Homeowner Covenants
Kapalani Estates
Introduction:
The files contained on this web page provide all the information about the Corporation, the Bylaws and Administrative Rules for operation.
The “Declaration of Covenants, Conditions and Restrictions for Kapalani Estates” (CC&R’s) describe the corporation, structure and conditions and restrictions placed on lot owners of the association.
The “Bylaws” describe the operating structure of the corporation i.e., the formation of the Board of Directors and Committees and their responsibilities. Additionally, the rules relative to meetings, voting, assessments, and adoption of “Administrative Rules” are included.
The “Administrative Rules” provide the Board of Directors and the Manager with necessary authority to ensure that all owners will be able to enjoy living in Kapalani Estates.
Also included are “Abridged” versions of the CC&R’s and Bylaws which you may find useful. They have non-essential sections removed so that it is easier to read and locate pertinent sections.
Finally, we have included policies for view corridor establishment and maintenance, operating rules for the Architectural Control Committee (ACC) and a Complaint Procedure for aggrieved homeowners.
Taken in total, these documents should serve as the basis for all operations at Kapalani Estates, and can assist homeowners in understanding the basis for past and future decisions by Boards of Directors and the property manager.
Liber 17337 Page 690 Liber 17408 Page 389 Liber 18731 Page 273 March 7, 1985 Liber 22435 Page 1 October 4, 1988 Doc. No. 2002 078522 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR KAPALANI ESTATES KNOW ALL MEN BY THESE PRESENTS: WHEREAS: 1. Kapalani Estates Development Company (“Declarant”), a limited partnership organized under the laws of the State of Hawaii, whose principal place of business and post office address is 6 Aekai Place, Lahaina, Hawaii, is the owner of those certain parcels of land more particularly described by Exhibit “1” attached hereto and made a part hereof (the “Property”). 2. The Property has been divided into and now consists of several residential Lots and certain Common Properties. 3. Declarant has caused to be organized under the laws of the State of Hawaii “Kapalani Estate Lot Owners Association”, a nonprofit Hawaii corporation, of which every owner of a Lot shall be a Member, for the purpose of holding certain property for the common use and benefit of the owners of the Lots, providing such municipal-type services to the owners of the Lots as they may from time to time deem necessary or convenient, to develop, improve and maintain certain recreational facilities on the Property for the common use and benefit of the owners of the Lots, collecting from the owners of the Lots the assessments and charges levied by the Association, enforcing the covenants and restrictions upon the use of the Lots imposed hereunder, and for such other lawful purposes as the Members of the Association shall deem to be in their common best interest. NOW THEREFORE, in order to promote the uniform and harmonious use and development of the Property, and the mutual compatible use of each Lot, Declarant does hereby declare that the Property, and each Lot, is and shall be held subject to the following covenants restricting the use thereof, and the conditions, liens, charges and assessments hereby imposed, and that all of such covenants, conditions, liens, charges and assessments shall be effective as to each such Lot from and after the date of the recording of this instrument with the Bureau of Conveyances of the State of Hawaii (the “EFFECTIVE DATE”), shall run with the land, and shall continue to be effective and run with the land without the execution, delivery or recordation of any further deed, instrument, document, agreement, declaration or covenants with respect thereto by any owner of a Lot, Declarant, or Association, that the acquisition of any right, title or interest in or with respect to any Lot by any person or entity, whomsoever, shall be deemed to constitute the acceptance of this Declaration Of Covenants, Conditions And Restrictions For Kapalani Estates by such person or entity, and that any transfer of any right, title or interest in or with respect to any Lot shall be subject to, and the transferee shall assume and be bound by and obligated to observe or perform, the covenants, conditions and restrictions contained in this Declaration Of Covenants, Conditions And Restrictions For Kapalani Estates. ARTICLE I. Definitions The following words whenever used herein shall have the following meanings: (a) “Association” means the “Kapalani Estates Lot Owners Association, a nonprofit corporation organized under the laws of the State of (b) “Member” means a member of the Association. (c) “Membership” means the rights, duties and obligations of a member. (d) “Subdivision” or “Property” means the Lots shown on Exhibit “1" attached to and made a part hereof. (e) “File Plan” means File Plan Number 1749 fled in the Bureau of Conveyances of the State of (f) “Common Properties” means those parts of the Property, including separate Lots which are not intended for residential use and private ownership, easements and other rights relating to the Property, all rights appurtenant to the Property, and all other rights, including rights which may be held in gross by the Association but which may not be appurtenant to any part of the Property, rationally of common use to, or necessary or convenient to the existence, maintenance or safety of the Property, which are shown upon the File Plan as intended to be owned by the Association, or which are shown by any instrument relating to the Subdivision as intended to be owned by the Association. (g) “ Lot 95, containing an area of 9,964 square feet, Lot 96, containing an area of 8,265 square feet,. Lot 97, containing an area of 9,509 square feet, Lot 98, containing an area of 9,712 square feet, Lot 99, containing an area of 10,750 square feet, (h) “Owner” means the person or entity who is entitled to the possession of a Lot, either as the owner of the fee simple title thereto, or as the purchaser thereof under an agreement of sale (or a like instrument) recorded with the Bureau of Conveyances of the State of Hawaii. (i) “Ownership” means the rights with respect to a (j) “Board of Directors” means the Board of Directors of the Association as duly constituted from time to time. (k) “Common Interest”means the percentage of interest appertaining to the several Lots, which shall have a permanent character, shall not be altered without the consent of all the Owners, and shall not be separated from the ARTICLE II. The Common Properties. Section 2.1: Title To Common Properties. The Declarant shall convey the Common Properties to the Association, free and clear of all liens and encumbrances, at the time the Declarant makes the first conveyance of title to a Section 2.2: Owners Easement of Enjoyment Each owner shall have a non-exclusive right and easement of enjoyment in and to the Common Properties, and such easement shall be appurtenant to and shall run with the title to the several Lots, subject, however, to the power of the Association to adopt Administrative Rules regulating the use of the Common Properties. ARTICLE III. Permitted And Prohibited Uses Of Lots SECTION 3.1: Permitted Use Each lot shall be used solely for single family purposes. No commercial activity (except for incidental work performed at home by a person engaged in . business) shall be carried: on or conducted from any lot, except that a lot maybe leased or rented for residential purposes for a term that shall not be less than six(6) months. SECTION 3.2: Permitted Improvements No building shall be erected, altered, placed or permitted to remain on any part of a SECTION 3.3: Maximum Height of Improvements The height of any improvement upon a Lot shall not exceed that maximum height above “mean sea level” for such Lot which is shown on Exhibit “3" attached hereto and made a part hereof. The plans prepared by Architects Hawaii Ltd. (“Mahinahina Ventures”) dated March 3, 1981, show the originally intended elevation of the property above “mean sea level” (the “Property Topographic Plans”). The Property Topographic Plans shall be used as a guide, but the actual maximum height above “mean sea level” as determined by survey shall be the ruling factor for interpretation of this section. SECTION 3.4: Minimum Enclosed Floor Area Each single family dwelling constructed on a SECTION 3.5: Signs One sign to identify the Owner, not to exceed three (3) square feet, may be placed on a Lot; no other sign, placard or notice shall be erected, placed, maintained or be permitted upon any part of a Lot. SECTION 3.6: Trash No SECTION 3.7: Division Of No SECTION 3.8: Completion of Construction The construction of any improvement upon a SECTION 3:9: Maintenance of Each Owner shall at his expense keep the exterior of the improvements on his SECTION 3.10: Regulation of Use No radio or television antennae shall be erected upon a SECTION The Architectural Control Committee shall consist of three persons. The persons appointed to the Architectural Control Committee shall be Owners, spouses of Owners, an officer of an Owner corporation, or a general partner of a partner Owner. The Board of Directors shall appoint persons to the Architectural Control Committee for a term of two years. The Board of Directors shall establish the procedural and substantive rules which (in addition to the governing provisions of this Declaration, the By-Laws for the Association, and any applicable Administrative Rules adopted by the Members) the Architectural Control Committee shall follow in the conduct of its affairs and in arriving at its decisions. SECTION 3.12: Architectural Control Committee Review No structure shall be constructed, reconstructed, placed or altered upon any SECTION The Association shall have the right to obtain an injunction, mandatory or restraining, to prevent any violation, or threatened violation, of any of the restrictions or covenants contained in this Declaration, without being required to post a bond as a condition to obtaining such injunctive relief, whether temporary, preliminary or permanent; nor shall the Association be required to show that other relief is inadequate or that the damages suffered by the Association or by an Owner are or may be irreparable. SECTION 3.14: No Obligation Of Declarant To Enforce Declaration The violation of any condition, covenant or restriction set forth in this Declaration, or the failure to pay any assessment imposed by Association, shall not entitle the Declarant to reenter or retake any Lot; not shall any condition or covenant set forth in this Declaration be deemed to reserve or grant to Declarant a Right of Entry, Power of Entry, Power of Revocation, or Possibility of Reverter with respect to any Lot. The Declarant shall not have any right (except as the owner of a Lot) or obligation to bring any action for the violation of any condition, covenant or restriction set forth in this Declaration, or for the failure to pay any assessment imposed by Association. ARTICLE IV. Association Easement Over Lots SECTION 4.1: Grant of Easement Over Each When the Declarant conveys the Common Properties to the Association, the Declarant shall, by that instrument of conveyance, be deemed to grant to the Association a perpetual easement over each (a) To give the Owners the right to travel by foot over all of the Lots to reach any part of the Property; (b) To give the Association control of the landscaping, and the maintenance of the landscaping, for all part of the property. (c) To give the Association means and access to control the security of all parts of the Property. SECTION 4.2: Description Of Association The Association Lot Easement shall include each SECTION 4.3: Association Responsibility for Landscaping After the approval of the Architectural Control Committee, each Owner shall be responsible for the landscaping of his SECTION 4.4: Owners’ Enjoyment; Association Power To Control Use of Association Each Owner shall have a non-exclusive right to the use and enjoyment of the Association Lot Easement over all the Lots, for the purposes set forth above, and the same shall be appurtenant to and shall run with the title to the several Lots. The Association shall also have a non-exclusive right to the use and enjoyment of the Association Lot Easement over all the Lots, for the purposes set forth above. The Association shall have the power to adopt Administrative Rules regulating the use of the Association Lot Easement, for the purposes set forth above. ARTICLE V. Association Assessments SECTION 5.1: Creation of Lien for Assessments The Declarant, for each Lot, and each Owner by his acceptance of a deed for a Lot, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association, as and when the same comes due, the Association Assessments hereafter provided. The Association Assessments charged to each SECTION 5.2: Purpose of Assessments The funds raised by the annual assessments levied by the Association shall be used for the following purposes: (a) The maintenance and repair of the Common Properties, the payment of premiums for insurance for the Common Properties, and the payment of utility charges required for the Common Properties. (b) The maintenance of the landscaping for all parts of the Property. (c) The establishment and expenditure of a reasonable reserve for the future maintenance and repair of the Common Properties. (d) The administration and management of the business and affairs of the Association. (e) The provision of municipal type services for the Owners. The funds raised by any special assessment levied by the Association shall be used to fund the renovation, reconstruction or alteration of the Common Properties, or some substantial part thereof, for the construction of an addition to the Common Properties, or to satisfy any extraordinary expense or liability of the Association. SECTION 5.3: Annual Budget SECTION 5.4: Common Expense Charge Upon Lots The amount of the Common Expense shown by each annual budget shall constitute the Annual Assessment levied by the Association upon all Lots, and that part of the Common Expenses in proportion to the Common Interest appurtenant to each Lot shall be assessed against, charged to, and as herein provided shall constitute a lien upon each Lot, effective on the first day of that fiscal year. The share of the Common Expenses each SECTION 5.5: Special Assessment The Members shall have the power, by the affirmative vote of sixty-seven percent (67%) of the entire Membership, to levy a special assessment against the Lots, which shall be apportioned among the Lots in proportion to the common interest appurtenant to each Lot, and which shall constitute a lien upon each Lot as herein provided, effective on the date of the adoption of such special assessment resolution. Such special