Homes Association Declaration

What follows is a best-effort representation of the Brookhill Homes Association Declaration, as recorded with the Kansas City City Clerk in Book 1526, Page 297, with subsequent updates and corrections inserted where appropriate. This document may contain errors when compared to the official legal records, so refer to those for the correct and final word.

THIS DECLARATION is made this 1st day of July, 1983, by MILL CREEK OF KANSAS, INC., a Kansas corporation, authorized to do business in Missouri

WITNESS that WHEREAS, MILL CREEK OF KANSAS, INC., is the owner and developer of BROOKHILL, a subdivision in Clay County, Missouri, which plat was recorded in the Office of the Recorder of Deeds of Clay County, Missouri, on October 18th, 1983, and duly recorded in Book 19 Plats, at Page 89 + 90; and

WHEREAS, MILL CREEK OF KANSAS,INC., is now developing the above described land and desires to create and maintain a residential neighborhood possessing features of more than ordinary value to said community;

NOW, THEREFORE, in order to assist it and its grantees in providing the means necessary to bring about the development of the above described land, MILL CREEK OF KANSAS, INC., does now and hereby subject the following real property, to wit:

Lots 1 through 54, inclusive, BROOKHILL, a subdivision in Clay County, Missouri;

Lots 55 through 95, inclusive, and Tracts B, C and D, of BROOKHILL, SECOND PLAT, a subdivision in Clay County, Missouri;¹

Lots 96 through 124, inclusive, BROOKHILL, THIRD PLAT, a subdivision in Clay County, Missouri;²

Lots 125 through 158, inclusive, BROOKHILL, FOURTH PLAT, a subdivision in Clay County, Missouri;³

to the covenants, charges and assessments set forth and contained in this declaration, subject, however, to the limitations hereinafter contained.

DEFINITIONS OF TERMS USED

The term “district” as used in this declaration shall mean, unless and until extended as hereinafter provided, all of the lots last hereinabove described and shown on said plat of BROOKHILL. If or when other land, in the manner hereinafter provided, shall be added to that described above, then the term “district” shall thereafter mean all land which shall from time to time be subjected to the terms of this declaration, including any future modification thereof. The term “improved property” as used herein shall be deemed to mean a single tract under a single ownership and use, and on which tract a residence has been erected or is in the process of erection, or on which any other building not in violation of the restrictions then of record thereon is erected or is in the process of erection. Any other land covered by this declaration shall be deemed to be vacant and unimproved. The term “public place” as used herein shall be deemed to mean all streets, park areas, service areas and other common areas, and all similar places the use of which are dedicated to or set aside for the use of the general public, or for the general use of all of the owners with the district, or which may, with appropriate consent, be used by all of the owners of the district. The term “owners” as used herein shall mean those persons or corporation who may from time to time own the land within the district.

SECTION 1. MEMBERSHIP IN ASSOCIATION

The owners of all of the land hereinabove described, together with the owners of any other land that may from time to time be made subject to all of the terms and provisions of this declaration in the manner hereinafter provided for, shall be the members of an Association, which is hereby created and established, to be known as BROOKHILL HOMES ASSOCIATION. The Association shall be incorporated under the laws of the State of Missouri, as a corporation not for profit. Membership in the Association shall be limited to the owners of the land within the boundaries of the district as it exists from time to time. The Association shall be the sole judge of the qualifications of its members and of their rights to participate in its meetings and proceedings.

SECTION 2. OTHER LANDS - HOW THEY MAY BE ADDED

Mill Creek of Kansas, Inc., may from time to time add to the district such land as is now or hereafter owned or approved for addition by said Association, provided that the land so added to the district shall at that time be bound by all of the terms of this declaration and any future modifications thereof.

SECTION 3. POWER AND DUTIES OF THE ASSOCIATION

It is the purpose of Mill Creek of Kansas, Inc., to cause the original builder to construct on the lots hereby subjected to the terms of this document single family dwellings for occupancy by a single family.

