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Brandywine Condominium Association
DECLARATION OF CONDOMINIUM as adopted January 2, 2006
and amended December
2, 2008, December 7, 2009, January 23, 2012 and December
7, 2021.
3.
RESIDENTIAL UNITS SHALL BE CONSTITUTED
AS FOLLOWS:
A Real Property: Each residential unit together with the space within it and together with all appurtenances thereto, shall, for all purposes, constitute a separate parcel of real property which may be conveyed, transferred and encumbered in the same manner as any other parcel of real property, independent y of all other parts of the property, subject only to the provisions of this Declaration and its exhibits.
B. Boundaries: Each unit shall be bounded as to both horizontal and vertical boundaries subject to such encroachments as are created by construction, settlement or movement of the buildings, or permissible repairs, reconstruction or alterations. Said boundaries are intended to be as fo11ows, and shall be determined in the following manner.
(1) Horizontal Boundaries: The horizontal boundaries of the units shall be:
(a) Upper Boundaries: The underside of the finished undecorated ceiling of the unit, extended to meet the vertical boundaries.
(b) Lower Boundaries: The upperside of the finished undecorated surface of the floor of the unit extended to meet the vertical boundaries.
(2) Vertical Boundaries: The vertical boundaries of the units shall be:
(a) Exterior Boundaries: The exterior side of the unit building except where there is attached, or in existence as part of the buildings an enclosed porch serving only the unit being bounded, in which event the boundary will include such structures. All outside doors and windows and the frames and fixtures comprising such facilities shall also be included within the boundaries of the units which they serve
(b) Interior Boundaries: (Between units joined by a common wall): The plane formed by the center line of such walls between units, and the center line of such walls between the units being bounded and common areas.
C. Exclusive Use: Each unit owner shall have the exclusive use of his unit.
D. Appurtenances: The ownership of each residential unit shall include and there shall pass with each unit as appurtenances thereto whether or not separately described, all of the rights, title and interest of a unit owner-in the condominium property which shall include but not be limited to:
(1) Common Elements: An undivided share of the common elements, which undivided share is:
.0020835 for each Hazeltine unit;
.0029049 for each Broadwater, Arcola, Medinab, Turnberry; and
.0034258 for each Brandywine unit.
(2) Easements: For the benefit of each residential unit which shall include ingress and egress over such streets, walkways and other rights-of- way serving the unit as part of the common elements as shall be necessary to provide access to the public ways, streets, walkways and other rights-of-way serving and surrounding the condominium area.
(3) Association Membership and interest in funds and assets held by the Association: Funds collected and in the hands of the Association are not refundable or transferable to or by an owner or his estate.
E. Easements. The respective rights and obligations of the Unit Owners, the Association, and others concerning easements affecting the condominium property shall include the following:
(1) Reserved by Association. The Association hereby reserves for the benefit of itself, its successors and assigns, perpetual easements for:
(a) the installation, construction, repair, maintenance, and replacement of lines, pipes, wells, drains, cables, equipment, apparatus, structures, roads, driveways, and other improvements for private or public utility services of all kinds, including without limitation, water, sewer, drainage, irrigation, fire protection, electricity, telephone, cable television, and trash disposal, over, under, through, and across the common elements; and
(b) ingress and egress by pedestrians, runners, bicycles, golf carts, automobiles, and other vehicles over, under, through, and across the common elements for the purpose of obtaining access to the condominium property and properties adjacent thereto and providing parking facilities to serve such adjacent properties, together with the right to construct, maintain, and replace such roads, walkways, parking areas, and other improvements as may be reasonably appropriate for the use and enjoyment of said easements.
(2) Granted to Unit Owners. Each Unit Owner is hereby granted a nonexclusive perpetual easement for ingress and egress to and from his respective Unit through the common elements and a perpetual easement for encroachments which may exist now or in the future by inaccuracies in construction or settlement or movement of the building, which encroachments shall be allowed to remain undisturbed until they no longer exist.
(3) Granted to Utilities. There is hereby granted to public and private utility companies rendering utility services to the condominium a perpetual nonexclusive easement for the construction, installation, maintenance, repair, and replacement of the equipment, structures, and other improvements by which such utility services are respectively provided over, under, across, and through such portion of the common elements as may be reasonably necessary therefore. The use of any easement granted hereunder shall not include the right to disturb any building or structure on the common elements, and any damage shall be repaired at the expense of the company causing such damage. In the event a utility company's use of an easement granted hereunder causes a disturbance of the surface of the land, the roadways, grass, landscaping, and other improvements which are disturbed shall be restored promptly by the utility company as nearly as possible to their prior condition.
