NOTTINGHAM FOREST FIRST PLAT
DECLARATION OF RESTRICTIONS
THIS DECLARATION WITNESSETH THAT:
WHEREAS, CYRIL VAN KEIRSBILCK and MARY F. VAN KEIRSBILCK, husband and wife; R. A. AKERS COMPANY, INC., ‘A Kansas corporation; WAYNE “E” SMITH, INC. , a Kansas corporation; and, TOM VAN CONSI’RUCTION, INC. , a Kansas corporation, herein after referred to collectively as Developers, are the owners of:
Block 1, Lots 1 through 12; Block 2, Lots 1 through 22; Block 3, Lot 1 through 4; Block 4, Lots I through 12,
Devonshire Estates, a subdivision of land in the City of Overland Park, Johnson County, Kansas
as the same are shown by the recorded plat thereof, filed on the third day of October, 1978, as instrument number 1192288 in the office of the Register of Deeds of Johnson County, Kansas, together with other tracts of land as shown on said plat, and
WHEREREAS, Developers now desire to place certain restrictions upon said
Block I, Lots I through 12; Block 2. Lots I through 22; Block 3, Lots 1 through 4; Block 4, Lots 1 through 12,
Devonshire Estates, a subdivision of land in the City of Overland Park, Johnson County, Kansas
for the use and benefit of themselves and for the use and benefit of their future grantees.
NOW, ‘I’IIEREFORE. Developers, for and in consideration of the benefits to themselves, their successors and assigns, and their future grantees, do hereby declare that:
Block 1, Lots I through 12; Block 2, Lots I through 22; Block 3. Lots I through 4; Block 4, Lots 1 through 12,
Devonshire Estates, a subdivision of land in the City of Overland Park, Johnson County, Kansas
shall be and the same hereby are restricted as to their use in the manner hereinafter set forth:
1. Definition of Terms Used. For the purpose of these Restrictions, the word “street” shall mean any street, road, terrace, drive, circle or boulevard.
The word “outbuilding” shall mean an enclosed, covered structure not directly attached to the residence to which it is appurtenant.
The word “lot” as used herein may mean either any lot as platted, or any tract or tracts of land as conveyed, which may consist of one or more lots, or a part or parts of one or more lots as platted and upon which a residence may be erected in accordance with the restrictions herein contained. A corner lot shall be deemed to be any lot having more than one street contiguous to it.
2. Use of Land. None of the lots hereby restricted may be improved, used or occupied for other than private residence purposes, and no duplex, flat or apartment house, although intended for residence purposes, may be erected thereon. Any residence erected or maintained on any of the lots hereby restricted shall be designated for occupancy by a single family. No trailer, basement, tent, shack, garage, barn or other outbuilding erected on any lot covered by these Restrictions shall it any time be used for human habitation, temporarily or permanently, nor shall any residence of a temporary character be erected on any of said lots or used for human habitation; however, this restriction shall not prevent Developers or others authorized by them from erecting temporary buildings and using such temporary buildings or residences for office, sales and storage purposes during the development of said plat.
3. Building Material Requirements. Exterior .walls of all buildings, structures and all appurtenances thereto shall be of brick, stone,, stucco, wood, shingles, wood siding, wood paneling, glass blocks or any combination thereof. Windows, doors and louvers shall be of wood and glass. Roofs with a pitch of three (3) inches or more per foot shall be covered with wood shingles. wood shakes, slate or tiles. Flat roofs, or roofs with a pitch of less than three (3) inches per foot, shall be covered with tin, built up asphalt. wood shingles, wood shake, asbestos shingles, slate or tile. All wood exteriors, except roofs and shake side walls, shill be covered with not less than two (2) coats of high quality paint or stain. No building shall be permitted to stand with its exterior in an unfinished condition for longer than five (5) months after commencement of construction, except shake side walls. In the event of fire, windstorm or other damage, no building shall be permitted to remain in i damaged condition longer than three (3) months. All exterior basement foundation walls which are exposed in excess of twelve (12) inches above final grade level shall be painted the same color as the house or covered with siding compatible with the structure.