assessment shall be due and payable at such time or times as the Members shall provide. In the event of any default in the payment of any portion of such special assessment, the unpaid amount of such special assessment shall bear interest at the rate of twelve percent (12%) per year (or at the highest rate of interest permitted by law) from and after fifteen (15) days following the date on which the same came due. The Board of Directors shall, within fifteen (15) days after the enactment by the Members of the resolution authorizing such special assessment, notify each Owner of the amount of such special assessment for which his Lot is liable and the date or dates when the same will be due. SECTION 5.6: Failure To Determine Common Expense Any failure by the Board of Directors to determine the Common Expenses for any ensuing fiscal year, or the failure of the Board of Directors to notify any or all of the Owners of the amount of such Common Expenses, shall not be deemed to be a waiver or release of any Lot or of any Owner of any obligation or liability for such Common Expenses. In the event of the failure on the part of the Board of Directors to determine the Common Expenses, the last determination of the Board of Directors of such Common Expenses shall continue, from year to year, and until the Board of Directors make such determination, and each Lot and Owner shall continue to be liable for the share of such Common Expenses charged to each Lot. SECTION 5.7: Waiver Of Use Of Common Properties No Owner shall be able to exempt himself or his SECTION 5.8: Additional Amounts Included In Assessment Lien The lien upon each The Association's Assessment Lien upon each lot, which is hereby established, shall constitute a paramount lien upon each lot prior to all other liens, except (1) real property tax liens and improvement district assessments imposed against a Lot by the County of Maui, and (2) any indebtedness secured by a real property mortgage of a Lot which has been recorded with the Bureau of Conveyances, State of Hawaii. The Association's lien may be foreclosed by action or by no judicial or power of sale foreclosure procedures, by the Managing Agent or Board of Directors, acting on behalf of the Association, in like manner as a mortgage of real property. In any such foreclosure the Owner shall be required to pay a reasonable rental for the apartment, if so provided in the Bylaws, and the plaintiff in the foreclosure shall be entitled to the appointment of a receiver to collect the rental owed. The Managing Agent or Board of Directors, acting on behalf of the Association, may bid on the apartment at foreclosure sale, and acquire and hold, lease, mortgage, and convey the apartment. Action to recover a money judgment for unpaid common expenses shall be maintainable without foreclosing or waiving the lien securing the unpaid common expenses owed. When the mortgagee of a mortgage of record or other purchaser of an apartment obtains title to the apartment as a result of foreclosure of the mortgage, the acquirer of title and the acquirer's successors and assigns shall not be liable for the share of the common expenses or assessments by the association of apartment owners chargeable to the apartment which became due prior to the acquisition of title to the apartment by the acquirer. The unpaid share of common expenses or assessments shall be deemed to be common expenses collectible from all of the apartment owners, including the acquirer and the acquirer's successors and assigns. The mortgagee of record or other purchaser of the apartment shall be deemed to acquire title and shall be required to pay the apartment's share of common expenses and assessments beginning: (1) Thirty-six days after the order confirming the sale to the purchaser has been filed with the court; (2) Sixty days after the hearing at which the court grants the motion to confirm the sale to the purchaser; or (3) Upon the recording of the deed, whichever occurs first. The Board of Directors of the Association may specially assess the amount of the unpaid regular monthly common assessments for common area expenses against a person who, in a judicial or non-judicial power of sale foreclosure, purchases a delinquent apartment; provided that: ( 2) A person who subsequently purchases the delinquent apartment from the mortgagee referred to in paragraph (1) shall be obligated to make, and shall be liable for, payment of the special assessment; provided that the Association has filed a notice of lien against the delinquent apartment for the unpaid assessments for common area expenses which form the basis of the special assessment, prior to the subsequent purchaser's acquisition of title to the delinquent apartment. Any unpaid assessment remaining against an apartment shall be deemed to be a Common Expense collectable from all Owners, including such acquirer of title, its successors and assigns." As an alternative to foreclosure proceedings, where an apartment is owner occupied, the Association may authorize its Managing Agent or Board of Directors to, after sixty days' written notice to the Owner and to the apartment's first mortgagee of the nonpayment of the apartment's share of the common expenses, terminate the delinquent apartment's access to the Common-Elements and cease supplying a delinquent apartment with any and a" services normally supplied or paid for by the Association. Any terminated services and privileges shall be restored upon payment of a" delinquent assessments." SECTION 5.11: Collection of Rent From Tenants If an Owner shall at any time rent or lease his Lot and shall thereafter be in default in the payment of any common expense, special assessment, or any other payment due the Association, for which his Lot is liable, the Board of Directors may, at its option, and for so long as such default shall continue, demand and receive from such tenant of the Owner up to an amount sufficient to pay all of such payments due the Association, including interest and any attorney’s fees. Any such payment of rent to the Association by such tenant shall be a sufficient discharge of such tenant, as between such tenant and the Owner to the extent of the amount so paid. Such demand for or the acceptance of such rent by the Association from any tenant shall not be deemed to be a release or discharge of any of the obligations that the Owner of the SECTION 5.12: Certificates of Payment The Association shall upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether any annual assessment, special assessment, or fine for the violation of an Administrative Rule, is due and payable for a particular Lot, and, if so, the amount thereof, the effective date thereof, and the time or times for the payment thereof. Any such certificate signed by an officer of the Association shall be binding and conclusive upon the Association, and may be relied upon by any person as an accurate statement of the facts shown therein. ARTICLE VI. Association Power to Compel Maintenance of Exterior SECTION 6.1: Board of Directors Disrepair Notice If in the judgment of a majority of the Board of Directors, the Owner of a SECTION 6.2: Board of Directors Power To Make Required Repairs If the Owner fails to commence the work for the Required Repairs within the time specified in the Exterior Lot Maintenance Deficiency Notice, or fails to complete the work for the Required Repairs within the time specified in the Exterior Lot Maintenance Deficiency Notice, the Board of Directors shall have the power to employ a contractor who shall enter the Lot and complete the Required Repairs. The Owner of the Lot shall be obligated to reimburse the Association the sum paid by the Association to complete the Required Repairs, together with interest thereon at the rate of twelve percent (12%) per year (or at the highest rate of interest permitted by law) from the date that the Association paid for the Required Repairs. The indebtedness (including interest) that the Owner shall be obligated to pay the Association for the Required Repairs shall constitute a part of the Association’s Assessment Lien upon the Owner’s ARTICLE VII. Duration And Amendment Of Declaration SECTION 7.1: Term of Declaration This Declaration shall continue in effect for a term of twenty (20) years from the Effective Date; thereafter this Declaration shall be renewed for successive periods of ten (10) years unless before the commencement of any such ten-year period not less than eighty percent (80%) of the entire Membership execute and record an appropriate instrument that terminates this Declaration. This Declaration shall, in any event, terminate upon the dissolution of the Association. SECTION 7.2: Amendment of Declaration This Declaration may be amended at any time if not less than eighty percent (80%) of the entire Membership execute and record an appropriate instrument that amends this Declaration. ARTICLE VIII. General Provisions SECTION 8.1: Waivers The failure of the Board of Directors to require, in any one or more instances, a strict performance of or compliance with any of the limitations, restrictions, conditions or covenants herein contained by any Owner, or to exercise any right given to the Association, or to serve or receive any notice, or to institute any action, shall not be construed as a waiver or relinquishment of such limitation, restriction, condition or covenant or right, but the same shall continue and remain in full force and effect. Nor shall the receipt by the Association of any payment by an Owner be construed as such a waiver. SECTION 8.2: Notices Any notice permitted or required to be delivered hereunder shall be deemed to have been delivered five days after the deposit of such notice in the mail at the Association’s principal place of business, postage prepaid, addressed to the person entitled to such notice at his last known address on file with the Secretary of the Association. SECTION 8.3: Partial Invalidity If any covenant, condition or restriction of this Declaration shall be held by a court of competent jurisdiction to be invalid, the rest of the Declaration shall continue in full force and effect. SECTION 8.4: Rules For Construction The headings and marginal notations of this Declaration are for convenience only, and if there be any conflict, the text shall control. The use of any gender shall include all genders. Whenever any words are used in the singular, they shall be construed as though they were also used in the plural in all cases where they would so apply, and vice versa. This Declaration shall be construed with reference to the law of the State of SECTION 8.5: Construction With Reference To Charger And By-Laws The provisions of the Declaration shall be construed with reference to the Charter and By-Laws of the Association, as the same may be amended from time to time, in order to accomplish the purposes and objects of the Association and the purposes of this Declaration. SECTION 8.6: Annexation The Members shall have the power, by the affirmative vote of eighty percent (80%) of the entire Membership, to add other parcels of land, or interests in land, to the Property, as additional Common Properties. The Members shall have the power to add other parcels of land to the Property, as additional Lots, if the Members shall unanimously agree upon such annexation, and if the Members shall unanimously agree upon the revised Common Interests that shall appertain to all of the Lots after such annexation. ARTICLE IX. No structure shall be constructed upon those parts of Lots 103, 104 and 108, which as shown as “No Construction Areas” on the map, dated August 24, 1983, prepared by Richard K. G. Stursberg, a copy of which is attached hereto and made a part hereof as Exhibit “4". The restrictions contained in this article are for the benefit of certain Lots, and are not for the benefit of the Association. The restrictions contained in this article respectively burden and benefit the following specific Lots: Lot Burdened Lot Benefited (the “Burdened Lot”) (the“Beneficiary 103 102 104 103 108 109 The Owner of each Beneficiary Lot may, at any time, by the execution of an appropriate instrument recorded with the Bureau of Conveyances of the State of EXHIBIT “2" 89 4.762% 90 4.762% 91 4.762% 92 4.762% 93 4.762% 94 4.762% 95 4.762% 96 4.762% 97 4.762% 101 4.762% 102 4.762% 103 4.762% 104 4.762% 105 4.762% 106 4.762% 107 4.762% 108 4.762% 109 4.762% A. All Lots Except Maximum Height *No building height improvement restriction for these Lots because these Lots are located at mauka side of the Property, and therefore the height of any improvement located on any of these Lots will not interfere with the view from any other Lot. B. Lot 91 1. The maximum height of any improvement upon the following portion of Lot 91 shall not exceed the maximum height of sixty-nine (69) feet above mean sea level: Land situated on the southwest corner of the intersection of Aekai Place and South Paua Way at Mahinahina 1, 2, and 3, Kaanapali, Lahaina, Maui, Hawaii, being a portion of Lot 91 of Mahinahina Ventures (File Plan 1749). Beginning at a point at the southeast corner of this lot, being also the northeast corner of Lot 92 of Mahinahina Ventures (File Plan 1749), the coordinates of said point of beginning referred to Government Survey Triangulation Station "MANINI", being 13,229.46 feet North and 10,870.73 feet West and running by azimuths measured from True South: 1. 64° 00' 55.28 feet along Lot 92of Mahinahina Ventures(File Plan 1749) 2. 167° 00' 97.43 feet over and across a portion of Lot 91 of Mahinahina ventures (File plan 1749) 3. Thence along the southerly side of Aekai Place on a curve to the left having a radius of 222.00 feet, the chord azimuth and distance being: 4. 246° 00’ 15.25 feet over and across same 5. Thence along the southerly side of Aekai Place and the westerly side of South Paua Way on a curve to the right having a radius of 30.00 feet, the chord azimuth and distance being: 6. Thence along the westerly side of South Paua Way a curve to the right having a radius of 43.00 feet, the chord azimuth and distance being: 2° 27' 06” 30.15 feet; 7.Thence along same on a curve to the left having a radius of 43.00 feet, the chord azimuth and distance being: 358° 27' 06" 35.60 feet to the point of beginning and containing an Area of 5,756 square feet, more or less. 2. The maximum height of any improvement upon the following portion of Lot 91 shall not exceed the maximum height of sixty-two (62) feet above mean sea level: A twenty-four feet (24’) wide View Corridor Easement in favor of Lot 92 of Mahinahina Ventures (File Plan 1749) over and across a portion of Lot 91 of Mahinahina Ventures (File Plan 1749), at Mahinahina 1, 2, and 3, Kaanapali, Lahaina, Maui, Hawaii, and being more particularly described as follows: Beginning at a point at the northwest corner of this easement, being also the northwest corner of Lot 92 of Mahinahina Ventures (File Plan 1749), the coordinates of said point of beginning referred to Government Survey Triangulation Station “MANINI", being 13,293.49 feet North and 10,965.42 feet West and running by azimuths measured clockwise from True South: 1. Along the southerly side of Aekai Place on a curve to the left having a radius of 222.00 feet, the chord azimuth and distance being: 251° 30” 42.42.56 feet; 2. 