EditARTICLE 4 EASEMENTS
4.1 Owners' Easements of Environment in Common Area. 4.1.1 Subject to the rights and easements granted to the Declarant in Section 4.3 and 4.4 of this Declaration, every Owner, and any Resident, shall have a right and easement of enjoyment in and to the Common Area including, but not limited to, the right to use any Tract that serves as a Common Area private drive providing access to the rear Lot situated garages or private accessway providing the main access to the Residential Dwellings for ingress and egress to the Owner's Lot, which right shall be appurtenant to and shall pass with title to every Lot, subject to the following provisions:
(i) The right of the Association to dedicate, convey, transfer, mortgage or encumber the Common Area as provided in Section 5.1 1 of this Declaration;
(ii) The right of the Association to regulate the use of the Common Area through Association Rules and to prohibit access to such portions of the Common Area, such as landscaped areas, not intended for use by the Owner or Residents;
(iii) The right of the Association to suspend the right of an Owner and any Resident of the Owner's Residential Dwelling to use the Common Area if such Owner is more than 15 days' delinquent in the payment of Assessments or other amounts due to the Association or if the Owner or Resident has violated any provision of the Project Documents and has failed to cure such violation within 30 days after the Association notifies the Owner of the violation, except that the Association may not prevent ingress or egress to or from any Lot by the Owner of the Lot. Any such suspension for failure to pay Assessments or any infraction of the Project Documents shall continue until such time as all payments, including all delinquent Assessments, late charges, demand fees, interest and attorneys' fees, are brought current and until the infractions or violations of the Project Documents are cured, as applicable; and
(iv) An easement for ingress and egress over any Tract that serves as a main private accessway for public utility, U.S. mail delivery and collection, refuse collection and emergency access vehicles for purposes of providing such services as may be required by law or contracted for by the Association on behalf of the Owners.
4.1.2 Only current Residents and their Invitees accompanied by such Resident(s) shall have the right to use the Common Area.
4.1.3 Declarant shall convey the Common Area free and clear of all liens and monetary encumbrances to the Association no later than the date which is the first to occur of: (i) the date the last Lot in the Project is conveyed to a Purchaser; (ii) the date that is 5 years after the Recording of this Declaration; and (iii) the date that is within a commercially reasonable period after all Improvements for the Common Area designed by Declarant and approved by the City have been substantially completed. If the Common Area Improvements are not complete at the time of the conveyance of the first Lot in the Project to a Purchaser, Declarant shall have satisfied and provided all financial assurances for completion thereof as required by the applicable Arizona subdivision laws under Title 32 of the Arizona Revised Statutes and the rules of the Arizona Department of Real Estate.
4.2 Utility Easement. There is hereby created a blanket easement upon, across, over and under the Common Area for reasonable ingress, egress, installation, replacing, repairing or maintaining of all utilities, including, but not limited to, gas, water, sewer, telephone, cable television and electricity. By Virtue of this easement, it shall be expressly permissible for the providing utility company to erect and maintain the necessary equipment on the Common Area but no sewer, electrical, water, or other utility or service lines may be installed or located on the Common Area except as designed, approved and/or constructed by the Declarant or the Board.
4.3 Declarant's Use for Sales and Leasing Purposes. As long as Declarant is marketing or building upon Lots, or any other real property owned by Declarant, Declarant reserves the right and shall have an easement to: (i) place, erect, construct and/or maintain sales trailers, model homes, parking facilities, management offices and sales and leasing offices on any Lots owned by Declarant or on any portion of the Common Area in such number, of such size and in such locations as Declarant deems appropriate; (ii) retain all personal property and equipment used in the sales, management, or development of the Project that has not been represented as property of the Association and to remove all such goods and Improvements used in marketing, whether or not they have become fixtures; (iii) designate parking spaces on the Common Area not otherwise previously assigned to Owners or Residents, for exclusive use by prospective Purchasers, Declarant's employees, agents, guests and others engaged in sales, leasing, maintenance, construction or management activities; and (iv) place, erect, construct and/or maintain advertising, identification or directional signs. In the event of any conflict or inconsistency between this Section4.3 and any other provisions of this Declaration, this Section 4.3 shall control.
4.4 Declarant's Easements. Declarant shall have the right and an easement on or over the Areas of Association Responsibility to construct all Improvements or Modifications the Declarant may deem necessary and to use the Areas of Association Responsibility and any Lots and other property owned by Declarant for construction related purposes including the storage of tools, machinery, construction trailers, equipment, building materials, appliances, supplies and fixtures, and the performance of work respecting the Project. Irrespective of whether Declarant at any time is an Owner of Lots, Declarant shall have the right and an easement upon, over, and through the Areas of Association Responsibility as may be reasonably necessary for the purpose of discharging its obligations or exercising the rights granted to or reserved by the Declarant in this Declaration, including, without limitation, warranty work. In the event of any conflict or inconsistency between this Section4.4 and any other provisions of this Declaration, this Section 4.4 shall control.