4. Area. No dwelling shall be constructed or permitted to remain upon any lot in this subdivision unless it meets the following ground floor area requirements:
(a) One (1) story dwellings must have a ground floor area of not less than two thousand (2000) square feet.
(b) Two (2) story dwellings must have a total floor area of not less than two thousand six hundred (2600) square feet.
(c) One and one-half (I 1/2) story dwellings must have a ground floor area of not less than one thousand six hundred (1, 600) square feet and a total floor area of not less than two thousand two hundred (2, 200) square feet. In the computation of ground floor area, the same shall not include any porches or attached garages.
5. Approval of Buildings. No residence building. out building or other structure may be erected upon or moved onto any lot hereby restricted unless and until the building plans, specifications, exterior color scheme, materials, location, elevation and grade thereof have been submitted to and approved by Developers, in writing; nor shall any change or alteration in said building plans, specifications, exterior color scheme. materials, location, elevation and grade thereof be made until such change or alteration has been submitted to Developers and approved by them, in writing.
No residential building which has previously been at another location shall be moved onto any lot in this subdivision.
No residential building designed as a “ranch with basement garage” or “side-by-side split level” residential building shall be constructed on any lot within Nottingham Forest.
Anything in this Declaration to the contrary notwithstanding, Developers, their successors and assigns, shall have and do hereby reserve the right to determine the location of all buildings upon a respective lot or lots and the relation of the top of the foundation of said building to the street level. If Developers fail to approve or disapprove of any such building plans, specifications, exterior color scheme, materials, locations elevation and grade thereof within thirty (30) days after submission, and if no suit to conjoin the erection of such building or the making of any alteration thereto has been commenced prior to completion thereof, such approval shall not be required and this restriction shall be deemed to have been fully complied with. Developers shall not be liable for any approval, disapproval or failure to approve hereunder and any such approval, disapproval or failure to approve given shall not be considered as a waiver of any requirement of or any restriction in this Declaration of Restrictions. Nothing herein contained shall in any way be deemed to prevent any of the owners of any lot within Nottingham Forest from maintaining any action relating to improvements within Nottingham Forest as he would otherwise be entitled to maintain.
6. Commencement of Construction. Construction of the residential building shall be commenced within ninety (90) days of the date of delivery of a Warranty Deed from Developers for the purchase of a lot within Nottingham Forest. In the event such construction is not commenced within said ninety (90) days, Developers shall hive the right to repurchase the lot, at its original sales price. No owner of a lot in violation of this construction provision shall be entitled to reimbursement for tax or interest paid by such owner from the time of the delivery of said Warranty Deed.
7. Construction of hedges, fences and boundary walls. Any hedge, fence or boundary wall shall be ornamental and shall not disfigure the property or the neighborhood. No fence or boundary wall exceeding six (6) feet in height shall be constructed without the written consent of the Developers, if a part of the original construction, or the written consent of the Nottingham Forest Homes Association, if constructed after the residential structure is completed.
8. Set-back Requirements. Ground Frontage. No residence or other structure shall be located closer than thirty-five (35) feet to any street; provided, however, that Developers shall hive and do hereby reserve the right and power to permit such distance to be reduced to not less than thirty (30) feet. The exercise by Developers of the powers to modify set-back requirements or ground frontages with respect to any one (1) lot hereby restricted shall not in any way limit the right of Developers to exercise such powers or to refuse to exercise such powers with respect to any other lot hereby restricted, nor shall the refusal of Developers to exercise such powers with respect to any one (1) lot inhibit or limit their right and power to thereafter exercise such powers with respect to any other lot.
9. Buildings or Uses Other Than for Residential Purposes. Noxious Activities.
(a) No building or structure of any sort may ever be placed, erected or used for business, professional, trade or commercial purposes on any lot hereby restricted. No noxious or offensive trade or activity shall be, carried on with respect to any lot hereby restricted, nor shall any trash, ashes or other refuse be thrown, placed or dumped upon any such lot, nor shall anything ever be done which may be or become an annoyance or a nuisance to the neighborhood.
(b) No vehicle, truck, trailer, bus, camper, boat or other apparatus, except passenger automobiles, shall be left or stored on said property, except in an enclosed garage.