347° 00” 97.43 feet over and across a portion of Lot 91 of Mahinahina Ventures (File Plan 1749); 3. 64° 00' 24.63 feet along Lot 92 of Mahinahina Ventures (File 1749) to the point of beginning and containing an Area of 2,384 square feet, more or less. 4. 167° 00' 101.67 feet along Lot 90 of Mahinahina Ventures (File Plan 1749) to the point of beginning and containing an Area of 2,384 square feet, more or less. Liber 17337 Page 690 Liber 17408 Page 389 Liber 18731 Page 273 March 7, 1985 Liber 22435 Page 1 October 4, 1988 Doc. No. 2002 078522 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR KAPALANI ESTATES Abridged Version This version contains those articles that are pertinent to the owners of Kapalani Estates now that all the Lots have been built upon. It incorporates the changes from all of the amendments listed above. ARTICLE III. Permitted And Prohibited Uses Of Lots Each lot shall be used solely for single family purposes. No commercial activity (except for incidental work performed at home by a person engaged in business) shall be carried: on or conducted from any lot, except that a lot maybe leased or rented for residential purposes for a term that shall not be less than six (6) months. It is the intent of this Section 3. 1 that the renting of dwelling units shall be to a conventional family or consensual family unit which shall occupy the dwelling together in the manner of a conventional family, and not to unrelated individuals who rent individual rooms or who occupy the dwelling in the manner of a rooming house. The purpose of this restriction is to protect the quality and feeling of the neighborhood as a place for families and their guests and to reduce congestion, excessive numbers of vehicles in and around the property, frequency of ingress and egress, and overuse/misuse of common elements which tend to be found where transient, rooming house, or room-by-room rental activities are conducted." No building shall be erected, altered, placed or permitted to remain on any part of a SECTION 3.3: Maximum Height of Improvements The height of any improvement upon a Lot shall not exceed that maximum height above “mean sea level” for such Lot which is shown on Exhibit “3" attached hereto and made a part hereof. The plans prepared by Architects Hawaii Ltd. (“Mahinahina Ventures”) dated March 3, 1981, show the originally intended elevation of the property above “mean sea level” (the “Property Topographic Plans”). The Property Topographic Plans shall be used as a guide, but the actual maximum height above “mean sea level” as determined by survey shall be the ruling factor for interpretation of this section. SECTION 3.5: Signs One sign to identify the Owner, not to exceed three (3) square feet, may be placed on a Lot; no other sign, placard or notice shall be erected, placed, maintained or be permitted upon any part of a Lot. SECTION 3:9: Maintenance of Each Owner shall at his expense keep the exterior of the improvements on his SECTION 3.10: Regulation of Use No radio or television antennae shall be erected upon a SECTION The Architectural Control Committee shall consist of three persons. The persons appointed to the Architectural Control Committee shall be Owners, spouses of Owners, an officer of an Owner corporation, or a general partner of a partner Owner. The Board of Directors shall appoint persons to the Architectural Control Committee for a term of two years. The Board of Directors shall establish the procedural and substantive rules which (in addition to the governing provisions of this Declaration, the By-Laws for the Association, and any applicable Administrative Rules adopted by the Members) the Architectural Control Committee shall follow in the conduct of its affairs and in arriving at its decisions. SECTION 3.12: Architectural Control Committee Review No structure shall be constructed, reconstructed, placed or altered upon any SECTION The Association shall have the right to obtain an injunction, mandatory or restraining, to prevent any violation, or threatened violation, of any of the restrictions or covenants contained in this Declaration, without being required to post a bond as a condition to obtaining such injunctive relief, whether temporary, preliminary or permanent; nor shall the Association be required to show that other relief is inadequate or that the damages suffered by the Association or by an Owner are or may be irreparable. SECTION 3.14: No Obligation Of Declarant To Enforce Declaration The violation of any condition, covenant or restriction set forth in this Declaration, or the failure to pay any assessment imposed by Association, shall not entitle the Declarant to reenter or retake any Lot; nor shall any condition or covenant set forth in this Declaration be deemed to reserve or grant to Declarant a Right of Entry, Power of Entry, Power of Revocation, or Possibility of Reverter with respect to any Lot. The Declarant shall not have any right (except as the owner of a Lot) or obligation to bring any action for the violation of any condition, covenant or restriction set forth in this Declaration, or for the failure to pay any assessment imposed by Association. ARTICLE IV. Association Easement Over Lots SECTION 4.1: Grant of Easement Over Each When the Declarant conveys the Common Properties to the Association, the Declarant shall, by that instrument of conveyance, be deemed to grant to the Association a perpetual easement over each (a) To give the Owners the right to travel by foot over all of the Lots to reach any part of the Property; (b) To give the Association control of the landscaping, and the maintenance of the landscaping, for all part of the property. (c) To give the Association means and access to control the security of all parts of the Property. SECTION 4.2: Description Of Association The Association Lot Easement shall include each SECTION 4.3: Association Responsibility for Landscaping After the approval of the Architectural Control Committee, each Owner shall be responsible for the landscaping of his SECTION 4.4: Owners’ Enjoyment; Association Power To Control Use of Association Each Owner shall have a non-exclusive right to the use and enjoyment of the Association Lot Easement over all the Lots, for the purposes set forth above, and the same shall be appurtenant to and shall run with the title to the several Lots. The Association shall also have a non-exclusive right to the use and enjoyment of the Association Lot Easement over all the Lots, for the purposes set forth above. The Association shall have the power to adopt Administrative Rules regulating the use of the Association Lot Easement, for the purposes set forth above. ARTICLE V. Association Assessments SECTION 5.1: Creation of Lien for Assessments The Declarant, for each Lot, and each Owner by his acceptance of a deed for a Lot, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association, as and when the same comes due, the Association Assessments hereafter provided. The Association Assessments charged to each SECTION 5.2: Purpose of Assessments The funds raised by the annual assessments levied by the Association shall be used for the following purposes: (a) The maintenance and repair of the Common Properties, the payment of premiums for insurance for the Common Properties, and the payment of utility charges required for the Common Properties. (b) The maintenance of the landscaping for all parts of the Property. (c) The establishment and expenditure of a reasonable reserve for the future maintenance and repair of the Common Properties. (d) The administration and management of the business and affairs of the Association. (e) The provision of municipal type services for the Owners. The funds raised by any special assessment levied by the Association shall be used to fund the renovation, reconstruction or alteration of the Common Properties, or some substantial part thereof, for the construction of an addition to the Common Properties, or to satisfy any extraordinary expense or liability of the Association. SECTION 5.3: Annual Budget Not less than sixty (60) days before the beginning of each fiscal year established for the Association, the Board of Directors shall prepare and adopt a budget for the next fiscal year (which shall include the amount of any deficit for the current fiscal year or for any prior fiscal year). The annual budget shall present a complete financial plan for the operation and administration of the affairs of the Association and the Common Properties for the next fiscal year. The aggregate estimated revenues and the aggregate estimated expenses (the “Common Expenses”) of the Association shown by the budget shall be equal in amount. If the Board of Directors should change the fiscal year for the Association, or if the estimate of the Common Expenses for any fiscal year should appear to be incorrect, the Board of Directors shall have the power to revise the annual budget as of the first day of the next quarter of the current fiscal year. SECTION 5.4: Common Expense Charge Upon Lots The amount of the Common Expense shown by each annual budget shall constitute the Annual Assessment levied by the Association upon all Lots, and that part of the Common Expenses in proportion to the Common Interest appurtenant to each Lot shall be assessed against, charged to, and as herein provided shall constitute a lien upon each Lot, effective on the first day of that fiscal year. The share of the Common Expenses each SECTION 5.5: Special Assessment The Members shall have the power, by the affirmative vote of sixty-seven percent (67%) of the entire Membership, to levy a special assessment against the Lots, which shall be apportioned among the Lots in proportion to the common interest appurtenant to each Lot, and which shall constitute a lien upon each Lot as herein provided, effective on the date of the adoption of such special assessment resolution. Such special assessment shall be due and payable at such time or times as the Members shall provide. In the event of any default in the payment of any portion of such special assessment, the unpaid amount of such special assessment shall bear interest at the rate of twelve percent (12%) per year (or at the highest rate of interest permitted by law) from and after fifteen (15) days following the date on which the same came due. The Board of Directors shall, within fifteen (15) days after the enactment by the Members of the resolution authorizing such special assessment, notify each Owner of the amount of such special assessment for which his Lot is liable and the date or dates when the same will be due. SECTION 5.6: Failure To Determine Common Expense Any failure by the Board of Directors to determine the Common Expenses for any ensuing fiscal year, or the failure of the Board of Directors to notify any or all of the Owners of the amount of such Common Expenses, shall not be deemed to be a waiver or release of any Lot or of any Owner of any obligation or liability for such Common Expenses. In the event of the failure on the part of the Board of Directors to determine the Common Expenses, the last determination of the Board of Directors of such Common Expenses shall continue, from year to year, and until the Board of Directors make such determination, and each Lot and Owner shall continue to be liable for the share of such Common Expenses charged to each Lot. SECTION 5.7: Waiver Of Use Of Common Properties No Owner shall be able to exempt himself or his SECTION 5.8: Additional Amounts Included In Assessment Lien The lien upon each SECTION 5.9: Assessment Lien The Association's Assessment Lien upon each lot, which is hereby established, shall constitute a paramount lien upon each lot prior to all other liens, except (1) real property tax liens and improvement district assessments imposed against a Lot by the County of Maui, and (2) any indebtedness secured by a real property mortgage of a Lot which has been recorded with the Bureau of Conveyances, State of Hawaii. The Association's lien may be foreclosed by action or by no judicial or power of sale foreclosure procedures, by the Managing Agent or Board of Directors, acting on behalf of the Association, in like manner as a mortgage of real property. In any such foreclosure the Owner shall be required to pay a reasonable rental for the apartment, if so provided in the Bylaws, and the plaintiff in the foreclosure shall be entitled to the appointment of a receiver to collect the rental owed. The Managing Agent or Board of Directors, acting on behalf of the Association, may bid on the apartment at foreclosure sale, and acquire and hold, lease, mortgage, and convey the apartment. Action to recover a money judgment for unpaid common expenses shall be maintainable without foreclosing or waiving the lien securing the unpaid common expenses owed. When the mortgagee of a mortgage of record or other purchaser of an apartment obtains title to the apartment as a result of foreclosure of the mortgage, the acquirer of title and the acquirer's successors and assigns shall not be liable for the share of the common expenses or assessments by the association of apartment owners chargeable to the apartment which became due prior to the acquisition of title to the apartment by the acquirer. The unpaid share of common expenses or assessments shall be deemed to be common expenses collectible from all of the apartment owners, including the acquirer and the acquirer's successors and assigns. The mortgagee of record or other purchaser of the apartment shall be deemed to acquire title and shall be required to pay the apartment's share of common expenses and assessments beginning: (1) Thirty-six days after the order confirming the sale to the purchaser has been filed with the court; (2) Sixty days after the hearing at which the court grants the motion to confirm the sale to the purchaser; or (3) Upon the recording of the deed, whichever occurs first. The Board of Directors of the Association may specially assess the amount of the unpaid regular monthly common assessments for common area expenses against a person who, in a judicial or non-judicial power of sale foreclosure, purchases a delinquent apartment; provided that: (1) A purchaser who holds a mortgage on a delinquent apartment that was recorded prior to the filing of a notice of lien by the Association and who acquires the delinquent apartment through a judicial or non-judicial foreclosure proceeding, including purchasing the delinquent apartment at a foreclosure auction, shall not be obligated to make, nor be liable for, payment of the special assessment; and (2) A person who