarily make provision for reconstruction of the Property within one hundred and eighty (180) days from the date of damage or destruction, the Board of Managers may record a notice setting forth such facts and upon the recording of such notice:
1. the Property shall be deemed to be owned in the common by the Unit Owners;
2. the undivided interest in the Property owned in common which shall appertain to each Unit Owner shall be the percentage of undivided ownership previously owned by such owner in the Common Elements;
3. any liens affecting any of the Units shall be deemed to be transferred in accordance with existing priorities to the undivided interest of the Unit Owner in the Property as provided herein; and
4. the Property shall be subject to an action for partition at the suit of any Unit Owner, in which event the net proceeds of sale, together with the net proceeds of the insurance on the Property, if any, shall be considered as one fund and shall be divided among all the Unit Owners in a percentage equal to the percentage of undivided interest owned by each owner in the Property, after first paying out of the respective shares of the Unit Owners, to the extent sufficient for the purpose, all liens on the undivided interest in the Property owned by each Unit Owner.
B. In case of fire or any other disaster, the insurance proceeds, if sufficient to reconstruct the Property, shall be applied to such reconstruction. Reconstruction of the Property, as used in this ARTICLE SEVENTEEN, means restoring the Property to substantially the same condition in which it existed prior to the fire or other disaster, with each Unit and the Common Elements having the same vertical and horizontal boundaries as before.
C. Any reconstruction or repair must be substantially in accordance with the Plat at the time this Declaration is recorded; or if not, then according to plans and specifications approved by the Board of Managers and if damaged Property is a building, by the Unit Owners of all damaged Units therein, which approvals shall not be unreasonably withheld.
D. If the damage is only to those parts of one Unit for which the responsibility of maintenance and repair is that of the Unit Owner, then the Unit Owner shall be responsible for reconstruction and repair after such a casualty. In all other instances, the responsibility of reconstruction and repair after such casualty shall be that to the Association.
E. Immediately after a determination to rebuild or repair damage to Property for which the Association has the responsibility of reconstruction and repair, the Association shall obtain reliable and detailed estimates of the cost to rebuild or repair.
F. If the proceeds of insurance are not sufficient to defray the estimated costs of reconstruction and repair by the Association, or if at any time during reconstruction and repair, or upon completion of reconstruction and repair, the funds of the payment of the costs thereof are insufficient, assessments shall be made against the Unit Owners who own the damaged Units and against all Unit Owners in the case of damage to Common Elements, in sufficient amounts to provide funds for the payment of such costs. Such assessments against Unit Owners for damage to Units shall be computed by taking the cost to repair the respective Unit as a basis in relation to the cost of reconstruction and repair of the Property as a whole.
G. The Board of Managers shall adopt rules and regulations for the assessments, collection of assessments and collection of insurance funds and for the payment or disbursement of the same.
ARTICLE EIGHTEEN: REMEDIES FOR BREACH OF CONVENANTS, RESTRICTIONS AND
A. The violation of any restrictions or conditions or regulations adopted by the Board of Managers or the breach of any covenants or provisions in the By-Laws or as herein contained, shall give the Board of Managers the right, in addition to the rights set forth in Sections B and C of this ARTICLE EIGHTEEEN, to;
1. enter upon the property upon which, or as to which, such violation or breach exists and to summarily abate and remove, at the expense of the defaulting Unit Owner, any structure, thing or condition that may exist thereon contrary to the intent and meaning of the provisions hereof, and the Board of Managers, or its agents, shall not thereby be deemed guilty in any manner of trespass; or
2. enjoin, abate or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any breach.
B. If any Unit Owner (either by his own conduct or by the conduct of any guest or authorized visitor, Occupant or lessee of such Unit Owner) shall violate any of the covenants or restrictions or provisions of this Declaration, By-Laws or the Rules and Regulations adopted by the Board of Managers, and such violation shall continue for thirty (30) days after notice thereof in writing from the Board of Managers, or shall occur repeatedly during any thirty (30) day period after written notice or request to cure such violation from the Board of Managers, then the Board of Managers shall have the power, by action of a majority of its members, to issue to the defaulting Unit Owner a ten (10) day notice in writing to terminate the rights of said defaulting Unit Owner to continue as a Unit Owner and to continue to use, occupy or control his Unit, and thereupon, after giving such ten (10) day notice, the Board of Managers may commence an action in equity against the defaulting Unit Owner for a decree of mandator injunction against the Unit Owner or Occupant. This Section shall in no way limit or qualify any other rights, powers or remedies granted to the Board in the Act or in any other Article of this Declaration.