Mill Creek of Kansas, Inc., may cause certain lands now owned by it, or land which it may hereafter acquire, to be designated as public places, parks, or common areas. The Association shall have the power and obligation to accept from Mill Creek of Kansas, Inc., the conveyance of all its right, title and interest in and to any and all of the public places, parks and common areas as may be created by Mill Creek of Kansas, Inc., subject to the rights of property owners in BROOKHILL or other land which may be subjected to this agreement.

The Association shall have the following powers and duties which it may exercise and perform whenever in its discretion it may deem them necessary or desirable, to wit:

1. To enforce, either in its own name or in the name of any owner within the district, any or all building restrictions which may have been heretofore or may hereafter be imposed upon any of the land in the district, either in the form as originally placed thereon or as modified subsequently thereto; provided, however, that this right of enforcement shall not serve to prevent such changes, variations, releases, consents or modifications of restrictions or reservations being made by the parties having the right to make such changes, variations, releases, consents or modifications as are permissible in the declarations in which such restrictions and reservations are set forth, nor shall it serve to prevent the assignment of those rights by the proper parties, wherever and whenever such rights of assignment exist. The expenses and costs of any enforcement proceedings shall be paid out of the general fund of the Association as herein provided for. Nothing herein contained shall be deemed or construed to prevent any owner have the contractual right to do so from enforcing in his own name any such restrictions.
2. To manage and control as trustee for its members all public and private streets, park areas, service areas, sidewalks and other public places which may now be or hereafter designated as such, and any and all improvements thereon, provided that such management and control of said places and improvements shall at all times be subject to that held and exercised by any township, city, county and state, or any of them, in which said places and improvements are located. The City of Kansas City will not maintain landscaped islands within public right-of-ways. This is the responsibility of the Homes Association.
3. To provide for the collection and disposal of rubbish and garbage, when adequate services of that type are not available from any public source.
4. To care for, spray, trim, protect and replant trees on all streets and in other public places where trees have once been planted, when such services are not available from any public source; and to care for, protect and replant shrubbery, and resow grass and replace sod in any common areas shown on the plat of BROOKHILL, or on property which may hereafter be dedicated for common use.
5. To mow, care for, maintain and remove all rubbish from vacant and unimproved property and to do any other things necessary or desirable in the judgment of the officers of the Association to keep any vacant and unimproved property and the parking in front of any property in the district neat in appearance and in good order.
6. To provide for the plowing and removal of snow from sidewalks and streets when such services are not available from any public source.
7. To provide for the maintenance of any lawns, swimming pools, dedicated parks, tennis courts, playgrounds, public and private streets, parking areas, walks, pedestrian ways, gateways, entrances, drinking fountains, and ornamental features now existing or which may hereafter be erected or created in any public or private street, common areas, parking area or other public place shown on the plat of BROOKHILL or created by separate instrument from land described in the preamble hereto.
8. To provide such lights as the Association may deem advisable on streets, parks, parking, pedestrian ways, gateways, entrances or other features and in other public or semi-public places. when such facilities are not available from any public source.
9. To provide for the cleaning of streets, gutters, catch basins, sidewalks, and pedestrian ways and for the repair and maintenance of storm sewers and appurtenant drainage facilities, when such services are not available from any public source.
10. To erect and maintain signs for the marking of streets and safety signs for the protection of children and other persons when such signs are not available from any public source.
11. To employ duly qualified peace officers or guards for the purpose of providing such protection of persons and property as the Association may deem necessary or desirable in addition to that rendered by public authorities.
12. To exercise control over such easements as it may acquire by dedication or otherwise from time to time.
13. To pay taxes and special assessments on such real estate and personal property as may be owned by it; and the Association shall have the responsibility for paying such taxes and special assessments on any park or recreational structures or facilities which may be due and owing at the time the Association receives the title thereto. Additionally, the Association shall pay such taxes and assessments as may be assessed against land in streets, common areas and other public or semi-public places within the district.
14. To levy and collect the assessments which are provided for in this declaration.

SECTION 4. USE OF COMMON AREAS

The owners of land within the district as it may exist from time to time shall have the exclusive right to the use of all private streets, park areas not dedicated to the public, and common areas as designated on the original or subsequent plats of Brookhill or as created by separate document filed for that purpose with the Recorder of Deeds of Clay County, Missouri by Mill Creek of Kansas, Inc.