(4) Authority of Association. The Association shaU have the right to grant easements under, over, across, and through the condominium property to such persons or entities and for such purposes as the Board may deem appropriate by recording in the Public Records of Lee County, Florida, an instrument duly executed by the president of the Association and Secretary.
(4) Responsibilities. A Unit Owner shall do nothing within or outside such Owner's Unit that interferes with or impairs, or may interfere with or impair, the provision of services contemplated or the use of the easements created under this Section. The Association and its authorized agents shall have the irrevocable right of access to each Unit during reasonable hours, when necessary, to maintain, repair or replace those items and areas, as detailed in Section 7 herein or as otherwise contemplated herein, for which the Association is responsible, and to remove any improvements interfering with or impairing such facilities or easements herein reserved, pursuant to the Declaration or as necessary to prevent damage to the Common Elements to a Unit or Units.
F. Maintenance: The responsibility for the maintenance of a residential unit shall be as follows:
(1) Association Maintenance. The Association is responsible for the protection, maintenance, repair and replacement of all common elements and Association property. The cost is a common expense. The Association's responsibility includes, without limitation, electrical conduit, rough plumbing, and all installations located within one unit but serving another unit, or located outside the unit, for the :furnishing of utilities to mote than one unit or the common elements. The Association's responsibility does not include interior wall switches or receptacles, plumbing fixtures, or other electrical, plumbing or mechanical installations located within the unit. All incidental damage caused to a unit by work performed or ordered to be performed by the Association shall be promptly repaired by and at the expense of the Association, which shall restore the property as nearly as practical to its condition before the damage, and the cost shall be a common expense, except the Association shall not be responsible for the damage to installations made by the unit owner without prior Association approval as required elsewhere herein.
(2) By the Unit Owners. Each Unit Owner shall maintain, repair, and replace everything within the confines of bis Unit that is not part of the common elements as defined herein, including but not limited to:
(a) Decorating within his own Unit, including painting, wallpapering, ceiling fans, paneling, floor covering, draperies, window shades, curtains, lamps and other light fixtures, and other furnishings and interior decorating.
(b) Built-in shelves, cabinets, counters, storage areas, and closets.
(c) Reftigerators, stoves, ovens, disposals, dishwashers, and other appliances and bathroom fixtures, equipment, and apparatus.
(d) Electrical, plumbing, telephone, and television fixtures, apparatus, equipment, outlets, switches, wires, pipes, and conduits.
(e) Exterior and interior doors, walls, partitions, room dividers and associated hardware.
(t) Furniture, furnishings, and personal property contained within the Unit.
(g) Heating and air conditioning equipment, if any, that
has been designated for the benefit of his respective Unit.
(h) Electrical apparatus and wiring on the Unit side of the meter.
(i) Plumbing, pipes and apparatus on the Unit side of the meter.
(j) Screens, windows, frames and associated hardware serving his Unit.
(3) The Unit Owner shall obtain prior approval of the
Association before performing any maintenance responsibilities that require
changes or alterations to the physical appearance of the condominium property,
excavation, access to building roofs, removal or modification of any load
bearing interior partitions, the use of heavy or noisy equipment or such
other actions as may cause concern for the peace
and safety of the condominium and its residents. The Association may condition
such approval on criteria, as the Board deems reasonable, including but
not limited to:
(a) Use of licensed and insured contractors.
(b) Oversight by the Association or its agent.
(c) Submission of plans as to the scope of the contemplated
repair.
(d) Restrictions as to hours of work.
(e) Imposition of time limits in which jobs must be completed.
(f) Restrictions as to equipment that may be parked or stored on or near the condominium property during construction.
(g) Restrictions as to storage of materials and supplies necessary for the construction to be performed.
(4) Nothing shall preclude the Association :from acting as an Owner's agent and obtaining the services of Contractors to perform Unit Owner maintenance responsibilities, provided that the Association and the Owner so agree, and provided that the Owner is deemed to consent to reimbursement of expenses incurred, secured by such rights as exist for collecting common expenses under this Declaration.
(5) With regard to lanais, the Unit Owner who has the right to the exclusive use of said lanai, shall be responsible for the maintenance, care and preservation of the floor coverings, screens and frames, storm shutters and other enclosures, as well as fixed and/or sliding glass doors in portions of the entrance way, if any, outside caulking and the wiring, electrical outlet(s) and fixture(s) thereon, if any, and the replacement of light bulbs.