C. All expenses of the Association in connection with any such actions or proceedings, including court costs, attorney’s fees, collection costs, and all damages, liquidated or otherwise, together with interest thereon at the legal rate of interest per annum until paid, shall be charged to and assessed against such defaulting Unit Owner as part of his respective share of the Common Expenses. The Association shall have a lien for all of the expenses in this Section, in addition to other liens provided in the Declaration and Act, upon the Unit and share of ownership in the Common Elements of such defaulting Unit Owner and upon all of his additions and improvements thereto and upon all of his personal Property in his Unit or located elsewhere on the Property.
D. The proceeds of any judicial sale or other proceeding to enforce a lien provided for in Section C of this ARTICLE shall first be paid to discharge the expenses incurred pursuant to such Section C and all other expenses of the proceeding, and all such items shall be taxed against the defaulting Unit Owner in said decree. Any balance of proceeds after satisfaction of such charges, unpaid assessments, liens, mortgages or deeds of trust, shall be paid to the Unit Owner. Upon the confirmation of such sale, the purchaser thereat shall thereupon be entitled to a deed to the Unit and to immediate possession of the Unit sold and may apply to the court for a writ of execution for the purpose of acquiring such possession, and it shall be a condition of such sale, and the decree shall so provide, that the purchaser shall take the interest in the Property sold subject to this Declaration, and the purchaser shall become a Unit Owner in the place and stead of the defaulting Unit Owner.
ARTICLE NINETEEN: AMENDMENTS
A. The provisions of the Declaration may be amended from time to time upon the approval of such amendment or amendments by the Association pursuant to a resolution or written consent approving such amendment or amendments adopted or given by not less than sixty-six percent (66%) of all of the Unit Owners; provided however, that if the Act, Declaration or By-Laws shall require a greater percentage of approval of the Unit Owners or the approval of all or a specified percentage of the lien holders for any action specified in the Act, Declaration or By-Laws, then any amendment or amendments with respect to such action shall require such percentage and/or approval. No amendment shall be valid or effective until such amendment is duly recorded in the Office of the Recorder of Deeds in the City of St. Louis, provided however, that this Declaration and By-Laws shall at all times contain the minimum requirements imposed by the Act.
B. No amendment shall increase or decrease any Unit Owner’s interest in his Unit nor the share in the Common Elements appurtenant to it, nor increase the Unit Owner’s share of the Common Expenses, unless the record owner of the Unit concerned and all record owners of mortgages thereon shall join in the execution of the amendment. Neither shall an amendment of the Declaration make any change in ARTICLE FOURTEEN (Insurance) nor ARTICLE SEVENTEEN (Damage, Destruction and Reconstruction) of this Declaration unless the record owners of mortgages upon all Units shall join in the Execution of the amendment.
ARTICLE TWENTY: GENERAL PROVISIONS
A. The captions of the various Articles are for purposes of reference only, and are not deemed to have any substantive effect.
B. Upon written request to the Board of Managers the holder of any recorded mortgage or deed of trust against any Unit shall thereafter be given copies of any and all notices permitted or required by this Declaration to be given to the Unit Owner or Owners whose Unit is subject to such mortgage or deed of trust.
C. Any notice, demand, request, consent, approval or other communication provided for in the Act, this Declaration or the By-Laws, or desired to be given by any party to any other party or parties, shall be in writing, and shall be addressed as follows:
1. If to the Association or the Board of Managers, to the address, at the Property, of any member of the Board of Managers.
