The following Briarwood Deed Restrictions are provide for References only!
Legal copies are on file at the Court House.
DECLARATION OF BRIARWOOD DEED RESTRICTIONS
THIS DECLARATION, made on this ___________ day of ____________,
By PAUL M. BURGER & COMPANY, hereinafter referred to as "Declarant", a corporation duly organized and existing under and by virtue of the laws of the State of Kansas.
WITNESSETH: __________________
WHEREAS, Declarant is the owner of all of the lots shown on the recorded plat ____ of Briarwood, a subdivision in the City of Olathe, Johnson County, Kansas, which plat was recorded in the office of the Register of Deeds, ____________, 19__, in Book ____________ of Plats, at Page _____________; and
WHEREAS, Declarant desires to place restrictions on said lots for the use and benefit of the present owner and for the use and benefit of its future grantees:
NOW, THEREFORE. It is hereby declared that all of the lots shall be held, sold, conveyed, hypothecated or encumbered, leased, rented, used, occupied, and improved subject to the following easements, restrictions, covenants, and conditions, which shall run with the land, and which are for the purpose of protecting the value and desirability of the lots and shall be binding on all parties having any right, title, or interest in or to the lots, or any part thereof, and their respective heirs, personal representatives, successors, and assigns, and which easements, restrictions, covenants, and conditions shall inure to the benefit of each owner of the lots or any part thereof.
SECTION 1. USE OF SAID LAND
All lots in the tract shall be known and described as residential lots and none of said land may be improved, used or occupied for other than private residence purposes. No duplex or apartment house although intended for residence purposes may be erected thereon. Any residence erected or maintained thereon shall be designated for occupancy by a single family, not to exceed two stories in height and a private garage for not more than three cars; provided that nothing herein contained shall be construed to prohibit the use of any part or parts of said land which is hereby restricted for street, avenue, park or other public uses or purposes. All buildings or structures shall be of a new construction. No building or structure shall be moved on to any lot.
SECTION 2. FRONTAGE OF LOTS
For the purpose of these restrictions, all of the lots or part or parts thereof shall be deemed to front on the streets according to the building line as shown on the recorded plat, provided that any corner lot may be deemed to front on either of the streets contiguous to it.
SECTION 3. FRONTAGE OF RESIDENCES ON STREETS
Any residence erected wholly or partially on any of the lots or any part or parts thereof as shown on the recorded plat shall front or present a good frontage on the street or streets upon which said lots front, and for this purpose as applied to all inside lots it shall mean that the residence shall front the street adjacent and on any corner lot said residence may front on either street, providing that the plot plan with the improvements shown thereon is first approved in writing by the Declarant or its successors or assigns.
SECTION 4. SETBACK OF RESIDENCES FROM STREET
No part of any residence except as herein provided may be erected on any of the lots hereby restricted, nearer to the street or streets than the building set back lines shown on said plat of Briarwood; however, Declarant hereby specifically reserves the right to alter any building set back line at any time prior to conveyance of any lot and also thereafter with the consent of the then owner in writing, provided, however, that in no event shall any front building set back line be moved more than 5 feet closer to the street and no side street building line shall be moved more than 5 feet closer to said side street. Any part of the residence other than the main structure which may project and be nearer to the front street or side street shall comply with the zoning restrictions of the City of Olathe, Kansas. In the event a residence is erected on a corner lot fronting the platted side street contiguous to said lot, the building set back requirements of the Olathe City Zoning regulations shall apply if said regulations require a greater set back than the platted building limit line.
SECTION 5. EASEMENTS FOR UTILITIES
An easement is reserved over that portion of each lot for utility installation, drainage and maintenance, as noted in the plat of Briarwood. No building, shrubbery, fence, or other obstruction shall be placed on any such easement, and for the installation, operation, maintenance, repair, or removal of any utility together with the right to remove any obstruction that may be placed on such easement which constitutes an interference with the installation, operation, maintenance, repair, or removal of such utility. No liability whatsoever shall arise by reason of the removal of any property, or other obstruction, situated within any such easement. No structure, planting or other material shall be placed or be permitted to remain upon any Lot which may damage or interfere with any easement for the installation or maintenance of utilities, or which may unreasonably change, obstruct or retard direction or flow of any drainage channels.
