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Article 5 - Rights of Enjoyment in the Common Property

¶5.01 Designation of Common Property
¶5.02 Use of Common Property
¶5.03 Authority to Charge Admission and Other Fees
¶5.04 Authority to Borrow Funds
¶5.05 Suspension of Right to Use Common Property
¶5.06 Authority to Convey Common Property

5.01 Designation of Common Property: Muirfield intends to convey to the Association, subsequent to the recordation of this Deed and subsequent to the reconveyance of the Property to Muirfield, one or more tracts of land within the Property for park and recreational purposes. Upon designation by the Association of any part of the Property owned by it as Common Property, the Board shall cause a plat, showing those areas so designated, or a declaration stating that such land has been designated, or both, to be recorded among the records of the Recorder of Franklin County or Delaware County, or both. No part of the Property shall be Common Property subject to the rights and easements of enjoyment and privileges hereinafter granted unless and until the same shall have been so designated and the above described plat or declaration filed in accordance with the foregoing procedures. Common Property shall remain such in perpetuity, subject only to the provisions of ¶5.06

5.02 Use of Common Property: All Owners, by reason of such ownership, shall have a right and easement of enjoyment in the Common Property for so long as they are Owners within the previously defined meaning of that term. Such right and easement are appurtenant to each Assessable Unit and shall not be transferable except as they shall automatically transfer with the transfer of the ownership of an Assessable Unit. All Residents shall have a non-transferable privilege to use and enjoy the Common Property for so long as they are Residents within the previously defined meaning of that term. For purposes of this Article 5 only, the terms "Owner" and "Resident" shall also include the employees, guests, invitees, and tenants of any Owner and Resident, if and to the extent the Board, in its absolute discretion, so directs. All such rights, easements and privileges in this ¶5.02 set forth, however, shall be subject to the further provisions of this Deed and the right of the Board to promulgate and adopt reasonable rules and regulations pertaining to the use of the Common Property, which in the sole discretion of the Board shall serve to promote the safety and convenience of the users of the Common Property and will be in the interests of the Owners and Residents and the community, as a whole, including, without limitation of the foregoing, making the Common Property available for use by churches, school boards, other community and civic organizations, and the community at large, with or without charge.

5.03 Authority to Charge Admission and Other Fees: The Association shall have the power and authority to charge Owners, Residents and other users of the Common Property, or any one or more of the foregoing, reasonable admission, use, or other fees in connection with the use of the Common Property. In establishing such admission and other fees, the Board may, in its absolute discretion, establish reasonable classifications of Owners, of Residents and of members of the community at large. Such admission and other fees must be uniform within each such class, but need not be charged to all classes or be uniform from class to class.

5.04 Authority to Borrow Funds: The Association shall have the power and authority to borrow money for the purpose of improving the Common Property and, in aid thereof. To mortgage the same, and the rights of any such mortgagee shall be superior to the easements and privileges herein granted and assured.

5.05 Suspension of Right to Use Common Property: The Association shall have the power and authority to suspend the right of any Owner (and the privilege of each Resident claiming through such Owner) of use of the Common Property for any period during which the Annual Charge assessed under Article 2 hereof, or any installment thereof, remains overdue and unpaid by such Owner, or in connections with the enforcement of any covenant, condition or restriction imposed by this Deed, of any rules or regulations relating to the use of such facilities in accordance with the provisions of this Article 5, or of any covenants, conditions, restrictions, rules or regulations relating to the use of any portion of the Property.

5.06 Authority to Convey Common Property: Notwithstanding the rights, easements and privileges granted under this Article 5, the Association shall nevertheless have the power and authority to convey or dedicate any property or easement or right of way over any property referred to in ¶5.01 hereof free and clear al all such rights, easements and privileges if such conveyance or dedication is for use as a public roadway or pedestrian walkway, or to a public or private utility for the installation, operation and maintenance of utility services, Any other conveyance or dedication of Common Property shall be made only for a public purpose and, if made for a purpose other than those specified in the immediately preceding sentence of this ¶5.06, only by an affirmative vote of at least two-thirds of the voting members of the Association represented in person or by proxy entitled to vote at a meeting (annual or special) called for such purpose.

Note: the Declaration has been retyped for readability purposes only. View a PDF of the entire Declaration (Warranty Deed) or the original signature page.
Declaration Table of Contents
Declaration Introduction
Article 1
Article 2
Article 3
Article 4
Article 5
Article 6
Article 7
Article 8
Article 9
Article 10
Article 11
Article 12
Article 13
Article 14
Article 15
Article 16
Article 17