V. Maintenance
5.1. Association’s Responsibility
Association’s Responsibility for Common Area. The Association shall maintain and keep in good repair the Area of Common Responsibility, which shall include, but need not be limited to:
the Common Area, including, open space, and all landscaping, signage, lighting, irrigation systems and equipment, retaining wails, fences and walls, if any, and other structures and improvements, sidewalks, paths, and trails, situated upon the Common Area;
landscaping, signage, and sidewalks within public rights-of-way within or adjacent to the Community, except to the extent that such responsibility is assumed by a governmental or quasi-governmental body or public utility;
all drainage systems, storm water retention, or detention systems for the Community regardless of whether said drainage systems or storm water detention or retention systems are located on a Unit or Common Area, to the extent maintenance is required in the Board’s opinion and such area is not to be maintained by a governmental entity or third party;
the recreational facilities serving the Community;
all private Community streets, alleys and sidewalks; provided however, the any private street or alley which primarily benefits the Townhome Units or Detached Units may be assessed against the Townhome Units or Detached Units as a Townhome Unit Assessment or a Specific Assessment, as applicable;
all street medians and islands located in the Community, and the expenses for landscaping and irrigation provided to such street medians and islands;
such portions of any additional property included within the Area of Common Responsibility as may be dictated by this Declaration, any Supplemental Declaration, or any contract or agreement for maintenance thereof entered into by the Association; and
any property and facilities owned by Declarant and made available, on a temporary or permanent basis, for the primary use and enjoyment of the Association and its Members, such property and facilities to be identified by written notice from Declarant to the Association and to remain a part of the Area of Common Responsibility and to be maintained by the Association unless and until such time as Declarant revokes such privilege of use and enjoyment by written notice to the Association.
The Association may maintain other property which it does not own, including, without limitation, property dedicated to the public, if the Board of Directors determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard.
Association’s Responsibility for Townhome Units. The Association shall maintain in good repair the landscaping and exterior building surface materials, fixtures, and equipment attached thereto as specifically provided herein. All maintenance of Townhome Units and dwellings which are not specifically assigned to the Association shall be the responsibility of the Owner.
The Association shall maintain all landscaping originally installed by the builder within the Community, including the landscaping surrounding all Townhome Units in the Community. The Association’s responsibilities with respect to maintenance of such landscaping shall be limited to cutting of grass, trimming and replacement of trees, shrubs, hedges, bushes, flowers, and other plantings and clean-up and removal of cutting, trimmings, and dead plantings, from time to time as reasonably necessary or appropriate as determined in the Board’s sole discretion. The Association shall not be responsible for irrigation of landscaping unless otherwise approved by the Board and as may be restricted by governmental regulation. Owners shall not alter such landscaping or landscaping equipment and shall not interfere with the Association’s landscaping activities. Any common irrigation system installed by the Declarant or the Association shall be common property, operated, maintained, repaired and replaced by the Association. The deed of conveyance of any Townhome Unit shall not include any right, title or interest in such irrigation system, if any.
The Association shall be responsible for cleaning, repairing, and repainting the exterior surface material of each Townhome Unit, including stucco, wood, and trim. Except for windows and doors, the Association shall maintain all exterior building surfaces, exterior roofing surfaces, including without limitation, shingles, decking, and other surface roofing materials, and sheathing located on Townhome Units in the Community, provided, all other portions of the roof systems, and any vents, fans, plumbing stacks, or other items attached to the roof and serving a single Unit shall remain a part of the Townhome Unit and be the maintenance responsibility of the Owner. The Association shall maintain the sidewalks, landings, stoops, and overhangs, if any, to the Townhome Units. The Association shall maintain any fences installed as original construction on the rear portion of the dwelling, if any. Doors and windows shall be the Owner’s responsibility unless the Board determines otherwise.
The Association shall have the right, but not the obligation, from time to time as determined by the Board, in its sole discretion, to make reasonable modifications to the arrangements for maintaining the Townhome Unit landscaping and landscaping equipment, maintaining the exterior of dwellings, and obtaining and maintaining insurance as required herein.
All maintenance shall be performed consistent with the Community-Wide Standard.
The Association shall not be liable to any Owner, or any Owner’s occupant, guest, or family for any damage or injury caused in whole or in part by the Association’s failure to discharge its responsibilities under this Paragraph where such damage or injury is not a foreseeable, natural result of the Association’s failure to discharge its responsibilities. No diminution or abatement of assessments shall be claimed or allowed by reason of any alleged failure of the Association to take some action or perform some function required to be taken or performed by the Association under this Declaration, or for inconvenience or discomfort arising from the Association making any repairs to or constructing improvements on the Common Area.
Association Easement. There are hereby reserved to the Association blanket easements over the Community as necessary to enable the Association to fulfill its maintenance responsibilities under this Section 5.1. The Association shall maintain the facilities and improvements within the Area of Common Responsibility in continuous operation, except for any periods necessary, as determined in the Board’s sole discretion, to perform required maintenance or repairs, unless Members representing seventy-five percent (75%) of the total votes in the Association and the Declarant, so long as Declarant owns any property within the Community, agree in writing to discontinue such operation.
Except as provided above, the Area of Common Responsibility shall not be reduced by amendment of this Declaration or any other means except with Declarant’s prior written approval as long as Declarant owns any property described on Exhibits “A” or “B” of this Declaration.