SECTION 6. HEIGHT AND AREA REGULATIONS
Height and area regulations shall not be less than the minimum requirements set out under Height and Area Regulations for single family residential zoning under the City of Olathe Zoning Regulations.
SECTION 7. MINIMUM GROUND FLOOR AREA REQUIRED AND ROOFS
A. No residence constructed on a lot in Briarwood shall have a minimum ground floor area of a lesser size than set out below:
1. A one-story house shall be not less than 1,800 square feet of enclosed area.
2. A split-level or tri-level house shall not have less than 1,800 square feet of enclosed area.
3. A one and one-half story house shall be not less than 1,800 square feet of enclosed area.
4. A two-story house shall be not less than 1,800 square feet of enclosed area.
B. In all cases these minimum area requirements shall not include garages, basements, and open porches or anything except areas which are enclosed and finished for all year occupancy. All garages on any of the lots shall be attached to the main structure, unless approval otherwise shall be obtained in writing from the Declarant.
C. All roofs must be natural wood cedar shingles.
Roofing Amendment:
Section 7.C. of the Declaration of Restrictions for all Briarwood plats (1-14) has been amended as follows:
All roofing materials shall be wood shake shingles, or roofing materials which is substantially similar in aesthetic value, color, appearance, and quality. Use of roofing material other than wood shake shingles must be approved by the Architectural Review Committee, pursuant to its rules and regulations, prior to installation or replacement.
Note use of any roofing material other than wood shake shingles requires prior approval of the Architectural Review Committee.
SECTION 8. OUT BUILDINGS
No detached garage or out building of any kind or character may be erected on any of the lots hereby restricted.
SECTION 9. ANIMALS
The maintenance, keeping, boarding and/or raising of animals, livestock, or poultry, of any kind, regardless of number, shall be and is hereby prohibited on any lot, except that this shall not prohibit the keeping of a reasonable number of dogs, cats and/or caged birds as domestic pets provided they are not kept, bred or maintained for commercial purposes and, provided further, that such domestic pets are not a source of annoyance or nuisance to the neighborhood or other Lot Owners. Declarant, or its successors or assigns, shall have the authority, after hearing, to determine whether a particular pet is a nuisance or a source of annoyance to other Lot Owners, and such determination shall be conclusive. Pets shall be attended at all times and shall be registered, licensed and innoculated as may from time to time be required by law. No animal enclosure shall be constructed or placed on the property without adequate surrounding shrubbery to obscure it from view. Approval for the erection of an enclosure and the plan of the landscaping shall be obtained in writing from the Declarant, its successors or assigns, prior to the time any construction is started.
SECTION 10. TRASH, GARBAGE AND LITTER
No burning of any trash and no accumulation or storage of litter, lumber, scrap metals, refuse, bulk materials, waste, or trash of any other kind shall be permitted on any lot. Trash and garbage containers shall not be permitted to remain in public view except on days of trash collection. No incinerator shall be kept or maintained on any lot. Garbage, trash and other refuse shall be placed in covered containers.
SECTION 11. NOXIOUS OR OFFENSIVE TRADE OR ACTIVITY PROHIBITED
No noxious or offensive trade or activity shall be carried on upon any lot, nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.
SECTION 12. NO OUTBUILDINGS TO BE USED FOR RESIDENCE
No trailer, basement, tent, shack, garage, barn, or other outbuilding erected or located on the tract shall at any time be used as a residence, temporarily or permanently, nor shall any structure of a temporary character be used as a residence.