(6) The appearance of lanais and like areas, including screens and :frames, hardware, storm shutters and other items and portions of the building or other structures or improvements visible :from the exterior of the Unit, shall be subject to the rules and regulations of the Association as promulgated by the Board. There shall be no enclosure of lanais with glass, solid structures, or otherwise without the prior approval of the Board.
(7) If a Unit Owner makes any modifications, installations, or additions to the interior or exterior of the Unit or common elements, the Unit Owner shall be financially responsible for the insurance, maintenance, care, and preservation of the modifications, installations or additions and shall execute such documents as the Association may promulgate accepting said financial responsibility, which may be recorded in the Public Records of Lee County, to place record notice that such responsibility passes with title to the Unit and this Declaration of Condominium provides further record notice that such responsibility for alterations passes with title to the Unit Owner's heirs, successors and assigns.
(8) Tubular Skylight/Attic Fan. The Board of Directors shall adopt tubular skylight/attic fan specifications, which shall include size, color and other factors deemed relevant by the Board. All specifications adopted by the Board shall comply with the applicable building code. The Board shall not refuse to approve the installation or replacement of a tubular skylight/attic fan by a unit owner conforming to the specifications adopted by the Board. If a Unit Owner installs a tubular skylight/attic fan on the Common Elements (i.e. on the roof of the Condominium building over his or her unit), the Unit Owner shall be financially responsible for the insurance, maintenance, repair and replacement of the tubular skylight/attic fan, as well as the cost of repairing any damage to the Common Elements (i.e. the portion of the roof of the Condominium building over the unit in which the tubuJar skylight/attic fan is installed) resulting from the installation. maintenance, and/or removal of the tubular skylight.
G. Common Elements: The ownership and use of the common elements shall be governed by the following provisions:
(1) Shares of residential Unit Owners. The shares of unit owners in the common elements as stated in this Declaration may be altered only by amendment of the Declaration concurred to by all of the owners. No such change shall affect the lien of any mortgages recorded prior to such change without the written consent of the lien holder. The percentage of ownership in the common elements shall be as set forth in Section 3D(l) of the Declaration of Condominium.
(2) Appurtenant to Residential Units. The shares of a unit owner in the common elements are appurtenant to the unit owned by him. None of the appurtenances may be separated from the unit to which they pertain, and all of the appurtenances shall be deemed to be conveyed or encumbered or to otherwise pass with the unit whether or not expressly mentioned or described in a conveyance or other instrument describing the unit.
(3) Covenant against Partition, In order to preserve the condominium, the common elements shall remain undivided and no unit owner nor any other person shall bring any action for partition or division of the whole or any part thereof of the common elements.
(4) Non-Exclusive Possession. Each unit owner and the Association may use the common elements for the purpose for which they are intended, but no such use shall hinder or encroach upon the lawful rights of the other unit owners. Such right shall pass to the occupant of the unit, if such occupant is not the owner.
(5) Maintenance and Operation. The maintenance and operation of the common elements shall be the responsibility and the expense of the Association; provided, however, that in case of emergency and in order to preserve the property or for the safety of the occupants, a unit owner may assume the responsibility therefore, and he shall be relieved of liability for his acts performed in good faith, and he shall be reimbursed for his expense by the Association when approved by its Board of Directors. However, nothing herein contained shall be construed to prohibit management contracts for the management, maintenance and operation of the condominium property.
(6) Alteration and Improvement. There shall be no major alteration of the buildings and existing improvement nor further improvement of the lands upon which the buildings are located without the approval of not less than two-thirds (2/3rds) of the votes of the members of the Association present in person or by proxy, and voting at a duly called meeting of the Association.
(7) Pursuant to its authority to regulate the use of the common elements, the Board of Directors shall adopt rules and regulations providing for the assignment of the use of the storage closets and the carports in the Hazeltine buildings to the owners of units in the Hazeltine buildings. Thereafter, the use of the common element storage closets and carports in the Hazeltine buildings shall be in accordance with the rules and regulations adopted by the Board of Directors relating to the assignment of the use of such common element storage closets and carports.
Association address
Brandywine Condominium Association
1398 S. Brandywine Circle
Fort Myers, FL 33919
Phone: 239-481-2326
Fax: 239-481-0744
E-Mail: brandywinecondo@embarqmail.com