5.2. Owner’s Responsibility - Townhome Units
Except as provided in Section 5.1 above, all other maintenance of the Townhome Unit and all other improvements located on the Townhome Unit, including, without limitation, the items listed below, shall be the responsibility of the Owner thereof, who shall maintain the Townhome Unit in a manner consistent with the Community-Wide standard and this Declaration. Owners shall be responsible for maintaining the following:
All doors (including garage doors) and windows, including frames, sills, hardware, and screens;
All fixtures and equipment installed within a Townhome Unit, commencing at a point where the utility line, pipe, wire, conduit, or systems enter the exterior wall;
Any private utility systems, component or item, outside of the exterior wall which serves a single Unit, including, without limitation, air-conditioning compressors, regardless of whether such utility system, component or item is located within or outside of a Townhome Unit’s boundaries;
Any deck, patio, porch, balcony, or courtyard appurtenant to a Townhome Unit, if any;
Any driveway serving the Townhome Unit; and
Any landscaping or other items installed by the Owner to the exterior of a Townhome Unit, subject to architectural review pursuant to Article IX of this Declaration. Any additional landscaping planted by an Owner shall be maintained by such Owner and its successors at its sole cost and expense.
5.3. Owner’s Responsibility - Detached Units
Except for maintenance performed on a Detached Unit by the Association pursuant to Section 5.1 hereof, if any, all maintenance of the Detached Unit and all structures, landscaping, and other improvements thereon shall be the sole responsibility of the Owner thereof, who shall maintain such Detached Unit in a manner consistent with the Community Wide Standard and this Declaration. Such maintenance obligation shall include, without limitation, the following: prompt removal of all litter, trash, refuse, and waste; keeping improvements and exterior lighting in good repair and working order; complying with all governmental health and police requirements; and repair of exterior damage to improvements. This maintenance obligation shall also include, without limitation, the following: lawn mowing on a regular basis; tree and shrub pruning; watering landscaped areas; and keeping lawn and garden areas alive, free of weeds, and attractive.
5.4. Failure to Maintain
In the event that the Board determines that any Owner has failed or refused to discharge properly any of such Owner’s obligations with regard to the maintenance, repair, or replacement of items for which such Owner is responsible pursuant to Sections 5.2 and 5.3 hereof, the Association may perform such maintenance, repair or replacement for the Owner at the expense of the Owner. Except in an emergency situation, the Association shall give the Owner written notice of the Association’s intent to provide such necessary maintenance, repair, or replacement. The notice shall set forth with reasonable particularity the maintenance, repair, or replacement deemed necessary. The Owner shall have ten (10) days after receipt of such notice within which to complete such maintenance, repair, or replacement, or in the event that such maintenance, repair, or replacement is not capable of completion within a ten (10) day period, to commence such work which shall be completed within a reasonable period of time. If any Owner does not comply with the provisions hereof, the Association may provide any such maintenance, repair, or replacement to such Unit and levy a Townhome Unit Assessment or a Specific Assessment, as applicable, against said Unit in accordance with Article VII of this Declaration.
5.5. Standard of Performance
Unless otherwise specifically provided herein or in other instruments creating and assigning such maintenance responsibility, the responsibility for maintenance shall include the responsibility for repair and replacement, as necessary. All maintenance shall be performed in a manner consistent with the Community-Wide Standard and the Governing Documents. The Association shall not be liable for any damage or injury occurring on, or arising out of the condition of, property which it does not own except to the extent that it has been negligent in the performance of its maintenance responsibilities.
5.6. Party Walls and Fences - Townhome Units
Each wall or fence that is built as a part of the original construction which serves as the dividing line between two Townhome Units shall constitute a party wall. To the extent not inconsistent with the provisions of this Section, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply. The cost of reasonable repair and maintenance of a party wall or fence shall be shared by the Owners who use the party wall or fence in equal proportions. If a party wall or fence is destroyed or damage by fire or other casualty, then to the extent that such damage is not covered by insurance and repaired out of the proceeds of insurance, any Owner who had used the party wall or fence may restore it. If other Owners use the party wall or fence thereafter, they shall contribute to the restoration cost in equal proportions. However, such contribution will not prejudice the right to call for a larger contribution from the other users under any rule of law regarding liability for negligent or willful acts or omissions. The right of any Owner to contribution from any other Owner under this Section shall be appurtenant to the land and shall pass to such Owner’s successors-in-title.
5.7. Wiring
Wiring for home security systems has been installed for each dwelling. Owners are responsible for the activation, maintenance, and operation of all security systems. Neither the Association, the Declarant nor the officers, directors, employees or agents of the foregoing shall in any way be considered insurers or guarantors of security within the Community, nor shall any of them be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of security a measure undertaken.
5.8. Maintenance Expenses
Except as otherwise provided herein, all costs associated with the Association’s maintenance responsibilities with respect to the Townhome Units shall be a Townhome Unit Assessment as provided in Section 8.7 of the Declaration. All other costs associated with the Association’s maintenance responsibilities shall be a Common Expense to be allocated among all Units equally as part of the General Assessment, without prejudice to the right of the Association to seek reimbursement from the owner(s) of, or other Persons responsible for, certain portions of the Area of Common Responsibility pursuant to this Declaration, other recorded covenants, or agreements with the owner(s) thereof.