SECTION 13. VEHICLES, EQUIPMENT AND MACHINERY
No junk vehicle, no commercial vehicle, trailer, truck, van, camper, camp truck, house trailer, boat or other machinery or equipment of any kind or character (except for such equipment and/or machinery as may be reasonable, customary and usual in connection with the construction, use or maintenance of any Lot) shall be kept in the subdivision or upon any lot, unless kept in a garage which is an approved part of the residential structure and providing that when stored the garage door can be and is closed, nor (except for bona fide emergencies) shall the repair nor extra-ordinary maintenance of automobiles or other vehicles be carried out thereon.
SECTION 14. PAVING
No paving of any nature shall be done for the purpose of parking cars on the premises in the open other than a driveway as normally constructed for the purpose of entering a garage.
SECTION 15. FENCES AND WALLS
No fence or wall that is higher than 6 feet above the ground shall be constructed. In no event shall a fence or wall be constructed closer to the street upon which the residence fronts than the rear foundation line of the residence and on any corner lot no fence or wall shall be constructed closer to either the fronting street or side street than the rear foundation line of the part of the house that the living quarters sets over. The garage foundation may not be considered part of the foundation referred to above. No wall or fence of any type shall be constructed on any lot unless the height, type, design, material and approximate location thereof shall have been approved in writing by Declarant. The heights or elevations of any such walls, fence or hedge shall be measured from the existing elevations of the property at or along the applicable points or lines. Any determination as to such heights shall be made solely by Declarant.
SECTION 16. HOSES AND PIPES
Except for hoses and like which are reasonably necessary in connection with normal lawn and garden maintenance, no water pipe, gas pipe or drainage pipe, or the like shall be installed or maintained on any lot above the surface of the ground.
SECTION 17. OTHER STRUCTURES
No structure of a temporary character, and no trailer, tent, shack, barn, pen, kennel, run, stable, outdoor clothes dryer, playhouse, shed or other structure or buildings of similar character shall be erected, used or maintained on any lot at any time unless the same shall be concealed by hedges, lattice work or other screening approved by Declarant, its successors or assigns.
SECTION 18. SIGNS
No signs of any character shall be allowed on any lot except one sign of not more than five (5) square feet advertising the property for sale or rent; provided, however, that Declarant and any other person or entity engaged in the constriction and sale of residences within the subdivision shall have the right, during the construction and sales period, to construct and maintain such facilities as may be reasonably necessary or convenient for such construction and sale, including, but not limited, to signs, offices, storage areas, and model homes.
SECTION 19. STORAGE TANKS
No tank for the storage of fuel may be kept or maintained upon any lot without the written consent of Declarant.
SECTION 20. RADIO AND TELEVISION ANTENNA
No radio or television antenna shall be installed on the front half of the roof of the house or on the top of a gable or hip line of a house. No radio or television antenna shall be installed on the rear one-half portion of the roof of the house that extends more than three (3) feet above the highest point of the roof of the house. No television or radio tower of any nature shall be installed in the front yard or side yard of the house. No television or radio tower shall be installed in the rear yard that requires guy wires to support same. Any free standing tower installed in the rear of the property shall not exceed twenty-five (25) feet in height. No satellite dishes allowed.
SECTION 21. BUILDING AND PLOT PLANS APPROVED
A. No building or structure shall be erected, placed or altered, nor any additions of any nature made thereto on any lot in this subdivision until the building plans, specifications, plot plan and finished elevation have been approved in writing by Declarant or by a representative designated by Declarant. A copy of all plans shall be deposited with Declarant until the improvements have been fully completed. Constructions or alterations in accordance with plans and specifications approved by Declarant pursuant to the provisions of this Section shall be commenced within six (6) months following the date upon which same is approved (whether by affirmative action or by forbearance from action) and shall be substantially completed within twelve (12) months following the date of commencement, or within such other period as Declarant shall specify in its approval. In the event construction is not commenced within the period aforesaid, then approval of the plans and specifications by Declarant shall be conclusively deemed to have lapsed and compliance with the provisions of this section shall again be required. There shall be no deviation form the plans and specifications approved by Declarant without its prior consent in writing. Approval of any particular plans and specifications or designs shall not be construed as a waiver of the rights of Declarant to disapprove such plans and specifications or, any elements or features thereof, in the event such plans and specifications are subsequently submitted for use in any other instance. Upon the completion of any construction or alterations or other improvements or structure in accordance with the provisions of this section, Declarant shall, at the request of the owner thereof, issue a certificate of compliance which shall be prima facie evidence that such construction, alteration, or other improvements referenced in such certificate have been approved by Declarant and construed or installed in full accordance with the provisions of this section.
