12.1 Strict Compliance. Each person who occupies a Lot within the Development as an Owner, guest or Occupant, shall comply strictly with the provisions of the Governing Documents and with all Association Rules and decisions of the Board, including a decision made after a hearing required under this Declaration. The acceptance of a deed, conveyance, or lease, or the entering into occupancy of any Lot shall constitute an agreement that the provisions of the Governing Documents, are accepted and ratified by that Owner and its Occupants and all provisions of the Governing Documents shall be deemed and taken to be covenants running with the land and shall bind any Person having at any time any interest or estate in the Lot, as though the provisions were recited and stipulated at length in each and every deed, conveyance or lease of the Lot.

 

12.2 Failure to Insist on Strict Performance Not a Waiver. The Board shall exercise its busin6ss judgment in determining what actions to take in the enforcement of the Governing Documents. The failure of the Board to insist upon the strict performance of any of the terms, covenants, conditions or restrictions of the Governing Documents, or to exercise any right or option contained in the Governing Documents, or to serve any notice or to institute any action, shall not be construed as a waiver or relinquishment for the future of that term, covenant, condition or restriction, but the term, covenant, condition or restriction shall remain in full force and effect. The receipt by the Board of any Assessment from an Owner with knowledge of any breach shall not be deemed a waiver of a breach, and no waiver by the Board of any provision of the Governing Documents shall be deemed to have been made unless expressed in writing and signed by the appropriate Officers on behalf of the Board.

 

12.3 Enforcement Procedures. In the event of any violation by an Owner or Occupant, the Association and any aggrieved Owner shall have all of the rights and remedies which may be provided for in the Governing Documents, or which may be available at law or in equity.

 

12.4.1 Complaint Review Panel. Except as hereinafter provided, the Board or committee appointed by the Board shall serve as the Complaint Review Panel ("Panel") and shall investigate, hear and determine all complaints concerning violations by any Owner or Occupant pursuant Ito procedures set forth in reasonable policies adopted by the Board from time to time. The Panel is authorized to order compliance with the applicable provision of the Governing Documents. Any member of the Panel who is incapable of impartial, disinterested and objective consideration of the case shall disclose this to the Panel and shall remove himself or herself from participation in the proceedings and have it so recorded in the minutes of the Panel.

 

12.4.2 Informal Dispute Resolution Procedure. The Association and Owners intend that an informal process be followed prior to the initiation of a formal hearing process against any party subject to the Governing Documents. To that end, any Owner, employee or agent of the Association has the authority to request that an Owner or Occupant cease or correct any act or perform any omission which appears to be in violation of the Governing Documents. The informal request must be made, either verbally or in writing, prior to initiation of the formal hearing process.

 

12.5 Judicial Enforcement. Failure to comply with a provision of the Governing Documents, or a decision of the Board or Panel shall be grounds for an action to recover sums due for damages, fines and any costs incurred by the Association in connection with the proceedings before the Panel, including reasonable attorney's fees incurred by the Association. Such action shall be Maintainable by the Association (acting through the Board) on behalf of the Owners. Such Violation shall further be sufficient grounds for the granting of injunctive relief in such an action and a showing of irreparable harm shall not be a prerequisite to issuance of such injunctive relief. Nothing contained in this Declaration shall be deemed or construed as a waiver of the Association's right to bring a judicial action without first exhausting the Association's internal enforcement procedures in cases where the Board deems immediate judicial action to be necessary or appropriate. In the event that the Board fails or refuses, after demand by an aggrieved Owner, to take appropriate action to enforce compliance with any provision of the Governing Documents or any Board or Panel Decision, an aggrieved Owner on his or her own may maintain an action for damages or injunctive relief against the party failing to comply. In any judicial action to enforce compliance with the Governing Documents, or a decision of the Board, or Panel, the prevailing party, including the Association, shall be entitled to recover from the non-prevailing party, whether or not the action proceeds to judgment, its costs and a reasonable sum for attorneys' fees incurred in connection with the action, in addition to actual costs.

 

12.6.1 Authority to Impose Fines. The Association shall have the right to impose monetary penalties against the Owner and/or Occupant who violates the Governing Documents or other rules and restrictions adopted by the Association. The Board shall, from time to time, adopt a schedule for such monetary penalties. The schedule may provide for penalties that are assessed a single flat rate and may provide for penalties which are incurred on a periodic (daily, weekly, etc.) basis and which accrue until violations are corrected.

 

12.6.2 Procedure for Imposition of Fines. If the Association determines that a violation of the Governing Documents or other rules and restrictions adopted by the Association has occurred, the Association shall send a written notice of violation ("Notice of Violation") to the Owner and Occupant of the Lot determined to be responsible for the violation. The Notice of Violation shall identify (1) the location where the violation has occurred, (2) the name of the person responsible for the violation, (3) the nature of the violation, (4) the action or actions required in order to cure the violation and a deadline for compliance, and (5) the rate or amount of the fine that will be assessed if the violation is not cured by the compliance deadline. In addition, the Notice of Violation shall indicate that the Owner or Occupant deemed responsible for the violation shall be entitled to request a hearing before the Panel, provided a written request for such a hearing is submitted to the Panel within fourteen calendar days after the issuance of the Notice of Violation.

 

12.6.3 Hearing by Complaint Review Panel. If a request for a hearing is submitted, the Panel shall conduct a factual hearing and allow interested parties to present evidence relevant to the issues of whether or not a violation has occurred and what action is required to cure the violation. The Panel shall issue a written decision after the conclusion of the factual hearing. All Notices of Violation become final either fourteen days after they are issued if no request for a hearing is submitted, or on the date that the Panel issues its decision following a hearing.

 

12.6.4 Collection of Fines, Lien on Title. Unpaid fines assessed pursuant to this Section shall constitute liens against the Lot and shall be subject to the terms and conditions of this Declaration regarding liens for Assessments and attorney's fees.

 

12.7 Enforcement Against Occupants. The occupation of a Lot by a tenant, and every lease, shall be subject to the Governing Documents. By entering into occupancy of a Lot, an Occupant agrees to be bound by the Governing Documents. A breach of the Governing Documents by an Occupant shall be deemed to be a breach of his or her lease. In the event of a violation by an Occupant, the Board shall notify the Owner and Occupant of the violation and demand that the violation be remedied through the Owner's efforts within twenty days after the Notice of Violation. The Owner shall, within five days of such notice, serve upon the Occupant in the manner provided by law, a.' notice to comply or quit the premises. If the violation is not remedied within the twenty day period, then the Owner shall immediately thereafter, at his or her own cost and expense, institute and diligently prosecute an unlawful detainer action. The unlawful detainer action shall not be compromised or settled without the prior written approval of the Board. If the Owner fails to fulfill the foregoing obligation, then the Board shall have the right, but not the duty, to institute and prosecute an unlawful detainer action as attorney-in-fact for the Owner and at the Owner's sole cost and expense, including all legal fees incurred. The costs and expenses of the action shall be deemed to constitute Assessments secured by a lien on the Lot involved as well as the personal obligation of the Owner, and collection thereof may be enforced by the Board in the same manner an any other Assessment. Each and every Owner does hereby automatically and irrevocably name, constitute, appoint and confirm the Association as his or her attorney-in-fact for the purposes described in this section.