The BROOKHILL HOMES ASSOCIATION shall have the right and power to make reasonable rules and regulations which shall govern the use of such streets, park areas and common areas.

SECTION 5. METHOD OF PROVIDING GENERAL FUNDS

1. For the purpose of providing a general fund to enable the Association to exercise the powers and maintain the improvements and render the services herein provided for, all privately owned lots on which a dwelling has been erected within the boundaries of the district shall be subject to an annual assessment which may be levied by the Association from year to year and shall be paid to the Association annually in advance by the respective owners of the said assessable lands subject thereto, which said assessable lands shall be deemed to be all of the above enumerated lots in the aforesaid plat of BROOKHILL on which dwellings have been erected, together with such other lots as may from time to time be added to the said district as herein provided and on which dwellings have been erected. The Association may from year to year fix and determine the total amount required in the general fund and may levy and collect an annual assessment not exceeding Four Hundred Dollars ($400.00)⁴ for each lot on which a single family dwelling has been erected. No single family dwelling shall be deemed to be “erected” until it is substantially completed. On newly constructed single family dwellings sold and closed within and including the period of January 1 and June 30 of any year, there will be no proration of the annual assessment, and on newly constructed homes sold and closed within and including the period of July 1 and December 31 of any year, assessments will be prorated on the basis of a deduction of one/one hundred eightieth (1/180) of the annual assessment for each day after June 30 of that year; that on the resale of any single family dwellings, proration of the assessments shall be on an annual basis.⁵
2. The maximum annual assessment upon each lot as aforesaid may be increased to an amount not exceeding one hundred percent (100%) of the Four Hundred Dollar ($400.00)⁶ original maximum annual assessment which the Association may levy and collect from year to year, provided that at a meeting of the members specially called for that purpose, prior to the date on which the assessment is levied for the first year for which such increase is proposed, a majority of the members present at such meeting authorize such an increase by an affirmative vote therefor; and provided further, that the maximum annual assessment upon each lot as aforesaid may be increased to an amount not exceeding one hundred fifty percent (150%) of the said Four Hundred Dollar ($400.00)⁷ original maximum annual assessment, provided that at a meeting of the members specially called for that purpose, prior to the date on which the assessment is levied for the year for which such increase is proposed, sixty percent (60%) of the members present at such meeting authorize such an increase by an affirmative vote therefor.
3. Unless the increases provided for in paragraph (2) of this Section 5⁸ are specifically limited by the resolutions in which they are contained to be for a specified period they shall be effective until rescinded by the Association, at a meeting specifically called for such purpose, by an affirmative vote of two-thirds (2/3) of the members present or by action taken under the terms of paragraph (4) of this Section 4 and in either such event the rescision shall be effective commencing on the first day of the next succeeding year.
4. It is recognized that during the period of the time spanned by the term of this agreement, that substantial changes may occur in the economic status of the United States as a whole and of the Clay County, Missouri, area in particular and that in the event of such economic change, either by inflation or deflation, that there should be a provision by which the maximum annual assessment provided for herein may be decreased or increased to a degree greater than that permitted by the other provisions hereof. It is therefore provided that a resolution to such effect adopted at a meeting of the Association specially called for that purpose, seventy-five (75%) of the members present at such meeting voting in the affirmative therefor, shall be sufficient to require the Association to request the County Court of Clay County, Missouri, to set a new and reasonable maximum annual assessment for the purposes provided for herein based on the then current economic conditions, the change to be effective commencing on the first day of the next succeeding year. In the event, however, that the said County Court should refuse to act, the Association shall petition the Circuit Court of Clay County, Missouri, to name a Board of three (3) disinterested persons to act in the stead of said County Court. The decision of a majority of either such Boards shall be final and conclusive and shall be effective until amended by further action of the said County Court or a Board selected by the said Circuit Court, both under the provisions of this paragraph.
5. Whenever the Association may deem it advisable to submit to the members a proposal under either paragraph (2) or paragraph (4) of this Section 5⁹ for increasing or decreasing the permissible maximum amount of the annual assessment it shall notify the members of the Association by mailing to such members at the last known address, with United States postage thereon prepaid, a notice of such meeting, giving the time and place at which it is to be held and the fact that an increase in the amount of the annual assessment is to be voted upon at such meeting. Personal hand delivery of notices to the Association membership relating to the increase or decrease of annual assessments shall be a permissible alternative to mailing.¹⁰
6. The first assessment shall be for the calendar year beginning January 1, 1984, and it shall be fixed and levied prior to December 1, 1983, and shall be then payable and due prior to January 1, 1984, and on January 1st of each year thereafter. It will be the duty of the Association to notify each and every owner of an assessable lot whose address is listed with the Association on or before that date giving the amount of the assessment on each tract owned by them and the date when such assessment is due. Failure of the Association to levy the assessment prior to January 1st of each year for the next succeeding fiscal year beginning on January 1st shall not invalidate any such assessment made for that particular year; nor shall failure to levy an assessment for any one year affect the right of the Association to do so for any subsequent year. When the assessment is made subsequent to January 1st of any year, then it shall become due and payable not later than thirty (30) days from the date of levying the assessment. The Association may elect to permit collections in monthly, quarterly or semi-annual payments in lieu of the annual payments provided for herein.
7. A written or printed notice, deposited in the United States Post Office with postage thereon prepaid, and addressed to the respective owners at the last address listed with the Association, shall be deemed to be sufficient and proper notice for these purposes. or for any other purpose of this declaration where notices are required.