(c) No television or radio antenna or basketball goal shall be placed on the exterior of any structure or constructed separately.
10. Livestock and Poultry prohibited. No animals, livestock or poultry of any kind shall be raised, bred or kept on any lot hereby restricted except that dogs, cats and other common household pets may be kept so long as they are not kept, bred or maintained for commercial purposes. in no event, however, shall more than two (2) dogs be raised, bred or kept on any lot hereby restricted. Any greenhouse shall be in the rear of the house.
11. Landscaping and Lawns. At the time of construction of each residential building, the owner of each of the lots shall expend a minimum sum of Three Hundred and 00/100 ($300. 00) Dollars for landscaping that portion of the lot between the street and the front building line of the structure. All lawns shall be fully sodded prior to occupancy or shall be planted with zoysia strips no farther than twelve (12) inches apart or zoysia plus no farther than six (6) inches apart, with the exception of areas designated by the Developers which may be left as a natural area. The landscaping shall be completed within five (5) months from commencement of construction of the residential building.
12. Easements for Public Utilities. Developers shall have and do hereby reserve the right to locate, erect. construct, maintain and use, or authorize the location, erection, construction, maintenance and use of drains, sanitary and storm sewers, gas and water mains and lines, electric and telephone lines and other utilities, and to give or grant rights of way or casements therefor over and upon any part of any lot hereby restricted. No water from roof and downspouts, basement garage drains or surface drainage shall be placed in or connected to any sewer line nor shall any other connection of any kind be made to a sewer line without the express written approval of Developers, their successors or assigns.
13. Right to Enforce. The restrictions herein set forth shall run with the land and shall bind the present owner, its successors and assigns, and all parties claiming by, through or under it, shall be taken to hold, agree and covenant with the owner of the lots hereby restricted and with its successors and assigns, and with each of them, to conform to and to observe said restrictions as to the use of said lots and the construction of improvements thereon. No restriction herein set forth shall be personally binding upon any corporation, person or persons except in respect to breaches committed during its, his, her or their seizing of title to said lots. Developers, their successors and assigns, and also the owner or owners of any of the lots hereby restricted, shall have the right to sue for and obtain an injunction, prohibitive or mandatory, to prevent the breach of or to enforce the observance of the restrictions above set forth, in addition to any ordinary legal action for damages, and the failure of Developers, their successors or assigns, or any owner or owners of any lot hereby restricted to enforce any of the restrictions herein set forth at the time of its violation shall, in no event, be deemed to be a waiver of the right to do so thereafter. Developers may, by appropriate agreement made expressly for that purpose, assign or convey to any person or corporation, all of the rights, reservations and privileges herein reserved by or granted to it, and their assigns or grantees may at their option exercise, transfer or assign those rights or any one or more of them at any time or times in the same way or manner as those directly reserved by or granted to them in this instrument.
14. Modification of Restrictions. The covenants, restrictions and provisions of this instrument shall be deemed covenants running with the land and shall remain in full force and effect until May 1, 1998, at which time said covenants, restrictions and provisions shall automatically he extended for successive periods of five (5) years each, unless such covenants, restrictions and provisions are amended, modified or changed or canceled, in whole or in part, by written agreement, signed by the owner or owners of more than fifty (50%) percent of the lots hereby restricted and recorded in the office or the Register of Deeds of Johnson County, Kansas, at least one (1) year prior to the original expiration date or to a subsequent expiration date, whichever is applicable. Provided, however, said covenants, restrictions and provisions may be amended, modified, changed or canceled, in whole or in part, at any time prior to May 1, 1998, by written instrument signed by both the owner or owners (including therein Developers if they then be owners) of fifty (50%) percent of the lots hereby restricted and by Developers and recorded in the office of the Register of Deeds of Johnson County, Kansas, said instrument to be effective upon the date of its recording. Provided, further, in determining the fifty (50%) percent of lot ownership required by this paragraph, lots which are then subject to a mortgage or deed of trust shall not be counted in determining such ownership, unless the holder of such mortgage or deed of trust shall consent to such action, in a writing properly acknowledged and filed for record in the office of the Register of Deeds of Johnson County, Kansas.