subsequently purchases the delinquent apartment from the mortgagee referred to in paragraph (1) shall be obligated to make, and shall be liable for, payment of the special assessment; provided that the Association has filed a notice of lien against the delinquent apartment for the unpaid assessments for common area expenses which form the basis of the special assessment, prior to the subsequent purchaser's acquisition of title to the delinquent apartment. The amount of the special assessment assessed under the preceding sub-paragraph shall not exceed the total amount of unpaid regular monthly common assessments that were assessed during the six months immediately preceding the completion of the judicial or non-judicial power of sale foreclosure, and for which the Association had filed a notice of lien against the delinquent apartment. In no event shall the amount of the special assessment exceed the sum of $1,800. Any unpaid assessment remaining against an apartment shall be deemed to be a Common Expense collectable from all Owners, including such acquirer of title, its successors and assigns." SECTION 5.10: Personal Liability Each Owner shall be personally liable for the amount of any Common Expense assessment or special assessment against his Lot. The Association shall have the right to enforce such personal liability of an Owner by an action for a money judgment for the unpaid amount of any such assessment. As an alternative to foreclosure proceedings, where an apartment is owner¬ occupied, the Association may authorize its Managing Agent or Board of Directors to, after sixty days' written notice to the Owner and to the apartment's first mortgagee of the nonpayment of the apartment's share of the common expenses, terminate the delinquent apartment's access to the Common-Elements and cease supplying a delinquent apartment with any and a" services normally supplied or paid for by the Association. Any terminated services and privileges shall be restored upon payment of a" delinquent assessments." SECTION 5.11: Collection of Rent From Tenants If an Owner shall at any time rent or lease his Lot and shall thereafter be in default in the payment of any common expense, special assessment, or any other payment due the Association, for which his Lot is liable, the Board of Directors may, at its option, and for so long as such default shall continue, demand and receive from such tenant of the Owner up to an amount sufficient to pay all of such payments due the Association, including interest and any attorney’s fees. Any such payment of rent to the Association by such tenant shall be a sufficient discharge of such tenant, as between such tenant and the Owner to the extent of the amount so paid. Such demand for or the acceptance of such rent by the Association from any tenant shall not be deemed to be a release or discharge of any of the obligations that the Owner of the SECTION 5.12: Certificates of Payment The Association shall upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether any annual assessment, special assessment, or fine for the violation of an Administrative Rule, is due and payable for a particular Lot, and, if so, the amount thereof, the effective date thereof, and the time or times for the payment thereof. Any such certificate signed by an officer of the Association shall be binding and conclusive upon the Association, and may be relied upon by any person as an accurate statement of the facts shown therein. ARTICLE VI. Association Power to Compel Maintenance of Exterior SECTION 6.1: Board of Directors Disrepair Notice If in the judgment of a majority of the Board of Directors, the Owner of a SECTION 6.2: Board of Directors Power To Make Required Repairs If the Owner fails to commence the work for the Required Repairs within the time specified in the Exterior Lot Maintenance Deficiency Notice, or fails to complete the work for the Required Repairs within the time specified in the Exterior Lot Maintenance Deficiency Notice, the Board of Directors shall have the power to employ a contractor who shall enter the Lot and complete the Required Repairs. The Owner of the Lot shall be obligated to reimburse the Association the sum paid by the Association to complete the Required Repairs, together with interest thereon at the rate of twelve percent (12%) per year (or at the highest rate of interest permitted by law) from the date that the Association paid for the Required Repairs. The indebtedness (including interest) that the Owner shall be obligated to pay the Association for the Required Repairs shall constitute a part of the Association’s Assessment Lien upon the Owner’s ARTICLE VII. Duration And Amendment Of Declaration SECTION 7.1: Term of Declaration This Declaration shall continue in effect for a term of twenty (20) years from the Effective Date; thereafter this Declaration shall be renewed for successive periods of ten (10) years unless before the commencement of any such ten-year period not less than eighty percent (80%) of the entire Membership execute and record an appropriate instrument that terminates this Declaration. This Declaration shall, in any event, terminate upon the dissolution of the Association. SECTION 7.2: Amendment of Declaration This Declaration may be amended at any time if not less than eighty percent (80%) of the entire Membership execute and record an appropriate instrument that amends this Declaration. ARTICLE VIII. General Provisions SECTION 8.1: Waivers The failure of the Board of Directors to require, in any one or more instances, a strict performance of or compliance with any of the limitations, restrictions, conditions or covenants herein contained by any Owner, or to exercise any right given to the Association, or to serve or receive any notice, or to institute any action, shall not be construed as a waiver or relinquishment of such limitation, restriction, condition or covenant or right, but the same shall continue and remain in full force and effect. Nor shall the receipt by the Association of any payment by an Owner be construed as such a waiver. SECTION 8.2: Notices Any notice permitted or required to be delivered hereunder shall be deemed to have been delivered five days after the deposit of such notice in the mail at the Association’s principal place of business, postage prepaid, addressed to the person entitled to such notice at his last known address on file with the Secretary of the Association. SECTION 8.3: Partial Invalidity If any covenant, condition or restriction of this Declaration shall be held by a court of competent jurisdiction to be invalid, the rest of the Declaration shall continue in full force and effect. Maximum Height Lots Above Mean Sea Level 88 56 Feet 89 64 Feet 90 66 Feet 92 73 Feet 93 -* 94 -* 95 -* 96 69 Feet 97 -* 98 -* 99 -* 100 65 Feet 101 58 Feet 102 64 Feet 103 59 Feet 104 51 Feet 105 48 Feet 106 49 Feet 107 49 Feet 108 58 Feet 109 63 Feet *No building height improvement restriction for these Lots because these Lots are located at mauka side of the Property, and therefore the height of any improvement located on any of these Lots will not interfere with the view from any other Lot. BY-LAWS SECTION 1.1: Construction Of By-Laws. These By-Laws shall be construed with reference to the Declaration Of Covenants, Restrictions And Conditions For Kapalani Estates, dated September 22, 1983 filed with the Bureau of Conveyances of the State of Hawaii at Liber 17337 Page 690 of which a copy is attached hereto and made a part hereof as Exhibit "A", hereinafter called the "DECLARATION". SECTION 1.2: Definitions. The following words whenever used herein shall have the following meanings: (a)"Association" means the "Kapalani Estates Lot Owners Association", a nonprofit corporation organized under the laws of the State of Hawaii. (b) "Member" means a member of the Association. (c) "Membership" means the rights, duties and obligations of a member. (d) "Subdivision" or "Property" means the Lots shown on Exhibit "1" attached to and made a part of the Declaration. (e) "File Plan" means File Plan Number 1749 filed In the Bureau of Conveyances of the State of Hawaii for the Mahinahina Ventures Subdivision. (f) "Common Properties" means those parts of the Property, including separate lots which are not intended for residential use and private ownership, easements and other rights relating to the Property, all rights appurtenant to the Property, and all other rights, including rights which may be held in gross by the Association but which may not be appurtenant to any part of the Property, rationally of common use to, or necessary or convenient to the existence, maintenance or safety of the Property, which are shown upon the File plan as intended to be owned by the Association, or which are shown by any instrument relating to the Subdivision as intended to be owned by the Association. (g) "Lot" means the following lots shown on the File Plan: Lot 89, containing an area of 9,213 square feet, Lot 90, containing an area of 9,614 square feet, Lot 91, containing an area of 8,140 square feet, Lot 92, containing an area of 8,582 square feet, Lot 93, containing an area of 9,693 square feet, Lot 94, containing an area of 10,281 square feet, Lot 95, containing an area of 9,964 square feet, Lot 96, containing an area of 8,265 square feet, Lot 97, containing an area of 9,509 square feet, Lot 98, containing an area of 9,712 square feet, Lot 99, containing an area of 10,750 square feet, Lot 100, containing an area of 8,214 square feet, Lot 101, containing an area of 8,373 square feet, Lot 102, containing an area of 8,723 square feet, Lot 103, containing an area of 9,362 square feet, Lot 104, containing an area of 8,916 square feet, Lot 105, containing an area of 9,040 square feet, Lot 106, containing an area of 11,366 square feet, Lot 107, containing an area of 8,843 square feet, Lot 108, containing an area of 8,050 square feet, Lot 109, containing an area of 8,034 square feet. (h) “Owner” means the person or entity who is entitled to the possession of a Lot, either as the owner of the fee simple title thereto, or as the purchaser thereof under an agreement of sale (or a like instrument) recorded with the Bureau of Conveyances of the State of Hawaii. ( i ) "Ownership" means the rights with respect to a Lot as held by the owner of the fee simple title thereto, or as held by the purchaser of a Lot under an agreement of sale (or a like instrument). ( j ) "Board Of Directors" means the Board of Directors of the Association as duly constituted from time to time. (k) "Common Interest" means the percentage of interest appertaining to the several Lots, which shall have a permanent character, shall not be altered without the consent of all the Owners, and shall not be separated from the Lot. The common interest appertaining to the several Lots are more particularly described by Exhibit "2" attached to and made a part of the Declaration. The aggregate percentages of common interests appertaining to all Lots shall total one hundred or one hundred percent (100%). ARTICLE II. Membership SECTION 2.1: Admission To Membership. Each Owner shall be a Member and shall continue to be a Member so long as he continues to be an Owner. Membership shall be appurtenant to a Lot and shall not be separable from the Ownership of the Lot to which it is appurtenant. Each Member shall have a vote at each meeting of the Association equal to the common interest appurtenant to the Lot for which he votes. The term "majority of members", or any other like term or phrase used herein relating or referring to any stated fraction or percentage of the Members, shall refer to a simple majority of the aggregate number of votes of the Memberships. At any meeting of the Members, a Member shall have the right to vote in person or by proxy. Each proxy holder shall file written proof of his authority to vote for a Member with the Secretary not less than twenty-four (24) hours before the assembly of any meeting of the Members. No proxy instrument shall be valid after eleven months from the date of its execution. If two or more persons own a Lot (whether jointly, commonly, or by the entireties) anyone of such Owners present in person at any meeting of the Members shall be entitled to exercise the vote appurtenant to such Lot, and if there should be more than one of such Owners present at any meeting of the Members, and if there should be any dispute among them as to which of them shall exercise the vote appurtenant to such Lot, then the majority of the Co-Owners then present shall determine who shall exercise such right to vote (irrespective of their relative interests, inter se, to such Lot), or, absent such determination by the Co-Owners then present, the officer of the Association presiding at such meeting of the Members shall determine by lot who shall exercise such right to vote. The Members shall have the right to elect directors by cumulative voting as provided by the Hawaii corporation statute. A Member whose name is shown on the membership list maintained by the Secretary at the close of business of the day fifteen (15) days prior to the day fixed for the assembly of a meeting of Members shall have the right to attend and vote at such meeting and at any continuance thereof. SECTION 2.3: Multiple Membership. A person or entity who is the Owner of more than one Lot shall have as many Memberships as he owns Lots. SECTION 2.4: Membership List. The Secretary shall maintain a list of the Members and of their respective post office addresses. The Secretary shall not register a transfer of a Membership until he has been furnished with a certified copy of a recorded (with the Bureau of Conveyances of Hawaii) deed, agreement of sale, or assignment of agreement of sale, that transfers the ownership of the Lot upon which Membership is based. The officers and directors of the Association shall have the right to rely upon the membership list maintained by the Secretary, and shall have the right to regard any person or entity whose name appears on such list as the Owner of the Lot specified and as the Member entitled to the rights of Membership with respect to the Lot so specified. The membership list shall be open to inspection by the other Members, but the Secretary may in his discretion refuse to permit an inspection of the list of Members if he believes that inspection is sought for the purpose of commercial solicitation. Section 2.5: Annual Meetings. The annual meeting of the Members shall be held at the principal offices of the Association or at such other place as the Board of Directors shall determine within six (6) months after the end of each fiscal year established for the Association. The day and the time for the assembly of each annual meeting of Members shall be fixed by the President. SECTION 2.6: Special Meetings. A special meeting of Members shall be held: (i) When called by the President; (ii) When requested by two or more members of the Board of Directors; or (iii) When requested by not less than thirty percent (30%) of the Members. Any such request for a special meeting of Members shall be in writing and shall set forth: (i) The purpose for the special meeting requested; and (ii) The items of business proposed to be considered at the requested special meeting. Each request for a special meeting shall be delivered to the Secretary. The President shall forthwith fix a reasonable time and day for the requested special meeting, and shall prepare an agenda for the requested special meeting, which shall permit the consideration of the items of business properly proposed for consideration in the request for special meeting. Every special meeting shall be held at the principal offices of the Association. SECTION 2.7: Notice Of Meetings. The Secretary shall give written notice of meeting to each Member shown on the membership list at the close of business of the day fifteen (15) days prior to the day fixed for the assembly of any meeting of members. The Secretary shall deliver the notice of meeting not less than fourteen (14) days prior to the day fixed for the assembly of such meeting. Such notice of meeting shall state the time, day and place for the assembly of such meeting, and the items on the agenda for such meeting. If the meeting is a special meeting, the notice shall also set forth the purpose and agenda for the special meeting stated in the call thereof. Notice of meeting shall be deemed to have been delivered when the notice is deposited, properly addressed, postage prepaid with the government mail service at the Association's principal place of business. The presence of a Member at a meeting in person or by proxy shall constitute a waiver of the requirement of the giving of notice of meeting to such Member. SECTION 2.8: Quorum. Members representing a majority of all the Members shall constitute a quorum at any meeting of the Members. Unless expressly otherwise herein provided, or as expressly otherwise provided by the Charter for the Association, or as expressly otherwise provided by the Declaration, any action may be taken or ratified, and any resolution may be enacted, at any meeting of the Members upon the affirmative vote of a majority of the Members present at any such meeting. In the absence of a quorum at any meeting of Members, a majority of the Members present in person or by proxy may, without providing for further notice of meeting, adjourn such meeting from time to time in order to secure the presence of a quorum. SECTION 2.9: Conduct Of Meeting. The President, or in his absence the Vice-President, shall preside at all meetings of Members. The Members may from time to time adopt rules of order regulating their meetings, not contrary to these By-Laws or the Charter for the Association. Only the items of business on the agenda, as set forth in the notice for that meeting, shall be considered or acted upon at that meeting. ARTICLE III. Directors SECTION 3.1: Election Of Directors. The Board of Directors shall consist of five persons, each of whom shall be a Member, the spouse of a Member, or, if a Member is a corporation or a partnership, an officer of the member corporation or a general partner of the member partnership. The first Board of Directors shall consist of three directors elected for a term of two years (the three directors who receive the highest vote), and two directors elected for a term of one year. Thereafter, upon the expiration of the term of a director, each director shall be elected for a term of two years. At any annual meeting of the Association, or at any special meeting of the Association for which the notice shall state the election of a director or directors as the business to be conducted at such special meeting, any Member may nominate from the floor one or more persons for election as a director. SECTION 3.2: Vacancies. Any vacancy in the Board of Directors, except a vacancy caused by the removal of a director by the Members, shall be filled by the majority vote of the remaining directors; the successor director so elected shall serve for the unexpired term of his predecessor. The Members, by the vote of eighty percent (80%) of the Members, may remove a director at any meeting of the Members. The successor director so elected shall serve for the unexpired term of his predecessors. SECTION 3.3: Meetings Of Directors. Meetings of the Board of Directors shall be called, held and conducted, and the Board of Directors shall act, in accordance with such rules of order as the Board of Directors shall adopt. Any such rules of order adopted by a Board of Directors shall continue in effect after the expiration of the term of office of such Board of Directors, until amended or revoked by their successors. The members of the Board of Directors shall not be compensated for their service. Each member of the Board of Directors shall attend and vote at a meeting of the Board of Directors in person and not by proxy. SECTION 3.4: Committees. The Board of Directors shall have the power to create, by resolution or resolutions enacted by a majority of the entire Board of Directors, such committee or committees (each committee to consist of two or more directors) which shall have and may exercise such power or powers of the Board of Directors provided by the Charter, these By-Laws or by-law, with respect to the management of the business and affairs of the Association, including without limitation the power to issue binding directives to any of the officers of the Association, and the attachment of the seal of the Association to any instrument executed on behalf of the Association, to the extent and as shall be provided from time to time by such resolution or resolutions enacted by the Board of Directors. No such committee of the Board of Directors shall have the power to fill any vacant directorship or to appoint or remove any person from any of the principal or subordinate offices of the Association. Such committee or committees shall have such name or names as shall be stated in such enabling resolution or resolutions enacted by the Board of Directors. SECTION 3.5: Transactions In Which Directors Are Interested. A transaction or contract between the Association and another corporation, partnership or enterprise shall not be void or voidable because such transaction or contract was entered upon by the Association pursuant to, or ratified by, a resolution of the Board of Directors of the Association enacted upon the vote of a member of the Board of Directors of the Association who was at the time of such vote also a director, officer, stockholder, or a partner, or who was otherwise interested in, such other corporation, partnership, or enterprise, if the member of the Board of Directors of the Association who is also interested in such other corporation, partnership or enterprise fully disclosed to the other members of the Board of Directors of the Association the nature and extent of such interest before the vote by the Board of Directors of the Association upon such resolution. SECTION 3.6: Power Of The Board Of Directors. The Board of Directors shall be responsible for the general management of the business, affairs and property of the Association. The Board of Director~ shall exercise the following specific powers (which shall not be construed as a limitation upon the general powers of the Board of Directors) which shall not be delegable: (a) To establish a fiscal year for the Association. (b) To adopt the annual budget for the Association. (c) To impose sanctions upon a Member for the violation of an Administrative Rule adopted by the Association. ARTICLE IV. Officers SECTION 4.1: Appointment Of Officers. The President, Vice-President, Secretary and Treasurer shall be the principal officers of the Association, and each of them shall be appointed by and shall serve at the pleasure of the Board of Directors. The Board of Directors may from time to time create one or more offices of Vice-President, one or more offices of Assistant Secretary, and one or more offices of Assistant Treasurer, and may appoint such person to any of such subordinate offices as the Board of Directors shall believe to be qualified. One person may hold more than one office. The Board of Directors may at any time and for any reason remove from office or discharge any of the principal or subordinate officers. SECTION 4.2: President. The President, who shall be appointed from the members of the Board of Directors, shall exercise general supervision and direction of the business and affairs of the Association. The President shall also have the powers and duties customarily incidental to such office, and such other powers and duties as may be given to him elsewhere in these By-Laws or as may be assigned to him by the Board of Directors. SECTION 4.3: Vice-President. The Vice-President shall assume and perform the duties of the President when that office be vacant or whenever the President, for any reason, be unable to perform the duties of his office. The Vice-President shall also have, in addition to the powers and duties specifically set forth above, the powers and duties customarily incidental to such office, such other powers and duties as may be given to him elsewhere in these By-Laws, and such other powers and duties as may be assigned to him by the President or by the Board of Directors. SECTION 4.4: Treasurer. The Treasurer shall be responsible for the money, credit and securities of the Association; he shall organize, maintain and present, by means of appropriate books, records and accounts, information relating to the financial history and current financial condition of the Association. The Treasurer shall also have, in addition to the powers and duties specifically set forth above, the powers and duties customarily incidental to such office, such other powers as may be given to him elsewhere in these By-Laws, and such other powers and duties as may be assigned to him by the President or by the Board of Directors. SECTION 4.5: Secretary. The Secretary shall keep the minutes of all meetings of the Members and of the Board of Directors. The Secretary shall determine whether a person who claims to be a Member is entitled to be present and to vote at a meeting of the Members, and he shall record the number of votes for and against any motion or resolution voted upon at a meeting of the Members. The Secretary shall also have, in addition to the powers and duties specifically set forth above, the powers and duties customarily incidental to such office, such other powers as may be given to him elsewhere in these By-Laws, and such other powers and duties as may be assigned to him by the President or by the Board of Directors. ARTICLE V. Rules SECTION 5.1: Adoption Of Administrative Rules. The Members shall have the power to adopt Administrative Rules regulating the use of the Common Properties by the Members and Administrative Rules regulating the use, maintenance of the appearance of a Lot by the Owner or an occupant thereof as may be reasonably necessary for the common welfare of all the Owners. The Members shall not have the power to adopt an Administrative Rule unless the substance of the Administrative Rule proposed for adoption has been given in writing to each Member not less than sixty (60) days prior to the day ( Note: The 60 days notice was waived by an administrative rule adopted November 1, 1983) fixed for the assembly of the meeting at which it is proposed to adopt such Administrative Rule. Upon the adoption of an Administrative Rule by the Members, the Association shall publish the same by mailing a copy thereof to each Member. The Association shall keep at its office in a separate binder a copy of each Administrative Rule which shall be certified by the Secretary, and shall show the date when the same was adopted by the Members. SECTION 5.2: Sanctions For Violation Of Administrative Rule. The Board of Directors shall have the power to impose the following sanctions for the violation of an Administrative Rule: (a) The power to order a Member to stop violating an Administrative Rule (a "Performance Order"). (b) The power to suspend the right of a Member, and all persons who claim under him, to use those parts of the Common Properties which are not required for access to his Lot for a period not to exceed thirty (30) days. (c) The power to impose a fine payable to the Association which shall not exceed the amount of $250 for each violation. If after the issuance of a Performance Order a Member willfully fails or refuses to stop violating the Administrative Rule, or to correct the condition which caused a violation of the Administrative Rule, each day thereafter during which the Member continues to violate such Administrative Rule shall be the basis for the imposition of a fine which shall not exceed the amount of $250; provided, that the aggregate amount of all fines for any such continuing violation shall not exceed $1,000. The Board of Directors shall from time to time adopt and publish a "Schedule of Maximum Fines For Administrative Rule Violations" which shall prescribe the maximum fine that may be imposed for the violation of each particular Administrative Rule. (d) The power to suspend, or to condition, the imposition of a fine for a violation of an Administrative Rule. (e) If an Administrative Rule has been violated by a tenant of an Owner, and such tenant willfully fails or refuses to stop such violation, the power to enter into the Lot occupied by such tenant and to evict such tenant therefrom, as the irrevocably appointed agent of the Owner. If the Association incurs any expense in such eviction, the full amount of such expense shall be a lien against such Lot with like effect, and to the same extent, as a common expense assessment against the Lot. SECTION 5.3: Imposition Of Sanctions. Any officer or Member of the Association may by a written complaint filed with the Board of Directors request the Board of Directors to impose sanctions upon a Member for an alleged violation of an Administrative Rule. The complaint shall describe the nature of the alleged violation of the Administrative Rule. Upon the filing of a complaint the Secretary shall immediately fix a date, time and place for the hearing thereof by the Board of Directors (which date shall not be less than five days after the delivery of notice of the hearing upon the Member alleged to be in default) and shall forthwith deliver a copy of the complaint and the notice of hearing to the Member alleged to be in default. At the hearing the Board of Directors shall hear the Member alleged to be in default, and all others interested, and shall hear and consider such testimony and evidence as it deems pertinent. The Board of Directors may exclude and refuse to hear irrelevant, immaterial or unduly repetitious testimony or evidence. The Board of Directors shall make a written decision of its findings and conclusions in the matter after the hearing, and shall