SECTION 6. LIEN ON REAL ESTATE

1. The assessment provided for by Section 4 hereof shall become a lien on the real estate against which it is levied as soon as it is due and payable as above set forth, provided, however, that such lien shall be inferior and subordinate to the lien of any valid first mortgage or deed of trust now existing or which may hereafter be placed on said real estate securing the payment of a loan made by a recognized lending institution. In the event of the failure of any owner to pay the assessment on or before the first day of February following the making of such assessment, then such assessment shall bear interest at the rate of twelve percent (12%) per annum from the first day of January, but if the assessment is paid before February 1st or within thirty (30) days from the date of the assessment, if the assessment is made subsequent to December 1st for the calendar year beginning the next succeeding January 1st, then no interest shall be charged. If the Association exercises the election permitted by Section 5¹¹, paragraph (6) hereof to collect each year’s assessment in either monthly, quarterly or semi-annual installments, then no interest shall be charged except as to any owner who shall fail to pay any such installment within thirty (30) days of its due date, which default may, at the election of the Association, be treated as sufficient cause to accelerate maturity of the annual assessment remaining unpaid and interest shall be owed on the entire unpaid amount from the date of such default.
2. On or after February 1st, 1988¹², and February 1st of each year thereafter, or within thirty (30) days from the date of levying the assessment for the calendar year during which the assessment is levied, or within thirty (30) days following the election of the Association to accelerate maturity under paragraph (2) of this Section 5 in the case of installment collection, the assessment shall become delinquent and payment of both principal and interest may he enforced as a lien on said real estate, in proceedings in any court in Clay County, Missouri, having jurisdiction of suits for the enforcement of such liens. It shall be the duty of the Association to bring suits to enforce such liens before the expiration thereof. The Association may at its discretion file certificates of nonpayment of assessments in the office of the Recorder of Deeds whenever any such assessments are delinquent. For each certificate so filed, the Association shall be entitled to collect from the owner or owners of the property described therein a fee of Five Dollars ($5.00) which fee is hereby declared to be a lien upon the real estate so described in said certificate, provided that such lien shall be inferior and subordinate to the lien of any valid first mortgage or deed of trust now existing or which may hereafter be placed on said real estate securing the payment of a loan which is made by a recognized lending institution. Such fees shall be collectible in the same manner as the original assessments provided for herein and in addition to the interest and principal due thereon.
3. Such liens shall continue for a period of five (5) years from the date of delinquency and no longer, unless within such time suit shall have been instituted for the collection of the assessment, in which case the lien shall continue until the termination of the suit and until the sale of the property under execution of the judgment establishing same.