15. Separability. Invalidation of any restrictions set forth herein or any part thereof by an order, judgment or decree of any court, or otherwise, shall not invalidate or affect any of the other restrictions or any part thereof as set forth herein, but they shall remain in full force and effect.
IN WITNESS WHEREOF, CYRIL VAN KEIRSDILCK and MARY F. VAN KEIRSBILCK. husband and wife, R. A. AKERS COIVPANY, INC., a Kansas corporation; WAYNE “E” SMITH, INC., a Kansas corporation.
HOMES ASSOCIATION DECLARATION’
THIS DECLARATION, made on this day of November, 1978, by CYRIL VAN KEIRSBILCK and MARY F. VAN KEIRSBILCK, husband and wife, R. A. AKERS COMPANY, INC., a Kansas corporation; WAYNE “E” SMITH, !NC., a Kansas corporation: and, TOM VAN CONSTRUCTION, INC., a Kansas corporation, herein after referred to collectively as the Developers, the owners of all that property platted as Nottingham Forest, as shown by the recorded plat thereof, filed the third day of October 1978, as instrument number 1192288 in the office of the Register of Deeds of Johnson County. Kansas, the said Nottingham Forest being a subdivision in the City of Overland Park, County of Johnson, State of Kansas.
WHEREAS, the Developers of Nottingham Forest are now developing a portion of said subdivision for high class residential purposes and desire to create and provide for the maintenance of a residential neighborhood possessing features of more than ordinary value to a residential community.
NOW. THEREFORE, in order to assist themselves and their grantees in providing the necessary means to bring this about, Developers do hereby subject ill or Block 1, Lots 1 through 12; Block 2, Lots I through 22: Block 3, Lots I through 4; Block 4, Lots I through 12, Nottingham Forest; the said Nottingham Forest being a subdivision in the City of Overland Park, County of Johnson, State or Kansas, to the following covenants, charges and assessments.
SECTION 1. DEFINITION OF TERMS
The term “district” as used in this Declaration shall mean, unless extended as hereinafter provided, all of those lot,,; above described, in Nottingham Forest, a subdivision in the City of Overland Park, County of Johnson, State of Kansas.
The term “public places” as used herein shall be deemed to mean all streets and all parks, gateways, entrance and ornamental areas and similar places, together with all improvements which may be situated thereon, the use of which is dedicated to or set aside for the general use of all of the owners within the district.
The term “Developers” as used herein shall mean and refer to Cyril Van Keirsbilck and Mary F. Van Keirsbilck, husband and wife; R. A. Akers Company. Inc. , a Kansas corporation Wayne “E” Smith, Inc. , a Kansas corporation. their successor or successors by any merger, consolidation or sale or transfer of assets.
The term “owners” as used herein shall mean those persons or corporations, including the Developers, who may, from time to time, own lots within the district.
The term “lot” as used herein shall be deemed to be either any 1ot as platted or any tract or tracts or land as conveyed, which may consist of one or more lots or a part or parts of one or more lots as platted, and upon which a residence may be erected.
The term “improved lots” as used herein shall be deemed to be a lot on which a residence has been erected or is in the process )r erection. Any other lots covered by this Declaration shall be deemed to be vacant and unimproved.
SECTION 2. MANAGEMENT AND MEMBERSHIP
All public places, together with all improvements thereon and thereto shall be under the management and control of the, Nottingham Forest Homes Association, hereinafter referred to as the “Association”, subject to that had and exercised by the City of Overland Park, County of Johnson, State of Kansas, or any of them. The membership of the Association shall be limited to the owners of lots within the boundaries of the district. The Association shall be the sole judge of the qualifications of its members and of their right to participate in its meetings and proceedings, except as herein provided.
SECTION 3. POWERS AND DUTIES OF THE ASSOCIATION
In addition to the powers and duties granted by other portions of this Declaration or by law, the Association shall have the following powers any or all of which may be exercised or assumed by it when. at its discretion, it deems it to be necessary or advisable:
A. To enforce either in its own name or in the name of any owner within the district, any or all building or use restrictions which may have been heretofore or may hereafter be imposed upon any of the land in said district: provided, however, that this right of enforcement shall not serve to prevent such changes, releases or modifications of restrictions or reservations being made by the parties having the right to make such changes, releases or modifications as are permissible under the Declarations or plats in which such restrictions and reservations are set forth, nor shall it Serve to prevent the assignment of those rights by the proper parties, whenever and wherever such right of assignment exists. The expense and cost of any such enforcement proceedings by the Association shall be paid for by it. Nothing herein contained shall be deemed to prevent any owner from enforcing any building or use restrictions in his own name.