file the same with the Secretary. If the Board of Directors concludes that the Member alleged to be in default has violated an Administrative Rule, the written decision shall specify the sanctions to be imposed upon that Member. The written decision entered by the Board of Directors after such a hearing shall be final and binding among the Members and the Association and the same shall not be subject to judicial review or appeal. The Secretary shall forthwith deliver a certified copy of the written decision entered by the Board of Directors in the matter to the Member alleged to be in default. ARTICLE VI. Indemnification The Association shall indemnify every director, officer, or employee, or former director, officer or employee, his heirs, executors and administrators, against costs and expenses reasonably incurred by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being, having been, or having acted as a director, officer or employee of the Association, except, however, in relation to matters which such director, officer or employee shall be adjudged in such action, suit or proceeding to be liable for negligence or misconduct in the performance of any duty to the Association; in the event of a settlement, indemnification shall be provided only in connection with such matters covered by the settlement as to which the Association is advised by counsel that the person to be indemnified was not negligent or guilty of misconduct. The foregoing right of indemnification shall be in addition to any rights provided by law. Abridged Version of Kapalani Estates Bylaws Article I deals with Definitions and Lot size ARTICLE II. Membership SECTION 2.1: Admission To Membership. Each Owner shall be a Member and shall continue to be a Member so long as he continues to be an Owner. Membership shall be appurtenant to a Lot and shall not be separable from the Ownership of the Lot to which it is appurtenant. Section 2.2: Membership Voting Each Member shall have a vote at each meeting of the Association equal to the common interest appurtenant to the Lot for which he votes. The term "majority of members", or any other like term or phrase used herein relating or referring to any stated fraction or percentage of the Members, shall refer to a simple _majority of the aggregate number of votes of the Memberships. At any meeting of the Members, a Member shall have the right to vote in person or by proxy. Each proxy holder shall file written proof of his authority to vote for a Member with the Secretary not less than twenty-four (24) hours before the assembly of any meeting of the Members. No proxy instrument shall be valid after eleven months from the date of its execution. If two or more persons own a Lot (whether jointly, commonly, or by the entireties) anyone of such Owners present in person at any meeting of the Members shall be entitled to exercise the vote appurtenant to such Lot, and if there should be more than one of such Owners present at any meeting of the Members, and if there should be any dispute among them as to which of them shall exercise the vote appurtenant to such Lot, then the majority of the Co-Owners then present shall determine who shall exercise such right to vote (irrespective of their relative interests, inter se, to such Lot), or, absent such determination by the Co-Owners then present, the officer of the Association presiding at such meeting of the Members shall determine by lot who shall exercise such right to vote. The Members shall have the right to elect directors by cumulative voting as provided by the Hawaii corporation statute. A Member whose name is shown on the membership list maintained by the Secretary at the close of business of the day fifteen (15) days prior to the day fixed for the assembly of a meeting of Members shall have the right to attend and vote at such meeting and at any continuance thereof. SECTION 2.3: Multiple Membership. A person or entity who is the Owner of more than one Lot shall have as many Memberships as he owns Lots. SECTION 2.4: Membership List. The Secretary shall maintain a list of the Members and of their respective post office addresses. The Secretary shall not register a transfer of a Membership until he has been furnished with a certified copy of a recorded (with the Bureau of Conveyances of Hawaii) deed, agreement of sale, or assignment of agreement of sale, that transfers the ownership of the Lot upon which Membership is based. The officers and directors of the Association shall have the right to rely upon the membership list maintained by the Secretary, and shall have the right to regard any person or entity whose name appears on such list as the Owner of the Lot specified and as the Member entitled to the rights of Membership with respect to the Lot so specified. The membership list shall be open to inspection by the other Members, but the Secretary may in his discretion refuse to permit an inspection of the list of Members if he believes that inspection is sought for the purpose of commercial solicitation. Section 2.5: Annual Meetings. The annual meeting of the Members shall be held at the principal offices of the Association or at such other place as the Board of Directors shall determine within six (6) months after the end of each fiscal year established for the Association. The day and the time for the assembly of each annual meeting of Members shall be fixed by the President. SECTION 2.6: Special Meetings. A special meeting of Members shall be held: (i) When called by the President; (ii) When requested by two or more members of the Board of Directors; or (iii) When requested by not less than thirty percent (30%) of the Members. Any such request for a special meeting of Members shall be in writing and shall set forth: (i) The purpose for the special meeting requested; and (ii) The items of business proposed to be considered at the requested special meeting. Each request for a special meeting shall be delivered to the Secretary. The President shall forthwith fix a reasonable time and day for the requested special meeting, and shall prepare an agenda for the requested special meeting, which shall permit the consideration of the items of business properly proposed for consideration in the request for special meeting. Every special meeting shall be held at the principal offices of the Association. SECTION 2.7: Notice Of Meetings. The Secretary shall give written notice of meeting to each Member shown on the membership list at the close of business of the day fifteen (15) days prior to the day fixed for the assembly of any meeting of Members. The Secretary shall deliver the notice of meeting not less than fourteen (14) days prior to the day fixed for the assembly of such meeting. Such notice of meeting shall state the time, day and place for the assembly of such meeting, and the items on the agenda for such meeting. If the meeting is a special meeting, the notice shall also set forth the purpose and agenda for the special meeting stated in the call therefor. Notice of meeting shall be deemed to have been delivered when the notice is deposited, properly addressed, postage prepaid with the government mail service at the Association's principal place of business. The presence of a Member at a meeting in person or by proxy shall constitute a waiver of the requirement of the giving of notice of meeting to such Member. SECTION 2.8: Quorum. Members representing a majority of all the Members shall constitute a quorum at any meeting of the Members. Unless expressly otherwise herein provided, or as expressly otherwise provided by the Charter for the Association, or as expressly otherwise provided by the Declaration, any action may be taken or ratified, and any resolution may be enacted, at any meeting of the Members upon the affirmative vote of a majority of the Members present at any such meeting. In the absence of a quorum at any meeting of Members, a majority of the Members present in person or by proxy may, without providing for further notice of meeting, adjourn such meeting from time to time in order to secure the presence of a quorum. SECTION 2.9: Conduct Of Meeting. The President, or in his absence the Vice-President, shall preside at all meetings of Members. The Members may from time to time adopt rules of order regulating their meetings, not contrary to these By-Laws or the Charter for the Association. Only the items of business on the agenda, as set forth in the notice for that meeting, shall be considered or acted upon at that meeting. ARTICLE III. Directors SECTION 3.1: Election Of Directors. The Board of Directors shall consist of five persons, each of whom shall be a Member, the spouse of a Member, or, if a Member is a corporation or a partnership, an officer of the member corporation or a general partner of the member partnership. The first Board of Directors shall consist of three directors elected for a term of two years (the three directors who receive the highest vote), and two directors elected for a term of one year. Thereafter, upon the expiration of the term of a director, each director shall be elected for a term of two years. At any annual meeting of the Association, or at any special meeting of the Association for which the notice shall state the election of a director or directors as the business to be conducted at such special meeting, any Member may nominate from the floor one or more persons for election as a director. SECTION 3.2: Vacancies. Any vacancy in the Board of Directors, except a vacancy caused by the removal of a director by the Members, shall be filled by the majority vote of the remaining directors; the successor director so elected shall serve for the unexpired term of his predecessor. The Members, by the vote of eighty percent (80%) of the Members, may remove a director at any meeting of the Members. The successor director so elected shall serve for the unexpired term of his predecessors. SECTION 3.3: Meetings Of Directors. Meetings of the Board of Directors shall be called, held and conducted, and the Board of Directors shall act, in accordance with such rules of order as the Board of Directors shall adopt. Any such rules of order adopted by a Board of Directors shall continue in effect after the expiration of the term of office of such Board of Directors, until amended or revoked by their successors. The members of the Board of Directors shall not be compensated for their service. Each member of the Board of Directors shall attend and vote at a meeting of the Board of Directors in person and not by proxy. SECTION 3.4: Committees. The Board of Directors shall have the power to create, by resolution or resolutions enacted by a majority of the entire Board of Directors, such committee or committees (each committee to consist of two or more directors) which shall have and may exercise such power or powers of the Board of Directors provided by the Charter, these By-Laws or by-law, with respect to the management of the business and affairs of the Association, including without limitation the power to issue binding directives to any of the officers of the Association, and the attachment of the seal of the Association to any instrument executed on behalf of the Association, to the extent and as shall be provided from time to time by such resolution or resolutions enacted by the Board of Directors. No such committee of the Board of Directors shall have the power to fill any vacant directorship or to appoint or remove any person from any of the principal or subordinate offices of the Association. Such committee or committees shall have such name or names as shall be stated in such enabling resolution or resolutions enacted by the Board of Directors. SECTION 3.5: Transactions In Which Directors Are Interested. A transaction or contract between the Association and another corporation, partnership or enterprise shall not be void or voidable because such transaction or contract was entered upon by the Association pursuant to, or ratified by, a resolution of the Board of Directors of the Association enacted upon the vote of a member of the Board of Directors of the Association who was at the time of such vote also a director, officer, stockholder, or a partner, or who was otherwise interested in, such other corporation, partnership, or enterprise, if the member of the Board of Directors of the Association who is also interested in such other corporation, partnership or enterprise fully disclosed to the other members of the Board of Directors of the Association the nature and extent of such interest before the vote by the Board of Directors of the Association upon such resolution. SECTION 3.6: Power Of The Board Of Directors. The Board of Directors shall be responsible for the general management of the business, affairs and property of the Association. The Board of Director~ shall exercise the following specific powers (which shall not be construed as a limitation upon the general powers of the Board of Directors) which shall not be delegable: (a) To establish a fiscal year for the Association. (b) To adopt the annual budget for the Association. (c) To impose sanctions upon a Member for the violation of an Administrative Rule adopted by the Association. ARTICLE IV. Officers SECTION 4.1: Appointment Of Officers. The President, Vice-President, Secretary and Treasurer shall be the principal officers of the Association, and each of them shall be appointed by and shall serve at the pleasure of the Board of Directors. The Board of Directors may from time to time create one or more offices of Vice-President, one or more offices of Assistant Secretary, and one or more offices of Assistant Treasurer, and may appoint such person to any of such subordinate offices as the Board of Directors shall believe to be qualified. One person may hold more than one office. The Board of Directors may at any time and for any reason remove from office or discharge any of the principal or subordinate officers. SECTION 4.2: President. The President, who shall be appointed from the members of the Board of Directors, shall exercise general supervision and direction of the business and affairs of the Association. The President shall also have the powers and duties customarily incidental to such office, and such other powers and duties as may be given to him elsewhere in these By-Laws or as may be assigned to him by the Board of Directors. SECTION 4.3: Vice-President. The Vice-President shall assume and perform the duties of the President when that office be vacant or whenever the President, for any reason, be unable to perform the duties of his office. The Vice-President shall also have, in addition to the powers and duties specifically set forth above, the powers and duties customarily incidental to such office, such other powers and duties as may be given to him elsewhere in these By-Laws, and such other powers and duties as may be assigned to him by the President or by the Board of Directors. SECTION 4.4: Treasurer. The