SECTION 7. EXPENDITURES LIMITED TO ASSESSMENT FOR CURRENT YEAR

The Association shall at no time expend more money within any one year than the total amount of the assessment for that particular year plus any surplus which it may have on hand from previous assessments; nor shall said Association enter into any contract whatsoever binding the assessment of any future year to pay for any such obligation, and no such contract shall be valid or enforceable against the Association except for contracts for utilities, it being the intention that the assessment for each year shall be applied as far as practicable toward payment of the obligations of that year, and that the Association shall have no power to make a contract affecting the assessments of any future or subsequent year except for utilities.

Expenditures are permitted for required extended obligations for insurance premiums and management fees as well as utilities.¹³

SECTION 8. ASSOCIATION TO NOTIFY MEMBERS OF ADDRESS

The Association shall notify all owners of land in the district as it may exist from time to time, insofar as the addresses of such owners are listed with the said Association, of the official address of said Association, the place and time of the regular meetings of the Association, and the place where payments shall be made and any other business in connection with said Association may be transacted, and in the case of any change of such address the Association shall notify all the owners of the land in the district insofar as their addresses are listed with the Association, of the new address.

SECTION 9. TEMPORARY TRUSTEE

Prior to the actual organization or incorporation of the Association contemplated by the terms of this declaration, Mill Creek of Kansas, Inc., shall have the right at its option to perform the duties, assume the obligations, levy and collect the assessments, and otherwise exercise the powers herein given to the Association, in the same way and manner as though all of such powers and duties were hereby given directly to Mill Creek of Kansas, Inc., including without limitation the right to increase the annual assessment to an amount not to exceed the sum of Four Hundred Dollars ($400.00)¹⁴ per year. The Association contemplated by the terms of this declaration shall not assume any of the rights herein provided for without the consent of Mill Creek of Kansas, Inc., and its relinquishment of its rights as Temporary Trustee. The time for relinquishment of such rights, duties and powers shall be within the exclusive discretion and prerogative of Mill Creek of Kansas, Inc., or its assignee. Mill Creek of Kansas. Inc., may, by appropriate agreement made expressly for that purpose, assign or convey to any person or corporation all of the rights, reservations, and privileges reserved by it in this Section 9, and upon such assignment or conveyance being made, its assigns or grantees may at their option exercise, transfer or assign such rights at any time or times, in the same way and manner as though directly reserved by them, or it, in this instrument.

SECTION 10. TO OBSERVE ALL LAWS

Said Association shall at all times observe all state, county, city and other laws, and if at any time any of the provisions of this declaration shall be found to be in conflict therewith then such parts of this declaration as are in conflict with such laws shall become null and void, but no other part of this declaration not in conflict therewith shall be affected thereby. The Association shall have the right to make such reasonable rules and regulations, and provide such means and employ such agents as will enable it to adequately and properly carry out the provisions of this declaration, subject, however, to the limitations of its rights to contract as are herein provided for.

SECTION 11. AMENDMENT

By written consent of the owners of two-thirds (2/3) of the lots within the district as then constituted, evidenced by the declaration duly executed and acknowledged by such owners and recorded in the office of the Recorder of Deeds of Clay County, Missouri, this instrument may be modified and amended, provided, however, that no right to exceed the maximum annual assessment herein provided for may be given, and provided further that no amendment shall limit any right of Mill Creek of Kansas, Inc., herein reserved without its written consent.

SECTION 12. HOW TERMINATED

This declaration may be terminated and all of the land now or hereafter affected may be released from all of the terms and provisions thereof by the owners of the lots then subject thereto executing and acknowledging an appropriate agreement or agreements for that purpose and filing the same for record in the office of the Recorder of Deeds of Clay County, Missouri.

SECTION 13. COVENANTS RUNNING WITH THE LAND

All of the provisions of this declaration shall be deemed to be covenants running with the land, and shall be binding upon Mill Creek of Kansas, Inc., and upon its successors and assigns.

IN WITNESS WHEREOF, MILL CREEK OF KANSAS, INC., by authority of its board of directors, has caused these presents to be executed by its president and secretary, this 1st day of July, 1983.