2. If to the Unit Owner, to the address of such Unit Owner’s Unit in The A-B-C Condominium.
The Association may designate a different address or addresses for notice to it, by giving written notice hereunder of such change to all Unit Owners. Any Unit Owner may designate a different address or addresses for notices by giving written notice hereunder of such change of address to the Association. Notices addressed as aforesaid shall be deemed given and delivered when deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested, or when delivered in person with written acknowledgment of the receipt thereof.
D. Each grantee of Developer, by the acceptance of a deed of conveyance, or such subsequent purchaser, accepts the same subject to all charges, and the jurisdiction, rights and powers created or reserved by this Declaration or to which this Declaration is subject, and all rights, benefits and privileges or every character hereby granted, created, reserved or declared, and all impositions and obligations hereby imposed shall be deemed and taken to be permanent and perpetual covenants running with the land, and shall bind any person having at any time any interest or estate in the Property, and shall inure to the benefit of such Unit Owner in like manner as though the provisions of the Declaration were recited and stipulated at length in each and every deed of conveyance.
E. No covenants, restrictions, conditions, obligations or provisions of this Declaration shall be deemed to have been abrogated or waived by reason of any failure to enforce the same irrespective of the number of violations or breaches which may occur.
F. The invalidity of any covenant, restriction, condition, limitation or any other provision of this Declaration, or of a part of the same, shall not impair or affect in any manner the validity, enforceability or effect of the rest of this Declaration.
G. The provisions of this Declaration shall be liberally construed to effectuate its purposes of creating a uniform plan for the development and operation of a first class condominium development. The use of personal pronouns shall be construed to apply to masculine, feminine or neuter gender as the context may require. Should any provision of this instrument be deemed to violate the Rule against Perpetuities and is not validated pursuant to Section 448.210 of the Act, then such provision shall not be stricken but shall be deemed to continue in force and effect for the longest time permitted under Missouri law, or for the life or lives in being plus twenty-one years. If any provision is deemed to be invalid, then the elimination of such provision shall not affect the remaining provisions.
H. Before any Unit Owner shall become a member of and serve on the Board of Managers, he shall qualify to be bonded. The Board of Managers shall procure a blanket fidelity bond on themselves individually and collectively for the benefit of all Unit Owners in the sum of at least Fifty Thousand Dollars ($50,000). The bond shall be written only by a bonding company approved to write fidelity bonds by the Probate Division of the Circuit Court of the City of St. Louis for Executors and Administrators. The cost of premiums for such blanket bond shall be paid out of the Common Expenses as a general charge and shall not be borne by the individual members of the Board of Managers.
I. It shall be within the powers of the Board of Managers to provide on behalf of each Board Member, a policy of Directors’ Liability Insurance. The cost of the premiums for such policy, if procured, shall be payable out of the Common Expenses of the Association as a general charge and shall not be borne by the individual members of the Board of Managers.
J. The following Exhibits are attached hereto and incorporated herein by this reference:
EXHIBIT A: Property
EXHIBIT B: Percentage Ownership of Common Elements
EXHIBIT C: By-Laws of The A-B-C Condominium
ARTICLE TWENTY-ONE: BOARD OF MANAGERS MAY ACT FOR
OWNERS-ACTIONS-SERVICE OF PROCESS
A. The Board of Managers of the members thereof are authorized or directed to acquire, hold, lease, mortgage or convey any part or interest in the Property, or to acquire any lien thereon, or to acquire or receive the proceeds of any policy of insurance or other monies, goods or chattels, with respect to the Property, and such actions shall be carried out in the names of the members of the Board of Managers and their successors in office from time to time, as trustees, on behalf of some or all of the Unit Owners, as the case may be.
B. Without limiting the rights of any Unit Owner, actions may be brought in the names of the members of the Board of Managers on behalf of two or more of the Unit Owners, as their respective interests may appear, with respect to any cause of action relating to the Common Elements of more than one Unit. Service of process on two or more Unit Owners in any action relating to the Common Elements of more than one Unit may be made on any member of the Board of Managers.