Treasurer shall be responsible for the money, credit and securities of the Association; he shall organize, maintain and present, by means of appropriate books, records and accounts, information relating to the financial history and current financial condition of the Association. The Treasurer shall also have, in addition to the powers and duties specifically set forth above, the powers and duties customarily incidental to such office, such other powers as may be given to him elsewhere in these By-Laws, and such other powers and duties as may be assigned to him by the President or by the Board of Directors. SECTION 4.5: Secretary. The Secretary shall keep the minutes of all meetings of the Members and of the Board of Directors. The Secretary shall determine whether a person who claims to be a Member is entitled to be present and to vote at a meeting of the Members, and he shall record the number of votes for and against any motion or resolution voted upon at a meeting of the Members. The Secretary shall also have, in addition to the powers and duties specifically set forth above, the powers and duties customarily incidental to such office, such other powers as may be given to him elsewhere in these By-Laws, and such other powers and duties as may be assigned to him by the President or by the Board of Directors. ARTICLE V. Rules SECTION 5.1: Adoption Of Administrative Rules. The Members shall have the power to adopt Administrative Rules regulating the use of the Common Properties by the Members and Administrative Rules regulating the use, maintenance of the appearance of a Lot by the Owner or an occupant thereof as may be reasonably necessary for the common welfare of all the Owners. The Members shall not have the power to adopt an Administrative Rule unless the substance of the Administrative Rule proposed for adoption has been given in writing to each Member not less than sixty (60) days prior to the day (Note: The 60 days notice was waived by an administrative rule adopted November 1, 1983) fixed for the assembly of the meeting at which it is proposed to adopt such Administrative Rule. Upon the adoption of an Administrative Rule by the Members, the Association shall publish the same by mailing a copy thereof to each Member. The Association shall keep at its office in a separate binder a copy of each Administrative Rule which shall be certified by the Secretary, and shall show the date when the same was adopted by the Members. SECTION 5.2: Sanctions For Violation Of Administrative Rule. The Board of Directors shall have the power to impose the following sanctions for the violation of an Administrative Rule: (a) The power to order a Member to stop violating an Administrative Rule (a "Performance Order"). (b) The power to suspend the right of a Member, and all persons who claim under him, to use those parts of the Common Properties which are not required for access to his Lot for a period not to exceed thirty (30) days. (c) The power to impose a fine payable to the Association which shall not exceed the amount of $250 for each violation. If after the issuance of a Performance Order a Member willfully fails or refuses to stop violating the Administrative Rule, or to correct the condition which caused a violation of the Administrative Rule, each day thereafter during which the Member continues to violate such Administrative Rule shall be the basis for the imposition of a fine which shall not exceed the amount of $250; provided, that the aggregate amount of all fines for any such continuing violation shall not exceed $1,000. The Board of Directors shall from time to time adopt and publish a "Schedule of Maximum Fines For Administrative Rule Violations" which shall prescribe the maximum fine that may be imposed for the violation of each particular Administrative Rule. (d) The power to suspend, or to condition, the imposition of a fine for a violation of an Administrative Rule. (e) If an Administrative Rule has been violated by a tenant of an Owner, and such tenant willfully fails or refuses to stop such violation, the power to enter into the Lot occupied by such tenant and to evict such tenant therefrom, as the irrevocably appointed agent of the Owner. If the Association incurs any expense in such eviction, the full amount of such expense shall be a lien against such Lot with like effect, and to the same extent, as a common expense assessment against the Lot. SECTION 5.3: Imposition Of Sanctions. Any officer or Member of the Association may by a written complaint filed with the Board of Directors request the Board of Directors to impose sanctions upon a Member for an alleged violation of an Administrative Rule. The complaint shall describe the nature of the alleged violation of the Administrative Rule. Upon the filing of a complaint the Secretary shall immediately fix a date, time and place for the hearing thereof by the Board of Directors (which date shall not be less than five days after the delivery of notice of the hearing upon the Member alleged to be in default) and shall forthwith deliver a copy of the complaint and the notice of hearing to the Member alleged to be in default. At the hearing the Board of Directors shall hear the Member alleged to be in default, and all others interested, and shall hear and consider such testimony and evidence as it deems pertinent. The Board of Directors may exclude and refuse to hear irrelevant, immaterial or unduly repetitious testimony or evidence. The Board of Directors shall make a written decision of its findings and conclusions in the matter after the hearing, and shall file the same with the Secretary. If the Board of Directors concludes that the Member alleged to be in default has violated an Administrative Rule, the written decision shall specify the sanctions to be imposed upon that Member. The written decision entered by the Board of Directors after such a hearing shall be final and binding among the Members and the Association and the same shall not be subject to judicial review or appeal. The Secretary shall forthwith deliver a certified copy of the written decision entered by the Board of Directors in the matter to the Member alleged to be in default. ARTICLE VI. Indemnification The Association shall indemnify every director, officer, or employee, or former director, officer or employee, his heirs, executors and administrators, against costs and expenses reasonably incurred by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being, having been, or having acted as a director, officer or employee of the Association, except, however, in relation to matters which such director, officer or employee shall be adjudged in such action, suit or proceeding to be liable for negligence or misconduct in the performance of any duty to the Association; in the event of a settlement, indemnification shall be provided only in connection with such matters covered by the settlement as to which the Association is advised by counsel that the person to be indemnified was not negligent or guilty of misconduct. The foregoing right of indemnification shall be in addition to any rights provided by law. KAPALANI ESTATES LOT OWNERS ASSOCIATION ADMINISTRATIVE RULES
The above Documents are recorded with the Bureau of Conveyances, State of
Not less than sixty (60) days before the beginning of each fiscal year established for the Association, the Board of Directors shall prepare and adopt a budget for the next fiscal year (which shall include the amount of any deficit for the current fiscal year or for any prior fiscal year). The annual budget shall present a complete financial plan for the operation and administration of the affairs of the Association and the Common Properties for the next fiscal year. The aggregate estimated revenues and the aggregate estimated expenses (the “Common Expenses”) of the Association shown by the budget shall be equal in amount. If the Board of Directors should change the fiscal year for the Association, or if the estimate of the Common Expenses for any fiscal year should appear to be incorrect, the Board of Directors shall have the power to revise the annual budget as of the first day of the next quarter of the current fiscal year.
SECTION 5.9: Assessment Lien
(1) A purchaser who holds a mortgage on a delinquent apartment that was recorded prior to the filing of a notice of lien by the Association and who acquires the delinquent apartment through a judicial or non-judicial foreclosure proceeding, including purchasing the delinquent apartment at a foreclosure auction, shall not be obligated to make, nor be liable for, payment of the special assessment; and
The amount of the special assessment assessed under the preceding subparagraph shall not exceed the total amount of unpaid regular monthly common assessments that were assessed during the six months immediately preceding the completion of the judicial or non-judicial power of sale foreclosure, and for which the Association had filed a notice of lien against the delinquent apartment. In no event shall the amount of the special assessment exceed the sum of $1,800.
SECTION 5.10: Personal Liability
Each Owner shall be personally liable for the amount of any Common Expense assessment or special assessment against his
98 4.762%
99 4.762%
100 4.762%
EXHIBIT “3"
Lots Above Mean Sea Level
88 56 Feet
89 64 Feet
90 66 Feet
92 73 Feet
93 -*
94 -*
95 -*
96 69 Feet
97 -*
98 -*
99 -*
100 65 Feet
101 58 Feet
102 64 Feet
103 59 Feet
104 51 Feet
105 48 Feet
106 49 Feet
107 49 Feet
108 58 Feet
109 63 Feet
248° 23’ 50” 18.57 feet;
249° 00’ 44.59 feet
SECTION 3.1: Permitted Use
SECTION 3.2: Permitted Improvements
EXHIBIT “3"
A. All Lots Except Lot 91
ARTICLE I. 
Adopted by the Members on 01 November 1983 as contemplated by Section 5.1 of the By-Laws.
The members who have appended their signatures hereto, have adopted the following Administrative Rules, and waive the 60 day "notification in writing" as required by Section 5.1.
Quiet Enjoyment
The requirements of Article III of the Covenants shall be enforced as they relate to this subject.
In addition, the Board of Directors and the Resident Manager are charged with the duty to ensure quiet enjoyment for the
This is a broad general authority and supersedes other clauses, sections and rules dealing with particular subjects, and to this end the Board is empowered to make and amend rules affecting all matters which touch on "Quiet Enjoyment" including particularly noise, use of the recreational facilities, pets, etc.
Use of the Association Easement over all the Lots.
This right is specifically conveyed by Section 4.4 of the Covenants. This Easement is intended to give each Lot Owner the right to move about freely within the total six acre area of Kapalani Estates. However, in the use of this right, each Lot Owner shall respect the privacy of the Lot Owner through whose
Use of the Common Element.
Use of the Cabana shall be under the control of the Resident Manager, under specific rules to be set by the Directors from time to time. Such rules shall include control over use of its operating facilities relating to cooking, the serving of alcoholic beverages, and the closing of the Cabana at a specified time.
Use of the Swimming Pool - again shall be under the specific rules to be set by the Board of Directors. Such rules shall include control over activities in the pool, the time that the pool may be used, clothing, etc.
Use of the Tennis Courts shall also be under the control of the Board of Directors, who shall in consultation with those of the Lot Owners who are tennis players set rules, timetables, control of noise, etc.
If the Common Element Facilities shall be damaged, the Board of Directors shall arrange for immediate repairs, so as to recreate the same facility as was available to the Lot Owners before the damage took place.
Animals and Pets
No animals, livestock or poultry of any kind shall be raised, bred or kept in any House, Lot, or in the Common Element, except that dogs, cats or other household pets may be kept within the confines of the House or Lot of the Lot Owner, but strictly subject to the rules and regulations to be adopted by the Board of Directors from time to time.
Garage doors shall be kept closed, except for the necessary opening during ingress and egress. Driveways shall only be used for essential temporary parking of owners' and guests' automobiles, and no other use shall be made of the driveways (car washing excepted), unless authorized on a strictly temporary basis by the Directors. General street parking is not allowed.
"For
No Noxious or Offensive Activity shall be carried on in any House,
Tidy Appearance During Construction - during the construction of a house on any of the Lots, that Contractors shall be required to have available a portable toilet for the use of his workers, and a dumpster for trash, and shall be required to maintain a neat appearance by the regular use of such dumpster.
Skateboarding, Rollerblading, Rollerskating, and Scooters cannot be used in Kapalani Estates. This includes common sidewalks, shuffleboard, pool area, tennis court, grassy areas, or the streets, which are owned by the development.
KAPALANI ESTATES ADMINISTRATIVE RULES ADOPTED JANUARY 7, 2006
1. Leasing of homes at Kapalani Estates - All leases or rentals shall be for a minimum of six months so as to be in compliance with the
2. Guests of owners staying on property while the owners are absent shall register with the property manager upon arrival
This rule is intended to identify people and their vehicles while on the property and afford the property manager an opportunity to discuss Kapalani Estate rules with the guests.
3. Lock boxes shall only be put on doors when properties are listed for sale or lease.
This rule is intended to discourage the illegal short-term renting of properties.
4. Only homeowners may have the privilege of reserving the pool/cabana area for personal parties.
This rule is intended to preserve the right of homeowners to have access to the pool and not be excluded for large portions of the day and evening.
Board Approved Exceptions
Lot 89 Ward residence – three car garage, dog run and height of house
Lots 91, 94, 95 & 107 retractable awnings
Lot 97 Fake’s satellite dish
Lot 98
Lot 99 Hutton’s dog run, hedgerow between Owens’ property and upper lanai above garages
Lot 100 Owens hot tub, extension of property and wall at rear of home with faux lava rock
Lot 102 Kellar fence and solar panel
Lot 107 Peterson rear patio and extension of lanai
ARCHITECTURAL CONTROL COMMITTEE
PROCEDURAL and SUBSTANTIVE RULES
The Board established rudimentary rules for the conduct of the Architectural Control Committee (ACC) in the 1980’s, but there has not been any further direction from the Board, other than a View Corridor Maintenance Policy, enacted in 2010. This policy is intended to update the procedural and substantive rules for the ACC. Upon its adoption by the Board, all previous policies will be null and void.