B. To care for, spray, trim and protect and replant trees along streets and in other public places, to plant and replant. care for, mow. clip and protect shrubbery and grass in all public places.
C. To pick up and remove loose material, trash and rubbish of all kinds in the district, and to do any other things necessary or desirable in the judgment of the officers of said Association to keep the lawns of vacant and unimproved property in the district neat in appearance and in good order.
D. To provide such lights as the Association may deem advisable on streets and other public places.
E. To provide for the construction, creation, purchase, maintenance and operation of playgrounds, recreational areas or facilities, gateways, entrances. gardens and other ornamental features in and upon public places.
F. To exercise such control over easements as may be required.
G. To acquire and own the title to such real estate as may be reasonably necessary to carry out the purposes of the Association, and to pay taxes on such real estate as may be owned by it.
SECTION 4. METHOD OF PROVIDING GENERAL FUNDS
For the purpose of providing a general fund to enable said Association to perform its duties and to construct. purchase, operate or maintain the improvements herein provided for, all lots in the district, other than those owned by the Developers, shall be subject to an annual assessment to be paid to the Association by the respective owners thereof. No lot shall be subject to any such assessment prior to its conveyance by the Developers to an owner (which owner may hereinafter be referred to as the “first owner” of such lot). The amount of assessment shall be fixed by the Association but, until further action of said Association, shall be at the rate of One Hundred Twenty and 00/100 ($120. 00) Dollars per annum for each improved lot as herein defined and Fifteen and 00/100 ($15. 00) Dollars per annum for each unimproved lot as herein defined.
The rate of assessment may be increased or decreased if, at a meeting or the members especially called for that purpose and of which notice is given, a majority of the votes cast at such meeting shall be cast for such increase or decrease.
SECTION 5. ASSESSMENTS DUE
The assessments provided for herein shall commence January 1, 1979 and the first such assessment shall be fixed and levied prior to January 1, 1979 and shall be due and payable on such date. Thereafter, each assessment shall be due and payable on the first day of January of each year. Provided, however, the first annual assessment for any lot conveyed by the Developers to the first owner thereof after January 1, 1979 shall be due and payable on the first day of the month following such conveyance and the amount of such assessment due and payable on such date shall be a sum equal to the number of full calendar months remaining after such conveyance in the year of such conveyance multiplied by an amount equal to one-twelfth (1/12) of the regular annul assessment for such year, as fixed in the manner herein above provided. It will be the duty of the Association to give notice to all owners on or before that date on which the annual assessment is due or the amount of the assessment on each lot owned by them and when it is due. Failure of the Association to levy the assessment prior to January first of any year shall not invalidate an such assessment subsequently levied for that particular year, nor shall failure to levy assessment for any one year affect the right of the Association to do so for any subsequent year. By action or the Association. the assessments levied may be made payable in monthly installments in lieu of annually. When the assessment is levied subsequent to January first of any year, then the first installment thereon shall become due and payable not later than thirty (30) days after the date of the levying of the assessment.
SECTION 6. LIEN ON REAL ESTATE
The entire assessment shall become a lien on said real estate as soon as it. or the first monthly installment thereof, is due and payable as above set forth. In the event of failure )f any of the owners to pay any installment of such assessment on or before the first day of the second month following the due date of such installment, then such installment shall bear interest at the rate of ten (10%) percent per annum from the due date until paid.
SECTION 7. SUBORDINATION OF THE LIEN TO
MORTGAGES OR DEEDS OF TRUST
The lien of the assessments provided for herein shall be subordinate to the lien of any mortgage or deed of trust now or hereafter placed upon any property subject to assessment; provided, however, that such subordination shall apply only to the assessments or installments thereof which have become due and payable prior to the sale of such property pursuant to a foreclosure of such mortgage or power of sale under such deed of trust, or prior to a conveyance to the mortgagee or beneficial owner in lieu of foreclosure. Such sale shall not relieve such property from liability for any assessments or installments thereof thereafter becoming due nor from the lien or any such subsequent assessments or installments.
