03-16-1978 Council Minutes - Laserfiche WebLink

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REGULAR P�ETING OF `^HE OROIdO COUNCIL, NiARCH 16, 1978 Page 10 tvALTER' S PORT (Continued) to Outlots 1 , 3 and 4 in the proportion hereinaf�er set forth. Further any r��aintenance or improvement exrenses autharized by said association will be borne by the individual m�mbers thereof in the proportion hereinafter set forth. [scnedule of proporLions omitted] It should first be noted that it is the members of the association (i .e: individual lot owners) and not the association ��which have the financial responsibility for maintenance of the lagoon, under the literal reading of the quoted provision. Moreover, no where in the covenants is the association given the power to levy assessments against its members for maintenance expenses or for any other purpose. However, notwith- standing the imprecision of this language, it can be fairly concluded that the association may approve certain maintenance expenses to be paid by the members in the proportions provided by paragraph 8. Though the covenants also do not provide for the procedure by wnich association actions are to be taken, again presumably a simple majority vote would bind the members of the association. It is evi�ent that a rather liberal reading of the covenants is necessary just to conclude that the association has the right to approve maintenance expenses and assess them against the members. Obviously it would strain credibility to conclude that the association has the right to make repairs or improvements to the exclusion of the individual property owners. There simply is no language anywhere in the covenants to suggest that such rights of the association were intended to be exclusive. The only conclusion which can be drawn, and even it is generous in its treatment of the association, is that the association and the individual owners have concurrent non-exclusive rights to make repairs and improvements. - It is important also to recognize that the covenants are addressed solely to rr�aintenance, preservation and improvement of Outlots 1 , 3 and 4. Thus, repairs which are done on the property of an individual , though they may relate to the lagoon or road, are not subject to the covenants. ' Indeed, as to such repairs the individual lot owner's rights would be exclusive as the association is given no right at all to approve expenses relating to maintenance of an individual 's property. It is obvious that these covenants are somewhat ambiguous and that the intent of the draftsman does not always clearly emerge from the language used. However, the ambiguities and gaps cannot be resolved or filled by supposing what a careful draftsman would have said or what a current draftsman would desire to say. Indeed, the rule of construction is well established: Covenants and agreements restricting tFie free use of property are strictly construed against limitations upon such use. Such restrictions will not be aided or extended by implication or enlarged by construction to affect lands not specifically described, (Continued)