Section 3:11 of the CC&R’s designates the Board of Directors as the entity to establish procedural rules which the (ACC) shall follow in the conduct of its affairs in arriving at its decisions. Section
The Board will appoint members to the ACC, and replace members at the conclusion of their terms or early departures, consistent with CC&R guidelines. The ACC shall consist of three members, two of whom shall also be members of the Board.
An owner may plant, re-level and landscape his entire lot, at his own expense, provided his plans for this work are approved by the ACC. The committee shall pay particular attention to view corridors as detailed in the By-Laws, and the maintenance of the park like atmosphere of the entire estate. Additional consideration shall be give to any additional work such landscaping could cause for the association’s gardeners, who will be responsible for its maintenance.
The ACC will evaluate any request by a homeowner to alter the exterior of his property, whether to the structure or to the landscaping. Homeowners wishing to receive approval from the committee shall present a diagram depicting any proposed changes to the ACC. The ACC shall review the drawing and conduct a site survey to evaluate the appropriateness of the alterations. The ACC should always consider the impact proposed alterations may have on the owner’s neighbors. The ACC shall also review the proposed plans for potential impact of view corridors of other properties within Kapalani Estates. The ACC shall, as appropriate, advise the neighbors of the proposed alterations, and may seek their input. However, the approval or denial of the proposed alteration shall ultimately be at the sole discretion of the ACC, subject to oversight by the Board. The two members of the Board who also sit on the ACC shall ensure that all Board members are fully apprised of potential projects before they have commenced.
Decisions will be based on the guidance provided in the CC&R’s Article III, Section 3.1 thru 3.14, and Section 4.3. The CC&R’s are the basis for the physical appearance of all homes and landscaping. A harmonious design and appearance for all structures and landscaping shall be enforced. The committee may hire outside consultants for advice, but only after having received approval from the Board.
The ACC will make decisions based on a majority vote and sign and date the diagram provided by the homeowner. The property manager will maintain a file of all requests for alterations to include the decisions by the ACC. All members of the ACC must sign and date the diagram, whether approving or rejecting the proposal. At the time the ACC presents its diagrams to the Board, the president shall also sign the diagram as an acknowledgement that the Board has been fully briefed on the proposal. If the homeowner is anxious to start the requested changes the ACC will request a special Board meeting to obtain the acknowledgment of the Board and the signature of the Board president.
The ACC will report to the Board at every scheduled meeting as to its activities, approvals and denials. The Board will act as the master of the ACC and may override decisions of the committee at its discretion.
If an owner violates these restrictions, the ACC may have the offending shrub, tree or land-fill removed at the owner’s expense.
VIEW PRESERVATION RESOLUTION The Declaration of Covenants, Conditions and Restrictions for Kapalani Estates provides basis for our Association's power and efforts to preserve views. We recognize view preservation requires a balancing of competing interests. In the case of building heights, specific limits were set by the CC&R's, exhibit 3. Much less certainty is evident with respect to view preservation and related landscaping restrictions. The Architectural Control Committee was directed to maintain view corridors within the property once they were established and defined. The term "view corridor" has not been described or defined by the Board, and the term "maintain" does not provide dear direction as to its meaning in the view preservation context. Throughout the 26 year history of Kapalani Estates, the issue of view preservation has been under the control of the Architectural Control Committee as a servant of the Board, but a foundation for predictability has beenlacking. As landscaping has matured over the years, there is evidence of many trees that now interfere with the "view corridors" mainly toward the ocean. Additionally, through the years many homeowners have planted trees and shrubs without approval from the Architectural Control Committee. These combined events have resulted in each homeowner's view corridor, to some extent, being impacted by both approved and unapproved trees. The following paragraphs are intended to further establish Kapalani Estates regulations as they relate to view preservation. henceforth. These regulations will be restated in the By-laws. 1. The lot sizes and layouts have been designed to take the best possible advantage of the view facing toward the northerly ocean outlook. Therefore, every homeowner either has a view corridor or has the potential for a view corridor. The term Ilview corridor" shall mean a view of the ocean from one or more significant areas from the dwelling such as living rooms, kitchens, decks, master bedrooms. The Board will establish a baseline of these views by photographing the ocean view from each home. This photographic record will serve as a touchstone for future evaluation of encroaching/offending trees, shrubs, etc. 2. Existing trees that have been previously approved cannot be removed without the owner's permission and unapproved trees or shrubs previously planted may remain in place, effective the date of adoption of these regulations by the Board. This is a one time only amnesty for unapproved trees and shrubs. 3. Where view corridors are currently partially obstructed, the KELOA Homeowners Association encourages inaividual homeowners to work with their neighbors to cut back trees or voluntarily remove offending trees, when feasible and mutually agreeable. The offending tree may be replaced by the lot owner at his/her option and expense with a smaller tree or other planting with Architectural Control Committee approval. 4. The Architectural Control Committee is instructed to canvas the entire grounds regularly and identify trees and shrubs that require pruning and to provide a list to the property manager, the Board on a quarterly basis, and affected property owners. If the property owner objects to the trimming/pruning of his/her tree or shrub, he/she may appeal to the Board. Upon notice by the property manager, a resident has five business days to appeal to the Board by way of the property manager. The Board will set up a hearing for the protesting resident within 30 days. The Board will notify the protesting resident of its findings in writing. 5. The property manager shall, upon receipt of the list, and after five business days of having notified owners of the recommended trimming/pruning, promptly ensure that sufficient trimming/pruning takes place so as to maximize view corridors. 6. If the committee decides to allow new planting of trees within a view corridor, the factors listed below in Paragraph 8 shall be considered, but the decision to allow any new planting of trees shall be within the sole discretion of the Architectural Control Committee subject to appeal to the Board. 7. The Architectural Control Committee shall retain the sole discretion of when trees and shrubs should be trimmed or pruned. If individual homeowners object to the pruning schedule they may appeal to the Board. See #4 for appeal timelines and procedure. 8. In the determination of landscaping approvals or view preservation landscaping decisions, the Board or Architectural Control Committee shall consider the quality of the view (the extent of the view - whether it is major or minor), the gercentage to which a granting blocks or would gotentially block one or more view corridors, whether one or several lots enioy the view, whether other offsite landscaging or other obstructions obscure the view, whether the view is from a grime use of the dwelling, deck, or area frequently inhabited. It is also acknowledged that larger trees are beneficial in accomplishing the directive to the Architectural Control Committee to maintain "a gark like atmosghere", that larger trees such as palms and other larger trees should be disgersed throughout the groperty on aU lots. and that such trees are likely to cause incremental ocean view obstruction. However, new coconut and palm trees should be very carefully evaluated for their potential to block views and denied if the potential would To: Homeowners KELOA From: Architectural Control Committee (ACC) Subject: View Corridor Inspection On October 26, 2009 the ACC did its first walk around and inspection of potential view corridors for all homeowners. The purpose of the inspection was to identify trees and shrubs that require trimming in order to maximize each homeowner's potential view corridor. The below list includes homeowners whose trees or shrubs have been identified by the ACC as requiring some level of trimming. Upon receipt of this list each homeowner has five business days to appeal the decision of the ACC to the KELOA Board. If, after five business days, the property manager has not heard of a potential appeal, he will ensure the listed trees or shrubs are trimmed. Once all trimming occurs, the ACC will do another walk around. Photos will be taken of each homeowner's view and it will serve as a baseline for all future view corridor decisions. The ACC also requested Jim Maulin to contact some homeowners to solicit their cooperation in replacing selected trees to enhance the overall view ofKELOA. Additionally, the ACC asked Jim to remove an old Kau tree on common property between the Storey's and Greggs. Finally, Stan Gregg has already committed to removing the tallest palm tree, closest to his house, and to further trimming back the plumeria tree to the rear of his property. Trees to be trimmed: Petersons' orchid tree to the makai side of their property and their plumeria tree in the front of their house Wards' plumeria tree Keller's orchid tree to the makai side of her property Kellys' kau tree Storeys' ficus tree Please bear with us as we work through this process. We are attempting to make decisions based on the overall benefit of Kapalani Estates. Compromises will be necessary to make this work for all. Thank you for your cooperation. RE: View Corridor Inspection 10/27/09 Addendum: The following have been accomplished since the view corridor inspection of 10/27/09. 1. Keller's orchid tree on the west side of her home was removed - Lot 102. 2. Five areca palm clusters have been removed from Story's lot, plus one kau tree was removed between the Storys and the Greggs- Lots 105 and 106. 3. The plumeria trees at the rear of Gregg's home were trimmed - Lot 105. 4. Petersons' orchid tree was pruned - Lot 107. 5. Wards' plumeria tree was pruned - Lot 89. 6. Kellys' kau tree was pruned - Lot 108. 7. The orchid tree by the cabana was pruned. 8. Three trees in front of the tennis court were pruned. 9. The monkey pod tree at the manager's house was removed. 10. The orchid tree behind Drew's house was pruned - Lot 93. 11. Several areca palms at the rear of the cabana were thinned out. PROCEDURE #1 Complaint Disclosure and KELOA Board Action 1. If a Homeowner believes that their personal property has been harmed I damaged by KELOA designated representatives, including but not limited to KELOA Board of Directors, Architectural Committee, Property Management I Property Manager or employed contractors he/she shall contact the Property Manager and ask helher witness and document the damage. If there are broken or damaged items these must be kept as proof of damage in case an outside agent may be held accountable. 2. If the property manager is unable to correct/repair the issue to the Homeowner's satisfaction, the Homeowner shall notify the KELOA Board President in writing within five (5) business days of the incident detailing the perceived damage and request an agenda item be added to the next board meeting (or if required schedule a Special Board Meeting) to discuss the issue. The Homeowner shall retain any and all damaged items for the KELOA Board of Directors to evaluate. 3. The KELOA President shall provide copies of the written complaint to all members of the KELOA Board of Directors within five (5) business days of receipt from the Homeowner and schedule a Special Board Meeting to convene no more than thirty (30) days from the receipt of the written complaint from the Homeowner. 4. At the Special Board Meeting the KELOA Board of Directors will hear the complaint as presented by the Homeowner and other relevant comments from any other affected or interested parties. 5. The KELOA Board of Directors will meet in private session to determine the merit of the complaint and what resolution will be made if any. 6. The KELOA Board of Directors finding and method of resolution, if any, will be made in writing to the Homeowner and copies to any other affected party. 7. The decision rendered by the KELOA Board of Directors is final and binding. 8. If it is determined that a contracted entity is liable for damages. The KELOA Board of Directors will pursue compensation from the offending party. 9. If it is determined that KELOA is Hable for a financial consideration in excess of $500.00 a report shall be written and sent to all members of KELOA. The report shall include the original complaint, the KELOA Board of Directors decision regarding the complaint, and a Special Assessment notice for the next quarter's maintenance fee in order to maintain the funding of the association.
PROCEDURE #2 Challenge to a KELOA Board Decision 1. If the Homeowner believes that the KELOA Board Directors made an inappropriate decision and that compensation is required the Homeowner shall notify the KELOA Board President in writing within five (5) business days of receipt of the KELOA Board of Directors decision, detailing why they feel the board was incorrect in its decision. The KELOA Board President shall include the complaint as an action item for the next board meeting or call a special board meeting. If a Special Board Meeting is required it shall be convened within thirty (30) days of receiving the written challenge to the Boards decision. 2. The KELOA Board of Directors will review the complaint for merit. If new and convincing information is brought forward that changes the KELOA Board of Directors original decision and a.) It is determined that a contracted entity is liable for damages. The KEOLA Board of directors will pursue compensation from the offending party. (or) b.) It is determined that KELOA is liable for a financial consideration in excess of $500.00 a report will be written and sent to all members of KELOA. The report shall include the original complaint, the KELOA Board of Directors decision regarding the complaint, the Homeowners challenge to the Boards decision and if necessary a ballot for the members to vote on approving or denying the Homeowners request for financial reimbursement. Included with the ballot will be a Special Assessment notice for the next quarter's maintenance fee in order to maintain the funding of the association.
Date: October 27, 2009