C. In the event of any violation of any ordinances affecting the Common Elements, service of notice thereof or service of process in any prosecution for ordinance violation may be made on any member of the Board of Managers in lieu of naming or serving all Unit Owners having an interest in the Common Elements, and such proceedings shall bind all Unit Owners. In the event that judgment is rendered in such proceeding against the Board of Managers, the Board of Managers shall satisfy such judgment, including payment of all costs, fines and attorney’s fees and including the expenditures of all funds necessary to cure such violation. In lieu of satisfying such judgment as a Common Expenses, the Board of Managers shall have the right to prorate and assess any costs so incurred against those Unit Owners that give rise to the cause of action, violation and judgment. In the event the Unit Owners do not satisfy the assessment so imposed, the Board may proceed under ARTICLE EIGHTEEN hereof.
IN WITNESS WHEREOF, THE A-B-C Condominium has caused this First Amendment to be executed on its behalf as of the day and year first above written.
THE A-B-C CONDOMINIUM
By: Jay E. Sushelsky
President, Board of Managers
As recorded: September 25th, 1983
A parcel of ground being part of Block 3884 of the City of St. Louis, Missouri; said parcel being more particularly described as follows:
BEGINNING at the point of intersection of the northern line of Laclede Avenue, 80 feet wide, with the eastern line of Kingshighway Boulevard, 130 feet wide, thence North 07 degrees 37 ½ minutes East 224.23 feet along the eastern line of said Kingshighway Boulevard to a line distant 223.17 feet south of and parallel with the southern line of West Pine Boulevard, 80 feet wide, measured at right angles thereto; thence South 75 degrees 02 minutes East 116.04 feet along said line parallel with the southern line of said West Pine Boulevard; thence South 07 degrees 37 ½ minutes West 69.61 feet along a line parallel with the eastern line of said Kingshighway Boulevard; thence South 82 degrees 22 ½ minutes East 3.50 feet along a line perpendicular to the eastern line of said Kingshighway Boulevard; thence South 07 degrees 37 ½ minutes West 77.00 feet along a line parallel with the eastern line of said Kingshighway Boulevard; thence North 82 degrees 22 ½ minutes West 3.50 feet along a line perpendicular to the eastern line of said Kingshighway Boulevard; thence South 07 degrees 37 ½ minutes West 54 feet along a line parallel with the eastern line of said Kingshighway Boulevard; thence South 15 degrees 00 minutes West 23.50 feet to the northern line of said Laclede Avenue; thence North 75 degrees 00 minutes West 113.00 feet along the northern line of said Laclede Avenue to the eastern line of said Kingshighway Boulevard and the point of beginning, and containing 26,046 Square Feet, according to a survey by Pitzman’s Co. of Surveyors & Engineers on July 22, 1977.
Percentage Ownership of Common Elements
UNIT NO. PERCENTAGE UNIT NO. PERCENTAGE
1-A-N 2.28988 1-C-N 1.89893
2-A-N 2.37196 2-C-N 1.97341
3-A-N 2.37196 3-C-N 1.97341
4-A-N 2.37196 4-C-N 1.97341
5-A-N 2.37196 5-C-N 1.97341
6-A-N 2.37196 6-C-N 1.97341
1-A-S 1.96761 1-C-S 1.89893
2-A-S 2.07015 2-C-S 1.97341
3-A-S 2.07015 3-C-S 1.97341
4-A-S 2.07015 4-C-S 1.97341
5-A-S 2.07015 5-C-S 1.97341
6-A-S 2.07015 6-C-S 1.97341
1-B-N 1.89893 1-D-N 1.96761
2-B-N 1.97341 2-D-N 2.07015
3-B-N 1.97341 3-D-N 2.07015
4-B-N 1.97341 4-D-N 2.07015
5-B-N 1.97341 5-D-N 2.07015
6-B-N 1.97341 6-D-N 2.07015
1-B-S 1.89893 1-D-S 2.28988
2-B-S 1.97341 2-D-S 2.37196
3-B-S 1.97341 3-D-S 2.37196
4-B-S 1.97341 4-D-S 2.37196
5-B-S 1.97341 5-D-S 2.37196
6-B-S 1.97341 6-D-S 2.37196