SECTION 8. WHEN DELINQUENT
Nonpayment of any assessment provided for herein within sixty (60) days from the due date shall cause said assessment to be deemed delinquent. Nonpayment of any installment of any assessment provided for herein within sixty (60) days from the due date )f such installment shall cause the entire unpaid portion of said assessment including all installments due in the future, to be deemed delinquent. Payment of both principal and interest shall be enforced as a lien on said property through proceedings in any court in Johnson County, Kansas, 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 promptly after they become delinquent.
SECTI0N 9. TERMINATION OF LIENS
Such liens shall continue for a period or one (1) year from the date of delinquency and no longer unless within such year suit shall hire been instituted for collection, in which case the lien shall continue until termination of the suit and until sale of the property under the execution of judgment establishing the same.
SECTION 10. BOARD OF DIRECTORS
The Association shall have a Board of Directors not less than three(3) in number, elected in accordance with its Articles of Incorporation and by-laws, who shall be charged with the management or the Association.
SECTION 11. MEMBERSHIP
Every person or entity who is a record owner of a fee interest in any lot as defined herein, including a contract seller, shall be a member of the Homes Association; provided, that any such person or entity, other than a contract seller, who holds such interest merely as a security for the performance of an Obligation shall not be a member.
SECTION 12. VOTING RIGHTS
The Association shall have only one class of membership. Each member shall have one (1) vote for each lot in which he holds the interest required for membership by the preceding section and upon which he shall not be delinquent in the payment of assessments; provided, however, when more than one person holds such interest or interests in any lot, all such persons shall be members and the vote for such lot shall be exercised Is they, among themselves, shall determine, but in no event shall more than one (1) vote be cast with respect to any such lot.
SECTION 13. NOTICES
A. At least one (1) Week prior to any meeting of the Association, it shall give notice to all owners of lots in the district of the place, time and purpose of regular and special meetings of the Association and shall designate the place where payment of assessments shall be made and other business in connection with said Association may be transacted; and, in case of any change of said address, the Association shall give notice to all the owners of lots in the district of its new address.
D. All notices required or permitted under this Declaration shall be deemed given if deposited in the United States. mail, with postage prepaid thereon, and addressed to the person entitled to such notice It the last address listed with the Association for such person.
SECTION 14. DISTRICT MAY BE EXTENDED
The district may be extended by Developers to include and, other lands added by Developers to Nottingham Forest by later plats; provided, however, that all of the land or lands to be added to the district shall at that time be subjected to a Homes Association Declaration, containing the same terms and provisions as are contained in this Declaration. including any future modifications hereof. The extension of said district shall be accomplished by and take effect on the filing of such a Homes Association Declaration in the office of the Register of Deeds in and for the County in which said land or lands are located.
SECTION 15. TO OBSERVE ALL LAWS
Said Association shall at all times observe all applicable. State, County or other laws or regulations and if at any time any of the provisions of this Declaration shall be found to be in conflict with such laws such provision shall become null and void, but no other parts 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 means to enforce such rules and regulations as will enable it to adequately and properly carry out the provisions of this Declaration.
SECTION 16. AMENDMENT AND TERMINATION
At any time the owners of fifty (50%) percent or more of the lots within the district may, by an appropriate instrument (in one or more counterparts) executed, acknowledged and filed for record in the office of the Register of Deeds for Johnson County, Kansas:
A. Give additional powers or otherwise amend this Declaration: or,
B. Terminate this Declaration and release all of the lands then affected thereby from all of the terms and provisions hereof.
SECTION 17. COVENANTS RUNNING WITH THE LAND
All provisions of this Declaration shall be deemed to be covenants running with the land and shall be binding upon the undersigned, their successors and assigns.
IN WITNESS WHEREOI-, the undersigned have caused these presents to be executed the day and year first above written.
CYRIL VAN KEIRSBILCK
MARY F. VAN KEIRSBILCK