4.5 Easements in Favor of Association. The Lots are hereby made subject to easements in favor of the Association and its directors, officers, agents, employees and independent contractors for: (i) inspection of the Lots (but not the interior of Residential Dwellings) in order to verify the performance by Owners of all items of maintenance and repair for which they are responsible and compliance by Owners and Residents with the Project Documents; (ii) inspection, maintenance, repair and replacement of the Areas of Association Responsibility accessible only from such Lots; (iii) correction of emergency conditions on one or more Lots; and (iv) the purpose of enabling the Association, the Board, the Architectural Committee or any other committees appointed by the Board, to exercise and discharge their respective rights, powers and duties under the Project Documents.
4.6 Easements for Encroachments. Subject to the further provisions of Section 4.7 below, each Residential Dwelling and other Improvements on the Lot are hereby declared to have an easement over adjoining Lots and Common Area for the purpose of accommodating minor encroachments due to engineering errors, errors in original construction, settlement or shifting of Improvements or any similar cause for as long as such encroachments shall exist; provided however, that in no event shall such easement exist for willful misconduct by any Owner or intentional encroachments, and provided, further that Declarant may remove and/or relocate any Boundary Wall (other than a Boundary Wall comprising part of a Residential Dwelling) or other encroachments onto Lots owned by Declarant at Declarant's sole expense (unless such encroachment(s) were caused by the willful misconduct of an adjacent Owner or Resident); in which case the relocation shall be at the expense of the encroaching Owner.
4.7 Use and Benefit Easements. 4.7.1 Creation of Easement. Certain Lots shall be subject to a use and benefit easement ("UBE") 3 feet in width for the length of the Lot as described on Exhibit B attached hereto and incorporated herein by this reference. The Public or Private Yard portion of each Lot on which the easement is situated is described on Exhibit B and shall be referred to herein as the "Easement Area. " The Easement Area shall be for the exclusive use and benefit of the Lot or Common Area Tract, as applicable, immediately adjoining the Easement Area as described on Exhibit B (the "User Lot"). The Lot upon which the Easement Area is situated shall be referred to in this Section 4.7 as the "Easement Lot."
4.7.2 Use of Easement Area. The Easement Area may be used by the Residents and other lawful occupants of the User Lot for patio, garden, recreation and drainage purposes, except that in the case of any Easement Area adjacent to a Common Area Tract, the use of the Easement Area shall have the identical use as may be made of such Tract and shall be maintained and insured at all times by the Association as an Area of Association Responsibility. Landscaping (including flowers, plants, lawn and sprinklers), and patio or spa decking may be installed, kept and maintained in the Easement Area. The Easement Area may also be used for readily movable outdoor furniture, barbecue equipment and other portable items. Except as permitted by any other provision of this Declaration, the Easement Area shall not be used for (i) any permanent installation of any kind, including but not limited to a spa, and related heating or filtering system, except as may be initially constructed by Declarant; or (ii) erection or maintenance of any structure which may impede or interfere with any necessary maintenance, repair or restoration of any common Boundary Wall as described in Section 7.5 below. No use shall be made of the Easement Area which will become an annoyance or nuisance to the Owner of the Easement Lot or which will interfere with the right of drainage from the Easement Lot. No doors, windows or other structural openings shall be created in any side wall of a Residential Dwelling built upon any Lot if such wall abounds the Easement Area located upon such Lot, except as included when such Residential Dwelling was initially constructed by Declarant. The Owner of the User Lot shall indemnify, protect and hold harmless the Owner of the Easement Lot for from and against any and all liens, claims or liabilities arising out of or connected with the use of the Easement Area by the User Lot.
4.7.3 Rights of Owner of Easement Lot. The Owner of the Easement Lot shall have the right, at all reasonable times, to enter the Easement Area in order to repair, maintain or restore any common Boundary Wall and to paint the side of his Residential Dwelling forming part of the Boundary Wall with the User Lot; provided, however, that such entry shall be allowed only during daylight hours and with prior notice to the Owner of the User Lot. The Easement Lot shall have the right of drainage over, across and upon the Easement Area for water resulting from the normal use of the Easement Lot. The Owner of the Easement Lot shall have the right to maintain eaves or projections or other architectural features of up to twenty-four inches over the Easement Area when eaves or features are part of the Residential Dwelling located upon the Easement Lot as originally constructed by Declarant.
4.7.4 Maintenance of Easement Area. Each Easement Area, and all landscaping and other Improvements situated thereon, shall be maintained continuously in good condition and repair by the Owner of the User Lot, including, in the case of a Common Area Tract, the Association. As to each Easement Area, the Owner of the User Lot shall assume all responsibility for compliance with this Declaration and shall assume any burdens which may apply to the Easement Area.