B. Declarant may from time to time adopt and promulgate such rules and regulations regarding the form and content of plans and specifications to be submitted for approval and may publish and/or record such statements of policy, standards, guidelines, and/or establish such criteria relative to architectural styles or details, colors, setbacks, materials or other matters relative to architectural control and protection of the environment, as it may consider necessary or appropriate. No such rules, regulations, statements or criteria or the like shall be construed as a waiver of the provisions of this section.
C. In the event of the dissolution of the Declarant or when Declarant no longer has any interest in any of the land covered by these restrictions, the powers of approval shall be assigned to an architectural committee composed of property owners in the subdivision and provisions made for perpetuating said committee and its successors during the period of time these restrictions remain in force. In the event Declarant or its designated representatives or any succeeding architectural committee fails to approve or disapprove such design and location with thirty (30) days after said plans and specifications have been submitted to it, or in any event, if no suit to enjoin the erection of such building or the making of such alterations has been commenced prior to the completion thereof, such approval shall not be required and this covenant will be deemed to have been fully complied with. The powers and duties in this paragraph provided shall cease upon expiration of these restrictions. Thereafter, the approval described in this covenant shall not be required unless prior to said date and effective thereon, a written instrument shall be executed by the then record owners of the majority of the lots in this subdivision and duly recorded appointing a representative or representatives who shall thereafter exercise the same powers previously exercised by the Declarant.
SECTION 22. INAPPLICABILITY TO PAUL M. BURGER & COMPANY
The restrictions contained in this Declaration regarding use of the lots shall not apply to the activities of the Declarant, which may maintain, while developing the subdivision or constructing or selling homes upon lots, in or upon such part thereof as Declarant determines, such facilities as in its sole discretion may be necessary or convenient to its activities, including, but not limited to, offices, storage areas, model homes and signs.
SECTION 25. MISCELLANEOUS
A. Applicability. These restrictions shall apply to all buildings or outbuildings originally constructed, remodeled or rebuilt in case of destruction by fire or other casualty.
B. Violations of Law. Nothing in these restrictions shall be deemed to permit any violation of the zoning restrictions or any other Federal, State, County or local law or regulation, and if at any time any of the provisions of this agreement shall be found to be in conflict therewith, then such parts of this agreement as are in conflict with such laws, shall become null and void, but no part of this agreement not in conflict therewith shall be affected thereby.
C. Addition of other Land. Declarant shall have and expressly reserves the right from time to time to add such other land as it may now own or hereafter may acquire to the operation of the provisions of this Declaration of Restrictions by executing and acknowledging an appropriate agreement or agreements for that purpose and filing the same for record in the office of the Register of Deeds of Johnson County, Kansas, however, nothing herein shall be interpreted to mean that any adjoining land shall be developed for single residences only, and in no way shall the restrictions be interpreted to that adjoining ground may not be used for multiple family residences or for any other lawful purpose.
D. Duration of Restrictions and Amendments. The covenants, conditions and restrictions of this Declaration shall with and bind the land subject to this Declaration, and shall inure to the benefit of, and be enforceable by Declarant, Lot Owner, and their respective legal representatives, heirs, successors, and assigns and, unless amended as provided herein, shall be effective for a term of thirty (30) years from the date this Declaration is filed for record, after which time said covenants, conditions, and restrictions shall be automatically extended for successive periods of ten (10) years. The covenants, conditions and restrictions of this Declaration may be amended during the first thirty (30) year period by an instrument signed by not less than 90 percent of the Lot Owners; during any succeeding ten (10) year period, the covenants, conditions and restrictions of this Declaration may be amended during the last year of any such ten (10) year period by an instrument signed by not less than 75 percent of the Lot Owners; provided, however, no such amendment shall be effective unless made and recorded in the office of the Recorder of Deeds of Johnson County, Kansas, one (1) year in advance of the effective date of such change. Anything herein to the contrary notwithstanding, until such time as the first Lot is sold by Declarant, Declarant, in its sole discretion, may abolish this Declaration, or change it in whole or in part.
E. Right to Enforce. Each of the restrictions herein set forth shall run with the land, 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 said land and its successors and assigns, and with each of them to conform to and observe said restrictions as to the use of said land and the construction of improvements thereon, but no restrictions herein set forth shall be personally binding upon any corporation, person or persons except in respect to breaches committed during its, his or their seizing of title to said land. The owner or owners of any of the above described land, and such other land as may hereafter be subjected to the terms hereof, shall have the right to sue for and obtain injunction, prohibitive or mandatory, or any other legal or equitable relief to prevent the breach of or to enforce the observance of the restrictions above set forth and/or recover damages for such violation. The invalidation of any of these covenants by judgement or court order shall in no wise affect any of the other provisions which shall remain in full force and effect, and the failure of the Declarant or the owner of any other lot or tract of land hereby restricted or subsequently subjected hereto 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. Declarant may, by appropriate agreement, assign or convey to any person or corporation all of its rights and privileges herein reserved to it.
F. Definitions. For the purposes of the foregoing restrictions, the word "Street" shall mean any street, avenue, drive of whatsoever name which is shown on said recorded plat of Briarwood and has been heretofore dedicated to the public for the purpose of a public road, street, avenue or drive. The word "lot" may mean either any lot as platted or any tract or tract of lands, as conveyed, which may consist of one or more lots or a part or parts of one or more lots as platted upon which a residence may be erected in accordance with the restrictions heretofore set forth or as set forth in the individual deeds from Declarant, their successors or assigns. A "corner" lot shall be deemed to by any such lot as platted or any tract of land as conveyed having more than one street contiguous to it. If any part less than the whole or any corner lot is acquired by the owner of an inside lot contiguous to the said corner lot, the part of the corner lot so acquired shall be deemed to be part of the inside lot to which it is contiguous.
G. Persons Bound by These Restrictions. Except as specifically provided in subparagraph D of Section 25, all persons and corporations who now or shall hereafter acquire any interest of any kind or character, whether as fee title holder, lessee, mortgagee or any other interest in any land which is herein covered by these Declarations shall be taken and held to agreement and covenant with Declarant and any and every other Lot Owner, their personal representatives, heirs, successors and assigns.
H. Successors of Paul M. Burger & Co. Any and all rights, reservations, interests, privileges and/or powers of Declarant hereunder may be assigned and transferred by Declarant with or without notice to or consent of the Lot Owners.
I. Grammar. The singular whenever used herein shall be construed to mean the plural when applicable, and the necessary grammatical changes required to make the provisions hereof apply either to corporations or individuals, men or women, shall in all cases be assumed as though in each case fully expressed.
J. Captions. The captions contained in this Declaration are for convenience only and are not part of this Declaration and are not intended in any way to limit or enlarge the terms and provisions of this Declaration.
K. Incorporation by Reference or Resale. In the event any owner sells or otherwise transfers any lot, any deed purporting to effect such transfer shall contain a provision incorporating by reference the covenants, conditions and restrictions set forth in this Declaration; but failure to include such a provision in any such deed shall not affect the validity, priority or enforceability of the covenants, conditions and restrictions set forth in this Declaration, against such sold or otherwise transferred lot.
IN WITNESS WHEREOF, PAUL M. BURGER & COMPANY has by authority of its Board of Directors caused this instrument to be executed by its president and its corporate seal to be hereto attached this ___________ day of ________________.
Briarwood Deed Restrictions are provide for References only!
Legal copies are on file at the Court House.